!/ %\t jform THE FORUM; FORTY YEARS FULL PRACTICE JplaMpjna far. BY DAVID PAUL BROWN. AGN09 DIOENDI LABOH- MAGNA RE9, MAGNA DIGNITA3, SUMMA AUTEM GRATIA." — CICERO ¦¦f VOL. II. PHILADELPHIA: ROBERT H. SMALL, LAW BOOKSELLER, NO. 21 SOUTH SIXTH STKBET. 1856. Entered according to Act of Congress, in the year of our Lord 1856, BY DAVID PAUL BROWN, in the District Court, for the Eastern District of Pennsylvania. ¦'''—.¦ Bobb, PUe & M Elroy, Pra. Lodge Street. :ulnnln% In ffijf* $mum. Adams, John B. Adams, Fred. M. Agnew, Daniel Alexander, Wm. - Alleman, H. Clay Allibone, S. Austin Allison, R. P. Alricks, Hamilton Alsop, Robert Arundel, R. J. Ashmead, G-eo. L. Ashmead, J. W. - Ashurst, John Ashurst, Richard Atlee, W. G. Austin, Samuel H. Philadelphia. u Beaver, Pa. Philadelphia. York, Pa. Philadelphia.Lebanon, Tenn. Harrisburg, Pa. Philadelphia. New York. Philadelphia. ever having justly forfeited the kind regards of any. Upon Judge 178 THE FORUM. Randall's resignation, his place was filled by James Campbell, the present Post-Master-General of the United States. J. Richter Jones was the other Associate. To say he was a conscientious judge, is but to say what may be said of perhaps every judge that Pennsylvania has known. His literary education was superior to that of Judge Randall, but not so his scientific accom plishments. He was certainly not deficient in decision of character, or in that industry and integrity, which make decision virtue. Finally, in the year 1851, under the neAv constitu tion, an election took place. Judge Parsons had re signed. Judge King and Judge Campbell were dropped, and Oswald Thompson, William D. Kelly, and Joseph Alhson, were then elected, and now constitute the Judges of the Court of Common Pleas. We are not, as has been shown, in favor of an elec tive judiciary. Life appointments are more promotive of the objects and character of justice, and the well- being ofthe citizens. Judges should not only be honest, but free from suspicion. Nay, more — free from tempta tion. Whoever is hable to temptation in a public office, particularly a judicial office, is subject to suspicion; unjust suspicion, if you please, but still, suspicion. He is approached in a thousand ways, that he is the last to perceive, and which if he did perceive, he would be the last to encourage. Pohtical, national, religious, THE COURT OF COMMON PLEAS. 179 personal partiahty or prejudice, are all invoked or ap pealed to. Say the judge never swerves from the law ; still there is a vast deal left to judicial discretion, and judicial discretion is subject to be influenced involun tarily by favoritism or antipathy. There is not a judge now upon the bench, in this State, that we might not be happy if he enjoyed a life tenure. Honest, capable, and upright men, conscien tiously faithful to their high trusts, and yet subject, every ten or fifteen years, to the influence of party pohtics — to be dragged into the popular arena, and compelled, as it were, to fight or to fawn, for a con tinuance in their posts. Is this creditable? Is it tole rable ? In these conflicts, one judge is assailed because he drinks a glass of wine ; another, because he does not ; a third, because he is a federalist ; a fourth, because he is a democrat ; a fifth, because he is of foreign birth ; a sixth, because he is a native; a seventh, because he is a Roman Cathohc; an eighth, because he is a Pro testant ; a ninth, because he is for freedom ; a tenth, because he is for slavery ; an eleventh, because he de cided this way, in the case of Den v. Fen ; a twelfth, because he decided another way, in Doe v. Roe ; and a thirteenth, because he decided no way — and having no opinion of his own, no one has any opinion of him. Now there is a baker's dozen of objections, and each one is a fair representative of a thousand others. In 4CQ THE FORUM. their accumulation, " their name is legion." What must be the effect of this state of things, upon the bench, the bar, and the entire community, we all may think, but none may tell. But notwithstanding these objections, the first ex periment made under the new constitution has been strongly recommended to favor by the deportment of the judges, in all the courts, and by none more than by the exemplary gentleman and judge to whom we now invite attention. OSWALD THOMPSON, L.L.D. Among the most judicious selections of judges by the people, was that of Judge Thompson, the President Judge of the Common Pleas. He was born in the city of Philadelphia, is now forty-six years of age, of slender and delicate, but active frame, about five feet seven inches high, with an intelligent and ami able face, and highly agreeable personal and judicial manners. He graduated at Nassau Hall, Princeton, in 1828, studied laAV with Joseph R. Ingersoll, was admitted to the bar in 1832, and was commissioned as President Judge of the First Judicial District in De- OSWALD THOMPSON, L.L.D. \Q\ cember, 1851. He is a well-read lawyer, and without ever having enjoyed a very large practice, he had suffi cient professional employment to stimulate his energies, and to quahfy him better for a judicial station than if he had been habitually engaged, day after day, in tak ing ex parte views of legal subjects, and sometimes in substituting his professional bias for his impartial judg ment. We humbly differ from Lord Campbell, as we have previously intimated, in the opinion expressed in in his views of the Chief Justices, that eminent advo cates have generally proved to be the most eminent judges. Our impression and experience teach us that judges taken from among the more successful and bril liant members of the bar, carry with them for the most part, forensic rather than judicial qualifications and tendencies, and that they consequently, though un consciously, often take sides on the bench, as they have been accustomed to do at the bar. It is not wonderful, that it should therefore so rarely happen, that powerful advocates make distin guished judges. Most of those who have acquired great judicial fame were men who were either placed upon the bench before they had figured long in the practical concerns of the bar, or, in some instances, before they held any prominent position at the bar. Lord Mansfield was, perhaps, an exception. Judges Washington, C. J. Tilghman, Chief Justice M'Kean, Chief Justice Gibson, were never eminent as advo- 1§2 THE FORUM. cates ; nor was Judge King, of the Common Pleas, who finally obtained great respectability on the bench. Judges Wilson, Ingersoll, Levy, were barristers of the highest distinction, but were very unequal as judges ; and there are numerous other instances that could be quoted to the same effect. The reason would seem to be this, that the acute ness of a lawyer, in vindicating his client's cause, and searching out the actual or imaginary defects of his adversary, particularly when the practice is long con tinued, becomes habitual, and destroys the just equili brium of the mind, and impairs or perverts the opera tions of the judgment. This notion is further strength ened by the fact, that it also generally happens, that where a judge, has resigned, or lost his post after long service, he never seems to manifest any available qualities as an advocate. His didactic and judicial manner remain, and he would seem rather to decide than convince — so that neither judges nor advocates improve by a change of place. No man could preserve the impartial equihbrium of which we have spoken more admirably than Judge Thompson. The manner of delivering his charges and opinions is mild, gentle, and impressive, and his de portment is not only unexceptionable, but most lauda ble. He has, we think, done more to reconcile the reflectmg public to the elective judiciary, than could have been done by a majority of ten thousand votes. WILLIAM D. KELLY. 183 He has one quahty, however, said by Burke to be the usual concomitant of greatness, and which no doubt springs from the strict purity of his motives, and the sincerity of his opinions, and that is — obstinacy, or, as it is called in more courtly language, firmness. He generally adheres to his opinions, certainly from no selfishness or want of magnanimity, but because he firmly believes those opinions to be right. And although Lord Mansfield has observed that, " It is much more magnanimous to retract than to persist in error," let us say what we may, a proper tenacity of opinion is assuredly preferable to a vibratory, vacillating judge, who changes his mind as freely and as frequently as his apparel, and with much less regard for appearances. A learned though eccentric judge of our own State, has well said, " That obstinacy and firmness spring from the same root — it is obstinacy when the cause is bad — firmness when it is good ;" and with this understand ing, in its apphcation to Judge Thompson, let us call it firmness. WILLIAM D. KELLY, BORN, APRIL, 1814— ELECTED, 1851. William D. Kelly was born in the Northern Liber ties of Philadelphia, in April, 1814. Having read law 184 THE FORUM. for the usual time, with James Page, a prominent member of the bar, he was admitted to practice on the 17th of April, 1841, and became deputy prose cuting counsel, in connection with Francis I. Wharton, under Attorney General Kane, in 1845. He was commissioned as an Associate Judge of the Court of Common Pleas, in March, 1847; and was subse quently elected by a large majority to the same judi cial post, under the new constitution. Judge Kelly is among the younger judges of the State — we mean in years. His early education was exceedingly hmited, but he Avas endowed with fine natural parts ; and possessed of an energy which no ordinary impediment could resist, and an ambition that difficulties only served to strengthen. He was for some years before he reached maturity, placed at a mechanical trade, which, to his credit be it spoken, in his more elevated position, he never was afraid or ashamed to acknowledge, but rather looked back to as enhancing his subsequently acquired honors ; nay, that is not all — as imparting to him those salu tary lessons of sympathy with those who struggle to carve out their road to distinction through poverty and adversity, and afterwards secure the elevation they attain, by the strength they acquire in its labo rious and honorable pursuit. Judge Kelly, while yet a student of law, became a popular and eloquent pohtical speaker ; united in all JOSEPH ALLISON. 185 public and philanthropic measures for the suppression of vice, and the amelioration of the condition of the poor or neglected, and long before he held any official position, he had effected a lodgment in the hearts of his fellow citizens, which his subsequent exemplary and cordial deportment was calculated to confirm. Upon being placed in nomination as a Judge of the Court of Common Pleas, the overwhelming vote which he re ceived was the best voucher for the favor in which he was held by all classes, and conditions, and parties of his fellow men. He is still a young man, and his honors, though considerable, have not yet reached their maturity. He furnishes the best assurance of future elevation, by his devotion to his present duties. JOSEPH ALLISON. Judge Allison is perhaps the youngest judge in Pennsylvania. His parents were highly respectable citizens of Harrisburg, Pennsylvania, where he was born, in the year 1820, and where, at the age of nine teen, he commenced the study of the law, under the direction of John B. Adams, a young, but a promising member of the legal profession. Mr. Allison became a member of the Philadelphia bar, on the twenty-third VOL. II. — 13 186 THE FORUM. of November, 1843. Although he did not enjoy the advantages of a collegiate education, he at least may boast, with William Lewis, David Rittenhouse, Chan cellor Walworth, and other great men, that he in structed himself and graduated upon a farm. He was a youth of much energy and ambition, and, of course, of great perseverance. His pursuit of knowledge was unremitted ; and although, with all his merits, a modest man, no one who marked his brief and limited career at the bar, could fail to perceive that he was destined to make a highly respectable figure in the legal profession. Considering the disadvantages encountered by him, he advanced himself rapidly in business, and at the time when he was unexpectedly placed in nomina tion for a judicial seat, he had succeeded in laying the foundation for a competent, if not lucrative practice. We need not say he was a man of unstained morality, but we may be permitted to state that he was possessed of the kindest and most philanthropic sentiments. He is perhaps sometimes a httle testy in his temper, but even this infirmity arises from his nice sense of deli cacy and propriety in the administration of justice. Any roughness or unkindness at the bar, obviously jars upon his feehngs, and destroys the equilibrium and composure of his mind. No man aims more ear nestly at a faithful discharge of his duties, and if he commits any errors, to use the stereotype phrase, which has been in use from time immemorial, "they are errors JOSEPH ALLISON. 187 of the head, and not of the heart." In further and just commendation of him, it may be observed, that he is a man of untiring industry, and unquestioned fidelity. He has within bim materials for a distinguished judge. Neither a lawyer nor a judge is to be made in a year, with the aid of all the advantages and appliances that nature, education, and good fortune can supply; but with the talents and habits of Judge Allison, we may safely venture to predict that, under the ripening influ ence of time and experience, he will have no occasion to shrink from comparison Avith any associate judge that has ever occupied his present highly responsible position. Judge Allison is a delicately formed man, of some five feet six inches in height, of an agreeable face, and of frank and conciliatory manners. He manifests com mendable patience upon the bench, and his whole judi cial course has been marked by an apparent desire to perform his duty to the best of his ability, and with out fear, favor, or affection. It would be most unrea sonable to expect from a man of his years and limited opportunities, that proficiency which can alone be at tained by prolonged experience. Neither in law nor in agriculture, can we hope to gather our harvest in seed time. We should remember, that " to every thing there is a season, and a time for every purpose under Heaven." 188 THE FORUM. List of Judges and Attorneys General since the Revolution. THE JUDGES OF THE CIRCUIT COURT OF THE UNITED STATES, FOR THE THIRD DISTRICT. James Wilson, April 12, 1790. *William Cushing, Oct. 11, 1792. * James Iredell, April 11, 1793. *William Patterson, April 11, 1795. *Samuel Chase, April 11, 1798. Bushrod Washington, Dec. 20, 1798. Henry Baldwin, April 12, 1830. Robert C. Grier, Sept. 14, 1846. THE JUDGES OF THE DISTRICT COURT OF THE UNITED STATES, FOR THE EASTERN DISTRICT OF PENNSYL VANIA. Francis Hopkinson, April 12, 1790. Richard Peters, April 11, 1792. Joseph Hopkinson, April 11, 1829. Archibald Randall, March 8, 1842. John K. Kane, June 16, 1846. DISTRICT ATTORNEYS OF THE UNITED STATES FOR THE THIRD DISTRICT. William Lewis, William Rawle, Jared Ingersoll, Alexander James Dallas, Charles Jared Ingersoll, George M. Dallas, John M. Read, William M. Meredith, Henry M. Watts, Thomas M. Pettit, John W. Ashmead, James C. Vandyke. THE MIDNIGHT JUDGES. AVm. Tilghman, C. J.,March3, 1801. |William Griffith, 1801. Richard Bassett, Feb. 20, 1801. I The Court ceased to sit May 26th, 1802. * These Judges held Circuit Courts at the dates set opposite their names— WUIiam Cushing at York, the rest at Philadelphia. As they were Judges of other Circuits, we suppose they were detailed for a spe cial purpose to the Third Circuit. LIST OF JUDGES. 189 JUDGES OF THE SUPREME COURT OF PENNSYLVANIA SINCE THE REVOLUTION. (Chief Justices.) Thomas M'Kean, July 28, 1777. Edward Shippen, Dec. 18, 1799. I William Tilghman, Feb. 28, 1806. I J. Bannister Gibson, May 18, 1827. SINCE AMENDMENTS OF 1850 TO THE CONSTITUTION. Jeremiah S. Black, Dec. 1, 1851. | Ellis Lewis, Dec. 4, 1854. PUISNE JUDGES. Wm. Augustus Atlee, Aug. 16,1777. John Evans, Aug. 16, 1777. George Bryan, April 3, 1780. Jacob Rush, Feb. 26, 1784. Edward Shippen, Jan. 31, 1791. Jasper Yeates, March 21, 1791. William Bradford, Aug. 20, 1791. Thomas Smith, Jan. 31, 1794. Hugh Henry Breckenridge, Dec. 18, 1799. J. Bannister Gibson, June 27, 1816. Thomas Duncan, March 14, 1817. Molton Cropper Rogers, April 15, 1821. Charles Huston, April 17, 1826. John Tod, May 25, 1827. Frederick Smith, Jan. 31, 1828. John Ross, April 16, 1830. John Kennedy, Nov. 29, 1830. Thomas Sergeant, Feb. 3, 1834. Thomas Burnside, Jan. 2, 1845. Richard Coulter, Sept. 16, 1846. Thomas S. Bell, Dec. 18, 1846. George Chambers, April 16, 1851. SINCE AMENDMENTS OF 1850 TO THE CONSTITUTION. Jeremiah S. Black. Ellis Lewis, Dec. 1, 1851. J. Bannister Gibson, Dec. 1, 1851. Walter H. Lowrie, Dec. 1, 1851. Richard Coulter, Dec. 1, 1851. George W. Woodward, May 8, 1852. George W. Woodward, Dec. 6, 1852. John C. Knox, May 23, 1853. John C. Knox, Dec. 5, 1853. Jeremiah S. Black, Dec. 4, 1854. 190 THE FORUM. JUDGES OF THE DISTRICT COURT FOR THE CITY AND COUNTY OF PHILADELPHIA. Joseph Hemphill, P. J., May 6, 1811. Anthony Simmons, May 6, 1811. Jacob Somers, June 3, 1811. Thomas Sergeant, Nov. 9, 1814. Joseph Hemphill, P. J., April 5, 1817. Joseph B. M'Kean, April 5, 1817. Anthony Simmons, April 5, 1817. Joseph B. M'Kean, P. J., Oct. 1, 1818. Joseph Barnes, Oct. 1, 1818. Jared Ingersoll, P. J., March 30, 1821. Joseph B. M'Kean, March 30, 1821. Benjamin R. Morgan, March 30, 1821. Moses Levy, P. J. Joseph B. M'Kean, P. J., March 30, 1825. Joseph Barnes, March 30, 1825. John Hallowell, April 22, 1825. Joseph Barnes, P. J., October 24, 1826. Charles S. Coxe, October 24, 1826. Thomas M.Pettit, February 16, 1833. Thomas M. Pettit, P. J., March 30, 1835. George M. Stroud, March 30, 1835. Joel Jones, April 22, 1835. Joel Jones, P. J., March 31, 1845. John K. Findlay, April 1, 1845. George Sharswood, April 8, 1845. George Sharswood, P. J., February 1, 1848. George M. Stroud, February 5, 1848. UNDER AMENDED CONSTITUTION OF 1850. Geo. Sharswood, P. J., December 1,1 Geo. M. Stroud, December 1, 1851. 1851. | J. I. Clark Hare, December 1, 1851. COURT OF COMMON PLEAS OF THE CITY AND COUNTY OF PHILADELPHIA, FROM 1776 TO 1851. Benjamin Chew, John Coxe, Jacob Rush, (Presidents.) John Hallowell, Edward King. ASSOCIATE LAW JUDGES OF COMMON PLEAS. Archibald Randall, James Campbell, John Richter Jones, William D. Kelly, Anson V. Parsons. LIST OF ATTORNEYS GENERAL. 191 Oswald Thompson, P., William D. Kelly, , PRESENT JUDGES. I Joseph Allison. ATTORNEYS GENERAL OF PENNSYLVANIA SINCE THE REVOLUTION. Jonathan Dickinson Sergeant, July 28, 1777. William Bradford, Jr., November 23, 1780. Jared Ingersoll, August 22, 1791. Joseph B. M'Kean, May 10, 1800. Walter Franklin, January 9, 1809. Richard Rush, January 26, 1811. Jared Ingersoll, December 12,1811. Amos Ellmaker, December, 1816. Thomas Sergeant, July 6, 1819. Thomas Elder, December 20, 1820. Frederick Smith, December 18, 1826. Amos Ellmaker, December 18, 1828. Philip S. Markley, August 17, 1829. Samuel Douglass, February, 1830. Ellis Lewis, February, 1831. George M. Dallas, October 14, 1833. James Todd, December, 1835. WiUiam B. Reed, April 2, 1838. Ovid F. Johnson, January 15, 1839. John K. Kane, January 1, 1845. John M. Read, June 23, 1845. Benjamin F. Champneys, Dec. 18, 1846. James Cooper, July 31, 1848. Cornelius Darragh, January 4, 1849. Thomas E. Franklin, April 28, 1851. James Campbell, January 21, 1852. Francis W. Hughes. Thomas E. Franklin. CHAPTEU IX. PRESENT RELATIONS OF COURTS AND COUNSEL. The Law, so long as it is faithful to itself, is always sure, and there can be nothing to fear. A learned and honest bar, and an upright and competent bench — and they are generally to be found together — are essential to the well-being and protection of every civilized community ; — property, civil and rehgious hberty, character, hfe itself, depend upon the Law and its ministers. The dignity of the bench, and the independence of the bar, are best maintained by being respectively regarded. They are actually necessary to each other, and should be carefully preserved. The court that presides over a crowd of obsequious and servile lawyers, neither shines in original nor reflected hght. To rule among freemen, is an honor ; COURT AND COUNSEL. 193 to govern serfs, is a disgrace. What is to become of fidelity to clients — of reverence for justice — of regard for human character or human hfe, if they are all at last to be brought to the standard of " may it please your honors ?" No gentleman of the bar will ever prove deficient in just courtesy towards a judicial tribunal. His tory hardly records such an instance ; it presents many lamentable instances of culpable subserviency. The danger rather is, that members of the bar may sometimes sacrifice their true position, and become subservient to the views of the court, in order to insure favors or increase popularity. The court does not depend upon the bar, but the bar sometimes are bene fited by the court. And its references, audits, etc., form the perquisites of a portion of the bar, and rest upon the patronage of the court. Nay, not only this, but the smile of the court upon a young aspirant for fame, promotes his fortune, and their frown tends to his disgrace. Clients select the favorites of the bench as their favorites. The result is, that most men are ambitious of court favor, and thereby, for a time, derive golden opinions from all sorts of people. It is in these circumstances expecting much, to look for independence on the part of those who are depend ent for advancement and support upon their submis- siveness to the bench. And even with those estabhshed 194 THE FORUM. in business, though they may not desire to increase it, they may fear to diminish it ; a result which nothmg is more likely to produce than the loss of judicial favor. There never was a more honorable, and high-minded, and well-informed bar, than that of Pennsylvania ; and it was properly said by Judge Washington to be the " model bar of the United States." But it cannot be disguised that, for the last ten years, the efforts of all the courts seem to have been directed, unintentionally we admit, against the interest, the advancement, and the success of the profession. There is no important cause in which a young barrister has any chance of distin guishing himself; and in an unimportant case, no man can possibly distinguish himself. By a rule of the District Court, Common Pleas, Oyer and Terminer, and Quarter Sessions, but one counsel on a side is permitted to argue a cause. If, therefore, a young man happen to be an adjunct, he may merely open the case, and present it, and then his functions cease. Instead of a system of forensic degladiation, by which he is from time to time to derive improvement, he will grow gray Avithout any opportunity to make his mark upon the public. His patience is exhausted. He becomes a mere hanger-on of the courts. His hopes are dissipated. " His dream of fame is out." In the language of Johnson, "he is old, and does not want it." This is every way pernicious to the bar, and in time it will not only seriously affect its utility, but its general COURT AND COUNSEL. 495 character ; in short, banish, all those charms, and blan dishments, and lofty hopes, that make life precious. The judges perfectly well know that, for the most part, no member of the bar, however carefully his founda tions in the law are laid, commences to build upon them for some years after his admission. He must become knoAvn. There is more liberality at the bar than in all the other sciences. A veteran is desirous of aiding a younger brother, or, if you please, desirous of his aid ; the client is advised to employ him ; he is em ployed. Under the present rules of court, what can he do for others, or for himself? — virtually nothing. He literally encumbers the cause, and if he had the talents of Cicero, or Erskine, or Curran, they would avail him nothing. Nothing but accident could save him, by thrusting him into the place of his senior. Hargrave, and Dunning, and many others, were thus rescued from endless obscurity. But this is not all ; the elder members of the bar being thus deprived of the assistance of the young, take the whole manage ment of a cause, and in time lose sight of the brother hood of their juniors ; and thus cliques and rivalries will be created, where nothmg but liberality and fra ternal love should prevail. We say, this is laying the axe to the root of profes sional growth and professional eminence; besides, it is an encroachment upon the rights of the community. 196 THE FORUM. For forty years, during the palmy state of the bar, no such rule prevailed. At least two counsel upon a side were heard, and occasionally more than two. Certainly, no good reason can be assigned for the change, and it has hitherto produced no beneficial results. The present rule is bad enough in civil cases ; but a similar course is adopted in criminal, and, to a cer tain extent, even in capital cases. A man is indicted for larceny, bigamy, forgery, etc. He can be heard only by one counsel, when his temporal, and we might almost say, his eternal interests are at stake. Such a rule as this was never heard of until within the last ten years; and if not contrary to our constitutional rights, it is obviously unjust, and opposed to an estab hshed practice of half a century. It arises in some measure from judges having been elevated to the bench without ever having been extensively engaged at the bar, or from their forgetting, in their new positions, their former interests and obligations, and the condition of those who occupy their former places. If such rules had prevailed during the time of the Ingersolls, the Rawles, the Dallases, the Sergeants, the Binneys, and the Hopkinsons, where would the bar be now? — where few could find it, or desire to find it. We live now almost entirely in the hght of the past, which continues to glimmer even through the darkness of the present. The deterioration is entirely owing to the COURT AND COUNSEL. I97 courts, and those anomalous and pernicious rules to which we have referred. It has been said, that there is an exception to the rule complained of, in behalf of prisoners charged with a capital offence. Does it ever enter into the mind of the Court, that there are some punishments worse than death? Why, then, restrict those who best know the value of their own peril, from adopting commensurate means to avoid it ? Why alter and di minish privileges which have become rights, and which are adapted to, and inherent in the system of republi can government ? The next step may be to take up the old habits which even royalty — during the reign of Victoria — has thrown off, and to deny the privilege of advocacy altogether, to all those who shall most re quire its aid. But there is still another objection to judicial inno vation upon established and salutary practice or usage ; and that is, in restricting counsel to one hour of a side, which — as it generally operates — is half an hour each, in the argument of a case in banc, however important. This subject has been ably and admirably discussed, in an article in the " Legal Intelligencer," under date of November 15th, 1855, in which all its bearings are exhibited, and from which we cannot do better than pre sent a few extracts, in enforcement of this discussion : — "And what," says the writer, "is to be the effect of this new 198 THE FORUM. system, upon the bar ? Where would have been our great lawyers, if they had practised under the half-hour rule ? Where will be the profession, and all that it inherits, if that rule stand for a gene ration or two ? If the judge, who hears no arguments, nor listens to the wholesome voice of free discussion, but feeds on paper-books, must dry up, like men who live within doors, and never breathe fresh air : if paper-books are to arguments, what close apartments and chicken-water are to solid food and invigorating exercise — if belonging, at best, to the ' priesthood of expediency/ and there classing in usefulness and dignity with the warming-pan, they may serve to coddle the judicial extremities, but can never add one jot to the vital energy of the law : if they must, at last, make mum mies of the judges, they will, at the same time, change the free and animated bar from sentinels of the law, the cheerful friends and faithful allies of the Court, the protectors and champions of the suitor, into a poor, pitiful, heartless guild. We are, by these rules, we have already said, reduced to the reluctant consciousness that we have little influence on the issue of the suits we bring. Instead of carrying on a public struggle in the presence and under the eye and ear of the Court, we put our mutual miserable com plaints into the lion's mouth, where they lie ia darkness and mys tery until the oracle speaks, and we witness, in the distribution of rewards and punishments, how poor a thing the voiceless advocate is become. There he stands, armed, ready and prepared for his client's cause, but at the same time as useless and helpless as a baby; to all practical purposes — ' As skilless as unpractised infancy ;' his predicament, that of an army in the field, full of courage and discipline, and waiting only to be led against the enemy; but under some strange infatuation in those in command, ordered to stand idle and inactive, while everything which they were organ- COURT AND COUNSEL. I99 ized to defend, is wasted and destroyed before their eyes. The curtain rises — he presents his A. B. case to the Court — and then the curtain falls. He is disrated from a person of the drama to a scene-shifter ! He has his life in minutes, like summer insects on the surface of a pool. When our office shall be finally settled to be to write memorials, let us present them on our knees ! Let us, when we are born again, be re-baptized, and put on our window- shutters, that we are paper-book makers to the Supreme Court of Pennsylvania. " But will it last — this attempt to sustain the law on pamphlets, and have Courts without lawyers ? this case of hypochondria, re sembling that where the man had no confidence in his own legs, and would not stand on them. How will this effort to put down public speaking, end 1" But even this rule, regulating the length of argu ments in banc, is not so objectionable as the effort often made by the Nisi Prius, (with no rule to counte nance it,) to restrict not only the number of counsel, but the duration of speeches. " Thus bad begins, and worse remains behind." It is not an unusual thing for the Court, after the evidence is closed, in a case of eight or ten days, to turn to the counsel and say, " Cannot only one coun sel speak on a side?" Now, we may properly ask, what has the Court to do with this ? If the counsel, to secure favor, agree to the suggestion, the rights of the client are sacrificed. If the counsel refuse, as they ought to, they either speak to unprosperous cases, or they encounter the prejudices of an exhausted jury, 200 THB forum. who are taught to believe that the case is of but httle importance and involves no difficulty, and that it is a mere question in a debating society — not before a sacred tribunal of justice — in which nobody gains, and nobody loses, but the disputants. Well, the counsel maintain their rights, and the speaking is to proceed. What next ? why, the judge — it being near three o'clock — reminds them of time, and suggests the propriety of taking fifteen minutes each — one hour divided between them. Thus the lawyer is first to be drawn, and then to be quartered. Let any member of the community, who is interested in an important cause, say whether this is what justice or policy requires. It may be sport to the spectators, but often death to the parties. To show you that this is not a fancy sketch of the dispatch of justice, let us present one or two, out of many instances of this and a similar kind. In a case in the Nisi Prius, in which forty witnesses were examined, and two days occupied by the evidence ; at the close of the testimony, the learned and excellent judge, desirous, no doubt, to save time, told the coun sel, that he would hear one counsel on a side argue the cause. The senior counsel for the plaintiff respectfully told the Court that he was sorry he could not submit to any such restriction; that by the rule of the Supreme Court, two counsel were permitted to address the jury — and that this case required it. " Very well," said his honor, " then you can all speak, but each one only COURT AND COUNSEL. 201 for fifteen minutes." The senior counsel still objected, denying the authority to prescribe, by anticipation, the limits ofthe case. "If," said he, "the Court can limit counsel to fifteen minutes, the restriction may be re duced to five minutes — and if to five minutes, counsel may be prohibited from speaking at all. For myself," said the counsel, "I care but httle; but I should be un willing to compromise the rights of others by an acqui escence in what appears to me to be an encroachment upon the immunities of the members of the bar." The case, however, proceeded upon the judge's order, and when it became the turn of the senior to speak, he asked the Court whether the order was to be enforced ; and upon being answered in the affirmative, he declined ad dressing the jury, and the case was lost, although the referees to whom it had previously been submitted, had awarded to the plaintiff, upon a full hearing, the sum of one thousand dollars. Another case resulted differently — it was before Chief Justice Black. He directed a similar course, in a case that occupied ten days. The same counsel was concerned, and the same objection made; and the learned judge, with a frankness for which he is remarkable, at once admitted that he had no authority to prescribe the rule — and the cause proceeded upon the ordinary footing. But a more remarkable instance of an attempt to control counsel, was exhibited in the case of Farkin, vol. n. — 14 202 THE forum. tried in the Court of Oyer and Terminer, in the year 1843. It was a case of murder, and " neck or nothing" was involved in the issue. The prisoner, who was an humble man, was without funds or friends — and the Court appointed counsel for him. It was a most perilous case, and fought throughout with great desperation. The evidence was finished, and the summing-up concluded at 12 o'clock on Saturday night, when the counsel con cerned were informed that the case might be adjourned over until Monday morning, upon an agreement on their part, not to occupy more than an hour. The de fendant's counsel replied that he could enter into no such agreement ; that he was there by the appointment of the Court, but he could not, in obsequiousness to the views of the Court, omit the performance of his duty, or sacrifice the rights of the defendant ; that he should speak no longer than the importance ofthe case seemed to require — but he should speak just so long, if it took him till the cock crew. The case was not finished until after 4 o'clock in the morning, and the verdict, acquits ting the defendant of the capital part of the charge, was rendered at 9 o'clock on the morning of the Sabbath. Now, no doubt, the learned judge acted from the best motives, but he was certainly wrong ; and if the course proposed had been adopted, it might have re sulted in the loss of human life. A judge, especially in such a case, has no more to do with the length of a COURT AND COUNSEL. 203 counsel's speech, than the counsel has to do with the length of his honor's charge, or the measurement of his foot. A want of mutual respect produces mutual en croachment, which results in mutual injury, to say nothing of its effect on the rights of the community. These, or similar occurrences, are not unfrequent. To those who do not understand, or justly appreciate, the perfect system of jurisprudence, they may appear to be unobjectionable ; but, assuredly, every intel ligent man, who justly estimates the sanctity of the laws, and the rights of society, must look upon them with alarm, if not with abhorrence. It is useless to attempt meeting these objections by suggesting that re gard for time requires expedition. So it does ; but cer tainly not at such a sacrifice. You might as well abohsh courts of justice altogether, because her admin istration employs half the year. This would save time, and save salaries — and only ruin the country. There is a single additional suggestion which we take leave to make, in conclusion of this chapter. The Courts should not only approve, but promote, as far as possible, mutual liberality at the bar. They should set their faces against every attempt at sharp practice ; it may be very shrewd, but it leads to mischief and discredit. We remember a distinguished judge having observed, upon an apphcation by Mr. W. to release his antagonist from a nonsuit : " Tou had better hold the advantage gained, as counsel owe it to chents to 204 THE FORUM. look mainly to their interest and benefit." A member of the bar, who was present, remarked that, " if that were the case, and adopted as a principle, no honorable or honest man could be a member of the legal profession. Lawyers would be no better than sharpers, and they would merit the reproach that in times passed had been cast upon them by the community. In performing our duty to our chents, we must not forget that we owe a duty to ourselves, and to a power above us. If the client, does not approve the counsel who adopts this view, let him get others more congenial to his purpose. Proper indulgence is not only required by honesty, but it is entirely consistent with personal and professional policy. No man can be ready at all times, and he should not be illiberal to others, as he thereby teaches others illiberality towards him." "But," said the judge, " if you let the dehnquent off, he may never get ready." " That is to say," was the reply, " you take him for a knave — and I consider him, as I am bound to do, an honest man. And you sometimes convert him into what you take him for, by condemn ing him to resort to craft or illiberality, in order to protect himself. Whereas, in a profession like the law, no man loses by fairness and generosity." CHAPTER X. JOHN SERGEANT, L.L.D. BORN, 1779— DIED, NOVEMBER 25th, 1852. About the year 1810, a new legal era arose, em bracing members of the bar admitted between the years 1790 and 1800, inclusive; most of whom were students in the offices of those to whom we have already referred. There were Hopkinson, Binney, Chauncey and Sergeant; William Meredith, Charles W. Hare, John B. Wallace, Hallowell, and Condy. These gen tlemen did not, for some years from the time of their ad mission, establish] themselves in any extensive practice. The heavier business ofthe profession was almost mono polized by their seniors ; but laboring on and biding their time, of which their talents assured them, like good 206 THE FORUM. soldiers, they were prepared to take their post, and fill up the forensic ranks, whenever death or accident might furnish an opening* Mr. Sergeant for some years held the situation of Deputy Prosecuting Counsel. Mr. Hopkinson offi ciated in the Circuit Court of the United States as an assistant of the District Attorney. Mr. Binney took up the business of Reporter for the Supreme Court, and Mr. Meredith, Mr. Wallace, Mr. Chauncey, Mr. Condy, and Mr. Hallowell, like young lawyers of the present day, but not with comparable facilities, betook themselves to the inferior courts as a prepara tory step to a higher destiny, which they were enti tled to anticipate, and which they eventually reached. All these were men of extraordinary talents — worthy to be the successors of the fathers of the bar. They gradually but slowly gained ground, and as they ad- * The only surviving members of the bar admitted before the year 1792, are Anthony Morris and James Gibson ; the former admitted on the 27th of July, 1787, and the latter on the 28th of September, 1791. Mr. Morris is now ninety-one years old, and Mr. Gibson eighty-seven — men of mark in their day — both of them still retaining unusual vigor of body and mind for their period of life, and losing nothing, from the lapse of years, of that reputation which they bore in earlier life, of accomplished general scholars, sound lawyers, and finished gentlemen. We had writ ten thus much, when, before the ink was dry in the pen, we received the information of the death of Mr. Gibson, whom we had seen but a few hours before. Mr. Morris is now the only survivor of the Philadelphia lawyers of the last century. — {Tuesday, July 8, 1856). JOHN SERGEANT, L.L.D. 207 vanced their seniors receded; popular favor carved out for itself new channels, and finally the new dynasty almost entirely superseded the old. Hopkinson held a high post for oratory from the time of his speech in behalf of Judge Chase before the Senate. Sergeant, Binney, and Chauncey, very soon gave proof of lofty legal attainments — built upon integrity that was never questioned, and an industry never exhausted. There probably never were three men who in every respect were more united, or better entitled to be considered the models and the ornaments of the bar. Nor was their influence limited to this sphere. They shone wherever they moved, and were equally dis tinguished in social, political, and professional hfe. Their education was the most thorough and complete in literature and science. Their minds had been care fully disciphned to business, and to all these accom plishments was added the quahty of distinguished and poAverful orators. With such claims upon public re gard, their advance to the proudest posts of the pro fession was not to be resisted. There they stood for more than thirty years, until the retirement of one, and the death of the others, closed their glorious career — leaving a grateful memory of their excellence to all that knew them. We cannot, perhaps, present a better summary of the professional character of Mr. Sergeant, than that which his great rival himself furnishes, in his speech 208 THB FORUM. before the bar meeting, upon the melancholy occasion of his death, in the year 1852. How interesting and impressive are the lessons which we derive from the survivor, in depicting those great powers of his lamented cotemporary, the exercise of which he had so often witnessed, so often felt, and so warmly admired : — " John Sergeant," says Mr. Binney, in describing his earlier career, "was a faithful student, addicted to little pleasure, social, cheerful, and gay with the friends whom he preferred. * * * He had at that time what all have since observed, an extraordinary quickness of thought, and an equally extraordinary grasp or com prehension of the thought or argument that was opposed to him. Whatever he studied he knew well, and when he left the office, was as accomplished a student as ever was admitted to the bar. I have seen his great powers in its bud — you have seen it in its bloom. It was the same flower more fully developed, but having from the strength of my first impression, no more freshness or beauty to me, at any hour, than when I saw it in its opening." But in bestowing attention upon this just and elo quent reference to the character of the departed, we have somewhat anticipated the duty which we have humbly assumed, and to the imperfect performance of Avhich we now cheerfully return, observing, as we have more than once done, that in sketching some of the features of the venerable dead, we do not profess to write their history, but simply to recall and gratefully embalm their memory. JOHN SERGEANT, L.L.D. 209 John Sergeant was the son of Jonathan Dickinson Sergeant, who was, as has been observed, an eminent lawyer, and shortly after the Revolution, the Attorney General of the State of Pennsylvania. The subject of this notice entered Princeton College in the year 1792, and graduated with honor in the year 1795. He subsequently became a student in the office of Jared Ingersoll, and in the year 1799, was admitted to the practice ofthe law under very favorable auspices, which improved daily during the whole course of his professional career, than which there never was a higher or more honorable career, in this or any other country. At the time of his death he was in the seventy-third year of his age, and had been for more than forty years of that time, exclusive of his political or national employ ment, in the most extensive and lucrative practice .* He enjoyed the fullest confidence of the entire community to the last — and he merited it all. His learning was profound, and his piety sincere, though without any ostentation ; and there has rarely been a man who more sedulously observed the two commandments of our Sa viour, upon which, we are divinely taught, " hang all the law and the Prophets." For a year or two before his death his health be came obviously impaired ; and on the 25th of Novem- * It was currently said, that Mr. Sergeant paid for his costly house out of his professional income during the time it was being built. 210 THE FORUM ber, 1852, he bowed to man's inevitable doom — " The path of glory leads but to the grave." Mr. Sergeant was never reserved, diffiding, or sus picious. If he gave you his heart, he gave you his whole heart with the frankness of a child. In my last conversation with him, while speaking of my inten tion to relinquish office business, and limit myself to the mere duty of pubhc advocacy, he replied, that with my constitution I " might probably continue ten years longer in active professional pursuits, and that at all events, employment of some sort was necessary to happiness. But for my part," continued he, "I should not have gone beyond seventy. My last speech at Washington was made after that age, and it was a failure — I broke down." Judgment is generally impair ed with the decay of the other faculties, but with him it remained in pristine vigor, and calmly witnessed, without sharing in, the deterioration of all the other functions. It would be a delightful task to invite attention to his private virtues ; but this would be beyond our pre scribed limits, and might rouse sympathies that are in repose, or open wounds that time has partially cicatrized. Even his public life requires no eulogy or memorial, for he was known, and will long be affectionately and gratefully remembered. We must be permitted, how ever, as a double tribute, here to introduce another brief extract from a memoir, which is the production of one of his most devoted friends and inseparable JOHN SERGEANT, L.L.D. 211 companions, and who is the last survivor of the distin- tinguished forensic triumvirate. We allude to Horace Binney — the last lone star of that bright constellation, which for fifty years shed its benign influence over the profession and practice of the law. Mr. Binney, with emotions that may be more readily conceived than described, thus speaks of his departed companion — his lamented friend : — "I knew him well. I respected him truly. I honored him faithfully. I honored and respected him to the end of his life. I shall honor and respect his memory to the end of my own. * * * * In addition to great quickness, grasp of thought, and power of comprehension, he derived through an excellent education, the art of arranging his argument with perfect skill, according to the rules of the most finished and effective logic ; and he was able to penetrate the want of it in any body that was opposed to him. He never confused his premises and conclusions by blending them together or involving in any way — and he never permitted any one to do it against him. He marched to his conclusions by a path or paths that he was willing to let every body trace and ex amine, after he had completed the passage — and it was not safe for any man to do otherwise with him. " His mind was of a suggestive character. He did not like to read for the purpose of thinking ; he thought for the purpose of reading, to corroborate or to rectify his thoughts. It was his striking way; and while sometimes it exposed him to inconve nience, at other times it gave him a sort of electric power, that was altogether marvellous." Such are the sentiments of one who knew Mr. Ser- 212 THE FORUM. geant best and loved him most. And probably there is no man in the Union who ever enjoyed the pleasure of political, professional, or personal intercourse with him, who would not have subscribed to his character as thus drawn. Mr. Sergeant was in stature rather below the middle height, delicately formed, with dark hair, which re mained unchanged up to the time of his death. He had fine large, dark, lustrous eyes, a prominent nose, large mouth, and a forehead expansive and indicative of great intellectual power — causahty and order were its prominent indications, but in all respects it was a perfect study for a phrenologist.* He always dressed with the greatest neatness and precision. His temper was mild and equable; his manners cordial and un sophisticated. He was one of the first lawyers of his day, and certainly, if equalled, not surpassed by any of his cotemporaries, as an eloquent and effective advo cate. His voice was not musical, but at times it was powerful, and always most persuasive. In addressing a jury, he seemed rather to argue his case with them than to them, and in the language of one of his competitors, he virtually got into the jury-box, and took part, as it were, in the decision of his own case. His high * In the Law Library of Philadelphia may be seen an exquisite por trait of Mr. Sergeant, painted, at the instance of the bar, by Mr. Thomas Sully, whose name as an artist is historical, and only requires to be mentioned. JOHN SERGEANT, L.L.D. 213 character for honesty and candor always secured to him an attentive hearing ; and the freshness and warmth of his feelings, and the energy of his appeals, readily led to favorable results. He was a good general scholar, but on that score not equal to his brother, Judge Sergeant, or to Mr. Binney. Too much of his time was devoted to legal and pohtical science, to admit of his bestowing much attention upon Belle Lettre studies. We remem ber well some ten years before his death, when engaged in the case of Dyott, a question involving an important water-right, with J. R. Ingersoll, Chauncey, and Binney, all those gentlemen, among the best speakers at the bar, occasionally mounted upon the poetic wing, and pro duced great effect by the beauty of their hterary quo tation. Before Mr. S. rose to reply, and while he was walking up and down the room, we observed to him that there was a passage from Shakspeare exceedingly appropriate in reply, and repeated to him those hues from Othello: " Like to the Pontic sea, Whose icy current and compulsive course Ne'er feels retiring ebb, but keeps due on To the Propontic and the Hellespont." His fine face brightened with pleasure, as he said, " Do write it down for me ; for, do you know, I never could repeat two lines of poetry in my life from mere memory." 214 THE FORUM. Cicero, in the case of the prosecution of Verres, after great self-laudation, exclaimed, " So may the gods be merciful to me ! that whenever I think of the moment when I shall have to rise and speak in defence of a client, I am not only disturbed in my mind, but tremble in every limb of my body." This was also remarkably the case with Mr. Sergeant. For some minutes after he rose to open his argument in any important cause, he appeared to be oppressed, his hand shook, his lips qui vered, and his whole frame seemed to be disturbed; but gradually a reaction took place, and when that result arrived, he was every inch an advocate — self-possessed, eloquent, confident, and generally successful. Indeed, it was observed once by Mr. Chauncey, in speaking of Mr. Binney, the friend and rival of Mr. Sergeant, " That he never lost a case that he ought to have gained, except when Mr. Sergeant gained a case, that he ought to have lost." Mr. Sergeant, in arguing a cause, however dry and barren, always united or intertwined so much feeling Avith it, as to secure the understanding through the in fluence of the heart. He seemed to be on the bench and in the jury-box at the same time. His position, legal, political, social, and moral, rendered him almost invincible. He had a warm and affectionate heart, with a cool and meditative head. He was a man of great system, great delicacy, and consequently, great pro priety. JOHN SERGEANT, L.L.D. 21 0 The apparent modesty, not to say timidity, Avith which, as has been said, Mr. Sergeant approached an argument, had not only the example of Cicero, but it has been characteristic of many great men, indeed some of the greatest men in Parliament and at the bar. Charles James Fox, Townsend, Burke, and even Mansfield, manifested at least considerable hesitation in opening their speeches. A gentleman who was pre sent when Fox made his famous speech upon the East India Bill, describes him as holding an old white hat in his hand when he commenced his speech, which, for more than fifteen minutes he so twisted, and turned, and pulled, that by the time he entered fairly upon the discussion, there was nothmg in the shape of a hat left. This peculiarity leads us to consider its cause ; and we think it is attributable to the intensity of thought, drawing or driving the blood from the surface of the body to the heart. When nature recovers her tone, and reaction takes place, then it is that those great efforts are produced that strike the world with wonder, and carry the speaker, as it were, even beyond him self. So much does the mind affect, and so much is it affected by, the condition of the body. We have even high classical authority in support of our views on this subject, derived from Homer's description of a speech of Ulysses : — 21g THE FORUM. '' But when Ulysses rose in thought profound, His modest eyes he fixed upon the ground ; As one unskilled or dumb, he seemed to stand, Nor raised his head, nor stretched his sceptered hand ; But when he speaks, what elocution flows 1 Soft as the fleeces of descending snows The copious accents fall, with easy art, Melting they fall, and sink into the heart !" In the case of youthful aspirants at the bar, it has been remarked, " that hesitation is a presage of future eminence ;" and it is undoubtedly true, that no man ever made a bold and confident first speech, with entire self- possession, whose last speech was worth hearing. He gradually gets worse instead of better, and no reaction being produced, and no difficulty surmounted, his sti mulus to great efforts is diminished, instead of being increased, and mediocrity at most is his final reward. Remember, we say, " a confident speech, with entire self-possession." There have no doubt been many magnificent first efforts of young men, but they were always attended in the outset with great diffidence and trepidation ; and that very modesty imparts grace to intellectual strength, and renders it more effec tive. There was one feature in the hfe of Mr. Sergeant, which, as indicative of the high moral tone evinced throughout his whole hfe, we must not omit to notice, though it cannot be considered strictly as a professional JOHN SERGEANT, L.L.D. 217 incident. Mr. Serjeant was a stockholder and officer in the Schuylkill Navigation Company. Having great confidence in the success of his enterprise, he invest ed therein a large portion of his fortune. Matters proceeded for a long time prosperously; the stock advanced rapidly, and nearly doubled its origmal cost ; but soon after the Schuylkill and PottsviUe Railroad Company went into full operation, those who were best acquainted with these matters, saw that there must be an inevitable, rapid, and ruinous dechne in the value of the canal stock — a panic was the consequence. Many persons who were holders sold out their shares, and not only avoided loss, but secured no inconsiderable profit. It was timely proposed to Mr. Serjeant that he should follow their example. How httle did those who made this suggestion appreciate the moral grandeur of his character. "No!" was his prompt and indignant reply. " I have launched my fortune in the same boat with others, many of whom have rehed upon my opinion and my example, as to the probable safety of the in vestment. There are many that can bear the loss less than I can ; but whether or not, I will not shrink from the common peril, and save my money at the expense of others, as well as of my own character. If they lose, I will lose ; and then no man can question the honesty and sincerity of my motive. Not a share of mine shall be sold." One such practical denotement of the principles of a man is worth a volume of ordinary vol. n. — 15 218 THE FORUM. theoretic benevolence — " Opum contemptor, recti per- vicax, constans adversus metus." It is doubtful whether any man at the bar, or that ever was at the bar of Philadelphia, enjoyed higher or more deserved favor with his fellow citizens than John Sergeant. While he was the pride of his profession, he secured to himself the entire confidence of all to whom he was known, and particularly those to whom he bore the relation of counsel. He was kind and conciliating with all, but the charms that more espe cially recommended bim to popular regard, were his frankness, simplicity, and warmth of feeling.* * In order to preserve the series of judicial pictures or outlines, we re served our notice of Mr. Sergeant for this chapter. He does not depend upon place for his honors, but imparts honor to any place. He was not omitted because he was forgotten — but because he could not well be intro duced among the ancients of the law, as his sun did not rise, until their's was declining. CHAPTER XL FORENSIC MEDICINE, OR MEDICAL JURISPRUDENCE-ITS IMPORTANCE TO LAWYERS AND DOCTORS. Theology, Medicine, and Law, are the three great sciences of life. The first is directed to our eternal welfare, the salvation of the soul. The second, to the preservation of our decaying bodies, in which the seeds of dissolution are planted with those of existence. And the third, to the safeguards of our fives, our hh erty, our property, our health, and our reputation. As these sciences embeUish, improve, and sustain each other, they should always be found together; to sepa rate, is to destroy or impair them. Theology teaches us our duty to God. Medicine is designed to preserve our physical faculties, by which the mind is more or less affected in its actions, development and tendency. 220 THE FORUM. And the law, which is founded on the principles of theology, as apphed to human and temporal exigency, also necessarily embraces in its administration the dis eases of the body, their effects upon the mind, and of course, their influence upon the question of mental competency, and civil and criminal responsibility. No one of these sciences is complete apart from its rela tions to the others. God, the source and object of the ology, is the great Law-giver, and the great Physician. It is our immediate purpose, however, to direct our attention to law and medicine, so far as they are con nected with each other; and thereby to present, as the result of that union, a derivative branch of science, which may be properly denominated " Medical Juris prudence, or Forensic Medicine." Medical jurisprudence, then, is the law, as apphed to medicine. Men may be doctors, after a fashion, with no knowledge of the law. Men may be lawyers, without any other knowledge of medicine, than their own stomachs or experience may supply; but it is to neither of these classes ofthe respective professions that we address ourselves. A science is so called, because it is never fully acquired. We go on learning, learning, learning, until at last we reach the highest style of know ledge — "knowing ourselves" — in other words, knowing how little we do, or can know. To succeed in a little, however, we must aspire to much — "in great attempts, 'tis glorious e'en to fail." And we shall then be tested, MEDICAL jurisprudence. 221 not by our perfections, for that is not the lot of man, but by our success in overcoming our imperfections. Our merits are relative. He who is the first of his class, is at least looked up to, however vast the regions above or before him that remain unimproved or unex plored. The hill of science is difficult of ascent — the course of instruction is a thorny one — it is no primrose path of dalliance ! but fix your eye upon the glorious summit, redolent with amaranthine flow ers, and exhibiting on its time-honored brow all the colors of the rainbow, to light, and lead, and lure you on — and who then will fail or falter in the great at tempt? Remember, always, that "wisdom is better than rubies, and all things that are to be desired, are not to be compared to it." But to proceed to our duty : — 1. What, then, are the necessities for this branch of knowledge ? 2. What are its objects ? 3. What its probable results to the profession and mankind ? To ascertain the necessity for this branch of science, visit the lecture-room or the forum — there you will find the disciples of the one, for the most part totally unac quainted with the mysteries of the other ; in short, often boasting that they know nothing about them. We have hear'd a lawyer thank Heaven that he knew nothing about medical science; and a doctor equally pious in de- 222 THB FORUM. daring his utter ignorance of the laAV. It is, to be sure, gratifying that such men, in the language of Franklin, should have grace enough to " thank Heaven for any thing;" but, nevertheless, it exhibits a most wanton and unpardonable stupidity and folly. The confession might at all events be spared, since the fact is gene rally so obvious. What does a humdrum lawyer know of the brain, of the nervous, osseous, muscular, or san guineous system, of the membranes, or coats of the stomach, of the heart, pericardium, tissues, liver, lungs, viscera, etc. ? — comparatively nothing, either in their separate or joint structure, to say nothing of their in fluence upon each other or the entire system. Why, we have seen a lawyer in raptures, in trying an indict ment for murder — the blow having been laid as struck on the right side of the head — to find that the import ant fracture of the skull was on the left side. What did he know of the action of the counter stroke, which exhibits the effect in another and opposite direction from that which presents the cause. He knows no difference between strangury and strangulation — hy drocele and hydrocephalus. Nay, more, he knows nothing of the influence of bodily infirmity upon the mind, or of the influence of the mind upon the state of the body. How, then, can he try questions of murder, involving life — or questions of insanity, fatuity, senility, or idiocy ? — as sometimes affecting life,' and oftener controlling the disposition of property by will, MEDICAL jurisprudence. 223 or the validity of contracts, the most solemn and im portant. When ignorance is exercised upon such lofty and complicated subjects, a fool becomes worse than a madman, and both often perish together. In these deficiencies, we have not referred to meta physics. When physics are incomprehensible, meta physics are unapproachable. In this state of things, what can you expect from an examination of witnesses, the sources of hght upon most inquiries ? Absolutely nothing. The Avitness does not know what the lawyer desires to prove, and the lawyer does not know what he requires to prove himself. Truth and justice may sometimes prevail, notwithstanding, but instead of this being a trial, it is a mere game of chance, in which folly throws the dice, and the gallows attends the sequel. In France and Italy, no man is permitted to practise in the criminal courts, Avithout undergoing an examination, and establishing a familiar acquaintance Avith the prmciples of forensic medicine. Now what is to be said of the doctors? We don't mean them all — Heaven forbid! — but the masses. They are generally the Avitnesses most relied on, in those mat ters to which we have referred. Their ostensible skill entitles them to great weight; their general character, and freedom from prejudice, adds much to that weight ; and their responsibility therefore is pro portioned to their power — to their pretensions. How is it met ? In cases of insanity, epilepsy, apoplexy, 224 THB FORUM. mania-a-potu, anatomy, surgery, etc., etc., pregnancy, palsy, toxicology, botany, and chemistry. They come into court standing upon their guard against what they erroneously beheve to be the tricks of a sister profession ; and instead of relying upon their fulness of knowledge and light, they are distracted by the desire to avoid an appearance of ignorance upon any matters of inquiry. We never knew but one physician that replied, " he did not know." They all prefer specu lating, though life and property may often depend upon their speculations. There are two miracles never yet witnessed — a physician that knows everything, and one who will confess he does not know everything. We have asked a doctor, whether a shght cut of a finger was dangerous ? Well, he must first know what we mean by " danger" as if the Avords did not convey their own meaning ; and finally, he will tell us of the apparent disproportion between cause and effect, gan grene and lockjaw, and the whole tissue of evils that may possibly arise, and thus override all probabilities by an imaginary possibility. He is so careful that he adopts Hotspur's doctrine, that it may be dangerous " to eat, to drink, to sleep," and the question and the answer both go for nothing. Where is the difficulty in saying a slight cut of the finger is not dangerous ? The Avhole difficulty arises in considering what use is to be made of the answer, rather than what plainly should be the answer. Time is thus occupied unpro- MEDICAL JURISPRUDENCE. 225 fitably by the suspicious and useless anxiety of the witness. " Is it possible, doctor, for an unsound mind to reside in a body that is undoubtedly sound ?" His answer was, he could conceive of such a thing. What a con ception ! Why not answer, he didn't knoAV. He did not dare to confess ignorance, and he therefore, to shield himself, conceived of that which no other man in his senses could have conceived; as it appears to be well settled among the truly scientific physicians and metaphysicians, that the mind is never impaired in its action, except through the disordered functions of the body. If the mind in itself could be diseased, it could die — a supposition directly opposed to the subhme doctrines of the immortality of the soul, and therefore utterly to be rejected. A distinguished phy sician in New York, upon being asked how fevers were divided, replied, "there are many kinds of fevers." He had to be reminded that they were classed under the heads of idiopathic and symptomatic; and upon being further inquired of, to what class typhus fever belonged, assigned it to the symptomatic class. " What," asked the counsel, "is it symptomatic of?" "Of the climate" was the reply.* Much more commendable was the testimony of a very learned surgeon of this city, who, in a case of murder, in which the defence rested upon the allegation that the deceased had com- * Frost's Case. 226 THE FORUM. mitted suicide. There the counsel, absurdly enough, it is true, asked the doctor, what were the general indi cations of death from violence ? to which he rephed, " my knowledge will not enable me to answer so broad a question." Shakspeare has furnished the best answer that I know of in his description ofthe death of Glo'ster, where the question was, whether the deceased died from natural causes, or from violence. {Henry 6, act 3, scene II.) — " See how the blood is settled in his face. Oft have I seen a timely-parted ghost Of ashy semblance, — meagre, pale, and bloodless, — Being all descended to the laboring heart, Who, in the conflict that it holds with death, Attracts the same for ordnance 'gainst the enemy, Which, with the heart, there cools, and ne'er returns To blush and beautify the cheek again. But see ! Ms face is black a.-n&. full of blood ; His eyeballs further out than when he lived, Staring full ghastly, like a strangled man ; His hair upturned, his nostrils stretched with struggling ; His well-proportioned beard made rough and rugged, Like to the summer's corn by tempest lodg'd. It cannot be, but he was murdered here ! The least of all these signs were probable." From these brief remarks, the necessity for a know ledge of medical jurisprudence will be entirely obvious to every intelligent mind. Separated entirely from each other, medicine and law leave a gap " for ruin's MEDICAL JURISPRUDENCE. 227 wasteful entrance." A doctor who knows nothing of law, and a lawyer who knows nothmg of medicine, are deficient in essential requisites of their respective pro fessions. Now, what are its objects? We answer, in the general, to meet these necessities ; to promote practi cal skill in medicine and in law ; to render both more certain, and to magnify both, instead of permitting them to remain a by-word and reproach. To engraft so much law upon medicine as may improve the stock, and to infuse so much medicine into the law as may purify, strengthen, and improve its administration. Both the sciences shall thus grow brighter in reflected hght, and both shall conduce, to the mutual support of each other, to the lasting benefit of mankind. It is not to be expected that the medical faculty should desert their appropriate sphere, for the purpose of attending courts of justice, and ascertaining, in the diversities of litigation, the apphcation of those legal rules by which medical testimony is to be governed. Nor is it to be supposed, that in their exclusive devo tion to their own practice, they can be fully aware of the various and multifarious occasions that present themselves for the exercise of the highest departments of their knowledge, in the civil and criminal issues submitted to judicial tribunals. Perhaps it is still less to be imagined that lawyers in full practice, or even in the expectation of full practice, should aban- 228 THB FORUM. don the forum to attend daUy upon the learned and instructive lectures, which the various and distinguish ed medical schools so abundantly afford. A course or two on Chemistry, Surgery, and Anatomy, assisted by a httle incidental reading, would, at the most, be aU to which they could apply themselves. Indeed, it would rarely happen, that even these opportunities could present themselves, or be enjoyed. Hence it becomes apparent that lectures upon Medical Juris prudence, "the zone of both sciences," AA'hich wiU em brace aU that is necessary of the law as weU as medi cine, in order to the improvement of the professors of both, will furnish facihties for the acquisition of prac tical knowledge, which, independent of such a profes sorship, must be utterly unattainable. Ten lectures in a course, one every fortnight, continuing through four or five months, would make a very inconsiderable draught upon the time and attention of the busiest man ; and especiaUy if the evening be selected for the time of lecturing. The advantages of a single course of such instruction, with moderate experience and com petency in the preceptor, would be of incalculable value. It would form a connecting hnk between the students of both professions, that would exercise great influence upon the prosperity and harmony of both — mutual good understanding would be promoted — mu tual confidence secured — and mutual and individual duties much more satisfactorily performed. The effects MEDICAL JURISPRUDENCE. 229 of such an example would be to stimulate the indif ferent or supine into emulation, and the sciences would then become what they were designed to be, the most precious earthly blessings enjoyed by man. We can understand why doctors should not always live in entire harmony with each other ; why those of different schools should rarely shake hands, unless in consulta tion. But we can see no possible reason why phy sicians and barristers should not agree. There can be no jealousies, or heart-burnings, or slanders between them. They move along pari passu, in paraUel lines towards eminence in their respective professions. They never come into conflict, except with a joint object, and that object should reconcile slight differences. But, in opposition to some of these views, drones and sciolists will teU you, that no man can be a lawyer, a doctor, and a divine ! That study must have an espe cial and exclusive destination. This is a great mistake. No one branch can secure eminence, stiU less can it do so when it is singular in its application. It may secure distinction ; but distinction is not eminence. It is in their union that the powers of the mind are Avrought up to their highest excellence, and that human nature would seem to entrench upon the dignity of angels. The mind can embrace almost any thing it inclines to. Instead of being exhausted by its labors, it is invigo rated; instead of being encumbered by diversity, it is often relieved; instead of being diminished in its 230 THE FORUM. capacity, it is enlarged. Like charity, the more it gives away, the more it has : " For no man is the lord of anything, Though in and of him there be much consisting, Till he communicate his parts to others ; Noi: doth he of himself know them for aught, Till he behold them formed in the applause Where they are extended, which like an arch reverberates The voice again, or, hke a gate of steel, Fronting the sun, receives and renders back His figure and his heat." Now, what would be the result of the course sug gested to the profession and the country ? First, the college in which such a professorship should be estab hshed, would enlarge its sphere of usefulness, attract scientific and public attention, and secure, in proportion to its fame, an increase of its emoluments ; for, in this money-loving country, this would seem to be the butt end of every blessing — the great motive power to all physical and inteUectual effort. But this is not all. To look to it individually, it would have a tendency to enlarge practice. Proficiency in every additional branch of science, secures new adherents, new patients, and new claims upon pubhc patronage. As one science is important to another, so each branch of the same science imparts its aid to the other branches, and in their perfect and luminous com- MEDICAL JURISPRUDENCE. 231 bination, like heavenly consteUations, they borrow and shed lustre upon each other and the world. These advantages are equaUy important to the law yer. His profession is elevated and magnified by them — his practice increased. The drones of the law are either lost sight of in the splendor of his achievements, or serve merely, like a cloud margining the sun, to render his effulgence more striking and more glorious. A defendant is accused of murder by violence. The great question is, whether the death resulted from disease, or from the dagger ? or, whether the defendant was non compos mentis, or poison is aUeged to be the agent resorted to to produce death? Arsenic, antimony, mercury, or laudanum is imputed to the case. The stomach, the hver, the heart, the brain, the entire tissues are to be examined. How is this to be done ? No bungler can do it. A bungling physician, and a bungling lawyer, mixed up together, are more danger ous than the assassin's dagger, or the poisoned bowl.. With competency in medical jurisprudence, the mere busmess of a lawyer, relating to matters connected with the subjects we have referred to, would furnish him Avith a sufficient, nay, an abundant income, exclu sive of aU other practice. But if in itself it be attended with these benefits, what shaU be its results when united with general scientific accomplishments ? What competition would such a man apprehend ? Prepared at aU points, he takes the field ready to encounter 232 THE FORUM. difficulty, disease, and death, in all their various and hideous shapes. His armor is the armor of Achilles — nay, he is not even vulnerable in the heel ; and if he were, he has no cause for fear, for he never turns his back upon his adversaries, but confronts and fights the battle to the last. What a glorious spectacle ! — the immortal part of man struggling to subdue mortality ; struggling not to destroy, but to preserve; standing between the grave and its victim, and summoning to his aid the vast resources which days, and nights, and years of devotion — of toil — have accumulated and strengthened. But this is not aU. Look to the reverse of the picture, if you would consider it in all its glory ; look at the ignorant and careless, or indifferent practi tioner — frightened at the patient, frightened at the disease, frightened at everything but his own folly. In such circumstances can it be wondered at, that the patient often dies of the doctor, or that the lawyer twists the halter for his own client, and that, too, with out remorse or shame. Yet is not this the worst of murder? — murder in cold blood; murder with malice prepense ; murder not only against unoffending men, but against those who have relied upon your friend ship — who have trusted to your skill — who have con fided in your sympathy — who have thrown themselves into your opened arms for promised protection. The man who would betray such a reliance as this, should abjure his name, as he has abjured his nature. He MEDICAL JURISPRUDENCE. 233 should abandon his profession, of which he is an ill- deserving member, and turn to the trade of an under taker or a hangman, which, requiring less skill, would imply greater competency, and certainly much more congeniality with his studies and his tastes. But what are we to say for the results to the com munity ? What are they to think upon this interesting — this vital subject ? Is their liberty, property, health, or reputation, of any regard ? Who is the warder of that castle, wherein aU their hopes in these respects are deposited ? Who holds the key of the great citadel ? — " where either they must hve, or have no hfe." Is it one who sleeps upon his post, or who does not know the watchword, or who opens the portals to every enemy ? one whose vigilance and fidelity have never been tried, or never been vouched? one who cannot guard his own poverty, and therefore cannot guard their treasures ? one who is blind, and deaf, and dumb, to aU the requisites of his post ? If such is to be your choice, inevitable destruction must await the sequel — not only destruction to you, but yours ; not only to them, but theirs — so broad, and general, and compli cated, is the mischief that often — too often — ensues upon the first false step. Let the pubhc look weU to this. No one can guard them against these con sequences without their wiU ; no one can redeem them, even with their wiU. Quackery may be cheaper — lighten the purse less — but it makes the heart heavy; vol. n. — 16 234 THE FORUM. yet there is still this consolation, that, whUe it affords no relief to the disease, it affords speedy relief to the patient or chent, by conveying him to a prema ture grave, or a sohtary cell, in which his suffering and folly are alike forgotten. But let us turn to things as they should be, not as they generally are. It is appointed for all men to die, but not by the lawyer or physician ; that is. no part of the sentence of the Almighty Judge. StiU, men are to die. The late distinguished Dr. Rush seemed to consider it a reproach to medicine, that human hfe should not be prolonged to the scriptural limit, except in those cases of accident and casualty incident to mortal concerns, among which, professional neglect or unskufulness has modestly been omitted. There is another subject ahke important to lawyers and physicians, and we regret to say, too much ne glected by both. We mean eloquence — vital to one, and most useful to the other. Forensic medicine may appropriately embrace inci dental instruction upon the advantages of an agreeable elocution. Eloquence is certainly not to be disregarded by a physician, when it is recollected that a composed mind exercises great influence over the diseases of the body. By eloquence, a physician may sweeten his physic, and render palatable the nauseous draught. You may have aU heard it said of the venerable physi cian just referred to, that his manners and address were. MEDICAL JURISPRUDENCE. 235 so soothing and so bland, that his cures were sometimes as much attributable to his eloquence as to his pre scriptions. This by some may be called womanish and weak, particularly by the disciples of Radcliff, BeU, and Sir Astley Cooper, nevertheless, it is de serving of imitation. Dr. Parrish was another example in this respect; and indeed, we are most happy to say, that a departure from it is rather the exception than the rule with the medical profession generaUy. What we contend for, however, is, that it should be uni versal. It is not merely a duty, but a privilege, to smooth the pillow of pain; to console the afflicted mind ; to strip death of his terrors ; and to slope the way to the last, narrow, sUent house, prepared for aU living. It is exceedingly important to a physician, in his character of a witness, to bear in mind that his obliga tions are in proportion to his skiU and character. Upon his single voice, not unfrequently, everything valuable in life, and, indeed, life itself, may depend. He must not aUow the general circumstances of the case, or what is caUed its moral or legal bearing, to influence or affect his medical determination. He has no right to give any opinion upon any other portion of the case than that which is strictly within his own scientific limits. And yet we have heard a most inteUigent and honest physician, and withal a humane man, state to a jury, that " not from the stomach alone, the symp- 236 THE FORUM. toms alone, but from those combined with the general state of the facts, he came reluctantly to the opinion that the deceased was poisoned." This he had no right to say, for it was the exclusive and peculiar province of the jury ; and any invasion of it is not only a viola tion of the principles of the constitution and laws, but exercises too often a controlling influence over the destiny of the accused. The jurymen shelter themselves under the opinion of the doctor, ignorant of their own privUeges and du ties, and not observant of the defendant's rights ; and the doctor thus being supreme in matters of science, forgets his limits, and often spreads a ruin around. Whenever there is doubt or equivocation in experi ments, the defendant should enjoy the benefit of the doubt, and it should be yielded to him not grudg ingly but freely — bis dat qui cito dat. The condition of a scientific witness must be most awful, who gives any other opinion than that which is infallible. Opinions in cases of poisons we have always considered highly questionable, and requiring the ut most possible care, and especially in the application of neAV systems, that even have not undergone the test of time and experience. No doubt, Branch's test wUl re duce arsenic to the metal; but the metal may be in the copper, in the muriatic acid, in the porcelain,' in the glass tube, or in the nitrate of silver, or the sulphate of copper. There is a vast difference between Avhat MEDICAL JURISPRUDENCE. 237 may serve for mere chemical purposes, and what is required as the basis of a judicial opinion directly involving life. There is also a great difference between reducing the arsenic where you have deposited arsenic, and of course know its existence, and reducing the arsenic where you are embarrassed by animal, and vegetable, and mineral substances, all combined toge ther, and attended by the phosphates, alkalies, etc. Science does enable you to say that arsenic may be present, but it does not enable you to say that what you take for arsenic is nothing else. There are more things in heaven and earth " than are dreamt of in your philosophy ;" and new combinations or new substances may so simulate poison, in the application of your dry and hquid tests, as to confound one substance or metal with another. As far as you go, you may dis tinguish, by means of the tests ; in other words, you can show what it will detect, but you cannot show what it wiU not ; and the one is just as necessary as the other, in many of the questions that arise.* Another matter is to be regarded. Remember that the prosperity of your testimony lies in the ears of the Court and jury. That if they do not understand the views you intend to convey, then either no idea is conveyed, or the idea is subject to be perverted to some unjust and unreasonable result. Hoav is this to * Vide Chapman's case, in which mercury was mistaken for arsenic. 2?8 THE FORUM. be avoided ? Only by the most explicit communica tion of your views. By explaining the Latin and technical terms which you may use ; caU water — water, salt — salt, potash— potash ; or give them chemical names, and then interpret them. So in aU terms of anatomy and surgery, physiology and pathology. Thus you wiU be fully comprehended, and avoid the mis interpretation by ignorant counsel, or the misapplica tion by a stupid jury. Of all things earthly, the affected jargon of the schools is to be avoided in all matters of popular consideration, and especially in all matters of judicial inquiry. It was intended partly, as Shakspeare says, "to guard the fruit that priests and wise men taste," and not to enhghten the unso phisticated or uninformed. Physicians and laAvyers should always remember that they are men. And they should, of course, remember those sympathies which bind them to the great family of man. We differ with those who maintain, that rigid duty requires a stern and rigorous deportment in the exercise of the functions of counsel or witness. Prose cutions should be conducted firmly, but with great moderation, forbearance, and humanity. So far from this being incompatible with justice, it is calculated to dignify and embeUish it. Doctors, instead of giving an opinion that poison or wounds produce death, might pronounce, if the case required it, that they were suffi cient to produce death; but they should not be un- MEDICAL JURISPRUDENCE. 239 mindful that more than one cause of death may exist at the same time, and that it is not the cause of death, but the actual result of that cause, that constitutes the offence of homicide. A case, for instance, is reported, upon unquestionable authority, of the detection of arsenic in the stomach of a deceased man — sufficient to produce death ; but upon a careful post mortem ex amination, it was found that the individual had actuahy died of apoplexy — a result totally disconnected with the imputed crime. Now, although the administering poison with intent to kiU was undoubtedly a high mis demeanor, it was no homicide, inasmuch as it was not productive of the death of the intended victim. Where, in cases of metalhc arsenic, the metal is alleged to be produced, it should, after being tried by the liquid tests, be reproduced, and then exhibited upon the trial, for the purpose of abiding by such other tests as may be necessary in the judicial determination of the sub ject. The Court might appoint medical commissioners for the purpose of testing the tester, and thereby many lives might be saved, or at least the decisions of courts of justice rendered much more secure and satisfactory. Life cannot be surrounded with too many safeguards. The ghost of one man is not to be appeased by the un just sacrifice of a score who are innocent. A physi cian should be particularly careful not to rely upon new-fangled systems or experiments. They require the tests of time, and experience. There is no diffi- 240 THE FORUM. culty in saying, for mere chemical purposes, that Marsh or Branch's process wiU produce arsenic when it exists; but we doubt much whether they can be judicially relied upon, even with the aid of the liquid tests, in determining the question whether the human sto mach contained arsenic. Before this can be done, it should be clearly shown that no other substance could simulate the arsenic in the result of the tests. The evidence should be exclusive. Chemical science is, in some cases, very far from being certain, and is hable to be affected by what is caUed the coUateral evidence of the case. We have thus, in a hurried and an imperfect way, presented to the view the necessity for the study of forensic medicine — the objects to which it should be directed, and the probable beneficial advantages by which it wiU be attended. We have not attempted to enter into details, nor to point out the legal duties of a physician, in his attendance upon the insane, the sick, and the dying ; his duties in regard to donations mortis causa, in other words, oral gifts, made by pa tients in their anticipation of death; the subject of nuncupative wUls, or those directions which are given in regard to property, where the suddenness and ex tremity of the perU of death are such as to forbid the patient to make a formal and regular disposition of his estate. We have not dwelt upon the mode of drawing wiUs, and upon their essential requisites, as MEDICAL JURISPRUDENCE. 241 regards the testator, the nature of the devises or lega cies, and legal execution of the documents ; nor upon post mortem examinations, in cases of violence, or sup posed unnatural death — the organization and duties of the coroner's inquest — the character of the proceeding — the nature of the evidence to be submitted to them — the testimony of the examining physician — the ver dict and finding of the inquest, and the operation of all upon the subsequent trial of the accused ; yet, aU these are matters of deep and dangerous concernment. Lawyers are often compelled to carry the cases referred to through the courts — examine into the doctrine of dying declarations — discuss the question, how far the physician can be compeUed to relate the confidential communications of his patients — in what cases he has the right to give his opinion upon his own knowledge of facts connected with the supposed homicide, and how far he may give his judgment as to the cause of death, as related by others. AU these, therefore, require attention. But they would require a volume, instead of an essay, to do them full justice. CHAPTER XII. GOOD FELLOWSHIP OF THE BAR. A more united, liberal, and harmonious body of men, than those who compose the legal profession — in which we embrace judges, as weU as barristers — has never been known. We speak, of course, of those who le gitimately belong to the bar, and who are attached to the law as a science, and not as a trade; who, in short, form, as it were, the forensic famUy. During nearly half a century of general and diversified experience, at home and abroad, we have no recollection of any serious or irreconcUable difference — to say nothing of hostihties — at the bar. When it is considered that there are more than twenty thousand lawyers in the United States — that they represent different and op posite interests — that they are educated in different schools — are of different temperaments — different breed ing, and different passions, it is truly remarkable, if GOOD FELLOWSHIP OF THE BAR. 243 not wonderful, that the relations among them should be so invariably amicable, and we may say, cordial. This is, perhaps, more than can be truly said of any other equaUy extensive body of scientific or literary men. The medical faculty present the very reverse of this picture. Their bickerings, jealousies, and hostihties, have become proverbial, and are acknowledged even among themselves ; and we have heard it not unaptly said, that they have rarely been known to shake hands together, except in consultation. And it is far from certain — we say it with regret — that even the mem bers of our holy religion agree half so well, or seem to appreciate each other half so generously and highly, as the disciples of jurisprudence. Before we proceed to inquire what is the reason of this unity among the members of the bar, let us ascertain to what the want of it is to be attributed, among the sister sciences. Doctors of medicine and of divinity, agree well enough with each other, and both agree with the legal profession; but neither of them agrees within itself. The cause of this deplor able effect would seem to be this : — The members of the medical profession have no common tie — no bond of union. They don't meet together daUy; and therefore are not equally social. Their inter course with each other, is often through their patients ; whereas, the intercourse of clients, is mostly through their counsel. Doctors belong to different and conflict- 244 THE forum. ing schools in their own State, or rival schools, in dif ferent States or quarters of the country. Each class maintains its own infallibility and supremacy. The law has but one school, and in that justice presides ; she hears, and she determines controversies, which, other wise would result in endless and cureless feuds. Again, medical men mingle less in general society, while they have but little society among themselves. Their labors are more secluded and contingent — they are not brought so much into public life, into that popular intercourse, that by attrition removes those asperities that keep men asunder. Their knowledge is not so general or so aAraUable for the ordinary pur poses of hfe ; they know more of disease, but less of men. They are rarely found in the halls of legislation — in political or philanthropic assemblies — in high offi cial stations ; aU of which are important schools for instruction, and cause men to know each other better, and mutuaUy to admire each other's virtue, or excuse their faults. The more a man knows of the world, the more easily and agreeably he passes through it — plucking its flowers and avoiding its thorns. A doctor goes to a party as if he were visiting a patient, or as if he anticipated one. There is, in short, a solitariness in his pursuits, that would seem in its influence to confine him within himself. He is cautious ; he is punctilious : his colloquial powers have been confined to the narrow and gloomy limits of sick chambers — agony and death. GOOD FELLOWSHIP OF THE BAR. 245 Unlike lawyers — doctors never change sides — they are for the most part alone. They may be misrepresented or slandered by ungenerous rivals, or reproached by ungrateful patients ; and as their services are rendered in private, there is no public to redress their wrongs or vindicate their rights. They are more dependent upon patronage and famUy influence ; they have but few opportunities of forcing themselves upon public notice ; and if we may say it reverentially, the world neither "seeth in secret, nor does it reward them openly." In all these respects, without individual no tice, it may be said, the members of the legal profes sion enjoy a decided advantage over their medical brethren. Then, as to ministers of the gospel — the great healers of the spirit — to whom we are indebted for instruction in the means of eternal salvation. They are men — good men, undoubtedly — but still impaired in their pure and sacred offices by human infirmities. Their holy zeal is distributed into different sects — they adopt different creeds — adverse forms — modes of faith. They are, of course, not men of the world. Their religion is un doubted, but they sometimes require practical philoso phy, not to secure their own salvation, but to allure the Avayward sinner to redemption. Philosophy, it is true, is no substitute for piety, but it may sometimes aid her divine influence, and assist her in her blessed work. Though not men of the world — and certainly not to 246 THE FORUM. borrow "the hvery of Satan to serve Heaven in" — they might so much adapt themselves to the innocent agrea- mens of life, as to take from their profession its fancied ascetic character, and thereby overcome the resistance of the recusant. Heaven forbid, that one jot of cleri cal sanctity should be waived; but if a minister of salvation is not cheerful and hopeful in his divine work, who should be ? Many of our clergymen have experienced the benefit of the social virtues, and that, too, without abating one jot of the dignity that pro perly appertains to their high calling. We would not, as has been said, have a worldly minister; but there is a vast disparity between a worldly man, and a man with full knowledge of the world. A worldly man does not know the world, and a man who does know it most, likes it least. Clergy men are subjected to many of the disadvantages of physicians ; they mingle but comparatively little with their feUow men upon an equal social footing ; they are under obvious constraint ; they engage in no public employment, and hold no worldly office ; they have no pohtical position or influence ; they hold and hear no discussions; they issue their decrees ex cathedra; their conversations are didactic ; they perhaps keep them selves in too much reserve " for nfinisters of grace to guflty men ;" they should relax their rigidity ; add the example of humility to its precept, and neither stand too far off from their penitents or each other. This GOOD FELLOWSHIP OF THE BAR. 247 would be much more compatible with their heavenly vocation, than to divide and spht their holy mission upon questions of unessential forms, or the mere out ward trappings of rehgion. One of the greatest mistakes that Christian profes sors make is, in appearing to suppose that acerbity is essential to the performance of their divine office. That is not the lesson taught by their Great Exemplar. Although described as a "man of sorrows, and ac quainted with grief," his earthly career exhibited no moroseness, no asperity, nothing but the most consum mate gentleness, tenderness, and humility. " He held it more humane, more heavenly far, By winning words to conquer willing hearts, And make persuasion do the work of fear — At least to try and teach tlie erring soul, Not wilfully misdoing, but unaware misled — The stubborn only to subdue." — Milton. So should it ever be with his foUowers. That man who secureth Heaven, who has God on his side, should certainly be beyond the reach of the paltry annoyances, anxieties, and animosities of sublunary life. His conso lation is in the communion with the realms above ; and he should look upon this world as a passing pageant, every advance and change of which brings bim one stage nearer to his eternal home. But to come to the members of the bar, and their 248 THE forum. good feUowship — the chief cause of their harmony consists in their being constantly before the pubhc, and subject, in aU they do, to the influence of pubhc approval or reproval. They mtermingle with and are necessary to men, in almost aU the relations of life. Their deportment, as weU as their talents and bearing, form a part of their professional capital. They have constant and A-arious opportunities for the display of their abilities. They hve with, as they hve by, the community. Their chents are their friends, and their friends are their chents. One day they are profes- sionaUy opposed to a legal brother ; the next day they are engaged with him. They consult together, they reason together ; they enter into an honorable profes sional competition or opposition; they become ac quainted with their respective powers. It is almost impossible to continue long in a state of actual personal hostihty to each other. Their chents and their busmess, necessarUy bring them into amicable relations ; and in addition to aU this, the true interests of the entire bar are adverse to feuds and resentments. We shaU be told that there is among them often great keenness and excitement in debate, and sometimes great seve rity of remark; but from the mutual habihty of counsel thus to be betrayed into temporary passion, they are taught mutual forbearance and forgiveness. The judge pronounces the charge, the jury give their verdict, the battle is lost and won, and the irritation good fellowship of the bar. 249 of counsel is passed and forgotten. This is as it should be — the profession could not otherwise exist. It is a vulgar error to suppose that the excitement and animation of an argument and zeal on the part of opposing interests, indicate anger or hostility. Speech may be said to be the safety-valve that relieves the bosom of its pent up passions, and prevents the rank ling of enmity and revenge. Who has ever seen a lawyer utterly lose his temper upon the trial of a cause? The loss of self-control is the precursor of defeat. We should allow no one to be the master of our temper but ourselves. One thing is very certain, and that is, that an irritable, passionate man, wiU get but Uttle business after he is knoAvn, and soon lose the little he gets. But that is not the worst of it; he renders himself unhappy, as weU as others. Others wiU soon avoid him, but he cannot get rid of himself, so that, in the end, he is the chief sufferer. No client would be safe in trusting the management of his cause to a laAvyer who is incapable of self- government. By a shrewd adversary, who is fami liar Avith his failing, he is constantly throAvn into con fusion, and finaUy, his inteUects are only restored to their harmony and equiUbrium, to witness the Avreck which his foUy or frenzy may have made. Further than this, an irascible lawyer not only is shunned by the profession, but he quarrels perpetuaUy Avith his best chents ; and finaUy, to introduce a marine vol. n. — 17 250 THE forum. figure, having neglected his chart, his compass, and his helm, he lies stranded on a lee shore. It is a conviction of the truth of this doctrine, that has largely contributed to that decorum and affabihty, by which the bar is generaUy characterized. It is to their profit and credit, and their comfort at the same time. And it makes them what we trust they may always remain — the example and the pride of the community. The result of this professional harmony is the greatest mutual confidence. They rely upon each other's word as an infallible bond. As between them selves they rarely require any writing as an assurance. They neither doubt nor are doubted. This, among the other lofty principles of the profession, has secured them here and everywhere a position which neither envy or calumny can ever destroy or impair. There is one other matter to which, in closing, we may properly advert, and that is the benefit arising from their dafly congregating or assembling at court, cheerfuUy greeting one another — condolence upon losses, or congratulations upon forensic victories. The young cheered and stimulated by the example of the old — the old aided and assisted, and reverenced by the young. Mutual dependence upon the kindness and favor of each other. The spotless retrospect of a well- spent hfe imparting cheerfulness to the aged, and the bright vista of foreshadowed success opening upon the youthful, "whUe Hope bedecks their brows with the choicest garlands of professional honors. CHAPTER XIII. A BRIEF VIEW OF ENGLISH AND AMERICAN PRACTICE. The Roman law, or the Jus Civile, consisted of the oral or written opinions of lawyers, who expounded the doctrines of the law, and informed their feUow citi zens of their rights and liabUities. From this informa tion, imparted either at their study, or, as more usuaUy happened, whUe walking up and down the forum, or as sembled in the atrium, the youthful advocates obtained their legal knowledge by listening to, and treasuring up, the advice or instruction which was given to those who were in consultation with their lawyers. In this way, we are told, Cicero attached himself to Scsevola, the greatest lawyer of his day, and as he teUs us, never quitted his side untU he acquired a sufficient amount of legal instruction. The word sufficient, can hardly imply much, for even with the talents of Cicero, the means, or opportunity of acquirement, must have been 252 THE FORUM. too hmited to have been attended with any great scien tific advantage. It must have been rather a system of cramming for the immediate occasion. It was upon oratory or advocacy, that their chief efforts, and labors, and hopes were bestowed. This was the grand desideratum. The famous orators of the time were selected by the youthful aspirants for their models, and having respectively selected their favorites, they assiduously attended his speeches, in order that they might become familiar with the proper style of forensic oratory. Admission to the forum was, with the Romans, a most important epoch of life. The student then as sumed the toga virilis, was brought forward by some dignified and influential citizen, and formaUy introduced as a practitioner of law. From this period he might at once undertake the management of causes. In regard to chamber counsel, ox juris consults, there was no law against taking fees — this applied only to advocates. The lawyer composed speeches, but did not dehver them for litigant parties ; and although inferior in influence to the advocates, derived large profits from their employment ; and as there were but few adepts among them, Aralued themselves highly upon their ac quirements. During the RepubUc, however, no body of men exercised such control over the destinies of Rome — not even the military — as her orators. Nor is it to be understood that their efforts were attended only ENGLISH AND AMERICAN PRACTICE. 253 by fame — they also accumulated large fortunes, high pohtical posts, and unrivaUed power. It is true, they were prohibited by law, as has been said, from exact ing fees for their advice or services ; but even this re dounded to their advantage, not only on the score of profit or favor, but even in a pecuniary point of view — it elevated the profession without impairing its means of support. Cicero is said to have received gifts and bequests exceeding one hundred and fifty thousand pounds sterling from his profession, besides deriving from it offices and dignities, that were beyond aU esti mation. Hortensius accumulated great wealth; and although he was not to be ranked with Cicero as an orator, as an advocate, simply, he had no superiors. Now let us, condensing our views, look at the subject with regard to the countries to which we have hereto fore referred. In Athens, where oratory first prevaUed, there were no lawyers. In Rome, the lawyers were not orators or advocates, but corresponded to mere chamber counsel ; and the orators were not lawyers, but depended upon the juris consults for a meagre supply of legal lore. In England, the profession is divided into attorneys, special pleaders, barristers, and sergeants. The two former classes supplying the briefs and pleading, and the latter two discharging the duties of advocates before the court. In the United States, aU these different departments of legal and forensic duties are combined and discharged by the members of the 254 THE FORUM. bar. No counsel would be employed with us in a suit, or his advice sought for, unless upon the presumption that he would be able, if necessary, to vindicate that advice before the court. And no attorney, strictly so caUed, would be essential to the trial of any action, or its preparation. If, from the importance, and difficul ties, and labors of a case, more than one counsel should be required, all these duties are discharged by the coun sel, or by their students under their direction. They are in no wise dependent for their employment, or the dis charge of their functions, upon any other class of the profession. There is no division of labor — no attor neys to give caste or influence to the advocates — no briefs Avith fees indorsed — no consultations, except di rectly with themselves. They not only argue their cases, but they perform the duties as a matter of popu larity or political ambition, as did the Roman orators. In aU affairs of deep pubhc interest — all national festi vals, or anniversaries — aU phUanthropic and benevolent, or patriotic occasions — in State or Federal councils — wherever their talents are required, they are freely and promptly rendered ; and although those services are gratuitous, they indirectly contribute largely to the enjoyment of public favor, and the promotion of pro fessional eminence — and fortune. The difference between the lawyers and orators of Rome and the attorneys and counsel of England, is this : That in Rome, the orators were supplied with the law ENGLISH AND AMERICAN PRACTICE. 255 bearing upon their case, by the juris consults, and with few exceptions, (as in the case of Crassus, Cicero, Gracchus, and others, who had devoted their attention expressly to eloquence, and some of whom studied in the Greek schools,) depended almost entirely upon the occasional supphes which they from time to time de rived from the legal labors and resources of others. It is not so and never has been in England. There, it is true, the professions are different, though connected. The attorneys are the persons originaUy consulted, and who attend to aU preUminary details — the evi dence — the pleadings — the briefs — the fees — and gene- raUy even select the counsel. So that an attorney of great celebrity, and of course, coextensive practice, has great control over the success and fortunes of those to whom he allies himseff in professional relations. In Rome, the orators contributed largely to the eminence of the lawyers. In England, the attorneys exercised great power over the counsel. Both of these systems were undoubtedly less onerous, and more agreeable than ours, but neither of them was as beneficial or so economical as that which is almost invariably adopted in the American courts, and especiaUy in Pennsylva nia. Here the attorney is the counsel, and the coun sel the attorney ; he manages and controls the entire progress of the suit — his intercourse with his client is not intermediate, but direct — he conducts all the plead ings — prepares his own brief — examines the witnesses 256 THE FORUM. in his office or in court — digests and arranges his own authorities, and finaUy argues the cause. The labor incident to these duties is very great, but its advan tages are commensurate. A man can never perform any work so satisfactorUy as when he is acting upon his own knowledge ; nor can any facts procured by an attorney be as satisfactory to counsel, as those which he himself might obtain by personal examination. Every man has his own views in regard to the points of a case, and the nature of the evidence required to elicit them, and he can, therefore, best " minister to himself." This course secures counsel against confu sion and surprise ; it furnishes him with a knowledge of the weakness, as weU as the strength of his case, and that of his adversary; it brings him into timely con tact with his witnesses ; he becomes acquainted with their manner, their temper, their bias; aU of which enter largely into the estimate of their testimony. It has been suggested, that this would be impracticable in England. It might be inexpedient to make any radical change in their deeply-rooted system, but it certainly would not be impracticable, nor, perhaps, in judicious. It is true, we cannot argue against a system, merely because it is subject, in some respects, to casu alties or exception; but those who have attended legal proceedings at Westminster HaU or Lincoln's-Inn, could not faU to have perceived — and not unfrequently — great embarrassment of the counsel, from a want of ENGLISH AND AMERICAN PRACTICE. 257 that familiarity with facts, and their application to the legal points of a case, which would have been avoided, or lessened, by pursuing the system adopted in this country. No lawyer can examine a witness satisfac torUy, from the notes or brief prepared by any other hand than his own — he is often rather benighted than enlightened. And of aU briefs, the brief of an attor ney would be the most objectionable, or least avaUable. They save time to counsel, but they place him in a state of dependence, from which, it in some cases hap pens, no genius or talent can reheve him. A man who always depends upon another, naturaUy and necessa rily impairs his own powers. We remember a rather amusing instance of this, in the argument of an injunction in the case of The Queen v. Strange, before Sir Knight Bruce, in 1848. The attorney, or solicitor, having, of course, prepared the pleadings, which were voluminous — bill, answer, etc. — the learned judge, during the argument, inquired of Mr. Talfourd as to the averment of a certain fact, which was deemed vital to the proceeding. The learned Sergeant (who had probably never read any thing more than an abstract of the biU,) could not find it — none of the attorneys could find it. The crown affirmed its existence, the defendant denied it; and after an hour's confusion, it turned out, that although contained in the original biU, it had been omitted from the transcript. Before admission, the young counsel is condemned' 258 THB FORUM. to the drudgery of the office of special pleaders — men who practise under the bar. They thereby obscure their genius — obliterate their learning — and of course be come as flat, and as dry, and as verbose, and as incom prehensible as the vocation in which they have been employed. It is much to be doubted, whether a tho rough-paced special pleader can ever become an elo quent advocate. His hfe is a life of constant and almost unmeaning forms ; he becomes as dry and as stiff as the parchment with which he is famUiar. There is a time ¦of life that exercises a most powerful influence upon past accomplishments and future hopes. It is that period between the completion of our coUegiate and professional course and entermg upon the practice of the bar. The interval, therefore, that is bestowed upon special pleading, is not only thrown away, but worse than thrown away, inasmuch as it retards future advancement and buries past acquirement. The study of special pleading is not condemned, but adequate knowledge of it can be obtained from the valuable books penned by such men as Chitty and Stephens, without wasting time upon its practical detafls, sham pleas, subtle pleas, and other absurd technicalities. It must be a matter of rejoicing among the English bar, that recently (these forms having accumulated to such an extent as to embarrass, and almost to defeat . justice,) the courts have somewhat set their faces against aU dUatory pleas, and by breaking through ENGLISH AND AMERICAN PRACTICE. 259 the meshes of over-refined niceties in pleading, have turned their attention to the substantial merits of the issues which are submitted to their decision. The two legal departments of counsel and attorney relieve each other, it is true, but our own practice has shown that they are not necessary; and it is far from being certain, that the rehef of the profession does not contribute to the injury and incumbrance of the pubhc. There is an admirable Essay upon the Bar of Eng land, published in Blackwood's Magazine, for the month of June, 1856, page 61. We must content ourselves by quoting from it, a passage in relation to legal stu dies and admission in this country, which, although it is said to have been derived from a member of the Pennsylvania Bar, is, we think, in some respects inac curate. StiU the article contains valuable instruction : — " In the United States of America, the facility of admission into the legal profession is great, and those distinctions which are in this country observed, are disregarded. The same person practises as attorney and counsellor, (the word ' barrister' seems not used in America,) either alone, or in partnership ; and takes pupils — sometimes a considerable number — who pay about twenty pounds a-year. These he is expected to teach their profession, making use of their services the while, as attorneys in England those of their clerks. After having spent in the office a period of from two to three years, dependent on being twenty-one years of age, or under, the youth gives public notice of his intention to apply for liberty to practise. After having passed a private, desultory, brief, and exclusively professional vivd voce examination of half an hour, 260 THE forum. or an hour, which may be extended, if it appear necessary, to several hours — but generally speaking 'pretty well testing the student's knowledge,' and having brought a certificate of moral character from his master, — a motion is made in court by the latter, or any other member of the bar, for the admission of the candidate. He is then formally permitted to practise, the only fee payable being one dollar to the crier. When asked whether there was any yppeal from a rejection by the board of examiners, the witness answered — ' I am not aware of any appeal having ever been made. I think that, in general, a rejection is softened with the advice to withdraw the application, and to study longer. The examination not being very strict, I think it would be a hopeless thing to appeal, for I do not think that any student was ever rejected, who could, with any propriety, have been admitted.' All legal duties are discharged by the Attorney-Counsellor of the United States. ' We feel no hesitation,' said a witness, a member of the American bar, ' at all, in going through ihe routine of serving processes ourselves. Even distinguished members of the bar, in full practice, would icrve a rule to plead, or serve a subpoena on a witness, and make an affidavit of having done so!'* They also see and examine the witnesses privately before going into court, the very notion of which is repulsive to the English bar. ' In the United States/ says this gentleman, ' the turn of things is rather to enable everybody to do everything. This results from the character and habit of our people. That division of labor which is characteristic of England, is not so of us. Here, you obtain a great precision in everything by the division of labor. In our country, we do not to the fame * Even this — though its truth is not admitted — is better than the prac tice of the English attorneys' clerks, one of whom in an answer to a question said, "I have been a month in the office. I now only swear to service, but in a short time I shall be competent to swear to merits." ENGLISH AND AMERICAN PRACTICE. 261 extent. In other departments, such as that of manufactures, the principle of the division of labor prevails, but such is not generally the case with respect to the labor of the bar.' There were only two American witnesses examined by the commissioners, one of them styled ' General,' and who stated that he had been only eight years in the legal profession, having been up to middle age in the army. The former, when asked ' the general course of proceeding for admission to the bar in America,' commenced by saying, ' I can only speak as a Pennsylvania lawyer. I am inclined to think that our condition, as a federation of independent States, is scarcely sufficiently appreciated out of the United States. Everywhere abroad, inquiries are made of me, constantly, with regard to the condition of things in remote States, of whieh I am nearly as igno rant as a stranger to America can be, owing to the vast extent of the United States. The system of proceedings for admission to the bar differs considerably in different States. As to Philadelphia I can speak, and partially as to New York, and also as to the practice in the courts of the United States, properly so termed.' Notwithstanding, however, this facility of access to the American bar, and the blending, by the advocate, of functions deemed here so incompatible, derogatory, and inconsistent with the interests of the public, no one who reads the law reports of the United States, and the text-books of its Kents and Storys, will fail to think of the transatlantic bench and bar with the utmost respect. It may be added, that four-fifths of the lawyers in America were educated in their universities. " Onerous, diversified, and honorable as are the duties devolving on the English bar, heavily taxing alike their integrity, talent, and learning — what will the non-professional reader suppose to be required in order to be admitted into its ranks, — to become a com petitor for its prizes and honors, from the Great Seal downwards ? If, by means of a legacy or otherwise, a waiter at a tavern, an errand boy in an attorney's office, a ticket porter, a sweep, or, as 262 THE FORUM. was very recently the case, a policeman !* found himself in possession of three or four hundred pounds, and had a fancy to become a barrister, — if he could get a couple of barristers or a bencher to say simply that he was a respectable person, and proper to be admitted a member of an Inn of Court, in order to be called to the bar, (and God forbid that such a certificate should be withheld from the humblest member of society, if nothing were known really discreditable to him in respect to character and conduct,) he would, on paying about forty pounds, be enrolled a member of any of the Four Inns ; and if he only partook twelve times a year of a very comfortable and inexpensive dinner provided by the Inn, in its hall, at the end of three years he would be entitled to be called to the bar, and figure thenceforth as ' A. B., Esq., barrister-at-law.' A chance and curious inquiry might perhaps elicit the fact that, in our fledgling friend's opinion, Corpus Juris was the name of a place that he had somewhere heard of — but never mind, he was a counsel, learned in the law, and might hold up his head with the best of those so mysteriously denominated ; and one or two hard hits at starting, might, if he had sense and spirit, send him, on the sly, to the Sunday school which he had so shamefully neglected in his youth. Not many years ago, one of these bold aspirants to fame and fortune, having to address a judge on the last day of term, and being forced * Report, p. 137. The following extract is so remarkable that we give it in extenso, in the words of the witness, a member of the Oxford Circuit : " I know a case where a man is positively an inspector of police, and is a barrister ! He was in the police force when called, and is so still ! The Sessions mess of the county in which he was stationed, sent up a requisi tion to the benchers of Gray's Inn, begging them not to call him, and stating as a reason that they did not believe he was going to practise as a barrister, and they thought it was a degradation to them, for a man to be able to call them his learned friends, who was absolutely in a blue coat and bright buttons. The benchers never sent any answer to the requisition, but they called him to the bar notwithstanding !" ENGLISH AND AMERICAN PRACTICE. 263 to use the words 'nolle prosequi,' pronounced the latter word 'prosequi :' on which he was considerately reminded, though with out seeing what was meant by the sarcastic judge, that on the last day of term, (when there was usually a press of business), it was not right ' unnecessarily to lengthen proceedings.' " (©ranunia ^atoalia, GERMS AND GEMS OF GENIUS. OENAMENTA RATIONALIA, GERMS AND GEMS OP GENIUS. CHAPTER XIV. Diana's lip Is not more smooth and rubious. — Twelfth Night. NATIVE CHARMS. 'Tis beauty truly blent, whose red and white, Nature's own sweet and cunning hand laid on. — Dr. Donne. TRANSIENT BEAUTY. For women are as roses, whose fair flower, Being once displayed, doth fall that very hour. — Shakspeare. GRIEF. A cypress, not a bosom, Hides my poor heart. If one should be a prey, how much the better To fall before the lion than the wolf? — Shakspeare. 268 THE forum. Westward the star of Empire leads the way. — Berkley. There lies your way due West — Then westward, ho ! — Shakspeare. 0 what a deal of scorn looks beautiful In the contempt and anger of his lip. — Ib. A murderous guilt shews not itself more soon, Than love, that would seem hid. — Ib. A poor heart-broken thing — A mother — yet no wife. — Motherwell. THE GRAVE. And 0, think on the cold, cold mools That fill my yellow hair, That kiss the cheek, and kiss the chin, Ye never shall kiss mair. — Ib. Familiar matter of to-day, Which has been, and will be again. — Ib. CAPRICE. The smile of a maiden's eye, Soon may depart, And light is the faith of Fair woman's heart; Changeful as light clouds, And wayward as wind, Are the passions that govern Weak woman's mind. — Ib. ORNAMENTA RATIONALIA. 269 Dull builders of houses, Base tillers of earth, Gaping, ask me, what lordships I own'd at my birth. But the pale fools wax mute, When I point with my sword — East, west, north, and south — Shouting, there am I lord ! — Motherwell. When the arm wields Death's sickle, And garners the grave. — Ib. Not swifter from the well bent bow, Can feathered shaft be sped, Than o'er the ocean's flood of snow, Their snorting gallies tread. — Ib. His fearless soul was churning up, The death-rune of the brave. — Ib. IDLENESS. The Sloth perishes on the tree he climbs, after having eaten all its leaves. The Bishop of Durham, Chancellor and High Treasurer of Eng land, in 1341, purchased thirty volumes of the Abbot of St. Albans for fifty pounds weight of silver. In 1364, the Royal Library of France did not exceed twenty volumes. Fleta, (a law book,) derives its name from having been written in Fleet (prison). 270 THB FORUM. The bloom of young desire — the purple light of love. — Gray. ELOQUENCE. With winning words to conquer willing hearts. — Milton. AGE. His head — where every silver hair complained of time. — Sayne. A wilderness of sweets. — Milton. Patient as midnight sleep. — Shakspeare. Upon his eyelids did conjecture hang. — Ib. Pale "as the lids of Cytherea's eyes." — Ib. INNOCENCE. The harvest of a quiet eye, That broods and sleeps on its own heart. SEA LIFE. The shouting and the jolly cheers, The bustle of the mariners In stillness and in storm. — Motherwell. The ancient spirit is not dead, Old times, we say, are breathing there. — Ib. Beautiful, uncertain weather, When storm and sunshine meet together. — Ib. ORNAMENTA RATIONALIA. 271 JEALOUSY. Oh, it comes o'er the memory As does the raven o'er the infected house; Boding to all. — Othello. Woo'd, won, and wed, and murdered by the Moor. — Ib. Simplest strains do soonest sound The deep founts of the heart. — Motherwell. MAN. A holy mystery, A part of earth — a part of heaven — A part, great God, of thee. LOVE. All thoughts — all passions — all delights — Whatever stirs this mortal frame ; All are but ministers of love, And feed his sacred flame. — Coleridge. CHEERFULNESS. With earth it seems brave holiday — In heaven it looks high jubilee. — Motherwell. They lack all heart, who cannot feel The voice of Heaven within them thrill. — Ib. SEVERED AFFECTIONS. Heart bankrupts both are made. — lb. 272 THE forum. From pride we both may borrow, To part, we both may dare ; But the heart-break of to-morrow, Nor you, nor I can bear. — Motherwell. Such eyes as may have looked from heaven, But ne'er were raised to it before. — Moore. Have I lived to stand the taunt of one that makes fritters of English. — Shakspeare. Here will be an odd abusing of God's patience, and the King's English. — Ib. ABUSE. The bitter clamor of too eager tongues. — Ib. LIAR, HIS OWN DUPE. Like one Who having, unto truth, by telling it — Made such a sinner of his memory, To credit his own lie. — Ib. GRANDILOQUENCE. He speaks holiday. — Shakspeare. Cambyses' vein. — lb. These new tuners of accents. — Ib. Phoebus, what a name ! — Byron. ORNAMENTA RATIONALIA. 273 HUMILITY. Often to our comfort shall we find The sharded beetle in a safer hold Than is the full-winged eagle." — Shakspeare. To progress. — Richard III, and King John. WOLSEY. The Devil speed him ! No man's pie is freed From his ambitious finger. — Senry VIII. SILENT PIETY. Felt, but voiceless prayer. — Motherwell. I bend me towards the tiny flower, That underneath this tree, Opens its little breast of sweets, In meekest modesty ; And breathes the eloquence of love, In muteness, Lord, to thee. — Ib. Glittering in meridial beams. — Ib. Dear Lord ! thy shadow is forth spread On all mine eye can see ; And filled at the pure fountain head Of deepest piety. My heart loves all created things, And travels home to thee. — Ib. EVENING. Parting day Dies like a dolphin, whom each pang imbues With a new color, as it gasps away; The last still loveliest, till 'tis gone, — and all is gray. — Byron. 274 THE forum. The golden day Gilds yon sky-helmed mount with purple hues, Like fabled dolphins, varying as it dies. — B. Paint, till a horse may mire upon your face. — Timon of Athens. Be as a planetary plague, when Jove Will o'er some high-viced city hang his poison In the sick air. — Ib. Put armor on thine ears, and on thine eyes. — Ib. AVARICE. 0, cursed lust of gold ! when for thy sake The fool throws up his interest in both worlds, — First starved in this, then damned in that to come. — Blair. There's more gold ! Do you damn others, and let this damn you ; And ditches grave you all. — Shakspeare. The learned pate Ducks to the golden fool. — Ib. POPULAR FAVOR. Where are the people — the Sertorian band Who cling around him with unwavering love, Like the fond ivy twining round the oak, Or life's warm eddies circling through the heart — In conquest and defeat ! — B. ORNAMENTA RATIONALIA. 275 AUTHORITY. That whieh he decides, fate's awful fiat Stamps as irrevocable — It is done. — B. Let ambition, Pointing the way to fortune and renown, Allure thee to those proud, supernal heights, Which only Gods, and men like Gods attain. — Ib. What, shall the pillars, Howe'er magnificent and richly wrought, Degrade the temple that their strength sustains ? Or shall they, as in sacred Grecian domes, Unite in mutual grandeur, — and when time, With his unsparing, fell, and ravening maw, Disrobes them of the ornament of youth, Dissolving and prostrating all their glory, Sink in one common ruin, and become More fam'd and cherish' d than in pristine pride? — Ib. TRAITOR. The felon, that purloins his country's glory, To prostitute it to his country's shame ! — Ib. PATRIOTISM. The brave man never should outlive his country : As clings the infant to its mother's arms, Blessing and blest — so cleaves the patriot's heart To the embraces of his native soil, At once deriving, and imparting life. — lb. 276 THB FORUM. FEAR OF WRONG. But when you ask, that to destroy that country I should shake hands with her inveterate foe, And sell myself to shame — immortal shame, I tremble, and profess myself a coward : I cannot do it — shuddering nature dare not ! — B. TRUE COURAGE. Talk not of hazard ! I dare hazard ull But that, without which all is penury ; The cherish' d, priceless, peerless jewel — Honor. — Ib. CONTEMPT. — What ! are ye a hireling tribe, To be bought out by him that bids the highest 1 If the design be noble, grasp it nobly ; And do not, like a band of sordid slaves, Embrace your bondage, for the golden fetters. — Ib. Patience, ye Gods 1 — and thou, great iEolus, That with thy sovereign wand, curb'st and direct' st The ever changing and rebellious winds, And gather' st them within thy stormy bosom, — Teaeh man fidelity ! — Ib. AMBITION. His eagle- wing' d ambition soars so high, That we are only left to gaze and wonder At the proud pinnacle on which he revels, While grovelling in our lowly sphere beneath him. — lb. Thus rendering opposition to his will Like vain resistance of the cataract, Making it rage the more. — Ib. ORNAMENTA RATIONALIA. 277 GENEROUS RIVALRY. Despite of all the rooted hate I bear him, I almost grow enamored of his virtues, When I behold him, like the baited lion, With all his hopes reposing on himself, Surrounded by his hunters and their toils, Still firm and_fearless, ever-facing dangers. — B. Reserve thy praises for his monument — They will improve in marble, and endure ; While he yet lives, they're fulsome flattery : To give them currency, and weight, and value, They need the stamp of death. — Ib. When to immortal Jove we sacrifice, Who mingles poison with his pure oblations, We kill, but curse not — nay, the song of joy, Chaplets of flowers, and temples fill'd with incense, Surround and soothe the bleeding victim's anguish. A patriot is the sacrifice you offer — Shall we do less for him ! — Ib. Mine is the hand should strike the deadly blow, And mine the eye should look unwavering on. — lb. Hopes destroy' d, endear those which remain. — Ib. What more precious Than deeds heroic from the lips we love ! — Ih. The citadel, that yielded to a smile, And pour'd its treasures at the conqueror's feet. — Ih. 278 THB FORUM. Nay, nay ! thou art a traitor — come, confess ; And still so guileless, artless, and so fair, We almost love the treason — for the traitor. — B. GLORY. How evanescent and how vain is glory ; A sparkling bubble on life's stormy ocean ; A meteor, that delights — deludes — destroys ; A lamp sepulchral in a charnel house, Gilding, with flickering ray, the shades of death. — This idol, who engross' d the hearts of all, Who reigns in thine with sway so absolute, And almost shares devotion with the Gods — Has done a deed to-day, should shake his fame, Though rooted in earth's centre ! — Ih. The spring of peace Shall pluck the lily from that faded brow, And plant its roses there. — Ih. Unlike the miser's wealth, this little jewel Improves in lustre each succeeding hour, And lights you on to joy. — Ib. Happy pair ! Crown them with joys perennial, ye blest powers, And guard their hearts 'gainst agonies like mine, Too grave to bear, too poignant to conceal. — Ib. Think' st thou I would transplant that fragile flower From the gay parterre which it now adorns, Exhaling odors on the vernal gale, To pine and perish on this wintry bed ? — Ib. ORNAMENTA RATIONALIA. 279 But yesterday she was the world to me : For yesterday — Ambition's mountain wave, The wildest, proudest, loftiest of the main, Rich, radiant, sparkling, foaming with delight, And redolent with hope, its suppliant bosom Bow'd at my feet, and woo'd me on to glory. To-day — I am degraded by the state, Despoil' d of outward honor, and despis'd, Torn from repose, condemn' d in shame to roam Through foreign climes, to seek myself a grave ! — Childless, and parentless, and friendless too. — B. Ye would be leaders — shame upon ye ! Leaders, who yet have never learn' d to follow Where glory mark'd the way ! Hence to your homes ! Is this a fit occasion, when Spain's fortunes Stand nicely equipois'd in Fate's dread balance, And heaven and earth pause on her destiny, Thus, by inglorious faction, to provoke The special vengeance of superior powers ? — But what care you for life's vicissitudes ? The mighty storm drives harmless o'er your heads — None but the great, the good, the godlike, feel it, You are below its fury. — Ib. Ye Gods ! how abject is the tyranny of slaves, Who forge a sceptre from their servile chains, And lord it o'er the aristocracy Which nature form'd — inverting her great laws, That power should govern, and the weak obey. — lb. Disperse, ye knaves — hence to your several homes, And vent your spleen on those who court your favor ! I do despise the one, abhor the other. — Ih. 280 THE FORUM. I found you slaves, in bodies as in mind; I burst the chains of both and set you free, And this is my requital : you would fain return To your old bondage; freedom has grown irksome. Or would you, disobedient as you are, Presume to rule the state ? First learn to serve ; So shall ye best acquire the power to govern : First overcome yourselves, before ye seek To supervise and sway your fellow men. Think not that honors dignify the wearer ; They have no several value — but reflect Lustre reciprocal, or combine disgrace. Say I throw down these trappings of my office ; These envied symbols of authority, Which, while th'y allure with splendor, crush with weight; On whom will you confer them, mighty Sirs ? — B. Traitors are often made As felons are, by the foul accusation, The pride of virtue, being virtue's shield. By Hercules ! 'twere worth a little treason To purge the country of this rank disease ; It grows plethoric, and its bursting veins Require the lancet. — Ih. SYMPATHY LIGHTENS GRIEF. The weight that all men share, from sympathy Is lighten' d; but the thunderbolt, that falls On one poor heart, scathes, scatters, and destroys it. — Ib. Despair should win, then, what vain hope has lost ! — Ib. ORNAMENTA RATIONALIA. 281 IRONY. The love I bear the State, the blood I've shed, The days of labor and the nights of pain I've borne for you; I pray forgive them all; I do deplore them deeply, and repent All such transgressions, and will sin no more. — B. Disaster and defeat ! and all the evils That throng the train of unsuccessful war. — Ih. Redeem the time ! Reflection cannot shun the shaft of fate, Endure it as she may. Thought is too slow, Resting on past, to meet approaching woe. — Ib. 0 my mother ! — in that sacred name How many hours of guileless happiness, Of sportive and unchequer'd innocence, Roll back upon the ocean of past years, And burst upon the view ! — Ib. DEATH AND VIRTUE. Death — the destroyer, from thy potent spell, Nor sex, nor age, nor strength, nor weakness 'scapes. Time's hoary locks — the ringlets of gay youth — The hero's laurel, and the poet's wreath — Love, honor, health, and beauty, are thy spoil : — The mitred, and the sceptred yield to thee, — In deferential horror, all — all submit, Save virtue, who in radiant smiles beholds Thy dread approach, and, arm'd in Heaven's proof, VOL. II. — 19 282 THE FORUM. Contemns thee and thy retinue of ills, Alike triumphant o'er the tomb and thee. Thou canst not. rob thy victim — thou mayst slay him, Tear him from those dear arms that cling around him, And teach survivors to deplore thy power : — But, for this temp'ral life — this life of sorrow — This life of death — thou giv'st him life eternal, Unfading joy, and everlasting love ! — B. That thus the crimson tide of bold invasion Pollutes the very sacristy of Spain, And bears her household Gods from their own altars. — Ib. Hear this, ye Gods ! Where sleep your thunderbolts, That thus the guilty triumph in their guilt, And bold impiety outfaces Heaven ! — Ih. In the decrees of fate, if there remain Though but one blessing for the wretched Quintus, Bestow it now, ye Gods ! when most I need it, And ever after pour your quiver on me ! — Ib. COURAGE OF INNOCENCE. Why should the innocent Tremble and quake with fear ? — the guilty fear, For cowardice, and guilt, appal each other ; But virtue ever wears a lion's heart, Beneath the downy plumage of the dove. — lb. The husband's, brother's, son's, and father's arm Shall guard the wife, the sister, parent, child — Their only guard — who would depute another ? — Ib. ORNAMENTA RATIONALIA. 283 What more noble, Than to redeem the fortunes of a State, And, seizing fearlessly the wayward helm, While the whole crew stand trembling and appall' d, With blanchless cheek, and an undaunted eye, And the neiVd arm, fram'd as to rule the trident, To steer the shatter'd vessel into port, And, like a rock amid the troubled ocean, Laugh at the billows, and defy the storm. — B. FATE. No more, I pray thee : What the Gods ordain, Is eircumvolv'd in rayless mystery, Dark and inscrutable to human eye, Still ever just — why should the just despair ? — lb. RESOLUTION. Courage, my friends — remember that this hour Shall make your fame eternal as the Stars, Should fortune smile upon ye : should she frown, Why let her frown — at worst, we can but die, And dying in defence of virtuous freedom, Is to subdue the unpropitious Gods, And win those honors, which stern fate denies. — Ib. In every blow, let thoughts like these inspire you, And Lusitania's free. — Ib. Lo ! where, upon the shoulders of one man, A nation rests, and scorns the rage of war ! — Ib. The gates of Janus open but in war. — Ib. 284 THE FORUM. Said I not so ? See how this Proteus changes- - Threat' ning — inviting — fawning to betray ! — B. When traitors shall grow weary of their lives, Fate has supplied them other means of death, Than staining with their blood an honest sword. — Ib. IRRATIONAL FEARS. Our doubts are traitors To heaven and us, and antedate our doom. The craven heart, that shuns impending peril, Expires on its own spear, while dauntless courage Grapples with death, and rends his terrors from him. Had I a thousand lives, and each immortal, I'd jeopard all for the last hour of honor. — Ih. MODERATION IN SUCCESS. Be wary of success, and bear it wisely, As best becomes the changing tides of life : Let not the syren and seductive wiles Of proud prosperity ensnare your hearts — Self-conquest is the best and proudest triumph, And victory, without it, is defeat. — Ib. LOVE. In crowns, or chains, I still divide with thee : — No, not divide, but rather still unite, Remaining ever, one — inseparable. — Ib. Expel the Pythian priestess from' her tripod, Or in prophetic travail strangle her, And shun the lightnings of the Delphic god — Then hope to 'scape the vengeful populace. — Ib. ORNAMENTA RATIONALIA. 285 HAPPINESS. Blest recompense of toils and dangers past ! Come to this heart, and there forever reign : Thou art the victor, Marcia — let me crown thee With thy own works — chains best become the captive. — B. Fair artlessness ! how worthless is the pomp Of the world's flattery, when compared with thee, All chaste and tintless, as the virgin snow. Come, take me with thee, wheresoe'er thou wilt : Like the bright cynosure, by thee I steer, And shun the rocks and shoals of treachery. — Ib. Now hanging round his neck in sportive smiles, And now reclining on his rugged bosom — Spring's not more lovely, when with gentle hand, And golden tresses deck'd with diamond dew, And diadem of new-blown violets, She throws aside the hoary locks of winter, And melts him, in her glance, to life and love ! — Ih. This boding bosom throbs with anxious fear — Fear undefin'd — but not less terrible : There is a weight that loads my anxious thoughts, Which, causeless in the past, precedes its cause. — Ib. He ever is assur'd, Whose heart is open to the eye of day — Who wears no lurking danger in his smiles, Nor dreams of tigers' hearts beneath the fleece Of inoffensive flocks. What should I fear? )gg THE FORUM. Shall I imbitter all the jpys of life, To shrink from death, and die in my own fears — While nought but poison'd bowls, and air-drawn daggers, And treach'rous friends — or enemies disguis'd, And snares, and lures, and dark conspiracies, Flit through the fever'd brain in endless terror — Beset th' affrighted soul — and prey upon it, Till nought remains of life, but dread of death, And all of death is suffer' d, but the name ? — B. I pause no longer : flood, or ebb, in fortune, He rides the waves triumphant : th' ills of life, The tests and touchstones of external glory, By which alone its currency is tried, And sterling coin distinguish'd from the false, Increase his weight, and stamp new value on^him. — Ib. UNCERTAINTY. What should I dread ? I dread uncertainty, Through whose vast maze and labyrinths of doubt The anxious soul, in never-ending grief, Explores its fate — and, in its devious course, Ofttimes creates the perils it would shun. — Ib. Thou then canst fear, without my cause of fear ! The harmless revels of triumphant friends, Thy timid fancy conjures into evil ; Yet when I tell thee that my o'erfraught soul Predicts — foresees — would shun, impending peril, Thou cant'st as sadly of the closing night, As though the sun should never rise again. — What is, or night, or day, to those who love, Without love's object ! — Ib. ORNAMENTA RATIONALIA. 287 His parting words sink like a funeral knell Into my soul, and freeze my blood with horror. The fading day — the deathlike sleep of nature — The treach'rous calm that rests upon creation — And the deep torpor that invests my brain, Are the precursors of calamity ! — B. Does it befit the daughter of Marcellus, While her dear husband's fate is poised before her, To watch the wavering scales, nor rush to save him ? To save, or die with him ! — Ih. Thou, a camp-bred soldier, With tongue untutor'd in the Tyrian school, Hast thrown aside thy candor with the sword, And wrapp'd thy sinewy frame in silken folds, To play the courtier, and the flatterer. — Ih. Why should we talk of war, when wine inspires Our buoyant hearts with thrilling ecstasy ? Let frigid cynics scoff at Cupid's chains — No valued trophy that the hero wears, Clings half so closely to the heart, as love. — Ib. Peace, parasites ! The outraged Gods frown on your lewd desires, To earth disgusting — and a crime to heaven. — Ih. Bear up, my soul — and, worthy of thyself, Endure approaching peril, as the past — Dying as all should die, who hope to live In the proud pages of futurity. — Ib. 288 THE FORUM. Quote not the vices of philosophy, To justify indulgence of your own ; But emulate her virtues, if you can. The love which twines most closely round the heart, Disdains the use of words, and shuns the eye Like truth, despising outward ornament, In native worth : the God you worship, bends A feeble bow, and dips his shaft in wine — The wound soon heals. — B. 'Twere easier to unite thy downward soul, With elevated and aspiring thoughts ! — Ib. I know ye all, and I despise ye all, And the black purpose of your ribald crew. — Ib. Ha ! valiant traitors ! how your weapons blush, While wielded thus 'gainst a defenceless man, But dauntless as defenceless ! Death to me — To me, alone, is but repose from toil, 'Tis only for the living that I fear. — Ib. Come — let me note you for posterity, Who is the first to strike — I stand alone ? He who is first, shall be the last remember' d — Immortalized in shame. — Ih. Look here, revenge, and sate thyself with blood ! See where the patriot and the hero lies, Clasped in the fond embrace of virtuous love ! — If this be death, who would desire to live ? If what I feel be life, who fear to die ? — Ih. ORNAMENTA RATIONALIA. 289 Why shouldst thou hate men ? They never flattered thee : What hast thou given ? If thou wilt curse — thy father, that poor rag, Must be thy subject; who, in spite, put stuff To some she beggar, and compounded thee, Poor rogue, hereditary. — Shakspeare. GOLD. Thou bright defiler Of hymen's purest bed — thou valiant Mars ! Thou ever young, fresh-lov'd and delicate wooer, Whose blush doth thaw the consecrated snow, That lies on Dian's lap. — Ib. OLD MEN. These old fellows, have their ingratitude in them hereditary, Their blood is cak'd — 'tis cold — it seldom flows : 'Tis lack of kindly warmth — they are not kind, And nature, as it grows again towards earth, Is fashion'd for the journey, dull and heavy. — Ih. Raise me that beggar, and denude this lord — The senator shall bear contempt hereditary, The beggar native honor. — Ih. The gnats that in my evening glory play. — Lee's Gloriana. Plots are the dark and back way to a throne, Miss but one step, we roll with ruin down. — Ib. As a May morning rising from the East, Or day dismounting in the golden West. — Ib. 290 THE FORUM. Power circling wit, and pleasure pressing pride. — Lee's Gloriana. SEPARATION (Ship.) And calm and smooth it seemed to win, Its moonlight way before the wind, As if it bore all peace within, 'Nor left one breaking heart behind. — Moore. — That lingering press Of hands, that for the last time sever — Of hearts, whose pulse of happiness, When that hold breaks — is dead for ever. — Ib. Full of fresh verdure and unnumbered flowers — The negligence of nature. Shall we to roost, Before we rouse the night owl with a catch. — Shakspeare. 0, they love least, that let men know they love. — Ih. But neither bended knees — pure hands held up — Sad sighs — deep groans, nor silver shedding tears, Could penetrate her uncompassionate sire. — Ib. No vice is so bad As virtue run mad. — B. He paused, indeed, in the work of destruction — but he paused like the Pythian Apollo, while balancing his body, fixing his eye, adjusting his bow, and deliberately directing the unerring shaft to the heart of his victim. — Ib. ORNAMENTA RATIONALIA. 291 Base and unhistrous as the smoky light That's fed with stinking tallow. Honesty coupled with beauty, is to have Honey sauce to sugar. — Shakspeare. It is the bright day that brings forth The adder.— Ib. Why should a man whose blood is warm within, Sit like his grandsire, cut in alabaster ; Sleep when he wakes, and creep into the jaundice By being peevish ? — Merchant of Venice. They are abhorred further than seen ; And one infects the other against the wind a mile. — Shakspeare. The card and calendar of gentry. — Ib. Farewell to thee for ever ; We part to meet no more. A word those hearts may sever, Which worlds cannot restore. — B. POPULARITY. This common body, Like a vagabond flag upon a stream, Goes to and back, lackeying the varying tide, To rot itself with motion. — Shakspeare. To roll with pleasure in a sensual sty. — Milton. 292 THE FORUM. Orient liquor in a crystal glass. — Milton. I should be loath To meet the rudeness and swill'd insolence Of such late wassailers. — Ib. Beauty, like the fair Hesperian tree, Laden with blooming gold, had need the guard Of dragon watch with unenchanted eye. — Ib. A sable cloud Turns forth her silver lining on the night. — Ib. Virtue, Which oft is sooner found in lowly sheds, With smoky rafters, than in tap'stried halls And courts of princes. — Ib. And thou shalt be our star of Arcady, Or Tyrian cynosure. — lb. The silver-shafted queen. — Ih. ELOQUENCE. Youth, beauty, pomp, what are they to a woman's heart, com pared with eloquence? The magic of the tongue is the most dangerous of all spells. — B. No man was ever improved by prosperity, but thousands have been benefited by adversity. It is a rough but an excellent teacher, whose lessons are rarely forgotten. — Ih. ORNAMENTA RATIONALIA. 293 BEAUTY. Bright eyes; lips like rubies; teeth like pearls, and a quiet tongue within them. — B. But midst his mirth, 'twas often strange How suddenly his cheer would change, His look o'ercast and lower, — If, in a sudden turn, he felt The pressure of his iron belt, That bound his breast in penance pain, In memory of his father slain. — Scott. When the Product of Catalina, by Crebillon, was seized or attached, in 1749, a decree of the Council of Louis the Fifteenth issued, declaring the productions of the mind not among seizable effects. The popes prohibited the publication and use of the Bible among the vulgar, and forbade absolution of the sins of those who had it in their possession. So, also, did Henry the Eighth, except to a privileged order. Good springs from evil — strength out of weakness. The pen that governs, guards, adorns, and sustains empires, was plucked from the wing of a goose. — B. We think more of ourselves than of others ; but we think more for others than ourselves. — Bacon. Like two sweet instruments ne'er out of tune. That played their several parts. — Blair. 294 THE FORUM. In adversity, The mind grows tough by buffeting the tempest ; But in success, dissolving, sinks to ease And loses all her firmness. — Rowe. When ranting round in pleasure's way, Religion may be blinded ; Or, if she give a random sting, It may be little minded : But, when on life we're tempest-driven, A conscience but a canker, A correspondence fixed with heav'n, Is sure a noble anchor. — Burns. Doggerel poetry and bad English are intolerable, except in epi taphs, and letters from parents to children, and children to parents. The reason of the exception is, that in those cases affection triumphs over mere intellect. — Pope. Summer suns Show not more smooth, when kissed by southern winds, Just ready to expire. — Blair. Those powers that are most terrible in action, are always the most tranquil in repose. Look at the glassy surface of the smiling ocean, " when kissed by the southern breeze just ready to expire," and then imagine the terrors of the storm ! Look at the sleeping lion, and fancy, if you can, the same animal roaring, and rampant for his prey ! Look at Samson slumbering in the lap of Delilah, and who shudders for the fate of the Philistines ? The tranquillity is increased by the unconscious comparison, or rather contrast, be tween the opposite extremes as presented by the same object. — B. ORNAMENTA RATIONALIA. 295 She was — Words are wanting to say what ; Think what a friend should be, — She was that. — Potter's Field, over Schuylkill. — (Pope.) " The heart of a statesman," says Bonaparte, " should be in his head." The head of an advocate should be in his heart. — B. Steal the livery of Heaven, to serve the Devil in. ECSTATIC LOVE. 0 ! thou day of the world, Chain my arm^d neck, leap thou, attire and all, Through proof of armour to my heart, and there Ride on the pants triumphing. — Antony and Cleopatra. He wielded neither the keen scimitar of Saladin, nor the pon derous battle-axe of Richard, — but the dull cleaver of a cold-blooded butcher. — B. He that is rich, or he that is poor, knows but half of his own nature. The experience furnished by both is the best of know ledge. — Ib. MIND. The mind is never impaired, except through the disordered func tions of the body. If the mind could in itself be diseased, it could die; a supposition which would be opposed to the doctrine of the immortality of the soul, and is, therefore, to be utterly re jected. — Ib. 296 THE FORUM. Care still delves his deepest furrows, In the fairest, softest brow ; Brightest eyes are dimm'd with sorrows, Ruby lip shall cease to glow. — B. SPEECH. Speech is the morning to the soul. It spreads its beauteous images abroad, Which else lie furl'd and clouded in the brain. RULING PASSION. It is our hope, or our despair. It often secures success, — and in success enjoys the chief happiness, as, in cases of failure, it suffers the chief misery. If thou dost any beautiful thing with toil, the toil passeth away, but the beautiful remains. If thou dost a vile thing with plea sure, the pleasure passeth, but the vileness remaineth. — Musonius, or Jeremy Taylor. It is said, that in every situation, pecuniary competency is neces sary to happiness. This is a great error. This would be to de grade and destroy the lofty character of man; who, in truth, depends upon nothing for his happiness, but a virtuous life, and unlimited faith in his Creator. That a dollar more or less, should exercise any influence upon his position, as rightly understood, is to make him the meanest, instead of the noblest, of God's creatures. — B. I don't know how it is with others, but I am never so much disposed to be proud, as when my worldly hopes are humblest. — Ib. ORNAMENTA RATIONALIA. 297 INTOLERANCE IN RELIGION. A war against Catholics, would involve a war against natives — and not only a religious, but a social and domestic war, of neigh bor against neighbor — brother against brother — husband against wife — parent against child, and child against parent. — B. My greatest difficulties in life have sprung from my greatest successes — and the greatest enjoyments of life, from what have been considered the greatest privations. — Ih. Most men would be greater in the close of life, if they were not so great in its beginning. — Ib. Test the gratitude of men, when you can do without it — never rely upon it in an emergency. Friendship then, or love, is the only dependence. Religion is the consolation where all other re sources fail — that never fails. — Ib. If we cannot derive support from religion, it is not that religion cannot furnish it, but because we want faith in its efficacy. — Ib. God elects all — who elect him. — lb. The thoughts passing through an ordinary mind, would, in the course of a long life, if they could be collected, furnish more in struction to mankind, than the works of Bacon or Newton. Shak speare, of all mortals, has exhibited most of his mind — yet he con cealed more than he displayed. — Ib. It resembles the eagle, that discovered upon the shaft on which he perished, a feather from his own wing. — Waller. (Borrowed' by Byron.) vol. II. — 20 298 THE FORUM. SHAKSPEARE A LAWYER. Falstaff's Legal Precisian. Chief Justice Gibson. Riddle v. Welden, 5 Wharton's Rep., 15. Lear — Act 1, scene 4; cited by Lord Eldon on a question of Insanity. — Lives of the Chancellors, vol. vii. p. 249. London edition. Action of battery. — Twelfth Night, Act 4th, scene 1st. Action of battery. — Measure for Measure, Act 2nd, scene 1st. Have your action of slander, too. — Ih. I'll bring my action. — Taming of the Shrew, Act 3rd, scene 2nd. Master Fang, have you entered the action ? — 2 S. IV, Act 2nd, scene 1st. My Lord, let's see the Devil's writ. — 2 S. VI, Act 1st, scene 4th. The windy side of the law. — Twelfth Night, Act 3rd, scene 4th. Against the Law and Statutes. — Comedy of Errors, Act 4th, scene 1st. By the law of Nature and of Nations. — Senry V, Act 3d, scene 4th. Before I be convict by course of law. — Richard III, Act 1st, scene 4th. The law's delay, the insolence, ete. — Samlet. Act 3rd, scene 1st. ORNAMENTA RATIONALIA. 299 The whole scene in Hamlet, Act bth, scene 1st. " Crowner's Quest Law." And see the note to Reed's edition, vol. X., and Dame Hale's case. — Plowden's Reports.* Constable. — Much-Ado About Nothing, Act 3rd, scene 3rd — throughout. Whose suit is he arrested at ? — Comedy of Errors, Act 4th, scene 4th. He is arrested at my suit. — 2 S. IV, Act 2nd, scene 1st. Tioelfth Night, Act 3rd, scene 4th. Under our arrest procure your sureties. — Richard II, Act 4th, scene 1st. * In the first volume of Plowden's Eeports, first published in 1578, when Shakspeare was fourteen years old, will be found the case of Hales v. Pettit, argued upon a demurrer. We shall divest it as much as possi ble, of what may be called its artificial or technical character, in order that it may be more intelligible to the uninitiated. It was an action of trespass, which involved a question of title, to the property claimed by the widow of Sir John Hales. Sir John Hales leased the property by a lease from the Archbishop of Canterbury, as a joint-tenant with his wife. During the lease Sir John drowned himself — the land was claimed by the crown, and granted to Pettit. Sir John's widow entered upon the land, claiming it as successor to her husband. She was expelled from the pos session, and for that expulsion brought her action of trespass. The question was, whether the property vested in the crown — Sir John being felo de se — or in his widow. The ablest lawyers of the time were employed, and the argument in volved all the legal matters contained in the scene of the grave-digger in Hamlet, in relation to the death of Ophelia. The inquiry turning upon the question, whether Sir John came to the water, or the water came to him. Shakspeare understood the point perfectly, and turned the plead ings and decision into ridicule, in the dialogue between Hamlet and the grave-digger, to which the curious are referred. — Act V. gQQ THE FORUM. To stay the judgment. — S. VIII, Act 3rd, scene 2nd. And I will have no attorney but myself. Attorneys are denied me, and therefore, personally, I lay my claim to my inheritance of free descent. I could be well content to be mine own attorney in this case. Doctor Drake introduces a variety of instances in which legal terms are used in their technical sense ; as thus, in King Senry IV., part 2d. : " For what in me was purchased, Falls upon thee in a much fairer sort." And purchase, it is here said, is used in a legal sense, and in contradistinction to an acquisition by descent. And again, in the Merry Wives of Windsor : " He lets the Devil have him in fee simple, with fine and recovery." Then in the Comedy of Errors: "He's rested on the ease." And again in the Merchant of Venice : " Go with me to a notary, and seal me there a bond." In Much Ado About Nothing, Dogberry charges the watch to keep their fellow's counsel, and their own. This is part of the oath of a Grand Jury — Then, in Othello this passage occurs : ORNAMENTA RATIONALIA. 3Q1 ' Where is that Palace whereinto foul things Sometimes intrude not ? who has a breast so pure, But some uncleanly apprehension Keeps leets and law days; and in sessions sits With meditations lawful." Again in Macbeth : " In these cases We still have judgment here, that we but teach Bloody instruction ; — which, being taught, returns To plague the inventor. Thus, even-handed justice Commends the ingredients of our poison'd chalice To our own lips. " Tell me what state, what dignity, what honor, Cans'tthou demise to any son of mine ?" DYING DECLARATIONS. The tongues of dying men enforce attention — Where words are scarce they're seldom spent in vain ; For they breathe truth, that breathe their words in pain. Have I not hideous death within my view, Retaining but a quantity of life, Which bleeds away, even as a form of wax Resolveth from his figure gaunt the fire ? What in the world should make me now deceive, Since I must lose the use of all deceit ? — Richard II. Act 2. Why should I then be false, since it is true, That I must die here, and live hence by truth ? 302 THE FORUM. There is more sublimity in Milton, but more close thinking in Young. — B. Like a fair house built upon another man's ground ; so I have lost my edifice, by mistaking the place where I have erected it. — Shakspeare. There were many men equal to Lord Chatham as a thinker, many superior to him in erudition, but no one excelled him in the power of speech. A man who cannot speak, or who speaks unintelli gibly, thinks for himself : a speaker thinks for thousands, by making thousands think as he does. — B. An eloquent writer is better for the future, — an eloquent speaker better for the present. The laurels of the former cluster about his grave, — those of the latter encircle his brows. One is a draft on time, — the other at sight. — Ib. GENIUS. . "Genius, not only lights its own fire," as Foster says; "but supplies its own fuel," as I say. — Ib. Life is divided into three periods — youth, the imaginative ; mid dle age, the passionate ; old age, the reflective. CONTEMPT OF POSTHUMOUS FAME. When Anacreon, towards the close of his life, was shown by his friends the vines and grapes with which his urn was to be festooned, he begged them to convert the grapes into wine, that he might enjoy them while living. ORNAMENTA RATIONALIA. 3Q3 REVERSES OF FORTUNE. People think much more about them than they merit ; it is the world itself that makes them so difficult to bear ; one can think and act as freely beneath the thatch of a cabin, as the gilded roof of a palace. It is the mock sympathy, the affected condolence for your fallen estate, that tortures you; the never-ending recurrence to what you once were, contrasted with what you are ; the cruelty of that friendship which is never content, save when reminding you of a station lost forever, and seeking to unfit you for your humble path in the valley, because your step was once proudly on the mountain top. I hate pity, — it is like a recommendation to mercy after the sentence of an unjust judge. — Lever. AFFECTED PITY. There is a cant condolence That gives more pain to the afflicted mind Than open scorn. I have been so bepitied By rascals, at the moment measuring Their height above me. With an eye as bold As frost — if frost could feel the cold it scatters, — By Heav'n ! I rather would endure the taunts Of my worst enemy. — Sayne. It is a mistake to suppose, that a transition from prosperity to adversity is more insupportable than one continuous course of adver sity. A man who never saw a valley, knows nothing of the gran deur of a mountain. A man who never saw a mountain, is ex hausted with the sameness of a vale. In plain English, the ups and downs of life support each other. The memory of the past, or the anticipations of the future, chiefly make up all our present happiness or misery. — B. 304 THE FORUM. I've search'd with care the page of Life, And learn' d of man the common lot : He lives — his days are toil and strife, — He dies — and is forgot ! — Anonymous. I have seen men in tempests of passion, — in the greatest depth of grief, — the former I have always found easily subdued, — the latter, readily consoled. All that is required is to know the spring of the heart. The grave is the only grief that has no temporal hope ; — there, the only cure is to look beyond it. — B. Poverty in itself is nothing, even to a generous spirit. It is the . thousand meannesses to which it subjects you, — the thousand inso lences to which you are exposed, — the chilling influence upon prac tical charity, — that constitute its chief misery. — Ib. A man is prouder in adversity than prosperity. In the former he builds upon himself, — in the latter, upon his fortune. — Ib. Suffering is best endured, by reflecting upon greater sufferings of yourself or others. If this cannot be, it must be endured by gratefully meditating upon the great blessings you have enjoyed at the hands of a bountiful Creator, — which leave you largely a debtor on the score of happiness. If neither will answer, the only cure is silence or submission. — Ib. RULING PASSION. The gratification of a ruling passion, is our chief pleasure, — its disappointment, our chief earthly penalty. Virtue has its en joyments in any result, and is often more benefited by defeat than success. — Ih. ORNAMENTA RATIONALIA. 305 The miser suffers more in parting with his money, to procure the slightest indulgence, than a poor man suffers in being deprived of such indulgence. — B. power. Whose smile was fortune, and whose will was power. Fortune attends his smile, ere she turns her wheel, and Fate awaits his nod, ere she signs her fiat. I love — I am devoted to my profession, but at times I almost loathe it, when I see children struggling in hostility over a parent's grave ; or, when I behold Mammon thrusting his guilty gilded hand between hearts that were made for each other — between " brethren who should dwell together in unity." Climbing to the nest of the vulture, and finding a trembling dove within. — Moore. Nothing tranquillizes excited and angry passions more, or conveys a more salutary lesson to the mind, in soothing or composing it, than the sight of a sleeping infant. — B. BEAUTIFUL THOUGHT. — YOUNG WOMAN. The sweet moon on the horizon's verge — a thought matured, but not uttered — a conception warm and glowing, not yet embodied — the rich halo which precedes the rising sun — the rosy down upon the ripening peach. A flower — whieh is not quite a flower, Yet is no more a bud. 306 THE FORUM. Romantic love is like the cataract, Which foams and rages, while impediments Obstruct its swelling surge : give it full sway, And lo ! its silv'ry sheen glides gently on, And lulls itself to sleep with its own music. — B. VIRTUE. 'Tis virtue alone true enjoyment can give, The enjoyment that springs from on high; 'Tis virtue that teaches the way we should live, And points out the way we should die. — lb. Silent they sit, All faculties absorb' d by black despair; The world has vanish' d, and the soul is dead, To earthly sympathies — to earthly care ; Brooding alone on its eternal fate, And prostrate in the presence of its God. — lb. SILENCE. Silence, the watchful sentinel of night, With noiseless step and undiverted ear, Challeng'd each sound. — Ih. Prayer was not invented for man — man was born to pray. Man was not made for the Sabbath, but the Sabbath was made for man. Like a man who walks backward to destruction, and looks at the stars or sun to the last. A lily lolling on a rose. ORNAMENTA RATIONALIA. 3Q7 The argument resembles a peacock's tail — filled with beautiful plumage, but supported upon deformed and odious legs. ELOQUENCE. Men, it is said, are won through the eyes — women through the ears. ATHEISM. The doctrine of an Atheist is not more horrible than it is piti able. "Who, in the world," says an incomparable divine,* "is a verier fool, a more ignorant, wretched person, than he that is an Atheist ? A man may better believe there is no such man as him self — that he is not in being — than that there is no God ; for him self can cease to be, and once was not, and shall be changed from what he is ; and in very many periods of his life, knows not that he is; and so it is every night with him when he sleeps. But none of these can happen to God, and if he knows it not, he is a fool. Can any thing in this world be more foolish, than to think that all this rare fabric of heaven and earth can come by chance, when all the skill of art is not able to make an oyster ? To see rare effects, and no cause ; an excellent government, and no prince ; a motion, without an immovable ; a circle, without a centre ; a second, with out a first ; a thing that begins not from itself, and therefore not to perceive there is something whence it does begin, which must be without beginning. These things are so against philosophy and natural reason — to say nothing of the lights of revelation — that he must needs be a beast in his understanding, that does not assent to them. This is the Atheist : 'the fool hath said in his heart, there is no God :' that is his character. The thing framed says, that nothing framed it ; the tongue never made itself to speak, and yet * Bishop Jeremy Taylor. 308 THE FORUM. talks against him that did ; saying, that which is made^ is ; and that which made it, is not. But this folly is as infinite as hell, as much without light or bound, as the chaos, or the primitive no thing. But in this the Devil never prevailed very far ; his schools were always thin at these lectures. Some few people have been witty against God, that taught them to speak before they knew to spell a syllable ; but either they are monsters in their manners, or mad in their understandings, or ever find themselves confuted by a thunder or a plague, by danger or death." The French philosophers having assembled, their conversation turned on the question, " What is the soul ?" After various silly suggestions by others, Helvetius directed the windows to be closed : " Now," said he, " you see we are in the dark — let them bring me a light." They gave him a red-hot coal, and blowing it, he lit a wax taper. " There," said he, " I have the soul ! I have the life of the first man ; the fire which I have used is everywhere — in the stone, in the woods, and in the atmosphere. The soul is fire." And saying this, he lit another taper. " Now you see," said he, " my first man has transmuted life without the original Creator." " Ah !" said Diderot, who was present, " observe, then, that you have proved the existence of God, by attempting to deny it. I grant that life may be in the fire, but it is necessary that there be one who has lit the fire. It will not be lighted by itself." The man who has suffered the greatest evil in life, can suffer no more. Like Death, it cures everything here. — B. As there is morning, noon, evening, and night in each day, so is there in the seasons, — spring, summer, autumn, and winter; — and to those do the seasons and changes in the life of man cor respond. — Ib. ORNAMENTA RATIONALIA. 3Q9 RULING PASSION. A poor man stating his inability to purchase some small article, and referring, with something like envy, to the superfluous wealth of a miser, B. said to him : "My good friend, your condition is at least as good as his : you suffer in not getting what you want — he suffers either in not getting, or in getting what he wants. — B. Is this well done, my Lord ? Have you put off all sense of human nature ? Keep a little, a little pity, to distinguish manhood, Lest other men, though cruel, should disclaim you, And judge you to be numbered with the brutes. — Rowe. Being asked, why I was so firm a believer in the Saviour, I re plied, " Both from reason and faith." Reason itself shows that, without faith in the doctrine of Christianity, no man could be saved. — B. A well provided breast hopes in adversity, and fears in pros perity. — Sorace. TIME. The man that takes twice as much time to accomplish an object as is necessary, abridges his life one-half, and nearly destroys the other half by an acquired sluggishness and supineness. — B. Why is it, that you trim your plants, and your trees ? To remove what is decayed and offensive to the sight, and to promote the growth of that which remains. The very storms that visit the forest, remove the rotten or useless portion of the limbs and branches, and thereby increase their general growth and beauty; — such are the benefits of adversity. 320 THE FORUM. SLANDER. A slave, whose gall coins slander like a mint. — Troilus and Cressida. A fellow, with his wit in his belly, and his guts in his head. — Ib. ROGUES. Men who do not watch and pray — but watch to prey. She died, — but not alone ; she held within A second principle of life, which might Have dawn'd a fair and sinless child of sin; But clos'd its little being without light, And went down to the grave unborn — wherein Blossom and bough lie wither'd with one blight. — Byron. In vain, the dews of Heaven descend above The bleeding flower, and blasted fruit of love. — Ib. A pebble, in the streamlet scant, Has turned the course of many a river ; — A dew-drop, on the baby plant, Has warp'd the giant oak forever. Bring me a constant woman to her husband — One that ne'er dream' d a joy beyond his pleasure; And to that woman, when she has done most, Yet will I add an honor, — a great patience. — Senry VIS Ten thousand fools, knaves, cowards, lump'd together, Become all-wise, all-righteous, and all-mighty. — Toung. ORNAMENTA RATIONALIA. 341 The ruling passion, is a substitute for courage. If a man be a coward, only offend his ruling passion, and he becomes brave in its defence. Look at the miser defending his gold, &c. ! EPITAPHS. Torn from us in the spring tide of the heart, Sunder'd from those dear arms that clung around thee In all thy loveliness, what now remains With the survivors to allay their griefs, But the rich memory of thy spotless life, Radiant with hope and redolent with virtue, Pointing to those bright realms of endless joy, Whose earthly portal is the peaceful grave ? — B. 1 Exalted virtue, and undying faith In the atoning blood of Calvary, An earnest of beatitude to come. Why should survivors mourn the pious dead, Who, having shaken off life's weary load, Mount to the regions of eternal bliss, And rest upon the bosom of their God ? — Ib. Earth has no rage like love to hatred turn'd, Nor hell a fury, like a woman scorn'd. — Congreve' s Mourning Bride, end of 3rd Act. Music has charms to soothe the savage breast, To soften rocks, or bend the knotted oak. I've read that things inanimate have mov'd, And, as. with living souls, have been inform' d By magic numbers and persuasive sound. — lb., 1st Act. 342 THE FORUM. Then chafed Thy temples till reviving blood arose, And like the morn, vermilioned o'er thy face; 0 Heaven ! how did my heart rejoice and ache, When I beheld the day-break of thy eyes, And felt the balm of thy respiring lips. — Congreve' s Mourning Bride, 2nd Act. How reverend is the face of this tall pile ! Whose ancient pillars rear their marble heads To bear aloft its arch'd and pond'rous roof, By its own weight made steadfast and immovable, Looking tranquillity. — lb., Scene 3rd. [Said to be one ofthe most poetical passages in the English lan guage.] ELOQUENCE. Whene'er he speaks, Heav'n ! how the list'ning throng Dwell on the swelling music of his tongue : And when the power of eloquence he'd try, Sere lightning strikes you — there soft breezes sigh. — Garth. TEMPERANCE. The Lacedemonians, who were at one time a very licentious and drunken people, were cured of their love of strong drink, in this manner : — The slaves were forced to drink until they became in toxicated, and then placed in the amphitheatre during the games. This double degradation disgusted every one. — Plutarch. Noah's drunkenness has been accounted for, upon the supposi tion that he was not aware of the influence of wine. ORNAMENTA RATIONALIA. 343 SLEEPING FLOWERS. Almost all flowers sleep during the night. The marigold goes to bed with the sun, and with him rises weeping. Many plants are so sensitive that their leaves close during the passage of a cloud. The dandelion opens at five or six in the morning, and shuts at nine in the evening. The "goat beard" wakes at three in the morning, and shuts at five or six in the afternoon. The common daisy shuts its blossom in the evening, and opens its "day's eye" to meet the early beams of the morning sun. The crocus, tulip, and many others, close their blossoms at different hours to wards evening. The ivy-leaved lettuce opens at eight in the morn ing, and closes forever at four in the afternoon. The night-flower ing cereus turns night into day. It begins to expand its magnificent sweet-scented blossoms in the twilight; it is full-blown at midnight, and closes never to open again with the dawn of day. In a clover field not a leaf opens until after sunrise ! So says a celebrated English author, who has devoted much time to the study of plants, and often watched them during their quiet slumbers. Those plants which seem to be awake all night, he styles " the bats and owls of the vegetable kindom." — Extract. OBSTINACY. An obstinate man does not hold opinions, but they hold him ; for when he is once possessed of an error, it is like a devil, only cast out with great difficulty. Whatsoever he lays hold on, like a drunken man, he never loses, though it do but help to sink him the sooner. His ignorance is abrupt and inaccessible, impregnable both by art and nature, and will hold out till the last, though it has nothing but rubbish to defend. It is as dark as pitch, and sticks as fast to anything it lays hold on. His skull is so thick, that it is proof against reason, and never cracks but on the wrong side, just opposite to that on which the impression is made, whieh VOL. II. — 21 314 THE FORUM. surgeons say does not happen very frequently. The slighter and more inconsistent his opinions are, the faster he holds them, other wise they would fall asunder of themselves ; for opinions that are false ought to be held with more strictness and assurance than those that are true, otherwise they will be apt to betray their owners before they are aware. He delights most of all to differ in things indifferent : no matter how frivolous they are, they are weighty enough in his weak judgment; and he will rather suffer self-martyrdom than part with the least scruple of his freehold, for it is impossible to dye his dark ignorance into any lighter color. He is resolved to understand no man's reason but his own, because he finds no man can understand his but himself. His wits are like a sack, which the French proverb says is tied faster before it is full than when it is ; and his opinions are like plants that grow upon rocks, that stick fast though they have no footing. His under standing is hardened, like Pharaoh's heart, and is proof against all sorts of judgments whatsoever. — Extract. The iron entered into his soul. — Sterne. — (Bible.) There is nothing earthly that is not dependent upon something else earthly, while all depend upon the Creator. — B. His tongue took an oath, But his heart was unsworn. — Euripides. SPIRITUALISM AND INFIDELITY. One of the most remarkable things with the Spiritualists is, that while they believe every thing that few other persons can believe, they deny every thing that almost all reasonable men fully believe — the truths of Christianity — all the mysteries of which are no thing to Spiritualism, and have gospel authority. ORNAMENTA RATIONALIA. 345 BEAUTIFUL PHRASE. On my eyelids shall conjecture hang. — Measure for Measure. What reinforcement we shall gain from hope, If not, what resolution from despair. — Milton* LEGAL LIABILITY OF A PHYSICIAN. The responsibility of a physician is rarely understood — though it ought to be distinctly and clearly understood. Death happening under his hands, when he is engaged with intent to cure or prevent disease, in the eye of the law, is no felonious homicide, though greater skill might have saved the patient. And the like of a surgeon. And the law goes further : for, if men be not licensed according to the statute, though liable to the penalties of the statute, a mere mis chance would not make them liable for murder, or even man slaughter. Gross negligence, however, or culpable neglect, or in excusable ignorance, would materially alter the case. POISONS.' Arsenic, which, of all poisons most readily produces death, is most readily administered without detection — but most readily detected, having been administered. — B. The grave closes all accounts with this world, and opens them with the next. — Ib. PRUDENCE IN TAKING VOUCHERS. The man who, in his business transactions in life, relies upon the honesty of all men, necessarily relies upon their memory and accu racy. They may be honest, and still he may suffer from his confi dence. — Ib. 316 THE FORUM. MORAL INSANITY. If it mean anything, it means that insanity which arises from one of two causes, and, perhaps, at times, from both. In some cases, it may result from the physical structure or condition of the man — great fulness of habit — peculiar tendency of the blood, contributing to the creation of inordinate animal passions, &c. Or where, by bad example and long habit of any animal excess, the mind loses its control, and the will its power, and the beast conquers the man, — this results in insanity or fatuity. O, she doth teach the torches to burn bright ! Her beauty hangs upon the cheek of night, Like a rich jewel in an Ethiop's ear — Beauty too rich for use — for earth too dear. — Shakspeare. GRAVITATION.* Time, force, and death, Do to this body what extremes you can ; But the strong base and building of my love Is, as the very centre of the earth, Drawing all things to it. — Ib. If a man is under the influence of any passion more powerful than the love of truth, he swerves from the truth. — Bacon. Agnus was the only combination which the wolf, learning to spell, could make out of the twenty-four letters of the Alphabet. — b. * Written long before Newton's discovery. ORNAMENTA RATIONALIA. 347 METAPHYSICS. The souls of idiots are of the same piece as those of statesmen, but now and then nature is at fault, and this good guest of ours takes soil in an imperfect body, and so is slackened in showing her wonders ; like an excellent musician, that cannot utter himself upon a defective instrument. — Bacon. There is this wonderful benignity in the providence and economy of God, that our very sufferings produce our relief, from their excess. Great pain renders us insensible to pain. Great heat produces, naturally, refreshing showers. — B. Never despair — and, when you are in the right, never surrender. God only, can cure the wounds that He inflicts. — Scott. SLAVERY. I wonder if his appetite was good, Or if it were, if also his digestion. Methinks, at meals, some odd thoughts might intrude, And conscience ask a curious sort of question About the right divine, how far we should Sell flesh and blood. — Byron. MAJESTY, Dies not alone, but like a gulf doth draw What 's near it — with it. It is a massy wheel, Fixed on the summit of the highest mount, To whose huge spokes ten thousand lesser things Are mortised, and adjoin' d, which, when it falls, Each small annexment, petty consequence, Attends the boisterous ruin. — Samlet. 318 THE FORUM. ARISTOCRACY AND DEMOCRACY. The aristocracy pull off their hats to those whom they hate. The Democracy will not do it to those whom they love. There is more policy in one — more honesty in the other. — B. PRIESTCRAFT. Thy priestly craft Is so engrafted on thy loyal stock, That, like the ivy, it o'ershadows it, And eats the heart out. What dost thou mean ? Equivocate no longer — speak thy fears. — Ib. Pardon, my liege ! My thoughts, being dedicate to things above, Chastised by penance and austere reproof, Consort not with the play of youthful blood, And look, perchance, too sternly on those faults Which nature unreformed shall justify. — Ib. If every knave build on his own construction, Death's decrees shall lose their bloody impress, And become a passport to a regal entertainment. — Ib. Princes, like the stars, Were made to gaze at, by vulgar eyes, With awe and reverence — to worship not to wed. — Ib. What change can prove unwelcome to the heart That groans beneath the heaviest penalties That disappointed and perverted love Can heap upon it ? — Ib. ORNAMENTA RATIONALIA. 349 Talk not of hearts — leave those to brainsick boys And wild romance. — B. 0 hard condition ! That makes the princely state in wretchedness Supreme, as well as pride. The humble hind, Who toils and sweats from morn till eventide, Still sits supreme upon his bosom's throne, In native majesty, and sways the heart To his own purpose, loves and is belov'd, And in the dear delights of mutual joy Looks down upon the worldly pageantry, The pride, the pomp, the tumult and parade That hide the anguish'd soul, and drown its groans. — lb. CANDOR. It wears the livery of Truth, fair Madam ! The vesture of the starry court above, Where virtue reigns supreme, and the free soul Owes fealty only to the King of kings. — lb. I nor dispute, nor doubt your Highness' will ; That is omnipotent, and, as a subject, A loyal and a true one, I submit. But when your Grace holds parley with my thoughts, My thoughts must speak, and say it is not well. — Ib. The withered heart that throbs in this lone breast, And, like a captive bird, assails its bars, In frail and fruitless hopes of liberty, Attests the fervor of my love for thee. — Ih. 320 THE FORUM. Remember, thou art escort to a queen — That the blue waves, which sever adverse shores, Are Lethe's waves — oblivious of ihe past! — B. I'll be her escort; and with winkless eye I'll play the Dragon to the Hesperian fruit, And guard it, night and day. — Ib. How times are changed ! now Priam plays the lover, And England's Helen rushes to his arms, While all the pride and pomp of chivalry Smile on the triumph of threescore and ten — The Rose of Spring clasped in the arms of Winter ! The Aloe would befit his highness better — It blooms but once in every sixty years. — Ib. I've borne these ribald jests Beyond that point where patience is a virtue. Provoke my rage no longer. — 'Tis not meet That we should prattle of our inmost griefs : But there are depths within this wounded heart, Which, prob'd unskilfully, result in death To patient or physician. — Ib. We '11 talk no more of women ; The winds and waves shall now our topics be ; They're not more changeful, and less perilous. — Ih. Oh, Alexander ! what a soul was thine ! That in the prime of manhood and of love — Deck'd with a thousand triumphs — could resist The matchless Persian beauty — bright Statira. — Ih. ORNAMENTA RATIONALIA. 321 The heart cai$ never learn To throb by rule, or shun what it adores. Friendship may swell to love, and fill the soul, But love ne'er shrinks to friendship, till it dies. Extremes beget extremes, and sometimes hate Usurps the throne of tenderness and joy, And riots in their ruin. — But true love Shudders at diminution, as at death. Nay, it is death — the glowing heart is cold, Is cheerless, all its charms are lost, And from its former height it sinks, at once, To the low level of instinctive brutes. — B. LOVE. Why cease to love — or cease to be beloved ? The Great Creator taught the breast to glow With generous emotion, and to cling, Close as to life, to sympathetic arms. What is the world without it, what the glare Of pride and pomp — of wealth and pageantry ? — They cannot buy, vain-glorious as they are, The least emotion that I feel for thee. Who is the richer, then ? The wretch that hugs His golden store and nightly gloats upon 't, Or the warm spirit that shakes off its chains ? — Ib. BEAUTY. Would you have stars or liquid diamonds ? gaze On her bright eyes — which light the way to joy. Pearl ? call to mind the treasure of that mouth ; Coral ? behold her lip — but, oh ! beware You linger not amidst the sweet enchantment — This labyrinth of love ! — No clue can save you. — 7Z>. 322 THE FORUM. How should it be When Youth 's consigned to the embrace of Time, When life is fettered in the arms of Death ? Canst read the human face, and not perceive How fate lies lurking in the wreathed smile ? Decrepit age, corruption and decay Prey on the vernal cheek, and blight its bloom. The temple, where this union is confirmed, Should be a sepulchre — a charnel house — And bridal robes, and jewels, and parade, Give place to sackcloth, shrouds, and tears of blood. — B. The feeblest impulse that affection prompts, Is worth a kingdom. — Kingdoms cannot buy it. It springs spontaneous in the human heart, Unbrib'd — unfetter' d — precious as the blood That thrills in circling eddies through the veins ? — - Offspring and guardian of life's citadel — Millions of tribute which the unwilling hand Pays, while the soul withholds its sympathy, Or shrinks from the exaction ; what are they But dull and slavish homage from a slave, Giving what fear forbids him to refuse, Or power resistless ever may enforce ? What mutuality can this bespeak Beyond external seeming ? — the base traffic Of sordid worldlings — wedded to themselves — Giving to take — or yielding to receive ! — Ib. The whole globe, Outstretched between the soul and its desires, Were shorter than the tiresome, tedious league, That turns the back on joy. — Ih. ORNAMENTA RATIONALIA. 323 Who dares to love, yet dares not show his love To the dear object that inspires it ? Say she 's a queen — in love she is a subject ; The crown begirts her head, but not her heart — The heart 's a woman's throne — 't 's there she reigns — 'T is there she rules — is ruled, and must be won. — B. He who sins for woman, Builds upon Adam and prescriptive right. — 1 b. Amazed — confounded — blinded with the blaze Of concentrated beauty. — 'Tis gone, and all is gloom. — Ib. LOVE AGAINST HONOR. Her youth — her charms — Enough to warm an anchorite to love, Opposed to knightly honor and renown, Fade like the phantom of distempered minds At the return of reason. Valiant sir, Pause not to weigh your princely dignity Against a woman's smile — or both are lost. — 76. My gallant friend, If royalty derived its stamp from nature, Or worth inherent challenged for itself The rev'rence and submission which we pay To worth presumptive — or if regal power, — The right to sway the destiny of others, — Sprung only from a conquest o'er ourselves, Thou wert a native monarch. — Ib. Faults self-reproved are more than half atoned, And prompt repentance does the work of mercy. — Ib. 324 THE FORUM. This is a bond of hands, and not of hearts. Is it then generous — nay, is it just, That doting age, forgetful of the tomb, Should thus stretch forth its sickly, palsied hand, To crop the bloom of youth and blight her joys Beyond all hope of a reviving spring ? — B. I place a crown of thorns upon her head, And like a flower upon the blasted heath, She withers, pines, and dies. — Ib. The glare of day — the grosser glare of pomp Are past, and now the noon of night prevails. Distracted and excursive thoughts return, Freighted with good or ill, and cast their load Of joy or grief on the expectant heart; And still how sweet — how beautiful is night ! How mild, yet how luxuriant are the rays Whieh beam from yon cerulean monarchy — Pale Cynthia and all her starry train, O'er a tempestuous world, lull'd to repose — Transient, short-liv'd repose ! To-morrow's dawn Shall wake the slumberers and renew their toil. — Ih. Bid me be dumb : but let me gaze upon thee, Till the fraught soul shall surfeit on thy charms. — Ib. ancestry. What lineage has yon fair and radiant star, That bears the stamp of an immortal hand 1 What orbit does it move in but its own ? shines in its own pure and pristine light : — Not like your fav'rite moon, in borrow' d beams ! — Ib. ORNAMENTA RATIONALIA. 325 Where and who am I ? Are these the sacred precincts of the palace ; Or has my fancy, straying from the truth, Led me into some desert drear and wild — Some lawless haunt, where ruffian robbers lurk To prey on the defenceless ? — B. VALOR. Put up your weapon till the time shall serve. This is no scene for blood. Valor that needs The tongue's loud flourish, and a lady's eye, May well be doubted, though I doubt not yours ; Your courage, sir, will keep. — So let us part. How we again shall meet — how part when met, Let time and fate determine. — Ib. What, then, fair Madam, but a forfeit life Which none will take more freely than I give — What is it, but a burthen to be borne, From day to day, till death removes the load ? I would not wound thy ear with my fell thoughts ; But still, that hand were dearest, next thine own, That cuts the tenure of my weary hours, And soothes me to a long and last repose. — Ib. The^ honors that I wear were dearly won, By nights of toil — by days of peril past ; And he that tears the garland from my brow, To deck his own, shall leave these temples cold, And rend his trophies from the grasp of death. — Ib. 326 THE FORUM. Tinsel and trappings still have virtue in them, — A cloak of frieze would cover twenty lords. — B. FRIENDSHIP. For weary — anxious years, In camps — in courts — in grief and merriment, We have been more than brothers : tell me, then, What good or evil has befallen thee, That I may share the one — redress the other ! — Ib. Shame never dared to sit upon that brow ; 'Tis honor's throne. — Didst mark amid the throng Of Lords and Nobles, how supreme he stood — Blanchless and dauntless, while his eagle eye Surveyed, undazzled, all the glare of pomp, As matters most familiar. — What to him Who wears great nature's patent in his breast, Are all the tinsell'd trappings of a Court? — 76. NATURE'S NOBLEMAN. The lower his descent, The higher his desert. — Thus to emerge From the dark, struggling, adverse clouds of fate, Like the bright sun from a tempestuous sky, Or the dark bosom of the stormy main, All radiant and majestic in his glory, How much more godlike, than when rosy hours And gentle fanning zephyrs cling around His golden chariot, and enamor'd shed Their fragrant incense o'er its burnish'd track ! I tell the, Charmean, forty thousand lords, ORNAMENTA RATIONALIA. 327 Fair weather lords, in their united worth, Were not the tithe of nature's nobleman ! If thou wouldst bind thy mistress ever to thee, Devise some means consistent with my fame, To win this truant back. — B. 0, love, mysterious and capricious love, Though scorn'd so long, at length thou art revenged On my poor heart ! — Ib. MARRIAGE. United in affection as we are, And waiting but thy blessing on the union, Thou may'st dispense with tedious ceremony. When votaries reluctant kneel before thee, Omit no form that binds them to each other, Lest struggling, they escape and shame thy work : That is a work of form, and must be formal, Or it is nought : but here our willing hearts Are coupled to thy hand — and, though unbound, They cleave together, and require no tie But thy frail outward tenure. — SACRED EXTRACTS. A mean estate is not always to be contemned : nor the rich that is foolish to be had in admiration. — Ecc. ch. xxii. If thou hast gathered nothing in thy youth, how canst thou find anything in thy age. A woman, if she maintain her husband, is full of anger, impu dence, and much reproach. 328 THE FORUM. Many have fallen by the edge of the sword, but not so many as have fallen by the tongue. Love thy money for thy brother and thy friend, and let it not rest under a stone to be lost. There is no riches above a sound body, and no joy above the joy of the heart. In all thy works be quick, so shall there no sickness come unto thee. If thou be made the master of a feast, lift not thyself up, but be among them as one of the rest ; take diligent care for them, and so sit down. A concert of music in a banquet of wine, is as a signet of car buncle set in gold. If thou be among great men, make not thyself equal to them ; and when ancient men are in place, use not many words. Do nothing without advice, and when thou hast once done, re pent not. Riches and strength lift up the heart, but the fear of the Lord is above them both : there is no want in the fear ofthe Lord, and it need- eth not to seek help. ORNAMENTA RATIONALIA. 329 Wisdom is better than rubies, and all the things that may be desired are not to be compared to it. — Proverbs viii. 11. There is that scattereth and yet increaseth; and there is that withholdeth more than is meet, but it tendeth to poverty — Proverbs xi. 24. How much better is it to get wisdom than gold? and to get under standing rather to be chosen than silver. — Proverbs xvi. 16. A friend loveth at all times, and a brother is born for adversity. — Proverbs xvii. 17. Even a fool when he holdeth his peace is counted wise ; and he that shutteth his lips, is esteemed a man of understanding. — Pro verbs xvii. 28. Thy youth is renewed like the eagle's. — Psalm eiii. 5. Like grass which groweth up and flourisheth, in the evening it is cut down and withereth. — Psalm xc. Man goeth forth unto his work, and to his labour, until the eve ning. — Psalm civ. 23. They that sow in tears, shall reap in joy. — Psalms. For a thousand years in thy sight are but as yesterday when it is past, and as a watch in the night. — Psalm xc. 4. The Lord is King, be the people never so impatient. He sitteth vol. n. — 22 330 THE FORUM. between the cherubims, be the earth never so unquiet. — Psalm Thou hast put away mine acquaintance far from me ; thou hast made me an abomination unto them. I am shut up and I cannot come forth. — Psalm lxxxviii. 8. Blessed is the people. — Psalm Ixxxix. 15. Who maketh the clouds his chariot; who walketh upon the wings of the wind. — Psalm civ. 3. Or ever the silver cord be loosed, or the golden bowl be broken, or the pitcher be broken at the fountain, or the wheel broken at the cistern. Then shall the dust return to the earth as it was, and the spirit shall return unto God who gave it. — Ecclesiastes xii. 6, 7. The heart of fools is in their mouth, but the tongue of the wise is in their heart. TIME. Day unto day uttereth speech — night unto night showeth know ledge. Let us, therefore, so number our days, that we may apply our hearts unto wisdom. For wisdom is better than rubies, and all things that may be desired, are not to be compared to it. I will utter dark sayings of old. ENGLAND. The harvest of the ocean is her revenue, and she is the mart of nations. ORNAMENTA RATIONALIA. 334 Do swans flock with ravens, or lambs herd with wolves ? Open thy mouth for the dumb — in the cause of all such as are appointed to destruction. Open thy mouth, judge righteously, and plead the cause of the poor and needy. As for man, his days are as grass, as a flower of the field, so he flourisheth. For the wind passeth over it, and it is gone, and the place thereof shall know it no more. ANECDOTES AND WIT THE BENCH AND BAR. CHAPTER XV. 1. Upon one occasion, when Edward Tilghman, a co- temporary and equal of Lewis and Ingersoll, and a lawyer unequalled upon questions involving title to real estate, was engaged in a very heavy and complicated ejectment, with two colleagues much younger than himself, con trary to rule, he determined to open the cause, and sub mit the evidence in behalf of the claimant. In doing so, he rendered everything so plain, so regular, and so conclusive, that when he read the last paper referred to in his brief of title — he threw it down, and with a smile upon his face, after having so satisfactorily ac complished his task, turned to the Court and jury, and triumphantly exclaimed, "Now, gentlemen, I have done. I have opened my case, I have exhibited my 334 THE FORUM. proofs, and I leave it to my colleagues to lose the cause — if they can." 2. I remember a striking instance of the importance of what is called " action," early in my own practice. A gentleman sought legal redress for one of the deepest wounds that could be inflicted upon his domestic peace. His voice was unbroken — his brow placid — his eye ray- less — his breast tranquil ; his whole soul obviously sleep ing upon the subject of his complaint. From his charac ter, every word that he uttered was believed. But I told him frankly, that if he related his story in the same unimpassioned manner on the approaching trial, it never would be credited by the j jury, as his heart seemed to bear testimony against his tongue. The prediction was realized. He told the story in the same cold and listless way — he was totally unimpeached and uncontradicted ; but, influenced by the ordinary prin ciples that govern the determinations of men, the jury utterly rejected the testimony, and the defendant was acquitted. 3. Two young men called one morning upon Mr. Du ponceau, and one of them said : " Mr. Duponceau, our father died, and made a will." " Is it possible ?" said Mr. Duponceau. " I never heard of such a thing before ! A most remarkable thing, indeed !" " Why, Mr. Duponceau, we thought it was an every day affair." ANECDOTES AND WIT. 335 " I never heard of such a thing before, I assure you." " Well, then, sir, if there is any difficulty about it, we wish your services," at the same time handing him a fee: " Oh !" said Mr. Duponceau, " I think I know now what you mean. You mean that your father made a will, and died. Yes, yes, that must be it." 4. Mr. Duponceau, as is well known, was a very ab sent man, very shrewd and somewhat deaf. One day, in the midst of a cause, he suddenly gathered up his pa pers, and rushed out of court, leaving the Court, counsel, and jury, in mute astonishment. After waiting a few minutes for his return, one of the members of the bar went over to his office to see what was the matter, and to bring him back. Mr. Duponceau was found almost breathless, and apparently much excited. " Have they put it out ?" he inquired of his visitor. " Put what out, Mr. Duponceau ?" " The fire ; I thought they said that the court-house was on fire." " Nothing ©f the kind, my dear sir, has happened. Pray, come back again." " Well, I am out of breath now, and very much ex hausted by my fright. I will be over in a few minutes. Make my apologies to the Court." The visitor departed ; and the learned counsel, who had been unexpectedly caught in a tight place in the trial ofthe cause, looked into some authorities, and came 336 THE FORUM. back to court quite composed, prepared to surmount the difficulty, and proceeded with the cause. 5. Quintilian seems to think that a mean, careless, dirty dress, worn by an accused party, has at times had wonderful effects in his favor. That must depend very much upon the nature of the charge. We remember a case in which a wretched woman was charged with keep ing a house of ill-fame. She appeared before the Court in apparently the most squalid poverty ; and no one could suppose that she had been the recipient of those vast illicit gains with which she was charged. The Court and jury were much impressed in her favor. The next day, however, no doubt under advice, when she appeared, she was richly apparelled in all the colors of the rainbow. This produced an immediate change, and a conviction followed. 6 . Judges and lawyers, in England, it is said, scarcely ever die poor. "Lawyers, among us," says Henry Clay, " work hard, live high, and die poor." But we think it may be said, that litigious clients die poor everywhere. Even success in a doubtful cause, like a prize in a lottery, invites to new chances, and often ends in ruin. 7. Lord Denman, upon the trial of the Queen, intro duced a Greek quotation, said to have been furnished by Dr. Parr, which gave offence to Greorge IV., and, as was believed, stood in the way of his lordship's ANECDOTES AND WIT. 337 judicial advancement. He applied to Lord Lyndhurst to explain this to the king, and to satisfy him that no offence was designed. Lyndhurst promised to do so ; but after waiting six months, acknowledged that he had omitted it, as it was a matter of so much deli cacy. Denman then applied to Wellington, who boldly said, "that the counsel had done no more than his duty, and that he would so represent it to his ma jesty." This was done ; and Denman, shortly after, was appointed Chief Justice of the Court of King's Bench. (1832). 8. B used to say, "that of all the prosecuting deputy attorneys general that he ever encountered, D was the most dangerous, as he always contrived to get from the jury a conviction when he asked it. And his way was this. Lf an important and doubt ful case was approaching, he would contrive to thrust in before it, some trifling misdemeanor — such as an assault and battery, or an indictment for malicious mischief. He would introduce the evidence, and then abandon the case, with a show of great mercy, say ing, ' This is a small matter, it may have resulted from ignorance or accident on the part of the defendant. He is a young man, and we must make some allowance for his indiscretion,' etc., etc. The defendant is, of course, acquitted. Then the important case is called, and, with not half so much to support it, the same pro secutor would tell the same jury that the prisoner 338 THE FORUM. deserved to be convicted — -drawing upon his prior mercy to support his present severity. The jury deem ing him a most liberal man, takes him at his word, and almost without evidence, the defendant is con victed." 9. It is recorded that Sergeant Maynard had such a relish for the old year-books, that he carried one in his coach to divert his time in travel — and said he pre- erred it to a comedy. The late Judge Kennedy, of the Supreme Court, who was the most enthusiastic lover of the law we ever knew, used to say that his greatest amusement consisted in reading the law; and, indeed, he seemed to take almost equal pleasure in writing his legal opinions, in some of which {Bee d v. Patterson, for instance,) he certainly combined the attraction of law and romance. 10. Some twenty years ago, when the old system of bail below and bail above prevailed, Mr. B , suppos ing the defendant in a cause, to be a gentleman, induced a friend to become bail for his appearance in the sum of two thousand dollars. Immediately after this, the de fendant departed for Jamaica, and left his bail in a very awkward position. It so happened, however, that the plaintiff's counsel filed his narr, and took out a rule of reference (instead of suing out the bail-bond,) by which the bail was discharged, and the debt lost. Under the present practice, this difficulty is entirely removed. ANECDOTES AND WIT. 339 11. In a suit brought by Myers Fisher, a lawyer of note, against a person by the name of Buncom, in Ches ter court, for slander, in the year 1774, the defamation having been clearly made out, Mr. M'Kean called some scores of witnesses, not to deny the slander, but to show that his client was such a notorious liar that no man in the county believed any thing he said, and that therefore no damages could possibly have been sustained by the plaintiff. And so the jury found ! 12. It has been suggested that the terse and pungent character of the speeches in Athens was attributable to the Clepsydra, by which orators were governed in their speeches. We have a severer rule with us. With the ancients, they stopped the clock while the documents were read ; whereas, with us, the documents and all are taken into account. 13. The suggestion of the origin of terseness is not a bad one. The telegraph, which was not discovered in their time, and which requires payment for every word;, will also, no doubt, exercise some influence upon ver bosity, if it should not be counterbalanced by the re cent reduction of postage. 14. " Suit the Action to the Word!" — This instruc tion was never more fully carried out than by the late George W B . He was an exceeding ly eloquent man, and of great wit and acuteness. But in argument, if he spoke of a pocket, he thrust his 340 THE FORUM. hand into his pocket; if he spoke of a key, he would rummage his pockets for a full minute until he found a key ; and if, in short, he spoke of any thing within his reach, he would be almost certain to lay his hand upon it. 15. Many years ago, when Mr. James A. Bayard was appointed by C. J. Johns, to defend a person charged with murder, after the case had been submitted, the learned judge decided or charged, that the facts and the law established the charge of murder beyond all reasonable doubt — and either the prisoner was guilty, or he (the judge) was. 16. Mr. Broom, a gentleman ofthe bar, who weighed nearly four hundred pounds, and of great corpulency, applied to the Court for the postponement of a cause, alleging as the reason, an acute pain in the small of his back. "Well," said his adversary, "upon any plausible ground I should like to accommodate Mr. Broom — and the case may therefore be continued at once, if he will tell us simply where the small of his back is." 17. A gentleman died, leaving a considerable estate, and four daughters, among whom it was to be divided. The division of the personal estate proceeded very amicably, until they came to a favorite parrots — all claimed it, and none would give it up. It became at last a subject of bitter controversy, very much to the annoy- ANECDOTES AND WIT. 341 ance of the excellent counsel. They would not allow it to be sold, and taken by the highest bidder. They would not cast lots for it. They would" not leave the question to any umpire. At length Mr. C di rected them to bring the bird to him, and he would settle the unnatural dispute by wringing off its neck. 18. Mr. R tried a criminal case — and lost it. He moved for a new trial, on the ground of insanity of the prisoner. " Your motion is of no use," said the Court. " Where is the testimony upon which you rely ?" " Here it is," said R , turning to Mr. O'N , " he knows aU about it." " I ?" said O'N . " I never saw the man." " Didn't you tell me he was deranged ?" " Yes," said O'N . " When you told me he had em ployed you, I did say he must be deranged. I think the result has shown it." 19. O'Rourke was called to prove insanity in a child. "State, Mr. O'R ," said Judge Kelly, " what expressions you have known used by the child, indicating an unsound mind ?" " Expressions, may it please your honor?" "Yes, expressions — what did you hear her say ?" " I have heard her use expres sions, may it please your honor, which I never heard from anybody who was a thousand years old." 20. " What toasts did you drink at the meeting at Adelphi Hall?" said a lawyer to a witness. "Why, we drank General Pierce and General Washington." " You 342 THE FORUM. drank Pierce first ?" " Certainly we did, because he was alive." "And upon the principle, I suppose, that a living ass was better than a dead lion." 21. A young mechanic called upon counsel to obtain a divorce. The ground was, that his wife wished him to wear a white cravat instead of a colored one, "which," said he, "I cant do; and she is perpetually worrying me." " Does your wife refuse to wash for you ?" said the counsel?" " 0, no," said the client, "she is perfectly willing." " Well, then," said the lawyer, " my advice is, that if she desires it, you should put on six white neckcloths a-day." 22. " What do you take for your cold ?" said a lady to Mr. C . " Four pocket-handkerchiefs a-day, ma dam," was the prompt answer. 23. Mr. M , in the midst of the trial of a case of some moment, before Judge Rush, found that one of the witnesses had absented himself. He appealed to Judge Rush for delay, suggesting that the witness had probably left the court-room upon some call of nature. " Go on with your case, sir," said the judge, " and we shall shortly see whether nature will call him back again — our business at present is with justice." 24. At a bar supper, a gentleman, turning to WiUiam Rawle, Junior, asked whether he had read Mr. Brown's tragedy of Sertorius. " Certainly," said Mr. Rawle, facetiously, "I have waded through it." " Waded!" ANECDOTES AND WIT. 343 said Mr. B., who was present, "you must surely have been over your head'' 25. A gentleman of considerable note, who was addressing a jury, and who indulged freely in chew ing tobacco, in spitting deposited some of the saliva upon his neck-cloth. " Certainly," said Mr. W , "whatever may be that person's pretensions, he cannot expect to rate as a gentleman." 26. This same Mr. W , in rising from his chair suddenly, nearly tore off the skirt of his coat. "Now," said he, turning to a friend, " I surely ought not to complain of poverty, as I carry my rents with me." " Yes," replied his friend, " that is true, but remember they are all in a rear, (arrear) . 27. "Are you going to Mr. N 's fancy ball to night," said one member of the bar to another. " Cer tainly," was the answer. " In what character ?" said the first. " In my own character — that of a gentleman. What will be yours?" "I shall go as Charles the Second," rejoined the first speaker. " You had better," said B , who was standing by, " go as Charles the First, and then you will require no head'' 28. A lawyer who had given himself up to inebriety, but who frequently professed to have reformed, came into court one day, and said to C , " Congratulate me, my dear sir. I have resolved to return to the bar." " Which bar ?" was the answer. 344 THE FORUM. 29. Mr. D , addressing himself to B , ob served, " You have written a play, and presented it to your friends, beautifully bound in cloth; but as you are a lawyer, why did you not cause it to be bound in calf?" "It was out of regard to your skin," was the reply. 30. " Give Mr. I m a seat," said the judge, address ing the crier, at a time when the court room was full, and many of the bar were standing. " Thank your honor, I have a seat," replied Mr. I m, " but I have no chair to put it upon." 31. Mr. R , who was of an old and aristocratic family, turning to a gentleman whose family was but httle known, said to him, " Is this your family coat of arms cut upon your seal ?" " No, sir," was the reply, "it is my own. Let me see yours'.' 32. At a bar dinner, Mr. Sam Ewing, a lawyer and a great punster, was called upon for a song, and while hesitating, Judge Hopkinson observed, that at the best it would be no great matter, as it would be but Sam (psalm) singing. " Well," replied Ewing, " even that would be better than him (hymn) singing." 33. "I have a most contemptible opinion of you," said one lawyer to another. " To be sure you have," was the reply, "you can have no other." 34. "You look sad this morning," said B to A . " It must be the reflection of your melancholy ANECDOTES AND WIT. 345 face," replied the latter. " Poor fellow," rejoined B , "it is, I fear, the only reflection you have ever been blessed with." 35. In the trial of the State of New York v. Frost, for manslaughter, arising out of alleged malpractice as a physician, the defendant introduced some forty or fifty patients as witnesses to his general skill. On the part of the State, all the medical faculty testified. "Now," said Mr. B , who was concerned for the defence, " we have offered you the ocular proof of forty living patients. The State has produced forty doctors, but not one patient. Where, pray, are their patients ? They are among the missing, and before they can find them, they must dig for them." 36. In the same case, Mr. B was opposed by two lawyers, one named Phoenix, and the other Griffin. "Before I have done with these birds of fabulous origin," said he, " I shall endeavor to pluck the plumage of the one, and cut the talons of the other." 37. In a very interesting case of Parker and his wife and three children, who were claimed as slaves, before the court at Mount Holly, New Jersey, Mr. B , after the investigation had proceeded some four or five days, and the claimants were about to close their evidence, upon looking for a deed of manumission, upon which he chiefly relied for the defence, found that it was not so authenticated as to be competent evidence. vol. 11. — 23 346 THE FORUM. It was on Saturday evening. He mentioned the diffi culty to the late Mr. Shipley, who was always the faithful and indefatigable friend of freedom, and re quested him to set off at once for Dover, a distance of more than one hundred miles, in order that the docu ment might be authenticated. " Well, but what is to become of the case ?" said Shipley. " The evidence for the plaintiff will close in an hour, and without this paper you will have no defence." "Leave that to me," said the counsel, " the paper is of no use in its present condition. Be back by Monday morning, if possible, but let no one know your object." Mr Shipley set off at once, and Mr. B immediately started an objec tion to a point of evidence, and continued the argument until the court adjourned; and on Monday morning Mr. Shipley arrived with the document complete." 38. " Are you a relation of Peter A. Browne ?" said a gentleman to David Paul Brown. " Not at all," said the person addressed. "His name has an e final." " Well, what is the difference ?" " Why, the difference is that between a boot and a bootee." 39. The late Mr. Barton rose to address the court, after one of the counsel on the same side had spoken. "We cannot," said the judge, "hear two counsel, except in a capital case." " I am sure, your honor," was the reply, " this is a capital case." 40. "My son is admitted to practice. What course ANECDOTES AND WIT. 347 would you advise him to pursue, in order to success ?'* said Mr. C to a lawyer. " He is a scholar and a gentleman, and all that he will require is composure." " Yes, but how is he to acquire that V "As Peter the Great learned to conquer, by being buffeted and beaten," was the reply. 41. "A gentleman not blessed with the sweetest breath, being sent for by the court, entered into the court room in great haste.j and observed to Mr. I — m, " I have lost my breath in running up stairs." " I am glad of it," said Mr. I — m. "I hope you will find a better one." 42. "Upon what principle is it, that you ask the schoolmaster to be discharged from sitting upon the jury ?" asked Judge Grier, in Hanway's case. " Upon the familiar doctrine of the day," said the counsel, "that the schoolmaster should be abroad." 43. Upon the removal of Judge Tilghman from his house in Chestnut street, the building was immediately torn down, preparatory to the erection of the arcade. While the mechanics were engaged in taking out the windows, a gentleman said to Judge Hopkinson, who was passing at the time: "Why, they are actually gutting the building." " Yes," said the Judge, " you may well say gutting; for the liver went out yesterday, and they are taking out the lights (lights) to-day." 44. "Is the plaintiff in this case your son?" said a 348 THE FORUM. judge, turning to an. Israelite, who was under examina tion as a witness. " No, sir," said the Jew, "he is my son-in-law." " Why," said the judge, " he says he is the son of your wife ; how is it, then, that he is your son-in-law ?" "Because," replied the witness, " he was born eleven months after my absence from my wife. Now, although I deny his paternity, he is still my son IN LAW." 45. M. Marmot, a well-known French cook, being 'examined before Judge Peters, and his examination being prolonged beyond his expectation, anxiously exclaimed : "I have a pheasant at the fire, and it will be burnt." "Let him go," said the judge to the counsel : " in law, you know, damage feasant is not allowable." 46. Mr. B was examined in the case of Cres son, for the purpose of proving that, by the peculiarity of the hair, he could distinguish an insane person from one that was sane. Having finished his testimony, he turned to the opposite counsel, and asked if there were any questions. " None," was the reply ; " but I beg leave to express my thanks for the first practical explanation I have ever heard of the term hair-brained." 47. Two members of the bar, somewhat tinctured with infidelity, expressed themselves astonished that the doctrine of Christianity should be tolerated in this enlightened age. "Is it not remarkable," said B , ANECDOTES AND WIT. 349 who was standing by, addressing a friend, " that men like these, who could never be saved by their works, should deny the authority of a Redeemer ?" 48. "I shall handle your witnesses without gloves," said Mr. A to Mr. B- . " That you may do with safety," replied the latter; "but it is more than I would venture to do with yours." 49. "My client," said Mr. I — m, "has, in this case, been chased through every street in the city." "I doubt," said Mr. B , "whether she has been chaste, in any street in the city. 50. Upon a member of the bar requesting that a jury, who had convicted his client, should be polled, a barber, who happened to be the foreman, declared that it was a personal insult that he would not submit to. 51. Mr. Levy applied to the court for a rule to show cause why a new trial should not be granted. His application was in these words : " I move your honors for this rule, on the ground that John Hunt was ad mitted as a witness for the gaining party. I suppose your honors know John Hunt; — everybody knows John Hunt." The rule was allowed. 52. Upon one occasion, the venerable William Rawle was offered as a witness. The necessity for an oath was dispensed with, and after the examination by the plaintiff's counsel, the court asked Mr. Levy if he had any questions to ask ?" " No, sir," said Levy, " I 350 THE FORUM. have no doubt he will swear and stick to all he has said." 53. Mr. Pinckney was very fastidious in his orthoepy and choice of words. It was he who introduced at Washington the pronunciation of lien, for lem, which involved Mr. Peters, who was a great imitator of Mr. Pinckney, in the following absurdity : " If," said he, " the doctrine of the opposite counsel be correct, his lion (lien) will eat up the entire house — bricks, mortar, and all." 54. The late Judge Pettit, while District Attorney, was prosecuting a criminal case of great importance, in which he introduced an accomplice as a witness. In the course of his argument, while he admitted that there might be some objection to the witness, he pledged him self still to show that he was right in the main. " But," said Mr. B — : — , who was engaged for the defence, " that will not be sufficient. You must show that he is right in the tail (tale), too." 55. In the case of the United States v. Harding, in in which Mr. Rush and Mr. Pettit were engaged for the prosecution, Mr. 0. Hopkinson, in opening his defence to the jury, said that, " although the case came in with a Bush, it at best was but a Petit affair." 56. "How did you like my opinion this morning, in the case of The Nereid?" asked Judge Washington of Mr. Pinckney. "It was an able opinion," said the ANECDOTES AND WIT. 351 latter, " but you used one word that was not English — jeopardise. Jeopard, is the word." 57. In the case of Wynkoop v. Pennsylvania Medical College, Mr. Phillips, the defendants' counsel, stated that his clients were distinguished lights of the medical profession. " I don't doubt it," was the reply ; " but I desire to snuff those lights, that they may burn brighter in future." 58. A very dashing gentleman entered Mr. R 's office, dressed in the first style, and with hair powdered and curled. When passing out, Mr. R observed : " I thought he bore with him all the perfumes of Ara bia, but they proved to be those of Jamaica." 59. A client said to his counsel, after the judge had charged : " Well, we may go home now ; for the case rests entirely on the conscience of the jury." " On their stomachs, you mean," was the reply. " Didn't you see them filling their pockets with gingerbread, as they went to their room. Depend upon it, the man who has laid in the largest stock will rule the verdict." 60. A German jury, in a case of fornication and bas tardy, brought in a verdict of manslaughter. 61. Judge P , upon the trial of a cause, had some knotty points of evidence presented to him — one of the counsel strenuously insisting that the testimony was admissible, and the other, that it was not. Many books were cited on both sides. At last the Judge, losing 352 THE FORUM. his temper, exclaimed, " How is this matter to be de cided? you say one thing, and your opponent says another ; and your authorities are about equally contra dictory. Why, Mr. P , do you vex the Court with these knotty questions?" "I thought," replied Mr. P , in a very unsophisticated way, " that courts were appointed to decide knotty questions." 62. An irritable and obstinate judge gave great offence to Mr. H , by refusing attention to his argument, upon which, the lawyer turning to a friend, observed, "That judge has every quahty of a jack ass — except patience." 63. "What is that you have under your cravat?" said B to I , (the latter being rather slovenly.) " My shirt, to be sure," said I . " I know it is your shirt," responded B , " but which end of it ?" 64. A son of Judge Peters having a difference with the farmer on his father's place, received a severe blow, inflicted with a jug by the farmer. The next day, while at a family dinner, a note was handed to the Judge, bearing the superscription, "Jug Peters ;" upon which, he immediately handed it to his son, stating, that it certainly must have been intended for him. 65. A Virginia lawyer once objected to an expres sion of the Act of Assembly of Pennsylvania, that the State-house yard should be "surrounded by a brick wall, and remain an open inclosure forever." "But," ANECDOTES AND WIT. 353 said Judge Breckenridge, who was present, "I put him down by that Act of the Legislature of Virginia, which is entitled, ' A Supplement to an Act, entitled an Act to amend an Act making it penal to alter the mark of an unmarked hog.' " 66. A lawyer, of more practice than classical learning, was expounding a statute, when he was interrupted by the Judge, who said: "Mr. M , you ought to under stand that law, for you were in the Legislature, and assisted in its passage." To which the lawyer replied, " No, may it please your honor, I never gave my veto for the law, but was unanimous against it." 67. In a case in Admiralty, before Judge Peters, the chief complaint of the men against the captain was, that the bread furnished to the sailors was sour and musty, and not fit to eat. A biscuit was brought into court and handed to the Judge, as a sample of the fare. After the evidence was finished, the counsel was proceeding to address himself to the Court, when, upon inquiring for the biscuit, he found that the Judge had eaten it. That, of course, decided the case. 68. Upon a reception of the Marquis Lafayette in Philadelphia, during his last visit to this country, Col. Forrest, one of the Revolutionary officers, upon being presented, burst into tears. Upon which, Judge Peters, who was standing at the side of the Marquis, dryly observed : " Why, Tom, I took you for a Forest tree, but you turn out to be a weeping willow." 354 THE FORUM. 69. Mr. B , arguing an important case in the Oyer and Terminer, was, in the midst of his speech, astonished to find one of the Associates (Judge Morton,) fast asleep. The counsel, raising his voice, and striking his hand with violence upon the desk, roused the Judge from his slumbers, and then publicly apologized for having disturbed his rest. "I should beg your pardon," said the Judge, " but really your voice is so sweet, it always lulls me to repose." 70. A person of gigantic proportions was called to the witness stand, and upon cross-examination, Mr. B asked, " What is your busmess ?" " That is none of your business," said the witness. Being told by the Court that he must answer, he turned round to the lawyer, and said : "Well, sir, I am a baker, and what have you to say to that ?" " Why," said Mr. B , " only this ; that although you are the largest, you are far from being the best bred man in town. 71. A lawyer engaged in a case before Judge Peters, tormented a witness so much with questions, that the poor fellow at last cried out for water. " There," said the Judge, " I thought you would pump him dry." 72. A sheriff makes the following return of the ser vice of a writ : " The deponent saith, that he knocked three times at the door of defendant, but could not obtain admission, whereupon this deponent was pro ceeding to knock the fourth time, when the defendant ANECDOTES AND WIT. 355 pointing a musket or blunderbuss at the deponent, loaded with balls or slugs, as this deponent believes, said, that if said deponent did not instantly retire, he would send his (the deponent's,) soul to hell; which this deponent believes he would have done, had not this deponent precipitately escaped." 73. Judge B , of the District Court, came hur riedly upon the bench, but unfortunately a quarter of an hour after the appointed time. The jury and par ties were all in waiting. " I beg your pardon, gentle men," said the Judge, "for being so late, and I would fine myself, but that I have a good excuse — I have been unwell this morning, and besides, gentlemen, the town clock is out of order." " That is the clock," said Mr. B , "by which you fine the jury?" "Not," said the Judge, "since she has been out of order." " It is a happy thing, may it please your Honor," re plied Mr. B , "that the clock and the Judge should get out of order at the same time — as one excuses the other." 74. The same Judge — who was in the habit of send ing to market by the crier — upon one occasion, being about to charge a jury, sent the crier for a shad for his family. He then began his charge : " I will dissect this case for you, gentlemen of the jury — eviscerate it." And turning to the crier, who was just leaving the room on his mission, " And see that the guts are all taken out !" 356 THE FORUM. 75. In a great case of The Commonwealth v. Boyer et al., for a conspiracy, Mr. B , of Philadelphia, then a very young man, was concerned for the State ; Mr. Buchanan, Mr. Irvine, Mr. Biddle, Mr. Baird, and others, for the defence. Mr. Buchanan, who closed the argument for the defendants, animadverting with some severity upon the want of discretion on the part of his youthful adversary, and comparing him to the country man to whom Jupiter gave a goose that daily laid a golden egg, but who, not content with his gradual in crease of wealth, killed the goose that he might obtain all the golden treasure at once, and thereby lost it all. " This," said Mr. B , in reply, " is an excellent story ; it wants but one thing to recommend it to favor — and that is, application to the cause. But notwithstanding this, the learned counsel may rest assured it has left a deep impression upon my mind, and in all time to come, such is the power of association, I shall never see a goose without thinking of him." 76. In the year 1810, a young member of the bar, just admitted, was spoken to by a gentleman of fortune, who asked him how he would like to argue a case in the Supreme Court at Washington. This was a tempt ing intimation, and earnestly caught at, as it was cal culated at once to lay the foundation for a professional fortune. The young lawyer was employed. The case was a very important one — the first case on the fist of the Court, and the term was to commence in three ANECDOTES AND WIT. 357 days. The young man called upon his colleague, Mr. Lewis, who gave him all the information he could — furnished the notes of his argument; — the paper-book, etc. ; and full of trepidation, the young man and his learned colleague proceeded to Washington. The cause required months of preparation; but as the youth had entered upon the task, there was no time, however he might regret it, to retract. The counsel op posed were Richard Stockton, D. B. Ogden, and other eminent men, who were ready and eager for the con flict. The Court at that time consisted of three judges. It so happened that Chief Justice Marshall, on his way from Richmond, met with an accident which fractured his collar-bone. Judge Johnson, of South Carolina, was prevented from attending court by sickness in his family. Of course, the Court held no session. The case went off for a year, at the expiration of which time our young friend was abundantly prepared — argued his case with signal ability, and with the entire appro val of the Court, as well as of his learned colleague, and . returned to the city, not only decked out in golden opinions, but bearing in his purse a golden fee of one hundred guineas — " Audentes fortuna juvat." 77. Judge Burnside held a court at Doylestown, where he was engaged in trying an interesting will case. Upon one of the witnesses to the will being called, he refused to swear. The judge told the clerk to affirm him. He refused to affirm. " What, in the 358 • THE FORUM. name of Heaven, will you do ?" said the judge. " No thing" said the witness. "What," said the judge, " will you, a subscribing witness to the will, refuse to prove it, and thus jeopard the will ? I'll commit you for contempt." " You may do as you please," was the reply, "but I will not be qualified." "Now, sir," said the judge, " I see what you are after ; you wish to be made a martyr of by being sent to prison, but I'll disappoint you. I consider you insane — and direct the Prothonotary so to make an entry upon his docket. I will then take secondary proof of the exe cution of the will. And let me tell you further, that if your wife apphes for a commission of lunacy against you, I will grant it to her at once — for you are as mad as a March hare." 78. One of the pleasantest features in the practice, in Delaware, is the agreeable intercourse that prevails among the counsel at their mess. We speak of New castle now, and beheve that is a fair specimen of the professional habits or customs throughout the State of Delaware. When I was invited to their mess, after the cloth was removed, Mr. B , who presided, called for the Digest of the Laws of Delaware, which, hke most Digests, was in alphabetical order. He then open ed the book, and said, " C," that being the first letter on the page which he opened. He then passed the book round the table, and each member of the company opened it, until at last some unlucky one opened ANECDOTES AND WIT. , 359 at Z, when there was a general laugh, and the chair man called upon the unfortunate man to " call in the wine" — which was accordingly done. When the stock was exhausted, the same ceremony was repeated, and thus the table was abundantly supplied. Invited guests are never permitted to take a chance in this agreeable but hazardous, and somewhat expensive lottery, though they share in the prizes. 79. "Is your client," said Judge R , addressing Mr. B , " conscientious against pulling off his hat in court?" "Ask him that question yourself," said B . " I am neither the keeper of his conscience nor his hat." "But," said the judge, "you might ad vise him." " I am here," replied the lawyer, " to advise him in his legal defence. His heavenly defence I leave to himself, or to you, sir, if you choose to take a part in it." 80. A member of the bar, who was remarkable for his irritabUity, and consequent disposition to quarrel with every one who ran counter to his views, upon one occasion declared in the presence of a number of his legal friends, that he never retired to his bed at night without making his peace with all mankind. "No doubt," said Mr. B , who was standing by, " you are entirely sincere, but although I know you to be a very industrious man, I am actually astonished at the labor you must go through every night, before you be take yourself to your pillow." 360 THE forum. 81. "Has it been thirty years since you and I argued the case of McCrea v. Dickerson ?" said a law yer to Judge K . " I am afraid it has been," said the Judge. "Your Honor should never be afraid of that which is past," was the reply, " only the present or the future." 82. Mr. R having used a term of some reproach towards his antagonist in the course of an argument, the latter promptly asked him what he meant. "I speak," said Mr. R , " in the most offensive sense." " That is no answer," was the reply, "for all who know you, know that you always speak in an offensive sense." 83. Governeur Morris, whUe the surgeons were am putating his leg, observed his servant standing by, weeping. " Tom," said Mr. Morris, " why are you crying there ? it is rank hypocrisy — you wish to laugh, as in fu ture you'll have but one shoe to clean, instead of two." 84. Upon the trial of Eldridge, in which the main question was that of identity, Mr. B , who was for the defendant, in discussing the question, said, that the clerk of the bank had stated that the color of the hair of the individual who presented the check, resembled his own, (the witness's.) " But," said Mr. B , " that still affords us no light, inasmuch as you all saw that the witness wore a wig ; and although it was his own hair by purchase, to speak technically, it was not his by nature or descent." Mr. I , who was one of the ablest advocates that the Philadelphia bar ever ANECDOTES AND WIT. 3Q1 produced, when he came to reply, rebuked his adver sary, for having relied upon his fancy for his facts, and told the jury he had sent for the clerk, who would be here presently, and who would satisfy the jury that he did'nt wear a wig, and thereby remove even this flimsy reliance, which the ingenuity of the counsel had suggested ; and in which there was more wit than wis dom. Just at that moment the clerk entered. " Come forward," said Mr. I , addressing him in a very triumphant way, " and tell this jury whether you wear a wig." " Certainly I do," said the witness, pulling it off, and thereby producing a laugh, and turning the tables against the learned advocate. 85. Mr. Biddle and several other members of the Philadelphia bar, were members' of the Convention which sat in this city about fifteen years ago, to amend the Constitution of Pennsylvania. About the time that the session of the Convention in Philadelphia began, the question was raised in the District Court at the calling of the trial list, what should be done with cases in which the members of the Convention were engaged as counsel, whether they should be con tinued or marked for trial. The members of the Con vention asked that they should be continued — the opposing counsel, that they should be put upon the trial list. After several had spoken upon the subject, Mr. Biddle observed to the Court, that these cases vol. il — 24 362 THE FORUM. should be continued in compliance with the maxim, " conventio vincit legem." The cases were continued. 86. Judge Peters being asked to define a captain of a company, said, it was one man commanded by a hun dred others. 87. He also said, when asked what was meant by civU, that it was something that was not military. And when inquired of, what was meant by mUitary, he replied, " That which is not civU." This has also been attributed to TaUeyrand. 88. Upon a lawyer's observing, in the course of his speech, that his chent had remained in Ireland a whole month an entire stranger, Mr. B observed : " In that you must be mistaken, sir, no man ever remained a month in Ireland as a stranger." 89. "What do you understand from the terms, " The schoolmaster is abroad ?" said Mr. S . " I understand," said the person addressed, "first, that instruction is disseminating itself throughout the land ; and secondly, that the scholars are at liberty to do very much as they please." 90. " I am astonished at your Honor's decision !" said a young lawyer to a judge who had decided against him. " This remark cannot be permitted," said the Judge, and an apology wUl be necessary on your part." " Permit me," said the senior counsel, " to offer an excuse for my young friend — he is new in these matters, and, ANECDOTES AND WIT. 353 when he has practised as long before your Honor as I have, he will be astonished at nothing." 91. General Knox, who was a corpulent man, was engaged in conversation with Tench Coxe, who was very slender. They stood at the entrance of a door, and impeded the passage of Judge Peters; — who, waiting a whUe, at last pushed between them, exclaim ing, " Here I go, through thick and thin !" 92. Judge Peters asked the late J. W. Condy for the loan of a book ; the latter said, " With pleasure, I will send it to you." "That," said the judge, "will be truly (Condy-sending) condescending." 93. The same judge once observed to a Mr. David son, who was a very taU man, " You must have great responsibility resting upon you." " How so ?" said Davidson. "Because," said the judge, "nine-tenths of mankind are compelled to look up to you." 94. This witty judge, upon seeing a wagon pass, which had very thick iron upon the wheels, observed, " That it must have come a long journey, for it seemed so well tired." A gentleman who was present, who did not himself take the joke, still obsenong the laugh it produced, undertook to repeat it, by stating to a com pany as an admirable matter of the Judge's, " That, on seeing a wagon pass with thick iron wheels, he had re marked, ' that it appeared to have traveUed far, as it was so much fatigued' " He was much surprised at 364 THE FORUM. the very different effect produced by the original re mark and its repetition. 95. "So," said C , "poor M is dead," (speaking of a famous brewer.) " My dear sir," said the person addressed, "what carried him off?" " The bier," was the reply. The person who thus obtained information, afterwards circulated the story, that M had died of drinking too much beer. 96. Upon the marriage of Miss WUling to Mr. Hare, Judge Peters, having been called upon for a toast, gave, "The maid that was Willing before she had Hare!' 97. Governor Pope, of Kentucky, who had lost his hand, was one of the counsel engaged for MUton Alex ander, upon a charge of murder. " What do you think of the Governor's speech ?" said a friend to Mr. W . " Why, I think," said the latter, " that he is an off-hand speaker." 98. Judge Parsons, of Massachusetts, was a great sloven — and Harrison Gray Otis was exceedingly choice and cleanly in his apparel. " Judge," said Mr. Otis, "how often do you change your linen in a week ?" " Why, once," said the Judge. " Why, you must be very dirty." " How often do you change ?" said the Judge. " Every day," was the answer. " Then," said the Judge, "you must be more dirty, to require a change so often." ANECDOTES AND WIT. 3g5 99. Mr. A. J. DaUas, who was for a long time District- • • Attorney of the United States, in addressing Judge Washmgton and Judge Peters, used the word Honor, instead of Honors, repeatedly, — until, at last, Judge Peters, turning to Judge Washington, said, " You must not take offence at the manner of the counsel's address. The fact is, that Mr. Dallas has been so much accus tomed to address me, when sitting alone, that he for gets that Judge Washington is upon the bench." 100. Judge Peters, sitting alone to hear a law argu ment, after a very able discussion turned to the coun sel and said, " The Court is divided in opinion." 101. Judge Peters used to say, "I am the District Judge, — but Judge Washington is the strict judge." 102. When a gentleman congratulated Judge Peters upon Congress having passed an act to increase the salaries of the district judges of the United States — " I don't know," said the judge, " that it wUl be of any advantage to me. Don't you perceive that the act pro vides for the increase of the salaries of certain district judges, whereas it is known that I am a very uncertain district judge." 103. Judge King, who, though an able man, was by no means remarkable for choice language, in charging the jury, told them " that their verdict must depend upon the question, whether the plaintiff or defendant had the beneficiary interest ?" " I doubt much," said 366 THE FORUM. one of the counsel, " whether one of the jury under stands the term beneficiary." " I presume," said the judge, " every man understands it who understands English." " I understand English," said the counsel, " and I do not understand the word in its application to this case." " You mean to say," observed Mr. I , who was standing near, " that you do not understand King's English." 104. Mr. B mentioned to a friend, that one of the highest rough compliments he had ever received, was upon one occasion after the elder Mr. Ingersoll and Mr. Rawle had spoken. He rose to reply, — when he dis tinctly heard a ship-carpenter on the jury, say to his fel lows, " Now comes Broad- Axe !" " That was a high com pliment, truly," said his friend, " but I recollect one that eclipses it. I had been engaged in a cause in New castle against Mr. Bayard and Mr. Clayton, who had the best of the case, and of the argument. Finding that the case was in great danger — and my laurels too — and that I could not save the first, I determined, if pos sible, to preserve the last, and made one of my most flourishing and enthusiastic ad captandum speeches. The effect quite equalled my expectations ; for, as I left the court, the avenue was fined on both sides, and a burly-looking personage exclaimed, in a stentorian voice, ' Make way for the Thunderer.' " 105. Mr. Sergeant, who had long been at the head of the Whig party in Pennsylvania, and, as Sancho Panza ANECDOTES AND WIT. 357 said, wherever he was, " was the head of the table," was informed by a younger politician, that a great fes tival was to be given to Daniel Webster. " Why," said Mr. S , " I have not heard of it." " No," said the informer, "it was thought not politic to invite any who were considered party hacks." " Party hacks !" replied Mr. Sergeant, his fine eyes beaming with intelligence, "I have carried the party a long time, and I may be considered a hack in one sense, but I never took hack hire." 106. A jury was about to be sworn to try a case of assumpsit, when Mr. Peters approached Mr. B , and said — " My plea is set-off, but I have omitted to give you the ten days' notice that the rules require — but the omission is nothing among gentlemen." " Cer tainly," said B , " and the instrument upon which I have sued is under seal, and the action ought to have been debt, but, as you say, 'this is nothing between gentlemen.' " 107. A case being opened upon a promissory note, (the signature of the maker being denied,) Mr. Bra- shear was about to prove the note, when he perceived there was a witness to the note whom he had not sub poenaed. Mr. Phillips, the opposite counsel, insisted upon the regular proof, whereupon Brashear said he must submit to a nonsuit. "Never despair," said Brown, " call the witness." This was done, and the witness answered. 108. In a case of life or death, Mr. B , in an 3gg THE FORUM. excited appeal to the jury, after describing the sacrifice made by a mother to preserve her child, exclaimed, — " Oh, Holy Nature, thou dost never plead in vain !" At this instant, one of the jury rose, and, in a most cold blooded manner, asked permission to go out. This was the end of pathos. 109. Upon another occasion, in Reading, the same counsel was making a highly figurative and classical speech, when several of the jury appealed to the judge in German to interpret the testimony — when it was ascertained that but one man on the jury could speak English. 110. " This man," said Mr. L , turning to a de fendant, "with the Act of Assembly in one hand, and the Bible in the other, wrote this malignant libel." "' With his teeth, I suppose," said the adverse counsel. 111. During the display of the tri-color, upon La fayette's arrival in Philadelphia, a gentleman with a very red nose asked Mr. B if he had mounted the tri color. " Yes," was the reply ; " did you ?" " Cer tainly," said the former. " What an extravagant fel low you are," said B , " you should have bought the blue and white, and relied upon your nose for the red." 112. A gentleman being found rechning upon a sofa, in his office, a friend inquired if he was sick. " 0 no," said he, " I am only taking a requiem." ANECDOTES AND WIT. 369 113. "All the judges of the United States follow the Pennsylvania decisions as a beacon," said Mr. . " It is no wonder, then," said B , " that they are so often wrecked, or run ashore." 114. The late Judge Rush, who was a man of great mental power, of great energy, but still great simphcity of character, towards the close of his judicial career, was put in nomination for sheriff. Upon a visit to the Philadelphia Library about this time, we met the Judge there, engaged in examining the files of some ancient journals, and we inquired what he was hunting for, which gave rise to the following brief dialogue : Judge. — "I am looking for some early literary produc tions of mine, which have been generaUy ascribed to Dr. Franklin. They may be serviceable to me at the approaching election for sheriff." B . — " But why, at your time of life, will you leave the bench, which you have graced so many years I Judge. — " I am tired of it, Mr. B ; and although President, I cannot but feel degraded and disgusted by being overruled at times by my two associates, who know nothing ofthe law, and smoke common cigars." B . — "You have lately had a lawyer for an associate, Mr. I m ; but, it is true, he did not re main long." Judge. — " Only nine days — a mere nine days' won der. I promised myself some relief from his appoint- 370 THE FORUM. ment, but he rather added to my annoyance. He afforded me no aid — he never spoke whUe he was on the bench." B . — "I think you must be mistaken in that — for I heard him speak once myself, and pretty authori tatively." Judge. — " You must be in error, sir." B . — " No, sir. Do you not remember that upon one occasion, soon after taking his seat, he turned to the tipstaff, and exclaimed, ' Kick those dogs out of court.' " Judge. — " Right, sir — you are right. And don't you remember, that I immediately said to the crier — ' Turn the dogs out of court !' laying the emphasis upon the word turn, to express my abhorrence of such in humanity ?" 115. Judge Rush was a credulous man, though of the most sterling morality. WhUe holding a court, some forty years ago, at Westchester, Mr. D , a member of the bar, and a great wag, arrived at the court about an hour after proceedings had commenced, and was called upon for an explanation of his want of punctuality. "The facts are these," said he. "WhUe on my way to court, passing through a neighboring wood, what was my astonishment to encounter a creature in the form of a man, entirely covered with hair. Imme diately upon seeing me he ran up a tree, and perched ANECDOTES AND WIT. 371 upon its topmost branch, and there chattered and made all sorts of grimaces at me ; and, in short, so fixed my attention, as to drive everything else out of my me mory." " Most remarkable," said the judge ; " quite sufficient, undoubtedly, to account for your absence — most mar vellous ! No doubt one of the Orang Outang species, that has in some unaccountable manner made his way into this region." The case proceeded. This was, of course, all a fic tion, framed to impose upon the judge's credulity ; and Mr. D having mentioned it to the members of the bar, it reached the Judge's ears. " Very well," said the Judge, " he has imposed upon himself more than upon me. He has violated the truth, and let him never ven ture to come before me as a witness, for I would not beheve him on his oath." 116. A saUor having been tried before Judge Wash ington for manslaughter on the high seas, the jury, con trary to the charge, brought in a verdict of guUty. Whereupon, the judge said, " I cannot for a moment bring myself to believe that the defendant was art or part in the transaction. You have, however, found him •guUty, and I sentence him to a fine of one dollar, and imprisonment for one day." 117. Mr. Hopkins, of Lancaster, Pennsylvania, was an able lawyer, but perhaps the most deliberate speaker that ever appeared at the American bar. Mr. Talbot, 372 THE FORUM. of Kentucky, on the contrary, was a most rapid and hurried speaker. This led Judge Washington, upon one occasion, to observe, that he would ask no longer lease of life than whUe Mr. Hopkins was delivering one of Mr. Talbot's speeches. 118. Robert Morris, the Recorder of the city of New York, was upon the point of pronouncing sentence upon a woman for larceny, prior to which he asked what she had to say to mitigate her punishment. Not a word was uttered, but her httle boy, about ten years of age, sprang from her lap, and falling on his knees, held up both his hands to the judge. The kind-hearted Recorder was overcome by the appeal, and at once dis charged the prisoner. 119. Hon. Richard Riker was at one time Recorder of the City of New York, and upon the invitation of the Inspector of the Prison, he was about to visit the jaU at BlackweU's Island. He complained, however, of not being shaved, when he was told he could be shaved by a prisoner, who was an excellent barber. After the Judge had been lathered, and the razor applied to his throat, upon looking up, he found he was in the hands of an Ul-looking fellow, who, but a week before, he had sentenced to seven years imprisonment — when the fol lowing dialogue ensued : — Judge. — "What is your name, my friend, and what are you here for?" Prisoner. — " You ought to know my name, and you ANECDOTES AND WIT. 373 certainly know why I am here, as you sentenced me, yourself," said the prisoner, scowlingly. Judge. — "Well, you look like a clever fellow, and I think I shall recommend you to executive clemency for pardon." The Judge, by bis promise, got safely through the operation, but never kept his promise, extorted as it was, by duress per minas. 120. "I don't hke your definition of a dog," (the male of b — h,) said Mr. B to Judge Bouvier, who had just published his Dictionary. "What would you suggest, in place of it ?" said the Judge. " Son of a b — h," was the answer. <*- 121. Dr. B , a distinguished clergyman, called upon Mr. B , and stated that Mr. R , one of the officers of his church, had been robbed of his silver during the previous night, by some burglar. " Now, sir," said the reverend gentlemen, "what advice would you give to me, for Mr. R ." " Well," said B — r— , " my advice would be, what you as a minister of the gospel, might more appropriately advise. That Mr. R should, in future, lay up for himself ' treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal.' " 122. A young girl was called up on the judgment- day of the Sessions of New York, to answer to an in dictment. She pleaded " guilty." The humane judge directed her to reconsider her plea. She repeated it, 374 THE FORUM. saying she was guUty — that she wished to be impri soned; and emphaticaUy added, "This is the second time of my being accused of felony ; the first time I was innocent, and was convicted. I served my time out — my character was blasted — everybody shunned me — the world is nothing to me, and I desire to retire to my cell, and there to hide myself forever." 123. The late John C. WeUs, who, though a respect able lawyer, was a most tiresome speaker, many years ago was engaged in a heavy mercantile case in the Circuit Court. The jury was made up of the most intelligent merchants — Robert Wain, Sims, and men of that sort. Mr. Wells spoke for an entire day, and was to resume the next day. In the interval the jury complained to everybody of the sufferings to which they were condemned, and next morning at the opening of the Court the court-room was crowded by merchants, for the purpose of seeing a man who could speak two entire days. Thus encouraged, Mr. Wells occupied the se cond, and in short, did not finish his speech untU the close of the third day. But he never had a chance of speaking in a mercantUe case again. 124. "Young gentleman," said Judge Rush to Mr. M — n, who was defending a case of felony, " there is no such evidence before the jury as that which you have quoted from your notes." "I say there is, may it please your Honor." "You are mistaken," said the Judge. '"Gracious heaven," exclaimed the lawyer, ANECDOTES AND WIT. 375 " has it come to this — that a judge shall control coun sel in an important criminal cause !" " Young man," interposed the Judge, " The Court does not sit here to listen to blasphemy, and if you repeat this, we will commit you." 125. When Mr. Williams was appointed United States Judge for the territory of Iowa, he was often compelled to hold his court in the open field. In criminal cases the prisoner was fastened to a tree — the jury seated on the ground, and the Judge placed upon the top of a hogshead. On one of these occasions the head gave way, and the Judge, in the midst of his charge, suddenly disappeared. 126. The same gentleman, before he reached judi cial dignity, was defending a client in the interior of Pennsylvania, against the claim of a quack doctor, (who professed every thing and knew nothing,) and who had instituted a suit for surgical services, and had marked the suit to the use of another, in order to be come a witness. The following was the cross-exami nation : — Counsel. — " Did you treat the patient according to the most approved principles of surgery ?" Witness. — " By all means — certainly I did." Counsel. — " Did you decapitate him ?" Witness. — " Undoubtedly I did — that was a matter of course." 376 THE FORUM. Counsel. — "Did you perform the Csesarean operation upon him ?" Witness. — "Why, of course, his condition required it, and it was attended with great success." Counsel. — " Did you, now Doctor, subject his person to an autopsy?" Witness. — " Certainly, that was the last remedy adopted." Counsel. — "Well, then, Doctor, as you performed a post mortem operation upon the defendant, and he sur vived it, I have no more to ask, and if your claim will survive it, quackery deserves to be immortal." 127. While Mr. B was speaking at 2 o'clock in the morning, in a case of murder, his chents, whom he was defending, sat on each side of him fast asleep. Upon his attention being invited to this matter — he observed, turning to the jury, " The innocent can always sleep — for they are always secure." 128. A commission was issued to Canton, in a case in which a Hong merchant (Houqua), was plaintiff. The only cross-interrogatory ran thus : " What have you to do with the case ?" Upon the return of the commission, the answers of the witness fully supported the plaintiff's claim ; but, when he came to the answer to the above question, he destroyed all that he had previously said, by answering, " I have a great deal to do with the case, for I am entitled to one-half of the ANECDOTES AND WIT. 377 amount recovered." Of course, the evidence was re jected, and plaintiff nonsuited. 129. Judge B was engaged in trying a case having relation to a quantity of hay which was claimed by both plaintiff and defendant. The defendant's counsel moved, before proceeding to address the jury, for a nonsuit. "Why didn't you make the motion before ?" said the Judge. " Because," replied the coun sel, " I thought your Honor might be hke Issachar's ass, divided between two bundles of hay." 130. A person when called upon the stand as a wit ness, and examined upon an occurrence of some ten years past — stated, truly, no doubt, but to the surprise of every one, " that he was thirty years old, but that, in cutting down a tree, a few years ago, it fell upon him, and so injured his head, that from that moment he lost all memory of everything that had previously occurred." He was tested in every way, but in no instance did he recollect any event antecedent to the accident. 131. Mr. Moses Levy entered a caveat against a will, for a disinherited son. The party caUed a score of wit nesses, to show that the father was utterly insane, and the case was considered hopeless for the defence; when Mr. Thomas, being called upon to support the will, said " he had but one witness," — which excited some surprise. However, the witness was caUed. He was a lawyer of the highest respectability, and his statement ran thus : " I knew the testator. He called vol. 11. — 25 378 THE FORUM. upon me on the evening of the day on which this wUl bears date, and entered into conversation with me, which continued several hours. He talked upon various subjects, and with great intelligence, and very much to my satisfaction. At last, rising to take his leave, he said, ' I ought, Mr. Bayard,, to explain my reasons for having so long trespassed upon your time. They are these : I have this day executed my will, disposing of my estate, and disinheriting my son Ralph. Now, he is so abandoned in his principles, that I am sure he will attempt to set aside my will, probably on the ground of insanity ; — what I ask from you is, that, should he do so, you will attend court, and express your opinion of my sanity.' " 132. Mr. Duponceau, (afterwards celebrated as a man of great learning,) was through life very near-sighted, and absent of mind. During the Revolutionary war, at the battle of Monmouth, he was found leading on a body of the British forces against his own countrymen, and never detected the error untU he was taken prisoner by the very men that he imagined he was commanding. 133. The same gentleman, at the time ofthe impeach ment of Judge Chase, at Washington, was on his way with a number of his brethren to attend the trial, but, instead of waiting for the boat to cross the Gunpowder River, he walked directly into the stream, and his life was luckily saved, by Mr. E. Tilghman seizing him by the collar before he got beyond his depth. ANECDOTES AND WIT. 379 134. Mr. B complained to the judge of the Court of , of the postponement of a case. The judge, however, continued it, against his objection; upon which, Mr. B said, "I think it probable this case will never be tried, except in the court above." " That is a court," said the judge, " in which you may not be permitted to plead." " Very likely, Sir," replied Mr. B ; " but you will be compelled to plead, and lustUy too, if you hope to escape condemna tion." 135. Blunders of the Press. — In the case of the Orange riot, Mr. I , in describing the attack of the defendants upon the Hall during a festival, ex claimed : " They approached like a body of living caissons, all armed with stones." In printing the speech, the compositor made it read, "like a body of living capons, all armed with stones." 136. In the speech of David Paul Brown, at Mount Holly, in describing the condition of the defendant, he said: "You behold him, abandoned and desolate, wan dering at the hour of midnight along the banks of the Delaware, like a hapless ghost upon the Stygian shore" — to which the printer adds, " without a resting-place for the soles of his feet." 137. In an argument in the Circuit Court, the coun sel for the prosecution, whUe speakmg, threw himself into the most crooked and ungainly positions imagina ble, and finally placed his leg on the table. His ad- 380 THE FORUM. versary expressed his surprise, and asked him what was the matter? "I have got the spinal disease," said the speaker. " If you will substitute an r for the n, I should understand it — you mean spiral disease, I should think." 138. "I heard you," said a gentlemen of the bar to another, who had not much busmess, "as I passed your office, apparently delivering a speech in your office, while surrounded by your chUdren." " That," said B , who was present, " is his only mode of trying his issues." 139. In the case of Mrs. C , Mr. L ex claimed : " Unhappy woman, left to buffet with the storms of a tempestuous and cruel world, deprived as she is, of her husband, who has gone in that bourne in which, as a great lawyer once said, no man ever comes back from." This is excusable ; as it was once said by Mr. P , who was a bright scholar, that a witness who had spoken, "deserved, as Shakspeare says, to be thrust into outer darkness." 140. Upon one occasion, a young man who had lost a cause in the Criminal Court, handed in his reasons, and moved for a rule to show cause why a new trial should not be granted. The judge glanced his eye has- tUy over the reasons, and throwing them down, told the counsel there was nothing in them, and that he would'nt grant the rule. An elder member of the bar privately ANECDOTES AND WIT. 381 remonstrated with the judge, and observed to him, that the young man appeared to be mortified, and that it would, perhaps, have been better to have allowed the rule, and heard the argument, if even finally, the new trial should not be granted. " But," rephed the Judge, "the reasons actually amounted to nothing." " Suppose it were so," rejoined the counsel, " motions of this sort often amount to nothing, as you, yourself, know. You were an eminent lawyer before you were placed ,upon the bench, yet, in the case of Early, in which your client was convicted of murder, one of the reasons assigned by you for a new trial, was, that in arguing the case of the defendant, you had put some of the jury to sleep, yet the Court entertained your motion, and I defy any man to suggest a poorer reason than that." The Judge laughed — admitted the truth of the statements — and reformed his practice. 141. An interesting case of a Quadroon, from Nor folk, came on for a hearing upon the claim of her master, about fifteen years ago, before Judge Randall. Mr. Haley and others represented the claimant, who held an official post at Norfolk. Lovey had one child, and the claimant was its father. After a full hearing, the slavery of the fugitive was estabhshed, and the judge ordered the slave into the custody of a famous dealer in flesh — one D , who was the alleged agent of the master. Lovey was what is called a hkely woman, and she was a shrewd and resolute one. On her way 382 THE FORUM. with the officer to the South, she curried favor with him, stimulated his salaciousness, expressed her delight at having been placed in such genteel custody, and feigned great gratification at having escaped from the abolitionists. D , entirely overcome by her flat tery, " grumbled pity," and when they arrived at WU- mington, invited her to sup with him. This, however, she modestly declined, as being too great an honor, but offered to prepare his supper and wait upon him, and then take her own humble meal at the second table. Blinded by this humUity and reverence, he consented, and she prepared his supper; but while he was enjoying his luxurious repast, she passed out the kitchen door, made her way into Chester County, and finally, when next heard of, was in Canada. There is a sequel to this story worthy of notice. D was offered by some phUanthropic man of color five hundred dollars for the freedom of Lovey and her chUd. He refused it; but when she had escaped, he offered to accept the sum. There was no flinching on the part of her friends, but the production of the woman was required before the payment of the money. This could not be complied with. D then offered to accept half the money, and to warrant her recovery. This was not accepted. Thus his cruelty was utterly foiled by his lechery. So it is that most crimes unite together, and sometimes defeat each other. 142. A year or two after this, another case even ANECDOTES AND WIT. 3g3 more interesting, was brought before the same judge. It was that of a young girl, apparently white, who was claimed as a slave. The owner was represented by Mr. I and Mr. I. W . There were, of course, many to swear to her ownership and her identity. She was said to have left Maryland in her infancy, and not to have been seen for many years — (she was sixteen). On the other side it was testified that her mother, a white, was a resident of Philadelphia, who, in dying, left her in charge of a highly respectable colored man, whose wife adopted her. That by the wUl of her bene factor she would be entitled to several thousand dollars, and that she had been known in this city from her chUdhood, and long before it was pretended that she and her mother had escaped from Maryland. After an excited and zealous discussion she was discharged. Shortly after, her colored friend died, and true to his word, left her aU his estate. She afterwards married ' ' respectably, lived comfortably, and died only within the last few years. We have recently heard from a gentleman of un doubted veracity, a story connected with her release, that was not known at the time, or there might have been a different result. A hair-brained Irishman, whfie the case was going on, informed the friends of the girl that he thought he had seen her many years before, in Philadelphia. He was at once called to the stand, and he swore roundly and positively that he had seen her, 384 THE FORUM. and gave time, place, and circumstances. After she was discharged, he was asked by our informant, why he had been so doubtful at first, and then so positive. " Oh," said he, " that is owing altogether to my know ledge of the law. We are told by the law, that in doubtful cases we should always acquit ; now I was in very great doubt about the gM, and therefore I, of course, swore positively in her favor. That is acquit ting in a doubtful case." 143. Passing out of my office one morning, a tall, herculean person nearly walked over me as he entered, with his hat on, and a formidable stick in his hand. "What is your pleasure?" was my remark to him. " I wish to see Mr. B ." " You do see him — what is your will." " If you are the person," said he, " I wish to employ you to recover two niggers who have escaped from my plantation near Elkton." " You can't employ me," was the answer. " Why not ?" " Because I am not to be employed." " Well," said my rough visitor, " wUl you refer me to some other gentleman ?" "No gentleman wUl take the case; and if he would, I would not insult him by referring a case to him, that I refuse myself." " Well, give me the name of some one who is competent to attend to the business." "No one would be competent who would take it." "Well, then," said the stranger, " I take leave of you." " As Hamlet says, ' you cannot,' was the reply, ' take from me any thing, that I more wiUingly would part withal.' " ANECDOTES AND WIT. 335 144. "That book of yours on Insolvency," said Judge H , to Mr. I , " is not reliable autho rity." " Very likely," said Mr. I , " it contains so many of your Honor's opinions." 145. Mr. , as Attorney General, was replying to the argument of two members of the bar, whom he designated as "those two men;" one of his opponents objected to the roughness of the reference, and said it was usual to refer to members of the bar as gentlemen. " I am content," said Mr. , " to be called a man." " That is very probable," replied the other, " for no one who knows you would call you a gentleman." 146. The same gentleman, in arguing a case, observ ed that he had raised himself by great effort from early humble beginnings — from being engaged in grubbing by the day, to the situation of Attorney. General of the State. " That is a doubtful elevation," said Mr. B , " for I hold a good grubber to be better than a bad Attorney General." 147. A person by the name of Day was indicted be fore Judge King and Judge Knight for burglary. The prisoner's counsel wittily suggested the defence, that a burglary could not be committed by Day. He how ever was convicted, and Judge King, in addressing him, said to the defendant : " You have been convicted, not withstanding your defence, of burglary. Your defence, however, to some extent shall avaU you, for though the 386 THE FORUM. crime was committed by Day, you shall be sentenced by Knight." Whereupon Judge Knight proceeded to sentence him. 148. Upon one occasion, Mr. Webs'ter was on his way to attend to his duties at Washington. He was compelled to proceed at night by stage from Baltimore. He had no travelling companions, and the driver had a sort of felon-look, which produced no inconsiderable alarm with the Senator. " I endeavoured to tranquU- lize myself," said Mr. Webster, "and had partially suc ceeded, when we reached the woods between Bladens- burg and Washington, (a proper scene for murder or outrage,) and here, I confess, my courage again deserted me. Just then the driver, turning to me, with a gruff voice asked my name. I gave it to him. " Where are you going ?" said he. The reply was, " to Washing ton. I am a senator." Upon this, the driver seized ' me fervently by the hand, and exclaimed — " How glad I am. I have been trembling in my seat for the last hour ; for, when I looked at you, I took you to be a highwayman." Of course, both parties were reheved. 149. Mr. Webster used to say, that there was an old Revolutionary fire-eater who professed to be much attached to him, and who gave as the reason — that "he never looked in Webster's face, without its reminding him of gunpowder." 150. Mr. Webster was called upon by an old gen tleman from Nantucket, to undertake a cause for him, ANECDOTES AND WIT. 337 the argument of which was approaching, and his chent asked what would be his terms. " Why," said Mr. W , " I cannot argue it under one thousand dol lars ; for, although the case is not a heavy one, it wUl require me to hang about the court for a week, and I should be as willing to be actually engaged for a week, as to lose my time in this way." " Well," said the client, " if I give you a thousand dollars, will you argue any other case in which you may be employed." " Certainly," said the advocate. The bargain was closed. The old man, having an eye to business, apphed to several persons in Nantucket who had cases on the issue list, and made his own terms for Mr. Webster's services, and actually received four hundred dollars beyond what he had paid, and, beside that, gained his own cause gratis !" 151. Mr. Webster was, generally speaking, indiffer ent, not to say careless of money — it seemed neither at rest in his pocket, nor upon his mind. A chent knowing this, apphed to him to argue a case in Wash ington. Mr. Webster was at that time closely engaged in examining some authorities in his law books. The client laid down a five hundred dollar note, and, after stating his case, left the office. Months roUed round — the time for his argument came on. He again called upon Mr. W , who said he was not able to go to Washington, " he had no money, and he had no time." " Well, but," said his chent, " I gave you five hundred 388 THE FORUM. dollars." Mr. Webster didn't remember it. " Well, but," said his chent, who had noticed the name of the book which Mr. Webster was reading at the last call, "you were, at the time, looking over Cooper's Jus tinian." Mr. Webster went to his book-case, and there found the identical note, and the chief difficulty was at once removed. 152. On the trial of Mrs. Carson, in 1814, during the adjournment, it was necessary to examine some of the witnesses at the office of the counsel. The tipstaff inquired where the witnesses should be sent. " Why," said Mr. L , " send Mrs. De Gorgue and the other old witnesses to my young friend, Mr. Ingersoll — send the young women to me." We will not venture to designate the name of the gentleman from whose speeches the following abstracts are taken, but leave it to the bar to discover their author. 153. The case is as plain, as that the Honorable George Morton is Associate Judge. 154. In every weU regulated society, laws are to be dispensed with, according to their spirit. 155. Since the establishment of this colony, the whole Code is to be construed liberally, and to be con sidered applicable to all cases, which, according to the best consideration of the judge, is to be apphed to this case. ANECDOTES AND WIT. 3gg 156. The law laid down in Cowen's Report, was law in this colony before New York was settled, in the time of George I., when the Lord's Act was passed. 157. The Guardians of the Poor are an excellent body — they are excellent guardians against married women, whose husbands go astray. 158. I contend, that the order of the Court is an execution. 159. I don't by no means reflect nor insinuate nothing as to the Guardians of the Poor. 160. To destroy the technical, or mere character of the proceeding, untU then it don't assume the shape of money. 161. " The moral principles of ahusbandin deserting his wife," as my honorable friend, Mr. Scott says, " are destructive of his character as a man." 162. On this very day, in the Senate ofthe United States, has the motion been made, over and over again — I say, let the body be sacred. 163. The very principle which the respectable Judge Morton has thrown out in part, that services are to be performed by an apprentice, — So it has. 164. King v. Wakefield, 13 East, [going to read it,] says, "it is not quite a case under the law of nations." 165. I won't say that in 13 East, 190, you wUl find a case which it won't be contempt to refer to. 166. (9 Johns. 368.) Let me tell my honorable 390 THE FORUM. opponent, Mr. Scott, or opponent, to speak more cor rectly. 167. I am satisfied that the constant examination of cases by the judges, which they frequently do, wUl satisfy them there is nothing to shake their juris diction. 168. Those modern empirics, the reporters; I have read none of their books, because I know more than there is in them. 169. The different cases that have passed upon amendments, the Court, when they look at them, centre down into one fixed, unalterable principle. 170. Can I express by any imphcation that I may express upon the principle of the act which is the foundation of the action. 171. Mr. Norris's writing is like my own, therefore I do not read it, and I have made a transcript of it. 172. Specimen of a speech before Judge Hallowell. — " Gentlemen of the jury, cases are to be supported by evidence ; evidence is to be given by witnesses ; wit nesses must testify to facts ; facts, to satisfy a jury, must be prominent and conclusive." 173. Mr. Pinckney, whose vanity almost equalled his oratory, and Mr. Richard Rush, were engaged in a very important case before the Supreme Court of the United States. Mr. Samuel Dexter, of Massachusetts, was replying to Mr. Rush, when the latter, turning to ANECDOTES AND WIT. 391 Pinckney, said, " That is a very able argument." " Wait till you hear me," was the reply. 174. Mr. Pinckney, when he returned from his em bassy to England, was appointed Attorney General of the United States. He was at that time about fifty years of age — and, for a great man, very foppishly disposed. In person he was above the common size. His hair was dyed of a sort of Tyrian purple. He had , blue eyes, rather coarse features, and full face. His usual apparel in court was a blue surtout coat, buttoned up to the throat, with a cravat drawn so tightly as apparently to throw the blood into his face, with ruffles down almost to his fingers' end, and buff kid gloves. The impression of the bar, upon his first appearance, was not very favorable. And David B. Ogden, who was a strong, but a plain man, is reported to have said of him : " When I first saw Mr. Pinckney, I con sidered him a small man, but I never considered him so after I first heard him. On the subject of national law he had no equal, and in eloquence he had cer tainly no superior." 175. Mr. Grinnell, having brought an action to re cover damages for a severe personal injury suffered by his chent on a voyage from Europe, called upon one of the sailors to prove his case. The witness, however, in common phrase, blew his case out of water, and made out a clear defence. " WiU your honor, and my learn ed friend opposed to me," said Mr. G , " aUow me, 392 THE FORUM. as a matter of personal vindication, to ask this witness one or two questions." Of course, the privUege was accorded. "Now," said the counsel, addressing the witness, " did you not teU me the very opposite of what you have stated here, not an hour ago, in my own office?" "Certainly I did," said the witness, "but I was not sworn, and you had no right to examine me in your office." 176. A monk of St. Bernard, some ten years ago, called upon Mr. B with European credentials, in dorsed by the Mayor and Recorder of the city of Pliila- delphia. The object was to obtain funds for the chari table brotherhood to which he professed to belong. B subscribed five or ten dollars, and other sub scriptions were made, amounting to several hundred doUars. The monk was afterwards charged with being an impostor, his money was taken from him and de posited with the Mayor, and he was committed to prison. B and the other contributors received notice of these proceedings, and were requested to take back their money. This B refused, stating that he had given it upon official authority, and he would not re claim it. The monk getting to hear of this, engaged B to sue the Mayor for the amount in his hands. This was accordingly done, and the whole sum recover ed — so that the counsel, in refusing to receive his money back, made ten times as much. "A bird in the hand is not always worth two in the bush." ANECDOTES AND WIT. 393 177. Mr. Webster was in the habit of writing and re-writing most of the finer passages of his senatorial and forensic speeches, and sometimes prepared them, in order that they might afterwards be introduced when occasion should offer. He was wont to say, that the foUowing passage in his speech upon President Jackson's protest, in May 1834, had been changed by him twelve times, before he reduced it to a shape that entirely met his approval. Perhaps it is not surpassed for poetical beauty, by any thing that ever fell from his eloquent hps. Speaking of resistance by the United States of the aggressions of Great Britain, he says : " They raised their flag against a power, to which, for the purposes of foreign conquest and subju gation, Rome, in the height of her glory, is not to be compared. A power which has dotted over the sur face of the whole globe, with her possessions and mfii tary posts — whose morning drum-beat foUowing the sun, and keeping company with the hours, circles the earth daUy, with one continuous and unbroken strain of the martial airs of England." 178. Party spirit running high in Portsmouth in the days of the embargo, great efforts were made at an annual State election to carry the town by both parties. The Republicans succeeded in electing their Moderator, Dr. Goddard, a position of potentiality, because he de cided, in case of a chaUenge, the right to vote. A man's vote was offered on the part of Mr. Webster's friends vol. ii. — 26 394 THE FORUM. which the Repubhcan party objected to, and the Mode rator was appealed to for a decision. The Doctor hesi tated; he did not wish to decide against his own party, and stiU he was too conscientious to make intentionaUy a wrong decision. He seemed at a loss what to do. " I stand," said he to the meeting, " between two dan gers ; on one side is Scylla, and the other Charybdis, and I don't know which to take." " I fear, then," said Mr. Webster, rather too loudly, " I fear your Honor wiU take the silly side." 179. Extemporaneous lines, by a lawyer, upon hear ing a highly rhapsodical member of the bar delivering a most grandUoquent speech : — Sun, moons and stars, in wild confusion run — The stars put out the moons — the moons the sun. Thus genius thrives in Nature's sheer despite, Or courts were blinded from excess of light. 180. " I wish I had your brass," said one lawyer to another; "I should then succeed at the bar." "If you had half my gold," was the reply, "you would require no brass." 181. In the case of Harding and five others, in the Circuit Court of the United States, charged with mur der on the high seas, the counsel, by agreement, were to speak two hours only on a side. Mr. B was approaching the conclusion of his argument when the clock struck two, his limited hour. He closed in- ANECDOTES AND WIT. 395 stantly, with this remark : " The clock, gentlemen of of the jury, has struck; that settles forever the ques tion of time, but the question of eternity remains for you — your verdict is to the prisoners, the fiat of fate." 182. "I am entirely composed within," said Mr. B to a friend, " and have no annoyance, strictly speaking, of my own ; aU my agitations are from with out. The world seems changed, and every thing is in disorder." " The world is not changed," was the an swer, "you are changed — and as you have no troubles or cares of your own, you occupy yourself in spying into the troubles and cares of those around you. A man who is occupied with his own affairs, has no time to watch the world." 183. Judicial opinion upon poetry. — One of the most extraordinary manifestations of a want of poeti cal taste, that ever was exhibited by a gentleman of learning and of great legal acquirement, was displayed by Mr. Recorder Riker, in the trial of Dr. Frost. The Recorder, in his charge to the jury, observes, that "Any one who abridges human life, for a single instant, is, in the judgment of the law, guUty of at least man slaughter, as a moment may be of infinite service, in regard to the affairs of this life, but of how much more, as regards a hfe to come. I am not often guUty of quoting poetry, but a very great man is my autho rity, for what I am about to recite to you. There was 396 THE forum. a gentleman who was a skeptic as regards the immor tality of the soul. He was upon one occasion riding out with a pious friend, when his horse threw and kiUed him. His friend took out his pocket-book, and at once wrote therein this beautiful verse : — " ' Between the stirrup and the ground, He mercy sought, and mercy found.' " I question whether this couplet is equalled by any thing in Homer, or Joel Barlow !" 184. A lawyer, returning to his house, was informed by his wife, that the hydrant-pipes were burst, and she added, " It really seems hke a judgment." " Oh, my dear," said he, " the judgment is nothing, what I am afraid of is the execution." 185. A member of the Plfiladelphia bar, in large practice, stated that he never ate his dinner when he expected to speak upon any important case in the afternoon, for which he gave the following reasons : " Blood is the life and strength of man. It is the motive power in aU human actions — it is the guardian of life's citadel. If the brain is caUed into action, the tendency of the blood is to the head ; if the digestive functions are in requisition, the blood rushes to the stomach. If, then, a speech and a dinner are to be digested at the same time, the blood owes a divided duty, and the result is, that a man becomes either a fool or a dys peptic." ANECDOTES AND WIT. 397 186. A man was indicted before a Recorder of the Court for stealing wine, by drinking it out of a bottle which was confided to his care. The owner had offered to settle the case, if the offender would pay the value of the wine — which offer was refused. Upon a habeas corpus, the Judge discharged the defendant from cus tody, on the ground that no felony had been commit ted, and then bound over the prosecutor for offering to compound a felony. 187. In visiting the different states and county towns, lawyers are sometimes subjected to no incon siderable annoyances. Upon an occasion of this sort, Mr. B finished his argument in Newcastle upon a murder case, at two o'clock in the morning of one of the coldest days in the winter of 1852. He returned to his hotel, and found his way to his chamber, the landlord and his servants having retired. The fire had gone out — the glass was broken out of the windows — and, upon entering his bed, he found there was no covering but a single sheet. He, of course, rose early, — and, finding one of the judges in the parlor, the fol lowing dialogue took place : B. — " You are a hardy people in Newcastle — being able to work all day, and freeze all night." Judge H. — "Yes, we work pretty hard — but we keep warm beds." B. — "Very ! I slept all night with the mercury at zero, under a single linen sheet." ji 398 THE FORUM. Judge H. — " You amaze me ! I had a mountain of bed-clothes." B. — "Judges are not quite so plenty as lawyers, and they can't spare them." There the matter rested for an hour or two ; but, after returning from receiving the verdict, the landlord requested to explain to Mr. B ; and he began, by saying, " that Mr. B 's chamber had been robbed last night." "Robbed!" said B ; "there was nothing to take but a single sheet, and any man would have had hard work to take that, without taking me." "What I mean, is this," said the landlord; "about twelve o'clock, a number of passengers arrived in the southern stage, and nobody being up but the servants, the travellers, finding their rooms cold, rushed into the other chambers, and yours among them, and removed aU the bed-clothing to their own rooms. This must account to you for the occurrence of which you may weU complain." " Yes," said B , " it does account to me, but without any advantage — it can never pos sibly happen again, as I go to-day — to return — never." 188. The foUowing exquisite burlesque, written by a member of the bar* some thirty years since, is not less instructive than witty, and although we have no claims to its authorship, we cannot withhold it from * William M. Meredith. ANECDOTES AND WIT. 399 our professional brethren and the pubhc. The drama tis personal wiU easUy be recognized. DIES JURIDICI. Scene 1st. — A court-room in Vandalia — Judges Buzz, Burly, and Pallet on the bench. Officers, lawyers, &c, &c. The court having been opened by the crier in the usual form : — Judge Buzz. — (Knocking on the desk with the handle of his pen-knife.) Gentlemen of the Bar, hand in your motions. Come, let us hear from you, gentlemen of the bar ! Peter (the crier.) — Silence ! you must n't talk, gentlemen. Mr. Modicum. — May it please the Court : I beg leave to move for — Judge Buzz. — Give me leave, Mr. Modicum — the Court will hear you in good time, Mr. Modicum — stay for a short space, Sir. (Judge Buzz whispers with his brother Pallet.) Meanwhile, a general conversation commences in the court-room. Peter. — Silence ! Judge Buzz. — (Rapping on the desk.) In very truth, Gentle men of the Bar, there is conversation which disturbs the Court — the Court is disturbed — I have said it. I pray you, let there be an end, gentlemen : nay, this must not be ! Prothonotary, hand me the motion list. (The prothonotary hands the motion list — Judge Buzz whispers with his brother Burly — general conversation commences as before. After some time Judge Buzz begins to call the motion list.) Sump v. Bump ! Mr. Grumble ! Mr. Count. Continued ! Peter ! Peter ! Peter ! "Where is Peter ? Peter. — (Standing up.) Sir ! Judge Buzz. — Come hither, Peter. Ah ! What is your first name, Peter? 400 THE FORUM. Peter. — Sir ? My name is Peter Pipkin, Sir. Judge Buzz. — Yes — it is so — right. " Peter Pipkin" — it is so, indeed. DricsLack v. Smashpipes! Mr. Modicum! Mr. Drift ! Con— Mr. Drift. — Argument, Sir — we are ready on both sides. Judge Bur:-. — Go on, then, Mr. Drift. Mr. Gripe. — I believe your Honor has passed the case of Taylor v. Cabbage. Judge Buzz. — I think not, Mr. Gripe. What is the term and number ? Mr. Gripe. — It is at the very head of the list, Sir ; I have not heard it called. Judge Buzz. — It is so, Sir ; I have it here, Mr. Gripe ; it is at the very top of the list, and to-day we begin at the bottom, Mr. Gripe. It shall be heard in its turn — the Court will hear you, Mr. Gripe, when the case is reached — go on, Mr. Drift. Mr. Drift. — May it please the Court : — Mr. Grumble. — (To the Court.) I have not heard the case of Sump v. Bump called, Sir. Judge Buzz. — Sump r. Bump — what is the term and number, Mr. Grumble? Mr. Grumble. — It is at the foot of the list, Sir. Judge Buzz. — It is so, Sir ; I have it here, Mr. Grumble ; it is at the very bottom of the list ; it has been called and continued, Mr. Grumble ; it is a very late motion, Sir — it can wait. Mr. Count. — We are very anxious on both sides, to have it dis posed of, Sir. (The three judges confer together.) Judge Buzz. — Are you ready, gentlemen, on both sides, in Sump v. Bump ? Messrs. Grumble and Count. — (Speaking together.) Yes, Sir. ANECDOTES AND WIT. 401 Mr. Drift. — May it please your Honors, in the case of Drieshack v. Smashpipes, I — Judge Buzz. — You hear what is said, Mr. Drift ; I pray you to stay for the present, Sir ; you shall be heard : the Court will hear you, Sir — sit down, Mr. Drift. The Court will now take up the case of Sump v. Bump. Mr. Count. — May.it please the Court : A judgment was obtained in this Court, by Senry Sump against Benjamin Bump, at April term, 1828, on which a fi. fa. has now been issued, returnable to July term. I have taken a rule to show cause why the execution should not be set aside, as having issued irregularly and improvi- dently, and shall proceed to lay before the Court the grounds upon which the present application is founded. In order that the facts of the case may be understood, it will be necessary for me to sub mit to your Honors an analysis of — Judge Pallet. — The meaning of analysis, I take to be this : — It means when a man takes a thing and divides it into parts — that is, proceeds to consider it in a — an — analytical manner — that is, you see, he analyzes it. You see, that is the meaning of analysis. Now I view it in this light, that an analysis is sometimes very diffi cult to make, for this reason : that when you consider any subject, it is but one subject, and the mind considers one subject, (at least the minds of most men can consider one subject,) with more fa cility, because it is but one : but my view is this — that when you divide a thing into parts, though you may call them parts, yet they are in fact so many different things ; (because, unless they are dif ferent, why do you divide them ?) And then, instead of consider ing one thing, (as the whole was but one thing at first,) why, when you have divided that into a number of different things ; then the mind is compelled to consider just as many different things as you have divided the subject into, which is more difficult: (and I have known many men — men of education, too — I have, myself, often 402 THE FORUM. experienced it, and I dare say others have, though I never saw this view taken of it before — become very much confused in con sequence ;) besides which, after dividing it, it is of no use until you put all the parts together again, (because it is to have a view of the whole together,) and this also is sometimes not easy for any man : I have found it not easy ; therefore the result of my opinion is this — I mean to say, that I shall be very glad to hear an analysis for this reason, that it is so very difficult. Mr Count. — May it please your Honors, I shall proceed to state the facts, just as they occurred, without any attempt — Judge Buzz. — (Knocking on the desk as before.) Hear me ! I pray you to listen to me, Mr. Count ; let me break this case for you, to save time. I will just break this case for you; then the points will present themselves, and you can proceed with the argu ment. Mr. Count listen to me; you move to set aside this fi. fa., alleging that the judgment on which it was issued was fraudulently obtained, and that therefore the Court should interfere to stay or avoid the execution : the courts have the power to do so, doubtless, Sir; nay, this Court has often done so, to prevent injustice. Fraud, therefore, in the plaintiff, Henry Hump, is the point in this case ; is it not so ? Have I not said it aright, Mr. Count ? In very truth, is that not the point of your case ? Mr. Count. — No, sir : we do not allege fraud in the judgment, but are prepared to show that this execution has issued irregularly and improperly, which I apprehend will — Judge Buzz. — (Knocking as before.) How is this, Sir? Let me understand this ! You allege no fraud in the judgment ! — Shall you then say to the Court, that a party holding a valid judg ment shall not have execution ? that he shall not have the process of this Court, to recover his debt ? Do you say that, Sir ? You should have strong grounds to lay before the Court. Go on, sir — go on, Mr. Count. ANECDOTES AND WIT. 4Q3 Mr. Count. — Why, really, sir — Judge Pallet. — Yes, and another thing — you ought to have proof of the facts ; because the statement of counsel alone, is not proof, however respectable, for this reason : that suppose counsel on oppo site sides make different statements — equally respectable — or dis agree in their statements, how is the Court to determine ? And even the affidavits of the parties are not evidence, on the hearing of a rule to show cause. The distinction is this : the affidavit of a party is sufficient evidence, on which to grant a rule to show cause ; but, when you come to the hearing of the rule, it is not evidence. And my view of it is this : that such an affidavit ought not, or the Court ought not, to suffer it to be even read, on the hearing of a rule to show cause, for two reasons ; because the party is interested, and cannot be a witness in his own case ; and besides, the opposite party has had no opportunity for cross-examination ; which is a very important objection, because a witness may tell a very straight story, as long as he is allowed to go on in his own way ; but, when you come to question him — to sift him — then you very often destroy the effect of the testimony which he has given on his examination- in-chief. And that is the practice of this Court, always to require depositions on the hearing of the rule, (the distinction is between the granting of the rule to show cause, and the hearing of that rule,) because, on depositions, the opposite party has an opportu nity of cross-examining ; and, if he does not choose to cross-examine when he has the opportunity, why, then, he has no right to com plain; for he has had an opportunity; — you see? the Court have given him an opportunity, but he did not make use of it. Mr. Count. — I have several depositions regularly taken, which will establish all the facts on which we rely, and I will now read — , Judge Buzz. — Ah ! you have depositions ? Well — well — stay. (The three judges confer.) This ease has already occupied more 404 THE FORUM. time than was expected ; — I mean to cast no reflection, Mr. Count, I beg that I may not be misunderstood. Gentlemen of the bar are more intent upon the performance of their duty to their clients, than on saving the time of the Court. Let this suffice. This Court is much oppressed with business ; the Court will hear you, Mr. Count, you shall have justice, Sir. No party shall have cause to complain, that he has not received substantial justice at the hands of this Court. This Court will do justice betioeen the parties in this cause ! Judge Burly is now about to call his trial list for the next period ; after that, the Court will dispose of this case, if there be time. I have said, if there be time. (Judge Burly now calls the trial list. During this time, Judge Buzz whispers with his brother Pallet, and then retires quietly. The calling of the trial list being over, Judge Buzz is missed from the bench.) Mr. Grumble. — (To the Court, after a pause.) Will Judge Buzz return, sir ? Judge Burly. — Humph ! I don't believe he will, to-day. Judge Pallet. — Why, I don't think it certain; because, just before he went away, he said to me, " Are you going to stay ?" — and I said " I was, for this reason ; that, perhaps, there might be time, after the trial list was called, to dispose of the case of Sump v. Bump." " Well," said he to me, " I am going;" and then he went away : that was all he said to me, and he did not tell me whether he was coming back again or not. Now, my view of it is, that it is very uncertain whether he does come back again or not, to-day ; because he said nothing about coming back, when he went away." Judge Burly. — Humph ! Adjourn the Court. (The Court is accordingly adjourned, in the usual form.) ROMANCE OF THE EORUM, PACTS AGAINST FICTION. CHAPTER XVI. THE SUICIDE.' Aytoiut, 5o|at, Qi'ho-tifXMXt, vo[iol, 'Artm/to, ta/vt' trttBitia ilvj tyvau xaxa. — Menander. A short time after my admission to practice, but long before that practice commenced, when I had much more leisure of every kind than business of any kind, I con cluded to spend a few days with my relatives at Berk ley, New Jersey. I accordingly set off upon my jour ney, and had proceeded a few mUes below Camden, absorbed in my own meditations, with nothmg either to attract or interest me, when, suddenly, the shady, solitary, and apparently deserted scenes, through which I was passing, opened upon a large field, where were assembled from five hundred to a thousand people, who broke in upon the stillness of the rural scene by occa- 406 THE FORUM. sional fits of loud laughter, and other boisterous demon strations of mirth and amusement. It mattered but httle to me, so that I arrived before nightfaU at the place of my destination, how the intermediate time should be occupied, and, influenced by youthful curi osity and the novelty of this circumstance, I proceeded at once towards what appeared to be the main point of attraction, where I beheld aU the athletes of the coun try for mUes around engaged in their various sports. It seemed that there had been a horse-race in the neigh borhood, which having terminated, as usual, by elating most of the winners, and depressing the losers, was succeeded by aU sorts of wagers and games, by which the spoUs of former success might be enhanced, or the mortification of former disappointments or losses re paired or diminished. Some were wrestling, others jumping, others running, and others pitching quoits. But the greater portion ofthe crowd were surrounding, in the most intense anxiety, about a dozen men of the largest and most muscular frame, apparently Jersey- men, aU of whom seemed to be engaged in what is caUed throwing the bar, an athletic sport too weU known to require any explanation. This, upon drawing near, I perceived to be no chUdren's play — the bar, I should suppose, weighed from twenty to thirty pounds, at least — scarcely a competitor among them was less than six feet high, and most of them strongly knit, and fitted, at aU points, for their herculean task. There THE SUICIDE. 407 was one among them, however, " in form and bearing proudly eminent," the decided favorite of the ring, who, with but little apparent exertion, though with vast skiU, easUy bore off the prize, and was proclaimed victor by loud and repeated acclamations. It was readfiy per ceived that the conqueror was a Jerseyman, from the unreserved dehght expressed by almost aU around him, and from the general huzza for New Jersey, that made the welkin ring. I confess I have always belonged to the weakest party, and though half a Jerseyman, my self, I felt mortified that the victors should glory so immoderately in their success. The favorite and for tunate competitor was hoisted upon .their shoulders, and paraded through the field, and wagers, to any amount within the limited means of the bettors, were offered upon him against any one that could be pro duced ; but so decided had been his superiority, that no one could be, for some time found, willing or hardy enough to incur the disgrace of what was considered an assured defeat. At length, a rough, greasy-looking individual, apparently a butcher, made his Lway in among them, actuated, probably, more by mortifica tion than desire of gain, and inquired whether they would bet against any man on the ground? "Yes! yes !" was the unanimous answer, and every man's hand sympatheticaUy and eagerly drew from his pocket the voucher for his sincerity. The butcher and some few of his friends, obviously from the sister state of 408 THE FORUM. Pennsylvania, covered the bets, and nothing remained but to produce their champion. This was soon done, as he had no doubt been previously selected. Passing to the skirts of the crowd, whUe all eyes anxiously pursued them, they brought forward a young man, who appeared to have been an unconcerned specta tor of the struggle, but who, nevertheless, instantly ac quiesced in the proposition made to him. From his looks he might have been about twenty years of age, tall and magnificently proportioned, and with short, thick, black curly hair, and features altogether Roman. He ad vanced with a step neither " rash nor diffident," and took his stand beside his powerful antagonist. It was so arranged that they were alternately to throw the bar thrice, and it fell to the lot of the stranger to com mence. As I have already said, or intimated, the general outline of his figure indicated great strength, and the fine proportions of his limbs were perceptible to the slightest glance, notwithstanding he was but in differently if not coarsely clad. Upon rolling up his sleeves, preparatory to his effort, he displayed an arm which struck all present with mute amazement. It was a perfect model of strength and symmetry. No artist, in his warmest fancy, ever chiselled or deli neated such an arm as that. He seized the immense bar, and comparatively without effort, whirled it a single time around his head, and threw it further than most men could carry it, but stiU not beyond the mark THE SUICIDE. 409 which gave victory to his competitor in the previous struggle. It now became the turn of the Jerseyman to throw. He threw, and far exceUed himself. The air was rent with the applause of his friends. Bets were doubled and redoubled upon him, yet stUl the stranger snfiled, as though utterly indifferent to the result. Even his adherents, as though they knew their man, although evidently anxious, betrayed no symp toms of dismay. They threw again, and again the Jerseyman was successful. The last and decisive trial of strength and skiU now arrived. The smUe of the stranger gave place to an expression of the most deter mined resolution ; the recklessness of his air was gone, and " every petty artery in his body sweUed with a giant's strength." He grasped the bar as if all past were sport, and passing it, with the quickness of light ning, around his head, hurled it many, many feet be yond the furthest mark. His antagonist stood appaUed ; in a moment the whole aspect of things was altered. Merriment and grief changed sides. The Jerseyman, however, accustomed to triumph, stiU made his last effort, and a prodigious effort it was ; but the charm was destroyed, for he was of that number with whom effort depends as much upon success, as success upon effort : he threw — he threw despairingly — and he lost. Gratified, I scarcely know why, by the result, I re sumed my httle journey, musing upon the past events, and comparing these vUlage heroes, in their limited vol. ii. — 27 410 THE FORUM. sphere of action, with those thunderbolts of war, who, not more influenced by ambition, though acting upon a wider field, wield the power of mightiest monarchies, and subjugate the world. Ten years roUed on — with what various incidents and changes, it is partly the design of these hasty pages to show — when, one morning, in the latter part of the autumn of 1828, after I had become sufficiently known to induce some persons, at least, to suppose my pro fessional services might be desirable — when, I say, two persons were ushered into my study, and in one of them I almost immediately recognized, though I had never seen him since, the victor op the bar. He was not materiaUy altered, except that his person was somewhat fuller and broader ; he had the same air of composure, and the same pleasant smUe that he was wont to have ; and yet the business upon which he came was dark and terrible. He revealed it aU — but in manner, as if he had not the least concern in it, and without aUeging his innocence, stiU with all the dauntlessness of virtue. He had been charged, together with the individual who accompanied him, with passing counterfeit notes of the Bank of the United States, and baU of five thousand doUars had been exacted and given for his standing his trial at the approaching term of the Circuit Court, for this heinous and hazardous offence. The day of trial came. He was arraigned, and as he uttered the words "not guUty," my eye feU upon him THE SUICIDE. 4]J for a moment, and I observed the same fixed, firm, and resolved expression of countenance that years before he had displayed when summoning, as it were, his whole body and soul for the last physical effort which I have already described. The jury was impaneUed ; his trial, and it was an awful one, proceeded, and stfil he remained the same. Day after day, during which the protracted investigation continued, had no effect upon him. He told me, it is true, he would rather they had sent a buUet through his heart ; but he said this with the same placidity and composure, and in the same tone that would characterize most men in ex pressing their preference of one dish to the exclusion of another at a festive or social repast. To say, there fore, that I attached but little importance to his decla ration, is to say what wiU readfiy be conceived. An entire week was occupied by the evidence and the discussion of his case, during aU of which he never hved up to it, but was the same wonderful and un changed being. It avaUs nothing to say what labor and what exertion were bestowed upon his defence ; it is his history, not mine, that I am writing. The current of the evidence was unquestionably against him, and even the law, that was relied upon mainly in his be half, was considered by the distinguished judges before whom he was tried, as incapable of affording him any rehef — in a word, he was convicted. Several of the jury, in pronouncing the awful verdict of guUty, sunk 412 THE FORUM. into their seats, overcome by their sympathies. They were husbands and fathers, and he, as it appeared, though never breathed by himself, had a wife and five helpless chUdren. I ventured to look at him once more, and I saw him again as I had last seen him — unmoved, and immovable. " What a piece of work is a man !" The marshal approached to take him into custody and convey him to the prison ; and I then advanced to take my leave of him, and to inquire whether there was any further service I could render him. He said he desired to see his wife. It was the first time that ten der and endearing name had escaped his hps. Apph cation was accordingly made to the marshal to grant him the indulgence, and to accompany him to his dweU- ing, but whether it was from fear of his escape, or to avoid the painfulness of the scene, certain it is, the officer mUdly but firmly refused. " Never mind," said I to his prisoner, who evinced a momentary air of peevishness upon the refusal, " never mind, it would be but a sad parting, and can answer no possible pur pose, but to sharpen your mutual afflictions. We wUl endeavor to obtain a new trial, and you can then, it is hoped, meet in more favorable circumstances." " But," said he, " if I don't see her it wUl kill her." And his voice seemed a httle broken as he spoke, yet his face was calm, and gave not the shghtest denotement of the horrible tempest that must have been raging in his tortured and heaving breast. " WeU," said he, at length, THE SUICIDE. 413 " very weU — I have no more to say — but I would rather they would put a bullet through me :" and again his sinews sweUed, but the same determined smile rested upon his brow, like a sunbeam gUding a terrific and approaching storm. I left him; having traced him through aU the vicissitudes of grief and calamity, I left him stfil the same. On the ensuing morning — for there is something at tractive in this firmness of soul — I visited him at his prison. He received me with his accustomed manner, without any complaint, any murmuring. He took from his pocket some papers, upon which he desired me to bring a suit, and to account to his wife for the proceeds. " I hope I shaU be able to account to you," I rephed, actuated by a disposition to encourage and sustain him. " Very weU," said he, " account to me," and handed me the documents. I begged him to be composed, and I would see him again in the course of the morning. " An't I composed ?" he replied, smiling ly ; " do you see any want of composure in me ?" I said nothing, but shook his hand and withdrew. In one hour he was a dead man. Upon going into court, immediately after leaving the gaol, for the purpose of moving for a new trial, I met a friend of his, who had faithfuUy watched the course of the trial, and who, with horror in his face, told me that B had, to use his own language, ripped him self open with a knife directly after I had left him. 414 THE FORUM. Supposing that this was either an error, or that per haps B had inflicted some partial injury upon his person, under the idea of exciting the commiseration of the Court in his behalf, I bestowed no great atten tion upon it, untU shortly afterwards I heard it repeat ed from other quarters, accompanied by detaUs, which rendered it a subject of much more serious considera tion. Accompanied by the gentleman who assisted me in his defence,* I again betook myself to the prison — inquired the fate of the prisoner from the keeper — and found — he was no more ! After I had left him, as has been described, he de scended into the yard which is attached to the gaol, where he borrowed what is generaUy caUed a clasp-knife, from some one of the many felons there confined, and instantly turning around an angle of the buUding, to avoid observation, he plunged it into his body just be low the breast-bone, cutting himself in the direction of two sides of a triangle. When first discovered, he had inserted knife, hand and aU into the gaping wound, exclaiming at the same time : " I cannot reach my heart !" Before the person who saw bim could give the alarm, he drew out his intestines and dehberately cut them off, then throwing them in one direction, and the bloody knife in another, he walked firmly towards the steps by which he had descended, and at the foot of which * Samuel Brashears. THE SUICIDE. 415 he feU. He was borne to the apartment ofthe doctor ; aU assistance was in vain ; he uttered not a " groan to guess at," but declaring his innocence, and requesting that his remains might be left to the disposition of his friends — expired. For the last of these detaUs, I am, of course, in debted to those who were present and witnesses of this mournful scene ; what is stUl to be told, is related from my personal knowledge. Upon expressing an inclination to see the body, the keeper led the way for me and my companion to the chamber of death. Upon entering, a truly frightful spectacle was exhibited. We passed through a long range of gloomy apartments, lined on each side with felons and malefactors of every possible description, embodying the idea of heU and the faUen angels. All was sUent. and black and fearful as night — not a syUable was uttered, not a snhle to be seen — every human being seemed awe-struck and con founded. Upon entering the chamber, as I have said, by the dim light which was afforded from the heavUy barred and grated windows, I saw the body stretched upon a coarse paUet or mattress, in the centre of the room, nearly surrounded by a host of criminals, equip ped in their prison garb. They feU back to aUow us to advance ; their eyes were aU fixed; they stood hke so many shocking statues — not a tear was shed nor breath drawn. They looked as if the sources of their grief were exhausted with those of virtue. Their eyes 410 THE FORUM. glared whUe they rested on the remains of the de ceased. One of them, then approaching the covering of the corpse with a motionless and solemn step, with drew it from the body — and we saw aU that remained of one of the most powerful and extraordinary men that has hved in the tide of time ; a man who might have stood by Csesar ! I shaU never forget the effect of that moment. It was a scene fitted for the pencU of Angelo. The body was entirely exposed ; the arms folded across the ample breast; the frame and limbs huge, but of the most exact symmetry, and the face exhibiting the same fixed smUe, which had been displayed in hfe, and which particularly became the marble features of death. The partial rays of light admitted into the room, centred all upon him ; and there was so much beauty — so much serenity — so great a contrast between him and all about him, that, instead of inspiring horror, it overcame me with admiration. They may talk as they wiU of their Socrates and their Catos, who, in the decline of life, antedated their doom, in all human probability, but a few months — men in whom the vital principle was nearly extinct — and whose feehngs were enfeebled and obtunded. Here was a man with aU the vigor and energy of youth about him, with no fame, no immortahty to spur him on — who never dreamt of commemoration on the historic page — and who knew nothmg of the precepts of phUosophy; and yet who, nevertheless, showed LUCRETIA CHAPMAN. 417 that the love of glory is not a more powerful incentive to human courage, than a sense or fear of shame. Thus ends the cause of poor B . I omitted, however, to mention that the crime of passing counter feit notes, with which he was charged, was aUeged to have been committed at a horse-race in Delaware County, and that a portion of his defence consisted in his aUegation that the money was received by him as stakes, and put down without knowledge of its spurious character. At a horse-race ! It was there I first be held this unfortunate man. It was there, in aU human probabfiity, his career of vice commenced — and it was there, alas ! it was consummated. Such is the fraUty of mankind, that our very accomplishments are frequently our lures to destruction. To excel in any thing be comes a subject of admiration — and, intoxicated with applause, we pass step by step into the flowery ambush, nor dream of our danger untU, hke the covert serpent, it uncoUs itself, to sting our joys to death. CASE OE LUCRETIA CHAPMAN* In the month of September, 1831, Bucks County, and indeed the whole State, was thrown into commo- * As this case has been so often referred to in publications here and abroad, there can be no reason why the names of the parties involved in it, should be disguised or suppressed. 418 THE FORUM. tion by an aUeged murder, of a most extraordinary and anomalous character. Mr. Chapman, an eminent teacher, and a man of the highest respectabUity, living in a state of competence, with an accomphshed wife and five most interesting chUdren, had died, apparently without disease, though he had been indisposed for some days previously, on the 23d of the preceding July. For a time mysterious suggestions were thrown out, of his having come to his death by unfair means ; and, at last, the report gaining strength by its progress, about three months after his burial, a number of re spectable physicians were caUed upon to exhume and examine the body, to analyze the contents of the sto mach, and to determine whether he had not been car ried off by poison. A disinterment of the body took place accordingly; and, notwithstanding a long time had elapsed since his death, his frame was found in a perfect and somewhat wonderful state of preservation. A rapid and unsatis factory anatomical examination took place; the sto mach of the deceased was removed; an analysis of the contents took place, and from the report of the doctors and chemists employed, and from some other matters of suspicion, the pubhc authorities deemed themselves caUed upon to prefer charges of murder against his widow and a young Spaniard, by the name of Don Lino, who had been a resident of the house at the time of his death. LUCRETIA CHAPMAN. 419 Don Lino was soon arrested ; but the widow, either influenced by fear of opprobrium, or a sense of guUt, had fled to a remote corner of New York, (leaving her offspring at her mansion under the charge of her rela tives,) where she continued until some time in Decem ber, employed in instructing the chUdren, as a gover ness, of a very respectable family. About this period I was apprized, through the pub hc journals, which teemed with miraculous accounts of this mysterious transaction, that Mrs. Chapman was arrested, and that it was understood — from what quar ter I am at a loss to ascertain — that her defence was to be confided to me. Without bestowing more atten tion upon the report, so far as regarded myself, than its source deserved, I awaited the period, should it ever arrive, of a more regular and legitimate apphca tion. Just about the close of the year, and, I think, a day or two before the session of the Court of Oyer and Terminer, in which the aUeged offenders were to be tried, a lady and a male attendant were ushered into my office, to whom, after the usual salutations, I addressed myself, in the commonplace language of "What service can I render you, madam?" At this moment my eye, for the first time, rested upon the form and features of the visitant. There was some thing striking in both ; her figure was above the usual height, slender and weU-proportioned, and her face, though not handsome, bore evident indications of con- 420 THE FORUM. siderable inteUigence and refinement. She sat like a statue, and nothing but the restlessness and glare of her eye gave denotement of animation. Without turn ing to me at aU, or changing her position, she uttered a groan, as from her inmost soul, and exclaimed, "Mrs. Chapman!" as though the association of that name, with the notoriety of the charges, would be sufficient to apprize me of her lamentable story. It was so ; and I proceeded at once, as delicately as possible, to ascertain the object of the call, the precise nature of the accusation, and her means of defence. In this, after many sad interruptions, I at length succeeded ; and, although at the expense of great per sonal and professional inconvenience, engaged to afford her my feeble aid upon her rapidly approaching trial. The conversation was long and interesting, though, at the same time, painful; and, upon its termination, I took leave of her, with the promise to give my attend ance at the court, which sat in an adjoining county, on the ensuing Monday. She left me — was removed forthwith to the scene of trial, and, the offence not being baUable, she was, of course, conveyed at once to the gloomy ceU of a common jaU. I rarely remember a more disagreeable sensation than that which I experienced on assuming the respon- sibUity of this cause, on the issue of which depended not only the life of an individual, but the hopes and happiness of aU who belonged to her. With no know- LUCRETIA CHAPMAN. 421 ledge of the case but that which had been hastily col lected ; with the certainty that the prejudices of the community set strongly against the defendant, I was ahve to no smaU degree of irritation towards the pro fessional gentleman to whom Mrs. Chapman had early written, requesting that competent counsel might be employed, and proper measures adopted to afford her an opportunity of a fair and impartial trial in the re sult of her being arrested. Complaints or repinings, however, never remedy evfis ; and I, therefore, anxiously embraced the limited time aUowed, in preparing myself, as fuUy as possible, for the investigation of this important, complicated, and mysterious transaction. I cast my eye about for some one Who might be calculated to lighten or to share my labour ; and fortunately succeeded in fixing upon a gentleman,* who, although young in the profes sion, had given sufficient earnest of his fidelity, indus try and talents, to render the selection a judicious one ; and I rejoiced the more in making it, as the ce lebrity of the cause was such as was usuaUy calculated to afford the best of opportunities to a young man to signalize and distinguish himself. He accepted my proposal to join in the defence with the promptitude which it called for, and the day after, we arrived at the scene of action. The County town, though of no inconsiderable size, * Peter M'Call. 422 THE FORUM. was literaUy overflowing with witnesses for the prose cution, and visitors drawn thither by the extraordinary features of the case ; and, for a time, it remained un certain whether we should not be in the condition of Noah's dove, with no resting-place for our feet. At length, however, and late at night, we succeeded in obtaining lodgings, comparatively comfortable, and we entered at once upon the business of preparation. A most awful and embarrassing business it was. Without witnesses, without process to procure their attendance, and without an individual to serve the pro cess if we had possessed it, in a strange place and sur rounded by none but strangers, it is hardly to be won dered at that our hearts almost sunk within us, at the idea of the fearful odds which we seemed inevitably doomed to encounter. In this condition, with as cheerful an air as we could assume, we waited upon our chent at her melancholy abode. If fate had so decreed, that the heavy grated door, which groaned on its hinges to receive us, should have closed forever upon me, I do not know that my emotions could have been more poignant upon entrance than they were at that moment. HabituaUy inured as I was to scenes of horror, and ready to do all in my power for the accused, I was conscious, from circumstances over which we had no control, that all would avaU but httle against prejudice and proof, both of which were arrayed in behalf of the prosecution. I contemplated LUCRETIA CHAPMAN. 423 the prisoner as a victim, about to undergo the cere mony of a trial, it is true, but entirely at the mercy of the Commonwealth, and almost without a single helping hand in her extremest need. Some of her witnesses were forty, and some four hundred miles off; not one was present. In aU hu man probability she was hable to be caUed upon in one hour to answer the charge. We conferred with her as fully as the state of her mind and ours would aUow — ascertained the character of the evidence which probably might be procured, fiUed up the subpoenas with our own hands, employed officers for their service from our own purse, and determined that all that was practicable should be done, both for her sake and our own. The main hope ' of our reliance was the mere possibility that the evidence against her might occupy so much time as by chance to aUow the return of our process, and that the witnesses thus procured would enable us, at least, to protract the investigation untU those more remote might be brought to our aid. This was a forlorn hope, it is true, but it was almost all that was left. The trial, as we anticipated, was speedUy caUed. The prisoners were arraigned, and pleaded not guUty, and the case was ordered to proceed. As a last effort in behalf of the defendant, a motion was made for a postponement of the cause, on the ground of the ab sence of testimony ; and after a brief argument, it sue- 424 THE FORUM. ceeded, and the trial was adjourned until the 13th day of February ensuing. Such were the agitation and anxiety of my feelings, during this short period of suspense, that, for weeks afterwards, my health was evidently shattered, and I had barely recovered my composure and equanimity, when the aUotted day arrived. Widely different, however, were my emotions at this time ; the interval had been employed by my coUeague and myself, in the necessary preliminaries of the trial. AU that could be expected was done. Our witnesses were in readiness ; and we at least felt satisfied, that, if life were to be lost, it would not be without a struggle. The eventful morning came, and we took our profes sional post at the side of the prisoner. Apprehension had given place to reasonable confidence ; and, so far from approaching the case reluctantly, we met it firmly at least, if not eagerly. The disclosures of the evi dence, it is unquestionable, were shocking; and are briefly summed up in the foUowing narrative : On the 17th of May, 1831, the young Spaniard to whom I have referred, presented himself, in a tattered and forlorn condition, at the door of Mr. Chapman, whose seminary was at Andalusia. He begged for refreshments and a night's lodging. Mr. Chapman directed him to a tavern but a short distance below ; but the stranger informed him, in his broken language, that he had already made his application there, and, as LUCRETIA CHAPMAN. 425 he had no money, had been refused. Mrs. Chapman then interceded for him, and at her instance, he was permitted to remain. In the course of the evening he related, in the presence of the family, the story of his misfortunes, and interested them aU very deeply in his behalf. He said he was the only son of the Go vernor of Cahfornia, who held immense possessions in Mexico, among which he mentioned a gold and silver mine, and other sources of incalculable wealth. That, as he approached the age of manhood, his father deemed it expedient, in order to the completion of his educa tion, and a proper acquisition of a knowledge of the world, that he should travel and visit Europe, which he accordingly did, under the charge of a distinguished physician, to whose government he had been confided. That they set saU for France, where they arrived without any material occurrence, literally loaded with the wealth which a fond father had lavished on them. It so happened, as the story runs, that shortly after their arrival in France, and while at church, the physi cian feU down in an apoplexy, and instantly died. Don Lino returned disconsolately to his hotel, an utter- stranger, totaUy unacquainted with any other language than his own, and, changing his apparel, which was very costly, for that of an humbler character, threw himself in despair upon his bed. WhUe in this state, the British consul (for his friend was an Englishman,) entered the chamber, and, in his official capacity, di- vol. n. — 28 426 THE FORUM. •rected all the trunks and property to be removed to his stores, in order that they might await the orders of the legal representatives of the deceased. Don Lino remonstrated, through an interpreter, against the injustice of the procedure, alleging that one of the trunks, containing money to the amount of thirty thousand doUars, belonged to him, and explained, as far as he could, the relation in which he stood to the deceased. This was aU considered an imposture by the consul, who told him he was no more than a servant of the physician, a suggestion which derived strength from the present meanness of his attire ; and everything was immediately removed, leavmg the wretched Mexican without money or friends, or the expectation of obtaining either. There are benevolent beings in all countries ; and some individuals of that class consoled him in his afflictions, and presented to him the sum of one hun dred dollars, to defray the expenses of his return voyage. Another difficulty, however, here occurred ; there was no vessel bound for Mexico : but there luck ily then was a vessel about saihng for Boston, in the United States ; and Don Lino, knowing that his grand father owned a vast quantity of stock in one of the Boston banks, and also understanding that an inti mate friend of his famUy, a Mr. Casanova, resided in that neighborhood, he concluded, in his emergency, upon adopting this chance of bettering his condition, LUCRETIA CHAPMAN. 427 and accordingly set saU for Boston, where he arrived early in May. Misfortunes, it is said, never come singly. Upon landing, he found that he had been deceived in relation to the stock ; and upon inquiring for his friend Casa nova, he ascertained that he had recently married, and embarked with his wife for Mexico, but was expected soon to return. Sunk in the depth of disappointment, Don Lino was taken Ul, became subject to extraordi nary fits, and exhausted nearly his last shilling : but hearing, when partially recovered, that there were some Mexican gentlemen with whom he was ac quainted, upon a visit to Count SurvUhers, he set off on his journey, and some days after, arrived at Phila delphia ; when, what was his astonishment, to learn that the Count resided at Bordentown, at his chateau, which Don Lino had passed on his journey. Of course, nothing remained but to retrace his weary steps to Bordentown, which he was engaged in doing, when, overcome by heat, hunger and fatigue, he presented himself, as we have related, at the hospitable mansion of Mr. Chapman. This "melancholy story sent his hearers weeping to their beds." A clay or two afterwards, the carriage was ordered; and Mrs. Chapman, who was the active mdividual of the estabhshment, with the approbation, if not at the request of her husband, in company with one of the pupils of the school, set off with Don Lino, for the 428 THE FORUM. residence of the Count, in the vicinity of Bordentown. When they arrived, the Count was at dinner with some gentlemen, and could not be disturbed. The steward, however, in reply to their inquiries, informed them that there had been some Spanish gentlemen there a few days before, but they had departed. This seemed partially to confirm Don Lino's story; and, as the day was waning fast, and Mrs. Chapman could not wait for an oppor tunity of seeing the Count, they returned again to Andalusia. The result of the journey was communi cated to her husband; and the attentions ofthe family to this distressed, though distinguished stranger, were redoubled. Mr. and Mrs. Chapman both wrote to his parents, in conformity with his direction — apprized them of his situation — pledged themselves to bestow upon him the regard which they should expect to be extended to their own chUdren, in similar circumstances ; and con cluded, by informing them, that, as he was desirous of learning the Enghsh language, the best instruction should be given to him during his residence at their house, that their means would allow. These letters being prepared, Mrs. Chapman, under the authority of her husband, accompanied the stranger to the house of the Mexican consul, for the purpose of procuring them to be forwarded. They waited upon the consul accordingly, who re ceived them with great hospitality and kindness ; and, LUCRETIA CHAPMAN. 429 as Mrs. Chapman had an engagement elsewhere, she left him and Don Lino engaged in conversation, with the promise of returning for the latter in the course of an hour or two, by which time she expected their business with each other would be terminated. Upon her return she found Don Lino at dinner with the consul and his family, of which she was invited to partake. This, however, she pohtely declined; and, taking her seat in an adjoining parlour, she was intro duced to a lady of the house, who expressed to her the high sense of gratitude which she and the fannly entertamed for the lavors which had been conferred upon a friendless, though distinguished Mexican. After various attentions, and an invitation to the house of the consul, she took her leave, and accompanied by Don Lino, returned to her own home. If anything had been required to confirm her and her husband in the entire behef of Don Lino's melan choly tale, it was certainly derived from the supposed reception he had met at the house of a gentleman of unquestionable character ; particularly as that gentle man, being himself a Mexican, was presumed to be intimately acquainted with his own government, and, therefore, perfectly able to detect any imposition that might be attempted to be practised upon him. From this period, therefore, Don Lino was to be considered as a permanent resident at Andalusia, and the famUy of Mr. Chapman, no doubt, one and all, considered 430 THE FORUM. themselves as highly honored by the presence of so exalted a personage. Time roUed on — every succeeding day seemed to confirm the pretensions of the stranger, and the at tachment of those whose hospitable abode he had se lected as his refuge. Mrs. Chapman rode out with him frequently — ministered to his disease whUe sick — introduced him to her friends — spoke of him as her son — and, perhaps, displayed more attention and in terest in his fate, than, in ordinary circumstances, would be deemed reasonable, or even consistent with decorum. Yet his gratitude appeared not disproportioned to the extent of the kindness received. Upon one occa sion, when he was considered dangerously Ul, he exe cuted a document in the nature of a testamentary request, directing his father, upon his death, to pay to Mr. Chapman and his wife, each, the sum of fifteen thousand doUars, in consideration of their services. From this sickness he recovered, but stfil his grati tude had no limits. He stated that he had ordered a magnificent carriage to be buUt for them, under the direction of his friend, the Mexican consul, which would shortly be ready, when he hoped to see his benefactors and their famUy riding and enjoying them selves in it. He desired Mr. Chapman to discharge the workmen engaged in the improvement of his build ing, until his remittances should arrive, when, at his LUCRETIA CHAPMAN. 431 own expense, he would have the house and grounds decorated and adorned in the Mexican fashion. He promised largely, and there was much reason to sup pose his promises would be more abundantly fulfiUed. The easy and supine nature of the husband, and the pride and ambition of the wife, were alike gratified with the idea of countless treasures. The course of assiduous labor in their seminary was now deemed unnecessary; in short, everything was absorbed by the stranger. On the 17th of June, 1831, about the hour of re tiring, Mr. Chapman was taken Ul. On the 16th of June, 1830, Mina was in the City of PhUadelphia, and at that time purchased a quan tity of arsenic — professing to intend it for the pre paration of birds. This was the day before the sick ness of Chapman. The sickness was slight at first ; but, on Monday, the 20th, Mrs. Chapman prepared some soup for him, which she took to the parlor, to season it. At that time, she and Mina were alone in the room. It was further attempted to be shown, that, at this time, the poison was mixed with the soup — taken to Mr. Chapman during the morning — — partly drank by him — and the rest thrown into the yard. In the evening, the chicken of which the soup was made was taken up to him, a small portion eaten, and the residue also thrown into the yard. The next day, a neighbor's ducks died in an unaccounta- 432 THE FORUM. ble manner. This was ascribed to the arsenic. From the time of taking the soup, Chapman got worse, and complained of burning in his stomach — the symptoms indicated arsenic. In the evening, he complained of a want of attention. A friend stayed with him tUl 11 o'clock, when Mrs. Chapman came in, and requested him to retire. He asked her to send for a physician, which she dechned — and no physician was sent for untU Tuesday evening — and his medicines were not administered. Chapman lingered untU the 23d, when he died : and, on the 5th of June following, Mina and Mrs. Chapman were married. Three months after the death, (the marriage and other circumstances leading to suspicion,) a disinter ment and a post-mortem examination took place, as we have already stated. In addition to these matters, it should be mentioned that the defendants, upon the first intimation of suspicion resting upon them, betook them selves to flight, and, after a time, were with some diffi culty arrested. The defence was, that Chapman was an aged man ; that he died from natural causes ; that there was no adequate proof of poison ; that Mrs. Chapman was of good character, and the daughter of a Revolutionary officer ; an estimable and moral teacher ; married in 1816 ; resided in Philadelphia until 1828, when they moved to Andalusia, and lived in great domestic hap piness: with her husband. LUCRETIA CHAPMAN. 433 These facts, as opened by the prosecuting counsel, Mr. Ross, (with whom Mr. W. B. Reed was associated,) were pretty clearly proved by the evidence. That is to say — the purchase of arsenic by Mina — the sickness of Chapman — the administering the soup — the throwing out the residue — the death of the chickens and ducks the day after. In addition to this, the doctors gave it as their opinion, from the state and smell of the stomach, — the symptoms attending the disease — the rigidity of the body after death, and its preservation for months after burial — that the death was caused by poison. There were other portions of the evidence which were fearfully corroborative of that mentioned : the marriage — the letter written by Mrs. Chapman to Mina — and her at tempt to escape from justice, when she became an object of suspicion. The letter, especiaUy, appeared to be almost inexplicable, consistently with the idea of innocence. It ran thus : — "Andalusia, July Z\st, 1831. " Sunday afternoon. " Lino, — Your letters of the 19th and 28th inst. are both now before me, both of which, together with yours of the 18th, have been carefully perused and re-perused by me this day. Your letter of the 19th, written at Baltimore on Tuesday evening, was not re ceived by me untill Friday following ; when my anxiety was so great for you, fearing you were SICK, that I arose, and though I was without a cent of money in my house, (in consequence of having bestowed my all on you,) at 3 o'clock in the morning, and 434 THE FORUM. took a seat in the mail coach, with an intention of following you to Baltimore, if I did not find a letter from you in the Citty ; but what was my astonishment, Lino, when I called at the house of your Consul and was told that you had not been there for a long time, that they had heard nothing of your friend's death, and that your Consul with his sisters had gone to the falls of Niagara, instead of being at New Orleans, as you had informed me your Consul and Minister both were; I then made inquiry at the United States Hotel, and at Mr. De Brun's and then I called on Mr. Watkinson, who told me that your Consul had inform' d him that he believed you to be an impostee ! ! I was thunderstruck at this informa tion ; and told Mr. Watkinson that I could not believe you were capable of so much Ingratitude, as not to return to reward me, who had ever been a sincere friend to you ; the truth of this assertion I believe you cannot doubt ; when you reflect but for a moment that when you were destitute, I took pitty on you, and gave you a home, fed you, clothed you, and nursed you when you were sick, &c. &c. If I have been sincere, why has Lino been induced to practice so much deception on Lucretia ? Why not keep your appointment and return to me the same week you left, on Saturday, at 4 o'clock, as you promised ? — But too well you knew your own guilt ! ! You never intended to return to me : I thank you, Lino, and I thank my G-od, for having returned my dear innocent child Lucretia to me in safety ; for as you have been permitted to prac tise so extensive a robbery on me, I feel thankful that my children are spared to me ; and perhaps may yet prove a blessing to me ; tho' you, Lino, are the cause of my enduring much misery at this present time ; yes, my heart is pained with the crimes you have committed ; think, Lino, (and if your heart is not of adamant,) I believe if you reflect for a moment on the cruelties you have prac tised on me and on my dear daughter Mary, your heart will bleed with mine ! I have now no husband to aid me in supplying the wants of my dear Innocents. Ah ! Lino ! do not extend your LUCRETIA CHAPMAN. 435 cruelties so far as to deprive me of every thing which might be sold to aid in supplying my dear children with food and clothing ! Tell me in your next letter where I may find my horse and Dearborn, if you really have not sold them, but " have left them with a friend till you return ;" as you informed me in your first letter ; but if you have sold my horse and carriage, gold and silver watches, breast pins, finger-rings, medals, musical boxes, silver bells with whistle and cake basket, &c. &c. and do not intend to send me any money as you promised to do, to relieve my distress, or need of money, I say, if you do not intend I shall ever possess any of the property you have deprived me of, than (then) I must tell you that I wish you would never write to me again, and do not request others with whom you correspond, to direct their letters to you here, and to my care, as you will find I have forwarded one to you by enclos ing it in this of mine. But as you have forsaken me, do not tor ment me by sending any more of your letters, filled as they are with fair words and pretended affection. By this time I suppose my rings decorate the fingers of one, whom, perhaps you do love sincerely; and the worst wish that Lucretia sends after you, is, that you may be happy. You say in your last letter that " as often as you remember me, you bathe yourself in floods of tears," and that "you. are dying of grief," &c. I cannot think you indulge in grief if you are in possession of the $45,000 which you wrote me you expected to receive ; and then you visit the President frequently, and have the honour of walking with a Duke of England ; all this must surely make you happy, without your sending even a wish or a thought after me! ! And then, I observe you speak of a female fr;end , who, perhaps, now receives your fondest caresses, and perhaps renders you perfectly happy. But no, Lino, when I pause for a moment, I am constrained to acknowledge that I do not believe that God will permit either you or me to be happy this side of the grave. I now bid you a long farewell. " Lucretia." 436 THE FORUM. The grounds upon which the defendant rested, to resist the facts arrayed against her, were these : That she had not been shown to have known any thing of the arsenic purchased ; that the soup contained no arsenic ; that her daughter Lucretia gave the de ceased the soup — and the chicken ; that she drank of the soup, and ate the chicken, after her father had been supplied, and before any portion had been thrown out ; that she was not affected, and, therefore, the soup could not have been poisoned ; that the ducks did not die of arsenic, but from hme water, by which the house was surrounded, as bricklaying was at that time going on ; that the symptoms were the ordinary symptoms of cholera; that the rigidity ofthe body was attributable to the bleakness of the morning, and the lapse of time before it was laid out ; that the preservation of the body did not arise from the antiseptic properties of arsenic, but from the unusual depth and gravelly cha racter of the grave, and the sloping ground on the sur face, which carried off rain and moisture, and prevented decomposition. As to the flight, it was encountered by the argument, that weak nerves were no evidence of guUt, and that even a woman of undoubted innocence might be terrified, in the horrors of her situation, into indiscretion ; that she was surrounded by rumors, and crushed by grief, and that it was, therefore, too much to expect from her, the conduct which would belong to calmness and composure. As regarded the letter, the LUCRETIA CHAPMAN. 437 footing upon which that was met, is best presented by the following remarks of the defendant's counsel : " There is one letter, however, written by the de fendant to Mina, whUe at Washmgton, which is said to contain at least an equivocal passage, and to afford ground for the belief, in the language of the opposite counsel, ' that aU was not perfectly right.' In passing to the consideration of that clause, we must be aUowed to premise, that it is not sufficient, that aU was not perfectly right ; it is incumbent upon the prosecution to show to your satisfaction that all was perfectly wrong. We agree that all was not perfectly right. It was not right that she should marry within a httle month after her husband's decease. It was not right that Mina should sell her jewels, her plate, her horses, and her carriage, or that he should give away the trunk and books of her deceased husband. It was not right that he should take two ladies to the United States Hotel, and that, remaining there with them, he should pay their expenses and his own out of his wife's honest earnings. It was not right that he should squander her means in the journey to Baltimore, under the false profession that it was for the purpose of obtaining a legacy of forty-five thousand dollars, left by his friend Casanova ; and it was mani festly wrong that he should practise aU sorts of frauds and falsehoods, upon this unsuspecting woman, during his absence. We agree, therefore, as we have said, that 438 THE FORUM. aU was not right ; but we deny that writing under the influences fairly attributable to these manifold outrages, this clause referred to in her letter, is to be considered as an evidence of her having voluntarily aided in the destruction of the deceased. " It is a weU-settled principle in criminal jurispru dence, and it cannot be too steadUy borne in mind, that where the acts or language of men admit equaUy of opposite interpretations, that construction shaU be adopted' which is most favorable to innocence. With the benefit of this doctrine, let us turn to the objec tionable paragraph. I quote it from memory, and shaU wUlingly submit to correction, if I quote it erro neously. ' When I reflect, Mina, I am constrained to acknowledge, I cannot believe, that God wUl suffer either you or me, ever to be happy on this side of the grave.' Was not reflection upon the events just re ferred to entirely sufficient to induce these expressions, without imagining the perpetration of an offence so heinous as that charged against the prisoner ? She had been imprudent ; she had been imposed upon ; she had been impoverished, together with her chUdren, to whom she was tenderly attached. And if this were not a state of circumstances calculated to produce such a reflection, I am utterly at a loss to conceive what would be. On this side of the grave, indicates worldly suffering for worldly indiscretion. If she had been guilty of the imputed crime, her fears would not have LUCRETIA CHAPMAN. 439 faUen short of that punishment which awaits the wicked beyond the grave. " Taking these letters aU together, and carefuUy pe rusing them, nothing can be found inconsistent with the consciousness of innocence. Can you suppose, if this woman had committed so odious and hateful a crime as that imputed, writing as she did, under the sanctity of a seal, and to her partner in iniquity, she never would have aUowed a single word to escape her, in which the lynx eye of the prosecution could perceive a semblance of guUty remorse or timidity ? If we are determined to suspect crime first, and then to distort and pervert every thing to the support of that suspicion, no man, innocent or otherwise, can escape punishment. I defy the counsel, with all their learning, skiU, and accuracy, to write a letter upon any subject, in which I cannot detect, being suspiciously disposed, either an intention to conceal some motive that they entertain, or a dispo sition to convey some idea that they do not. If their composition be loose, it wiU be indefinite and equivocal, and admit of a vast variety of constructions. If it be terse and precise, we may plausibly infer, from that very terseness and precision, that they are anxious to guard themselves against the disclosure of some lurk ing motive." The trial commenced on the 13th of February, 1832, and, on Saturday night, on the 26th of February, after an able charge from Judge Fox, the jury, upon an 440 THE FORUM. absence of two hours, returned a verdict of not guUty, and the defendant was discharged by proclamation. Mina was afterwards tried on Tuesday, 25th of AprU, 1832. Mr. Ross and Mr. W. B. Reed prosecuted. The defence was conducted by Mr. M'Dowall and Mr. Samuel Rush. The prisoner was convicted on Friday, the 28th, after a dehberation of three hours, was sen tenced on the 1st of May, and was subsequently exe cuted. The most surprising incident to this cause we have now to relate : At the beginning of the trial, prejudice ran so high, that there was but little room for hope. That prejudice, however, diminished every day — and, on the Sabbath, (the day after the acquittal,) those who had previously been most violent against Mrs. Chap man, visited her in crowds, congratulated her, and ac companied her and her children in their carriage, in a sort of triumphal return to her house in Andalusia — the aUeged scene of a husband's murder ! In taking leave of this melancholy and remarkable case, although professional compliments should form no part of our present business, we cannot do less than say, that Mr. Ross, Mr. W. B. Reed, and Mr. M'CaU, aU of whom were comparatively young men, (and this being probably their first highly important case,) mani fested an abUity and eloquence which have rarely been surpassed, and which wiU long be remembered. LOVE, JEALOUSY AND MURDER. 441 LOVE, JEALOUSY AND MURDER. In the year 1834, the town of Bordentown, and, in deed, the whole State of New Jersey, was appaUed by the brutal murder of a young lady of a respectable po sition in hfe, and of no inconsiderable personal and men tal accomplishments. The murderer was a young man, a native of New England, who held a reputable standing in society, and who was employed as a contractor and engineer in Burlington County. The lady married in very early life, and had been left a widow, with two infant chUdren. She resided with her mother, who kept a select boarding-house, and it was by C 's becoming an inmate of that house, that the ac quaintance was formed which, in a few short months, had so horrible a termination. There was no disparity either in the age or condition of the parties, which for bade their alliance ; and there soon grew up between them a kindness, not to say a tenderness of feeling, which, on his part, ripened into devoted attachment. The lady, though she did not encourage, did not check his growing passion as soon as she ought; and when her suitor made proposals of marriage to her, which she de clined, or at least postponed, the revulsion produced by his disappointment almost drove him to desperation. He jealously watched all her steps — became enraged at any civUity or consideration bestowed by her upon any one vol. n. — 29 442 THE FORUM. to his exclusion, and became almost frantic at her hav ing, at a large sleighing-party, withdrawn from his sleigh and taken a seat in another. In short, there was no thing so harmless or insignificant in the deportment of the lady, as not to be construed by him into cruelty and wanton disregard. In this condition of things he threw up a profitable business — collected the money due to him, which amounted to a considerable sum, and uniting himself with some rowdy and reckless com panions, he took, as he professed, a final fareweU of his inamorata, and hurried off to the city of New York. There he threw off aU restraints, indulged, contrary to his former habits, in the pleasures of the bowl — in gaming — and almost aU the other vices. All this was apparently the result of despair rather than of tempta tion. In a few days, of course, he was stripped of all his honest earnings — robbed of his watch — deprived of some portions of his wardrobe — and in less than a fortnight, beggared and disgraced, and full of revenge against one, to whom he attributed all these disasters, (from her having rejected him,) he returned to his former lodg ings at Bordentown. Here he was confined to bed, from the effects of the excesses referred to, and during his confinement he was occasionally attended upon by the lady of his choice. He renewed his appeals to her, which, with greater reason than before, she discounte nanced, though with the greatest delicacy and propriety. Finding that there was no hope of his suit proving LOVE, JEALOUSY AND MURDER. 443 successful, he resolved that no rival should triumph ; and having prepared a dagger, and an ounce of lauda num, upon her next visit, on her again dechning the proffered marriage, he caught her feeble form with one hand, and with the dagger in the other, struck her eleven times to the heart. He next seized the lauda num, which was on the table near by, and attempted drinking it; but he was so excited, tremulous, and horror-stricken with what he had done, that the con tents of the phial were spUt, and the murderer was re served for the gallows. The most remarkable circumstance connected with this atrocious homicide, was this, that after the eleven wounds, aU of which penetrated the heart, the poor victim called loudly and repeatedly for her mother, extricated herself from the grasp of her assailant, and walked down a flight of stairs. In the room below she fell, and in a few minutes expired. The offender made no attempt at escape — no excuse — but remained there stupefied with horror ; and was finaUy removed, under the heaviest execrations of an outraged community, to the jail at Mount Holly, there to await his trial. Such was the state of matters when counsel were apphed to, to defend the prisoner. A gen tleman of Mount Holly was associated with Mr. Isaac Hazlehurst and myself, and aU proper means were adopted, in order to afford the defendant a fair trial. Any trial, however fair, would have resulted in his 444 THE FORUM. conviction. The prejudice at the time ran so power fully against him, that with the shghtest show of proof, there would have been but httle hope of success. The blow was struck — a woman — an estimable woman, was the victim ; and as to what might be called a meta physical defence, it was absurd. How could counsel give an ordinary jury to understand the delicate struc ture of the human mind — its liability to sudden over throw and insurrection. In order to the success of such an argument in any case, there must be reflecting minds to appeal to. There was scarcely a man on that jury that knew what mind meant, and the foUowing appeal to them was not only lost, but thrown away. " That man, who shall have determined upon the guilt of the prisoner, without having heard what his counsel, feeble as they are, may urge in his defence, has permitted his zeal — his honest zeal, if you please — to rob the defendant of the threefold shield which law, justice and mercy themselves have supplied. " Hear him for his cause — it is a solemn appeal — it is a story of the heart traced in characters of blood — and its sequel will be life or death. In such a case, the bosom must be locked up in triple steel, that now, in the prisoner's extremest need, can withhold its sympathies — its charities, from one who, whether guilty or inno cent, craves only the humble boon of being heard before he is ad judged — fairly and fully heard, as you yourselves would be entitled to be heard, should the great Disposer of events in the mysterious vicissitudes of life place you in his condition, and him in yours. " In what shall be .urged in his behalf, I wish to deal fairly with you — and I am sure you will in return deal fairly with me. I LOVE, JEALOUSY AND MURDER. 445 ask you, then, to abjure the idle rumors of prejudice, as it respects the subject of the issue which you are to try. Without this, all reasoning is vain; as the mind at once rejects, without examining, that to whieh it is opposed. I ask you to abjure it, not only as it respects the prisoner, but his counsel — the former, I trust you have done ; the latter, I am sure you will do, when you perceive that the indulgence of one is just as fatal to the objects of justice as the other. " I speak not for myself personally — in this case I am too insig nificant to be the subject of remark, being utterly lost in the im portance of the occasion ; but I speak to the views that are too generally entertained of professional exertion in behalf of an indi vidual who has fallen under the ban of public reproach. It is too often imagined that professional remarks should be disregarded, or placed to the account of the pride of advocacy, instead of being received with a ready ear, and weighed and considered by a willing and a feeling heart. We are often told, and we shall be told again, that the facts of the case are the polar star by which you are to steer. Agreed, they are so — but the reasoning on the facts is just as important to a judicious result as the ascertainment of the facts to which that reasoning is to be applied ; and you do the defend ant — you do yourselves — you do the justice of the country as much wrong in closing your minds against a fair and honest dis cussion of the principles of the case, as though, disregarding or dispensing with all evidence, you should, by your foreman, upon the indictment being read, promptly pronounce the verdict of death, and rely for justification upon the columns of some pernicious news paper. Hear all— try all — hold fast to that which is good — and let the world frown as it will, the light of heaven will rest upon your verdict, a light which no earthly tempest can either extin guish or obscure. " The advocate, it is true, may be feeble — but so much the more important is it that you should lend him your honest aid, and not 446 THE FORUM. diminish the little strength he may possess by increasing the diffi culties to be encountered. In vulgar, though emphatic language, o-ive us fair play, let us all discharge our duties mutually, faith fully, and harmoniously. If we are to offer up another victim — let him, I say, be offered up at least with those ceremonials which become the ministers of justice, and her own sacred temple, and not swept from the face of the earth by a whirlwind of blind, in discriminate, headlong and exterminating rage. I ask this for the prisoner — Will you refuse it ? I solicit it for justice — Can you re fuse it ? I demand it for yourselves — Dare you refuse it ? "There has been, we are told — Death — an untimely death — the death of an amiable, an accomplished female. I mourn as much as the opposing counsel, while I am compelled to confess it. But is the calamity abridged by depriving another fellow creature of his life ? Will the flowers refuse to spring from her pure and unpol luted grave, unless moistened and nourished by the blood of the prisoner? 'But,' says the learned counsel, 'she died by his hand' — fatal and unquestionable truth ! Yet all this may be, and still to deprive him of life, may be less pardonable than even the offence which is the subject of complaint. It is the heart and not the hand of the alleged offender that is to be examined. It is the motive, the impulse, and not the act itself that is the subject of contemplation. Thousands of cases present themselves — none more melancholy or deplorable, it is true — but all more heinous, in which life may have been lost, and still the actors in those bloody scenes remain free from legal or moral reproach. "Man is a moral and responsible agent; such, at least, is his presumed character, and as such he is rewarded or punished. His reason is sovereign, and he is a traitor to it, should he voluntarily abuse or pervert its divine precepts. But take reason from him — destroy all the delightful harmony of the intellectual structure, and render it like 'sweet bells jangled out of time and harsh,' and where is his responsibility, either to this world or the next ? Would LOVE, JEALOUSY AND MURDER. 447 it not be barbarous — manifestly unjust, to add to the afflictions- of a distracted and distempered mind the still heavier curse of an ignominious and disgraceful death ? — a death provided and designed only for those the condition of whose mental faculties supplies them with the rational power to choose between good and evil. I agree that all men are presumed to be sane until the existence of insanity be shown — and, on the other hand, I contend that when general insanity is once shown, the presumption is in favor of the alleged offender, and it is incumbent upon the prosecution to defeat or remove that presumption by establishing a lucid interval at the time of the commission of the offence. But, if the insanity relied upon be not general, but partial, and of a temporary existence, all that those on the part of the prisoner are bound to show is, that the insanity existed at the very period to which the charge against the prisoner refers. " In the construction and interpretation of the evidence upon these points, however, there is this essential difference — We having succeeded in creating rational doubts of the sanity of the defend ant, the mercy of the law, which, as I have said, ' spreads undi vided, operates unspent/ through all stages and branches of crimi nal jurisprudence, entitles the defendant to an acquittal. For there is no difference between a reasonable doubt of the commis sion of the act itself, and a similar doubt as to the moral agency or responsibility of the defendant. It is in vain for the gentlemen to tell you that the fact itself is as plain as a sunbeam ; that it has been abundantly proved — that it is not denied. The indictment charges the act with having been committed feloniously and with malice aforethought — the motive is the essence of the offence, and where there is no mind there is no motive." The defendant, as has been intimated, probably could never have been entirely acquitted, but stUl, the 448 THE FORUM. difficulty of the case was increased by the state of the law at the time of his trial. There was at that period no "murder in the second degree," in New Jersey.* Felonious homicides were there divided, as in England, into murder and manslaughter. The gulf between murder and manslaughter was too wide to be over leaped. Nor is it even certain, that if murder in the second degree had existed under the laws, that the facts in this case could have been reduced to that limit. After a trial of upwards of a week, during all which time the able Chief Justice, Hornblower, displayed alike great comprehensiveness of mind and great humanity, the result was a conviction. The counsel concerned for the prosecution, were Mr. J. Moore White, Mr. Warren Scott, Mr. Southard, Mr. Dayton, and Mr. HamUton. For the defence, Mr. Cambloss, Mr. Hazlehurst, and David Paul Brown. The arguments were elaborate, but on the part of the defendant, almost entirely hopeless. During the course of the trial there was an occur rence which is entitled to notice. When I first called upon the prisoner, after he had furnished me with some of the prominent details, I asked him how the deceased was dressed at the time of the blow. He said, in black. I observed, "that was better than if the dress had been white." Upon which the prisoner turned * Murder in the second degree has since been introduced, and the law in that respect in New Jersey, resembles that of Pennsylvania. LOVE, JEALOUSY AND MURDER. 449 hastUy round, and asked what difference that could make. The reply was, "No difference in regard to your offence, but a considerable difference in respect to the effect produced upon the jury by the exhibition of the garments, which no doubt, will be resorted to." And so upon the trial it turned out. The black dress was presented to the jury — the eleven punctures through the bosom pointed out — but no stain was observable, no excitement was produced. At last, however, they went further, and produced some of the white under gar ments — corsets, etc., all besmeared with human blood. Upon this exhibition there was not a dry eye in the court-house. And the current of opinion continued to run against the defendant from that moment untU the close of the case, and finaUy bore him into eternity. There are two other matters — matters connected with the history of the unhappy man — that deserve notice. After his conviction, when stepping into a car riage "with my famUy to return home, I was informed by a person that C wanted to see me, and that he had resolved to take his own hfe, in order to avoid public execution. Directing my famUy to wait for me, I went forthwith to the prison, where I depicted to him the horrors and the hopelessness of suicide — showed him it was a crime of the darkest dye — that, as it was the last act of his life — and as there was no repentance in the grave, his perdition must be irrevo cably fixed. After going into the matter much more 450 THE FORUM. fully, the unhappy man rehnquished a knife, which he had concealed in his clothing, and abandoned the notion of "self-slaughter." Subsequently, and as the time for the expiation of his offence was drawing near, he became very much alarmed, but strange to say, his fears were aU directed to physical suffering — the pains of the body — in the article of death. He consulted the doctor as to the best mode of avoiding prolonged agony. He studied the length of the rope — the fall that would be necessary to dislocate the neck, and adjusted all his plans with the utmost care. But whUe making these sad arrange ments, he also contrived to loosen and remove the bars of his ceU, and to escape through an aperture thus formed, of not more than fourteen inches square. He was gone — rewards were offered — the county swarmed with pursuers — the woods in the neighborhood were surrounded, but no discovery was made. In a short time no doubt the search would have been abandoned ; when, on the night of the second day, he issued volun tarily from his hiding-place with an axe upon his shoul der, and surrendered without any attempt at resistance, declaring that he was hungry, and had had nothing but a few crackers to eat for the last forty-eight hours. This is, perhaps, the most extraordinary feature in the melancholy career of this young man — shrinking from an ignominious death — having succeeded in escap ing from his imprisonment, and eluding his pursuers — MURDER AND MAGNANIMITY. 454 a good swimmer, and within a short distance of the Delaware river, which, once crossed, he might have considered himself safe. That, in these circumstances, he should have loitered about in the woods, in the neighborhood of the prison, for more than two days, and then voluntarUy surrendered himself, because he was hungry, would almost seem to exceed the limits of rational belief. Yet, so it was — and the gaUows was the sequel. MURDER AND MAGNANIMITY. The earhest case that I distinctly remember, was that of John Joyce and Peter Mathias, for the murder of Sarah Cross. I was then nearly twelve years old, and as the murder took place in the neighborhood of my residence, was induced by youthful and natural curios ity to go to the court to hear the trial. The court-room was very much crowded, and it was only by favor that admission was obtained. The prisoners were de fended by Richard Rush — afterwards Secretary of the Treasury of the United States, Attorney General, etc. — and by Nicholas Biddle, a distinguished scholar and most accomplished gentleman, subsequently President of the Bank of the United States. In despite, however, of the abUity and eloquence of the counsel, both of whom were very young men, 452 THE FORUM. though of great promise, the defendants were convicted, and shortly after, executed. The execution was much talked of among the chUdren at the time ; and as one of its mysterious and startling incidents, it was said that after Peter, who was the least offender, was cut down, by dint of the galvanic process he had been restored to life. Years roUed round. The murder and the miracle, as it was considered, were both forgotten; when in the year 1822, (fourteen years after,) Luke Morris, Thomas Harrison, and Isaac T. Hopper, called upon me to de fend an aUeged fugitive slave from the claims of his master.* The case was to come before Recorder Reed, who had consented to give a hearing at the Prune Street Prison, where the slave was confined. On arriving at the place of trial I approached the respondent, and privately, as a preliminary, mquired his name. He told me his name was Peter Mathias ! as quick as lightning, my boyish recollections recalled to my mind the report that Mathias had been restored to life by the galvanic experiment. Scarcely doubting that the man before me was this veritable personage, and in voluntarily somewhat recoiling from him, I exclaimed, " Peter Mathias ! — why a man of that name was execut ed some years ago for murder." My astonishment was not a little increased, when he replied, " Come near, and I wUl tell you all about it." If I had had any doubts * The master was represented by Charles Jared Ingersoll. SUPPOSED MUTUAL MURDER. 453 before they would have vanished. Upon approaching him, however, he soon relieved my apprehensions by the foUowing extraordinary disclosure : " My name is not Mathias, but John Johnson. I knew Peter Mathias when he was thrown into prison. I also at that time was imprisoned for an assault and battery. On the morn ing that Peter was led forth to execution, he caUed me to him, and said, 'John, you are a slave; I am. free; here are my freedom papers ; I am going where I shall not want them ; they may be of use to you — take them ; change your name to Peter Mathias ; and if your mas ter should ever claim you, show these papers, and they wiU protect you.' " Of course, no honorable advocate could take ad vantage of such an artifice, and the unhappy man was restored to the claimant. This simple story is intro duced to show in what horror slavery is held by these wretched beings ; and also to show how much magnanimity may be sometimes concealed under a sable skin. Had Peter been a Roman, he would have figured for this one act upon the historic page, and secured an immortahty of fame. SUPPOSED MUTUAL MURDER, On a Sabbath night, in the summer of 1845, a man staggered into my office, weak from exhaustion, and 454 THE forum. perfectly wUd with terror, and suddenly exclaimed, " I have just kiUed a man, and I want your advice as to what I am to do." " First let me know," I replied, " what you have done." The story ran thus, in his own words : "As I was coming out of Darby with my gun, two gentlemen drove along in their buggy, and so closely to me, that my gun got caught in the wheel, and broke one of the spokes. Immediately one of the gentlemen jumped out, and approaching me vio lently with a loaded whip in his hand, struck me with great violence, and as he passed, I struck him with the butt of the gun, and he fell dead." I suggest ed the probability that he was not dead. But the poor man could not change his mind, and added, that so great had been his terror, that he had taken a back road and run all the way to the city, a distance of five nfiles. "Now," added he, "what am I to do ?" The advice given to him was to repair immediately to a neighboring magistrate — to relate his story exactly as he had related it to me — to request it to be taken down in writing — to give his exact residence, and to promise to give any bail, or surrender himself to prison. All this was done, and my name was left at the office of the magistrate. Three days after this, the magistrate called upon me, and requested that I would send the self-accused man to his office, and related the following circum stances : " Yesterday morning," said he, "a gentleman, INFANTICIDE. 455 slightly injured about the head, called and informed me that he had reason to beheve he had kUled a man on the Darby road ; that he had struck him a heavy blow with a loaded whip ; that he himself also received a blow by which he was prostrated ; that upon recovery, the party whom he struck could nowhere be found, and that no doubt he had dragged himself into some covert or ditch on the road-side, and there died; that as night came on, he could not be found, but no doubt was dead, as the blow was a severe one." The two ghosts were of course soon brought together, and there never were two apparitions more delighted — so they shook hands — mutually paid costs — and parted friends. INEANTICIDE. A young and interesting girl, of a respectable posi tion, had trusted, and been betrayed. She became a mother. At the age of three weeks the child died — somewhat suddenly. A post mortem examination took place. The death was said to have been produced by arsenic, and the medical witnesses strengthened that opinion by their testimony. The mother was indicted for murder, and was tried before Judge Symser, of Montgomery County, a humane, an industrious, and eminent judge. In addition to the scientific evidence, and in strong 456 THE FORUM. corroboration of it, it was shown that a day or two before the death of her infant, the mother had sent for half-an-ounce of arsenic to a grocer's. That after the death the arsenic was taken to the grocer's, and was weighed, and had lost twenty-four grains in its weight. This circumstance, together with the opinion of the chemist, presented a strong case. Nei ther was sufficient in itself, but together they were dangerous. Of course, the cross-examination as to the weight, was very rigid and severe. Upon this particular point it ran thus : "When the arsenic was purchased, how did you weigh it ?" " I weighed it by shot." " How many shot ?" " Six." " Of what description ?" "No. 8." " When it was returned, did you weigh it in the same scales?" "Yes." " Did you weigh it with the same shot ?" " I weighed it with shot of the same number — for I had no other number." " How much less did it weigh ?" " Twenty-four grains less." It was plain that this testimony bore hard upon the prisoner — but at this stage of the case the court ad- CASE OF DR. ELDRIDGE. 457 journed. Immediately my coUeague (Mr. Boyd) and myself visited the stores of aU the grocers, and took from various uncut bags of No. 8, the requisite number of shot, subjected them to weight in the most accurate scales, and found that the same number of these differ ent parcels of shot varied more in weight than the difference referred to as detected in the arsenic at the- time of its return. The shot — the grocers — the apoth ecary — the scales — were aU brought before the Court.. They clearly estabhshed the facts stated, and enabled! us fairly to contend that there had been no portion of the arsenic used, — which argument, aided by the excel lent character of the prisoner, proved entirely success ful, and after a painful and prolonged trial, she was acquitted; so that her life may be said to have been saved by a shot. CASE OF DR. ELDRIDGE.— FORGERY. On the 1st of May, 1840, the newspapers teemed with accounts of a series of forgeries, perpetrated the day before, on twelve of the PhUadelphia banks, that, for skUl and boldness, surpassed aU former exploits in the annals of that branch of crime. It seemed, that more than a year before, the offender, whoever he was, had opened accounts in twelve city banks, and had kept them in active motion untU the final consumma tion of his purpose. He used the names of three firms, vol. n. — 30 458 THE FORUM. entirely fictitious, viz., in four of the banks, Geo. B. M'Kee & Co.; in four others, Sternes & Wood; and , in the four other banks. It was ap parent, from an analysis of the deposits and drafts, that his whole stock of cash was less than twelve hun dred dollars, yet, with this sum of money, he kept up the appearance of a hvely business account in each bank, by drawing and depositing continually, and thus established with the teUers, for these fictitious firms, a familiarity and confidence that enabled him to achieve, in the end, complete success. The plan which he adopted, was this :, In Octo ber, 1839, aU the city banks had suspended specie payments, and had not yet resumed; it was, there fore, policy on their part, to reduce their circulation as much as possible ; and the mode they practised to carry out that determination, enabled the forger to mature his purpose with less risk, if, indeed, as was generally beheved, it did not suggest it to him. The checks of their customers were no longer paid in bank notes ; but, as presented, if of any amount, were marked on their face " Good" by the paying teller, with his signa ture subscribed. These checks were then passed from hand to hand ; but, generaUy, they were deposited in banks by the holder as cash, in the bank in which he happened to keep his account. For some months after this system was adopted by the banks, it was carried out with great strictness. No CASE OF DR. ELDRIDGE. 459 bank notes could be obtained from any bank in payment of checks. In course of time, however, the banks relaxed the rule ; and, in AprU, 1840, they would, if desired by the holder, pay out their notes, though certainly some what reluctantly. On the 30th of AprU, the ingenious contriver of the scheme we are describing prepared thirty-six checks, twelve for over, eight hundred dollars each, twelve for over four hundred dollars each, and the remaining twelve for twelve hundred and thirty doUars each. The two former series of checks, were drawn by each of the fictitious firms, on one ofthe particular banks in which the account of that firm had been kept, and all marked "Good," with the forged signature ofthe paying teUer of the bank. The remaining checks were drawn ready for use, whefithe forged checks should be deposit ed, and entered as cash in the respective banks. On the day of final operations, the money remaining had been prudently withdrawn from the banks, so that nothing should be wasted. Armed with these thirty-six checks, and with his twelve bank books, the forger started out, on the 30th of April, 1840, to reap his felonious harvest, and, in two or three hours, succeeded in obtaining twelve hun dred and thirty dollars from each of the twelve banks whom he had favoured with his custom. He deposited in each, one of the checks of over eight hundred dol lars on another bank, and one of the checks of over four hundred doUars, also on another bank, adroitly 4g0 THE FORUM. placed with thirty dollars in bank notes in the bank book ; and the credit was entered by the receiving teller. He, then, in every instance, walked to the desk of the paying teller, presented the check of twelve hundred and thirty dollars upon that bank, stated that he wished it paid in notes, and received the amount accordingly. The operation went through with the most complete success. In fact, the forgery of the signatures of the paying teUers of the different banks was so well executed, that, untU they were carried around, as usual, to the banks the next morning, and the comphcated machinery of the fraud graduaUy de veloped itself, no suspicion was excited. The interest excited by this bold exploit in crime, was soon after increased, by the remarkable circum stances connected with the arrest of the party accused. It is due to the defendant to say that after a series of trials he was acquitted. PERILS OF INFIDELITY. One of the most extraordinary characteristics of an infidel, and one that I have never heard adverted to, is, that while he assumes bravery enough to defy the Deity and trample upon his holy word, he is, of aU human beings, the greatest and most unmitigated cow ard, when opposing his fellow men, and confronting human laws. He can bear prospective and eternal PERILS OF INFIDELITY. 4Q1 punishment beyond the grave, but immediate and tem poral punishment, though it be but the punishment of opinion, entirely overthrows his philosophy. I have known a witness engaged for hours in endea voring to evade an acknowledgment of his infidehty, though he would voluntarUy obtrude it, perhaps, upon any private opportunity. For the benefit of those who are of this way of thinking, and who consider future pun ishment so remote, as to venture to sport with and in vite it, we may be permitted to say, what to some wiU be matter of novelty, and to many matter of interest, that in most Christian governments, and especiaUy in this RepubUc, no man possesses the full franchise of a citizen, who does not beheve in a Creator, or a future state of rewards and punishments. Nay, to such a depth is he degraded, that he not only can hold no office of trust or profit under the Constitution and laws of the land, but he cannot be permitted to testify, either for or against another, or in his own behalf, even where he has sustained personal injury : he is placet, upon the footing of a felon, against whom sentence has been pronounced, with this difference, that the convict may be restored to competency by pardon, though he retain the stolen goods, but the Atheist never can be restored, untU he recant his opinions, and of course, cease to be an Atheist. We remember two remarkable instances, Ulustra- tive of these positions ; one in a civU, the other in a 4g2 THE FORUM. criminal case : — A merchant of great wealth, having instituted a suit against another, offered himself to prove, according to the general legal privilege, his books of original entries, upon the estabUshment of which, as they were kept in his own handwriting, his entire fortune depended. Before he touched the Bible, to be sworn, the opposite counsel called two witnesses, who proved that some months before, the plaintiff had stated that the Bible was no better than a romance, and that future rewards and punishments were all a farce. Of course he was excluded, untU with difficulty he succeeded in showing, that since the time of using those expressions he had reformed his opinions, become a regular attendant at church, and had invoked the aid of a minister ofthe gospel in the last sad offices perform ed for a dying friend. How narrow was his escape from annihilation on this side of the grave! When finaUy aUowed to be sworn, you may suppose he professed the most devout belief in aU that was necessary to ren der his testimony effective. The other case to which I have referred, was that of an individual charged with murder ; the only evi dence against whom, were the dying declarations of the wounded party. He was shown, also, to have re peatedly used expressions simUar to those adverted to in the civil case ; and although a consciousness of ap proaching death is deemed equivalent to the obligation of an oath, yet as an infidel could not be sworn, his PERILS OF INFIDELITY. 453 dying declarations could not, of course, be received. These decisions of the law, to say nothmg of piety, are founded in the purest reason.* Every man who becomes a witness, assumes an obligation to teU the truth ; but where is the obligation in such a case as this ? A man who does not beheve in a God, certainly has no right to chaUenge belief at the hands of his feUow men. But, as we have intimated, there are stUl other disabilities to which an unbehever, such as I have spoken of, is subjected. From the highest to the lowest pubhc office or function in the General or State govern ments, the sanction of an oath or affirmation is required. The President of the United States, the Senate and House of Representatives — aU the members of the judiciary — the jurors, who are to determine upon the rights and hberties, and lives, of those committed to their charge ; the counsel, who are attendants upon the courts of justice — nay, the very bailiff or tipstaff who escorts the jury, are aU sworn to the faithful dis charge of their respective duties, and therefore, no man who is an unbehever, in the sense in which we have spoken, can be competent to fill any of those posts, or exercise any of those functions, or indeed any other office or function which, under the Constitu tion and the laws, requires the preliminary obhgation of an oath. These penalties, or these deprivations of privilege, * Lord Bacon. 464 THE FORUM. as they may more properly be called, belong to civU polity, and are essential to those principles upon which the administration of temporal justice is founded. TRIAL OF JOHN WINDSOR FOR MURDER. As remarkable a case of murder as probably ever happened in this country, is that which is now briefly placed before the reader. It was tried be fore the Court of Oyer and Terminer, held at George town, Delaware, on the 25th day of June, 1851. The trial itself was surrounded with circumstances some what unusual. The case occupied nearly two weeks; and the excitement produced through the surrounding country became so great, that several days were occu pied in obtaining a jury. This, however, was at last accomphshed, after exhausting the regular panel and a great number of talesmen : sixty-four chaUenges for cause, and fifteen peremptory challenges, having been made. But we pass over many unusual incidents connected with this case, and proceed to a brief history of the facts essentially involved in the issue. The prisoner, John Windsor, was a man of about seventy years of age, of small and deUcate person, and bore the appearance of having been respectably as sociated in life, and proportionably well educated. Through honest industry and attention to business he TRIAL OF JOHN WINDSOR. 465 had succeeded in laying up a pretty considerable amount of property. About six years before the time of this trial, he lost his first wife, and some two years after that event, married the unfortunate woman who came to her untimely death by his hands. She was quite young — some twenty-three years of age, and described to have been interesting, faithful, affectionate, and, in a word, aU that her husband conceived she was not. By this wife, Windsor had two chUdren; but so far from their births affording to their paternal parent the pride and satisfaction that it would be supposed his ad vanced age would receive from such events, they were the innocent cause of that unfounded suspicion which finally developed itself in decided monomania, and ter minated in the murder of this unoffending and inno cent woman. Windsor conceived the idea that these children were not his own — the notion originating, no doubt, from his reflection upon his advanced age, and the great disparity of years between himself and wife. There was, however, no proof of this, though it is a fair surmise, to explain how the demon of jealousy and suspicion first crept into his bosom. He had been married before, and from aU that appeared to the contrary, had hved peaceably enough with his first wife, who, we believe, never brought him any children. He had always been a strange man, and by ordinary people, would have been considered an insane man, as far back as he could be traced, but by 466 THE FORUM. the extraordinary people of the county where he hved, it appears he was regarded without remark or suspicion. His beliefs and superstitions on many subjects were kin dred to those of others, and in proportion as he exceeded them in his disordered flights they venerated him rather as a superior being. He beheved in ghosts, in fortune tellers, charms, and witches — so did they. Their foUy was from ignorance — his from a diseased physical organ ization and perverted mind. But this distinction they could not see ; and the fact has only been adverted to here for the purpose of showing how difficult it would be to convince such a set of people that any man could be insane, whatever might be his doctrine or conduct. The doubt of the legitimacy of the children having once entered his mind, it naturaUy sought for objects to connect with it and strengthen it. It seems that there was one Joseph Osborne, who was acquainted with Windsor's wife, and frequently visited the defendant's store and house — upon this man his suspicions feU, though without the slightest foundation. For some considerable time previous to the murder, Windsor watched every action of his wife and this Osborne, closely. Then: most innocent and ordinary actions were construed by him into evidences of the strongest guUt. He made memoranda on pieces of paper, and the backs of old almanacs, etc., of every thing they did and said, every expression of their countenance, their slightest gesture, both when they TRIAL OF JOHN WINDSOR. 467 were apart, and together. Some of his entries were such as these : " Uth of April. — Found them fastened up together — wife confused, etc. QuarreUed with wife about it. Wife abused me about Osborne. She would delay milking tUl dark to meet 0. ; traced their tracks ; showed them to Ann and John Rollins ; caught them together afterwards. She went home 5th January, 1848, to her father's ; before she went, she took a saunter in the garden to the grape-house, touched the strainer as she passed, and 0. met her there; saw the track plain ; saw him in the cooper-shop beckon ing for her. January, 184 7. — Saw wife and 0. winking; he patted her on the shoulder. February 14. — She went to see 0. March l4\th. — Wife angry because she can't see 0., which she says is heaven; says she didn't hke me. May 2. — They meet out — so every oppor tunity whUe I was sick. He poisoned my dog. July 9. — Wife abused me — said I was a fit associate for BUly Briam. Aug. 20th. — She was with 0. last night. I looked sulky in the morning, and she took the hint and denied it. Oct. 11th. — She was with him in the stable. I now found out that rattling the strainer was a sign for him. April 1. — Said she was not satisfied with me; said I need not accuse poor 0. June 7th and 9th. — They were together; also 28th and 29th. She erased the tracks with a hoop ; she made sport of my accusations. She found out she was preg nant, and tried to make me beheve it was mine. I 468 THE FORUM. walked with her, and going by where the strainer was hung, she touched it ; knowing it was a sign for 0., I accused her of it, and she ' blowed me,' which came near kUling me, etc., etc." These notes contained almost a diary of his suspi cions — his wife's conduct, etc. ; a note of every one who came to the house, and showed suspicions of almost every one. They stated many instances of abuse of himself by his wife, by words and blows ; most aggravating and tantalizing language, &c. The above extracts, from the original papers kept by the prisoner, and produced at his trial, wiU serve to give a fair idea of his condition of mind at the time to which we refer. Day by day, this delusion strengthened upon him. And there was stUl another cause more extra ordinary, added to it. He supposed (obviously, from his reliance on witchcraft,) that his wife and Os borne had acquired the power of blowing "a hot, poisonous stuff" upon him, and that they were con stantly ' exercising this power, for the promotion of their criminal intercourse. Nor was this suspicion confined entirely to these two, but he thought that several of his neighbors, that he believed to be con federates with and abettors of his wife and Osborne, possessed a simUar power of doing him injury. He said that they all could bloiv this hot stuff upon hhn from a considerable distance, and that his nose, face, head, TRIAL OF JOHN WINDSOR. 459 and whole body, were continually burning with it. It was to this power that he referred, when he speaks in his memorandum of his wife's having "blowed him." In a short time from the commencement of these two several delusions, they became combined together — inseparably — and finally took entire possession of his mental faculties. His entire haUucination had reference to his wife's infidehty, and the conspiracy to poison him. He would sometimes get up from his bed in the middle of the night, and take his clothes and shirts several mUes off, to a woman, to have the " poi sonous stuff" washed out of them. On one occasion, wlfile driving out with his wife and children, he said that they had got along very com fortably for some distance, when aU at once the horse became frightened so that he could hardly hold him ; shortly, the horse became frightened again. The first time he said nothing to his wife ; the second time he spoke to her, and said : " Nancy, chUd, if you do not quit blowing this poison on me, the horse wiU run away and. kiU us and the chUdren; the horse has got the scent of this poison you are blowing on me, and is frightened." She answered, of course, that she had blown no poison on him; but it was impossible to turn his mind from the diseased bent it had taken. He would bore holes all over his house, through which to watch the motions of his wife. One day he sud denly took his departure from home and went to Wil- 470 THE FORUM. mington, for the purpose of consulting a fortune-teller as to the fidelity of his wife and legitimacy of the chUdren. While there he called upon an eminent law yer to draw up his wUl, disinheriting his chUdren, as bastards, etc. It would be impossible, in this brief sketch, to follow him amid all the crooked, erratic paths of his disordered inteUect. Each day his monomania took a deeper, deadlier hold upon him, until finally he frequently and publicly threatened to destroy the lives of his wife, Osborne, and some three or four others, to whom Iris suspicions had attached. Aboutthis time, Mrs. W. was cautioned by her friends to beware of her husband, but, as he had frequently threatened, without doing her any injury, she expressed herself not to be afraid of him. His conduct to her was very changeable; at one time he would say, "Nancy, I have told you, that you Avould some day tremble in my presence, and I intend to kUl you." Again, he would teU her, " I never shaU hurt you, unless in self-defence." A few days before the homicide he was found shut up in his store, lying on the counter, with new muslins sewed together for a covering. His own clothes and bed linen, he said, were all sprinkled with poison. Being asked whether he had taken any nourishment, he rephed, that he was afraid to take anything but hot water and crackers. A day or two after this, he wrote out a long account of his suspicions of his wife's infidehty, and referred fully to the contemplated crime. TRIAL OF JOHN WINDSOR. 474 The next day after he had written the letter, he loaded his gun and left the house, saying to a person that he met, " If you should hear of anything serious happen ing at my place, don't disturb me." In a short time after this he returned home, went to the garret, where his wife was weaving, told her that he had often said to her, that the time would come when she would tremble in his presence ; bid her prepare, as her time was short, and then drawing out a pistol, shot her mor- taUy. He then went down stairs, and taking his gun in his hand, took his position at his door, and levelled the weapon at a man who was passing by. At this moment an acquaintance coming up, said, " Captain, what's the matter?" He rephed, "Where is the d — d son of a b — h ? I have shot my wife — go up stairs and see her, if you choose." At this moment it would appear that Windsor was in a state of high excitement. The man accordingly went up stairs, and found Mrs. Windsor lying upon the floor, very pale, with a child of some eighteen months sitting by her, crying. She at once requested to be carried down stairs ; said that her husband had shot her, and that she should die in a few minutes. Immediately before her death she sent for her husband, who at once went to her. She desired to be lifted in her bed, and said to him, " Take care of your chUdren ; I have but a few moments to live ; before God, and on my dying bed, they are yours, and I want you to do a father's part by them." She 472 .THE FORUM. then requested him to look at her wound; he began to cry, and said he would not have done it for a thousand worlds, and then hurried out of the room. Mrs. Windsor died about three o'clock that afternoon. In her dying moments she expressed no anger or re proach towards her husband, but begged that he should not be hurt or removed from the house. On his part, he exhibited deep grief for the act he had committed ; exclaimed that he had done a very wicked deed, and, as for his chUdren, he hoped God would bless them, and declared that he would not hurt them for the world. Soon after the murder he took a half giU of laudanum, and then locked himself up in his store. When found there, he was lying on the counter with a pistol in his hand, which, being requested to deliver up, he did so in the most passive manner. He then roUed up his sleeve, exhibited his bare arm, and remarked that, yesterday it was full and fleshy, but now most strangely shrunk; mentioning at the same time, something about that "cursed stuff." In a short time after the murder he seemed to forget all about it, and rarely, if ever, referred to his wife again, but his delusion concerning the poisonous stuff that was thrown upon him, still remained. He imagined now, that every one who ap proached him was blowing this poison upon him, and when visited in his ceU by the physician, who asked him how he had slept during the night, replied in a low whisper, " They put it in the water, and I could TRIAL OF JOHN WINDSOR. 473 not close my eyes." He seemed particularly to sus pect the sheriff and the keepers of the jaU, and said that they were constantly " blowing on him." On his trial, which took place some two months after the commission ofthe murder, he was defended by Messrs. Robinson, Houston, James A. Bayard, and David Paul Brown. In its progress he appeared to take httle or no interest, and as to the case and all its circumstances and consequences, seemed to be the most unconcerned man in the room. Not so, however, with regard to the subject of bis hallucination — from the first moment he entered the court untU he left it, he sat with a news paper covering his head, to shield it from "the poison;" watching every man who approached him with an insane quickness of eye, crouching under the fear of injury, and presenting really the most painful spectacle of a wrecked and ruined mind, that could possibly be imagined. Notwithstanding aU the facts that have been related, and which so clearly proved his insanity, and -that there was no evidence of any kind offered by the prosecution to oppose this proof, the jury in the case, after a long and tedious trial, returned a verdict agamst the pris oner, of " GUILTY OF MURDER IN THE FIRST DEGREE !" The Court speedUy proceeded to pronounce the sentence of the law, and the poor old man was condemned to be executed on the 17th day of September, 1851, show ing, that whUe a plea of insanity, supported by such vol. n. — 31 474 THE FORUM. facts as this case presented, would, in enlightened com munities, have assured an acquittal of the prisoner, yet, in this particular section, where the minds of the people were so much imbued with the grossest doubts and superstitions, it seemed to have been the weakest of all possible defences. The old man was, however, par doned by the governor, but stiU hves in confinement, a monument of the wisdom, inteUigence, mercy, and jus tice of a Sussex county jury. INSANITY. A Mrs. D. of Pennsylvania, apphed to counsel, in relation to a Deed of Trust, through which her sup port was to be derived, she Uving, at the time, apart from her husband. She was a highly respectable woman — but, undoubtedly, demented. Some months after this apphcation, the counsel being confined by sickness, was informed, by his servant, that there was a strange lady at the door in a carriage, who desired to know, whether he, (the counsel,) would con sent to her going to the Pennsylvania Hospital — to which the counsel replied, " That he had no objection, INSANITY. 475 if she had none." Froni this time he heard no more upon the subject, untU about six months after, when Mrs. D., who, it seems, was the lady in the carriage, caUed upon him, muffled up in a very extraordinary way, having just escaped from the Hospital. She complained bitterly of his having aUowed her to go to the Hospital, asked his opinion as to the propriety of her visiting her friends in the country, and, after talking wUdly for a considerable time, took her leave. What was the surprise of the counsel, about two months after, to receive a letter from her, stating that she had entirely recovered her health — expressing the hope, that the servants had conducted themselves weU during her absence — that the house had been kept in good order — and concluding by saying, that she should return next week, and should be happy, if her husband would meet her half-way on her journey — she then signs her name, Mrs. B. Some days after this, while in the midst of an argu ment in Court, Mr. B.'s servant caUed upon him, and informed him, " that a lady, calling herself Mrs. B., was at the house, with a large quantity of baggage, and had taken possession of the parlor." Mr. B. confided the case in which he was concerned to a professional friend, and at once proceeded to his home. There he found the lady, attired in a sort of wedding-dress ; she met him with the greatest tenderness, and begged " that he would not be disturbed — said that she had found the 476 THE FORUM. house in a very good state — that the servants had been very attentive, and had given her her breakfast — and that every thing was right." " No, Madam," said the counsel, a good deal annoyed ; " every thing is not right ; it is not right, that I should be troubled with another man's wife, and one who is to me a comparative stran ger. You have a worthy husband, who hves within a half-dozen squares of this place, why don't you go to your husband?" " Is it possible," says she, "that you deny being my husband !" The counsel, finding it useless to attempt to undeceive her, or to remove this Ulusion of mind, and his attendance being required elsewhere, caUed to a gentleman in his office, and requested him " to desire Mr. D., the husband, to come down at once, and take charge of his wife." Immediately upon this direction being given, the poor woman at once exclaimed — " Is it possible that you would send for him? that you wiU give me up to him?" The counsel rephed : " It is not only possible, but it is certain." Whereupon, the whole demeanour of the woman changed — she exhibited the greatest trepidation — begged " that a coach might be sent for, to remove her and her baggage." This was accordingly done, and, very much to the relief of the counsel, she departed. She has never been seen since, with the exception of once, whUe passing along the street in a carriage, she en countered the counsel, when, folding her arms and fixing her eyes upon him, she manifested the utmost scorn REASON AND METHOD IN MADNESS. 477 and contempt for one who, she no doubt thought, and wiU continue to think, had treated her with the most unaccountable neglect and cruelty. REASON AND METHOD IN MADNESS. Wiley Williams, a gentleman from the South, had been about a year in the Blockley Asylum. Having made his escape, he wrote to counsel, wishing to know what legal redress could be obtained for his ruined prospects, etc. In his letter he thus reasons: "If I cannot obtain redress, I wUl shoot Dr. Kirkbride for having imprisoned me ; and should I be tried for mur der, my defence wiU be this : If I am mad, as you say, I cannot commit an offence — if I am not mad, you de serve death for having deprived me of hberty, and blighted my hopes." Not receiving an answer, he car ried out his threats. He perched himself in a tree in the garden ofthe Asylum, and as Dr. Kirkbride passed, shot him from behind; but happUy the contents ofthe gun lodged chiefly in the rim of the doctor's hat, and the result was comparatively harmless. WUliams was afterwards tried for an assault and bat tery, with intent to kUl ; but his insanity being esta bhshed, he was acquitted, and ordered into strict custody 478 THE FORUM. in the penitentiary by the Court. There he shortly afterwards died, having never been restored to reason.* THE CRAET OF INSANITY- M., having written a letter from the Asylum, made up of patches of Latin, Greek, French and Ger man, and manifesting most clearly a disordered mind, upon escaping from his confinement, desired counsel to institute an action for false imprisonment, against the Managers. " I shaU do no such thing," said the law yer, (handing him his letter.) " Look at that, and teU me whether a sane man ever wrote such a letter." Upon which, bursting into a laugh, the madman said, " That indeed does look as if I were insane ; but I wrote it purposely in that way, because I knew if it had been reasonable, and the Managers had opened it, as they always do, they never would have allowed it to reach its address." * Upon a defendant's being acquitted on the ground of insanity, the Court is authorized by the act of June, 1836, (Stroud & Brightly's Digest, page 556,) to order the defendant to be kept in strict custody, so long as he shall continue to be of unsound mind. walking on the water. 47U WALKING ON THE WATER. The wife of Mr. H. caUed upon counsel to ob tain a commission of lunacy against her husband, who imagined himself to be the Apostle Peter. This was done. About six months after, she applied to the same counsel to have the commission rescinded, on the ground that the lunatic had recovered his reason. In order that this might be done, it was necessary that testimony should be taken before an examiner, to satisfy the Court of the truth of this aUegation. Upon the examination, it was proved that the insane man had been some time in the Hospital, and was deemed incurable, when the wife asked permission of the Managers to take him a riding in a carriage. This request, as he was not violent, was granted. When they reached Frankford, however, not guard ing him sufficiently, he made his escape, and being found, after long search, it appeared that, governed by his hallucination, he had rushed to a neighboring miU- dam, (ten feet deep,) to make the experiment of ivalk- ing on the water. He plunged in, and, though utterly unable to swim, he succeeded, through faith, in reach ing the opposite bank ; and whether from the effect of the cold bath, or from the practical proof of the diffi culty of the undertaking, he was from that moment entirely cured of his apostolic and aquatic pretensions, and restored to sanity. 480 THE FORUM. DOUBLE INSANITY. We have all become famUiar with the veritable story of a young artist, who, having been engaged in one of the lunatic asylums of England, in taking the portrait of an insane patient, became insane himself, during the progress of the work. We have also read, with inter est, in Warren's Diary of a Physician, the case of the Baronet's Bride* — in which, Lord Harleigh led the physician to the belief that his wife was hopelessly insane, while he himself was little short of a raving ma niac. But a more extraordinary case, was that of Mr. and Mrs. D., in which counsel — physician — clergy man — and, in short, every one connected with or con cerned in the case, were involved in error. The parties were in the highest social position in hfe — and the lady of uncommon personal attractions. For a time, to use a common phrase, they literally rolled in wealth, and became " the observed of all observers." They had but one child, a little girl about two years old, to whom, it need scarcely be said, they were devotedly attached. The husband was deeply concerned in very extensive mining companies in Mexico, and had been absent for some months. Upon his return, he launched out into every possible extravagance — purchased a splendid * Diary of a Physician, vol. III., p. 112. By Sir Samuel Warren ; the author of Ten Thousand a Year, and at present Attorney General of Eng land. DOUBLE INSANITY. 434 house — filled it with the most gorgeous furniture — and sported jewelry upon his person, that was al most a fortune in itself. By his account, his wealth was much more abundant than his outlay; and, strange to say, the gentlemen who were connected with him in his great mining operations, and who were the most prudent and sagacious of our citizens, reposed the most unlimited confidence in every thing he said and did, and imagined that he had secured for them " the whole world in a string." The wardrobe, or parapher nalia of the wife, was of the utmost magnificence ; and, judging from externals, there never could have been greater harmony or prosperity in a family. In this state of things, I was apphed to by the wife, and informed "that her husband was deranged — that she had left her home with her child, and taken up her residence in one of the principal hotels in the city — and that her husband had accused her of being insane, and had written to her father, a man of high position in a neighboring State, to come on and take charge of her." In addition to this, she mentioned, " that the husband was determined to obtain the child, and had applied to Mr. John Sergeant, in order to procure a habeas corpus? Several conferences took place between Mr. S. and myself. Mr. S. was satisfied with the sanity of his chent, while I had no doubt, making proper aUowance for the excitement of a feeble and delicate woman, ofthe 482 THE FORUM. sanity of mine. In the midst ofthe negotiation between the parties, D. contrived to get possession of the chUd, and remove it to the house of his friend, Dr. Harlan. The terror and agony of the mother can scarcely be conceived. I was sent for immediately to her hotel, where I found her in the deepest distress, with her phy sician, the Rev. J. Breckenridge her clergyman, and a number of other sympathizing friends. She also ex hibited to me the certificates of Dr. Chapman, Dr. De- wees, and other eminent medical men, who had known her for some years, and who expressed their entire confidence in the soundness of her mind, and her entire competency to take charge of her infant chUd : they also expressed the opinion of her husband's insanity and unfitness. On the other hand, certificates, it seems, had been procured of the sanity of the husband, and of the insa nity and incompetency of the wife. In this condition of things, as has been said, the husband had removed the chUd — the mother was in a storm of maternal grief — to talk to her of a habeas corpus was a folly — the delay of an hour was not to be listened to, much less the necessary delays of the law. I endeavoured to console her, but in vain. I told her she could not be better protected than she was — with Dr. Harris to take charge of her health — my self to protect her legal rights and interests — and Dr. Breckenridge to administer, what was above all, spiritual consolation. DOUBLE INSANITY. 483 It is in vain to attempt to reason with a mother when robbed of her chUd, and nothing would satisfy her, but that the child should be produced. To reheve her anxi ety, I immediately went to the doctor's house, to which the infant had been carried, and ascertained that it was stUl there. I demanded its immediate restoration to the mother. Both the father and the doctor maintained that the mother was insane, and unfit to take charge of the chUd, or herself. This was denied by me, upon the autho rity referred to, and I more than intimated, that the men tal infirmity was'with the father. However, finding that aU this would come to nothing, I closed the conversa tion, by stating " that, although unwilling to cause any exposure of these lamentable domestic difficulties, as they admitted the chUd to be in their possession, I would issue a habeas corpus forthwith; and, if the chUd were not delivered to the mother in less than one hour, the writ should be served by an appropriate officer of the law, and the chUd would be taken by force of judicial authority. This brought the matter to a close — a carriage was caUed, and forthwith the httle innocent was reconveyed to the arms of its afflicted mother — and here the curtain feU upon this act of the drama. A few days after the occurrences thus referred to, the father of Mrs. D. arrived — a meeting of aU the parties and counsel, took place. It was finaUy agreed, that the husband would settle fifteen hundred dollars per 484 THE FORUM. annum upon the wife — that the father should be the trustee — and that the child should remain with its mo ther. This arrangement having been completed, the wife returned* to the place of her birth, with her aged and afflicted parent. Nearly a year passed over, and I heard nothing further of any of the parties : when, towards the close of that time — having stepped into the PhUadelphia Athenaeum — I there saw a man seated at one of the tables, with towering white ostrich feathers stuck into the crown of his hat, and literally covered with golden chains. This was a singular display, and I took an opportunity to in spect the personage somewhat more closely — when I dis covered it was my quondam acquaintance, D. I spoke to the librarian upon the subject, and from him learned, " that the stranger had been in the habit of visiting the room, often being foUowed by groups of astonished boys, and that he laboured under a most extraordinary haUucination. He stated, that he had been to Mexico, where he had been attacked and robbed by the guerik las — he had received thirteen blows in the side from their stUettos — that his life was only saved, from his carrying the manuscript history of his travels around his body, which prevented any fatal effects from the assault— and that he was now on his way to China, for the purpose of enlisting a hundred thousand Chinese, with whom he intended to return to Mexico, drive aU the natives out of the country, and repopulate that VON VLEIT'S CASE. 485 region with these men, ' who were,' he said, ' an honest, industrious, and ingenious people, and would, in the course of time, be an ornament and a blessing to Ame rica.' " From that moment, I have never seen him. To turn now to the wife : For a long time she lived secluded from aU society, and wrote often to her friends complaining of her hapless condition. Finally it was learnt from an authentic source, that she escaped from, or left her father's house, in the depth of winter, at night, and wrapped up in blankets, hke a wandering savage, had betaken herself alone to the woods some mUes off, where she remained without any sustenance or protection for three entire days. When found, she was almost dead from exposure and famine, and, for many months after, there was but little hope of her recovery. She, too, proved to be hopelessly deranged. Neither of these parties survives — and their melan choly history serves only to show, that the imagina tions of men can conjure up no fictions, that are not surpassed by the sad realities of Life. VQN TLEIT'S CASE. In the case of The Commonwealth v. Von Vleit, (in 1842,) which has been referred to in this volume of The Forum,* a new trial having been granted, on the ground of after-discovered testimony, upon a subse- * Page 34, et seq. 486 THE FORUM. quent trial the defendant was acquitted. An action being afterwards brought against the prosecutrix for malicious prosecution, a commission was issued to England, in order to estabhsh the ownership of the defendant in the gold, which he was charged with having stolen. The commission was returned on the 26th of May, 1843, and taken from the post-office by David Paul Brown at half-past six o'clock, in the eve ning of the same day, and an indorsement made accord ingly on the envelope. It so happened that on that precise day, Moore, the aUeged accomplice and witness against Von Yleit, escaped from the prison, where he had been kept in order to secure his testimony. When the case of conspiracy came on to be heard before referees, two witnesses, Behm and Tallmadge, were caUed upon by the defendant. They attempted to prove — knowing nothmg of the return of the commis sion — that, on that very day they saw Von Vleit and Moore together, at six o'clock in the afternoon, stand ing under a lamp-post, in Sixth street above Market ; and that they overheard a conversation, which had re lation to a reward being paid to Moore, provided he would run away, which resulted in Moore's departure. This was fatal (if true,) to the plaintiff's case, as the entire cause rested upon an alleged connection between the prosecutrix and Moore. The commission was produced — the exact time fixed by the indorsement sworn to by two witnesses, who von vleit's case. 487 were present — the presence of the plaintiff at the time, also established — the whole of the wicked conspiracy overturned, and a verdict given against the defendant, for three thousand doUars. Nor did this apparent providential interference end here — the defendant, Mrs. H., appealed. In order that her father might become her bad, she transferred to him her estate, valued at upwards of ten thousand doUars. Shortly after this appeal and transfer, the father, holding the title, took sick, and was supposed to be in a dying condition. Had he died, the property, as it vested in him in fee, would have passed to his other chUdren, in common with the defendant, or by. wfil,.she might have been entirely excluded. He refused to reconvey, unless he was released from the habUity as baU, so that Mrs. H. was compelled to make a satisfac tory arrangement with the plaintiff, in order that his judgment upon the record might be removed. The tables were completely turned upon the original prose cutrix ; she prosecuted, in order to obtain three thou sand doUars ; her prosecution eventuaUy faUed, and the defendant's money was returned to him. He after wards brought an action for a mahcious prosecution, and recovered three thousand dollars from his adver sary, thus verifying Shakspeare's doctrine, that — " Even-handed justice Returns the ingredients of our poisoned chalice To our own lips." 488 THE FORUM. JULIA MACBETH. In 1820, just after my admission, Mr. Mel ny, who had been a member of the bar for twenty years — a man of great diffidence, though of great worth and learning, and of the kindest and most philanthropic heart — called upon me, in the greatest excitement, and informed me, that a most interesting and beau tiful child was just arraigned, together with her father and mother, for larceny, the first for steahng, and the latter two for receiving, a considerable sum of money — a portion of the money, received of course, by the mother, in the absence of the husband, as other wise no charge could have been legally sustained against her. "WeU, Sir," said I, "what do you wish me to do ? — why did you not take up the defence for the unfortunate group ?" " I wish you to do it," said he ; "I attempted saying a word or two in their behalf, and I blundered even in that ; you wiU obhge me by going down to the Sessions — the case is to be tried this afternoon before Judge Rush." Of course there could be no refusal, and I accompanied him to the court. The famUy exhibited, to be sure, a sad spectacle. The parents appeared to be persons in an humble position in life, and the child, who was a charming little creature, sat with them in the dock, apparently unconscious of aU perU, either to them or herself. JULIA MACBETH. 439 In passing her, in her sportiveness she let her mit ten faU over the railing, and I picked it up and re turned it to her. Judge Rush — with whom I may be allowed to say, I was in some favor, but who was inclined to be suspicious — immediately caUed me to him, and inquired what it was. I told him it was the chUd's glove. " 0, weU," said he, " I thought it was a 'purse!'" This furnished some opening for fur ther remark, and I asked him, if he seriously thought of aUowing that child, scarcely ten years of age, to be tried upon such a charge. The old gentleman's fea tures softened at once, for, with aU his external rough ness, he was a man of lofty and tender feeling, and he rephed : "We wiU think of it — we wUl think of it, Mr. Brown." A few minutes afterwards, turning to Charles S. Coxe, (afterwards Judge Coxe, of the Dis trict Court,) a humane man, who was at that time the prosecuting attorney, the Judge suggested to him the propriety of entering a non pros, upon the biU against the chUd, which was immediately done. From that moment I felt entirely secure, as regarded the fate of the parents ; as the law, as it stood then, would permit no conviction of receivers, without the previous conviction of the principal felon. The law, however, has been since altered in that respect.* * In April, 1825, at the instance of Recorder Reed, I procured an Act of Assembly to be passed providing for the prosecution of receivers, although the principal felons were not before convicted. This was designed vol. n. — 32 490 THE FORUM. The chUd being discharged, the parents were put upon their trial. The very first witness called was proceeding to state the particulars of the larceny by the daughter ; he was stopped at once, on three grounds — first, That the chUd was not upon her trial; secondly, That her words, or actions, in the absence of her parents, could not be aUow- ed to affect their rights ; and thirdly, That if they proved her guUt, without a recorded conviction, they stiU could not punish the parents. The Judge, who was an excel lent lawyer, saw it was impossible that the case could proceed, and a verdict of acquittal at once passed for the defendants ; at which, perhaps, no one rejoiced more than the Judge himself. He did not show it, however, but sternly ordered the father to stand up. "Andrew Macbeth," said he, "you and your wife have been mer cifully dealt with, and I dismiss you — in the language of the best of books, ' go now, and sin no more.' " PRINCESS CARRAB00. In early professional life, upon entering court, I was amazed at beholding in the bar, a very lovely looking woman, attired in quite a costly baU-room dress, with appropriate jewelry. Her thick, black, curling hair to protect the young and unwary, who may have been employed as agents to accomplish the crimes of principals.— Vide Stroud & Brightly' s Di gest, p. 645, sect. 27. PRINCESS CARRABOO. 491 was somewhat disheveUed, and hung carelessly over her shoulders, and perhaps thereby added to the in terest of the scene. Upon inquiring to what this extraordinary state of things was attributable, I was informed that this young lady passed by the name of the Princess Carraboo ; that she spoke many languages, but none very intel ligibly ; and, in short, she had been arrested at a dance upon a charge of larceny. This was thirty years ago. Like most young lawyers, not being overstocked with business, being attract ed by the novelty of the occasion, and finding that the fair dame had no one to defend her, I volunteered in her behalf. The case was rather a difficult one. The prosecutor and aU the witnesses were very much en raged against the prisoner. They stated that she had borrowed from them aU the articles of dress and jewelry that she wore. That they were borrowed but for a short time, and under various false pretences ; and that she had afterwards broken aU her engagements, and appropriated them to herself. She had no testimony. The prosecuting counsel pressed the case very inge niously and ably, the effort being, of course, to show that she had obtained the articles animus furandi, or with a felonious intent, and that she was therefore guUty of what is commonly caUed constructive larceny. This is a kind of case that it is rather troublesome to meet — it leaves so much to the loose imagination of 492 THE FORUM. a jury, called upon as they are to ascertain motives from facts which at the best are often very equivocal. If she had been an ugly old woman the case would pro bably have been lost; or if the witnesses against her had been prepossessing in their persons and deport ment, it might have been lost as it was ; but in both those respects, if in no other, the prisoner had greatly the advantage of her adversaries. My speech in her behalf was no great affair ; meddhng very little with either the law or the reason of the case, but directing the attention of the Court and jury to the forlorn and desolate condition of the defendant — to her youth — her pardonable fondness for finery — and the impro bability whUe thus actuated by motives of harmless enjoyment, that she should have contemplated the commission of a crime that must result in converting her pride into shame — her joy into grief. The jury listened attentively and sympatheticaUy, (for there were fathers among them,) and the de fendant wept in such admirable keeping with the tenor of the speech, that she was promptly and trium phantly acquitted. I never saw her before, and have never seen her since ; but she maintained her fashion able and graceful character to the last ; for when the jury returned their verdict of " not guUty," she issued from the dock, and making a most becoming courtesy to the Court, retired amidst the applause of the surround ing multitude. UNITED STATES V. . 493 THE UNITED STATES V. ¦ BEFORE JUDGE KANE. An interesting young man was indicted in the Circuit Court of the United States, for the embezzlement of a letter, and the money which it contained, which letter was directed to Mr. Scott, a weU known editor of this city. The young man had borne an unblemished moral character, although he was supposed to be of feeble inteUect. He was attended during the trial by his aged parents — and it was a truly pitiable group. There was but one important witness against him, and that was a lad of about fifteen years of age. He swore distinctly that the defendant gave him a written order upon the post-office to deUver to the bearer Mr. Scott's letters; that under that order he (the witness) ob tained the letters, and was arrested with them in his possession. The order was produced, and conformed to the above statement. A member of the bar, who witnessed the trial, and felt great interest in it, sug gested the foUowing inquiry to the defendant's counsel : Counsel. — Cross-examination of the witness. — " Can you read?" Witness.— "Yes." Counsel. — " WiU you read that order ?" Witness. — " Certainly." (And he read it.) Counsel. — " Can you write ?" Witness.— "Yes." 494 THE FORUM. Counsel. — " WUl you copy the order ?" The order was accordingly copied, and upon the two papers being handed to the Court and jury, it became manifest that the witness was the offender ; that he had written the original order, and upon being arrested, he had charged an innocent young man that he himself might escape condign punishment. CASE OF COMMONWEALTH V. RUSSELL. In the year 1830, the famUies of Mr. W., and Mr. R., between whom there was a deadly feud, hved in adjoining houses, in Lombard Street, PhUadelphia. A dehcate-looking servant-girl, in the employment of the former, charged Mr. R. with an assault and bat tery upon her person, with intent to kill. The charge rested almost entirely upon the oath of the prosecu trix. She swore " that she saw the defendant throw a brick at her, on a given day, from the adjoining yard, while she stood on the back steps of the house of her employer." She stated " that the brick struck her in the breast: — that, from that time, she had been subject to spitting of blood, and fainting-fits." During her examination, she several times apparently fainted, and was led out of Court ; and, of course, every time she fainted, the hopes of the defence fainted : no cross-ex amination could be avaUable, and the defendant's coun- COMMONWEALTH V. RUSSELL. 495 sel got rid of her as soon as possible, to avoid any in creased dramatic effect. The next witness called was the doctor. He swore to the spitting of blood — feebleness of frame — fear of consequences, and aU that — but wonderful to relate, although he examined her breast, he never discovered any external injury. There came up the inquiry, "how such consequences could have been produced, without any apparent cause ?" — the physician met aU these questions, by fine-spun theories and remote pos- sibUities. The defence rested upon an alleged alibi. It was proved that the defendant was six mUes off at the time of the alleged assault — it was shown that his name was attached to an oath taken at Germantown, dated that very day — the magistrate before whom it was taken, swore to the exact hour, upon which the girl had fixed for the perpetration of the outrage ; stUl, in defiance of aU this — the blood-spitting — and the simu lated fits — and the exquisite acting throughout of the complainant — overbore aU resistance, and the defend ant was convicted ; and, though a decent man, with a large famUy, was sentenced to a heavy fine, and six or twelve months' imprisonment. Now, mark the sequel, and profit by it : WhUe the defendant was thus incarcerated, the prosecutrix be came dangerously sick, and conscience-stricken. She sent for the counsel of the prisoner, to whom she volun- 496 THE FORUM. tarUy confessed, " that she knew of the feud between the fanfilies, and desired to gratify her employer's re venge against his next-door neighbor — she therefore invented the whole story. When the doctor was sent for, as she could show no external bruises to support her story, she pricked her gums with needles to pro duce blood, and thus deceived the physician and the famUy; and, by feigned debUity for weeks, she not only escaped labour, but imparted probabihty to her nefa rious charge." Poor R., at the time of this dis closure, had passed some months in confinement, but, upon a statement of these facts fuUy verified to the Executive, a pardon was granted, and he was restored to his suffering family. He is now dead — but this explanation is due to his memory ; and is not without instruction to the profession and the community. DEFEATING A ROGUE. There is an anecdote related of Mr. Curran, which, although not strictly embraced by our plan, is so httle known, and so remarkable for its manifestation of great professional mgenuity in defeating fraud, that it is weU worthy of being known, and remembered. Early in Curran's professional career, a young Irish man called upon him, stating " that he was destitute defeating a rogue. 497 of means, but had been recommended by a friend to obtain Mr. Curran's advice in a very distressing case." The young man, it seems, had, by his hard earnings, acquired and laid by a sum of one hundred pounds, with which he had come to town to purchase a copy hold estate in a small farm. Being an utter stranger, and unwiUing to carry the money about him, he de posited it with his innkeeper for safety, during the pendency of his negotiation. Upon calling for the money, however, the landlord of the inn denied having received it, and there was no witness to prove the de posit. Such was the case as related to the counsel. Mr. Curran's feelings were deeply interested for the unhappy stranger, and he requested him to call the next morning ; and, in the mean time, as it was a case of great difficulty, promised he would give it his best re flection. Next morning, accordingly, the chent caUed. Mr. Curran asked him "if he could raise another hundred pounds." The chent told him " he might raise a hundred pounds of potatoes, but, as to money, he had none." " WeU, but," said Curran, " you are an honest fellow, and I think the gentleman who sent you to me, would probably lend you the money for a few days — try and get it." The client did try, and got it, and brought it to the lawyer. " Now," said Curran, " take this money to the tavern-keeper, and deposit it with him— but be certain to take a witness with you this time.'' "My G — d !" said the countryman, "that 498 THE FORUM. wiU never do ; I have lost aU I have already, and if I am to lose, as I shall, the money I have borrowed, it never can be paid, and I shaU be for ever ruined." "Do as I tell you," said Curran, " and then come back to me." This was all done exactly according to instruc tion. "Now," said Curran, "caU on the landlord again, and ask him to return you the last hundred pounds — but take no witness with you — he will pay you, for he knows you can prove the deposit." So it turned out — the money was paid — and the countryman again re turned delighted to his counsel. " It is aU right and sure," said Curran : " Now take your witness, and de mand the hundred pounds that you left with him, in the presence of that witness. The necessity for proof has now changed sides." Upon making the second de mand, the faithless landlord discovered that his dis honest purpose had been defeated, and surrendered his Ul-gotten spoil — and thus Justice triumphed. Mr. Curran often said, " that he never experienced greater happiness, than in thus aiding an honest man, and de feating a rogue." GEORGE G- A man of aged and respectable Scottish parentage, in the year , was indicted for the murder of GEORGE G . 499 . The circumstances that gave rise to his arrest and indictment, were these. George had been a wild young man, and had for many years with drawn from his parents' house, and hved with a woman whom he called his housekeeper, in the southern part of the city of PhUadelphia. How he derived his subsist ence was not very well understood, but there he contriv ed to hve; and a companion of his, somewhat older than himself, occupied an up-stairs room in the house. For some time their harmony was undisturbed. One evening, however, a short time before the arrest of George, while at the supper-table, some slight differ ence took place between them, accompanied with mu tual threats — and the next day the companion was missing. Either from rumor, or some more direct and rehable information, the officers of justice were in duced to search the dweUing, and upon doing so, dis covered that there were traces of blood along the nar row stairway from the garret, in which it was ascer tained the missing man had been accustomed to sleep, down into the ceUar. The ceUar was pretty weU stock ed with wood, and the body at that time was not dis covered. StiU, the presumption of G.'s guUt was suffi ciently strong, as it was weU known there were -but these three persons in the house; and, after a brief hearing, G. was committed for trial, and the housekeeper was detained in prison as a State's witness. It was at this time that I was caUed upon by the 500 THE FORUM. unhappy parents of the prisoner to take charge of his defence ; and in order thereto, I waited upon him at his ceU. From early experience I had long resolved never to put the direct question as to guUt or innocence to a prisoner in these circumstances ; and, indeed, in this case it would have been useless, as, from the first mo ment of my seeing him, he asseverated most solemnly his entire innocence. When I spoke to him (as he admitted. that he was at home on the night in ques tion,) of the impossibility of such an occurrence having taken place without his participation or knowledge, he answered me by saying that "the house may have been entered by some enemy of the deceased, as the fasten ings were not secure ;" and also urged the unreason ableness of the suspicion that he should murder his friend — the absence of cause, etc. I listened to him, and, as is my usage, carefuUy observed his manner, and fixed my eye upon his countenance whUe he was engaged in rehearsing the facts connected with this dark story. In doing this, I was particularly struck with one thing in his demeanor — his eye seemed always to avoid mine, and when they happened to meet, there was a shrinking or twitching in his glance, that I have never observed before or since ; and this always occur red at our interviews. StUl, although this left an un favorable impression upon my mind, it was not a fixed impression. There is always a strange expression in the eye of an individual about to be tried for his hfe. GEORGE G . 501 It is difficult to distinguish between the effects of fear or shame, and guUt : under the influence of aU, the pupU of the eye is dUated, and it has been observed to be so in several cases, where, upon trial, the inno cence of the accused has been clearly estabhshed. Nevertheless, the expression of the eye of the prisoner manifested, if not a consciousness of the specific crime, an indication of " some crime unwhipped of justice," that took from me the reliance that I should otherwise have felt upon his sincerity and truth. The trial came on ; but, in the meantime, I shpuld say, the police dis covered the body of the murdered man under the wood- pUe in the cellar. They also found a bloody axe — the blade of which, when applied to the wound on the skuU of the deceased, corresponded with it exactly. They further ascertained that G. had borrowed the axe of a neighbor on the night preceding the homicide; and, moreover, and stronger than aU, they found the pocket- knife of G., (proved by his housekeeper,) which was marked with blood, and appeared to have been used in inflicting some of the lesser wounds about the throat of the murdered man. Most of these facts were de rived from the housekeeper, but they were strongly corroborated by collateral testimony. The trial occu pied nearly two days. Mr. Dallas conducted the pro secution with great abUity. The defence, which was nearly desperate, consisted mainly of an effort to dis credit the housekeeper, by showing that she had had 502 THE FORUM. a quarrel with G., and further, by maintaining that if this occurrence could have taken place without her hearing it, it might also have taken place without the knowledge of G. That it possibly may have been done by others than an inmate of the house ; and that an in nocent man ought not to be convicted upon presump tion, merely because he could not show how or by whom the offence might have been perpetrated. When the argument — such as it was — was finished, G. turned to me and said, with great apparent compo sure, but much to my surprise — " I shaU be acquitted in ten minutes." To which I replied : " I should re joice if it should be so, but my impression is, that you wiU be convicted in half the time." And so it turned out. Sentence of death was pronounced, and the warrant of the Governor for the execution, speedily followed. About a week before the fatal day, late at night, a taU, aged woman, with dishevelled hair, and resembling the picture which Scott has drawn of Noma of the Fitful Head, entered my office, and the first word she uttered was, " I am G.'s mother." I could have con fronted G.'s ghost, but to meet an aged mother in such circumstances, was almost beyond endurance. As to consoling or comforting her, that was out of the ques tion; I condoled with her — spoke of everything having been done for her son that was possible — that he might stUl repent and die happy — and that, if so, as she had GEORGE G .' 503 already nearly reached the limit of life — she would not be long separated from him. But aU this avaUed nothing, and she interrupted me, by exclaiming, in a transport of agony — referring to the loss of her chU dren — "Jamie has gone, and Effie has gone, and if they take Geordie from me, I shaU be like the patri arch Jacob — wherewith shaU I be comforted ?" I was sUent for a time — indeed, what could I say — who can argue with a mother's grief? At last, heaving a deep groan, she exclaimed: "And yet it is not so much his death as the manner of his death, that strikes me with the greatest horror — no one of my kith or kin ever died upon a gallows" — and here. she stretched her thin figure to its fuU height, as from a struggle between pride and maternal feeling — " Can he die no other way — Tpray for his death any other way, if he must die — any way but that." I replied, the law knew no other way, and I regretted to say, that there was no hope even of a respite. " Then," said she, " will you see him? — teU him of his condition, and bear my last blessing to him ; no one can refuse such a request to a mother." I promised to comply with her wishes ; and tottering with age and grief, she withdrew. Next day I was ushered into his wretched cell; but a little week was the aUotted interval between him and a felon's death. As the heavy gratings were removed, and I entered, I saw, in the twUight of his apartment, G., surrounded by a number of clergymen, but appa- 504 THE FORUM. rently, instead of listening to their ghostly comfort, he was vociferously and positively asserting his entire in nocence of the offence of which he had been convicted — this was shocking. I passed through the ranks of these reverend gen tlemen, (who, of course, were unable to answer him, as they knew but little of the case,) and said to him : " I expected to find you in a different temper — you may deceive your feUow men, but there is One above, you cannot deceive. Your business is to prepare for your fixed and final doom ; it is not too late for you to repent. You at least have some advantage over other men — they know, it is true,- that they are to die, but you know your exact time, and you should address yourself to preparation at once." " Mr. Brown," said he, " I am innocent." " Beware," was the reply, " how you trifle with your salvation in your last moments ; do not add to your offences, by maintaining what is untrue. You admit you were in the house, on the night of the death — you admit that you borrowed the axe on that night — you admit that the bloody knife was yours. Now, if you can account for aU these, consistently with your innocence, I wiU take your place." Bringing these matters in their combined influence to bear upon him, seemed to destroy his assumed con fidence, and he exclaimed: "Is there, then, no hope?" "Much hope," was the answer, "but none on this side of the grave — your fate is inevitable, and you should GEORGE G . 505 meet it as a man, and as a Christian." I then commu nicated to him, as kindly as I could, the blessing of his mother, and bade him a sorrowful and last farewell. He never mounted the gallows. He no doubt had de luded himself with the hope of pardon, and with a view thereto, had persevered in the allegation of innocence ;, but when informed by his counsel that his case was hope less, the whole man gave way, and he continued to be come weaker and weaker, untU a few days before the time fixed for his execution — when he died. There is only one matter in addition to this state ment that it is proper should be mentioned, as explana tory of the peculiarity of his conduct at our first in terview : — Shortly after his death, the housekeeper, to whom I have referred, called upon me, in great sad ness, and expressed a desire to remove from my mind any unfavorable impressions of her, that it may have received. The interview led to the foUowing brief colloquy : — Witness. — "You seemed, upon the trial, to think that I entertained mahce towards G., and that I uttered falsehoods, in order to convict him." Counsel. — " I said what I thought of you, and I am sorry, if I have done you injustice." Witness. — "I was compeUed to testify — I would have screened him if I could, without perjuring my self; I had screened him before, when I knew he had been guilty of crimes, and I wUl now give you a proof, vol. ii. — 33 5QQ THE FORUM. in one instance, at least. Had you a very valuable cloak taken from your office, about a month before this murder ?" Counsel. — "I had — but what has that to do with this subject ?" Witness. — " That cloak was stolen by G., and when he brought it home he informed me where he had ob tained it." This explanation gave me at once to understand what had previously been unaccountable. No doubt, when I caUed upon him in prison, and fixed an inquir ing gaze upon his face, he felt as though I detected the crime committed against myself, and naturally shrunk •from his own consciousness. CASE OF CONSCIENCE. A person by the name of Ray, apphed for the bene fit of the insolvent law. It was shown that he had had five thousand dollars very recently in his hands, and he only accounted for it, by aUeging that he was fobbed whUst in a state of inebriation. This was very improbable, nevertheless the applicant was discharged. In about a month after this he died, and a week or two after his death the whole amount was forwarded to the opposing creditors. The explanation of this extraordinary matter was as CASE OF FELIX MURRAY. 5Q7 foUows : At the time of applying for the benefit, Ray had deposited the money with a relation as dishonest as himself — after his discharge he reclaimed it. "What!" says the relation, " do you demand the money from me, when you have just sworn that you lost it, and do not own a cent in the world ?" Ray discovered he had out-witted himself, and under the effect of remorse for his perjury, and grief for his lost money, as has been said, he did not long survive. Struck with horror at the consequence of his own viUany, the relation relin quished "the wicked prize," and, as an evidence of practical repentance, restored the money to the rightful owners, through the medium of an anonymous note. CASE OF FELIX MURRAY. In 1831, M. was indicted for murder, and convicted through the force of dying declarations — somewhat equivocal in their character — and which declarations were proved by an avowed enemy of the defendant. When the prisoner was asked what reasons he had why sentence of death should not be pronounced, after as signing several, he concluded by the foUowing remark, LUustrative of the natural eloquence of the Irish people : " What was stated by Tommy T. was not true. He is a most deadly enemy of mine. He hates me. His hatred towards me is so great, that if the whole city was on fire, and I stood in the midst of it, and was 508 THE FORUM. burning to death, and he could put out the fire by spitting on it, he wouldn't do it." WhUe under sentence of death, upon visiting him after one respite, and just before the second time ap pointed for his execution, he was found in his ceU, with the Bible and crucifix before him, devoutly engaged in prayer. He received his visitor with great cheerful ness, and being asked as to his state of preparation, he replied : " I am perfectly ready to die ; the priest has been with me, and my peace is made." Upon being told there was stiU a ray of hope of pardon, it seemed to impart no delight to him. He simply answered, " Well, it is perhaps better as it is — I am now pre pared. If I should be pardoned, I might faU off again, and not die with the same hope of salvation." He was pardoned, and returned to Ireland, where, when last heard of, we rejoice to say, he was pursuing a re spectable course of life. QUESTION OF PERSONAL IDENTITY. In 1821, an action was instituted by Mary M'Creth against William Dickinson, administrator to the estate of Captain Talbot, who, as was alleged by him, was an Englishman. Mrs. M'Creth, however, averred that Tal bot was her brother, and an Irishman, and that as his only relative, she was entitled to his estate. On the part of QUESTION OF PERSONAL IDENTITY. 509 the claimant, the evidence by writing and parol was exceedingly strong. Mrs. Lee, one of her witnesses, swore to an acquaintance with the Captain for fourteen years before his death, during aU which time he had Uved in the same house with her. He spoke only of one sister, said her name was M'Creth, and she hved in London ; that she was so young when he came away, that she would not now know him. He wished to name Mrs. Lee's chUd Mary, after his sister. He was in the Liverpool trade ; had frequently been there, but said he could not leave his ship to go and see his sister. He never spoke of any other relative. He had a letter in his writing-desk, which he said was from his sister, and requested it to be read to him while on his death-bed. In addition to this, the letter from Mrs. M'Creth was produced, stating where she lived, and how long she had there hved. And a Mr. Leary was produced, to prove her actual residence, and identify her person. A letter in answer to this was also pro duced by her from Captain Talbot. In Mrs. M'Creth's letter, she states her poverty, writes by way of Liver pool, requests her brother to direct his letters to No. 2, Lombard Street, London, and further states : — " You may not be acquainted with my marriage, since I was, you know, very young when you left Newport, County Tipperary, Ireland." This letter was found among his papers ; he declared it to be from his only sister, and showed his sincerity by keeping it for ten 510 THE FORUM. or twelve years. In health, sickness and insanity, he always spoke of his sister, and never of any one else. Upon these facts it appeared to be clear that he was an Irishman. On the other side, however, they attempted to show that Captain Talbot had always said " that he was an Englishman — that he had four or five sisters — that Dickinson was the son of one of those sisters. A pe tition by the Captain, for letters of naturalization, in which he states " that he is a subject of the King of Great Britain," was produced, which, however, was a little equivocal in its operation, as Ireland might be considered as embraced by the term " Great Britain." But to strengthen the defence, a number of sea-captains testified " that Talbot had repeatedly told them he was born in England." A portrait was also produced by Mrs. Lee, at whose house the Captain died, which was said to bear a strong resemblance to the deceased ; but even this did not remove the difficulty ; for whUe one half of the witnesses swore that it was the very counter part of the Enghsh Captain Talbot, the plaintiff's testimony was just as strong to show, that it was an admirable likeness of the plaintiff's brother, whom they professed to know, and that it even bore a strong family resemblance to the sister, (the plaintiff.) Mr. John K. Kane, (the present judge of the District Court of the United States,) was the counsel for the de fendant. He enforced the testimony for the defence with QUESTION OF PERSONAL IDENTITY. 5H great ingenuity and ability, and manifested no less skill and power in his assaults upon the evidence for the plain tiff. His theory was, that loose impressions, derived from thoughtless conversations of Captain Talbot, many years ago, had been misunderstood, or misrepresented, by the plaintiff's witnesses : that it was exceedingly improbable that Captain Talbot should saU to Liverpool for years, and never visit his only sister, who was in London, but about two days' journey : That the letter received by him, was supposed by him to be from the mother of the defendant, whose name was also Mary, a favorite sister — whose husband's name he probably sup posed to be M'Creth — that he had written his letter under that impression — and that the letter intended for one of these women fell into the hands of the other, and produced aU this confusion. He dwelt, also, upon the want of credibility of some of the plaintiff's witnesses, and the bias and interest of others : he adverted to the fact, of many years having elapsed without the plaintiff's asserting her claim : and he planted himself firmly upon the petition for naturalization, signed by Captain Tal bot, and stating himself to be a native of Great Britain : he also maintained, that the portrait itself bore strong marks of English peculiarity of feature : and, lastly, that the defendant, being in possession of the property, was not to be deprived of it, but by conclusive, or, at least, most satisfactory proof on the part of the plaintiff, who could not be entitled to recover upon a doubtful title. 512 THE FORUM. The answer, on the part ofthe plaintiff, by David Paul Brown, was, that it was not more remarkable, that Tal bot should not visit the plaintiff, than that he should not have visited the mother of the defendant, whose resi dence was proved to be nearer to London than Liverpool : that if he had not been born in Ireland, he never could have recognized the truth of the letter found in his pos session, "referring to the time when he left his sister Mary, in Newport, Tipperary, Ireland :" that, if the wit nesses were doubtful, the letter was unquestionable : that Captain Talbot could not have supposed that the letter was from the defendant's mother, consistently with the notion that he was an Englishman — and, if he was not an Englishman, there was no defence. The credit of the plaintiff's witness was maintained, and that of the de fendants impugned : the fact of the mother of defend ant being rich, and the plaintiff poor, was referred to, as corroborative of the relationship of the latter to the deceased, who had said " that he had but one sister, and that she was poor, though respectable :" this poverty was also relied upon, to explain her not having earher instituted legal proceedings. As to the petition for natu ralization, its apparent inconsistency with the plaintiff's claim was accounted for, by its equivocation — by its having been loosely fiUed up — and carelessly signed — and instances confirmatory of this notion were cited : the matter of place of birth, as indicated by the por trait, was also minutely discussed, with very opposite QUESTION OF PERSONAL IDENTITY. 513 deductions from those drawn by Mr. Kane : and, in con clusion, the plaintiff's counsel maintained, that, although he had not estabhshed an unquestionable claim, his proofs far outweighed those ofthe defendant, and, that the prin-- ciple which obtained in criminal cases, that a reasonable doubt should discharge a defendant, did not prevaU in civil suits. The case, nevertheless, resulted in a judg ment for the defendant; — and the poor plaintiff passed the remainder of her days in penury and misery, maintaining to her last moment, her claims to the Talbot estate. We have thus furnished a few instances of " causes celebre," in the criminal courts, interspersed with one or two from our civil list. Our space wUl not permit a more extensive collection. Volumes would not contain the experience of a few short years, to say nothing of a long and active professional life. Can it be wondered at, in perusing these brief and imperfect annals, that the criminal practice of the country should be invested with so much interest, and present such fruitful oppor tunities for the study of human nature ? But, remember, it is attended with still greater advantages. Almost every instance of rapid advancement in the profession has originated in some important and interesting criminal cause. Let others decry criminal jurisprudence as they may, there has rarely been an eminent advocate in this 514 THE FORUM. city, who did not first date his celebrity and success from cases partaking of the nature of criminal trials. — Lewis, the Ingersolls, Rawle, Dallas, Hopkinson, Sergeant, Binney, Z. PhiUips, P. A. Browne, and Ran dall, to say nothing of younger men; aU flourished in this arena, and its influence is still more remarkable in Great Britain. The reason that such cases contribute largely to foren sic advancement, is plain. The community take but httle interest in mere questions between individuals upon pro missory notes, — land disputes between A. and B. — controversies relating to principals and factors — or accounts render among partners. In such cases nobody is interested but the parties and the lawyers. Not so in treasons, homicides, forgeries, conspiracies, libels, etc. They furnish matters of general interest — of deep pubhc concernment, and consequently bring into play the fa culties of head and heart, involve every variety of hu man motive, and ensure the success of those to whom their discussion is confided. The Criminal Court, therefore, is the best school for young lawyers. If they possess the elements of greatness, this is the stage upon which they should first appear. We know many criminal lawyers that could not try a civil case, it is true ; we have known more civil lawyers that could not manage a criminal one ; but a well-read lawyer should be able to do both, and will perform the duties of either better, from comprehending both. CHAPTER XVII. literature qf the bar. It was announced, as part of our plan, that we should furnish a list of the literary productions of the bar, but, after dUigent research, we are compelled to say, that the members of the legal profession have always been necessarily so much engrossed by the labors of their own peculiar pursuits, as to afford but little leisure and few opportunities, whatever may have been their abilities or inclination, to indulge in the de lights of general literature. The old are almost entirely absorbed by the cares and duties of their vo cation, and the young are engaged in studious and labo rious efforts, to lay the ground-work for their future fame. And although both classes have, from time to time, largely contributed, by the exercise of untiring industry, to the acquisition and diffusion of sound legal knowledge ; yet, the scientific field which they have cultivated, improved and embellished, has been so ample, and we may say, limitless, as to afford no leisure for practical devotion to classical erudition. Re - 516 THE FORUM. ports and treatises, or notes upon the laws — eulogies, speeches, opinions, essays, lectures, reviews, and ad dresses upon every variety of subject, can hardly fur nish a legitimate claim to the character of literature ; they may manifest great study — phUanthropy — beauty of composition, and power of thought, but they are casual, temporary, and ephemeral ; and whatever may be then: influence upon the present, have but a slight hold upon the future. It may be well said of them, as was said by Voltaire, when informed that the works of Rousseau were dedicated to posterity, "It is very doubtful whether they wiU ever reach their ad dress." This is much to be deplored, and we regret to say, it is not confined to the present times, or to this coun try. The only eminent advocate of antiquity that passed beyond the hues of his profession, and shone as much in classic literature as in law, was Cicero. You have no works of Demosthenes — of Anthony — of Gracchus — of Crassus — or Hortensius — and no memorials of them, except those which are strictly forensic. Cicero's' fame was drawn almost as much from his literary as his oratorical exceUence : he did not possess more knowledge than many others, but he displayed more in his productions — he seemed to look more to posterity. These remarks are also applicable to the English bar. With the exception of Bacon, Clarendon, literature of the bar. 517 Jones, Brougham, Talfourd, and Warren, we remember, amongst the regular ranks of the profession, no lite rary lawyers — Coke, Hale, Holt, and even Mansfield and Erskine, have left us no evidence of their com prehensiveness of mind and extensive general eru dition, beyond what is to be gathered or gleaned by foUowing them through their Ulustrious professional, official, or public career. And passing to our own country, our eminent lawyers and statesmen have scarcely ever indulged in anything beyond pohtical and legal science — Duponceau, Rush, Charles Jared Ingersoll, and a few others, present the only exceptions. Henry, Jay, HamUton, Marshall, Story, Kent, Bushrod, Washington, Lewis, IngersoU, Rawle, DaUas, Ames, Pinckney, Webster, Binney, and Sergeant, all with minds richly stored upon almost every subject, and abundantly qualified to impart instruction, have been so engrossed by their legal or official duties, as to be deprived of the opportunity of diffusing the benefits of their experience, and their invaluable accu mulations of inteUectual treasure. Men may accom plish much, but they are not equal to all things — they are but finite beings, and aU their works are finite, except those that are directed to another and a higher state of existence. Impelled by necessity or allured by hope, we pass on from one stage of human hfe to another, employing and exhausting all our energies — our three-score years 518 the forum. are past — confirmed habit becomes the substitute for inclination, and we stiU toU on, apparently without aim or object, untU "the last scene of all, that ends life's strange, eventful story." How unwise is ah this — There should certainly be an interval between the ter mination of the cares of this world and our preparation for the next. Let it always be borne in mind, even in our chief earthly glory, as weU as in our deepest de gradation and affliction, that "there is another and a better world'.' There is a simple, but beautiful German allegory, that furnishes an impressive lesson upon this subject, which we earnestly commend to our readers, and which runs thus : — " An aged husbandman was working in his rich and wide-spread fields, at the decline of day, when he was suddenly confronted by a spectral Ulusion, in the form of a man. ' Who, and what are you ?' said the asto nished husbandman. ' I am Solomon, the wise,' was the reply, ' and I have come to inquire what you are laboring for?' 'If you are Solomon,' said the hus bandman, ' you ought to know that I am foUowing out the very advice you have given. You referred me to the ant for instruction, and hence my toU.' 'You have,' said the apparition, ' learnt but half your lesson ; I directed you to labor in the proper season for la bor, IN ORDER THAT YOU MIGHT REPOSE, IN THE PROPER SEASON FOR REPOSE.' " ©fltttluffiflu. This work is now ended — not completed. Its value, if it possesses any, certainly does not consist either in style or Uterature. To neither of these does it aspire or pretend. It is dependent altogether upon a few faithful and interesting memorials of the past, all of which, in despite of professional traditions, would, in an other generation, be buried or irrecoverably lost, leaving no trace of the men of the present age, and supplying no example, or encouragement, or means, for a future History of the Legal Profession. The most of these pages have been written during the progress of the printing— some amid the bustle and vexation of juridical trials — and aU within the Unfit of the present year. The announcement in Janu ary last was founded upon the design, and not upon its execution — a design, long entertained, though its 520 THE FORUM. fulfilment was always prevented or postponed by diffi culties not necessary to be revealed, being of no public concernment. But I do not regret the undertaking, how ever imperfectly the task assumed may have been dis charged. Though attended with some labor, it has been a labor of love, and has recaUed to the mind a thousand youthful reminiscences, which, although they could not prolong life, have renewed and increased its enjoyments. I have hved over again in thought — in companionship — in the charms and delights of a glorious profession — in victories and defeats — in social and convivial in tercourse, the long lapse of forty entire years, — more than half the allotted duration of human existence. During all which time, to the credit of the bar be it spoken, I never had a personal quarrel with courts, counsel, or parties. In conformity to my advice to others, I have allowed no man to be master of my temper but myself; and, in the full consciousness of the difficulty of self-control, I have endeavoured to make just aUowances for those who may not have ob tained the same mastery over themselves, though, in aU other qualifications, they may have been immeasur ably my superior. I cannot take leave of my professional friends, in this my first, and, perhaps, my last work, without once more acknowledging their kmdness in aiding my researches, and supplying me with some matters of in terest, that might otherwise have been overlooked. I conclusion. 521 return to them all (for it would be invidious to discri minate), my sincere thanks — and now, asking my brethren of the bar to receive this humble offering as the legacy of a departing friend, I bid them aU an affectionate farewell. WIS, vol. n. — 34 Although it is presumed that most of our readers can readily correct the verbal or literal errors of these volumes, still, as there are some inaccuracies, (for which the author, not the printer, is responsible,) we have thought proper to append the following errata. Volume I. Page 293, seventeenth line from top, for "without enemies," read "not without enemies." " 320, tenth line from top, for "benefits" read "blessings." " 326, fifteenth line from top, for "1757," read "1737." " 349, note, second line from close, for "Tie," read "his" " 497, for "Burlington, iV. J-," read "Philadelphia County" " 498, for « died 1832," read "died- 1836." / Volume II. Page 147, next to last line, for " Common Pleas" read " District Court." " 246, last line, for "or" read "nor." " 250, sixteenth line from top, for "or," read "nor.,> " 301, twenty-second line from top, for "gaunt" read "'gainst." " 306, fourth line from top, for "sheen" read "stream." " 517, fourteenth line from top, for "Bushrod, Washington;" read "Bushrod Wash- 11