ANECDOTE OF JOHN H. PEYTON IN A CRIMINAL CASE.
Shortly after his eldest son, William, entered upon the practice of law in 1823, when attending court at the Warm Springs, Bath Co., he mortified his father, John Howe Peyton, exceedingly by a piece of off-hand levity, which the latter regarded as a most undignified proceeding, unworthy of the profession. Young Wm. Peyton was employed to defend a man charged with horse stealing, and as there was only circumstantial evidence to prove his guilt, W. M. Peyton, who was much exhilarated, for it must be remembered that the case came on after dinner, set up the defence that according to the principles of science, and of a new science likely to prove both useful and ornamental, it was impossible his client could be guilty. He then referred to and explained the theories of Gall and Spurzheim, and declared that according to the phrenological bumps on the head of his client, theft was a crime he was incapable of committing. He argued with much gravity and ingenuity in this direction, amidst the suppressed giggling of the bar, to the great chagrin of his father, who was the public prosecutor, and to the thorough mystification of the county court. This body was composed of country gentlemen unacquainted with law, and it was one of their boasts that they made up their decisions, not so much in accordance with the principles of common law, as of common sense. W. M. Peyton went on, and drawing from his desk a copy of Combe's phrenology, illustrated it with plates, exhibited it to the jury, and declared that at the point on the pericranium of his client, where there should be a protuberance if he were capable of robbery, there was not the slightest development, and asked, what is the value of science, if we discard its teachings? He then made an animated and eloquent appeal to the feelings of the jury, based upon the humane principle of the common law, that it is better that ninety-nine guilty men should escape than that one innocent person should suffer, and declaring his conviction of the prisoner's innocence, asked them to give him the benefit of every doubt and lean to the side of mercy.
His father, in reply, commented severely upon the airiness of his son, as inconsistent with the administration of justice and the dignity of the profession. He ridiculed Gall and Spurzheim's far-fetched theories, which he declared were not scientific deductions, but only speculative opinions, and brought the whole defence into contempt, by referring to the human skeleton, saying, "If you run your eye down the spine it alights upon the oscoccygis." Neither the court nor the jury understanding what these words meant, but overcome by the ludicrous manner of Mr. Peyton, both burst into a hearty laugh. "Now," he continued, "this oscoccygis is nothing more nor less than a rudimentary tail, as Lord Monbeddo has well said, and I suppose we shall have some modern philosopher startling the world again with the proposition that man once flourished a tail, but of which the civilized use of a chair has, in process of time, deprived him." He continued, somewhat in this style, "I say nothing against philosophers nor tails, both are useful in their way. What would a cow do without her tail, especially on our fly-pestered prairies, or the Pampas of South America? What would a monkey do without this caudal appendage and its prehensile quality? With him it takes the place of hands. And shall we have philosophers telling us we received our hands when we lost our tails, and that the monkey lost the use of his hands because of his peculiar facility of using a tail? A beautiful science," said he, "is the phrenology, according to the theory of the learned counsel for the prisoner. To all standing in the unenviable position of his client, it will prove, if the learned gentleman be correct, not only a thing of beauty, but a source of comfort and a joy forever. To the murderer, the burglar, the highwayman, to all in fact, who wish to be rid of the responsibility which attaches to their actions, it will become a positive blessing. Not to these only, but to the entire community—it opens a brilliant prospect of life, of life as it should be in this enlightened age, at this advanced period in the progress of the world. Upon the ruins of our present immature civilization it will uprear a charming state of society. Under the vivifying influence of this new system, mankind will be happy, perfectly happy; and until the auspicious day when the new order commences, this 'consummation so devoutly to be wished,' need not be anticipated. Throughout the world, at least so much of it as is illuminated by the light of phrenology, perfect liberty will obtain, and the present generation will wonder at the darkness in which their ancestors groped. Justice will reign supreme, and our statute books will be no longer disgraced by those dreadful laws founded in ignorance, superstition and cruelty, which consigns a helpless and irresponsible man, criminal you call him, to the merciless hands of the executioner. It will be clear as the noon-day sun, that law and liberty cannot co-exist, that they are natural enemies. Along with this knowledge will come a resolution to demolish the whole system of our jurisprudence, to cart off the rubbish and substitute in the place thereof a new, nobler, and higher civilization. Poor weak man will no longer be held accountable for his actions. The infirmities of his nature will become a recognized principle, that men are but men, will be evident to all men. It will be understood that from the foundation of the world it was determined, pre-destined, and fore-ordained that he should act thus and thus, and that, therefore, he cannot be justly rewarded for any action however meritorious, nor punished for any crime, as we term it, how atrocious soever. Men will stand aghast that laws should have existed, and for so many ages, for afflicting a human being for actions, over which it is clear, according to the prisoner's counsel, he had no control—actions, in fact, which they were bound to perform, by an irresistible law of human nature. Then will it be seen that men commit murder, perpetrate rape, and apply the torch because they cannot help it. Gentlemen of the jury; no line of argument would be shorter. I leave you to determine its soundness."
"But to be serious," said Mr. Peyton, who though cheerful in his disposition, had a manner so tempered with gravity as to check the indecent levity, "I must refer, before closing, to the conduct of the prisoner's counsel, and remark that some speakers are more anxious to display their eloquence, than to promote the public good. Now when this is the case, as I must charitably suppose it to be on this occasion, oratory is a useless gift, and such fine speeches as we have had to-day are simply disgusting. When great talents are employed to support a bad cause, perhaps from selfish motives, I trust and believe that this is not the case now, they are objects of universal contempt. Oratory, with all its pleasing charms becomes an instrument of mischief, when used by an unprincipled man as, when resorted to by a good man, its happy influences almost exceed belief. An orator, who thus uses his talents, without reference to his personal interests, if he do not succeed in his efforts, at least enjoys self approbation and that of his God."
In this manner Mr. Peyton threw the defence into ridicule and disrepute. This sound sense and keen sarcasm was too much for Wm. Peyton's after dinner eloquence, and from a brief consultation, the jury returned and delivered a verdict condemning the prisoner to the penitentiary for two years.
The Hon. David Fultz, of Staunton, recently judge of the circuit superior court of Augusta county, who was present on this occasion, told the writer twenty years ago that he had never, during his career at the bar, been so much interested or amused by any trial as this. The disgust of my father at such a defence being set up, the elation of his son at the probable success of his ruse, the bewilderment of the court and jury, both of whom seemed lost in a fog, the suppressed merriment of the audience, which did not comprehend exactly all that was transpiring, but which to some extent entered into the fun, rendered the whole scene inimitable.
mr. peyton's views as to a fiddling lawyer.
"Music," said Mr. P., "is out of place in a court house, I never knew a fiddling lawyer to succeed, especially if nature designed him to play that useful, yet much despised instrument, the 'second fiddle,'—a good enough instrument for a duet, but one on which no successful solo was ever played."
mr. peyton on religious and political topics.
In 1840, Mr. P. and his brother-in-law, Colonel Wm. L. Lewis, met at the home of a mutual friend. In religion Col. L. was a Roman Catholic and in politics a disciple of John C. Calhoun. Discussion arose between them and became so warm on the part of Col. Lewis, that their friends feared they might result in a feud. Not so, however. Mr. P.'s moderation was equal to his vigor, and he soothed his brother's discomfitures by his logical reasoning.