CHAPTER XLI.
"You say the pedler was a hundred yards behind my husband. Which of the two men was walking fastest?"
Thomas Hayes considered a moment. "Well, Dame, I think the Squire was walking rather the smartest of the two."
"Did the pedler seem likely to overtake him?"
"Nay. Ye see, Dame, Squire he walked straight on; but the pedler he took both sides of the road at onst, as the saying is."
Prisoner. Forgive me, Thomas, but I don't know what you mean.
Hayes (compassionately). How should ye? You are never the worse for liquor, the likes of you.
Prisoner (very keenly). O, he was in liquor, was he?
Hayes. Come, Dame, you do brew good ale at Hernshaw Castle. Ye needn't go to deny that; for, Lord knows, 't is no sin; and a poor fellow may be jolly, yet not to say drunk.
Judge (sternly). Witness, attend, and answer directly.
Prisoner. Nay, my lord, 't is a plain country body, and means no ill. Good Thomas, be so much my friend as to answer plainly. Was the man drunk or sober?
Hayes. All I know is he went from one side o' the road to t' other.
Prisoner. Thomas Hayes, as you hope to be saved eternally, was the pedler drunk or sober?
Hayes. Well, if I must tell on my neighbor or else be damned, then that there pedler was as drunk as a lord.
Here, notwithstanding the nature of the trial, the laughter was irrepressible, and Mrs. Gaunt sat quietly down (for she was allowed a seat), and said no more.
To the surgeon who had examined the body officially, she put this question: "Did you find any signs of violence?"
Surgeon. None whatever; but then there was nothing to go by, except the head and the bones.
Prisoner. Have you experience in this kind? I mean, have you inspected murdered bodies?
Surgeon. Yes.
Prisoner. How many?
Surgeon. Two before this.
Prisoner. O, pray, pray, do not say "before this"! I have great hopes no murder at all hath been committed here. Let us keep to plain cases. Please you describe the injuries in those two undoubted cases.
Surgeon. In Wellyn's the skull was fractured in two places. In Sherrett's the right arm was broken, and there were some contusions on the head; but the cause of death was a stab that penetrated the lungs.
Prisoner. Suppose Wellyn's murderers had thrown his body into the water, and the fishes had so mutilated it as they have this one, could you by your art have detected the signs of violence?
Surgeon. Certainly. The man's skull was fractured. Wellyn's, I mean.
Prisoner. I put the same question with regard to Sherrett's.
Surgeon. I cannot answer it; here the lungs were devoured by the fishes; no signs of lesion can be detected in an organ that has ceased to exist.
Prisoner. This is too partial. Why select one injury out of several? What I ask is this: could you have detected violence in Sherrett's case, although the fishes had eaten the flesh off his body.
Surgeon. I answer that the minor injuries of Sherrett would have been equally perceptible; to wit, the bruises on the head, and the broken arm; but not the perforation of the lungs; and that it was killed the man.
Prisoner. Then, so far as you know, and can swear, about murder, more blows have always been struck than one, and some of the blows struck in Sherrett's case, and Wellyn's, would have left traces that fishes' teeth could not efface?
Surgeon. That is so, if I am to be peevishly confined to my small and narrow experience of murdered bodies. But my general knowledge of the many ways in which life may be taken by violence—
The judge stopped him, and said that could hardly be admitted as evidence against his actual experience.
The prisoner put a drawing of the castle, the mere, and the bridge, into the witnesses' hands, and elicited that it was correct, and also the distances marked on it. They had, in fact, been measured exactly for her.
The hobnailed shoes were produced, and she made some use of them, particularly in cross-examining Jane Bannister.
Prisoner. Look at those shoes. Saw you ever the like on Mr. Gaunt's feet?
Jane. That I never did, Dame.
Prisoner. What, not when he came into the kitchen on the 15th of October?
Jane. Nay, he was booted. By the same token I saw the boy a cleaning of them for supper.
Prisoner. Those boots, when you broke into his room, did you find them?
Jane. Nay, when the man went his boots went; as reason was. We found naught of his but a soiled glove.
Prisoner. Had the pedler boots on?
Jane. Alas! who ever seed a booted pedler?
Prisoner. Had he these very shoes on? Look at them.
Jane. I couldn't say for that. He had shoon, for they did properly clatter on my bricks.
Judge. Clatter on her bricks! What in the world does she mean?
Prisoner. I think she means on the floor of her kitchen. 'T is a brick floor, if I remember right.
Judge. Good woman, say, is that what you mean?
Jane. Ay, an 't please you, my lord.
Prisoner. Had the pedler a mole on his forehead?
Jane. Not that I know on. I never took so much notice of the man. But, la, dame, now I look at you, I don't believe you was ever the one to murder our master.
Wiltshire. We don't want your opinion. Confine yourself to facts.
Prisoner. You heard me rating my husband on that night: what was it I said about the constables,—do you remember?
Jane. La, dame, I wouldn't ask that if I was in your place.
Prisoner. I am much obliged to you for your advice; but answer me—truly.
Jane. Well, if you will have it, I think you said they should be here in the morning. But, indeed, good gentlemen, her bark was always worse than her bite, poor soul.
Judge. Here. That meant at Hernshaw Castle, I presume.
Jane. Ay, my lord, an' if it please your lordship's honor's worship.
Mrs. Gaunt, husbanding the patience of the court, put no questions at all to several witnesses; but she cross-examined Mrs. Ryder very closely. This was necessary; for Ryder was a fatal witness. Her memory had stored every rash and hasty word the poor lady had uttered, and, influenced either by animosity or prejudice, she put the worst color on every suspicious circumstance. She gave her damnatory evidence neatly, and clearly, and with a seeming candor and regret, that disarmed suspicion.
When her examination in chief concluded, there was but one opinion amongst the bar, and the auditors in general, namely, that the maid had hung the mistress.
Mrs. Gaunt herself felt she had a terrible antagonist to deal with, and, when she rose to cross-examine her, she looked paler than she had done all through the trial.
She rose, but seemed to ask herself how to begin; and her pallor and her hesitation, while they excited some little sympathy, confirmed the unfavorable impression. She fixed her eyes upon the witness, as if to discover where she was most vulnerable. Mrs. Ryder returned her gaze calmly. The court was hushed; for it was evident a duel was coming between two women of no common ability.
The opening rather disappointed expectation. Mrs. Gaunt seemed, by her manner, desirous to propitiate the witness.
Prisoner (very civilly). You say you brought Thomas Leicester to my bedroom on that terrible night?
Ryder (civilly). Yes, madam.
Prisoner. And you say he stayed there half an hour?
Ryder. Yes, madam; he did.
Prisoner. May I inquire how you know he stayed just half an hour?
Ryder. My watch told me that, madam. I brought him to you at a quarter past eleven; and you did not ring for me till a quarter to twelve.
Prisoner. And when I did ring for you, what then?
Ryder. I came and took the man away, by your orders.
Prisoner. At a quarter to twelve?
Ryder. At a quarter to twelve.
Prisoner. This Leicester was a lover of yours?
Ryder. Not he.
Prisoner. O, fie! Why, he offered you marriage; it went so far as that.
Ryder. O, that was before you set him up pedler.
Prisoner. 'T was so; but he was single for your sake, and he renewed his offer that very night. Come, do not forswear yourself about a trifle.
Ryder. Trifle, indeed! Why, if he did, what has that to do with the murder? You'll do yourself no good, madam, by going about so.
Wiltshire. Really, madam, this is beside the mark.
Prisoner. If so, it can do your case no harm. My lord, you did twice interrupt the learned counsel, and forbade him to lead his witnesses; I not once, for I am for stopping no mouths, but sifting all to the bottom. Now, I implore you to let me have fair play in my turn, and an answer from this slippery witness.
Judge. Prisoner, I do not quite see your drift; but God forbid you should be hampered in your defence. Witness, by virtue of your oath, reply directly. Did this pedler offer you marriage that night after he left the prisoner?
Ryder. My lord, he did.
Prisoner. And confided to you he had orders to kill Mr. Gaunt?
Ryder. Not he, madam: that was not the way to win me. He knew that.
Prisoner. What! did not his terrible purpose peep out all the time he was making love to you?
No reply.
Prisoner. You had the kitchen to your two selves? Come, don't hesitate.
Ryder. The other servants were gone to bed. You kept the man so late.
Prisoner. O, I mean no reflection on your prudence. You went out of doors with your wooer; just to see him off?
Ryder. Not I. What for? I had nobody to make away with. I just opened the door for him, bolted it after him, and went straight to my bedroom.
Prisoner. How long had you been there when you heard the cry for help?
Ryder. Scarce ten minutes. I had not taken my stays off.
Prisoner. If you and Thomas Hayes speak true, that gives half an hour you were making love with the murderer after he left me. Am I correct?
The witness now saw whither she had been led, and changed her manner: she became sullen, and watched an opportunity to stab.
Prisoner. Had he a mole on his brow?
Ryder. Not that I know of.
Prisoner. Why, where were your eyes then, when the murderer saluted you at parting?
Ryder's eyes flashed; but she felt her temper tried, and governed it all the more severely. She treated the question with silent contempt.
Prisoner. But you pass for a discreet woman; perhaps you looked modestly down when the assassin saluted you?
Ryder. If he saluted me, perhaps I did.
Prisoner. In that case you could not see his mole; but you must have noticed his shoes. Were these the shoes he wore? Look at them well.
Ryder (after inspecting them). I do not recognize them.
Prisoner. Will you swear these were not the shoes he had on?
Ryder. How can I swear that? I know nothing about the man's shoes. If you please, my lord, am I to be kept here all day with her foolish, trifling questions?
Judge. All day, and all night too, if Justice requires it. The law is not swift to shed blood.
Prisoner. My lord and the gentlemen of the jury were here before you, and will be kept here after you. Prithee, attend. Look at that drawing of Hernshaw Castle and Hernshaw Mere. Now take this pencil, and mark your bedroom on the drawing.
The pencil was taken from the prisoner, and handed to Ryder. She waited, like a cat, till it came close to her; then recoiled with an admirable scream. "Me handle a thing hot from the hand of a murderess! It makes me tremble all over!"
This cruel stab affected the prisoner visibly. She put her hand to her bosom, and, with tears in her eyes, faltered out a request to the judge that she might sit down a minute.
Judge. To be sure you may. And you, my good woman, must not run before the court. By law a prisoner is innocent till found guilty by his peers. How do you know what evidence she may have in store? At present we have only heard one side. Be more moderate.
The prisoner rose promptly to her feet. "My lord, I welcome the insult that has disgusted your lordship and the gentlemen of the jury, and won me those good words of comfort." To Ryder: "What sort of a night was it?"
Ryder. Very little moon, but a clear, starry night.
Prisoner. Could you see the Mere, and the banks?
Ryder. Nay, but so much of it as faced my window.
Prisoner. Have you marked your window?
Ryder. I have.
Prisoner. Now mark the place where you heard Mr. Gaunt cry for help.
Ryder. 'T was about here,—under these trees. And that is why I could not see him: along of the shadow.
Prisoner. Possibly. Did you see me on that side the Mere?
Ryder. No.
Prisoner. What colored dress had I on at that time?
Ryder. White satin.
Prisoner. Then you could have seen me, even among the trees, had I been on that side the Mere?
Ryder. I can't say. However, I never said you were on the very spot where the deed was done; but you were out of doors.
Prisoner. How do you know that?
Ryder. Why, you told me so yourself.
Prisoner. Then, that is my evidence, not yours. Swear to no more than you know. Had my husband, to your knowledge, a reason for absconding suddenly?
Ryder. Yes, he had.
Prisoner. What was it?
Ryder. Fear of you.
Prisoner. Nay, I mean, had he not something to fear, something quite different from that I am charged with?
Ryder. You know best, madam. I would gladly serve you, but I cannot guess what you are driving at.
The prisoner was taken aback by this impudent reply. She hesitated to force her servant to expose a husband, whom she believed to be living: and her hesitation looked like discomfiture; and Ryder was victorious in that encounter.
By this time they were both thoroughly embittered, and it was war to the knife.
Prisoner. You listened to our unhappy quarrel that night?
Ryder. Quarrel! madam, 'twas all on one side.
Prisoner. How did you understand what I said to him about the constables?
Ryder. Constables! I never heard you say the word.
Prisoner. Oh!
Ryder. Neither when you threatened him with your knife to me, nor when you threatened him to his face.
Prisoner. Take care: you forget that Jane Bannister heard me. Was her ear nearer the keyhole than yours?
Ryder. Jane! she is a simpleton. You could make her think she heard anything. I noticed you put the words in her mouth.
Prisoner. God forgive you, you naughty woman. You had better have spoken the truth.
Ryder. My lord, if you please, am I to be miscalled—by a murderess?
Judge. Come, come, this is no place for recrimination.
The prisoner now stooped and examined her papers, and took a distinct line of cross-examination.
Prisoner (with apparent carelessness). At all events, you are a virtuous woman, Mrs. Ryder?
Ryder. Yes, madam, as virtuous as yourself, to say the least.
Prisoner (still more carelessly). Married or single?
Ryder. Single, and like to be.
Prisoner. Yes, if I remember right, I made a point of that before I engaged you as my maid.
Ryder. I believe the question was put.
Prisoner. Here is the answer in your handwriting. Is not that your handwriting?
Ryder (after inspecting it). It is.
Prisoner. You came highly recommended by your last mistress, a certain Mrs. Hamilton. Here is her letter, describing you as a model.
Ryder. Well, madam, hitherto, I have given satisfaction to all my mistresses, Mrs. Hamilton among the rest. My character does not rest on her word only, I hope.
Prisoner. Excuse me; I engaged you on her word alone. Now, who is this Mrs. Hamilton?
Ryder. A worshipful lady I served for eight months before I came to you. She went abroad, or I should be with her now.
Prisoner. Now cast your eye over this paper.
It was the copy of a marriage certificate between Thomas Edwards and Caroline Plunkett.
"Who is this Caroline Plunkett?"
Ryder turned very pale, and made no reply.
"I ask you who is this Caroline Plunkett?"
Ryder (faintly). Myself.
Judge. Why, you said you were single!
Ryder. So I am; as good as single. My husband and me we parted eight years ago, and I have never seen him since.
Prisoner. Was it quite eight years ago?
Ryder. Nearly, 'twas in May, 1739.
Prisoner. But you have lived with him since.
Ryder. Never, upon my soul.
Prisoner. When was your child born?
Ryder. My child! I have none.
Prisoner. In January, 1743, you left a baby at Biggleswade, with a woman called Church,—did you not?
Ryder (panting). Of course I did. It was my sister's.
Prisoner. Do you mean to call God to witness that child was not your's?
Ryder hesitated.
Prisoner. Will you swear Mrs. Church did not see you suckle that child in secret, and weep over it?
At this question the perspiration stood visible on Ryder's brow, her cheeks were ghastly, and her black eyes roved like some wild animal's round the court. She saw her own danger, and had no means of measuring her inquisitor's information.
"My lord, have pity on me. I was betrayed, abandoned. Why am I so tormented? I have not committed murder." So, catlike, she squealed and scratched at once.
Prisoner. What! to swear away an innocent life, is not that murder?
Judge. Prisoner, we make allowances for your sex, and your peril, but you must not remark on the evidence at present. Examine as severely as you will, but abstain from comment till you address the jury on your defence.
Sergeant Wiltshire. My lord, I submit that this line of examination is barbarous, and travels out of the case entirely.
Prisoner. Not so, Mr. Sergeant. 'T is done by advice of an able lawyer. My life is in peril, unless I shake this witness's credit. To that end I show you she is incontinent, and practised in falsehood. Unchastity has been held in these courts to disqualify a female witness, hath it not, my lord?
Judge. Hardly. But to disparage her evidence it has. And wisely; for she who loses her virtue enters on a life of deceit; and lying is a habit that spreads from one thing to many. Much wisdom there is in ancient words. Our forefathers taught us to call a virtuous woman an honest woman, and the law does but follow in that track; still, however, leaving much to the discretion of the jury.
Prisoner. I would show her more mercy than she has shown to me. Therefore I leave that matter. Witness, be so good as to examine Mrs. Hamilton's letter, and compare it with your own. The "y's" and the "s's" are peculiar in both, and yet the same. Come, confess, Mrs. Hamilton's is a forgery. You wrote it. Be pleased to hand both letters up to my lord to compare; the disguise is but thin.
Ryder. Forgery there was none. There is no Mrs. Hamilton. (She burst into tears.) I had my child to provide for, and no man to help me! What was I to do? A servant must live.
Prisoner. Then why not let her mistress live, whose bread she has eaten? My lord, shall not this false witness be sent hence to prison for perjury?
Wiltshire. Certainly not. What woman on earth is expected to reveal her own shame upon oath? 'T was not fair nor human to put such questions. Come, madam, leave torturing this poor creature. Show some mercy; you may need it yourself.
Prisoner. Sir, 'tis not mercy I ask, but justice according to law. But since you do me the honor to make me a request, I will comply, and ask her but one question more. Describe my apartment into which you showed Thomas Leicester that night. Begin at the outer door.
Ryder. First there is the anteroom; then the boudoir; then there's your bedchamber.
Prisoner. Into which of those three did you show Thomas Leicester?
Ryder. Into the anteroom.
Prisoner. Then why did you say it was in my chamber I entertained him?
Ryder. Madam, I meant no more than that it was your private apartment up stairs.
Prisoner. You contrived to make the gentlemen think otherwise.
Judge. That you did. 'T is down in my notes that she received the pedler in her bedchamber.
Ryder (sobbing). God is my witness I did not mean to mislead your lordship: and I ask my lady's pardon for not being more exact in that particular.
At this the prisoner bowed to the judge, and sat down with one victorious flash of her gray eye at the witness, who was in an abject condition of fear, and hung all about the witness-box limp as a wet towel.
Sergeant Wiltshire saw she was so thoroughly cowed she would be apt to truckle, and soften her evidence to propitiate the prisoner; so he asked her but one question.
"Were you and the prisoner on good terms?"
Ryder. On the best of terms. She was always a good and liberal mistress to me.
Wiltshire. I will not prolong your sufferings. You may go down.
Judge. But you will not leave the court till this trial is ended. I have grave doubts whether I ought not to commit you.
Unfortunately for the prisoner, Ryder was not the last witness for the crown. The others that followed were so manifestly honest that it would have been impolitic to handle them severely. The prisoner, therefore, put very few questions to them; and, when the last witness went down, the case looked very formidable.
The evidence for the crown being now complete, the judge retired for some refreshment; and the court buzzed like a hum of bees. Mrs. Gaunt's lips and throat were parched and her heart quaked.
A woman of quite the lower order thrust forth a great arm and gave her an orange. Mrs. Gaunt thanked her sweetly; and the juice relieved her throat.
Also this bit of sympathy was of good omen, and did her heart good.
She buried her face in her hands, and collected all her powers for the undertaking before her. She had noted down the exact order of her topics, but no more.
The judge returned; the crier demanded silence; and the prisoner rose, and turned her eyes modestly but steadily upon those who held her life in their hands: and, true to the wisdom of her sex, the first thing she aimed at was—to please.
"My lord, and you gentlemen of the jury, I am now to reply to a charge of murder, founded on a little testimony, and a good deal of false, but, I must needs say, reasonable conjecture.
"I am innocent; but, unlike other innocent persons who have stood here before me, I have no man to complain of.
"The magistrates who committed me proceeded with due caution and humanity; they weighed my hitherto unspotted reputation, and were in no hurry to prejudge me; here, in this court, I have met with much forbearance; the learned counsel for the crown has made me groan under his abilities; that was his duty; but he said from the first he would do nothing hard, and he has kept his word; often he might have stopped me; I saw it in his face. But, being a gentleman and a Christian, as well as a learned lawyer, methinks he said to himself, 'This is a poor gentlewoman pleading for her life; let her have some little advantage.' As for my lord, he has promised to be my counsel, so far as his high station, and duty to the crown, admit; and he has supported and consoled me more than once with words of justice, that would not, I think, have encouraged a guilty person, but have comforted and sustained me beyond expression. So then I stand here, the victim, not of man's injustice, but of deceitful appearances, and of honest, but hasty and loose conjectures.
"These conjectures I shall now sift, and hope to show you how hollow they are.
"Gentlemen, in every disputed matter the best way, I am told, is to begin by settling what both parties are agreed in, and so to narrow the matter. To use that method, then, I do heartily agree with the learned counsel that murder is a heinous crime, and that, black as it is at the best, yet it is still more detestable when 'tis a wife that murders her husband, and robs her child of a parent who can never be replaced.
"I also agree with him that circumstantial evidence is often sufficient to convict a murderer; and, indeed, were it not so, that most monstrous of crimes would go oftenest unpunished; since, of all culprits, murderers do most shun the eyes of men in their dark deeds, and so provide beforehand that direct testimony to their execrable crime there shall be none. Only herein I am advised to take a distinction that escaped the learned sergeant. I say that first of all it ought to be proved directly, and to the naked eye, that a man has been murdered; and then, if none saw the crime done, let circumstances point out the murderer.
"But here, they put the cart before the horse; they find a dead body, with no marks of violence whatever; and labor to prove by circumstantial evidence alone that this mere dead body is a murdered body. This, I am advised, is bad in law, and contrary to general precedents; and the particular precedents for it are not examples, but warnings; since both the prisoners so rashly convicted were proved innocent, after their execution."
(The judge took a note of this distinction.)
"Then, to go from principles to the facts, I agree and admit that, in a moment of anger, I was so transported out of myself as to threaten my husband's life before Caroline Ryder. But afterwards, when I saw him face to face, then, that I threatened him with violence, that I deny. The fact is, I had just learned that he had committed a capital offence; and what I threatened him with was the law. This was proved by Jane Bannister. She says she heard me say the constables should come for him next morning. For what? to murder him?"
Judge. Give me leave, madam. Shall you prove Mr. Gaunt had committed a capital offence?
Prisoner. I could, my lord; but I am loath to do it. For, if I did, I should cast him into worse trouble than I am in myself.
Judge (shaking his head gravely). Let me advise you to advance nothing you are not able and willing to prove.
Prisoner. "Then I confine myself to this: it was proved by a witness for the crown that in the dining-room I threatened my husband to his face with the law. Now this threat, and not that other extravagant threat, which he never heard, you know, was clearly the threat which caused him to abscond that night.
"In the next place, I agree with the learned counsel that I was out of doors at one o'clock that morning. But if he will use me as HIS WITNESS in that matter, then he must not pick and choose and mutilate my testimony. Nay, let him take the whole truth, and not just so much as he can square with the indictment. Either believe me, that I was out of doors praying, or do not believe me that I was out of doors at all.
"Gentlemen, hear the simple truth. You may see in the map, on the south side of Hernshaw Castle, a grove of large fir-trees. 'T is a reverend place, most fit for prayer and meditation. Here I have prayed a thousand times and more before the 15th of October. Hence 'tis called 'The Dame's Haunt,' as I shall prove, that am the dame 'tis called after.
"Let it not seem incredible to you that I should pray out of doors in my grove, on a fine, clear, starry night. For aught I know, Protestants may pray only by the fireside. But, remember, I am a Catholic. We are not so contracted in our praying. We do not confine it to little comfortable places. Nay, but for seventeen hundred years and more we have prayed out of doors as much as in doors. And this our custom is no fit subject for a shallow sneer. How does the learned sergeant know that, beneath the vault of heaven at night, studded with those angelic eyes, the stars, is an unfit place to bend the knee, and raise the soul in prayer? Has he ever tried it?"
This sudden appeal to a learned and eminent, but by no means devotional sergeant, so tickled the gentlemen of the bar, that they burst out laughing with singular unanimity.
This dashed the prisoner, who had not intended to be funny; and she hesitated, and looked distressed.
Judge. Proceed, madam; these remarks of yours are singular, but quite pertinent, and no fit subject for ridicule. Gentlemen, remember the public looks to you for an example.
Prisoner. "My lord, 'twas my fault for making that personal which should be general. But women they are so. 'T is our foible. I pray the good sergeant to excuse me.
"I say, then, generally, that when the sun retires, then earth fades, but heaven comes out in tenfold glory; and I say the starry firmament at night is a temple not built with hands, and the bare sight of it subdues the passions, chastens the heart, and aids the soul in prayer surprisingly. My lord, as I am a Christian woman, 'tis true that my husband had wronged me cruelly and broken the law. 'T is true that I raged against him, and he answered me not again. 'T is true, as that witness said, that my bark is worse than my bite. I cooled, and then felt I had forgotten the wife and the Christian in my wrath. I repented, and, to be more earnest in my penitence, I did go and pray out o' doors beneath those holy eyes of heaven that seemed to look down with chaste reproach on my ungoverned heat. I left my fireside, my velvet cushions, and all the little comforts made by human hands, that adorn our earthly dwellings, but distract our eyes from God."
Some applause followed this piece of eloquence, exquisitely uttered. It was checked, and the prisoner resumed, with an entire change of manner.
"Gentlemen, the case against me is like a piece of rotten wood varnished all over. It looks fair to the eye; but will not bear handling.
"As example of what I say, take three charges on which the learned sergeant greatly relied in opening his case:—
"1st. That I received Thomas Leicester in my bedroom.
"2d. That he went hot from me after Mr. Gaunt.
"3d. That he was seen following Mr. Gaunt with a bloody intent.
"How ugly these three proofs looked at first sight! Well, but when we squeezed the witnesses ever so little, what did those three dwindle down to?
"1st. That I received Thomas Leicester in an anteroom, which leads to a boudoir, and that boudoir leads to my bedroom.
"2d. That Thomas Leicester went from me to the kitchen, and there, for a good half-hour, drank my ale (as it appears), and made love to his old sweetheart, Caroline Ryder, the false witness for the crown; and went abroad fresh from her, and not from me.
"3d. That he was not (to speak strictly) seen following Mr. Gaunt, but just walking on the same road, drunk, and staggering, and going at such a rate that, as the crown's own witness swore, he could not in the nature of things overtake Mr. Gaunt, who walked quicker, and straighter too, than he.
"So then, even if a murder has been done, they have failed to connect Thomas Leicester with it, or me with Thomas Leicester. Two broken links in a chain of but three.
"And now I come to the more agreeable part of my defence. I do think there has been no murder at all.
"There is no evidence of a murder.
"A body is found with the flesh eaten by fishes, but the bones and the head uninjured. They swear a surgeon, who has examined the body, and certainly he had the presumption to guess it looks like a murdered body. But, being sifted, he was forced to admit that, so far as his experience of murdered bodies goes, it is not like a murdered body; for there is no bone broken, nor bruise on the head.
"Where is the body found? In the water. But water by itself is a sufficient cause of death, and a common cause too; and kills without breaking bones, or bruising the head. O perversity of the wise! For every one creature murdered in England, ten are accidentally drowned; and they find a dead man in the water, which is as much as to say they find the slain in the arms of the slayer; yet they do not once suspect the water, but go about in search of a strange and monstrous crime.
"Mr. Gaunt's cry for help was heard here, if it was heard at all (which I greatly doubt), here by this clump of trees; the body was found here, hard by the bridge; which is, by measurement, one furlong and sixty paces from that clump of trees, as I shall prove. There is no current in the mere lively enough to move a body, and what there is runs the wrong way. So this disconnects the cry for help, and the dead body. Another broken link!
"And now I come to my third defence.
"I say the body is not the body of Griffith Gaunt.
"The body, mutilated as it was, had two distinguishing marks; a mole on the brow, and a pair of hobnailed shoes on the feet.
"Now the advisers of the crown fix their eyes on that mole; but they turn their heads away from the hobnailed shoes. But why? Articles of raiment found on a body are legal evidence of identity. How often, my lord, in cases of murder, hath the crown relied on such particulars, especially in cases where corruption had obscured the features!
"I shall not imitate this partiality, this obstinate prejudice; I shall not ask you to shut your eyes on the mole, as they do on the shoes, but shall meet the whole truth fairly.
"Mr. Gaunt went from my house that morning with boots on his feet, and with a mole on his brow.
"Thomas Leicester went the same road, with shoes on his feet, and, as I shall prove, with a mole on his brow.
"To be sure, the crown witnesses did not distinctly admit this mole on him; but you will remember, they dared not deny it on their oaths, and so run their heads into an indictment for perjury.
"But, gentlemen, I shall put seven witnesses into the box, who will all swear that they have known Thomas Leicester for years, and that he had a mole upon his left temple.
"One of these witnesses is—the mother that bore him.
"I shall then call witnesses to prove that, on the 15th of October, the bridge over the mere was in bad repair, and a portion of the side rail gone; and that the body was found within a few yards of that defective bridge; and then, as Thomas Leicester went that way, drunk, and staggering from side to side, you may reasonably infer that he fell into the water in passing the bridge. To show you this is possible, I shall prove the same thing has actually occurred. I shall swear the oldest man in the parish, who will depose to a similar event that happened in his boyhood. He hath said it a thousand times before to-day, and now will swear it. He will tell you that on a certain day, sixty-nine years ago, the parson of Hernshaw, the Rev. Augustus Murthwaite, went to cross this bridge at night, after carousing at Hernshaw Castle with our great-grandfather, my husband's and mine, the then proprietor of Hernshaw, and tumbled into the water; and his body was found gnawed out of the very form of humanity by the fishes, within a yard or two of the spot where poor Tom Leicester was found, that hath cost us all this trouble. So do the same causes bring round the same events in a cycle of years. The only difference is that the parson drank his death in our dining-room, and the pedler in our kitchen.
"No doubt, my lord, you have observed that sometimes a hasty and involuntary inaccuracy gives quite a wrong color to a thing. I assure you I have suffered by this. It is said that the moment Mr. Atkins proposed to drag my mere, I fainted away. In this account there is an omission. I shall prove that Mr. Atkins used these words: 'And underneath that water I undertake to find the remains of Griffith Gaunt.' Now, gentlemen, you shall understand that at this time, and indeed until the moment when I saw the shoes upon that poor corpse's feet, I was in great terror for my husband's life. How could it be otherwise? Caroline Ryder had told me she heard his cry for help. He had disappeared. What was I to think? I feared he had fallen in with robbers. I feared all manner of things. So when the lawyer said so positively he would find his body, I was overpowered. Ah, gentlemen, wedded love survives many wrongs, many angry words; I love my husband still; and when the man told me so brutally that he was certainly dead, I fainted away. I confess it. Shall I be hanged for that?
"But now, thank God, I am full of hope that he is alive, and that good hope has given me the courage to make this great effort to save my own life.
"Hitherto I have been able to contradict my accusers positively; but now I come to a mysterious circumstance that I own puzzles me. Most persons accused of murder could, if they chose, make a clean breast, and tell you the whole matter. But this is not my case. I know shoes from boots, and I know Kate Gaunt from a liar and a murderess. But, when all is said, this is still a dark, mysterious business, and there are things in it I can only deal with as you do, gentlemen, by bringing my wits to bear upon them in reasonable conjecture.
"Caroline Ryder swears she heard Mr. Gaunt cry for help. And Mr. Gaunt has certainly disappeared.
"My accusers have somewhat weakened this by trying to palm off the body of Thomas Leicester on you for the body of Mr. Gaunt. But the original mystery remains, and puzzles me. I might fairly appeal to you to disbelieve the witness. She is proved incontinent, and a practised liar, and she forswore herself in this court, and my lord is in two minds about committing her. But a liar does not always lie, and, to be honest, I think she really believes she heard Mr. Gaunt cry for help, for she went straight to his bedroom; and that looks as if she really thought she heard his voice. But a liar may be mistaken. Do not forget that. Distance affects the voice; and I think the voice she heard was Thomas Leicester's, and the place it came from higher up the mere.
"This, my notion, will surprise you less when I prove to you that Leicester's voice bore a family likeness to Mr. Gaunt's. I shall call two witnesses who have been out shooting with Mr. Gaunt and Tom Leicester, and have heard Leicester halloo in the wood, and taken it for Mr. Gaunt.
"Must I tell you the whole truth? This Leicester has always passed for an illegitimate son of Mr. Gaunt's father. He resembled my husband in form, stature, and voice: he had the Gaunt mole, and has often spoken of it by that name. My husband forgave him many faults for no other reason—and I bought wares and filled his pack for no other reason—than this; that he was my husband's brother by nature, though not in law. 'Honi soit qui mal y pense.'
"Ah, that is a royal device; yet how often in this business have the advisers of the crown forgotten it?
"My lord, and gentlemen of the jury, I return from these conjectures to the indisputable facts of my defence.
"Mr. Gaunt may be alive, or he may be dead. He was certainly alive on the 15th of October, and it lies on the crown to prove him dead, and not on me to prove him alive. But as for the body that forms the subject of this indictment, it is the body of Thomas Leicester, who was seen on the 16th of October, at one in the morning, drunk and staggering, and making for Hernshaw Bridge, which leads to his mother's house; and on all his former visits to Hernshaw Castle he went on to his mother's, as I shall prove. This time, he never reached her, as I shall prove; but on his way to her did meet his death, by the will of God, and no fault of man or woman, in Hernshaw Mere.
"Call Sarah Leicester."
Judge. I think you say you have several witnesses.
Prisoner. More than twenty, my lord.
Judge. We cannot possibly dispose of them this evening. We will, hear your evidence to-morrow. Prisoner, this will enable you to consult with your legal advisers, and let me urge upon you to prove, if you can, that Mr. Gaunt has a sufficient motive for hiding and not answering Mr. Atkins's invitation to inherit a large estate. Some such proof as this is necessary to complete your defence; and I am sorry to see you have made no mention of it in your address, which was otherwise able.
Prisoner. My lord, I think I can prove my own innocence without casting a slur upon my husband.
Judge. You think? when your life is at stake. Be not so mad as to leave so large a hole in your defence, if you can mend it. Take advice.
He said this very solemnly; then rose and left the court.
Mrs. Gaunt was conveyed back to prison, and there was soon prostrated by the depression that follows an unnatural excitement.
Mr. Houseman found her on a sofa, pale and dejected, and clasping the jailer's wife convulsively, who applied hartshorn to her nostrils.
He proved but a Job's comforter. Her defence, creditable as it was to a novice, seemed wordy and weak to him, a lawyer; and he was horrified at the admissions she had made. In her place he would have admitted nothing he could not thoroughly explain.
He came to insist on a change of tactics.
When he saw her sad condition, he tried to begin by consoling and encouraging her. But his own serious misgivings unfitted him for this task, and very soon, notwithstanding the state she was in, he was almost scolding her for being so mad as to withstand the judge, and set herself against his advice. "There," said he, "my lord kept his word, and became counsel for you. 'Close that gap in your defence,' says he, 'and you will very likely be acquitted.' 'Nay,' says you, 'I prefer to chance it.' What madness! what injustice!"
"Injustice! to whom?"
"To whom? why, to yourself."
"What, may I not be unjust to myself?"
"Certainly not; you have no right to be unjust to anybody. Don't deceive yourself; there is no virtue in this; it is mere miserable weakness. What right have you to peril an innocent life merely to screen a malefactor from just obloquy?"
"Alas!" said Mrs. Gaunt, "'tis more than obloquy. They will kill him; they will brand him with a hot iron."
"Not unless he is indicted; and who will indict him? Sir George Neville must be got to muzzle the attorney-general, and the Lancashire jade will not move against him, for you say they are living together."
"Of course they are; and, as you say, why should I screen him? But 't will not serve; who can combat prejudice? If what I have said does not convince them, an angel's voice would not. Sir, I am a Catholic, and they will hang me. I shall die miserably, having exposed my husband, who loved me once, O so dearly! I trifled with his love. I deserve it all."
"You will not die at all, if you will only be good and obedient, and listen to wiser heads. I have subpœnaed Caroline Ryder as your witness, and given her a hint how to escape an indictment for perjury. You will find her supple as a glove."
"Call a rattlesnake for my witness?"
"I have drawn her fangs. You will also call Sir George Neville, to prove he saw Gaunt's picture at the 'Packhorse,' and heard the other wife's tale. Wiltshire will object to this as evidence, and say why don't you produce Mercy Vint herself. Then you will call me to prove I sent the subpœna to Mercy Vint. Come now; I cannot eat or sleep till you promise me."
Mrs. Gaunt sighed deeply. "Spare me," said she, "I am worn out. O that I could die before the trial begins again!"
Houseman saw the signs of yielding, and persisted. "Come, promise now," said he. "Then you will feel better."
"I will do whatever you bid me," said she. "Only, if they let me off, I will go into a convent. No power shall hinder me."
"You shall go where you like, except to the gallows. Enough, 'tis a promise, and I never knew you break one. Now I can eat my supper. You are a good, obedient child, and I am a happy attorney."
"And I am the most miserable woman in all England."
"Child," said the worthy lawyer, "your spirits have given way, because they were strung so high. You need repose. Go to bed now, and sleep twelve hours. Believe me, you will wake another woman."
"Ah! would I could!" cried Mrs. Gaunt, with all the eloquence of despair.
Houseman murmured a few more consoling words, and then left her, after once more exacting a promise that she would receive no more visits, but go to bed directly. She was to send all intruders to him at the "Angel."
Mrs. Gaunt proceeded to obey his orders, and though it was but eight o'clock, she made preparations for bed, and then went to her nightly devotions.
She was in sore trouble, and earthly trouble turns the heart heavenwards. Yet it was not so with her. The deep languor that oppressed her seemed to have reached her inmost soul. Her beads, falling one by one from her hand, denoted the number of her supplications; but, for once, they were preces sine mente dictæ. Her faith was cold, her belief in Divine justice was shaken for a time. She began to doubt and to despond. That bitter hour, which David has sung so well, and Bunyan, from experience, has described in his biography as well as in his novel, sat heavy upon her, as it had on many a true believer before her. So deep was the gloom, so paralyzing the languor, that at last she gave up all endeavor to utter words of prayer. She placed her crucifix at the foot of the wall, and laid herself down on the ground and kissed His feet, then, drawing back, gazed upon that effigy of the mortal sufferings of our Redeemer.
"O anima Christiana, respice vulnera morientis,
pretium redemptionis."
She had lain thus a good half-hour, when a gentle tap came to the door.
"Who is that?" said she.
"Mrs. Menteith," the jailer's wife replied, softly, and asked leave to come in.
Now this Mrs. Menteith had been very kind to her, and stoutly maintained her innocence. Mrs. Gaunt rose, and invited her in.
"Madam," said Mrs. Menteith, "what I come for, there is a person below who much desires to see you."
"I beg to be excused," was the reply. "He must go to my solicitor at the 'Angel,' Mr. Houseman."
Mrs. Menteith retired with that message, but in about five minutes returned to say that the young woman declined to go to Mr. Houseman, and begged hard to see Mrs. Gaunt. "And, dame," said she, "if I were you, I'd let her come in; 'tis the honestest face, and the tears in her soft eyes, at you denying her: 'O dear, dear!' said she, 'I cannot tell my errand to any but her.'"
"Well, well," said Mrs. Gaunt; "but what is her business?"
"If you ask me, I think her business is your business. Come, dame, do see the poor thing; she is civil spoken, and she tells me she has come all the way out of Lancashire o' purpose."
Mrs. Gaunt recoiled, as if she had been stung.
"From Lancashire?" said she, faintly.
"Ay, madam," said Mrs. Menteith, "and that is a long road; and a child upon her arm all the way, poor thing!"
"Her name?" said Mrs. Gaunt, sternly.
"O, she is not ashamed of it. She gave it me directly."
"What, has she the effrontery to take my name?"
Mrs. Menteith stared at her with utter amazement. "Your name?" said she. "'T is a simple, country body, and her name is Vint,—Mercy Vint."
Mrs. Gaunt was very much agitated, and said she felt quite unequal to see a stranger.
"Well, I'm sure I don't know what to do," said Mrs. Menteith. "She says she will lie at your door all night, but she will see you. 'T is the face of a friend. She may know something. It seems hard to thrust her and her child out into the street, after their coming all the way from Lancashire."
Mrs. Gaunt stood silent awhile, and her intelligence had a severe combat with her deep repugnance to be in the same room with Griffith Gaunt's mistress (so she considered her). But a certain curiosity came to the aid of her good sense; and, after all, she was a brave and haughty woman, and her natural courage began to rise. She thought to herself, "What, dares she come to me all this way, and shall I shrink from her?"
She turned to Mrs. Menteith with a bitter smile, and she said, very slowly, and clenching her white teeth: "Since you desire it, and she insists on it, I will receive Mistress Mercy Vint."
Mrs. Menteith went off, and in about five minutes returned, ushering in Mercy Vint, in a hood and travelling-cloak.
Mrs. Gaunt received her standing, and with a very formal courtesy; to which Mercy made a quiet obeisance, and both women looked one another all over in a moment.
Mrs. Menteith lingered, to know what on earth this was all about; but as neither spoke a word, and their eyes were fixed on each other, she divined that her absence was necessary, and so retired, looking very much amazed at both of them.
THE USURPATION.
There are three passions to which public men are especially exposed,—fear, hatred, and ambition. Mr. Johnson is the victim and slave of all; and, unhappily for himself, and unfortunately for the country, there is no ground for hope that he will ever free himself from their malign influence.
It is a common report, and a common report founded upon the statements of those best acquainted with the President, that he lives in continual fear of personal harm, and that he anticipates hostile Congressional action in an attempt to impeach him and deprive him of his office. He best of all men knows whether he is justly liable to impeachment; and he ought to know that Congress cannot proceed to impeach him, unless the offences or misdemeanors charged and proved are of such gravity as to justify the proceeding in the eyes of the country and the world.
There is nothing vindictive or harsh in the American character. The forbearance of the American people is a subject of wonder, if it is not a theme for encomium. They have assented to the pardon of many of the most prominent Rebels; they have seen the authors of the war restored to citizenship, to the possession of their property, and even to the enjoyment of patronage and power in the government; and finally, they have been compelled, through the policy of the President, to submit to the dictation, and in some sense to the control, of the men whom they so recently met and vanquished upon the field of battle. The testimony of Alexander H. Stephens everywhere suggests, and in many particulars exactly expresses, the policy of the President.
Mr. Stephens asserts that the States recently in rebellion were always entitled to representation in the Congress of the United States; and Mr. Johnson must accept the same position; for, if the right were once lost, it is impossible to suggest how or when it was regained. It is also known that, while the Johnston-Sherman negotiations were pending, Mr. Davis received written opinions from two or more persons who were then with him, and acting as members of his Cabinet, upon the very question in dispute between Congress and Mr. Johnson,—the rights of the then rebellious States in the government of the United States. These opinions set up and maintained the doctrine that the Rebel States would be at once entitled to representation in the government of the country, upon the ratification or adoption of the pending negotiations. It may not be just to say that the President borrowed his policy from Richmond; but it is both just and true to say that the leaders of the Rebellion have been incapable of suggesting a public policy more advantageous to themselves than that which he has adopted. The President knows that the people have been quiet and impartial observers of these proceedings; that the House of Representatives has never in public session, nor in any of its caucuses or committees, considered or proposed any measure looking to his impeachment.
The grounds of his fear are known only to himself; but its existence exerts a controlling influence over his private and public conduct.
Associated with this fear, and probably springing from it, is an intense hatred of nearly all the recognized leaders of the party by which he was nominated and elected to office. Evidence upon this point is not needed. He has exhibited it in a manner and to a degree more uncomfortable to his friends than to his enemies, in nearly every speech that he has made, commencing with that delivered on the 22d of February last.
Superadded to these passions, which promise so much of woe to Mr. Johnson and to the country, is an inordinate, unscrupulous, and unreasoning ambition. To one theme the President is always constant,—to one idea he is always true,—"He has filled every office, from that of alderman of a village to the Presidency of the United States." He does not forget, nor does he permit the world to forget, this fact. In some form of language, and in nearly every speech, he assures his countrymen that he either is, or ought to be, satisfied with this measure of success. But have not his own reflections, or some over-kind friend, suggested that he has never been elected President of the United States? and that there yet remains the attainment of this one object of ambition?
Inauguration day, 1865, will be regarded as one of the saddest days in American annals. We pass over its incidents; but it was fraught with an evil suggestion to our enemies, and it must have been followed by a firm conviction in the mind of Mr. Johnson that he could not thereafter enjoy the confidence of the mass of the Republican party of the country. He foresaw that they would abandon him, and he therefore made hot haste to abandon them. And, indeed, it must be confessed that there was scarcely more inconsistency in that course on his part, than there would have been in continuing his connection with the men who had elected him. His nomination for the Vice-Presidency was an enthusiastic tribute to his Union sentiments; beyond a knowledge of these, the Convention neither had nor desired to have any information. Mr. Johnson was and is a Union man; but he was not an anti-slavery man upon principle. He was a Southern State-Rights man. He looked upon the national government as a necessity, and the exercise of any powers on its part as a danger. His political training was peculiar. He had carried on a long war with slaveholders, but he had never made war upon slavery. He belonged to the poor white class. In his own language he was a plebeian. The slaveholders were the patricians. He desired that all the white men of Tennessee, especially, and of the whole South, should be of one class,—all slaveholders,—all patricians, if that were possible; and he himself, for a time became one. Failing in this, he was satisfied when all became non-slaveholders, and the patrician class ceased to exist. Hence, as far as Mr. Johnson's opinions and purposes are concerned, the war has accomplished everything for which it was undertaken. The Union has been preserved, and the patrician class has been broken down.
Naturally, Mr. Johnson is satisfied. On the one hand he has no sympathy with the opinion that the negro is a man and ought to be a citizen, and that he should be endowed with the rights of a man and a citizen; and, on the other hand, he shares not in the desire of the North to limit the representation of the South so that there shall be equality among the white men of the country. He is anxious rather to increase the political strength of the South. He fears the growing power of the North. The same apprehension which drove Calhoun into nullification, and Davis, Stephens, and others into rebellion and civil war, now impels Mr. Johnson to urge the country to adopt his policy, which secures to the old slaveholding States an eighth of the political power of the nation, to which they have no just title whatever. To the North this is a more flagrant political injustice than was even the institution of slavery. He once expressed equal hostility towards Massachusetts and South Carolina, and desired that they should be cut off from the main land and lashed together in the wide ocean. The President appears to be reconciled to South Carolina; but if the hostility he once entertained to the two States had been laid upon Massachusetts alone, he ought to have felt his vengeance satisfied when her representatives entered the Philadelphia Convention arm in arm with the representatives of South Carolina, assuming only, what is not true, that the sentiment of Massachusetts was represented in that Convention. As a perfect illustration of the President's policy, two men from Massachusetts should have been assigned to each member from South Carolina, as foreshowing the future relative power of the white men of the two States in the government of the country. The States of the North and West will receive South Carolina and the other Rebel States as equals in political power and rights, whenever those States are controlled by loyal men; but they are enemies to justice, to equality, and to the peace of the country who demand the recognition of the Rebel States upon the unequal basis of the existing Constitution.
Of these enemies to justice, equality, and the peace of the country, the President is the leader and the chief; and as such leader and chief he is no longer entitled to support, confidence, or even personal respect He has seized upon all the immense patronage of this government, and avowed his purpose to use it for the restoration of the Rebel States to authority, regardless of the rights of the people of the loyal States. He has thus become the ally of the Rebels, and the open enemy of the loyal white men of the country. The President, and those associated with him in this unholy project, cannot but know that the recognition of the ten disloyal States renders futile every attempt to equalize representation in Congress. The assent of three fourths of the States is necessary to the ratification of an amendment to the Constitution. The fifteen old Slave States are largely interested in the present system, and they will not consent voluntarily to a change. The question between the President and Congress is then this: Shall the ten States be at once recognized,—thus securing to the old Slave States thirty Representatives and thirty electoral votes to which they have no title, or shall they be required to accept, as a condition precedent, an amendment to the Constitution which provides an equal system of representation for the whole country? It is not enough, in the estimation of the President, that the loyal people should receive these enemies of the Union and murderers of their sons and brothers as equals, but he demands a recognition of their superiority and permanent rule in the government by a voluntary tender of an eighth of the entire representative force of the republic. When before were such terms ever exacted of the conqueror in behalf of the conquered? If the victorious North had demanded of the vanquished South a surrender of a part of its representative power in the government, as a penalty for its treason, that demand would have been sustained upon the principles of justice, although the proceeding would have been unwise as a measure of public policy. As it is, the victorious North only demands equality for itself, while it offers equality to the vanquished South. Was there ever a policy more just, wise, reasonable, and magnanimous?
Yet the President rejects this policy, deserts the loyal men of the North by whom he was elected, conspires with the traitors in the loyal States and the Rebels of the disloyal States for the humiliation, the degradation, the political enslavement of the loyal people of the country. And this is the second great conspiracy against liberty, against equality, against the peace of the country, against the permanence of the American Union; and of this conspiracy the President is the leader and the chief. Nor can he defend himself by saying that he desires to preserve the Constitution as it was, for he himself has been instrumental in securing an important alteration. "The Constitution as it was" has passed away, and by the aid of Mr. Johnson.
Nor can he say that he is opposed to exacting conditions precedent; for he made the ratification of the anti-slavery amendment a condition precedent to his own recognition of their existence as States clothed with authority. Thus is he wholly without proper excuse for his conduct. Nor can he assert that the Rebel States are, and ever have been, States of the Union, and always and ever entitled to representation and without conditions; for then is he guilty of impeachable offences in demanding of them the ratification of the constitutional amendment, in dictating a policy to the Southern States, in organizing provisional governments, in inaugurating constitutional conventions, in depriving officers elected or appointed by authority of those States of their offices, and, in fine, in assuming to himself supreme authority over that whole region of country for a long period of time. Thus his only defence of his present policy contains an admission that he has usurped power, that he has violated the Constitution, that he is guilty of offences for which he ought to be impeached. Thus do the suggestions which the President tenders as his defence furnish conclusive evidence that his conduct is wholly indefensible.
While then the President cannot defend his conduct, it is possible for others to explain it.
Its explanation maybe found in some one or in several of the following propositions:—
1. That the Rebel leaders have acquired a control over the President, through the power of some circumstance not known to the public, which enables them to dictate a policy to him.
2. That he fears impeachment, and consequently directs all his efforts to secure more than a third of the Senate, so as to render a conviction impossible.
3. That he seeks a re-election, and purposes to make the South a unit in his favor, as the nucleus around which the Democratic party of the North must gather in 1868.
4. That he desires to reinstate the South as the controlling force in the government of the country.
In reference to the first proposition, we are restricted to the single remark, that it is not easy to imagine the Rebels capable of making any demand upon the Executive which, in his present state of mind, he would not be prepared to grant. He has pardoned many of the leaders and principal men of the Rebellion, and some of them he has appointed to office. He has resisted every attempt on the part of Congress to furnish protection to the loyal men of the South, and he has witnessed and discussed the bloody horrors of Memphis and New Orleans with cold-blooded indifference. Early in his term of office he offered an immense reward for the person of Jefferson Davis; and now that the accused has been in the official custody of the President, as the head of the army, for more than fifteen months, he has neither proclaimed his innocence and set him at liberty, nor subjected him to trial according to the laws of the land. Davis is guilty of the crime of treason. Of this there can be no doubt. He is indicted in one judicial district. The President holds the prisoner by military authority; and the accused cannot be arraigned before the civil tribunals. Davis was charged by the President with complicity in the assassination of Mr. Lincoln. There is much evidence tending to sustain the charge; but the accused is neither subjected to trial by a military commission, nor turned over to the civil tribunals of the country. These acts are offences against justice; they are offences against the natural and legal rights of the accused, however guilty he may be; they are offences against the honor of the American people; they are acts in violation of the Constitution. If the elections of 1866 are favorable to the President, they will be followed by the release of Davis, and the country will see the end of this part of the plot.
Upon any view of the President's case, it is evident that he has thrown himself into the arms of the South, and that his personal and political fortunes are identified with Southern success in the coming contest. He claims to stand upon the Baltimore Platform of 1864, and to follow in the footsteps of President Lincoln. The enemies of President Lincoln are reconciled to this assumption, by the knowledge that Mr. Johnson's counsellors are the Seymours, Vallandigham, Voorhees, and the Woods. Mr. Johnson, under these evil influences of opinion and counsel, has succeeded in producing a division of parties in this country corresponding substantially to the division which Demosthenes says existed in Greece when Philip was engaged in his machinations for the overthrow of the liberties of that country. "All Greece is now divided into two parties;—the one composed of those who desire neither to exercise nor to be subject to arbitrary power, but to enjoy the benefits of liberty, laws, and independence; the other, of those who, while they aim at an absolute command of their fellow-citizens, are themselves the vassals of another person, by whose means they hope to obtain their purposes."
The Republican party desires liberty, independence, and equal laws for all people; the Presidential party seeks to oppress the negro race, to degrade the white race of the North by depriving every man of his due share in the government of the country, and, finally, to subject all the interests of the Republic to the caprice, policy, and passions of its enemies.
The Presidential party is composed of traitors in the South who had the courage to fight, of traitors in the North who had not the courage or opportunity to assail their government, of a small number of persons who would follow the fortunes of any army if they could be permitted to glean the offal of the camp, and a yet smaller number who are led to believe that any system of adjustment is better than a continuance of the contest.
The Presidential party controls the patronage of the government; and it will be used without stint in aid of the scheme to which the President is devoted.
It only remains to be seen whether the courage, capacity, and virtue of the people are adequate to the task of overthrowing and crushing the conspiracy in its new form and under the guidance of its new allies. The Republican party carries on the contest against heavy odds, and with the fortunes of the country staked upon the result.
One hundred and ninety-one men have been recognized as members of the present House of Representatives. There are fifty vacancies from the ten unrecognized States; consequently a full House contains two hundred and forty-one members. One hundred and twenty-one are a majority,—a quorum for business, if every State were represented. Of the present House, it is estimated that forty-six members are supporters of the President's policy. If to these we add the fifty members from the ten States, the Presidential party would number ninety-six, or twenty-five only less than a majority of a full House. No view can be taken of the present House of Representatives more favorable to the Republican party,—possibly the President's force should be increased to forty-eight men. It is worthy of observation that neither the Philadelphia Convention nor the President has breathed the hope that the Republicans can be deprived of a majority of the members from the loyal States. The scheme is to elect seventy-one or more men from the loyal States, and then resort to revolutionary proceedings for consummation of the plot. The practical question—the question on which the fortunes of the country depend—is, Will the people aid in the execution of the plot contrived for their own ruin? Upon the face of things, we should say that it is highly improbable that the new party can make any important gains; indeed, it seems most improbable that the President can survive the effect of his own speeches. But we must remember that he is supported by the whole Democratic party, and that that party cast a large vote in 1864, and that in 1862 the Republican majority in the House was reduced to about twenty.
In the Thirty-eighth Congress the Democratic party had ten or fifteen more votes than are now needed to secure the success of the present plot. To be sure, the elections of 1862 occurred at the darkest period of the war. The young men of the Republican party were in the army, and but a small number of them had an opportunity to vote. There was still hope that a peace could be made through the agency of the Democratic party. These circumstances were all unfavorable to the cause of the patriots.
The Democratic party is now weaker than ever before. Its identity with the Rebellion is better understood. The young men of the country, in the proportion of three to one, unite themselves with the Republican party. As an organization, considered by itself, the Democratic party is utterly powerless and hopeless.
The defection of Mr. Johnson, however, inspires the leaders with fresh courage. It is possible for them to enjoy the patronage of the government for two years at least, and it is barely possible for them to secure the recognition of the ten Rebel States, or, in other equivalent words, the ten Democratic States, to the Union.
This combination is formidable; but its dangerous nature is due to the facts that Mr. Seward's name and means of influence are still powerful in the State of New York, and that he has joined himself to the new party and become an instrument in the hands of designing men for the organization of another rebellion. Outside of New York Mr. Johnson's gains in the elections will be so small that the Union majority will remain substantially as in the present Congress; nor can we conceive that the gains in that State will be adequate to the necessities of the conspirators. It is probable that the undertaking will prove a failure; but it should never be forgotten that the country is in peril; that it is in peril in consequence of the uncertain political character of the State of New York; and that that uncertain character is justly attributable to the conduct of Mr. Seward. If, then, Mr. Johnson succeed in the attempt to change the character of this government by setting aside the Congress of the loyal States, Mr. Seward will be responsible, equally with Mr. Johnson, for the crime.
Reverting to the statement already made, that neither Mr. Johnson nor any of his supporters can even hope to secure a majority of the members elected from the States represented in the present Congress, it only remains for us to consider more specifically the scheme of revolution and usurpation in which these desperate men are engaged. The necessary preliminary condition is the election of seventy-one members of Congress from the twenty-six States. To these will be added fifty persons from the ten unrepresented States, making one hundred and twenty-one, or a majority of Congress if all the States were represented. This accomplished, the way onward is comparatively easy.
When the Thirty-ninth Congress reassembles in December next, Mr. Johnson and his Cabinet may refuse to recognize its existence, or, recognizing it as a matter of form, deny its legitimate authority.
He would summon the members of the Fortieth Congress to assemble in extra session immediately after the 4th of March. Fifty persons would appear claiming seats as representatives from the ten States. The Republicans would deny their right to seats,—the supporters of the President would maintain it. The supporters of the President, aided directly or indirectly by the army and police, would take possession of the hall, remove the Clerk, and organize the assembly by force.
Whether this could be done without bloodshed in Washington and elsewhere in the North remains to be seen; but as far as relates to the organization of the House, there can be no doubt of the success of the undertaking. We should then see a united South with the President at the head, and a divided North;—the army, the navy, the treasury, in the hands of the Rebels. This course is the necessity of Mr. Johnson's opinions and position. It is the natural result of the logic of the Rebels of the South and of the Democratic party of the North. Mr. Johnson believes that the present Congress intends to impeach him and remove him from office. Admit that this fear is groundless, yet, if he entertains it, he will act as he would act if such were the purpose of the two Houses. Hence he must destroy the authority of Congress. Hence he arraigns its members as traitors. Hence he made the significant, revolutionary, and startling remark, in his reply to Reverdy Johnson as the organ of the Philadelphia Convention: "We have seen hanging upon the verge of the government, as it were, a body called, or which assumed to be, the Congress of the United States, but in fact a Congress of only a part of the States." This is a distinct, specific denial of the right of Congress to exist, to act, to legislate for the country. It is an impeachment of all our public doings since the opening of the war,—of all our legislation since the departure of Davis and his associates from Washington. It is an admission of the doctrine of Secession; for if the departure of Davis and his associates rendered null and void the authority of Congress, then the government, and of course the Union, ceased to exist. The constitutional amendment abolishing slavery is void; the loan-acts and the tax-acts are without authority; every fine collected of an offender was robbery; and every penalty inflicted upon a criminal was itself a crime. The President may console himself with the reflection that upon these points he is fully supported by Alexander H. Stephens, late Vice-President of the so-called Confederacy.
We quote from the report of his examination before the Committee on Reconstruction.
"Question. Do you mean to be understood, in your last answer, that there is no constitutional power in the government, as at present organized, to exact conditions precedent to the restoration to political power of the eleven States that have been in rebellion?
"Answer. That is my opinion.
"Question. Assume that Congress shall, at this session, in the absence of Senators and Representatives from the eleven States, pass an act levying taxes upon all the people of the United States, including the eleven, is it your opinion that such an act would be constitutional?
"Answer. I should doubt if it would be. It would certainly, in my opinion, be manifestly unjust, and against all ideas of American representative government."
Thus it is seen that these two authorities concur in opinion; although it must be confessed that the late Vice-President of the so-called Confederate States in urbanity of manner and in the art of diplomacy far surpasses the late Vice-President (as Mr. Johnson, if his logic does not fail him, must soon say) of the so-called United States.
Having thus impeached the existing Congress and denied its authority, the way is clear for the organization of a Congress into which members from the ten States now excluded shall be admitted.
Representatives who do not concur in these proceedings will have only the alternative of taking seats among the usurpers, and thus recognizing their authority, or of absenting themselves and appealing to the people. The latter course would be war,—civil war, with all the powers of the government, for the time being, in the hands of the usurpers. The absenting members would be treated as rebels, and any hostile organization would be regarded as treasonable. Thus would the Rebels be installed in power, and engaged in conducting a war against the people of the North and West.
If, on the other hand, the representatives from the West and North should deem it wiser to accept the condition, and await an opportunity to appeal to the country, how degrading and humiliating their condition! They might for a time endure it; but finally the people of the North would rise in their might, and renew the war with spirit and power, and prosecute it until the entire Rebel element of the country should be exterminated. The success of Mr. Johnson in the elections is then to be followed by a usurpation and civil war. It means this, or it means nothing. The incidents of the usurpation would be, first, that the old Slave States would secure thirty Representatives in Congress and thirty electoral votes, or an eighth of the government, to which they have no title whatever unless the negroes should be enfranchised, of which there would be then no probability; and, secondly, that two white men in the South would possess the political power of three white men in the North. The results of the usurpation would be strife and civil war in the North, and, finally, the overthrow of the usurpers by force, to be followed, possibly, by an exterminating war against the Rebel population of the South.
Already has one of Mr. Johnson's agents announced the usurpation in substance, and tendered to the country a defence in advance of the commission of the crime. The defence is simple and logical. Congress refuses to receive the members from ten States. Those States have the same immediate right of representation as the other States. Congress is, therefore, a revolutionary body. Any proceeding which secures the right of all the States to be represented immediately is a constitutional proceeding. This is intelligible. Alexander H. Stephens is the author of this cardinal doctrine of the Presidential party. On the other hand, Congress maintains that enemies vanquished in war, though formerly citizens and equals, cannot dictate the terms of adjustment; nor even enjoy the privileges of a constitution which they have violated and sought to destroy, without a compliance with those terms which the loyal people may deem essential to the public safety.
The issue is well defined. Shall the Union be restored by usurpation, with its attendant political inequality and personal injustice to loyal people, and consequent civil war, or by first securing essential guaranties for the future peace of the country, and then accepting the States recently in rebellion as equals, and the people of those States as friends and citizens with us of a common country?
The question is not whether the Union shall be restored: the Republican party contemplates and seeks this result. But the question is, shall the Union be restored by usurpation,—by a policy dictated by the Rebels, and fraught with all the evils of civil war? The seizure of the government in the manner contemplated by Johnson and his associates destroys at once the public credit, renders the public securities worthless for the time, overthrows the banking system, bankrupts the trading class, prostrates the laborers, and ends, finally, in general financial, industrial, and social disorder.
REVIEWS AND LITERARY NOTICES.
Elements of International Law. By Henry Wheaton, LL. D., etc. Eighth Edition. Edited, with Notes, by Richard Henry Dana, Jr., LL. D. Boston: Little, Brown, & Co. 1866. 8vo. pp. 749.
Lord Westbury, in one of his masterly speeches on law reform, spoke with much truth, and in terms of severe censure, of the neglect with which public law has heretofore been treated in England, and the scanty contributions of English writers to it. And it is undoubtedly true, that, as the English language has no name by which to designate that branch of the law called by the civilians jus, and by the French publicists droit, so English libraries are without any great national work on this subject, although the English bar has produced innumerable treatises on municipal law, which are high models of profound learning, acute logic, and luminous exposition; and Great Britain is still chiefly dependent for her international law upon the decisions of Lord Stowell and a few other judges, and the commentaries of the Continent and America.
But from an early period in our political history, international law has been a favorite study in the United States, both with jurists and statesmen. Our war of independence and the succeeding treaties gave rise to questions for solution by it of the greatest nicety, and thus attracted immediate attention to the whole science. To these there followed in quick succession our long-pending dispute with Great Britain upon her exercise of the oppressive claims of visitation and search, our position as a neutral nation during the long wars in Europe, our own war with England, and the wars between Spain and her revolted colonies. Such a succession of events, fruitful in international controversies, created a demand for the study of the law of nations such as is always sure to be supplied. The state papers of Mr. Madison and Mr. John Quincy Adams are a permanent monument to their familiarity with this subject. Contemporaneous with them were the unrivalled decisions of the Supreme Court when presided over by Chief Justice Marshall, and later have been published the works of Kent, Wheaton, Story, and other writers. All of these together comprise a treasure of learning of which we may well be proud.
Mr. Wheaton, by general consent, occupies the first place among our commentators. Inferior as a jurist to Chancellor Kent, he is not so high an authority upon any question which the latter carefully and thoroughly examined; but long study and training, first before the Supreme Court, when he was not only the reporter of its decisions during the international era, but was of counsel in most of the important cases involving international law, and afterwards in an extended and useful diplomatic career in Europe, gave him an unequalled familiarity with the whole subject; and he treated it in a much more elaborate manner than did Kent, who only discussed it as a branch of the more general science covered by his Commentaries. No better evidence of the value of Mr. Wheaton's book is needed than the high estimation in which it is held in Europe, and particularly in England, where, as the production of a common-law lawyer, it has a greater value than the works of Continental scholars, and for reasons of which we shall speak presently. Lord Lyndhurst early bore testimony to its great merits, and during the last few years it has been universally regarded as an authority of the highest standard. No other publicist has been so frequently cited in the controversies which have grown out of our late civil war. The translation of the book into Chinese is a most interesting fact, flattering to the author, and a proof of the progress which Western thought and civilization are making in the extreme East.
It is of Mr. Dana's edition of this valuable work that we are now called upon particularly to speak. As a new edition of the book was demanded, it was of the greatest importance that it should be placed in the hands of an editor competent to discuss, in a manner worthy of the distinguished commentator, those numerous and perplexing questions which have arisen since his death. The representatives of Mr. Wheaton were singularly fortunate in obtaining the aid of so prominent and so busy a man as Mr. Dana,—one who is himself a high authority on many branches of international law; for it is not an easy matter to prevail upon a leader of the bar, and especially one immersed in the cares of official as well as of professional duties, to undertake a laborious literary work, even if it be of a legal character. Of the editor it is a delicate matter to speak; but we can say without violating good taste, that few members of his profession unite at once, and to an equal degree with him, high professional acquirements, an enviable reputation as an orator and advocate, and the accomplishments of a varied and extensive scholarship, so that the words with which the President of Harvard College, at the recent Commencement, conferred upon him the degree of Doctor of Laws, Virum eloquentium jurisperitissimum, jurisperitorum eloquentissimum, could be applied to him with far less disregard of strict truth than university dignitaries consider allowable on such occasions. A large practice for more than twenty years in the maritime courts has given Mr. Dana an extensive and intimate acquaintance with one part of the subject he has here undertaken; and his duties as United States District Attorney for Massachusetts, throughout the late war, obliged him to examine most carefully the whole law of prize, of neutral and contraband trade, and of blockade. The results of his labors comprise nearly half of the volume before us, and deserve some higher appellation than notes. Nowhere, however, does Mr. Dana push himself before his author. He never seems to forget that his duty is to prepare a new edition of Wheaton's Commentaries, not to write a book of his own; and he is content modestly to illustrate the text, and to supply the omissions needed to bring the book down to the present day.
It is not necessary to say that, in a literary point of view, Mr. Dana has done his work well. His style is a model of terseness, vigor, and perspicuity, and yet the reader is constantly charmed by its chaste purity and grace. We can say of him what Macaulay said of Bacon, that he has a wonderful talent of packing thought close and rendering it portable. It is a long time since we have read a book in which so much matter was compressed into so small a space. The good taste and polished courtesy with which Mr. Dana treats of any controverted point cannot be too much praised; and his calmness and moderation in their discussion are judicial in their nature and extent, and give additional weight to his opinions.
We have been surprised to see notices of the work in which Mr. Dana is criticised for want of enthusiasm. If by this is meant that he lacks enthusiasm for his subject, the criticism is entirely misplaced. We doubt whether, without that, he could ever have been induced to edit this book; and on every page, and in almost every line, convincing proof can be found of the love and devotion which the editor feels for the law, and especially for this department of it, to the study and practice of which he has devoted so many years. It is this enthusiasm that renders the notes to us more interesting than the text. Things which Mr. Wheaton discusses as abstractions seem in Mr. Dana's hands to become living realities. In one the scholar's temperament predominates; in the other the lawyer's and the politician's. If, however, the criticism applies to the rigid impartiality which the editor brings to the discussion of those contemporaneous events concerning which the passions of men have been most recently and deeply aroused, we regard it as high praise. If Mr. Dana's views be wrong, it is not likely that the indulgence of a partisan enthusiasm would have corrected them; if they be right, the absence of all passion, the studied courtesy and tolerant moderation which mark every line of argument, add infinite strength to his conclusions.
The legal merits of Mr. Dana's annotations require other and higher tests. They depend upon the accuracy of his statements and reasoning, and the amount of assistance which those will obtain who seek it from him. To investigate this would require more space than we can now give, and rather falls within the province of a professional reviewer. A strong conviction of the soundness of his logic, however, involuntarily follows a careful perusal of these notes, and will have no little influence with those who feel it. This is partly owing to the passionless tone of his discussion, of which we have before spoken. The amount of historical and general political information which this book contains will give it value aside from its legal character, and demands for it a very general circulation.
The note upon the sources of international law is exceedingly instructive. Notwithstanding his long practice in admiralty and constant study of civil and foreign law, our editor adheres to his strong Saxon preference for actual judicial decisions as the best evidence of all law. The opinion of Continental writers is seen in its strongest light in a recent French author, who has pushed the doctrine as far as any one else, if not farther. After quoting several definitions of international law, Mr. Dana says:—
"Hautefeuille divides international law into two parts, which he calls primitif and secondaire,—the first containing, as he says, the principles, the absolute basis, of the law; and the second, the measures or provisions for calling up these principles and securing their execution. In the application of this theory, it will be found that the distinguished writer usually treats the primitive law, or the well or fountain of first principles, as of actual authority, where no express agreement departs from it; and so much of the practice of nations as consists in judicial decisions adopted, enforced, and acquiesced in, he considers as of less authority than the primitive law as it lies in the breast of the text-writers....
"Commentators seem agreed as to what are the sources of international law. They differ as to the relative importance and authority of these sources. Hautefeuille especially gives little weight to the decisions of prize courts, and places far before them the speculations of writers. It is noticeable that Continental writers incline the same way, although they may not go as far; while Wheaton, Kent, Story, Halleck, and Woolsey in America, and Phillimore, Manning, Wildman, Twiss, and others in England, give a higher place to judicial decisions. This is attributable to the different systems of municipal law under which they are educated. In England and America, judicial decisions are authoritative declarations of the common law, i. e. the law not enacted by decrees of legislators, but drawn from the usages and practices of the people, and from reason and policy. They are at the same time the highest evidence of what the law is. Under those systems, writers are brought to the test of judicial decisions; and even those portions of the opinions of the court itself not necessary to the decision of the cause before it are termed obiter dicta, and are not authority, but stand on no higher ground than voluntary speculations of learned men as to what the law might prove to be in a supposed case. The Continental writers, on the other hand,—living under municipal systems in which judicial decisions hold no such place, and are neither precedents, authoritative declarations, nor authentic evidence of the law,—are led by their education to look to but one authoritative source of law,—the decrees of legislators; and, in the absence of these, naturally put the scientific treatises of learned men, systematic, and enriched with illustrations, above the special decisions of tribunals on single cases, which, by their systems, do no more than settle the particular controversy, without settling the principles evoked for its decision."
The editor then sums up the respective merits of these two methods of deducing the principles of international law at a length which prevents our quoting the whole for the benefit of our readers. In conclusion he says:—
"As an offset to this [the supposed impartiality of commentators], it is to be remembered that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.
"Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage,—and that each state is, in like manner, independent, and has made like concessions for a like purpose of international advantages,—such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption, that men and communities are by nature what they have always been found to be; that the rights and duties of each man are, by Divine ordination, originally and necessarily, those at once of an individual and a member of society; and that the rights and duties of a state are, in like manner, those at once of an individual state and one among a number of states; and that neither class of these rights or duties is artificial, voluntary, or secondary.
"In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized states, but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning."
M. Hautefeuille, particularly, finds little favor with Mr. Dana. Repeatedly rules laid down by him are dismissed with the bare remark, that "he is without support either by judicial decisions, treaties, the opinions of commentators of received authority, or diplomatic positions taken by nations"; or, as in another place, that the principle broached "is merely a suggestion of the learned commentator as a possible policy, and has no support either in the practice of nations or the works of publicists";—but the editor never condescends to meet the French writer upon his own field of casuistry and speculation. And in this we think he is right. The discussion of rules existing only in a text-writer's belief in their abstract justice, would be entirely useless labor in any writer in the English language; for whatever may be the system of Continental Europe, neither the United States, nor Great Britain, nor any one of the future kindred nations that will grow out of the English colonies, will ever pay much regard to a doctrine so foreign to that noble system of law which, like their common tongue, will be a permanent proof of their common origin.
Two of the most admirable of Mr. Dana's notes are those on the "relations of the United States judiciary to the Constitution and statutes," and on "the United States a supreme government"; and they deserve careful perusal from all desirous of fully understanding our system of government. From the first we cannot refrain from making one extract, which may help to explain to our non-professional readers a difficult principle of law which we have never before seen so concisely and at the same time so clearly stated.
"In cases before it, the Supreme Court has no other jurisdiction over constitutional questions than is possessed by the humblest judicial tribunal, State or national, in the land. The only distinction is, that it is the court of final resort, from whose decision there is no appeal. The relations of all courts to the Constitution arise simply from the fact that, being courts of law, they must give to litigants before them the law; and the Constitution of the United States is law, and not, like most European political constitutions, a collection of rules and principles having only a moral obligation upon the legislative and executive departments of the government. Accordingly, each litigant, having the right to the highest law, may appeal from a statute of Congress, or any other act of any officer or department, State or national, and invoke the Constitution as the highest law. The court does not formally set aside or declare void any statute or ordinance inconsistent with the Constitution. It simply decides the case before it according to law; and if laws are in conflict, according to that law which has the highest authority, that is, the Constitution. The effect of the decree of the final court on the status of the parties or property in that suit is of course absolute, and binds all departments of the government. The constitutional principle involved in the decision, being ascertained from the opinion,—if the court sees fit to deliver a full opinion,—has in all future cases in courts of law simply the effect of a judicial precedent, whatever that may be. Upon the political department of the government and upon citizens the principle decided has, in future cases, not the binding force of a portion of the Constitution, but the moral effect due to its intrinsic weight and to the character of the tribunal, and the practical authority derived from the consideration that all acts inconsistent with it will be inoperative, by reason of the judicial power which any citizen may invoke against their operation."
Our space will not allow us to make further quotations. Among those notes which are especially interesting to the non-professional reader we may mention those on the much misunderstood Monroe doctrine; on naturalization; on the effect of belligerent occupation on slavery, and the President's Proclamation of Emancipation,—in which Mr. Dana maintains the same position that he has heretofore taken in his political speeches, and of the correctness of which there can be no doubt; the very excellent examination of the neutrality statutes and decisions, and the note on the case of the Trent,—a model of calm, judicial dissertation. The recent agitation of the subjects of all of these makes them matters of general interest, and we cannot but think that the timely publication of this edition of Mr. Wheaton's work will aid efficiently in the satisfactory settlement of some of them. True to the principles which he holds of the evidences of international law, Mr. Dana avoids spending much time in discussing questions still unsettled, satisfying himself with a clear statement of the present state of each controversy, and leaving it for the future attention of statesmen and jurists. Attached to the volume is a full and carefully prepared Index,—sufficient for all the requirements of any reasonably intelligent reader.
We cannot dismiss this book without alluding to the newspaper controversy which the editor of the two preceding editions has started, and seems determined to keep alive, even if he have no antagonist. We wish to do full justice to Mr. Beach Lawrence's services to the science of public law. His industry and the extent and variety of his information will always make his writings valuable as books of reference,—much as we think this value is lowered by his method of treatment and partisan views. Some natural disappointment and irritation would be excusable in him on the announcement that a work, of which he imagined he enjoyed a monopoly, was receiving the attention of so formidable a rival; but this does not excuse the bad taste and bad temper with which he has published his complaints. Of the merits of his dispute with Mr. Wheaton's heirs we know little, and shall say nothing, except that they have been guided in their conduct by what they regarded as high legal opinion of their rights and obligations, and that, if Mr. Lawrence has been wronged, the courts of which he talks so much, but to which he seems to be so slow to appeal, will give him redress. But if it be considered becoming to drag ladies and their private circumstances before the public in the manner in which Mr. Lawrence has done it, there must be a grievous decline of the old chivalrous feeling in regard to women. Still more solemnly must we protest against his recent charges against Mr. Dana. In these he impugns the honor of a distinguished contemporary, charging him with gross and impudent piracy of the results of another's labors. If there be foundation for these charges, they ought to be made; but there are two ways of making them, and the course which Mr. Lawrence has taken in bringing them, at a time when Mr. Dana is absent from the country, and leaving them to rest solely on his own unsupported assertion—without citing or referring to any of the facts which he declares exist—is highly censurable. We have found no evidence of the truth of his charges in a cursory examination of a considerable part of both works; and a friend upon whose judgment we place full reliance, and who has carefully compared the labors of the two editors, assures us that there is nothing which at all substantiates them. Mr. Lawrence has needlessly involved his own character in this affair; and the public will demand from him proofs of a most flagrant violation of the rights of literary property, before it will be inclined to admit any palliation for the errors he has committed in conducting the controversy.
English Travellers and Italian Brigands. A Narrative of Capture and Captivity. By W. J. C. Moens. New York: Harper and Brothers.
Prison-Life in the South: at Richmond, Macon, Savannah, Charleston, Columbia, Charlotte, Raleigh, Goldsborough, and Andersonville, during the Years 1864 and 1865. By A. O. Abbott. New York: Harper and Brothers.
The narrative of Mr. Moens, so far as it relates to the general subject of brigandage in South Italy, will hardly present anything novel to those who have at all studied the history or character of that scourge. In fact, Italian brigandage is a very simple affair, about which it is hard to say anything new. Given a starving, beaten, superstitious population in a mountainous country, destitute of roads, and abounding in easy refuges and inaccessible hiding-places, and you have brigandage naturally. Given centuries of weak, cruel, and corrupt government, and you have the perpetuation of brigandage inevitably. From time immemorial, the social and political conditions in Naples have been deprivation and oppression; and cause and effect have so long been convertible, that it is often difficult to know one from the other. The prevalence of brigandage demands measures on the part of the government compared with the severity of which martial law is lax and mild; and the crime which provokes these harsh measures has revived again from the disaffection which they produce. All authorities on the subject are agreed that brigandage finds its shield and support in the fears of the people, and the complete system of espionage which the robbers are enabled to maintain through their accomplices in society. These are sometimes priests and persons of station, but more commonly peasants whose friends or relatives are brigands. During the French-republican rule of Naples, when Manhès was at the head of the troops assigned the duty of extirpating brigandage, the robbers were for once destroyed by the terrible measures taken against their accomplices. No one suspected of communicating with them in any way was spared. Men were shot for selling them food. Women and children taking food into the fields to eat while at work were shot, under an order forbidding this custom lest the provisions should fall into the hands of the robbers. For once, the authorities outbid the brigands for the terror of the wretched inhabitants, and annihilated them. But it was natural, in a country where every peasant is a possible brigand, and only waits for a lawless impulse or lawless deed to make him an actual brigand, that brigandage should flourish again as soon as the rigid procedure against it was relaxed. The returning Bourbons found it on every hill; and though they combated it with fitful severity and unremitting treachery, they left it essentially unimpaired to the Italian government in 1860. It is by no means true—as Mr. Moens asserts upon the authority of Murray's Guide-Book—that the late Bourbon government did anything towards effectually suppressing brigandage. The brigands were put down in one place to spring up in another, and they swarmed everywhere after a lean harvest. They never were effectually suppressed, except by Manhès; and, as the Italian government has mercifully refused to adopt his course for their destruction, it is probable that they will exist until the country is generally opened with roads, and the people educated, and, above all, Protestantized. For it must never be forgotten that, since the union of Naples with Italy, brigandage has been fostered by the Bourbons and the Papists, and that the Italians have had to fight, not only the robbers in Naples, but Francis II. and Pius IX. at Rome.
To the readers of the newspapers, the name of Mr. Moens is known as that of the English gentleman who was taken by brigands in May of last year, on his return from a little pleasure excursion to Pæstum. He and his party—consisting of his wife and the Rev. Mr. Aynsley and wife—had trusted too implicitly in the notice given by their landlord that the road from Salerno to the famous temples was free from brigands, and guarded by troops. Near a little town called Battipaglia, the military having been withdrawn temporarily to permit the families of some captives to negotiate their ransom with the band of Giardullo, the band of Manzo swooped down upon the unhappy tourists, and carried off both the gentlemen of the party. The troops appeared almost immediately after the capture, but the brigands escaped with their prisoners, one of whom they released a few days later, that he might return to Naples, and raise the ransom demanded for himself and his friend. The book, from this point, is the relation of Mr. Moens's trials and adventures with the bandits, and Mrs. Moens's hardly less terrible efforts and anxieties for his release. It was decided by the band that their captive was a Milord, and they demanded a ransom of $200,000 for him, subsequently reducing the sum to $30,000, which was paid them in instalments, and which having received in full, they released their prisoner after a captivity of four months. All the negotiations for the ransom of Mr. Moens had to be carried on in defiance of Italian law, and by indulgence of its officers; for to supply the brigands with food or money is an offence punishable with twenty years in the galleys. Generous English friends at Naples interested themselves in the affair, and the aid which Mrs. Moens received from Italians in private and official station was no less cordial and constant. Indeed, the business of Mr. Moens's recapture became of almost international importance. All the Italian troops in the region were employed in pursuit of Manzo's band; and a British man-of-war was sent to a certain point on the coast, in the hope that the bandits could be induced to go on board by the promise of impunity, and transfer to England.
In the mean time Mr. Moens remained with his captors, sharing all their perils and privations, and making perforce the most faithful study ever made of their life. It must be confessed that the picture has few features attractive to people at peace with society. Most of the brigands are men who have placed themselves beyond the law by some hideous crime,—or misfortune, as they would call it in Naples,—and in other cases they are idle ruffians, who have taken to robbery because they like it. They generally look forward to a time when, having placed a sufficient amount of money at interest, they can surrender themselves to the authorities, pass a few comfortable years in prison, and issue forth ornaments to society. To be sure, this scheme is subject to chances. They are hunted by the soldiers, day and night, like wild beasts; and, if taken under arms, are shot without trial. Half the time they are without food, and suffer the agonies of hunger and thirst; and they are always without shelter, except such as trees or caverns can give. When they have anything, they "eat their bread with carefulness, and drink their water with astonishment,"—quarrelling over it a good deal, and trying to steal from one another. When they have nothing, they buckle their belts tighter, and bear it as best they may.
Mr. Moens, who fared no better than the rest, does not seem to have fared much worse. Indeed, he was much more comfortably situated than the ladies of the band, who, being dressed as men, were armed and obliged to fight like their comrades, and yet had no share of the spoils, but received many more cuffs and hard words than we, who have only seen them in pictures, can well associate with the idea of brigandesses.
Being poor ignorant peasants originally, and being afterwards poor ignorant robbers, the brigands inflicted little unnecessary suffering upon their prisoner. Occasionally, to be sure, they struck him; but this was in hot blood, and he was allowed to strike back and restore the balance of justice. These wretched creatures, imbruted and stained with innumerable murders, seem to have had very little idea of the usages of civilized people in regard to captives; and any one who will compare the story of Mr. Moens with the narratives of the prisoners given in Mr. Abbott's book, will see how absurdly the bandits neglected their advantages. After all, it is your high-toned Southern gentleman, compact of the best blood of the Cavaliers and the Huguenots, and presenting in this unhappy hemisphere the finest reflection of the English nobleman's character, who understands best how to use a prisoner. There is nothing like having in your power from childhood a number of helpless human beings, to teach you how to treat a captured enemy; and we cannot help thinking that Mrs. Moens, who will not spare the American Unionists a sneer in the first chapter of her diary, would have understood us better if her husband had been in the hands of Captain Wirz instead of Captain Manzo. Had Mr. Moens been a soldier of the Union, taken while fighting to defend his country against rebellion, he would have been carried into the midst of a people inured to the practice of cruelty by slavery, and all the more abominable because they believed themselves Christian and civilized. There he would have been thrust into a roofless close, already densely thronged with thousands of famished, sick, and maddened men. He would have had no shelter from the blazing sun or drenching storm, except such as the happier wild creatures make themselves in holes and burrows. Guards, emulous in murder, would have been set over him, with instructions to shoot him, if he reached, in the delirium of famine, across a certain line to clutch a bone, or stooped to moisten his lips in a pool less filthy than those at which his comrades quenched their thirst within the bounds. In the mountains of Naples, the brigands gave him to eat and drink of their scanty fare, and shared with him the last crust and the last drop. In Georgia, in the midst of plenty, his keepers would have slowly starved him to death, and would have driven away, with threats and curses, any that offered to succor his distress. If he escaped, they would have hunted him with bloodhounds, and so brought him back; and if he sickened under his torture, they would have left him, naked and unsheltered, to languish with wasting disease and devouring vermin,—to die, or to rot and drop away piecemeal while yet alive.
Other writers on brigandage, besides Mr. Moens, relate anomalous facts concerning it, which can, perhaps, be matched only in this country, where alone the cruelty and impunity of Italian brigandage can be matched. It is well known that for a long time the heirs of Fra Diavolo received from the government a pension bestowed in recognition of that distinguished chief's services to humanity. The retired chief, Talarico, is now in the undisturbed enjoyment of the gains of brigandage upon his place near Naples; and Count Saint-Jorioz, in his interesting work, Il Brigantaggio alla Frontiera, Pontificia, declares that in some cases the employés of the Italian government in the Neapolitan provinces are men known to have been in other times manutengoli, or accomplices of brigands; nay, that sometimes the very courts of law have favored, instigated, and connived at brigandage. Similarly, in our own country, we find men guilty of the cruelties of Andersonville and Columbia, and stained with treason, in the enjoyment of offices and honors throughout the South, while the servants of the law lend themselves to violence and murder with a boldness unheard of in Naples, where there is some show of decency in these things. At least, we have not read of the sindaco and policemen of any town of the Abruzzi who have openly applauded and joined the brigands in hunting and slaughtering peaceable inhabitants, as happened lately in New Orleans and Memphis; and we feel quite sure that, if they had committed such an offence, it would not have been passed over in silence by the head of the Italian people. But, then, with all their errors, the Italians have not yet intrusted great power to the hands of a peasant of the class which produces brigands; whereas we have taken for our chief magistrate a man in whom everything generous and noble seems to have been extinguished by the hard conditions of a poor white's life at the South.