The Strange Schemes of Randolph Mason

by Melville Davisson Post

III.

The court-room of Judge Walter P. Wright was filled with an interested audience of the greater and unpunished criminals of New York. The application of Barker for a habeas corpus, on the ground that he had committed no crime, had attracted wide attention. It was known that the facts were not disputed, and the proceeding was a matter of wonder.

Some days before, the case had been submitted to the learned judge. The attorneys for the People had not been anxious enough to be interested, and looked upon the application as a farce. The young man who appeared for Barker announced that he represented one Randolph Mason, a counsellor, and was present only for the purpose of asking that Barker be discharged, and for the further purpose of filing the brief of Mason in support of the application. He made no argument whatever, and had simply handed up the brief, which the attorneys for the People had not thought it worth their while to examine.

Barker sat in the dock, grim and confident. The attorneys for the commonwealth were listless. The audience was silent and attentive. It was a vital matter to them. If Barker had committed no crime, what a rich, untramped field was open. The Judge laid his hand upon the books piled up beside him and looked down at the bar.

"This proceeding," he began, "is upon the application of one Lemuel Barker for a writ of habeas corpus, asking that he be discharged from custody, upon the ground that he has committed no crime punishable at common law or under the statutes of New York. An agreed state of facts has been submitted, upon which he stands charged by the commonwealth with having obtained five thousand dollars from one Cornelius Rockham by false pretences. The facts are, briefly, that on the 17th day of December Barker called at the residence of Rockham and said that he desired to make a proposition looking to the recovery of the lost child of said Rockham, but he desired to make it in the presence of witnesses, and would return at ten o'clock that night. Pursuant to his appointment, Barker again presented himself at the residence of said Rockham, and, in the presence of witnesses, declared, in substance, that at that time (then ten o'clock) he knew nothing of the said child, could not produce it, and could give no information in regard to it, but that at eleven o'clock he would know where the child was and would produce it; and that, if the said Rockham would then and there pay him five thousand dollars, he would at eleven o'clock take them to the lost child. The money was paid and the transaction completed.

"At eleven o'clock, Barker took the men to a certain corner in the upper part of this city, and it there developed that the entire matter was a scheme on his part for the purpose of obtaining the said sum of money, which he had in some manner disposed of; and that he in fact knew nothing of the child and never intended to produce it.

"The attorneys for the People considered it idle to discuss what they believed to be such a plain case of obtaining money under false pretences; and I confess that upon first hearing I was inclined to believe the proceeding a useless imposition upon the judiciary. I have had occasion to change my opinion."

The attorneys present looked at each other with wonder and drew their chairs closer to the table. The audience moved anxiously.

"The prisoner," continued the Judge, "has filed in his behalf the remarkable brief of one Randolph Mason, a counsellor. This I have read, first, with curiosity, then interest, then wonder, and, finally, conviction. In it the crime sought to be charged is traced from the days of the West Saxon Wights up to the present, beginning with the most ancient cases and ending with the later decisions of our own Court of Appeals. I have gone over these cases with great care, and find that the vital element of this crime is, and has ever been, the false and fraudulent representation or statement as to an existing or past fact. Hence, no representation, however false, in regard to a future transaction can be a crime. Nor can a false statement, promissory in its nature, be the subject of a criminal charge.

"To constitute this crime there must always be a false representation or statement as to a fact, and that fact must be a past or an existing fact. These are plain statements of ancient and well settled law, and laid here in this brief, almost in the exact language of our courts.