and no doubt, gentlemen of the jury, you have wondered, as I have wondered, who it was that had thus composed the body of that child in the attitude of death, for there is not a word of evidence in the case tending to show who did it. But on hearing Mr. Dayton's speech, it is all clear to me now, as it must be to you. Some gentle angel seeing that little girl in her sleep of death on the cold hearth-stones, tenderly gathered up the frail remains and laid it on the bed, closed her eyes, folded her hands across her breast, covered the body with a white sheet, and then went back up yonder where Mr. Dayton keeps his oath on record." At that Mr. Dayton hurried out of the court-house, but Kee was through with his argument. All was painful stillness. The prisoner's counsel had deserted him, and while Kee stood speechless before the jury, gazing at the prisoner, like a cat, ready to pounce upon a rat, already half dead, the prisoner seemed not to have one friend on earth. Ten minutes later the jury returned a verdict of guilty, as charged in the indictment, which the court set aside on his own motion as being wholly without evidence to support it. But this does not answer the question at the beginning of this chapter. Kee was within his rights in disabusing the mind of the jury of any idea that mere weeping by counsel, or the fact that his oath was registered in Heaven, should warrant acquital of the defendant. It was no argument. It was not even calculated to try and search the mind of the jury, as was part of the peroration of Daniel Webster in the prosecution of the murderers of the ship master Captain White at Dillingham, Massachusetts. "The one thing, gentlemen of the jury" said Webster, "that may stand you in good stead in the presence of your God, may be that you will be able to say on that hour, that you did your duty this day, to the State of Massachusetts. That was no stage-play. It indicated that Webster thought he was addressing a jury, whose integrity was above reproach. It was an appeal that tried and searched the conscience of twelve men, whom he thought he could afford thus to approach, honestly, without attempting to pull off something to deceive or mislead them. Would it not be a fine thing if our judges were utterly removed from every circumstance and environment tending to compromise them in any way whatever, or influence them in any way, so that they may be approached with clean hands and with faith, and in confidence that their judicial integrity is unassailable. A lawyer or litigant, or an elder statesman, would absolutely be afraid to approach a judge like that, with any sort of sinister suggestion to the court, or covetly impose upon it. Several years ago, in a trial for rape, so it is openly reported and never denied, the prosecuting witness was wholly unable to identify the defendant, after he had had a hair-cut, a clean shave, and sat at the bar with a tailor-made suit on, of fine texture, belonging to his attorney. Understandings are had in court, in a corner, that a judge will do so and so, in a controversy that is ahead, and then contracts made on the outside for large and unusual fees, contingent on whether the court does thus and so. In a case reported from Maryland, a man had committed a rape on a young woman. She had never seen the man before, but besides other marks for identification of the offender who had escaped for months, were three upper gold crowns. To his counsel, whom he sought, he admitted the crime. He was advised to leave the county and have the gold crowns removed, which he did. The newspapers published descriptions of the offender, and finally the dentist who did the work, gave him away, which lead to his arrest, and absolute identification by the prosecuting witness, but he finally escaped and was never tried. Numerous other instances of the character above referred to, some of them far more reprehensible might be given, how many never come to the light, no one will ever know. We cannot reiterate too often, that there is no purpose to question the general integrity of judges and lawyers in West Virginia, or elsewhere, save by sinister influences here and there, such we have mentioned; but if two or three circuits only in a state, here and there, can be thus dominated, in whole, or in part, and that is all we claim, is that not bad enough, to utterly condemn a partisan judiciary? Of course on this larger question of why it is that there is such divergence in opinion between the Circuit judges and our Supreme Court of Appeals, so marked in circuits that cling to a political partisan judiciary, and so favorably contrasted in appellate proceedings from the First Circuit which has had an independent judiciary since 1869, it is well worth the serious consideration of any one who can otherwise explain it. Judge McWhorter, the exceedingly kind and noble Roman that he is, very properly suggests that circuit judges have credit on cases overruled by the Court of Appeals, and so we now credit them with an average of three and a half to four cases in each circuit. CHAPTER IX LIMITATIONS ON ADMISSION TO The subject as to what should be the limitations in the way of previous literary and educational qualifications to entitle a man or woman to admission to the bar, is one which may be productive of quite as much amusement, as of serious concern, in so practical a democracy as that of which we boast in America, without, in the least, minimizing the desirability of a liberal education to every mother's son or daughter who is able to obtain it, and turn it to good uses. Only within the last decade, perhaps, has there been any specified requirements, respecting educational qualifications, prior to application for admission to practice the law in West Virginia. Even now the requirements are not unreasonable in this state, and yet I would not insist upon an iron-clad rule. The American Bar Association has a program that would require all applicants for admission to have had previous college training, but so far, even in our own state, the members of the bar have shown themselves to be entirely too unselfish to give it their sanction, as an unalterable rule. One alleged reason for these advanced requirements is, that educational advantages and ability to utilize them, are now such, that there is no longer any excuse, even, for lack of a college education. That may be open to grave doubt. There is much doubt, here and there of whether the boy or girl enjoying the present liberal opportunities in West Virginia, learns any faster, or any better, than the boy or girl, who fifty years or more ago matriculated at a log schoolhouse of one room, where they sat upon peg-leg benches for seats, clapboards for writing desks, and greased newspaper for window lights, and there have been I doubt not many a fine lawyer in West Virginia, from what would be now, the seventh grade training in our common schools. The chief idea in taking the bar only from the ranks of those more highly educated in schools and colleges, is that it will promote and protect the personal and property rights of their clients, when they get them, weed out the unworthy and incompetent. Lawyers, as a class are the most unselfish, perhaps of any class of men, but they like very much being unselfish enough to consistently urge and stand by any such proposition, unless in respect to that part of the proposition relating to the exclusion of those who are unworthy to trust for lack of a good reputation; and if I may be excused, a college education does not necessarily, help out on that. That leads to the question: Would a highly educated or college trained bar, tend, preceptibly to the more orderly and equal administration of justice, than if it had been admitted to practice under no restraint other than a sufficient knowledge of the law to enable them to safely advise their clients? I claim that it does not now, and never will. I am wholly unable to understand why advocates of college trained lawyers insist on it as a protection to the personal and property rights of clients, or as an aid in the more orderly administration of justice. It is entirely too altrustic for almost any lawyer I have ever met with at the bar, or elsewhere. A lawyer is a partisan, looking out for the personal interest of his own client. He does not care a rap about what becomes of the client of his opponent when he goes into a trial. Does he inquire of opposing counsel: "Here, Mister, do you feel that you are sufficiently equipped to secure and maintain the rights of your client in this trial, against a learned man like me"? The less his opponent knows of how to conduct his side of the case, the better pleased he is. Necessarily so. They are partisans and can serve but one master. After all, how little is it that we really know, and at the same time, know that we know? And how gingerly we concede that other people know what they claim to know? All that we are usually willing to concede is that which we cannot gain-say. On all the rest, it is the prerogative of each and every one, to raise an issue. If there be none, to render indubitable that which is scarcely plausible, they "split hairs half way between 1 |