these charges by Lincoln in the Lincoln-Douglas-Debates, always put Douglas in a rage, in which he always evaded the charge by never attempting to reply to it, except by the mere plea of non est factum. So there you are. Should we not, at least remove the judiciary from political and partisan handicaps, and thereby deprive them of any excuse on that line? They will have enough, perchance, to contend with, along lines in which they are not in any way to be criticized for situations in which they find themselves. CHAPTER VIII DOES A PARTISAN JUDICIARY HAVE A To begin with, the lawyer knows that the law is a jealous mistress. He knows that absolute fairness and impartiality is the first duty of an upright judge, but impartiality has never been reckoned as one of the qualities of an advocate at the bar; and in a partisan judiciary that is losing much of the prestige of former days, fair play, on the part of counsel, any more, is scarcely to be expected. As a great lawyer in West Virginia, once said to a crabbed judge: "How can I, when I have the world, the flesh, and the devil, to deal with.' It was generally understood that by "world" he meant the jury; and as Wm. H. Flick, opposing counsel, weighed about three hundred pounds or more, "the flesh" had reference to him. There was no room for doubt as to whom he had in mind, as his satanic majesty. No one could have taken offense, for counsel had a perfect right to quote Scripture. It was one way the lawyer had, in disguise, to express his contempt for the court. An attorney is a partisan when trying a case, and a good deal worse partisan when he feels that he has the world, the flesh, and the devil, to deal with; he adapts the tactics of Old Rob Roy. "Let him take who has the power And let him keep who can." John Philpot Curran, the great Irish Barrister, in opening for the Crown, in the prosecution of Rowan, laid it down as plain legal ethics, "That it was always the duty and privilege of counsel for the defense, charged with a crime, to use every force and power that zeal and genius could suggest, in behalf of the accused; that it was part and parcel of the presumption of innocence ;-license, on the part of counsel to which the accused was entitled." But he disclaimed any such right on the part of counsel for the Crown. We are not told what his views were in that respect in civil cases, but it would be quite apparent that no such rule could obtain; in fact no sound reason appears why counsel for the defense should have that advantage of the State, even in criminal cases. If, for instance, counsel for the defense, in his zeal, and by force and genius, should, by flattery and eloquent persuasion make an argument to the jury, which, though very misleading and unsound in fact, might lead to an acquittal and miscarriage of justice unless refuted, must the state let it pass unanswered? Certainly not, and of course not in civil cases. The idea in mind is this. That while it is a trite saying, "That no court of justice will allow, or do, such and such a thing," yet the fact is that when the controversy in mind is presented to a judge, there intervenes grave doubts and misgivings as to what he will do. Why? Because his salary is too small? Because he is a political partisan judge? Because he is not an upstanding and impressive figure, as judge? For whatever reason, the fact remains, that in our present nisi prius courts, we are always hanging to an interrogation point, of some kind and always keeping our eyes on the other fellow, just as we do when we are playing Chess or Checkers. We have to take and give, but take no chances. In a trial court we know that it is not so much what we think, as what kind of a card is in the hands of some one else. What we lose with the jury there may be hope to make up with the judge, and vice versa. So uncertain seems the game, that stage-play and comic opera, is brought to bear. One side will tell the jury that they are the very salt of the earth; the other imprecate upon them the vengeance of Heaven, if they disregard their oaths. "Well do we know" says counsel, Jones, "that no jury of the old county of Barbour, will send honest John Smith, to the penitentiary," thinking all the while that, that is just what will be done, because on the other side is a lawyer "close to the court.' It is the same in civil cases. Many a time has it occured where counsel close to the judge has man aged receiverships through intrigue and favoritism to the great detriment of a man's estate. And so, seeing, or believing that the Philistines are upon them, counsel on either side, in every kind of case, mentally contemplate the law of probability, and set off against it every thing that force, genius, and zeal can suggest in order to win, right or wrong. Next to plain, sensible, honest argument, when circumstances dictate that course on one side or the other, the most potent weapon against it is flattery or ridicule, or plain comic opera. But the latter course requires great tact and ingenuity. It has to be something that a lawyer could almost obtain a patent on, otherwise it will fall flat. It has to come like a bolt from the blue, as when Robert G. Ingersol while speaking in defense of a man charged with murder whom he believed to be innocent, took up a lamp from the trial table and holding it in the face of the prosecuting witness, said, "Gentlemen of the jury there is the man who murdered Tom Sawyer. There is the perjured villain who would send my client to the gallows." The witness broke down and confessed to the crime. The following story is related for the purpose of showing what political hatred, and politics may do to thwart justice, and at the same time show how a ten minutes dramatic speech led to conviction of a youth without evidence to sustain it. The defendant was charged with the death of a girl of tender years, in connection with a rape upon her. William L. Kee, an Irish lawyer was assisting the prosecuting attorney of Randolph county in the prosecution, at Beverly, W. Va. He was a man of brilliant parts, though of humble antecedents in the way of educational advantages. The late Hon. A. G. Dayton, United States judge for the Northern District of W. Va. but at the time of the trial a candidate for Congress against William L. Wilson in the Second W. Va. District, was sole counsel for the defendant. Kee and Dayton were bitter political enemies, and of course it was perfectly natural to suppose that Kee, prompted by that enmity, when opportunity had been offered by the subject matter of the speech of Mr. Dayton, would turn upon Mr. Dayton all the force of his zeal and genius could command. Kee was a nervous man, and always fingering a lot of silver coins to stay the involuntary trembling of the hands. This he did while Mr. Dayton was addressing the jury in defense of the accused. I can see Kee yet, as like a horse champing at the bit, he paced the floor outside the railing enclosing the jury, taking mental note of the argument of Mr. Dayton. Mr. Dayton was a good lawyer, and made a good speech in defense of his client, but in doing so he made one fatal mistake in the presence of Kee, by the manner in which he attempted to enlist the sympathy of the jury, and impress upon it, its duty to acquit the accused. With a face covered with prespiration, mixed with tears and sobs, Mr. Dayton, wringing his hands, in closing said: "Gentlemen of the jury, my solemn oath as an attorney at the bar, "gazing upward," is registered in Heaven, and I feel therefore, deeply, the great responsibility that is resting upon me, as counsel for the prisoner at the bar," and so on, and then sat down and hid his face in his hands, to stay the effects of his emotion. Instantly, Kee, confronting the jury, and wearing a sneering and sardonic grin, with utterly heartless sarcasm, began: "Gentlemen of the jury: My oath as an attorney at the bar, is registered over there,-"pointing," in that old dog-eared Ledger, and none of the lawyers of Randolph county, so far as I know keep their oaths, like Mr. Dayton, registered up in Heaven; but in the name of God, gentlemen of the jury, does the mere fact that Mr. Dayton keeps his oath registered in Heaven, justify the prisoner at the bar in murdering his sister? And yet, in a way, I feel, like Mr. Dayton, the responsibility that is resting upon me. I am here to vindicate the majesty of a violated law, against murder. I point you to the evidence which shows that on a cold January night, the prisoner at the bar compelled his dead sister to get out of bed and sleep upon the cold hearth stones in an old log cabin, while he and his friends took her place, where only she could have been shielded from the bitter frosts of winter, and from there I point you to the yellow clay of a new-made grave, on the banks of the Valley River. You will recall, gentlemen of the jury, that the evidence discloses, that the first persons who saw the deceased after her death, found her lying upon the bed, her hands folded across her breast, her eyes closed, and her body covered with a white sheet; |