LAW AND LAWYERS IN LITERATURE.*

XI.

CURIOUS IMAGINARY TRIALS.

"The Arraigning and Indicting of Sir John Barleycorn, Knt., printed for Timothy Tosspot," is a whimsical little tract, in which the knight is put upon his trial at the sign of the Three Loggerheads, before "Oliver, and Old Nick, his holy father," as judges. The witnesses for the prosecution were cited under the hands and seals of the said judges, sitting "at the sign of the Three Merry Companions in Bedlam; that is to say, Poor Robin, Merry Tom, and Jack Lackwit." The prisoner pleaded not guilty, and Lawyer Noisy thus opened the cause: "May it please your lordship and gentlemen of the jury, I am counsel for the king against the prisoner at the bar, who stands indicted of many heinous and wicked crimes, in that the said prisoner, with malice prepense and several wicked ways, has conspired and brought about the death of several of his majesty's loving subjects, to the great loss of several poor families, who by this means have been brought to ruin and beggary, which, before the wicked designs and contrivances of the prisoner, lived in a flourishing and reputable way, but now are reduced to low circumstances and great misery, to the great loss of their own families and the nation in general. We shall call our evidence, and if we make the facts appear, I do not doubt but you will find him guilty, and your lordship will award such punishment as the nature of his crimes deserves." Vulcan, the Blacksmith, then testified that the prisoner had quarreled with him, thrown him down, picked his purse, and set his wife a-scolding. Will, the Weaver, that the prisoner had bound him hand and foot, thrown him in a ditch, and dislocated his shoulder. Stitch, the Tailor, to the same effect. Wheatley, the Baker, that the prisoner had spoiled his business. The prisoner, being called on for his defense, urged that he was a friend to his accusers until they abused him, and that if any one was to blame, it was his brother Malt, who, being called, urged the same arguments. Thomas, the Ploughman, Bunch, the Brewer, and Mistress Hostess, gave the prisoner an excellent character, insisting that he was indispensable to them, and that "if you put him to death, all England is undone, for there is not another in the land can do as he can do, and hath done; for he can make a cripple go, a coward fight, and a soldier neither feel hunger nor cold." The court then charge the jury: "You have now heard what has been offered against Sir John Barleycorn, and the evidence that has been produced in his defense. If you are of opinion that he is guilty of those wicked crimes laid to his charge, and has with malice prepense conspired and brought about the death of several of his majesty's loving subjects, you are then to find him guilty; but if, on the contrary, you are of opinion that he had no real intention of wickedness, and was not the immediate, but only the accidental, cause of these evils laid to his charge," - that is, I suppose, if the complainant's negligence contributed to produce the injury "then, according to the statute law of this kingdom, you ought to acquit him." Verdict: not guilty. It is to

Entered, according to Act of Congress, in the office of the Clerk of the District Court of the United States for the Northern District of New York, in the year 1870, by IRVING BROWNE.

be noted that the prisoner, according to the common law usage, had no counsel; and it may well be, that if all prisoners were as influential with courts and juries as Sir John, their rights would be safe without counsel in these days.

Another curious trial is that of Flora, in "Funebria Floræ, the Downfall of May-games," a tract published in 1661 by Thomas Hall. The arraignment is as follows: "Flora, hold up thy hand. Thou art here indicted by the name of Flora, of the city of Rome, in the county of Babylon, for that thou, contrary to the peace of our sovereign lord, his crown and dignity, hast brought in a pack of practical fanatics, viz.: ignorants, atheists, papists, drunkards, swearers, swash bucklers, maid marians, morrice dancers, maskers, mummers, May-pole stealers, health-drinkers, together with a rascallion rout of fiddlers, fools, fighters, gamesters, lewd women, light women, contemners of magistracy, affronters of ministry, rebellious to masters, disobedient to parents, misspenders of time, and abusers of the creature," &c. "Judge: What sayest thou, guilty or not guilty? Prisoner: Not guilty, my lord. Judge: By whom wilt thou be tried? Prisoner: By the pope's holiness, my lord. Judge: He is thy patron and protector, and so unfit to be a judge in this case. Prisoner: Then I appeal to the prelates and lord bishops, my lord. Judge: This is but a tiffany put off, for though some of that rank did let loose the rein to such profaneness in causing the book of sports, for the profanation of God's holy day, to be read in churches, yet 'tis well known that the gravest and most pious of that order have abhorred such profaneness and misrule. Prisoner: Then I appeal to the rout and rabble of the world. Judge: These are thy followers and thy favorites, and unfit to be judges in their own case. Prisoner: My lord, if there be no remedy I am content to be tried by a jury. Judge: Thou hast well said; thou shalt have a full, a fair, and a free hearing. Crier, call the jury. Crier: O yes! O yes! All manner of persons that can give evidence against the prisoner at the bar, let them come into court, and they shall be freely heard. Judge: Call in the Holy Scriptures. Crier: Make room for the Holy Scriptures to come in." Not only the Holy Scriptures, but Pliny, Lactautius, Synodus Francica, Charles the Second, Ordinance of Parliament, Solemn League and Covenant, Order of the Council of State, Mr. Elton, Dr. Ames, Bishops Babington and Andrews, and finally Ovid, give testimony against the unfortunate goddess. No one appeared to testify in her behalf, and she was adjudged to perpetual banishment, the judge pronouncing sentence without any verdict from the jury or summing up in the prisoner's behalf. It is evident that these trials, like parables, "do not go on all fours."

About the beginning of the eighteenth century, in England, the "Royal Oak Lottery," as the rival, if not the parent, of the various other demoralizing schemes of the same sort, obtained the largest share of public odium. The evils it had created are popularly set forth in a tract, entitled "The Arraignment, Trial, and Condemnation of Squire Lottery, alias Royal Oak Lottery," London, 1699. The following jurors were impaneled: Mr. Positive, a draper in

Covent Garden; Mr. Squander, an oilman in Fleet street; Mr. Pert, a tobacconist, ditto; Mr. Captious, a milliner in Paternoster Row; Mr. Feeble, a coffee man near the Change; Mr. Altrick, a merchant in Grace Church street; Mr. Haughty, a vintner, by Gray's Inn, Holborn; Mr. Jealous, a cutler, at Charing Cross; Mr. Peevish, a bookseller, in St. Paul's Churchyard; Mr. Spilbook, near Fleet bridge; Mr. Noysie, a silkman upon Ludgate hill; Mr. Finical, a barber in Cheapside. The indictment and arraignment are as follows: "You stand indicted by the name of Squire Lottery, alias Royal Oak Lottery, for that you, the said Squire Lottery, not having the fear of God in your heart, nor weighing the Regard and Duty you owe, and of right ought to pay to the Interest, Safety, and Satisfaction of your Fellow-Subjects, have from time to time, and at several times, and in several places, contrary to the known Laws of this Kingdom, under the shadow and coverture of a Royal Oak, propagated, continued, and carried on a most unequal, intricate, and insinuating Game, to the utter ruin and destruction of many thousand Families; and that you, the said Squire Lottery, alias Royal Oak Lottery, as a common Enemy to all young People, and an inveterate Hater of all good Conversation and Diversion, have for many years last, and do still continue, by certain cunning Tricks and Stratagems, insidiously, falsely, and impiously, to trepan, cheat, deceive, decoy, and entice divers Ladies, Gentlemen, Citizens, Apprentices, and others, to play away their Money at manifest Odds and Disadvantage. And that you, the said Squire Lottery, alias Royal Oak Lottery, the more secretly and effectually to carry on and propagate your base, malicious, and covetous Designs and Practices, did and do still encourage several lewd and disorderly Persons, to meet, propose, treat, consult, consent, and agree upon several unjust and illegal methods, how to ensnare and entangle People into your delusive Game; by which means, you have for many years past, utterly, entirely, and irrecoverably, contrary to all manner of Justice, Humanity, or good Nature, despoiled, depraved, and defrauded, an incredible number of Persons of every Rank, Age, Sex, and condition, of all their Lands, Goods, and Effects; and from the Ruins of multitudes built fine Houses, and purchased large Estates, to the great Scandal and reflection on the Wisdom of the Nation, for suffering such an intolerable Imposter to pass so long unpunished. What say'st thou, Squire Lottery, art thou guilty of the aforesaid Crimes, Cheats, Tricks, and Misdemeanors, thou stand'st Indicted of, or not Guilty? Lottery: Not Guilty. But before I proceed to make my Defense, I beg I may be permitted the assistance of three or four learned Sharpers to plead for me, in case any Matter of Law arise." The managers for the prosecution then call as witnesses Captain Pasthope and Counsellor Frivolous, who testified as to the means used by the accused to ruin themselves and others. The prisoner called Captain Quondam and Mr. Scamper, who spoke to his good character. The jury found against the prisoner, who, with Mr. Auction and Dr. Sandbank, also tried and convicted, was then sentenced. The prisoner, in the course of his argument, uttered the following, which, however true it may have been of his country, certainly can

have no application to this nation and these days: "If all the Knaves and Cheats of the Nation were called to the Bar and executed, there would only be a few Fools left to defend the Commonwealth."

Under the present heading may properly be cited some extracts from "Le Revenant," a paper published in Blackwood for April, 1827, purporting to be the relation of one who had been hanged and was still alive. The account of the trial is terribly powerful and lifelike:

"The whole business of my trial and sentence passed over as coolly and formally as I would have calculated a question of interest or summed up an underwriting account. I had never, though I lived in London, witnessed the proceedings of a criminal court before, and I could hardly believe the composure and indifference, and yet civility-for there was no show of anger or ill temper-with which I was treated; together with the apparent perfect insensibility of all the parties round me, while I was rolling on with a speed which nothing could check, and which increased every moment, to my ruin. I was called suddenly up from the dock, when my turn for trial came, and placed at the bar; and the judge asked, in a tone which had neither severity nor compassion about it, nor carelessness nor anxiety, nor any character or expression whatever that could be distinguished, ‘If there was any counsel appeared for the prosecution?' A barrister then, who seemed to have some consideration a middle-aged, gentlemanly-looking man— stated the case against me, as he said he would do, 'very fairly and forbearingly;' but as soon as he read the facts from his brief, 'that only,' I heard an officer of the gaol who stood behind me say, 'put the rope about my neck.' My master then was called to give his evidence, which he did very temperately, but it was conclusive. A young gentleman, who was my counsel, asked a few questions in cross-examination, after he had carefully looked over the indictment, but there was nothing to cross-examine upon. I knew that well enough, though I was thankful for the interest he seemed to take in my case. The judge then told me I thought more gravely than he had spoken before; 'that it was time for me to speak in my defence if I had any thing to say.' I had nothing to say. I thought one moment to drop down on my knees and beg for mercy, but again I thought it would only make me look ridiculous, and I only answered as well as I could, 'That I would not trouble the court with any defense.' Upon this the judge turned round, with a more serious air still, to the jury, who all stood up to listen to him as he spoke. And I listened too —or tried to listen attentively-as hard as I could, and yet with all I could do I could not keep my thoughts from wandering. For the sight of the court-all so orderly, and regular, and composed, and formal, and well satisfied-spectators and allwhile I was running on with the speed of wheels on smooth soil down hill to destruction, seemed as if the whole trial were a dream and not a thing in earnest. The barristers sat round the table silent, but utterly unconcerned, and two were looking over their briefs and another was reading a newspaper, and the spectators in the gallery looked on and listened as pleasantly as though it were a matter not of death, going

to myself, Phillis, pose you go down to de barn, and hear what Cuff has to say. Vell, Massa Squire, I go. Dare was Cuff, sure enough. He told me heaps of tings all about love; called me Weenus, and Jewpeter, and oder tings vat he got out of de play-house ven he vent down in de slope to New York, and he ax'd me if I'd marry him before de Dominie, Osterhaut, he vat preached in Milton, down 'pon Marlbro'. I say,

Cuff, you make fun on me; he say, "No, by mine zeal. I vil marry you, Phillis;" den he gib me dis here as earnest.' Phillis here drew from her huge pocket an immense pair of scissors, a jack-knife, and a wooden pipe curiously carved, which she offered as a testimony of the promise, and which was sworn to as the property of Cuff, who subsequently had refused to fulfill the contract.

"Cuff admitted that he had made her a kind of promise, but that it was conditional. 'I told her, Massa Squire, that she was a slave and a nigger, and she must wait till the year 27, then all would be free, 'cording to the new constitution; den she said, berry vell, I vill vait.'

"Phillis utterly denied the period of probation; it was to take place, she said, 'ven he got de new corduroy breeches from Crippleley Coon, de tailor; he owe three and sixpence, and Massa Coon won't let him hab dem vidout de money; den Cuff he run away to Varsing; I send Coon Crook, de constable, and he find um at Shandakin, and he bring him before you, massa.'

"The testimony here closed. The court charged the jury, that although the testimony was not conclusive, yet the court was not warranted in taking the case out of the hands of the jury. A promise had evidently been made and had been broken; some difference existed as to the period when the matrimonial

contract was to have been fulfilled, and it was equally true and honorable that in the year 1827 slavery was to cease in the State, and that fact might have warranted the defendant in the postponement; but of this there was no positive proof; and as the parties could neither read nor write, the presents might be construed into a marriage promise. The court could see no reason why these humble Africans should not, in imitation of their betters, in such cases, appeal to a jury for damages; but it was advisable not to make those damages more enormous than circumstances warranted, yet sufficient to act as a lesson to those colored gentry in their attempts to imitate fashionable infidelity.

"The jury brought in a verdict of ten dollars and costs for the plaintiff. The defendant, not being able to pay, was committed to Kingston jail, a martyr to his own folly and an example to all in like cases offending."

The lawyers employed to defend David Phillips, of Wood county, Ohio, who was charged with murder, but recently acquitted of the same through the "insanity dodge," threaten to go back on him. It seems that David (who has become sane again), mortgaged, during his "insanity," his farm to the attorneys. He now repudiates the mortgage because of the insanity that the lawyers themselves had established, hence the difficulty.

CURRENT TOPICS.

Judge William Strong, of Philadelphia, has qualified and taken his seat as Associate Justice of the United States Supreme Court. He is a jurist of undoubted ability, and will do honor to his high position. But, unfortunately, the declarations of some of the Senators previous to his confirmation have given rise to the impression in some very respectable quarters that he may have forestalled his opinions on the legal-tender question.

The confirmation of Joseph Bradley, of New Jersey, as Associate Justice of the Supreme Court of the United States, which took place on the 21st inst., is a very conclusive demonstration of what we have always supposed was the fact that the pretense of rejecting Judge Hoar, on the ground of locality, was all moonshine. The real ground was that he had offended the Senators by his independent discharge of his duties, and that method of avenging their injured dignity, and of displaying their petty spite, was resorted to. Judge Hoar has a very high reputation as a jurist, and his appointment was hailed as a good omen by every one desirous of maintaining the judicial reputation of the Supreme Bench; but the Senators had their little axe to grind, and he was cast overboard.

The Legislature of Pennsylvania, like most other legislatures, exhibits a remarkable degree of caution and reluctance in enacting any measure demanded by and likely to benefit the people. The citizens and bar of Philadelphia are making strenuous efforts to

procure an increase of the judiciary in that city-a

measure clearly demanded by the condition of affairs -but the Legislature seems inclined either not to

grant their request at all, or to do it only half way. The petitioners asked for the appointment of two additional judges for the District Court, and of one for the Common Pleas. The Legislature proposes to add two judges to the Common Pleas without adding any to the District Court. Owing to the limited jurisdiction of the Court of Common Pleas, nine-tenths of the litigation is in the District Court. That court was established, with three judges, about sixty years ago, when Philadelphia was a comparatively small city, and is notoriously inadequate to the vastly increased business of the present day. The evils that this state of things entails upon litigants are grievous, and it is to be hoped that the legislators will be induced to leave their hobbies long enough to provide a remedy.

Hercules had not a more difficult task to perform in cleansing the Augean stables, than have the Revising Commission in simplifying and systematizing the statute laws of this State. It would be quite difficult to conceive of a collection of statutes more chaotic, more loosely drawn, or more botched, than those that grace or deface our statute books. To reduce these, or rather the law, to a comprehensive and organized science to re-draft, re-model, re-cast and revise nearly every act of the last half century—is what ought to be done; but, unfortunately, what cannot and will not be done. Such a task would require the ability of a Solon

and the days of the planet Jupiter; and, besides, it is not contemplated by the act for revision. All that we can hope for is a tinkering up of the worst statutes, and a systematic arrangement of the whole. We expect this much at the hands of the Commissioners. We expect them to prune and reform to the full extent of their power, and to give us an arrangement which shall not be like the present one-". "past finding out." To do this it will be essential for them to devote themselves personally to the task before them, and not to leave it to their clerks, nor to be led away by the syren voice of clients.

A jest is out of place in a criminal trial, although when unpremeditated and arising naturally out of incidents connected with the trial, it is sometimes tolerated. But what shall we say when, by design, premeditated and arranged several days previously, the proceedings at a trial for felony are converted into a burlesque for the entertainment of court, jury and spectators? Such a scene was witnessed on the 17th of the present month at the Rensselaer Court of Sessions. An ignorant black man who had been indicted for assault with intent to kill, was persuaded by some persons desirous of fun, to solicit the assignment as counsel of an individual of his own color, who had been hanging about the court for some time previously, who was perfectly incompetent and unfit to take any part in the management of any litigation whatsoever, and who had never been admitted to the bar. The prisoner's request was yielded to, although a little thought would have reminded the Court of the utter injustice of such a course. The farce (of a trial) was subsequently performed on the day we have mentioned, to a crowded house, causing much amusement to those witnessing it, also the conviction of the prisoner, who was sentenced to the State prison.

Governor Hoffman has appointed Francis Kernan, of Utica; Amasa J. Parker, of Albany, and Montgomery H. Throop, of New York, commissioners to revise the statute laws of the State, under the recent act for that purpose. These gentlemen are eminently qualified to do the work well. Mr. Kernan was for some years reporter of the Court of Appeals, and has filled other public positions of trust and honor. Judge Parker is a lawyer of acknowledged ability, and of extensive practice. He was one of the editors of the Fifth Edition of the Revised Statutes, which, however, did we regard him responsible for the plan and execution of that work, we should hardly urge as an argument in his favor. Mr. Throop, though probably less known to the public than the other gentlemen of the Commission, has equal capacity for the position. He is a careful and thorough student of the law, and a gentleman not given to the profitless pursuit of the will-o'-the-wisps of public life. He has recently prepared-what we have reason to believe is -a very masterly treatise on the "Validity of Verbal Agreements," which is shortly to be issued from the press of John D. Parsons, Jr. No member of this Commission will do his work more ably or more thoroughly than will Mr. Throop.

The apprehensions of a conflict of authority, between the State and Federal courts, in the Bininger case, have been dissipated by the decision of Judge Blatchford. One of two partners had brought an action in the State court to wind up the partnership affairs, and had procured the appointment of a receiver. Subsequently, an alleged creditor commenced proceedings in bankruptcy against the firm, and an assignee was appointed. An application was thereupon made to the State court to have the receiver turn over the property to the United States Marshal, which was denied. (1 LAW JOURNAL, 23.) Thereupon the assignee applied to the United States District Court for an order directing the Marshal to take the property from the possession of the receiver, and to enjoin the receiver from any further interference therewith. Judge Blatchford has just rendered his decision, holding that when property is lawfully placed in the custody of a receiver, by the court which appoints such receiver, it is in the custody and under the protection and control of such court for the time being, and no other court has a right to interfere with such possession, unless it be some court which has a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises. And that it does not appear that the United States court has such superior jurisdiction in the premises, or such supervisory control over the State court, in respect to the property in question, as to authorize it to take from the State court the possession of such property, or to enjoin the receiver from further interfering with such property.

We give elsewhere a letter from Mr. Wallace, Reporter of the United States Supreme Court, relative to the decision of the legal tender case. He claims that the Court stood five to three, instead of four to three as has been alleged. We are not clear that such was the fact. The decision was pronounced on the seventh of February, and at that time the Court numbered but seven judges. Mr. Justice Grier had resigned, and his resignation had taken effect. But the question is only important as it bears upon the probabilities of a future reversal of that decision. Even on that question we fail to discover that it has much weight. Nor do we believe that any argument against reversal can be drawn from the past custom of the court. The situation of the present question is unlike that of any former one. Two new judges have been added to the court, and it is the manifest intention of the Senate to pack that tribunal in favor of the legal tender act. Judge Strong- a man confessedly opposed to the decision in the Hepburn case - has taken his seat, and the Court to-day stands a tiefour to four-on the question. When the ninth judge (Judge Bradley) shall have qualified, the Court will, beyond peradventure, stand five to four in opposition to the former decision of the Court. How much regard the majority will have for the maxim, stare decisis, we shall see. Nor is the Ledger correct in supposing that the question cannot again be brought before the Court within two or three years. We understand that there are now cases on the present calendar involving the very same question, which