CHAPTER XVII.
"If it please your honor, I am the poor duke's constable, and my name is Elbow. I do lean upon justice, sir, and do bring in here before your good honor two notorious benefactors."
MEASURE FOR MEASURE.
The efforts of the Solitary's friends to ward off the blow wereunavailing, and the perseverance of the constable was crowned withsuccess. Of course it was impossible for Holden to walk throughthe streets of Hillsdale with such a companion without attractingobservation. Long before he reached the office, where he was to havehis trial, a crowd of idle boys was gathered at his heels, attendingin a sort of triumphal procession, and wondering what was to be donewith the prisoner. Basset had need of all his natural dignity, andmore than he could assume besides, to keep the little mob intolerable order. It is true the conduct of Holden, who, to thegreat astonishment of the constable, followed him like a lamb to theslaughter, made the task less difficult.
The place to which he was taken was no other than the office ofKetchum, it not being usual for justices to have offices of their own,the amount of business not warranting such an expense. On occasionslike the present it was customary for the lawyer who took charge ofthe case to supply the court-room, and this, of course, was hisown office, as the most convenient place where law books and othernecessary instruments were at hand. Here, then, Holden was left by theconstable with Ketchum, the officer of the law meanwhile proceedingto hunt up Squire Miller. During his absence, Ketchum addressed someremarks to the prisoner, and endeavored to engage him in conversation,but without success, Holden receiving his advances with coldness,and evidently averse to establish the relation of even speakingacquaintanceship. Ketchum finding all efforts vain, at last desisted,and Holden sat in silence, brooding over his own thoughts.
Upon Basset's return, he was accompanied not only by the justice, butalso by Pownal, who had accidentally heard of the arrest, and by twoor three other persons attracted by curiosity. Pownal immediatelywalked up to his friend, and, grasping his hand, expressed hisinterest, and tendered his services.
"I know not," said Holden, in reply to his expressions of sympathy,"why I am to be made a gazing-stock for curious eyes; but the Lord'swill be done."
Pownal requested to see the warrant, and for the first time learnedthe nature of the accusation; he then sent a messenger after Mr.Tippit, and that gentleman, in compliance with the summons, soon madehis appearance. Him Pownal engaged to defend the prisoner. By thistime the little office was filled with an inquisitive crowd, eager tohear the eloquence of the counsel, and to watch the vibrations of thescales of justice, among whom Judge Bernard might be seen seatedby the side of the prisoner. Any person entered and departed as hepleased, the room being, for the time of the trial, converted into apublic place; and while preparations were being made preliminary tothe opening of the court, the spectators amused themselves with makingobservations to each other.
"What have they took Holden up for?" said a man to Mr. Davenport, who,of course, was present.
"I hear it is for profane speaking and reviling," answered Davenport.
"If everybody was to have his desarts," said our friend, Tom Gladding,squirting a stream of tobacco juice over the floor, "I guess, someothers would be worse off," and he looked sharply at Davenport.
"It is time such things should be punished," said Davenport. "Peoplebegin to act as if there was no law in the country."
"Don't you be quite so hard on a fellow," said Tom. "I recollectthe time before you were convarted, squire, when you swore like atrooper."
The face of Davenport faded into a dusky grey with anger, and helooked as if he would have liked to annihilate the audacious Tom, but,by a violent effort, controlling his passion, he said:
"I trust the Lord has forgiven me the sin."
"I hope he has," said Tom, "and seems to me it would be a good thingfor Squire Miller to follow his example."
"Suppose you tell him so," said Davenport, sarcastically.
"Well, seeing as how you're so pressing," said Gladding "I don't careif I do. Squire," he cried, addressing the Justice, and drawing theattention of all to himself, "here's Squire Davenport says, he expectsthe Lord's forgive his cussing and swearing, and thinks you'd betterdo as well by Father Holden, and let him run."
A general shout of laughter greeted this speech of Gladding's, andthere were exclamations of "Well said, Tom," and "He had him, there,"and "Who would have thought that of Davenport?"
The unfortunate victim glared, with fury in his eyes, at Tom, who,interpreting his looks to suit himself, cried--
"He's coming, Squire, to speak for himself."
Davenport here protested, he had said no such thing, and that it was ashame he should be abused by a scurrilous fellow, in such a manner.
"What's that you say?" said Gladding, stepping up to Davenport; "I'mno more squirrilous, than you are yourself; though, for that matter,there ain't a squirrel on a walnut tree, but would be ashamed to beseen in your company,--squirrilous fellow, eh!"
"Silence!" cried the Justice. "Mister Gladding, I must say, I thinksuch language very improper; and I hope, if you expect to remain here,you will stop it."
"Squire," said Gladding, "he begun it; I'll leave it to the company,if he didn't first call me a squirrel."
"Silence!" reiterated the Justice; "we must have order; and, if youdon't choose to observe order, you must leave the room."
"You hain't opened court yet," persisted the pertinacious Tom. "Iguess we know our rights."
Here Basset came up to Tom, and, taking him by the arm, whispered afew words into his ear. They seemed to be of a sedative character,for the latter, contenting himself with an occasional glance ofmischievous fun at his late opponent, abstained from further remark.
By this time, the subpoena for the witnesses had been returned, andthe persons summoned made their appearance. The overt act was sonotorious, that it had not been considered necessary to summon many,and the few needed were soon hunted up. Hereupon, Mr. Ketchum havingintimated a readiness, on the part of the State, to proceed, Mr.Tippit, after some conversation with Judge Bernard and Pownal, Holdenrefusing to hold any intercourse with him also, entered the plea of"not guilty," for his client.
The hour of noon had now arrived, and that being the dinner-time ofmost present, Justice Miller yielded to the request of Mr. Tippet, andthe pleadings of his own stomach, to adjourn the sitting of the courttill two o'clock in the afternoon, in order, not only to gratifythe demands of appetite, but, also, that the counsel might have anopportunity to confer with his client and prepare his defence. Ketchumremonstrated against the delay as unreasonable, but the Justice,who felt no disposition to hurry himself, and was, at bottom, not anunamiable man, told him, there would be time enough to finish the casein the afternoon, provided he and Mr. Tippit did not talk too long.Meanwhile, upon the promise of Judge Bernard to be responsible forthe safety of the prisoner, Holden was allowed to depart with him,and Pownal, who had been invited to dinner with the Judge, accompaniedthem to his house.
Here they found Faith, in a state of high excitement. "I,"--she said,seizing the old man's hands, while the tears streamed down her cheeks;"I am to blame for this persecution. O, Father Holden, if I had notbegged, and almost forced you to go with us that evening, this wouldnot have happened."
"Dear child!" said Holden, "afflict not thyself. Thou and I are butas flying dust on the eternal wheels of destiny. Fear not, nor letthy heart be troubled. Even yet, the Lord will make bare his arm and Ishall escape, even as a bird from the snare of the fowler."
But Faith partook not of the enthusiast's confidence. To her alarmedimagination, the deliverance of Holden seemed as improbable as thatof Daniel from the den of lions, and the impending doom almostas dreadful as that destined for the prophet. She knew what theconsequences would be were Holden found guilty; for, soon after thereading of the warrant by Pownal, its contents had been communicatedto her, and she had been informed respecting the punishment. Toher delic
ate and sensitive mind, the charge itself--that of profanespeaking and reviling, was inexpressibly revolting. She knew that thecondition of mind such language implies, was entirely wanting, andthat it was in the performance of what he considered a duty, the oldman had spoken. Father Holden capable of profane speaking! He, whoseheart was the seat of all noble emotions; he, who had renounced theworld, and trampled its temptations and vanities under foot; he,who living in the world, was not of the world! That such an one, soharmless, so guileless, so innocent, should be paraded through thestreets like a wild beast which it was unsafe to have at large, thathe should be exposed to the prying looks of coarse and unfeeling men,and compelled to hear their vile ribaldry, and, finally, compelledto an ignominious punishment, among the vicious, in a workhouse!The disgrace was more than she could bear. It seemed her heart wouldbreak. Overcome by her emotions, she left the room, followed by Anne,who partook of her grief and indignation.
All participated in the feelings of the young ladies, and, as mightbe supposed, the young men most. To Pownal, a wish of Anne's was acommand; nor was there a danger, scarcely, he would have refused toencounter to gratify her. He had never, indeed, breathed a word oflove, but he had flattered himself of late that she understood hisfeelings, and that the knowledge gave her no displeasure; and, inspite of the disparity in their conditions, hope nestled at thebottom of his heart. Besides, Faith was with him a favorite, and itdistressed him to witness her excitement.
Nor could William Bernard behold unmoved the tears of Faith, or theagitation of his sister. Never, indeed, before had the divine eyes ofFaith Armstrong so affected him as now, when suffused with tears; norhad her beauty ever shone so resplendent. Upon the withdrawal of thegirls, he put his arm into that of Pownal, and drawing him into arecess, the young men took counsel together respecting what should bedone.
At the appointed hour, all parties were again present in the littleoffice of the lawyer, and the examination commenced. It is unnecessaryto recapitulate in full the testimony. In spite of the ingenuityof Mr. Tippit, who closely cross-examined the witnesses for theprosecution, and thereby only made them rather strengthen than weakenthe force of their testimony, the facts were fully proved. Indeed, thewhole occurrence was too recent and public to make the proof a taskof any difficulty. The only differences in the statements of thewitnesses were, that some thought Holden was standing at the side ofthe reading-desk, when he addressed Davenport, while others were assure he was in front, a circumstance considered by Ketchum andthe Court as of no consequence, while Tippit regarded it as of thegreatest importance, as a test of the accuracy of the memory, if notof the veracity of the witnesses; and, again, what came out in thepersevering cross-examination by Tippit, viz.: that in the opinion ofsome witnesses, Holden, instead of saying "soul-damning and abominablelies," said "damned, abominable lies". The eyes of Ketchum fairlydanced when the efforts of his opponent succeeded in eliciting fromthe badgered and provoked witness this most _mal-a-propos_ testimonywhich his own ingenuity had been unable to draw forth, and he tookcare, in the rest of the examination, to get the same statement ifpossible from the remainder of the witnesses. In this he was partiallysuccessful, each one intending most sincerely to tell the truth,and yet artfully led on by the lawyer, often falsely coloring anddistorting the facts. On the conclusion of the testimony on the partof the State, Mr. Tippit produced witnesses to prove the words spoken,who, after all, did not alter the complexion of things, and also thegood character of the prisoner, but this latter proposal was stoutlyopposed by Ketchum, as irrelevant to the issue.
"What have we to do," said he, "with the character of the prisoner?His character is not at issue. That may be as good as the Court's,for instance (and I desire no higher), and yet the offence chargedmay have been committed. If brother Tippit is allowed to run into allthese side issues, we shall never be done with the examination, andtherefore I object to the testimony."
Tippit, in reply, expressed great surprise at the conduct of hisbrother, Ketchum; "but," said he, "I do not wonder at the anxietyof the gentleman to keep out testimony of so vast importance for myclient. Here is a discrepancy. Some witnesses state the languagesaid to have been used by my client in one way, some in another. Now,although a man of good character might use the words 'soul damning andabominable,' which we are constantly hearing in sermons and prayers,and if they are proper there, one might suppose them proper in commondiscourse, he would be less likely to use the other phrase; though, ifhe did, I hope I shall be able to convince the court there's no greatharm in that."
Here Ketchum's face expressed unutterable astonishment, and theJustice, as if scandalized at the proposition, interrupted thecounsel, and told him he hoped he did not mean to justify profanelanguage.
"Far from it, please your honor," answered Tippit, "but I say we havebeen guilty of no profanity which, at the proper time, I expect tosatisfy the court of. We offer the testimony now for two purposes:first, to assist the judgment of the court in coming to a conclusion,whether the words were spoken or not, because if we prove theprisoner's good character, it is less likely they were uttered by him;and secondly, if your honor should be of opinion that the words wereused, in mitigation of punishment, if, indeed, the court should bedisposed to take notice at all of the trifle of which the prisonerstands accused."
Ketchum reiterated his objections, denying that the testimony wasadmissible for either purpose. He did not think, he said, that hisbrother Tippit was able to assist the judgment of the court a greatdeal; as for judgment, the article was so scarce with a certaingentleman, he advised him to keep the modicum he had for his ownuse. So far as mitigation of punishment was concerned, he thought thegreater the respectability of the offender, the greater should be thepunishment, both because his education and opportunities should havetaught him better, and by way of example to others, in like case tooffend. The doctrine of the gentleman, he added, might do well enoughwhere kings and aristocrats ground the people to powder, but he hopednever to see the day, when, in our own free country, a man might dowhat he pleased because he was respectable.
This sentiment, notwithstanding the feelings of almost all presentwere in favor of Holden, was so decidedly patriotic, that it metthe most favorable reception, and there was a general whispering andrustling among the audience. After the sensation had subsided, JusticeMiller, with some hesitation, decided to receive the testimony for thepresent. "It is different," he said, "from allowing evidence to go toa jury. I am both court and jury, and will think it over, and rejectit, if I think it should be." With this decision the counsel wereobliged to acquiesce, and Tippit proceeded with his testimony.
It was easier to prove the good character of Holden than the exactoccurrence at the meeting. Judge Bernard, Mr. Armstrong, who came intothe court in the afternoon, Pownal, and many others, testified to hisirreproachable reputation, and were certain that his conduct proceededfrom no evil intent.
After the testimony had all been taken, followed the speeches of thecounsel. Ketchum, who, as prosecutor, was entitled to the opening andclosing arguments, rose and stated that, as the days were short, andit was growing late, he would waive his right of opening, and reservewhat he had to say to the time when his brother Tippit had concluded.To this arrangement Tippit strenuously objected, insisting that theState had made out so poor a case, that he hardly knew what to replyto, and that in all fairness the counsel for the State ought toenlighten him. The court, however, decided, that although it wasa strange thing for a lawyer to desire to be excused from making aspeech, yet it was a course he felt much obliged to Mr. Ketchumfor adopting, and hoped that he would not revenge himself for theabstinence by putting two speeches into one, at the conclusion.
Smiles and applauding whispers among the audience rewarded the Justicefor this brilliant display of wit.
Hereupon Mr. Tippit rose and addressed the court. He begun by hintingat the embarrassment he felt in not having the advantage, to use hisown language, of what his brother Ketchum intended to say. For his ownpart, h
e had carefully considered the law and evidence, and could notfind the shadow of a pretext for detaining the prisoner. He then wenton to speak of the prisoner himself, his age, his harmless life, andthe excellent character he sustained. All this, he argued, went toshow the improbability of his having uttered the language consideredmost objectionable. He contended that although he would mostcheerfully admit that the prisoner had said something in theconference-room, it was impossible to determine accurately whatthat something was; that if in this state of things the court not besatisfied what the words were exactly, it was as if no words at allhad been uttered, and there were none to be passed upon. But what werethe words? Here the learned counsel minutely examined the evidence,and arrived at the conclusion, that it was impossible to ascertainthem. Hence, he said, the _corpus delicti_ is wanting. But supposethe words were as testified by some, though they are contradicted byothers, "damned abominable," what then? Was that reviling orprofane speaking? The words were two. Now, no one would pretend that"abominable" was profane language. "The idea is abominable," saidTippit, "and I hope brother Ketchum won't take me up for saying that.What does the other word mean?" Hereupon the counsel referred to adictionary, to which also we refer our readers. "There you see," saidhe, "there is no harm in it. At most, the word can in its presentapplication, be considered only as an intensitive, or the like.The fact is, may it please the court, it is but a strong form ofexpression, and means no more nor less than _very_, and I should bewilling to leave it to the good sense of those who hear me, as to ajury, to say if my construction is not correct."
Here Tom Gladding nodded his head at Tippit.
"Mr. Gladding," continued Tippit, "nods his head, and I honor hisjudgment, and venture to say there is not a man here better qualifiedto speak on the subject."
Here there was a general laugh at Tom's expense, in which the courtitself joined. Tom, appearing to regard the joke very little, andonly saying, "The squire's got it right by chance this time, I guess."Presently, the court commanded silence, and Mr. Tippit proceeded.
"I flatter myself," he added, "that I have satisfied your honor thereis no profane language in the case; and that ought to be sufficientfor my purpose, even though the court should be of opinion that theprisoner was guilty of reviling; because the words of the statute arein the conjunctive, providing punishment only where profane speakingand reviling are united, being levelled, not at one alone, but atboth as one act. It should also be borne in mind, that the statute ispenal, and for that reason must be construed, strictly, in favor ofliberty. But I will now proceed to inquire whether there has been anyreviling in the sense of the statute. Who was intended to be protectedagainst injurious language? Reasonable beings only, certainly.Assuredly not the delicate feelings of horses, or cows, or pigs, andif so, much less those of an inanimate object, like a book. Now,it will be recollected that the language uttered characterized thecontents of a book, not Mr. Davenport. The words were consistent withthe supposition that the prisoner cherished the highest respect forhim, whatever his opinion might be of the sermon. It was then absurdto pursue a man criminally for criticising a book, and requestinganother not to read it, which was all that had been done."
Here Ketchum inquired how his brother Tippit would get over the words,"man of sin," which it was testified had been applied by the prisonerto Davenport.
Mr. Tippit treated the inquiry with great contempt. "Does thegentleman," he asked, in turn, "claim for Mr. Davenport a superhumandegree of piety? Would he have us understand that Mr. Davenport isnot a sinful man, and is the expression made use of by Mr. Holden morethan tantamount to that? I do not think the words worthy of notice,"he said, "nor am I disposed to waste time on them." Mr. Tippitconcluded by saying, that if a man, in the honest expression of hisopinions about a book, was to be dealt with criminally, free speech,free action, the noble inheritance of our ancestors, were gone, andthe liberties of the country no more. Collecting himself for a lasteffort, he represented the Goddess of Liberty, like Niobe, alltears, weeping over the fate of her children, should the iniquity,contemplated by Ketchum, be consummated.
The impression made by the lawyer's speech was favorable, as wasevident from the looks of the audience, and the approving hum thatfilled the room, and prepossessed as they were in favor of Holden,they would undoubtedly have acquitted him, but, alas! they werenot the tribunal to decide his fate. We have already dilated on theproceedings of the little court of _pied poudre_, beyond our originalintention, and for that reason shall endeavor, without designing,"with malice prepense," to slight the eloquence of Ketchum, tocompress his remarks into as small a compass as possible. He has sincerisen to the dignity of a County Court Judge, and, therefore, needs nocelebrity, which a work so unpretending as the present, can confer.
Mr. Ketchum then began by saying, that to be sure his experience incourts was not very great, but he had some, and, so far as it went, henever knew a case plainer than the one on trial. The gentleman (bowingto Tippit), with all his ingenuity, and he was not going to deny himhis due, which was greater than his knowledge of the law, had beenunable to affect his own mind, or, as he believed, the mind of hishonor, or of any one present. He felt, therefore, that the task beforehim, though an unpleasant one, was lightened by the inability of hisbrother Tippit to make out even a plausible defence. Peeling this,he should, if he consulted only his own inclinations, be disposed toleave the case where it was, without comment, but he supposed it wasexpected he should say something, and in the discharge of his duty,he would comply with the expectation. As for the character of theprisoner, he had nothing to say about it. He would neither admit thatit was good, nor claim that it was bad; whatever it might be, it hadnothing to do with the case. The question was, what was done at themeeting? All the witnesses agreed that the prisoner interrupted theproceedings. True, they disagreed in respect to the exact words, buttake the testimony of any, and sufficient was made out to support theprosecution. Here he dwelt upon a criticism of the words, coming toconclusions precisely the opposite of Tippit's, and contending theywere both profane and reviling. "It was preposterous," he claimed, "tosay that Holden meant merely to criticise the book. The language wasnot addressed to the book, but to Davenport: the book was not called,'man of sin,' but Davenport. The words, 'man of sin' had a peculiarmeaning. They were designed in the Scriptures to express condemnation,and horror, and wickedness. They were not synonymous with 'sinfulman,' though even these words might be considered words of reviling,had they been used in the same circumstances. The contempt affectedby his brother Tippit was so much powder and shot thrown away. Nobodybelieved he really felt it. It was like the grimaces of a culprit,trying to hide his apprehensions by forced smiles." He concluded byapologizing for not being a poet, like his brother Tippit, nor asfamiliar with goddesses. He knew that his friend was a gallant youngman, and fond of the ladies, and he would confess to the weaknesshimself, but as for goddesses, they were a touch above him, &c.
The court had listened with patience to both testimony and speech, andwas now to pass sentence, acting up to the advice of a shrewd Englishlawyer, to one who without much legal learning had been appointed toa judgeship in a colony, never to give his reasons when he pronouncedjudgment, for although the judgment had an equal chance to be right orwrong, the reasons were almost certain to be incorrect, Justice Millercontented himself with finding the prisoner guilty, and sentenced himto a week's confinement in the town workhouse.
It was not without some surprise that the friends of Holden heard thedecision. Although contemplating its possibility, they had indulged ahope that the Justice would be unwilling to subject one so harmless,and whom they considered innocent of all intention to violate the law,to any punishment; but with that reverence for law which characterizesNew England, and without which there can be no security for freeinstitutions, they submitted, although not without some murmurs. Itwas in vain, they knew, to ask for any mitigation; Justice Millerhaving once pronounced sentence, being as inexorable as the SupremeCourt. The room was soo
n nearly emptied of the spectators, noneremaining except the particular friends of the prisoner. Nothingremained but to carry the sentence into execution. Holden's friendsalso at last took a sorrowful leave, and the mittimus being madeout, it was handed to Basset, to remove the prisoner to the place ofdestination.
For the sake of greater security, Basset now produced a pair ofhandcuffs, which he put on the condemned man's hands, who offered noobjection, but calmly submitted to his fate.
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