Gornell Law School Library
ARGUMENTS

TO

COURTS AND JURIES

1846-1874.

BY

WILLIAM J OHNSTON

Formerly a Judge of the Superior Court of Cincinnaté

CINCINNATI
ROBERT CLARKE & CO

PUBLISHERS

1887
Ad o62f

CoPYRIGHT
1887
By WILLIAM JOHNSTON

ELECTROTYPED AT
FRANKLIN TY’E FOUNDRY,
CINCINNATI,
THIS VOLUME
IS RESPECTFULLY DEDICATED
tO THE GENTLEMEN
OF THE ;
CINCINNATI BENCH AND BAR,
BY ITS AUTHOR,

WILLIAM JOHNSTON.

(iii)
CONTENTS.

Tue STATE vs. FORBES AND ARMITAGE. .....

Tue Srate vs. FISHER W. AMES. ........

GaNDOLFO vs. THE STATE... 2... ee

THE PEOPLE vs. WintiaM BEBB......

THE SrareE vs. Cook AND SEITER........

NEwportT AND CINCINNATI BRIDGE Company vs. THE
UNITED STATES .

Martua E. Piatt, EXecutrix or JacoB WYKOFF
Pratt, vs. JouN H. PIATT ET AL... ...

Hannan C. GRANDIN, ADMINISTRATRIX OF JOHN H.
Pratt, vs. THe UNITED STATES. . . .

THe Same vs. THE SAME ....... 1...

D. A. HoLitineswortH, ASSIGNEE, vs. NATHAN GRAY
BP Ale. acc 4

Tur Aspect or NaTiIoNaAL AFFAIRS AND THE RIGHT

OF SECESSION. . ... ee ee ee

(iv)

Pace

90

114

144

181

228

376
420

456

503
INTRODUCTORY NOTE.

THE venerable years of Judge Johnston would, alone, en-
title him to aid in putting his arguments to press; but, as I
was a student in his office, and for several years his partner
in the practice of the law, and from boyhood have enjoyed
his friendship, it is not only a duty, but a great pleasure to
relieve him from the annoyance and physical labor of getting
this book ready.

On taking hold of the work, I found but little to do, so
carefully and thoroughly had the manuscript been prepared
by the author. I have, therefore, substantially done nothing,
except to write portions of the preliminary statements and
read the proofs. This little, however, gives me the privilege
and pleasure of again associating my name with that of my

able and eminent friend.
Ropert W. CARROLL.

Cincinnati, January 1st, 1887.
The State of Ohio vs. Forbes and Armitage.

FRANKLIN CIRCUIT COURT, KENTUCKY.

APRIL 10th, 1846,

Before Hon. Mason Brown, Judge,

AT FRANKFORT,
SLAVERY: KIDNAPING: FUGITIVES FROM JUSTICE.

PRELIMINARY STATEMENT.

Mr. Johnston, as agent of the Governor of Ohio, presented
to the Governor of Kentucky a requisition for A. C. Forbes
and Jacob Armitage, fugitives from justice, charged with
having kidnaped Jerry Phinney, a free colored man, resi-
dent in Ohio.

Governor Owsley received him with marked kindness and
cordiality, at once issued his warrant for the arrest of the
alleged fugitives, and tendered every facility for testing the
questions involved. Judge Brown set the case for a special
hearing, and ordered the prompt issue of the necessary writs.
The clerk, sheriff, and other officials performed their re-
spective duties with alacrity. In the: progress of the hear-
ing, not only Phinney’s case, but, incidentally, the subject
of slavery itself was discussed with plainness, in the midst
of a very large assembly of spectators, all of whom listened
with profound attention, and none of whom manifested the
least sign of disrespect or hostility. In fact, at points in
Mr. Johnston’s speech, he was greeted with cheers and other

manifestations of applause. This much may be said for the
(5)
6 THE STATE OF OHIO vs. FORBES AND ARMITAGE,

purpose of explaining those parts of the argument which
might otherwise be construed into flattery.

A writ was produced in open court, issued by Wi1LLIAM
Owsxey, Governor of Kentucky, setting forth that Morpe-
cal Barriey, Governor of Ohio, had demanded the persons
of A. C. Forbes and Jacob Armitage, fugitives from justice,
charged by affidavit with having kidnaped Jerry Phinney,
a free colored man, resident of Ohio, and that the Governor
of Ohio had appointed William Johnston his agent, to receive
said Forbes and Armitage and bring them back, to be tried
under the laws of Ohio upon said charge of kidnaping.
The writ of Governor Owsley commanded the sheriff to
arrest said Forbes and Armitage, and take them before a
Circuit Judge, to be examined and dealt with according to
the provisions of an Act, entitled “An Act to amend the
Act reducing into one the several acts authorizing the appre-
hending of fugitives from justice: ” approved Jan. 27, 1820.

The writ bore the return, that it had been duly execu-
ted on said Forbes and Armitage, who were then present
in court, in custody of the sheriff.

Mr. William Johnston appeared on behalf the State ot
Ohio, and Mr. Charles 8. Morehead on behalf of Forbes and
Armitage.

The Court asked the attorney for Ohio, if he desired to
produce any testimony, tendering the power of the court to
enforce the appearance of any witnesses required.

Mr. Morehead read the statute of 1820, and waived all
technicality touching the points of indictment, affidavits and
identity.

Mr. Johnston would take no technical advantage; but he
desired a fair investigation, which should in good faith re-
spect the rights and dignity of Ohio and Kentucky, and the
result of which, be it what it might, should satisfy the
authorities and the people, and allay excitement on both
sides of the water.

Mr. Morehead presented the issues, that Jerry was a slave,
and that Forbes and Armitage had the approbation of his
owners, in taking him in Ohio and delivering him to them
in Kentucky.
THE STATE OF OHIO vs. FORBES AND ARMITAGE, 7

The testimony, which is sufficiently stated in the opinion
of the court, was then introduced.

Mr. Morehead opened the argument, stating his points as
follows:

1. Under the peculiar writ issued by the Governor of
Kentucky, and under which Forbes and Armitage are now
before the court, the only inquirics which can be made,
are, is Jerry a slave? and had Forbes and Armitage the
authority of the owncr, or her approbation for his recapture?

Mr. Johnston answered, traversing the grounds of Mr. More-
head, and urging the following positions in support of the
demand of the Governor of Ohio for the fugitives, Forbes
and Armitage :

1. The Kentucky statute of 1820 is at variance with the
Constitution of the United States, and with the law of Congress
of 1793, and is void. °

2. If the statute of 1820 be void, the court has jurisdic-
tion only of the question of identity, under the statute of
1815.

If the statute of 1820 be valid, and the court has jurisdic-
tion, then three questions of fact are involved.

1. Is Jerry a slave, and the property of any one?

2. Who is his owner ?

3. Did Forbes and Armitage act as the agents, or with the
approbation of the owner?

The second point is conceded, for if Jerry be a slave, Mrs.
Long, representing in her own right and as administratrix of
her deceased husband 26-27ths of Jerry, for the purposes of
this case, may be considered the owner.

The third point is conceded also as to Forbes, but insisted
on as to Armitage, because there is no proof of the eapress
approbation of the owner as to him,

The main question is upon the first point. Was Jerry a
slave at the time Forbes and Armitage aided in seizing him
at Columbus?

1. Slavery is contrary to the law of nature, contrary to the
law of nations, and exists only by force of the municipal law
of the land.

2, Slavery is strictly local, and confined within the terri-
8 THE STATE OF OHIO US. FORBES AND ARMITAGE,

torial limits of the state where it is sanctioned, and can not
follow the fugitive beyond those limits, except by positive
law, binding on both sides of the line.

3. The only law varying these great principles of natural
and international law, is that to be found, Ist, in the ordi-
nance of 1787 for the government of the North-Western
Territory ; 2d, in the Constitution of the United States; and
3d, in the law of Congress of 1798, which latter can not be

so construed as to extinguish the guaranty of liberty, con-
tained in the ordinance of 1787, or to extend the rights guar-
anteed to the owners of fugitive slaves by the Constitution
of the United States.

4, The clauses of the ordinance of 1787, and of the Consti-
tution of the United States, and the law of Congress of 1793,
authorizing fugitives from labor to be pursued into the North-
Western Territory, being contrary to the law of nature, con-
trary to the law of nations, and restrictive of human liberty,
must be strictly construed.

5. Strictly construed, these clauses can extend to but one
case—that of an escaping slave. This implies a voluntary
act of the slave contrary to the will of the master, and if, by
any other than by his own will, he is carried into the North-
Western Territory, the relation of slavery ceases as com-
pletely as if he had been carried into France, or any other
foreign State.

6. If the slave becomes free but for a moment, he can
never again be reduced to slavery ; not even by his own act,
because the right of freedom is unalienable.

7. It matters not that the slave was carried beyond the
line by a bailee to whom he was hired; if he is carried over
in the relation of a slave, even by a person haying a tem-
porary dominion over him, he becomes ipso facto frec, and
the owner has his right of action against the bailee for the
loss of his services. The law governing chattels does not
apply to property in human beings. God gave man dominion
over, and property in the beasts of the ficld, etc., but the
property in man he reserved to himself. The property in
animals is natural and binding everywhere; that in man is
THE STATE OF OHIO vs. FORBES AND ARMITAGE, 9

conventional, municipal, local, and to be kept within the
literal meaning of the written law.

In reply to the positions of Mr. Johnston, Mr. Morehead
said :

1. The question of the constitutionality of the Kentucky
act of 1820 can not arise in this proceeding. In ordi-
nary cases, the question is perhaps exclusively an executive
one, except as to the single inquiry of identity. In this
case the Governor of Kentucky has issued his writ in obedi-
ence to the requisition of the Governor of Ohio, in conform-
ity with the act of 1820; and this court has nothing to do
but to make the inquiries directed by the writ. If the act
of 1820 be at variance with the Constitution of the United
States and the law of Congress passed in pursuance thereof,
the Governor might have disregarded it, and issued his writ
as in ordinary cases, and this court, it may be conceded,
would be compelled to obey the Executive mandate upon
proof of identity alone. But there is no Executive mandate
to deliver these persons to the agent of the State of Ohio,
unless it is ascertained that Jerry is a free man, or that they
acted without the authority or approbation of the owner.

The alleged fugitives can not be delivered up under this
writ, without the preliminary inquiries directed by the writ
itself. The constitutionality of the act of 1820 can not
therefore arise, and need not be discussed.

2. Is Jerry a slave?

1. Slavery is what the municipal law has made it, the
rights growing out-of which, extra-territorially, are guaran-
teed by the Constitution of the United States. Whether in
conformity to natural or to divine: law is no question here,
and ought not to affect in any degree the fair, liberal and
just exposition of the laws securing those rights.

2. The ordinance of 1787 for the government of the North-
Western Territory, it is true, declares “that there shall be
neither slavery nor involuntary servitude in the said terri-
tory.” But in the case of Rankin v, Lydia, 2 A. M. Mar-
shall, 467, decided at the fall term of 1820 of the Court of
Appeals, it is said, that “when the ordinance declares that
slavery shall not exist there, it evidently means among the
10 =THE STATE OF OHIO Us, FORBES AND ARMITAGE.

inhabitants and settlers, and not among the travelers or so-
journers there, ‘Their case is not affected by the provisions
of the ordinance ; against them no provision exists.

The same principle is recognized and enforced in the case
of Graham v. Strader, etc., 5 B. Monroe, 153. In that case
the question is directly decided, that the owner of a slave,
residing in Kentucky, does not forfeit his slave by taking
him to Ohio, or permitting another to do so, where the ob-
ject of the visit is temporary, or, in other words, where the
party taking him there was a mere sojourner and not domi-
ciled. .

3. The slave Jerry being taken to Ohio by a.mere bailee,
without the approbation and against the consent of his
owner, and that bailee not being domiciled in Ohio, and re-
turning the slave to his owner in Kentucky, the ordinance
of 1787 can have no effect on his condition, upon the most
technical and strict construction of the ordinance.

4. Jerry not being entitled to his freedom, in consequence
of being taken to Ohio by a bailee, the manner of his after-
wards leaving his owner, made him “an escaping slave,” in
the true and proper meaning of the terms.

5. After the return of Jerry by the bailee to his owner in
Kentucky, she could have maintained no action against him,
on the ground that the slave had become free, as settled by the
before cited case of Graham v. Strader.

6. The ownership of the slave being admitted, and the
power of attorney to Forbes fully proven, the law will imply
that authority was given to him to make use of all necessary
means to accomplish the object in view, and consequently
that Armitage acted with the approbation of the owner.

7. The authority of the appellate court is binding on this
court, and it is useless to discuss the correctness of decisions
made elsewhere in conflict therewith.
THL STATE OF OHIO ts, FURBES AND ARMITAGE, 11

ARGUMENT OF MR. JOHNSTON.

May it please your Honor:

‘ Without any claim to modesty,
I confess that I appear before you laboring under great em-
barassment. Not that any inflammatory excitement is felt
against me personally, for 1 know there is none. Not on
account of any personal hazard to be incurred by anything
I am about to say, for I know I am safe; but on account of
the novelty of my position, the intrinsic importance of
the cause in which I appear and the vast moment of the
questions involved. I come here, not to quarrel with the
domestie institutions of Kentucky, nor to add to the ex-
citement unhappily too great on woth sides of the water. I
had rather contribute my efforts to promote peace and good
will between citizens of sister States, whose interests, rights
and feelings are so nearly one; who have so often mingled
the blood of consanguinity in the bonds of peace, and the
blood of patriotism ‘on the field of battle, to secure the com-
mon blessings of union, liberty and law to both. I come
here as the agent of the Executive of Ohio, with a legal
requisition for certain persons charged as fugitives from jus-
tice. It is my mission to urge certain legal and international
rights of the State which I represent; and I feel that in
this community I may safely discharge that duty as fully
and boldly as if I stood in the halls of justice in the capital

of my own State.
Before I ever set my foot in this State, one of the first
incidents which called my attention to the character of its
people, was the valedictory address of a vetcran statesman,
12 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

who, having finished his career, and resigned the cares of
public life, had come up, as he said, to lay his bones in Ken- '
tucky ; because he knew that if they reposed in Kentucky ,
earth, the foot of a tyrant should never tread upon them.
And I feel a strong and abiding confidence, as I stand be-
fore you to-day to debate these vexed and exciting questions,
that if there be any spot on earth where the ashes of the
dead or the rights of the living are secure, it is on the soil
and in the judicial tribunals of Kentucky.

Let me then, as well as I may, overwhelmed by the kind-
ness and the cheers of this respectable assembly, approach the
question involved. And first: The statute of Kentucky of
1820, under which this proceeding is had, is at variance with
the Constitution of the United States, and the law of Con-
gress of 1793, and void. The statute runs thus:

“Se. 1. Be it enacted by the General Assembly of the Com-
monwealth of Kentucky, That in all cases where any negro
slave or slaves have, or may hereafter run away from his,
her or their owner or owners, and take protection in any of
the United States, and the owner or owners of such slave
or slaves, by themselves, their agent or any other person with
their approbation, shall have removed, or shall hereafter re-
move any such slave or slaves from any other State within
the United States into this Commonwealth, and he, she or
they have been, or shall hereafter be indicted for the same,
in any one of the United States, and the Governor of said
State shall demand of the Governor of this State the person
or persons so indicted, or who may hereafter be indicted, to
be delivered to him agreeably to the Constitution of the
United States and this State, it shall be the duty of the Gov-
ernor of this Commonwealth, upon such requisition being
made according to law, to issue his warrant to the sheriff of .
the county where such supposed fugitive may reside, if he
has a known place of residence, requiring him to take into
custody such supposed fugitive or fugitives from justice as are
named in such warrant and indictment, and bring him, her
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 13

or them before a Circuit Judge; and if the Circuit Judge
shall be of opinion that the person or persons named in
such warrant and indictment, are the owner or owners of the
slave or slaves named in such indictment, or that he, she or
they acted as the agent, or by the approbation of the owner
or owners of such slave or slaves, it shall be the duty of
the Judge to discharge the person or persons taken by virtue
of said warrant, out of custody.

“Sec. 2. Be it further enacted, That if the Judge shall be
of opinion that the person or persons taken into custody by
virtue of the Governor’s warrant, is not the owner or owners
of the slave or slaves, in the indictment found against him,
her or them, in any one of the United States for stealing and
conveying a slave or slaves which are not their own prop-
erty ; or that he, she or they did not act as the agent, or by
the approbation of the owner or owners of such slave or
slaves, then it shall be the duty of the judge to remand such
person or persons into custody again, to be dealt with accord-
ing to the laws now in force on that subject.”

Two questions of minor importance spring up under this
act. First, are these persons within the meaning and pro-
tection of the statute, not being “indicted” by a jury of in-
quest, but only charged by the affidavits of private citizens?
and secondly, was the statute intended to protect any but
persons having a legal residence in Kentucky? I suggest
these points to the consideration of the court without argu-
ment, and proceed to the main question—is the law constitu-
tional? It will not be pretended that the Legislature of
Kentucky have not a right, that it is not their duty in some
cases to pass laws in aid of the Constitution, and for the pur-
pose of directing the mode in which its provisions shall be
carried out. The provision of the Constitution, Art. IV.
Sec. 2, is: “A person charged in any State with treason,
felony or other crime, who shall fice from justice, and be
found in another State, shall, on the demand of the execu-
tive authority of the State from which he fled, be delivered
14 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

up, to be removed,to the State having jurisdiction of the
crime.”

It was well remarked by my brother Morehead, that the
delivering up of a fugitive from justice, under the constitu-
tion, was an executive act. It is so, not because the consti-
tution in so many words designates the executive as the only
proper department, for it does not. The act of Congress of
1793 imposes this duty on the executive. The mode then of
delivering up may, nay, ought to be directed by statute.
But no statute can be valid which thwarts the design of the
constitution, or in any way impedes the action or impairs the
powers of the executive demanding, or of the executive deliv-
ering up such fugitives. Thus, as by the act of 1815, the
statute may direct that an issue be made before a judge of
the court to ascertain the identity of the persons claimed as
fugitives. But when the statute, as in the act of 1820, takes
the case out of the hands of the executive, for the purpose
of trying issues the result of which may defeat the ends of
the constitution, it is unconstitutional and void, and the
court has no jurisdiction under it.

The act of 1820 proposes to protect from the laws of the
demanding State, the owners of slaves, the agents of slave
owners, and persons acting by the approbation of slave own-
ers, irrespective of the manner in which they proceed in
recovering the slave, or what infractions of law they may
have been guilty of in recovering him. Surely the constitu-
tion never intended such a thing as this.

The clause in the constitution, authorizing persons to
whom labor or service is due to recover the persons held to
such labor or service, does not authorize the claimant to
seize them sans ceremonic, wherever they may be found—bind
them’ hand and foot, and drag them away without proof of
ownership, and in the teeth of the laws of the State whither
they may have cseaped. It says: “They shall be delivered
THE STATE OF OHIO US. FORBES AND ARMITAGE. 15

up on claim of the party to whom such service or labor may
be due.” “Delivering up” implies some act by authority, in
the State to which the fugitive had fled; not an act of phys-
ical force on the part of the claimant. And so the Congress
of 1793 understood the constitution. It is there provided:
“That, when a person, held to labor in any of the United
States, or in either of the Territories on the south-east or
south of the river Ohio, under the laws thereof, shall escape
into any other of the said States or Territories, the person
to whom such labor or services may be due, his agent or at-
torney is hereby empowered to seize or arrest such fugitive
from labor, and to take him or her before any judge of the’
circuit or district courts of the United States, residing or
being within the State, or before any magistrate of a county,
city, or town corporate wherein such seizure or arrest shall
be made; and, upon proof to the satisfaction of such judge
or magistrate, either by oral testimony or affidavit, taken be-
fore and certified by a magistrate of any such State or Ter-
ritory, that the person so seized or arrested, doth, under the
laws of the State or Territory from which he or she fled,
owe service or labor to the person claiming him or her, it
shall be the duty of such judge or magistrate to give a cer-
tificate thereof to such claimant, his agent or attorney, which
shall be sufficient warrant for removing the said fugitive
from labor to the State or Territory from which he or she
fied.”

~ Clearly this act contemplates a judicial examination as to
the right of the claimant. It contemplates no other mode
of reclaiming, and, as this act was passed in aid of the con-
stitution, by a Congress composed to a great extent of the
same men, who but five years before had framed the consti-
tution, it may well be received as a fair exponent of that in-
strument. But whatever protection the owner of the escap-
ing slave may take under the constitution, without such
16 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

judicial examination as to the ownership, clearly the agent
can take none. Agents, in such cases, are not known to the
constitution, nor to the ordinance of 1787. The statute of
1793 is the first enactment in which agents are known; and
that act provides for such examination.

We in Ohio think such examination indispensable to the
cause of justice and humanity. We see nothing but endless
confusion, injustice and oppression growing out of the right
to drag men, women and children from their homes without
such examination. We see encouragement given to a horde
of pirates, who infest the waters of the Ohio on both its
banks and make man-catching a trade.

I do not say these wretches are Kentuckians. They are to
be found on both sides of the water, and do not deserve a
name or local habitation on either. They are the enemies of
the human race; without sympathy for anybody, and enti-
tled to sympathy from nobody ; men who will steal your slave
from you to-day, and sell him fo you to-morrow.

There is a distinguished character now in the Ohio peni-
tentiary, who made a fortune by first persuading slaves to
run away from their masters, quartering them on credulous
black people, (who, on account of their color, could not be
witnesses against him,) till a reward should be offered, and
then conveying them back again for the reward. There are
unfortunately others, out of the penitentiary, who follow the
same calling, until, if you were on the southern line of Ohio,
you would almost imagine you were on the slave coast of
Africa.

About cight years ago a free colored woman, born in Ohio,
and residing in Brown county, in the absence of her husband,
was seized, and, without examination or any forms of law
whatever, carried into Mason county, Kentucky, and lodged
in jail, under pretense that she was the slave of Arthur Fox,
High Sheriff of Mason county. Mr. Fox disclaimed owner-
THE STATE OF OHIO vs, FORBES AND ARMITAGE, 17

ship in her; and then she was retained in prison under pre-
tense that she was the slave of Mrs. Johns, of New Orleans.
Mrs. Johns also disclaimed her; and then, being in prison
as a runaway slave, she was subject to be sold at the end of
fourteen months for jail fees. She was only set at large by
executive interposition. I mention this case, not because it
is a singular one, but because I happen to be familiar with
it, and because it is a matter of record in both States. Cases
far more aggravated, of which no record exists, have often
occurred. Men believed to be freemen, have been knocked
down with a colt in the streets, in the night season, dragged
into boats, and carried—God only knows where.

To prevent such outrages, the legislature of Ohio have en-
acted two statutes against kidnaping: the one against seiz-
ing and carrying away free persons; the other against seizing
and carrying away any person whatever, without a hearing.
These statutes of Ohio in nowise contravene the Constitution
of the United States or the act of 1793, nor embarrass the
owners of fugitive slaves in recovering their property. Ought
not these laws to be respected ?

Forbes and Armitage stand charged by affidavit under both
these statutes. We say Jerry was, by operation of law, a free
man, and that, in seizing and carrying him forcibly away,
they were guilty of kidnaping. The act was perpetrated in
Ohio, by citizens of Ohio, and the tribunals of Ohio alone
have jurisdiction of the matter. They alone have a right to
inquire whether, under the laws of Ohio, such a state of
facts exists, as to bring these men within the law against
kidnaping.

Again: we say that even if Jerry were a slave, Forbes and
Armitage had no right to carry him away without a fair hear-
ing under the act of Congress of 1793; and that in so doing
they were guilty of kidnaping. And the act being perpetrated
in Ohio, we claim for the Ohio tribunals the sole right to try
18 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

the question, whether they did thus seize and carry him away
without trial, or upon a mock trial], or in any way in viola~
tion of the laws of Ohio.

Is this claiming too much on the part ofa sister in the glo-
rious confederacy? Are not the rights and claims of a sister
State to be respected in a case like this? Yet this act of
1820 steps in, as I insist, in violation of the Constitution
and laws of the United States, and takes the case out of the
hands of the executive and transfers it to the judiciary, to
‘try questions which belong to the tribunals of Ohio alone.
The executive obeys implicitly the statute of 1820, and it is
for this court to determine, if your Honor should be satis-
fied that the statute is void, whether it will take jurisdiction
of the matter, or simply try the question of identity under
the act of 1815.

If, however, it should be held that the statute of 1820 is
valid, then three questions of fact will arise:

1. Is Jerry a slave?

2. Who is his owner?

3. Did Forbes and Armitage act as the agents or with the
approbation of the owner?

Upon the second question I do not propose to raise a doubt;
for, if Jerry be a slave at all, it may be conceded that Mrs.
Long is the owner ; because, cither in her own right, or as the
executrix of her deceased husband, she represents twenty-six
twenty-sevenths of him; so that if he be the property of any
body, he is the property of Mrs. Long.

The third point: “may be conceded also, so far a’ Forbes is
concerned, because it is in evidence that he acted under a
power of attorney, regularly executed by Mrs. Long. But
there was no power of attorney authorizing Armitage to act
in the premises; nor ix there any proof of capress approba-
tion of his conduct on the part of Mrs. Long, nor any other
approbation cxcept what she may have bestowed on him after
THE STATE OF OHIO vs. FORBES\:AND ARMITAGE. 19

he arrived at Frankfort with Jerry in his custody. If ap-
probation ex post facto be contemplated by the act of 1820, I
have not another word to say on this point. But I believe
the statute means no such thing.

The first is the leading and controlling question. Was
Jerry a slave at the time Forbes. and Armitage seized him
at Columbus? Because, if he were not a slave, neither Mrs.
Long nor any one else could be his owner ; and all authority
to act, based upon such ownership, falls to the ground; and
all acts under such nugatory authority are without the pro-
tection of the law.

This question, whether we will or not, leads to discussion
of the institution of slavery as it has existed and now exists
in the United States.

And first: Slavery is not recognized by the law of nature.
This broad ‘self-evident truth is laid down in the Declaration
of Independence: ‘that all men are created equal; that they
are endowed by their Creator with certain unalienable rights ;
that amongst these are life, liberty and the pursuit of happi-

” The great men who-put forth this declaration did not

ness.
mean to say all men, except negroes, are created equal, and
endowed by their Creator with the unalienable right of lib-
erty. Nor did they mean by this declaration to annul exist-
ing institutions at variance with this great.self-evident truth,
as slavery undoubtedly is, but they meant then and for all
future time, for thernselves and their posterity, to sect up this
important self-evident moral truth as the standard by which
all law and all civilization should thereafter be tried; not to
unravel an evil already too intimately interwoven with the
warp of society to be removed without destroying its text-
ure; but in the name of their country, whose independence
they sought to establish, and in the name of the Creator,
who bestowed these “unalienable rights,” to protest against

its future progress.
20 THE STATE OF OHIO vs, FORBES AND ARMITAGE.

This doctrine is in strict accordance with the original char-
ter given by God to our great ancestor, before sin or oppres-
sion had marred the beauty and glory of his new creation.
With the archetypes of all that was beautiful and good be-
fore his eye, “God said, Let us make man in our IMAGE,
after our likeness; and let them have dominion over the fish
of the sea, and over the fowls of the air, and over the cat-
tle, and over all the earth, and over every creeping thing
that creepeth upon the earth. So God created man IN HIS
OWN IMAGE; in the image of God created he him; male
and female created he them.” As they stood thus before the
bridal altar, with this immense dowry before them, he pro-
nounced upon them his parental benediction, and delivered
them the charter of their future estate: “And God blessed
tliem,:and said unto them, Be fruitful, and multiply, and re-
plenish the earth, and subdue it: and have dominion over
the fish of the sea, and over the fowl of the air, and over
every living thing that moveth upon the earth.”

All that was not conveyed to man by this charter, the
Grantor reserved to himself. And that there might be no
misunderstanding, either as to the property granted or the
names of the creatures included in the grant, he gave him
“livery of seizin””—brought the mighty menagerie “to Adam
to see what he would call them; and whatsoever Adam called
every living creature, that was the name thereof.” As if
God had said to man: Catch that bounding steed, and put
thy brand on his crest, and thy caparison on his back, and
make him bear thee whither thou shalt list. Seize that pow-
erful ox and, putting thy yoke on his neck, compel him to
plow the soil. Shear that sheep, and clothe thyself with his
fleecy spoils. Snatch down the eagle from the cloud, and
draw up leviathan from the deep. Make all living creat-
ures in the heavens above, in the earth beneath, and in the
waters under the earth, thy slaves, for they are thine; but, as
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 21

for thee and thy posterity, I have stamped My OWN IMAGE
upon you, and YE ARE MINE! Thus stood the mewm and
tuum of the pristine world.

It is not pretended that the divine law of property, thus
laid down, has been always respected ; or that slavery has not
existed since a very carly period of history. Alas! who can
look around him on the wrongs and oppressions which wring
the hearts of innocent millions without, or feel the workings
of ten thousand bitter pangs within, and not acknowledge
that society has been sadly bruised and disjointed by the fall
of man! The first man that was born of woman, murdered
the second ; and, thus on, depravity, disorder and oppression
spread over the whole inhabited earth. We see wars arise,
and prisoners of war sold into slavery; nay, whole nations
carried away captive, and sold into bondage as a punishment
for their crimes, the nations thus punishing them frequently
not less criminal than themselves. We see depravity and
wickedness, by Divine permission, working out their own
penalty and their own cure: but this does not alter the Divine
law. Still, property in man is contrary to the law of nature.
It exists and is tolerated in society like some hereditary dis-
ease; not as a part of man’s original constitution, nor as his
constitution ought to be, but superinduced by remote causes,
and now too deeply fixed to be rooted out without inconveni-
ence, pain, or loss of life. It was with reference to this great
principle, that, although slavery existed in some form or
other asa local institution in almost all nations and in Rome
herself, it was one of the laws of the twelve tables, that when-
ever there was a question between liberty and slavery, the
' presumption should be on the side of liberty.

But again: Property in human beings is not only contrary
to the law of nature, but is contrary to the law of nations.
There is: no existing obligation, moral, legal or international,
on the part of one State, to deliver up fugitive slaves from
22 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

another State. I know that a dictum from the court in the
Amistad case (15 Peters’ R. 518), has been often referred to,
to establish a different rule, but that dictum is clearly not to
the point. In that case the captive négroes were claimed, not
upon any principle of international law, but under the exist-
ing compact of 1795 between Spain and the United States for
the mutual delivery of property in certain cases. The case
did not require a decision under the treaty, because the
negroes in controversy never had been lawfully slaves.

I say it is contrary to the law of nations, not because it is
so written in the black-letter books, but because, for a quar-
ter of a century, the traffic in slaves has been condemned by
all the civilized nations of Europe and America. Because
the ministers of the principal European powers, in the Con-
gress of Vienna in 1815, solemnly declared in the face of
Europe and the world, “that the African slave trade had
been regarded by just and enlightened men in all ages, as
repugnant to the principles of humanity and universal mo-
rality, and that the public voice of all civilized countries de-
manded that it should be suppressed; and that the universal
abolition of it was conformable to the spirit of the age and
the generous principles of the allied powers.” Because, as
early as 1821, there was not a flag of any European State
which could legally cover this traffic, to the north of the
Equator. Because, by the act of Congress of 1820, and by
the act of the British Parliament of 1824, it is declared to be
piracy, and punishable with death.

It will be asked how these acts can affect slavery as a do-
mestic institution. T answer that they in no wise affect it,
so long as it is domestic and stays at home. But they
stamp upon it the character of a domestic, a local institution.
They forbid it to travel on the high seas; and the same prin-
ciple of law, adjudged by the judicial tribunals of the severa]
States, forbids it to travel by land.
THE STATE OF OHIO vs, FORBES AND ARMITAGE, 23

Slavery is then strictly local. About this there can be but
one opinion amongst those who have examined the subject.
In most of the British colonies, till recently, slavery had ex-
isted from time immemorial. We are to-day indebted to
Great Britain for the institution amongst us. It was one of
the counts on which Mr. Jefferson, in his original draft of
the Declaration of Independence, indicted the British King—
that “he had waged cruel war against human nature itself,
violating its most sacred rights of life and liberty, in the per-
sons of a distant people who never offended him ; captivating
and carrying them into slavery in another hemisphere, or to
incur miserable death in their transportation thither. This
piratical warfare, the opprobrium of infidel powers, is the
warfare of the Christian King of Great Britain, determined to
keep open a market where MEN should be bought and sold:
he had prostituted his negative for suppressing every legis-
lative attempt to prohibit or to restrain this execrable com-
merce.” Yet, though slavery has been thus tolerated as a
local institution in the provinces of Great Britain, it has been
justly the boast of every Englishman, in the eloquent lan-
guage of Curran, “that the spirit of the British law makes
liberty commensurate with, and inseparable from the British
soil ;” that it “ proclaims, even to the stranger and sojourner,
the moment he sets his foot upon British carth, that the
ground on which he treads is holy, and consecrated by the
genius of UNIVERSAL EMANCIPATION! No matter in what
language his doom may have been pronounced; no matter
what complexion incompatible with freedom an Indian or an
African sun may have burnt upon him; no matter in what
disastrous battle his liberty may have been cloven down; no
matter with what solemneties he may have been devoted
upon the altar of slavery; the first moment he touches the
sacred soil of Britain, the altar and the god sink together in
the dust; his soul walks abroad in her own majesty ; his
24 THE STATE OF OHIO US, FORBES ..ND ARMITAGE,

body swells beyond the measure of his chains, that” burst
from around him, and he stands redeemed, regenerated and
disenthralled by the irresistible genius of UNIVERSAL EMAN-
CIPATION !”

Such, too, is the common law of France. Property in hu-
man beings is strictly local, and can not exist for a moment
after the slave passes the territorial limits into a state where
slavery is not tolerated. And this principle of law in France
is clearly recognized by the courts of Louisiana, where this
peculiar institution is far dearer to the people than it is to
the people of Kentucky. In the case of Maria Louisa vs.
Mariat and others (8 Louisiana Rep. 475, etc.), in which the
defendants had carried a colored girl, admitted on all hands
to have been a slave in Louisiana, into France, where slav-
ery was not tolerated, and had brought her back into Loui-
siana as a slave, Justice Matthews holds the following lan-
guage: “The question is, whether the fact of her having
been taken to that kingdom by her, owners, where slavery
or involuntary servitude is not tolerated, operated on the
condition of the slave so as to produce an immediate eman-
cipation. That such is the benign and liberal effect of the
laws and customs of that state, is proven by two witnesses
of unimpeachable credibility. This fact was submitted to
the consideration of the jury who tried the cause under the
charge of the judge, which we consider to be correct, and
was found in favor of the party whose liberty is claimed.
Being free for one moment in France, in was not in the
power of her former owner to reduce her again to slavery.”

This principle has been held in our own country in every
instance where the nature of the case made it necessary or
proper for a court to express an opinion. Without multiply-
ing cases to prove a position that will hardly be doubted, in
the case of Jones vs. Vanzandt (2 McLean’s Rep. 596), Jus-
tice McLean says: “Slavery is local in its ‘character. It de-
THE STATE OF-OHIO vs. FORBES AND ARMITAGE, 25

pends on the municipal law of the State where it is established.
And ifa person held in slavery, go beyond the jurisdiction
where he is so held and into another sovereignty, where slav-
ery is not tolerated, he becomes free. And this would be the
law of these States, had the Constitution of the United States
adopted no regulation on the subject.”

“Recaption,” says the judge, “has been naracd as a com-
mon law remedy. But this remedy could not be pursued be-
yond the sovereignty where slavery exists and into another
jurisdiction, which had entered into no compact to surrender
the fugitives. There is no general principle in the law of
nations which would require a surrender in such a case.”

We have thus-seen that, by the law of nature, by the law
of nations, by the common law of England, by the common
law of France and by the common law of our own country,
slavery is strictly local; that property in slaves, unlike that
in anything else, is incapable of crossing the territorial line,
from one State to another. Within the territorial limits of a
State, men, women and children may be bought and sold like
“beasts of the plough,” and property in them may be cherished
and protected by the municipal laws. They may be subjected
to the rule of task-masters, with power to command; to
scourge; to exact their sweat and labor. They may groan
under their burdens as the Hebrew vassals groaned under
Egyptian bondage, without any human ear to hear their com-
plaint or any human law to relieve their sufferings. But on
the territorial linc, separating one State from another, “ the
genius of universal Emancipation” stands, like the spirit of
Omnipotence on the waters of the Red Sea, to let the slave
pass over ; to intercept the master’s pursuit ; and to overthrow
and overwhelm the prancing horse, the rattling chariot, and
all the pomp and all the pride and all the power of pursuing
forces.

What then is there to change or limit this great pervading
26 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

principle of liberty and law? The only law varying this
great principle, in its application to American institutions,
is that found: 1. In the ordinance of 1787 for the govern-
ment of the North-Western Territory; 2. In the Constitution
of the United States ; 3. In the act of Congress of 1793. For
this law, whenever it occurs, I shall insist on a strict and
literal construction. .

The ordinance of 1787 is two-fold. The first part is muni-
cipal and temporary, the second, general aud perpetual. The
former is for the government of the territory only, and to re-
main in force until the other laws should be established, and
no longer: the latter, unalterable and inherent in the bond of
confederacy between the States. Or, to use its own broad,
deep and unmistakable language; “It is hereby ordained by
the authority aforesaid, that the following articles shall be
considered as articles of compact between the original States
and the people and States of said territory, and forever un-
alterable except by common consent, to wit:”—and here fol-
low ‘six articles of older law than the Constitution of the
United States, the Constitution of Kentucky, or the Consti-
tution of Ohio, and paramount to them all. The sixth of
” these was intended forever to prohibit slavery north-west of
the Ohio River, without disturbing rights already acquired
in property in man in the old States. “There shall be
neither slavery nor involuntary servitude in the said terri-
tory, otherwise than in the punishment of crimes, whereof
the party shall have been duly convicted: provided always
that any person escaping into the same, from whom labor and
service are lawfully claimed in any of the original States,
such fugitive may be lawfully reclaimed, and conveyed to
the person claiming his or her labor or service as aforesaid.”

The general rule, laid down in that document, is: “There
shall be neither slavery nor involuntary servitude in the said
territory, otherwise than in the punishment of crimss, whercof
THE STATE OF OHIO vs. FORBES AND ARMITAGE, 27

the party shall have been duly convicted.” The restriction
to this general rule, is: “Provided always, that any person
escaping into the same, from whom service or labor is law-
fully claimed in any one of the original States, such fugitive
may be lawfully reclaimed, and conveyed to the person claim-
ing his or her labor or service as aforesaid.” This general
rule, securing freedom, can not be annulled by any State or
United States convention; and, lest it should be overlooked
or forgotten, it is copied verbatim into the constitution of
Ohio: ‘‘There shall be neither slavery nor involuntary ser-
vitude in this State, otherwise than for the punishment of
crimes, whereof the party shall have been duly convicted.”
The restrictive clause, though not so literally copied, is pre-
served with equal care in the constition of the United States:
“No person held to service or labor in one State, under the
laws thereof, escaping into another, shall, in consequence of
any law or regulation therein, be discharged from such ser-
vice or labor, but shall be delivered up on the claim of the
party to whom such service or labor may be due.” But
neither the Constitution of the United States nor that of
Ohio pretends to alter, enlarge or diminish the ordinance of
1787. It is still in full force, and paramount to both.
Mark you then their peculiar language. ‘“ Escaping into”
are the words employed in each and all of these documents.
“ Escaping” implies a voluntary act of the slave, contrary to
the will of his master. If he thus escape, he drags his chain
with him. He may flee from State to State all over the
Union, and into what State soever he may flee, where the or-
dinance of 1787, or the Constitution of the United States is in
foree—“he drags at each remove a lengthened chain,” but the
moment he sets his foot on the soil of the North-Western Ter-
ritory, by any other means than by his own voluntary escape,
he becomes ipso facto free. Every lock and bolt and link of

his chain melts into thin air; and his emancipated limbs,
28 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

charmed by the spirit of freedom, are proof against all future
manacles.

These restrictive clauses, by all known and universal rules
of construction, must be strictly construed. That in the or-
dinance, on which both the others are founded, should be
strictly construed, because it is a proviso, a saving clause,
limiting and restricting the general rule of the law. Free-
dom is the rule; slavery, in a certain case, is the exception.
The body of the law protests forever against slavery and in-
voluntary servitude. The saving clause provides that escap-
ing slaves may be reclaimed. The great object of the law is
first to be considered, and if the exception were wholly re-
pugnant to the law it would be void. It is not wholly re-
pugnant to the law; but it is restrictive of its ends, and must
be understood literally—to mean what it says, and no more.

But there are still higher reasons for the strict construction
of these clauses. They are repugnant to the law of nature,
by which all men are created equal and endowed with the
unalienable right of liberty. They are repugnant to the law
of nations, which recognizes no right on the part of a slave
owner to pursue an escaping slaye beyond the territorial lim-
its of his own State, and which makes the bondman free the
moment he sets his foot upon the soil of a State where slav-
ery does not exist. They are repugnant to the common law
_of England, from whence we derive our civil jurisprudence,
and to the common law of our own country, which does not
recognize property in human beings. More than all, they
are restrictive of human liberty, and must be strictly con-
strued—as much so as criminal ‘statutes, under which the life
and liberty of a citizen may be taken away

Hitherto we have discussed abstract principles, applicable
alike to every case. Let us for a moment look at what may
be called Jerry’s peculiar ease, and sec whether he is a slave

or a free man, He has been twice in Ohio, and it is remark-
THE STATE OF OHIO vs, FORBES AND ARMITAGE. 29

able that he did not “escape” thither in either case. He
has returned twice to Kentucky, without his own volition in
either instance. The second time he visited Ohio, it is not
pretended that the present claimant, Mrs. Long, did not give
him permission to go. He asked permission to return for
his clothes, and she granted it. Where? To the place where
he had served Allgaier. Where was that? At Cincinnati,
where Mrs. Long had learned that Allgaier had taken him,
and to which she directed her letter, threatening him with a
law-suit if he did not bring Jerry back. At this time, then,
he went by permission of his mistress; as much so as if she
had come herself, with Jerry attending on her as a servant.
He went by her direction, on her business, to a State where
slavery is not tolerated; and if, indeed, we can suppose he
was a slave after his return with Allgaier, this last act made
him free. In the case of Ohio vs. Hoppess (Western Law
Journal, 270), tried on habeas corpus before Judge Read of
the Supreme Court of Ohio, this doctrine was clearly laid
down. And although the facts of the case, in his opinion,
did not authorize the discharge of Watson from the defend-
ant’s custody, the Judge lays down the doctrine thus: “If
a master bring his slave into the State of Ohio, he loses all
power over him, The relation of master and slave is strictly
territorial. If the master take his slave beyond the influence
of the law which creates the relation, it fails; there is noth-
ing to support it; and they stand as man and man. The
slave is free by the laws of the State to which he has been
brought by the master, and there is no law authorizing the
master to force him back to the State which recognizes and
enforces the relation of master and slave.”

The same doctrine is laid down by Justice McLean in the
Circuit Court of the United States, in the case of Jones vs.
Vanzandt (2 McLean’s R. 596), which was an action brought
under the act of Congress by the master against a citizen
30 =s- THE STATE OF OHIO vs, FORBES AND ARMITAGE.

of Ohio, for aiding fugitive slaves to escape from labor, etc.
The Judge holds this clear language: “ Now if the slaves
left the service of the plaintiff, with his consent, or in any
other mode, except as fugitives from labor, and came into
the possession of the defendant, as alleged, the plaintiff has
no right to their services, and still less to recover from the
defendant their value.”

So, too, the rule was held by Chief Justice Shaw of Mas-
sachusetts, in the case of Massachusetts vs. Avis (Law of
Slavery, 357). In this case the slave Med was carried into
Massachusetts for a very temporary purpose indeed—merely
to wait on her mistress while on a visit to her father and
friends in Boston, and then to return to New Orleans. The
opinion of the Judge is a very elaborate one, and is, in
itself, a valuable digest of the law of slavery; and after
examining numerous authorities from different States, he
comes to this conclusion: The “constitution and laws of the
United States, then, are confined to cases of slaves escaping
from other States, and coming within the limits of this State
without the consent and against the will of their masters, and
can not, by any sound construction, extend to a case where
the slave does not escape, and does not come within the lim-
its of this State against the will of his master, but by his
own act and permission. This provision is to be construed
according to its plain terms and import, and can not be ex-
tended beyond this, and where the ease is not that of an es-
cape, the general rule shall have its effect. It is upon these
grounds, we are of opinion, that the owner of a slave in
another State, where slavery is warranted by law, voluntarily
bringing such slave into this State, has no authority to de-
tain him against his will, or to carry him out of the State
against his consent for the purpose of being held in slavery.”

In support of this doctrine, Chief Justice Shaw cites two

cases, amongst others, which I beg Icave to refer to, not be-
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 31

cause they are stronger than fifty others which might be
cited, but because they are the decisions of one of the best
and purest of the Judges of the United States court, himself
born and educated in a slave State and a slave-holder. I
refer to the decisions of Justice Washington in the cases of
Butler vs. Hopper (4 Wash. C. C. Rep. 396); and Ex parte
Simmons (1 Wash. C. C. Rep. 499). In the former of these
cases it was held in terms, that “the provision of the consti-
tution does not extend to the case of a slave voluntarily
carried by his master into another Srate, and there leaving
him under the protection of some law declaring him free.”
This was a case somewhat peculiar, as the master claimed
the benefit of a law of Pennsylvania, allowing members of
Congress and sojourners to retain their domestic slaves ; both
of which rights he had forfeited; the one by ceasing to be
a member of Congress, and the other by becoming a resident.
But the case is an authority to this point; that the claimant
of a slave, to avail himself of the provisions of the Constitu-
tion of the United States, must bring himself within their
plain and obvious meaning; that they will not be extended
by construction ; and-that the clause in the constitution is
-confined to the case of a slave escaping from one State and
fleeing into another. The latter case was an application,
under the act of Congress of 1793, for a certificate of owner-
ship, to enable the master to carry away.a slave; and the
same judge held, “that both the constitution and the laws
of the United States apply only to fugitives, escaping from
one State and fleeing into another, and not to the case of a
slave voluntarily brought by the master.” In the case at
bar, the slave neither escaped from one State, nor fled into
another.

What has been said in relation to the second time Jerry
went to Ohio, applies with equal force to the first; perhaps

with greater force in Kentucky.
3
32 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

Tam well aware that it has been held by the Court of Ap-
peals of Kentucky, in the case of Graham vs. Strader, and
in some older cases, that,'for the temporary purpose of a mere’
sojourner, a slave-holder may take his slave into the North-
Western Territory without forfeiting his property. But there
is no case in the books in Kentucky or elsewhere, that I
have met with, where it has been decided that a man actually
domiciled in Ohio, as Allgaier wax, may keep a slave at
hard labor for six months, without an infraction of the con-
stitution or the ordinance, which forever inhibit “slavery or
involuntary servitude” within the territory into which he
has voluntarily gone. Surely no judicial tribunal has at-
tempted to extend the municipal law of Kentucky, by which
alone slavery exists here, into Ohio.

If slavery is strictly local, and its limits territorial, then,
on every principle of State sovereignty, an obligation arises
on both sides to let each other and each other’s local and
domestic institutions alone. “ Hands off” is the principle.
The people of Ohio have no right to say, you shall, or shall
not do this or that with your slaves. If it be a sin against
heaven, upon you and your children-be the consequences.
If it be a political evil, you and your children shall be the
sufferers. But as for us, we have no right, no power, and, I
trust, no disposition to intermeddle. But while we thus dis-
claim all right to intermeddle with the institutions of Ken-
tucky, we insist upon the mutuality of the obligation. Sla-
very may not come upon the soil of Ohio, or even leave its
footprint in the sand above the low water mark. The or-
dinance of 1787, like the blessing of a patron saint, infused
into the soil of Ohio an incapacity to support the footsteps
of any other than a free man. The name of Nathan Dane
is as dear to us as the name of Danicl Boone is to Kentucky.
We are not privileged to inter his bones and erect his mon-
THE STATE OF OHIO vs. FORBES AND ARMITAGE, 955

ument at our capital”* But he has.a more enduring monu-
ment in the results of his far-seeing policy. This ordinance
has clothed thousands of ficlds with waving corn; covered
thousands of hills with bleating sheep; set in motion a thou-
sand plashing water-wheels and ten thousand busy spindles ;
erected thousands of free, public schools; and made thou-
sands of hardy intelligent peasants, as with their sun-
burnt sons at their heels, each tills his hundred and sixty
acres of land, exult in the thought that there is no State
like the State of Ohio. Yet if the doctrine should be estab-
lished, that this ordinance is only to affect the rights of
those who reside within the North-Western Territory, and
that those who reside out of it, though parties to the com-
pact, are not bound by it, but may carry their slaves with
them, when and where they please, to work an hour,'a day,
a week, a month, or six months; then this ordinance, the
poor man’s shield, the free man’s boast, the inspiring soul of
the North-Western Territory, is frail and worthless as a
withered leaf driven before the antumnal winds.

Let us take a plain case, and see whether the domicile of
the master can affect the question. A rich slave-holder in
Kentucky, opposite Cincinnati, quarters on the bank of the
river one thousand able-bodied slaves, and, furnishing each
with a horse and dray, sends them over every morn-
ing at sunrise to compete with the free laborers of Cincin-
nati, requiring that each shall be in quarter in Kentucky
before the sun goes down, lest any one might suspect that
either the slave or his master was domiciled in Ohio. May
he exercise this privilege? By the Constitution of the United
States, “the citizens of each State shall be entitled to all the

privileges and immunities of citizens in the several States.”

‘

 

* The remains of Daniel Boone had recently been removed from Mis-
souri and deposited in a new cemetery at Frankfort, where an elegant
monument was to be erected to his memory.
34 THE STATE OF OHIO vs. FORBES AND ARMITAGE,

Thus, the life, the liberty, the character and the property of
every Kentuckian who comes on the soil of Ohio, are as sacred,
not merely to the law, but to the hearts of the Ohio people,
as if they were their own. But may a citizen of Kentucky,
merely because he is domiciled in Kentucky, exercise in
Ohio a privilege denied by the ordinance and by the consti-
tution of Ohio to her own citizens? And is the law of
“escaping slaves” applicable to each of these one thousand
negroes, every evening when he returns to his quarters? If
so, then slavery and involuntary servitude may be superin-
duced on Ohio by.any citizen of Kentucky, or by any citi-
zen of Ohio, who shall choose to build his house south-east
of the Ohio River, in spite of all the ordinances and con-
stitutions in the universe.

Let me ask you, sir, what was the condition of Jerry dur-
ing the six months he worked in Ohio? Was he a free man

> some gentlemen on

oraslave? ‘He was a fugitive slave,’
my left suggests, and I thank him for the suggestion. And
pray, sir, what is a fugitive slave? \The ordinance of 1787,
the Constitution of the United States, and the act of Con-
gress of 1793, all define it in the same way. A person ow-
ing labor or service, etc., “ escaping into” the territory. The
word “ fugitive” does not occur; the less classical but more
pregnant word “Escaping” does. Did Jerry come into
Ohio as an “ escaping” slave? He no more “ escaped ” into
Ohio with Allgaier, than he “escaped” out of it with Forbes
and Armitage. Can any man, bound hand and foot, and,
without his own volition, carried across the river into an-
other State, be said to “escape”? Jerry, to be sure, was not
literally bound hand and foot; and, to the observation of
one who did not know his condition, seemed to have all the
attributes of a man. But not so. The fetters of the law
were upon him. He did not possess, in his own right, one
attribute of a man. He was a slave—the slave of Allgaier,
THE STATE OF OHIO vs. FORBES AND ARMITAGE, 35

who for the year had as complete dominion over him as Mrs.
Brown could have had. It was his duty to feed, clothe,
house and physic him. It was his privilege to command,
govern and punish him. He said to him, go, and he went ;
come, and he came; do this, and he did it. Jerry’s heart
might have belonged to some one else, but- his hands were
the hands of Allgaier; his feet were the feet of Allgaier; his
will was the will of Allgaier; and by the will of Allgaier,
and not his own, he was brought to Ohio. Call you this
an escaping slave ?

Again I ask your Honor, what was the condition of Jerry
during the six months he served Allgaicr in Ohio? He went
to Ohio a mere chattel, without a hand, a foot, a will or an
action of his own; and could, in no sense, be considered an
cseaping slave. He could not be a slave in Ohio, other than
an escaping one, else the ordinance of 1787 is perfectly nuga-
tory. If Jerry was not in a state of FREEDOM during this
six months, he was in a state of profound mystery. I hope
one day to see with better eyes and hear with better ears,
but, while I remain in this “muddy vesture of decay,”
I shall never be able to penetrate this mystery.

I have heard the fine-spun distinction taken between the
right to be free and freedom itself. But, however much
force there may be in this distinction in a State where a
colored man is prima facie a slave, and where persons are
sometimes wrongfully kept in slavery, who by law are enti-
tled to be free, it can have no force whatever where a slave,
without “escaping,” comes into a State where every man,
not a criminal, is not only prima facie but absolutely free.
This distinction was repudiated in the case of Lunsford vs.
Coquillon (14 Matthews’ Rep. 401), and the rule held that,
in a free State, whosoever was entitled to. freedom, was in
fact already free. Being free then, in the language of Jus-
tice Matthews, before cited, “but for a moment,” he could
36 THE STATE OF OHIO Us. FORBES AND ARMITAGE.

never again be reduced: to bondage. Never! Not even by
his own voluntary act, for, the right of liberty being unal-
ienable, he could neither sell it, nor give it away, nor in
any other manner forfeit it, except by the commission of a
crime. The runaway slave may return to his master and re-
main a slave, because by “escaping” he does not change hix
condition, and he never was frec; but the man, once made
free by operation of law, can never again become a slave.
But it is useless, with the existing state of facts, to moot
the question whether a freed slave may voluntarily alienate
his freedom and go back into slavery; because, in this case,
Jerry came as he went, not by his own will, but by the will
of Allgaier. And in thus carrying a free man into slavery,
Allgaier committed an act of tortious violence, which could
in no way affect the rights of Jerry. I say his act was tor-
tious, although no physical violence may have been offered ;
because it matters nothing whether an act of oppression be
perpetrated under pretense of authority where none exists,
or by physical violence without such pretense. Jerry was a
free man without knowing it. Allgaier enslaved his mind—
riveted on his imagination the chains of the law—and, thus
imprisoned and manacled, czrried him back and delivered
him to his former owner. This could in nowise be consid-
ered the voluntary act of Jerry, nor so construed as to affect
his rights. And so the rule was held by Justice Martin of
Louisiana, in the case of Lunsford vs. Coquillon, just cited.
So, too, the rule was recently held by Justice McLean, in the
Circuit Court of the United States in Indiana, in a case not
yet officially reported, where the master had brought his
slaves from Kentucky within the limits of a free State, and,
taking the alarm lest they should be induced to leave him,
took them, for greater security, to the State of Missouri. In
this case, the Judge held that it was not necessary to pass
upon the question whether the slaves might waive their right
THE STATE OF OHIO US. FORBES AND ARMITAGE. 37

of freedom after it had accrued, and again return into slay-
ery, because in that case they passed over to Missouri in cus-
tody of the master, as slaves; that the master was guilty of a
tort in thus taking them over; and that their rights could
not be affected by this act. On this point I need not mul-
tiply cases. The books are full of them; and, if they were
all blank on the subject, common sense would speak out and
say that a slave, while in the custody of his master, has no
will. This is the great point of distinction between a free
man and a slave. The free man has a will; the slave has
none. Then, whatever rights Jerry may have acquired in
going to Ohio by the will of his master, came with him
back to Kentucky, because they could not be taken from
him by the act of Allgaier.

But we are met with the fact that Allgaier was a bailee
merely. Agreed. He was a bailee for hire for the term of
one year, and his dominion over Jerry, though complete while
it lasted, was of limited duration. But a bailee can no more
establish slavery in the North-Western Territory, by carry-
ing slaves into it and working them, than their lawful owner
can. The prohibition is broad and comprehensive. “ There
shall be neither slavery nor involuntary servitude within
the territory,” without any exception in favor of bailees or
bailors. There shall be no slave labor in the territory ; and
no person can be reclaimed as a slave, unless he shall have
escaped into it.

We are told that it would be a great hardship if Allgaier,
by his faithlessness, should be permitted to deprive this lady
of her property. If I remember rightly, this Allgaier was a
gambler by profession ; and if so, it was his trade to rob poor
women of their property and poor children of their bread,
and leave them without remedy. But Mrs. Long was not
left without remedy. She had her right of action against
Allgaier for the loss of Jerry’s services; and that was her
38 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

only remedy. This remedy she seems to have understood
well enough, when she wrote a letter to Allgaier at Cincin-
nati, threatening to sue him if he did not immediately bring
back her slave.

It is said, indeed, by lawyers, that a bailee for hire can-
not so dispose of the bailor’s property as to hazard the rights
of the bailor; and that, so far as the rights of the lawful
owner are concerned, there is no difference between a breach
of trust and larceny. And applying this principle of law to
the present case, Allgaier’s act, in taking Jerry to Ohio, con-
trary to the injunction of his mistress, no more affects her
rights than if he had been stolen, or taken away from her
by force. This principle of law is doubtless correct in rela-
tion to property in ordinary chattels, but can have no appli-
cation to property in human beings. If Jerry had been a
horse or any other animal, in which, by the law of nature,
by the common law, and by the usage of all civilized na-
tions, property exists, Allgaier could not have so disposed of
it, not even by the shrewdest slight of the gambling craft,
but that the lawful owner could have taken it by replevin,
or some other legal process, wherever found. But there is
this wide distinction between property in animals and prop-
erty in man: property in animals is sanctioned by the law
of nature and the common law; is universal and binding
everywhere: property in man is contrary to the law of nat-
ure, contrary to the common law, strictly local, and binding
only within the territorial limits where slavery exists by
force of the municipal law. The legal notion of personal
property is, that it is that sort of property which may at-
tend upon a man’s person wherever he goes, in contradis-
tinction to that which is fixed and immovable. And upon
this hypothesis we say, a man’s property acquired in one
State, by the comity of nations is his property in every other
State. Admit this principle in regard to property in men,
THE STATE OF OHIO ts. FORBES AND ARMITAGE. 39
and whither will it lead you? or, whither will it not drive
you? A man acquires property ‘in a slave in Kentucky,
where, by the municipal law, such property is recognized: it
is at his option to establish slavery in every other State in
the Union, wherever he may choose to travel, for the slave,
being personal property, may attend on his person wherever
he goes. But how shall he keep up this relation of master
and slave, where, by the organic law of the State, and by a
compact of still higher obligation, to which he himself is a
party, it is declared that there shall he neither slavery nor
involuntary servitude? The moment he crosses the terri-
torial line, this relation ceases, because there is no law to
support it. And with it perish all the rules of law regulat-
ing property in men, and all the ordinary remedies by which
such property is guarded. No such property exists in Ohio.
No action of repleyin, nor any other action, would lie for the
recovery of such property. The only instance in which one
human being can lay hands on another, and claim him as his
own, is where a person lawfully held to labor or service in
one of the Slave States, shall escape into the State of Ohio.

This brings us back to the old question: Did Jerry “ escape
into”? Ohio? J think I have shown conclusively from the
facts, that when Jerry left the State of Kentucky, where he
was lawfully held to labor or service, he was a slave without
volition ; that he.was subject to the will of one having abso-
lute control over him; that he went into Ohio in obedience
to the will of a master who had the power to command him,
to whip him, to fetter him, and to carry him when and where
he listed; and that, under the circumstances, he could be
considered in no sense an escaping slave.

Jerry Phinney, then, at the time of his seizure by Forbes
and Armitage, was, by operation of law, a free man of Ohio.
Disfranchised, indeed, of the right to hold office, the right to
vote, the right to testify; but, so far as it regarded the right
40 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

of any one to claim his labor, or restrain his liberty, he was
as free as any of us. No one had a right to pursue him,
either in person or by agent; and these men, by assuming
such agency and carrying him away, have placed themselves
in the position of kidnapers and fugitives from justice, and
without the protection of the laws of Kentucky.

I have now urged all the points which I consider material
to the issue, and laid down as fairly as my limited time for
investigation and my feeble abilities would allow, what I
believe to be the law of the case, both as it regards the or-
ganic law of the nation, and the municipal laws of Kentucky
and Ohio; what is held to be the law in Ohio, what is held
to be the law in Louisiana and other States where slavery
exists, and what I believe to be the common law of all Chris-
tian and civilized nations.

But I have another duty to discharge. I can not sit down
without thanking the Court for the indulgence and facilities
afforded me; vacating all other business for my accommoda-
tion, and tendering every means in its power to dispatch my
mission. The authorities have received me promptly and
respectfully, and the citizens have displayed not merely the
civility due a stranger, but the courtesy and kindness due to
a brother of the Union. For all this I feel that I owe an
expression of hearty gratitude; and whatever other message
the result of the deliberation of the Court may require me
to bear back to the authorities of Ohio, I shall feel it a duty,
which I shall execute with the livelicst pleasure, to tell them
that I have discussed the subject of slavery in the capital of
Kentucky, with boldness and safety; surrounded by slave-
holders, who treated me with the utmost consideration and
respect.
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 41

OPINION OF THE COURT.

JupGE Brown decided the case as follows:

Alexander C. Forbes and Jacob Armitage, having been
arrested by the sheriff of Franklin county, under a warrant
from the executive, were brought before me in pursuance of
the mandate thereof. The warrant, after reciting that they had
been demanded by the Governor of Ohio, as persons charged
by affidavit before Alexander Patton, a justice of the peace of
Franklin county, Ohio, with seizing upon and by violence and
kidnaping in restraint of his liberty, with intent to trans-
port out of the State of Ohio, one Jeremiah Phinney, said to
be a freeman of Ohio, but claimed as a slave of Kentucky,
directed the said sheriff to apprehend and arrest the said
Alexander C. Forbes and Jacob Armitage, and, upon their
apprehension, to bring them before some circuit judge of this
Commonwealth, that the said circuit judge may proceed, by
proper and legal testimony, to inquire into the matter so far
as shall be necessary to ascertain the identity of the said
Forbes and Armitage, and their guilt or innocence in the
premises, according to the statute of Kentucky, of 27th Jan-
uary, A. D. 1820, in relation to fugitives from justice ; and
if they, the persons mentioned in this my warrant, be iden-
tified as offenders against the laws of Ohio, and be found
not entitled to the benefit of the provisions of the said act
of 1820, that the said judge may order them to be delivered
up to William Johnston, Esq., who has been duly authorized
by the Governor of the State of Ohio to receive and convey
the said Alexander C. Forbes and Jacob Armitage to the
State of Ohio, to be dealt with according to law, ete., cte.
42 THE STATE OF OHIO Us, FORBES AND ARMITAGE,

The facts proved upon the inquiry were substantially these :

Jerry Phinney was born a slave in the house of Hezekiah
Brown, of a colored woman named Rose. This woman and
Jerry were held by Brown, not in his own right, but as the
property of his wife; Rose having belonged to a former hus-
band by the name of Long, by whom Mrs. Long, previous to
her marriage with Brown, had eight or nine children—among
others, Thomas Long. In the last will and testament of
Hezekiah Brown he loaned to his wife a number of articles
of property, real and personal, and amongst other things the
boy Jerry, to be held during her natural life, and, after her
death, to her heirs. After the death of Brown, his execu-
tors, Henry Brown and John D. Richardson, executed a
paper, relinquishing to Mrs. Brown, who survived her hus-
band, all claim on the part of Brown’s estate to the boy
Jerry, and declaring that they knew him to be her prop-
erty and part of her former husband’s estate. Thomas
Long, one of Mrs. Brown’s sons by her former husband,
purchased in his life-time the ‘interests of all the other heirs
except three, and died, leaving Bathsheba Long his widow,
who administered upon his estate, and purchased in her own
right the remaining interests of the other heirs, except the
third of one share, which is outstanding. Mrs. Long has
settled up and made distribution of all her husband’s estate
except Jerry. One of her children is still a minor.

Sixteen or seventeen years ago Mrs. Brown, after her hus-
band’s death, hired the boy Jerry to a gambler by the name
of Allgaier, who represented that he was going to work him
on a farm in Woodford county, Kentucky—with a stipula-
tion on Allgaicr’s part that he should not take him out of
the State.

Allgaicr took Jerry to the State of Ohio, and kept him in
his service there for six months. When learning the fact,

Mrs. Long, who held the remainder in Jerry, wrote Allgaier
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 43

a letter, directed to him at Cincinnati, requiring him to re-
turn Jerry immediately, and threatening to sue him if he did
‘not comply ; upon which Allgaier returned him to his mis-
tress, Mrs. Brown, who was still living, now deceased. A
few weeks after, Jerry asked permission to return to his last
place of residence for his clothes, which his mistress gave
him, and he went away, and never returned till he came
back in custody of Forbes and Armitage. Mrs. Brown ad-
vertised him as a runaway slave, and offered a reward for
his apprehension ; and since then, knowing that he was in the
State of Ohio, Mrs. Long has given three different powers of
attorney, at different times, to different persons, to bring him
back, but always failed. A short time ago she, Mrs. Long,
executed regularly, according to law, a power of attorney to
Forbes, whom she at the time had never seen, to apprehend
and return Jerry to her at Frankfort, Kentucky. It is ad-
mitted that the prisoner at the bar is the same Forbes, and
that the prisoner Armitage acted in the matter of Jerry’s
seizure in conjunction with Forbes.

All the questions of law and fact in any respect bearing
upon the foregoing state of the case have been argued with
great zeal and distinguished ability by the gentleman repre-
senting the State of Ohio, and the counsel retained by the
prisoners, and I regret the necessity of an immediate decis-
ion, and that the other duties of the court now in session
prevent me from presenting and noticing in detail the va-
rious positions respectively taken to illustrate and sustain
points so fully and ably debated by them.

It is urged in substance by the counsel for the State of
Ohio:

1. That the statute of 1820, of Kentucky, is at variance
with the Constitution ‘of the United States, and the. law of
Congress of 1793, and void.

2. That if the statute of 1820 be void, the court has juris-
44 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

diction only of the question of identity, under the statute of
1815.

3. That if the statute of 1820 be valid, and the court has
jurisdiction, then it is insisted that, in view of the facts as
proved, Jerry is, by the paramount law of the land, free,
and can not be regarded as an escaping slave.

4, That if Jerry be a slave, and the power of attorney
valid for the protection of Forbes, still it is not so as to
Armitage, as there is no proof of the express approbation
of the owner as to him.

The converse of these propositions is insisted on by the
counsel for the prisoners. He also insists that the constitu-
tionality of the act of 1820 is not necessarily involved in
this inquiry; that the executive is the sole judge of the
terms and conditions upon which he will order the surren-
der of a fugitive, and that he alone is competent to decide
whether he will or not be controlled by the act of 1820.

The second section of the fourth article of the Constitu-
tion of the United States, and the act of Congress of 1793,
respecting fugitives from justice, so far as they prescribe the
mode for the arrest and delivery of fugitives, are addressed
exclusively to the executive. The Constitution enjoins the
duty, and the act of 1793 prescribes the mode and condi-
tions under which that duty shall be performed. It is made
strictly, and in terms, an executive act. The executive alone
is required to order the arrest and direct the delivery. In-
deed, in the case of the State of South Carolina, ex parte
‘Willard and wife, ads. the State of New York, it was held
that the demanding, apprehending, and conveying away fugi-
tives from justice, under the provisions of the Constitution,
were ministerial acts, wholly intrusted to the management
and discretion of the executive, and were so exclusively of
executive cognizance that they were excepted out of the State
habeas corpus act of South Carolina by the operation of the
THE STATE OF OHIO US. FORBES AND ARMITAGE. 45

Constitution and laws of the United States. And when cer-
tain persons were brought up before a judge of that State by
habeas corpus, who were under arrest by order of the execu-
tive of South Carolina, for the purpose of being delivered to
an agent of the executive of New York, who had demanded
them as fugitives from justice in that State, their discharge
was moved on various grounds; but the judge decided that
he had no power or authority to discharge the prisoner, or
in any way whatever to interfere with the mandate of the
executive. (See Sergeant’s Constitutional Laws, page 395.)

The act of Kentucky, approved 27th January, 1820, in re-
lation to fugitives from justice, imposes restrictions upon the
delivery of fugitives by the executive, which restrictions are
not found in the act of Congress of 1793, and it must rest
with the executive to decide whether he will recognize these
restrictions as binding on him, or whether, disregarding the
said act, he will direct an unconditional delivery of the pris-
oners.

The executive has ordered the prisoners to be delivered
up on condition that they are not within the restrictions of:
the act of 1820. Should I, by my mandate, direct them to
be delivered to the agent of Ohio upon any other terms than
those prescribed by the executive, I would not only be exer-
cising executive power, but would be exercising the same in
direct hostility to the will of the executive.

As auxiliary to the action of the executive, it only remains
to inquire whether a state of case exists, under which a de-
livery is directed.

The act of 1820 contains the following provisions:

“Sro. 1. Be it enacted by the General Assembly of the Com-
monwealth of Kentucky, That in all cases where any negro
slave or slaves have, or may hereafter run away from his,
her or their owner or owners, and take protection in any of
the United States, and the owner or owners of such slave
46 THE STATE OF OHIO v8. FORBES AND ARMITAGE.

or slaves, by themselves, their agent or any other person with
their approbation, shall have removed, or shall hereafter re-
move any such slave or slaves from any other State within
the United States into this Commonwealth, and he, she or
they have been, or shall hereafter be indicted for the same,
in any one of the United States, and the Governor of said
State shall demand of the Governor of this State the person
or persons so indicted, or who may hereafter be indicted, to
be delivered to him agreeably to the Constitution of the
United States and this State, it shall be the duty of the Gov-
ernor of this Commonwealth, upon such requisition being
made according to law, to issue his warrant to the sheriff of
the county where such supposed fugitive may reside, if he
has a known place of residence, requiring him to take into
custody such supposed fugitive or fugitives from justice as are
named in such warrant and indictment, and bring him, her
or them before a circuit judge; and if the circuit judge
shall be of opinion that the person or persons named in
such warrant and indictment, are the owner or owners of the
slave or slaves named in such indictment, or that he, she or
they acted as the agent, or by the approbation of the owner
or owners of such slave or slaves, it shall be the duty of
the judge to discharge the person or persons taken by virtue
of said warrant, out of custody.

“Sec. 2. Be it further enacted, That if the judge shall be
of opinion that the person or persons taken into custody by
virtue of the Governor’s warrant, is not the owner or owners
of the slave or slaves, in the indictment found against him,
her or them, in any one of the United States for stealing and
conveying a slave or slaves which are not their own prop-
erty ; or that he, she or they did not act as the agent, or by
the approbation of the owner or owners of such slave or
slaves, then it shall be the duty of the judge to remand such
person or persons into custody again, to be dealt with accord-
ing to the laws now in force on that subject.”

These questions are embraced in the inquiry under the
act:
1. The identity of the prisoners?
THE STATE OF OHIO vs. FORBES AND ARMITAGE. 47

2. Was Jerry an escaping slave?

3. If Jerry was an escaping slave, did the prisoners re-
move him from Ohio, as the authorized agents, or by the ap-
probation of his owner?

The identity of the prisoners, as the persons demanded, is
admitted. The proof is satisfactory that Forbes acted under
a regularly and duly authenticated power of attorney from
Mrs. Long, and that Armitage acted with him and at his
instance, and a just construction of the act must regard Ar-
mitage, when thus acting, as acting under and by virtue of
the power of attorney, and with the approbation of Mrs.
Long.

It remains to inquire whether Jerry, at the time of his
removal from Ohio, was a fugitive slave.

It is true this question must be tested by the paramount
law of the land, and did the evidence exhibit the case of
first impression, every aid should be derived from and re-
spect shown to the adjudications of our sister States, in as-
certaining what the law is upon the case as stated. But
when the question has been fully adjudicated by the supreme
court of our own State, such decision must be taken as con-
clusive evidence of what the law is. In this case Jerry was
born a slave. He never was taken beyond the limits of
Kentucky with the approbation or consent of his owner.

His trip to Cincinnati and his continuance there in the ser-
vice of Allgaier, were without the knowledge and against the
will of his owner. The bailment to Allgaier was limited
both as to time and place. By the contract of hire he was
expressly inhibited from removing him from the State of
Kentucky. The act of Allgaier in taking him to Cincin-
nati, could not be more prejudicial to the rights of his owner
than if he had been taken there by a mere tresspasser, or
had been stolen and then removed.

When we recollect the spirit of compromise and concession
A
48 THE STATE OF OHIO vs. FORBES AND ARMITAGE.

under which the constitution was adopted, and the deep in-
terest which many of the States felt in the question of fu-
gitive slaves, it can scarcely be seriously contended, that the
parties to that instrument ever intended that the right of
service should, under such circumstances, be lost to the owner,
‘and his power of reclamation cease. But the supreme court
of this State in the case of Graham vs. Strader (5 B. Mun-
roe 173), have expressly decided, that if the bailee of a slave,
even with the assent of the owner, take him to Cincinnati
for a temporary purpose, and while there employ him in his
service, and the slave afterwards returns to Kentucky, no
right of freedom is thereby acquired. That casé must be re-
garded as conclusive of the present question. The subse-
quent elopement of Jerry, after his return to Kentucky, un-
der pretense of going to procure his clothes, made him an
escaping slave.

It results therefore, that the facts which have been proved
upon the inquiry, show that the prisoners are within the pro-
tecting clause of the act of 1820, and that the warrant of the
executive does not justify an order for their delivery to the
agent of the State of Ohio. All of which the sheriff is di-
rected to certify to his excellency, the governor of Kentucky,
upon the return of his warrant.
The State of Ohio vs. Fisher W. Ames.

HAMILTON CRIMINAL COURT.

Before Hon. Jacos Frryn, Judge,

A. D. 1858.

SUDDEN QUARREL: SELF-DEFENSE: MALICIOUS INTENT.

PRELIMINARY STATEMENT.

On the first day of September, 1853, James C. Hall, Esq.,
and Dr. Fisher W. Ames, neighbors, and, at one time,
friends, met upon Fourth street, Cincinnati, and had a fight,
unexpectedly brought on, in which Mr. Hall was shot by
Doctor Ames with a small pistol, which the latter had usu-
ally carried in his vest pocket. There had been intimacy be-
tween the Hall and Ames families, which had been interrupt-
ed by misunderstandings; but no personal bickerings had
taken place between Mr. Hall and Doctor Amex until this
encounter.

The newspapers of the city, with apparent malignity, took
the matter up, and berated Doctor Ames in a manner cal-
culated to stir up popular fury, and to prejudice his case when
he should be brought to trial.

Mr. Hall recovered from his wounds, and Doctor Ames
was indicted for malicious shooting with intent to kill,
arraigned before the criminal court of Hamilton county,
tried and acquitted. The State was represented by A. J.
Pruden, Esq., prosecuting attorney, and T. A. O’Connor,
Esq., whilst Judge Johnston conducted the defense.

The trial excited great popular interest, on account of the
: (49)
50 THE STATE OF OHIO vs, FISHER W. AMES.

high esteem in which Mr. Hall was held by the community,
and of the clamor of the newspapers. An impartial jury
was secured with difficulty. In explanation of some allu-
sions to himself in the argument, it may be stated that Judge
Johnston was in feeble health at the time of the trial.

In view of the state of public opinion and of the appli-
ances brought to bear to secure a conviction of Doctor Amee,
his acquittal was looked upon as a remarkable result.
THE STATE OF OHIO vs. FISHER W. AMES. 51

ARGUMENT OF JUDGE JOHNSTON.

May IT PLEASE your Honor;
Gentlemen of the Jury:

I have neither time nor strength to waste on
preliminaries. My client stands indicted under the 24th
section of the Crimes Act, which runs thus: “That if any
person shall maliciously shoot, stab or shoot at, any other
person, with intent to kill, wound or maim such person;
every person so offending, shall be deemed guilty of a mis-
demeanor, and, upon conviction thereof, shall be imprisoned
in the penitentiary, and kept at hard labor, not more than
twenty years, nor less than one year.”

An analytic mind will see at a glance that this section,
brief as it is, includes nine distinct crimes:

1. Maliciously shooting, with intent to kill.

Maliciously shooting, with intent to wound.
Maliciously shooting, with intent to maim.
Maliciously stabbing, with intent to kill.
Maliciously stabbing, with intent to wound.
Maliciously stabbing, with intent to maim.
Maliciously shooting at, with intent to kill.
Maliciously shooting at, with intent to wound.
Maliciously shooting at, with intent to maim.

The indictment is framed on the first of these crimes alone ;
and the defendant is called on to answer for maliciously
shooting with intent to kill only. The second shot fired,
supposed to be lodged in the door post, may serve to illus-
trate the defendant’s state of mind at the time; but it is not
the crime charged in the indictment. He is now called to

1 MS or B® go bo
52 THE STATE OF OHIO vs. FISHER W. AMES.

answer for the act of shooting, the intent to kill and the
motive of malice.

Tgsthis charge, our answer is two-fold:

1. The shooting was done in self-defense, and, in law, is
excusable, even if the wound had proved fatal.

2. It was done on a sudden quarrel, without malice, and
is not within the provision of the statute.

Gentlemen, you will now excuse me a few minutes, while
I present to the court, in your hearing, the law of the case,
according to my poor judgment, as I shall ask the Court, at
the close of the argument, to give it in charge to you.

I shall ask your Honor to charge the jury as follows:

1. If the jury believe, either that the defendant acted in
self-defense, or upon a sudden quarrel, in either case this
indictment can not be maintained.

2. If they believe the parties were once separated, and
that the onset was renewed by Hall so suddenly and so
fiercely, that the defendant had no time to retreat without
increasing his danger, he would have been excusable in kill-
ing Hall without making an attempt to retreat.

3. If Hall thus renewed the onset under circumstances
which induced the defendant to believe he was armed with
a bowlder, or other deadly or dangerous weapon, although
he may have been deceived as to Hall’s movements by de-
fective eye-sight or ‘otherwise, he was excusable in using
such means of defense as might be proper in the state of the
case as it presented itself to his own mind at the time.

4. If the act was done under a reasonable apprehension,
or under a false apprehension, satisfactory to the defendant’s
own mind, that his life was in danger, or that he was in dan-
ger of great bodily harm; he would have been excusable in
killing his adversary in self-defense: and an attempt to kill
is equally excusable.

5. If, in the opinion of the jury, the shouts of persons stand-
THE STATE OF OHIO vs. FISHER W. AMES. 53

ing by, “Now you have got it!” ‘Let him have it!” ete.,
were calculated to increase the defendant’s sense of danger,
his right to use efficient means for his defense was jncgerd
in the same ratio.

6. The defendant’s defective eye-sight is a circumstance
important for the jury to take into consideration, in deter-
mining whether he was deceived as to the intentions and
movements of Hall, and whether he acted under apprehen-
sions which to him seemed reasonable at the time.

7. A transient thought of killing, on a sudden quarrel, and
in the heat of passion, is not an “intent to kill” within the
meaning of the law. The best English meaning of the word
“intent” is, literally, “having the mind trained or bent on
an object; hence, fixed closely; sedulously applied; eager in
pursuit of an object; anxiously diligent.”

8. Shooting “with intent to kill,” even in this sense, is
not a “malicious shooting,” within the meaning of the law.
The best. English meaning of the word “ malice,” is “extreme
enmity of heart, or malevolence; a disposition to injure oth-
ers without cause; unprovoked malignity or spite ;” and the
Supreme Court of Ohio have defined it to be “an evil design,
the influence of a wicked, depraved, malignant heart, bent on
mischief” (Ohio vs. Town, Wright’s Rep. 76). And again,
“malice is the dictate of a wicked, depraved and malignant
heart.” “It is evinced by any act which springs from a
wicked and corrupt motive, attended by circumstances in-
dicating a heart regardless of social duty and bent on mis-
chief.”

9. “ Malice” is of the essence of the crime for which the
defendant stands indicted; and it will not be sufficient for
the jury, even if they are satisfied of the “intent to kill,”
unless they are also satisfied that the act was done “ mali-
ciously.”

10. The “ malice” essential to this crime, is not the malice
54 THE STATE OF OHIO vs, FISHER W. AMES.

of evil words, tending to scandal and defamation merely, but
that malice which seeks to take away human life.

11.-.Corruption is of the essence of malice, and it is not
and cannot be the offspring of sudden passion, but implies a
moral festering of the heart, from some rankling grudge or
from hatred and ill-will toward mankind. It differs from
anger in this: anger is the offspring of a wounded heart;
malice is the offspring of a corrupted heart.

12. By the Constitution of Ohio, “the people have the
right to bear arms for their defense and security ;” and no
inference of malice can be drawn from the fact of a person
“bearing arms,” unless there is proof showing that they were
provided for the purpose of an attack upon the person in-
jured thereby ; and the person, so “bearing arms,” cannot be
called upon to prove for what purpose he armed himself:

13. Words of anger and menace, used by the defendant,
in the heat of passion, after the act, cannot be received as
evidence of malice before, or at the time it was committed ;
unless he admitted the previous “ intent to kill,” or some other
facts essential to the crime.

14. When the State offers in evidence the declarations of
the defendant against him; his declarations, made at the same
time and in the same conversation, in his favor, must be re-
ceived also.

15. The “intent to kill,” necessary to support this indict-
ment, must contemplate such killing as would have consti-
tuted murder, if the wound hel proved fatal: an intent to
commit manslaughter, is not sufficient, not having the ingre-
dient of malice.

16. “Shooting with intent to kill” is a crime separate and
distinct from “shooting at with intent to kill;” and, under
this indictment, the second shot fired cannot be considered ;
no count in the indictment being framed to mect it, the de-

fendant cannot be put to trial on such a charge.
THE STATE OF OHIO vs. FISHER W. AMES, 55

17. In all cases of doubt, the good character of the defend-
ant as a peaceable man, must be taken into consideration in
determining whether such a person is likely to commit such
a crime,

18. Before the jury can find a verdict of guilty, cach one
of the twelve must be clearly and unequivocally convinced
of the defendant’s guilt, from the facts given in evidence on
the trial, unmixed with impressions received from external
circumstances.

19. Their convictions on every point of fact constituting
an essential element of the crime charged, must be so clear
as to exclude every other reasonable hypothesis.

20. They can not weigh the evidence and balance the
doubts, as in the trial of civil actions; but all rational doubts
* must be solved in favor of the defendant’s innocency.

Gentlemen, I now return to you, borne down and crushed
under the responsibility which rests on me, beyond all I
have experienced in twenty years’ practice. It is not that
my frame is wasted by sickness, fasting, loss of sleep and
blood; it is not that my organs of speech refuse to do their
work; but it is the mountain of false, rabid, wicked public
sentiment on my shoulders, heaped up with an assiduity
never before witnessed, ever since the evening of this un-
happy event; during which time heaven and earth and hell
have been moved to bring this man to trial ‘condemned al-
ready,” that you may perform the cold and heartless farce
of ratifying a verdict already prepared by the people.

It is a curious and significant fact that, with four regular
jurors already in the box, and a special venire of twenty-
four more from the country, on examination under oath as
to their qualifications, but ten out of the twenty-eight could
be found who had not prejudged the case; and that yet an-
other venire had to be issued to make up the deficiency.

This state of things is mainly to be ascribed to the shame-
56 THE STATE OF OHIO vs. FISHER W. AMES.

:

ful interference of the newspaper press of this city with the
administration of justice. Under our new Constitution a mad
vagary seems to have possessed the mind of this imperious
dictator of public sentiment, that the power to elect implies
the right to instruct the judges of our courts; that town
meetings are to be called to advise the judges and dictate to
juries how they shall decide cases; and, if they do not so de-
cide them, the judgments of the best intellects in the nation,
devoted for forty years to the study of the law, are to be re-
viewed by two-penny reporters and local editors, necessarily
ignorant of the law and perversely ignorant of the facts.

I have a great aversion to reading such things, especially
in a Court of Justice, where the truth alone should be told;
but I must read a few extracts from two leading papers, as
specimens of what has been written and printed; and hawked
about from door to door, on the steamboats and on the cars,
and in every corner where a vote might be made to condemn
this defendant without a hearing:

“Morr Bioop!!—Another probable murder took place in
our city about half past seven o’clock last evening, near the
corner of Fourth and Broadway. As near as we could learn,
the facts are, that a difficulty has for a number of months
existed between the family of James C. Hall and the family
of which Dr. Ames is a member, which two families reside in
houses nearly adjoining, on Fourth, near Pike street. Last
evening, Mr. Hall, while passing Dr. Ames, both of whom
were on their way home, was accosted with, “ You are a
d d rascal and scoundrel.” Hall turned, and Ames ap-
proached him with a sword-cane elevated. Hall then struck
Ames, and a fight ensued, during which Dr. A. drew a sword-
cane and made several efforts to cut Hall, but succeeded only
in cutting him several times on one of his hands. Ames
getting the advantage, Hall released himself, and retreated
toward the steps of Mrs. Glasgow’s boarding-house, on the
alley. Ames followed him up; and, when within three or
four paces, drew a pistol and fired, the ball entering imme-

 
THE STATE OF OHIO vs. FISHER W. AMES. 57

diately below the floating rib, on the right side, and passed
through into the liver, to the depth of about four inches.
Hall fell, and Ames fired a second time, but the ball missed
him. * * * Ames when arrested had on his person four
double-barreled pistols, three of which were loaded, and his
sword-cane, which was spattered with blood. Just before
being arrested, he stood on the sidewalk, in front of Hall’s
residence, and uttering a number of oaths, declared that he
intended to kill the d d rascal. .A crowd soon collected,
and such was the excitement, that had not Ames retreated
soon ‘to his home, and immediately been arrested by the of-
ficers, the citizens would have taken him by violence and
probably handled him very roughly.”—Grazette, Sept. 2d.

 

“Aw InpigNant Communiry.—We have never known
.a more general expression of indignation than was manifested
yesterday in our city, by all classes of citizens, against the
gross outrage committed upon our fellow-citizen Jas. C. Hall,
which has endangered his life. No language previous should
be considered satisfactory for attacking a neighbor, without
notice, with knives and pistols in the streets. Life must be
esteemed of more account than to be sacrificed for any such
cause. The utmost rigor of the law will be demanded to be
visited upon offenders of this nature, and nothing but the
unflinching administration of it will satisfy an indignant and
outraged people.” — Gazette, Sept. 3d.

“ CALMNESS—EXCITEMENT.— We wish to press on our citi-
zens the necessity of keeping calm under the existing cireum-
stances connected with the outrageous assault on Mr. Hall.
We can not think that any of the violence we hear so fre-
quently threatened as intended upon the person, family or
dwelling of the criminal, would be justified. Our citizens
have manifested, in ways not to be mistaken, their indigna-
tion at the assault committed and the method of it; and the
city should not lose its name as a law-abiding city, or our
citizens ax law-abiding citizens, by the committal of violence
outside the law. There is great excitement against the ac-
cused ; great sympathy for the injured ; a just appreciation of
the unfortunate position he is to be placed in, in case of re-
58 THE STATE OF OHIO vs. FISHER W. AMES.

covery ; but nevertheless there should be an acquiescence in
the law.”— Gazette, Sept. 7th.

Thus much from the Gazette; at which I am the more
surprised, because it is a paper whose moderation generally
masks its other good qualities. Here is an echo from a
paper printed in Iowa:

“ Bee- A serious street-fight occurred in Cincinnati, on the
2d, which will probably result in the death of ex-postmaster
J. C. Hall of that city. The assault was commenced by Dr.
Ames, between whose family and that of Mr. Hall’s a diffi-
culty had existed for some months, and terminated by the
Doctor shooting Hall in the side. Ames, when arrested, had
four double-barreled pistols on his person. STRING HIM
UP!”

IT shall conclude this reading with a few extracts trom the

Cincinnati Enquirer :

“THRILLING Evrent.—Last evening, as Mr. James C.
Hall, our late postmaster, was returning to his home on
Fourth street, he was met by a person—one Dr. Ames, a
neighbor of his—who approached Mr. H. and called him a
d d scoundrel; whereupon Mr. H. knocked him down,
and went on his way. This specimen of brutality, Ames, on
recovering, drew a pistol, when Hall faced him and told him
notto shoot. He did fire twice, however, one ball entering the
right side, the other missing him. The scoundrel then stabbed
Hall, but the cuts are not’ serious.”—Enquirer, Sept. 2d.

“Tur Murprrous AssAutt.—Never, during a long ac-
quaintance with this city, have We known such intense excite-
ment as was prevalent yesterday among the people, caused by
the horrible attempt made on evening before last by Fisher
W. Ames upon the life of James C. Hall, our late postmaster.
The general particulars of the shooting we gave yesterday,
and contrary to the expectations of the surgeons of Mr.
Hall that he would not exist until yesterday morning, he
still lived up to the time of this present writing, which was
at a late hour last night. The unfortunate man possesses

 
THE STATE OF OHIO vs. FISHER W. AMES. 59

in the hearts of this community as large a fount of affection
and esteem as ever a fellow-citizen was favored with, hence
the almost ungovernable indignation of the people toward
the man who assailed him like a cowardly assassin.””—Idem,
Sept. 3d.

“ MuRDEROUS AsSsAULT.—Under this head we spoke yester-
day of the cowardly and assassin-like assault made upon
James C. Hall, of this city, by a contemptible reptile, called
Fisher W. Ames.

* * * * * * * * *

“Mr. Hall, last night, was quite comfortable in mind and
free from pain, but his medical attendants assure us that
although he may possibly yet recover, the chances are in a
large per centage in favor of his early dissolution. Even
while our readers are perusing this, we fear that poor Hall
has fallen an innocent victim to the passion of a scoundrel,
WHO SHOULD SUFFER DEATH UPON SOME YET UNINVENTED
INSTRUMENT, SOMETHING THAT SHALL TEN THOUSAND TIMES
EXCEL IN POWER THE GARROTE, THE GUILLOTINE, OR THE
GALLows.”—Idem, Sept. 4th.

On these last articles I have but a single comment to make,
which I most anxiously wish could be truly reported: Many
murders have been committed in this city; many assassins
have lurked in the lanesand alleys ready to shed human blood;
but no assassin, however dark and treacherous, is half so dan-
gerous or damning to the best interests of society, as the news-
paper editor who writes and publishes such sentiments as
these.

Sirs, the influence of these lawless excitements is not con-
fined to the mob. It finds its way into high places as well
as low places. It carries men headlong in spite of their
better judgment. How else can you, who have heard the
whole case, and are able to consider it dispassionately, ac-
count for the fact, that a judge, always meaning to be right
and usually attaining that end, should have been so deeply
impressed with the horrible nature of the crime, as to require
60 THE STATE OF OHIO vs, FISHER W. AMES.

bail in the sum of twenty-five thousand dollars for this young
man’s appearance at court?

But this furor has not only run into the sublime of folly;
it has also taken a turn into the ridiculous. I have not only
been badgered and brow-beaten by men with beards, for es-
pousing the cause of such a monster in human form, but the
ladies have implored me not to blast my name by such an
act ; and one especially, for whom I have a peculiar regard,
a zealous Maine Liquor Law woman, sent me her best re-
gards, and begged me not to defend a wretch, who, she had
been credibly informed, had laid drunk on the hayloft of
a livery stable for more than two weeks before this rencoun-
ter occurred.

And now, sirs, in this mountain mass of falsehood and
prejudice, we have to toil day after day to find the truth,
like the labor of searching “ through two bushels of chaff for
two grains of wheat.” But, thank God for the day of trial!
Thank God for a court of justice, and an honest jury, who,
with fans in their hands, will thoroughly purge the judicial
floor, gather the few grains of truth into the garner and burn
the chaff with unquenchable fire!

The drift of all this world of humbug and excitement has
been, not merely to falsify the facts of this unhappy affair,
but to falsify the characters of the men concerned in it. Per-
severingly and uniformly, Hall is represented to be a most
peaceable and amiable man, and, on account of his good
qualities, the universal favorite of the people of Cincinnati ;
while Ames is represented as a monster, a fiend, a reptile,
an assassin, a bloody-minded murderer!

To all that is said of the good character of Mr. Hall, I
make no objection ; but I do object, that the character of my
client should be maligned and destroyed before his case is
tried; and I especially object to the course of the senior
counsel for the State in this regard. I do not think his duty
THE STATE OF OHIO Us. FISHER W. AMES, 61

to the State requires of him any thing more, than that he
should prove up his indictment if he can, and consign my
client to the penitentiary, if he deserve it; without loading
him with reproaches and vulgar epithets before he had heard
the evidence. Nor do I think the prosecutor did himself jus-
tice, as a man of gallantry, to select a man in bonds, and in
the custody of officers, upon his trial, to be called by him
“a mean coward,” “a low vulgar blackguard,’” and other
such reproachful names. But it only goes to show more
forcibly still the evil effects of forestalling the law, by trying
and condemning the accused without a hearing, when, with
all the prosecutor’s learning and experience, and other good
qualities, he is unable to restrain himself from joining in the
popular cry set on by the unscrupulous appliances peculiar
to the age.

See now, gentlemen, the evil of thus falsifying a man’s
character before he is tried. Two men strive together in the
street; blows are struck; words of blasphemy are uttered ;
shots are fired; the parties are separated, and go home. All
this was a scene of confusion to the by-standers, and no two
of them have the same theory of the facts. But the moment
it is announced that one of them was an angel incarnate, and
the other a fiend in human form, the whole thing is clear
enough. Each witness interprets every act with reference
to the character of the parties. If the good man raises his
hand toward his adversary’s neck, it is to ward off a blow;
if the bad man does the same act, it is raised to seize his
adversary by the throat. If the good man stoops to the’
earth, it is to pick up his hat or gloves; if the bad man
does the same thing, he stoops to pick up a bowlder. If
some horrid imprecation is uttered—by nobody knows whom
—it was too shocking for the good man, and therefore it
must have been uttered by the bad man. And when, after

the lapse of time, witnesses come to refresh their memories,
62 THE STATE OF OHIO vs. FISHER W. AMES.

they are refreshed with reference to the preconceived char-
acters of the men. That which was too bad for the good
man to have done, on further reflection, was done by the
bad man; that,which was too profane for the good man to
have said, on reflection, was said by the bad man.

The inductive philosophy would lead us to infer the man’s
character from his acts; but when the mind is preoccupied
with the character, we are apt to reverse the order of reason
and infer the acts from the character.

This reversed order of reason is not so objectionable, when
we reason upon the motives from which men act; but whether
we reason from the character to the act. or from the charac-
ter to the motive, it is important that the character should
be understood truly.

This leads me to speak of the character of Dr. Ames. You
have his character, gentlemen, from the hour he was born to
the hour this disaster befell him. We examined numerous
witnesses to this point, and their testimony is uniform. We
called the play-fellows of his childhood; his school-fellows
in the primary school; his classmates in college, both liter-
ary and medical: we called the teachers and professors who
gave him his education: we called his companions in the
social circle: we called his traveling companions over the
sandy desert of the West—those who ate in the same mess
and slept under the same blanket: we called those who
knew him here, and those who knew him in California: we
called the old and the young, the grave and the gay: and
each and all testify to the same uniform character—a peace-
ful, quiet, taciturn, modest, retiring, amiable young man,
never known to quarrel in his life; a young man whose
energies were subdued by feeble health and bleeding lungs,
and whose vivacity was impaired by weak eyes and near-
sightedness ; a laborious and successful student, devoted to

his books and to his friends.
THE STATE OF OHIO vs. FISHER W. AMES, 63

All this forms no reason why you should not convict the
defendant, if you are satisfied of his guilt; but when you
come to inquire whether he maliciously armed himself and
waylaid Mr. Hall, to murder him, you cannot but ask your
consciences, before God, whether it is likely that such a man
would do such a deed. And he has a right to his good char-
acter, in putting a construction on the rencounter between
him and Mr. Hall; in casting the account and striking the
balance of blame between them.

And here I make a single remark, which, as Mr. Hall has
withdrawn, I beg some one of his friends to report to him
‘truly: If Mr. Hall had stood here and heard the character
given to the defendant by such a host of respectable wit-
nesses, he could not but be flattered by the remark that, in
all the elements of a gentleman, Dr. Ames is fully his equal.
Neither James C. Hall nor any other man in this city can
prove a better character.

Gentlemen, most or all of you are fathers and have felt
the responsibilities of that relation. You are here to-day
aiding in the administration of justice; to-morrow you are
involved in political contests; next day you are immersed
in business ; but there is one place alone where a man feels
and knows, pre-eminently, that he isa man. It is, when he
sits enthroned on his own domestic hearth-stone, the prophet,
the priest and the king of his own domestic household. Here
each of you sits to give law to your sons and to teach them
the road to virtue, to happiness, to respectability. And often,
you say to your son: “ My son, look well to your character ;
for that may be your ultimate reliance in this world. You
may be reduced to poverty; but a good character will be
worth more to you than wealth. You may be friendless ;
but a good character will raise you up friends where you
least expect them. You may be’ maligned and vilified by
a mercenary press; but men of unstained virtue and high

e
64 THE STATE OF O110 vs, FISHER W. AMES.

moral worth will step forward to give the lie to all scandal,
written or unwritten. Clouds and darkness may shut you
in on every side so as to leave you without a ray of hope;
but a good character will have but to await the first ray of
truth that may burst upon it, to shine more effulgent than
ever.” Take heed that, while you speak, your son, with a
sense of bitter mockery working in his features and beam-
ing in his eye, does not reply: “ Father, did not you sit on
the jury which tried Fisher W. Ames? Did not honest
men and good men and wise men tell you of his good con-
duct from childhood up to the day of his misfortune? Did
not he prove as good a character as ever I can hope to
achieve; and, after all, you flung away both the man and
his good name, on the most doubtful of all evidence?” Take
heed, I say, that the parental scepter be not thus broken in
your hand, and that, in your overweaning zeal to punish
human frailty, you do not endanger or destroy that which is
worth more to society than the punishment of a thousand
criminals,

Gentlemen, I repeat, I have thus spoken of the defend-
ant’s character, not as a reason why you should acquit him,
if you are fully satisfied of his guilt, but as one of the tests
by which you are to try his motives throughout every part
of the case.

Let me now speak a word as to his health. There needed
no physician to swear that he was afflicted with hemorrhage
of the lungs; that he had very feeble health; that he was
tending to consumption. There he sits, with a head well-
nigh misshapen by the preponderance of the intellectual
over the animal. High cheek bones, long slender neck,
drooping shoulders, narrow and sunken chest, and every
mark of a young man whose sun is destined to go down be-
fore noon, All this is no reason why he should not suffer

for his crimes, if he have committed any ; but, when you come
\

THE STATE OF OHIO vs, FISHER W. AMES, 65
to inquire how much force he had a right to use to repel the
attack of an adversary, it is proper you should know how
much natural force he had to begin with, and how much
artificial force he might lawfully add, to make him equal to
the task of self-defense.

And here, in my poor judgment, my eloquent young friend
misapprehended the law, when he told you that no assault by
an unarmed man could justify the use of a deadly weapon
in self-defense. If this be law, God help such wretched in-
valids as me when such giants as your Honor come down
upon them with the sledge-hammer of a Cyclops!

[Mr. O’Connor interrupts, and explains. ]

‘My young friend now disclaims the doctrine, and says he
only meant where the parties were of equal natural strength.
This is certainly a little better, and gives promise that, if he
live to my age, he will be a sound lawyer. But, I apprehend,
there is yet a truer rule. The true question is, whether there
is reason to apprehend death, or great bodily harm; and if
there is, he may lawfully use the weapon, whether he be
stronger or weaker than his assailant. But, I admit, the
relative strength of the parties is a very important circum-
stance, explanatory of the motives of the defendant.

I wish to speak of the defendant’s health in another
aspect. The proof is clear and conclusive, by men inside
and outside of the medical profession, that, from his infancy,
he was very near-sighted ; so much so, that he did not know
his most intimate friends when he met them on the street,
till they first spoke and he recognized them by the sound of
their voices; and then he only knew their features, by a seru-
tinizing examination, after he had turned himself round so
as to bring them directly in the line of his vision.

Several of his intimate acquaintances, who know nothing
of the science of anatomy, testify that he had no side-glance
at all; and could see only in a straignt line before him. To
66 THE STATE OF OMIO vs. FISHER W. AMES.

make “confusion worse confounded,” Dr. Ames, for several
years last past, has been afflicted with that disease of the
eyes which the Arabian physicians to whom medical science
is so much indebted, call Gutta Serena—the same disease
which put out the eyes of the immortal author of “ Paradise
Lost ”—now better known by the name of Amaurosis. That
disease and its effects have been well described by Dr.
Mussey and others; but I wish to say a few words, under cor-
rection of any and every medical man who hears me, touch-
ing the laws and the instruments of vision in conveying outer
objects to the inner soul.

First, of the light, which is the great active agent. Let this
hall be divided by a partition, so as to exclude all the light,
except at a single round hole m the center; let all the day-
light be excluded from the ante-room, and, instead of that,
twenty candles lighted: each candle will pour in upon us a
separate and distinct pencil of light, falling on the opposite
wall, in a straight line with the candle from whence it came
and the aperture through which it comes, The candle at the
east end of the ante-room will shed its pencil of light on the
west end of the wall; that placed at the west end of the
ante-room will shed its pencil of light on the east end of the
wall; that placed at the ceiling of the ante-room will shed
its pencil of light down at the bottom of the wall; that
placed at the floor of the ante-room will shed its pencil of
light up at the top of the wall. So ofall the rest, no mat-
ter if a thousand were ligeted, cach would have its own rep-
resentative on the wall, limited in size by the aperture
through which it passed, and forming a sttaight line from
itself, through the aperture, to the candle from whence it
came. And so subtile is the substance of light, that ten thou-
sand pencils may thus cross cach other in a common focus
without the slightest interruption.

Let me now for a moment speak of the Eye. I do not
THE STATE OF OHIO vs. FISHER W. AMES. 67

wish to speak of all the parts and furniture of this wonder-
ful house, which serve only to strengthen or modify the light;
I wish to speak of the pupil, the retina and the optic nerve
only. The pupil is the window in the front wall, through
which the light brings in every object. The retina is a can-
vas stretched on the opposite wall, on which every object is
painted. The optic nerve is the telegraph of vision, which, by
a sense of feeling too exquisite for grosser touch, carries these
pictured objects to the brain. This retina, to make its sym-
pathies with the optic nerve more perfect, is composed of
the same nervous substance. In truth the retina is but an
elongation and flattening out of the optic nerve.

You haye all seen the dandelion in bloom ; or, those of you,
who have not seen the dandelion, have seen the daisy. Take
either of these flowers, and imagine to yourselves that the
stem is the optic nerve, the flower the retina, and the little
petals, diverging from the center to the perimiter, the bundle
of smaller branches into which the optic nerve is distributed,
and you will understand enough of the structure of the eye
to see the effects produced upon it by the amaurosis.

Before the disease assails you, a man stands before you
with his arms extended, so close as to fill the whole field of
vision: his head is impressed on the lower part of the retina;
his heels on the upper part; his left hand on the right side,
and his right hand on the left side; the middle of his body is
seen by the straight line of vision; but all the extremities by
the side, the upward, or the downward glances.

The amaurosis is a disease of the retina. It works by par-
alysis on the radiating nerves ; beginning, like the briars in the
sluggard’s field, at the outer margin, and working inward to
the center. The central point, where the nerves are closest
together and nearest to their stem, is the last to give way.
When all but this point is paralyzed, before an object can be
seen at all, it must be in a straight line with the living spot in
68 THE STATE OF OHIO vs, FISHER W. AMES.

the center of the retina and the pupil of the eye. If it is
too high, the image falls unfelt on the paralytic part below;
if it is too low, it falls unfelt on the paralytic part above; if
it is to the right, it falls on the paralytic part to the left ; if it
is to the left, it falls on the paralytic part to the right ; so that,
when the eye is in this condition, it sees nothing but that
which is straight before it; and when, by the car, there is a
consciousness of an object near at hand, the head is turned
from side to side, and the eye rolled hither and thither, before
the sense of seeing gets hold of it. You understand, now,
gentlemen, how it is, that Dr. Ames has no side glance; why
it is, that he sees only straight before him, and-for what cause
he turns his head from side to side and rolls his eyes in search
of objects within a handsbreadth of his nose. And you un-
derstand what Milton—who, for years before he became to-
tally blind, had searched for objects in this way—meant,
when, in his blindness, he thus addresses the light:

“But thou
Revisitst not these eyes, that roll in vain
To find thy piercing ray, and find no dawn.”

But the amaurosis does not stop at narrowing and weaken-
ing the vision. During its progress from the margin to the
center of the retina, is a constant scene of confusion. We
judge of the length, the breadth, the depth and height of
objects, by the angles based on the retina of the eye, and,
while that organ is going, piece-meal, into paralysis, the vis-
ion is not only narrow and feeble, but false. Thus, a man
stands before you, with his limbs and trunk impressed on
the healthy and his head upon the unhealthy portion of this
organ: you have before your eyes a headless man. If his
head is impressed on the healthy portion and his trunk and
limbs spread out over the unhealthy: you have before your
eyes a manless head. Tf both ends of an object should fall
THE STATE OF OHIO vs. FISHER W. AMES. 69

upon healthy parts, and an unhealthy spot interpose: you
see two objects instead of one. Thus exhibiting all the vari-
ous phases of deceptive vision described by the elder Dr.
Mussey. In short, color, form, size and every other property
of bodies appreciable by the vision, are distorted and falsi-
fied by this disease—except that which comes within the fee-
ble narrow range of the straight forward, peering vision.

An interesting case is mentioned by St. Mark of blindness,
most probably from this disease. A man was brought to Je-
sus, who was then in Judea curing all manner of disease by
supernatural, divine power. The great Physician anointed
his eyes, and asked him if he saw aught; and while the vital
spark thrilled along the optic nerve and expanded into the
retina, like the streaks of morning light, he looked up and
said, “I see men like trees walking.”

Such was the short, confused and narrow vision, with which
Dr. Ames fought this battle.

Now, I do not assume that the bad eye-sight of the defend-
ant is any excuse for committing a crime. But when you
come to pass upon the question, whether that “singular
look,” which he gave Mr. Hall, meant murder ; or whether
it was not the kind of look he gave everybody else: whether
he misapprehended the movements of Mr. Hall, and took
that to be hostile which Mr. Hall intended to be peaceful
and kind: whether he might not have been deceived by the
shouts of encouragement behind Mr. Hall to “let him have
it;” and thought, that, instead of coming from one man
they came from a respectable mob, with whom he had to
contend: whether, in the heat of the conflict, when Hall
stooped to the earth, he may not have supposed he stooped
to pick up a bowlder, instead of his hat or his gloves, or
his papers, as McElroy supposed: in each of these inqui-
ries you may receive light from the defendant’s blindness, and
be aided in determining whether he is at heart a murderer ; or
70 THE STATE OF OHIO vs. FISHER W. AMES.

whether, as the devil would have it, he and Mr. Hall got
into a street fight, no one knows how, in which he honestly
believed he was defending his own life.

I come now to speak of my client’s idiosynerasy, his pe-
culiarity, his hobby-horse, if you prefer the word. It seems
from the evidence that, from childhood up, Dr. Ames had a
curious fancy for arms. Had he had the eye of a soldicr, he
probably would have been onc; but, being thwarted in that
bent of his mind, he could but fondle on the weapons he
could never use. Be this as it may, he always had pistols,
and usually wore this little fancy pair in his vest pocket.
He was passionately fond of fencing—took lessons in the
art, and usually walked with a sword-cane; a fancy article,
about half as large as this which I hold in my hand; weigh-
ing—handle, mountings, cane, foil and all—from two and a
half to three ounces; the mere representation of a fencing
foil, rather than a weapon that any man would wear who
meant to do mischief. These weapons were the playthings,
the fiddle-sticks, with which, when study overcame his fee-
ble frame, Dr. Ames amused himself and unbent his mind.

It is no new thing for a man to have his hobby-horse.
The world is full of such examples. One man cannot live
without his dogs; another cannot live without his fishing--
rod; another cannot live without his fast trotting horse.
General Washington was passionately fond of skating, and
Thomas Jefferson ‘always kept his chest of carpenter tools.
To a mere utilitarian, who thinks a man has accomplished
his destiny if he eat, drink, sleep, propagate his race and
die, these things seem to be silly foibles. He animadverts
upon them with about the same philosophic gravity with
which the fat swine of the fable raised himself up on his
hind legs, and, peering through the chink of the hen-house,
asked the cock why he wore plumes in his tail and spurs
on his heels, and did not put on bristles and behave himself
THE STATE OF OHIO vs, FISHER W. AMES. 71

like other people. But, to the true philosopher—the pupil
of nature—they are neither the indication of malice in the
man’s heart nor of poverty in his intellect. And if I be
asked what business a near-sighted, half blind man has with
a fencing foil: then I ask what business Milton had with a
rapier? Milton not only lost his sight by the same disease,
but he rode the same hobby-horse, and was the most accom-
plished fencer of his age. As a man of genius, he “soared

” as a scholar, he had no rival ;

above the Aonian heights ;
as a peaceful, amiable man, he had no superior. But as a
man of leisure and relaxation, he loved his foil and played

with it till his eyes failed him; till
“So thick a drop serene had quenched their orbs”

as to cut him off from all the cheerful ways of men,

“And for the book of knowledge fair,
Present him with a universal blank.”

Now, I may be asked whether I put in this peculiarity—
this hobby-horse—of Dr. Ames’s, as a reason why he should
not suffer for his crime? I answer, no! not if he has com-
mitted the crime. But when you come to the question of
malice—when you are asked to believe that, on the Ist of
September, he armed himself with this budrush on purpose
to transfix the heart of J. C. Hall; that he put these little
pistols in his pocket on that evening on purpose to kill J.
C. Hall; then it is important for you to know that the for-
mer is the fancy cane he ordinarily walked with, and that
for months he had habitually worn the latter in his pock-
ets; and that these were the toys with which he relieved the
tedium of life in his hours of relaxation.

One word as to the defendant’s manners. They, too, are
somewhat peculiar. Being a man whose outward sense of
the beautiful was marred by blindness, he learned but little
from observation or imitation of others. He relied almost
72 THE STATE OF OHIO Us, FISHER W. AMES.

solely on his books and professional instructors. It is more
than probable, then, that both the dancing-master and the
fencing-master had spoiled his manners, and given them a
mechanical precision somewhat inconsistent with easc. This
much we have from numerous witnesses: he always carried
a cane, rather as a feeler than a prop—his hand about one-
third of the distance from the head, with the point before
him, inclining to the ground. When he was accosted, he
invariably faced round, advanced the right foot with a cur-
vilinear motion, and brought his cane near his right cheek ;
and, when words or looks of recognition had passed, swept
it downward to his right side. No experts have been exam-
ined on this point; but we all know, gentlemen, that it is

no more nor less than the ordinary military salute.
“The time is long past and the scene is afar,”

but I have had my day of military training, on the peace
establishment of YELLOW CREEK. I have forgotten every-
thing but this, that when my superior reviewed the line, as
he approached me, I thus brought the hilt of my sword to
my breast, with the blade in the line of my right eye; and,
when he gave me a bow or a nod of recognition, J swept it
gracefully to the earth. And this is all—absolutely all—that
the defendant did, or tried to do, till he received from Hall
a violent blow in the face.

This leads me directly to the conflict, of which I shall speak
in a moment. I first wish to premise that, if the wound had
proved fatal; if James C. Hall were now dead and in his
grave, and this defendant were on trial for manslaughter,
the lowest grade of homicide; there is no sufficient ground
for conviction, upon the facts as Hall and others relate them
here. The facts are testified to in pieces by several witnesses,
on behalf of the State, with an ordinary degree of unanim-

ity, and with about the ordinary number of discrepancies.
THE STATE OF OHIO US, FISHER W. AMES. 73

But the statements of Hall and McElroy—the former being a
party to the rencounter, and more or less affected by excite-
ment, and the latter a disinterested spectator—may be relied
on as a fair average. Hall at one time made a statement,

under the apprehension of immediate death, as follows:

““T was coming home and met him—Dr. Fisher W. Ames;
as I passed him he hesitated; I passed three or four paces,
and turned round; he stopped; he approached me with his
cane elevated, and called me a d d scoundrel or rascal,
when I struck him; he drew a dirk from the eane; I took
the dirk from him; he recovered it; I struck him several
times during the struggle, and, but for the pistol, I would
have conquered him; he drew a pistol when I was not more
than three or four fect from him, and shot me; I got behind
a tree-box, and retreated to Mrs. Glascoe’s steps, when a sec-
ond shot was fired by him.”

 

You have heard his statement on the stand, which runs thus:

“Was going home Thursday evening, September Ist, about
7 o’clock ; met Fisher Ames on Fourth street, about the mid-
dle of Broadway ; I was going east, Dr. A. going west. He
looked very singularly. Nothing was said or done. As I
passed, he looked at me. When I had passed four or five
paces, I looked around, and saw he was looking at me. I
was in the act of turning around, and saw Ames turning
around. He saw me looking at him, and then he came to-
ward me very rapidly. As he approached he elevated his
cane over his shoulder; held it about one-third down from
the handle. When he got up, I faced around. I remained
facing toward him. When he reached me, he said, ‘ You
d—-d rascal, or d d scoundrel, what do you mean?’ I
immediately struck him in the face with my fist. After I
struck him, he lowered his cane into his left hand and drew
out a dirk with great violence. He made a lunge at my
breast with the sword. I knocked it off with my left hand.
I struck him again with my fist, and he made another lunge.
I had no weapon. I tried to get hold of his dirk; did get
hold of it with my left hand, and it bent. I took the foil

 
7-4 THE STATE OF OHIO Us, FISHER W. AMES,

away from him and attempted to use it. Some one present
said, when I got the foil, ‘Now you’ve got it! now let him
have it!’ He got hold of it, and it was then thrown away.
I then struck him again with my fist. We seemed to be
backed off some six or eight feet. I approached him with
the intention of striking him, when he drew a pistol and shot
me. We both advanced, probably a step.

McElroy’s account of the matter is this:

“When I saw them, Hall had hold of the foil, and, in the
‘scuffle, bent it. He raised it to strike Ames, and Ames re-
covered it. The next I saw of the sword, it was lying on the
pavement. Mr. Hall then struck Ames in the face with his
fist. Ames staggered back several feet. Hall stepped back,
I thought, and made a motion to pick up his hat and some
papers. He then turned toward Ames, and said, ‘ You d d
scoundrel, you attacked me in the street.’ Ames threw him-
self in a menacing position, and called him ‘a d d liar.’
Hall then advanced very quickly toward Ames, and raised
his fist to strike him, and I thought did so. I then saw the
flash and heard the report, but did not see the pistol. Hall
ran around a tree-box, and Ames followed him. After he
had run around the tree-box, Hall said, ‘The d d scoun-
drel has shot me.’ ”

 

 

 

There are two discrepancies between the dying and the
living statement of Hall. The first is this: in the dying
statement he says, as he and Dr. Ames passed each other in
the street, Ames hesitated. In the living statement he says
that Ames gave him a strange look. On having his atten-
tion called to this discrepancy, he thinks he never used the
word hesitated—that he was wrongly reported ; but Dr. Ed-
wards, who reduced the statement to writing, still thinks he
used the word hesitated. The difference is not material. I
am willing to believe he did both. I believe that he hesi-
tated, as all near-sighted people do when you meet them; I
believe he gave Mr. Hall a strange look, if he looked at him
at all—he had no other look for anybody.
THE STATE OF OHIO vs. FISHER W. AMES. 75

The other discrepancy is this: in the dying statement Hall
says that, after the parties passed each other, he (Hall) stopped
and turned round first. In the living statement he says that
Ames stopped and turned round first.

The living statement is much the fuller of the two, and
contains, over and above the dying statement, this important
fact, which no other witness remembers; that when he dis-
~ armed Ames of the foil, and attempted to use it on him, there
was a shout behind him of, “ Now you have got it! let him
have it!” Hall does not know who shouted to him; nobody
else knows. His voice is now silent; and all we know of
him is, that he is one of those friends of Mr. Hall, of whom
he complained so bitterly and so justly, who fled like sheep
at the explosion of the pistol, and, fast as he ran, yet outran
him in the flight.

The statement of McElroy differs both from the dying
and living statement of Hall in these particulars: McElroy
states that, after the struggle for the foil was over—after it
had been taken and retaken, and then flung away bent up
and useless, and Hall had struck Ames another blow, under
which he reeled backward six paces—a pause occurred for
at least half a minute; that, after this pause, Hall stooped
to the ground, as he thought, to pick up his hat, and, rais-

 

ing himself up, exclaimed, “ You d d scoundrel, you at-
tacked me on the street with your sword-cane.” Ames said
it was a d——d lie; then Hall advanced on him rapidly,
and struck another blow, when Ames, who had not stirred
from his place, discharged the pistol. Again, Hall remem-
bers well enough that Ames used profane and reproachful
language to him, but has no recollection that he called Ames
ad
this language twice. This does not discredit Mr. Hall as a

 

d scoundrel, while McElroy remembers that he used

man of truth; but it shows that a man engaged in the hurly-
burly of a street fight, is not so likely to remember all that
76 THE STATE OF OHIO vs. FISHER W. AMES.

passed as one standing by as a mere spectator. It illus-
trates another thing which we knew of poor human nature
before, that, living or dying, we are apter to remember the
faults of others than our own.

But let us bring this onset directly before us, and see
whether, according to the laws of self-defense, Ames was
not excusable in the discharge of this pistol. These two
men meet in the street in the twilight of the evening. Both
in his living and his dying statement, Hall admits that he
struck the first blow. The only excuse for this blow is that
Ames had elevated in his hand a little reed, weighing about
two and a half or three ounces. It is but fair to admit that
Hall thought Ames was going to strike him; but he neither
struck nor attempted to strike; and, if he had, the blow
would not have been sufficient to hurt an infant. Hall de-
termined to deal the first blow, and he did it, before Ames
had time to define his purpose.

Ordinarily, Mr. Hall is a peaceful man; an exemplary
Christian: but, on this occasion, he was not in the mood of
blessing those who cursed him, and praying for those who
despitefully used him. He showed no disposition to receive
a blow on the one check, and then meekly turn the other.
He pranced like the Idumean war-horse, that smelt the bat-
tle from afar, and cried ah-ha-ha! War was in his heart;
war was in his eyes; war was on his lips; war was in his
fists, and he pursued it with unrelenting vigor. When Ames
received the first heavy blow in his face, he stepped or stag-
gered back and drew his foil; and if he had passed it through
Hall’s body, no one could have denied that, by the law, both
of Selfrage’s and Noble’s cases, he acted cxeusably, in sel f-
defense. The only reply to this plea of self-defense would
have been in the hypothesis, that he began the affray by
raising his cane to strike Hall first. If Hall honestly be-
lieved this motion of the cane was the beginning of a blow,
THE STATE OF OHIO ts. FISHER W. AMES. 77

it would excuse the blow he struck; but, unless the jury also
believe it, Hall’s opinion will not affect the similar right of
self-defense pertaining to Ames.

But now “comes the tug of war.” One pass is made with
the foil, and after that it is used as a switch, about the head
and over the shoulders of Wall. Meanwhile, Hall follows up
one blow after another, to the number of six, at least. The
parties scuffle for the foil—Hall takes it; his friends raise the
shout, ““Now you have got it! let him have it.” Ames re-
takes it. It is twisted, and bent, and flung away. Hall deals
another heavy blow on the face, and Ames reels backward
several paces into the street. Here he stands, breathless and
exhausted, suffering under the last heavy blow. His ears are
still ringing with the shouts of Hall’s abettors. He looks
out through the dim suffusion that vails his feeble eyes, and
“sees men like trees walking;” for aught he knows, their
name is legion; and, judging by the temper of the one with
whom he has struggled, he may well imagine, a legion of
demons. THe sees dimly his antagonist stoop to the earth
and rise again. What could this motion import? McElroy
thought he stooped to pick up his hat, but Ames had a right
to think the worst. As soon as he rises he renews the on-
set, first with words of profanity and reproach, and then
advances upon him with another blow, so suddenly and so
fiercely, that he could not have retreated without increasing
his danger. His last resource was in his pocket: he drew
the pistol and fired. Thus ends the subject matter of this
indictment. A second shot was fired, which the State may
use to explain the first, if she can apply it; but no indict-
ment is predicated on this second shot.

And now, gentlemen, I repeat what I said before: if Hall
were dead and in his grave, and Ames stood indicted for
manslaughter; on the facts before you, you would be bound
to acquit him.
78 THE STATE OF OHIO v8, FISHER WwW. AMES.

But this is not an indictment for manslaughter. James
C. Hall is alive, and like to live, I hope, for many years to
come. The indictment is under a statute to punish men, not
so much for what they have done, as for what they intended
to do. This whole class of crimes belongs to the refinements
of modern times. Formerly the wicked purposes of the heart
were left to God to punish, and human tribunals took cogni-
zance of the outward acts alone. Nor did they even punish
outward acts, unless they were done maliciously. By the law
of Moses, manslaughter was not punished as a crime: “He
that smiteth a man, so that he die, shall be surely put to
death. Ifa man lie not in wait, but God deliver him into
his hand; then I will appoint thee a place whither he shall
flee. But if a man come presumptuously upon his neigh-
bor, to slay him with guile; thou shalt take him from mine
altar, that he may die.” He who committed manslaughter,
merely, fled to the city of refuge and was secure.

Neither was this offense of intending to kill punished crim-
inally. It was the subject of civil damages only: “ And if
men strive together and one smite another with a stone, or
with his fist, and he die not, but keepeth his bed; if he rise
again and walk abroad upon his staff; then shall he that smote
him be quit—only he shall pay for the loss of his time, and
shall cause him to be thoroughly healed.” To get at the
right understanding of this law, it must be borne in mind,
that it was written before the invention of the deadly weap-
ons now in use, and that in this text the word “stone” is put
to represent any deadly weapon which might be used.

But I do not come here to quarrel with our statute, but to
see that it is administered strictly in accordance with the
intention of the law-makers.

It docs one good, at times, to look into an old statute, drafted
while there was yct scholarship enough in our legislative

councils to use the English language in its true sense. Of
THE STATE OF OHIO vs. FISHER W. AMES. 79

this character is the statute under which this indictment is
framed. Shooting, to be sure, is a very general word, and,
without qualification, may mean any thing or nothing. But
two other words of pregnant import are used—intent and
malicious. The shooting must be “ with intent to kill.” The
word intent has no technological meaning of which I am
aware; but the legislature used it in its best English sense.
Webster gives us this definition: “ Literally having the mind
strained or bent on an object ; hence, fixed closely ; sedulously
applied; eager in pursuit of an object; anxiously diligent.”
Each one of these phases impiies tension of the mind.

Do you believe, gentlemen, after what you have heard of
Dr. Ames’s character, and of the circumstances of the case,
that he came upon this unfortunate spot, having his mind
strained or bent on Hall’s death? fixed closely on his mur-
der? sedulously applied to taking his life? eager in the pur-
suit of his blood? anxiously diligent to take him off?

Setting his mild and amiable disposition aside, all the facts -
of the case are inconsistent with the notion that! he came
there with an original intent to kill. He did not depart from
his ordinary habit when he met Hall; he did not draw a
weapon that would have harmed an infant, till he had re-
ceived a violent blow in the face. With better weapons at
his command, he then used a little, attenuated foil, not worth
half as much in a melee as one’s fist. With deadly weapons in
his pocket, he forbore to use them, till he had received not less
than six blows in his face. After he was fairly beaten and
driven back, he still did not resort to his pistols, till Hall, hav-
ing stooped to the earth, for what end God knows, rushed
upon him again—then, and not till then, the pistol was fired.

Does this look like an intent to kill? Or does it not rather
look like a desperate act to which the mind is driven in the
last resort, without any definite aim or end, whether to kill,

to wound, to maim, or to terrify? I do not believe there was
6
80 THE STATE OF OHIO vs. FISHER W. AMES.

an intent to kill, within the clear, strong, and.intense meaning
of the word in which the law-makers use it; but, if there
was, this is not sufficient. Another ingredient is yet wanting.
Malice is of the essence of the crime; and, in the absence of
this, there can be no conviction. And this leads me to the
last point I shall make:

Did Fisher W. Ames maliciously shoot James C. Hall, with
intent to kill him?

But, first, what is malice? It is defined by Webster to be,
“extreme enmity of heart, or malevolence; a disposition to
injure others without cause; unprovoked malignity or spite.”
It is difficult to find a better, or even so good a definition in
the law-books. But the Supreme Court of Ohio have defined
it to be, “an evil design, the influence of a wicked, depraved,
malignant heart, bent on mischief.” Again, “malice is the
dictate of a wicked, depraved and malignant heart. It is
evinced by any act which springs from a wicked and corrupt
motive, attended by circumstances indicating a heart regardless
of social duty and bent on mischief.” This definition is given
by Judge Wright, who, at the time, was, in my judgment, the
best lawyer in Ohio; but who has since suffered obscuration
by his connection with the newspaper press of this city.

From these definitions, it will be seen that malice is widely
different from anger. Anger is sudden; malice is slow. An-
ger is headlong; malice is wary. Anger is the offspring of a
wounded heart; malice is the offspring of a corrupted heart.
Corruption is of the essence of malice. You can not conceive
the idea of malice without the idea of corruption.

And what is corruption, as these definers use the word?
Literally, it is that condition of the body into which it passes
after death; not that intensely interesting aspect which it
wears when the spirit first forsakes it,

“ Before decay’s effacing fingers ;
Have swept the lines where beauty lingers; ”
THE STATE OF OHIO vs, FISHER W. AMES. 81

but that loathsome aspect from which its nearest friends turn
in horror. Before the human heart can be the seat of mal-
ice, its moral affections must be so changed, so corrupted as to
obliterate the impulses of social duty, and leave the man, like
a beast of prey, “bent upon mischief.”

“Regardless of social duty,” says the Supreme Court.
What is social duty? Is it that a man shall never fight?
Why, sirs, I have known places where it was supposed to
consist in non-resistance ; where one sickly sentimentality or
another was preached to extinguish the spirit of chivalry,
till the distinction between the sexes was broken down, and
women, like crowing hens, mounted the stump to teach, God
knows what; and I never saw such a community where
scandal did not walk like the pestilence at noonday, or where
the reputation of either man or woman was safe for a single
hour. From such communities, it is refreshing to turn to
a state of society, where, from childhood up, every boy is
taught to shed, if need be, every drop of blood in his veins
for the honor of his mother, his sister, his wife, his daughter :
that, high as the claims of patriotism are, these claims of so-
cial duty are still higher. It was not the spirit of chivalry,
nor the impulse of anger, but the low, corrupt, fiend-like pas-
sion of malice, which the legislature meant to punish.

Now, what evidence of malice do the circumstances of this
case furnish? All the circumstances of the rencounter rebut
the idea of malice. They all look to a sudden, unpremedi-
tated quarrel—a street fight. This was Hall’s original view
of the matter. When, in the presence of his medical adviser,
Dr. Edwards, and of the Rev. Dr. Nicholson, in view of his
dissolution, he wished to make a statement, he expressed
his deep regret; not that his neighbor had assassinated him ;
not that he was waylaid and murdered ; but “ that he should
be cut down in a street fight.”

And how does the State undertake to prove malice? Had
82 THE STATE OF OHIO vs. FISHER W. AMES.

these men ever had a quarrel, or even a dispute? Busy as the
devil is, not the least in the world. Before Dr. Ames went to
California, Hall tells us, the two families were on terms of
friendship and intimacy. When the Doctor went away, Hall
gave him letters to his friends. Since his return they had not
spoken one word, either good or bad, to each other. Hall
says there had been bad feeling between the families for five
years, and thus accounts for the fact that he and Dr. Ames
had not spoken. But bad feeling between the families does
not prove malice toward Hall on the part of this young man.
Bad feeling is not malice ; and if it were, Hall could not prove
it. What passed in his own bosom he can swear to ; but not to
what passed in the bosom of Ames. All that he can speak
of, is that which he heard Ames say, or saw him do. If he
heard Ames threaten him, he may swear to that ; but he tells
you that he never heard him utter a word. If he saw Ames
do any act of hostility, he may swear to that; but when lim-
ited to what he saw with his own eyes, it dwindles down to
nothing. Once, at a distance of at least forty-five feet, Ames
put his thumb to his own nose, and quivered his fingers at
him; which being interpreted, in vulgar phrase, means, “ you
can’t come it.” This is very unlike the menace of a mali-
cious man. Itis much more like the railery of boys toward their
familiars; and if he knew Hall at all, which, with his short
and feeble eye-sight, is more than doubtful, it proves, to my
mind, that he was not meditating serious mischief. At an-
other time, as Hall’s carriage passed Ames’s door, the Doc-
tor came out on the front step, and, setting out his chest, and
throwing back his shoulders, shook his fist. ‘Alas! poor
Yorick!!” A feeble man with discased lungs, practicing
gymnastics every day, in the vain hope of recovering his
health, steps out into the fresh air, flings back his drooping
shoulders, and expands his narrow chest, to try whether there
is any life left in him; and, clenching his attenuated hand,
THE STATE OF OHIO vs. FISHER W. AMES. 83

gives his arm a shake, as if he would say, “all is not gone
yet.” And this is evidence of malice!

Now, gentlemen, the house of Ames stands back a consid-
erable distance from the street. In this fancy part of the
city the sidewalks are very broad. At this point Fourth
street is wide; and I do not believe, and you can not be-
lieve, that, with the defendant’s defective eye-sight, he could
have distinguished the carriage of J. C. Hall from that of any
other gentleman, unless somebody told him whose it was.
The prosecutor felt that there was a defect here, and undertook
to supply it, by proving that his sister Olivia was standing
at the parlor window looking out at the same time; but what
Olivia said, or whether she said any thing, or what she did,
besides looking through a pane of glass at J.C. Hall’s equi-
page, is not in evidence. These two instances, stated by Hall
to prove malice, amount to just nothing—absolutely nothing.

But the defendant’s conduct and language, after the act,
are relied on to prove malice before. These are so mixed
up that we can not separate them. The law would not al-
low us to separate them if we could. We may not separate
his language from the circumstances under which it was ut-
tered ; nor can the State separate one part of his language
from another. When the State calls out his language, as in
this case, to be used against him; all that he said on the oc-
casion in his favor must be received also. And so, too, all
his acts must be construed together.

On this point, there is a singular disagreement among the
witnesses. From the time the rencounter occurred to the time
the officers led the defendant away to the station-house, not
more than fifteen minutes elapsed; and yet if he had taken
time to do and to say every thing that all the witnesses tes-
tify, it must have occupied more than an hour. We can not
believe, then, that all these versions are infallible, or that they

are entirely unmixed, in the minds of the witnesses, with
84 THE STATE OF OHIO vs. FISHER W. AMES.

what they have read in the newspapers or heard from others ;
nor can we expect witnesses to remember, clearly, that which
occurred in the midst of confusion and excitement.

It was bad enough, however. Defendant swore like a
mad-man, talked like a mad-man, acted like a mad-man, was
a mad-man ; nor was there any method in his madness. But
mark this: in all his madness, three things are remarkable.
1st. He did not know that Hall was wounded, when he came
thus upon the street. 2d. He did not utter a word from
which an inference of ill-will toward Hall, before this ren-
counter, could be drawn. 3d. He uniformly declared that
Hall made the attack upon him. As to the excitement of
the defendant: it was anger lashed into fury, and ungov-
ernable in its rage; but it was not malice. Malice is essen-
tially cold-blooded, working by design, and not by passion.

I am asked how his conduct on this occasion, comports
with the peaceable, amiable character which his acquaint-
ances give him? A careful student of human nature needs
hardly ask such a question. Do we not know that there is a
principle of opposites and counterpoises, as well defined as
any other principle of our nature? The man who is easily
made angry, is easily pleased—quickly hot and quickly cool
again; while the man who is habitually peaceful and slow
to anger, when once enraged and driven beyond his propri-
ety, is ungovernable in his fury and hard to appease. Gen-
eral Washington was the most wonderful example of a man
who could endure all things without exciting his passions or
disturbing the deep tranquility of his soul, so much so, that
those who could not study him aright thought him lacking in
spirit; but it was known to those who had a nearer view of
his character, that, when provoked beyond the limits of endur-
ance, he was as ungovernable in his rage as the ocean in a
storm. An instance of this is mentioned in Ramsay’s His-
tory of the Revolution, when, on New York Island, the day
THE STATE OF OHIO vs. FISHER W. AMES. 85

succeeding the battle of Long Island, by the neglect of infe-
rior officers, a handful of British troops had put the Ameri-
can forces to flight. Another is mentioned by Thomas Jeffer-
son, after the war was over, when he was accused in the
public prints of having no other motive for all his labors
than the aggrandizement of himself and his family, and the
establishment of a monarchy, of which he should be the head.
And these occasional outburstings of passion, were the legit-
imate counterparts of such a character. The muddy pool,
- disturbed by every petty flaw, is soon quiet again; but when
the tempest has lashed the ocean into fury, he will not be
quiet in an hour, nor his billows be smoothed by pouring a
vial of oil upon his waters. The principle needs no philo-
sophic illustration. It is familiar to everybody.

There is, then, nothing new or wonderful in the defendant’s
conduct on this occasion, or inconsistent with his ordinary
character; in fact, it is the natural counterpart of such a
character. But there is in it something inconsistent with
the idea of malice.

The only other proof of malice, is in the testimony of Al-
exander Thompson, a negro who formerly drove carriage
for the Ames family, but is now no longer in their employ.
There are two things, gentlemen, of which I warn you to be-
ware: a frozen viper, thawed out upon your hearthstone;
and an ungrateful servant, spoiled by too much kindness.
I had my eye on this witness before he appeared here. I
knew when Mr. Hall conducted him to the prosecutor’s room ;
I knew he was closeted there, with the door locked. I found
no fault with all this; I am not so very a pettifogger as to
make a noise about that which is a man’s duty. If Mr. Hall
felt it to be his duty to prosecute this young man rigorously,
I do not blame him for conducting the witness to the prose-
cutor’s office. Ifthe prosecutor desired to learn beforehand
what the witness knew of the matter, I do not blame him
86 THE STATE OF OHIO vs. FISHER W. AMES.

for taking him to his office for preliminary examination.
The only question in such cases, is, whether such meetings
are had to hear what the witness has to say, or to tell him
what to say. In the absence of proof, I can not say this
witness was tampered with ; and I shall not insinuate what I
can not say.

But there was something in the manner of announcing him
which excited my jealousy. I thought he was announced as
a new witness, who had never been spoken to by Mr. Hall
or the prosecutor on this subject. Mr. Prosecutor now says
_ he was but announced as a new witness, who had not been
before the grand jury. He may be right. I shall not make
an issue of fact with him. The jury probably recollect what
was said better than either of us. It is enough for me that
my jealousy was aroused, and I examined this negro touch-
ing the manner in which he spent the recess of court, for
the purpose of testing his willingness to tell the truth. You
heard his answers; and, if you can believe one word of his
testimony, I wish you joy of it.

In his examination in chief, he testified to two facts tend-
ing to show malice, which ‘could not be contradicted. First,
that he heard Ames repeatedly say that if Hall attacked him,
he would kill him; second, that Ames tried to induce him to
crowd Hall’s carriage off the road in dangerous places—be-
sides something about dead rats and other filth. He testified
to two other facts tending to show malice, in both of which
he is flatly contradicted by several respectable witnesses.
First, that the time Ames went out on the evening of this
disaster, was an hour or two earlier than usual. Second,
that carrying these pistols on that evening was an unusual
thing. He had these two falschoods, at least, as a capital
to begin with, when the prosecutor turned him over to us.
Then comes a torrent. He “was down on the strect all the
time of recess ””—he “was part of the time coming up stairs”
THE STATE OF OHIO Us. FISHER W. AMES. 87

—he “was not in the prosecutor’s office ”—he “did not know
it was the prosecutor’s office ”—he “ war’nt no time there ”—
he “did not see Mr. Hall,” and he “did see him ”—he “ did n’t
tell the prosecutor nothing ; not much of anything ”—he “told
the prosecutor every thing he had detailed on the stand”—
he “didn’t think that no time.”

Gentlemen, at this late hour of the day, and in the feeble
condition of my health, I will not offend my lungs by com-
menting on this man’s testimony. If you can believe him,
do it; but, as for me, I have had several very mean dogs in
my day, but I never had a dog so mean that I would have
whipped him on the testimony of such a wretch!

Much is said about concealed weapons, as evidence of
malice. This language comes from the English books, and
from those times when every gentleman wore a sword at his
side in full view, and when other weapons not so worn were
called concealed weapons. Those times have passed away,
and now no private citizen wears any other than a concealed
weapon. The practice may be very foolish, but there are
thousands of good citizens who keep it up. One-third of all
the men in the city who walk with canes, especially in the
evening, have canes with swords, daggers or foils in them;
there are thousands of respectable, peaceable citizens who
never walk the streets at night without pistols in their pock-
ets; and Dr. Ames, in putting these in his pocket when he
walked out after supper, but imitated their example—he but
exercised a constitutional privilege which has always existed
in Ohio. The old Constitution contained this provision, and,
after forty years’ experience under it, the framers of the new
Constitution thought proper to insert in it the same provision.

No inference of malice, then, can be drawn from the fact
of a man’s arming himself, and bearing arms, unless there is.
proof to show that they were provided for a mischievous pur-
pose. Here there is no such proof; but, on the contrary, the
88 THE STATE OF OHIO tx, FISHER W. AMES.

proof is that he habitually wore these fancy weapons. Had
the city papers been relied on as authority, it would have
been casy to have read extracts from them exhorting every
citizen who had occasion to walk the streets at night, in view
of the inefficiency of the police, to arm himself for his own
defense. ‘

Here, then, we have the case: two gentlemen, neither of
whom are addicted to quarrels, meet in the street, and, from
some cause, they have a quarrel and a street fight. The case
may be strange—the public mind may be worked into the
belief that it is passing strange—-but it is not singular. A
few years since, two as respectable gentlemen as reside in this
city, met, not on the street, but in a room—a dispute about
business occurred—a quarrel followed—one seized a heavy
ruler, and the other a large dagger which he had about his
person. They fought, and both were wounded. The party
who wielded the ruler had his fore-arm pierced through be-
tween the bones, and his chest cut in several places, till the
ribs bent the point of the dagger, and made it harmless.
The parties fought without malice, upon a sudden quarrel.
If death had ensued, it would most probably have been a
case of manslaughter. As it was, both parties were ashamed
of it; each went home and healed his own wounds behind
his own window-curtain, and nothing more was said of it.
Neither party courted notoriety for what both considered a
misfortune; and if one of them had been indicted for “ ma-
liciously stabbing with intent to kill,” the ingredient of mal-
ice would have been wanting and the indictment would have
fallen to the ground.

So must this indictment fall. The defendant’s whole char-
acter is inconsistent with the idea of malice. His diseases of
the eye, his peculiar tastes, manners and modes of thought,
explain every mystery. His conduct on the occasion excludes
the idea of malice; there is no proof of any word or act in-
THE STATE OF OHIO vs. FISHER W. AMES, 89

dicating malice, except that which comes from a source on
which I know you cannot rely.

Gentlemen, I will not trouble you with the law of the case.
I have already read to the Court, in your hearing, my view
of it, which I believe to be sound, and which I think the
Court will not hesitate to give you in charge. Take the case,
and make such a verdict as will satisfy your own consciences
before God, and we shall be content.
Peter Gandolfo vs. The State of Ohio.

THE SUPREME COURT OF OHIO,

DeEcemBer Term, A. D. 1860.

Error to Hamilton Common Pleas.
Reserved in the District Court.

NEWLY DISCOVERED EVIDENCE: CHARACTER:
REPUTATION.

ARGUMENT OF JUDGE JOHNSTON.

On the 19th day of October, 1859, Peter Gandolfo slew
Peter Snyder with a knife. For this act he was indicted for
murder in the first degree ; and, at the January Term of the
Court of Common Pleas, was tried by a jury, and found guilty
of murder in the second degree. He applied for a new trial
on various grounds, to be stated and discussed hereafter. A
new trial was refused him; and he placed his exceptions on
the record and sued out a writ of error. The District Court,
either because there were hard questions to be solved, or for
the purpose of settling the rules of law on certain floating
questions, reserved the whole case to be decided in this
court; and here we are.

I.—The first error of which I complain is, that the verdict
of the jury was contrary to the evidence in the case, and
the court refused to set it aside.

The disaster occurred on Sunday evening between sunset
(90)
PETER GANDOLFO vs. THE STATE OF OHIO, 91

and dark, in the street of Cumminsville, amidst a crowd of
German people, drawn together by the noise and tumult of
a battle with horse-whips, which had just been fought be-
tween Augustus Gandolfo and the deceased.

In continental Evrope, the Sabbath is observed as an holy
day before and at divine service; after the service is over,
it is kept as a holiday; the afternoon and evening being
devoted to songs and dances, mirth and music, wine and
wassail, beer and billiards. In like manner the Germans
keep the Sabbath in Cincinnati and its suburban villages—
in like manner it was kept in Cumminsville on this luckless
day. This accounts for the great crowd of Germans on the
street. It accounts, also, for the confusion of the witnesses,
who, for the most part, saw what they saw through the
double twilight of descending evening and lager beer.

The last remark applies to the witnesses only; for, go far
as the record shows, neither party to this unfortunate affair
was engaged in dissipation, or under the influence of intox-
icating drinks,

Gandolfo and his party had been at the Spring Grove
Cemetery, and were returning to the city by the usual way,
in a barouche, with one horse, two seats and four passengers.
Snyder and his party, being all milk-men, were driving in
the contrary direction in two milk wagons, side by side, or
nearly so. The barouche was driven by Augustus Gandolfo,
and the milk wagon engaged in the collision was driven by
the deceased. Gandolfo, as the law directs, drove his
barouche to the right, within from four to six feet of a long
ridge of broken rocks, prepared for the road; leaving a
broad street to the left for the rest of the public to occupy.
The two milk wagons separated; one of them taking the
right, “ as the law directs;” the other, driven by Snyder,
taking the left, as the law forbids. Whether there was any
design in this is not shown by the record, and the custom
92 PETER GANDOLFO vs, THE STATE OF OHIO.

of milk-men is not in evidence. One thing we know, Sny-
der, with abundance of room on the right side, forced his
horse and wagon through on the wrong side, where he had
so little room that his near wheels must have run against
the stone ridge.

Whether a collision actually occurred, is doubtful; but
that there was great danger of a collision can not be doubted.
To avoid a collision, as he says, Augustus Gandolfo struck
Snyder’s horse with his whip. They passed each other;
and as soon as Snyder could rein up his horse, he came
down upon Augustus, with whip in hand, to chastise him
for striking his horse; and a battle with whips ensued.
They mutually lashed each other, without the interference
of any one, till they were both satisfied and parted. The
German witnesses, who stood on the ground, say that Gan-
dolfo turned the butt of his whip and knocked Snyder down
several times. The American witnesses, who sat in carriages
above the crowd, say he struck him only with the lash, and
that he did not knock him down at all. I neither know nor
care, nor have I any opinion how this matter was. The
contradiction only goes to show how very uncertain is the
testimony of a mixed, excited and confused crowd, suddenly
emptied from the beer shops into the street, in the twilight of
the evening. Four things are out of doubt: First, that
Snyder commenced the assault; second, that he had the
worst of the battle; third, that the battle was ended; fourth,
that Augustus Gandolfo had taken his seat in the carriage,
and was waiting for his companions to take their’s also, and
go home.

How long this interval of peace lasted is very uncertain.
For aught this muddy-headed crowd of witnesses kuow, it
might have been a quarter of an hour, or a quarter of a
minute. But there was an interval of peace of some dura-

tion, as all the witnesses agree. It was so long, at least, that
PETER GANDOLFO vs. THE STATE OF OHIO. 93.

Van Wurmer, who was disgusted with the manner in which
the fight was conducted, had time to strip off his coat and
challenge a fair fight, be disappointed, put on his coat, and
start home on foot, before the second combat came on.

Through all the first combat, and through all the peace
which followed, Peter Gandolfo took no part. He did not
move a foot, raise a hand or utter a word. He simply held
the horse by the bridle till all was over, and his brother re-
sumed the reins, and called his companions to their places
in the carriage. Then he moved from the horse’s head to
the backward step of the carriage, and, some of the wit-
nesses for the State say, put his foot on the step to get in.
What is said about the manner in which he carried his
hand is all imagination. No two witnesses agree as to how
he carried it; each one imagining a manner of his own,
consistent with how a man armed with a knife would carry
it. But few of the witnesses pretend to have noticed any
peculiarity: none of them noticed a knife. One thing is
certain: if he prepared the knife while at the horse’s head
and carried it in his hand to strike the blow, he did not
put his foot on the step to get in. If he put his foot on
the step to get in, he changed his purpose before he struck
the blow.

Here, then, is the turning point of the case. Who was
the aggressor in the conflict between Peter Gandolfo and
Peter Snyder? Was it a conflict at all? or did Gandolfo
strike the fatal blow without a provocation? or did Snyder
assail him and strike him with a stone, as some of the wit-
nesses say ?

First of all, what was Snyder doing there at the time?
Why did he lurk behind the carriage wheel? He had fought
his battle with Augustus, got the worst of it, and the con-
test was ended. He had declined the fight with Van Wur-
mer, who is an athletic man, and Van Wurmer had left the
94 PETER GANDOLFO vs, THE STATE OF OHIO.

field in disgust. Why did Snyder still linger about the
carriage, till all the party except this boy had gone? The
remaining motive for strife was all on Snyder’s side. His
horse had been whipped, and he had been whipped himself
and felt sore; and, thovgh willing to end the combat with
Augustus, who was an overmatch for him, and to decline
a combat with Van Wurmer, who was too strong for him;
he might have been willing to hurt the little brother, who,
though unoffending, was yet one of the offending party.
Four witnesses swear that he did make an assault on Peter
Gandolfo where he stood, and struck him with a stone on the
mouth before he (Gandolfo) struck Snyder with the knife,
or moved toward him. Is this story of the stone, and the
blow in the mouth, a mere fabrication, or is it a fact? How
do the surroundings speak? First, there lay the ridge of
broken stones, on the very spot; second, Snyder knew the
use to which these stones could be put; the witnesses for
the State, as well as those for the defense saw him pick up
stones from this pile; third, Peter Gandolfo had a wound on
his upper lip, made with a dull instrument, like a stone—a
contused cut an inch and a half long, and a bruise extend-
ing from the cut upward into his face. The blood was seen
on his mouth by the witnesses for the State, and one of them
saw the blood fresh on his mouth in the midst of the com-
bat, and, in his zeal for the punishment of the boy, volun-
teered his opinion that it spouted from the wound in Sny-
der’s neck. But Dr. Webb examined the wound from which
the blood came, and found it real.

There is yet another argument. According to the known
laws of human action, Peter had no motive for using the
deadly weapon, unless some injury was done to him, or
menaced to be donc, at the time. There was no other in-
jury, either real or imaginary, which could move him te
the deed. The original quarrel had been with his brother.
PETER GANDOLFO vs, THE STATE OF OHIO. 95

The first battle had been with his brother. His brother
had been victorious in the battle, and was satisfied; and if
the brother was satisfied, why should he be dissatisfied ?
Putting together the want of any other motive, the circum-
stantial proof that he was wounded by the deceased, the
positive proof that he was wounded by somebody, and the
testimony of four witnesses that they saw the blow struck
by the deceased; and it is not easy to deny that Snyder
made an assault upon Gandolfo, and that the stab with the
knife was given in response to a blow with a stone.

Nine witnesses for the State concentrate their memories
on the fact that Peter Gandolfo stabbed Peter Snyder with
a knife, and that they did not see Snyder strike Gandolfo
with the stone. But does the fact that they did not see
Peter Snyder first strike Peter Gandolfo with a stone, pre-
clude the truth of a fact sworn to by four living witnesses,
corroborated by circumstances which are not explained, and
cannot be explained on any other hypothesis? If these
nine witnesses were infallible, one would expect an agree-
ment between them on other important facts which fell un-
der their notice. But there is no such agreement. The
differences between them cannot be accounted for by the
ordinary allowance for the frailty of human memory, with-
out calling to our aid the day, and the hour, and the place,
and the occasion, and the probable conjecture that most of
them were too drunk to know or to remember accurately
anything that did take place, except the tragic fact that Pe-
ter Snyder was slain by Peter Gandolfo.

Take, for example, that which goes directly to the motive
of the plaintiff—the language used by him when he struck
the blow—and let us sce how these witnesses agree. One of
them says his words were, ‘ You son of a bitch! if you are
not satisfied, I will give you enough.” Two others say the

words were, “God damn you, I’ll give you enough.” One
7
96 PETER GANDOLFO vs. THE STATE OF OHIO.

says that he said something; but, as he did not understand
English, he cannot say what it was. Five out of the nine,
who profess to have seen and heard all that occurred, swear
“ He did not speak a word.” Were we are left in the dark
as to what he said, or whether, .in fact, he said anything.
The witnesses for the defense, four in number, heard him
say nothing; five of the witnesses for the State say that he
said nothing. That makes nine, who heard him say noth-
ing, against three who disagree as to what he said, and one
who did not understand him.

If I am reminded of the superior value of positive evidence
over negative evidence, then I claim the benefit of the rule,
on behalf of the witnesses who testify to the blow with the
stone, the wound on the lip, and all that class of evidence
which tends to make a case of self-defense; or at the worst,
a case of manslaughter. Unquestionably, if it be true that,
with a stone in his hand, Snyder sprung upon this’ hitherto
unoffending boy, and struck him a violent blow in the mouth ;
and, with a knife which was one of the tools of his trade,
and carried in his pocket for the purposes of his trade, Gan-
dolfo, on the instant, struck Snyder this fatal blow; the case
comes within one of two classes: either he slew Snyder un-
der the apprehension of death or great bodily harm to him-
self, which would make a case of self-defense; or he killed
him in the heat of blood, upon a sudden quarrel; which would
make a case of manslaughter.

But the jury set aside all the testimony as to this blow
with a stone, and treated the case as if there had been no
such proof. It is not possible they should have believed it,
or the verdict, at the worst, could not have exceeded man-
slaughter. This the jury had no right to do. But I can see
plainly enough the reason why they did it. Augustus Gan-
dolfo, the plaintiff’s brother, came on the witness stand so
drunk that he did not know how to behave himself; swag-
PETER GANDOLFO Us. THE STATE OF OHIO. 97

gered and cmbellished his story at such a rate that the jury
did not believe a word of it. Then came Mr. Sowers, an
ignorant man, who, on cross-examination, admitted that he
had lain in jail a long while, for want of money to pay his
fine, incurred in some quarrel he had got into; and that,
since he had got out of jail, he had been in the employment
of Peter Gandolfo, the defendant’s father, cutting ice; and
on being asked why his little son did not come to court, he
said he had no shoes; and thereupon the boy’s fees and a
new pair of shoes were sent to him by the Gandolfos; and
old man Sowers went on. But, the jury did not believe the
story ; they thought that it was made up on Gandolfo’s ice-
pond. Next came young master Sowers, with his new shoes:
on, and told his story in a plain, direct and straightforward
truthful way. But he was the son of old man Sowers, who
had been in jail, and worked for Gandolfo; and he had no
shoes to come to court till Gandolfo bought him a pair; and,
on cross-examination, he admitted that counsel for the prisoner
had taken him to a room, and asked him to state all he saw
of the matter; and so the jury set aside his testimony. Last
came Frank Peuth, who agreed with the other three as to
the blow on the mouth with the stone; but in other respects
his narrative was confused, and told in bad English, and the
jury did not believe him. Now, in all this the jury were
wrong, and for this wrong the court below ought to have set
aside their verdict. It was error not to set it aside; but that
error was greatly enhanced by what followed.

Shortly after the trial at Bar, two new witnesses were
discovered, Alexander Gillon and Frank Bates, who had
seen the whole transaction from the most advantageous
position. Their affidavits were taken and offered in support
of the motion for a new trial. These affidavits make a
part of the record, and need not be recited, or their contents
alluded to, except to say that they not only sustain the
98 PETER GANDOLFO vs. THE STATE OF OHIO.

staternent of the other four witnesses as to the blow with a
stone, inflicted by Snyder on Gandolfo’s mouth, but they
show that when Snyder made the assault, he was aided by
another man, onc Mike Shoemaker, who, on some account,
left the country before the trial. Had the statements of
these two witnesses been before the jury, the verdict must
have been different; for who shall say that an unoffending
man, below the common stature, set upon and beaten by
two men of superior strength, armed with stones, might
not apprehend danger of death or great bodily harm, and
lawfully slay his assailant in self-defense.

This leads to the consideration of another ground of error,
shown by the record.

II.—I propose, in the second place, to notice the refusal
of the court to receive the affidavits of Gillon and Bates in
support of the motion for a new trial. |

These affidavits were rejected, on the ground that the evi-
dence was cumulative merely.

I am always perplexed, when a grave gentleman thrusts
in my face a rule of law which neither he nor I understand.
I never understood, and never met a man or a book that could
explain to me what manner of evidence that was which was
cumulative merely; unless it means carrying coals to New-
castle. I have supposed it meant this; that, where a fact
was well established by proof, and, notwithstanding this, a
jury found against the party offering such proof, a court
would not set aside the verdict, because more evidence had
been found to the same fact. If the rule goes beyond this,
it runs into absurdity. A party is not able to make out his
case with such proof as he has. After the trial he discovers
other witnesses, by whose testimony he can make that clear
which on the trial was obscure; and that strong which on
the trial was feeble. Is this what is meant by testimony

cumulative merely ?
PETER GANDOLFO vs. THE STATE OF OHIO. 99

Let me illustrate by a case that is, at least, possible. A
citizen is murdered in the streets of Cincinnati, at twelve
o’clock, precisely, by the cathedral clock. The murderer is
seen running away from the dead body. His size, figure,
face, gait, ete., so much resemble mine that I am identified
by the witnesses as the person. Besides, the person slain
Was my enemy, and vague, indefinite threats, which the
witness did not understand when they were made, are proved
against me. How shall I escape? I remember that at this
particular hour I was in Covington, Kentucky, but do not
remember the name of one man I met there. I send my
agent over and search in vain for any witness, except a little
slave who did me an errand on this occasion. It is a poor
show, but it is the best I can do, and I send for the boy.
But his master will not allow him to come over to Ohio,
for fear he might be stolen. In my desperation, I raise the
money and purchase the slave boy, bring him over, and put
him on the stand. He identifies me fully, and remembers to
have scen me the. night of the murder, and thinks it was
about midnight, but won’t be certain; and on the cross-ex-
amination, it comes out that I bought him from his master
and set him free on purpose to testify in my case. The jury
don’t believe him, and I am convicted. Next week, two
substantial citizens of Kentucky, who had been absent and
did not hear of the trial till it was over, come across to see
about the matter, and visit me in the jail, and recognize me,
and remember distinctly, from impressive circumstances,
that they saw me in Covington the night of the murder, and
remember the hour from hearing the town-clock. I take
their affidavits, and offer them in support of a motion for a
new trial. No, says the judge, you proved the same fact by
the negro boy, and the testimony of these gentlemen is cu-
mulative merely. If this is law, it is time the world knew
it.
100 PETER GANDOLFO vs. THE STATE OF OHIO.

This very point was decided in the case of Guyott vs.
Butts (4th Wendell, 579). In that case the plaintiff obtained
judgment against the defendant for $300, on a due-bill.
The defense was payment, and evidence to sustain that
defense was offered by the defendant at the trial. To sup-
port a motion for a new trial on the ground of newly-dis-
covered evidence, the defendant produced the affidavit of
one Vickery, to the fact that the plaintiff had admitted
that nothing was due on the due-bill in question, on which
judgment had been rendered; and also affidavits showing
that this witness, as well as others, who would testify to the
fact, had been discovered by the defendant since the trial,
the affidavits of these latter witnesses being produced. The
objection raised was that this evidence was cumulative merely ;
but Judge Marcy allowed the new trial. His reasoning will
be found in the report of the case.

Allow that Judge Marcy was wrong—or allow that I
misapprehend the decision—allow that the law will not
grant a new trial for the purpose of making a weak fact
strong, or an obscure fact clear—allow that the law requires
the discovery of a new fact, before it will grant a new trial;
still this case is within the rule. Say that is an old fact, that
Peter Snyder assaulted and beat Peter Gandolfo with a
stone, it is a new fact that Mike Shoemaker was at his back
aiding and assisting him in the assault.

If this newly-discovered evidence was admitted, it would
tend powerfully to prove that the plaintiff was in actual
danger of death, or maiming, or other great bodily harm,
and that he slew his adversary in self-defense. And if in
addition to this, the proof showed that the deceased was a
fierce, quarrelsome and dangerous man, the conclusion would
be irresistible; and this suggests another of the errors as-
signed.

III.—In the trial at Bar, testimony was offered to prove
PETER GANDOLFO vs. THE STATE OF OHIO. 101

that the deceased was not a peaceable, but a quarrelsome
man; and this testimony was rejected.

We should always tread lightly on the ashes of the dead;
but occasions may arise, in which the rights of the living
are more important.

When one is slain by poison, assassination, or in any
mode where the question of self-defense can not arise, it is
very clear that his character can not be brought into the
trial. ‘ But where he is slain in battle, and a question of self-
defense or a question as to the degree of homicide arises, it
is often very important. Where a man defends himself, he
has a right to measure both his weapons and his blows, by
the power he has to contend against. The fierce and danger-
ous character of the assailant is one of the elements of dan-
ger and of fear, as much so as the size of the man or the
character of his weapons.

But it has been said that this character must be brought
home to the knowledge of the slayer, before he can avail
himself of it as a matter of defense. Unquestionably, if the
knowledge was brought home to him, or if threats had been
communicated to him, it would make a much stronger case.
But suppose his bad reputation as a quarrelsome man to be
general and notorious, so much so that the presumption of
common sense is that the defendant knew it, will not the law,
in favorem vite, raise the same presumption?

There is yet another and a clearer ground on which this
evidence should have been admitted. Here was a conflict
of evidence as to which of the two, Gandolfo or Snyder,
commenced the combat. And this is a material and im-
portant question, whether we seek to acquit the defendant
on the ground of self-defense, or to reduce the degree of
homicide on the ground of hot blood and sudden quarrel.
The witnesses were divided on the question of priority, and
it hung in doubt. It is a clear rule of law, that, in such a
102 PETER GANDOLFO vs. THE STATE OF OHIO.

case, the defendant may put in his own good character as a.
peaceable man, to turn the doubtful scale; and, by a parity
of reason, he may put in his adversary’s bad character, as a
quarrelsome man, for the same purpose. This suggests an-
other error, apparent on the record.

IV.—The defendant at Bar offered evidence to prove his
general good character as a quiet and peaceable man, from
the personal knowledge of the witnesses, aside from his rep-
utation, and this was rejected by the court.

As I understand the law, a person accused of a crime,
where there is any question in doubt, on which his charac-
ter may cast light, has a right to put his character in evi-
dence, in order that the jury, who are to solve the doubt,
may judge whether such a character is consistent with such
a crime.

Perhaps this rule of law, in the abstract, is not disputed.
But in Hamilton county, whenever a witness is called for
that purpose, the State’s Attorney objects—the court is
called on to instruct the witness in the meaning of words;
and the court explains to the witness that the word charac-
ter means general reputation; and that unless he will use it
in that sense, he may not use it at all; that he is not at lib-
erty to say he is acquainted with defendant’s character, un-
less he mean thereby, that which the people in general say
about him; that what he knows of the defendant’s character
himself, he must keep to himself.

I know this narrow rule of evidence has ben laid down
as to the impeachment of witnesses. One witness may not
give his private opinion of the credibility of another witness.
He may not state particular instances of falsehood, from
which his opinion is formed. Before you can impeach a wit-
ness, he must have lied till he has established a reputation
asa liar. That reputation must be general and known to

the impeaching witness, or he must hold his peace.
PETER GANDOLFO vs. THE STATE OF OHIO. 103

The reason of this rule is always stated in the same way.
It is presumed that every witness is always ready to defend
his general reputation, while it is unreasonable to expect him
to defend himself against the bad opinion of one man, or
against a specific charge of which he never heard before.
This reason is founded in sound philosophy; because that
which is a matter of private knowledge or opinion, can be
known but to few; while everybody may be presumed to
know what everybody says.

But, except in Hamilton county, this rule never was ap-
plied to the case of a man who puts his good character be-
fore a jury to solve a doubt or rebut an accusation of crim-
inal purpose. The object of introducing the proof is totally
different. It is not introduced to destroy, but to sustain
character. No man’s good name suffers by such testimony.
While it may secure justice to one man, it inflicts injustice
on none. The party accused puts in not only his good name,
as it may exist in the public mind, but his good character,
as it actually exists in the knowledge of his intimate ac-
quaintances. His real character, as established by his good
deportment, is far more important to the cause of truth and
the ends of justice, than his general reputation. His charac-
ter is a substance; his reputation is a shadow. His character
is a truth-speaking voice; his reputation is a babbling echo.
His character is real; his reputation may be fictitious. And
if one class of evidence is more reliable than another, our
simplest ideas of justice demand that the better class should
be put before the jury, in order that they may cut all knots,
and solve all doubts by the best lights which the evidence
can afford.

Let me illustrate the injustice, the folly, of this new-fan-
gled rule of evidence. I have in my employment for twenty
years the same man: quiet, noiseless, unobtrusive ; he med-
dles with nobody’s business but his own. He has kindled
4104 PETER GANDOLFO vs. THE STATE OF OHIO.

my fires, cultivated my garden, mowed my lawn, pruned my
orchard, tended my stock, driven my team, sold my surplus,
bought my supplies, handled my money, collected my rents,
paid my debts, and done every other act for me which a
faithful, honest, conscientious servant may do. At the end
of twenty years, he receives from some one, he don’t know
or remember whom, two one-dollar counterfeit bills—pays
one out and keeps the other. If he knew the bill he paid
out to be a counterfeit, he has committed a high crime; and
if its fellow is found in his possession, it is proof of his
guilty knowledge, as our courts have held. He is arrested,
cast into prison, indicted for passing counterfeit money, and
put upon his trial. It is not an absolutely clear case, and
the Court graciously allow him to rebut the felonious intent
by putting in his good character, if he can; and he sends
for me, and puts me on the stand. I am asked if T am ac-
quainted with this man’s character for honesty, and reply,
“ Perfectly well.” Then I begin to tell how long I have
known him—in what relation he has stood to me—what my
opportunities have been—when up jumps the prosecutor, and
down comes the judge’s gavel. I am rebuked and admon-
ished and instructed. I am informed that the word char-
acter means general reputation, and that, unless I know what
the public at large say of this man, I have no right to speak.
I stand amazed for a moment, and confess that I never heard
the public speak of him, good, bad, or indifferent. I am
told to stand aside. I refuse to leave the stand without a
word of explanation, and the Court allows me to explain.
Under this license to explain, I tell the jury that I don’t
‘know what the public say about this man, but that I know
him to be an honest man. I am committed to jail for con-
tempt—my testimony is ruled out—and the defendant is con-
victed.

I think I may pause here for a moment, and ask the Su-
PETER GANDOLFO vs. THE STATE OF OHIO. 105

preme Court of Ohio whether this be law—whether this be
justice—whether this be common sense—whether this: does
not shock the common conscience of mankind.

Substantially, this case is the same. Here was an obscure
boy, of whose existence the public at large had no knowl-
edge. He had been bound to a trade at twelve years of age,
and remained nine years constantly in the same shop—five
years as an apprentice, and four as a journeyman. If he had
been a fast young roisterer, circulating from the coffee-house
to the brothel, and from the brothel to the station-house, and
from the station-house to the police court, and from the po-
lice court to the city prison, he would have had a general
reputation. As it was, he had none. The world at large did
not know him. He was not the topie of public discourse.
He was too young, too obscure, too well-behaved, to be the
topic of public discussion. He was known only to his own
family, his master, and his shopmates. Of course, according
to the new-fangled idea, he had no character.

But Peter Gandolfo had a character, and was able to prove
it. Peter Gibson, with whom he had learned his trade, and
in whose shop he had worked nine years, stood by his side.
His shopmates, with whom he had worked, stood all around
him, ready to swear that, for the nine years they had known
him, from twelve years old to twenty-one, he was so gentle,
so kind, so humane, so amiable, that he was the favorite of
the shop. But they had not heard his general reputation.
He had_ no general reputation, and therefore they were for-
bidden to speak. Peter Gibson alone spoke out, notwith-
standing the ruling of the Court.*

There was no doubt that the defendant killed Snyder.
But, in determining whether the fatal blow was struck in
self-defense; on a sudden quarrel ; in recent malice; or with

 

_ * Judge Gholson, in the Supreme Court, approved the principle, but
thought that Peter Gibson’s outbreak satisfied the law.
106 PETER GANDOLFO vs. THE STATE OF OHIO.

deliberate and premeditated malice, the jury had a right to
know his true character from those who had studied it from
his life and deportment. But his true character was hidden
from their eyes. A short segment of his life, not exceeding
ten minutes, was all they were permitted to see; while a
counterpart of nine years, which lay behind, was involved
in darkness.

I have not found a case where this precise question was
raised, argued and decided. There are, as far as I know,
no authorities on the question. It is not likely that such a
question was ever started till within the last five years. The
practice, and the usages of the courts, as I shall show, have
always been against this new doctrine.

The text writers tell us that the party accused, when a
material question is in doubt, may give his good character
in evidence, to rebut the idea of his guilt. Wills, at page
131, on the authority of Lord Ellenborough, in Rex vs. Da-
vison (31 St. Tr. 217), states the law thus: “In forming a
judgment of criminal intentions, evidence that the party has
previously borne a good character, is often highly important
if the case is doubtful; and, if it hangs in even balance,
character ought to make it. preponderate in favor of the de-
fendant. But if the evidence of guilt is complete and con-
vincing, the testimony of previous good character cannot,
and ought not to avail. The reasonable operation of such
evidence is, to create a presumption that the party was not
likely to have committed the act imputed to him; which pre-
sumption, however weighty in a doubtful case, cannot but
be irrelevant and unavailing against evidence which irrefra-
gably establishes the fact.

“ Evidence of character must, of course, be applicable to
the particular nature of the charge; for instance, to prove
that a party has borne a good character for humanity and

kindness, can have no bearing in reference to a charge of
PETER GANDOLFO vs, THE STATE OF OHIO. 107

dishonesty. The correct mode of inquiry is, as to the gen-
eral character of the accused, and whether the witness thinks
him likely to be guilty of the offense charged against him.”

If Wills quotes Ellenborough correctly in this last clause,
his lordship carries the province of the witness further than
I claim for it. What I claim is, that the witness may state
the general character of the accused; not merely the general
reputation he has learned from the public at large, but that
which he knows from his own observation of his daily de-
portment in the affairs of life; and that it is the province
of the jury, from that and other evidence, to “ think whether
he is likely to be guilty of the offense charged against him.”

What I wish particularly to remark in this place is, that
in all the text writers, and in all the state trials I have met
with, I have not seen an instance where the words general
character have been limited to the sense of general reputa-
tion. The only limitation I find is this: that particular acts
of kindness, of humanity, of honesty and the like, cannot
be given in evidence. But the general character—the out-
growth of all the acts of a man’s life—may be given in
evidence.

I promised to prove that the practice of the courts had
been adverse to this novel rule of evidence, and I shall
do it.

In order to do this, I have selected a few cases from the
“State Trials,” which, for convenience to myself, I cite from
the “Celebrated Trials,” mostly English, but some of them
Scotch, and others American cases.

1. In the case of James Stuart, tried for the murder of
Sir Alexander Boswell, the report says: “ Many witnesses
concurred in describing Mr. Stuart as a most humane and
amiable man.”—P. 70.

2. In the case of Eliza Fanning, tried for an attempt to
poison Mr. Orlibar Turner and family, the report says:
108 PETER GANDOLFO vs. THE STATE OF OHIO,

“The prisoner called five witnesses, who gave her the char-
acter of a good-natured and amiable disposition.” —P. 87,

3. In the case of William Jones, tried for the murder of
Betty Jeffs, the report says: “Several witnesses deposed
that the prisoner bore a humane character.”—P. 97,

4. In the case of Joseph Wall, tried for the murder of
Benjamin Armstrong, the report says: “Gen. Forbes had
known Mr. Wall between thirty and forty years; they had
served togethor at Havannah. After that he had not an
opportunity of seeing him till the year 1786, when he met
him in Paris. With respect to his character he had always
known him to behave as became an officer and a gentleman,
in every respect, and with the most perfect correctness.”

“Gen. McKenzie stated that he had known Gov. Wall
from the year 1763 to 1770; that he had served with him,
and always regarded him as a man of great humanity and
good temper.”—P. 235.

5. In the case of Richard Savage and others, tried for the
murder of James Sinclair, the report says: “Several persons
of distinction appeared on behalf of the prisoners, and gave
them the characters of good-natured, quiet, peaceable men,
and by no means inclined to be quarrelsome.”—P. 244.

6. In the case of Joseph Baretti, tried for the murder of
Evan Morgan, the report says: “To the character of Mr.
Baretti, appeared Sir Joshua Reynolds, Dr. Johnson, Mr.
Fitzherbert, and Edmund Burke, Esq., all of whom repre-
sented him as a man of benevolence, sobriety, modesty and
learning. The Hon. Mr. Beauclerk, Mr. Garrick and Mr.
Molini, all confirmed this testimony.”—P. 323.

7. In the case of Lucretia Chapman, tried for poisoning her
husband, where numerous witnesses were examined, both as
to the domestic harmony of the family, and’ the character of
the defendant, the report says:

“TLevi V. Vanpecrirt—lI live within three hundred
PETER GANDOLFO vs. THE STATE OF OHIO. 109

yards of Mr. Chapman; they were my nearest neighbors.
They lived there three or four years. Mrs. Chapman was
the active person about the establishment. We had a good
deal of intercourse. They lived in perfect harmony, so far
as my knowledge extends. I never saw any impropriety in
her conduct. On cross examination as to what was said by
others, he says, ‘Mrs. Chapman is said to be an excellent
teacher. I never heard any one say they saw any impro-
priety in her. She was considered a moral woman by all I
ever heard speak of her, and she is so in my opinion.’ ”

“JosEPH Macorrin—I knew Mr. Chapman first in 1817
and Mrs. Chapman sometime in 1818, when they were mar-
ried. They lived harmoniously together. Her genera] char-
acter was good; all that I heard against her was, that she
had a high temper; but I never saw any thing of it. They
were both highly moral. Her character appeared as good
after she left the city as before.”

“Wibiuiam M. Gouce—I became acquainted with Mr.
and Mrs. Chapman in 1826. I was well acquainted with
them from that time until they went to the country. I never
saw any impropriety in Mrs. Chapman.”

“Henry Korn—I was acquainted with Mr. and Mrs.
Chapman in September, 1826. I knew them intimately.
My daughter was a pupil of theirs for six months. Mrs.
Chapman seemed to be the active one of the firm. Her
character was more than moral; I thought they were a very
religious family. They lived more harmoniously than peo-
ple usually do. I have no hesitation in saying her character
is good.”

“Francis C. Lappe—I knew Mrs. Chapman a year be-
fore she was married, when she was Miss Winslow. I have
been well acquainted with Mr. Chapman. I have been at
their house frequently. I taught dancing in their school for
four years. They lived very happily together, as far as 1
could see. My acquaintance continued until they moved to
the country. Previous to my daughter going to her shool,
I made inquiries as to her character. Her character is
good.”

“JosEpH Drxon—I reside in Philadelphia. I have re-
110 PETER GANDOLFO vs. THE STATE OF OHIO.

sided in Mrs. Chapman’s neighborhood. 1 have known her
between twelve and thirteen years; I knew her husband.
Three of my daughters were pupils—they continued two
years. They lived in harmony, as far as I know. I have
seen her but once since she removed to the country. There
was interchange of visits between our families in Philadel-
phia. Her general character was good.”

“Witiiam Duane, Esq@.—lI was acquainted with Mr.
and Mrs. Chapman. I became acquaintéd with them in
1826, and have known them ever since. She held, as well
as himself, a highly respectable character, and was entirely a
lady in her deportment.” .

“Miss JANE VaLLANcE—I have known Mr. and Mrs.
Chapman for many years, but have not had very familiar
intercourse with them. My sister and I were pupils of
theirs; I cannot say how long. I have not been intimate
enough to say how they lived together. I considered Mrs.
Chapman’s moral character good before this affair. My sis-
ters have been at school at Andelusia. I reside in Phila-
delphia.”

“Miss CATHERINE VALLANCE—Testified, that she and
several of her sisters had been pupils of Mrs. Chapman;
two of them since the removal to Andelusia; and that the
general character of Mrs. Chapman was very good up to
this affair.”

“Wirttram Saaw—Testified, that he had known her
about nineteen years, but had never visited her house since
her marriage ; and that. her general character was good while
he knew her.”

“Miss EvizA VANDEGRIFT—I have known Mrs. Chap-
man ever since she lived in our neighborhood. , We were near
neighbors, and interchanged visits with each other. IT have
been at her house for a week at a time. I was there two or
three days at the time of the funeral. Mr. and Mrs. Chap-
man appeared to live very agreeably together. Her general
moral character was good, up’ to the time of this disturb-
ance.”

“ Witiiam VANsANT—I live in Warminster Township. I
have known Mr, and Mrs. Chapman about five years. JI was
PETER GANDOLFO vs. THE STATE OF OHIO. 111

a pupil of their’s. They lived in Pine street the first time I
was with them; the second time in Andelusia. I remained
at Andelusia eleven weeks. Mrs. Chapman was the active
person of the establishment. I never saw any thing unkind
in the conduct of Mrs. Chapman toward Mr. Chapman. They
lived generally harmoniously. Her general moral character
was very good. We had prayers and reading in the morn-
ings.”

“Mercy Baxter—Testified, that she was a scholar and
assistant in the school of Mrs. Le Brun, in which Mrs. Chap-
man was a teacher in 1814 and 1815, and that Mrs. Chap-
man then sustained an unblemished character.””—Pages 387,
88, 89, 90, 91.

8. In the case of Henry Fauntleroy, Esq., tried for for-
gery, the report says: “The following witnesses were called,
as to the prisoner’s character, and examined by Mr. Guerney:

“Mr. Joun Witson—Knew Mr. Fauntleroy about sixteen
years, during the whole of which time he had maintained
an unspotted character; he always considered him a man of
the strictest integrity.”

“Str Cuarues Forses—Had known. Mr. Fauntleroy
twelve years, and always considered him an honorable and
obliging gentleman, and an upright man of business.”

“Mr. Gray—Knew him fifteen years, and always consid-
ered him deserving of the highest esteem and respect.”

“Mr. Borr—Knew Mr. Fauntleroy twenty-seven years,
and always esteemed him a kind, an honorable and upright
man.”

“Mr, JAMES RoprnsoN—Knew him eleven years, during
which time he maintained as high a character as man could
possess.”

“Mr. Wanp—Was acquainted with Mr. Fauntleroy eleven
years; his character was most excellent.”

“Mr. Linpsay—Knew Mr. Fauntleroy ten or twelve
years ; he did not know a man who appeared to possess more
kind or honorable feelings.”

“Mr. Antuony BRown—Was acquainted with him six-
8
112 PETER GANDOLFO vs. THE STATE OF OHIO.

teen or seventeen years, and always entertained the highest
opinion of his honor and integrity.”

“Mr. Wyatt—Had known Mr. Fauntleroy twelve years;
he was a most honorable, kind-hearted, and benevolent man.”

“Mr, Montreat—Knew Mr. Fauntleroy twelve years;
he was a most benevolent man, and the highest character
for integrity.” .

“Mr. Monracue—Was acquainted with Mr. Fauntleroy
upwards of twelve years, and never knew a more kind-
hearted and humane man. His character was most excel-
lent.”

“Mr. Vernon—Was acquainted with him about sixteen
years ; he always had the best character, and appeared to be
a very kind and a very honorable man.”

“ Mr. Ross—Knew Mr. Fauntleroy fourteen years; he had
the character of being strictly honorable and upright.”

“Mr. Caurco—Knew Mr. Fauntleroy twelve years, and
had much dealings with him. He was always strictly honor-
able and upright in all his transactions with witness, and had
universally the character of strict integrity and honor.”

“Mr. YatmMan—Was acquainted with him twelve years;
he always possessed a character of the highest excellence.”

“Mr. BosHNELL—Was acquainted with Mr. Fauntleroy
fifteen years, and always considered him a perfectly honest
and honorable man.”

In relation to the case of Lucretia Chapman, it ought to
be remarked, that this unfortunate woman had conceived a
most inordinate passion for a young Spaniard, afterwards
hanged for poisoning Mr. Chapman, with whom she married
a few days after her husband’s death; so that her character
was before the jury in various aspects—as a faithful or a
faithless wife—as a woman of good character for kindness
and humanity—her general behavior as to her alleged para-
mour; so that the testimony is somewhat multifarious. The
testimony of some of the witnesses in the case of Fauntleroy
is clearly irrelevant. But all these cases show, that the prac-

tice of the courts has been, everywhere aud always, to allow
PETER GANDOLFO, vs. THE STATE OF OHIO. 113

the personal acquaintances of the party accused to state his
general character, both as a matter of personal knowledge,
and as a matter of public notoriety; a majority of the wit-
nesses,.in all of them, speaking from personal knowledge.

In the case of Joseph Baretti, indicted for the murder of
Evan Morgan; Sir Joshua Reynolds, Dr. Sam. Johnson, Sir
William Fitzherbert, David Garrick, Edmund Burke, Esq.
and Hon. Mr. Beauclerk appeared as witnesses for the de-
fense. Each and all of these witnesses testify from their per-
sonal knowledge to the good character of the defendant. Not
one of them to his good reputation. The English judge did
not instruct them that they must mean reputation when they
said character: and it is reasonable to suppose that some of
these six gentlemen understood the English language.
The People vs. William Bebb.

WINNEBAGO CIRCUIT COURT.

Before Hon. BeEnsamMIN R. SHELDON, Judge,
AT ROCKFORD, ILLS.,

A. D. 1858.

DEFENSE OF HOME: SELF-DEFENSE.

PRELIMINARY STATEMENT.

In the month of May, 1857, Michael Bebb, the second son
of Gov. Bebb, had married a wife and brought her home to
his father’s house. On the night of the 18th, a company of
young men, to the number of twelve, collected cow-bells,
tin horns and other noise-making instruments, together with
a number of guns; and about 11 o’clock opened up a chari-
vari, with cheers, yells, bellowing lke bulls, bleating like
sheep, ringing of bells, blowing of horns, rattling of pans
and discharge of guns.

The family of Gov. Bebb had no previous intimation of
what was intended, and were very much alarmed. The Goy-
ernor took a double-barreled fowling-piece in his hands and
went out, and ordered the rioters off his premises. They
may not have heard him, by reason of the noise they were
making, being in full concert when he went out. Be that
as it may, they gave no heed to the warning. He then dis-
charged one barrel of his gun at too great distance to do
any serious execution, and again warned them to be gone.
All the company except four retreated. These four made a
rush toward the Governor, apparently for the purpose of
seizing him. He retreated a few paces, and, turning round,

shot the foremost man dead on the spot.
(114)
THE PEOPLE vs. WILLIAM BEBB. 115

The next morning he assembled the sheriff and other min-
isters of the law; showed them what was done; furnished
them with the names of all the parties, so far as he had as-
certained them in the meantime; and demanded an investi-
gation. An investigation was had before an examining court,
and the Governor was discharged.

Some months afterward, when he was in the city of Cin-
cinnati on business, he learned through the newspapers that
the Grand Jury of Winnebago county had indicted him for
manslaughter. He immediately telegraphed the sheriff of
the county, informing him where he was and when he would
be home. He went home, surrendered himself and gave bail
for his appearance.

The trial of the case was set for the 4th of February, 1858,
and, in addition to able counsel at home, he added the Hon.
Thomas Corwin and Judge William Johnston, of Ohio, who
were present, conducted the examination and argued the case
to the jury. The argument for the defense was opened by
Gov. Corwin, in a speech replete with wit and eloquence.
Immense numbers of people crowded to hear the trial, from
various motives; chiefly to learn judicially how much an
unoffending citizen might lawfully do in defense of his hab-
itation and household when menaced by lawless assemblies.

The result, it is believed, was satisfactory to all well-dis-
posed persons. Gov. Bebb was acquitted, notwithstanding an
able and learned effort on the part of the.People, in which
every thing was done, that talent and industry could do, to
secure a conviction.

As the criminal code of [llinois is somewhat peculiar,
touching the law of self-defense, the different sections de-
fining homicide are here inserted:

“Src. 32. Justifiable homicide is the killing of a human
being in necessary self-defense, or in the defense of habita-
tion, property or person, against one who manifestly intends,
or endeavors, by violence or surprise, to commit a known
felony, such as murder, rape, robbery, burglary and the like,
upon either person or property, or against any person or
persons who manifestly intend and endeavor, in a violent,
riotous or tumultuous manner, to enter the habitation of an-
116 THE PEOPLE vs. WILLIAM BEBB.

other for the purpose of assaulting or offering personal vio-
lence to any person dwelling or being therein.”

“Src. 33, A bare fear of any of these of offenses, to pre-
vent which the homicide is alleged to have been committed,
will not be sufficient to justify the killing. It must appear
that the circumstances were sufficient to excite the fears of
a reasonable person, and that the party killing really acted
under the influence of those fears, and not in the spirit of
revenge.”

“Src. 34. If a person kills another in self-defense, it
must appear that the danger was so urgent and pressing, in
order to save his own life, or to prevent his receiving great
bodily harm, that the killing of the other was absolutely
necessary; and it must appear also that the person killed
was the assailant, or that the slayer had really and in good
faith endeavored to decline any further struggle before the
mortal blow was given.”—Crim. Code, pages 378 and 379.
THE PEOPLE vs. WILLIAM BEBB. 117

ARGUMENT OF JUDGE JOHNSTON.

May it please your Honor:

Before addressing the jury in this case, in fairness to the
court, in fairness to the prosecution and in fairness to myself
and my colleagues, I wish to submit, under the laws of Lli-
nois, a few instructions, which, at the close of the argument,
we shall ask to be given to the jury. And in greater fair-
ness to all parties, I have caused three clear copies to be
made out; one for the examination and approval of your
Honor; one for the criticism of the prosecution ; and one to
serve me as a chart, by which I may be guided in the course
of an argument which I desire to make brief, but which I
fear will be both dry and desultory.

Ist. Every citizen has a right to occupy his own dwelling-
house in peace and security ; so much so, that the law regards
his house as his castle, which he has a right to defend
against any riotous and unlawful assemblies, that may dis-
turb him in the enjoyment of its occupancy.

2d. If, in this case, the jury are satisfied from the evidence
that guns were employed in the assault on the defendant’s
dwelling-house, in the night season, without any previous
notice to the defendant, or any means whereby he could de-
termine how many guns were so employed; whether they
were charged with deadly shot, or powder only; whether
they were aimed at the house or discharged in the open air;
he had a right to exercise his own judgment in the emer-
gency, both as to the purpose of the assailants and the dan-
ger to himself, his household and his property ; and, if he
reasonably apprehended danger of death or great bodily
118 THE PEOPLE vs. WILLIAM BEBB.

harm, cither to himself or his household, or a known felony
upon either, or upon his house: or that the assailants in-
tended and were endeavoring in a violent, riotous or tumul-
tuous manner, to enter the habitation of the defendant, for
the purpose of assaulting or offering personal violence to any
person dwelling or being therein, he had a right to defend his
house, and in so doing to kill the assailants or any of them.

3d. It makes no difference in this case, whether, in fact,
the rioters intended to commit a felony or not; or whether,
in fact, they intended to enter the habitation of the defend-
ant, for the purpose of assaulting, or offering personal vio-
lence to any person dwelling or being therein, or not. If
their conduct was such, considering all the circumstances,
that a reasonable man might apprehend such danger, it is
sufficient ; and, the reasonable apprehension of the defendant
at the time, and not the opinion of the jury now, as to
whether there was actual danger or not, is the test by which
his conduct is to be judged.

4th. The frequent occurrence of riots, like that in which
Clemens was slain, can never make them lawful; and when-
ever the dwelling of an unoffending citizen is assailed by
such rioters, it is his lawful province to decide for himself,
from all the circumstances, whether a felony upon himself,
his house, or his household, is meditated ; and if, as a reason-
able man, he reasonably apprehends danger, he may lawfully
kill the assailants.

5th. If the jury are satisfied, from the evidence in the
case, that the defendant’s dwelling is remote from civil mag-
istrates, policemen and other ministers of the law, it is a cir-
cumstance, which they may properly take into consideration,
in determining whether the conduct of the defendant pro-
ceeded from bare fear, or whether he acted upon a rational
apprehension of danger.

6th. The 34th section of the Criminal Code of the State
THE PEOPLE vS. WILLIAM BEBB. 119

has reference only to killing in one’s own defensc, and does
not apply to cases of killing in defense of one’s habitation
or houschold, as laid down in the 32d section.

7th. If the jury have any reaxonable doubt of the defend-
ant’s guilt, they must acquit.

Gentlemen of the Jury: I am here among strangers. I have
never had the pleasure of sceing one of your faces before ;
and when I reflect on the frailty of human life, I think it
more than doubtful whether we shall ever again sce each
other face to face in this life. But if the religion of our
fathers be true, we shall meet hereafter in a higher court, to
give an account of the manner in which all of us shall dis-
charge our respective duties to-day.

With this solemn sense of responsibility pressing upon me,
it was painful to hear such frequent allusions to the high
character sustained, and the high positions occupied by the
defendant; and such earnest admonitions, not to allow such
considerations to sway your minds from a proper discharge
of your duty.

We in Ohio had known him from boyhood up. We knew
him as a poor young schoolmaster, laboring at once to culti-
vate his own mind and that of his pupils. We knew him as
a young lawyer, struggling for position in his profession.
We traced him, step by step, to the highest place in the gift
of our people. And when he assumed the highest position
of all—that of a farmer in your State, we still regarded him
with kindly interest. And when the intelligence reached us
that he had kijled a man, and was to be tried as a felon for
the deed; it smote on the breast of every man in Ohio, with
mingled emotions of surprise that such a misfortune could be-
fall such a man, and of anxiety for his pending fate.

These considerations may furnish the reason why the de-
fendant, ‘with better lawyers and abler advocates all around
him, should desire his old friends to be with him on this pain-
120 THE PEOPLE vs. WM. BEBB.

ful occasion. They may explain why my friend Corwin and
I traveled from the south of Ohio to the north of Illinois, at
this inclement season of the year, to tender our aid to an old
friend in the hour of peril. But they afford no reason why
you should depart from the established rules of law, or vio-
late your consciences as jurors. Let me just here, in the
name and by the authority of our client, ask you and each of
you to cast aside all the trumpery of title and fame and pop-
ularity; and try this man as plain William Bebb. He asks
nothing at your hands that you would not award to the poor-
est, the humblest and the obscurest man in Tlinois. We and
he desire the law to be so administered that the record may
stand forever a monument of justice: “ A terror to evil-doers
and a praise to them that do well.”

The tragedy which brought us hither, was enacted about
eleven o’clock at night, near the door of the defendant’s
dwelling-house. The party slain was one of the principal ac-
tors in the tragedy. Counsel for the People say this young
man was unlawfully slain. With unfeigned sorrow, both for
his folly and his fate, we say, he was lawfully slain; and this
conflict of opinion leads directly to an inquiry, what and how
much an unoffending citizen may lawfully do in defense of
himself, his house and his household.

The right of defense comes down to us from a remote pe-
riod in European history, when violence and plunder were
the pursuits of mankind. When the Feudal Lord, to protect
himsclf and his people from violence and plunder, built him-
self a castle, with massive ‘walls and deep moat, entered by
drawbridge and portcullis; this castle was at once his dwell-
ing-house, his sanctuary, his arsenal, and his fortress. Un-
der its shadow his vassals, too weak to defend themselves,
built their cottages. When the alarm bell sounded, all the
vassals repaired to the castle; the women and children for

protection, and the men to take up arms. Thus with every
THE PEOPLE vs. WM. BEBB. 121

portal, parapet and embrasure manned, the Feudal Lord de-
fended his castle, his household and himself; not only by
driving the enemy from the gates; but by sallying out-and
battling with him in the open field, when the safety of the
castle and its inmates required. History and romance are
replete with the stubborn sieges and well fought battles of
the Baronial castle.

In after-times, when, under the influence of a better civ-
ilization, the vassals became freemen, and the protection of
the feudal castle gave place to the protection of the law, the
principle of self-defense remained the same. Each freed vas-
sal carried with him all the rights to defend his habitation
and his household formerly exercised by his Feudal Lord.
No matter where he built his cottage, on the mountain or in
the glen; no matter whether his house was built of marble
and roofed with slate, or built of mud and thatched with
straw: it was in the eye of the law his castle. The law sur-
rounded it with the high wall and the deep ditch, the draw-
bridge and the portcullis; and the king of the realm might
not enter without the permission of its master. This right
of enjoying without molestation, and of defending one’s own
habitation and household, is the ground in which all true
civilization is rooted.

There is no place on earth where this right is dearer to
the people than in these Western States. The pioneer block-
house, the nearest approach, of modern times, to the feudal
castle, is yet within the memory of the old men amongst us.
The daring spirit which built the house of sods and thatched
it with prairie grass, far from the crowded haunts of men,
is still alive amongst us. The toil and hazard which these
habitations cost you make them doubly dear. Here you
have divided your homely fare with the hungry stranger,
and shared the hospitable blanket and bear-skin coverlet
with the worn and weary traveler, and learned what a bless-
122 THE PEOPLE vs. WILLIAM BEBB.

ing it is to have a habitation and a household of your

own.
“Tis sweet to hear the watch-dog’s honest bark

Bay deep-mouthed welcome as we draw near home;
Tis sweet to know there is an eye to mark
Our coming, and look brighter when we come.”

But if these dearly bought and dearly beloved homes are
to be annoyed; if the sacred and endearing rite of marriage
is to be profaned by unearthly howlings and vulgar utter-
ance; if women and children are to be frightened from their
slumbers by the tumult and uproar of an armed mob: what
are your homes worth to you?

William Bebb had spent his youth in the wilderness of
Ohio. His manly years had been identified with her growth
and prosperity. As he grew old, still loving the unfeigned
hospitality and disinterested gallantry of backwoods life, he
fixed his home in Illinois. Here he hoped to spend his days
in peace and quiet. He was no longer encumbered with the
tawdry pomp of office, but was a plain, unostentatious farmer.
He found a little grove in the midst of the prairie, and here
he built a cottage, around which the common law and the
common conscience of the nation, and the written code of
Illinois placed all the rights and privileges of the feudal
castle. If he has abused these rights, let him suffer; but
if he has behaved himself like a true man, let him be ac-
quitted.

Here let me read deliberately the second instruction, which
we claim to be the law of the casc, and shall ask the Court

to give you in charge:

“Tf in this case the jury are satisfied from the evidence,
that. guns were employed, in an assault on the defendant’s
dwelling-house, in the night scason; without any previous
notice to the defendant, or any means whereby he could de-
termine how many guns were so emploved—whether they
were charged with deadly shot, or powder only—whcether
THE PEOPLE Us. WILLIAM BEBB. 123

they were aimed at the house, or discharged in the open air ;
he had a right to exercise his own judgment in the emer-
gency, both as to the purpose of the assailants, and the dan-
ger to himself, his household and his property; and if he
reasonably apprehended danger of death or great bodily
harm, either to himself or his household, or of a known fel-
ony upon either or upon his house :—or that the assailants
intended, and were endeavoring, in a violent, riotous or tu-
multuous manner, to enter the habitation of the defendant,
for the purpose of assaulting or offering personal violence to
any person dwelling or being therein, he had a right to de-
fend his house, and in so doing to kill the assailants or any
of them.”

This instruction, it will be observed, is a substantial reci-
tation of the code of Illinois, which considerably enlarges
the common law right to defend one’s habitation from vio-
lence. At common law, if he reasonably apprehended death
or great bodily harm to himself, he might lawfully kill; or
if he reasonably apprehended death or great bodily harm to
his wife or children, or his man-servant, or his maid-servant,
he might lawfully kill; or if he reasonably apprehended that

“his dwelling-house was about to be burned, broken into or
plundered, he might lawfully kill.

Thus far the code of Illinois goes hand in hand with the
common law; but, in defense of the rights of hospitality,
the code goes a long step beyond the common law. If he
reasonably apprehend that the assailants intend, and are
endeavoring in a violent, riotous or tumultuous manner, to
enter his habitation, for the purpose of assaulting or offering
personal violence to any person dwelling or being therein,
he may lawfully kill. Thus the privileges of the castle are
enlarged ; not only the selfish right of defending one’s own
life and limb and household and house from violence, but of
defending the wayfaring man and the stranger that is within
your gates from violence, are secured by your admirable code.
124 THE PEOPLE vs. WILLIAM BEBB.

Was the defendant within any of these conditions when he
slew Clemens? Let it be observed, first of all, that neither
the defendant nor any of his household had the slightest in-
timation of what was to be done on this occasion. It was
near the hour of midnight, when deep sleep had fallen on
all the household. The stillness of the night was first broken
by unearthly yells, ringing of bells, and discharge of fire-
arms. When he looked from his casements, it was too dark
to distinguish faces or count numbers. The trees in the
grove intermingled with human forms darkly gliding about,
was all. That the latter had deadly weapons in their hands
was manifest from the repeated volleys of fire poured into
the house; but all the rest was hideous mystery. Who they
‘were; from whence they came; and what was their purpose,
were alike mysterious. He knew not “whether they came
as spirits of health or goblins damned—brought with them
airs from heaven or blasts from hell—-whether their intents
were wicked or charitable, they came in such a questionable
shape.” He could only judge by what he saw. They had
guns in their hands, he knew not how many; they were
charged with he knew not what; but being deadly weap-
ons, leveled at his house, he had good reason to apprehend
danger.

To break the force of this conclusion, the surviving riot-
ers, each one of whom feels in his conscience to-day, that he
is guiltier of the death of Clemens than the defendant, come
in here to wash their guilty hands by swearing, that when
they discharged their guns they stood five rods from the
house, and turned them in the opposite direction.

There are only two living witnesses to prove that the guus
were leveled at the house, Edward Bebb, the defendant’s
son, and Laurence McDonald, the defendant’s servant. It
may be admitted that these two witnesses feel a deep inter-
est in the defendant’s acquittal. On the other hand, the
THE PEOPLE vs. WILLIAM BEBB. 125

eleven surviving rioters feel a deep interest in his convic-
tion. Such conviction might serve lewd fellows of the baser
sort two purposes: It might lighten the burden of guilt on
the shoulders of the survivors, and at the same time, by a
judgment of this court, make riots respectable.

But how shall we dispose of a serious conflict betweer. two
sets of witnesses, standing in the ratio of five to one? I
have before me sixty witnesses that cannot lie. The line of
battle was five rods from the house. The guns, with one or
to exceptions, were charged with gunpowder and wads only.
If the rioters, standing on this line, turned their guns in the
opposite direction to the house, when they discharged them,
beyond all question the spent wads would have fallen on the
other side of the line. But look you here, these sixty wads,
scorched and brown, and smelling of gunpowder, fell all
over the space between the line of battle and the house and
were picked up by the sheriff and his party at the dawn of
day next morning. Many of these wads reached the house,
and marred the sanded finish of the wall; some left patches
of paper sticking in the sand, and others brought away
particles of the sand still sticking to them. These wads
were not carried over and drifted against the wall by the
wind. The night was so calm that candles, without lan-
terns, were carried about over the battle-field. Unless there
were more guns than twelve, the wads dropped on the hither
side of the line would require five volleys, and there were,
perhaps, twice that number.

Having silenced this battery of lies, let us turn back for a
moment to the first demonstration of this riot. The hilarity
of the evening was over, and the defendant and his house-
hold were fast asleep. About eleven o’clock, the silence of
night and the slumbers of the family were broken by un-
earthly yells, ringing of bells, and volleys of firearms, as un-
expected as the day of judgment. The men reconnoitered
126 THE PEOPLE vs, WILLIAM BEBB.

the assault from the upper windows, and knew from the
flames which issued from the mouths of the guns that they
were leveled at the house; and ordered that no lights should
be struck in the house, lest it might make the inmates ‘a
better mark to be shot at by the mob. The women hid
themselves in the dark corners and the men posted them-
selves at the front door; and here the defendant armed and
sallied out. Under these circumstances the defendant could
not conclude otherwise than that his house and his house-
hold, his wife, children and friends were all in danger.
Here we are reminded that this was only a charivari, on
the occasion of the marriage of the defendant’s son. Is there
any salvation in the word CHARIVARI, through which the
most damnable outrages can be sanctified and made lawful
and respectable? The defendant had no knowledge either
of the name or the purpose of the mob. It might have
been a charivari. It might have been a corps of Jynch-
ers. It might have been a band of robbers, come to plun-
der his house.. They came like thieves in the night, armed
with deadly weapons. That the purpose of carrying guns on
such occasions is not altogether innocent, is clear enough
from what Bracket, the chief mover in this affair, said, after
the deed was done. When asked why the party brought
guns with them, he replied: “When people go on such busi-
ness, they have their own heads to take care of.” Guns are
carried on such occasions, cither for the direct purposes of -
mischief; or to intimidate the parties trespassed upon; or
to be used in certain emergencies. That more guns were
not used, was no fault of the instigators of the riot. Wher-
ever men were recruited, guns were levied. John and Charles
Elliott were applicd to by Bracket to join the party, and John
was requested to bring his gun. These two young men did
not join the party, because their father did not approve it.
I must pause here to pay a tribute of respect to these two
THE PEOPLE vs. WILLIAM BEBB. 127

young men, who denicd themselves the pleasure of an even-
ing’s riot, because their father did not approve it. Here was.
a pious recognition of the first commandment with promise:
and on behalf of these young men, who hold up their heads.
like honest men, while the eleven survivors sneak in and
sneak out with the blood of poor Clemens on their heads, I
bespeak long life and prosperity. They may well be proud
of such a father. He may well be proud of such sons.

But if this was only a charivari party, and the defendant
knew it, how does it mend the matter? It brings us to the
consideration of the fourth instruction prayed for. “The —
frequent occurrence of riots like that in which Clemens was
slain can never make them lawful; and whenever the dwell-
ing of an unoffending citizen is assailed by such rioters, it
is his lawful province to decide for himself, from all the cir-
cumstances, whether a felony upon himself, his house, or his
household, is meditated ; and if, as a reasonable man, he rea-
sonably apprehends danger, he may lawfully kill the assail-
ants.”

Usage can never sanctify unlawful assemblies. The fact
that one, two, three or half a dozen such riots may come off
without any one being killed, any one’s bones broken, any
one robbed, any house burnt, or other serious harm done, can
be no guaranty for the harmlessness of such assemblies,
Such a party may consist of ninety-nine well meaning per-
sons, and the hundredth may avail himself of the occasion
to take the life or destroy the property of some one to whom °
he owes a grudge. One, at least, of these rioters charged his
gun with deadly shot. What was this done for? Bracket
has answered the question: “ When people go on such busi-
ness they have their own heads to take care of.’ Empty
guns may serve for intimidation; guns charged with powder
may do to terrify women and children out of their wits; but

the fortunes of war may turn up an emergency when men
9
128 THE PEOPLE v8. WILLIAM BEBB.

must take care of their own heads. For such an emergency.
guns must be charged with shot.

To avoid the force of the principle involved in the fourth
instruction, our brothers on the other side announced that
they would prove that the charivari was an ancient custom of
the country, so innocent in itself, und so well understood by
everybody, that no man in his right mind could apprehend
danger from it. Witnesses were examined for this purpose.
The door being thus opened for this kind of evidence, we
called numerous and respectable witnesses to the same point.
The testimony is fresh in your memories, and with such
proof, you cannot imagine a more dangerous or appalling form
of riot than a charivari, as exhibited in the defendant’s
neighborhood, where houses have been cannonaded with
flaming wads, and furniture set on fire: other houses fired
into with musket and rifle-balls, to the danger of life and
limb: doors broken open, and bride-chambers forcibly en-
tered: windows shivered to atoms, and pistols charged with
no one knows what exploded in the ears of the inmates: the
sacred rite of matrimony profaned and ridiculed, as if it were
a vulgar jest: newly-married brides compelled in their night-
dresses to exhibit themselves before “rude fellows of the
baser sort,” with all the other forms of violence and vulgar-
ity depicted by the witnesses in this case.

When I came into this case, both the name and the char-
acter of these orgies were unknown to mc; but I was some-
what acquainted with kindred orgies known by the more
classic name of the anirugian serenade, which, like the cha-
rivart, was employed to disturb and annoy wedding parties and
newly married people. For example, in the town where I
practiced law for a few years, an old country squire came to
town and married a widow who had property. The parties
were both respectable, and it was nobody’s business but their
own. But an anirugian was organized under the lead of a
THE PEOPLE Vs. WILLIAM BEBB. 129

tall, handsome, witty young rascal, the degencrate son of a
good old minister. No fire-arms were employed in this ani-
rugian, but cow-bells, sleigh-bells, tin trumpets and other
noise-making instruments to no end. The leader provided
himself with a large steel triangle, weighing not less, I
should think, than six pounds, which he took from its place
in the stable-yard, where it was used to wake up the hos-
tler. With this instrument he led the way, in full chorus,
from the public square to the bride’s house, where they
paused, and attuned their instruments to the loftiest strain,
the ear-piercing clang of the leader’s triangle towering above
all the rest. The old squire was deeply offended, both for
his dignity as a justice and the insult offered to his bride.
He sallied out and bade the rioters to be gone. They did not
go. He applied to the leader, and the leader struck him a
blow with his triangle which laid him flat on the ground.
A triangular flap several inches long was cut through his
scalp to the bone. The doctor repaired the scalp, and the
old man recovered. My connection with the case was to
prosecute the leader of the riot for assault and battery, with
intent to kill. If the question should be asked, why this
man carried this heavy bar of steel, Bracket might answer
it, as in the present case, “when people go on such busi-
ness, they have their own heads to take care of.” The burg-
lar carries his deadly weapons from the same motive. He
wants your pelf, and not your blood; and if he can secure
the pelf without resistance, you may go in peace. But rob-
bing a house is attended with danger, and, as Bracket would
say, “when people go on such business, they have their own
heads to take care of.”

The chances of having a man’s head broke, if he thrusts
it out of the door to warn rioters off his premises, may sug-
gest the idea that, in defending his house, he must fight the
battle on his own threshold. But this is not law. The law
130 THE PEOPLE v8. WILLIAM BEBB.

never required an honest, unoffending man, struggling for
his house and household against lawless rioters, to fight his
battles on his own threshold. If the law required every
man to remain within doors when his house was assailed,
and only give battle on the threshold, into what absurdity
would the law of self-defense run? The assailants may ap-
proach at a side of the house where there is neither thresh-
old nor door nor window, and set the house on fire, or
undermine and blow it up; and the proprietor, intrenched
behind the threshold, may see his wife and children perish
in the flames, without lawful authority to protect them. The
place to battle with the enemy is the place where the enemy
is to be found, inside or outside the house; in front or in
rear; to the right hand or the left; if it is a place from
whence he can do the mischief to be guarded against.

Nor is it law that one whose house is assailed by a mob,
is required to apply to a civil magistrate for protection. Im-
agine to yourselves a man living alone on a solitary prairie,
three miles from the residence of any civil magistrate. His
house is assailed at midnight by an armed mob. His wife
swoons and his children shriek for help. The lord of the
castle calls up the swooning wife, arms her with a broom-
stick and places her on the threshold of the front door to
guard the premises, while he travels three miles to a magis-
trate to sue out a warrant against the intruders, and three
miles more in search of a constable to execute the writ. And
all this fruitless turmoil because, as these learned gentlemen
say, “ A man has no right to take the law in his own hands.”
But is this maxim true in the present case? The law of
retribution is one thing, and the law of defense is another.
In homelier English, that which may be done to redress
grievances and punish crimes belongs to the State, and no
man has a right to take it into his own hands, If I am
robbed on the highway; if my house is burnt down; if my
THE PEOPLE US. WILLIAM BIBB. 131

wife and children are murdered, it is the business of the
State to punish the criminal, and I have no right to take
the law in my own hand to do it. But if a robber assaults
me on the highway, 1 may lawfully blow out his brains. If
I detect an incendiary, with a fire-brand in his hand, setting
-my house on fire, I may lawfully knock him on the head.
Or if I detect an assassin in my house with his dagger in his
hand, I may lawfully kill him on the spot. In each case,
the only question for me is, whether, under all the cireum-
stances, there is good rcason to apprehend the commission
of the felony ; and if there is, I may lawfully kill.

Some eloquent orator speaks of the law as an invisible
angel, watching over us when we sleep, sitting beside us in
our house, and walking with us into the field and along the
highway, to protect us from harm. This is a highly poetic
sentiment, and may be either said or sung by those who be-
lieve it. But we all know that the better part of the law—
the first Jaw of nature—is the law of self-preservation; and
that the better part of this is the law of self-defense, and
defense of wife, children and friends; and that this law is
placed in every man’s own right hand. We know that oc-
casions may arise, and do arise daily, in the experience of
the best of men, when life and limb and property are in
peril, and neither the written law nor the ministers of the
law are present to ward off the impending blow. Retribu-
tions and remedies are all the statute laws afford us. If
these retributions and remedies are a terror to evil-doers,
and thereby indirectly protect us, it is well enough; but in
the hour of peril, when they are far away, our own right
hand must be our protector. The law is already in it, and
no human convention can take it out.

But how much force may he use lawfully for this purpose,
and what degree of danger must he be in to warrant him in
the use of that force? The best answer we can give is writ-
132 THE PEOPLE vs. WILLIAM BEBB.

ten in the third instruction: “It makes no difference in this
case whether in fact the rioters intended to commit a felony
or not; or whether in fact they intended to enter the habita-
tion of the defendant for the purpose of assaulting or offering
personal violence to any person dwelling or being therein,
or not. If their conduct was such, considering all the cir-
cumstances, that a reasonable man might apprehend such
danger, it is sufficient; and the reasonable apprehension of
the defendant at the time, and not the opinion of the jurors
now, as to whether there was actual danger or not, is the
test by which his conduct is to be judged.”

Gentlemen on the other side seem to think that, to war-
rant the taking of human life, there must be actual danger,
impending so closely as to make the killing a matter of
actual necessity; and that it is your business, as jurors, to
pass upon the questions of danger and necessity. However
vague the language of the courts may be in some cases, I
apprehend this never was the law. Appearances may be
such that the coolest headed amongst us may apprehend dan-
ger when there is really none. If I am set upon in a furi-
ous manner, by a man with a pistol in his hand, the law
does not require me to inspect the weapon, to satisfy myself
beyond a doubt that it contains a deadly charge. My time
is short, and seizing time by the forelock, I shoot him down.
On examination it turns out that the pistol was empty and
the man drunk. So, if I am assailed in the dark by what
seems to be a knife, the law does not require me to pass my
thumb along the edge or to feel the point, or to challenge
the name or the purpose of my assailant. I spring upon
him and disarm him of what turns out to be a piece of pine
shingle, whittled into the form of a knife, with which he in-
tended to frighten me out of my wits or out of my money.

Nor is it a question for the jury. to pass apon, whether
there was actual danger or not. It is next to impossible for
THE PEOPLE vs. WILLIAM BEBB. 133

jurors so to transfer themselves to the situation of a man
surrounded with appearances of danger, as to think as he
thought and feel as he felt on the occasion. Nor is it possi-
ble for witnesses to describe a man’s surroundings with such
graphic power that a jury can fully appreciate his situation,
and say, each one, whether in similar circumstances, they
would or would not have struck the fatal blow. The old
rule stands, and will forever stand; if the defendant’s appre-
hensions of danger were reasonable, it is enough.

There is no end to cases, real or hypothetical, where in
point of fact there is not the slightest danger, and yet a
person, honestly believing there is real danger, would be ex-
cusable in taking human life, in self-defense or in defense of
his habitation and household. If there had been a remain-
ing doubt at common law; it is taken away by the provision
of your own code, which declares that bare fear shall not be
an excuse for taking life. What is bare fear? It is that fear
which has no circumstances of danger, real or apparent, to
cover it: fear, without foundation: mere cowardice. Every
appearance of danger to life, limb, habitation or friends within
the scope of the code, which rises above the level of bare
Jear, is a sufficient excuse. If this language of the code
changes the common law at all, it is to enlarge or make more
certain the right of self-defense. The words bare fear, ex vi
termini, exclude the idea that honest and rational apprehen-
sion of danger is not sufficient.

But to what extent does this code warrant the exercise of
this law of self-defense? At common law it extended only
to the defense of one’s own life and limb, to that of his wife,
children and domestic household and dwelling-house. By
the code of Tllinois, it extends to the protection, even of
“the stranger within your gates;” “of any person dwelling
or being therein.” No matter from what quarter of the

globe the stranger may come: no matter how lowly or
134 THE PEOPLE vs. WILLIAM BEBB.

lofty his lot in life may be: no matter whether he comes
as a friendly visitor, or is driven beneath your roof by the
pelting of the pitiless storm, to beg for a night’s lodging or
a morsel of bread: once under your roof, this code for all
the purposes of security and hospitality makes him one of
your children; arms you with the right and makes it your
duty to protect him. It is not merely the danger of death
or enormous bodily harm, against which you may thus de-
fend your household. Your code goes still farther than
this. If you, as a reasonable man, believe that the assail-
ants intend, and are endeavoring in a violent, riotous or tu-
multuous manner, to enter your habitation, for the purpose
of assaulting or offering personal violence to any person
dwelling or being therein; it is all the law requires.

The apprehensions of every man are to be somewhat
judged by the circumstances in which he is placed. It is
one thing to live in a populous city, where a strong police
patrol the streets every night. It is a different thing to live
all alone in the midst of an extended prairie. It is one
thing to have a house occupied by men with stout hearts and
strong hands, able to defend themselves. It is a different
thing to have your house occupied by women and children,
terrified out of their lives by riot and uproar.

To meet this multifarious aspect, I prepared the fifth in-
struction prayed for, in these words: “If the jury are satis-
fied from all the evidence in the case, that the defendant’s
dwelling is remote from civil magistrates, policemen and
other ministers of the law, it is a cireumstanec, which they
may properly take into consideration in determining whether
the conduct of the defendant proceeded from bare fear, or
whether he acted from a rational apprehension of danger.”

We have scen that the defendant’s habitation was a her-
mitage—a cottage in the wood: that he lived remote from
all the ministers of the law; and that, with the exception of
THE PEOPLE vs. WILLIAM BEBB. 135

Mr. Copeland’s, his house is far from the habitations of other
men. There was no one he could call to his help in the
hour of alarm; and in the circumstances, the bravest man
among us might reasonably apprehend danger.

I have already commented on the threatening aspects of
affairs out of doors, and the impressions they would naturally
make on one’s mind. I come now to the point of time when
Clemens was slain—to what occurred the moment before and
the moment after; as illustrative of the condition of the dc-
fendant’s mind.

And first, as to what occurred before. The defendant had
been sick for several days, and was confined to bis bed all
the day before this disaster. . When he came from his sick-
room he found his son Edward, with the aid of Laurence
McDonald, charging a gun. The advice he gaye his son
indicates what he would do himself. McDonald says, he
told his son to discharge one barrel in the air, to frighten
the rioters away, and reserve the other in case he should be
attacked. Unquestionably he advised the son to do that
which was in his mind, as the proper course to be taken.
What followed? As the son stepped out of the door, he
took the gun out of his hand, telling him he was young;
and that he was afraid he might do some rash act; that,
as proprietor of the house, the duty of defending it devolved
upon himself. He feared that a hot-headed, impulsive
youth might fire on the crowd without warning, and there-
fore took the weapon in his own hand.

Under the circumstances, was ever wiser, better, or more
humane advice given by a father to a son?

But did he follow this advice himself? To the letter he
did, as far as the circumstances would admit. Both Edward
Bebb and Laurence McDonald, who were with him in the
house and at his heels when he walked out, testify that, in

a loud voice, he warned the rioters to leave his premises, or
136 THE PEOPLE vs. WILLIAM BEBB.

some of them would get hurt. Whether they heard him or
not, it is hard to say; but McDonald says he spoke in a
voice that might have been heard all over the forty-acre lot
in which the house stands. The surviving rioters say they
did not hear this warning, and, considering the noise they
were making, it is possible they tell the truth. But when
they go on to say that if the warning had been given, they
would have heard it, they tell a manifest lie. The first warn-
ing being unheard or unheeded, the defendant falls back on
the advice he had given to his son: discharges one barrel in
the air, and reserves the other in case an attack should be
made on him, He again lifts his warning voice to be gone.
Eight of them took the warning and withdrew, and the other
four charged upon him. ‘

The signal for this charge is very significant. When the
warning gun was fired, some one of the rioters sung, “‘ Pop
goes the weasel;” another shouted, “God! that’s just what

> another, “Come on,

we expected, and what we wanted ;’
boys;” and then a rush was made toward the defendant,
the unfortunate Clemens leading the charge. Clemens ad-
vanced rapidly about ten yards, and the sick old man re-
treated about five yards toward his own door, and, finding
himself crowded by his pursuers, turned half way round and
fired, and Clemens fell.

Now that we are better informed, it turns out that Clem-
ens had no weapon but a cow-bell slung about his neck. But
it was the darkest hour of a moonless night, in a grove of
living shade trees, where unutterable confusion reigned ; and
how could a man, hotly pursued by a party of men armed
with deadly weapons, inspect the arms of his pursuers; or
even conjecture that one equipped with a cow-bell would
venture on an armed man? No doubt there was a mutual
misapprehension between Bebb and Clemens. If Clemens
had known that Bebb had a second barrel in reserve loaded
THE PEOPLE v8, WILLIAM BEEP, 137

with deadly shot, he never would have charged upon him;
and if Bebb had known that Clemens was armed with a cow-
bell only, he never would have discharged his weapon at
him.

The rendezvous of these rioters was a large burr-oak,
seven rods from the defendant’s door. Here they stood when
the warning shot was fired; and here the stubborn four re-
mained after the warning, till the word of command was
given. They doubtless believed they had drawn the defend-
ant’s fire, and that the danger was past. When the shot was
fired, one of them sung out, “ Pop goes the weasel,” which
meant, the old man’s gun is empty now. Another sung out,
“God! that is just what we expected, and what we wanted ;”
which meant, we have been waiting for that before we
would charge. Another, supposed to be poor Clemens,
shouted, ‘‘ Come on, boys;” as much as to say, there is no
danger now, and we will capture the old man and take his
gun.

Everything now looked as if these young men intended to
enter the house and work whatever mischief the devil might
put in their heads. But the fall of Clemens stopped their
career. The master of the house, on behalf of himself, his
wife and children, his househeld and friends, asserted his
rights, and did what you and I and every man worthy to be
the father of a family and the head of a house would have
done.

Here we are met with a denial by the surviving rioters
that Clemens advanced upon the defendant, and an assertion
that the defendant advanced upon him. This is another des-
perate attempt of these young men to wash their own hands
of the blood of their companion, by swearing what they know
to be false. Their story is that he stood still in the same
spot where he stood when the first shot was fired. I will
not argue this question, but I will prove by mathematical
138 THE PEOPLE vs. WILLIAM BEBB.

demonstration that these witnesses lied. I have before me a
diagram, made by a skillful engineer, while the blood of
Clemens was fresh on the spot where he fell. There is no
guess-work by starlight in this diagram. Here is the posi-
tion of the burr-oak, around which the rioters were assem-
bled, and beside which Clemens stood when the warning shot
was fired. Here is the spot where Clemens fell, distinctly
marked by his blood when the diagram was made. On the
spot where he was shot, there he fell. He did not stagger
or reel one pace. The fatal shot entered his mouth and broke
his neck, in the superior vertebra, where it joins the head;
and he fell on his face without a struggle. The stain of the
blood where he fell was ten yards nearer the house than the
burr-oak. This ought to settle the question.

Whether Clemens was pursuing the defendant for mere
sport, or for hostile purposes; or whether his party intended
to seize the defendant, and enter the house in search of the
newly married couple, as had frequently been done on such
occasions, is immaterial; they were advancing on him in a
run when Clemens was slain.

How did the defendant behave after the deed was done?
Did he betray any of the ordinary signs of guilt? While
these rioters, conscious of having brought distress on the
defendant and his family, and death on one of their com-
panions, were skulking from place to place, and inventing
all manner of lies, to make the public’believe they were not
in the riot, he was making the best preparation the distracted
condition of his mind would admit, to have the dead body
decently disposed of at his expense; always expressing his
deep regret for what had been done. In reproaching Bracket,
who was his neighbor and tenant, for the distress he had
brought on him and his family, he declared he would rather
have had his house laid in ashes, if all his family had been
out of it, than that this had befallen him. And immediately
THE PEOPLE vs. WILLIAM BEBB. 139

at the dawn of day he called together the officers of the law
and surrendered himself into their hands; furnished them
with the names of all the witnesses, and demanded an inves-
tigation of the case.

This calls to mind, and requires sume notice of a state-
ment made by Joel Wood. This witness says that, in a con-
versation over the dead body of Clemens, Gov. Bebb said:
“If I had the same thing to do over again, I would shoot
a wagon load of you.” This was a hard saying, if it ever
was uttered. The circumstances of its utterance were re-
markable. Such a speech, by such a man, in such circum-
stances, could neither escape the notice nor the memory of
any one present. Who was present beside Joel Wood? He
is certain that, beside the defendant’s family, there were two
persons present and heard this remark: Tryon Bracket, a
witness for the prosecution ; and Alfred Copeland, a witness
for the defense. These men were examined touching this point,
and neither of them had ever heard such a remark. Joel
had a vow recorded in Heaven that he would tell the truth,
the whole truth, and nothing but the truth. Did he do it?
He was thrice examined: once before the examining court,
once before the grand jury, and once, in chief, before this
court; and, on each occasion, had either forgotten or never
heard this most shocking expression ever uttered by man —
an expression which, as I said before, could neither have
escaped the ear nor the memory of Bracket or Copeland.
When his cross-examination was nearly complete, under pre-
tense of explanation, he mentions it for the first time; and
excuses himself for not stating it before, on the ground that
he was not questioned on that point. Whose fault was it that
he had not been questioned in chief on this point? Surely
not of these gentlemen, who, in the interest of justice, would
have tracked it to hell. The truth is, Joel had invented this
morsel of evidence, and, concealing it from the prosecution,
140 THE PEOPLE vs. WILLIAM BEBB.

kept it in his own noddle, expecting to outwit the defense
by slipping it in on cross-examination ; and, not having the
opportunity given him by the defense, took leave to explain
his statement in chief, and made for the first time a state-
ment which every juror in the box knows from its very man-
ner, without other proof, to be both new and false.

Some evidence was offered, as to some remarks made by
the defendant several days afterward about a patent re-
volver. But the witness remembers so little of what was
said, that he is unable to say whether the remarks had refer-
ence to the occurrences of this unfortunate evening or not.
But this matter is fully explained. The defendant, as we
have seen, had demanded an investigation before an examin-
ing court. The court had heard all the witnesses and dis-
charged the defendant. The ruling of the court gave offense
to the surviving rioters and their friends, and he was threat-
ened with another visitation at his own house. These threats
came to his ears, and he made the best preparation he could
for the emergency. The day this conversation, so illy re-
membered and so badly understood, took place, he was ex-
amining and purchasing arms for his little garrison. The
witness attached no importance to what was said; and after
the explanation, you will attach still less.

Under the fourth instruction, submitted in the case, I have
discussed what I conceived to be the material question,
whether the reasonable apprehension of danger on the part
of the defendant at the time; or the maturer judgment of
the jury now, is to govern the verdict. And foreseeing that
gentlemen on the other side meant to strengthen their views
’ by falling down upon the 34th section of the code, I pre-
pared a sixth instruction in these words: “That the 34th
section of the criminal code of the State, has reference only
to cases of killing in one’s own defense and does not apply
to cases of killing in defense of one’s habitation or house-
THE PEOPLE vs. WILLIAM BEBB. 141

hold, as laid down in the 32d section.” I do not con-
ceive that this 34th section at all changes the universal
principle contended for under the fourth instruction. But
it reminds one of a principle very well known to the common
law; that a person, somewhat to blame in the first instance,
before he can avail himself of the right to slay in self-de-
fense, must first make amends, by earnestly declining the
combat; and by resorting to every other means of escape;
even to retreating to the wall.

There is a seeming conflict between the decided cases, as
to whether, in every case of danger to life or limb, the party
endangered must so retreat to the wall before he may slay
in self-defense. I fancy there is nothing in law clearer than
the distinction between ‘‘ the person somewhat to blame in
the first instance,” and the person not to blame at all. But
let me illustrate. I own a suburban cottage and one acre
of ground fenced in by a stone wall, wherein I cultivate my
own fruits and vegetables, and wear off the tedium of life
by digging in my garden in the cool of the day. Besides
this I have economized and saved a few hundred dollars for
“age and want.” As I rest on my spade a charivari, armed
to the teeth, approaches, and demands my money or my life.
Must I retreat to the wall, or be murdered or robbed? No,
not I. The law never required an honest man to relinquish
his rights; or a brave man, in the right, to retreat to the
wall. With the same instrument wherewith I trench the
soil, without moving a pace, I may lawfully strike my as-
sailant down.

But suppose I go into my neighbor’s garden, provoke a
quarrel, strike the first blow, and prolong the strife till my
life or limb is in danger; may I unsheath my knife, and law-
fully slay him in self-defense? The law says no! You tres-
passed on his rights; you provoked the quarrel; you struck
the first blow; for all this, you must make amends, by ear-
142 THE PEOPLE vs. WILLIAM BEBB.

uestly relinquishing the combat, and retreating to the wall.
If he then pursues you with murderous intent, you may law-
fully kill him.

But let us not narrow the case at bar down to a single
combat between man and man, where the law comes in to
strike the balance between them. Bebb did not fight a bat-
tle, merely to defend himself from death or great bodily
harm. He was impelled by loftier, stronger, better motives.
He was lord of a domain, I know not how large. But there
was a circumvalation inclosing forty acres, into which the
President of the United States had no right to enter with-
out his permission. At midnight a riotous mob enter, armed
with deadly weapons; and when he walks out and orders
them to leave his premises, they drown his voice with sav-
age yells and beastly bellowings, and din of trumpets, pans
and cow-bells. Within this circumvalation stands the dwell-
ing-house—a wooden structure, liable to be set on fire by a
single match or a blazing wad—and at and against this house,
sixty shots had been fired. Within the darkened walls,
crouched in nooks and corners, are women and children
trembling with fear. In the front door stands a sick old
man, with the only weapon of defense on the premises in his
hand, which he has just taken from his son for fear he might
rashly shed blood. He discharges a warning shot, and re-
peats his order to leave the premises. The order is treated
with ridicule and the warning shot is received as a signal
for the charge, and the charge is made.

Where now is the right of the feudal lord to defend his
castle? Where now are the rampart and the ditch, the draw-
bridge and the portcullis, with which the law surrounds and
defends every citizen of your State? For the defense of
himself, his wife and children; of his domestic household
and visiting friends; of his house and every one dwelling or
being therein, the code of Illinois placed the law in the right
THE PEOPLE vs. WILLIAM BEBB. 143

hand of William Bebb, and he became the executioner of
the law.

That the forlorn hope led by Clemens had some unlawful
project in view, which perished with the fall of Clemens, is
clear enough; but what it was, is known only to the all-
seeing eye, and there let it remain forever. We will have
the consciousness, I hope, to know that we have done our
duty to the public and ourselves. As for me, my task is
done ; and it remains only for me to thank your honor and
the jury for the calm, patient and dignified attention, with
which you have listened to so feeble an effort ; and to give an
affectionate good-bye to our brothers on the other side.

10
The State of Ohio vs. Cook and Seiter.

THE SUPREME COURT OF OHIO.

Before BRINKERHOFF, C. J., and Scott, SuTLIFF,
Peck and GHOLSON, Judges,

A. D. 1860.

Error to Hamilton District Court.

PROVINCE OF COURTS: COMPLICITY: SELF-DEFENSE.

PRELIMINARY STATEMENT.

The defendants in this case were indicted for murder in
the first degree, and convicted of murder in the second de-
gree. In the courts below, Judge Matthews defended Cook ;
but in the Supreme Court, on account of sickness in his fam-
ily, he left the argument to Judge Johnston. The judgments
of the lower courts were reversed as to both defendants, and
the cases were sent back for new trials. Sciter was admitted
to bail upon his own recognizance, and was not again tried.
The developments showed that he had been caught in bad
company, but had not committed murder; and the prosecu-
tion was dropped. He entered the army, made a creditable
record, and became a reputable citizen.

(144)
THE STATE OF OHIO vs. COOK AND SEITER. 145

ARGUMENT OF JUDGE JOHNSTON.

May it please your Honors :

When the defendants were arraigned, they were not ready
to plead. There were fancied objections to the indictment, and
real objections to the grand jury, who had presented it, which
counsel desired time to examine into, and take advantage of.
Judge Oliver, at that time on the bench, suggested that the
court would then receive the plea of “not guilty,” and give
the defendants the privilege thereafter to withdraw such plea
and put in others. They accordingly pleaded “not guilty,”
reserving the right to withdraw this plea and to plead spe-
cially before the trial.

When the day of trial came, Judge Carter being on the
bench, before the jury were impaneled or sworn the defend-
ants produced in court a special plea, denying the validity
of the grand jury, who had presented the indictment, and
asked leave to withdraw the plea of “ not guilty,” and put in
the special plea. The court refused the motion, and the de-
fendants excepted to the ruling.

By the Constitution of Ohio, Art. 1, Sec. 10, it is provided
that “no person shall be held to answer for a capital or oth-
erwise infamous crime, unless on presentment or indictment
of a grand jury.” When one’s life or liberty is at stake, he
has an undoubted right, in some forum, to inquire whether
the presentment against him is the work of a grand jury, or
the work of a vigilance committee; whether the body who
have accused him was a grand jury constituted according to
the forms of law, or a town meeting; whether it was com-
posed of citizens of the State, having the qualifications of
146 THE STATE OF OHIO vs. COOK AND SEITER.

jurors, or of aliens and enemies. This he has an unques-
tionable right to do by special plea, whether the special plea
involves questions of law or questions of fact, or both. We
wished in this case to try the questions, whether there was
any law on the statute book authorizing the impaneling of
such a grand jury? whether there was in fact a grand jury
impaneled according to the forms of law? whether the per-
sons composing that grand jury had the proper qualifications
of grand jurors, and were legally competent to sit? Whether
these several questions would properly arise under the stat-
ute, upon the record, or on oral proof, is not material to in-
quire. The court refused to allow the plea to be filed, and
that ruling suffocated all the defendants’ rights under the
plea, in what form soever they might have arisen.

If the plea was in time, this ruling was gross error.

Ordinarily, in civil actions, dilatory pleas, so called, ought
to be filed before pleas in bar. The reason of this rule is,
that by putting in the general issue, the defendant admits the
jurisdiction, and that all the prior proceedings were right;
and, unless. he is able to show that he was deceived into some
misapprehension of his rights, the court will not allow him
to withdraw the general issue and plead in abatement. I
apprehend no such rule has ever been enforced in Ohio in a
capital case. The better rule is that, in all capital cases, the
defendant should have the right to piace himself properly on
the record, at any moment before a jury is impaneled and
sworn. It is enough that one whose life is at stake, should
be answerable for the crimes he has committed, without suf-
fering for the ignorance or inexperience of his legal adviser,
who puts in the first plea.

If the mistake in pleading was on the other side—if, in
the opinion of the prosecutor, the grand jury was incompe-
tent or the indictment informal, the court would, at any
moment before the jury was impaneled and sworn, allow the
THE STATE OF OHIO vs. COOK AND SEITER. 147

prosecutor to enter a nolle prosequi, and commit the defend-
ant to prison, till another grand jury might sit and present a
better indictment. Even after trial, conviction and sentence,
where the indictment was quashed for badness, the court
would not hesitate to hold the defendant in prison to await
the action of another grand jury, and would instruct them
that all that had been done was no bar to another indictment
for the same offense, “at least, I know, it may be so in Ham-
ilton.”

And this is right. The ends of justice should never be
defeated by mere technicalities of law. The State should
have every opportunity to amend her blunders up to the
last moment. Nothing should be allowed to screen the de-
linquent from punishment, short of a trial by a jury on the
merits, which might fairly put him in jeopardy of life or
liberty. Should not the same rule of fairness be extended
to the party accused ?

Should more be done in favor of justice than in favor of
life? Should all the wheels of justice be stopped to enable
the State to change, alter or amend her pleas, in order to take
a man’s life with more deadly certainty ; and the car of jus-
tice be driven headlong over an imploring citizen, who only
wishes to inquire, by what authority he is to be crushed be-
neath its iron wheels? The allowance of the special plea was
said to be a question for the discretion of the court, and the
Judge who refused it said it came too late. I deny that it is
ever too late to do justice, or that a court has authority to
refuse the party accused an opportunity to avail himself of
every legal defense, however technical, till after a jury of the
country has been impaneled and sworn to try him on the
merits of his case.

But, say, if you will, that it is a question for the discre-
tion of the court, whether the plea of not guilty may be with-
drawn and a plea in abatement filed; what then? Ought
148 THE STATE OF OHIO vs. COOK AND SEITER.

not good faith, as well as sound discretion, to be exercised
by the sitting Judge? Here is a court, composed of three
Judges, who sit on the criminal bench by turns; one Judge
says, if you are not ready to plead, put in the plea of “not
guilty” now, and if, om examination, you find a special plea
more available, withdraw the first and put in the second.
Another Judge says, you shall not do it. But, says the
party, “Judge Oliver assured me I might do it.” But, says
Judge Carter, “that is not binding on me; you should have
done it within the month of Judge Oliver’s sitting—you are
now too late.”

Is not this degrading a Court of Justice to a mere trap?
If this plea was refused on the ground that it would have
availed nothing, if true, then the Constitution is violated.
If on the other ground, the good faith of the court is vio-
lated. In either case, the merest technicality of common
law pleading is resorted to, to take away the life or liberty
of a citizen.

But I pass to the consideration of other points.

The defendant, William Seiter, stood jointly indicted with
Charles Cook under the Ist Section of the Crimes Act, for
the murder of Kate Bereau. Not as one who aided, abetted
or procured Cook to do the murder, but as one who, with
Cook, inflicted the stab of which she died, with a knife,
which they held in their right hands. All the proof showed
that Seiter was not in the house when the deed was done:
that he was gone, and the door and two impassable gates
locked behind him; and some of the witnesses testify that
he was gone a quarter of an hour before the fatal stab was
given. Upon such an indictment, with such proof, a jury
found a verdict of murder in the second degree.

Murder is never committed without a motive, real or
imaginary. Here there could be none. It could not be
avarice, for Kate wax penniless. It could not be jealousy,
THE STATE OF OHIO vs. COOK AND SEITER. 149

for Kate had never been the mistress of either. It could
not be revenge, for Kate had never offended them. They
may have spoken to her once, says a witness; but beyond
this they had no acquaintance with her.

There was not only no previous grudge, but there was no
previous plan. There was but one story as to how these
young men came to this house of death. This was natural,
reasonable and uncontradicted. ‘Seiter and the witness Swift
set out upon a stroll, without the least expectation of meet-
ing Cook. The meeting with Cook was purely accidental.
The three, without any particular object in view, strolled
about from one place of amuscment to another; Swift smok-
ing cigars, Seiter drinking beer, and Cook drinking Holland
bitters and brandy, till Seiter must have been intoxicated
and Cook drunk. At length they reached the house of Mrs.
Davis, where they met this unhappy woman. Thus far the
testimony is uncontradicted and uniform.

This state of facts proves two things: first, that there was

*no preconcerted plan to take this woman’s life; second, that
there was no previous grudge against her that should induce
them to seek her life. This need not be argued. Two ju-
ries have already passed on this question. If the jury had
found a previous conspiracy to kill, or if they had predicated
any thing on the conjecture of the prosecutor, that Seiter
went into the dining-room to open the knife for Cook, they
could not have stopped short of the first degree of murder.
Either a previous conspiracy to kill, or a withdrawal into a
solitary room to prepare a weapon of death, would imply, to
infallible certainty, premeditation and deliberation, which the
jury have found to be wanting.

I wish, at this point, to note a fault which runs through
all the judge’s charge to the jury. It is his constantly and
earnestly teaching, or attempting to teach, the jury what the
150 THE STATE OF OHIO vs. COOK AND SEITER.

law is in a given state of facts, of which there was no evi-
dence.

It is a doubtful exercise of power in a criminal case for a
judge to attempt to sum up the facts. It is pernicious in a
judge to assume that there is proof of a fact, or proof tend-
ing to establish a fact, and then to instruct a jury how they
should act if they find such a fact to exist; unless indeed,
there is something more than the mere conjecture of the
judge or the assumption of an attorney.

Instances of this are numerous in this charge; but that to
which I allude first, is the oft repeated reference to a sup-
posed idea, that there was proof of a conspiracy between
these defendants to murder this woman. If the judge had
given the jury a definition of the word conspiracy, as law-
yers use it in criminal cases, and laid down the rule of evi-
dence in proving conspiracies, less harm would have been
done. But no such definition was given. For aught that
was said, the jury might suppose that a conspiracy was an un-
expected coming together of events; and, without any defi-
nition of a conspiracy ; without any proof of a conspiracy ;
without any fact tending to prove a conspiracy ; the phantom
of a conspiracy stalks through the charge from beginning to
end, so that a jury, confiding in the wisdom of the Judge,
might have said to themselves and to each other, “ surely the
Judge saw a conspiracy or he would not have said so much
about it.”

The State proved no conspiracy ; offered no evidence tend-
ing to prove one. The defense proved a state of facts incon-
sistent with the idea of a conspiracy. There was no conspir-
acy.

We may then safely conclude that whether this woman
was murdered or not; whether she was killed in the heat of
passion or in self-defense, the homicide grew entirely out of
the occurrences of that night. All the riot and uproar of
THE STATE OF OHIO vs. COOK AND SEITER. 151

that night had their origin at the foot of the stairs, in the
insult given by Mrs. Davis, when she signaled Kate that
Seiter had no money; and in the grosser insult given by
Kate, when she told him to give the wages of prostitution to
his sister.

How Seiter resented this insult is the next question. A
woman who sells her body for money, is under no obligation
to gratify a customer’s lust on credit. She has a right to
inquire into his solvency, and require references. She has a
right to demand her pay in advance. She has a right to re-
fuse to deal with him altogether, with or without a reason ;
and if he presses her too rudely, she has a right to insult
him, and he ought to submit. But she has no right to offer
an insult to his mother, or his sister, or the woman he loves
in honorable fashion. It is not every young man who resorts
to houses of ill fame, who is so deeply depraved as not to be
proud of the virtue and jealous of the honor of his sister.
Most men would resent such an insult on the spot: not with
the terrible vengeance which he would take on a man for the
same offense ; but he would spit in her face; slap her in the
mouth; or horse-whip her; and if he did no more, the uni-
versal verdict of mankind would be, that he did no more
than his duty.

That Seiter did more than this, I do not believe. That
he ever struck or kicked her, as fighting men strike and kick
one another, I do not believe. That he ever intended to
kill her or do her bodily harm, I donot believe.

This leads me to speak of the violence alleged to have
been practiced by Seiter on this woman. Of this there are
two theories—the theory of Caroline Davis and the theory of
William Swift. The former, an old hag who keeps a house
of prostitution. The latter, a thoughtless young man who
was caught in her trap. According to the theory of Mrs.
Davis, when Kate told Seiter to give the money to his sis-
152 THE STATE OF OHIO US. COOK AND SEITER.

ter, and walked into the room, Seiter walked in after her,
doubled up his fist, struck her on the back of the head, felled
her to the floor, and gave her four or five kicks where she
lay. This he repeated twelve or fifteen times, giving her
four or five kicks each time. Then Mrs. Davis went out
on Lodge street, passed out to Seventh street, went down
Seventh to Vine street, and, finding no officer, returned and
found him still beating her. How many blows and kicks
he gave her while Mrs. Davis was out, is left to conjecture;
but, after her return, he knocked her down from five to seven
times and gave her four or five kicks each time. This, mak-
ing no allowance for the blows and kicks in Mrs. Davis’ ab-
sence, amounts to not less than sixty-eight, nor more than
one hundred and twenty blows and kicks from an athletic
young man—not blows in sport ; not measured blows, but re-
morseless blows; every one of which felled this woman to
the floor. At intervals she was dragged, choked and throt-
tled in a furious manner. I confine these remarks to the
scene in which Seiter and Kate only were the actors; and I
may safely say, that there is not an instance on record of a
prize fighter who endured -so much violence.

After such a remorseless tempest of blows and kicks, one
would naturally look for some corresponding marks on the
dead body. But before we strip the body to search for these
marks, let us see how it was dressed, in order to judge how
much protection her clothing afforded her,

From her waist downward she was clad in proof. So nu-
merous and heavy were her petticoats, that neither kicks nor
blows, however violent, could make a bruisc. But from her
waist upward, she had no clothing that could afford any pro-
tection against such blows as these women describe. Dr.
Wood and Dr. Carey, the surgeons who examined the dead
body, agree that she had no jacket; that her under-dress and
her outside garment were all she had on; that this outside

a
THE STATE OF OHIO vs, COOK AND SEITER. 153

garment was made of berage, or some other light cotton fab-
ric, and low in the neck, so as to expose part of the bosom
and a corresponding part of the back and shoulders.

So dressed, if this woman had stood on her feet all the
while, the fist blows would have fallen on the head, face,
neck, breast, shoulders, arms, and other parts above the
waist; while the kicks would have fallen below the waist,
and left no mark behind. But this is not the theory of Mrs.
Davis. According to her theory, there could be no blanks.
Each fist blow, numbering from seventeen to twenty-two,
felled her to the floor, and all the kicks were given when
she was down: not on her thick and invulnerable skirts,
but, as these women say, on her head and face and breast
and back and sides; and they specifically describe two kicks,
with all the defendant’s might, with the toe of his boot, one
on the cheek bone and one on the forehead, and a stamp with
his boot heel on her bosom. When you compare this history
of violence with the undoubted proofs, and consider its natural
and probable results, there is nothing in the history of Jack
the Giant Killer more uiworthy of belief, or more offensive
to one’s sense of truth. |

To sustain this story, the dead body should exhibit one
hundred vital bruises, such as one strong man in a fight
would inflict on another. Now, I appeal to the testimony
of the two surgeons, who made the post mortem examination,
and found the knife wound to be the cause of this woman’s
death ; and who, by reason of the extravagant statements of
these women, made a second examination, on purpose to see
whether the blows inflicted by Seiter might not be sufficient
to cause death. What was the result? There was not, from
the crown of the head to the sole of the foot, one bruise,
wound or contusion, answering to the violence sworn to,
either as to locality or extent; and the discoloration of the
back and loins, described by Mrs. Sponsler, is proved by the
154 THE STATE OF OHIO Us, COOK AND SEITER.

surgeons to be nothing but post mortem congestion, such as
is always found on the lowermost parts of a dead body on
examination, some hours after death. All the bruises which
they found, were slight bruises, such as wanton boys in their
sport might make; but not one such as angry men, in ear-
nest combat, would inflict upon each other. As to this, both
the surgeons are clear and explicit. On full and careful
examination, they both testify that they found no marks
of violence on the body, corresponding to the violence de-
scribed by these women, cither as to number, locality or se-
verity.

Let us first look for the marks of the specific blows. One
of these women swears that the first blow given—that which
felled her to the floor—was on the back of her neck. Let
it be remembered that the neck was bare; that she had her
back toward Seiter, and was not expecting the blow; that
her muscles were unstrung; and does any man doubt that
such a blow, under such circumstances, would dislocate a
woman’s neck? But there was not only no dislocation of
the neck—there was not the slightest bruise. Another says
he stamped upon her bosom with his boot heel; and Mrs.
Sponsler, who washed the body, thought she saw a bruise
in the shape of a man’s boot heel. Dr. Wood found a blue
spot on her bosom, about the size of a dollar, which he took
to be a slight bruise. Dr. Carey found the same appearance,
but took it to be a stain from the lining of her dress,

As to the visible mark, all these witnesses agree. As to
the cause, they differ widely. Mrs. Sponsler got the idea of
a boot heel from hearing these women say that Seiter stamped
her. Dr. Wood got the idea of a slight bruise because the
part was blue. Dr. Carey, who at first differed from Dr.
Wood as to the character of this mark, and who pursued
the examination after Dr. Wood had ceased, confirmed his
idea that it was but a stain, by unmistakable cxperiment ;
THE STATE OF OHIO vs. COOK AND SEITER. 155

he applied a sponge and water, and most of the blue spot
washed off.

Mrs, Davis swears that Seiter kicked Kate with all his
might, with the toe of his boot, on the cheek bone, and on
the forehead. No one can doubt that such kicks would cut
a woman’s face to the bone; and even if they were dealt so
slightly as to make but a bruise, that bruise would take the
form of the instrument with which it was inflicted. The
mark of a boot toe would be long, narrow and deep; now,
no such cuts, contusions or bruises were found on this wom-
an’s face. The bruise on the cheek was broad, round and
slight, evidently caused by a fall on the carpet, and there
was no mark on the forehead to respond to the kick.

All these women swore that Seiter choked Kate violently ;
but there was not the slightest mark of thumb or finger on
her throat, or any other part of her neck.

‘You cannot find a mark answering to any blow inflicted
by Seiter, specifically described by these witnesses, and when
you come to search for the marks of the hundred general and
miscellaneous blows not specifically described, you have no
better luck. Her bruises all told, as far as the surgeons
could discover any, were one slight bruise on the shin; one
slight bruise on the thigh; one slight bruise on the cheek ;
one slight bruise behind the ear; two very slight bruises on
the under side of the arm. The whole number and magni-
tude of these bruises do not exceed what persons whose lives
are active find on their bodies when they strip off their clothes
to bathe.

Another circumstance worthy of notice: If all the kicks,
and blows and wrestling and tumbling and dragging de-
scribed by these witnesses had been real, one would naturally
expect some marks of violence on an outer dress of berage,
or other light cotton fabric. Indeed, one might reasonably
expect that it would be torn in pieces. But here too, as on
156 THE STATE OF OHIO vs, COOK AND SEITER.

the body, there were no traces of violence, except the cut
made by the fatal knife.

Let us then take Kate Bereau in her bloody garments as
she appeared to the surgeons who examined her. She is the
most dispassionate, the best, the truest, and the most reliable
witness of them all. Lay her before you on the one side;
and the story of these four graceless women on the other.
“ Look upon this picture and on this;” and then tell me if
these women did not, purposely and of deliberate and pre-
meditated malice, invent this whole story; a tale of infernal
falsehood, invented to suggest the idea that Sciter sought this
woman’s life, and was a party to the bloody tragedy which
occurred after he left the house.

I now turn to Swift’s story.

Every act of violence, sworn to by him, had its corre-
sponding mark on the dead body, and the dead body exhib-
ited no other marks but these, except the fatal stab and the
bruise behind the ear, both of which are shown to belong to
the last deadly struggle with Cook. His story is this:
Seiter took Kate into the hall to speak to her. What
passed between them he did not hear, only that, as Kate
entered the room, he heard her say, “your sister.” Seiter
asked her if she knew whom she was talking to; and putting
his two hands on her neck and shoulders, threw her over his
right foot, with her face on the floor. The trip with his
right foot left the mark of his boot on her right shin, and
the fall upon the carpet left the broad, round, shallow
bruise on her right cheek. As she rose from her fall, she
called him a d

down again, and gave her a kick under her clothing, which,

d son of a b

 

 

h, and he pushed her

beyond doubt, left the bruise on the left thigh or hip.
When she rose again, he bore her back upon the sofa, in a
sitting posture, and tried to make her sit still; and when she
would not be still, he proposed to Cook that they should take
THE STATE OF OHIO vs. COOK AND SEITER. 157

her to the watch-house. He grasped her by one arm, and
Cook by the other; she pulled one way and they pulled the
other, till Mrs. Davis gave an alarm that a watchman was at
the door, and Seiter withdrew. This accounts for the two
very slight bruises on the underside of the arm. They were
the finger prints either of Cook or of Seiter, most probably
of Seiter, as he is, by far, the stronger man, and first laid
hold on her. They could not have been made by kicks or
blows or falls, else they would have been on the outer and
upper side of the arm. If they were from pulling with a
man’s hands, they would be, as these were, on the inner and
lower side. In all that passed, Seiter did not strike this
woman one blow with his fist, and kicked her but once, when
she used the opprobrious language reflecting on the honor of
his mother. ;

This is the story of William Swift, a witness who stands
unimpeached ; whose manner was simple, plain and truthful;
whose story was corroborated fully by the testimony of both
the living and the dead, and approved by the common sense
of all who heard him. d

There is no room left for comparisons between witnesses.
There was an infallible umpire between them. The dead
body of Kate Bereau, incapable of telling a lie, sets all con-
troversy at rest as to the two theories of Seiter’s violence.
It fixes the seal of falsehood on the story of these women,
and the impress of truth on the story of Swift. That which
it proved to be false cannot be made true; nor that which
it proved to be true made false, by invidious comparisons be-
tween witnesses.

It was said at bar, for the purpose of discrediting Swift,
that public prostitutes were quite as respectable and as
worthy of belief as young men who resorted to their houses.
I have said such things in earlier life, and I have a great
admiration of the innocence of a young man who can believe
158 THE STATE OF OHIO vs. COOK AND SEITER.

the like; but no man of forty ever believed such a thing.
It is one of the delusions of youth, which every man of the
world, and every observer of mankind, and every reader of
history, outlives before he reaches forty. Chastity is the car-
dinal virtue of a woman. Chastity sits enthroned like a
goddess in an honest woman’s bosom, controlling all the
motions of her blood, till the leading passion of her life is to
be a wife and a mother; and when she violates the cardinal
virtue of her sex, and drives her better angel from her
bosom—when she abjures the hallowed name of wife, dis-
cards the thought of being a mother, and sells her body to
the promiscuous multitude for money—envy, deceit and re-
venge become the ruling passions of her life. Like other
fallen angels, “evil becomes her good;” and ‘the depth of
her degradation is measured by the height from whence she
fell. Thence forward, she is too much degraded in her own
eyes, and too much corrupted in her motives, to care whether
she tells the truth or not; and, especially when she testifies
for a purpose of revenge, no reliance can be placed in her
testimony. —

On the other hand, honor is the cardinal virtue of a man.
He may, and ought to be both honorable and chaste. But,
without honor, he is a miserable, shuffling, lying, unreliable
creature, though he be chaste as “unsunned snow.” With
honor comes truth, courage, fairness and all those manly vir-
tues which make men reliable. If chastity comes along, all
the better; but I have known men without this virtue, who
could not be bribed to prevaricate with all the gold of Cali-
fornia. I am unwilling, then, that William Swift should
be discarded from the confidence and belief of mankind,
merely because he strolled into this den of whores. But if
he must be so discarded, I insist on one of the immunities
of the Gospel for him—that “he that is without sin shall

cast the first stone at him.”
THE STATE OF OHIO vs. COOK AND SEITER. 159

The note of preparation for this onslaught on Swift was
sounded by his Honor, the Judge, when he first came on
the stand, by admonishing him of his legal rights to refuse
to testify if his testimony would criminate himself, Be it re-
membered that Cook had already been tried, and Swift had
been examined and cross-examined, as a witness in his be-
half. All that he could say to criminate himself had already
been said. He was not an infant, of whose ignorance any
one was likely to take advantage, but an intelligent young
man, of liberal education. Nor was there, as I think, any
thing in the character of the counsel who called him to the
stand, to warrant the Court in assuming this guardianship of
the witness. It could have but one or both of two tenden-
cies—to deter the witness from telling the whole truth, or to
place him before the jury, in the very onset, in the light of
a criminal, so that they might disregard his testimony. To
say the least of it, this was a very remarkable instance of a
judge driven from his propriety by too much zeal for the
cause of justice.

This leads me directly to a few remaks upon the law of
evidence, touching accomplices, as laid down by the court, in
which, in my opinion, there is gross error.

In the judge’s charge I find this remarkable passage: “ It
is contended by the counsel for the State, that the position
of one of the witnesses, Swift, is that of an accomplice in
the crime. It is for you to say, gentlemen of the jury, look-
ing to all the testimony in the case, whether this is so or
not. The principle of the law is, that the testimony of
an accomplice in crime must be corroborated to make it en-
tirely worthy of belief. It certainly would not do to convict
on the testimony of an accomplice, unless corroborated. The
principle as well applies to the defense. The witness is be-
fore you, and his testimony. It is for you to judge of his

credibility. In reference to accomplices, our own Supreme
11
160 THE STATE OF OHIO vs. COOK AND SEITER.

Court uses the following language: ‘The evidence of an ac-
complice in crime should be very cautiously received, and
should, in all cases, be scrupulously scrutinized by a jury.’”

Now, with profound deference to the experience of the
court below, I believe this is the first time such a question
ever was submitted to a jury. William Swift was not on
trial as an accomplice or otherwise. He was not jointly in-
dicted with Seiter or any one else. The testimony assigned
to him only the place of a spectator and a witness. How
then could an issue, so clearly collateral and dehors the rec-
ord, be properly submitted to a jury? submitted, too, as if
the jury might first find that he was an accomplice, and then
apply the rule of evidence touching accomplices? submitted,
too, without any legal definition of the term, leaving the
vague, uncertain idea to work its way through the minds
of the jury, that anybody, who by possibility might be mixed
up in any way with the matter, might be regarded as an ac-
complice, if they only thought so?

Let it be observed, the Judge puts the Prosecuting At-
torney foremost in this terrible misconception of the law.
Whether this was so or not, my memory does not serve me;
and if it did, I am not at liberty to contradict the record.
How then does it look? A Prosecuting Attorney, not ap-
pearing as an advocate, bound to a cause by his retainer and
liable to be drawn aside by overweening zeal for his client,
but as an officer of the law, whose duty and conscience and
oath of office require him to teach the jury what the law is;
to whose statements of the law the jury listen as to an ora-
cle; and who, by the usages of our practice, has the closing
speech, and makes the last impression ; steps between the ac-
cused and his principal witness—a witness who cannot in the
nature of things be corroborated—and tells a jury that he is
an accomplice in the crime, and that, by the rules of the law,
they are not to believe him unless he is corroborated! It is
THE STATE OF OHIO vs. COOK AND SEITER. 161

straining the plea of youth and inexperience to its utmost
tension, to excuse the prosecution; but when a Judge, on
whose behalf this plea cannot be set up, indorses such sen-
timents, and puts them into circulation in a jury box, it is
a matter of serious consideration for a higher court.

I submit, that even if Swift had been jointly indicted with
Seiter, as Cook was; or if, instead of Swift, we had put Cook
on the stand as a witness, the rule of law would not have
applied. Each one of the parties being entitled, under the

. statute, to a separate trial, when the one was on trial it would
not be competent to submit the question to the jury for any
purpose whatever, whether the other was guilty or not. Be-
fore this rule of law, if rule it may be called that is no rule,
touching the credibility of accomplices, can be applied, there
must be no question about the guilt of the witness. He must
be an acknowledged criminal: one who, to save his own neck
from the halter, has confessed his own guilt, and agreed with
the State to betray his companions for a consideration: one
who stands, by his own confession, degraded below the law
of honor among thieves, and who exemplifies in his own per-
son the crimes of Barabas and the treachery of Judas. It
is the immunity offered to him by the State, and the conse-
quent temptation to lie, more than his actual complicity in
crime, which makes him a dangerous witness. The employ-
ment of such witnesses opens a door to hopeless criminals to
swear off their own crimes on innocent persons. Their temp-
tations to commit perjury are so strong, and their moral pow-
ers so feeble, that it is dangerous both to life and liberty to
rely on them; and hence the rule. But this rule never was
applied to the testimony of an unimpeached witness, who has
never acknowledged his complicity, and against whom there
is no charge. So the law is laid down by every text writer,
and by every judge who has had occasion to speak on the
question. (2 Starkie Ev., 22; 1 Greenleaf Ev., Secs. 379,
162 THE STATE OF OHIO vs. COOK AND SEITER.

380, 381, 382; Noland vs. Ohio, 19 Ohio Rept., 131; U.S
vs. Henry, 4 Wash. C. C. R., 428.)

I insist that this instruction tended to mislead the jury,
as to the testimony of Swift; and to stigmatize a witness, to
the full legal and moral force of whose testimony the de-
fendant was justly entitled; and that it is one of those errors
which ought to be corrected. .

Hitherto, so far as I have spoken of the facts, this affair
had been Seiter’s own; whether it was a fight or a frolic, it
was all his own, and Cook had not as yet intermeddled. Let
us see how Cook came into it.

The idea that Seiter called in Cook because Kate was an
overmatch for him, is simply ridiculous. He had strength
enough to have stuffed her in a bag and tied her up. The
idea that Cook meant anything serious by the declaration,
“Yl master her,” if ever he made it, is equally ridiculous.
The idea that Cook and Seiter expected to intimidate any-
body by pretending to be policemen, is of the same charac-
ter. No class of people know so well who the policemen
are as these harlots; no class know so well who the harlots
are as the policemen. ‘Too much of the time of the police
is employed in quelling riots engendered by such women, to
allow them to be strangers to each other. They meant noth-
ing,.then, by assuming to be policemen. They meant as lit-
tle by the threat, if they ever made it, to arrest every one in
the house. This scene, in which both Cook and Seiter were
actors, was but another scene of wild and thoughtless uproar,
of every day’s occurrence in such places, in which no one
was angry, and no one attempted to injure another. Seiter
took her by one arm, and Cook by the other. They pulled,
and she resisted, till it was announced by Mrs. Davis that a
real policeman was at the door. Swift admonished his com-
panions that they would be arrested sure enough, if they did
not go. Seiter let go and withdrew; and had Cook with-
THE STATE OF OHIO US, COOK AND SEITER. 163

drawn at the same time, no one would have regarded all that
had transpired as a fight. But Cook did not withdraw—
probably he could not. He was engaged in a scuffle with
this woman, from which he could not extricate himself. Per-
haps he was too much intoxicated to appreciate his own dan-
ger. Perhaps he did not hear the warning cry either of Mrs.
Davis or of Swift. Be this as it may, he stayed behind, and
was the unfortunate instrument of her death:

Let us turn for a moment to the plan and appointment of
the house in which Kate died.

It was built expressly for the trade by Mrs. Emma Whee-
ler—now an inmate of the Lunatic Asylum—on a narrow
street, in the heart of a well-built square. It would be dif-
ficult for one who did not know its character, to say whether
it was intended for a dwelling-house, a fortress or a prison.
A three-story house standing back fifteen or twenty feet from
the street, with a door-yard of equal width with the house,
inclosed by a strong fence of iron pikes, six feet high; the
doors opening from the house into the yard, closed with strong,
solid shutters within and without; so that the front of the
building is completely impregnable.

The house is then flanked on either side by an alley about
six feet wide, running to the rear at right angles with the
street, one for ingress and the other for egress of visitors.
These alleys are walled up with brick over thirty feet high,
and these walls are completely insurmountable.

Near the mouth of cach of these alleys is a strong barrier
and gate of wood, fifteen feet high, secured by bolts, bars
and locks. A few yards further back, these alleys are again
thwarted by strong barricrs and gates of iron, twelve feet
high, secured, in like manner, by bolts, bars and locks.
Still further back, and behind both these barriers, the side
walls of the house are pierced with two doors, the one for
ingress and the other for egress. So that, without the aid
164 THE STATE OF OHIO vs. COOK AND SEITER.

of scaling ladders, no one from without can enter, and no
one within escape, except by permission of the landlady,
who keeps the keys. From the northern to the southern
door, the house is cut in two by a hall running parallel with
the street, and in this hall are two flights of stairs, one for
ascending and the other for descending visitors.

Through the three barriers on the north side of the house,
Cook, Seiter and Swift were admitted by Mrs. Davis.
Through the three barriers on the south side, Sciter and
Swift were conducted out by Mrs. Davis, and all the gates
and doors locked behind them; and after she had made all
fast and returned to the house, she tells us she found Cook
and Kate fighting, the fatal weapon not yet drawn.

The condition and appointments of this stronghold, with
which all parties seem to have been acquainted, suggest three
pregnant considerations :

ist. The improbability that Cook and Seiter meant to
frighten or intimidate any one by the threat, if ever they
made it, that they would arrest Kate and every one else in
the house and take them to the watch-house, or that their
conduct was any thing more than rude sport.

2d. The folly of supposing that Seiter went outside of
such a place with the expectation of aiding and assisting
Cook in the accomplishment of any thing within.

3d. The terrible apprehension that must have filled Cook’s
mind, when he found his friends were all gone, and he sur-
rounded, in such a place, by his enemies, armed and urging
each other to the combat.

I wish to revert, for a moment, to the exit of Seiter, be-
cause with this stands connected an important principle of
law, which the judge did not seem to comprehend. He left
the house to avoid the awkward exposure of being arrested
in such a place, and Swift was moved by the same motive.
THE STATE OF OHIO vs. COOK AND SEITER. 165

Did he attempt to take Cook with him, or did he purposely
leave him behind ?

There are three versions of what he said, as he passed
through the hall. The three junior harlots, who were in. the
room at the time, and whose opportunity to hear what was
said was not so good as that of either Mrs. Davis or Swift,
quote him thus: “ Kill her, Charley ! kill the d d b——h.”
The old harlot, who was with him in the hall, conducting
him out, quotes him thus: “ He’ll kill her, he’ll kill her,
he’ll kill her,” and she swears that the words, “Kill her,
Charley, kill the d——d b——h,” were not used at that
time. Swift, who was with him in the hall, and had as good

 

an opportunity of hearing him as Mrs. Davis, and a better
than the other three, quotes him thus: “Come along, Char-
ley; let us get out of this;” and he is confident these were
his words, and that he did not use either set of words stated
by the women. Which of these is the most natural under
all the circumstances? Ordinarily, men suit their action to
their words and their words to their action. By reference to
Seiter’s actions, we may determine what his words were. He.
was, himself, escaping from an arrest by way of the back
door, aud it was natural for him to wish all his company to
escape also.

When Swift said, we will all be arrested, sure enough, if
we stay here; Seiter replied, “ Let us go.” What was it
natural he should say to Cook? Precisely what Swift swears
he said: ‘Come along, Charley—let us get out of this.” Did
his acts say the same? When he reached the back door,
finding Cook was not with him, he sent Swift back to bring
him out. Mrs. Davis says she sent Swift back to bring out
Cook, but she does not swear that Seiter did not tell him to
go also. Swift does not swear that Mrs. Davis did not re-
quest him to go; but he remembers distinctly that Seiter did
send him. What further? After Swift and Seiter had
166 THE STATE OF OHIO vs. COOK AND SEITER.

reached the corner of Sixth and Vine streets, Seiter again
sent Swift to bring away Cook, and when Swift did not re-
turn, he sent another messenger on the same errand.

In this part of his story, Swift is not contradicted by any
one. His story is natural and accords with the ordinary mo-
tives of human action. Seiter’s acts are such as one would
naturally look for under such circumstances, and they prove
conclusively, that instead of leaving Cook behind him to kill
Kate, his greatest anxiety was to get him out of the house.

In view of the evidence, conclusive as it was, that Seiter
had withdrawn from the house and from the neighborhood
before the homicide was committed, with a determination
evinced by his acts, not to return, we asked for the follow-
ing instructions to be given by the court to the jury:

‘Ist. Unless you are satisfied from the evidence in the
case, that the defendant, Seiter, with his own hand, inflicted
the stab of which Kate Bereau died, in manner and form as
charged in the indictment, you cannot upon the present is-
sue convict him of any degree of homicide.

“2d. Unless you are satisfied from the evidence in the
case, that the defendant, Seiter, was actually present when
Kate Bereau received the stab of which she died, aiding,
abetting or procuring the defendant, Cook, to do the act of
homicide, you cannot, upon the present issue, convict him of
any degree of homicide.

“3d. Unless you are satisfied from the evidence in the
case, that when the defendant, Cook, inflicted the stab of
which Kate Bereau died, the defendant, Seiter, in pursuance
of an agreement with Cook, was either actually present, or
near enough to render aid and assistance, and with the in-
tent to render such aid and assistance to the defendant,
Cook, in the act of homicide, you cannot, upon the present
issue, convict him of any degree of homicide.”

Each and all of these instructions were refused. In this
I think the judge erred. He not only refused to lay the law
down as applicable to the facts proved; but, in his general
THE STATE OF OHIO vs. COOK AND SEITER. 167

charge, fell into the fault of which I have heretofore com-
plained: discoursing about rules of law, applicable only to
some imaginary state of facts. With the full, clear and un-
questionable testimony of all the witnesses on both sides, that
Seiter was not in the house when Kate was killed; that he
was gone, and one door and two high and impassable gates
locked behind him; that he must have been a distance of
over a hundred yards from the scene, with blocks of inter-
vening houses between, at the time; still the judge goes on to
instruct the jury as to what they ought to do with the case,
if they find that he was actually present in the house, aiding
and abetting in the homicide; as if, by some fiction of lav,
the jury might find that he was present when they knew he
was absent; or as if they might set aside all the proof that
he was absent and find that he was present, out of respect
for the suggestion from the bench, that after all he might
have been present; or as if some ideal or imaginary presence
would meet the demands of the law. I would not willingly
be disrespectful to a judge, but I cannot but see the pernicious
influence on the minds of a jury, produced by the charge of
a judge, having the last word in a case, who speaks as if
things might be so and so, when the proof, which the jury
may have forgotten, is directly the other way.

That part of the charge, in which Seiter’s case ought to
have been distinguished from Cook’s; in which the common
law of England ought to have been distinguished from the
statute law of Ohio, and aiders, abettors, and procurers ought
to have been distinguished from principals, is too long to be
recited, but your Honor has a copy before you. In Ohio,
there are no common law crimes. This stands on the au-
thority of our Supreme Court. (Noland vs. Ohio, 19 Ohio,
131.)

Nothing is to be punished as a crime, except that which
is declared to be’ so by the statute. No one is to be pun-
168 THE STATE OF OHIO vs. COOK AND SEITER.

ished for a high crime, except by the presentment of a grand
jury in the form of an indictment. That indictment must
follow strictly the form of the statute, defining the crime
charged therein. The accused party is entitled to a copy
of the indictment, a reasonable time before he can be put
upon trial, so that he may be prepared to meet the specific
charge made against him. He cannot be tried for any other
offense than that specified in the indictment. A jury cannot
be called on by any fiction of law to declare, under their
oath, that a man is guilty of any offense, except that speci-
‘fied in the indictment. The plea is, not guilty in manner
and form, as the defendant. stands charged in the indictment.
The verdict, if a verdict of guilty, is, that he is guilty in
manner and form as he stands charged in the indictment;
not that he was guilty of some other offense for which he
ought to be punished, but that he is guilty in manner and
form as he stands charged.

The manner and form of the charge, in this indictment,
is, that William Seiter and Charles Cook killed Kate Be-
reau with a knife, which they held in their right hands.
This is all. There is no charge for beating, striking, kick-
ing, strangling. It is one simple count for killing with a
knife, which the defendants held in their hands. The proof
was that she was killed by Cook alone with a knife which
he held in his hand. The defendant, Seiter, as far as the
proof goes, never saw the knife—never touched the knife—
did not know Cook had the knife—did not know there was
such a knife in existence. When the deadly stab was given
by Cook, Seiter was not in the house. He had gone out,
and one door and two gates were locked behind him by the
mistress of the house. He walked, without pausing, at an
active pace, till he reached the corner of Sixth and Vine, a
distance of over a hundred yards. If the battle between

Cook and Kate lasted half as long as the accusing witnesses
THE STATE OF OHIO vs. COOK AND SEITER. 169

say, he must have been at this point before the deed was
done. Here all communication by eye or ear was cut off
by the blocks of intervening houses. Now, how could a
jury be allowed to say that Seiter killed this woman with a
knife which he held in his hand? for this is what the ver-
dict says. It says he killed her in manner and form as he
stands charged in the indictment, and the indictment charges
that he killed her with a knife which he held in his hand.

The common law of England, and the statute laws of some
of the States where the common law of England is adopted,
recognize principals in the first degree, and principals in the
second degree ; accessaries before the fact, and accessaries after
the fact. But, in Ohio, there are no principals in the second
degree; no accessaries before the fact; no accessaries after the
fact. The party accused is either a principal under the first
section of the “Crimes Act,” or he is an aider, abettor, or
procurer under the thirty-sixth section of the “Crimes Act.”
He cannot be both. If he did the deed of homicide, with
his own hands, or actually helped to do it, he is a principal,
under the first section. If he was actually present without
giving material aid, but encouraging another to do it, he is
an abettor, under the thirty-sixth section. If he hired, per-
suaded or induced some one else to do it, he is a procurer,
under the thirty-sixth section. If he stood without, near
enough to render aid in any way, and with that purpose, he
is an aider, under the thirty-sixth section.

I deny that Seiter was guilty of any crime punishable by
the laws of Ohio, except a technical assault and battery, in
his rude horse-play with this woman. But at the worst for
him, giving all to the proof and all to conjecture that is
claimed for them by the State—stretching our imaginations
to their utmost tension—it only amounts to this, that Seiter
had a plan laid with Cook to kill this woman beforehand,
which, on leaving the house, he directed Cook to execute ;
170 THE STATE OF OHIO vs. COOK AND SEITER.

or, that he engendered malice on the occasion, and formed a
purpose to kill, which he directed Cook to execute ; or, that
he knew Cook was going to kill her, and was posted with-
out in such a place that he could render aid and assistance.
Any one of these offenses might render him liable to be in-
dicted and punished under the thirty-sixth section. But for
neither of the three could he be indicted or punished under
the first section.

It has been held repeatedly that the thirty-sixth section
of the “Crimes Act,” against aiding, abetting and procuring
crimes to be committed, creates substantive and independent
crimes; and it follows, I think, very clearly, that if a party
is guilty, under one section, he is not guilty under the other.
In plain English, if Seiter did the planning and Cook did the
killing; or, if Cook did the killing within, and Seiter did
the watching without, Cook ought to have been indicted as
a principal under the first section, and Seiter as an aider,
abettor or procurer under the thirty-sixth section. In such
case the punishment would be the same as that provided for
the principal; but a man, whose life and liberty are at stake,
has a right to know specifically whereof he is accused, and
on his trial to insist on all the forms, (Smith rs. Ohio, 22
Ohio R., 511; 2 Starkie Ev., 7, and authorities there cited ;
Noland vs. The State, 19 Ohio Rep., 181.)

In the case last cited the court say: “The Legislature of
this State have made the aiding, abetting or procuring a crime
to be done, a substantive and independent offense,” and there-
fore a defendant indicted as an aider, abettor and procurer,
could not claim, as he might at common law, that his prin-
cipal should be first convicted.

I come now to speak ‘of what took place between Cook
and Kate after Sciter had withdrawn. The night had been
one of unseemly uproar, noise, and rude sport; but nothing

had occurred, as I think, evineing a design to take any one’s
THE STATE OF OHIO vs. COOK AND SEITER. 171

life, or to do any one great bodily harm. And, judging by
the marks on the body and clothing of Kate, no serious bod-
ily harm had been done. All the mighty pother, magnified
by these degraded women into so monstrous an affair, had
been mere horse-play, offensive to Mrs. Davis doubtless, be-
cause there was more noise than money in it. It ended as
it had begun, without plan or purpose.

Henceforward the affair was Cook’s affair. At what time
that which was rude sport changed to deadly strife, is not
known, and no reliance can be put in witnesses who have lied
so egregiously in their account of Seiter’s affair, and who
have contradicted themselves and cach other in so many im-
portant particulars. One thing they agree in, that in some
stage of the struggle, Cook threw her, or she fell with the
back of her head against the nosing of a window-sill. This
part of the story we can believe, because the surgeons found
a corresponding bruise behind her ear. At this point the
parties probably began to be angry, and, shortly after, Kate
reached for the spittoon, and then hostilities began in carnest.
She struck with the spittoon, and he dodged, till at length
she struck him a blow on the head which shattered the
spittoon in pieces. These wretched women say the spit-
toon was cracked before. On the fullest examination before
the Police Court, and again at the coroner’s inquest, this
crack in the spittoon was not mentioned. Not one of the
four mentioned it then; not one of the four omit to mention
it now. This crack is doubtless an improvement of a later
invention; invented, no doubt, to rebut the idea that Cook
was in danger of death, or great bodily harm, from the use
of the spittoon; invented since the witnesses learned that
Cook relied on a plea of self-defense.

Shortly before, Kendall had knocked out Gregory’s brains
with a queensware pitcher, an instrument in no wise more
likely to break one’s skull than a black-stone spittoon. <A
172 THE STATE OF OHIO vs. COOK AND SEITER.

jury might think that a man, whose head was thrice struck
at, and once hit with such a weapon, was in danger of death,
or great bodily harm. Without the crack, the spittoon was a
dangerous weapon. With the crack, it was not so dangerous.

It was necessary, in the estimation of these wretches, that
this spittoon should be cracked; and having long since
cracked their virtue, cracked their consciences, and standing
ready, for the purposes of revenge, to crack any thing from a
black spittoon to the Holy Evangelists, this little improve-
ment on their former testimony was natural and easy.

But did Cook know it was cracked? If he did not know
it, he had the same reason to apprehend death or great bod-
ily harm, as if the weapon had been sound and the danger
real.

The honest apprehension of the party who kills in self-
defense, and not the opinion of a jury, as to his real danger,
is what the law regards as an excuse for homicide. If I am
violently assailed with a pistol, the law does not require me
to pause, and inspect the pistol, to see whether it is loaded
or empty. If I am thrust at in the dark with what seems
to bea knife, the law does not require me to examine whether
it is a Demascus blade or a pine stick; and if I kill my as-
sailant under an honest apprehension of danger, it makes not
the least difference which of the two it was.

In this instance, Cook was deserted by his friends and
surrounded by his enemies. One was armed with a stone
spittoon and another with an open knife, and with his brain
stunned by a blow, his eyes bedimmed with his own blood,
and his ears tingling with the crash of a broken spittoon, as
it fell in shattered fragments around him, he might honestly
apprehend danger, and lawfully kill.

Here, in my poor opinion, is error in the charge of the
Judge. The law of self-defense is thus laid down by his
Honor:
THE STATE OF OHIO vs. COOK AND SEITER. 173

“Every person has the right to defend himself, or her-
self, against grievous bodily harm, or danger of life, even
unto death, if it becomes necessary. This right arises from
our constitution as human beings, and the law fully recog-
nizes it.

“Tf A violently attacks B, without excuse or justification,
B has the right to defend himself, by the exercise of so much
force as to entirely repel or drive away the force of A; and
if B is in danger of grievous bodily harm or of his life, he
may repel the force of A, if necessary, even unto the death
of A; and you, gentlemen of the jury, in such a case being the
judges of the facts, are to be the judges of such necessity—
whether such necessity existed under the particular circumstances
of the case before you. For it would not do for a defense of
this kind to prevail out of the bounds of reason. As, for in-
stance, B might be an arrant coward, and in his fear and
trembling might kill A to protect his own body or his own
life, as he in his unreasonable fear and cowardice thought
necessary. Or B might be attacked by a woman whom he
was enabled to manage, and whose force he could repel and
drive away without the necessity of taking the woman’s life,
and yet in his fear he might do so. It would not do in such
cases to allow the justification of self-defense. No, gentle-
men of the jury, these matters address themselves to you as
reasonable men, and as reasonable men you must judge of
others. You, when the justification is set up, must be judges of
the necessity of exercising the right of self-defense even wnto
death. Otherwise life would be too easily and readily sacrificed
by the hands of wicked men.

‘In former days it was a principle of the common law,
holding life so sacred and so dear, that when a man was
violently attacked, he should be driven to the wall, as the ex-
pression was, before he could slay in self-defense ; that he had
the right to repel force by force, if necessary, but not to
’ take life unless he was driven to the wall of necessity. This
doctrine has been modified, and now, according to the law,
a man, in the right, can defend himself unto death, without
retreating to the wall, if necessary, from grievous bodily
harm and danger of his own life. But the jury are to be the
174 THE STATE OF OHIO vs. COOK AND SEITER.

judges in all cases of this kind, of the necessity existing of tak-
ing life, and they are to look at all the circumstances, surround-
ings, matters and things about und in the case as reasonable
men, and are to judge of it as reasonable men.

“ And, gentlemen, a man must be in the right, who claims
the protection of self-defense. He must not commence the
attack, or bring on the attack and then kill, and claim self-
defense. He must not help others in abusing and using
violence upon any one, and then kill, and claim self-defense.
For those who are thus abused and violently treated, have
also this common right of self-defense; and they who attack
or bring on attack, have no right to shield themselves under
the protection of self-defense, as against those who have the
same right. No, he who claims the right of self-defense, must
be himself with clean hands; and he must be in the right.”

Here it will be observed, the jurors are made the sole
judges whether the defendant was in actual danger of death
or great bodily harm, and whether there was an actual neces-
sity to take life in self-defense. Nothing was left to the dis-
cretion; nothing to the honest apprehension of the defend-
ant. The jurors alone were to be the judges, not whether
the defendant’s apprehensions were real or feigned, rational
or irrational, but whether there was actual danger to life or
limb, and whether there was an actual necessity to kill.

This is bad law and false logic, as I shall show anon; but
bad as it is, this defendant is put out of the pale of its protec-
tion by two exceptions: First, a woman must not be killed
in self-deferse ; second, the person killing must be wholly in
the right. When one argues a cause as an advocate, it may
be very adroit pettifogging, and may have the semblance of
logic to say, “The person slain was a woman, and therefore
the defendant ought to be ashamed to set up the plea of self-
defense.”

But when one lays down the law as a Judge, he ought not

to prejudice the minds and provoke the passions of a jury
THE STATE OF OHIO vs. COOK AND SEITER. 175

by either making or insinuating a distinction not known to
the law. The real question is, not whether the party slain
was a man or a woman, but whether, under all the circum-
stances, the party slaying honestly apprehended danger of
death or great bodily harm, and whether he did the act un-
der this apprehension. Some of the most atrocious assassins
on the pages of history have been women; and I am not
quite sure that it is more agreeable to have one’s brains
dashed out or one’s throat cut by a woman than* by a man;
nor am I quite sure that a strong and desperate woman will
do the work of death with less vigor or less cruelty than a
man.

It is well known to the knowing ones that the whole sis-
terhood to which Kate Bereau belonged carry daggers, pistols
or other deadly weapons upon their persons, and use them
freely ; and so intimately are their lives blended with the
history of bloodshed, that there is scarcely an instance of
homicide without a whore at the bottom it. I can well im-
agine that a man of true courage, surrounded, overpowered,
and driven to the wall by such desperate creatures, so armed,
might lawfully kill even a woman in self-defense.

The second exception is no sounder than the first. It is
not law that one must be wholly in the right in order to slay
another lawfully in self-defense. He may be in the wrong,
badly in the wrong in the beginning, and in the end may
lawfully kill in self-defense. But before he may lawfully
kill, he must make his best endeavor to escape by other
means. He must decline the combat. He must retreat to
the wall, or do what is equivalent, endeavor to retreat, un-
less his peril would be made greater by the attempt; and
then he may draw a deadly weapon and slay his pursuer
lawfully. Here is a clear distinction which ignorance is apt
to confound. The law does not require the man who is
wholly in ae right to retreat to the wall, or to retreat at

2
176 THE STATE OF OHIO vs, COOK AND SEITER.

all. He who stands where he has a right to stand, does what
he has a right to do, and says what he has a right to say,
has the law of self-defense in his own hand, and may slay
his assailant on the spot, if he honestly believes his life or
limb in danger; whilst the man who is in the wrong must
purchase the right of self-defense by declining the combat,
and retreating to the wall. All we claimed at bar was, that
the honest apprehension of the defendant, at the time and
under all the circumstances, was the rule. This was conced-
ing all the law requires against a defendant, in a case of
murder, where malice is an ingredient in the crime. What-
ever the rule may be in manslaughter, where malice, as an
ingredient, is expressly excluded, killing in self-defense out
of fear merely, cannot be murder in either degree, as the
Judge lays down the law. In defining justifiable homicide,
the criminal code of Illinois says that “bare fear” is not suf-
ficient; and the same rule is laid down in some of the text
writers and supported by decided cases. But this distinction

> can extend no

between honest apprehension and “ bare fear’
further than to cases of manslaughter. If a man honestly
believes that he is in danger of death or great bodily harm,
and kills in self-defense, although his belief may have been
irrational and his motive cowardice, it is a fearful tax on the
conscience of a jury to require them to say, on their solemn
oaths, that the killing was malicious. It is requiring a jury,
by the dictate of a judge, to say that fear is malice; that
‘ the lamb and wolf are moved by the same impulse; that the
English language means nothing, and that the statute defin-
ing murder by the insignia of malice, is a trap.

A man’s mind may be so free from malice, that God, the
searcher of hearts, can find no emotion in his bosom but fear,
mere fear; and yct if this doctrine be law, a judge may com-

mand a jury to say that this emotion was malice. I say then,
THE STATE OF OHIO vs, COOK AND SEITER. 177

that the ruling of the Judge on the law of self-defense is-
wrong, all wrong.

But, carrying the law of self-defense to the extremest verge
against the defendants, it is this: that one who under all the
circumstances of his own case, in the moment of supposed
peril, honestly and reasonably apprehends danger of death or
great bodily harm, may lawfully kill in self-defense, though
it should turn out that in point of fact there was no danger.
So the law has been held. (Wheaton on Hom., 215 to 222;
1 Russsell on Crimes, 782; 2 Bishop’s Crim. Law, 565; 4
Deo. and, Bot., 491.)

There is another consideration affecting the question of
Seiter’s complicity with Cook in this homicide. The State,
against our solemn protest, put in evidence the declarations
of Cook, and they are in the case. These declarations were
made on the spot; over the dead body ; in the excitement of
the moment. They were repeated to the officers on the way
to the station-house. They were repeated again in the sta-
tion-house, after he had time to cool. And these declarations
were uniform: that he had killed. her, and would do it again
under similar circumstances ; that she attempted to kill him,
and he had killed her in self-defense.

Whether Cook overrated his right of self-defense, or whether
he misapprehended his danger, does not matter in this case.
He uniformly took the act, with all its consequences, upon
himself; without ever reproaching Seiter for getting him into
trouble.

I know how easy it is for a lawyer, if he does not judge
men’s acts by the known laws of human action, or if he em,
ploys his mind in inventing improbable reasons for things,
to say that this declaration was the result of contrivance.
But no sound thinker can attribute a contrivance of this
sort to a thoughtless, wayward boy, in a state of intoxica-
tion; or suppose that motives of magnanimity moved him
178 THE STATE OF OHIO vs, COOK AND SEITER,

to screen an accomplice by taking the act upon himself. At
all events, the declaration was put in evidence by the State,
and there it must stay and be believed, if it is uncontradicted
and reasonable.

The State also put in the dying declarations of Kate Be-
reau. This was not objected tv on the part of the defense.
Whether it is admissible, under the Constitution, is doubt-
ful. But it has always been the practice to admit such dec-
larations, for the purpose of proving how the deceased came
to his death. The declaration of Kate, like that of Cook,
charges the cause of her death on Cook alone. He had killed
her, and she would kill him, the d——d son of a b——h.
One of the women said, “ Kate, you are dying, and you had
better pray.” She prayed, the witnesses say, about her fa-
ther, mother, brother, sisters, husband and child, and expired
with the remorseful words on her lips, that she was dying in
a whore house. But not a word of reproach against Seiter
escaped her lips.

I insist on the right rule of self-defense as to Cook, be-

cause, if Cook killed this woman in self-defense, Seiter could
not have killed her maliciously.
' Hitherto, in speaking of the marks of violence on the
body, I have confined myself to such as were found upon
it by the surgeons only. But some stress was laid on the
fact testified to by Mrs. Sponsler, that when she washed and
dressed the body for burial, she found hair-pins sticking in
the scalp.

The two eminent surgeons examined the body carefully,
for the purpose of discovering, if possible, some other cause
for her death beside the knife-wound. They were induced to
do this by the extravagant representations of these women
against Seiter, on whom they were anxious then, as now, to
fix the crime of murder. They examined the head carefully,
parted the hair, and handled the scalp all over, and found no
THE STATE OF OHIO vs. COOK AND SEITER. 179

bruise or wound, or mark of violence, except one slight
bruise behind the ear. If hair-pins had been driven into
the scalp, and left sticking there, could they have escaped the
scrutiny of the surgeons? Surely not. And yet, scveral
hours afterward, when Mrs. Sponsler washed and dressed the
body for burial, she found hair-pins driven into the scalp
and sticking there. This unhappy old woman seemed more
disposed to tell the truth than any other of her sisterhood.
I believe she did tell the truth. I believe that when the
surgeons examined the body, there were no hair-pins there.
I believe that when Mrs. Sponsler washed the body, they
were there. How came they there? Those infernal women
put them there. Julia Durand spoke the common senti-
ment of all the sisterhood, when she swore that she would
see Cook and Seiter to the gallows, if she should follow
them through hell to do it. Pursuing these young men with
hell-bent footsteps, the same infernal fury that led them to
swear on Kate Bereau’s body one hundred and twenty blows,
which she never received, would lead them to plant hair-
pins in the scalp of the dead body, and point them out to
this old woman, as they pointed out the foot marks on her
bosom, when there was nothing but a stain. Another of
Mrs. Sponsler’s discoveries was a wound on the nail of Kate
Bereau’s little finger. This might have escaped the observa-
tion of the surgeons, as it was not in a vital part. It was
probably a real wound, and if so is easily accounted for. She
fought Cook in the deadly conflict with a spittoon. The only
mode in which she could hold it, was by thrusting her fingers
into its mouth and placing her thumb on its lip; and when
it was crushed in pieces on Cook’s head, her finger could
scarcely escape being wounded.

Another reason why the verdict in this case should not
stand, is, that it is the verdict of a juror who had prejudged
the case—who, before he was sworn or had heard the evi-
180 THE STATE OF OHIO vs. COOK AND SEITER,

dence, had declared himself in favor of hanging both Cook
and Seiter. A man who could do this was unfit to sit on a
jury in any case involving the life of a citizen, much more
in this case.

A man who could condemn his fellow man, unheard, to
an ignominious death, pollutes the records of justice by his
verdict. The public mind can never repose in confidence
on such a verdict. The example of such a verdict is perni-
cious to society. Such a verdict has in it all the elements of
murder in the first degree. It has purpose, deliberation,
premeditation and malice, if, as the books teach us, “ malice
is the emotion of a heart devoid of social duty, and fatally
bent on mischief.” For what is social duty, but “doing to
others as we would have others do to us;” and who among
us, whose own life, or that of a son or a near kinsman or
friend, hung upon the verdict of a jury, would wish to be
tried by one who had prejudged the case unheard? Good
men abhor such a verdict as tending to judicial murder.
Bad men despise such a verdict, as leveling down justice to
their own standard ; and weak men lose all confidence in the
law so administered. Every way considered, it is not fit
that such a verdict should stand.

The additional declaration of the juror, that he was in
favor of a vigilance committee to hang all the murderers
in the jail, does not mend the matter. It proves that his
bad citizenship, and unfitness to sit on a jury, was not only
special but general; and if it be said that his mind was af-
fected by a moral epidemic, common at the time to many
others, it makes the matter still worse. If the jail was filled
with persons accused of homicide, the man who, without a
hearing, could’ say, they were all murderers, was fitter for a
lunatic asylum than a jury room.

But this question need not be argued on principle. It is
in law a foregone conclusion. The unfitness of such verdicts
stands on the authority of our Supreme Court, and in accord-
ance with the law as decided everywhere. (17 Ohio R., 198;
3 Scammon, 412; 7 Cowan, 121.)
The Newport and Cincinnati Bridge Co.

US.

The United States.

THE UNITED STATES CIRCUIT COURT,

SouTHERN District oF OHIO,

APRIL Term, 1874.

POWER OF CONGRESS: COMMERCE: NAVIGABLE STREAMS.

ARGUMENT OF JUDGE JOHNSTON,

FOR THE UNITED STATES.

May it please your Honors :

Before the Newport and Cincinnati Bridge was projected,
there were two laws in force regulating bridges, neither of
which had special relation to this bridge; but became re-
lated to it by subsequent legislation.

First. There was a general law of Ohio, passed May 1,
1851, defective in this, that it did not authorize corporations
formed thereunder to consolidate with similar corporations of
other States.

Second. There was an act of Congress, July 14, 1862, te
establish certain post-roads, etc.

The first object of this act was to legalize the railroad
bridge at Steubenville; the second, to regulate other rail-
road bridges over the Ohio river, as far down as Big Sandy.
This act gave bridge-building corporations their option, to

build either a draw-bridge, or a bridge with unbroken spans,
(181)
182 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

If built with unbroken spans, that over the main channel
was required to be 300 feet in length, and 90 feet high,
measuring from low-water mark, and in no case less than
40 feet high, measuring from high-water mark, to the low-
ermost chord of the bridge. If built as a draw-bridge, the
span over the main channel was required to be 300 feet long,
and 70 feet high, measuring from low-water mark to the low-
ermost chord of the bridge. One of the adjoining spans was
to be 220 feet long; and the draw to be a pivot-draw, with
an opening of 100 feet on each side of the pivot-pier. In
either case the piers were to be parallel with the current of
the river, as near as practicable.

Third. February 5, 1868, the Legislature of Kentucky
granted a charter to the Newport and Cincinnati Bridge
Company, to construct a bridge across the river from New-
port to Cincinnati; but this charter, like the general act of
Ohio, was deficient in this, that it did not authorize the cor-
poration to consolidate with similar corporations of other
States.

Fourth. February 26, 1868, the Legislature of Kentucky
passed an amendatory act, to enable this corporation to con-
solidate with similar corporations of other States.

Fifth. To meet the Kentucky corporation half-way, the
Legislature of Ohio, April 3, 1868, passed an act amendatory
to the general act of May 1, 1851, authorizing corporations
formed under that act, to consolidate with like corporations
of other States.

Siath. April 8, 1868, an association was formed in Ohio,
under these acts, by the name of the Newport and Cincin-
nati Bridge Company.

Seventh. On the 16th day of April, 1868, these two corpo-
rations entered into a contract of consolidation, and thereby
became one corporation, known as the Newport and Cincin-

nati Bridge Company.
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES, 183

Fighth. By a joint resolution, approved March 3, 1869,
the assent of Congress was given to the erection of a bridge
from Cincinnati to Newport, on condition that it should be
built with an unbroken span, not less than 400 feet long
from pier to pier, over the main channel of the river, and
in all other respects in accordance with the conditions and
limitations of an act entitled “An act to establish post-roads,”
approved July 14, 1862. But Congress reserved therein the
right to withdraw the assent given, in case the free naviga-
tion of said river should at any time be substantially and
matcrially obstructed by any bridge to be erected under the
authority of the said resolution, or to direct the necessary
modifications and alterations of said bridge.

Ninth. The corporators, from motives of economy, adopted
the alternative of a draw-bridge, with the principal span 400
feet long, and 70 feet high, measuring from low-water mark
to the lowermost chord of the bridge, and in other respects
conforming, as they allege, to the requirements of the act of
July 14, 1862.

Tenth. After the corporators had made considerable prog-
ress in building the bridge, the work was suspended by an
act of Congress, approved March 8, 1871, forbidding the
erection of the bridge, unless the principal span of 400 feet,
over the main channel of the river, should be raised to an
altitude of 100 feet, measuring from low-water mark to the
lowermost chord of the bridge, and dispensing with the
draw.

Eleventh. The corporators conformed to the modifications
required ; remodeled the bridge, and finished it on the new
plan. In making these changes, a large additional expense
was incurred in two ways: 1. In additional material, work-
manship and labor in raising the bridge to the required ele-
vation; and, 2. In the loss of material and work wasted by
the change.
184 NEWPORT & CIN’TI BRIDGE CO. v8. UNITED STATES.

Twelfth. The act of March 3, 1871, requiring the change,
contained a provision, that, in the event of the complainant
making the changes required by the said act, it should be
lawful for the complainant, after it should have made the
changes in said bridge and the approaches thereto as therein
required, to file its bill in equity against the United States,
in the Circuit Court of the United States for the Southern
District of Ohio; and full jurisdiction was thereby conferred
upon said Court to determine, first, whether the bridge, ac-
cording to the plan on which it had progressed, at the pas-
sage of said act, had been constructed so as substantially to
comply with the provisions of law relating thereto; and sec-
ond, the liability of the United States, if any there be, to
the complainant, by reason of the changes by said act re-
quired to be made; and if the Court should determine that
the United States is so lable, and that the said bridge was
so being built, then the said Court should further ascertain
and determine the amount of the actual cost and expenditures
reasonably required to be incurred in making the changes
in the bridge and its approaches, as thereby authorized and
required, in excess of the cost of building said bridge and
approaches according to the plan proposed before the changes
required by said act to be made; and the said Court was
thereby further authorized and required to proceed therein
to final decree, as in other cases in equity.

To the complainant’s bill, setting forth these facts very
clearly and circumstantially, we have put in a general de-
murrer :

First. Passing by, for the present, the reserved right of
Congress to withdraw their assent or modify the bridge,
the bill presents the very common case of parties who have
suffered loss and inconvenience, as a necessary consequence
of the progress of public improvements; with this shade
of difference, that these sufferers had an alternative by
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 185

which, if they had been wise, they would have avoided both
loss and inconvenience. None of their private property
was taken for public use. None of their property suffered
physical damage at the hands of the United States, and we
maintain, both on principle and authority, that they have no
claim to relief.

Second. By the reserved right of Congress to withdraw
their assent or modify the bridge, the complainants were
put fairly on the lookout for their own safety. The reserva-
tion was a part of the charter under which they built; and
the right of Congress to withdraw, was as fully secured by
the charter as the right of the complainants to build. They
incurred the loss and inconvenience, whatever it was, with
their eyes open, and have no right to complain.

Third. The right to withdraw the assent of Congress or
modify the bridge, was a legislative right, inherent in Con-
gress, by their power to regulate commerce ; and was secured
to them by the terms of the charter, and no judicial deter-
mination was required, prior to the change.

Fourth. The act of March 3, 1871, confers no rights on
these complainants which they did not possess without it.
It simply opens the doors of this court and lets them in, to
show, if they can, that they have rights arising out of the
acts of Congress in the premises.

I am not a strict constructionist. I admit that, under
the constitutional power to establish post-offices and post-
roads, Congress may not only designate the roads over which
the mail shall be carried, but, if need be, construct roads
and build bridges, or authorize persons or corporations to do
it. JI admit that, under the power to regulate commerce,
Congress may improve navigation, not only in the sea-ports,
but in the inland rivers—may deepen channels, blast out
rocks, cut off bends, lock down cataracts, pull out snags; or

do anything else which may make the various forms of nay-
186 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

igation easier, cheaper, safer, or better adapted to the wants
of the people.

Congress may not only improve the river, but exercise
a supervision over the structure and outfit of the vessels
which navigate the river. Every stick of timber, every
pound of iron from stem to stern, from keel to pilot-house,
steam-gauges, safety-valves, medicine-chests, and life-pre-
servers, are all subject to the inspection and approval of
Congress; and these boats must be guided’ over bars and
rocks and shoals by pilots examined and licensed by the
same authority. All these regulations, so essential to the
safety of life and property, and to the rational enjoyment
of the rights of navigation, fall within the constitutional
power of Congress to regulate commerce.

By article 1, section 8, of the Constitution, the power is
given to Congress, ‘To regulate commerce with foreign na-
tions, and among the several States, and with the Indian
tribes.” This power is confined to no particular means or
modes of carrying on commerce. Down to the time of the
contest about the Wheeling bridge, twenty years ago, much
money and much legislation had been expended by Con-
gress, under this provision. of the Constitution, to protect
and improve the navigation | of rivers, as the medium of
commerce, But the truth had not yet been developed, that
one-half our commerce was to be carried on through the
medium of railroads; nor had it occurred, even to the intel-
ligent mind of the country, that by the Constitution Con-
gress was as much bound to regulate and take care of com-
merce through this medium, as that of river navigation.
After commerce by railroad came into use, for a long while
the iron horse, with his train of cars, halted on the bank of
the river, and a muddle of several hours ensued. Trunks
and boxes were smashed, baggage lost, and pockets picked,
in ferrying over the freight, baggage, and passengers to the
NEWPORT & CIN’TI BRIDGE CO. v8. UNITED STATES. 187

train on the other side. Rivers were serious obstructions
to commerce by rail, and bridges, as then understood, were a
serious obstruction to commerce by water. How to “ regu-
late commerce” so that neither of these two great vehicles
should be obstructed was a serious question; and being a
new question, Congress tried some awkward experiments.
Even engineering science, destined to solve the question at
last, made many a blunder. One who has considered the
latest improvements, cannot read the testimony of expert
engineers in the Wheeling bridge case, without a smile.
Even Mr. Stanton, great man as he was, and representing
as he did the interests of steamboat navigation, speaks of
the draw-bridge as the only thing that could accommodate
the travel on the great Cumberland road, without obstruct-
ing the navigation of the river.

In engineering, as in other sciences, that which is sim-
plest is always best. The simplest and the best was at last
adopted. The engineer led the way and the legislator fol-
lowed; and now, each of these great vehicles of commerce
has its own road to travel on. All the expenditure of time
and money, and labor, and life and limb, inseparable from
the best of the old contrivances, is done away, and the pub-
lic have the advantages of competition without rivalry.

When the joint resolution of March 3, 1869 was passed,
Congress were still in the twilight, and, not seeing their way
clearly, inserted the reservation to withdraw or modify, if
the future should find them in error.

How much more Congress shall find it necessary to do
in the regulation of commerce by rail, is not involved in
the present case. For the purposes of this case, it is enough
to know that Congress has the power to regulate the mode
and manner in which the two great engines of commerce
shall both be accommodated in crossing each other’s path,
without danger, or damage, or delay to either.
188 NEWPORT & CIN’TI BRIDGE CO. v8. UNITED STATES.

But there are some things which Congress cannot do.
They can never legislate away their own power to legislate
under the Constitution. One of their highest functions is
to correct the errors and supply the deficiencies of past leg-
islation. (7 Cowen, 585, 586; Wheaton, 593.)

But again, Congress have no constitutional power, direct
or incidental, to obstruct rivers made navigable by the hand
of God, and supplying the medium of commerce to and be-
tween the several States ; nor can they confer any such power
on a corporation.

In the case of Blackbird Creek Marsh Company (2 Peters,
245), the court take a very proper and manifest distinction
between little creeks or lagoons, wholly within the limits of
one State, into which schooners and small craft occasionally
run, and those large navigable rivers which flow through,
and sometimes form the boundary lines between different
States. And if the question was made, they might possibly
find a distinction between a great navigable river, such as
the Hudson, which begins and ends in the State of New
York; and the Connecticut, which forms the boundary line
between the States of Vermont and New Hampshire, and
flowing quite across the States of Massachusetts and Connec-
ticut, falls into Long Island Sound. And if it had been the
great Mississippi, with its hundred affluents, instead of Black-
bird creek, I hardly think Chief Justice Marshall would have
waited to “follow the lead of Congress,” in holding that it
was a highway of commerce which no corporation could law-
fully obstruct, with or without the license of a State legis-
lature, or even of the Congress of the United States. The
constitutional power of Congress is to “regulate,” not to
strangle “commerce among the several States.”

I have denied and again deny that Congress have any
power under the Constitution to obstruct the free naviga-
tion of one of these great highways of commerce, or to con-
NEWPORT & UIN’TI BRIDGE CO. v8. UNITED STATES, 189

fer such power on a corporation. Of course, if I am right,
every such license is void, and the corporation takes no rights
under it, but acts at its peril, as if it had no license.

I do not propose to argue this point on authorities; there
are some ill-considered cases against me. But I may be al-
lowed to illustrate my own meaning, and what I believe to
be the law, by a single example. At St. Louis, the Missis-
sippi river is spanned by a railroad bridge, which holds in
contempt all the silly contrivances of former times. Take
your stand in the middle of this bridge, and you will have
passing under your feet, from the south, the products and
commerce of Louisiana, Mississippi, Arkansas, Alabama,
Tennessee, and Kentucky; and from the north, the prod-
ucts and commerce of Illinois, Wisconsin, Iowa, Minnesota,
Kansas, Dakota, and Nebraska. Now, suppose Congress
had authorized this bridge to be constructed at an elevation
of two yards above high-water mark, and declared that at
that elevation it should be a lawful structure. And suppose
the corporation to have accepted the license of Congress, and
built the bridge accordingly ; and thus, clapped a garrote on
the neck of thirteen growing young States, rich as the gar-
den of God and teeming with the supplies of life: —and thus
making St. Louis the head of navigation for Louisiana, Mis-
sissippi, Arkansas, Alabama, Tennessee, and Kentucky; and
the foot of navigation for Illinois, Wisconsin, lowa, Min-
nesota, Kansas, Dakota, and Nebraska. Would this bridge
so constructed have been a “regulation of commerce among
the several States,’ within the powers conferred on Con-
gress by the Constitution? Would the corporation have
taken any rights to obstruct navigation under such a
license? Would not such a license have been a mere usur-
pation of power, outside of the letter, and at war with the
spirit of the Constitution? Would not Congress, on an ap-
peal from “Philip drunk to Philip sober,” order such an
190 NEWPORT & CIN’TI BRIDGE CO. U8. UNITED STATES,

unwarrantable structure to be torn down and removed, on
the same ground, and by the same authority, whereby the
great Red River raft was removed? And if Congress had
neglected or refused to abate such a stupendous nuisance,
might not the people have assembled in mass and torn it
down, and under the authority of the case of the Blackbird
Creek Marsh Co. (2 Pet. 245), left the corporators without
remedy ?

Between the case I have supposed and the case at bar,
there is only a question of degree. The principle involved
is precisely the same. The Ohio is not so great a river nor
so great a highway of commerce as the Mississippi, and this
alone makes the difference. But the Ohio is a navigable
river; always has been navigable, from time whereof the
memory of man runneth not to the contrary. The Indian
navigated it in his little canoe; the pioneer settler navigated
it on his little raft; the backwoods trader navigated it in
his keel-boat and flat-boat; and now the majestic steamboat
navigates it.

In 1789, before either Kentucky or Ohio was a State, the
Legislature of Virginia passed an act to authorize the Dis-
trict of Kentucky to become a State, commonly known as
the “Compact of Virginia.” In the 11th section of this act
I find this wise and patriotic provision: “That the use and
navigation of the river Ohio, so far as the territory of the
proposed State, or the territory which shall remain within
the limits of this Commonwealth, lies thereon, shall be free
and common to the citizens of the United States; and the
respective jurisdictions of this Commonwealth and the pro-
posed State on the river as aforesaid, shall be concurrent
only with the States which may possess the opposite shores
of the said river.”

By the act of Congress admitting Kentucky into the
Union (1 Stat. at Large, 189), this Compact of Virginia was
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 191

adopted and ratified as a law of the land. So, too, the act
for enrolling vessels, etc. (1 Stat. at Large, 305), and nu-
merous other acts of Congress have recognized the Ohio as
a navigable river and a highway of commerce.

The first bridge across the Ohio was that built at Wheel-
ing, intended as a connecting link between the eastern and
western parts of the Cumberland road. This raised a tem-
pest among the men engaged in steamboat navigation, and
the Pittsburg merchants, who thought they saw in it a
scheme to make Wheeling the head of navigation. The
State of Pennsylvania carried the matter into the Supreme
Court, where a majority of the court held that the bridge
was a public nuisance, and ordered it to be taken down or
remodeled (13 Howard, 518). But before the decree was
executed, Congress, by the act of August 31, 1852, declared
it to be a lawful structure, and a post-road of the United
States. The case came again before the Supreme Court, on
an application for a writ of assistance, and several motions,
and was again argued by counsel, who denied the validity
of the act of Congress; but a majority of the court sustained
the act of Congress, and, save as to costs, dismissed the com-
plainants’ bill (18 Howard, 29).

The history of this case is long and curious, and need not
be gone into further than this. The question of congres-
gressional jurisdiction was before the court, and they decided
that which was pertinent to the case at bar—that Congress
had exclusive jurisdiction over the questions what is and
what is not a material and substantial obstruction to the free
navigation of the river.

In that case, Congress had before them a bridge 90 feet
above low-water mark, at a point where the difference be-
tween low and high water is only 45 feet; so that after
making allowance for the westward declivity of the bridge,

there was still a clear head-room of 40 feet above extreme
13
192 NEWPORT & CIN’TL BRIDGE CO. vs. UNITED STATES.

high water to a distance of 300 feet from the eastern
pier.

I am not sure that, when the joint resolution of March
3, 1869, was passed, Congress were informed that the dif-
ference between high and low water at Cincinnati was 63
feet. But it made no matter. The provision in the act of
July 14, 1862, that in no case should there be less than 40
feet clear, measuring from high-water mark to the lower-
most chord of the bridge, was still in force, and would have
controlled, in case the bridge had been built with continu-
ous, unbroken spans through all its length; and if the cor-
porators had adopted this alternative, the bridge would have
been precisely what it is now, perhaps a little higher.

The corporators chose the alternative of a draw-bridge,
which—considering the place as a focal point where three
cities meet; where fleets of saw-logs, rafts of lumber and
cordwood, and fleets of coal-boats moor and unload; with
the certainty that population and commerce, both by rail
-and water, will double every six years—to say the least of
it, was a very improvident choice: a choice which enlight-
ened engineering could not have approved, and which the
increase of commerce could not have endured. The modi-
fication or the destruction of such a structure, at a future
day, was inevitable, and the question of time alone was open.

The right to withdraw the assent, or modify the plan,
whether inherent in Congress or derived from the reserva-
tion in the charter, was exercised. By the act of March 3,
1871, they forbade the erection of the bridge unless the
channel span of 400 feet should have a elear altitude of 100
feet in all its length, measuring from low-water mark, and
dispensed with the draw.

This modification made the bridge what it now is and
what it ought to have been at the first. It cured an infirm-
ity in the original plan, which would have been a perpetual
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 193

annoyance to the traveling public, and a substantial and
material obstruction to the navigation of the river, and to
commerce by rail.

On what reasons Congress acted is not stated’ in the
complainant’s bill; but the modifications required, indicate
clearly enough what they were. They required the princi-
pal span to be raised thirty feet higher, and dispensed with
the draw. The hazard and retardation, both to steamboats
and railroad trains, incurred by opening and shutting the
draw ten, fifteen, twenty, or thirty times in a day, in cross-
ing each other’s path, as compared with the present mode,
was in itself sufficient.

But it is alleged in the complainant’s bill, “That the
assent given by said resolution was afterward withdrawn,
without any ‘judicial determination’ that said bridge had
become, or was about to become, a substantial and material
obstruction to the navigation aforesaid.”

This complaint is made as if Congress had no power to
legislate on this subject without judicial aid.

Now, it must be adrhitted that this was a matter over
which Congress had jurisdiction. It was purely a legisla-
tive act, and in this, as in other cases within their jurisdic-
tion, they had a right to inform their minds in their own
way. (Wheeling Bridge, 18 Howard, 29; Coates v. Mayor,
etc., of New York, 7 Cowen, 585.)

There is a laudable practice in the British Parliament,
which our Congress begin to imitate. In cases of legisla-
tion, where conflicting interests are involyed—such, for in-
stance, as the conflict in the Ohio valley between the steam-
boat and railroad interests—the committees sit day after day
taking testimony and hearing arguments on both sides; and
after they have listened patiently to all that can be said,
they make their report, accompanied with a bill or refusing

a bill, as may seem just and proper. In like manner, in
194 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

some cases, I know the committees of Congress hear testi-
mony and arguments pro and con, and investigate matters
of this character in dispute with as much patience and can-
dor as our courts of justice do. In this case the bill does
not allege that this was not donc, nor does it admit that
it was done. The bill is the work of a master hand,
but here is an important omission. The pleader did not
think how much it would have helped my argument, if I
had been able to say to your Honors, that before Congress
withdrew their assent or modified the plan of the bridge
the parties interested had a ful] and patient hearing before
a committee of learned lawyers ; that the testimony of experi-
enced navigators and the reports of scientific engineers were
heard, and that one of the best lawyers in America had
made one of his ablest arguments against the measure. Nor
did he think how much it would have helped his own ar-
gument, if he could have said this thing was done in the
dark, without an opportunity to be heard on the part of his
clients.

Since the complainants have not favored us with the his-
tory of any thing preliminary to the act of 1871, I must
resort to the Statutes at Large for information. From the
act of July 11, 1870 (vol. 16, p. 227), I read the 5th section:
“And be it further enacted, That the secretary of war is
hereby authorized and required to detail three engineers,
whose duty it shall be to examine all bridges now erected,
or in process of erection, across the Ohio river, and to re-
port whether, in their opinion, such bridges, or any of
them, as now constructed or proposed to be constructed, do
or will interfere with the free and safe navigation of said
river; and if they do, or will so interfere, to report also what
“extent of span and clevation above water will be required
to prevent obstruction to navigation, and their estimate of
the cost required to change such bridges, now built or
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES, 195

being built, to such width of span and elevation above the
water as will prevent obstruction to navigation, such report
to be made and communicated to the next session of Con-
gress.”

It is a matter of public history that, in obedience to this
law, the secretary of war did detail three engineers for the
purpose designated; that this board of engineers performed
the work assigned to them; that they made a report thereon,
and communicated it to the next session of Congress, which,
on this report, and whatever other light they had, passed the
act of 1871, modifying the plan of this bridge.

I do not deny the right of Congress to refer questions
of congressional jurisdiction to other departments. They
may, and sometimes do, send a disputed or doubtful claim
to the Court of Claims for adjudication. They may, and
sometimes do, as in this case, send questions of internal im-
provement to a board of engineers. They may, and some-
times do, send a question of science to a commission of
savans. They may, and sometimes do, as in thix case, send
a question of law to the federal courts. But where the
constitution invests Congress with jurisdiction over a par-
ticular subject, such as the regulation of commerce, their
power is complete, and requires no extraneous aid. They
have inherent power to collect their own materials, and in-
form their own minds, in their own way, and the reason of
their action is not tu be called in question. This, I believe,
is a prerogative of all legislative bodies from the Congress
of the United States down to a borough corporation, so
long as they act within the limits of their respective charters.
And so it was held in the case of Coates vs. Mayor, etc.,
of New York (7 Cowen, 585), and cases therein cited.

Putting aside all minor considerations, the vital question
is, whether the action of Congress, in arresting the work on
this bridge and modifying the plan thereof, gives’ these com-
196 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES,

plainants title to relief, according to the rules of law and
equity, the doors of this court having been thrown open for
that inquiry.

Private property cannot be taken for public use without
just compensation. This is one of the guaranties of the
Constitution. But, despite “the glittering generality” of
the common law, that there is no injury for which the law
does not afford a remedy, we know that, not only by the
providence of God, but by the mutation of human affairs,
and sometimes by the most useful discoveries and improve-
ments, both men and corporations suffer great damage, dim-
inution in the value of property, and loss of business, for
which the law affords no redress.

Let me imagine a case which may illustrate both aspects
of the question. A gentleman purchases a tract of land on
a fine public road in the suburbs of a city. One of the in-
ducements to the purchase was this fine road, established by
law, kept up at the public expense, and the fashionable drive
for citizens and visiting strangers. He selects a command-
ing spot on the adjacent hill, and builds a dwelling-house
with an ornamental front to the public road. Everything
that “would offend the eye in a good picture”—such as
kitchen, wash-house, stabling, cow-house, poultry-yard, and
pig-pen—he builds in the background over the hill. On
the lawn, in front of his house, he grades, paves, gravels,
and rolls his approaches and drives; plants trees, sets out
shrubs, builds bowers, and fences his front with hedges and
ornamental gates, at an expense of $10,000.

When all this is done, it is discovered that the road can
be made more convenient for the public, half a mile shorter,
and two degrees lighter grade, through his premises on the
other side of the hill; and the road is changed by public
authority.

From the new road, nothing is to be seen but what he
NEWPORT & CIN’TI BRIDGE CO. v8. UNITED STATES. 197

had tried to hide—such as kitchen, wash-house, stabling,
cow-house, poultry-yard, and pig-pen; and the most com-
manding view of the new road, is from the back door of
the kitchen. His trees, shrubs, and bowers are unseen, his
gates are a solitude, and the grass grows green in his grav-
eled drives; and before he can get out and in, he must lay
out and construct new roads by the back way. An outlay
of $10,000 on his foreground is lost. An outlay of $10,000
more will be required to transform the old background into
a new foreground, and then his dwelling-house will be a
preposterous pile. Upon the whole, the entire country-seat,
if sold under the hammer, would bring $40,000 less -money
than it would have sold for one year before.

Tell me, if you please, what is this man’s remedy? It
is written in the Constitution, private property shall not be
taken for public use without just compensation. For every
foot of land, every perch of stone, every cart-load of gravel
of his private property taken for the public use, he must re-
ceive a just compensation in money; but for the utter ruin
of his home, and the expense of remodeling his improve-
ments, he is without remedy.

This imaginary case illustrates the principle, and makes a
case of hardship; but nothing in comparison with thousands
of real cases occurring every day, some of which sweep away
the provisions made for old age, and take the bread out of
the mouths of hungry children. Such a case occurred within
a mile of this bridge.

T refer to the recent case of Piatt et al. vs. Covington and
Cincinnati Bridge Co. (8 Bush. 31). In that case, a strip of
land from the top of the bank down to low-water mark,
comprising the entire river-front of the old town of Coy-
ington, had been held in fee simple by the plaintiffs, and
those under whom they claimed, from the earliest settle-
ment of Kentucky, and when the town of Covington was
198 NEWPORT & CIN’TI BRIDGE CO. V8, UNITED STATES.

laid out and the property sold, this strip of ground was re-
served from sale for ferry purposes: and, as the Court of
Appeals of Kentucky, in the case of Kennedy’s Heirs vs.
Covington (8 Dana, 50), decided, was held in trust by the
city of Covington for the use of Kennedy’s heirs for ferry
purposes.

On this strip of ground, the plaintiffs and those under
whom they claimed, by virtue of a license under the laws
of Kentucky, had established and operated a ferry between
the cities of Covington and Cincinnati, from 1815 to 1867,
52 years, which at the latter date yielded them a net in-
come of $15,000 a year. And the proprietors had invested
in steam ferry-boats, floating-wharves, and other property
pertaining to the ferry, about $70,000.

Under charters granted by the States of Ohio and Ken-
tucky, with the assent of Congress, in 1861 the Covington
and Cincinnati Bridge Company commenced building the
great suspension bridge, close beside the ferry, and having
obtained some sort of title from the city of Covington, set
its southern pier on this reserved strip of ground. In 1867,
the bridge was finished and opened for travel. This ocea-
sioned the utter ruin of the ferry, franchise and all. The
income was not sufficient for the current expenses of run-
ning it, and all was sold for a, trifle.

This was a case not only of hardship, but of utter ruin;
and the sufferers sought redress in the courts of Kentucky,
but found none. The Court of Appeals, on the authority of
the Charles. River Bridge case (11 Pet. 420), held that inas-
much as no private property had been taken for public use,
and no physical damage done to the plaintiff’s property, there
was no legal ground for redress.

How far does this case resemble that at bar, and wherein
do they differ ? ;

First. The Newport and Cincinnati Bridge Company, by
NEWPORT & CIN’TI BRIDGE CO. VS. UNITED STATES. 199

authority of law, commenced building a draw-bridge across
the Ohio river, and therein expended a large sum of money.
And so, the heirs of Samuel Kennedy, by authority of law,
established a ferry across the Ohio river, and therein they
and their successors expended large sums of money in build-
ing ferry-boats and wharves, and providing other things in-
dispensable to a ferry.

Second. The legislature thought the ferry had been a good
thing in its day; but the increased population of the two
cities, and the increased and stili increasing demands of com-
merce required something better; and so they authorized
the construction of the great suspension bridge. And xo
Congress thought that a draw-bridge had been a good thing
in its day, but the increased population of the nation, and
the increased and still increasing demands of commerce re-
quired something better; and so they modified the plan of
the bridge.

Third. In changing the plan of their bridge, the corpo-
rators had on hand a large amount of material, which they
were unable to utilize in the new structure, which had to be
disposed of at a heavy loss. So, too, in going out of exist-
ence, the ferry company had a large amount of material,
boats, wharves, and so on, which they could not utilize, and
had to dispose of at a heavy loss.

Fourth. No part of the private property of the ferry
company was taken for public use, and therefore they had
no claim for compensation. Neither was any part of the
private property of the Newport and Cincinnati Bridge Com-
pany taken for public use, and therefore they have no claim
for compensation.

Thus far, the resemblance between the cases holds good.
Let us now see wherein they differ.

First. By remodeling the plan of the Newport and Cin-
cinnati Bridge, Congress did not destroy the franchise of
200 NEWPORT & CIN’TI BRIDGE CO, vs. UNITED STATES.

the corporators ; that remains in full life and vigor, and its
value was not impaired by the change. By establishing the
suspension bridge, the franchise of the ferry company was
totally destroyed; became as worthless as the shadow of the
ass in the desert, in which the traveler took shelter from the
sun, till the ass ran away and the shadow followed.

Second. The ferry company had no alternative—no object
to which they could apply either their franchise or their
property. The bridge company had the alternative of two
plans, and chose the worse because it was the cheaper.

Third. The Newport and Cincinnati Bridge Company
sinned against the progress of commerce, both by land and
water, with a caveat before their eyes—a solemn warning
that if they obstructed the free navigation of the river, the
assent of Congress would be withdrawn, or the plan of their
bridge modified. The ferry company had no such caveat,
no such warning. The law imposed on them the duty of
providing boats and other things necessary for the accommo-
dation of the traveling public; and this they had done for
more than half a century; increasing the number, and en-
larging the size of their boats, as the increase of population,
travel, and commerce demanded.

Fourth. Upon the opening of the suspension bridge, the
value of the ferry property, boats, wharves and all, which
cost the ferry company an immense outlay of money ; their
ferry franchise, their annual income of $15,000, their hopes
from the future growth and prosperity of two cities, all
vanished like a dream, and they are without remedy. The
Newport and Cincinnati Bridge Company, since the modi-
fication of their plan, still enjoy a grand monopoly, a price-
less franchise, a double income from railroad transit and
highway travel, with a certain prospect of doubling both
every six years; and on top of all this, want the tax payers
of the United States to pay them the difference between
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 201

the cost of a bad bridge and a good onc, built for their own
advantage.

There is no material difference between the case of Piatt
et al. and that of The Charles River Bridge Company vs. The
Warren Bridge Company (11 Pet. 420). Charlestown and
Boston were connected over Charles river, by an ancient
ferry owned by Harvard College. In 1785, Thomas Russell
and others, under whom the Charles River Bridge Company
claim, bought out the college, for the consideration of £200
a year, payable from the tolls of the bridge to be built;
and then applied for, and obtained from the legislature of
Massachusetts, a charter for the erection of a bridge in the
same place where the ferry had been kept, with the privi-
lege of collecting certain tolls, from which the college was
to receive £200 a year. The charter had forty years to run
and then the bridge was to become the property of the com-
monwealth. By a subsequent act of the legislature, the
charter was extended from forty to seventy years.

The bridge was built, and being the only highway be.
tween Charlestown and Boston, was a very profitable in-
vestment to the corporators, and brought a handsome income
to the college.

In 1828, the legislature of Massachusetts granted a char-
ter to the Warren Bridge Company, to build another toll-
bridge across Charles river, from Charlestown to Boston.
This last charter had six years to run, and then the bridge
was to become the property of the commonwealth, and be a
free bridge. This bridge also was built and opened for
travel.

The two bridges commenced in Charles Square, the focus
of several important roads leading to Boston, distant from
each other 16 rods, and ended in Boston, 50 rods asunder ;
and, of course, were rivals in business and profits.

While the Warren bridge continued to be a toll-bridge,
202) NEWPORT & CIN’T] BRIDGE CO. vs. UNITED STATES.

it took one-half of the travel, and when it became a free
bridge it took it all: and the Charles River Bridge and fran-
chise became valueless, both to the company and the college.

This was the gravamen of the plaintifi’s case. It would
be unprofitable to follow the case through all its interlocu-
tory stages. It was a proceeding by bill in chancery, and
the supreme judicial court for the county of Suffolk, in the
commonwealth of Massachusetts, wherein it was heard, at
November term, 1829, dismissed the bill.

The complainants, being dissatisfied, prosecuted a writ of
error, and brought the case into the Supreme Court of the
United States. Here it was argued with consummate ability
by Dutton and Webster, on the part of the plaintiffs in
error.

It was claimed that the charter of the Charles River
Bridge Company, with its amendment, was an implied con-
tract that they should enjoy for seventy years from the
opening of their bridge the exclusive right to bridge Charles
river and collect tolls on all the line of travel between
Charlestown and Boston; and that the charter of the War-
ren Bridge Company impaired the validity of this implied
contract, and was void.

It was claimed that the franchise granted by the legis-
lature of Massachusetts to the Charles River Bridge Com-
pany was the private property of the company, and that, by
virtue of the charter of the Warren Bridge Company, this
private property had been taken for public use, and ought
to be compensated. But the Supreme Court of the United
States thought otherwise.

We are not interested in all the various points argued
and decided in this case. Suffice it to say, that corporations
are held to take nothing except by express grant from the
legislature ; that the legislature cannot divest itself of its own
legislative powers, or make a contract by implication ; and,
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 203

that the diminution or loss of profits occasioned by lawful
improvements, is not the subject of compensation. In short,
there were no words in the charter giving the Charles River
Bridge Company an exclusive right to tax the whole line of
travel between Charlestown and Boston; that other bridges
might lawfully be constructed, and if the traveling public
preferred the new bridge, the old bridge had no right to
complain.

There is a batch of cases in 5 Cowen, 538, and 7 Cowen,
585, worthy of notice. There were in the city of New
York several old burying-grounds. It was believed the in-
terment of dead bodies in a populous city was injurious to
health, and with a view to curing this and other evils, in
1813, the legislature of New York passed an act declaring
that the corporation, in common council, should have full
power and authority to make and pass such by-laws and
ordinances as they should from time to time deem proper
and necessary for regulating, or, if they shall find it neces-
sary, preventing the interring of the dead within said city.
The act also authorized the imposition of a penalty, for
violating such by-law, of $250, recoverable in debt by the
corporation. (2 R. L. 445, sec. 267.)

In 1823, the corporation passed a by-law prohibiting the
interment of the dead within certain parts of the city, under
the penalty of $250,

It was claimed by the various parties affected by this
by-law, that it was void, and that the act of the legislature
authorizing it, violated the Constitution of the United States
in two particulars. It authorized the taking of private prop-
erty for public use without compensation, and it impaired
the validity of contracts. On these grounds the law was re-
sisted, and the by-law violated, and suits brought into court.

First. The Brick Presbyterian Church vs. The Mayor, etc.,
of the City of New York (5 Cow. 538). In 1776, the cor-
204 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

poration of New York conveyed to the church land for
church and cemetery purposes, with covenants of quiet enjoy-
ment, and a stipulation that it should never be used for sec-
ular purposes, The church sued the corporation of New
York for breach of covenant of quiet possession, and the cor-
poration defended under the act of 1813 (2 R. L. 445), and
the action failed.

Second. Coates vs. Mayor, etc., of New York, in error.
Coates was sexton of South Trinity Church-yard, and was
prosecuted for violating the by-law by burying a dead body
therein. These parties held under a patent by the authority
of William III., King of Great Britain, dated 1677, to the
rector and inhabitants of the city of New York in the com-
munion of the Protestant Episcopal Church of England, and
their successors forever, for a church-yard, cemetery and
burying-place, with a right to fees, perquisites, profits, ete.

Third. Coates vs. Mayor, etc., of New York, in error.
Coates was sexton of North Trinity Church-yard, and was
sued for violating the by-law by burying a dead body
therein. In this case the parties held by a deed-poll from
the city of New York, dated April 22, 1703, to the rector,
etc., on condition that the ground should be appropriated
as a city burying-ground, with a provision that the grantees
might take certain fees and emoluments for interments, ete.

Fourth. .Slack vs. Mayor, ete., of New York, in error.
Slack was sexton of St. Paul’s Church-yard, and was sued
for violating the ‘by-law, by burying a dead body therein.
In this case the defendant below pleaded a seizin in fee in
the rector, ete., for more than one hundred years, of these
premises as a burying-ground, in which he interred the body
in question.

Stuyvesant vs. Mayor, etc., of New York, in error. Stuy-
vesant was sexton of the Middle Dutch Church; was prose-
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 205

cuted for the same offense, and set up the same defense as
in the last case.

The last four of these cases were argued and decided
together, as involving the same principles. There are some
things common to all of them; 1. All their titles to the locus
im quo seem to have been unquestionable; 2. All the parties
held the locus in quo for the specific purpose of burying-
grounds ; 3. All of them had pecuniary income, more or less,
from burial fees; 4. The income, whatever it was, in all of
them was cut off by the enforcement of the by-law, forbid-
ding the burial of the dead in that part of the city wherein
these five church-yards were located.

In all these cases the same ground of opposition to the
law was taken. The act of April 9, 1813 (2 R. L. 445, see.
265), was said to be contrary to the Constitution of the
United States, and the by-law enacted under it null and
void on two grounds: 1. They took private property for
public use without compensation ; 2, They impaired the va-
lidity of contracts. And then they claimed, as has been
claimed in this bill, that admitting the power of the corpo-
ration of New York over the subject-matter they had no
right to enact the by-law excluding burials without some
previous adjudication to ascertain whether such a regulation
was necessary.

Several propositions are clearly settled by the rulings of
the court in these cases:

First. That the owners of property and franchises must
not expect the world to stand still, but must lay their plans
with some degree of forecast as to the future demands of a
new and growing country.

Second. That to diminish the income of an estate or fran-
chise by abating that which has become a public nuisance;
in order to promote the public health, is not a taking of
206 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

private property for public use, within the meaning of the
Constitution.

Third. That the obligation of a covenant of quiet posses-
sion is not impaired by requiring the proprietor to so use his
own property as not to injure that of his neighbor.

Fourth. That a legislative body is competent to every ac-
tion within its constitutional jurisdiction, and requires no
judicial determination, either to enlighten or to strengthen
it. On page 607, the judge says: “It is of the nature of
legislative bodies to judge the exigency upon which their
laws are founded; and when they speak, their judgment is
implied in the law itself.” (7 Cow. 585.)

I will refer to one more case (6 Wheaton, 593), Goszler v.
The Corporation of Georgetown.

I read the statement of the case from Chief Justice Mar-
shall’s opinion:

“This is an appeal from a decree of the Circuit Court of
the United States for the county of Washington, in the Dis-
trict of Columbia, on the following case.”

In the year 1797, the legislature of Maryland, among cer-
tain additional powers given to the corporation of George-
town, enacted that they “shall have full power and author-
ity to make such by-laws and ordinances for the graduation
and leveling of the streets, lanes and alleys within the juris-
diction of the same town as they may judge necessary for the
benefit thereof.” (Act of Nov., 1797, Chap. 56, See. 6, p. 35.)

In pursuance of this authority, the corporation passed an
ordinance in May, 1799, for the graduation of certain streets,
the first section of which appoints commissioners, and author-
izes them “to make the level and graduation of the streets ;”
and the second is in these words:

“And be it ordained, that the said level and graduatian,

when signed by the said commissioners, or a majority of
them, and returned to the clerk of this corporation, shall be
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 207

forever thereafter considered as the true graduation of the
streets so graduated, and be binding upon this corporation,
and all other persons whatever, and be forever thereafter re-
garded in making improvements on said streets.”

The plaintiff in error owned lots upon one of these streets,
and made improvements thereon according to the graduation
made and returned to the clerk of the corporation, under the
direction of this ordinance. In September, 1816, the corpo-
ration passed another ordinance, directing the level and grad-
uation to be altered, and the commissioners appointed being
about to cut down the street by the plaintiff’s house, were
enjoined from proceeding by a bill filed by the plaintiff
against them and the corporation.

Upon the final hearing of this case, the Circuit Court dis-
missed the bill, being of opinion that the corporation had
the power asserted in their answer, of altering the level and
graduation of a street graduated under their former ordinance
of May, 1799.

The counsel for the appellant contends that the Circuit
Court erred in dismissing his bill, because: 1. The power
to graduate streets, as given by the Legislature of Maryland,
was not a continuing power, but was exhausted by the ordi-
nance of May, 1799, and has never been renewed. 2. The
ordinance of May, 1799, is in the nature of a compact, and
is unalterable.

This case was decided against the plaintiff, in the Supreme
Court of the United States, without a dissenting voice. In
delivering the opinion of the Court, Chief Justice Marshall
says:

“1. The language of the act certainly does not imply that
the power it confers is exhausted in its first exercise. The
power is not ‘to graduate and level streets,’ or to make a
by-law for the graduation and leveling of the streets, but to

make such by-laws and ordinances for the graduation and

leveling of the streets, etc., within the jurisdiction of the
14
208 NEWPORT & CIN’TI BRIDGE (CO. vs, UNITED STATES.

same town, as they may judge necessary for the benefit
thereof.

“The act seems to contemplate a continuance of the power,
and a repetition of the by-laws and ordinances as the cor-
poration ‘may judge necessary for the benefit of the town.’
It gives a power to legislate on the subject and to pass more
than one by-law and ordinance respecting it. Unless, then,
there be in the nature of the operation something which for-
bids its repetition, the words of the act import no such pro-
hibition.

“There can be no doubt that the power of graduating and
leveling the streets ought not to be capriciously exercised.
Like all powers, it is susceptible of abuse. But it is trusted
to the inhabitants themselves, who elect the corporate body,
and who may therefore be expected to consult the interests
of the town.

“ Although this power may be oppressively repeated, the
possession of it cannot be pronounced so improper or so
dangerous as to control, essentially, the words which confer
it. The graduation and leveling of the streets is not, neces-
sarily, a single operation. There may be circumstances to
produce a general desire to vary the graduation, to bring the
streets more nearly on a level than was contemplated in the
first ordinance; and, if this may occur, we cannot say that
the legislature could not intend to give this power of vary-
ing the gradation, when the words they employ are adapted
to the giving of it.”

After deciding that the power granted to the corporation
by the act of November, 1797, is still in force, the Chief
Justice takes up the second objection, arising out of the 2d
section of the ordinance of May, 1799, which, at first glance,
seems to have some force in it. He says:

“The second point presents a question of some difficulty.
One object of the ordinance, probably, was to give as much
validity to the graduation made by the commissioners, as if
it had been made under the direct superintendence of the
corporate body. But it cannot be disguised, that the prom-
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 209

ise is held forth to all who should build on the graduated
streets, that the graduation should be unalterable.

“The Court, however, feels great difficulty in saying that
this ordinance can operate as a perpetual restraint on the
corporation.

“ When a government enters into a contract, there is no
doubt of its power to bind itself to any extent not prohib-
ited by its constitution. A corporation can make such con-
tracts only as are allowed by the acts of incorporation. The
power of this body to make a contract which should so op-
erate as to bind its legislative capacity forever thereafter,
and disable it from enacting a by-law, which the legislature
enables it to enact, may well be questioned. We rather
think that the corporation cannot abridge its own legislative
power.”

Let us see how far these cases run parallel and wherein
they differ. The act of 1797 was to the corporation of
Georgetown what the Constitution of the United States is
to Congress.

First. The act of 1797 conferred on the corporation of
Georgetown full power and authority to make such by-laws
and ordinances for the graduation and leveling of the streets,
lanes, and alleys within the jurisdiction of the same town,
as they might judge necessary for the benefit thereof. The
Constitution of the United States confers on Congress power
to regulate commerce with foreign nations and among the
different States, and with the Indian tribes.

Second. The power granted by the act of 1797 to the
corporation of Georgetown was a legislative power, com-
plete as far as its jurisdiction extended, and requiring no
extraneous aid. The power of Congress to regulate com-
merce is a legislative power, complete in itself, and requires
no extraneous aid.

Third. The Supreme Court thought that the power of
the corporation of Georgetown to make a contract which
210 NEWPORT & CIN’L1 BRIDGE CO. ts, UNITED STATES.

would so operate as to bind its legislative capacities forever
thereafter, and disabling it from enacting a by-law, which
the legislature enables it to enact, might well be questioned.
We think that the power of Congress to make a contract
which would so operate as to bind its legislative capacities
forever hereafter, and disable it from enacting a law proper
for the regulation of commerce, may well be questioned.

Fourth. The Supreme Court rather thought the corpora-
tion could not abridge its own legislative power. We rather
think Congress cannot abridge its own legislative power.

Fifth. By the ordinance of 1799, the corporation of
Georgetown graduated the streets of Georgetown, and on
the faith of that ordinance Goszler improved his lots and
built his houses agreeably to the grade so fixed. By the
joint resolution of March 3, 1869, Congress authorized the
erection of the Newport and Cincinnati bridge according to
certain specified plans, and on the faith of that act the New-
port and Cincinnati Bridge Company commenced building
the bridge.

Sixth. In September, 1816, the corporation of George-
town passed another ordinance, directing the level and grad-
uation of the street on which Goszler’s improvements were
made to be altered. By an act of 3d March, 1871, Congress
required the plan of the Newport and Cincinnati bridge to be
altered.

But the parallel ends here:

First. Goszler reposed his faith upon the 2d section of
the ordinance of May, 1779, running thus:

“And be it ordained, that the said level and graduation,
when signed by said commissioners, or a majority of them,
and returned to the clerk of this corporation, shall be forever
thereafter considered as the true graduation of the streets so
graduated, and be binding upon this corporation, and all
other persons whatever, and be forever thereafter regarded
NEWPORT & CIN’TI BRIDGE CO. U8. UNITED STATES. 211

in making improvements on said streets.” He believed that
this section, like the laws of the Medes and Persians, was
unalterable.

The Newport and Cincinnati Bridge Company built their
faith and built their bridge on the joint resolution of July
14, 1862, giving the assent of Congress to its erection, but
reserving therein the right to withdraw the assent thereby
given, in case the free navigation of said river should at any
time be substantially and materially obstructed by any bridge
to be erected under the authority of said resolution, or to
direct the necessary modifications and alterations of said
bridge.

Second. In Georgetown there was a defect in the grad-
uation of the streets, which was remedied by change of grade
after a lapse of seventeen years, when all the improvements
damaged by the change had been completed.

In the plan of the Newport and Cincinnati bridge as it
had been begun and had progressed, there was an infirmity,
which had to be prevented now, while the expense would
be small, or cured hereafter, when the expense would be
great; and Congress, acting upon the homely maxim that
an ounce of preventive is better than a pound of cure, or-
dered the change at once.

Now, suppose all these decisions to be bad law—or, if
you will, good law inapplicable to this case—still there is
not enough alleged in the bill to entitle the complainants
to relief. There is still the reservation of Congress, stand-
ing out in bold relief, to notify the corporators that they
must build at their peril.

Let us see what this reservation is, and why it was made.

Congress do not reserve the right “to withdraw the assent
therein given,” if the corporators shall either exceed or fall
short of the license granted. They put it on a different and
higher ground. They put it squarely on the ground that
212 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

the free navigation of the river would be substantially and
materially obstructed by the building of the bridge. And the
reserved right to withdraw or modify was a continuing right,
to be exercised by Congress at any time in the future if the
frec navigation of the river should be obstructed.

Now, although this reservation was not essential to the
right of withdrawal, according to the ruling in Goszler’s case,
it has its uses in this argument: 1. It recognizes the doctrine
that Congress has no right to obstruct the free navigation
of the river, or to grant such right to this corporation. 2. It
recognizes the power and duty of Congress to protect the
free navigation of the river from obstruction. 3. It was a
disclaimer on the part of Congress that they were fully ad-
vised of the character of the river, the locality of the bridge,
and the wants of the public at this point; and an avowal
that they relied mainly, if not wholly, on the information
furnished them by the corporators. 4. It was a solemn
warning to the corporators that they must take the license to
build, and build the bridge at their peril.

It was as if Congress had said to these corporators:
“Gentlemen, you may build a bridge on either of the plans
proposed, which, for anything we know at the present, will
accommodate all the interests of commerce both by land
and water. But we are neither navigators nor civil engi-
neers. We are not informed how many boats may be as-
ceending and descending, nor how many trains may be cross-
ing and recrossing daily at this point, nor what danger or
delay to commerce may grow out of a structure of this
sort. It is a serious matter, and, before you build, you
ought to consider well the effects of a draw-bridge on the
navigation of the river, not only now, but in the future,
when trade and commerce shall increase and require greater
dispatch and larger accommodations. One thing we do know.
Tt is our duty, while we encourage one medium of commerce,
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 213

to protect from obstruction another of older date and higher
claims. And if hereafter, on better information, or fuller re-
flection, we become convinced that the plan you adopt will
present a substantial and material obstruction to the naviga-
tion of the river, you may expect us to withdraw our assent
or modify your plan. Between the two plans proposed you
must choose at your peril, and build at your peril.”

We are told in the complainants’ bill, “That the bridge
on the original plan, as it was commenced and had pro-
gressed, would not have been a substantial and material ob-
struction to the navigation of the river.”

If this was an averment of a matter of fact, in the ar-
gument of a general demurrer, it would have to be taken
for true. But it is a matter of argument—a deduction from
the consideration and comparison of facts stated in the bill
and facts known to everybody, which require no statement ;
and as such I have a right to reply. Itis a fact stated in the
bill that the principal span over the main channel was 70
feet high, measuring from low-water mark to the lowermost
chord of the bridge. It is a fact known to everybody, if not
shown by the diagram making a part of the bill, that the
difference at this point between extreme high and low water
is 63 feet. Deduct 63 from 70, and it leaves you 7 feet
head-room for steamboats, at high water; and it would seem
to be a stringent regulation of commerce to require a steam-
boat either to dodge through such a place, or lie by till the
swell in the river should subside.

Here, again, I think there is an important omission in
the bill. I regret that the complainants had not given us
a fair estimate of the reasonable height of a good-sized
commercial steamer, from the water-line to the chimney-
tops, and of her depth from the water-line to the keel;
so that we might form some opinion as to how much above
low-water mark the river must rise, to float such a boat
214. NEWPORT & CIN’TI BRIDGE CO. vs, UNITED STATES.

safely, and whether on top of such a swell there would be
head-room under an arch of 70 fect: in short, whether such
boats would not always find cither too little water in the
river to ride upon in safety, or too little room overhead to
pass in safety under the bridge: whether, in fact, a class of
boats worthy of the Ohio; able to carry the merchandise of
the North to New Orleans, and the merchandise of the South
to Pittsburgh, without the cost and waste and trouble and
delay of transhipment, would not, at all times of the year,
when there was a stage of water sufficient for them to navi-
gate in safety, have to resort to the draw.

Congress have given us some data, rather indefinite, to be
sure, but better than none.

First. By the act of August 13, 1852, they legalize the
Wheeling bridge, at an altitude of ninety feet from low-
water mark, equivalent in that place, owing to the westward
declivity of the bridge, only to forty feet, at extreme high
water, at the middle of the main channel. To the bridge,
at this altitude, the chimneys, pipes, etc., of steamboats are
required to conform.

Second. By the act of July 14, 1862, they legalize the
bridge at Steubenville, and regulate all other bridges to be
built as far down as Big Sandy, which includes that at Ben-
wood and that at Parkersburg, at an altitude of not less than
forty feet above high-water mark. Herein, also, they require
the chimneys, pipes, etc., of steamboats to be made conform-
able to this altitude.

Third. By the joint resolution of March 3, 1869, author-
izing the erection of the Newport and Cincinnati Bridge, they
require a conformity of the bridge to the act of July 14,
1862, which requires an altitude of forty feet above high-
water mark, and a conformity of the chimneys and pipes of
steamboats to this altitude.

Fourth. By the act of March 3, 1871, modifying the New-
NEWPORT & CIN’TI BRIDGE CO. VS. UNITED STATES. 215

port and Cincinnati bridge and dispensing with the draw,
they require an altitude of 100 feet in the principal span,
measuring from low-water mark, which, as I understand the
law, does not dispense with the provisions of the former acts
requiring forty feet above the high-water mark.

This, then, seems to be the standard fixed on by Congress,
but its application is not so easy. Once in fifteen or twenty
years the river makes a swell of fifteen or twenty feet above
the ordinary spring floods, and practically these rare swells
are not taken into account. In all ordinary seasons, at high
water, there will be at least sixty feet clear between the sur-
face of the water, and the lowermost chords of the Newport
and Cincinnati bridge as it now stands. This, then, is about
the ordinary height of first-class steamers, measuring from
the water-line to the tops of the chimneys. And boats of
this height, though occasionally unable to pass without low-
ering their chimneys, may be said to navigate the river with -
out substantial or material obstruction.

These calculations are somewhat indefinite, but they are
sufficiently accurate to show that an elevation of seventy feet
above low-water mark would not admit of steamboat navi-
gation without a draw, and that an elevation of 100 feet
from low-water, or forty feet from high-water mark is little
enough.

By the terms of the charter, the corporators might have
made the bridge precisely what it now is, with the principal
span 400 feet long, and 100 feet high, measuring from low-
water mark, and not less than forty feet, measuring from
high-water mark. But they had an alternative between that
and a draw-bridge, with an altitude of seventy fect in the
principal span, and from motives of economy they adopted
the draw-bridge.

A draw-bridge is better than no bridge, and there are
places where it would be difficult to use any other. If a
916 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

strait connecting two seas, such as the Bosporus, was to be
crossed by a railroad, there would be some rational excuse
for a draw-bridge, because ships propelled by the wind could
not pass under a bridge of reasonable height. And so at the
necks of little bays and inlets, where once a week a schooner
entered to supply the commerce of a village or neighborhood,
a draw-bridge might occasion no great inconvenience. But
where inland rivers navigated by steamboats are crossed by
railroads, a draw-bridge is always a serious obstruction to
navigation, and there is no excuse for it.

Steamboats and railroads are the two great vehicles of com-
merce and travel, and should be made to cross each other’s
paths without conflict. I know of no place where this idea is
better illustrated than at the Newport and Cincinnati bridge.
An admirer both of the sublime and the beautiful, I have
stood on the margin of the Ohio, gazing on the harmonious
workings of these two grand subsidiaries of progress and
civilization, with a feeling of admiration akin to rapture.
Up yonder, on a firmament of iron, “careers a fiery giant
fast and far,” drawing after it a long train of laden cars.
Down yonder, a floating palace “walks the water like a
thing of life.” With the speed of the wind, they cross each
other’s track without jar, confusion, danger, or delay, each
hastening to its place of destination—each performing its
part in the matchless progress of our country.

Let us turn for a moment to this bridge as it would have
been, if Congress had not arrested its progress. It was to
have had a pivot-draw, with 100 feet of an opening on each
side of the middle pier. This draw, it is said, was only to
be used in the scason of high water, when there would not
be sufficient head-room in the channel span for steamboats
to pass. Be it so. Everybody knows that the season of
high water is the season for steamboat navigation on the
Ohio river. In the time of low water, none but the smaller
NEWPORT & CIN’Z1 BRIDGE CO. Us. UNITED STATES. 217

class of boats can run. In the time of hard frost, none of
the boats, great or small, can run. While the river is ice-
bound, the steamboats lie to at Pittsburg, Wheeling, Cincin-
nati, Louisville, and other places, being repaired, repainted,
refitted, and refurnished, for the season’s work, when the
river swells and the ice runs out.

Meanwhile the warchouses in every port from Pittsburg
to New Orleans are gorged with merchandise ready for ship-
ment, and steamboat men and merchant men are anxiously
waiting for the vernal swell, to set commerce again in mo-
tion. The flood of water comes and the flood of commerce
comes, and the season for energy and dispatch in business
comes; and the time for opening the draw-bridge and let-
ting the steamboats pass and repass comes.

Now, if this bridge, as is alleged, was intended to form a
connecting link in a continuous chain of railroads between
the Eastern cities and the South-western States, as it proba-
bly will, and if the population, commerce, and travel should
double every six years, as they have done for a quarter of
a century past, I want to know what sort of a muddle we
might have expected, in and about this draw, ten years
hence? Even now, can anybody tell me how many times
engines and trains might be passing over, and how many
passenger trains might be due in a day; and how many
steamboats, ascending and descending the river, might be
expected to demand a passage through the draw? If there
were but ten boats in the same direction, either the draw
would have to be opened and shut ten times in the day, or
the headmost boats would have to wait till others should
collect; a conflict all the while going on between the rail-
road men and the steamboat men as to which had the right
to pass first.

But it is said that this matter was regulated by law so as
to avoid all conflict, The proviso in the charter runs thus:

«
218 NEWPORT & CIN’TI BRIDGE CO. 18. UNITED STATES.

“ And provided, also, that said bridge shall always be opened
promptly upon reasonable signal for the passage of boats,
whose construction may not at the time admit of their pas-
sage under the permanent spans of said bridge, except that
said draw shall not be required to be opened when engines or
trains are passing over said bridge, or when passenger trains
are due; but in no case shall unnecessary delay occur in the
opening of said draw after the passage of said engines or
trains.”

According to this regulation, the railroads were to be
accommodated first. The steamboats were to wait for a time
when there would be no engines or trains passing, and no
passenger train due. Well, suppose a passenger train to be
due, but behind time, what then? Be patient, there has
been an accident. A burden train smashed down on the
track, and the passenger train must wait till the track is
cleared. It will be along in two or three hours, or perhaps
sooner; but, being due, it has the precedence, and the boats
must wait till it arrives and passes. Then there will be no
unnecessary delay, unless by this time another passenger
train should be due, which must be waited for.

During this delay steamboats crowd down from above,
and crowd up from below, till a dozen or more are waiting
for the happy moment when there will be neither engines
nor trains crossing, nor passenger trains due. The time ar-
rives, and the draw is opened; but before half the number of
boats pass, a distant whistle is heard, the draw-tender looks
at his watch, and announces that another passenger train is
due, and the draw is shut. The train arrives and crosses ;
and then, without unnecessary delay, the residue of the boats
pass.

On one of these boats there is a long-absent traveler,
who has heard that there is sickness in his family and is
hastening home to their relief, and delay is painful. On
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 219

another, a dutiful son hastening away to receive the last
blessing of a dying mother and close her eyes, and delay
is agonizing. On another, a merchant who has barely time
to get home and save his paper from protest, and delay is
provoking. On another, a trader with a thousand barrels
of flour, which, by contract, he is bound to deliver in New
Orleans by a day certain or incur a heavy loss, and delay is
ruinous. To these, and hundreds of others in like cireum-
stances, the ringing of bells, the blowing of steam, the shriek-
ing of whistles, the blustering and blasphemy of men, and
the long delay, bring but little comfort; nor will it be easy to
persuade these sufferers that this clumsy contrivance—called
a draw-bridge—is not a substantial and material obstruction
to the navigation of the river.

We have seen that, by the terms of the charter, the
“bridge is to be promptly opened upon reasonable signal,
except that said draw shall not be required to be opened when
engines ov trains are passing, or when passenger trains are
due.”

Does not this exception imply delay, more or less? The
crossing of an engine or a train might be accomplished in
ten minutes. But this is not all. Two classes of trains are
provided for—trains which are present in the act of passing
and trains which are absent, due, and behind time. This
provision for absent trains, which may be due, is important
to the life and safety of every passenger, because it is impos-
sible that such trains should always arrive at the exact nick
of time when they are due, and when they arrive, it is im-
portant that the draw should be shut and everything intact.

This exception—indispensable to the railroad train—im-
plies indefinite delay to the steamboat.

Herein is the infallible test. If it would have cost more
time, more money, more labor, more danger, or more delay
to navigate steamboats through this draw, than it now costs
220 NEWPORT & CIN’TI BRIDGE OO. vs. UNITED STATES.

to navigate them in the open river, then it would have been a
substantial and material obstruction to the free navigation of
the river.

The best planned bridge, with piers in the water, is some
obstruction to free navigation of the river, but too slight to
be called material or substantial; but when you construct a
permanent bridge over the main channel so low as to inter-
cept steamboats in their course, throughout the best season
for navigation, and drive them round by a draw, where in-
definite delay may occur, it is quite a different affair. You
might as well tell me that the falls of the Ohio are no sub-
stantial or material obstruction to the navigation of the Ohio
river because steamboats can pass round in a canal.

The draw-bridge comes down to us from the baronial
castle, when it was invented and used as an instrument of
obstruction. The name of this clumsy and dangerous con-
trivance, when used in navigation, means obstruction, delay,
confusion, quarreling, blasphemy, broken bones, drowning
men, dashing whole trains, passengers and all, headlong into
the water.

In reply to the conclusion drawn by the complainants,
that their original plan, if it had been executed, would have
been no material or substantial obstruction to the navigation
of the river, I have traveled out of the facts set forth therein
only into such things as are known to everybody, such as
courts of justice take notice of without plea or proof. There
are some things which everybody knows and every public
man recognizes.

I do not pretend that a judge of the federal court is bound,
without plea or proof, to pass upon the relative merits of
Wheeler’s and Howe’s sewing-machines, or Emerson’s and
McGuffey’s readers. But every man fit to be a judge knows
what a railroad train is, and that it is superior as an instru-

ment of commerce to a Pennsylvania wagon; that a steam-
NEWPORT & CIN’TI BRIDGE CO. VS. UNITED STATES. 221

boat is superior to a dug-out canoe, and that an unbroken
framework of iron over a navigable river, so high that com-
merce by land and commerce by water may cross each other’s
path without danger or delay, is a better regulatian of com-
merce than a draw-bridge.

The experience and common sense of mankind have settled
the question. At Pittsburg, at Steubenville, at Benwood,
at Parkersburg, at Cincinnati, and at St. Louis, we have
monumental proof that the draw-bridge is an obsolete idea.

Let us look at this case from another stand-point. If
Congress had resolved to build, for the use of the United
States, a post-road across the Ohio river, and, through the
Postmaster-General, had contracted with these corporators
to build it on the original plan of the Newport and Cincin-
nati bridge, and after they had progressed near to the com-
pletion of their contract, Congress had stopped the work,
and ordered it to be built on the present plan, the corpo-
rators might have justly claimed, by way of damages, the
difference between the cost of the first and the cost of the
second plan, as well as the value of the material and work
they had wasted in making the change. But they projected
this bridge for their own advantage, and built it on their own
responsibility.

Congress did not seduce these innocents into the building
of this bridge. It was a project of their own—a vast con-
ception to hold the key of commerce between the Eastern
cities and the Southern States, and ought to have been pro-
jected on a scale commensurate with the magnitude of the
design. But they let parsimony and selfishness get the better
of them, and, to save a quarter of a million or so, decided
on a plan which would permit the little boats to run the
channel in low water, and send the big boats round by the
draw in high water.

The acts of Congress authorizing this bridge were per-
222 NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES.

missive, and not compulsory. Congress did not require a
bridge to be built on any plan. In reply to the petition of
these corporators, which did not disclose which of the two
plans they meant to adopt, Congress said, in substance, if
not in words: “Gentlemen, you may build a bridge with or
without a draw, as you please. If you build it with a draw,
you must leave seventy feet head-room at the least, at low
water, under the principal span, and you may leave as much
more as you please. If you build without a draw, you must
leave ninety feet head-room, at low water, and at least forty
feet at extreme high water, under the principal span, and
you may leave as much more as you please. If you build
on either plan, you must make the principal span four hun-
dred feet at the least, from pier to pier, and you may make
it as much longer as you please. And in any case, you must
set your piers in lines parallel with the current of the river.
With these few restrictions, you are at liberty to build or
not to build, at your peril.

“Tt is your business to build the bridge; it is our busi-
ness to regulate commerce. The instruments of commerce
for which you build, are the property of private corporations.
The river which we protect is a commercial highway, and
that there may be no misunderstanding, no complaints here-
after, take this notice and carry it with you wherever you
go; pin it to the cuffs of your coats, that it may be contin-
ually before your eyes: ‘ Congress reserves herein the right to
withdraw the assent hereby given, in case the free navigation of
the said river shall at any time be substantially and materially
obstructed by any bridge to be erected under the authority of
this resolution, or to direct the necessary modifications and alter-
ations of said bridge.”

These corporators are men of intelligence—men of obser-
vation—men who had lived all their days in sight of the

river—men who knew that in the spring of the year, when
NEWPORT & CIN’TI BRIDGE CO. US. UNITED STATES. 223

the water was high, the river was all alive with steamboats.
They knew that the daily expenses of the larger class of
steamboats, including fuel, wages for officers and crew, board
for passengers and crew, to say nothing of the charter value
of the boat and loss of business, amounted to several hun-
dred dollars; that it was utterly impossible, in the best sca-
son for navigation, to accommodate both railroad trains and
steamboats by a draw-bridge in such a place, without more
or less delay at all times, and occasionally many hours’ de-
lay. But trusting in the omnipotence of railroad influence,
these men took upon themselves the responsibility of decid-
ing that a draw-bridge would not be a substantial or mate-
rial obstruction to the navigation of the Ohio river, at a focal
point where three growing cities receive wood, coal, lumber,
and other bulky supplies for the every-day wants of life; a
place where, from the character of the business transacted,
there was no room to spare for steamboats to lag, and linger,
and bide their time to pass the draw.

Turn we now to the act of March 3, 1871, and let us in-
quire candidly what Congress meant by that portion of it
which brings the parties into this court. First. It is certain
that they did not mean to admit their want of jurisdictain
over the subject-matter. Second. They did not mean to ad-
mit that they had done wrong in ordering the modifications.
Third. They did not mean to admit that the corporation had
any right of action at law, or any claim to relief in equity,
in consequence of these modifications. Fourth. They did
not mean to confer any rights upon the corporation, cither
in law or equity, which they did not possess without this
provision of the bill. They meant simply to open the doors
of this court to these complainants, as against the United
States; to reduce the United States, for the purposes of this
litigation, to the rank of a municipal corporation, and send

the case here to be heard and determined, on the same prin-
15
224 NEWPORT & CIN’TI BRIDGE CO, v8. UNITED STATES.

ciple of law and equity, as if the complainants were plain
Mr. Goszler, and the respondents the corporation of George-
town. (Jones & Brown’s case, 1 Court of Claims, 383.)

Under the special jurisdiction conferred by this act, the
Court is not required to depart from the ordinary course of
equity. If, from all that appears in the bill, the complain-
ants are not entitled to relief, it is an end of the matter, and
we need inquire no further.

But in all that is set forth in the complainants’ bill, I can
see no ground for equitable relief. If there is anything to
complain of, it is that Congress did not restrain them of their
liberty, and leave them without an alternative. Under the
joint resolution of March 3, 1869, they had full power and
authority to build the best and most unexceptionable structure
that ever was erected. In the extent of span, there was no
length beyond which they were not at liberty to go. In the
scale of altitude, there was no height to which they might
not ascend. There was no restraint in length, or breadth, or
depth, or height, to prevent them from making the bridge
what it is now, or even better. But economy got the better
of wisdom. They would not expend enough to build the
bridge right; and, to save their money, they built it wrong.

When they accepted their charter, under the joint resolu-
tion of March 3, 1869, they accepted it with the plain and
unmistakable condition, that if the bridge to be built should
materially and substantially obstruct the navigation of the
river, Congress had the right to withdraw their assent, or
modify the plan. Nay, more, by this reservation of the.
right to withdraw, which they accepted as a part of their
charter, they made Congress their own chosen tribunal, to
try the question, whether their plan, if carried out, wouid
or would not be an obstruction. Congress tried the ques-
tion, as they lawfully might, and decided against them.

Most suits of this description have been brought into
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 225

Court by wealthy corporations, and each one of them has
a chapter of hardships. In these cases it sometimes hap-
pens, as in the case of the Charles River Bridge, that the
corporators have made a dozen fortunes out of a franchisc,
and the hardship is, that they can’t make another dozen.
But sum up, if you will, all the hardships, real and imag-
inary, that great men and great corporations have suffered
at the hands of human progress, and they are but as dust
in the balance compared with the hardships of the smaller
corporations and the toiling millions

Since the day man was doomed to sweat for his bread,
down to the present hour, there has never been a useful in-
vention, discovery, or improvement, in mechanics, agricult-
ure, commerce, or religion, which has not occasioned inci-
dental damage, and often ruin, to the occupation, trade, or
income of thousands.

Let us be practical in our illustrations. I have an old
friend in the country, who tells me that he supported his
family respectably, for thirty years, by the trade of a cabi-
net-maker; but now his trade is broken up, and his tools
and materials made worthless, because Mitchell & Rammels-
berg can make, by machinery and steam-power, as good a
bureau for $12 as he can make for $24. Can anybody tell
me how many thousand tradesmen in the various departments
of industry have shared this old man’s fate? And yet, who
is going back to the jack-plane and the veneer-saw, or who
will deny the millions of poor people respectable furniture
at a moderate figure, if Mitchell & Rammelsberg can af-
ford it?

Again: The Harrison, New Trenton, Rochester, and Brook-
ville turnpike was a good thing in its day. The stockhold-
ers had invested their money on the faith of their charters ;
and the stock was selling for sixty cents on the dollar. But
the public required something better. The Cincinnati and
226 NEWPORT & CIN’TI BRIDGE CO. vs, UNITED STATES.

Whitewater Valley Railroad was chartered, and built on a
parallel line with the turnpike, and now you can buy al] the
stock of this road for five cents on the dollar, and it is still
declining. Can anybody tell me how many hundred turn-
pike corporations have shared the fate of this one?

Again: You and I, and the rest of civilized mankind, are
clad from head to foot at less than half what it would have
cost us but for the inventions of Hargraves, and Arkwright,
and Compton, and Cartwright, and Whitney. And yet, can
anybody tell me how many thousand spinners by trade were
turned out of employment and reduced to want by the in-
vention of the spinning-jenny, the spinning-frame, and the
spinning-mule? Or how many thousand weavers, who knew
no other craft, were turned out of employment and driven to
desperation by the invention of the power-loom ?

The martyrs of progress, in the humbler walks of life, are
like the stars of heaven for multitude. In their artistic skill,
they had their franchise. In their strong and hardy muscle,
they had their capital. In their work-shops and tools, their
distaffs and looms, they had their investments. Now, the
work-shops are desolate, the tools rusted, the distaff and the
loom are gone to decay, and both the brain and muscle of
the men and women applied to purposes for which they never
were educated. Yet, these people are not in court prosecut-
ing inventors, and making war on progress. The wail comes
up from the rich capitalist and the wealthy corporation, who,
while they are making princely fortunes out of the progress
of the age, are unwilling to suffer their share of the losses.

The questions involved in this case affect deeply the com-
merce of the country, both by land and by water, and who
is there that does not. know that in our broad domain com-
merce is the bond of universa! brotherhood, the bond of
charity? Is Chicago wrapped in flames, or Orleans deluged
in water—the flames are not extinguished, nor the waters
NEWPORT & CIN’TI BRIDGE CO. vs. UNITED STATES. 227

assuaged, till commerce and charity, hand in hand, fly to the
relief of the sufferers. And when our matchless system of
navigable rivers shall be cross-barred by our matchless sys-
tem of railroads, working harmoniously and without conflict,
commerce in America will bid defiance to sword, pestilence,
and famine. Our country will then be as if the mighty hand
of God had collected the treasures of the world and sowed
them broadcast over the land, from East to West, from North
to South, wherever there was a mouth to be filled, a back to
be clothed, a foot to be shod, or a heart to be grateful.
Martha E. Piatt, Executrix,
vs. John H. Piatt et al.

KENTUCKY COURT OF APPEALS.

Before Srirrs, C. J., DuvaLi, Woop and PETERS, Judges,

Av Franxrort, Ky., A. D. 1860.
Appeal from Boone Circuit Court.

RELIGIOUS MONOMANIA: UNDUE INFLUENCE.

PRELIMINARY STATEMENT.

Jacob Wykoff Piatt, Esq., died at his residence, Federal
Hall, Boone county, Kentucky, on the 28th day of May,
1857, aged fifty-six, leaving a Will, which made some dis-
crimination among his children in the distribution of his
property. The bulk of his estate was bequeathed and de-
vised to his seven young children by his last wife. He and
his family were Roman Catholics, except his son by his sec-
ond wife. ,

This Will was contested in the Cireuit Court of Boone
county, which county had but few Catholic inhabitants at
the time. The chicf ground of contest was, that Mr. Piatt’s
mind was affected by religious monomania, causing him to
discriminate against his Protestant son, although he, as well,
discriminated against his cldest Catholic daughter. This
daughter had inherited some property from her mother;
whilst the son was a young lawyer, to whom, as far as prac-

(228)
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 229

ticable, he had’ transferred his law business in Cincinnati
upon retiring from the Bar.

The contestants clearly relied for success upon the secta-
rian prejudices of the people of Boone county. This was
evident from their management of the case; and was justi-
fied by the result.

The contest was conducted by Hon. Humphrey Marshall
and Hon. John W. Stevenson, of Kentucky, and Nicholas
Headington, Esq., of Cincinnati, and the defense, by Judge
Johnston and Robert W. Carroll, of Cincinnati, and V. T.
Chambers, Esq., of Kentucky. Two trials were had before
juries. At the first, the jury disagreed. At the second, coun-
sel for the executrix, realizing with moral certainty that
twelve men could not be selected in the ordinary method,
who would sustain the will of a Roman Catholic as against
a Protestant contestant, changed their tactics to suit the cir-
cumstances. In Kentucky, a cause could be taken to the
Court of Appeals, and be there finally disposed of upon its
merits, both as to the law and the facts. In pursuance of
the new plan, the testimony was put in; an argument was
made by one of the counsel for the contestors; reply was
waived by their opponents, and a charge was delivered by
the court. The jury retired, and, as was expected, returned
a verdict against the validity of the Will. Thereupon the
testimony was carefully reduced to writing and certified by
the Judge. An appeal was taken to the Court of Appeals;
in which court of last resort, a hearing was had upon the
case as it appeared upon the complete record. Messrs. Mar-
shall and Stevenson spoke against the Will, and Judge John-
ston and Mr. Chambers in its favor. The court, passing
upon the law and the facts, unanimously sustained the valid-
ity of the Will, and ordered its admission to probate.
230 -M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

ARGUMENT OF JUDGE JOHNSTON.

May it please your Honors :

“Tn THE NAME OF THE FATHER, THE SON, AND THE
Hory Guost, AMEN! I, Jacob W. Piatt, formerly of Cin-
cinnati, Ohio, but now of Federal Hall, Boone County, Ken-
tueky, being of sound and disposing mind and memory, and
desirous of settling my worldly affairs, do make and publish
my last will and testament, as follows, to-wit: 3

“First. It is my will that all my just debts and funeral
charges be fully paid.

“Second. It is my will, that my wife, Martha E. Piatt,
shall have and enjoy in all my estate and property, whether
in Ohio, Kentucky, Illinois, or elsewhere, that portion thereof
to which she is entitled by the laws of the several States
wherein said property is situated.

“Third. I give and bequeath to my daughter, Caroline C.
Jenkins, of Baltimore, the only surviving child of my mar-
riage with Caroline Canfield, for and during her natural
life, a lot of ground, with the improvements thereon, thirty
feet square, on the south side of New street, about sixty
feet east of Sycamore street, in the city of Cincinnati, Ohio,
whereon is erected a three-story brick dwelling house. After
the death of my’said daughter Caroline, her children, or
other issue, if any such shall survive her, to take the same
in fee simple: But in case she shall die without children or
issue surviving her, then said lot, with the appurtenances, is
to go into the bulk of my estate, and be disposed of as here-
inafter provided; said lot and appurtenances being all the
portion I intend to give my said daughter.

“Fourth. I give and bequeath to my son, John H. Piatt,
the only surviving child of my marriage with Harrict Lan-
man, my entire law library, now in his possession, in the
city of Cincinnati, Ohio; this being all I intend to give to
my said son.

“Fifth. I give and devise to my wife, Martha E. Piatt,
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 231

and to her successor or successors, as hereinafter provided,
all the rest and residue of my estate, real, personal and
mixed, in Ohio, Kentucky, Illinois, or elsewhere; with all
the rents, profits and issues thereof; in trust, nevertheless,
for the maintenance, education and endowment of our seven
children, Mary Arabella Piatt, Benjamin M. Piatt, Charles
D. Piatt, Eugenia W. Piatt, Louisa M. Piatt, Jacob W.
Piatt and Edward C. Piatt, or the survivors of them, in
equal proportions, share and share alike; with power to sell
and convey such parts of said real estate as may be neces-
sary to defray the expense of educating our said children,
but for no other purpose ; and that she and her successors, as
hereinafter provided, shall have full power and authority to
apportion and set off, by deed or otherwise, the said estate to
our said children, as they shall come of lawful age, according
to her or their sense of justice and equality ; the homestead
farm, at Federal Hall, to be set off to one of our sons, who
shall choose the occupation of a farmer; and until the time
for making such disposition of said farm shall come, it is
my will that it should be used and occupied as a homestead
and residence for my family, where my wife may reside, and
my children may be brought up free from the contaminating
influences of towns and cities.

“Sixth. In order to the better execution of this my will,
I hereby constitute and appoint my said wife the guardian
of our said seven children, with full power to do in their
behalf any and all acts which may lawfully be done by
guardians appointed by courts having jurisdiction of such
matters.

“Seventh. Should my said wife marry or die before the
objects of this trust are accomplished, it is my will that her
relations as trustee of my estate, guardian of my children
and executor of this my will, shall cease, and the Rev.
George A. Carrel, Bishop of Covington, is hereby chosen
and appointed to take upon himself the trust, guardianship,
and execution of my will, as aforesaid: and, in the event of
the death, neglect or refusal of the said Carrel to accept
said trust and guardianship, it is my will that the courts
having jurisdiction of the subject in the several States
232  M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

wherein my property is situated, shal] make such appoint-
ments of trustees, guardians and administrators, as may be
proper for the purpose of carrying into effect the purposes
of this my will.

“Kighth. I hereby constitute and appoint my faithful and
beloved wife, Martha E. Piatt, cxecutrix of this my last will
and testament; and I hereby revoke and annul all other and
former wills by me made, and publish this as my only true
last will and testament.

“Tn witness whereof, I hereto fix my seal and subscribe my
name in the presence of Charles O’Brien, Benjamin M.
Piatt, jun., and William Johnston, this nineteenth day of
May, in the year of our Lord, 1857.

“JACOB W. PIATT. [Seat]

“Signed, sealed and published, as the last
will and testament of Jacob W. Piatt, in
the presence of us, who, at his request and
in his presence, and in the presence of each
other, have hereto subscribed our names as

witnesses.
“ WILLIAM JOHNSTON,

“ BEN. M. Pratt, JR.,
“ CHARLES O’BRIEN.”

Thus runs the last will and testament of Jacob W. Piatt;
and the question now before the court is, Whether this is his
valid last will and testament? And this involves another
question, Whether the testator was of sound mind when he
executed this will?

I.

In the contest of a will, the mere opinions of witnesses,
that the testator was insane, or deficient in capacity to make
a will, are conclusive of nothing. The witnesses must state
the facts and circumstances—the words spoken, and the acts
done, by the testator—on which their opinions are founded ;
and it is the province of the jury, or of the court, in view of
all the proofs, to form their own opinion of the testator’s

capacity.
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET EL. = 233

(Whitenack vs. Stryker, 1 Green’s Chancery R., 8 ; Harri-
son vs. Rowan, 3 Wash. C. C. R., 580; Harrison vs, Rowan,
3 Wash. C. C. R., 587; Sloan vs. Maxwell, 2 Green’s Ch’y
R., 563 ; Stevens vs. Vancleve, 4 Wash. C. C. R., 262; Potts
et al. vs, House, 6 Georgia R., 324; Duffield vs, Robeson, 2
Harrington, 375-385 ; Clark vs. Ohio, 12 Ohio R., 483; Pool
vs. Richardson, 3 Mass., 330; Needham vs. Ide, 5 Pickering,
510; Gibson vs. Gibson, 9 Yerger, 329; Martin vs. Teague,
2 Speers, 266; Reed’s Will, 2 B. Monroe, 79; McDaniel’s
Will, 2 J. J. Marshall, 337; 1 Jarman on Wills, pages 78,
79; 3 Starkie on Evidence, 1707, Note 2.)

This rule of law accords so well with common scnse, and
is so well sustained by authority, that it might seem useless
to say one word by way of illustration; but, as it will be re-
verted to frequently in the course of the argument, it may be
proper to make a few observations upon it. It is a rule
applicable to every contest in a court of justice; but in cases
affecting the soundness or unsoundness of the human mind,
it applies with peculiar power. Witnesses must give facts—
courts must give opinions.

The weakest person, who possesses a sense of moral obli-
gation, can make a statement of facts; while the question
whether a person is sane or insane, is often too recondite for
the most skillful physician to determine. At last, one’s
capacity to transact business must be decided experiment-
ally. The man who manages his business with caution, sa-
gacity and success, must be taken to have capacity for busi-
ness, whatever may be his eccentricitics, and whatever the
opinions of witnesses may be as to whether he is crazy or
not. The instances must be stated wherein he was led by
insane delusion to acts of folly; wherein he mismanaged his
business because his understanding had failed; whercin he
was defrauded of his property for want of a just appreciation

of its value; wherein he disinherited a child because, through
234 M. E. PIATT, EXEC’X, ts, JOHN H, PIATT EL AL.

dotage, he had forgotten there was such a child; wherein his
weak mind was overpowered by a stronger mind so as to de-
stroy his free agency ; wherein he gave his property to stran-
gers, believing, through insane delusion, that his own chil-
dren were bastards; wherein he behaved himself like a
maniac or an imbecile, and violated the known laws of his
character. If we do not adhere to this rule we are at sea,
enveloped in darkness, without a star to guide us.

In a city like Cincinnati, where human life is so strangely
diversified—where four different languages are currently
spoken—where four medical colleges, and five schools of
physic, teach adverse theories—where twenty denominations
of Christians, and two denominations of Jews, teach conflict-
ing doctrines—where half a dozen sects of infidels dispute
the best mode of getting along without any religion at all—
where twenty newspapers advocate an infinity of irreconcila-
ble notions, and where free discussion run mad holds forth on
all days of theeweek, on free thought, free labor, free terri-
tory, free trade, free love, and every other free thing that
imagination, in her giddiest mood, ever conceived of—it can-
not be, in the nature of things, but that one portion of soci-
ety should deem another portion crazy ; and it would require
no great effort, if we should receive the mere opinions of wit-
nesses, to prove that the best of us were insane.

There ought to be an exception made here. There is, in
every community, a nice little man; not necessarily honest
or sincere, but intensely decent, and always on his good he-
havior; a man who, from very dullness, seems to be pro-
found—always grave, and never tired being wise. This man
is never suspected of insanity. But the man of genius, who
looks through the follies of mankind, and speaks the truth
too truly—who, when he sces the leading humbug of the
day, inflated with the breath of false applausc, swelling into
a mountain, thrusts into it the spear of Ithuriel—the man of
_M. E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL, 235

genial spirit, who thoughtlessly rollics and jests and laughs
with his friends—-the philosopher who, like Solomon, finds
by experience that “in much wisdom there is much grief,”
and like Solomon, for the while, “ gives himself to madness
and folly ”—but, more than all, the man of keen and wither-
ing sarcasm, like the testator, who, regardless of the opinions
of mankind, says what he thinks in strong, and sometimes
extravagant language: all these are so often above or bclow
or beyond the comprehension of the masses, that they may
easily be proved insane, if you will take the mere opinions of
witnesses, without requiring them to state the acts which were
done, and the words which were spoken, and the surrounding
circumstances, from which they formed their opinions. It
often turns out, as will be shown in this case, that when the
witness comes to place his opinions and the facts from which
he formed them side by side, instead of proving the testator
insane they prove the witness ignorant. Again, it often hap-
pens, as will also be apparent in this case, that witnesses form
opinions from what others have told them; and, from igno-
rance of the law of evidence, swear to those opinions with as
clear a conscience as if they were facts within their own per-
sonal knowledge.

There is no safe rule but that laid down in the law, to re-
quire the facts to be stated, and allow the court or jury to
form such opinion as the facts may warrant. The wisdom of
history stands not on the bare opinion of the historian, but
on the facts which he relates. All historians have felt this.
When the Babylonish king was punished with the insane be-
lief that he was a beast, the historian does not content him-
self with informing us, as a matter of opinion, that Nebuchad-
nezzar was a monomaniac, and believed himself an ox, but he
gives us the facts as to the effects of his malady. He informs
us that he was driven out from the habitations of men; that
he ate grass like an ox; that his body was wet with the dews
236 M. E. PIATT, EXE’CX, Us, JOHN H. PIATT ET AL,

of heaven, till his hair became like eagle’s fvathers and his
nails like bird’s claws.

So, too, in the account given us in the Gospels of a demo-
niac. The Evangelist does not merely tell us he was a mad-
man, possessed of devils. He tells us that he was “ exceed-
ingly fierce, so that no man might pass that way; that he had
often been bound with fetters of iron, and brake them asun-
der; that he wear no clothes; but day and night was among
the tombs, erying and cutting himself with stones.” Let us
follow this safe old rule, and stand by the facts.

II.

Where persons are called to aid in the preparation, and
witness the execution of a will, such persons have a greater
responsibility upon them, are more likely to direct their atten-
tion to the true condition of the testator’s mind, than others ;
and more reliance ought to be placed on their testimony than
that of ordinary observers.

(Whitenack vs. Stryker, 1 Green’s Ch’y R., 8; Sloan vs.
Maxwell, 2 Green’s Ch’y R., 563; Harrison vs. Rowan, 3
Wash. C. C. R., 580; Stevens vs. Vancleve, 4 Wash. C. C.
R., 262; Duffield vs. Robeson, 2 Harrington, 375; Turnbull
vs. Gibbons, 2 Zabrisca, 1383; Pool et al. vs. Richardson, 3
Mass., 330; Ex parte Holyland, 11 Vesey, Jun., 11; Gaskell
vs, Harman, 11 Vesey, Jun., 494; 3 Starkie on Evidence,
1707, Note 2; 1 Jarman on Wills, 72, 73.)

This principle of the law is also fully sustained by author-
ity, and accords with the common conscience and understand-
ing of mankind. The making of a will is always a subject
of serious consideration: but when one makes his will in his
last illness, it is doubly serious. The mind, whether we will
or not, enters into a train of thought which does not belong
to the every-day concerns of life. The witness involuntarily

says to himself: “IT am engaged in a responsible, a solemn
M. E, PIATT, EXEC’X, vs. JOHN H. PLATT ET AL. 287

duty. This man is about to make a final disposition of his
property, according to his sense of what is best for his fam-
ily. If he be of sound mind, he, of all others, knows what
is best, and has a right to do what he pleases with his own.
I am to witness this solemn act to-day; and, in a few days
hence, I shall be called on in a Court of Probate, to put.
my testimony on record, that this man is of sound mind;
that he knows what he is doing, and is doing it freely. The
validity or invalidity of this will may turn on my testimony.
Justice to my friend, who has called me to his aid; justice
to his wife and children, whose fortunes may be affected by
this act; justice to the court, wherein this will is to be
proved; and, above all, justice to myself, as an honest man,
require that I should notice carefully whether this man is
in a condition of mind to make a rational disposition of his
property.” So reasoning, no honest man could be a party
to such a transaction unless he believed the testator to be of
sound mind.

In this case, substantially, there were four witnesses, though
but three of them subscribed their names to the will. Charles
O’Brien was there, by accident, on other business. He was
called in without knowing for what purpose; so that it is not
pretended that he scanned the testator’s mind with reference
to the future consequences of making a will, or that he judged
of his capacity by any other test than that he conversed on
matters of business and matters of religion as he formerly
did, and that the witness observed no change in him. Not
so, as to the other three. They all knew perfectly well what
was to be done; and, if they are to be believed, not one of
them would have performed the part he did, if he had doubted
the testator’s capacity. The venerable father had gone, the
day before, to Cincinnati for an attorney to draft the will.
This, and this alone, was his business. As an honest man,
he would not have undertaken this task for his son if he had
238 M.&E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

doubted his capacity. What were his opportunities of know-
ing the condition of his mind? He had been with him sev-
eral weeks during his suffering from the wound in his knee.
He had visited him once in the meanwhile; and now, he had
been with him constantly for a week, settling some impor-
tant accounts: so that he had the fullest opportunity of test-
ing his capacity. But his own words are most expressive.
“ At the time he made his will, I had been there a week, I
think. During that period we were engaged making a set-
tlement. The settlement was closed, I think, on the 21st
of May. * * * TI considered him in a situation to do
business. I would not, of course, have settled with him, if
T had thought he did not know what he was at. I consid-
ered him as capable of doing business as he had ever been.
* * * We settled a very important account, and he ap-
peared to know all about it. * * * He was in his righe
mind ; or, as I stated before, if I had thought he was not in
his right mind, it would have made an impression on my
mind, that I would have interfered. I thought he.was in a
sound disposing mind.” Here is testimony within the rule
of law. The witness states the facts from which he formed
his opinion and the opinion side by side.

As to Benjamin M. Piatt, junior; he lived, at this time,
within a mile of the testator, and was with him almost daily ;
not as an idle spectator, but making himself useful. He was
with him from the time he was wounded to the time of his
death more than any other man ; conversed with him by day
and watched with him at night more than any other man.
The testator talked with him freely and frequently about
business, and about the practice of the law, for which he was
preparing himself; and, with the freedom of a near kinsman,
gave him his advice and examined him on his studies. He
watched with the testator the night before the will was made,
and conversed with him about making the will in the morn-
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 239

ing. The testator informed him he was going to make his
will that day—that Mr. Johnston had come there to draft
it, and asked him to stay and be a witness. When he in-
formed the testator that he must go home, he requested him
to return in the evening in time to witness the will. He did
return before the draft was completed, saw the testator read
over the rough draft and make the alterations he desired:
and when it was engrossed he saw him read it again and

heard him declare, as he returned it to the draftsman, that it
was all right; saw him call the witnesses around him, and,
in their presence, execute the will. Here, then, are some of
the facts from which this witness formed his opinion of the
condition of the testator’s mind, and the result is thus stated
by him with truthful simplicity: “It is my belief that, at the
time of the execution of this will, Jacob W. Piatt was of
sound mind and disposing memory. I thought so at that
time, or I could not have consented to sign my name, or to
have appeared at all as an attesting witness to the will.”
The draftsman of the will is the other subscribing witness ;
but, for certain reasons, his testimony must pass without
commentary, further than this: that, having, according to the
testimony of the other witnesses, received the instructions
from the testator; drawn up a rough draft, and submitted it
for inspection and correction ; engrossed the instrument, after
it had been read and revised by the testator; submitted the
engrossed draft for a second reading and inspection by the
testator, and, after he had pronounced it all right and exe-
cuted it, then signed his name as a witness: after all this, if
he erred in his judgment of the condition of the testator’s
mind, it must have been the result of incorrigible dullness.
But did these witnesses, who were present and took a part
in making this will, know enough of the previous life, habits,
peculiarities and general character of the testator, to make
them competent judges of the condition of his mind at this
16
240 M.E. PIATT, EXEC’X, vs. JOIN H. PIATT ET AL.

time? To judge whether one’s mind has undergone changes,
the witness ought to be acquainted with its original types in
its normal condition. He is a bad witness to prove whether
a landmark has been removed, who does not know where it
originally stood. The minds of men are not ali wrought on
the same model. Nor is any one mind exactly balanced on
itself, so as to turn uniformly round the same center. Every
man is, to some extent, eccentric ; every mind has something
peculiar to itself, by which the student of phrenology dis-
tinguishes it from other minds. These normal peculiarities
must be known, in order to give a rational judgment whether
the mind is shaken from its bearings, or drawn by disturbing
causes from its natural motion. None but tne intimate ac-
quaintances of the man can possess the requisite knowledge
for such a task.

It is worthy of observation at this point, that among those
who were present, by the testator’s own choice, to aid in pre-
paring and executing this Will, there is not one man with
whom he had not been acquainted for eighteen years; nor
one man who did not know him thoroughly.

If any three men ought to have known the testator better
than others, they were these three. His father, Benjamin M.
Piatt, senior, who had watched his movements from the hour
when he first opened his eyes on the light till the hour when
he closed them in death; his kinsman, Benjamin M. Piatt,
junior, a well-educated, observing aud intelligent young man,
who had been his student, his familiar friend and his nurse ;
and his legal adviser, who had often times struggled with
him in the conflicts of the legal profession, and often been
closeted with him in consultation on professional business.

The subscribing witnesses, say the books, are placed by
law around the testator, to guard him against imposition and
to judge of his capacity; and their testimony is not to be

lightly set aside.
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 241

One reflection more: The testimony of the subscribing
witnesses, being directed to the exact point of time at which
the will was executed, gives it an additional importance ; and
this leads us directly to the consideration of the third point
in the case,

II.

Wherever the capacity of a testator to make a will is
called in question, the condition of his mind at the time the
will was executed is the material and turning point of the
inquiry. If he was of sound mind at that particular time,
it is conclusive of the validity of the will, so far as it is
affected by the question of capacity, no matter what his con-
dition of mind may have been before or after.

(Whitenack vs. Stryker, 1 Green’s Ch’y R. 8; Harrison vs.
Rowan, 3 Wash. C. C. R., 580; Stevens vs. Vancleve, 4
Wash. C. C. R., 262; Duffield vs. Robeson, 2 Harrington,
375; Singleton’s Will, 8 Dana, 317; Jarman on Wills, page
65; Cartwright vs. Cartwright, 1 Phillips, 100 ; Williams on
Executors, 2d Am. Ed., 17; Swinburn, pt. 2, sec. 3, pl. 3;
Hall vs. Warren, 9 Vesey, 610; Brook vs. Lockett, 4 How-
ard, Miss., 459; Clark vs. Fisher, 1 Paige, 171; Jackson vs.
Vandeusen, 5 Johnson, 144; Boyd vs. Eby, 8 Watts, 66; Kin-
lock vs. Palmer, 1 Const., 8. C. R., 225; Griffen vs. Griffen,
R. M. Charlt., 217; Halley vs. Webster, 21 Maine, 462;
Goble vs. Grant, 2 Green’s Chancery R., 629.)

As a proposition of law, this requires no argument. If the
proof showed that, for years before the will was made, the
testator had been utterly insane and incapable of any degree
of reflection; and that, the next day after it was made, he
was in the same melancholy condition, yet, if it was satis-
factorily proved that he enjoyed a lucid interval for a sufficient
length of time to call to mind the objects of his bounty, to
remember the property he had to bestow, and to understand
his own plan of distribution, it would be sufficient. But the
242 M. BE. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

rule need not be carried so far in this case. The proof shows
that Mr. Piatt’s ordinary condition was sanity ; and the ques-
tion is, whether, from any cause, he was out of his right
mind when the will was made. The exact concurrence, as
we have already seen, of all the subscribing witnesses, and of
all other persons who saw him on that day, that his mind
was as sound as it ever had been, imposes the burthen upon
the other party of showing a condition of mind, before and
after the execution of the will, inconsistent with the idea that
his mind was sound at that point of time.

That part of the testimony adverse to the will, which comes
nearest to this important point of time, is that which begins
on the 21st of May, two days after the will was executed,
and comes down to the time of the testator’s death, on the
28th. Here is an interval of seven days for observation ; and
let us see how many facts and circumstances the adverse wit-
nesses can recount, within that time, inconsistent with the
sanity of the testator on the 19th of May, at seven o’clock in
the evening, when the will was executed.

There are five adverse witnesses, who speak as to this in-
terval of time: Donn Piatt, Louise Piatt, Dr. Blaisdell, Dr.
Murphy and Mr. Runkle. It may be well to examine the
testimony of each of these witnesses separately, and compare
them together, to see how far they sustain each other; how
far they are sustained by the testimony of other witnesses ;
how far their testimony in court is sustained by their own
conduct out of court; and whether they acted toward the
testator as honest people, in their own right minds, act to-
ward a man who, from insanity or imbecility, is incapable of
transacting business.

But, first of all, we ought to know something of the nat-
ural characteristics of the testator’s mind in its normal con-
dition; and, if he had any strongly marked traits of charac-
ter, we ought to know what they are.
M. E. PIATT, EXEC’X, 08s. JOHN H. PIATT ET AL. 243

First.—He was very irritable, and easily provoked to an-
ger; and, when angry, could not control his temper.

Thomas K, Smith says: “ He was irascible in temper—a
defect which became much aggravated by his physical ail-
ments.” And, when he threatened to burn his books, “ he
was excited and furious in his conversation.”

Dr. Mudd says: “ Mr. Piatt’s general conduct toward his
family was that of a very kind and indulgent husband and
father ; but, being of a very excitable temper, I have known
him occasionally to become very much exasperated at the
young ones for faults, such as running out into the streets,
etc., and now and then to punish them quite severely.”

Mr. Van Matre says: “ He was a man usually very polite
in his intercourse with men; but I have known him sud-
denly and unexpectedly to fly into a furious passion, and
seem extremely irritable for a few seconds.”

Mr. King says: ‘‘ He was, at times, unmeasured and vio-
lent in his temper and feeling ;” and other witnesses testify
to the same effect.

SEeconp.—He was, when excited, exceedingly rash and eax-
travagant in the use of language; often going beyond what he
would have either thought or said on sober reflection.

Judge Storer says: “ He was impulsive in his feelings,
sometimes exceedingly rash in his expressions, which I al-
ways supposed was the result of temporary excitement, rather
than studied or intentional.”

Mr. Rairden says: “I have heard him say he would obey
the direction of his priest, in anything they should direct
him, even if his own opinion should be against it. This
was in a moment of controversy, when he had got a little
out of humor, and I did not think he meant what he said.”

Mr. Parry says: “In his public speeches he was always a
little excited, and went ahead of what the resolutions em-
bodied. He was not considered safe as a public speaker.
244 M. E, PIATT, EXEOC’X, vs. JOHN H. PIATT ET AL,

He was too extreme. This was always the character of the
man, while I knew him in politics, about 1833 and 1834.”

Of the same character is the declaration sworn to by Mr.
Kessler: “He became excited, and said that the Protestant
version of the Bible contained forty thousand lies, and that
we intend to, drive it out of the public schools.”

Such, too, is the character of several passages in Mr. Cald-
well’s report of one of his stump speeches on the school
question.

Tuirp.—He was very sarcastic and ironical in his modes
of expression, and was somewhat unsparing in the use of this
talent.

Judge Van Hamm says: “ He was, unfortunately for his
own comfort and peace, remarkably sarcastic.”

Louise Piatt says: “Mr. Piatt had great powers of sar-
casm, and was certainly unsparing in the use of them:” and
other witnesses concur in this view of his character.

Fourtu.— He had extraordinary powers of the will, and
was ardent and impetuous in the pursuit of whatever he en-
gaged in.

Judge Parker says: ‘‘ He was very ardent, and apt to see
but one side of a case.”

Judge Van Hamm says: “ His mind was remarkably act-
ive, and he was very persevering in always endeavoring to
carry his point. He never gave up a point till he was
compelled to by being overruled by the court; and hardly
then.”

Rev. Edward Purcell says: ‘His prominent characteris-
tics were, great energy in whatever he undertook ; great de-
termination to carry out what he thought was correct.”

Mr. Van Matre says: “JI considered him a man of im-
petuous disposition, and a strong will; and not easily turned
aside from his purpose.”

Mr. Chidsey says: “ He was a man of very great perse-
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 2465

verance and activity. Ifhe set himself about accomplishing
an object, he would do it if it killed him:” and this is the
general tenor of the testimony. To these should be added:

Firtu.— Mr. Piatt was, in the latter part of his life, decid-
edly a religious man, honestly believing the doctrines and ap-
proving the usages of the Roman Catholic Church, of which
he was a member.

These qualities should be known in advance, so that, when
they are referred to hereafter, they may not be total stran-
gers to us, nor we to them.

So that, when we are informed that he was very angry
with his son for refusing to carry a package, or for causing
his vote to be challenged at an election, we may remember
that he was naturally irritable and easily provoked to anger,
and, when angry, could not govern his temper.

So that, when we are informed that, in a controversy with
Mr. Kessler about the use of King James’s Bible in the pub-
lic schools, “he became excited, and said that it contained
“ forty thousand lies,” we may remember that naturally, when
excited, he was “exceedingly rash” and extravagant in the
use of language, often going beyond what he would have
either thought or said on sober reflection.

So that, when we are informed that he ridiculed his son
for going to hear swaddlers preach, and snubbed his pretty
sister-in-law for meddling with his Will, we may remember
that, naturally, he was very sarcastic and ironical in his
modes of expression, and was somewhat “ unsparing in the
use of this talent.”

So that, when Dr. Murphy is astonished that he should
be out on his crutches superintending his buildings, when,
in his opinion, he ought to have been in bed, we may re-
member that, naturally, he had extraordinary powers of the
will, and was ardent and impetuous in the pursuit of what-
ever he engaged in; that, as Mr. Chidsey says, “if he set
246 9 =-M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

himself about accomplishing an object, he would do it if it
killed him.”

So that, when he is condemned as a religious maniac, we
may remember that he was a religious man, attached to the
Roman Catholic Church, and inquire whether, in hig faith
and practice, he went beyond the standards of his church,
or the teachings of the Holy Scriptures.

With this clue in our hands we may safely tread all the
windings of the mighty labyrinth in which the ingenuity of
counsel and the ignorance or willfulness of witnesses have
involved this case, and come again into open day, without
confounding eccentricity with insanity or religion with fa-
naticism.

Another preliminary remark as to some of the lights by
which we are to travel. Jacob W. Piatt was not without
enemies among his kindred. Mr. Runkle testifies to some
ill feeling between him and his uncle Abram and the heirs
of his aunt Nancy Dunn. The nature of this feud is ex-
plained in other parts of the testimony. Abram and the
Dunn heirs had brought a suit in chancery against Nicholas
Longworth and Benjamin M. Piatt, as administrators of
John H. Piatt, and against Jacob W. Piatt as a purchaser at
administrator’s sale. This suit involved an immense amount
of property and a great deal of feeling. This was the case
alluded to by Dr. Harding, in which Donn Piatt and others
urged the taking of his brother’s deposition, and by Mr.
Johnston, in which the testator sent a message to Long-
worth and his counsel advising them to take his deposition.
The counsel thought there was a good defense, and so ad-
vised; but the good old man, Benjamin M. Piatt, wishing,
as he expressed it, to die in peace with his brother, and his
sister’s children, resolved to compromise the case for himself
and his son Jacob. The terms of this compromise were set-
tled before Jacob’s death, though not carried out till after-
M. E. PIATT, EXEC’X, ts. JOHN H. PIATT ET AL, = 247

ward, Jacob refused to give any advice as to the compro-
mise, on the ground that he had received from his father
all he expected ; so that the compromise, if made, would be
at the cost, indirectly, of his brothers and sisters and their
heirs, who would be expecting the residue of his father’s
estate. Donn Piatt opposed the compromise to the last, but
the father persisted in consummating it, by conveying to his
brother Abram and the Dunn heirs property in Toledo,
worth from $20,000 to $30,000.

Estimating this property at $25,000, it was an indirect
tax of $5,000 each on the remaining branches of Benjamin
M. Piatt’s family: on the Runkle family $5,000; on Mrs.
Worthington $5,000; on Mrs. Thomas K. Smith $5,000; on
Abram S. Piatt $5,000; on Donn Piatt $5,000. The old
man had a right to do what he pleased with his own, and
exercised this right without regard to the future interests of
his children. In his view, this conveyance was “a peace
offering.” In the view of his children, it was “a whole

burnt offering ;”

a sacrifice, at their expense, to purchase
peace to Jacob and security to his estate.

Here originated the idea that Jacob had more than his
proper share of influence with his father. Here originated
the idea that the father was in his dotage and unfit to be a
witness. Here originated a relentless warfare on the estate
and will of Jacob W. Piatt. Here they gather around Donn
Piatt, as their leader, to prove, if it might be done, that a
man, remarkable for his common sense, had not mind suffi-
cient to make a will. Here they stand around the testator,
like magnifying mirrors, to exaggerate, by reflection, every
act done and every word said into Brobdignagean propor-
tions, and to bewilder and confound everybody by the bold-
ness of their assertions.

Donn Piatt was not present when the will was made, and
did not see the testator till he came to his house on Broad-
¢

248 M. E. VIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

way, two days afterward. He says: “At that time he was
totally prostrated, mentally and physically, from the disease of
which he diced.” This language is not only highly figura-
tive, but highly extravagant ; so much so, as to impair its
own force and lessen one’s confidence in other parts of his
testimony. To be prostrated, according to the English stand-
ards, means to be “laid at length,” “laid flat,” “thrown
down,” “destroyed.” Surely this was not literally true,
either of Mr. Piatt’s body or mind; nor was it, as we shall
see, figuratively true. The witness has not left us to sup-
pose that he meant merely that the testator was weak and
sick in body and feeble in mind. The prostration of which
he speaks was not partial or limited; not that degree of
disablement which one man might notice, and which might
escape the observation of another. It was total: “he was
totally prostrated.” This sweeping declaration brings the
witness directly in conflict with TEN other witnesses, whose
opportunity of knowing Mr. Piatt’s condition was equally
good, and who are, in all respects, as worthy of belief as
he, and who state specific facts inconsistent with the extrav-
agant idea of total prostration, mental and physical.

James McCallion, the carpenter, accompanied Mr. Piatt °
on his way, as far as Lawrenceburg, to select a lot of lum-
ber which he purchased at that place. Warren Tate sold
him the lumber, and observed the care and prudence with
which he bargained for it. Rev. Edward Purcell saw and
conversed with him at his own house. Dan. Riley saw him
at his stable, and heard him converse on business. Arch-
bishop Purcell saw him at his brother Donn’s house on
Broadway, and conversed with him about his will. Judge
Tilden saw him in a periodical store, and conversed with
him about his health and other topics. Rev. Charles Dris-
col saw him at Donn’s, and “was closeted with him for two

?

hours.” His own father accompanied him from Federal Hall
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 249

to Cincinnati, and had a great deal of conversation with him.
Benjamin M. Piatt, Jr., accompanied’ him from Federal Hall
to Cincinnati; went with him from place to place in the city,
and accompanied him home again to Federal Hall.

If he had been totally prostrated, both mentally and phys-
ically, some one of these TEN witnesses would have discoy-
ered it. But not one of them discovered anything of the
sort; all of them thought his mind as clear as it had ever
been. In addition to their opinions, founded on the facts,
we have their acts in relation to him, which speak louder
than their words. Mr. Tate did not hesitate to deal with
him and sell him a lot of lumber, for which he bargained
sagaciously. His mother and Archbishop Purcell endeav-
ored to persuade him to make a new and different will from
that which he had already made; which, as honest people,
they could not have done, if they had not believed him
competent to make a will.

Moreover, when all the testimony of all that be said and
all that he did, from the time he left Federal Hall till he
returned thither again, is carefully sifted, it will not be
found that he did, or attempted to do one foolish act, or
that he uttered one foolish word all the while; unless, in-
deed, it was an act of folly to try Dr. Blaisdell’s baths ;
or, that he uttered words of folly when he made his last
appeal to his father on the subject of religion. Donn Piatt,
then, is not to be relied on implicitly in his sweeping asser-
tion that the testator at this time was totally prostrated, men-
tally and physically.

But let us bring on the doctors, and see whether they
sustain this broad assertion of Donn Piatt. Dr. Blaisdell
expresses an opinion that his mind was not in condition to
transact important business. But what facts docs he state?
He does not pretend to have seen him do, or attempt to do
one foolish act; except that he thought it strange that he
250 M. E. PLATT, EXEC’X, vs. JOHN H, PIATT ET AL.

came to his house, from the depot, in an express wagon in-
stead of a coach. It niust be admitted that it would have
been more respectful to the Doctor, and more creditable to
his establishment, if he had come in a coach. But when we
consider Mr. Piatt’s character for frugality and primitive
simplicity, there is nothing in this act indicating insanity ;
and, if there was, it proves too much; it proves the whole
bevy of them to have been equally insane—his father, mother,
cousin Ben and all. The Doctor says Mr. Piatt was absent-
minded and incoherent in conversation; but he cannot rec-
ollect a sentence nor a word from which he drew this infer-
ence. He judged mainly by his exceeding feebleness and
helplessness of body; and it is well calculated to weaken
one’s confidence in his conclusions, when it is seen how
badly he remembers the facts, He says, in speaking of his
visits to the baths: “The gentleman came to my house with
him every time Mr. Piatt came. He could not come alone.
He could not walk a step alone. * * * TI did not con-
sider it safe for him to be about, and should not have been
surprised if he had fallen down dead at any moment.”

Now we know, from the proof, that, sick and weak as Mr.
Piatt was at this time, he was able, before he left home, to
walk about on his crutches and oversee his workmen; and
we have the statement of John H. Piatt, the principal con-
testor, in a letter to his sister Belle, that the trip to the city
improved his condition. We have the proof that, when in
the city, he walked with his crutches from his carriage to
Archbishop Pureell’s house and back again; that he went
upstairs to the baths and came down again, from time to
time, without the aid of any one; that he was seen, going on
his crutches, by Judge Tilden and Dan. Riley; that, when
he landed at his farm, on his return home, he walked up the
steep river bank without aid—and so on: so that the Doc-
tor’s memory fails him when he says, “he could not walk a
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 251

step alone.” And when the memory is so treacherous in
some things, it may play the traitor in others also.

The Doctor’s diagnosis of Mr. Piatt’s mind proves his
judgment to be no better than his memory. He says: “His
mind was in the condition to be influenced by any of his
friends. I mean to say, a friend might persuade him to do
a thing at one time, and another friend might persuade him
to change his mind a short time after. Persons suffering
with that disease, when it has become far advanced and the
system much reduced, have no resolution of character, but
are entirely at the mercy of those who have influence over
them.” This proves how little reliance can be placed in the
mere opinions of learned men; and how wise the rule of law
is which requires even a doctor to state the facts. Let us
see if the facts which others state will sustain the Doctor’s
opinion in this particular case. Mr. Piatt had made a will,
a few days before, at his own house in Kentucky. From
thence he came to his brother’s house in Cincinnati, leaving
his wife and all her kindred and friends behind him. Here
he was surrounded by his cunning sister Louise, and all his
other friends who had foreordained that the will should not
stand, with Archbishop Purcell as their ally. His mother,
his father, his bishop, all assail this man, whom the Doctor
supposes to be “at the mercy of his friends,” and all of them
are unable to move him. “That which is written, is writ-
ten,” said the Stoics, and so said the testator. He had with-
in him the same unconquerable will which had been his law
through life, and which, like an old Damascus blade in a
ragged scabbard, though covered with the dents of a hun-
dred battles, still refused to yield. What Mr. Piatt did, and
what he refused to do, in the last stages of cancer of the in-
testines, dissipates the theory of both Dr. Blaisdell and Dr.
Murphy, that this disease produces weakness, irresolution or
vacillation of the will. And when this case is added to that
252 M. BE. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

of Napoleon the First, who dicd from cancer of the stomach,
and that of Col. Benton, who died from cancer of the bow-
els, it ought to make the doctors reflect, unless, like the im-
mortal Sangrado, they had already “ written a book.”

This leads to some remarks on the testimony of Dr. Mur-
phy, touching the same interval of time. Dr. Murphy, like
Dr, Blaisdell, was not acquainted, by experience, with Mr.
Piatt’s constitution and general health. He had never been
his family physician, or prescribed for him before. He was
not now called in at his request, at the request of Mrs. Piatt,
or of any member of the family. He was not called to con-
sult with Dr. Wood, Dr. Harding, Dr. Mudd, nor any one
of those on whom Mr. Piatt had formerly relied, or who
had formerly prescribed for him. He was called in by Mrs.
Donn Piatt, not for the purpose of curing Mr. Piatt; for he
tells us that neither he nor she had any expectation that he
would recover. He was called in by the junto on Broadway,
who, having failed in an attempt to make the will, next at-
tempted to change it, and, having failed in that, last of all,
are now attempting to break it. His business was to see
what might be seen and tell what might be told. Be this
as it may, he is an unfortunate witness. He deals too much
in opinions and too little in facts, to come up to the standard
of the law, which requires that even a doctor must state the
facts on which he forms his opinion. Seeming to regard it
as his business to settle the main question, he states the fol-
lowing conclusions of his mind: “ Did n’t consider him, while
I was with him, capable of making a rational disposition of
his property, nor taking a survey of his estate. Don’t think
much change could have taken place in two or three days
before, from the nature of the discase, unless from some cir-
cumstance which did not exist in his case, so far as I know.”
Again: “TI believe, if appealed to by religious persons, he
would have been liable to be influenced so by religious con-
M. BE, PIATT, EXEC’X, ts. JOHN H. PIATT ET AL. 258

versation, that is, by a Catholic. The first thing with him
was a man’s religion. At the time of his sickness, I think,
he could be easily influenced by one of his faith in whom
he had confidence.” Again: “Don’t think, when I was in
attendance, he was capable of taking a rational survey of his
estate and making a disposition of it.” Again: ‘I don’t
think he would have been capable of settling any business
which didn’t agree with his religious idea of what was
right.”

These are the Doctor’s conclusions; but, before he can ask
other people to adopt them, the law requires him to state the
facts from which they are drawn. Amongst other things, he
alleges that Mr. Piatt had not common sense; and this is so
favorite an idea, that he repeats it several times: and he
speaks of this as of a defect natural to him, which allied it-
self with other causes to render him incapable of disposing
of his own property. Thus, he says: ‘ Mr. Piatt was only
lacking in common sense, not deranged.” And, again:
“Mr. Piatt’s intellect was weakened, besides his lack of com-
mon sense.” This is a dangerous point for the Doctor to
assail. He does not carry guns enough for such an assault.
The proof is too full and clear to be got rid of, that, in all
the operations of life, he was a man remarkable for common
sense; so much so, that the witness who ventures such an as-
sertion has no claim to respect for his opinions.

Another strong ground of the Doctor’s—one which he re-
fers to as an evidence of a lack of common sense—is, that
“ Piatt had no faith in medicine or doctors, but took medicine
from religious duty,” which the Doctor construes to mean,
“duty to the church.” He says: “I prescribed for him, as
for one who had no confidence in me, or in medicine,. or
doctors, and he seemed to attach no importance to my pre-
scribing for him; not to think that I was any more than
anybody else.” No doubt, this was hard to bear with.
254 M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

But what was remarkable in the case was, that the Doctor
had no confidence himself. There was a perfect sameness be-
tween the Doctor and the patient in this respect. The Doc-
tor had no expectation that Mr. Piatt would recover; Mr.
Piatt had no expectation himself that he would recover.
The Doctor knew perfectly well that medicine could do him
no good; Mr. Piatt knew perfectly well the same thing. He
prescribed, then, merely as a sham, to soothe the feelings of
a dying man; and the patient lacks common sense because
he has no confidence in the Doctor’s shams. Mr. Piatt had
that within which “feelingly persuaded him” his race was
run. He had tried the skill of doctors, and the powers
of medicine, long enough to know they could be of no avail;
and continued to try them from a sense of duty to his friends
and family: not to his church, as the Doctor supposes; for
he submitted to Blaisdell’s baths to gratify his mother, and to
Murphy’s prescriptions to gratify his sister. The church
recommended neither the one nor the other. As for himself,
his only hope was in the Physician of souls. His prospects
in this life were all dashed. His sky was enveloped with
clouds on every side. One only Star shone out before him,
growing broader and brighter as every other light faded
away. Religion with him was all; and he only lingered here
that he might not only do, but suffer the will of God. And
this is what his infidel friends deemed madness—* mono-

” “ veligious monomania.”

mania,

This suggests another of the reasons the Doctor states for
his conclusions. He says: “ His prominent idea was a relig-
ious one. He was entirely oceupied with it. When he had
his first paroxysm, he had his formula, and, like other relig-
ious people, was repeating various forms of prayer, using the
rosary and crying out for relief.” ‘“ He was a monomaniac

a

about religion,” and so on.

This idea of religious monomania was a sort of endemic
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 255

disease in the atmosphere of Donn Piatt’s house, on Broadway,
and there the Doctor caught it. He relates two conversations
he had with Mr. Piatt about religion. In one of these, Mr.
Piatt declared that he had not much confidence in any man
who was not a member of the church. £n the other, he de-
fended Louis Napoleon; said he was the right man for the
French; denounced the French as a nation of infidels, who
needed a religious ruler; and so on. These two conversa-
tions on religion were long before Mr. Piatt’s illness ; when,
as far as we know, he was in as good health, both of body
and mind, as he had ever enjoyed. They were occasions on
which the Doctor was paying polite attentions to Mr. Piatt’s
daughter Carrie, and of course some ‘time before her mar-
riage. These two were the only occasions on which the Doc-
tor ever heard him converse on religion. This is manifest
from what he said in a deposition taken shortly after the
death of Mr. Piatt, when everything was much fresher in
his mind than when he testified last in the case. The pas-
sage in that deposition, which, by cross-examination, was trans-
ferred to the record, is this: “‘ My conversations with him on
religious matters were accidental, coming up in a general
conversation. I never heard him express himself on relig-
ious matters in conversation with me but twice, although I
have heard him during his illness express his faith to those
around him in the Catholic church.” If an expression of
his faith in the Catholic church is a sufficient predicate for
the opinion of a learned man that he was a monomaniac, then
we understand him. If it is not, what else is there? He
heard him praying on two occasions. When he had a par-
oxysm at Donn Piatt’s house in Cincinnati, “like other relig-
ious people, he prayed for relief: ’? and when he died in a
terrible paroxysm in his own house, he expired with the
language of prayer on his lips. What “formula” he used we
17
256 M. E. PIATT, EXEC’X, ts, JOHN H. PIATT ET AL,

are not informed—probably the formula of St. Stephen: “ Lord
Jesus, receive my spirit.”

“ Here endeth ” the evidence of religious monomania, as far
as it fell under the Doctor’s own observation. He must have
formed his opinion from statements made to him by others;
or, he must have adopted the opinions of others ready formed ;
or, his own opinion has no rational foundation.

What other evidence does the Doctor give us of the testa-
tor’s incapacity to dispose of his estate? He has told us that
“ Mr. Piatt was only lacking in common sensc—not deranged.”
What did he hear him say? what did he see him do, evincing
incapacity? He never conversed with him about business
but once, and he gives us that conversation thus: “I had
heard that he was going to make a will from rumor. First
learned that he had made a will from himself. I asked if
he had freed his mind from business and settled his af-
fairs? He said: ‘I have made my will, Doctor.’ Never had
any other conversation about business.” What did he do?
He superintended the foundation of an addition to his house,
when the Doctor thought he was too sick to attend to it.

There was not, in all the Doctor heard or saw during Mr.
Piatt’s last illness, one foolish word or one foolish act, nor an
instance of undue influence exercised, or attempted to be exer-
cised ; and, on cross-examination, he makes this frank ac-
knowledgment: “ My opinions, as to his impressibility and
the character of the persons who could impress, is formed
from his general constitution and expression, rather than from
any facts, and from the fond influence and intensity of his
religious feelings.”

Dr. Murphy, doubtless, examined closely for the mental
manifestations of Mr. Piatt, and labored hard for a rational
foundation for his belief. Dr. Blaisdell was equally diligent
in his discoveries and equally anxious to sustain his opinions:
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 257

but Dr. Murphy did not discover that which was most prom-
inent in the mind of Dr. Blaisdell—that Mr, Piatt was absent-
minded and incoherent in his conversations. Nor did Dr.
Blaisdell discover that which filled the chief place in the
mind of Dr. Murphy—that he was a monomaniac on the sub-
ject of religion.

Directed to the same point of time is the testimony of
Mr. Runkle, who gives his opinion against the testator’s ca-
pacity for business; an opinion, as we shall see, built on an-
other opinion, without stating any fact in support of either.
Nor were his opportunities favorable to the forming of a cor-
rect opinion. He saw the testator but once within the last
year of his life, and that was the next day after he returned
from Cincinnati, five or six days after the will was made.
He had but one conversation with him at this time, which
was remarkable for its good scuse, and, as far as it related to
business, shows his mind to have been clear at that time.

In all this conversation the subject of religion, on which
he is alleged by the Broadway junto to have been insane,
was not mentioned; nor does this witness pretend to have
heard one word or seen one act of the testator indicating the
want of mental capacity. He comes at last, on the cross-
examination, to this conclusion: “I did not judge of the
state of his mind by what I heard him say during his last
sickness, but by what I judged must necessarily be the effect
of such terrible suffering.”

Let it be remembered that when this young man arrived,
the testator was in one of his paroxysms of suffering, He
heard him screaming before he reached the house. He
formed his opinion from what he then saw and _ heard
merely, and unless he was suffering in like manner when the
will was made, his opinion goes for nothing.
258 M. BE. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

IV.

Sanity is the natural condition of the human mind, and
the law presumes the testator to have been of sound mind till
the contrary is proved: and unless the facts and cireum-
stances given in evidence on the trial, show that, at the time
he made the will, he was of unsound mind, a jury has no
right to set it aside:

(Stevens vs. Vancleve, 4 Wash. C. C. R., 262; Sloan vs.
Maxwell, 2 Green’s Ch’y R., 580; Jackson vs. King, 4 Cowan,
207; Duffield vs. Robeson, 2 Harrington, 375; Hoge vs.
Fisher, 1 Peters, 163; Singleton’s Will, 8 Dana, 317; Shel-
ford on Lunacy, 274; Swinburn, 77, 78; 1 Greenleaf on Evi-
dence, 42; 2 Greenleaf on Evidence, 689; Evans vs. Knight,
1 Adams, 95, 122, 598; Jackson vs. Vandeusen, 5 Johnson,
144; Peters vs. Bingham, 10 New Hampshire, 514; Chandler
vs. Ferris, 1 Harrington, 454; Brown vs. Milleston, 3 Whar-
ton, 1387; Hix vs. Whittemore, 4 Metcalf, 546; Groom vs.
Thomas, 2 Haggard, 484; Brooks vs. Barret, 7, Pickering, 98.)

This, as a rule of law, requires no argument; but it sug-
gests a more extended inquiry: how far the contesting parties
have progressed in establishing, by proof, the allegation of
unsoundness of mind? In addition to Drs. Blaisdell and
Murphy, whose testimony has been already noticed, two
other gentlemen, professing the healing art, are called, both
of whom express an opinion, that, several months before the
testator’s injury or last illness, his mind was unsound.

Dr. Ehrmann, a Homeopathist, says a great deal, but proves
only this: that Mr. Piatt was weak and sick, and had lost
confidence in physicians. But he does not recollect any-
thing that he said, or anything that he did, evincing the want
of proper understanding.

Dr. Doherty brings himself fairly within the rule of law;
he states two reasons for his opinion, and confesses that he
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT, ET AL. 259

knows of no other. Ist, Mr. Piatt, being his landlord,
demanded, peremptorily, that he should keep a narrow side
entrance, between him and his next neighbor, elean, when
the Doctor thought the tenant on the other side ought to help
clean it. 2d, From an argument he had with Mr. Piatt,
about spiritualism, he thought Mr. Piatt believed in it, and
this satisfied the Doctor that he was out of his right mind.
The first of the Doctor's reasons is explained by reference to
the peculiar temper of the man, and the second ground is
removed by the proof that Mr. Piatt had no serious belief
in spiritualism.

We must, then, look a little further into the evidence.

First, let us take up the testimony of Thomas K. Smith—
one of the numcrous kinsfolk of Mr. Piatt, to whom he stood
in the relation of a father and fricnd, and whose property
and interests he took care of when they semed unable to
take care of them for themselves. This testimony is so
highly ornate and poetical, so bedecked with the flounces and
furbelows of classic and mythological lore, that it irks onc’s
conscience to mar the beauty of a thing “ so fair and so frail.”
But duty requires it to be examined, not so much for the
opinions it expresses as for the facts which it discloses, and
to see how well they hold together. In one clause, speak-
ing of Mr, Piatt, he says: “ He was always an invalid while
I knew him; a victim, I believe, of chronic dyspepsia.”
In another, he says: “ He hada strong frame and an indomi-
table will, and possessed a remarkable industry, always
averse to yielding to sickness.” So, too, as to the time and
occasion when he discovered that Mr. Piatt’s mind was fail-
ing, in one clause he says: “I found Mr. Piatt, on my return
from Washington, in 1856, a mere wreck of his former self,
both in body and mind.” In another clause, speaking of
the visit he paid at Federal Hall, during Mr. Piatt’s last
illness in 1857, he says: “ During that visit, 1 formed the
260 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

opinion that his mental energies were shattcred.” So, too,
as to the main question involved in the controversy, whether
Mr. Piatt was sane or insane, he seems to waver; for, having
informed us that, in 1856, his mind was a mere wreck; that,
after his injury, his mental energies were shattered ; that he is
quite confident “that, for three months preceding his death,
he was a monomaniac on the subject of religion ’—he comes
down and says: “ There were times, certainly, when his mind
was sufficiently clear for the transaction of ordinary busi-
ness—the small details of every-day life,” ete.; and “TI do
not wish to be understood as expressing the opinion (and I
take my deposition, after all, a mere opinion) that J. W.
Piatt was insane or imbecile; but that he was so tortured
with physical agony, the few weeks before his death, as to
be incapacitated for a continuous train of thought upon any
one subject.” Neither do Mr. Smith’s actions and words
agree as to the capacity of Mr. Piatt for business. After
1856, when he professes to have found him “a mere wreck,
both in body and mind,” he and his wife intrust him with
difficult and important business, affecting the rights of Mrs.
Smith ; and this “wreck” takes upon himself, as attorney and
next friend, this business, and accomplishes it with success.
And when, in addition to former infirmities, he is suffering
the hell of Prometheus, and Mr. Smith is threatened with
the opposition of one of the most formidable politicians in
the country, and in danger of losing his office and his all, he
flies to this “ mere wreck ” for advice and comfort.

All, or nearly all, that he relates about the sufferings of
Mr. Piatt and the condition of his mind for the last three
months before his death, must be mere guess-work. He was
not on the spot to witness cither. Mr. Piatt was wounded
on the 14th of February, made his will on the 19th of May,
and visited Cincinnati on the 21st. During these three

months and seven days, Mr. Smith saw him but onee, and
M. E. PIATT, EXEC’X, vs JOHN H. PIATT ET AL. 261

then did not watch with him, so as to witness his nightly
paroxysms. He did not go there to watch with him nor to
sympathize with him or his family. His business was en-
tirely selfish. But he shall tell this part of the story him-
self:

“T think I visited him in Kentucky put oNcE after the
injury to his knee and before he came to Cincinnati the last
time. * * Upon that visit, I sat with him in the evening
of my arrival till, perhaps, nine or ten o’clock, and then re-
tired, sleeping in the adjoining room. I spent the greater
part of the next day at his bedside.”

What were the visions of Mr. Smith’s head during this
night’s sleep, will appear as he progresses in reply to a re-
quest to be specific in his statements:

“Tn answer to this question I must explain, that Mr. Pi-
att had been, for many years, a prominent politician—an in-
fluential and leading member of the Democratic party. I
had been appointed by President Pierce, during the recess
of the 34th Congress, United States Marshal for the South-
ern District of Ohio, in opposition to candidates supported
by Senator George E. Pugh; who, upon that ground, had
declared his intention of frustrating the confirmation of my
appointment by the Senate. With a view to taking counsel
with Mr. Piatt in that behalf, I visited him, and DURING THAT
visit I formed the opinion that his mental energies were shat-
tered.”

We now learn the subject-matter which occupied his time
the next day at the sick man’s bed-side, from which he
“formed the opinion that his mental energies were shat-
tered.”

“JT knew that he took a kindly interest in me and in my
affairs; that he regarded the subject-matter I laid before
him as one of the greatest importance to me, the place I de-
sired to retain being one of honor and large pecuniary

emolument; aside from which, there were questions mooted
calculated to rouse him by arraying before’ him men and
262) M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL

measures that would excite his antipathies and partialities.
Yet I found it difficult for him to fix his mind even for a
few moments. He continually wandered off, reverting to
the subject of religion, always his first and last thought.
Sectarianism and doctrinal works, the reading of which he
pressed upon me at that time, mal appropos as it was. I left
him, fully convinced that it was useless to attempt conver-
sation with him on any matter of business; that all he had
left of intellect was concentrated upon Catholicism and his
desire to proselyte to that faith.”

Allowing that Mr. Smith believes himself, when he says,
“he found Mr. Piatt, on his return from Washington, in
1856, a mere wreck of his former self, both in body and
mind ;” allowing the wound in his knee to have been as
ghastly and dangerous as it really was; and, allowing his suf-
ferings to have been as terrible and unremitting as Mr. Smith
represents them to have been: it would be entirely safe to
submit the question, which was the greater madman, Mr.
Smith for vexing the mind of such a sufferer with such ques-
tions, or Mr. Piatt for refusing to be vexed with them.
Doubtless these men mutually distrusted each other’s sanity ;
but, before we condemn either, let us look for a moment at
the peculiar relations of each. Mr. Smith was a living poli-
tician, Mr. Piatt was a dying Christian; Mr. Smith was a
candidate for Marshal of the Southern District of Ohio, Mr.
Piatt was a candidate for Heaven only. In Mr. Smith’s esti-
mation, the honors and emoluments of high constable of the
United States were worthy the ambition of Cesar; in Mr.
Piatt’s estimation, all the titles and honors and emoluments
of this world were nothing, compared with the unfading hon-
ors and the “unsearchable riches” of the world to come.
Mr. Smith was shipped in a new and untried vessel, badly
ballasted, with all sail crowded, ready to tempt the dangers
of an unknown sea in search of baubles; Mr. Piatt had
weathered out the storms of life, inhaled the land breezes
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 263

and saw the head-lands of immortality before him. Mr. Smith
was struggling for a “slippery tenure ”—a tenure at will in
an earthly office; Mr. Piatt sought to secure an inheritance
in fee simple in the land of eternal rest. If Mr. Smith had
been willing to journey in the same road, and seek the same
object, feeble as he was, Mr. Piatt would have taken him by
the hand and helped him along. But Mr. Smith was intent
on the flesh-pots of Egypt.

Mr. Smith has not favored us with one sentence or one
word, which Mr. Piatt uttered during this conversation, so
that we might form an opinion whether they were wise or
foolish. Nor has he given us the title of one book which he
advised him to read, so that we might judge whether they
were good books or bad books, sectarian or unsectarian.
But, knowing the object for which Mr. Smith visited the
sick man; knowing that he attempted to rouse him by ap-
peals to old antipathies; and, knowing the result of the
conference, we have a right to conjecture that it ran thus:
“My very dear uncle, you must rouse from this lethargy,
fling away your crutches, your beads and your prayer-books,
and give your religious contemplations to the winds. I am
in danger, sir, of losing my office; and if I lose my office, I
am undone forever. It is an office of high honor and large
emoluments; and, if [ am permitted to hold on to it, I will
add a new luster to the name of your family. Besides, they
are your old enemies and the enemies of your family who
are opposed to me, If they triumph over me, it will be
a triumph over the whole family. You owe these men a
grudge, and now is your time to pay them. Your biting
sarcasm, your withering invective, will drive them to their
holes like mice. Senator Pugh is bold, wily and resolute, in
the face of ordinary opposition; but he will not venture to
grapple with you; he knows you too well.” To all this we
264M. E, PIATT, BXEC’X, ts. JOHN H. PIATT ET AL.

may suppose the sick man briefly replied: “My son, ‘seek
first the kingdom of God and his righteousness.’ ”

The young man goes away sorrowful and very heavy; con-
cludes that his uncle is insane; and now remembers, what it
would seem he had forgotten, that, when he returned from
Washington, in 1856, he found him a mere wreck in body
and mind.

Still, Mr. Smith leaves a very broad margin for other wit-
nesses to stand upon. He saw Mr. Piatt but once from the
time he received his injury to the time he visited Cincinnati
after the will was made. Of course, except what he saw him
suffer on that one occasion, he knows nothing about his suf-
ferings. All his statements outside of this one day are the
mere repetitions of what others had told him, or mere con-
jecture ; and all opinions predicated on such statements are
worthless. Let us quote him again: “I do not wish to be
understood as expressing the opinion that J. W. Piatt was
insane or imbecile; but that he was so tortured with physical
agony, the few weeks before his death, as to be incapacitated
for a continuous train of thought upon any one subject.”

Now, if it should appear from the testimony of others, who
watched with him and waited on him by day and by night—
day after day and week after week—that, “for the few weeks
before his death,” his sufferings were limited to a few hours
or a few minutes in the night season; and that, during the
whole of almost every day, and part of every night, he en-
joyed freedom from pain; walked about on his crutches, at-
tending to business; was checrful and elastic in his spirits;
conversed freely on every topic; exercised as sound a judg-
ment as he had ever exercised; and was treated and dealt
with by all his neighbors and friends as a valid business
man: what becomes of Mr. Smith’s idea that he was “ inca-
pacitated for a continuous train of thonght upon any one

subject’? His theory perishes like the goodly gourd that
M. E, PIATT, EXEC’X, ts, JOHN H. PIATT ET AL. 265

covered the prophet of Nineveh, which “came up in a night
and perished in a night.”

But if his theory was true, what of it? The law does not
require capacity ‘ for a continuous train of thought upon any
one subject.” The law does not require that vigor of mind
which enables a lawyer.to write elaborate arguments, investi-
gate knotty questions and exhaust whole libraries of authori-
ties ; or which enables a divine to write and preach long ser-
mons. Ifthe testator has memory enough to remember what
property he has to dispose of and who are to be the objects
of his bounty, and understanding enough to know the imme-
diate consequences of what he is doing, it is all the law re-
quires to enable him to make a valid will.

But the present case does not require the rule to be stretched
so far. It is abundantly proved that, though the testator was
weak and emaciated in body and incapable of performing la-
bor which required much physical strength, or such continu-
ous mental labor as exhausts the body of a healthy man, his
mind, except in his paroxysms of pain, was as clear as it had
ever been in his life. :

Some reliance seems to be placed in the fact that the testa-
tor, from early youth—perhaps seventeen years of age—had
slight fits of epilepsy, which, as the proof shows, became less
frequent and less severe as he grew older. Experts have not
been examined as to the effects of this disease on the mind;
but every one is sufficiently familiar with the subject. That
frequent and severe fits of epilepsy, as a rule, destroy the
mind, may be conceded; but the effects in such cases are
peculiar, and are as well known to the world at large as to
the medical profession. They first produce dullness, then
stupidity, then idiocy, then total obliviousness of mind. But
neither mania nor monomania is an effect of epilepsy. That
slight and unfrequent fits affect the general understanding,
is abundantly disproved by hundreds of instances. Julius
266 M. E. PIATT, BXEC’X, vs. JOHN H. PIATT ET AL.

Crsar, the finest mind Rome ever produced, was always af-
flicted with epilepsy, and had a fit the day before his death ;
and Mahomet, the greatest mind Arabia ever produced, was
afflicted with the same disease. Dr. Mudd, who knew the
testator’s constitution well, and by whose medical aid both
the number and severity of his fits were mitigated, as also
his father, B. M. Piatt, and others, testify that they did not
affect his mind at all, except for a short time while they were
coming on and going off, and rarely ever interfered with the
regular transaction of his business.

There were times, unquestionably, when Mr. Piatt was in-
capable of making a rational will. There is not one man in
a thousand, who, from youth to old age, enjoys such an un-
interrupted flow of health; or, in sickness, such uninter-
rupted clearness of mind, as to be always in condition to
make a will. After Mr. Piatt received the wound in his
knee, he suffered such intense pain from his wound; was so
much of his time benumbed with opiates and so often deliri-
ous with fever; that a will made at such times ought not to
stand. But was this state of things continuous? The proof
is all the other way. After his wound healed, he was in
condition to walk about and attend to such affairs as did not
require physical strength or endurance; and enjoyed com-
parative freedom from pain, and clearness of mind, except,
ordinarily, once every night, when a severe paroxysm re-
curred.

But the eye and car witnesses shall tell the story. Dr.
Harding first dressed the wound, and attended on the patient
for eight weeks, when, on the 19th of April, one month be-
fore the Will was made, he went to the West; and, I believe,
saw the testator no more alive. He says: ‘The progress and
cure of the injury of the knee joint was as rapid and favor-
able as could have been expected under the circumstances ;

the wound having healed up within the succeeding eight
M. EB. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 267

weeks from the receipt of the injury. After the expiration
of eight weeks, he was able to move about the room on
crutches.” And, speaking of his mind, the Doctor says: “T
think that his mind and memory, both before and after the
receipt of the injury, so far as he was under my observation,
were quite as discriminating and retentive as that of most
men.” But how far did Mr, Piatt fall under Dr. Harding’s
observation? He visited him, regularly, once every second
day (and, frequently, every day), for eight weeks in succes-
sion, and conversed with him, not only on the objects of
of his visits, but on various topics, including that on which
he is alleged to have been insane. It is quite safe to say
that Dr. Harding saw him ten times as often and conversed
with him ten times as much as his brother Donn, his sister
Louise and his kinsman Smith, all put together; and that
he was quite as good a judge of his capacity as either of
them, Moreover, he had the opportunity of hearing him
converse with others about business, and of knowing whether
they, especially his brother Donn, his son John H. and his
father, Benjamin M. Piatt, considered him capable of busi-
ness. He says: “I was also present at another time, when
his father and Donn Piatt, his brother, and, I think, his son
John H. Piatt, were present; and they were urging upon
him, especially Donn Piatt, the propriety of having his dep-
osition taken in a business matter, the exact character and
details of which I did not very fully comprehend. My rec-
ollection is, that Donn Piatt urged the propriety of having
an attorney, I think Mr. Johnston of Cincinnati, down, to
take his deposition in the case or business matter referred
to. I think it was in reference to some property in Toledo
or Cincinnati, or perhaps both. This was some six or eight
weeks previous to Mr. Piatt’s decease, and the propriety of
taking this deposition was referred to me as his physician, as
well as to Mr. Jacob W. Piatt. It was advised that it should
268 M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

be deferred to another time, as he would be likely to be in a
state of health better adapted to the fatigue and exercise of
mind incident to this proposition. In reference to this busi-
ness matter, discussed between the parties above named, Mr.
Jacob W. Piatt seemed to comprehend and understand the
subject under discussion. Mr. Jacob W. Piatt took part in
the discussion and seemed to understand it as fully as the
others.”

Besides Dr. Harding, there are three other historians of
this period, whose opportunities of knowing the truth, and
whose ability to judge of it, were remarkably great.

Dr. Mudd—a gentleman of liberal education and medical
science, who, from his long acquaintance with the testator
and having been so many years his physician, knew all his
peculiarities of body and mind better than any other man;
had been with him constantly, day and night, for the first
five weeks after he received the wound, and visited him oc-
casionally through the remaining eight weeks which he sur-
vived—in speaking of the condition of Mr. Piatt’s mind, as
to perception, memory and judgment, between his paroxysms
of pain, says: “It was as good as usual, when in usual health,
except that I thought he did not arrive at his conclusions as
rapidly as when in his usual health. I thought his judgment
sound, his memory tolerably good and his reasoning correct.
I came to this conclusion upon noticing his instructions to
his foreman on the farm, and his directions to the workmen
who were about erecting an addition to his residence: also,
from remarking the manner in which he transacted business
with his father, his brothers and others who had_ business
with him. I also formed my opinion from my own conver-
sation with Mr. Piatt on religious, literary and other mat-
ters.”

Benjamin M. Piatt, the testator’s father, a man of great

good sense and sober reflection, had spent a great deal of
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 269

his time with his son during his last illness, and conversed
with him on business and transacted business with him.
Benjamin M. Piatt, Jr., a man of six-and-twenty, the near
neighbor and near kinsman, the intimate friend and the stu-
dent of the testator, had been with him much of his time
by day, and watched with him by night, from one to three
nights in the week, for three months of his illness; and had
been with him all the time from the making of his will to
the day of his death, conversing with him, as we have seen,
on every topic which might try the powers of his mind. The
testimony of these three witnesses, together with that of Dr.
Harding, makes out, beyond controversy, the following:

1st. When the testator was free from paroxysms of pain,
his mind was as clear and discriminating as it had ordina-
rily been in health.

2d. On an average, his paroxysms did not occupy one hour
out of the twenty-four.

3d. He rarely ever had a paroxysm in the day-time, and
sometimes had none at night.

4th. His freedom from pain and fitness for business oc-
curred in the day-time; his pain and unfitness for business
in the night.

5th. His paroxysms were not always attended with men-
tal aberrations; and, when they were so attended, his aber-
rations were of shorter duration than his sufferings.

6th. His aberrations did not come on till ‘his paroxysms
had made some progress, and he usually fell asleep when
both subsided.

7th. He never attempted to.transact any business when
his mental aberrations were on; and, if he had, his suffer-
ings were too intense to admit of it.

Besides these four witnesses, there are numerous others
who occasionally saw and conversed with the testator in his
last illness. Rev. Robert Kirtly, of the Baptist Church, who
t

270) -M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

had been successively acquainted with the testator’s grand-
father, his father and himself, called on purpose to see him,
found his intellect bright and his spirits cheerful, and con-
versed with him on various topics interesting to them both.
After remainIng in conversation two or two and a half hours,
from all he saw and all he heard, he makes this statement:
“At that time I did not discover anything indicating any-
thing other than a sane mind. His conversation and all was
of a rational character; so far as conversation and common
matters were concerned, his memory seemed good. I did not
attempt to test his memory particularly.”

Reese H. Parry (a kinsman or connection of Mr. Piatt,
who had many years’ acquaintance with him, and who, in
his day, had a good many bickerings with him about Know-
nothingism ; visited him, “at his home in Boone county,”
three or four days before his death, and had a good deal of
conversation with him, and, believing he might recover, ad-
vised him to travel for his health) bears this testimony as
to the condition of his mind at that time: “He seemed to
be the same he always had been as to sanity. For a man in
his condition, I regarded him as lively and sprightly, and
he seemed in a fair way for getting well.” This was after
he himself, with a better knowledge of his physical condi-
tion, had made up his mind to die.

To the same effect is the testimony of all the witnesses
employed on the farm, who received their orders, directly
or indirectly, from him from day to day.

The period now under consideration includes the last jour-
ney to Cincinnati, what happened there, and what occurred
after he returned home. And, as before observed, during this
time he fell under the particular notice of ten intelligent wit-
nesses (including the two Benjamin M. Piatts), some of whom
had business transactions and conversations with him, requir-

ing the exercise of right reason, all of whom testify to the
M. E, PIATT, EXEC’X, vs, JOHN H. PIATT ET AL. 271

entire clearness of his mind. It is not proposed to repeat,
in this place, what these witnesses say, except a single quota-
tion from the deposition of Benjamin M. Piatt, jr., giving
an account of the testator’s arrival at home, as illustrative of
what he was when free from his paroxysms of pain. “On
each night that he stayed in Cincinnati he experienced con-
siderable pain and suffering; more on Friday night than on
the night previous. He resolved, on that night, that he
would go home the next day; said that he had no hope of
recovering. On Saturday morning he still so expressed him-
self and requested me, as usual, to go with him to the bath,
and to take him home that day on a boat, which I did.”
Again: “ We went down on the packet (I think it was the
Lady Pike, to the best of my recollection). We got off just
below his house. We waited at the river until his man could
drive down with the Jersey wagon. We then got in and
rode up to the house; two or three of the children came
down to’ mect us, and rode up with us. He walked up the
bank from the water’s edge, when we got off the boat; part
of the bank was very steep. JI walked behind him, and,
when we got to the top of the bank, we sat down together
under a large tree to.rest and wait until his man could ar-
rive. We talked together, as usual, while sitting there, and
among other things, he told me that he was glad to get back.
When we drove up to the house we met Mrs. Piatt and Mrs.
Mudd at the yard gate; they all met very affectionately, and
he told them he had:come to die in peace, that he had tried
everything, and he thought there was no hope of his recov-
ery: that he wanted everything made as pleasant as possible,
for that was all that could be done. We all went into the
library together; he sat on the large chair that he had used
after he commenced sitting up, conversing pleasantly with
us all, seeming perfectly resigned and willing to die. He
seemed perfectly sane on that occasion; knew every person
272M. E. PIATT, EXE’CX, vs. JOHN H. PIATT ET AL.

about him as well as he ever did in his life. I went into the
house soon after, aud left him in conversation with Mrs.
Mudd and Mrs. Piatt.” Which does this most resemble,
the “ravings” of a maniac or the triumphs of a Christian
philosopher ?

Let us now revert to the interval of time which elapsed
from the return of Donn Piatt and his family from Europe,
and Mr. Smith from Washington, down to the time the tes- -
tator was wounded—say, the last year of his active life.
Mrs. Louise Piatt will not say that his mind was impaired
by disease before he was wounded, only so far as religion
was concerned ; and when she says that, after he was wounded,
his conversations on religion were more like ravings than
anything else, she says, before that time they were argumenta-
tive in their character; but Donn says: “ I was very much
shocked, on my return, by the change wrought in my ab-
sence; more apparent by my not having seen him. He was
much reduced, was a mere skeleton. Contrary to his usual
habits, he was quiet or subdued, and exhausted. He was
affectionate in his manner, except when excited; then his ex-
citement was of unparalleled violence. He had not the
same confidence in those around him, and in men generally,
as before I went abroad. He was mentally and physically
exhausted; his mind was impaired as well as body.” Smith
says: “I found Mr. Piatt, on my return from Washington,
in 1856, a mere wreck of his former self, in both budy and
mind.”

These two witnesses are here quoted for the purpose of
comparing their opinions of Mr. Piatt’s condition of body
and mind, during this period, with that of other persons, who
saw far more of him and had better opportunities to know
the truth.

Doubtless, both Donn and Smith found him in’ worse
health than they left him. Doubtless, he suffered greatly
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 278

and frequently from ill health. Doubtless, he was sometimes
unable to attend to busincss at all. Doubtless, he sometimes
attended to business when he was very feeble. Doubtless, he
was sometimes in low spirits and dull, as when he consulted
Dr. Ehrman. Doubtless, he was sometimes unequal to him-
self, as when he tried the case of the British Consul. But
what of this? Such things occur in the experience of every
man. The question is, were his mental faculties materially
impaired? Was he such a wreck as these two gentlemen
would have us believe? Slight impairments of a man’s mind
might not be noticed by his neighbors ; but such a change as
these gentlemen speak of could escape no intelligent man’s
notice. A man, remarkable for common sense and aptitude
for business, could not run down into a mental ruin, unfit to
make a rational disposition of his estate, without his neigh-
bors, especially those who had business transactions and
professional contests with him, noticing such a melancholy
change. And what is the testimony of these?

Jeremiah H. Jones, who knew him for seventeen years as a
brother lawyer, and had been his tenant and lived next door
but one to him for years, says: “I am not able to give the
last date of my intercourse with Mr. Piatt. I had professional
intercourse with him at the last term of the court, I think,
at which he attended at Cincinnati. I feel persuaded of
this, because the business I had with him at that time was
subsequently attended to by his brother. He was then in
feeble bodily health. His mind was as strong to all appear-
ance, as it ever was. He conversed with me about business
which we had together ; suits which had been long pending ;
and I perceived no change in the condition of his mind
from what it had always been.”

Tsaac C. Collins, now one of the Judges of the Common
Pleas, besides his general acquaintance of many years, was

opposed to him in an action in the Superior Court, in which
274 M.E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL.

the property of Mrs. Thomas K. Smith was involved, where
Mr. Piatt appeared in the double relation of attorney and
next friend, and had the better of Mr. Collins in the contest.
He says: “I think he was a man of great sagacity and a
thorough knowledge of human nature; of much more than
ordinary talent; bold and adroit.” And then, in speaking
of the condition of his mind at the time of this contest, in
November, 1856, he says: “It was as active and vigorous as
it had been at any time during our acquaintance. I saw no
indication, whatever, of his mind being impaired in the
least.””

‘Mr. Garret, of the firm of Garret & Cottman, was Mr.
Piatt’s client, and had a cause in court tried among the last,
perhaps the very last, he ever attended to. Mr. Garret does
not remember the date; but it appears from the testimony of
Judge Van Hamm, that the trial was in November, 1850.
He says: “ He seemed to be in very feeble health. I consid-
ered the case was conducted with very marked ability; de-
cidedly so.” .

Judge Van Hamm, before whom this last case was tried,
testifies as follows: “I was acquainted with him for many
years before his death. He appeared as counsel for the
plaintiffs in the case of Garrett & Cottman vs. Peacock «&
Son, which case was tried before me at the November Term,
1856. He appeared before me in a great many cases while
I was on the bench. He tried before me the case of the
State of Ohio vs. Harrington, who was charged with murder,
at the May term, 1856. * * I never observed any change
whatever in his mind. He always managed a case with great
ability and shrewdness. * * I know nothing, personally, of
his private affairs, or of his management of them. He had
the reputation of being a remarkably prudent man, and was
reputed to be successful in the acquirement of property.”

Dr. James Taylor, a dental surgeon, had been acquainted
M. E, PIATT, EXEC’X, vs, JOHN H. PIATT ET AL, 275

with Mr. Piatt, and had done more or less work in his profes-
sion for him and his family every year, for seventeen years. He
did some work for him, and had some conversation with him,
as late as November, 1856; and, speaking of the condition
of his mind, he says: “There was nothing about him that
attracted my attention to the subject. I noticed no differ-
ence between what he was then and what he had been at
any of our previous interviews.”

Dr. Thomas Wood, of.Cincinnati, says: “I was acquainted
with him some six or eight years. My opportunities [of
knowing him] were from intercourse with him as his family
physician, and in his family circle.” Dr. Wood was one
of the physicians who were called in consultation with Dr.
Harding, of Lawrenceburg, when Mr. Piatt suffered the
injury from the saw, and visited him repeatedly on that
occasion; so that he had been both his physician in Ohio
and his surgeon in Kentucky. In answer to this request,
“State now, if you please, whether you ever discovered,
either before or after the injury inflicted by the saw, any evi-
dence of alienation or weakness of mind in Mr. Piatt,” he
says: “No, I never did. During the time he was confined
with his wound, I was informed that he was delirious at
nights, but I never saw any of it. He was always rational
when I saw him. I supposed these aberrations to be the
transient delirium of fever.”

Daniel Van Matre, Esq., who had known Mr. Piatt up-
ward of thirty-five years, practiced law with him, and for-
merly acted as his legal adviser, and who kept up his ac-
quaintance with him as long as he was able to come to
Cincinnati to attend to business, says: “ He was a man that
managed his own business with extraordinary care and dili-

? and, speaking of the last time he ever conversed

gence ;’
with him, he says: “He appeared then, to me, to be a man

of sound mind and memory, as I had always considered him
276 4M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

to be, the various times I had met him, after I first became
acquainted with him.”

James 8. White, Esq., testifies that he had been personally
acquainted with Mr. Piatt for ten years, and had been accus-
tomed to hear him try cases in court; and that he was asso-
ciated with him as counsel in the trial of a cause as late as
November, 1856. He says: “ I considered him a man of sane
mind during the time I was personally acquainted with
him.” And, on being asked to state what degree of vigor of
body and mind he brought to the trial of this cause, com-
pared with others he had heard him try, he says: “ It was
with his usual vigor of mind. He displayed, in the trial
of that cause, as much ingenuity and ability as I had heard
him in any case before that time. He argued the case at
considerable length, and with much warmth and vigor. He
was, as was usual with him, remarkably witty and sarcastic.
His examination and cross-examination of witnesses was
also conducted with his usual shrewdness, tact and ability.
He was, in body, somewhat debilitated; having had, a short
time previous to the trial of that cause, an attack of sick-
ness.”

William Chidsey, Esq., had known Col. Piatt, as lawyer and
citizen, for twelve years. For the last five years he was inti-
mate with him by reason of his position as a magistrate. Col.
Piatt used to do a great deal of business in his office—had a
large number of cases before him; and he believes he was as
strong-minded and sensible a man as he ever knew. And,
after giving a general account of Col. Piatt’s character, he
goes on to say: “I was present at the execution of the deed
by Daniel Riley to Col. Piatt (I think on the 3d of Febru-
ary, 1857), and of the mortgage by Col. Piatt to Daniel
Riley, in the capacity of a notary public, and took the ac-
knowledgment of the parties both to the decd and the mort-
gage, and was also an attesting witness to the same. Dan-
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET EL. 277

iel Riley, sr., and Daniel, jr., were present; also John H.
Piatt and some others whom I do not remember. I had a
conversation with Col. Piatt at the time on the subject of
the purchase of the property. I remember well that he
said he had given more for the property than it was actu-
ally worth, on account of its proximity to his other prop-
erty. I believed his mind to be perfectly sound; as much
so as any man’s could be. We conversed about other mat-
ters ; about general matters ; and his mind was perfectly clear.”

Daniel Riley, jr., resides in Cincinnati, and was well ac-
quainted with Col. Piatt. He says, in speaking of the trans-
action stated by Mr. Chidsey to have taken place on the 3d
of February, 1857: “I can state no dates. I was present
when he gave his note for $1,000, and his check for $1,000,
for a piece of property on Seventh street which he bought
from my father. There was also a mortgage executed by
him at the same time. My father made Col. Piatt a deed
for the property at the same time. Esquire Chidsey was
present, Mr. Piatt himself, and, I think, his son, and my-
self. His mind was just as sound that day as it ever was;
and I have known him for twenty-five years., I considered
his mind, at all times, just as sound as anybody’s on earth.
I never saw much difference in him, and I have known
him for, probably, thirty years—for twenty-five years, sure.
I have known him almost as long as I have known any-
body—since I was a boy. I never saw any change in him
from the time I first knew him, till the time I last saw
him.

Judge Parker says: “ My first acquaintance with Mr. Pi-
att was in 1852 or 1858, and in May, 1854, I was appointed
one of the Judges of the Court of Common Pleas of Ham-
ilton county, which place I occupied until February, 1857.
Duting that period, I saw Mr. Piatt almost daily and he
was frequently engaged in cases before me. I frequently
278 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

had personal intercourse wish him off the bench, during
that period.” And, speaking of his latest intercourse with
the testator; he says: “So far as Mr. Piatt’s mind and mem-
ory was concerned, I never, either at that time or at any
other time, even suspected that it was unsound, or different
from that of other men of the same degree of intelligence
and education.”

Mr. Daly had studied the law with Mr. Piatt and afterward
been his partner in the practice; and, from the account he
gives, must have had a very great deal of intercourse with
him, keeping up his acquaintance as long as Mr. Piatt was
able to come to Cincinnati. He says: “ Mr. Piatt was a very
able manager of his business. No man could be more so.”
And again: “I think, in 1856, I rode up with him in the cars
from Lawrenceburg, and we had a long conversation. His
mind seemed to me as vigorous as ever. I had other con-
versations during the same year with him, perhaps three or
four times, and recognized no difference in his perception of
business matters. JI have never found him otherwise than
shrewd, and full of strong common sense, in all my inter-
course with him.”

Mrs. Stillé, with whom he took his meals when he came to
Cincinnati, says: “I was acquainted with Mr. Piatt, and lived
next door to him, being his tenant, for five or six years.
My acquaintance with him continued up to about the mid-
dle of February, 1857.” Again: “My business transactions
with him were as his tenant. I never discovered any decay
of intellect in him. His mind remained vigorous, so long as
I had any acquaintance with him, so far as my knowledge
extended.”

Judge Tilden had seven years’ acquaintance with the testa-
tor, during which time he had been employed by him in the
line of his profession. His opportunities of knowing the con-

dition of his mind, in the latter years of his life, were great
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 279

and numerous. His answer to the proper interrogatory, after
giving the history of his acquaintance, is: “It may, perhaps,
be proper to premise, that, having been informed that the
mental capacity of Mr. Piatt had been questioned, I have
been led to recall some of the incidents of our intercourse,
and to the formation of an opinion upon the point thus
raised. And, I am obliged to say, that, although he was
in some respects (J mean in his mode of social intcrcourse),
peculiar, perhaps eccentric, he was a man of clear perecp-
tions, of very decided opinions, and, generally, I should say,
of sound mind. In the latter periods of his life, to which
my attention is particularly directed, he suffered much from
sickness and disease, and I saw nothing of him after he re-
tired to his farm in Kentucky and to his sick-room, But,
whilst he was sufficiently strong to get around and come to
the city, I saw and conversed with him occasionally, espe-
cially upon the subject of the malady which afflicted him;
and I can recollect no remark, and no incident, which would
make me suspect any aberration of mind, or the existence
of any delusion, or indicate any decay of intellect.”

Rufus King, Esq., had known Mr. Piatt personally since
1842 or 1848, and had known him by reputation much longer.
In speaking of the last occasion on which he conversed with
him, he says: “There was nothing in Mr. Piatt’s conversa-
tion or conduct, either then or previously, that ever sug-
gested a doubt, in my mind, as to the soundness of his
mind.”

Judge Storer, of the Superior Court, a witness called to in-
validate the will, says: “I became acquainted with Mr. Piatt,
I think, before he was admitted to the bar; and since his
admission to practice as an attorney at law, until tlic time
of his death, a period, I think, of nearly thirty years, if not
more, I have known him well.” And the testimony of
Judge Collins shows that Mr. Piatt tried a cause before Judge
280 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

Storer as late as November, 1856. When this question is
asked Judge Storer: “As long as Mr. Piatt continued to
practice his profession, did you ever notice any impairment
of his mental faculties?” He answers briefly : “Never.”

Judge Spencer, of the Superior Court, says: “I am a resi-
dent of Cincinnati and have been all my life. I was inti-
mately acquainted with the late Jacob W. Piatt, from the
earliest recollections of my boyhood—say forty years.” And,
coming down from his earliest to his last recollections, he says:
“The last time I recollect having seen and observed him, was
on the occasion of a trial between Humble & Son and himself,
growing out of the erecting of the front of some houses on
Pearl street, which had before then been erected for Mr.
Piatt. He was a witness in the case. The trial alluded to
occurred a few days, perhaps a fortnight, before he received
an injury in his knee, as I understood, from a saw. He ap-
peared to be then in his usual health, although he had been,
a short time before that, perhaps, an invalid. His memory,
then, appeared to be good and his mind in its usual condi-
tion.”

To these fifteen respectable witnesses might be added many
more to the same effect; but as their testimony is referred
to in other parts of this argument, let these suffice for the
present. e

The gauge of testamentary capacity, under the Statute of
Kentucky, is, that the testator shall be of sound mind when
he executes his will. By this phrase it is not to be understood
that the testator had a perfect mind; or, that he had a mind
equal to the common order of mind; or, that his mind, at the
time he executed his will, was as sound as it had been at some
other time ; or, that he had a mind unimpaired by disease: if
the testator, at the time he executed the will, had mind suffi-
cient to recollect the property he intended to dispose of, the
M. L. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 281

persons to whom he intended to give it, and the manner in
which he wished to distribute it among them ; if, in short, at
the time he executed the will, he had a mind sound enough
to know and understand the business in which he was en-
gaged, it is sufficient.

(Jarman on Wills, 50, 51, 52, 53 and notes; Lowe vs.
Williamson, 1 Green’s Ch. R., 82; Stevens vs. Vancleve, 4
Wash, C. C. R., 262; Stewart’s Ex. rs. Lispenard, 26 Wen-
dall, 255 ; Harrison rs. Rowan, 3 Wash. C. C. R., 580; Sloan
vs, Maxwell, 2 Green’s Ch’y R., 563; Whitenack vs. Stryker,
1 Green’s Ch’y R., 8; Turnbull vs. Gibbons, 2 Zabrisca, 133 ;
Ingram ¢s. Wyatt, 1 Haggard, 167 ; Shelford on Lunacy, 274,
275, 276, 277; Potts et al vs, House, 6 Georgia R., 324; Car-
rol vs. Norton, 3 Bradford, 291; Williams vs. Goude & Ben-
nett, 1 Haggard, 252; Barry vs. Butlin, 1 Curtis, 637 ; Jack-
son vs. King, 4 Cowan, 207; James et al rs. Langdon, 7 B.
Monroe, 658 ; Reed’s Will, 2 B. Monroe, 78; Revised Stat-
utes of Kentucky, 693.)

The rule of law, thus diversified, is amply sustained by de-
cided cases, and requires no argument. The law does not al-
low men to sound each other’s depths of reason and gauge
each other’s capacities, and say, this man or that has not ca-
pacity to make a rational distribution of property, or to take
a comprehensive survey of an estate. If the testator remem-
bered the objects of his bounty, knew what he had to give
them, and understood how he meant to divide it, the law is
satisfied. Was the testator within this rule of law when he
made his Will?

The instrument itself is the first and highest evidence, if it
is proven to be the work of the testator. This instrument,
according to all the proof on the point, was dictated by him-
self alone, without any one to refresh his memory or suggest
an idea. After a rough draft was made, he read it carefully

over and made such intcrlincations as he thought proper, and
282 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

submitted it to his wife, his father and mother. None of their
suggestions commended themselves to his judgment and he
refused to make any alterations. He ordered it to be en-
grossed, and, after engrossment, read it over carefully again,
and said it was all right. There can be no doubt, then, that
this instrument is an exact type of his mind at the time.
Does it, on its face, indicate testamentary capacity, according
to the rule laid down?

First: Does it show that the testator called to mind all the
objects of his bounty and knew who they were and what re-
lations they sustained toward him? He begins with his wife,
and declares it to be his will that she shall take, in her own
right, so much property as the law allows her in the several
States where it lies, and no more. He calls Mrs. Jenkins to
mind, and describes her as the only surviving child of his mar-
riage with Caroline Canfield, remembering that her sister, Mrs.
Shoemaker, was dead. He calls to mind John H. Piatt as his
only surviving child by his marriage with Harriet Lanman,
knowing that there was no other: and, to these two children
he gives specific devises. He then calls to mind his seven
young children, by his third marriage, one by one, naming
them all in regular succession, from the eldest to the youngest.
With this instrument of writing before the eye of the court,
the opinions of doctors (from what they saw of him three days
afterward and from what they imagined to be his mortal dis-
ease), that he had not capacity to call to mind the objects of
his bounty and understand the relations between him and
them, are “as nothing and vanity.”

Second: Does it show that he knew what property he had
to distribute among his family? It appears, from the Will,
that he had property in three States—Ohio, 'Kentueky and II-
linois. His plan of distribution made it necessary that he
should describe, specifically, three items only. The house and
lot which he gave to Mrs. Jenkins he describes, from mere
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 283

memory, as “a lot of ground with the improvements thereon,
“thirty feet square on the south side of New street, about
sixty feet east of Sycamore street, in the city of Cincinnati,
Ohio, whereon is erected a three story brick dwelling-house.”
He describes the property he intended for John, as “my en-
tire law library, now in his possession, in the city of Cin-
cinnati, Ohio, this being all I intend to give to my said
son.” He describes the property set apart as a residence for
his widow and children, and, ultimately, to be given to one of
his sons who shall choose the occupation of a farmer, as “ the
homestead farm at Federal Hall.” He describes that which
is not specifically devised, as “all the rest and residue of my
estate, real, personal and mixed, in Ohio, Kentucky, Illinois,
or elsewhere.” Can anybody read this will and pretend
that its author did not know what property he had to dis-
tribute among his family? Ignorant people, who have the
words “comprehensive survey ”’ put in their mouths by sug-
gestive questions, without themselves “ comprehending” what
a “survey” means, may say what they may; but here is the
internal evidence before the eyes of the court.

Third: Does it show that the testator understood the man-
ner in which he wished this property to be distributed among
the objects of his bounty? He gives Mrs. Jenkins a life-estate
only in her portion, with remainder to her children; provid-
ing that if she shall die without children surviving her, the
estate shall revert. He gives the law library to his son
John outright, declaring this to be the only portion he intends
to give him. He selects the homestead farm, at Federal Hall,
where the ashes of his grandfather repose and where he him-
self was born, as a residence for his family, where his widow
may reside and his children may be reared “ free from the
contaminating influences of towns and cities.” He author-
izes his executrix to sell real estate, if necessary, to defray the
expenses of educating his children, but for no other purpose
284 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

whatever. He appoints his wife executrix, guardian and trus-
tee, and commits the property of the minor children to her keep-
ing during their minority, so that she may the better control
their persons by having also the control of their estates. He
orders his estate, after the purposes of maintenance and edu-
cation are accomplished, to be divided among his seven minor
children (naming them), or the survivors of them, in cqual
proportions, share and share alike. He authorizes and em-
powers the trustee to apportion and set off, by deeds or other-
wise, the said estate to the said children, as they shall come
of lawful age, according to her sense of justice and equality.
He orders “ the homestead farm at Federal Hall to be set off to
one of his sons who shall choose the occupation of a farmer.”
Apprehending that a second marriage of his wife might, indi-
rectly, work injustice in the distribution of the estate, or en-
tangle his children in disputes with a stranger, he takes the
executorship, the guardianship and trust out of her hands, in
the event of a second marriage. Is it safe, with this instru-
ment before him, for a man of sense to say that the testator
did not understand the manner in which he wished to dis-
tribute his estate among the objects of his bounty ?

Take, then, the will itself, and try it by its own internal
evidence, and see whether its author had what the law re-
gards as testamentary capacity.

It is out of the question that any scrivencr, without the
dictation of a clear and powerful mind, in the full possession
of all its faculties, acting on a plan fully matured before-
hand, could, in one day and on three pages of cap, concen-
trate so completely the evidence of all the capacity of mind
which the law requires to make a valid last will and testa-
ment.

The next and the most natural and important inquiry is,
how did the testator conduct the common and ordinary affairs
of life before, at and after the time when he made his will?
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 285

And, to be certain of including the time when Mr. and Mrs.
Donn Piatt returned from Europe, and Mr. Smith returned
from Washington City, let us extend our inquiries back a
year. During that time he was constantly engaged in busi-
ness, either as attorney for others or in the management of
his own private affairs. He bought and sold property;
pulled down old houses and built new ones; built fences and
tilled fields; planted orchards and cultivated gardens; and,
being in the transition state between the lawyer and the
farmer, his mind was at once burthened with the labor
of closing up his old business and opening up the new.
With all this on his hands, it is impossible it should have
escaped notice, if there was any serious falling off or defect
in his business capacity. One who leads the life of a hermit,
excluded from the busy world, might have great mental aber-
rations, nay, might be insane outright, and no one know it,
simply because he came in contact with no one. But in a
populous city, employed in a profession which, of all others,
exposes one to observation, and which, of all others, tests
most rigidly the power and perspicacity of the human mind ;
in daily conflict with hundreds of other lawyers; it is incon-
ceivable that any material impairment should have taken
place in the testator’s mind, within the last year, without
being noticed by his professional brethren, And yet, among
several hundred lawyers who were well acquainted with him,
no one is found who can say that he discovered any change:
the uniform testimony of the legal profession is, that, down
to the day he was disabled by the wound in his knee, his
mind was as clear as it ever had been.

Just one year before he made his will he was defending
Harrington against a charge of murder; and, though in fee-
ble health then, tried the case with his usual ability. A few
weeks before he received his wound, he tried the case of Gar-
rett & Cottman vs. Peacock & Son; and, though he was so
28@ M. E. PIATT, EXEC’X, vs. JOHN H, PIATT ET AL.

weak in body that he sat upon the table to make his argu-
ment, he tried the case, as his client swears, “with very
marked ability.” Still later in life he appeared as a witness
before Judge Spencer, in the Humble case, and underwent a
long and critical examination, in which, as Judge Spencer and
other witnesses swear, he testified with clearness of mind and
memory. During the whole of this year he was cngaged,
more or less, in the practice of his profession ; and the uniform
testimony of the judges before whom he practiced, and of
the counsel with whom and against whom he was engaged,
is, that his mind was as clear and vigorous as ever.

It is said, by Hiram Robinson and Donn Piatt, that, in the
case of the British Consul, he did not acquit himself as he
might have done. That is quite possible. Mr. Piatt was not
always equal to himself; and, on this occasion, may have
fallen below some of the intellectual giants who struggled
against him. But it is a matter of history that he won his
case; and that is more’ than the best of us can always do.
But the matter now in hand is not to show that he was a
great man or a profound lawyer, but to note the fact, that,
through the whole of the year in which it is pretended he
was a wreck, he is not shown to have mismanaged one mat-
ter of business, whether connected with his old business as
an Ohio lawyer, or his new business as a Kentucky farmer.

His uncle Abram, indeed, mentions an instance which
looked to him as if the testator was crazy. He purchased,
in Cincinnati, a boat load of old doors, windows, shutters,
and other parts of old houses, and carried them down to his
farm. It is well known to everybody who has ever lived in
a growing city, where thousands of old houses are pulled
down and thousands of new ones built up every year. that
doors ready painted, windows ready glazed, cupboards all
complete, and every otber varicty of joiner-work, of better
material and workmanship than modern builders put up, can
M. E. PIATT, EXEC’X, ts. JOHN H. PIATT ET AL. 287

be purchased at auction for all but nothing. If Mr. Piatt,
having no use for such things, had gone about purchasing
them on speculation, he would have made himself ridiculous.
But Federal Hall, the mansion of his grandfather, had been
burnt out, and was to be refitted. His office and library-
room, his farm-house and out-houses of various kinds, were
to be built; and these materials, which troubled the mind of
his uncle so much, supplied all these purposes at one-fourth
the ordinary cost, and left the fragments, worth all he had
paid, for kindling wood. This instance is worthy of notice,
only because it is a fair sample of the facts on which the wit-
nesses in this case seek to impeach the sanity of one of the
most sagacious men that ever lived amongst us.

After Mr. Piatt suffered the wound in his knee, he contin-
ued to transact business, whenever he was not racked with
paroxysms of pain, to the last day of his life. During his
illness, from day to day, he gave orders to his foreman and
instructions to his agent in the same clear and rational man-
ner he had always done. He settled old accounts, and drew
checks on his bankers to the amount of $3,841.95; and, on
the very day he died, he made a loan of several thousand
dollars to his brother-in-law, Gen. Worthington. And what
is remarkable in all this is, that not one of the witnesses has
been able to recall or state a single instance of a bad bargain,
or a foolish, weak or improvident transaction in which he
was engaged, from the day his brother Donn came home
from Europe, and his kinsman Smith came home from Wash-
ington, down to the hour of his death. His peculiar views
about government, about education, about religion, about
anything and everything except business, are constantly put
forward to prove that he lacked capacity for business.

There is one other consideration bearing on the question of
testamentary capacity, which may as well be stated here as
elsewhere: it is, the light in which the testator’s friends and
288 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

family, but more especially the persons now contesting his
Will and the witnesses on whose testimony they rely, must
have regarded him. And, for greater brevity, this inquiry
shall be confined to the interval of time between the wound
he received in his knee and his death.

His vencrable father, whose understanding and integrity
are not yet impeached by his children, did not hesitate to
transact business and settle accounts with him; and he states,
under oath, that, if he had doubted his capacity, he would
not have transacted business with him.

His son-in-law, Thomas C. Jenkins, one of the contestors
of the will, visited him on the 11th of May, eight days be-
fore the will was made, and, without questioning his sanity
at that time, received his check for $500.00, by way of souve-
nir to him and his wife.

On the 18th of May, the day before the will was made, the
principal contestor and his principal witness, John H. Piatt
and Donn Piatt, were at Federal Hall on business. Donn
has not given us an account of the condition of his brother’s
mind on that day; but he has left record evidence of what
both he and John thought about his capacity for business.
For the purpose of setting aside a judgment, in the Superior
Court of Cincinnati, against Mr. Piatt, they prepared a long
affidavit, in John’s hand-writing, setting forth minutely a
series of facts which transpired when Donn was in Europe
and John in college—facts which could be known only to
Mr. Piatt himself. Amongst other statements contained in
this affidavit, are these: That, by reason of his wound, he
had been unable to attend court’ in Cincinnati; that his own
evidence in the case was material; and that, if the judgment
were opened up and the cause set for a future day, he hoped
to be able to give his deposition, or to attend court in person,
if the court should prefer it, and give his evidence. An oath
to this affidavit was administered by John as notary. The
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 289

affidavit was filed by Donn, as attorney for his brother. And,
on this, Judge Storer opened up the judgment.

That all parties meant what was said, when a hope was
expressed that the affiant would be able to come to Cincin-
nati and testify in the case, if the court should su order, is
clear from two other instruments of evidence. John, in a
letter to his sister Belle, after his father came to Cincinnati
to take the baths, informs her that, to have the benefit of
Dr. Murphy’s treatment, he is either coming to Cincinnati or
Dr. Murphy going to Federal Hall once a week ; and expresses
a preference for the former, because he is now able to travel,
and the trips will do him good. And Donn, in a letter to his
brother, after he returned to Fedcral Hall, expresses a hope
to see him again before long at his house in Cincinnati.

The only conclusion which can be drawn in relation to this
affidavit, consistent with decency, honesty, or fair practice, is,
that, at the time it was drawn ‘up and sworn to, these gentle-
men believed the affiant was of sound mind and memory,
sufficient to remember and state the facts set forth in it; that
he was competent to give a deposition or to testify in a court
of justice, and that there was a reasonable prospect that he
would be able, shortly, to attend court in Cincinnati for that
purpose. If they did not believe this, John committed a
melancholy blunder in drawing up a statement for a crazy
father, which he could not have understood, and part of
which he knew to be false, and in going through the solemn
mockery of administering an oath to him. But John prac-
ticed no such wickedness. He was too young to be so cor-
rupt. He believed his father was capable of remembering
and understanding the statements to which he swore. He
believed there was a reasonable prospect that he would be
able to attend court in Cincinnati. He believed that, when
he did attend court, he would be competent to testify.

Donn’s position, if they did not so believe, was still worse.
290 M. &E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

First, he was a party to the making of a false statement, under
oath, by a crazy brother. Second, he practiced a fraud on
the court by presenting this statement as a genuine affidavit.
It does not mend the matter to say, as Donn now says, that
this paper was intended only for a professional staternent. It
only suggests another fraud, to say that a paper inconsistent
with truth, which the court received at his hands and acted
on as a true affidavit of the party, was, in fact, only intended
as a professiona] statement of the attorney. And, if it was
a professional statement of an attorney, what then? Ought
not the professional statement of an attorney be true? The
professional statement of a lawyer, like the honor of an
English Peer, is received in court as equivalent to the oath
of another man; and, if a lawyer is known to abuse this high
privilege, it shakes one’s confidence in his testimony : because
one cannot help asking the question, which is the more rep-
rehensible act, extracting a false and inconsistent statement
from a crazy client, or making it himself. View this matter
as we may, Donn’s explanation is unsatisfactory. There is
but one view of it consistent at once with honor and fair-
dealing on the part of these two gentlemen, and of Christian
charity on our part; and that is, that both of them acted fairly
and in good faith at the time, and that Donn’s memory has
since failed him.

This is not the first instance of its kind, in the history
of this case. Six or eight weeks before Mr. Piatt’s decease ;
before the wound in his knee was fully healed; this witness
was urging upon him the propriety of giving his deposition
in the old chancery ease of A. 8. Piatt and the Dunn heirs
against Longworth and the Piatts, a case in which the facts
were old, complicated and obscure, but important. In speak-
ing of this, Dr. Harding says: “TI was also present at an-
other time, when his father and Donn Piatt, his brother, and
I think his son John I. Piatt were present; and they were
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 291

urging upon him, especially Donn Piatt, the propriety of
having his deposition taken in a business matter, the exact
character and details of which I did not very fully compre-
hend. My recollection is, that Donn Piatt urged the pro-
priety of having an attorney, I think Mr. Johnston, of Cin-
cinnati, down, to take his deposition, in the case or business
matter referred to. I think it was in reference to some
property in Toledo, or Cincinnati, or perhaps both.”

Let us pause for a moment to inquire, whether it is pos-
sible, that the father, the brother, and the son of this sick
man would have thus urged the taking of his deposition, if
they had not considered him capable of understanding and
transacting business; and whether Donn Piatt does not strain
at a gnat and swallow a camel, when he travels so far round
to explain away the affidavit of the 18th of May, and lcaves
his conduct on this occasion unexplained.

Again. We find Thomas K. Smith, who professes, on his
return from Washington, to have found the testator “a perfect
wreck of his former self;” when he was about to suffer the
last and heaviest calamity of a politician; when he was in
dread of losing his office, through the influence of Senator
Pugh and the condemnatory vote of the U.S. Senate ; flying
to this “wreck,” this imbecile, this maniac, for counsel and
assistance.

After the will was made, these people still treated him as
if they considered him competent to transact business. Donn
Piatt admits, that, before the testator came to his house on
Broadway, he told Mr. Johnston that he meant to re-write
the will, and get Archbishop Purcell and some other priest to
speak to him about making a different disposition of his
property. The happy joke about knowing the influence
Father Driscol had over him, does not mend the matter.
Unless he believed his brother competent to make a will, it
would have been knavish, through the influence of Bishop
292 M. E. PIATT, EXEC’X, vs, JOHN H. PIATY ET AL,

Purcell, or Mr. Driscol, or anybody else, to persuade him to
make one.

On this same visit to Cincinnati, as we have seen elsewhere,
Bishop Purcell did endeavor to induce the testator to make a
different will. His mother made the same endeavor, in the
presence of Mrs. Louise Piatt, who, as an honest woman,
ought to have put an end to such importunities practiced
on a sick man in her own house, unless she believed at the
time, that he was competent to do the act which he was
importuned to do. I am loth to think, that a man of Arch-
bishop Purcell’s high character would use his influence to per-
suade a man in a state of imbecility into an act requiring the
exercise of reason.

What further do we find? After the testator’s return to
Federal Hall, Donn writes him a business letter, asking him,
on behalf of Gen. Worthington, for the loan of a large sum
of money; and, on the day of his death, only a few hours
before he expired, he draws up a check for $2,322.50, the
proceeds of the loan, aud obtains his brother’s signature to
it; and the money is paid on it. This letter speaks for it-
self and cannot be explained away. That part in which he
expresses the hope of seeing his brother again, shortly, at his
own house, may, as he says, have been written merely to cheer
him up; but the business part of it was written to obtain
money.

The statement of the witness, that this loan had been ne-
gotiated a considerable time before, does not satisfy the mind
on this point. The letter contains internal evidence that
the loan had not been so negotiated. In the first place, it
does not make the slightest allusion to previous negotiations.
In the second place, it shows that the witness had been en-
deavoring to obtain the loan elsewhere ; that he had applied
to Rev. Edward Pureell and failed; that he had applied to
T. D. Lincoln and failed; that he had applied to some one
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 298

else and failed, and that this last application was made upon
the suggestion of his father, after all others had failed, And
if the statement that the loan had been negotiated before be
true, what then? We are only carried back to the time, or
about the time the will was made. If the arrangements
were made by the, father, they were made the same week,
for he had been there for a week at that time settling ac-
counts with the testator. If they were made by the witness,
they were made the day before, because he was at Federal
Hall on the 18th of May attending to business. Whether
they were made a day, or a week, or a month before the tes-
tator died, is not very material. They were made after he
received the wound and before he died; so as to bring the
transaction within the period in which this witness alleges
he had no capacity for business.

What further? The night the testator died, Dr. Mudd,
sick and worn out with watching, went to his room for a lit-
tle repose; and there he found Donn Piatt writing a codicil
for J. W. Piatt to sign. He asked the Doctor’s opinion
whether his brother was in a condition of mind to execute it.
The Doctor expressed a wish that it could be done, but told
him it was too late. Why should he write this codicil un-
less he believed the testator capable of executing it under-
standingly? Why should he propound such a question to
Dr. Mudd, but that he knew his brother was dying, and
wished to know of a medical man, who had just come from
his bed-side, whether he had yet vigor of mind to compre-
hend what he was about to ask him to do? He says he
wrote this codicil at Dr. Mudd’s suggestion. This is entirely
inconsistent with the Doctor’s account of the transaction, and
is but a child’s apology at best. How does it mend the mat-
ter, if Dr. Mudd did make the suggestion? This full grown
man of forty years, was not bound to stultify himself by
withdrawing from his brother’s death-bed to a solitary room
294 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

and drafting an instrument of writing which he knew could
serve no purpose, merely because Dr. Mudd suggested it.

Whether J. W. Piatt was sane or insane during his last
illness, one thing cannot be denied: his friends and rela-
tives, including both those who contest the will as parties,
and those who contest it as witnesses, dealt with him as if
they believed, at the time, that his mind was sound.

VIL

Partial insanity, or monomania, is not sufficient to invali-
date a will, unless it appears, from the evidence, that the will
was the product of an insane delusion, under which the tes-
tator is proved to have labored at the time of its execution.
Nor will prejudices against one whom the testator is sup-
posed to have done injustice in his will, though strong and
unreasonable, be sufficient, unless they were founded upon
some insane delusion, proved to have existed in the mind of
the testator at the time the will was executed.

(Shelford on Lunacy, 41; 1 Jarman on Wills, 58, 59—48,
4462 to 64; Greenwood vs. Greenwood, 3 Curtis, Appen-
dix 1; 3 Curtis, Appendix, 30, 31; White vs. Wilson, 13
Vesey, Jun., 87; Dew vs. Clarke, 3 Adams, 79; Shelford on
Lunacy, 296, 297; 1 Adams, 279; 2 Adams, 102; 3 Adams,
79; Boyd vs. Eby, 8 Watts, 66; Falleck vs. Allison, 3 Hag-
gard, 527-547; James et al. vs. Langdon, 7 B. Monroe, 198;
Reed’s Will, 2 B. Monroe, 80; Singleton’s Will, 8 Dana,
321.)

Partial insanity, or monomania, is defined to be an insane
delusion on one subject, while the mind is rational on all
others. But what is an insane delusion? It is not every
delusion that is an insane one. It is not error in judgment ;
it is not want of proper information ; it is not false informa-
tion. That which the law regards as an insane delusion is,

where a person, from the disorder of his mind, believes a
M. B. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 295

thing to exist which has no existence. Mr. Jarman relates
two cases to illustrate the difference between insane delusions
and other delusions:

1st. A man is sick of fever, and’ his brain affected. Just
as insanity takes its ground, his brother administers to him
a draught of medicine, which, from the disordered state of
his mind, he believes to be poison. We recovers, both from
his fever and his insanity, except this one insane idea, that
his brother had poisoned him; and, acting upon this idea,
when he comes to make his will, he disinherits his brother.

2d. A clergyman of the Established Church, together with
all his household, are poisoned, or seem to be poisoned ; and
he takes up the belief that his kinsman, whose office it was
to collect his tithes, has poisoned him and his household by
bringing him unwholesome and poisonous provisions. There
is no satisfactory proof of his kinsman’s guilt in the matter,
but he adheres to the belief; and, acting upon it, when he
comes to make his will, he disinherits his kinsman.

Allowing both these parties to have been equally innocent,
there is yet this broad distinction between the action of the
two testators: the delusion of the former was an insane de-
lusion—the delusion of the latter was an error in judgment
on the weight of evidence. The former had no foundation
for his belief, except insane delusion. The latter had some
foundation for the belief that he was poisoned, and circum-
stances pointed to his kinsman as the poisoner.

In utter despair of proving a case of general derangement
or imbecility of mind on the part of the testator, the Broad-
way junto assume that he was partially insane—he was a
monomaniac on the subject of the Catholic religion, This is
the Alpha and Omega, the beginning and the ending of all
that Donn Piatt, Louise Piatt and Thomas K. Smith have to
say. Every fact they state, and every opinion they express,

comes home and clusters around this one central idea—he
296 M. E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL,

was a monomaniac on the subject of the Catholic Church
and the Catholic religion.

What insane delusion was it that possessed this man’s
mind in regard to the Roman Catholic Church? Was it
that he believed the Church to be infallible? Was it that
he believed in the Apostolic Succession? Was it that he
believed in the Seven Sacraments? Oh, no! What then?
Why, his zeal was so extravagant as to amount to madness!
He acted under an insane belief that he was divinely called
to promote, right or wrong, the interests of the Church, and
to make converts to the Catholic faith!

I have known intimately and conversed frequently with a
religious monomaniac, who, for half-a century, constantly
acted under an insane delusion that he was divinely called
to preach the Gospel. He was a truly religious man, and,
at first, desired to enter the ministry in the Church wherein
he was converted. But no one, except himself, thought he
was called to preach. He must and would preach; but. his
brethren would not allow him to preach; and he withdrew
from them and preached by Divine authority alone. He
carried a copy of the Scriptures in his bosom, and read, and
annotated, and marked, and folded down, till he became a
walking concordance, and could in a moment turn up any
text, appropriate or inappropriate, to prove a point. Still
his ministry was not attended with such success as to prove
his mission Divine. He never made a convert in his life,
nor did any one ever attend with seriousness to his preach-
ing. Still he preached on, nothing daunted by his want of
success. He would not work, though a robust old man and
a skillful mechanic, for the one powerful reason: God had
called him to labor in his vineyard. He was too poor to
own a horse; and, as he grew too old to itinerate on foot,
his own house became his chapel, and here he held forth

daily, with or without an audience, save a good old wife,
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 297

who, like the good Kadijah, believed the prophet when no
one clse would. With poverty around him and starvation
staring him in the face, he trusted for his bread at the hand
of Providence, with a faith worthy of Elijah, and sang with

raptures :
“His saints what is fitting shall ne’er be denied,

So long as ’tis written, the Lord will provide.”
Here was a well defined case of religions monomania.

But what fact is there in the life of J. W. Piatt to show
that he was a religious monomaniac? ‘Here the rule of law
applies with peculiar force: not the opinions of the witnesses
only, but the facts, must be given.

Mrs. Louise Piatt tells us that “he could not talk for ten
minutes, on any matter, before leading the conversation into
religion. I never saw him, that our conversation did not
ultimately lead into this same theme. It was the same with
others when I was present. He seemed to be imbued with
the belief that such was his mission. We have conversed
hours on Catholicism.”

The same idea is held out by Donn Piatt and T. K. Smith ;
that the testator was a sort of spiritual Don Quixote, going
about in quest of adventures, and laboring under an insane
delusion that he was called of God to the work of making
converts to the Church. If he had labored under an insane
delusion that it was his duty to make converts to the Church,
he would unquestionably have been heard from in a city of
two hundred and fifty thousand inhabitants. Ignatius Loy-
ola himself had not a stronger will, a more ardent temper,
a more untiring industry, than SW. Piatt. He was a man
in easy circumstances, could command money at pleasure,
and had no excuse for idleness. What was the extent of
his missionary labors? How many converts did he make?
How many did he attempt to make? To whom did he speak
on the subject? Whom did he attempt to force into the
298 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

Catholic Church? He tried to persuade his sister Louise to
become a Catholic. He made a similar endeavor as to his
brother A. Sanders Piatt. He recommended religion, instead
of politics, to T. K. Smith, and advised him to read certain
religious books. He made an affectionate appeal to his fa-
ther to come back again to the Chureh from whence he had
strayed. And he advised his son to investigate the claims
of the Church. This is all—absolutely all! Seventy-one
witnesses have been examined—all of them, or nearly so,
his intimate acquaintances—and not an instance, except these
FIVE, can be found. Even his brother Donn, who needed
religion as much as most people—his uncle Abram, who
needed it almost as much—and his affectionate cousin Ben,
who was about his person so much, and did him so many
offices of kindness in his last days on earth—were never
spoken tp on the subject. If an carnest man recommends
the religion he believes, and in which he hopes for salva-
tion, to five only of his nearest relatives, it is absurd to
denounce him as a religious maniac. Taking all the testi-
mony together, and allowing some degree of credit to other
witnesses, there perhaps never was a religious man less ob-
trusive in the advocacy of his own religious views, or who
meddled less with the views of others. Judge Storer, a wit-
ness on the other side, who knew him intimately for thirty
years, and down to the day he was disabled by the saw-cut
in his knee, says: “I never had any particular conversation
with him on religious subjects. I have heard him, in the
general, express his opinions on his peculiar faith ; but never,
that I recolleet, was he obtrusive or disposed to proselyte.
He was very warm in the mode of his expression, but never
to my knowledge offensive to others.” Judge Spencer says:
“T was intimately acquainted with the late Jacob W. Piatt,
from the earliest recollections of my boyhood—say forty
years.” Again: “T am not a member of the Catholic
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 299
> ?

Church, and I do not know whether Mr. Piatt was or was
not in the habit of using exertions to proselyte to that Church
among his intimate friends. He never exerted himself to-
ward me in that matter; and I have heard nothing on the
subject in regard to others.” Mr. Van Matre, who knew
him intimately and practiced law with him upward of thirty-
five years, says: “ During all my acquaintance with him, I do
not recollect of his ever attempting to influence my religious
opinions, nor the religious opinions of others.” The Rev.
Edward Purcell, who had been well acquainted with him
for twenty years, says: “I do not think that he was enthu-
siastic, much less fanatical, in his religious views; but he
believed firmly and was very ardent. Such he appeared to

me.”

And this is the general tenor of the proof, wherever
the minds of the witnesses were directed to the subject.
But it is useless to compile all the evidence on this point.
Enough is already done to show that, in the imaginations of
these three witnesses, the interest which the testator felt in
the religious welfare of four or five of his own family, is
magnified into a general madness on the subject of relig-
ion—a kind of rampant knight-errantry in religion sufficient
to derange his general understanding and disqualify him for
business.

But to establish the religious insanity of the testator, it
is said he made harsh and unnatural allusions to his own
father in his religious controversies, consiguing him to per-
dition, and so on. Smith, Abram S., Donn and Mrs. Louise
Piatt, all relate similar stories about this—the instances re-
ferred to, doubtless, being identical. This will turn out an-
other exaggeration of the truth, and a review of the lady’s
statement will show that the witnesses, and not the testator,
lugged their venerable father into these controversies.

To understand this matter rightly, we must first under-
stand the difference of religious faith between two divisions
300 M. EB, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

of the Piatt family. One division are orthodox Christians
after the order of the Roman Catholic Church. Another
division are Free-thinkers after the order of Jefferson and
Franklin. The Roman Catholic division, at the head of
which stood Jacob, believe, as other orthodox Christians do,
in salvation through the atonement of Christ and the ordi-
nances of the Church. The Free-thinking division, compris-
ing the old gentleman and these witnesses, expect salvation
through their own good works.

Here, then, was the source of contention. Mr. Piatt de-
sired the salvation of his brethren and sisters through what
he conceived to be the only door; and they expected to
climb up some other way. The principal argument used by
them, was, to remind him how good a man his father was,
and tell him that his ideas of salvation would exclude his
own father from Heaven. In this way the father was dragged
in, not by Jacob, but by his brothers and sisters.

If ever any man merited Heaven by truth, honor, justice,
charity and benevolence, it is Benj. M. Piatt, Sr. In all
these things, his life might put a majority of Christian pro-
fessors to the blush; so that, while one cannot excuse the
coarseness and indelicacy of such an argument, it must be
admitted to be an argument ad hominem of great power.

But J. W. Piatt was too well grounded in the cardinal
doctrine of Christian faith to expect God to provide one
plan of salvation for B. M. Piatt and another for the rest
of mankind. He desired for his father something more than
mere morality, before he should be called to die. He de-
sired for him an interest, through faith, in the blood of the
Redeemer. And hence, the expression which shocked his
friends so much: “The only hope I have for father, is that,
before he dies, he will be convinced and kiss the cross, if it
should be on his death-bed.”

The doctrine of vicarious atonement is a great mystery,
M. E. PIATT, EXEO’X, vs. JOHN H. PIATT ET AL. 3801

and faith in it is always expressed in figurative language.
To lay hold on the Cross—to bow to the Cross—to hang
upon the Cross—to embrace the Cross—to take up the Cross
—to. lean upon the Cross—to kiss the Cross—are a few of
the expressions used in all orthodox Churches; and “no
Cross no Crown” has been a maxim for hundreds of years
among Christians. It is to this faith in the Cross, or what
was enacted on the Cross, our Lord alludes when he says:
“As Moses lifted up the serpent in the wilderness, even so
must the Son of Man be lifted up, that whosoever believeth
in him should not perish, but have eternal life.”

This leads to the consideration of another matter put for-
ward to prove the testator insane about religion. Mrs. Donn
Piatt relates one occurrence, the only thing approximating a
fact which either she or her husband can remember to have
taken place, while the testator was at their house on Broad-
way for the last time. This was the last appeal which Mr.
Piatt made to his venerable father to return to the Church.
In reply to this plain question: “ Will you please to repeat
some of these conversations, in his own words, as nearly as
you can?” she says: “It would be quite impossible for me
to give even the substance of disconnected sentences, such
as Mr. Piatt indulged in when speaking on religious subjects.
I was present at a scene which took place at my own house
a few days before his death, which will, perhaps, better illus-
trate what I am asked to explain, than a repetition of lan-
guage. His mother and father and my husband and I were
present, when he began talking to his father on religion.
His words and manner were such as to impress all present
with the painful belief that they were the insane utterances
of a mind enfeebled by disease. He cried like a child, and
nervously played with the brass of his rosary. Every one
present forbore answering him for fear of increasing his ex-
citement. At one time, when my husband began speaking,
302 M. E. PIATT, EXEC’X, vs. JOHN WU. PLATT EY AL,

his father, Benjamin M. Piatt, thinking that he was going
to reply, held up his finger in a deprecatory manner.” She
is asked to give the testator’s words: she gives a description
of a mere pantomime—a dumb show, in which not one word
or idea of the testator is either remembered or repeated—
such an account as might be expected from one who was
deprived of the sense of hearing.

There is a prose version of this same story by Benjamin
M. Piatt, Sr., which it is proper to give in his own words,
before further commentary: “As I stated before, he was a
devout Catholic, as I learned from himself, his conduct, ac-
tions, ete. The only thing he ever said to me on the sub-
ject, was, that I, once having been a Catholic and left. the
Church, he wanted me to return to it; and the last time he
ever broached that subject to me was at my son Donn’s
house on Broadway. I think Bishop Purcell was present,
but will not be certain. I told him I could not comply
with his wishes without being a hypocrite, and I knew he
did not want me to be that. * * He said that he wished
me to return to the Church. That it was safe as to salva-
tion; and that I was at the head of a large connection, and
it would have a beneficial influence, having children and
grandchildren, and all that kind of talk.”

There is an exact concurrence of time and place between
the young woman and the old man—they both refer to the
same interview. But there are points on which they differ
widely: the young woman declares herself unable to remem-
ber even the substance of what the testator said—the old man
remembers and states, not only all the substance, but most of
the words which he used. The young woman says: “ His
words and manner were such as to impress all present with
the painful belief that they were the insane utterances of a
mind enfeebled by disease.” The old man was impressed
with no such “ painful belief;” for he testifies, elsewere,
M. E. PIATT, EXEC’X, v8. JOHN H. PIATT ET AL. 3038

_ that, except when he had his paroxysms of pain, he never
discovered in the testator any signs of mental aberration.
The young woman states that “every one present forbore an-
swering him for fear of increasing his excitement ’—the old
man states that he did answer him, and he gives us the an-
swer: “I told him I could not comply with his wishes with-
out being a hypocrite, and I knew he did not want me to
be that ;” and this answer seems to have satisfied him. Now,
while the laws of gallantry may require us to admit that the
young woman had the more mature judgment; truth requires
us to admit that, in the matter of memory, the old man has
greatly the advantage over her. To get rid of the simple,
plain and truthful narrative of the good old father, and to let
Donn in with an adverse statement of this religious inter-:
view on Broadway, new testimony is introduced, at the last
hour, to prove that the old gentleman has lost his memory
and is not fit to be a witness. Doubtless, his memory, as to
minute particulars, is not so full as it once was. In youth,
the perceptive and retentive faculties are stronger than after
the reflective period of life comes on. As men grow older
and wiser, they no longer burden their memories with un-
profitable details, as they once did. But are they less fit to
testify on that account? Unless the memory, from disease,
becomes fallacious, may not the narrative of the witness be
relied on as far it goes? Ought not the witness, called to
impeach the memory of another, be able to state some in-
stance in which he has known his memory to be oblivious,
false or fallacious? If he cannot recollect such an instance,
he is himself unfit for a witness. Doubly unfit—because,
first, his own memory has failed him; and, secondly, he is
reckless enough to swear to what he does not know.

None of these witnesses has given us an instance; and we
must be excused from giving credit to their mere opinions,

Moreover, there is a conflict of witnesses as to whether the
20
304M. E. PIATT, EXEC’X, vs. JOHN H. PLATT ET AL.

old gentleman’s memory has materially failed. To settle this
conflict, it is proper to look into the old gentleman’s testimony,
and see what are the internal evidences. He is grouped
with several other witnesses, between whose testimony and
his, so far as it goes, there is an exact agreement. He is con-
tradicted in no part of his testimony till he comes in contact
with the Broadway junto—who contrive to contradict every-
body, themselves among the rest. Besides the internal evi-
dence which his deposition furnishes, we put in evidence
three of his letters to his attorneys, Johnston & Carroll, on
business. If any one will read these letters over carefully,
and pretend that they do not evince a clear mind, and a good
memory for a man at any time of life, then the idea of inter-
nal evidence may as well be yielded up to the fanciful opin-
ions of witnesses.

There is but one of these impeaching witnesses whose
position puzzles me: that is Mrs. Gen. Worthington. This
lady is the sister of the testator, and must have known the
condition of his mind as well as any other member of the
family. Why was she not asked to testify to this point at
once, instead of going round about to impeach the memory
of her venerable father? Hush! Gen. Worthington had
borrowed several thousand dollars of the testator the day
before he died, and it would have been indelicate for his wife
to have testified on this point!

Parties cannot, in this way, get rid of the old gentleman’s
account of this religious interview on Broadway. It was to
him, as a man who knew how deeply religious feelings take
hold of the affections, a solemn and affecting scence, such as
he would not be likely to forget, even if his memory was bad.
His ability to relate the arguments on both sides, after both
these young people have forgotten them, proves that the
occurrence was deeply rooted in his memory: and his simple

» narrative is not likely to be shaken bythe coarse, rude and
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 805

unnatural version of Donn Piatt, added to the highly colored
and poetic account of his wife. :

But let both accounts stand, so far as they can stand
together. Let it be conceded that these two witnesses give
the manner, and the old man the matter of this interview;
what does it amount to? Simply this: a man of ardent, im-
petuous temper, knowing that he is about to die; believing
honestly in the truth of his own religion, and preferring his
own Church to all others; sees a father, whom he loves and
all but adores, standing outside of what his Church teaches
to be the pale of salvation; with tears in his eyes and emo-
tion in his bosom so strong as to shake his feeble frame, he
implores him to come back again to the fold from whence he
had strayed! If he had not felt this solicitude for his father,
he would have been false to all the better impulses of his
nature. If he had not made this last appeal he would have
given the lie to his own character as an ardent, impulsive and
earnest man.

Every one acquainted with the biography of pious men
and women, or who has stood by the death-bed of pious per-
sons in possession of their faculties, must be familiar with
scenes like this. Following Mr. Piatt’s life down still nearer
to its close, we find him calling around his death-bed all the
working men and women on his farm, and all the household
servants, to join with him in prayer; and, when prayers: are
over, we hear him giving them his parental blessing and
advice, and making a last effort to reclaim a poor drunkard.
We see him sending for a poor Irish woman, the wife of one
of his servants, on whose feclings his ungovernable temper
had inflicted some injury a year before, to ask her forgiveness ;
and, when she grants it, he asks her to pray to God that he
may have a smooth pillow. All these things accord with the
true character of the man, as modulated and attuned to the
tenderest touches of kindness by the power of religion.
306M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

Religion was the rock of offense on which his infidel rela-
tives stumbled. What was to Jacob W. Piatt “the power of
God and the wisdom of God,” was “to these Jews a stum-
bling block and to these Greeks foolishness.” If these wit-
nesses had stood by while Paul preached before King Agrippa,
relating his own religious experience and unfolding the sub-
lime mysteries of the Gospel, they would have joined Festus
in exclaiming, “ with a loud voice: Paul, thou art beside thy-
self; much learning doth make thee mad.” Or, if they had
been present on the day of Pentecost, when the Holy Ghost
descended on the congregation like a rushing mighty wind,
and when the mixed and miscellaneous throng, with cloven
tongues, began to declare “the wonderful works of God,”
they would have joined with the mockers, and said: “ These
men are full of new wine.” Or, if they had been present
when Nicodemus ‘came to Jesus by night, and heard the new
and startling announcement: “ Verily, verily, I say unto thee,
except a man be born again, he cannot see the kingdom of
God,” they would have joined with Nicodemus in the curi-
ous inquiry: “ How can a man be born when he is old? Can
he enter a second time into his mother’s womb and he
born ?”

Another of the badges of insanity, or religious monomania,
relied on by these witnesses, in support of their opinion, is
thus expressed by Mrs. Louise Piatt: “There is a priest, in
Fulton, by the name of McMahon, who professes to cure all
diseases in a miraculous way, by the efficacy of his prayers ;”
and she alleges that both the testator and his wife believed in
this man’s power.

There is a confusion and confounding of ideas here, into
which the witness falls, for want ofa better knowledge of the
Scriptures, to say nothing about theology. The power to
work a miracle is a supernatural power—a power to reverse
the order of nature—to say to the dead, “come forth,” to the
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 307

lame, “rise up and walk,” to the leper, “ be thou clean,” and
so on. Such was the power exerted by our Lord during his
three years’ ministry ; such the power conferred on his seventy
Disciples when he sent them out to plant his Church.

But such power is not claimed for the ministers of any
church at this day. Such a power is not professed by Father
McMahon, or any other Catholic priest. But there is a belief,
common to all Christians, that sick persons are sometimes
recovered by the power of God, in answer to the prayers and
faith of good people. This is what Father McMahon pro-
fessed: this is what Mr. and Mrs. Piatt believed. The very
fact mentioned by the witness, that “prayer” was the mean
employed, proves this, because prayer never was a mean by
which miracles were wrought. |

Mr. Piatt, then, and his wife, too, are proved to be insane
because they believed, in common with all pious Jews and
Christians, that, on behalf of the sick, “the effectual, fervent
prayer of a righteous man availeth much.” To one who has
basked and fluttered like a butterfly in the sunshine and
flowers of St. Cloud, and sipped the poison of infidelity from
the writings of Byron and Sue and Shelley, and come
home with a head filled with French philosophy, French
politics, French morality, French religion, French man-
ners and French fashions, this homely old idea is proof of
insanity.

But it is the doctrine of the Holy Scriptures. It was the
doctrine of the Jews.. It is the doctrine of the Christians.
It is at this hour the doctrine of all religious denominations,
from the Roman Catholic to the Unitarian Church. Let us
look for a moment into the authorities on this point:

I. Kings xvii, 17, we have this record : “ And it came to pass
after these things, that the son ot the woman, the mistress
of the house, fell sick; and his sickness was so sore that
there was no breath left in him. And she said unto Elijah,
308 M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

what have I to do with thee, O thou man of God? Art
thou come unto me to call my sins to remembrance, and to
slay my son? And he said to her, give me thy son. And
he took him out of her bosom and carried him up to a loft,
where he abode, and laid him upon his own bed. And he
cried unto the Lord, and said: O Lord, my, God, hast thou
also brought evil on the widow with whom I sojourn, by
slaying her son? And he stretched himself on the child
three times, and cried unto the Lord, and said: O Lord, my
God, I pray thee let this child’s soul come into him again.
And the Lord heard the voice of Elijah; and the soul of the
child came into him again, and he revived.”

Isaiah xxxviii, 1, we have this record: “In those days was
Hezekiah sick unto death. And Isaiah the prophet, the
son of Amoz, came unto him, and said unto him, thus saith
the Lord: Set thy bouse in order; for thou shalt die, and
not live. Then Hezekiah turned his face to the wall and
prayed unto the Lord, and said: Remember now, O Lord, I
beseech thee, how I have walked before thee in truth, and
with a perfect heart, and have done that which is good in
thy sight: and Hezekiah wept sore. Then came the word
of the Lord to Isaiah, saying: Go and say to Hezekiah, thus
saith the Lord, the God of David thy father: I have heard
thy prayer, I have seen thy tears; behold, I will add unto
thy days fifteen years.”

The Old Testament Scriptures abound with instances sim-
ilar to these ; and, when we turn to the New, they are replete
with instances of the power of faith and prayer in healing
the sick. James v, 14, we have this direction from an Apostle
who learned his doctrines from the lips of his Master:

“Ts any sick among you? let him call for the elders of the
church; and let them pray over him, anointing him with
oil in the name of the Lord; and the prayer of faith shall
save the sick, and the Lord shall raise him up; and if he
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 309

have committed sins, they shall be forgiven him. Confess
your faults one to another, and pray one for another, that
ye may be healed. The effectual, fervent prayer of a right-
eous man availeth much.” Lightfoot, Henry, Gill, Scott,
Benson, Clarke, and all, even the most modern commentators
understand this passage in the same way.

The Book of Common Prayer, following this direction,
has this form of prayer for the recovery of sick persons :

““O, Father of Mercies and God of all comfort! our only
help in time of need: Look down from Heaven, we humbly
beseech thee, behold, visit, and relieve thy sick servant, for
whom our prayers are desired. Look upon him with the
eyes of thy mercy ; comfort him with a sense of thy goodness ;
preserve him from the temptations of the enemy: give him
patience under his affliction; and, in thy good time, restore
him to health, and enable him to lead the residue of his life
in thy fear and to thy glory,” ete.

The journals and biographies of pious men, of all ages, re-
cord’ examples of the effects of faith and prayer. Wesley’s
Works (vol. iv, page 499) contain one of them: “ Immedi-
ately after [preaching]a strange scene occurred. I was de-
sired to visit one who had been eminently pious, but had now
been confined to her bed for several months, and was utterly
unable to raise herself up. She desired us to pray, that
the chain might be broken. A few of us prayed in faith.
Presently she rose up, dressed herself and came down stairs,
and, I believe, had not any further complaint.”

Lest the case of Mr. Piatt, who, when in an agony of pain,
laid the hand of a pious minister on the suffering part and
begged him to pray for him, and thought it did him good,
should stand entirely alone, let us make another quotation
from the same author (vol. iv, page 559): “ Wed. 24—The
floods caused by the violent rains shut me up at Longwood
House. But on Thursday the rain turned to snow; so on
Friday I got to Halifax, where Mr. Floyd lay in a high
310 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

fever, almost dead for want of sleep. This was prevented
by a violent pain in one of his fect, which was so swelled
and so sore, it could not be touched. We joined in prayer
that God would fulfill his word, and give his beloved sleep.
Presently the swelling, the soreness, the pain, were gone;
and he had a good night’s rest.”

There is not a pious man in Kentucky, who keeps up wor-
ship night and morning with his family, who does not daily
remember the sick and afflicted in his prayers; and the cus-
tom is universal, in all Christian churches, of every name, to
ask the prayers of the congregation for sick persons in the
neighborhood. It is but a few months since, that the Rev.
Mr. Conway, in a Unitarian Convention at the East, offered
a resolution of sympathy with Theodore Parker, then in ill
health, and pledging the Convention to pray for his restora-
tion to lealth. Why, then, should Jacob W. Piatt be ac-
counted insane for believing what every other Christian be-
lieves? He believed that the prayers of Father McMahon,
on behalf of sick persons, had been answered. This is all.
How strong his faith was in the efficacy of his prayers in his
own case, will be better judged of when we remember that,
on his last visit to Cincinnati, he spent several days in the city
without calling on Father McMahon, or Father McMahon
calling on him.

Another proof of the supposed insanity of the testator, is,
that he had no more sense than to burn a large library of val-
uable books. According to the testimony of Donn, Abraham
S., Louise Piatt and Smith, he spoke of burning his books
once, perhaps several times. The lady’s account of it is the
fullest, and runs thus: “Some time in the winter of ’56-7, he
announced: to me his intention to burn all his books, except
those of a Catholic or controversial character, on the subject
of religion. He had a splendid library at his residence,
which he had been collecting for ycars, and in such collec-
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 311

tion, arranging and reading, he had his chief delight. When
I urged him not to do this, but to give the books: to his
brother Abram, who had not the opportunity of collecting
so fine a library, he replied, that would be scattering moral
poison, and he intended to make a bon-fire of them. As he
had all the standard English authors, T said to him, you are
surely not going to burn Shakespeare, Milton, Shelley, ete. ;
to which he replied, yes, Iam going to burn them all.”

From the account given by Abram S., corresponding in so
manv of its features with this lady’s account, it is probable
he was present on this occasion; though there is this differ-
ence between the two witnesses—she believes he spoke in
earnest, and he does not. In Donn’s account, there is some ad-
ditional extravagance, as that he had taken the advice of his
Father Confessor, who had told him to burn them all.
No one ventured to ask Donn whether he believed his brother
was in earnest, and we have not the advantage of his views
of this matter.

It is useless to join issue with this lady on the questions,
whether a six-horse load of literary rubbish, interspersed with
Shakspeare and Milton and Burke and Clarendon and Gibbon
and Hume and Bolingbroke, like the gouts of gold in the
sands of California, is a splendid library ; or, whether the tes-
tator had in his collection all the standard English authors;
or, whether a man who toiled by day and by night in the drudg-
ery of a law office, for the purpose of making money, did in
fact have his chief delight in arranging and reading a miscel-
laneous library. All that is necessary to be known about this
library, at present, is, that it was purchased at auction, in lots,
good and bad together ; and that such books as were offensive to
good morals and common decency, as Hot Corn and Rabelais,
were picked out and thrown in the fire. But it is doubtful
whether lie announced a purpose to destroy this library, in the
deep and solemn sense in which that word is used. It is doubt-
312. M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

ful whether the threat to burn these books was not onc of those
“ exccedingly rash” expressions, of which Judge Storer speaks,
and which we know, from the proof, he was apt to make in his
best days, when excited. It is doubtful whether it was not made
in the heat of excited controversy with his sister Louise, who
writes books, and his brother Abram 8., who writes poetry,
about the merits of worthless literature and infidel authors. It
is doubtful whether anything was said which ought to have
been taken in earnest by any one who knew the testator’s pe-
culiarities. It is doubtful whether all he said imported any-
thing more than the threat of a sportsman to blow out the
brains of a wayward dog, or to cut the throat of a stumbling
horse. Indeed Mr. Smith informs us, that “he was excited
and furious in his conversation” when he threatened to burn
his books.

If Mr. Piatt had burnt all his books, we might have ad-
judged him to be insane at the time. If he had burnt none
of them, we would have regarded his threat to burn them as
one of those expressions which men make, thousands of times,
without meaning anything by them. But he did seriously
intend to burn some of his books, and he carried out that in-
tention. Out of 1,800 volumes he burnt two, not to be
named among Christians. This furnishes us with a sort of
rule of three by which we can determine the real weight of
testimony: as 2 volumes are to 1,800, so is the sober reality
to the excited imaginations of witnesses.

In further proof that jthe testator labored under religious
mania, it is asserted that his mind was so poisoned with prej-
udices against every man and every thing that was not Cath-
olic that he was not capable of doing justice.

To this end, the school question, so called, and the part
Mr. Piatt took in it, are brought into the case. Mr. Piatt,
like many other good Catholics and many good Protestants,
was dissatisfied with the school system of Ohio, as adminis-
M. E. PIAT?, EXEC’X, v8. JOHN H. PIATT ET AL, 318

tered in Cincinnati; and in the City Council, and on the
stump, he took a part in the discussions of the day on that
subject. What his arguments were, the testimony does not
show. That which is made to appear in this case is a col-
lection of the harsh things he said on several occasions.

In order to understand these, we must figure to ourselves
an honest man, surrounded by busybodies springing into
ephemeral importance in the organization of the American
party ; misunderstood by the ignorant, misrepresented by the
wicked, hunted down and bayed like a wild beast by bigots,
and burned in effigy by the rabble. We must also consider
the character of the man. Mr. Piatt was not one of those
meek and patient martyrs who hug the stake at which they
burn. When the hand of God was upon him, he submitted
patiently, believing it was all for the best; but not so when
his fellow-men did him wrong. Then, he would fight for his
rights; and, if he fell in the contest, it would be

“With his back to the field and his feet to the foe.”

As he thus stands, fighting for his rights, let us inquire what
were his natural weapons and modes of war? Naturally, he
had a strong, unyielding will, that never surrendered. Nat-
urally, he had an irritable temper, easily provoked to anger,
and ungovernable in its rage. Naturally, he was exceed-
ingly rash in his expressions, when in a state of excitement.
Naturally, he had great powers of sarcasm, and was unspar-
ing in the use of this talent. Was it not, in such circum-
stances, perfectly natural for him to say harsh things?

Let us, then, drop out these harsh words, which meant
nothing then and mean still less noW, and inquire, for a mo-
ment, what was the topic then before the public? In Ohio,
the common schools are supported by a tax on the property
of everybody. They are State institutions, which take out
‘of the hands of every man the education of his own children.
314 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

The parent, as an individual, has nothing to do but pay his
tax and send his children to schoo]. The State builds the
school house. The State selects the school books. The State
employs the teacher. The State selects and purchases the
circulating school library.

That the books thus selected are, to a certain extent, secta-
rian, must be admitted. Among other books which Roman
Catholics consider sectarian, is King James’s translation of
the Holy Scriptures; an opinion quite as well founded as
that entertained by Protestants in regard to the Douay Bi-
ble. An honest, unprejudiced man can read the one with as
much pleasure and profit as the other. They are both good
translations, but neither is perfect—neither free from errors.
King James’s translation was made in highly exciting party
times, when the best of men scarcely knew their own hearts.
The bloody and brutish reign of Henry the Eighth; the milk-
and-water reign of Edward the Sixth; the bloody reign of
Mary, and the magnificent tyranny of Elizabeth, had swept
in terrible succession over the nation, and: left the earth
smoking with the blood of martyrs on both sides: and the
Catholic Church, robbed by Henry, and trodden under foot
by his haughty daughter, abhorred the reigning powers.
At this juncture, James the First of England mounted the
throne. Naturally a narrow-minded bigot, and by education
a Scotch Presbyterian, he was imbued with the belief that
the Roman Catholic Church was none other than the Baby-
lonish whore of the Apocalypse: besides, he had done hom-
age to Elizabeth, and kissed her hand still red with the blood
of his Catholic mother. He called together fifty-two learned
men of his own way of thinking, to translate into the Eng-
lish tongue the Holy Scriptures. That they did their work
as faithfully as the frailties of human nature and the high
party excitement of the times would admit, should not be
doubted. But the Catholics never were satisfied with it—
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 315

they never admitted it to be reliable; and although they read
it (and, as it would appear, the testator had several copies
of it in his library), yet they never were willing to have it
forced on the minds of their children as an infallible stand-
ard. Besides, they regard the business of teaching religion
to be that of the Church, and not of the State; and they
claim for themselves the right of superintending the spir-
itual instruction of their own children. To this end, they —
claimed (as they had done successfully in New York)
their proportion of the school fund, drawn by taxation from
their pockets, that they might manage it in their own way.
Here was the head and front of Mr. Piatt’s offending. He
advocated the Catholic side of this question, and what he
advocated he advocated, according to the laws of his nature,
with zeal, with earnestness, with impetuosity, occasionally
with rashness. If we had a faithful report of all the wise
and reasonable things he said on this subject, the case would
appear very different ; but his speeches were assiduously gar-
bled, first for the newspapers at the time, and then for this
case, and the rash and offensive things which he said only
are reported.

But all these speeches on the school question were made
as early as the spring of 1853, before his brother Donn had
gone to Europe, or his kinsman Smith to Washington—at a
time when no witness, however unscrupulous, pretends that
he labored under insanity, either total or partial, and when
he was in the enjoyment of health as full and vigorous as
he ever had in his life.

In collecting this testimony, reference was had to the po-
litical aspect of Boone county, and the prevailing prejudices
in that quarter against the Catholic religion. Surely, it is
not expected such things will have any weight in the high-
est judicial tribunal of Kentucky.

To sustain this idea of deep-rooted prejudice against Prot-
316 M. E. PIATT, EXEC’X, vs. JOUN H. PIATT ET AL.

estants, it is asserted that he had no confidence in any man
who was not a member of the Catholic Church; and that he
so declared. Donn Piatt’s version of what he said to his
father, on Broadway, in which some such language is attrib-
uted to him, is not infallible; and, as to what he said to Dr.
Murphy, the circumstances under which he said it must be
taken into account. The Doctor was at Mr. Piatt’s house
‘for the purpose of making love to the daughter. Mr. Piatt
might not have thought him a suitable match for her on
various accounts; but the objection which was most tangible,
and that which would be least offensive to the Doctor’s pride,
was, that the daughter was a pious Catholic, and the Doctor
had no religion, and anti-Catholic principles. Had the Doc-.
tor directly asked permission to address his daughter, this
would most probably have been his objection. As it was, he
nipped in the bud all the Doctor’s tender aspirations, by in-
forming him that he had not much confidence in any young
man who did not belong to the Church. This was, no doubt,
the occasion on which the Doctor’s idea that Mr. Piatt lacked
common sense took its root; and, by a disagreeable associa-
tion of ideas, it has clung to him with the pertinacity of an
insane delusion ever since.

But the best way to settle this matter is not by the occa-
sional remarks of the testator. God forgive us all! I fear it
is too common for the best of us to make uncharitable re-
marks about the Churches and Societies to which we do not
belong. I fear me, that, if our brothers and sisters, and
nephews and nieces, who sit around our firesides and listen
to the thoughtless, unguarded, peevish or jocose remarks we
make about our neighbors and their religion, should volun-
teer, after we are dead, to remember and repeat such things,
we should have scenes in human life which would disgust
the hyena with his trade. If we wish to know the truth,
we ought to inquire, rather, what a man has done than what
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 317

he has said. A man’s acts are a truer index to his real
thoughts than the words of passion and excitement he may
happen to utter. It is especially so with a man like the tes-
tator, who is proved to have been “exceedingly rash” and
unguarded in his words, and exceedingly cautious and pru-
dent in his actions. Let us then inquire, What acts are in
evidence on this point? whom did he dismiss from his em-
ployment, with whom did he refuse to trade, from whom did
he withdraw his patronage, in whom did he refuse to confide,
because he was a Protestant? On what worthless man did
he lavish his bounty, in what dishonest man did he confide,
what faithless wretch did he employ, because he was a Cath-
olic?

He all but adored his venerable father, who had abjured
the Catholic faith. Whether he had confidence in his Prot-
estant brothers as business men, or not, the proof shows his
uniform kindness toward them. Residing in Kentucky and
doing business in Cincinnati, he ordinarily ate his meals at
the table of an Old School Presbyterian ; and when he was
worn and weary and sick and could not sleep, he came to
his Protestant sister-in-law, to have her make his pillow of
hops, and do for him other kind offices which none but a
woman can do. When he employed a family physician in
the city, he chose Dr. Thomas Wood, a born Quaker and
a Protestant. He employed Dr. James Taylor, a Presby-

_ terian, as his surgeon dentist for seventeen years, and con-
tinued to patronize him to the last. He had his dry goods
account, in Cincinnati, at J. Shillito & Co’s, a house in which
there is not one Catholic interested. In Lawrenceburg, he
dealt with Mr. Parry—not only a Protestant, but a Know-
nothing. He gave his confidence and support to Judge Par-
ker, an Episcopalian, and a candidate for a judgeship on the
American ticket. No man in Cincinnati enjoyed more of his
confidence and respect than Mr. Van Matre, another Protest-
318 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

ant. In his supposed weakness and fanaticism, when his
health decayed, we find no change in this respect. Protest-
ants were as much as ever the objects of his confidence.
When he was wounded with the saw, he sent for Dr. Hard-
ing, of Lawrenceburg, a Protestant, to be his surgeon, and
called in consultation his old Protestant physician, Dr. Wood.
When he came to make his will, the only Catholic who had
anything to do in the matter was present by accident. His
Protestant father went to Cincinnati for an attorney to draft
the will. The attorney selected for this purpose was the same
Protestant attorney whom he had employed and consulted, for
several years, in his own cases and the cases of his father and
family. The remaining subscribing witness, Benj. M. Piatt, jr.,
now a Methodist, and not a Catholic then, was specially re-
quested to be present to witness the will. When he made his
last journey to Cincinnati, his Protestant cousin, Benj. M. Piatt,
jrs by request, went with him, as his friend, to take care of him.
His son, John H. Piatt, who is supposed to have been the pe-
culiar object of distrust and hatred as a Protestant, was still
retained and relied on as his confidential agent to the last—
and, at the last, still confiding in him, he asked him to be a
father to his little brothers and sisters after he should be with
them no more.

Next to the company a man keeps and the men in whom
he confides, we may look to his books to see what his senti-
ments are. Mr. Piatt had a large collection of books, which .
were his own companions in life,and are now the companions
of his widowand children. Such as he considered unfit for that
purpose, he committed to the flames in his lifetime. Among
those which survive are several copies of King James’s Bible,
the Commentarics of Dr. Adam Clarke, the Sermons of Rev.
Robert Hall, and the writings of Dr. Channing. Thus we
see Protestants at large—Methodists, Baptists and Unita-
rians—represented in his library. When this whole matter
M. E. PIATT, EXEC’X, v8. JOHN H. PIATT ET AL. 319

is examined, we find the testator, though himself a member
of the Roman Catholic Church, as liberal toward those who
differed from him as religious men in general; and such is
the concurrent opinion of numerous witnesses who knew him
well,

Dr. Harding, whose characteristic as a witness, next to
truth, is that of caution, says: “ Mr. Piatt was a Catholic
in his faith. He frequently reverted to religious subjects,
but I think not more frequently than persons commonly do
who consider themselves dangerously ill. I have several
times had conversations with Mr. Piatt with regard to his
religious faith, and Have heard him express himself warmly
and confidently in regard to the faith and doctrines of his
Church ; but I am not aware that he exhibited more preju-
dice or firmness with regard to the tenets of his Church than
is common to men of strong and impulsive minds.”

Judge Storer, speaking of the same subject, says: “TI have
heard him, in the general, express his opinions on his pecu-
liar faith; but never, that I recollect, was he obtrusive or
disposed to proselyte. He was very warm in the mode of
his expression; but never, to my knowledge, offensive to
others.”

Mr. Van Matre, speaking of the same subject, says: “TI

‘never discovered any want of cordiality, courtesy or confi-
dence, on Mr. Piatt’s part, on account of difference of religious
opinions. I considered him a man as liberal and generous
on those subjects as men usually are.”

Michael Victor Daly, his student and partner and friend—
with whom he conversed on every subject, even the most
delicate; in whom he confided, and to whom, as a member
of the same religious communion, he might speak freely, and
to whom he would have spoken freely, if his mind had been
poisoned by religious bigotry—bears this testimony : “ I never,

in the whole of our connection, or since, heard him utter an
320 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

unkind or prejudiced word against any one, on account of
their religion. On the contrary, I knew him to have strong
partiality for some persons of a different faith. There never
was any feeling of this kind shown by him that I could see.”
Again: “I never heard him express any sentiment against,
or for a person, because of the form of his religion.”

Mrs. Stillé gives us what may be taken asa fair sample of
those remarks to and about Protestants, out of which other
witnesses have made so much: “I never heard him converse
on the subject of religion. He once told me, in a jocular
way, that, if I was a Catholic, I would be all that I should
be—or something to that effect. I expressed my surprise, in
the same jocular manner, that he should make that remark
to an Old School Presbyterian; and he said it was rather
presumptuous, or something to that effect, and there the mat-
ter stopped.” Here, then, is the truth: Mr. Piatt, in regard
to religion, making the proper allowance for the natural
warmth of his temper, was just like other religious men.

This leads to some remarks on what the Broadway junto
would seem to think was a course of unreasonable persecu-
tion toward his son, John H., on account of his religion.

A brief examination of the testimony will show that,
unless it has a parallel in some other part of this case, so
great a superstructure never was built on so narrow a foun-
dation. No doubt, Mr. Piatt desired his son to become a
Catholic: and this inference is not to be drawn so much from
the testimony as from the universal law of human action.
Every religious man desires his children to worship at the
same church with himself. The man so liberal as to desire,
of a Sabbath morning, to see one of his children set off to
the Catholic Church, another to the Episcopalian Church,
another to the Methodist Church, another to the Baptist
Church, another to the Presbyterian Church, another to the
Unitarian Church, and another to the Universalist Church, is
M. E. PIATT, EXEC’X, ts. JOHN H. PIATT ET AL. 321

not to be found every day. There is a decency and propriety
in a whole family walking hand in hand to the same house
of worship and worshiping at the same altar. The mere
economist prefers it, because it costs less money to support
but one Church; the mere votary of propriety prefers it,
because the sons protect the daughters, and the grown-up
children lead the little ones by the hand; the pious man pre-
fers it, because all the ties of kindred and friendship are
made stronger by the mutual bond of a common religion.
Mr. Piatt desired his oldest son to be the companion and
protector of his little brothers and sisters on their way to
Church, as, on his death-bed, he desired him to be a father to
them when they should be fatherless. He had used some
effort, no one knows what, to bring him over. He had
requested a priest to converse with him on the subject; and,
on his death-bed, he asked him to investigate the claims of
the Church. This is all.

But did he persecute his son because he would not go with
him to church? Mrs. Louise Piatt says: “Mr. Jacob W.
Piatt was very unkind, unjust, and in fact insulting toward
John on account of his religion. I think he lost no oppor-
tunity to say disagreeable things to him. Upon his return
from Church, his father would say: ‘ Well! what swaddler
have you been listening to to-day?’ On one occasion, in a
conversrtion with Mr. Piatt, he said he could do nothing
with John. He was so obstinate, that, instead of going with
him to church, he would slip off and go hear some swad-
dler preach.” Corresponding accounts, greatly intensified,
are given by Donn Piatt. But how many facts are there in
evidence to support these sweeping assertions? When all
comes to all, these witnesses are able to state a single occasion,
one Sunday, at Donn Piatt’s dinner-table, when he asked the
son, on his return (as they allege) from church, what swaddler
he had been listening to, to-day ? If we but knew what church
322 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

John had been at, or whether he had been at any church, we
could form some idea as to the severity of this remark. The
term “swaddler” gives us no clue to it. It is a word not to
be found in any dictionary of the English language, and the
witnesses have not told us in what sense the word was used
by Mr. Piatt. It was a term first applied in Dublin to Mr.
Cennick, one of Mr. Wesley’s preachers, on the occasion of
his preaching a Christmas sermon from these words: “ Ye
shall find the babe wrapped in swaddling clothes, lying in a
manger.” It was bandied afterward, for some years, against
Methodist preachers, by Papists, Episcopalians and Presbyte-
rians, and came to mean a traveling preacher, and, in time, a
strolling preacher. If this is the sense in which Mr. Piatt
used the word, it could not have had reference to the minis-
ters of any Presbyterian church in Cincinnati; nor can we,
from anything apparent in the proof, determine whether John
had been listening to the serious discourse of a Protestant
minister of the Gospel, or to the lectures of Abby Kelly on
Slavery, or of Mrs. Nicholson on Free Love, or the Sabbath-
day stump speech of some vagabond on the corruptions of
Romanism.

Coates Kinney, for a short time an occupant of Mr. Piatt’s
office, gives us a long, vague account of his impressions and
opinions as to the state of feeling between Mr. Piatt and his
son, and his opinion that it was on account of differences
of religious faith. This coldness and ill-feeling, so far as it
went, is accounted for elsewhere, and grew out of causes
which would have provoked any one, much more a man in_
bad health and naturally irritable. But what facts does Mr.
Kinney state? Only one: The New York Observer, “a

? came to the office directed to John,

Protestant newspaper,’
and the father said it was not fit for a young man to read,
put it in his pocket and took it away. What is a Protestant

ne@vspaper? The word “protestant” once had a meaning.
\
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 328

It meant such Christians as protested against the supreme
authority of the Pope. But nowadays any blaspheming in-
fidel may assume the title of Protestant, and it would seem
newspapers may be Protestants too. But what sort of paper
was this New York Observer? What were the contents of
this particular number? Who can say whether it was fit for
a young man to read? Nobody looked into it, except Mr.
Piatt; and who, without looking into it, can say whether he
acted rightly or wrongly in taking it away?

Next in importance to Coates Kinney’s testimony is that
of young Mr. Runkle, a nephew of the testator. The pur-
pose of Mr. Runkie’s testimony seems to be threefold: to
show, Ist, that John was hardly treated in his father’s house
and office; 2d, that Mr. Piatt was a great bigot in religion ;
3d, that he was not competent to make a will. On all three
of these points, Mr. Runkle gives us his opinion with great
confidence. But let us have the facts. First, as to the hard
usage. Mrs. Piatt having in her dormitory only four rooms
for herself and her husband, seven children, and two serv-
ants, and all her country cousins, except the Runkles, sent
John to sleep in a long, low room over the office, with no
other furniture than a carpet, a bed, a burcau, a wash-stand,
basin and pitcher, a few chairs, and a looking-glass over the
bureau. The indignity offered the young man by his father
in the office was still more degrading: once on a time, he
was required to do the office of an amanuensis for his sick
father, to the extent of writing a letter, and once, or oftener,
to look after some law business before a justice of the peace ;
and this is what Mr. Runkle calls drudgery, when performed
by an apprentice in a law office. It might be called “drudg-
ery” in some office in the interior of Ohio, wherein Mr. Run-
kle studies.

We thus get a peep into the high notions of this young
gentleman ; and, considering the license of relationship, the
324 M. E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL.

peculiar cast of the testator’s mind, his keen sense of the ri-
diculous, and his extraordinary powers of sarcasm, it is im-
possible such an object should escape him. He ridiculed his
college, ridiculed his religion, ridiculed his idea of going to
the West; punctured all his tumors as fast as they rose, on
every subject. But it is remarkable that this witness never
heard him say a word to John about religion; nor does he
give us one instance evincing a lack of confidence in any
one on account of religion. His conclusion on this subject
is: “He did not seem to think there was any good in the
Protestant religion. I think he blamed everybody who pro-
fessed it. That is my opinion only.”

The idea of general derangement and incapacity being out
of the question, it is pretended that an estrangement took
place between the father and the son, in which the father
alone was to blame; and that this estrangement was followed
up by relentless persecution on the father’s part, and resulted
in this Will.

This is another mole-hill magnifiéd into a mountain. The
plain truth of the matter is this: Jacob W. Piatt was an irri-
table old man who wanted the son to follow his advice; John
H. Piatt was a proud young man who wanted to follow his
own conceits. The father had been brought up in the back-
woods to notions of economy, and was not ashamed to carry
a parcel of goods under his arm, provided they were paid for.
The son had been brought up in New England, amongst de-
cayed aristocrats who expected servants to carry such things
for them. The father’s vote was challenged by a Know-noth-
ing, at the poll where he had voted for more than thirty years,
on information furnished by the son; and he felt, on the oc-
casion, as any other father would have felt. John had his
uncle Foster in the United States Senate, his uncle Donn a
secretary of legation at St. Cloud, and his cousin T. K. Smith
in a clerkship at Washington, and he took the office-hunting
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 325

itch and determined to go to the Capital to get some public
employment. The father wished him to stay at home and
devote himself to business. There was nothing to make a
great noise about on either side. Such things are common
to the lot pf man. He is a happy father who has no worse
ason. He is a happy son who has no worse a father.

But let us determine, by the acts of the parties, whether
they were rent asunder by terrible and unnatural jars? Their
actions will tell the tale more truly than words. At the time
referred to, John was a full-grown, well-educated young man,
able to battle with the world, able to support himself, and in
nowise dependent on his father. Jacob was a man in easy
circumstances, able to employ and pay clerks to do the copy-
ing of his office and agents to collect his rents, and was in no-
wise dependent on his son. Under the circumstances, it would
have been neither a sin nor a shame on the part of either, if
they had parted, like Paul and Barnabas. The father could
have said, “‘ My son, let there be no strife between us. You
are your own master. I have done what I could to fit you
for life and usefulness. If my mode of life is too rude, or
my discipline too severe for you, go and seek your fortune
elsewhere.” The son could have said, “ Father, I am grate-
ful for all you have done for me: I am sorry I am not able
to please you better. We cannot live together in peace, and
so let us part in peace.”

But they did not part. Whether they were drawn together
by the bonds of kindness, or gravitated together by the weight
of interest, does not matter. They did not part. They stuck
together to the last. The father trusted and confided in the
son as his confidential agent while he lived, and fondly hoped
that he would perform the same faithful offices for his widow
and orphans when'he was gone. The son performed these
offices faithfully, so far as we know, while the father lived,
and stood like a dutiful son by his bed-side when he died.
326M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

And, in the last moment, we find the father folding this son
in his arms—not reproaching him for hearing swaddlers
preach; not by fire and fagot compelling him to embrace
the Catholic faith; not denouncing him as an heretic with
bell, book and candle; not declaring that he had no confi-
dence in him because he was not a Catholic—but affection-
ately explaining to him the ground on which he acted in
making his Will; and, next after the God he worshiped,
committing to his care and protection all that was near
and dear to him in life and in death, his widow and his
orphans.

That prejudice against the son on account of his religious
faith did not influence the testator in making his will is fur-
ther evident from the fact that he placed him on a footing of
equality with his sister, Mrs. Jenkins, who is a member of the
Roman Catholic Church.

Vil.

A jury have no right to substitute their own notions of
fairness, liberality or equity, for those of the testator. The
question is not: Is this a wise will? is it a just will? is it a
fair will? is it a liberal will? but, Is it the will of the tes-
tator?

(Cook vs. Gould, 1 Haggard, 577; Sloan vs. Maxwell, 2
Green’s Ch’y R., 563; Greenwood ts. Greenwood, 3 Curtis,
Appendix 1; Duffield vs. Robeson, 2 Harrington, 381; Davis
vs. Calvert, 5 Gill & John, 300; Burr vs. Duval, 8 Mod., 59;
Weir’s Will, 9 Dana, 441; Tompkins vs. Tompkins, 1 Bailey,
92; Couch vs. Couch, 7 Alabama, 519; Baker vs. Lewis, 4
Rawle, 356; Ross vs. Christman, 1 Iredel (Law) 209; Goble
vs. Grant, 2 Green’s Ch’y R., 629; Bettlestone vs. Clark, 2 Lee,
Ec. R., 229; Martin vs. Walton, 1 Lee, Ec. R., 130; Bird
vs. Bird, 2 Haggard, 142; Waters vs. Howlect, 3 Haggard,
790; King vs. Farley, 1 Haggard, 502.)
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 827

Here arises the great objection to the verdict of the jury.
The jurors thought they were wiser than the testator—juster
than the testator—fairer than the testator—more liberal than
the testator ; and, therefore, they have undertaken to make a
will for him. Against this usurpation of power over the pri-
vate rights and private property of a citizen, we have taken
this appeal.

The will-making power stands not in the’ notion of equal
distribution. The owner of an estate disposes of it, not ac-
cording to any fixed rule of arithmetic, but according to his
judgment of what is best, upon the whole, for his chil-
dren. They do not stand to him in the relation of creditors,
but as the objects of his bounty. He gives more to this one,
and less to that, because one may be more needy, more help-
less, more deserving, than another. The law considers every
man of sound mind the proper judge as to how his bounty
should be dispensed, and recognizes every sane man’s right
to do what he pleases with his own.

In case a man makes no will, the statutes, to put an end to
strife, fix certain uniform rules of distribution. All other
things being equal, these rules are just and satisfactory. But
how many times would great injustice be done by following
the uniform rule of the statutes. A man has reared, educated
and set up, three sons and three daughters, at an outlay
of two thousand dollars each. They are all settled in the
world and doing well; each one of them in as eligible a po-
sition as the father. Bya second marriage he has six young
children, yet to rear, yet to educate, yet to set up, with all
the chances of disaster and mishap before them. The re-
maining estate of the father is but twelve thousand dollars.
If he makes a will and gives all he has to his six minor chil-
dren, he will have done exact equality. If the statute makes
the distribution, the older children, who are already provided
for, come in for an equal share. The result is, that the six
328 M. Ey PIATT, EXEC’X, Us. JOHN H. PIATT ET AL.

older children get three thousand dollars each, while the six
younger ones get but one thousand.

Again: a man whose estate is small, may have lame, blind,
or idiotic children, and, having liberally educated his helpful
children, may feel it to be his duty to settle, by will, the bulk
of his little estate on the helpless ones. The common con-
science of mankind approves such a will; but the statutes
never make such a will—thcy go upon the uniform idea of
equality, leaving that of providence out of the question.

Again: a man’s estate may have come wholly by a first
marriage. He may marry asecond wife, without either prop-
erty or economy, who only wastes the estate acquired by the
first marriage. It is not fairness that the children of the
second marriage should be placed on a footing of equality
with the children of the first; yet, by the statutes, they take
share and share alike. So, too, if a poor widower acquires a
large estate by a second marriage, it is not fairness that the
children of the former marriage should share the estate equally
with those of the latter: but the statute makes no distinction
between them.

Cases might be multiplied without number, in which the
statutory distribution is neither equitable nor just, much less
provident and wise. But these considerations have nothing
to do with the question at bar, unless, indeed, the provisions
of the Will be such as to evince a want of testamentary ca-
pacity. The provisions of the Will have been already dis-
cussed under another head; it may not be amiss now to look
for a moment into the circumstances, to inquire whether, in
point of fact, it is so unjust as gentlemen suppose. Jacob W.
Piatt commenced life poor, and ended it comparatively rich.
His fortune was all of his own making. JIis venerable fa-
ther, in speaking of the Will, says: “He did not make such
a will as I would have made; but I thought it was none of
my business) Hr MADE WHAT HE HAD IN THE WORLD,
M. E, PIATT, EXEC’X, vs, JOHN H. PIATT ET AL. 3829

and I thought he had a right to dispose of it as he pleased.”
His fortune was the result of hard labor and close economy,
running through a period of thirty years. Like other poor
young lawyers, the earnings of the.first ten years must have
been small. The deeree of the Supreme Court giving the
second wife, for her own support and that of her son, three
hundred dollars a year, is a pretty fair indication of what
his income was at that time. The bulk of his estate must
have been acquired in the last twenty years of his active life.

He was three times married. The first marriage was a
happy one. The lady would have been an heiress if she had
lived; but she died before her ancestor, and the estate de-
scended directly on her two daughters, Mrs. Shoemaker and
Mrs. Jenkins. His second marriage was unhappy. Whose
fault this was, it is better not’to inquire. The fact that he
lived happily for more than twenty years with a third wife,
proves that he was not wholly in fault. Suffice it to say,
she brought him nothing when she came; she deserted him
before he knew himsclf to be the father of her child; and,
by a decree of court, she was awarded the custody of the
child, and three hundred dollars a year. She lived to tax
his earnings six thousand dollars, besides what he contrib-
uted to the collegiate education of the son. Whether the
third wife brought him property, we do not know; but she
brought him what was far better. She brought him peace,
prosperity and domestic happiness: and, by Ais industry and
her economy, for more than twenty years, the estate in con-
troversy was built up. Of the nine children this wife had
borne him, seven were living when he made his Will, rang-
ing from fifteen years to six months old. He had already
done a liberal part by his older children. They were liber-
ally educated and sct up in the world; and they were in cir-
cumstances to take care of themselves. The seven younger

children were yet to be brought up, educated and provided
330 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

for, and it would require a great part of his estate to do this;
and if, in his estimation, the children of the wife who helped
him to build up the estate had higher claims than the others,
it neither proves him to have been unjust nor insane. If
he was wrong, to any extent, in his estimate of the advan-
tages his older children enjoyed, or the disadvantages the
younger ones labored under, it was not the result either of
total or partial insanity. No insane delusion is proved, and
none to be inferred, from anything he ever said or did.

VIII.

Where the proof shows that the provisions of a will ac-
cord with a long cherished and previously declared purpose
of the testator, it rebuts the idea that such will was the re-
sult of improper restraint or ‘undue influence exercised over
him at the time it was made. *

(Jarman on Wills, 63; Fullock vs. Allison, 3 Haggard,
527; Sewart’s Ex. vs. Lispenard, 26 Wendell, 255; James
et al. vs. Langdon, 7 B. Monroe, 196; Reed’s Will, 2 B.
Monroe, 75, 80.)

Here is a proposition of law fully sustained by authority,
and in itself so obviously true as to admit of but little argu-
ment; because, when a testator has once made up his mind
as to the disposition he intends to make of his property, and
afterward carries out in making his will the purpose so formed,
it cannot be said, with reason, that such disposition was the
result of improper restraint, undue influence, false informa-
tion, unreasonable prejudice, mental weakness, or any other
new cause existing at the time the will was made.

Our inquiry, then, in this place, is: Whether Jacob W.
Piatt, for any considerable time before his Will was made,
had formed a plan in his mind for the disposition of his
property.

Dr. Mudd’s statement, which refers to John only, is this:
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 331

“T. do not recollect the year; but, upon the first visit of John
H. Piatt to Cincinnati, and before he graduated at Yale Col-
lege, during a vacation of the college, his father, Mr. Piatt,
introduced him to myself and family as his son. It was
about dinner time. After dinner, Mr. Piatt, his son and
myself, went round to the office. Mr. John H. Piatt took a
walk through the city. His father then remarked to me, that
his son was a fine looking young man (he had not seen him
before), and that he felt proud of him. He further remarked
that he intended to give him a first-rate education ; educate
him as a lawyer and set him up in business. Without any
remark being made on my part, Mr. Piatt then observed, I
DO NOT THINK THAT I SHALL LEAVE HIM ANY OF MY PROP-
ERTY, or words to that effect; I think the very words.” And
this is precisely what the testator actually did. He gave him
a “first-rate education”—graduated him at Yale College.
He “ educated him as a lawyer”—graduated him at the Cin-
cinnati Law School. He “set him up in business”—gave
him his practice and his law library, and, besides this, “ did
not leave him any of his property.”

Let it be borne in mind, that this conversation with Dr.
Mudd took place before he had done anything for his son,
except what had been done by way of supporting him and
his mother; the first time the son ever saw Cincinnati, and
the first time ever the father saw the son’s face. All the money
he ever advanced him was after this; all the fourteen affection-
ate letters, which are in evidence, were written after this; all
the imaginary jars about religion, about politics, about pride,
about disobedience, took place after this: so that, what he
did on the 19th day of May, 1857, was done after the reflec-
tion of four years.

But did he cherish this purpose in the meanwhile? He
spoke to his attorney, about a year before the Will now in
contest was made, to draft a will for him; and, when told
V

332  M. E, PIATT, EXEC’X, vs. JOHN H,. PIATT ET AL.

that the statutes of Ohio made ax good a disposition of a
man’s estate as he could make himself, he said that “he agreed
with the attorney, when there was nothing peculiar in the
circumstances of the case; he said that he had been three
times married, and had three families of children; that
his two older children, by the first two wives, were educated
and set up in the world; that they had cost him a great

deal of money (he did not say how much), and were pro-
vided for; that, by his third wife, he had a large family of
helpless children, who were yet to bring up and educate;
and that he felt it to he his duty to dispose of what he had
for that purpose. He said education was growing every
year more and more expensive, and there was no telling
how much it would cost to bring up and educate his younger
children.”

This occurred about the middle of May, 1856, when as yet
the sanity of the testator had not been doubted; and before
the chief causes of offense described by Mr. and Mrs. Donn
Piatt—such as going to hear swaddlers preach, refusing to
carry packages, causing the father’s vote to be challenged,
and so on—had arisen: so that, the resolution to devote
the bulk of his estate to the maintenance and education of
his younger children could not have been the offspring of
offenses which had not yet been born.

Let us see whether the attorney is corroborated in his state-
ment by any other witness. The Rev. Edward Purcell makes
this statement: “I heard him speak of making his Will, and
the disposition which he thought he would make of his prop-
erty. The children who were grown up, he thought were
already sufficiently provided for; and he considered it his
duty to provide especially for the children of his last wife,
because they were young and had to be educated. That
was all I remember of what-he said. This was within, or

4
M. E, PIATT, EXEC’X, ts. JOHN H. PIATT ET AL. 388

about a year before his death.” Mark the date—about a year
before his death.

Is there any other evidence of the predetermination of Mr.
Piatt, as to the disposition of his property? It must have
been a topic of conversation in the Piatt family, or by the
public at large; for Mrs, Louise Piatt, in speaking of what
occurred before he was wounded, and when he was going
about attending to out-of-door business, says: “I had heard
rumors that he was going to make his Will and cut John
off; and, upon one oceasion, just as he was leaving our house,
I detained him and said, ‘I wish, before you make your Will,
you would consult Archbishop Purcell.’” The matter was,
then, no secret. His determination was already known ; and
this lady and her family were on the alert, to make, to mend,
or to break the Will, as it might or might not suit their no-
tions. i

We have thus seen what Mr. Piatt intended to do for his
son. We have traced that intention down from the day he
first came to the West, in 1853, to the day tie Will was ex-
ecuted, and, after it was executed, to the day of his death.
For reasons which were satisfactory to his own mind when
in perfect health and before the slightest jar had occurred
between them—for reasons which were still satisfactory to
his own mind after his health began to decline—for reasons
which were satisfactory to his own mind when he came to
make his Will—for reasons which continued to be satisfactory
to his own mind when he refused to change his Will—he did
what he did for this young man: never either changing his
purpose or assigning a different reason for it.

For the purpose of proving a different intention as to John,
some testimony is offered on the other side. The statement
of Donn Piatt of an occurrence which took place in 1850, is
supposed to have force in it. He says: “I don’t know that
brother ever called on me to write his will while I lived on
334 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

Fourth street. Before I went abroad, I was waked up by
a domestic to come to see my brother; he was very ill. I
went to see him; he recovered in a few days. He spoke to
me with feeling about John. Said that, as he was his child,
he felt it to be his duty to recognize him as such, and treat
him as his other children. This was said in connection with
the subject of making the will. He said, in reference to
John, that he was unwilling to die and leave things as they
were.” Again, on cross-examination, he says: “ About 1850,
brother sent for me to make his will.” The omission of the
questions, both in the examination in chief and in the cross-
examination, makes the answers slightly obscure; but the
same occurrence is referred to in both. The witness states
the facts without date in his answer in chief, and gives the
date on cross-examination.

Let it be borne in mind, that this occurred in 1850, three
years before the negotiations were opened between Mr. Piatt
and his son. The son did not come to the West till after
Donn and his wife had gone to Europe. His aunt, Mrs.
Foster, says: “In the fall of 1853, by the advice of one
through whom she had received her alimony of $300 a
year from the estate of J. W. Piatt, decreed her by the
court in Ohio, my sister consented that her son should
accept the urgent invitation of his father to visit him in
Cincinnati, intimating that John’s interests would be ad-
vanced by his so doing.”

Before this time, Mr. Piatt had never seen his sons’s face.
He only knew, from the information of others, that after his
wife left him she had borne a son, whose custody was given
to the mother by decree of court. It would seem, from the
testimony of Mr. McCullough, that a daguerreotype, or some
other style of picture of the son, had: been sent to the fa-
ther; by whom, and for what end, does not fully appear. He
had at one time doubted or denied the legitimacy of this
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 335

son, and may have been using means to satisfy his own mind
on this point. Be this as it may, the passions excited by
real or imaginary wrongs had subsided. His better nature
told him this child was his son; and he wished, in justice
to the son, in justice to the mother, and in justice to him-
self, not only to place the seal of legitimacy upon him, but
to aid him in acquiring a liberal education. This much is
implied in what he said to his brother Donn and his uncle
Abram, and nothing more is implied. He did not mention
the subject of property to either of these gentlemen.

But let us meet Donn’s idea fairly, and see into what ab-
surdity it runs. His brother was attacked with cholera in
the night, and sent for him to write his will. To what end?
Why, to put John on a footing of equality with his other
children. ‘‘ He was unwilling to die and leave things as they
were.” Jacob W. Piatt was no match for his brother Donn
in works of imagination; but he was an older, and, in 1850,
a better lawyer. At all events, he knew enough about law
to know that the surest way to put John on a footing of
equality with the other children, was to make no will. In
the absence of a will, the Jaw would put him on a footing
of equality with the other children. The only effect a will
could have, in regard to him, would be to put him on a dif-
ferent footing. “As things were,” John stood on the same
footing with the other children. If he was “unwilling to
die and leave things as they were,” then he was unwilling
to die and leave John on a footing of equality with his other
children. If he desired to make a will, that he might not
“die and leave things as they were,” then the purpose of the
contemplated will must have been to make some distinction
between John and his other children.

There is another piece of evidence in the case, negative in
its character, but sufficient to rebut the idea that he meant to

do more for John than to give him a liberal education and fit
22
336M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

him for business; or that, at any time, he held out the pros-
pect of an estate as an inducement to John to come to the
West. John put in evidence fourteen letters written to him
by his father, after his first visit to the West and during his
last two college years. These letters are written without re-
straint. They are the full and free outpourings of a father’s
thoughts and feelings. They are full of anxiety for the son’s
success and prosperity in life; full of advice and encourage-
ment as to his future career; full of valuable suggestions as
to his application to study ; full of solicitude about his health
and habits: but not one word is said, directly or indirectly,
about property.

The truth is, that his purpose in regard to this young man
never changed, from the time he first recognized him as a
child and took him under his protection, to the last hour when
he refused to change the Will.

Nor did his purpose vary in regard to his eldest daughter.
He considered her, as he did the son, already as well provided
for as he should be able to provide for his younger children.
His purpose in regard to her is traced back one year before
the Will was made; and it was a fixed purpose, upon reasons
satisfactory to his own mind—ineluding, probably, the con-
sideration that the bulk of his estate was won by the mutual
exertions of himself and the third wife. But,this belongs to
another branch of the case. :

IX.

Ardent devotion to the Church, and to the ministers of the
Church, with which a testator stands connected—though it
may exceed the bounds of reason and amount to fanaticism—
is not sufficient to invalidate his will, unless his infatuation
had disordered his general understanding so as to disqualify
him for making a rational disposition of his property.

(Weir’s Will, 9 Dana, 439; Norton vs. Riley, 2 Eden, 286 ;
Haquenin vs. Basely, 14 Vesey, 273.)
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 3387

In the latter years of the testator’s life, he was a member
of the Roman Catholic Church, believed in its doctrines, con-
formed to its usages, and reverenced its ministers, as all honest
Roman Catholics do: and this is all. He did not believe her
doctrines more firmly, conform to her usages more rigidly, or
reverence her ministers more sincerely, than is usual among
professing Christians of other denominations. If he expressed
himself more ardently, it is explained by reference to the pe-
culiarities of the man. “ Whatsoever thy hand findeth to do,
do it with thy might,” was a law of his nature, and he could
not avoid it. He was not less ardent in politics, or in anything
else to which he turned his mind.

We have an expression of opinion from Mr. Rairden, Dr.
Murphy, and some others, that the ministers of his Church,
especially his spiritual adviser, could have persuaded him to
almost anything. But there is not one fact in evidence to
support this opinion. No instance is given wherein a priest
was known to have influenced his mind in the slightest de-
gree, in regard to his secular affairs ; and we have in evidence
several instances where they interposed their advice without
success. The only thing which approaches a fact, is that stated
by Donn Piatt, that his brother informed him that he had
been advised by Father Driscol, on consultation, to burn his
library. If this instance has any truth in it, it proves con-
clusively the converse of the idea: he did not follow the ad-
vice.

One thing is worthy of remark in this connection. What-
ever Mr. Piatt’s zeal for the Church may have been, he did
not make her one of his legatees. He once had it in contem-
plation to make a contribution of a house and lot to a benev-
olent institution of the Church, but at last he did not do it:
so that the Church, by the terms of the Will, takes nothing,
directly or indirectly ; not one cent.

That his general understanding was disordered by too much
338 M. E. PIATT, EXEC’X, ts. JOHN H. PIATT ET AL.

religious zeal, or from any other cause, in the face of all the
proof, is too preposterous to be seriously considered.

X.

Where a will is sought to be set aside on the ground that
the testator was under restraint when he executed it, the evi-
dence should show that the restraint under which he acted
amounted to moral or physical coercion, or was such as to de-
stroy his free agency ; and no importunity or influence, which
does not amount to fraud or force, or to which the testator
does not yield for the sake of peace, is sufficient to set aside
a will, if the testator was of sound mind when he made it.
And the exercise of restraint, fraud, importunity, or undue
influence, is not to be presumed from the opportunity or the
interest any one may have had to exercise them, but must
be proved by competent testimony.

(O’Neal vs. Farr, 1 Richardson’s R., 8; Duffield vs. Robe-
son, 2 Harrington, 375; Miller vs. Miller, 3 Sergent & Rawle,
267; Potts et al. vs. House, 6 Georgia R., 359; Shelford on
Lunacy, 209; 1 Jarman on Wills, 36 to 39; Reed’s Will, 2
B. Monroe, 75; M’Daniel’s Will, 2 J. J. Marshall, 342; Will-
iams vs. Goud & Bennett, 1 Haggard, 252; Brown rs. Mol-
liston, 3 Wheaton, 129; Means vs. Means, 5 Strob., L. R., 192;
Floyd vs. Floyd, 3 Strob., L. R., 44; Woodward rs. Jones,
Strob., L. R., 552; Turnbull vs. Gibbons, 2 Zabrisca, 136-158 ;
Weir vs. Fitzgerald, 2 Bradford, 42; Davis vs. Calvert, 5 Gill
& John, 303; Small vs. Small, 4 Greenleaf, 222; Harrison’s
Will, 1 B. Monroe, 351; Swinburn, pt. 7, sec. 4, pl. 1; Bird
vx. Bird, 2 Haggard, 142; Constable rs, Tufnel, 4 Haggard,
485; 1 Williams on Executors, 2 Am. ed., 37, 39, 40.)

That attempts were made to induce the testator to make a
will different from what it is, and to change it after it was
made, is abundantly proved: but there is no proof whatso-
ever that any one uscd the slightest-degree of influence to
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 339

induce him to make it what it is. His own inflexible will
had predetermined what it should be; and, with the excep-
tion of a small bequest made to Mrs. Jenkins to gratify his
father and his mother, it is now what he thus predetermined.
The opinions of witnesses, much more those of attorneys, that
he was under undue influence, are of no value. The law has
wisely fixed the rule, that no inference of undue influence
shall be drawn, either from the opportunities the parties may
have had to use the influence, or the interest they may have
had in the result. The facts must be proved, and from these
the court must form an opinion. If the rule were otherwise,
wives, children and friends, physicians and ministers of spir-
itual consolation, would all be compelled to desert the cham-
bers*of the sick and the dying, or have their motives im-
pugned in courts of justice.

One of the conjectures of counsel is, that the testator’s
spiritual adviser influenced him to make this Will. That Mr.
Piatt was strongly attached to the Catholic Church, is admit-
ted. That he had great confidence in his spiritual adviser,
is admitted. That he consulted him on all questions of con-
science, and disclosed to him the secret faults of his life, may
be admitted. That he followed his advice in everything that
affected his peace of conscience here and his salvation here-
after, may also be admitted. But to suppose that he ever ad-
vised with Father Driscol, or any other priest, as to the man-
agement of his worldly affairs, or that any: priest was capable
of advising him on such subjects, is preposterous folly. His
character and capacities, as a business man, are sufficiently
developed in the evidence to satisfy any one that, on all sub-
jects of property and the management of secular business, he
was capable of teaching all the priests in and about Cincin-
nati, from Archbishop Purcell déwn to Father McMahon.
That he had confidence in his own judgment is evident from
his remarkable powers of the will; his determination to have
340 M. EL PLATT, EXEC’X, vs. JOHN H. PIATT ET AL.

everything his own way ;.his refusal to yield to the advice or
the importunity of others. Confidence in one’s own judgment
is what gives force to'the will. The sternness of this man’s
will never forsook him to the last.

But let us look at this matter as developed in the proof.
Does the proof warrant the idea that Mr. Piatt consulted
priests and followed their advice in the management of his
secular affairs ?

Mrs. Louise Piatt, on account of some peculiar interest she
felt in John’s affairs, or from a general disposition to make
herself useful in other people’s business, wanted to have a
hand in making this Will. She had heard how it was to be,
and, not being satisfied, she beset Mr. Piatt on the subject in.
her own house, and undertook to surround him by the-high
functionaries of the Church to compel him to surrender his
own judgment. She says: “I had heard rumors that he was
going to make his Will and cut John off; and, upon one oc-
casion, just as he was leaving our house, I detained him, and
said: I wish, before you make your Will, you would consult
Archbishop Purcell; and he answered me, either, I have con-
sulted Father Driscol, or, that Father Driscol is my Father
Confessor, Ido not recollect which.” Were was the interference
of a busybody in that which did not concern her, and a most
characteristic and appropriate reply—one of those sarcastic
remarks with which this sarcastic man might be expected to
get rid of troublesome people. With Mr. Piatt life was too
short and time too precious to be spent in idle prating with
a woman who had no right to meddle with his affairs, and
was not capable of instructing him in business, especially
that on which his own judgment was formed long ago. He
answered her according to her folly. She advised him to
consult one priest, on a subject which he had no business
with ; and he informed her that another priest, who had just
as little business with it, was his Father Confessor. That
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 341

which would probably have insulted him, if it had come
from a man, he treated as a joke when it came from a wo-
man. He was a rude, sarcastic man, who used no more of
ceremony than necessity required, and no more force than
was sufficient for the purpose in hand. Like a sturdy bull,
who, when he contends with his equal, puts to his horns,
but rids himself of a fly by a slash of his tail.

But this lady adds another instance, intended to make the
impression that Father Driscol interfered improperly with
the making of this will. Speaking of Mr. Piatt, she says:
“T heard a conversation between himself and Archbishop
Purcell and his mother in my house, it being on his last
visit to Cincinnati. They were urging him to alter his Will
and make a provision for the education of his younger chil-
dren, and then to divide the residue of the property between
all the children, John and Carrie included. He promised
to consider the subject, and said he wished to do what was
right. He said he was not leaving the younger children
more than he had expended on John’s education. He had
expended more than $6,000 already. He regretted that it
did not meet the approval of the Archbishop. After the
Archbishop left, he retired to his room, leaving orders that,
when Father Driscol came (he was expecting him, or had
sent for him; I cannot tell which), he should be sent to his
room, as he wanted to see him. He came within an hour
and a half, and remained closeted with him for upward of
two hours; no one disturbing him. After that, I never
heard him speak of the Will again, or of his willingness to
change it.”

The conclusion she here attempts to draw is, that Mr.
Piatt’s mother and Archbishop Purcell were, at this time, in
a fair way of inducing him to change the Will, and would
have succeeded, had not Father Driscol come in to advise
him the other way. But she has no right, as a logician, to
342 M. E. PIATT, EXEC’X, vs. JOHN H, PIATT ET AL.

draw such a conclusion from any matters of fact which she
states as a witness. First, he had made the Bishop no prom-
ise to change the Will, but only to consider the matter. Sec-
ond, he had offered a most cogent reason why it should not
be changed, and expressed his regret that it did not meet the
Archbishop’s approval. Third, Father Driscol did not come
there to counteract the Bishop; for Mr. Piatt was expecting
him, or had sent for him, before his conversation with the
Bishop. Fourth, he had never expressed a “willingness” to
change the Will before Father Driscol came ; so that his never
speaking of his “ willingness to change it” after he went away,
implies just nothing.

From this last interview detailed by the witness, three
inferences only are to be'drawn. First, up to this time pow-
erful efforts were being made, through Mrs. Louise Piatt’s
own chosen agents, to induce the testator to make a different
will. Second, the witness, the testator’s mother and Arch-
bishop Purcell considered him in a proper condition of mind
to make a will. Third, the testator, true to the instincts of
his character, refused to yield his own judgment to that of
other people.

Let us turn for a moment to the testimony of Donn Piatt
upon this point. Speaking of the testator, he says: “ Driscol
was his spiritual adviser under circumstances that made their
relationship remarkably intimate. Brother has told me,
frequently, that he referred all his affairs to his spiritual
adviser. He believed that all business, all government,
every thing, should be under control of the Church. * *
He told me he was going to burn his library. * * He
said he had consulted his spiritual adviser, and he concurred »
with him, that it was better to burn them up.”

This witness has not told us the “ circumstances” which
made the “relationship” between the testator and his spirit-
ual adviser so “remarkably intimate.” These are left ‘to
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 348

conjecture, and that, too, with a mysterious daintiness of ex-
pression, as if the witness knew something terrible which,
for the credit of his own family, he would not for the world
reveal. And, like the preceding witness, he has been unable
to state a single instance in which the testator either asked
Father Driscol’s advice, or was influenced by it, in secular
matters, except one. He resolved to burn his library, and
consulted Father Driscol, who advised him to burn it up.
But did he burn the books, in obedience to this advice? No;
there they are to this hour, eighteen hundred in number,
without the smell of fire on one of them. The procf shows
that he burnt “ Hot Corn” and “ Rabelais,” books which no
man of decency would allow to go into the hands of his chil-
dren, and which he got only by purchasing books at auction
in lots, which he had to overhaul and expurgate, as every
other wise man does who buys books in the same way. This,
then, the only instance which the witnesses can state, dis-
proves the point. If Father Driscol advised the burning of
the library, and Mr. Piatt did not burn it, it proves him a
self-willed, disobedient son, on whom the priest’s advice was
thrown away.

Mr. Rairden is called to prove that the testator was entirely
under the influence of Catholic priests in the management of
his worldly affairs. He shall be heard in his own words: “TI
have heard him say that he should obey the directions of
his priests in anything they should direct him, even if his
own opinion should be against them. This was in a mo- .
ment of controversy, when he had got a little out of humor ;
and I did not think he meant what he said.” No more did
Louise or Donn Piatt think he meant what he said when he
made similar expressions to them. They knew perfectly
well, that it was impossible that a man whose business was so
extensive and so multifarious, should, in the broad, unquali-
fied sense in which Donn Piatt expresses it, refer all his affairs
344M. E, PIATT, EXEC’X, vs. JOHN WH. PIATT ET AL.

to his spiritual adviser. Whenever this construction is given
to the testator’s language, the whole idea is involved in unut-
terable ridicule. You are to contemplate a man of large and
diversified property; of extensive and multifarious business,
managed with skill and success to the last hour of his life,
from day to day addressing his Father Confessor thus:

“ Holy Father: it is my opinion that everything should be
governed and directed by the Church, and to that end I shall
want your advice continually. And I fear me it will require
all your time; but you must be patient with me, and keep me
from sinning against the Church.

“Holy Father: there is a judge to be elected in Hamilton
county. I have always been a Democrat, and always hated
the accursed thing called Americanism. Yet, in view of his
experience and ability, I have a preference for Mr. Parker, an
Episcopalian and a Know-Nothing: is it lawful for me as a
Catholic to vote for him?

“ Holy Father: I have lawsuits of my own, of my brother
Donn, of my father, and of my clients, which feeble health
and the multitude of business will not allow me to attend to.
Whom would you recommend to me as an attorney? Here is
Johnston, a heretic in religion, running to perdition after
Methodists and swaddlers: yet I should like to employ him,
if it is lawful, and the Church has no objection. What do
you say, Holy Father ?

“Holy Father: we are out of a family physician now, and
I do not wish to employ another without the advice and ap-
probation of the Church. I havea preference for Dr. Wood:
but he is a natural born heretic—he and his fathers before
him being Quakers. May I lawfully employ him ?

“ Holy Father: seventeen years ago, before my conversion
to the True Church, I patronized and employed Dr. James
Taylor as a dentist, and have continued ever since to employ
him myself and recommend him to my friends: but he is a
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 345

heretic and a Presbyterian. Would you require me on that
account to dismiss him from my employment, or may [I still
retain him without violence to the laws of the Church ?

“ Holy Father: I am about to build a new kitchen and
dining-room to my house: which will be most in accordance
with the laws of the Holy Mother Church ; to build of stone,
brick, or wood?

“Holy Father: I shall want a lot of lumber to complete
my buildings. Where would you recommend me to pur-
chase, in Lawrenceburg or Cincinnati? or is it lawful for
me to decide, as I used to do, in the days of sin and folly,
in favor of the market where I can buy at the lowest price
and on the best terms?

“Holy Father: It is not always convenient for me to send
all the way to Cincinnati to purchase a lot of goods. Mr.
Parry, of Lawrenceburg, can supply me as well: but he is
a heretic in religion, and a Know-Nothing in politics. Is it
lawful for a Catholic to patronize such a man?

“Holy Father: I have a great many houses in Cincinnati
under rents, and some hard cases for my tenants. I must
have a trusty agent to collect my rents and keep my houses
in order. Whom shall I employ? I have a son, unfortu-
nately a heretic and a Protestant, who vexes the life out of
me going to hear swaddlers preach. Shall I incur the anath-
emas of the Church if I should employ this youth as my
agent ?”

All this nonsense, and worse and more of it, is compre-
hended in the sweeping declaration of Donn Piatt: “‘ Brother
has told me, frequently, that he referred all his affairs to his
spiritual adviser.” What he may have said in jest or irony
to get rid of various annoyances, one thing is clear: he did
not refer all his worldly affairs to Father Driscol. The thing
was both morally and physically impossible. Besides, Dris-
col testifies, unequivocally, that he never was consulted by
346M. E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL.

the testator, and never gave him any advice, touching worldly
affairs, and did not know anything about the Will till after it
was made.

If this Will had been the work ‘of Catholic priests, one
would be looking for some advantage from it to the Catholic
Church. But not one dime is given to the Church or any of
its institutions, moral, literary or benevolent. The Church is
left to shift for herself, without even being named in the Will
of a man alleged to have been a monomaniac on the subject
of Catholicism. This priest, then, had no more to do with
this Will than an unborn infant. He could have no rational
motive for interfering in the matter; and, his truth and integ-
rity being unimpeached, his own solemn oath, in the absence
of all proof on the other side, must put this conjecture to rest
forever.

Did any one else exercise undue influence in procuring this
Will to be made? It was so much and so exclusively the tes-
tator’s own work, that no one of his friends, or the friends of
his wife, was satisfied with it; and, although removed from
his wife and all her kindred to the house of his brother, and
there beset by the three persons whom he held in veneration
above all others—his father, his mother, and the Archbishop
of his Church—he persisted to the last in his refusal to change
it. If there is any shadow of suspicion left, that the testator
was practiced on by priests or others, in his last illness, to
induce him to make his Will as he did, it is rebutted by the
fact that he had long before determined upon the disposition
he would make of his property: so that he only carried out
in sickness what he had resolved to do in health.

If it is claimed that the wife of the testator practiced undue
influence on him in this matter, the first answer is, that the
Will is not favorable to her. She is carefully excluded from
every dime which the law does not give her; and both the
trust in the estate and the guardianship of the children are
M. BE. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 347,

taken out of her hands, in the event of a second marriage.
But the proof! Where is the proof that she ever spoke to
him, directly or indirectly, on the subject of making a will?
Some of the witnesses swear, as a matter of opinion, that she
had great influence over him. Doubtless, she had influence
over him. Doubtless, she had much to do with forming the
better parts of his character. Doubtless, she had much to do
with shaping his better destiny. Doubtless, she had much
to do with economizing his property and building up his
estate. But is there any proof that she ever interfered with
the disposition of that estate?

There was much which she might have said with propri-
ety. She might have said: “TI found you a poor, heart-
broken, desolate young man. Your path through life had
already been planted with thorns. For more than twenty
years we have trodden that thorny path of life together.
Our joys and our sorrows have been mingled in the same
cup; and no matter how bitter the draught, I have never
asked that it might pass from my lips, if it was the lot of
my husband to drink it. The estate now to be disposed of
is neither yours nor mine: it is the joint product of your
industry and my economy. What you won by hard labor I
saved by close economy. When you toiled all day in court,
or worked all night in your office, I staid at home and su-
perintended the household, or sat by the cradle of our nine
infant children, attending to the duties of a wife and mother.
The wives of bankrupts dashed in coaches, and flaunted in
balls, concerts, theaters and watering-places, while their hus-
bands struggled with the world, and, struggling, fell: but
my coach was never seen dashing through the streets, nor
my finery choking the places of fashionable resort. I lived
in simplicity and went on foot when I was young, that I
might have the means of educating and providing for our
children when I should be old. No creditor of yours ever
3848 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

cursed my extravagance as the cause of his losses. Your
first marriage was a sunny spot in early life, soon lost in
clouds, darkness and storms. Had the object of your first
love lived, she would have helped you, as I have done, to
build up your fortune ; and, in process of time, would have
added her own. But she died before she came to her fortune,
so that no part of it reached your hands or mine. What.
ever it was, it descended directly upon her daughters, and
they are provided for. Your second marriage brought you
sorrow, disgrace, law-suits and ruin; but not one dime in
money. Your earnings and mine were taxed for twenty
years for the separate maintenance of this second wife, and
the son of this unfortunate marriage. By that son you have
done a liberal part, as it was your duty to do. You have
educated and prepared him for business, so that he is in bet-
ter condition to battle with the world than my poor orphans.
It is not justice, it is not fairness, that the estate which owes
as much to my economy as to your industry, should be equally
divided with the children of those who contributed nothing to
build it up. Besides, my children are helpless infants, yet to
be brought up and educated, and I am to be left to battle
with the world without your aid and protection; and larger
provision should be made for us than for others.”

All this, and more too, she might have said, without pass-
ing the bounds of truth, or endangering the validity of her
husband’s Will. But she said not one word on the subject of
a will—was unwilling to be present when the Will was made.
She saw the chastening hand of God stretched out over her
and her little ones, and in meekness and sorrow she bowed
herself to receive the blow. There were about her, from time
to time, relatives and connections of her husband, to whom,
in ‘his life-time, he stood in the relation of a father and a
friend, who had free access to her house, her hearth-stone and
her table—as willing witnesses, too, as ever kissed the book in
M. E. PIATT, EXEC’X, vs. JOHN H, PIATT ET AL. 349

a court of justice, straining every shadow into a substance,
every jest into sober earnest, every peevish expression of anger
into settled and everlasting hatred, every eccentric remark
into insanity, every sentiment of religious faith into supersti-
tion or monomania: but not one of them pretends to have
seen, or heard, or known this lady, or any of her kindred or
friends, to importune her husband on the subject of his Will.

A large majority of the witnesses on both sides have not
been noticed in this argument, because, first, the testimony of
many of them was wholly irrelevant ; second, because that of
others was unimportant; third, because that of others was
cumulative only to such as has been commented upon; and,
fourth, because the reasonable limits of an argument would
not permit. But their testimony is before the court, subject
to all legal exception, and to be considered according to the
rules of law.

If this Will should be set aside on the grounds shown by
the evidence, the will-making power ought at once to be blot-
ted from the statute book, and no man henceforward be al-
lowed to exercise control over his own property, no matter
how strong the claims of justice, of wisdom, of prudence, of
humanity, of gratitude may be. Next to this, the Statutes of
Descents and Distribution should be abolished; and, as the
body of the man returns to the dust from whence it was
taken, so let the fruit of all his toil escheat to the world from
whence it was gathered.
350 = M. E. PIATT, EXEC’X, v8. JOHN H. PIATT.ET AL.

OPINION OF THE COURT:
BY STITES, CHIEF JUSTICE.

The Court, being sufficiently advised, delivered the follow-
ing opinion herein:

On the 19th May, 1857, Jacob W. Piatt, of Boone county,
in this State, made and published a paper, purporting to be his
last will and testament, and, on the 28th of the same month,
departed this life..

The said paper was admitted to probate in the County Court
of Boone, notwithstanding the opposition of John H. Piatt, a
son of the decedent, and others, who contested the probate.

An appeal was taken from the County Court to the Circuit
Court of Boone, where, upon a trial by a jury, a verdict was
had against the Will, and, a motion for a new trial having
been refused, a judgment was entered against the Will, and
reversing the judgment of the County Court, admitting it to
probate. To reverse that judgment, this appeal is prosecuted
by the executrix.

The only question that we have to consider is, whether the
evidence disclosed upon the trial, was sufficient to warrant
the verdict and judgment, rejecting the paper in question as
the Will of the decedent.

Before, however, proceeding to investigate the testimony,
it will be proper to notice a preliminary point, raised by ap-
pellees’ counsel, as to the extent of the jurisdiction of this
court over appeals of this character, and the effects of the
judgment that may be rendered herein.

We are asked to review the opinion in the case of Over-
ton vs. Overton (18 Ben Mon., 61), in which it was held,
M. E. PIATT, EXEO’X, ts. JOHN H. PIATT ET AL. 301

that under the Revised Statutes (8. 8., 27, 28, 36, Stanton’s
edition, pp. 466-68) it was the duty of this court, in cases
like the present—brought up by appeal from the County to
the Circuit Court, and from the Cireuit Court to this—‘“ to
try both law and fact ;” and that the judgment of this court
was final, requiring no further action in the Circuit Court,
upon the return of the cause, than to enter up the mandate
of this court, and to make the necessary directory order to
the County Court having original jurisdiction, requiring it to
admit or reject the Will.

It is suggested: (1) That it was decided without argument
upon the points mentioned; (2) That a contrary view of the
law seems to haye been taken in another case; and (3) That
it involves a grave constitutional question.

In reply to these suggestions it may be said:

1. That, although the points mentioned were not made in
the argument of counsel upon the hearing of the case, their
attention was called to them before a decision, and an oppor-
tunity for argument afforded, if desired ;

2. That in the case of Blackwell vs. Thompson (17 B. Mon.
624), which is referred to as seemingly at variance with the
opinion in question, the points considered and decided in
Overton vs. Overton, supra, were neither noticed nor con-
sidered. This is apparent from the opinion. Nor was it
necessary that they should have been considered, had the
attention of the court been called to them; because both the
instructions of the Circuit Court and the verdict were ap-
proved of; and the other points in the case having been
ruled in favor of the appellees, it was only necessary to af-
firm the judgment of the court below, which had already
affirmed the order of the County Court.

In Overton vs. Overton, the main point relied on for rever-
sal was error in the instructions. The evidence was clearly

in favor of the Will, and the question came up, whether this
23
352M. E. PIATT, EXEC’X, vs, JOHN H. PIATT FT AL.

court, regarding the verdict as right, but the instructions as
erroneous, could, without violating the express language of
Sec. 28 of the Revised Statutes, supra, requiring us “to try
both law and fuct,” send the case back to have it retried by
a jury. In our judgment there was no escape from the per-
formance of a duty so plainly laid down; and, although the
same question was made and’ argued in Hooten’s Will case
(MS. opinion, Dec., 1857), and in other subsequent cases, we
have seen no reason to question the correctness of the views
expressed in the opinion referred to; and we must, therefore,
adhere to them now.

As to the 3d and last suggestion, we have only to say, that
we cannot admit, that the sacred constitutional right of the
“ancient mode of trial by jury,” mentioned in the 8th Section
of Art. 13, of the present Constiution, has been at all invaded
by the 28th Section, supra.

The case of Carson vs. Commonwealth (Marshall, 290), fur-
nishes a rule for determining when the right of trial by jury—
secured as well by the Constitution of 1799 as by that of 1850
—has heen invaded. The only inquiry to be made as to that
point is, whether-in such cases a trial by jury was allowed by
the laws regulating trials in similar cases, and in force before
or at the adoption of the Constitution. If such right then
existed, any subsequent legislative enactment depriving the
party of it would be deemed unconstitutional and void; but
not otherwise. With this rule, which has been repeatedly
recognized, before us, no difficulty exists in disposing of the
point suggested.

That the right of trial by jury in matters of probate never
existed at the common law, iswell known. It is equally well
known that this court, since the act of 1796 (1st Vol. Digest,
129), and up to the enactment of the law of 1842 (3 Vol. Di-
gest, 586), exercised the power of disposing finally of all ques-
tions of law and fact in Will cases, brought up, by appeal or
M. E, PIATT, EXEC’N, ts. JOHN U. PIATT ET AL. 353

writ of error, from the County Court, and that its power, so to
do without the intervention of a jury, was never questioned.

Indeed, until the act of 1842, which conferred appellate ju-
risdiction upon the Circuit Courts, but did not, as is supposed,
supersede the act of 1798 (2d Vol. Digest, 1881-3), the County
Court and this Court were the only tribunals, in this State,
having any control or jurisdiction whatever over matters of
probate, except in issues of devisavit vel non, formed out of
Chancery, in writs authorized by the act of 1798, supra, in
which Circuit Courts had original jurisdiction.

In issues thus formed, and in no other class of cases, involv-
ing the validity of a will, or matters of probate, did the right
of trial by jury exist in this State prior to the adoption of the
Constitution of 1850, and it cannot therefore be said, that the
section of the Revised Statutes, supra, has in any wise invaded
the constitutional privilege in question.

And now as to the facts.

It seems that the testator was only about fifty-seven years
old when he died. He had resided in Boone county about a
year prior to his death. He was a lawyer, and had spent the
greater part of his life in Cincinnati, actively engaged in the
practice of his profession, and for many years held high rank
at the Bar in that city.

His property, when he died, exceeded in value, $100,000.

He had been married three times. By his first wife he had
two children, only one of whom, Mrs. Jenkins, survived him.

By his second wife he had a son, John H. Piatt. His second
marriage resulted in a divoree—the wife removing to Connec-
ticut, where her son was born, and where she remained, taking
care of him, until a short time before her death, when he vis-
ited his father in Cincinnati.

The son soon afterwards returned to college in Connecticut,
and, at his father’s expense, completed his education. After
this, he removed to Cincinnati, studicd law with his father,
304 M. E. PIATT, EXEC’X, vs. JOHN H,. PIATT ET AL,

and continued in his employ, attending to his business for
him until his death.

By his third wife he had seven children, all of whom, with
their mother, the appellant in this case, survived him. The
oldest of these children was aged about sixteen, and the young-
est about one year, when their father died.

[A copy of the Will having been given in Judge John-
ston’s Argument, supra, it is omitted here. ]

The contestants of the Will—that is, Mrs. Jenkins and John
H. Piatt—assail it upon the following grounds:

Ist. That at the time it was executed, the mental faculties
of the decedent were so prostrated and destroyed, that in a
legal sense he was not of “sound mind:”

2d. That he was then laboring under monomania on the
subject of religion, and that his mind was unsound and de-
stroyed upon other subjects:

3d. That this monomania and other mental derangement
entered into and affected the making of the paper purporting
to be his Will: and

4th. That said paper was procured by undue influence exer-
cised over the decedent’s mind by the appellant, aided by the
decedent’s spiritual adviser.

The testimony relating to each point, so far as it is deemed
necessary or material, will be noticed in the order-in which
the grounds have been stated.

And, first,in regard to the general condition of the deced-
ent’s mind at the time the paper was executed. If he then
had sufficient mental capacity to make a last will, or, in
other words, if he was then of “sound mind,” that must be
regarded as conclusive of the validity of the paper, so fur as
it is affected by the question of capacity. And, except for
the purpose of showing his mental condition at that time, it
is not at all material what it was before or after the paper
was executed.
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 350

As persons called to aid in the preparation and attestation
of a will are presumed to know more concerning the capacity
of the decedent to make a will at the time of its publication
than others, the law in general attaches more importance to
their testimony, and more reliance is placed upon it, than upon
that of persons not present. Assaid bya distinguished writer
upon this subject: “The attesting witnesses to a will are
regarded by the law as placed around the testator, in order
that no fraud may be practiced upon him in the execution of
the will, and to ascertain and judge of his capacity. On this
ground these witnesses are permitted to testify as to the opinion
they formed of the testator’s capacity at the time of executing
his will; and their opinions, and the facts they state as oceur-
ring at the time, are generally to be particularly regarded by
the court ; though the opinions of other witnesses are ordinarily
inadmissible, at least, unless founded upon facts testified by
themselves or others in the cause. Witnesses other than the
attesting witnesses must state the facts, not their opinion or
judgment merely of the sanity or insanity of the testator.”—
(1st Jarman on Wills, pp. 75, 76, 77, and authorities there
cited.)

We will therefore proceed to state, in substance, the testi-
mony of the subscribing witnesses and others who were present
when the paper in question was executed.

1. William Johnston, the draftsman of the Will and asub-
scribing witness, states in effect: That he had known the
testator since 1839; that he had been associated with him
as a lawyer for many years, and for several years previous
to his death had been his ‘attorney, and upon very intimate
and friendly terms with him; that he wasengaged as his attor-
ney when he died, and that his last professional service ren-
dered the testator was to draft his Will.

That he (Piatt) was a man of clear, strong and vigorous

mind, tenacious, persevering and laborious. Had an extraor-
356 M. E, PIATT, EXEC’X, vs, JOHN H. PIATT ET AL.

dinary force of will. Sarcastic, bold and sometimes extrava-
gant in the language used in his public speeches, but in his
private conversation, and in his acts, moderate and conserva-
tive. Not disposed to conciliate, but rather the reverse. Very
decided in his attachments, and equally so in his hostilities.
He was impetuous in temper, and zealous in whatever he un-
dertook. For the last five or six years of his life, he was a
very decided Roman Catholic, though he had been previously
a Methodist. Had no reason to believe from his (Piatt’s) social
or business relations, that he was influenced by religious big-
otry. He had a Methodist for his legal adviser, a Quaker for
his medical adviser, a Presbyterian for his dental surgeou, and
his principle dealings in dry goods were with Protestants.
When, however, questions of a public character arose, in which
he thought the interests of his Church were endangered, such
as the school question, he took the stump, or his place in the
council chamber, where he was a member, and advocated the
rights of his Church as he understood them, and generally
dealt in harsh and severe language.

His library consisted of law books and miscellaneous books,
such as are usually found in private libraries, and among them
were religious books of other denominations than his own.

That he was not a monomaniac upon religion, or any other
subject, or in any sense. About a year before making the
Will, he had a conversation with witness about making his
(Piatt’s) Will, from which witness learned what disposition
he intended to make of his property. He and witness had
been engaged as counsel in a murder case, and, whilst walk-
ing together, he asked witness if he could come some night
and stay with him, as he wished him (witness) to draft his
Will: to which witness replicd that he needed no Will; that
the law of Ohio made as good a disposition of a man’s estate
as he could himself. To this Piatt agreed, when there was
nothing peculiar in the case; but he said he had been mar-
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 367

ried three times, and had three families of children. That
his two older children, by his first two wives, were educated
and set up in the world; that they had cost him a great deal
of money, and were provided for. That by his third wife, he
had a large family of helpless children, who were yet to bring
up and educate, and that he felt it to be his duty to dispose of
what he had for that purpose. He said education was grow-
ing more and more expensive every year, and that there was
no telling how much it would cost to educate and bring up
his younger children. Witness then gave up the contest.
He (Piatt) said further, upon that occasion, that he had
made several attempts to draft a will himself; but that
there had been so many controversies in court, of late years,
as to the meaning of wills, that he wished witness to do it
for him, as he wished it in such a form that there could be
no question about its construction.

Witness could only speak of the feeling between Piatt and
his son John, from what he saw himself, though he has often
heard each speak of the other. They lived on as good terms
as father and son usually do, and until the testimony in this
case, he (witness) had never heard of any controvery between
them. The father was irritable, and the son a proud-spirited
young man. Piatt was proud of his son’s talents, and was
anxious for his success in life. Witness had a good deal of
conversation with the testator when drafting the Will. In
one of those conversations he said, John was a sharp Yankee,
and would take care of himself. At another time he asked
witness, in his wife’s presence, if he (witness) would see his
wife have fair play after his death, to which, witness replied
that he would. He then turned to her, and told her that she
could rely upon witness; and went on to say that he expected
John to be her agent and manage her ordinary law business,
but, if she got into litigation, he would depend on witness to
see her out. John was then collecting Mr. Piatt’s rents, ex-
3858 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL

cept from a house on Pearl street. He continued to transact
the business until after the contest of the Will was commenced
in Kentucky. His uncle, Donn Piatt, then called on witness,
and suggested that they had better select some one else. As
John had assumed an antagonistic position to the Will, it
would not be consistent for him to continue; and some time
thereafter another agent was employed.

“On the 18th of May, the old gentleman, Mr. Piatt’s fa-
ther, called on witness in Cincinnati, and requested him, in
the name of his son, to come down to Federal Hall and draft
his son’s will.”

Witness arrived at Piatt’s house in the morning, went into
his room, which was the library, and found him lying on the
lounge, reading the newspapers. The furniture which he used
in the room was a lounge, used as a bed, and a large, easy
chair, with joints, so that one could either sit up or lie down
in it. “ He was sprightly, spoke kindly, but witness could not
remember all that passed.” The persons present were his
wife, his mother and his father; he requested them all to re-
main in the room. Mrs. Piatt was weeping and excited ; said
she wished to have nothing to do with it, and refused to stay.
His father and mother did not want to stay, and, to relieve all
embarrassment, witness suggested that he would make a rough
draft, and they could withdraw. They withdrew, and there
was no one present while he (Piatt) dictated and witness wrote
the draft; which was made with a pencil, and submitted to
Piatt for inspection. He read, or seemed to read it all over very
carefully, and, taking a book for a table, and his own peneil, made
two or three unimportant interlineations. The interlineations,
as well as witness could remember, not having the rough draft
before him, were the words, “ share and share alike,’”’ which
witness had not entered; and, in another place, where he di-
rects his wife to distribute the property amotig the children,
the words “ and equality.”
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 359

“ After the rough draft was finished the family were called
in—the rough draft was made before, and the Will after din-
ner—and the rough draft was put in the hands of Mrs. Piatt ;
it was the rough draft that was submitted to the father; but
witness would not be certain whether the Will was submit-
ted to them. At all events, they all found fault with it.
The father and mother because he did not make more pro-
vision for Mrs. Jenkins. He had already, at the solicitation
of Mrs. Piatt, devised to Mrs. Jenkins the lot given to her
by the Will, which was not in the original plan, and he had
no description of it. He meant to have given her less, but
his parents wanted him to give her more. The old man
wanted him to give her the house he had proposed giving
to the Sisters of the Good Shepherd; and remarked that
these charity funds were often administered by loafers;
and that Carrie had been a good child, and he ought to give
her that house. Mr. Piatt, the testator, admitted that she
had been a good child, but that she was already better pro-
vided for than his other children would be.”

He assigned, soon afterward, a reason which he had not to
his parents, why he only gave her a life estate. He said she
was in poor health—bad as his was, he was afraid he would sur-
vive her—that he was afraid she would never have any child,
and, in that event, he did not care that Mr. Jenkins should
have any part of his estate; though he spoke kindly of him
as a gentleman, and said he had a good estate.

Mrs. Piatt made two objections to the Will. The first to
giving John the old library. She said it was old and anti-
quated, and that John would not be satisfied. It would be
better to give him money, and let him buy a library to suit
himself. She did not say how much. Mr. Piatt replied that
it was an old library, but a good one, and that he had kept
pace with the modern books or reports. The other was, the
alternative trustee in the event of her marriage. She said it
360  M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

was ridiculous to suppose, that a woman with seven children
would marry again. Mr. Piatt replied, tenderly, that she was
yet young, and that nothing was more natural than that she
should marry again, and that he did not object. That that pro-
vision was not to prevent her marriage, but to avoid all un-
pleasant controversies, that might thereafter arise about his
estate with a second husband. To which she replied, that
she wanted every thing done for the best, and left the room
weeping.

“This is all that was said by any one to Mr. Piatt about
his Will, in the way of advice. He refused to make any al-
terations, and, in the afternoon, the witness engrossed it in
ink, as it was admitted to probate. After it was thus en-
grossed, Mr. Piatt’s father read it, using the expression, that
it was multum in parvo.”

The Will was executed about 7 o’clock, p.m. After it was
announced as being ready, Piatt got up from the lounge or
the chair, went forward to the table, and wrote his signature.
He then got up, and, placing his finger upon the signature,
requested the witnesses who were then present, Johnston and
Ben. Piatt, jr., to sign it in his presence as witnesses, repeat-
ing the language of the Ohio statute.

After Johnston and Piatt had signed it, O’Brien came in,
and the testator made a like request of him, informing him
that it was his last Will and Testament, and reqtesting him
to sign it as a witness also.

The witness was quite certain that Piatt read the engrossed
Will, from this circumstance, that O’Brien had so much to say
about religion and about his own religious experience to Mr.
Piatt, whilst the witness was copying the Will, that he (wit-
ness), having his attention distracted, feared he had made a
mistake ; and Piatt, after reading it, handed it back, saying
it was all right, that there was not a mistake in it.

After its execution and publication, the testator directed
M. E. PIATT, EXEC’X, vs, JOHN H. PIATT ET AL. 361

the witness to leave it with Mrs. Piatt, which he did. Wit-
ness was certain that Piatt read both the rough draft and the
Will as executed. The witness further states that, so far as
he had any capacity to judge, Piatt’s mind and memory were
as sound as they had ever been; and further, that unless he
had thought so, he would never have drafted the Will or wit-
nessed it.

When witness was at Piatt’s house, he was engaged in over-
looking accounts with his father. Witness heard a conversa-
tion about McMahon, but could not recollect whether it was
with O’Brien or Piatt’s mother. She was urging him to go
to Cincinnati, and seemed to have two objects in view—one
to try Dr. Blaisdell’s magnetic baths, and the other to have
the intercession of Father McMahon. He, Piatt, said he
would like to have Father McMahon’s intercession, because
he thought he was a holy or good man. He expressed nei-
ther belief nor disbelief in McMahon’s prayers. He had n’t
made up his mind whether he would go to Cincinnati at all.
Witness encouraged him to go, saying that he was then able
to travel, except that his knee was stiff. He replied that
witness did not understand his condition, and called him to
his side and explained it.

There was also a conversation on that day about a suit, in
which Piatt participated, and assigned his reasons for not
giving any advice concerning the same.

2, Benjamin M. Piatt, Jr., is another of the subscribing
witnesses. He lived within a mile of the testator, and was
with him almost daily, attending to his necessities and ren-
dering him what assistance he could. He testifies that he
staid all night with the testator the night previous to the day
on which the Will was executed. That, on the morning of
the day on which it was made, when he was about starting
home, the testator requested him to remain, saying that he
intended on that day to make his Will. That Judge Will-
362M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

iam Johnston arrived at the house that morning; and the
testator told witness that Johnston had come down to write
his Will, That then he (witness) told him that he had to
go home, but would return in the evening; and the testator
expressed a wish that he should remain and witness the Will,
but that he could return in the evening in time to do so.

He also testifies that on his return that evening the Will
had not. been finished. That the testator was looking over
the rough draft, to see if it suited him, and to make such
alteration as he desired. After it was examined, the rough
draft was copied by Johnston, and read over by the testator,
and pronounced satisfactory. The paper was then signed as
his last Will and Testament, and Johnston, O’Brien and the
witness attested the same, at the testator’s request and in his
presence, by subscribing their names as witnesses.

That O’Brien did not see the testator sign it, but was told
by him that the signature was his, and that he wanted him
to sign it as a witness, and that it was his last Will and Tes-
tament. That the testator was sitting about the middle of
the room; that he walked from the place where he sat, with
the assistance of his crutches, to the table at which he sat
whilst executing the Will. That, after the execution of the
Will, he walked to the lounge or bed upon which he was in
the habit of sleeping during his illness, and undressed him-
self, as the witness thought, and went to bed.

The witness further states that it was his belief that, at
the time of executing the Will, the testator was of sound
mind and disposing memory, and that unless he had so be-
lieved he would not have attested the Will.

When asked as to the physical condition of the testator
and the manifestation of suffering about the time when the
Will was executed, he says, that on that evening, and pre-
vious to the execution of the Will, he saw no indication

of more than the ordinary daily pain, except while he was
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 363

walking from his chair to the table at which he signed the
Will. When about half way from the table, he seemed for
a moment to have a severe pain. This was whilst he was
standing. As soon as the pain ceased, he walked to the chair
beside the table, and sat down; and did not seem to have
any more pain after that, during the time of the execution
of the Will or previous to his retiring for the night.

From the time that he received the wound from the saw,
about the middle of February, 1857, witness was in the habit
of visiting him and sitting up with him at night. Sat up with
him from one to three nights during the week throughout his
illness, except about two weeks. Sometimes, after the most
acute pain, he would become flighty for a few minutes, and
sometimes longer—after which he would fall asleep. His con-
versation, when not in this condition, wasas it had always been.
The flightiness of mind seemed to be consequent upon the
extreme pain he sometimes suffered ; but after it had subsided,
his mind and memory seemed as perfect as usual.

3. Charles O’Brien, who happened to be at his house on
business on the day the Will was executed, was the other sub-
scribing witness. He states in substance, that he went to de-
cedent’s to buy cattle for the Cincinnati market. That he in-
informed him of his business, and was told by decedent that
he had cattle to sell, having, as he said, too much stock at
the time. That he went out to see the cattle, and, on his re-
turn, declined purchasing because of their indifferent condi-
tion. That at this time the draftsman of the Will, John-
ston, was writing it. That Piatt afterwards told him, that he
wanted him to witness his Will, which Johnston had written,
and showed it to the witness; and that he did witness it by
signing his name in writing thereto. That Piatt at first signed
as maker, and Johnston, Ben. Piatt and himself signed as wit-
nesses. That Piatt was sitting nearly opposite the door when
he went in. That when he told him to sign as a witness, he
364 M. E. PIATT, EXEC’X, Us. JOHN H. PIATT ET AL.

(Piatt) was standing up with the help of a chair and cane,
though hardly able to get up. That Johnston, Ben. Piatt and
Mrs. Piatt, the mother of the decedent, were present at the
execution of the Will, and that in his (the witness’) opinion
the testator’s mind, when the Will was executed, and in pre-
vious conversations with him, was as sound and perfect as
the witness had ever before known it, he having been ac-
quainted with him many years before and up to that time.

He further states, that Piatt did not then seem to be suffering
pain, but told him that he had suffered violent pains previous
to that. He also proved that he was a Roman Catholic, and
that Piatt was likewise; and that he talked to him on the
subject of religion, and exhibited to him a rosary, which the
witness informed him had been blessed by the Pope’s Nuncio,
Bedini, and that certain indulgences were granted upon repeat-
ing certain expressions upon the medal attached to it; which
Piatt, as a Catholic, believed. And further, that he informed
him of certain miraculous cures, performed by a Catholic
priest, named McMahon, whom Piatt expressed a desire to see.
That Piatt took the rosary, uttered some religious or devotional
ejaculations, and, after showing it to Johnston, put it around
his neck and kept it. And also that Piatt requested the wit-
ness to pray for him. .

4. Benjamin M. Piatt, senior, the father of the testator,
was also present when the Will was made.

He states, that he procured Judge Johnston to draft the Will,
at the instance of the testator ; that Johnston sat by the testator,
took notes or made a rough draft, and then wrote the Will;
that besides the witnesses who attested the Will, there were
present himself and his wife, the testator’s mother. This wit-
ness proves, that he was in his right mind, as he thought, and
under no restraint. He had been with the testator a good deal
in his last illness, and was there a week when the Will was
made. During that period the witness and the testator were
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 365

engaged in making a settlement, which was concluded on the
21st May, 1857, two days after the Will was made, accord-
ing to an entry on the book witness had, showing the settle-
ment and date.

After the Will was made, the witness, with the testator, went
up to Cincinnati; the latter in order to try a bath of which
he had heard. The witness considered him in a condition to
make the settlement, as competent as he had ever been—that
is, between his severe paroxysms of pain, which came on during
the night. He never attempted to do anything when suffering
under those pains, as they were so severe and excessive as to
render him incapable of doing business; but the next day,
when they passed off, he would go about his business, and
attend to it as usual, and appeared to have as much capacity
for business as he ever had. Witness and the testator settled
a very important account. Witness knew that he was entirely
free from paroxysms when he signed the Will. He might
have been suffering some pain, but he was himself—in the pos-
session of his mind.

When witness’ wife, testator’s mother, understood what the
Will was, she was not satisfied on account of Caroline, Mrs.
Jenkins. Witness told her she must not interfere. Testator
overheard her, and called witness and his wife to him, say-
ing he wanted them to interfere, that he wanted to do what
was right.

Witness then mentioned to him the situation of Caroline’s
estate in New Jersey, and suggested that it might not turn
out to be worth anything; to which he replied that that
estate, alluding to General Dickerson’s estate, was worth a
million of dollars.

Witness then said no more; but witness’ wife still impor-
tuned him, until he devised to Caroline a house and lot on
New street in Cincinnati. Witness was disappointed at the
extent of the devise, and remarked that the rent of it might
366 M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

keep her out of the kitchen. The testator made no reply to
this, and there the matter ended.

This witness also proved that the testator was a devout
Catholic, and had been for some time before his death. That
he labored under dyspepsia of a chronic nature for some time
before his death, and that was the cause of his giving up his
profession.

That he had been attacked, when about seventeen years of
age, with spells that seemed to be paralytic, sometimes on one
side, and then on the other. After he married his last wife,
these attacks became slight. They never affected his mind at
all. The paroxysms under which he suffered when in his last
illness, and which were severe, did affect his mind.

He also proved that in February preceding his death, the
testator received a severe wound upon his knee from a cireu-
lar saw, and suffered severely from it.

Witness had seen testator’s mind wandering during his last
illness, when visited by a paroxysm; and sometimes when
they would give him morphine, he would talk in his sleep;
but he had never observed his mind wandering when awake
and at himself.

He had never said anything to witness on the subject of
religion but once; and that was, that he (witness) having
once been a Catholic, and left the Church, he wanted him
to return to it; that it was safe as to salvation, and that he
(witness) was at the head of a large connection, and that it
would have a good effect.

Witness’ wife, the mother of the testator, was a Catholic,
and a great many of his family were of the same persuasion.
John H. Piatt and the testator seemed very much attached
to cach other. Witness was satisfied that the testator was of
sound mind, and not laboring under delirium when the Will
was made. Witness did not like the Will, but thought it was
none of his business; tried to influence him in favor of Caro-
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 367

line Jenkins, but failed—that was, however, after the testator
expressed a wish that they should interfere.

The foregoing was, in substance, all the testimony relating
to the condition of the testator’s mind at the time of making
the Will, so far as detailed by those who were subscribing
witnesses, and present with him; and, without going into an
analysis of the facts thus presented, it seems to us that they
demonstrate satisfactorily the capacity of the testator to make
a will when the paper now in question was executed.

It is evident from the testimony of these witnesses: (1) that
he understood the necessity and importance of making a will
in order to effectuate his preconceived purpose of securing
the bulk of his property to his younger children; (2) that
he dispatched his father to Cincinnati for skillful counsel,
with whom he was familiar, and in whom he had confidence,
in order to draft a will that should express plainly his pur-
poses with regard to his property, and undergo the scrutiny
and inspection of courts, should it ever be called in question ;
(8) that he himself dictated to the draftsman of the Will its
provisions, carrying out the intentions he had before that
time avowed to him; (4) that the rough draft drawn in pur-
suance of his directions, was submitted to his inspection, and
amended by his own hand, and afterwards that the Will, when
copied from the draft, was also submitted to his inspection
and approved of; and (5) that it was formally signed and ac-
knowledged in the presence of the witnesses, who subscribed
their names as such, at his request, and in his presence and
that of each other.

That the testator then had a disposing memory; that he
recollected the property he was disposing of; the manner of
distributing it, and the objects of his bounty; or, in other
words, had mind and memory sufficiently sound to enable
him to know and understand the business in which he was
then engaged, are matters too plain, in our judgment, to
368 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

admit of serious doubt. Indeed, the force of the testimony
referred to is very frankly admitted by appellees’ counsel,
who concede that the correctness of the judgment in question
might be doubted if it depended wholly upon the testimony
of the subscribing witnesses.

Let us now proceed to inquire whether he was then labor-
ing under monomania upon the subject of religion, or upon
any other subject; and, if so, whether the Will in question
was the direct offspring of such monomania. For it must be
remembered that partial insanity, or monomania—terms that
are used and regarded in law as interchangeable—will not
of itself be sufficient to invalidate the Will. A man may be
insane upon one subject, and altogether rational upon all
others; and unless the will, which is assailed, be shown to
be the result or product of the monomania or partial insan-
ity, it cannot, because of such insanity, be defeated. (Jar-
man on Wills, Vol. 1, pp. 59 to 63, inclusive; Singleton’s
Will, 8 Dana, 321.)

In a case cited in Jarman, supra (p. 64), in which a will
was assailed upon the ground of partial insanity, in which
it appeared that, upon every other subject than the one on
which it was supposed he was deranged, the testator acted
rationally ; that he managed his house, his property and his
farm, granted leases, received tithes, kept his accounts, rec-
ognized his will, held rational conversation, and did church
duty: Sir John Nicholl said, “that a monomania to effect
such an instrument should be clear in point of existence,
and decided in character, beyond all doubt.” (8 Hagg. Re-
ports, 527.)

Now, in this case it is clearly shown that the testator was a
man of eminence in his profession ; that he had accumulated
a large estate, mainly, if not altogether, by his own thrift and
energy; that he managed his own affairs, attended to his pro-
fessional and private business with zeal, acted rationally in
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 369

all such transactions, recognized his Will, held rational con-
versation, and was devoted to his church.

Is there any reason for demanding less evidence here? or,
in other words, ought not the contestants of the Will to es-
tablish by clear and satisfactory evidence, not only the ex-
istence of the alleged monomania, but also that the Will was
the result thereof? It seems to us that if ever a case de-
manded such proof, the one in hand does.

That the testator was a zealous and devoted Roman Cath-
olic, is well proved; but that he was a monomaniac upon
the subject is, in our opinion, not only opposed to the weight
of the testimony of the witnesses who depose concerning that
matter, but directly in opposition to many prominent and
significant facts of the case.

It is proved that the leading characteristics of the man
were energy and zeal in whatever he undertook. To sup-
pose that he would be less zealous and energetic in main-
taining his peculiar religious tenets, would be not only unrea-
sonable, but opposed to all knowledge of human character.
It was but natural that he should exert his influence for the
promotion of the interest of his church, and it would have
been unnatural for him not to do so in the same manner that
characterized his efforts in temporal affairs.

His anxicty that his father and other of his relations should
embrace what he regarded as orthodox doctrine, and unite
themselves to his church, or that to which he belonged, may
have betrayed him into the use of intemperate and harsh ex-
pressions concerning other denominations, such as are related
by three or four witnesses—including Mrs. Louise Piatt, Donn
Piatt and Smith—but such expressions, when we regard the
peculiar temperament ‘and impetuous self-will of the testator
in reference to whatever he undertook, were but natural, and
cannot be regarded as evidence of monomania or insanity.

They may be said to indicate intolerance, or even bigotry,
370) 9M. &. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL.

but nothing more; and to denominate all bigots or religious
partisans monomaniacs, and to that extent incapable of mak-
ing a valid will, would prove highly disastrous to the exer-
cise of the will-making power.

But a number of the witnesses, familiar with the testator
and intimate with his character, exonerate him even from the
charge of intolerance or bigotry.

Judge Storer, one of the appellees’ witnesses, who knew him
for thirty years, states, that he never had any particular con-
versation with him on religious subjects; that he had heard
him in general express his opinions upon his peculiar faith, but
never that he remembered was the testator obtrusive or dis-
posed to proselyte ; that he was very warm in the mode of
his expression, but never offensive to others.

Judge Spencer, who knew him forty years, states, that he
had never exerted himself in proselyting to the Catholic
Church, that he knew or heard of, among his most intimate
friends. *

Mr. Van Matre, another intimate and professional acquaint-
ance of the testator’s, says, “‘ That, during all his acquaintance
with him, he had no recollection of his ever attempting to
influence his religious opinion, or that of others.”

Doctor Purcell says that he was well acquainted with him,
and did not think him enthusiastic, much less fanatical, in his
religious views; but he believed firmly and was ardent. And
we have already seen what his father and Judge Johnston say
upon the same subject.

That he was not a bigot or intolerant, or allowed his relig-
ion to interfere with his social and business relations, is
manifest from what was stated by Johnston in reference to
those in his employ and pay—that is, that he employed law-
yers, doctors and others, without regard to their faith.

It seems also, that Dr. Harding and Dr. Wood were both of
different faith, and yet were called inas his physicians. Prot-
M. BE. PIATT, EXEO’X, vs. JOHN H. PIATT ET AL. 371

‘estants were, or seemed to be, as much in his employ and
favor in his latter as in his former days; and, in voting for
Judge Parker, he manifested the same degree of tolerance—
he being, as the record shows, not only a Protestant, but a
candidate upon the American ticket.

Dr. Harding, for whom he sent when he was injured by the
saw, and who attended upon him, says, that “ Mr. Piatt was a
Catholic in his faith, He frequently reverted to religious sub-
jects, but I thought not more frequently than persons com-
monly, who considered themselves dangerously ill. I had
several conversations with Mr. Piatt with regard to his relig-
ious faith, and have heard him express himself warmly and
confidently in regard to the faith and doctrines of his church:
but I am not aware that he exhibited more prejudice or firm-
ness with regard to the tenets of his church, than is common
with men of strong and impulsive minds.”

Daly, his student and partner, says, he never in his life heard
him utter an unkind word against any one on account of
his religion ; but, on the contrary, that he knew him to have
strong partialities for those of a differeut faith.

Mrs. Stillé, the lady with whom he frequently ate, says, that
she never heard him converse on the snbject of religion but
once, and that was when he remarked to her, in a jocular way,
that if she was a Catholic, she would be all she should be:
to which she replied in the same manner, and expressed her
surprise that he should talk thus to an Old School Presby-
terian: to which he said, it was rather presumptuous.

In regard to his public speeches, and the language said to
have beeh uttered by him in respect to the Bible, it is sufficient
to say, that they tend to indicate more clearly the peculiar
temperament of the man, and his habit of using harsh and ex-
treme expressions in reference to everything that at all con-
flicted with his views; but certainly not insanity. They
show that he was fearless in the expression of his sentiments,
3872 M. EB, PIATT, EXEC’X, vs, JOHN H. PIATT ET AL.

and not very choice in the selection of words to convey
them ; evincing a remarkable power of will and indifference
as to public opinion, traits which the witaesses say he pos-
sessed in an eminent degree.

As to derangement upon other subjects, the testimony is
altogether wanting; and we will not stop to notice what is
said about his expressions of opinion in reference to ciairvoy-
ance and spiritualism, subjects about which, as the record
shows, various opinions were then entertained.

In regard to the supposed prejudice of testator against his
son John, and the effort to show that it originated in the differ-
ence of opinion between them upon the subject of religion, we
have to say, in the first place, that the evidence, in our opin-
ion, failed to show that the father entertained feelings of dis-
like for his son—certainly not such as would effect the va-
lidity of the Will.

It is not denied that the testator was an energetic and self-
made man, not disposed to brook opposition or difference of
opinion in his family. The son was high spirited, and partook
somewhat of the qualities of the father. Tt could not be ex-
pected that uninterrupted harmony could always exist between
them upon every subject and in every transaction. Such a
thing would have been almost impossible. It was natural that
the father should desire the son to embrace his religious views,
and just as natural that the latter should adhere to the faith of
his mother. <A difference of this kind would necessarily bring
about occasional and unpleasant ruptures, manifested by harsh
words or sharp expressions; but notserious or lasting breaches,
resulting in ill-will or hatred. It may be true, and doubtless
was, that the father did not manifest as much regard for his
son’s views and proclivities upon the subject of religion as he
ought to have done; but that he entertained a feeling of dis-
like or hatred for him, either on that account or any other,

is certainly not shown by this record.
M. E, PIATT, EXEC’X, vs. JOHN H. PIATT ET AL, 373

It was upou the invitation of the father that the son
came to his house; he educated him and initiated him into
business; was, as his grandfather and other witnesses say,
proud of his talent and promise. The son lived with the
father and attended to his business after he was grown up and
able to take care of himself. The utmost confidence and good
feeling seems to have existed between them, except on the
subject of religion. The son was with his father during his
last illness, waited upon him, and, so far as the record shows,
there was a reciprocal regard manifested by the father to-
wards him.

If the hatred or prejudice referred to did actually exist, can
it be with reason supposed that the father would have entrusted
the son with the management of important business, and ex-
pressed a desire that he should attend to his widow’s business
after his death—a desire that seems to have been complied
with by the son until the controversy about the Will arose?
or, would it have been natural for the testator to have had
him at his house, waiting upon him as he did?

These facts, about which there is no dispute, all militate
against the idea of a deep-seated prejudice or hatred, or indeed
of ill-will, on the part of the father towards his son ; and much
more effectually do they demonstrate, that there was not and
could not have been such prejudice or hatred as would amount
to an insane delusion concerning the son, suflicient to invali-
date the father’s testamentary capacity. It is worthy of no-
tice, too, that the father placed his Catholic daughter and
Protestant son pretty nearly upon an equality, thus showing
no preference because of their religious faith.

In reference to the alleged exercise of undue influence of
Mrs. Piatt, the wife of the testator, through his spiritual ad-
viser, but little need be said.

The testimony of Johnston and the two Piatts, Benjamin,

- - §r., and Jr., is conclusive that no such influence was attempted
374 M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL,

to be exercised when the Will was made. On the contrary, it
shows that, except so far as the father and mother were con-
cerned, the testator would not be influenced by any one ; but
had his own way, and carried into effect his fixed and precon-
ceived purposes with regard to the disposition of his property.
And the effort to prove such influence by the Catholic priest,
or any one else, was a complete failure. Indeed, the character
of the testator for firmness of purpose, and decision, up to the

execution of the Will and afterwards, forbids the belief that
he was susceptible of such influence. .

Besides, the Will itself shows that Mrs. Piatt could not have
had much control, if any, in directing the mind of the testator
—certainly no undue control. By its terms she only takes
such interest as the laws of the several States, where the prop-
erty is situated, give her as doweress. It is true, that she is
made trustee for her children, and is vested with some dis-
cretionary power in distributing the property.among them ;
but even that is restricted, and she is to be deprived of the
trust whenever she marries. It seems that she objected to this
restriction ; but her objection was not heeded, and the testa-
tor adhered to his own determination.

So far we have passed unnoticed the testimony of the mul-
titude of witnesses, testifying as to the testator’s capacity to
make a will; but who were not present when it was made;
because, in our opinion, his testamentary capacity was suffi-
ciently made out by the subscribing witnesses and the father
of the testator, who were present at the execution of the Will.
Nor do we deem it necessary now to notice it, farther than to
say, that it has been all carefully considered, and, in our opin-
ion, the preponderance of the evidence alluded to most clearly
proves and corroborates that of the subscribing witnesses ; and,
when taken all together, with the Will itself, there is, in our
opinion, no escape from the conclusion, that the paper in
M. E. PIATT, EXEC’X, vs. JOHN H. PIATT ET AL. 375

question is the last Will and Testament of Jacob W. Piatt,
deceased.

From the facts disclosed by this record, we have no hesita-
tion in saying, that the testator was of sound mind and dis- -
posing memory when the Will was made; and further, that
the verdict is clearly and palpably opposed to the evidence.
To reject a will, supported by such evidence, would, in our
judgment, tend to render insecure the right given to every
man of sound mind to dispose of his property as he chooses
at his death.

Wherefore, the judgment of the Circuit Court is reversed ;
and cause remanded, with directions to affirm the judgment
of the County Court, admitting the Will to probate.
Hannah C. Grandin, Adm’x de bonis non,
US.

The United States.

UNITED STATES COURT OF CLAIMS,
Drake, C. J., Presiding,

At Wasuineton City, A. D. 1873.

VERBAL ASSURACES: COMPROMISE UNDER DURESS.

PRELIMINARY STATEMENT.

All the facts material to the issue in this cause are fully
stated in the argument, and need not be repeated; but there
is some romance in the case which may help to explain the
intervention of fifty-eight years from the time the debt ma-
tured till the money was paid.

Several eminent gentlemen, Jacob Wykoff Piatt, Esq., Hon.
David T. Disney, Hon. Nathaniel C. Read and others, had
urged the claim before all the Departments of the Govern-
ment without. success—-had given it up in despair, and had
died.

Next, Hon. Thomas Ewing and Hon. Samuel F. Vinton,
two of the most eminent lawyers of Ohio, were retained, and
brought suit in the Court of Claims in the name of the heirs
at law of John H. Piatt, and, after collecting what testimony
Time and Mortality had left, dismissed the case, and with-
drew the papers from the files.

Next, Judge Johnston was brought into the case. On ex-
amination of such papers as could be found and inquiry at

‘the Clerk’s office, he learned that the case was out of court,
(376)
HANNAH C. GRANDIN, ADM’X, vs, UNITED STATES. 377

and that the statute of limitations would bar any further
prosecution of the claim in a few days.

On motion, the case was reinstated, but the court papers,
including the depositions of Judge McLean and others, were
gone; nothing remaining but a petition, in some unknown
handwriting, interlined, patched and amended by Mr. Ew-
ing. The new attorney pledged himself to find the papers
by the first day of next term, or to dismiss the case.

Here commenced the search for the court papers. They
had been last seen in the hands of Mr. Vinton, and Mr.
Vinton was dead. When Vinton died, his law practice went
to Charles B. Goddard, of Zanesville. And when Goddard
died, his law practice went to Philemon B. Ewing, of Lancas-
ter. This line was explored, and nothing found; and “Time
was on the wing.” Passing through the old City Court he
was accosted by Mr. Coombs, an old friend of Mr. Vinton,
who asked him what the name of his client was, and being
informed that it was Piatt, he said he remembered some such
name on a batch of papers which, after Vinton’s death, he
helped to pack in a box, with a large quantity of others. The
box was packed hard, and the lid fastened down with screws;
but what had become of it he did not know.

Judge Johnston went in a straight line to the old Vinton
mansion to inquire of Mrs. Dahlgren what was done with her
father’s old papers, and learned that she was in Valparaiso
with her husband. He then sought Mrs. Dahlgren’s daugh-
ter, and learned that she had gone to Europe.

He immediately called on Mr. Coombs to learn whether
there was in America a living soul of the blood of Samuel
F. Vinton, and wax informed that there was a grandson, Sam-
uel F. Vinton Goddard, a cadet at West Point. He imme-
diately wrote to this cadet, asking him for any information
he could give about his grandfather’s papers, and the young
gentleman, instead of a written reply, took leave of absence,
came to Washington, and headed the exploring party, and
discovered in the cock-loft of his grandfather’s old stable a
heavy box. The lid was removed, and the first batch that
came to hand was the object of pursuit. The papers were
filed and the parties in court.
378 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

But the causes of delay were not yet passed. Messrs, Ew-
ing and Vinton had brought the suit in the name of the heirs
at law of John H. Piatt, and, after Judge Johnston had com-
menced his argument, the Court inquired who and where
were the executors, and the Judge replied that they were
both dead, having long since settled up the estate; and said
he had followed the lead of two great lawyers, but would
take the suggestion of the Court, and have an executor de
bonis non appointed ; but that this would have to be done in
Hamilton county, Ohio, and would cause another term’s de-
lay. Mrs. Grandin was appointed, and a new petition in her
name as executrix prepared and filed.

But here a grave question sprung up, whether the filing
of this new petition would be an amendment to the old one,
or a proceeding de novo, in which latter case the statute of
limitations would be a bar. The same question was before
the United States Supreme Court in a case represented by
Caleb Cushing; and it was thought advisable to await the
ruling of that court on the point, before going to a hearing.
The new petition, however, was filed at a venture, and the
plaintiff rested till the question was settled.

Feeling now that the breakers were past, the plaintiff’s at-
torneys went into the merits of the case, and the following
argument was made by Judge Johnston. Thomas Wilson,
Esq., of Washington City, and Major Ben. M. Piatt, of Cov-
ington, Kentucky, were associated with Judge Johnston in
this cause.

The hearing in the Court of Claims was before four judges,
the fifth being sick. The Court were evenly divided in their
opinions, and gave the attorneys for the plaintiff the choice,
either to have the case set down for rehearing before a full
bench, or to have a finding of the facts made and let judg-
ment be entered in favor of the United States. To expe-
dite matters, the latter alternative was accepted, and the
cause was taken to the Supreme Court, on appeal. In this
court of last resort the case was again argued, and was
decided in favor of the plaintiff, the judgment being for
$131,508.90.
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 379

ARGUMENT OF JUDGE JOHNSTON.

May it please your Honors:

It has been often said, and I partly believe it, that Re-
publics are always ungrateful. Among those who followed
Washington through the war of Independence; stood with
him in the brunt of battle; endured with him the toilsome
march; suffered with him the extremes of heat and cold,
hunger and hardship for seven years; that you and I might
be free, was Colonel Jacob Piatt. For all this he was paid
in continental scrip, and consigned to poverty. Unwilling
to brook the wealth and pride of inferior men in his native
State, he left New Jersey, and built himself a home in Ken-
tucky, on a tall cliff which overlooks the city of Lawrence-
burg and the broad rich fields of Ohio and Indiana. Here
he lived and here died, and here he lies buried under a
simple little monument, with this inscription: “In memory
of Jacob Piatt, who was born May 16, 1747, and departed
this life August 14, 1834, in the 88th year of his age. He
was a soldier of the Revolution and a soldier of the Cross.”

This venerable man had three sons, John H. Piatt, Ben-
jamin M. Piatt, Abram S. Piatt; and two daughters, Hannah
C. Grandin and Nancy Dunn.

John H. Piatt, under whom all these parties claim, died,
childless, in the city of Washington, on the 12th day of Feb-
ruary, 1822, and I venture to say there is not a more mel-
ancholy history of ill-requited patriotism, than this man’s life
and death afford.

At the time this contract with the government was en-
tered into, he was the most prosperous, perhaps the richest
merchant in Ohio, and being brought up in the West, he
380 HANNAH C. GRANDIN, ADM’X, v8, UNITED STATES.

knew the resources of the western country better than most
other men. He was then the fittest man to provide subsist-
ence for the North-western army that could be found, per-
haps the only man that could have done it.

STATEMENT OF THE CASE.

1, John H. Piatt, the ancestor of the claimants, had been
commissary to the North-western army, from the beginning
of the war of 1812, up to the 26th of January, 1814, when
he became a contractor for supplies. At that time he had
in his hands a balance of the commissariat fund amounting
to $46,112.56.

2. On the 26th day of January, 1814, he contracted with
the Government of the United States, to furnish rations to
the North-western army for one year from the 1st day of
June, 1814, to the 31st day of May, 1815, both days included,
at the rate of twenty cents per ration.

3. By the tenth article of this contract, and the usages of
the department, it would appear that the Government was
to furnish him, from time to time, with money to purchase
these supplies for the army, to be accounted for on settle-
ment every three months.

4. By the first day of January, 1815, after expending in
the purchase of supplies the $46,112.56 remaining in his
hands from the commissariat fund, and all the other means
furnished him by the Government, there was due him, for
supplies already furnished, over $200,000, and his drafts on
the Government for over $140,000 were under protest for
want of funds in the Treasury to pay them.

5. Meanwhile all the gold and silver in the Treasury was
exhausted, and the Government had resorted to the issuing
of Treasury notes, which were at a large discount. Worse
still, the enemy had captured Washington City, and burnt
the capitol. The whole country was paralyzed. All the
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 381

banks south and west of New York suspended specie pay-
ments. The country was flooded with irredeemable paper.
The currency went down and preduce went up, till supplies
could not be had for less than forty-five or fifty cents the
ration.

6. In addition to other embarrassments, on the 26th of De-
cember, 1814, Gen. Duncan McArthur made a requisition on
Mr. Piatt for 800,000 rations, to be delivered within thirty
days on the frontier, which would have cost $360,000.

7. In the last days of December, 1814, Mr. Piatt repaired
to Washington City to surrender his contract, as he was ad-
vised by eminent counsel he lawfully might; and on or
about the first day of January, 1815, accompanied by the
late Judge McLean, went to Mr. Monroe, acting Secretary
of War, and stated his case, and avowed his intention to sur-
render his contract. Mr. Monroe did not pretend that the
contract was not forfeited, but appealed to his patriotism,
imploring him not to desert his country in the hour of peril;
and gave him assurances that, if he would go on and furnish
the supplies, he should be indemnified for any loss’ sustained.

8. These assurances renewed Mr. Piatt’s exhausted credit,
and he went on promptly supplying the army at a cost of
forty-five or fifty cents the ration till the close of the war.

9. Outside the original contract, Mr. Piatt, by order of the
War Department, furnished rations to hundreds of destitute
persons, both friendly Indians and white people, who had
been driven from their homes and were on the verge of star-
vation, and also bought up all the provisions he could find
in the neighborhood of Malden to keep them from falling
into the hands of the enemy.

WHAT IS NOT CLAIMED.

1. Mr. Piatt lost largely by the increased price of produce,
consequent upon the depreciation of the currency between
382 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

the first of June, 1814, and the first of January, 1815; but
as these losses occurred before the assurance of Mr’ Monroe
was given, nothing is claimed on this score.

2. The rations furnished to the starving Indians and white
refugees were fully paid for, and nothing is claimed on this
score. :

3. The money expended in purchasing provisions in the
neighborhood of Malden, to keep them out of the hands of
the enemy, has been fully reimbursed, and nothing is claimed
on this score.

4, All damages on protested bills of exchange have been
fully settled and paid by the Government, and nothing is
claimed on this score.

5. For losses on the purchase and resale of horses for Gen.
McArthur’s proposed expedition, Mr. Piatt was fully indem-
nified, and nothing is claimed on this score.

6. Numerous items were rejected at the departments, be-
cause Mr. Piatt could not produce such vouchers and proofs
as were required, but nothing is now claimed on that score.

THAT WHICH IS CLAIMED.

That which is claimed is the difference between the price
originally contracted for (twenty cents the ration) and the
price actually paid (forty-five or fifty cents the ration) for
all the rations furnished to the North-western army between
the first day of January, 1815, when the assurances were
given by Mr. Monroe, and the close of the war.

WAS THE CONTRACT FORFEITED ?

The first question to be considered is, had the Government
forfeited the contract, so as to release Piatt from his obliga-
tions under it? and, in this inquiry, it makes not the slightest
difference whether the Government was unable or unwilling

to perform.
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 383

On the 26th of January, 1814, when the contract was made,
there were gold and silver in the Treasury, and the nation
was in good credit. On the first of June, when the contract
was to take effect, the gold and silver were all gone, and the
Government had resorted to Treasury notes. Piatt had in
his hands $46,112.56, the balance of the commissariat fund.
To this extent he was bound to go, but no further. But he did
go further; he expended this fund, and other funds furnished
by the Government, and over $200,000 of his own private
money, in the purchase of supplies, and when he drew on
the Government for part of her indebtedness, his drafts, to
the extent of $210,000, went to protest; not because he had
not a right to draw them, but because there was nothing in
the Treasury to meet them. The affairs of the Government
had been desperate enough through the months of June and
July; but when, in the month of August, the enemy capt-
ured the Federal City and burnt the Capitol, it was utterly
bankrupt, and all confidence was destroyed. All the banks
South and West suspended specie payments, and irredeemable
paper flooded the country, till it was a matter of local pref-
erence whether the issues of the banks or the issues of the
Government were the most worthless. Suffice it to say, the
Government let Mr. Piatt’s drafts go to protest, and offered
no other excuse than inability to pay. He was out of pocket
$200,000, and out of credit ad infinitum.

Here again, at the most inauspicious moment, and the most
inclement season, Gen. Duncan McArthur made a requisition
on Mr. Piatt for 800,000 rations, to be delivered on the North-
ern frontier within thirty days, which, at the lowest rates at
which they could be delivered, would cost $360,000. Under
these circumstances, will any man who respects his own rea-
son say that Mr. Piatt was not released from his contract ?

Here let me read a paragraph from the report of a select

committee of Congress, made January 9, 1824, through John
25
3884 HANNAH ©. GRANDIN, ADM’X, US. UNITED STATES.

Sargeant, one of the ablest lawyers that ever graced the Amer-
ican Bar or held a seat in Congress, and sce what this com-
mittee thought about the right of Mr. Piatt to surrender his

contract :

“Tn the month of December the bills of Mr. Piatt on the
Government, to the amount of $210,000, were dishonored, and
lay under protest in Washington, from the mere inability to
pay them. It is not, and never has been, alleged that Mr.
Piatt had not a right to draw these bills. On the contrary,
his right has always been admitted, and the only reason as-
signed for not paying them was the want of money. The
Government, therefore, at the period now mentioned, was in
default; had broken the contract, and thereby liberated Mr.
Piatt from the obligation imposed on him.”

In this connection let me read a paragraph from the Con-
gressional Report of February 12, 1852, by Mr. Edgerton,
a cultivated merchant, versed in the law-merchant and the
legal effect of defalcations in the fulfillment of contracts:

“These protests, and the difficulties and embarrassments
they occasioned, brought Mr. Piatt to Washington in De-
cember, 1814, when, under the circumstances, he felt com-
pelled to abandon his contract. He knew himself, he was
advised by counsel, and the Department did not deny his
right to do so; and Mr. Calhoun, in his letter above referred
to, says, in this connection, that the contractor, under the
circumstances which he alleges, and the truth of his allega-
tion in this respect was never questioned, would not have
been held responsible to the Government in Courts of Jus-
tice for the damages to the Government for the non-fulfill-
ment of his contract; and further, that this was probably the
inducement of the Secretary of War to make the promise of
indemnity, if it was made; and on this point there is suffi-
cient evidence, for it is dlsatly proved, and in the only mode
in which it could be proved; and Congress, with all the tes-
timony before it, recognized the fact by the act of the 8th
May, 1820, authorizing allowances, based on this promise of
indemnity.”

.
HANNAH Cy GRANDIN, ADM’X, v8. UNITED STATES. 385

The same conclusion of law is stated by several other com-
mittees of Congress, but I forbear; asking leave only to read
one more authority on this point. Judge McLean, who ac-
companied Mr. Piatt to the residence of Secretary Monroe,
referring to what passed there, in his deposition taken in this
case, says: “I entertained no doubt, under the circumstances,
the Government’s failures had released him from the obliga-
tions of the contract; and this being the case, he had a right
to expect indemnity. I did not understand that Mr. Piatt
claimed anything more than this.”

WERE THE ASSURANCES GIVEN?

The next question is, were the assuraices given? It is
fair to presume that Mr. Piatt acted in accordance with the
known laws of human action; and if he did, beyond all
question the assurances were given. There is no proof of
insanity ; and if he was of sane mind, he never would have
done what he did, without these or some other assurances.
He had expended all his means; mortgaged all his estates;
involved all his friends; lost all his credit; and was required
to furnish supplies to the extent of $360,000, at a cost more
than double the original contract price; and this too with a
full knowledge of his right to abandon his contract.

There is proof enough that he had an interview with Mr.
Monroe; that, before this interview, he had resolved to
abandon the contract ; that, after the interview, he was re-
solved to fulfill it. It is then clear enough that something
had wrought a change in his mind, and that, according to
his account, was the assurances Mr. Monroe had given that
he should be indemnified for all his losses.

But we are not left to work out this conclusion by argu-
ment alone. We have the testimony of Judge McLean, who
was living when this suit was brought, and gave his deposi-
tion. He was present when the assurances were given, and
386 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

remembered the facts distinctly, though he had forgotten the
words ; but it is better to let the Judge speak for himself.
His testimony is in the form of a letter in response to one
addressed to him by Hon. Thomas Ewing, which called his
attention, by way of refreshing his memory, to two former
letters of his on the same subject: one addressed to President
Monroe, and one to Hon. John Sargeant, the chairman of the
select committee, to which was referred the memorial of the

legal representatives of John H. Piatt. It reads thus:

“ WASHINGTON, February 16, 1857. I have just read my
letter to Colonel Monroe, dated Washington City, January
5th, 1816, and also my letter to Hon. John Sargeant, dated
at Washington, February 9, 1828, respecting the army con-
tract with John H. Piatt, of Ohio, to supply the North-west-
ern army; both of which letters are published in the Ameri-
can State papers, entitled claims, and published by Gales &
Seaton in 1834. The first letter is published on page 899,
and the second on page 902.

“In my letter to Mr. Monroe I observe certain sums are
stated in regard to drafts, on the authority of Mr. Piatt.
Of these I have at this time no distinct recollection, whilst
Iam sure the statements were correct, as communicated to
me by Mr. Piatt. I was then a member of Congress from
the Cincinnati district, the residence of Mr. Piatt, who nat-
urally applied to me to afford him what aid I could.

“Tt would be difficult, if not impossible, at this time, to
impress any one fully with the distressing embarrassments of
the Government at that time.

“The surrender of Detroit by General Hull had caused
great apprehensions in many parts of Ohio of Indian depre-
dations. The capture of this city and the destruction of the
public buildings had astonished the country. Public spirit
seemed to be utterly prostrated. Under the circumstances
Mr. Piatt came to Washington with a determination, as I
understood, to surrender his contract. He informed me
that he had tried to have an interview with Mr. Monroe,
acting Seerctary of War, but was not admitted.
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 387

“T accompanied him to the private residence of Mr. Mon-
roe, and we were admitted. Mr. Monroe was exceedingly
feeble. I understood that he had: not sufficient strength to
go to his office. His system appeared to be nearly ex-
hausted by the pressure of his public duties; and I observed
that he was very nervous.

“T have no distinct recollection of the words used in the
interview, nor whether Mr. Piatt or myself first stated to
the Secretary the failure of the Government to meet his
drafts; but I have a distinct recollection that Mr. Piatt ex-
pressed to me a strong determination, before the interview,
that he should give up his contract, as it would be ruinous
to him to continue it under the circumstances; and, on his
return, he expressed himself satisfied with the assurances
given, and that at all hazards he would continue the sup-
plies. I entertained no doubt, under the circumstances, the
Government’s failure had released him from the obligations
of his contract, and this being the case he had a right to
expect indemnity. I did not understand that Mr. Piatt
claimed anything more than this.

“YT urged Mr. Piatt strongly not to withhold his supplies,
and I could not have done this, had I not believed the con-
versation with Mr. Monroe authorized him to rely on the as-
surances given. JI am impressed that it was on the same
occasion, Mr. Monroe said that he had made temporary loans
from the banks of the District of Columbia and the adjoin-
ing States, for the use of the Government, and that these
loans had become payable and he had not the means of pay-
ing them. He said that Treasury notes would not be taken
in the North for provisions, and that unless Congress should
do something to revive the public eredit, he was apprehen-
sive that our Northern army could not be kept in the field.
These facts were so impressed on my mind, and I have so
often adverted to them in conversation and in writing, that
I remember them as well as if J had heard them recently.
I refer to my first letter, in regard to the remarks of Mr.
Monroe as a part of this affidavit ; and also, as to the char-
acter of Mr. Piatt, to the second letter, dated in 1823.

“When we had the interview with Mr. Monroe, I was
388 HANNAH C, GRANDIN, ADM’X, vs. UNITED STATES.

but little acquainted with public affairs, and I have never
recurred to the circumstance that I did not regret that a
written assurance was not required.

“Before Mr. Piatt engaged in the above contract, he had
the means, as I supposed, of acquiring the largest fortune
of any individual in Cincinnati. I think his resources were
greater than those of any other individual of my acquaint-
ance. J have always understood, and believe, that he was
ruined by the contract.

“ Being in Washington urging his claims, I was informed,
and believe, that he was arrested by a creditor, and that he
was confined to the prison limits where he died. This, as I
believe, was the fruit of devotion to his country, unsurpassed
if equaled, by any army contractor.

“T am not aware to what extent reparation has been made
in this case. Joun McLean.”

“Sworn and subscribed before me this 13th day of Febru-
ary, 1857. B. R. Curtis, Justice of Supreme Ct. U. 8.”

“‘T have no questions to ask, and agree that the foregoing
statement, when subscribed by Judge McLean, may be read
in evidence in the case of the Rep. of John H. Piatt, as if
formally taken as a deposition. M. Buatr, Solicitor.”

There is also a curious document, amongst the records re-
ferred to in this case, by one Tench Ringgold, headed, “ Re-
marks respectfully submitted to the President on the Claim
of Mr. J. H. Piatt, late Contractor of Army Supplies.”
Whether it relates to the same interview between the Sec-
retary and Mr, Piatt related by Judge McLean, is not ap-
parent. McLean does not mention the presence of Ringgold,
and Ringgold mentions McLean only as if he had read his
letter to Mr. Monroe. Ringgold’s story is this: “The Treas-
ury of the United States was, at this time, incompetent to
pay all the demands on it; and Mr. Monroe, who was well
aware of this fact, and apprehending that it would not be
in his power to meet the wishes of Mr. Piatt as above
HANNAH C, GRANDIN, ADM’X, vs. UNITED STATES. 389

expressed, told Mr. Piatt to go on, as stated by Mr. McLean,
and that he should not be the loser by it.”

So far Mr. Ringgold contents himself with the mere state-
ment of facts, and most probably states them correctly ; but
then he undertakes to tell President Monroe what, Secretary
Monroe meant by this language. He adds: “ Meaning, I
presume, by these words, that if it was not in his power to
pay the drafts, or advance the cash to Mr. Piatt, he would re-
munerate him and the banks which held his protested notes,
by allowing them legal interest on any amount of money act-
ually advanced by him or them for the Department.”

Now this voluntary commentary is simply ridiculous. If
Mr. Monroe said go on, and you shall not be the loser by it,
the go on looked to the future and not to the past. What
was he to go on and do? To fill Gen. McArthur’s requisi-
tion for 800,000 rations, which would cost him $360,000—
and he should not be the loser by this operation. As to the
past, Mr. Piatt claimed nothing but the payment of what was
already due him for supplies furnished under the contract.
This contract, being forfeited by the Government, was no
longer binding on him, and what he wanted was indemnity
for the future.

It was kind in this gentleman to explain to President Mon-
roe what Secretary Monroe meant by a very laconic sentence
of good English; but it was unkind in him to tell four man-
ifest lies, in the same paper, to prejudice the mind of the
President against the man who, by unparalleled toils and sac-
rifices, had rescued the fortunes of war in the North-west
from total failure.

“The four lies are these: First, that after Mr. Ringgold
supposed that Mr. Piatt had started for home several days,
he came back and demanded, and received from Mr. Mon-
roe, $20,000 in addition to what had been given him already
to his entire satisfaction; Second, that he accidentally dis-
390 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

covered that Mr. Piatt had made use of the money paid him
on this occasion in the purchase of Metropolis Bank stock
for his own usc, instead of supplies for the North-western
army; Third, that he had been informed that, at this period,
Mr. Piatt was a large subscriber to the loan of the United
States; Fourth, that it was very certain that Mr. Piatt had
made a large fortune by his contract.

Each and all of these statements have been proven by the
records to be false. As to the second and third, he may not
have been the original inventor. Some blatherskite may have
told him these things. As to the first and fourth, he could
be under no misapprehension. He could not but know that
the story about the additional $20,000 received by Mr. Piatt
was false; and, as to his making a large fortune by his con-
tract, he knew that in his own custody, as Marshal and ex
officio jailer of the District of Columbia, John H. Piatt, pov-
erty-stricken and heart-broken, laid down and died without
a penny in his pocket.

But this question of assurance need not be labored further.
Four different committees of Congress, on proofs satisfactory
to them, have found that these assurances were given by Mr.
Monroe, and that Mr. Piatt acted upon them.

WERE THESE ASSURANCES OF BINDING FORCE?

The next question is, whether these verbal assurances of
the Secretary of War, were of binding force upon the Goy-
ernment? If it were an executory contract, sought to be en-
forced against the Government, I should say, certainty not;
but where a verbal contract is executed, and the party has
taken the benefit of it, it is quite a different affair. This
rule of law is too simple and elementary to admit of dis-
cussion, and the question of law is resolved into a question
of fact, whether the Government took the benefit of what
Mr. Piatt did under these verbal assurances? This carries
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 391

us back to the first day of January, 1815, when the thick
cloud of war hung over our country from the mouth of the
Mississippi to the sources of the St. Lawrence; and when
the ruins of the Capitol were yet smoking from the fire-
brands of the enemy ; and when an empty Treasury was rep-
resented by depreciated bills, floating about like the leaves
of autumn. No one believed that John H. Piatt, embar-
rassed as he was, could provision the North-western army.
Every one knew that, unless provisions were furnished, the
army would have to be disbanded; the great Mississippi
Valley overrun by the enemy, and all the frontier settle-
ments given over to the scalping-knife and the tomahawk
of the savage. But, with the verbal assurances of the Sec-
retary of War at his back, he obtained the credit and the
money (such as it was), and to the last ounce of supplies and
the last hour of the war, he executed his verbal contract to
the letter, and the army subsisted on the supplies he fur-
nished. It is now too late to enquire whether these verbal

assurances are of binding force on the Government.

WHAT WERE THESE PROVISIONS WORTH?

The next question is, what were the provisions worth?
What did they cost ‘Mr. Piatt? The quantity furnished un-
der the assurances was 781,480 rations. What these cost per
ration is not so easy to determine; but the report of the
Quartermaster-General Swearingen, whose business was to
inquire, and the deposition of thirteen witnesses on file in
the comptroller’s office, fix it at forty-five to fifty cents the
ration, and in the numerous accounts stated by the account-
ing officers the lesser sum is taken as the basis of their cal-
culations; and this sum has been taken by all the several
committees of Congress as a sufficiently accurate estimate.

We naturally believe more readily that which is reason-
able than that which is unreasonable. Let us then inquire
392 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

for a moment whether it is reasonable to suppose that the
supplies for the North-western army cost forty-five cents the
ration at the time referred to? whether so great a change
could have transpired in so short a time? It would appear
from some of the documents that Piatt took his contract
twenty-five per cent. lower than any other contractor. Tak-
ing the price paid other contractors, twenty-six and two-
thirds cents, as a standard, the change from that to forty-
five is not violent for the times in which it occurred. We
have seen in our own times, in a country where corn was
dull at ten cents the bushel, the same article, under the joint
influence of war and depreciated currency, run up to a dol-
lar the bushel or more.

In the light of our present experience, let us run back
to the war of 1812, and to the juncture in which the events
under consideration happened. When Piatt’s contract was
made the Treasury was flush, and the Government was pay-
ing gold and silver in advance for commissariat supplies.
By the 1st of June, when his contract went into operation,
‘the gold and silver were out, and the Government had re-
sorted to Treasury notes. There were throughout the West
hundreds of Revolutionary soldiers, who had been paid for
their seven years’ services in Continental scrip, who, good,
easy men, could not distinguish between Continental scrip
and Treasury notes. With them it was but a new name for
an old thing. Mr. Monroe said the Treasury notes would
not be taken in the North for provisions. Worse yet, in
the month of August the enemy took Washington City and
burnt the Capitol, and in the universal consternation which
followed, all the banks west and south of New York stopped
specie payments, and the country was inundated with ir-
redeemable bank paper, better or worse, as Mr. Smith testi-
fies, than Treasury notes, depending on the locality in which
it was to be used. All manner of produce in the sparsely
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 393

settled West was well nigh exhausted, and to that which
remained the farmers attached a peculiar importance; the
backwoods farmer knew that a steer or a hog, or a sack of
wheat or of corn would feed his children, but he did not
know of how much importance the new Continental scrip
might be to him; and, so it was, the currency went down
and produce went up, until it is surprising that the rations
furnished under the assurances after the 1st day of January,
1815, cost no more than forty-five or fifty cents the ration.

Relying then on the proofs as they were before the ac-
counting officers ; and taking their calculations to be correct,
our account is easily stated, and stands thus:

U.S. Dr. 730,079 rations, 45 cents . Bowe at $328,531.51

U.S. Cr. contract price paid... . . . . . $148,791.87

U.S. Cr. Judgment vs. Piatt. 2. . . » . + 48,230.77
Tobededucted. . . ........., 197,022.64
Leaving a balance of principal due . . . . 131,508.90

LACHES.

It has been charged in opposition to this claim that the
claimants have neglected to prosecute it within reasonable
time, and that they seek to take advantage of their own neg-
lect. Certain it is that Mr. Piatt himself was guilty of no
laches. From the spring of 1815, when the war closed, to
the spring of 1822, when his life closed, a period of seven
years, he never ceased to knock for reliefat the door of every
department of the Government. He appealed to the White
House, the War Department, the Treasury Department, and
the halls of Congress—hobbling on crutches from door to
door, and from bureau to bureau—till worn out with toil,
and broken-hearted by disappointment, he laid down and died
at the doors of Congress, within the prison bounds of the
District.

Nor have his legal representatives been wholly negligent.
Piatt died on the 12th day of February, 1822; and as early
394 HANNAH C, GRANDIN, ADM’X, U8. UNITED STATES.

thereafter as the winter of 1833-4, the administrators and
assignees of Piatt petitioned Congress; and on the 9th of
January, 1834, a report was made. Again, on the 21st of
January, 1834, the matter was brought before Congress, and
on the 27th of June a report made. Again, on the 19th of
January, 1840, in the Senate, a report was made. Again,
on the 12th day of July, 1848, the matter was before Con-
gress, and a report was made in the House. Again, on the
16th day of May, 1850, the matter was before Congress, and
a report made.

At an, early day after the Court of Claims was established
this suit was brought, and on the 13th of February, 1857,
the deposition of John Mclean, the only surviving wituess,
as to the assurances, taken; and on the 9th day of Decem-

ber of the same year, that of James 8. Swearingen.

CHARACTER OF EVIDENCE.

If objections are raised as to the character of the evidence
offered in this case, my answer is, that it is the best evidence
the case, under all the circumstances, admits of. In the lapse
of fifty-three years all the witnesses have died, leaving behind
them only such testimony as the law and usages of the De-
partments at the time required. Thus the accounting officers,
as was usual then, and even now, received affidavits, certifi-
cates, and official letters, and acted upon them in stating the
accounts between Mr. Piatt and the Government. So, too,
a committee of Congress received this proof, and were satis-
fied with it. Mr. Sergeant writes letters to Judge Burnet,
Judge McLean and Jesse Hunt, and reccives their answers
as evidence, and acts upon it; and no one who ever knew
these men, would doubt the truth of their statements, any
more than if they had been sworn on the Holy Evangelists,
or with the uplifted hand. The action of these accounting
officers, and of these committees of Congress, have passed
HANNAH ©. GRANDIN, ADM’X, v8. UNITED STATES. 395

into public documents of the United States, and are in evi-
dence. They are matters of history, so old that no other
evidence can now be adduced, and are entitled to the belief
of the Court.

Let us then take a turn into these documents, and see what
these various functionaries thought of the facts of the case,
the merits of the claim, and the merits of the man.

First, then, as to the adverse reports. These are two in
number. The first is from the Judiciary Committee of the
Senate, April 5th, 1820. This report takes two grounds of
objection to the claim: first, doubts as to the assurances;
and, second, want of exact proof of the cost of the various
items of provisions furnished.

After what has already been said on the question of assur-
ances, and what I shall presently read from the public doc-
uments, I cannot consider the matter of assurances an open
question, and shall therefore pass to the other objection.
First of all, there is a marked difference between the ac-
counts of a contractor and those of a purveyor. The con-
tractor stipulates to deliver, within certain dates, at certain
places, certain quantities of certain articles. If within the
specified dates, at the specified places, he delivers the speci-
fied quantities of the specified articles, his obligations are ful-
filled; and it is nobody’s business where, how, from whom,
or for what price he purchased the articles, or how he trans-
-ported ‘them—by water or by land, on wagons or on pack-
horses. The receipts of the receiving officers are all the
vouchers he can be required to produce. He stands charged
with the sum of money he has received, and credited by the
amounts of these receipts.

The accounts of a purveyor are quite different. He buys
nothing with his own money; buys nothing on his own account;
buys everything with the Government’s money; buys every-
thing on the Government’s account. He is the mere agent,
396 HANNAH ©. GRANDIN, ADM’X, v8, UNITED STATES.

the steward of the Government, and must give an account of
his agency and stewardship, and, in all cases where it can be
done, must exhibit his vouchers. Yet, even in the case of a
purveyor, supplying the terrible and unforeseen exigencies of
war in a new and sparsely settled country, where the supplies
of life were difficult to obtain, it would be difficult to keep
accurate accounts or to exhibit accurate vouchers for every
article purchased.

At the present day there would be little trouble in exe-
cuting such offices; still less in keeping accounts. Now, we
have great marts, where all manner of supplies can be pur-
chased in boundless quantities, and all the modern engines
of commerce. Then, there was nothing of the sort. There
were neither railroads, nor canals, nor steamboats, nor even
wagon-roads. At this day you could purchase in Cincinnati
in one day more supplies than could have been found at that
day on the whole area covered by Piatt’s contract; and by
rail you could dump it down in Detroit, Sandusky, Cleve-
land, or elsewhere on what was then the Northern frontier,
in twenty-four hours. At that day Cincinnati was a little
town of 2,540 inhabitants, Cleveland was a village of 100
inhabitants, Toledo was no town at all; and as to Chicago
and Milwaukee, they lay in embryo, in the happy hunting-
ground beyond the “ watery waste,” whither the spirit of the
departed Indian and his faithful dog retired to escape from
the persecution of the white man.

The habitations of men were few and far between. There
were, no fenced ‘enclosures, except for the protection of grow-
ing crops. Hogs fed on mast, and cattle lived by browsing.
The farmer was well to do, who could spare corn enough to
fatten one bullock and half a dozen hogs for his own table;
and the farmer was rich, who could fatten double the num-
ber and sell one-half of them. Not only were surplus pro-
visions scarce, but the means of getting them to market were
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 397

nearly out of the question. Not one farmer in fifty had a
wagon, and if he had, there were no roads to drive it on.
The pack-horse, the bridle-path, and the barefooted mill-boy
were everywhere in vogue, and they were happy who could
supply the every-day wants of life, and the demands of hos-
pitality, everywhere great and sacred in the backwoods.
These people had bibles and other books and most of them
could read; but the idea of keeping accounts, with vouch-
ers and double vouchers, would have been ridiculous. Few
families who knew how to write kept writing materials, sim-
ply because there was no use for them. In a state of society
where a man’s word is as good as his bond, and his honor as
dear as his life, paper writings are of small importance, and
writing was only used for friendly correspondence. In such
cases, I have seen ink improvised, by rubbing a wet rag on
the bottom of a pot and wringing it into a cup, and paper
supplied by tearing a blank leaf from a printed book; and
many a letter of friendship and love, and many a message
of joy and grief were written in this way. In this condi-
tion of country, and from such sources as it could afford,
John H. Piatt undertook to feed an army, and did feed it.
True, in those days, there were some things called mer-
chant mills, from which ten, fifty, or an hundred barrels of flour
could be purchased. True, there were some salters and packers
on a small seale, from whom fifty or an huundred barrels of
beef could be purchased. But the bulk of all the supplies
had to be gathered up from the first producers. This had
to be done by agents and sub-agents, distributed all over the
country, making purchases wherever they could. These pur-
chasing agents were selected with reference to their energy
of character and their knowledge of the country, and not
for their scholarship. Some of them could neither read nor
write ; none of them understood Government book-keeping ;
and all of them were more intent on supplying the army
398 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

with food than on getting. the pay for it. So they went to
work; bought a steer from one man, a hog from another,
a keg of whisky from a third, and a sack of flour from the
fourth, and paid such sums as were demanded for driving or
carrying these supplies to the depot. Under such circum-
stances, a Government officer, or senator, is simply a fool to
talk about proper vouchers.

At the place of delivery, the proper receiving officers
weighed and measured the supplies, and there was no com-
plaint either as to quantity or quality. The number of ra-
tions actually delivered being ascertained, the only remain-
ing question would be what were they worth per ration?
That question has already been answered.

One who desires to be respectful, hardly knows what to
say as to the Senate report of Mr. Hubbard, of the 14th
January, 1840. It is an instance, familiar in the lower
courts, of a weak mind, unable to grapple with the truth,
resorting to the refuge of lies. The claims of the claimants
are misapprehended ; the facts of the case falsified; and the
principles of law bemuddled by choplogic. Thus, in con- *
sidering a simple claim for the difference between twenty
cents, and forty-five cents the ration, for 730,070 rations, un-
der the assurances of Mr. Monroe, he plunges the claim into
the cauldron, and stirs it up with all manner of outside mat-
ters—claims under the old contract—claims for feeding In-
dians—claims for feeding refugees—claims for damage on
protested drafts—claims for losses on the purchase and re-
sale of horses—claims for purchasing provisions in Canada,
and what not, long since settled and paid; and having bewil-
dered himself in the maze of blunders, in the teeth of the
auditor’s certificate, makes the false assertion that Mr. Piatt
did not make his quarterly returns, the predicate of a con-
clusion of law that he had no right to enforce his contract
against the Government; and, in the face of the facts, that,
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 399

in addition to all the means furnished him by the Govern-
ment, he was out of pocket of his own money over $200,000,
and that his drafts, authorized by the department, lay under
protest for $140,000, denies that he had any right to aban-
don the contract, because there was no time specified in the
contract for the payments under it.

It is refreshing to turn from such quibbling to the clear,
manly and honest views of four several committees, who not
only took time and pains to examine the merits of the claim,
but had the understanding to comprehend it. And first,.
without apology, let me read the report of Hon. John Ser-
geant, of January 9th, 1824. It is the result of a full, pa-

tient and earnest examination, and is entitled to great weight.

THEY REPORT

That they have attentively considered the same, and have
endeavored to inform themselves fully and accurately on all
the facts which have a bearing upon the several questions to
which this case has given rise, as well as to understand and
duly appreciate the views which have been taken by the of-
ficers of the Government, to whose notice it has been in its
progress submitted. The committe, in the progress of their
examination, have not been enabled to view this claim in
any other light than that which influenced the committee at
the last session. They therefore agree to the report made
by the committee last session, and adopt it as theirs.

It is not easy to present a statement that shall be perspic-
uous without being tedious; but as it is the duty of the com-
mittee, in a case of this magnitude, to lay before the House
a full exposition of the grounds upon which the judgment
of the House must probably be formed, they do not consider
themselves at liberty to condense this report at the probable
expense of. omitting something which may be material to a

right conclusion.
26
400 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

They have therefore decided to endeavor, in the first place,
to give a statement of the principal circumstances of the case,
and, as nearly as may be, in chronological order; and then
to state the deductions they have made as to the rights and
obligations of the respective parties arising out of the facts.

I. “On the 26th day of January, A. D. 1814, the late John
H. Piatt entered into a contract with the Secretary of War,
by which he stipulated to supply and issue all the rations
that should be required for the use of the United States, at
all and every place and places where troops are or might be
stationed, marched, or recruited, within the limits of the
States of Ohio and Kentucky, and Michigan Territory and
northern vicinity, from the Ist day of June, 1814, to the 31st
day of May, 1815, both days inclusive. The rate of the ra-
tion, as well as its component parts, is fixed by the contract,
and it is understood to be from twenty to twenty-five per cent
lower than in the previous contract, which was with other per-
sons. It is also said that the previous contractors had failed
to comply with their contract. Of this fact the committee
have been informed in the course of their investigation,
but cannot speak of it with entire confidence, as they did
not very minutely examine how far it was capable of being
proved.

The contract did not expressly stipulate for any advance
by the Government, nor for. any term or time of payment.
These things, of course, were left to a reasonable interpre-
tation, according to the usage of the Department, which is
understood to have been to make large advances, and to have
been well established and invariable. Indeed, the nature
of the services, in most instances, exceeding in amount the
probable means of an individual, seems, of itself, to imply
an engagement on the part of the Government to aid the con-
tractor with means to fulfill his contract. On this point there
seems to have been no dispute.
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 401

Mr. Piatt went on to execute the duty he had undertaken,
and it may be well, once for all, to state that he performed
it throughout with punctuality. When all the circumstances
of discouragement and difficulty, which will hereafter appear,
come to be considered, it will not be too much to say: that
this was an instance of unexampled fidelity; and when the
temptations that were offered to Mr. Piatt to pursue a differ-
ent course, and the reasonable apology he might have found
for doing so, are also weighed, it will be impossible to avoid
the conclusion that he was strongly influenced in his conduct
by motives and feelings the most honorable. In fact, it is
fully proved that Mr. Piatt was not only a man of activity
and zeal, but of the most lofty patriotism ; and, it is prob-
able, his fortune and his health were ultimately sacrificed to
an invincible determination, at every hazard, to uphold the
cause of his country in the interesting quarter to which his
contract applied.

Not very long after his contract was entered into, the face of
affairs underwent a change more violent, more rapid, and the
fulfillment of its stipulations became more disastrous, than the
most gloomy imagination could have anticipated. The press-
ure of the war, in the fall of the year 1814, produced various
effects, all of which were ruinously concentrated in their op-
eration on this contract. The suspension of specie payments
and an increased demand for provisions, suddenly raised the
price to more than double what had been stipulated, as ap-
pears from the letter of Quartermaster-General Swearingen.
The necessary movement of troops in that quarter and the
expectation of being obliged to strengthen the posts produced
at the same time a greatly increased demand upon the con-
tractor; and at this moment the condition of the United States
Treasury disabled the Government to afford him any aid, or
even to do him justice. In the month of December the bills
of Mr. Piatt on the Government, to the amount of no less
402 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

than $210,000, were dishonored, and lying under protest in
Washington from the mere inability of the Government to
pay them.

It is not and never has been alleged that Mr. Piatt had
not a right to draw these bills; on the contrary, his right
has always been admitted; and the only reason assigned for
not paying them was the want of moncy. The Government,
therefore, at the period now mentioned, was in default ; had
broken the contract, and thereby liberated Mr. Piatt from
the obligation imposed upon him.

In this state of things, Mr. Piatt, in December, 1814,
came to Washington. “Some of his friends advised him
strongly to relinqnish the contract, from which he had be-
come entitled to extricate himself by the failure of the Gov-
ernment to comply with its engagements, His agent wrote
to him, giving the same advice, and pointing out to him very
plainly, as a result, that he might, by so doing, realize a great
deal of money, instead of suffering a ruinous loss. The con-
sequences of such a step to the Government are, some of them,
very obvious, and others might have flowed from weakening
the arm of the country on that frontier, which are not to be
estimated. That this was, nevertheless, the politic course
for Mr. Piatt, is not to be doubted, and it must be admitted
that it would not have been unjust. It has been stated to
the committee, that another contractor, in circumstances
somewhat similar, availing himself of the necessities of the
Government, shook off the incumbrance of his contract, and
made a large fortune by means of a new arrangement, in
which he was enabled to make his own terms. Another,
who had gone on to comply with his engagement at some
loss, is stated to have been allowed a credit of $60,000 by
the Secretary of War, in the summer of 1814, by way of re-
muneration, though in his case there had been no failure on
the part of the Government.
HANNAH C. GRANDIN, ADM’X, vs, UNITED STATES. 403

Other friends of Mr. Piatt, it would seem from represen-
tations made to the committee, feeling strongly what disas-
trous consequences must inevitably follow a failure of supplies
to our troops in the quarter embraced by the contract, ad-
vised him to go on, and held up to him as an inducement
the known liberality of the Government, and especially, the
instance already mentioned of relief to a contractor; and
finally, they recommended to him to converse with the Sec-
retary of War.

Mr. Piatt, accordingly, had one or more interviews with
the Secretary of War, and received from him certain assur-
ances, the precise import of which the committee will not
now undertake to characterize. They are proved by the evi-
dence of Judge McLean, Daniel Parker and James Morrison,
Nos. 1, 2 and 3. There is also annexed a statement of Tench
Ringgold, No. 4.

But, of the fact that Mr. Piatt called upon the Secretary
of War; that he called upon him for the purpose of ascer-
taining, upon the best authority, how far he might calculate
upon the support and aid of the Government, in case he
should decide to go on with the supplies; and that after his
interviews with the Secretary he did decide to continue to
furnish the supplies, and did continue to furnish them, there
seems to be no doubt. Whether these facts are to be con-
nected as cause and effect, is a question on which one would
not be naturally led to entertain a doubt, unless there were
something more in evidence than has appeared to the com-
mittee. It would seem reasonable to conclude, in the ab-
sence of anything to the contrary, that the determination of
Mr. Piatt was materially influenced, if not entirely brought
about, by what he understood to be the true meaning and
import of the conversations of the Secretary of War. This
inference coincides exactly with the statement of Mr. Piatt,
to which he has uniformly adhered, and with the evidence
404 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

of Judge McLean, Gen. Daniel Parker and Col. James Mor-
rison.

On the 10th day of January, 1815, Mr. Piatt replied to the
letter of his agent (a copy is hereto annexed, marked A) ; and
it would not be doing justice to thh memory of a meritori-
ous and faithfnl public agent to withhold from that letter
the tribute of unqualified commendation, which its generous
and patriotic spirit deserves. When it is considered that
Mr. Piatt was in a humble and unambitious station, where
the most punctual performance of his duty, and the greatest
sacrifices could obtain for him no reward of honor or ap-
plause ; where, too, it is common to impute, and perhaps very
common to find no better motive governing the conduct of
a contractor than the desire of gain, too much stress can
scarcely be laid upon the patriotic alacrity with which Mr.
Piatt devoted himself, his fortune and his credit, under cir-
cumstances of no ordinary discouragement, to the mainte-
nance of the cause of his country. It cannot be doubted
that he rendered the most essential services, confiding in the
liberality of his country duly to appreciate them, and eyentu-
ally to do him justice, if not according to his merits, at least
to the extent of his pecuniary sacrifices.

That he did receive assurances, however, and that, those
assurances were of a nature to enlarge his claims on the Gov-
ernment, beyond what they would have been if founded
merely on his contract, and thus to form a proper consid-
eration in the settlement of his accounts, is now no longer
to be questioned, being, as the committee believe, distinctly
admitted by the provisions of the act of the 8th May, 1820.
He is, by that act, allowed a credit in terms for assurances,
as a separate head of allowance, differing from what he
would otherwise have been entitled to be credited, and in-
creasing his claims to the whole extent of such difference.

From that time Mr. Piatt went on to furnish the supplies
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 405

wherever called for. The requisitions, in some instances,
were unexpectedly large, and, as it is believed, so far ex-
ceeded what was probably contemplated when the contract
was entered into, that objections might, perhaps, have been
made on that ground to complying with them. They were
all promptly and cheerfully complied with, as has been al-
ready intimated. It is understood that no complaint what-
ever was at any time made against Mr. Piatt.

It has been stated in a former part of this report that,
from the causes there referred to, provisions had greatly
advanced in price, as well as the cost of transporting them;
and that, if the Government had been driven to the neces-
sity of obtaining supplies without the aid of Mr. Piatt, the
rations would have cost from forty-five to fifty cents. It is
proper further to state, upon the authority of the personal
knowledge of one of the committee, that it is very doubtful
whether they could have been got at any price, to the extent
and at the points required. The subject is known to have
been one at that time of very deep interest, and to have en-
gaged the active attention of the Legislature of Ohio, upon
the inquiry, what means could be devised to furnish supplies,
in case Mr. Piatt had abandoned or refused to go on with
the contract.

The war being happily ended, Mr. Piatt found himself in
a state of extreme embarrassment, occasioned, he has always
said, by his exertions and losses in the public service. On
the other hand, it has been rumored that he made money by
his concerns with the Government, and lost it by subsequent
speculations. The committee supposed that, in some aspects
of the inquiry referred to them, it might be material to as-
certain how far this rumor was well founded, and, with that
view, they addressed letters to three respectable gentlemen
known to have been acquainted with Mr. Piatt and with his
concerns, Their answers are hereto annexed, and marked
406 HANNAI C. GRANDIN, ADM’X, vs. UNITED STATES.

B, C, D, and they seem plainly to lead to a conclusion that,
whatever may have been the effects of other causes, the ex-
ertions and sacrifices he made for the country were sufficient
to have occasioned the ruin with which his affairs were over-
whelmed.

On the 16th of July, 1816, a settlement took place of the
accounts of John H. Piatt, finding a balance due from him
of upwards of $48,000. This balance consisted principally
of an amount due from him on his account as Commissary,
which had been owing to a draft made by an agent in his
absence, without his consent and against his wishes. It ap-
pears that Mr. Piatt endeavored to prevent the payment, but
his notice to the Department was too late, though given as
soon as he had information of the draft.

His own account, made out about the same time, and bear-
ing date the 23d February, 1816, claimed a balance due to
him from the Government of upwards of $100,000. These
two accounts, together with the statement of suspensions and
disallowances, will show what the differences were, and they
are material to a right understanding of what has since oc-
curred.

In the year 1820, Mr. Piatt was in the city of Washing-
ton, and reduced to the greatest extremity of distress. A
judgment had been obtained against him by the United
States for the balance before stated; he was in the custody
of the marshal, and his creditors (for debts contracted, he
alleges, in the service of the Government) were pursuing
and threatening him with rigorous measures of compulsion,
when he was entirely destitute of means to satisfy their
claims. His application for relief was before the Senate,
and a bill had been reported, or prepared, which proposed
a settlement of his accounts by giving him a credit equal to
the amount of the balance. If such a law had passed, and
been accepted by Mr. Piatt, there must have been an end of
HANNAH ©. GRANDIN, ADM’X, vs. UNITED STATES 407

the question. But he addressed to the chairman of the com-
mittee of the Senate a letter, which the Second Comptroller
rightfully considers a respectful protest, in which, admitting
that the extreme urgency of his situation scarcely left him a
choice, he nevertheless intimates that it would not be right
thus to cut off the balance of his claims.

The bill then underwent an alteration, and the proviso as-
sumed the shape in which it passed both ‘houses of Congress,
and now stands in the act of the 8th May, 1820. The com-
mittee will not say that the change was owing to Mr. Piatt’s
letter, but it seems to them reasonable to ascribe it to that
cause, and thence to infer that the law did not intend to cut
off any part of Mr. Piatt’s just claims, but only to limit the
credit to be given him for what were termed “assurances,”
leaving him the full benefit of every other just item of credit
which he could establish, according to the usages of the De-
partment, or the decisions in his own particular case, or upon
the equitable principles which the act expressly extended to
him.

The particulars above stated will be found in the report
of the Second Comptroller, among the printed documents
accompanying the letter of the Secretary of the Treasury,
laid before the House on the 3d of January last, and the
proofs are among the papers in the Second Comptroller’s
office.

Under this act of the 8th May, 1820, the accounts of John
H. Piatt were submitted to the proper accounting officers of
the United States. A copy of the account he presented is
hereto annexed, marked E. The Third Auditor, on the 14th
June, 1820, stated an account showing a balance due the
United States of $34,708.15. This account, with the re-
marks of the Third Auditor, was submitted to the Second
Comptroller, who disallowed some of the debits, and allowed
several additional credits, and finally, as he is allowed by law
408 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

to do, settled the account, making a balance due to Mr. Piatt
of $63,620.48,

Of this settlement and the balance found due by it, Mr.
Piatt obtained an official certificate, to which, of course, he
was entitled.

With the certificate and the opinion of eminent counsel
upon the construction of the act of 8th May, 1820, Mr. Piatt
obtained several advances of money to relieve his pressing
necessities, by making assignments of portions of his claim
upon the United States; and in one instance a creditor, in
consideration of a similar assignment, surrendered securities
he had previously held. These assignees have thus become
interested in the claim to an amount which does not ex-
actly appear, but is known to be very large. Mr. Piatt
died some time after in the city of Washington, where he
was attending, to endeavor to get an appropriation to pay
the balance found due him. He has died insolvent, and the
assignees above mentioned have no chance of obtaining sat-
isfaction but through the medium of a provision to be made
by law. That they should not suffer by their kindness in
relieving him from his great distress, was among the last
wishes expressed by Mr. Piatt.

The general question presented is, whether an appropria-
tion ought to be made to pay the balance thus found due
and now standing to the credit of John H. Piatt, and this:
may be considered under two views:

I. As between the United States and the late Mr. Piatt or
his representatives.

II. As between the United States and the assignees of the
late John H. Piatt.

I. It is not the intention of the committce to go into a
particular examination of the differences between the Third
Auditor and the Sccond Comptroller. By law, the decision
of the latter is the superior, and final decision ; and the com-
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 409

mittee are not aware of any sufficient reason for withholding
from it in the present instance, its full legal effect.

For the purpose of ascertaining the balance of the ac-
count, this settlement would be deemed conclusive—so con-
clusive that if there had been an appropriation, or if there
had been moncy at the disposal of the Department for the
payment of arrearages under the general authority for that
purpose given, it is believed, from the statement of the Sec-
ond Comptroller, that the balance would have been paid
without hesitation ; and of course, it is to be understood that
the settlement leaves no question as to the debt. If so, the
United States are legally liable for the amount, and it may
be suggested for the consideration of the House, whether in
such case there ought to be any question about the inclina-
tion of the Government to pay.

It must, at the same time, be admitted that in making
the settlement, the Comptroller acted under the limited au-
thority given by the act of May, 1820; and, if he manifestly
transcended the authority so given, the same effect ought not
to be ascribed to his official act.

But the committee are far from thinking that the Comp-
troller did exceed his authority, or misunderstand the duty
which it required him to perform. On the contrary, after
carefully weighing the reasons assigned by him for his opin-
ion, as well as those urged by the Third Auditor on the
opposite side, they agree with the Comptroller in the con-
struction he has given to the act, and in the application of its
provisions to the items of account in controversy ; and they
think there can be no doubt that in a court of justice, act-
ing either upon the most rigorous or most liberal interpre-
tation of the act, the construction would be the same.

The object of the act seems to have been to extend to
John H. Piatt the benefit of two distinct provisions: 1. That
his accounts should be settled upon equitable principles;
410 HANNAH ©. GRANDIN, ADM’X, v8. UNITED STATES.

2. That he should be allowed a credit for the assurances.
If these affirmative provisions had stood alone, it must have
been conceded that Mr. Piatt would have been entitled to a
credit; for, 1. Whatever upon the ordinary principles of ac-
counting would have gone to his credit, without the aid
of the law; 2. Whatever upon equitable principles would
have gone to his credit; and 3. For the assurances. And
under each of these heads he would have been entitled to
credit, without limitation, for whatever it fairly embraced.

The only limit assigned, is that contained in the proviso,
and that is expressly and specifically applied to the head of
assurances, and to that alone, leaving the others wholly un-
limited. Can it then be extended to other heads of credit?
The terms of the act will not allow of such a construction.
This seems too plain to be doubted. The fair intention of
the act is equally opposed to it. For then it might happen
that nothing would be allowed for assurances at all; or it
might even happen that all could not be allowed to which
Mr. Piatt was entitled upon equitable principles. The for-
mer would occur if the allowance on equitable principles,
should equal the balance of the former account; and the
latter if it should exceed that balance. It is impossible,
the committee think, to believe that it could have been the
intention of the act, in any event, to allow nothing for as-
surances; and it is quite impossible to suppose that it could
have been intended to allow Mr. Piatt less than on equitable
principles he might prove himself entitled to be allowed. It
may also be remarked that the construction adopted by the
committee does not by any means render the proviso inoper-
ative. Without the limitations assigned by it, that is to
say, giving credit for all Mr. Piatt could claim under the
head of assurances, the balance in his favor would be more
than $100,000.

The act, it is true, has in it certain other words which
‘

HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 411

have been thought to have a bearing upon the question.
These words are as follows: “ Giving all due weight and con-
sideration to the settlements and allowances already made.”
It seems to the committee not unreasonable to suppose, as
these words are arranged in the same sentence with others
which are obviously designed for the benefit of Mr. Piatt,
that they were intended rather to operate in his favor than
to his prejudice. The whole clause is as follows: “Giving
all due weight and consideration to the settlements and al-
lowances already made, and to the assurances and decisions
of the War Department.”

In point of fact, there had been decisions of the Depart-
ment, the benefit of which, as decisions, had already been
extended to Mr. Piatt; such, for instance, as the damages
on protested bills of exchange. There had been allowances
also; such, for instance, as that for supplies to the distressed
‘inhabitants. But these were not conceded to Mr. Piatt by
reason of any assurance he had received, nor is it supposed
as a favor to him, but in common with all other accountants
similarly cireumstanced, and as a matter of right. The de-
cision as to damages particularly, was a general decision of
the War Department, establishing a rule for the accounting
officers, in all cases of bills dishonored and protested, on ac-
count of the inability of the Government to pay, embracing
therefore all protested bills which the parties had a right to
draw. Under this decision or a general rule of the Depart-
ment, the damages were allowed to Mr. Piatt, and not in
consequence of any assurance.

The allowance for supplies to the distressed inhabitants
was also, it is believed, a matter of right on the established
principles of the Department. The contractor was not bound
by his contract to furnish them, and therefore could not be
bound to furnish them at the contract price. He was enti-
tled to reasonable compensation, and that is what was allowed.
412 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

It appears to the committee that it could not be the design
of the act either to retract the credits which had thus been
given, or to alter the character so as to arrange them thence-
forward under the head of assurances instead of decisions or .
allowances; that would be to suppose that the act was passed
merely to change the name, and, under the color of allow-
ing something for assurances, only to alter the words in the
account. The plain meaning seems to be that Mr. Piatt was
not to be deprived by the new grant of the benefit of any
former allowances, settlements or decisions; and this con-
struction is fortified by the fact that the act was deemed nec-
essary to give Mr. Piatt the benefit of the assurances, which
implies that it could not be done without the authority of a
special law, and therefore further implies that it had not been
done before.

If this reasoning be correct, it must be apparent that the
Comptroller has rightly interpreted the proviso as applying
only to assurances, and of this opinion are the committee.

It would extend this report to an unreasonable length to
go into the items of account in detail. The committee have
already sufficiently expressed their opinion of two of them,
namely, the damages and the supplies to distressed inhabit-
ants, to show that they concur with the Comptroller; and
as far as their inquiry has extended, they cannot say that
they differ with him as to any of the items.

But, what the committee would further submit for the con-
sideration of the House, is that, in settling the account of
John H. Piatt, a liberal estimate ought to be made in his
favor, having a just regard to the very meritorious services
he rendered, and the sacrifices he made for the public good,
at the most critical and interesting period. They think, too,
that at all events the Government ought not to be gainers by
the loss, and perhaps the ruin, of a patriotic citizen. They
have therefore caused three pro forma accounts to be made
HANNAH ©. GRANDIN, ADM’X, vs. UNITED STATES. 413

out by the Comptroller, and three by the Auditor, to show
what the operation would be of a settlement of the accounts
upon different principles. These accounts, with the commu-
nications accompanying them, are hereto annexed (marked
F,G,H). They have also annexed a copy (marked I) of
the account made out by Mr. Piatt himself.

From these accounts it will be seen that, with the utmost
allowance made to Mr. Piatt, the Government will still be
gainers by his good conduct, for they will pay less by a sum
than it would have cost them to obtain

 

exceeding $
the supplies if he had abandoned the contract; and he will
be no gainer, for it must be clear that he will get no more
than the provisions cost him, and not so much as he might
have obtained if he had chosen to take advantage of the Gov-
ernment; and even the cost will be allowed him only in a
limited amount, short of what he actually furnished. The
committee are obliged, however, to say that there is not any
exact proof of the cost by vouchers; nor could it reasonably
be expected, considering the circumstances of the country
and of the contractor; and considering, too, that he could
not be supposed to anticipate that any such proof would be
required. This is more especially true of the purchases made
before the assurances were given, with respect to which he
could not suppose he should have to account. The same re-
mark applies with equal force to purchases made by his agent
before his return from Washington: but the price of provis-
ions in the country at the time affords, in the opinion of the
committee, a guide as satisfactory as could be expected, and
sufficient for the purposes of justice between the parties; and
- this is proved not only by Gen. Swearingen’s letter, but by
thirteen depositions remaining in the Second Comptroller’s
office.

Besides, there can be no danger that, from want of precision
in the evidence, the Government will pay more than is just;
414 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

for the proviso limits the allowance under the head of assur-
ances to $48,000, and no estimate can, it is believed, be made
which would bring the cost below that sum. It would prob-
ably be more than double.

The committee are not inclined to favor the distinction
which has been attempted between the provisions purchased
after the assurances, and those which were then on hand,
and which proposes to allow for the former but not for the
latter. It is entirely arbitrary, and seeks to put the narrow-
est possible construction upon the act.

The plain equity of the assurances, according to any in-
terpretation that can be put upon them, seems to forbid such
a distinction. If the contractor was only to be indemni-
fied (which is the least either could desire), it must be con-
sidered that the rise in the price had taken place before
that time, and of course was in all probability the price at
which those provisions had been actually purchased. If the
probable cost to the United States be regarded, it must be
considered that they would have been obliged to pay the
same; but the just rule between the parties is to estimate
fairly what these provisions were worth to the contractor;
what could he have got for them if, liberating himself from
all engagements to the public, he had offered them for sale.
It cannot be doubted that he might have got the market
price ; and the difference between what he might have sold
them for, and what the Government have allowed under the
contract, is the precise measure of indemnity to the con-
tractor, as it is also the most favorable measure possible of
the gain to the Government. The committee therefore agree
with the Comptroller in the credits he has allowed for the
provisions. And they must again repeat, that, even with
these credits, to the full extent the proviso will permit, it
may be doubted whether justice is done, in as much as the
limitation cuts off more than half the amount of what would
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 415

be due if the assurances were to operate upon the whole of
the supplies.

The committee in the course of their investigation have
met with another objection which has been urged to Mr. Pi-
att’s claim. It has been represented that Mr. Piatt had no
reason to compiain of the Government on the score of ad-
vances; that in truth he had always received as much money
as he was entitled to; and it has been even doubted whether
he had any right to draw the bills that were protested. The
committee think, that, in this statement, there must be some
misapprehension, as is very apt to take place after a length
of time, unless cotemporaneous facts are duly considered in
forming an opinion. They think so, because the right of
Mr. Piatt to draw for the $210,000, was admitted at the time,
and the dishonor of the bills was ascribed entirely to the
want of funds to pay them. And, again, in the year 1816,
when the transactions were comparatively recent, and the
recollection of them fresh, the damages were allowed to Mr.
Piatt without hesitation, which could not have happened, or
would have been wholly indefensible, if in truth he had not
had a right to draw. Each of these facts is, therefore, a co-
temporaneous, or nearly cotemporaneous admission, that he
had not had the aids in money to which he was entitled, and
the advances that were made to him, after he came to Wash-
ington in December, 1814, are further and unequivocal evi-
dence of the same thing.

But all this, it is believed, is disposed of by the passage
of the act of May, 1820. The suggestion referred to was
distinctly presented to the consideration of Congress at the
time, in a form that demanded, and no doubt received the
most respectful attention; and if it had any value as an ar-
gument, it was to show that Mr. Piatt ought not to have had
any assurances, and that no act ought to be passed for his re-

lief, on the ground of his having received them. As such
27
416 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

it was weighed and rejected, and it cannot now be admitted
to affect the interpretation of the act, the very passage of
which necessarily implies its rejection.

It would be superfluous further to remark, that the death
of Mr. Piatt, himself perhaps the only person capable of
giving satisfactory explanations of doubtful points of fact,
should make us hesitate now to admit objections which we
may reasonably suppose to have been made and refuted; or
to allow the just operation of the act of 1820 to be restrained
by the influence of suspicions, which it is almost certain he
must have been able to remove.

All these circumstances duly considered, the committee are
of opinion that the balance found by the Comptroller is just,
and ought to be paid.

And referring again to the accounts, F, G, H, I, they are
of opinion that, upon original grounds, and independently
of the act of May, 1820, it would be difficult to show that
Mr. Piatt was not entitled to a much larger sum.

II. Between'the United States and the bona fide assignees
of Mr. Piatt, for a valuable consideration, the case is some-
what varied, and the claims of the assignees are even stronger
than those of Mr. Piatt himself. The settlement of the ac-
count was by the proper accounting officer of the Govern-
ment, intrusted and authorized to make it. The certificate
of the balance found due was the evidence of a debt of the
most authentic character. The only question that could pos-
sibly arise, would be whether this settlement was within the
limits of the authority given to the officer. If it was, good
policy and a due regard to the credit of the Government, no
less than the obligations of good faith, require that there
should be no doubt entertained of its being paid. Between
individuals similarly cireumstanced, and amenable to the or-
dinary tribunals of justice, it is believed that there could be
no doubt that its payment would be compelled.
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 417

Upon the point of authority, the persons who advanced
their money, upon the faith of the settlements, could only
consult the act of May, 1820; or, if they distrusted their
own judgment, have recourse to those who, by their peculiar
learning and experience, are deemed qualified to advise and
are resorted to for aid. The opinion of eminent counsel was
accordingly taken, and it was clear and unhesitating. A
copy of it is hereto annexed, marked K. In that opinion
the committee fully concur, for reasons already stated; and
the conclusion they are brought to is therefore inevitable,
that, as between the United States and the assignees of John
H. Piatt, the settlement ought to be decisive.

The committee, therefore, ask leave to report a bill.”

To learn the moral, commercial and financial status of John
H. Piatt, both before and after his dealings with the Govern-
ment, the committee invoked three witnesses: Jacob Burnet,
John McLean and Jesse Hunt. Of these three men I need
not speak. “Not to know them would argue ourselves un-
known.” All three of these men agree that John H. Piatt
was an honorable and upright man; that he went into this
contract very rich, and came out of it very poor; and his
death in a debtor’s prison closes the history.

We have seen that, although the act of 8th May, 1820, in
its appropriation, went no further than to extinguish the judg-
ment of the United States against Mr. Piatt for $48,230.77,
yet it fully recognizes the fact and binding obligation of Mr.
Monroe’s assurances of indemnity. Since that time, besides
Mr. Hubbard’s adverse report in 1840, there have been no
less than six Congressional reports—in 1823, 1824, 1834,
1848, 1850 and 1852, each and all recognizing the binding
obligation of Mr. Monroe’s assurances; and each and all
admitting the justice of this claim.

As these reports are embraced in the public documents
418 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

before the Court, I forbear reading more than the closing
paragraph of that of July 12th, 1848, which closes thus:

“This claim has been four times reported upon by com-
mittees of Congress: first in 1823; and again, in 1824, by a
select commitee of the House of Representatives, who, after
an elaborate investigation—the matter being then recent—
fully sustain the justice of the claim; next by a committee
of the Senate, in 1834, who came to the same conclusion ;
and, lastly, by a committee of the Senate, in 1840 (Mr. Hub-
bard’s), who reported against the claim. This last report
was obviously founded on an erroneous construction of the
contract of January 26, 1814, and an omission of a material
part of the evidence now before your Committee.

“Your Committee are well satisfied of the justice of the
claim, and that it has been too long withheld; they accord-
ingly report a bill for its payment.”

I would gladly read Mr. Edgerton’s report entire; but I
have already occupied too much time, and the report is before
the Court, with the other documents.

The nature of the evidence in this case requires a closing
remark. When this claim began to be pressed for settlement,
there was no Court of Claims, with printed rules for taking
testimony. The only redress for those who had been wronged
by the Government was by application to the Executive De-
partments or to Congress. The officers in these Departments
and the committees of Congress acted, not on formal deposi-
tions, but upon affidavits cx parte, on the certificates and of-
ficial letters and reports of officers, and sometimes, as in the
case of McLean, Burnet and Hunt, they asked for, received
and credited unofficial letters, written by men of known honor
and integrity. This was, and still is, the wav in which claims
are established in the Departments and before Congress.

When the Court of Claims was established, all the witnesses
of any importance, except Judge McLean, had gone to the
grave. And now we have to use just such proofs as the lapse
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 419

of time and the hand of mortality have left us. Happily,
the public documents and reports of committees are in being
and before the Court.

Since the ancestor of these claimants sacrificed his time,
his fortune and his life for his country, she has grown rich,
great and powerful. Her War Minister no longer begs ra-
tions from a citizen, on credit, to feed her armies. The cre-
ations of her wealth, the monuments of her greatness and the
ensigns of her power cover the land and the sea: but if she
would live forever, justice to the citizen must be the charter
of her immortality.
Hannah C. Grandin, Adm’x de bonis non
of John H. Piatt, deceased,

US.

The United States.

UNITED STATES SUPREME COURT:

OctospeR TERM, 1874.

Appeal from the United States Court of Claims.
VERBAL ASSURANCES: COMPROMISE UNDER DURESS.

ARGUMENT OF JUDGE JOHNSTON.

STATEMENT OF THE CASE,

This is an old claim, originating in the war of 1812.
John H. Piatt, under whom we claim, was a pioneer mer-
chant of Cincinnati, one of the richest in the North-western
Territory, well and favorably known to the public, and per-
haps better acquainted with the sources of supply for an
army than any other man. These considerations brought
him into the public service as commissary of subsistence to
the North-western army. THe served in this capacity till the
26th of January, 1814, at which time there remained in his
hands unexpended, of the commissariat fund, $46,112.56.

On the 26th of January, 1814, by a written contract with
John Armstrong, Secretary of War, he became a contractor

of supplies for the North-western army for one year, to begin
(420)
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 421

on the Ist day of June, 1814, and end on the 31st day of
May, 1815, at an average rate of twenty cents the ration;
and as the usage then was to make advances in money to
contractors, he retained in his hands, as an advance from the
Department, the balance of the commissariat fund.

On the 26th of January, when the contract was made, the
Treasury was flush, and the Government was paying its
debts in gold and silver. By the Ist of June, when it
was to take effect, the gold and silver were exhausted, and
the Government had resorted to Treasury notes, which passed
at a large discount. Worse yet: In the month of August
the enemy captured Washington and burnt the Capitol.
This blow paralyzed the business of the whole country. All
the banks south and west of New York suspended specie .
payments. The country was flooded with irredeemable paper.
The currency went down and produce went up, till supplies
could not be had for less than forty-five or fifty cents the
ration.

By the first of January, 1815, after expending the balance
of the commissariat fund, and all other funds he had received,
the United States owed him, for supplies already delivered,
near a quarter of a million, and his drafts on the Govern-
ment for $210,000 lay under protest for the want of funds
in the Treasury to pay them. (2d Finding, p. 12.)

He had exhausted his means, mortgaged his estates, in-
volved his friends, and was staggering under the load of
$210,000 protested drafts, when, on the 26th of December,
1814, General McArthur made a requisition on him for
800,000 rations to be delivered in thirty days, which, at
existing rates, would cost $360,000 more. (3d Finding,
p- 12.)

Unable to meet this requisition, and unwilling the public
service should suffer from his failure, he repaired to Wash-
ington to lay the matter before the War Department. Ac-
422 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

companied by the late Mr. Justice McLean, then his rep-
resentative in Congress, he waited on Mr. Monroe, acting
Secretary of War, and, stating his case, announced his deter-
mination to furnish no more rations under his contract, be-
lieving and being advised by eminent counsel that it was
forfeited. (3d Finding, p. 12.) Mr. Monroe did not pretend
that the contract was not broken; admitted the inability of
the Government to comply with the contract, both as to
money already due, and as to money which might become
due for future supplies; and the conference ended in an oral
contract, whereby the Secrectary agreed to pay for future sup-
plies whatever price they should be reasonably worth at the
times and places of delivery ; and Piatt agreed to furnish the

_ supplies and wait for his money till the Government should
be able to pay.

This new contract inspired confidence in the friends and
creditors of Mr. Piatt at home, and revived his failing credit,
and under it he furnished promptly all the supplies required
till the army was disbanded at the close of the war. The sup-
plies thus furnished amounted to 730,070.10 rations, which
cost him, at the least, forty-five cents the ration (4th Find-
ing, p. 12), in gross $328,531.54, of which he received only
$148,791.87, the old contract price, the accounting clerks not
being as yet advised of the new contract, and being governed
by the stipulations of the old. This left him out of pocket
$179,739.67.

Mr. Piatt performed other valuable services for the Gov-
ernment, under instructions from the War Department, not
contemplated by either the old or the new contract, such as
transporting military stores from post to post, feeding refu-
gees, both whites and Indians, to the value, after all deduc-
tions, of $63,620.48. (5th Finding, p. 13.)

The nation was poor, the Government slow pay, and the
accounting officers hard to please in the forms of evidence ;
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 423

and both these accounts, amounting together to $243,360.15,
remained unsettled over five years after the close of the war.

Meanwhile, paying interest to his creditors at home, and
receiving neither interest nor principal from the Government
at Washington, reduced him to poverty and well-nigh to des-
peration.

To make his case more distressing, in September, 1819,
an action was brought in the name of the United States vs.
John H. Piatt, for an alleged balance of the commissariat
fund; he was arrested on a writ of capias ad respondendum,
and held to bail, and this action was still pending on the 8th
day of May, 1820, when Congress passed an act for his relief.

This act recognized both the existence and the obligation
of Mr. Monroe’s assurances (as the new contract was called),
and regardless of technicalities which stood in the way, re-
quired the accounting officers to settle the accounts of Piatt,
including his account for transportation, on just and equita-
ble principles, but, by a proviso, limited the allowance to be
made him under the assurances to the sum claimed by the
United States, for which suits had been commenced against
him. (5th Finding, p. 12.)

Under the requirements of this act, the accounting officers
took up the account for transportation, feeding refugees and
the like, and settled it, allowing him a balance of $63,620.48.
(5th Finding, p. 13.) °

They then took up the account for rations furnished under
the assurances, but instead of settling the whole account on
just and equitable principles, they undertook to reduce it to
the sum for which he had been sued. To accomplish this
they dropped out of the account 520,000 rations, equal in
value to $131,508.90, and took for the basis of their calcula-
tions a specific portion only, sufficient to satisfy the claim of
the United States, and thus cut down the account from
$179,739.67 to $48,230.17.
424 UWANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

This allowance, which required no money, was passed to
his credit, and the action against him dismissed, but the bulk
of the account never was settled till it was settled by the
Court of Claims.

Mr. Piatt assigned his voucher for $63,620.48 to his cred-
itors; but the money was not paid, for the reason that there
was no appropriation applicable to his claims. His creditors
became impatient and cast him into prison. He gave bail
for the prison bounds and strove for a while to collect his
dues and pay his debts, but his energies, both of mind and
body, were crushed, and on the 12th day of February, 1822,
he died within the prison bounds in the city of Washington.

Four years after the transportation account was settled,
and two years after Piatt’s death, 24th May, 1824, Congress
made an appropriation for this account, and the money was
paid to his assignees and administrators. But the account
for rations under the assurances, never having been settled
by the accounting officers, no appropriation was made for
that, and there still remains “due and unpaid” $131,508.90.
(4th Finding, p. 12.)

When this cause was heard in the Court of Claims, four
only of the judges were present, one of the five being unable
to sit on account of ill health, and no immediate prospect of
a full bench. These four judges were unanimous in all the
findings of fact and on the first conclusion of law, but
equally divided as to the right of the claimant to recover ;
and for the purposes of an appeal a judgment pro forma was
entered for the defendant. (6th Finding, p. 13.)

This statement of the case, I believe, is sustained in all its
material parts by the findings of the Court of Claims. Here

they are:
“ PINDINGS OF FACT,

“This case having been heard before the Chief Justice
and Judges of the Court of Claims, at the city of Washing-
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 425

ton, the court, after due deliberation upon the proofs and
evidence given at the trial, does hereby, on the 4th day of
June, 1873, at the time of rendering judgment, find the fol-
lowing facts:

“JT, John H. Piatt, the claimant’s intestate, on the 14th
of January, 1814, entered into the written contract. for fur-
nishing rations to the North-western army froin the Ist day
of June, 1814, to the 3lst day of May, 1815, set forth and
described in the petition.

“TI. On the 1st of January, 1815, Piatt had furnished and
delivered rations according to the terms of his contract to the
amount of $269,051.28, but the defendants had not complied
with the terms of the contract, and had neglected and failed
to pay for such rations according to the terms thereof, and
were then in default to the amount of $210,000, and were, in
fact, unable to comply with its terms.

“TIT. On or about the Ist day of January, 1815, at a per-
sonal interview, in the city of Washington, Piatt notified
Mr. Monroe, the Secretary of War, that he would furnish no
more rations under the contract, and the Secretary admitted
to Piatt the inability of the defendants to comply with the
terms of the contract on their part, both as to money already
due and as to money which might become due for future sup-
plies. But a military exigency then rendered it necessary
that a large quantity of rations should be furnished imme-
diately tor the North-western army, and it was thereupon
agreed by parol, between Piatt and the Secretary of War,
that, in consequence of Piatt’s furnishing the rations which
might be required, he should receive for them whatever price
they should be reasonably worth at the time and place of de-
livery; and that the defendants, instead of paying as re-
quired by the terms of the original contract, should defer
payment until such time or times as they should have the
requisite funds.

“TV. Under the parol agreement, in the third finding as
set forth, Piatt furnished and delivered to the defendants
730,070.10 rations, the fair and reasonable value of which,
at the times and places at which they were furnished, was
forty-five cents per ration, amounting in the aggregate to
426 WANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

$328,531.54. But, on the settlement of Piatt’s account at
the close of the war, the officers of the Treasury, having no
knowledge or evidence of the parol agreement under which
the rations were furnished, allowed and paid to Piatt only
the price designated in the original written contract, amount-
ing in the aggregate to the sum of $148,791.87, and leaving
due a balance of $179,739.67. But there was subsequently
allowed to Piatt, as a payment under the private act of the
8th May, 1820 (6 Stat. L., p. 245), in the manner set forth
in the next finding, the further sum of $48,230.77, leaving a
balance of $131,508.90, which still remains due and unpaid.

“WV. In September, 1819, an action was brought by the
United States against Piatt, and he was arrested on a capius
ad respondendum for an alleged balance of $48,230.77, due
from him as Commissary of Subsistefice ; and while the suit
was still pending, and he on bail, Congress passed for his
relief the private act of 8th May, 1820 (6 Stat. L., p. 245),
in the words following:

“<¢ AN AcT FOR THE RELIEF OF JOHN H. Piatt.

“<« Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled, That
the proper accounting officers of the Treasury Department
be, and they are hereby authorized and required to settle
the accounts of John H. Piatt, including his account for
transportation, on just and equitable principles, giving all
due weight and consideration to the settlements and allow-
ances already made, and to the assurances and decisions of
the War Department: Provided, That the sum allowed un-
der the said assurances shall not exceed the amount now
claimed by the United States, and for which suits have been
commenced against the said John H. Piatt.’

“Under and in pursuance of this act, the accounting offi-
cers of the Treasury settled the accounts of Piatt, as follows:
“ First. The accounting officers allowed him a credit of
$74,475.85 for transportation and rations furnished by him
for the use of citizens and Indians, not embraced or included
in either of the contracts or agreements before described, from
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 427

which credit certain deductions were made, leaving a balance
of $63,620.48

“Secondly. They allowed him a credit upon a certain speci-
fied portion of the rations delivered upon the parol agreement,
before mentioned, equal to the amount claimed by the United
States in the suit against him, to wit, the sum of $48,230.77;
and such credit was ascertained in the following manner:
‘They first ascertained the fair and reasonable value of the
specific portion of the rations thus referred to; they then
deducted therefrom the price per ration already paid to him;
and from the balance thus ascertained they made a further
deduction sufficient to reduce the amount of the credit to the
said sum of $48,230.77, as required by the proviso to the
private act.

“VI. After the ih of Piatt, Congress passed the pri-

vate act, 24th May, 1824 (6 Stat. a , p. 314), and there was
paid thereunder to the assignees and administrators of John
H. Piatt, the sum of $63,620.48, the same being for trans-
portation and rations furnished to citizens and Indians de-
scribed in the fifth finding, and not for the army supplies
previously described.

“The plaintiff is the duly appointed administratrix of the
estate of the said John H. Piatt, deceased.

“The plaintiff, the said John H. Piatt, in his lifetime,
and his heirs also, are and were citizens of the United States,
have at all times borne true allegiance to its Government,
and have never, at any time, afforded aid or comfort, or given
encouragement to rebellion against the Government of the
United States.

“And the Court of Claims, being equally divided upon
the right of the claimant to recover, does, for the purposes
of an appeal to the Supreme Court, decide as—

“CONCLUSIONS OF LAW.

“J, The parol agreement, entered into by John H. Piatt
and the Secretary of War, after the forfeiture and abandon-
ment of the original written contract, being a new contract
upon a new consideration, was valid, and, under such agree-
ment, the defendants became indebted to Piatt for the fair
428 HANNAII C. GRANDIN, ADM’X, vs, UNITED STATES.

and reasonable value of the rations furnished under it, and
for the balance of $131,508.90.

“TI. But this action is barred by the allowance made by
the accounting officers of the Treasury under the private
act of May 8, 1820, which must be construed to have been
intended by Congress as a settlement of all claims against
the defendants.”

ASSIGNMENT OF ERRORS.

First. We assign for error the second conclusion of law,
that “this action is barred by the allowance made by the ac-
counting officers of the Treasury under the private act of May
8th, 1820.” (2 Con. Law, p. 13.)

Second. That the Court of Claims erred in giving judg-
ment for the defendants when it ought to have been for the
plaintiff. .

BRIEF OF ARGUMENT.

I.

The Court of Claims having found by unanimous decision
that there is a balance of $131,508.90 in plaintifi’s favor,
which still remains due and unpaid, if the action to recover
this sum is barred by the allowance made by the accounting
officers of the Treasury under the private act of May 8th,
1820, it must have been by compromise, and this defense
ought to have been pleaded.

(Kenyon vs. Sutherland, 3 Gilman, 99; Sinard vs. Patter-
son, 3 Blackf., 354; Hall vs. Flockton, 4 Eng. Law & EKq.,
185; State Bank vs. Littlejohn, 1 Dev. & Batt., 565; Stark’s
Adm’r vs. Thompson’s Ex’r, 3 Monroe, 302; Peace rs. Sten-
net, 4 J. J. Marshall, 450.)

II.

A compromise in which a less sum is accepted instead of
what is actually due is a contract, and as in other contracts,
HANNAH C. GRANDIN, ADM’Y, Us. UNITED STATES. 429

there must be a good consideration, and the minds of the
parties must meet. ,

(Wiley vs. Warden, 1 Williams, Vt., 655; Clark vs. Dins-
more, 5 N. H., 136, and cases there cited; Frentress vs.
Markle, 2 Greene, Iowa, 553, and cases there cited; 5 East.,
230; 16 Johnson, 86; Hardman vs. Bellhouse, 9 M. & W.,

600.)
III.

To make a compromise binding, the party conceding away
part of his rights must act freely, and duress will vitiate the
contract; much more so when the conceding party is unlaw-
fully imprisoned at the suit of the other party and purchases
his freedom by the compromise.

(2 Bac. Ab., 402, title Duress; Phelps cs. Zurschlag, 34
Texas, 371; Bane, vs. Detrick, 52 Ill., 129; Bowker vs.
Lowell, 49 Maine, 429; Hackett vs. King, 6 Allen, Mass.,
58; Strong vs. Granniss, 26 Barb., N. Y., 122; Tilly vs.
Damon, 11 Cush., Mass., 247; Brown vs. Peck, 2 Wis., 261;
Breck vs. Blanchard, 2 Foster, N. H., 303; Foshay vs. Fer-
guson, 5 Hill, N. Y., 154; 2 Vernon, 497.)

IV.

Where a party by compromise agrees to accept a less sum
than what is actually due, the sum agreed on must be paid,
or the compromise is void.

(Blackburn vs. Ormsby, 41 Penn. St., 97; Hearne vs. Kiehe,
38 Penn. St., 147; State Bank vs. Littlejohn, 1 Dev. & Batt ,
565, and cases there cited; Higgins vs. Halligan, 46 IIl., 178,

: 177.
pp. 176, 177.) —

If a doubt should exist as to the meaning of the act of
8th May, 1820, whether the allowance mentioned therein was
intended to be final, or only a provisional allowance for the
enlargement of Piatt till his accounts should be settled on
430 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

just and equitable principles, and the balance, if any, in his
favor, ascertained and provided for bylaw, the act and the
proviso should be liberally construed in favor of the object
of relief, and decided according to that construction which
is most consonant to equity.

(8 Wheeler’s Am. Com. Law, p. 142; U.S. vs. Coose, 8 C.
Cts., p. 1; Kerlin vs. Bull, 1 Dall. Penn. R., 178; U.S. vs.
Bright et al., Wharton’s Dig., 708; Bank of Am. vs. Fitzsim-
mons, 3 Binn. R., 356.)

ARGUMENT.

It is to be regretted that the defense here set up was left
to the discovery of the judges. It ought to have appeared
of record by special plea.

I do not insist on formal pleas after the manner of Chitty,
but by plea, answer, or notice in some form, we ought to
have been informed that a third contract was to be set up;
that Monroe’s contract to pay for the rations whatever price
they should be reasonably worth at the times and places of
delivery, had been substituted by a new contract to pay less
than half what the rations actually cost. If this had been
done, we would have been prepared with proofs and argu-
ments to meet this new aspect of the defense.

But in truth, Mr. Attorney General never thought of this
line of defense. There was no hint of it in his answer, his
brief, or his argument. It was doubted or denied that John
Armstrong’s contract had been forfeited. It was doubted or
denied that Mr. Monroe had given the assurances. It was
doubted or denied that verbal contracts were of any binding
obligation. It was doubted or denied that receiving the ra-
tions and eating them up, raised any legal obligation to pay
for them, unless they were furnished under a written contract.
These were the unwritten issues on which the cause was tried.

That, notwithstanding a new and binding contract, on
*

HANNAH C. GRANDIN, ADM’X, U8. UNITED STATES. 431

a new and valid consideration, faithfully executed by the
contractor, and an admitted balance of $131,508.90 still due
and unpaid, the allowance under the act of 8th May, 1820,
forever shut the door against this claim, was a brand new idea
to us all.

Taking for true the findings of the Court of Claims, we
cannot escape the inquiry whether the Government can law-
fully repudiate its own contracts after they are executed, or
whether Congress can make a law impairing the obligation
of such contracts? The letter of the Constitution, I know,
applies the prohibition to State legislation alone, but the
spirit is universal; and no legislative council, without bad
faith, can destroy a contract made and executed in good faith.
Concede to Congress, if you will, a sovereign right to be dis-

“honest, there is no presumption of law that they will exer-
cise that right. There is no leaning of the courts to the
idea that Congress intends to do wrong. Nor is it to be
presumed by the court that Congress intended to withhold
from John H. Piatt one dollar, much less $131,508.90, justly
due to him. But we deny that Congress had any such in-
tention, or that the private act of 8th May, 1820, admits any
such construction.

First, then, as we claim, the act was preliminary and not
final. The settlements ordered by the act were to be prelim-
inary, and not final. There were no appropriations applica-
ble to the claims of Piatt, and the act made no appropria-
tions for that purpose. The act ordered the payment of no
money, and authorized but one allowance, which required no
money.

This act was an act for relief, and is entitled to a liberal
construction in favor of the object of relief. It afforded no
present relief except the enlargement of the man. That it
contemplated further relief when the accounts should be set-

tled and the balance ascertained, cannot well be questioned,
28
432 HANNAH C. GRANDIN, ADM’X, US. UNITED STATES.

and this purpose of further relief was carried out by an act
of appropriation in 1824, to the full extent to which the
accounts had been settled.

Piatt’s troubles about his accounts grew out of circum-
stances beyond human control. No man in his circumstances
could have produced such vouchers as the rules of the De-
partment seemed to require.

So long as he worked under the old contract no vouchers
were required. The quantity of rations and the places of
delivery were proved by the certificates of the receiving offi-
cers, and the price per ration was fixed by the written con-
tract. When the new contract came into operation, the price
of the rations had to be proved in some other way. As
things now are, where 40,000 barrels of flour and 10,000
barrels of beef or pork could be purchased in a day at Cin-
cinnati, Chicago or Detroit, and carried by rail to the places
of delivery, this might be done by vouchers. As things
then were, this mode of proof was impossible.

Piatt fed the army from the original sources of supply,
collected from a new and thinly-settled country, already
nearly exhausted, by agents little versed in the art of keep-
ing accounts. First-class accountants could not be had to
canvass an exhausted frontier, buy a bullock from one man,
a hog from another, a barrel of whisky from another, and a
sack of meal from another, and take vouchers and double
vouchers for every item. And if this had been attempted,
how very easy it would have been for these agents to have
robbed both Piatt and the Government. Imagine a single
agent setting out on horseback in search of beef cattle. His
horse must be shod, for which he pays 50 cents and takes
an illiterate blacksmith’s voucher for a dollar. He buys a
bullock from an illiterate farmer, pays him fifteen dollars
and takes his voucher for twenty. He hires a ragged boy,
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES, 433

who can neither read, write nor cipher, to drive the bullock
to the corral, pays him 25 cents and takes his voucher for 75.
And so of ten thousand expenses, incidental and accidental
to furnishing these supplies.

Moreover, Mr. Monroe did not agree to pay Mr. Piatt
whatever price the supplies might cost him at Duck Creek,
Leatherwood or Neverdowell. His contract was to pay him
whatever price they should be reasonably worth at the times
and places of delivery. How else could this be ascertained
but by the depositions of respectable traders engaged in the
produce business? This is precisely the manner in which
Piatt proved his accounts.

In like manner the assurances of Mr. Monroe, constituting
a new contract, or modifying the old, was proven by the tes-
timony of one of yourselves, now no more among mortals,
and others who were present and heard the assurances given.

These two accounts, amounting to about $200,000, were as
well avouched as the circumstances would admit, and would
have been settled without hesitation by men of plain common
sense, untrammeled by Department law. I am not aware
that anybody in or out of the Department doubted the jus-
tice and equity of these accounts, but the vouchers were not
satisfactory, and the clerks, bewildered by. some faint glim-
merings of the law, could not see how an old written con-
tract could be substituted by a new and unwritten contract,
and so they boggled on from year to year.

That the objections of the accounting officers to these
accounts were technical merely, is shown by the mandate of
Congress to settle them on just and equitable principles; and
the same mandate implies that there was proof enough for
the purposes of equity, and that the justice of these accounts
had never been challenged.

From the long and painful delay of justice and the horrors
434 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

of the prison, Piatt had appealed to the justice and humanity
of Congress. He did not go to Congress to compromise for
his freedom. Congress did not ask him to purchage his free-
dom by compromise. Congress at that day comprised a host
of the loftiest spirits that ever lived in human bodies—men
who would scorn to pay a creditor a dollar less than what
was justly due him. But under the circumstances what could
they do for him? There were no appropriations applicable
to his accounts, and they could make none till his accounts
were settled; and so they ordered his accounts, not one, but
all, to be settled on just and equitable principles, as a pre-
liminary step to final and complete relief. They could give
him his freedom at once, because that required no money
from the Treasury, and needed no appropriation; and so, as
the session of Congress was drawing to a close, they ordered
this moneyless allowance, to give him freedom.

The balance of the commissariat fund during the war had
been treated both by Piatt and the War Department as an
advance on his contract, and belonged to his account as a
contractor, and was properly payable out of what might be
due him on his account as contractor, and so it was ordered
to be allowed out of that account.

If Congress had intended this allowance to be a final dis-
charge of all claims against the United States, doubtless they
would have said so. There is nothing cheaper than words.
It would have required but five more to have said, “This
allowance shall be final.” But if it was intended to be final,
to what end was the settlement? Did Congress order this
account to be scttled merely for the purposes of history, that
posterity might know how deeply this man had been wronged?
Or, to ascertain how much the Government owed him, in or-
der to right his wrongs by a future appropriation ?

Considering that there was no appropriation of money to
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 435

satisfy any allowance, the words setéle and allow could mean
no more and no less than this: To adjust the accounts and
strike the balance between the parties, and make a limited
allowance for Piatt’s enlargement, which would require no
money.

The word settle is used in various senses, but in whatever
sense it was used in this act, it applied equally to both Piatt’s
accounts—the act makes no distinction. By the mandate of
the law and their oaths of office, these accounting officers were
bound to settle for every ration furnished by Piatt, and every
dime paid by the Government. This much they were bound
to do, whether the act was final or preliminary.

‘ But again, to settle means to adjust an account and strike
the balance. But it may mean both to adjust and pay the
account. . If you order your clerk to settle my account when
you are flush, I naturally expect payment. But if you order
my account to be settled when you have not a dime in your
pocket nor a dollar in bank, it is clear you only meant to
have the account adjusted preliminary to payment in future ;
and now, if there is a lingering doubt as to whether the act
of 1820 and the settlement thereunder were final or prelimi-
nary, I invoke the testimony of the voucher for $63,620.48,
which, like the unclean spirit mentioned in the Gospels,
walked about in dry places, seeking rest and finding none for
four long years, and returned to Congress at last for an ap-
propriation to pay it off.

If the accounting officers had obeyed the plain mandate
of the law, and first settled both these accounts on just and
equitable principles, and then, in obedience to the proviso,
made a limited allowance from the account on assurances, suf-
ficient to satisfy the demand of the United States, the account
would have stood thus:
436 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

UNITED STATES IN ACCOUNT WITH J, H. PIATT, UNDER ASSURANCES OF THE
WAR DEPARTMENT.

Dr.—To 730,070.10 rations for North-western ues at 45

cents per ration . . . . . « $328,531.54
Cr.—By allowance at old contract rtoenl« eee ee « 148,790.87
Balance on this account . . . 1. ee ee © + 179,789.67
“By allowance under proviso. . . . . 1 ~~ + 48,250.77

Balance on assurance account . . . . . . - « ~ $131,508.90

IN ACCOUNT FOR TRANSPORTATION, ETC.

 

Dr.—To transportation, feeding refugees, etc. . . . . . $74,475.85
Cr.—By error corrected . . . . + 2. ee ee ee «© 10,855.87
Balance on this account = @ ee & OSS Be) 568,62048
Total amount due Piatt . . 2... . . . . $195,129.38

But the accounting officers misapprehended both the letter
and the spirit of the law. In settling the account for trans-
portation they went beyond their instructions, in issuing a
voucher for $63,620.48, instead of simply settling the ac-
counts as required. In settling the account on assurances
they came short of their instructions, in settling a part only
instead of the whole, as required. The first of these errors
did great harm to the credit of Piatt, by sending this bar-
ren voucher kiting round the world for four years, with-
out money to redeem it. The second error was fatal to his
rights. If both accounts had been honestly settled accord-
ing to law, no doubt both would have been honestly provided
_for by the appropriation act of 1824. But 520,000 rations
were purposely left out of the settlement, and consequently
$131,508.90 left out of the appropriation.

Suffer me to repeat. When Congress ordered these ‘ac-
counts to be settled, they had an eye to a future appropria-
tion for every dollar the United States owed Piatt. Such
appropriation could not be made without knowing how much
was due him. This could not be known till his accounts °
HANNAH C. GRANDIN, ADM’X, US, UNITED STATES. 437

should be settled. It was too late in the session to receive the
report of the accounting officers, and pass an act of appropri-
ation for Piatt’s ultimate relief; and he must remain in bond-
age another year unless something could be done for his
enlargement. The process was simple and easy, and would
require no money and no appropriation. It was but to pass’
to his credit the sum for which he had been arrested, and
charge it to his account for rations under assurances.

Three things were aimed at in this act. First, to release
Piatt from imprisonment. Second, to emancipate the ac-
counting officers from the thraldom of red tape. Third, to
determine by a just and equitable settlement of all the ac-
counts, how much, if anything, was due to Piatt, in order
that an appropriation might be made for his final relief.

The first and second objects were accomplished; but the
third was defeated by a stupid misunderstanding of the act
by the accounting officers.

First, they mistook for final an act which Congress in-
tended to be preliminary only, and this leading error, like
the first link of a chain, drew after it all the others. Second,
they imagined themselves authorized to close up all the af-
fairs of Piatt. Third, they imagined they had a right to
make drafts on the Treasury when there were no appropria-
tions for their payment. Fourth, they thought, or seemed
to think, that Piatt’s account for rations was not to be paid
at all, and that to settle it on just and equitable principles
meant to deduct from the account a specific portion of the
rations, sufficient at a fair valuation to cover $48,230.77,
which they were required to allow; settle so much of the
account, and drop out all the residue—520,000 rations, and
$131,508.90, and so balance the account between John H.
Piatt and the United States.

If Piatt’s account had been for 1,500 cavalry horses, reg-
ularly. delivered, inspected, branded, ridden to death, shot
438 HANNAH (C. GRANDIN, ADM’X, vs. UNITED STATES.

down in battle, wasted and destroyed in the military service
of the United States; and the accounting officers, instead of
accounting for the whole 1,500, had counted out a “ specific
portion,” say 500 spanking bays, worth $48,230.77, and
settled for these 500 only, leaving out of the account the re-
- maining 1,000, and at the time of the settlement there had
remained one surviving horse, he would have laughed a
horse laugh loud enough to wake the seven sleepers, at the
idea that this was a just and equitable settlement of the ac-
count.

Can Mr. Attorney General draw a distinction between this
and the so-called settlement of the account on assurances?

We seek to unsettle nothing that ever was settled. The
alleged balance of $48,230.77, whether bogus or genuine, is
settled, and so let it rest. The account for transportation is
settled, and whether fairly or unfairly, so let it rest. His
own final account is settled, and so let it rest forever. But
when we find hidden away in the archives of the nation a
just and meritorious account for 520,000 rations, never settled
and never paid, justice to the memory of a departed patriot,
justice to his surviving heirs—more than all, justice to the
United States of America—demands that, better late than
never, this debt should be canceled.

We may, notwithstanding, refer to the history of this set-
tlement as one of the interpreters of the act of 1820. It
was a settlement between a money-borrowing and interest-
paying man and a money-borrowing and interest-paying gov-
ernment. The unquestionable debt for transportation was
$63,620.48. Five years’ suspension of this account was a
dead loss to Piatt and a clean gain to the United States of
$18,086.14.

It is an adjudicated fact, not to be blinked now, that on
assurances of indemnity by the War Minister of the United
States, Piatt had expended in the purchase of food for the
HANNAH C. GRANDIN, ADM’X, Us. UNITED STATES. 439

North-western army $179,739.67, over and above all that
had been repaid. Five years’ suspension of this account was
a dead loss to Piatt and a clear gain to the United States
of $53,921.90. In addition to these hardships is it conceiv-
able that Congress, taking advantage of this man’s poverty,
imprisonment and desperation, deliberately intended to pay
this debt of $179,739.67, with $48,230.77, a sum less by
$5,691.13 than what Piatt had lost and the United States
gained in the item of interest by vexatious delay ?

Two of the Judges of the Court of Claims considered them-
selves bound by what they conceived to be the intention of
Congress; but in their theory of intention they convict that
body, not only of gross injustice, but of a monstrous sole-
cism; make them say substantially to the accounting officers:
“Gentlemen, we recognize both the existence and obligation
of Mr. Monroe’s assurances, and Mr. Piatt’s right to indem-
nity. Take his account and settle it on just and equitable
principles. Give him just and equitutle credit for every ra-
tion he has furnished under the assurances. Charge him
justly and equitably with every dime he has received for such
rations. State the balance justly and equitably due him, and
then pay him off, once for all, now and forever, with a mon-
eyless credit of less than one-third of what you find to be
justly and equitably due him, and let him and his creditors,
his heirs and assigns, forever whistle for the balance.”

Did Congress mean this, or did both the accounting offi-
cers and the Judges misapprehend the meaning of Congress ?
That such a monstrous idea was present to the minds of Con-
gress is ‘unworthy of any sane man’s belief. Congress knew
full well that such State policy could be productive of noth-
ing but mischief; that such treatment of men who have saved
our armies from defeat.and our country from ruin would in

troublous times instigate swindlers to cheat the Government
440 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

in self-defense; acting on the old proverb, if you sup with
the devil you must have a long spoon.

If we could persuade ourselves that Congress intended to
do this great wrong, they could not do it without the volun-
tary acquiescence of Piatt, and that is wanting; and in the
absence of proof that he understood the act in the same sense
in which these J udges understood it, and so understanding it
gave it his approval, this defense must go to the wall. This
Court will never tolerate the impairment of the validity of
contracts, not even in Congress, after they have been faith-
fully executed.

If it should be admitted that the allowance under the act
of 8th May, 1820, was mutually agreed upon as a discharge
of the whole debt: what of it? Piatt was not in a condi-
tion to make a binding compromise. He was in prison at
the suit of the United States, and his enlargement was the
consideration for which the compromise was made. True, he
was not within the walls of a prison-house, but he was in the
custody of his bail, liable to be surrendered at any moment,
and as much restrained of his liberty as if he had been ar-
rested for robbing the mail and held to bail.

By what right was this man arrested? Let us forget all
the progress of the last fifty years and go back to a time when
imprisonment for debt was a common remedy. Such things
at that day were hard enough. But here was the novel case
of the debtor casting the creditor into prison. At the time
he was arrested, the United States had in the Treasury, of
his money, $195,129.38 over and above all the claims of the
United States. They had been his debtor all along, under the
old and under the new contract, and had let his drafts for
$210,000 go to protest. He and that grand old man, John
McLean, had found the War Minister of the United States
sittiug in the ashes of the burnt-out Capitol, in an agony of
despair over a bleeding country and an empty Treasury.
HANNAH ©. GRANDIN, ADM’X, vs. UNITED STATES. 441

“He admitted to Piatt the inability of the United States to
comply with the terms of the contract on their part, both as
to money already due and as to money which might become
due for future supplies ;” appealed to his patriotism for help,
and promised him indemnity. Piatt pledged and lost all he
had to alleviate the poverty and avert the ruin of his coun-
try, and imprisonment was his reward.

But we must not allow the hardship of the case to lead
us away from the logic of the argument. Piatt owed the
United States nothing. They owed him for money laid out and
expended, after deducting the sum for which he was arrested,
$195,129.38, and in justice and equity for five years’ use of
his money $58,541.81 more. He was in no sense a debtor
to the United States, and yet the United States arrested and
imprisoned him for debt; and, with a capias ad respondendum
on his back anda capias ad satisfaciendum staring him in the
face, he stood like a sheep dumb before his shearers on the
8th day of May, 1820, when the compromise is supposed to
have been made.

I trust I need not produce an authority in this court to
show that when a party is unlawfully arrested and held to
bail, and purchases his enlargement by a ruinous compromise,
such compromise is of no legal obligation whatever. If the
Government had paid him his money in full, and on his way
home a band of freebooters had arrested him, and, with his
hands tied behind his back and a knife at his throat, he had
compromised for his freedom by giving them $131,508.90,
the legal obligation of the compromise would have been the
same—the moral obligation perhaps higher.

But there was nothing in Piatt’s case looking or even
squinting towards a compromise. There was no “amicable
agreement between parties in controversy to settle their dif-

ferences by mutual concessions.” There was no submission
442 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

and award. There was no accord and satisfaction, or any-
thing of kin to a compromise.

Mr. Attorney General thinks the claim of Piatt is barred
by submission, because it was held that the claim of Adams
was barred by submission. I should agree with him if there
was an important analogy between the cases. As it is, he
might as well accuse Piatt of starving the North-western
army because it was held that Captain Wirz starved the
prisoners of war at Andersonville.

The two cases differ in every respect, but I have only time
to mention one. Iam not aware that the commission who
arbitrated the claims of Adams, after the claims were sub-
mitted and the evidence heard, selected “a certain specified
portion ” of the boats he had built, say one-third, ascertained

” and based their award

the value of this “ specified portion,
on this alone, leaving the residue, say two-thirds, of the boats
out of the account and out of the award. Iam aware that
when Piatt’s account for 730,070 rations, furnished on the
assurances of the Secretary of War, was presented and
proved according to the principles of justice and equity, the

” of these

accounting officers did select “a specified portion
rations, to the number, say, of 210,000, based their settlement
on this “specified portion” only, leaving 520,000 rations,
worth, at their own estimate of value, $131,508.90, entirely
out of the account. Unless Mr. Attorney General can bridge
this chasm, I can travel no further with him on the line of
analogy between Piatt and Adams.

To what extremes of folly the wholesome rulings of this
Court are perverted by mixing discordant facts and calling
things by new names. The defenses in the case at bar come
down to this. I owe a banker $100 fora suit of clothes pur-
chased of him when he was only a tailor. To help him when
he was poor I deposited $100,000 in his bank, and he has
used it for five ycars without interest. My tailor’s bill is
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 443

getting old and ought to be settled, and so he sues me, and
by capias ad respondendum puts his old friend in jail. Bur
THIS IS NOT DURESS. I give special bail, go to the bank and
demand my money. THIS Is A SUBMISSION. The paying
teller refuses to give me my money. THIS IS AN AWARD.
The banker orders his clerk, for shame, to give me a credit
sufficient to cancel the tailor’s bill, and let me have my lib-
erty. THIS IS A COMPROMISE. Besides the tailor’s bill, the
cashier allows me a small part of what is due, and gives me
a check on a bank where there are no deposits to meet it,
not likely to be made good for four years to come. THIS Is
AN ACCORD AND SATISFACTION.

One thing I regret to find in Mr. Attorney General’s brief.
He says Piatt “was indebted to the Government as a dis-
bursing officer in the sum of $48,230.77, for which a capias
issued and he had been arrested.” There is no authority in
the record for this attack on the memory of this departed
patriot. He was no defaulter—never owed the Government
a dime as a disbursing officer. The Court of Claims speak
only of an allegation, never proved and never provable. If
our petition is taken for proof of this indebtedness, let the
whole story be taken together. The petition says that “it
was the practice and usage of the Department to make ad-
vances to army contractors, from time to time, of funds suf-
ficient to enable them to purchase and forward the necessary
supplies,” (R., p. 2) and that “when the said John H. Piatt
entered on the execution of his said contract, there was due
from him to the United States $46,112.56, for money remain-
ing in his hands as commissary, which he held and treated as
an advance.” (R., p. 3.)

Whether the clerks neglected to transfer this balance from
his account as commissary to his account as contractor, I do
not know or care to inquire. Suffice it to know that he spent

this balance, and thirteen times as much more, in purchasing
444 WANNAH C. GRANDIN, ADM’X, vs., UNITED STATES.

food for the North-western army; that the Government was
a penniless mendicant, feeding its army on his bounty, and
begging fur time to pay its debts; that his accounts were
regularly presented every quarter; and then it follows that
these officials brought him in debt simply by refusing to pay
him his dues. ,

I have hitherto denied that Congress intended to give, or
that Piatt intended to receive, this settlement and allowance
as a finality, because it seemed. to admit that the national
council of the United States was unjust, and that Piatt was
a lunatic. But let it be admitted, if you will, that both par-
ties intended it as an accord and satisfaction of all claims,
and what of it? The Government violated an indispensable
condition of the accord. The $63,620.48 was not paid, or
only paid, under the act of 1824, after Piatt was dead and his
estate had lost and the United States had gained $15,268.91
more by the delay. If this was an accord, it was an. accord
without satisfaction.

The settlement and allowance of this account, instead of
doing him any good, proved a snare to him. He thought he
had secured for his creditors $63,268.91, and distributed it
among them by assignment; but when they found there was
no money for them their disappointment turned to rancor,
and finished his ruin, already foredoomed by his unlawful
arrest.

Down to this time he had retained the confidence of the
public in his honesty. They knew he was largely indebted
in Ohio. The miracle of feeding an army with no other
capital but his own credit and Monroe’s assurances could not
have been performed without incurring a large indebtedness
at Home. Long delay had made his creditors uneasy, and
when the bruit of his defaleation and arrest by the Govern-
ment filled the ear of all Ohio, his credit, his reputation,
himself, all went down into a gulf of irretrievable ruin.
HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES. 445

Honorable gentlemen in Congress tried to help him out, but
it was all too late. It was like exploring a sunken ship for
the dead bodies of the crew. His miserable body was gotten
out, but his good name, the immediate jewel of his soul, was
lost. This barren voucher with which he sought to appease —
his creditors proved fruitless in their hands, and they in turn
pounced upon him and cast him into prison, and here, in the
Capital City, without money enough to purchase a winding-
sheet, he lay down and died on the prison bounds, the victim
of injustice and ingratitude.

Take this man’s case for all in all, I know of no parallel
in history since Bobadilla sent Columbus home in chains.

A word more, and I have done. In our petition we claim
interest on this debt. The questions as to that I submit with-
out argument. If it had been a transaction between man
and man, on the principles of justice and equity, we could
recover $631,405.45. Nine years’ delay in the payment,
without interest, of $63,620.48, was a dead loss to us and a
clear gain to the United States of $34,355.05. Fifty-eight
years’ delay in the payment, without interest, of $131,508.90,
is a dead loss to us and a clear gain to the United States
of $465,041.50, so that after paying us $131,508.90 the
United States will still have in the Treasury of our money
$499,896.55.

If we have no legal right to recover interest, then, in the
name of Hannah C. Grandin and the numerous heirs of John
H. Piatt, I give the United States joy of this large deposit ;
but in the name of justice I demand the little balance of
$131,508.90, found by a verdict of the Court of Claims to
be still due and unpaid.
446 HANNAT ©. GRANDIN, ADM’X, vs, UNITED STATES.

OPINION OF THE COURT:

BY MR. JUSTICE CLIFFORD.

Parol evidence of what passed between the parties, either
before their contract was reduced to writing, or during the
time it was in a state of preparation, is not admissible to add
to, subtract from, or in any manner to vary or qualify the
terms of the executed instrument; but it is competent for
the parties, after the agreement is reduced to writing, at any
time before a breach of it, by a new contract not in writing,
unless the agreement is one required by law to be authenti-
cated by writing, either to waive the same altogether, or dis-
solve or annul it, or in any manner to add to, subtract
from, or vary or qualify the terms of the instrument, and
thus to make a new contract, which, in a proper case, may
be proved partly by the written agreement and partly by the
subsequent verbal terms engrafted upon it by the new stip-
ulations. (Emerson vs. Slater, 22 How., 41. Addison on
Con., 6th ed., 934.)

Services of an important character were rendered by the
deceased claimant, during the war of 1812, as commissary
of subsistence, and it appears that when he ceased to. act
in that capacity there remained in his hands forty-six thou-
sand one hundred and twelve dollars and fifty-six cents un-
expended of the public moneys appropriated for that pur-
pose. On the twenty-sixth of January, 1814, the deceased,
then in full life, contracted in writing with the Secretary of
War to furnish rations to the North-western army for the
period of one year, upon the terms and conditions fully set.
forth in the petition.

Pursuant to that contract he delivered the rations re-
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 447

quired to the amount in value of two hundred and sixty-
nine thousand and fifty-one dollars and twenty-eight cents,
as appears by the finding of the court below. All of the
rations included in that aggregate of value were furnished
according to the terms of the written contract, but the Unit-
ed States failed to make the stipulated payments, and made
default to the amount of two hundred and ten thousand
dollars, and were in fact, as the court below find, unable to
fulfill the terms of their contract.

Payments being refused, and the Secretary of War admit-
ting that the United States were unable to fulfill the con-
tract, both as to what was due and as to what might become
due for future supplies, the contractor notified the Secretary
of War that he should furnish no more rations under that
contract.

Both parties appear to have acquiesced in that view of
the case, but the public exigency rendered it imperatively
necessary that a large quantity of rations should be imme-
diately furnished for the North-western army, and the Court
below finds that, in order to meet the exigency of the pub-
lic service, it was agreed by parol between the deceased
claimant and the Secretary of War that the former should
furnish the required rations, and that he should receive
for the same whatever price they should be reasonably worth
at the time and place of delivery, and that the United States,
instead of paying as stipulated by the terms of the original
contract, might defer payment until such time or times as
they should have the requisite funds.

Rations were furnished by the contractor under the new
agreement exceeding in number seven hundred thousand, and
the Court below finds that the fair and reasonable value of
each ration was forty-five cents at the times and places at
which they were furnished, amounting in the aggregate to

the sum of three hundred and twenty-eight thousand five
29
448 HANNAII C. GRANDIN, ADM’X, Us, UNITED STATES.

hundred and thirty-one dollars and fifty-four cents, as ap-
pears by the fourth finding of the Court below. By the
same finding it also appears that the accounting officers of
the Treasury settled the accounts of the contractor at the
close of the year without the knowledge of the parol agree-
ment, and consequently that they allowed him only the
price designated in the original written contract, amounting
in the aggregate to the sum of one hundred and forty-eight
thousand seven hundred and ninety-one dollars and eighty-
seven cents, leaving due to him a balance of one hundred
and seventy-nine thousand seven hundred and thirty-nine
dollars and sixty-seven cents.

Unadjusted accounts were also held by the deceased claim-
ant against the United States for transportation services and
expenses, and for supplies in the form of rations furnished
for the use of indigent citizens and Indians, not embraced
nor included within either of the described contracts or agree-
ments, for which he claimed large credits. Instead of ad-
justing those accounts the United States instituted a suit
against the claimant to recover the balance due from him as
Commissary of Subsistence, and the fifth finding of the Court
below shows that he was arrested and held to bail in that
suit, and that Congress, during the pendency of the same,
passed an act for his relief. By that act the proper account-
ing officers were directed to settle his accounts on just and
equitable principles, giving all due weight to the settlements
and allowances already made, and to the assurances and de-
cisions of the War Department, provided the sum allowed
under such assurances shall not exceed the amount now
claimed by the United States, for which suit has been com-
menced against the claimant. (6 Stat. at Large, 245.)

Under and in pursuance of that act the accounting officers
of the Treasury settled his accounts as follows:

1. They allowed him for his transportation claim and for
HANNAH C. GRANDIN, ADM’X, U8. UNITED STATES. 449

the rations furnished to citizens and Indians, sixty-three
thousand six hundred and twenty dollars and forty-cight
cents, which is a matter entirely separate and distinct from
the rations furnished under the parol agreement.

2. They also adjusted his accounts for the rations deliv-
ered to the army under the parol agreement in the following
manner: Before making any deductions they estimated the
fair and reasonable value of the rations furnished under that
agreement, and then deducted the price of rations already
paid to the claimant, and “from the balance thus ascertained
they made a further deduction sufficient to reduce the amount
of credit to the” sum due from the claimant as Commissary
of Subsistence, in obedience to the proviso contained in-the
private act passed for his relief.

Enough appears by the foregoing statement to show that
the last deduction amounted to the sum of one hundred and
thirty-one thousand five hundred and eight dollars and ninety
cents, which still remains due and unpaid, as appears by the
fourth finding of the Court below.

Subsequently Congress passed another private act, under
which the assignees and administrators of the deceased claim-
ant were paid the amount allowed for the transportation claim
and for the rations furnished to indigent citizens and Indi-
ans, and the present suit was brought to recover the balance
for the rations furnished to the army under the parol agree-
ment. (6 Id., 314.)

Four only of the Judges of the Court of Claims were
present at the hearing of the case. They were unanimous
in all of the findings of fact and in respect to the conclu-
sion of law that’ the parol agreement was valid, and as to
the amount of the balance due to the deceased claimant,
but, being equally divided upon the right of the claimant to
recover, they entered judgment in favor of the defendants
for the purpose of an appeal to the Supreme Court. Appeal
450 HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES.

was taken from that judgment by the present claimant, and
the assignment of errors is that the second conclusion of law,
that the cause of action is barred by the allowance reported
by the accounting officers of the Treasury, is erroneous.

Attempt is made to vindicate that conclusion chiefly upon
two grounds: 1. That the Auditor passed to the credit of the
deceased claimant the amount claimed by the United States
as due from him as commissary of subsistence, and that he,
the claimant, accepted the settlement without protest. 2. That
Congress intended by the act directing the adjustment of
his accounts that the settlement should be final and con-
clusive ; that the act was in the nature of an offer for a dis-
puted claim, and that the acceptance of the adjustment is a
bar to the claim.

Verbal agreements between the parties to a written con-
tract made before or at the time of the execution of the
contract are, in general, inadmissible to vary its terms or to
affect its construction, as. all such agreements are consid-
ered as merged in the written contract. Both parties ad-
mit that proposition, nor is it denied by the defendants that
oral agreements subsequently made, on a new and valuable
consideration, before the breach of the contract, may have
the effect. to enlarge the time of performance of the con-
tract, if it is not one within the statute of frauds, or that
such an oral agreement may have the effect to vary any of
the terms of the written contract or to waive or discharge
it altogether.

Exceptions, it is everywhere admitted, exist to the rule
that parol evidence is not admissible to contradict or vary
the terms of a written instrument. Most of such excep-
tions are enumerated by Mr. Greenleaf, and in the course
of that enumeration he says: “Neither is the rule infringed
by the admission of oral evidence to prove a new and dis-

tinet agreement upon a new consideration, whether it be as
HANNAH C. GRANDIN, ADM’X, vs. UNITED STATES. 451
’ 2

a substitute for the old or in addition to and beyond it; and
if subsequent and involving the same subject-matter, it is
immaterial whether the new agreement be entirely oral or
whether it refers to and partially or totally adopts the pro-
visions of the written contract, provided the old agreement
be rescinded and abandoned.” (1 Greenl. Ey., 12th ed., sec.
303; 2 Taylor’s Ev., 6th ed., sec. 1044; Goss vs. Nugent,
5 B. & Ad., 65; Nelson vs. Boynton, 3 Met., 400; Leonard
vs. Vredenburg, 8 Johns., 39; Marshall vs. Lynn, 6 Mee. &
Wels., 109; Stead vs. Dawber, 10 Ad. & El., 57; Harvey vs.
Grabham, 6 Ad. & El, 65; Stowell es, Robinson, 3 Bing.,
N. C., 927.) '

Sufficient appears in the very nature of the new arrange-
ment to show that the promise of the United States was
made upon a good and valid consideration, as nothing is
better settled than the rule that if there is a benefit to the
defendant and a loss to the plaintiff consequent upon and
directly resulting from the defendant’s promise in behalf of
the plaintiff, there is a sufficient consideration moving from
the plaintiff to enable the latter to maintain an action upon
the promise to recover compensation. (1 Pars. on Con., 6th
ed., 431.)

Other authorities state the rule much stronger, authorizing
the conclusion that benefit to the party by whom the prom-
ise is made, or to a third person at his instance, or damage
sustained at the instance of the party promising by the party
in whose favor the promise is made, is sufficient to constitute
a good and valuable consideration for the support of an ac-
tion of assumpsit. (Violet vs. Patton, 5 Cran., 150; Chit. on
Con., 28; Townsley vs. Sumrall, 2 Pet. 182.)

Modern authorities supporting the proposition that parol
evidence is admissible to prove such a new agreement, under
the circumstances disclosed in this case, are very numerous,
and are quite sufficient to show that the proposition may be
452 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES,

regarded as an established rule of decision. (Cummings vs,
Arnold, 3 Met., 489; Bank vs. Woodward, 5 N. H., 99;
Barley vs. Johnson, 9 Cow., 99; Blood ws. Goodrich, 9 Wend.,
75; Lindley vs. Lacey, 17 C. B., N. 8., 584.)

Apply that rule to the case, and it is quite clear that the
whole amount claimed by the plaintiff was due to the de-
ceased claimant at the time his accounts were adjusted by
the accounting officers of the Treasury, in addition to the
amount claimed by the United States in set-off for balance
due from him as Commissary of Subsistence. Well-founded
doubt upon that subject cannot be entertained, as it satisfac-
torily appears that, in order to reduce his claim to an amount
not exceeding the claim of the United States, those officers
found it necessary to deduct’ from the aggregate estimate of
the value of the rations furnished under the parol agreement
an amount exactly equal to the balance found due to the
claimant by the subordinate Court from whose judgment the
appeal is prosecuted in this case.

Nothing was paid to the claimant under that private act
except what was allowed to the claimant for services and
expenses in furnishing transportation and rations for the use
of Indians and indigent citizens. He was discharged from
arrest, and the balance due from him to the United States
for the moneys in his hands as Commissary of Subsistence
was also discharged, but nothing was paid to him for the
large balance now found to be due by the Court below. Ar-
gument to show that such a settlement is not a bar to the
residue of the claim is unnecessary, as the proposition is ut-
terly destitute of merit, and repugnant to the plainest dictates
both of law and justice.

2. Opposed to that is the suggestion, in behalf of the United
States, that the act of Congress was in the nature of an offer
of compromise, and that the acceptance of the adjustment is
a bar to the claim.
HANNAH C. GRANDIN, ADM’X, US. UNITED STATES. 453

Support to that proposition is attempted to be drawn from
the decision of this Court in the case of Mason vs. U. 8. (17
Wall., 70); but the Court here is very clearly of the opinion
that the case cited affords no countenance whatever to any
such conclusion. Muskets were wanted by the United States
in that case, and it appears that the plaintiff in that contro-
versy contracted to manufacture and deliver at a specified
time large quantities of such arms at the price specified in
the contract. Arms of the kind were delivered and paid
for, and the plaintiff was notified by order of the Secretary
of War that a larger ‘quantity would be received. Prepara-
tions were accordingly made by the plaintiff to fill the sec-
ond order, but the Secretary of War subsequently appointed
a special commission to audit and adjust all such orders and
claims. They reported that the contract should be confirmed
to a certain extent upon the condition that the contractor
should, within fifteen days after notice of their decision, ex-
ecute a bond, with good and sufficient sureties, for the per-
formance of the modified contract; and the case shows that
he executed the modified contract and gave the required
bond. By that contract he engaged to manufacture thirty
thousand muskets, and the finding of the subordinate Court
showed that the contract was fulfilled by both parties.

What the Court decided in that case was that the claim-
ant voluntarily accepted the modification of the contract as
suggested by the commissioners, and that he executed the
new contract in the place of the one superseded, which new
contract he must have understood was intended to define the
obligations of all concerned. Beyond all doubt the new con-
tract in that case was substituted for the old one, and the
Court held that no party, after accepting such a compromise
and executing such a discharge, could be justified in claim-
ing damages for a breach of the prior contract, which had
been voluntarily modified and surrendered.
454 HANNAH C. GRANDIN, ADM’X, v8. UNITED STATES.

Other cases to the same effect have been decided by this
Court. (U.S. vs. Child, 12 Wall., 221; U.S. vs. Justice, 14
Id., 535.) None of those cases, however, proceed upon the
ground that such a commission possesses any judicial power
to bind the parties by their decision, or to give the decision
any conclusive effect. Claimants in such cases may appear
before the commission or not, as they choose, but the decis-
ion is, if they do appear and accept the terms awarded as a
final settlement of the controversy, without protest, they must
be understood as having precluded themselves from further
claim and litigation.

Where a party accepts the amount awarded in such a case
it is just to conclude that he acquiesces in the decision of
the tribunal by which a part of the claim is rejected as well
as in the finding in his favor ; but the accounting officers in
this case were forbidden by law to allow the claimant any-
thing beyond the amount in his hands as Commissary of Sub-
sistence, and they obeyed the directions given in the act of
Congress. Manifestly the claimant had no option upon the
subject, and in the opinion of the Court it would be an un-
reasonable construction of the act of Congress to suppose
that its framers intended that the claimant should relinquish
the large balance found to be due him in consideration of
his discharge from arrest and the discontinuance of the suit
against him for the recovery of the amount due from him to
the United States.

Certain cases from the State reports are referred to, which
it is supposed assert a different rule, but the Court here is
of a different opinion. (Sholes vs. State, 2 Chand., 182;
Baxter vs. State, 9 Wis., 44; Calkins vs. State, 13 Wis., 389.)

Suffice it to say that in the case before the Court no ap-
propriation whatever was made in favor of the claimant.
Where the claim is disputed and an appropriation is made
in favor of the claimant for an amount less than the amount
HANNAH C, GRANDIN, ADM’X, vs. UNITED STATES. 455

claimed, and the appropriation purports to be in full pay-
ment of the demand, the rule may be different; but it is
sufficient to say in response to those authorities that noth-
ing was appropriated in this case, and the accounting offi-
cers of the Treasury were forbidden to allow anything be-
yond what was involved in the pending suit against the
claimant.

Judgment reversed and the cause remanded, with instruc-
tions to render judgment in favor of the petitioner for the
amount found to be due her in the fourth finding exhibited
in the transcript.
D. A. Hollingsworth, Assignee of Nathan
Gray in Bankruptcy,

US.
Nathan Gray and the Guernsey National
Bank of Cambridge.

UNITED STATES DISTRICT COURT,

SouTHERN District oF OHIO.

Apri, Term, 1874.

BANKRUPTCY: FRAUDULENT INTENT.

ARGUMENT OF JUDGE JOHNSTON,

FOR DEFENDANTS.

The firm of N. Gray & Son had been engaged in mer-
chandise in the town of Smyrna, Harrison county, Ohio,
about four years. The firm was composed of Nathan Gray,
who was regarded as the responsible member, being a man
of good reputation and the owner of a valuable farm in
Guernsey county, and Marion O. Grav, the active business
man of the firm. The son carried on the mercantile busi-
ness in the village of Smyrna, in Harrison county ; and the
father managed his farm in Guernsey county, about four
miles from Smyrna, and twenty-four miles from Cambridge.

The firm kept some deposits in the Guernsey National
Bank of Cambridge, and had loans of money from time to

time, evidenced by joint and several bonds, in which all
(456)
D. A. HOLLINGSWORTH, ASSIGNEE, US. N.GRAY ETAL. 457

the signers were principal debtors—this being the ordinary
method of making discounts in country banks. Upon such
bonds the firm owed the bank $4,000, on the 19th day of
October, 1872. One bond for $1,000 was past due four days,
‘and Marion O. Gray had gone, as he alleged, to Wheeling,
for money to take it up, but had not yet returned on the
19th.

The father, Nathan Gray, became dissatisfied with the
son’s manner of doing business, and resolved to take the
concern into his own hands, and close it up. Accordingly,
on Saturday, the 19th day of October, 1872, he repaired to
Cambridge, and went to the bank to see how the accounts
of his firm stood there. Here he found the indebtedness of
the firm larger than he had anticipated, but said, and no
doubt believed, they were abundantly able to pay all their
debts, if they only had time. The bankers were willing to
give him time, and proposed a renewal of the notes; but
he did not wish to trouble his neighbors for their names,
and finally concluded upon a mortgage, and it was prepared
and executed.

He went home, and arrived late at night, where he found
a message, requiring him to be in Smyrna on Monday morn-
ing. During the Sabbath one of his neighbors brought him
bad news about his son. Monday morning he went to Smyr-
na, without any thought of making an assignment, but to
find-some one by whom he could send to Cambridge for his
son, if he was there, and in case he was not there to bring
away the horse and buggy which his son had left at the
tavern, in Cambridge. He found Smyrna, in and about the
store, in a state of excitement, about the conduct and flight
of his son. Terrible stories—some of them true, and more
of them false—were told him, and he was informed that one
of the creditors had gone to Cadiz to get out an attachment

and seize upon the store. He resolved at once to make an
‘458 DA. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

assignment, under the laws of Ohio; went to Cadiz, and exe-
cuted it the same day. The assignees took possession of the
assets, and went to work to settle up the affairs of the firm,
and pay the debts so far as the assets would extend.

Thus matters stood till the day before the presidential
election, when one Henry Miller, of the firm of Reed,
Jones & Co., of Columbus, Ohio, creditors of N. Gray &
Son, came to Cambridge, seeking information, as he alleged;
had an interview with the president of the bank; made
‘Nathan Gray a visit at his own house; returned to Cam-
bridge; failed to induce the bank to purchase his claim;
and then, in the name of his firm, instituted this proceed-
ing in bankruptey.

The adjudication of this matter involves three questions:

First. Did Nathan Gray, on the 19th day of October,
1872, mortgage his farm to the Guernsey National Bank of
Cambridge, with intent to delay, defraud, or hinder his cred-
itors?

Second. Did Nathan Gray, on the 19th day of October,
1872, being insolvent, mortgage his farm with intent to give
a preference to the Guernsey National Bank of Cambridge,
or to defeat or delay the operation of the bankrupt act ?

Third. Had the Guernsey National Bank of Cambridge,
on the 19th day of October, 1872, reasonable cause to be-
lieve that a fraud on the bankrupt act was intended; and
that Nathan Gray was insolvent?

These mixed questions of law and fact I propose to ar-
gue by and by; but, first, to take a turn into the history
and facts of the case as they are developed in the testimony
on both sides; and group the various characters, according
- to their natural and proper relations to each other.

‘The first, but not the principhl figure in this group is
Marion O. Gray, a spoiled child—good enough by nature
for aught I know, but spoiled by an attempt on the part of
D. A. HOLLINGSWORTH, ASSIGNEE, v8. N.GRAY ETAL. 459

his grandfather to make a merchant out of a boy of eighteen.
The news-boy, the errand-boy, and the waiting-boy, all have
some knowledge of the world, but the school-boy of eighteen
is almost a total stranger in it. If, at eighteen years, Mar-
ion O. Gray had been apprenticed fur seven years to the
mercantile business; rolled barrels, lifted boxes, made fires,
swept floors, brushed counters, delivered parcels, collected
bills, kept accounts, bought and sold goods—taking care to
discharge his duty in each department so well that none
could do it better; and then, at twenty-five years of age,
with his grandfather’s $2,800 in his purse, and the good opin-
ion of every one who had known him, opened up for him-
self, and served himself as faithfully as he had served others,
he might have been an honor to his calling, and a source of
comfort and pride to his family.

But in that adolescent stage of life, when the mind is
more unsteady than in earlier childhood, he took upon him-
self the multifarious cares of a country store. Of course,
things were badly managed; but, for the first three years,
no one seems to have seen anything amiss, and his father
allowed him to have everything his own way. Now he
reached the turning point of human destiny. He married
a wife. This seems to have been one of the devil’s own
make of matches. Not but that the lady was good enough ;
perhaps too good. But she had a pragmatical old man for
her father, who set on fire and fanned up strife between his
daughter and her husband.

“Marion and his young wife were driven asunder, and of
course, in a little village, became the topic of all manner of
uncharitable talk. He is now homeless, friendless, reckless,
persecuted, waylaid, and shot at. He becomes desperate,
and does not care what becomes either of his business or
himself, “But for the dread of something after death,” su-

icide would have been -his appropriate remedy. Ruin, in
460 D. A. HOLLINGSWORTII, ASSIGNEE, vs. N. GRAY ET AL.

one form or another, stares him in the face wherever he
turns.

When a man, once respectable, is preparing himself for
ruin, there is a painful, wavering pause, before he takes the
plunge, and his behavior is mysterious. No one read Mar-
ion’s troubled mind aright. His father thought he was
crazy, and so do I. His neighbors thought his mind was
distracted by domestic trouble, and so do I. Vickers and
Kinsey thought he was reckless, and so do J. But not one
of them thought he was preparing to abscond, any more
than I did, who had never heard there was such a man.

The business house of Gray & Son was distant twenty-
five miles from Cambridge, over a hilly country and rough
roads, and the bank had little or no means of knowing the
manner in which. this young man was conducting business,
and, in fact, knew nothing about it till his father revealed
his recklessness, and asked the bank to aid him in closing
out the business of the firm; and then his integrity was
not questioned till he failed to return from Wheeling.
When Nathan Gray went home on the afternoon of the
19th, he still looked for his son’s return, and requested J.
D. Taylor, if he returned, to send him directly to his house.

Some of the bank directors, Mr. Gooderl for one, had
heard hard stories about Marion, but each and all of these
stories had reference to his domestic troubles, and not one
of them affected the question of integrity or insolvency.
Away out at Smyrna, his enemies, probably in August, set
on foot a story that he had forged the name of Mr. Phipps
to one of his notes, and two several persons carried the
story to Mr. Phipps, and Mr. Phipps went directly to
Marion to know the truth; and not contented with the
denial of Marion, went to Nathan, and not content with
Nathan’s denial, wrote, as he thinks, two several letters to

the cashier, inquiring whether his name was in the bank to
D. A. HOLLINGSWORTH, ASSIGNEE, vs. N.GRAY ETAL. 461

any of Gray’s paper. The first of these letters, Mr. Phipps
thinks, was written about the ist of September, and, re-
ceiving no answer to it, in about a week he wrote the sec-
ond, and received no answer.

Several things are worthy of remark about these two let-
ters :

First. If théy had been received, they would probably
have been on the files of the bank, but Mr. Laurence, to
whom they were directed, testifies that they never were re-
ceived.

Second. If they had been received, Mr. Phipps testifies
that they contained no imputation of forgery, but only an
inquiry whether his name was to any of the notes of N.
Gray & Son.

Third. If they had been received, and contained an impu-
tation of forgery, the notes of N. Gray & Son, in the bank,
would have proved the imputation to be false.

Fourth. Tf, in the month of September, the bank had
received two letters from so respectable a man as Mr.
Phipps, doing business within fifty feet of the store of Gray
& Son, imputing to Marion the crime of forgery, it is scarcely
possible that on the 3d and 4th of October they would have
discounted his paper for $1,500.

In truth, the bank had no warning voice from Mr. Phipps
to put them on inquiry. They had not heard from him since
the 15th of June, when the cashier received the following
letter, which I beg leave to read entire:

“Smyrna, June 15, 1872.

“Prrenp W. A. LaureNce:—I am intimately acquainted
with the above-named firm (N. Gray & Son), have a large
business with them, have always found them prompt and
punctual, and consider them trustworthy.

“ Respectfully, etc.,

“KE. J. Pures.”
462 D. A, HOLLINGSWORTH, ASSIGNEE, vs, N. GRAY ET AL,

When Mr. Phipps’ deposition was taken, he had forgotten
about this letter, and denied having ever written it. But
the original is now attached as an exhibit to the second dep-
osition of Mr. Laurence, together with a letter of Mr. Phipps,
dated January 3, 1874, admitted to be genuine, and the hand-
writing may also be compared with his signature to his depo-
sition in this case. These three signatures are as peculiar,
as inimitable, and as like each other as the signatures of
Gen. Spinner to the national currency. To this is added
the testimony of an expert who had seen him write a hun-
dred times, and had corresponded with him for twenty years.

Turning to the deposition of Mr. Kinsey, it will be found
that he was in Smyrna in the months of July and Septem-
ber, closing up a wool account with N. Gray & Son and E.
J. Phipps, who, working in partnership in this business, had
purchased wool for McFadden, Kinsey & Co., of Cadiz; so
that Mr. Phipps, doing business within fifty feet, and in daily
intercourse with M. O. Gray, as a partner in the wool busi-
ness, had rare opportunities of knowing whereof he spoke,
in the letter of June 15, 1872.

Even if it should turn out that the Phipps letter was not
genuine, which I hardly think to be possible, it appeared to
these bankers to be genuine, and was to them a strong rec-
ommendation from a respectable source, and formed a part
of the foundation on which they built their confidence.

One word more as to the light in which these bankers
regarded the two members of this firm.. Although Marion’s
integrity was never called in question, or even doubted by
them before the execution of the mortgage, not one of them
ever thought of giving him credit. If he had any property
in his own right, it was too small to be taken into account.
He was regarded only as the working man of the firm; and
to Nathan Gray and his surcties they looked for security.

This brings before us the second figure in the group, and
D. A. HOLLINGSWORTH, ASSIGNEE, v8. N.GRAY ETAT. 463

starts the question, who is Nathan Gray, and why should a
man doing business in another county, and living twenty-
four miles from the bank, have such liberal accommodations ?
This question can be best answered by the cashier.

Mr. Laurence had known him and transacted business with
him for twenty years. He lived in Londonderry township,
a short distance from the village of Londonderry. Here Mr.
Laurence taught school when he was a young man, and Na-
than Gray was probably one of his patrons. Here, in after-
life, Mr. Laurence tanned leather, and Nathan Gray sold him
hides and purchased leather from him. And thus they had
long known each other. Mr. Laurence knew him to be a
man of property, and believed him to be thoroughly hon-
est. When the old acquaintance of Nathan Gray came to
be cashier of a bank, it was natural he should send his part-
ner to that bank to make his loans and deposits in preference
to other banks; and when the old acquaintance of Mr. Lau-
rence applied for loans, it was natural he should accommo-
date him in preference to other applicants.

As to the manner in which this boy transacted busi-
ness at home, neither Mr. Laurence nor any one else con-
nected with the bank could know anything. He did busi-
ness twenty-five miles from the bank, but right under the
eye of the father, whose interest in the success of the estab-
lishment ought to have made him watchful. The Gray
family had not a pound of butter to spare that did not go
into this store, and did not use a pound of coffee that did
not come out of it. With these opportunities of judging,
if Nathan Gray had been as sharp as he was honest, he
would have discovered the son’s incapacity sooner. But he
did not wake up to his incapacity till his recklessness
alarmed him; and even then he had no idea of the extent

to which the son had involved him. But, determined to
380
464 D.A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

put a stop to his recklessness and close up the business of
the firm, he came to Cambridge on the 19th.

Be it remembered that Nathan Gray came to Cambridge
on the 19th, on his own motion. He had no invitation from
these bankers to come—no intimation that they wished to
see him. His own account of it is this: “ To sum the whole
matter up in brief, from Marion’s evident reckless course in
neglect of business at home, I became apprehensive that
things were not running as they should be, pertaining to
the interests of the firm. I went there to ascertain what
course he had been pursuing when he had been in Cambridge
times previous.”

This was the motive, as Nathan had it in his head;
but in his heart he had a better motive, which prudence
forbade him to reveal. He came to save a wayward son
from ruin. In Smyrna his son had been persecuted, belied,
accused of crimes, waylaid and shot at; and, worse yet, had
become disturbed in his mind and reckless in his business.
While there was yet a stock of goods estimated at $10,000,
and book-accounts estimated at $6,000, and few debts of
which he had any knowledge, he determined to get the son
out of a business for which he now saw he was unfit, to pay
off the firm debts, and close up the concern.

He failed to meet his son in Cambridge as he had ex-
pected. He found the bank debt much larger than he an-
ticipated, and his mind was troubled. He suspected, with-
out believing, that his son had committed forgeries, and
what he only suspected he did not reveal. He denied,
and T think very properly, the son’s authority to rent a
store-room in Cambridge; spoke of the largeness of the
debt, and expressed a belief, for which he had some reason,
that his son Marion was out of his right mind; but gave no
intimation of his fears as to the genuineness of any signa-
ture, except that of his own to a little note of recommenda-
D. A. HOLLINGSWORTH, ASSIGNEE, Us.N.GRAY ETAL. 465

tion, written obscurely in pencil, on the back of a letter, and
nearly rubbed out.

The debts were larger than he anticipated, but he felt
fully able to pay them all if he had an extension of the
bank debt of $4,000. The officers of the bank had their
duties to perform. They were the fiduciary agents for the
management of other people’s money, and in good faith to
the stockholders of the bank, could not extend these loans
without sufficient security. They wished to help Nathan
Gray out, and were willing to grant the extension on any
security that might be safe, personal or real, and it was for
him to decide which of the two he would give. This placed
him in a painful dilemma—fearing, as he did, that there
was something wrong about the old notes. If he should go
to Smyrna, where his son’s reputation was already in a
damaged condition, and ask the old sureties for new signa-
tures, and anything, in fact, was wrong about the old ones,
the devil would be unchained at once, and that which at
present was but a tempest in a tea-pot would rise into a
whirlwind and sweep his miserable son to destruction.

There was still a way in which he could take the burden
of the bank debt on his own shoulders, make the old sure-
ties.safe, and satisfy the requirements of the bank. This was
to mortgage his farm, and on due reflection he concluded to
give the mortgage.

There is no reproach due to any one in this transaction.
If any one of us had been the banker, he would have done
precisely what these bankers did; and if any one of us had
been Nathan Gray, he would have done precisely what Na-
than Gray did, in the circumstances as they then appeared.

But poor Nathan Gray was destined to cruel disappoint-
ment. He learned, within two days, that the son he had
striven so hard to save had fled from the country; that the
debts he had resolved to pay were three times as large as
466 D. A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

he had supposed; and that one Johnson was getting out an
attachment to seize the goods. He did the best he could for
the creditors—made a general assignment—and, without re-
proaching either himself or the bankers, on the first of No-
vember wrote them a kindly letter, in which he says: “ After
I came home, I found things different to what I expected,
although they seemed pretty bad when I was out there, and
I thought the best I could do was to make an assignment
of the firm, and did so, and I hope things will work out
right.”

Here, again, poor Gray was disappointed. In a few days
after, this distinguished bankrupter, Miller, visited him at
his house, to badger and browbeat him into the belief that
by making the mortgage he had brought bankruptcy on him-
self. Since then he has become hostile to his old friends in
the Guernsey National Bank, and his deposition shows that
grief, disappointment and misfortune have injuriously affected
his mind and memory.

To a mind somewhat distracted, and a memory somewhat
impaired, a system of examination, unknown to Harrison
county in the days of Walter B. Beebee and Chauncey Dewey,
has been applied with wonderful pertinacity. I mean a sys-
tem which takes some indisputable truth and some insidious
falsehood, and knots and twists and ties them together, by
crooked, complicated leading questions, till it is impossible
for a slow, undisciplined mind to give any answer without
either denying the truth or telling a falsehood. Thus two
things are sought to be proved by Nathan Gray: First, that
he disclosed to these bankers a belief that his son had forged
the names of his sureties; and second, that the bankers had
extorted from him the mortgage. As to forgeries, he tes-
tifies that he had never heard of but one. That, of course,
was the case of Phipps, of which we know he had heard, and
which turned out to be a slander on Marion and a hoax on
D, A. HOLLINGSWORTH, ASSIGNEE, v8.N. GRAY ETAL. 467

Phipps. That he had grave suspicions, may be admitted, but
being mere suspicions, he concealed them in his own bosom.
His purpose was to reclaim and not to expose his son; and,
expecting to use him in the settlement of the affairs of the
firm, he could not choose to fix a stigma on his character.
In reply to question 19, he says: “Some one of the par-
ties, don’t remember which one, produced the notes given
in bank, and wanted to know of me, if I thought or knew
whether the indorsements were all right. My answer was,
that I did not positively know, from the fact that I had no
knowledge of the transaction until that day; but it was my
impression that some of them were not correct.” Standing
alone, this sentence might convey the idea that he told these
bankers that it was his impression some of the indorsements
were not correct. But interpreted by his answers to 33, 34,
and 35, it means simply this: he told the bankers he did not
know whether these indorsements were right or not, having
had no knowledge of the transaction till that day. The re-
maining clause, “ But it was my impression that some of them
were not correct,” was the painful suspicion of his own mind,
to which he never gave utterance. In question 86, he is
asked: ‘On the day you were at Cambridge, was there any
talk between you and Laurence, or between you and any
one, in regard to any names being forged, or did you intend
to convey that impression to any one that day?” To this
he replies: “I would say there was talk in regard to that
thing; but it was very far from me wishing to make any
such impression. The matter” (that is to say, the talk) “was
drawn out of me without my wish, by the other parties.”
But the other parties, at least four in number, all respecta-
ble men, testify that no imputation of fraud or forgery was
made by the father against the son on that day, and that
they never once questioned his integrity: so that Nathan
468 D. A. HOLLINGSWORTH, ASSIGNEE, US. N. GRAY ET AL.

Gray was successful in concealing his fears as to this unfort-
unate boy.

As to any undue pressure being used to extort the mort-
gage, it is unworthy of anybody’s belief. Nathan Gray was
resolved not only to take all the goods of the firm, but all
the debts of the firm—was unwilling to agitate the old notes,
not knowing what the agitation might cast up. He could
not, or would not, call on tke old sureties, and a mortgage
was his chosen alternative. The plaintiff, in one of his long,
multifarious leading questions, speaks thus: “Is not it a fact
that you were so worried on the day you gave that mortgage,
on account of Marion’s conduct in reference to the affairs of
the firm, and the efforts made by the bank officers to get you
to make said mortgage, and your uncertainty as to what had
become of Marion, that you hardly realized all you did do
or say on that day?” Here was a statement containing two
truths and one falsehood drawn up by the examiner ready
for the indorsement of the witness by yes or no, which, as
an honest man, he could not so indorse; and so he gives this
answer: “A great deal of that is a fact; but so far as the
bank officers were concerned, I suppose that I probably, un-
der the same circumstances, would have felt like securing in
some way the interests of the bank: I mean that I would do
as the bank officers did under the same circumstances.”

In this man’s testimony, there is more disposition to cast
blame on others and more reluctance to speak out than be-
comes so good a man. But after all, what does it amount
to? He nowhere confesses that he made the mortgage with
intent to delay, defraud, or hinder his creditors. He nowhere
confesses that being bankrupt or insolvent, or in contempla-
tion of bankruptcy or insolvency, he made the mortgage with
intent to give a preference to one or more of his creditors, or
with intent to defeat or delay the operation of the bankrupt
act. He nowhere swears to’any reasonable cause these bank-
D. A. HOLLINGSWORTH, ASSIGNEE, v8.N.GRAY ETAL. 469

ers had to believe that a fraud on the bankrupt act was in-
tended by him in making’ the mortgage, and that he was
insolvent at the time. This makes his testimony harmless
as to the bank.

That Nathan Gray, on the day he made the mortgage,
declared that the firm was abundantly able to pay all its
debts, stands on the testimony of three gentlemen, all of
whom I know personally to be honorable and respectable,
and no doubt Mr. Gray spoke the truth, as far as he knew
or believed at the time. But let us come to figures. He
knew that Grimes estimated the stock of goods at from
$10,000 to $11,000, and that his son estimated the book-
accounts at from $6,000 to $8,000, making together from
$16,000 to $19,000 of assets. Perhaps he considered these
estimates too high. Be it so. Still there was enough to
pay all the debts, of which he had any knowledge at that
time, twice over. The assignee, Phipps, testifies that he
and his co-assignee will make out of the assets between
$8,000 and $9,000. I have never known a judicial sale of
miscellaneous goods, where, after paying all charges, the
goods brought fifty cents on the dollar of the ordinary
selling price. No doubt Grimes, who was supposed by Mr.
Hollingsworth to have been drunk when he made this esti-
mate, and Marion O. Gray, who was supposed to be crazy,
made a pretty fair estimate of the value of these assets. But
put them down at $12,000, and they were sufticient to pay
twice over all the indebtedness of the firm at that time
known to Nathan Gray. The only debts present to his
mind at this time were $4,000 to the bank, $500 to Moore,
$800 to T. Johnson, $400 to J. Johnson, and $300 to Burt;
making in all $6,000. The bankers had still less knowledge
of the indebtedness of this firm than Nathan Gray; but both
he and they had good cause to believe and did believe, that
the firm of N. Gray & Son was fully able to pay all its in-
470  D, A. HOLLINGSWORTH, ASSIGNEE, v8. N. GRAY ET AL.

debtedness. Indecd, at this time nobody about Cambridge
doubted the ability of Nathan Gray to pay all the firm debts,
of which he had any knowledge, out of his individual means,
even if the firm should prove insolvent. Mr. Grimes, who
knows so much about other people’s affairs, when asked on
cross-examination, whether either of the officers of the bank,
at any time, expressed to him any doubt in regard to the
integrity or financial ability of Nathan Gray, replies: “Not
prior to the taking of the mortgage. No doubts of N. Gray
individually was expressed to me ever. I do not remember
of ever talking of Nathan Gray individually. It was all
pertaining to the firm.”

Great pains have been taken to bring home to these bank-
ers a knowledge that N. Gray & Son were in failing cireum-
stances, before and at the time the mortgage was given; or
that they had such information as ought to have put them
upon inquiry. Such knowledge is attempted to be traced
through the Rev. Mr. Petty, one of the directors of the
bank. The plain truth as to this will show that any infor-
mation gained through Mr. Petty could, by no possibility,
have had any influence in making the mortgage.

Without any intimation that Nathan Gray was coming
to town on the 19th, Mr. Petty, after an early dinner, on
the 18th of October, 1872, set out on a ministerial tour,
and lodged the first night with Mr. Vickers, near Smyrna.
Before he left home, he put in his pocket a list of the
names of Gray’s sureties, to inquire what sort of backing
they had. He showed the list to Vickers and asked his
opinion of them. He said the sureties were all good, but
spoke of Marion as a reckless young man, and said it was
only a question of time when the firm would fail; but
thought the bank would get its money, and much to the
same purpose.

After early breakfast on the morning of the 19th, Mr.
D. A. HOLLINGSWORTH, ASSIGNEE, vs. N.GRAY ETAL. 471

Petty set out for Dickerson’s Church, three miles and a half
from Cadiz, and held his quarterly meeting on the 19th and
' 20th, and lodged with Mr. Kinsey on the night of the 20th.
Mr. Kinsey corroborated all that Vickers had said about
Marion O. Gray, and added that he thought the bankers at
Cambridge should secure themselves as soon as possible.

On the morning of the 21st, Mr. Petty started for home,
a distance of forty-two miles, and reached Cambridge late in
the day. Here the bank learned from Mr. Petty that the
firm of N. Gray & Son was of doubtful solvency; and Mr.
Petty learned from the bank: that two days before, Nathan
Gray had been to Cambridge and secured the bank debt by
a mortgage on his farm.

What influence the information and advice gained from
Vickers and Kinsey would have had on the action of the
bank, if it had been received in time, or how far it might
be regarded in the light of reasonable cause to believe that
Nathan Gray meditated a fraud upon the bankrupt act, is
more than I know. For the purposes of this case, it is
sufficient to know that it did not reach the officers of the
bank till two days after the deed was done—done, too, with-
out the slightest communication between Mr. Petty and the
bank.

But the mistake of Mr. Kinsey is entitled to a fair ex-
planation. Mr. Kinsey is recording steward of the quar-
terly conference over which Mr. Petty ordinarily presides.
By his minutes of the quarterly conference in Cadiz, he
fixes the time at which the presiding elder lodged with him,
and at which he warned him of the danger of trusting the
firm of N, Gray & Son. The testimony of Mr. Edgell, an-
other minister, shows that Mr. Petty did not preside at the
quarterly conference held in Cadiz on the 6th, and that the
Rev. H. B. Edwards did; and the testimony of Mr. Petty
shows that he was holding a quarterly meeting in Mt. Pleas-
472 D.A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

ant, Jefferson county, at the date fixed on by Mr. Kinsey ;
and that the date of his visit to Mr. Kinsey is the date of
the quarterly meeting at Dickerson’s Church, the 19th and
20th, or rather the evening the 20th of October, 1872.

In those days, perhaps the 18th or 19th, Marion O. Gray
fled from the county; and, like the scape-goat of the Jew-
ish religion, no doubt carried. away on his devoted head the
sins of a great many other people in and about Smyrna. As
usual in such cases, undue pains have been taken to magnify
his crimes. Poor devil! like Cain, he is now a fugitive and
vagabond on the earth; and, like Cain, he might well say,
“My punishment is greater than I am able to bear.” Before
he went, the lying gossips had started the story that he had
forged the name of Mr. Phipps, and a little tempest was
raised about it. The story proved utterly false; but for-
gery on the brain broke out as a sort of epidemic when he
ran away. A Mr. Williams came to Cambridge to inquire
whether his name had been forged, and, I believe, denied
the genuineness of his signature to one of the notes; but for
reasons best known to the plaintiff, his deposition was not
taken, and we have no proof as to this forgery pro or con.
Nathan says that about a year before this time, Marion made
an improper use of his name and that of his grandfather, in
borrowing $1,000 from Mr. Moore. I am not satisfied that
this. was a forgery, if the money was borrowed for the busi-
ness of the firm. George Gray was not only the grandfather
of Marion, but the grandfather of the establishment. When
the house of N. Gray & Son was established at Smyrna, with
this boy for its managing partner, George Gray furnished
$2,800, Nathan Gray $500, and Marion O. Gray nothing.
George Gray was worth about $16,000, Nathan Gray about
$8,000, and Marion O. Gray nothing. George Gray had out-
lived his wife and all his children except Nathan, and about

this time had come to reside with him, not to be burden-
‘D, A. HOLLINGSWORTH, ASSIGNEE, 08s. N.GRAY ETAL. 473

some, I fancy, but to be useful, for he had abundant means,
and was able to advance by way of loan to the firm addi-
tional sums—how much, Nathan does not say—so that, like
the rest of the Gray family, directly or indirectly, his means
went into this store, and his living came out of it. Besides,
George Gray, about the time Nathan made the assignment,
at the instance ‘of the plaintiff, who holds the harmonious
relations of legal adviser to George Gray, solicitor to the
Harrison National Bank, and assignee of Nathan Gray, paid
or secured to the Harrison National Bank $600 of the in-
debtedness of the firm.

It is highly probable that the firm commenced in the
name of N. Gray & Son, with the understanding that
George Gray’s name was not to be used, and that the pub-
lic were not to know him as a partner; and with this un-
derstanding Nathan says the son made an improper use of
his name. But Marion may have thought differently, and
without a fuller investigation of the relations of George
Gray to this firm, IT shall not believe that Marion know-
ingly committed a forgery of his grandfather’s name. How-
beit, not desiring to set the firm of Reed, Jones & Co. on
this old man’s track, I am willing to consider the $2,800
originally invested, with all subsequent loans and _ invest-
ments, including the $600 secured to the Harrison National
Bank, in the light of advances to his son and grandson, for
which N. Gray & Son never paid one cent of interest in
money, and never expected to pay one dime of principal in
anything but natural love and affection.

Another attempt is made to bring guilty knowledge home
to the president, cashier, teller, and directors of the bank by
the testimony of Mr. Grimes, formerly a customer and ten-
ant of the bank. This testimony consists of bygone conver-
sations which the witness professes to remember and relate,

and belongs to a class of evidence which Starkie, Greenleaf,
474 D,. A. HOLLINGSWORTH, ASSIGNEE, vs, N. GRAY ET AL.

and other writers on the law of evidence, consider unreliable,
and to be received with caution and distrust.

J. W. Grimes testifies to certain conversations with the
teller, A. A. Taylor, and other officers of the bank, tending
to show that these men knew, or had reason to know, that
N. Gray & Son were about to fail, and the conflict between
his testimony and that of these gentlemen is so great as to
call for the exercise both of logic and charity, before we can
either reconcile or believe. In order to this, let me sketch
a subordinate group in the panorama, consisting of three
characters—Taylor & Lenfesty, J. W. Grimes, and M. O.
Gray. Taylor & Lenfesty own a fine new store-house, un-
der the same roof, and adjoining the bank, occupied at pres-
ent by Mr. Grimes. M. O. Gray is worn out with the ca-
lamities of the war in Smyrna, and wants to move his store
to Cambridge, and to that end takes a lease on Taylor &
Lenfesty’s store-house, subject to the rights of Mr. Grimes.
Mr. Grimes is played out in Cambridge, and wants to sell
the remnants of his old store, with lamps, show-cases, stools,
and the like, and to that end makes a contract with M. O.
Gray. Now it has cost me some doubt whether M. O. Gray
really meant to come to Cambridge or go to ruin. I am
willing, however, to suppose that he did think that in a new
place, under the wing of the bank, he might yet succeed in
business; but finding his father resolute in his determination
to wind up the concern, he took the other alternative. It is
enough to know that he made both Taylor & Lenfesty and J.
W. Grimes believe he was coming to Cambridge. And they
were both desirous he should come, because, if he came,
Taylor & Lenfesty would have a good tenant; and if he
became the tenant of Taylor & Lenfesty, Mr. Grimes could
compel him to purchase his old stock and traps, or keep
him out of the store-house. Now, judging the conduct of
these men by the known laws of human action, is it possible
D. A. HOLLINGSWORTH, ASSIGNEE, 08. N.GRAY ETAL. 475

that Taylor, the president, and Lenfesty, a director of this
bank, should desire to have for a tenant, under the same
roof with the bank, a bankrupt merchant and _ notorious
forger? And yet we know that they only relinquished the
idea of having N. Gray & Son for their tenant, after the
father had disclosed to J. D. Taylor his determination to
close up the concern, and his belief that his son was out of
his right mind. Nor is it possible to believe that Mr.
Grimes, whose success in selling out turned on the question
whether N. Gray & Son took the house or not, would have
busied himself telling the officers of the bank stories which
would tend directly to defeat his own object.

To prove that Mr. Grimes lacked confidence in the solv-
ency or integrity of this firm, the point is often made in the
examination of Grimes and others that he demanded security
for the price of his old store, and that Marion could not or
would not give it, and that this led to a new contract by
which Marion agreed to pay him $300 for his traps, and he
to keep the goods. Mr. Grimes explained this thing too
often before Marion ran away to admit of a new explanation
afterward. He assigned two substantial reasons for this con-
dition: First, that he wanted paper that could be discounted
in bank; and second, he doubted whether articles of copart-
nership, between father and son, to carry on business in
Smyrna, would authorize the son to purchase an old store
and carry on business in Cambridge, and therefore he wanted
the sign-manual of Nathan Gray to the paper. Now, since
Marion has run away without paying him $300 for his old
lamp, show-case, and stools, or $100 of a bonus, and he has
had a quarrel with the bank, his memory, at least as to dates,
is bad, as I shall show.

Mr. Grimes admits that down to the first day of October,
1872, he had never heard anything derogatory to the solv-
ency or integrity of N. Gray & Son. He then fixes on a
476 D, A. HOLLINGSWORTH, ASSIGNEE, v8. N. GRAY ET AL.

period of fifteen days, from the first of October down to the
fifteenth, being the day on which the delinquent note ma-
tured; and fills this period with a conglomerate of truth and
error, facts and fictions, comparable to his own graphic de-
scription of Marion Gray’s store in Smyrna, in which boots
and shoes, and groceries and dry goods, and hardware and
produce, were piled in disorder from cellar to garret. In-
deed, a stranger to the facts of the casé, and the character
of the men, might well suppose from his story that the pres-
ident, cashier, and directors of this bank, with J. W. Grimes
in the chair, had held a protracted meeting of fifteen days,
in which nothing else was discussed but the insolvency of
N. Gray & Son and the villainy of Marion O. Gray.

But let me read the whole story from top to bottom:
“JT talked with the officers of the bank; I talked with the
president, cashier, and teller; also with Mr. Lenfesty, one
of the directors, about the first of October; they all thought
there must be something wrong. Between the first and
fifteenth, the cashier and the teller told me that N. Gray &
Son had paper due in bank, and N. Gray & Son did not
seem to want to fix it in any way, but M. O. Gray for the
firm was still after more money, and wanted other notes
discounted. They also told me they thought he had suffi-
cient, and they would like to have back what they had
loaned him; they thought his actions very strange. He set
a time to be up at several times to pay notes and failed to
come to time, or when he did come, did nothing toward
liquidating the debts. I told them I did not think they
owed very much in the Cadiz banks, and from some cause
their credit had become very limited in Cadiz; or my
friends had sent Mr. Hollingsworth to advise me not to
sell to N. Gray & Son, without they would give me ap-
proved security. They said that they had, as far as they
could learn, no doubt but that Mr. Gray’s securities on
D. A. HOLLINGSWORTH, ASSIGNEE, v8.N. GRAY ETAL. 477

notes were perfectly good, but did not like Mr. M. O.
Gray’s actions by any means. Mr. M. O. Gray left Cam-
bridge on the 15th of October, 1872, promising to be back
the next day, but failed to come. The bank officers and
myself were very anxious to see him, as they thought he
had skipped out. The teller told me that he had no idea
of seeing Mr. M. O. Gray soon—that the firm was fizzling ;
and about two days after M. O. Gray left, Nathan Gray
came to Cambridge. One of the bank officers, I don’t re-
member which, I think it was the teller, told me that Mr.
Gray was in the bank, and that I had better go in and see
him. I went in and we went back into the directors’
room. While there the president of the bank and Mr.
Lenfesty, a director, came in. Mr. Lenfesty insisted on N.
Gray still letting his son go into business in Cambridge.
The president of the bank spoke up and told Mr. Lenfesty
that he had had a conversation with Mr. N. Gray, and
from what N. Gray had told him, he would not think of
allowing M. O. Gray to go into business, and that N. Gray
was perfectly right in not wishing him to. That same
evening or the next day, Mr. Anderson, Col. Taylor’s part-
ner, told me that they had taken a mortgage on N. Gray’s
farm to secure notes in bank, as N. Gray denied any
knowledge of said notes. Mr. Anderson told me that they
(the bank officers, I suppose) had found out that the notes
were forged, and that they then took a mortgage to secure
them. JI asked the teller of the bank, and stated to him
that I understood the notes had been forged and they had
taken the mortgage to secure them. He told me that that
was correct, and that the young man would probably land in
the penitentiary.”

Let us examine this story from bottom to top. First,
Mr. Grimes learned from the teller that the bank officers
had found out that the notes were forged, and that they
478 D. A, HOLLINGSWORTH, ASSIGNEE, v8, N. GRAY ET AL.

then took a mortgage to secure them. Now, that they
took a mortgage to secure the notes is true, and nobody
denies it. That they heard that one at least of the notes
was forged is true, and nobody denies it. That these two
facts were communicated to Mr. Grimes by the teller is
true, and nobody denies it. Now, let us have the teller’s
account of it. “Some days after N. Gray had been here
and gone home, there was a man by the name of Williams,
from over near Smyrna, came here to learn if his name was
on any of Gray’s paper. After finding that it was, he said
it was forged. I told Grimes of that circumstance. That
was the only conversation I had in reference to that.” Be-
fore the date of the mortgage, forgery of notes had never
been thought of seriously by anybody. After the flight of
Marion and the assignment by Nathan, it was that every
rumor true and false took wing, without danger of contra-
diction, and then it was that Mr. Williams came to town
to deny his signature: and this is the circumstance to which
both Mr. Anderson and the teller refer. The difference is
that Mr. Grimes puts the cart before the horse, and the teller
puts the horse before the cart. Whether in law, logic, or
morals, there is a mighty difference between finding out that
a note is forged, and taking a mortgage to secure it; and
taking a mortgage to secure a note, and afterward hearing
that it is forged.

Again, Mr. Grimes says that between the 1st and 15th
the cashier and teller told him that N. Gray & Son had
paper due in bank, and did not seem to want to fix it in
any way, but were still after more money, and wanted other
notes discounted. They also told him they thought he had
sufficient, and they would like to have back what they had
loaned him. They thought his actions very strange. He
set a day to be up, at several times, to pav notes, and failed
to come to time, or when he did come, did nothing toward
D. A. HOLLINGSWORTH, ASSIGNEE, US. N.GRAY ETAL. 479

liquidating the debts. Now, here is another conglomera-
tion of truth and error, owing its falsehood in part to bad
chronology. As it respects the note falling due on the 15th
and secured by mortgage on the 19th, Marion O. Gray did
not come to time. How often he fixed days, and failed to
come to time, between the 15th and 19th, I do not know or
care. This is the only instance of the sort in all his deal-
ings with the bank, and could not have been a subject of
complaint between the Ist and the 15th. As to his reputa-
tion on the Ist, it is sufficient to know that on the 3d and
4th his paper was discounted to the extent of $1,500; and
all the board present on the occasion testify that the reason
they limited the second day’s discount to $500, was, that
they desired to change their policy so as to enable them to
give larger accommodations to customers nearer home. That
part of the story about Nathan Gray & Son already having
a sufficiency, is partly true, but requires the teller’s version
to make either sense or truth out of it. Here it is: “J. W.
Grimes called me into his store—I think it was one even-
ing—and read an article of agreement to me that he had
written for N. Gray & Son to sign, and said he was going
to send it to them. In that article he was requiring them
to give security ; he also gave a reason why he was requiring
them to give security. He said he wanted such paper as he
could get cashed in the Guernsey National Bank. I think
I remarked to him, that they had already about as much
money borrowed as the law would authorize the bank to
loan to one individual or party. I did not remember the
exact limit; there is a limit, I believe.”

* But again, Mr. Grimes’ says that on the 19th he was in
the directors’ room, in the bank, with the president, Mr.
Lenfesty, and Mr. Gray, and says: “Mr. Lenfesty insisted
on N. Gray still letting his son go into business in Cam-
bridge. aoe Pate of the bank spoke up and told Mr.
480 D, A, HOLLINGSWORTH, ASSIGNEE, US. N. GRAY ET AL.

Lenfesty that he had had a conversation with Mr. N. Gray ;
and from what N. Gray had told him, he would not think
of allowing M. O. Gray to go into business,” etc. This
part of the story is literally true, but fatal to the entire
scope of Mr. Grimes’ testimony. If Mr. Lenfesty, on the
day the mortgage was given, knew Marion O. Gray to be a
bankrupt, a fool, and a forger, how could he insist on his
father allowing him to open up business in a store-room,
part and parcel of the banking house, and the property of
Taylor & Lenfesty? Taylor had just heard the fathers’s
story about the son’s recklessness, crazincs-, and the bad
odor he was in at Smyrna, and whatever his opinion of his
honesty might be, he did not want him for a tenant, and
thought the father was in the right.

As to the general scope and purpose of Grimes’ testi-
mony, he has a right to meet his adversaries face to face,
and so he shall. He would have us believe that from the
1st day of October, 1872, J. D. Taylor, president; W. A.
Laurence, cashier; A. A. Taylor, teller; and W. K. Gooderl,
W.H. F. Lenfesty, and A. L. Petty, directors of the bank,
all knew that the firm of Nathan Gray & Son was insolvent.

J. D. Taylor, the president, says: “Up to the time when
I heard of the assignment of N. Gray & Son, which was a
few days after the mortgage was given, I considered the firm
perfectly good. If I had thought otherwise, our court hav-
ing been in session from the 15th of October, 1872, in this
place, I should certainly have taken some steps toward the
collection of some of our notes.”

W. A. Laurence, cashier, says: “I had my own personal
knowledge, the statement of his neighbors, and his own state-
ments made at that time. From these sources of informa-
tion I considered him solvent.”

A. A. Taylor, teller, says: “Up to and incinding that
day (the 19th), I considered them perfectly good. My un-
D. A. HOLLINGSWORTH, ASSIGNEE, 8s. N.GRAY ETAL. 481

derstanding was from all the sources of information we had.
I considered N. Gray himself as the moneyed man of the
firm, but considered the firm as perfectly good, as he was a
member of the firm.”

W. K. Gooderl, director, says: “I had very little infor-
mation in reference to the firm of N. Gray & Son up to the
3d or 4th of October, 1872. Up to this date I supposed the
firm to be entirely responsible, and did not know of any-
thing to the contrary prior to the date of the assignment.
My recollection is that the assignment was made shortly
after the mortgage was given.”

W.H. F. Lenfesty, director, says: “I heard of nothing to
make me lose faith in their financial standing, and always
considered the firm good from representations that had been
made to me.”

A. L. Petty, director, says: “I had no good reason to be-
lieve that he (N. Gray) was unsound up to the evening of
the 18th of October, 1872. Prior to that I regarded him
‘financially as all right.”

It is more than probable that from the time “Mr. Grimes
visited Smyrna and saw the manner in which business was
done, he formed the same opinion Mr. Kinsey did, and
looked forward to the failure of N. Gray & Son as a matter
of time merely. But his rusty remnants, his old lamp, show-
case, counter-stools, and lease on Taylor & Lenfesty’s store-
rooms were all to be sold to N. Gray & Son and paid for in
bankable paper; and until all this was accomplished, he was
willing to contribute more gas to keep Marion O. Gray’s
balloon afloat than any other man in the country ; but when
the balloon collapsed before his object was accomplished, he
fell upon the very common idea of vain gossips, that he had
foretold the event. To ridicule such ea post facto scers, some
rude moralist invented the fable of the old woman who fore-
told her husband the cow would eat the grindstone.
482 D. A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

Besides, Mr. Grimes is a jolly, social fellow, who, while
he resided in Cambridge, spent a large part of his time in
the drinking-saloons, listening to the gossip of the town,
himself perhaps the chiefest gossip. After his quarrel with
the bank, idle fellows, who wanted to drink at his expense,
would tell him what they: had -heard, and sometimes more
than they had heard, about the bad doings of the bank, and
he would believe their stories all the more readily because
they were just what he wanted to hear. By a mutual inter-
change of stories between such people over the social glass,
their minds become en rapport, and he must have a remarka-
ble memory who is able to distinguish his own stories from
those of “his ancient, trusty, drouthy crony.”

There is yet another witness, one of the petitioning cred-
itors—Henry Miller—whose testimony consists wholly of his
recollections of conversations with J. D. Taylor and Nathan
Gray; but before examining this, as a sequel to Grimes and
a preface to Miller, I propose to read a section from Green-
leaf on Evidence:

“ With respect to all verbal admissions, it may be observed
that they ought to be received with great caution. The evi-
dence, consisting as it does in the repetition of oral state-
ments, is subject to much imperfection and mistake; the
party himself either being misinformed, or not having clearly
expressed his own meaning, or the witness having misunder-
stood him. It frequently happens, also, that the witness, by
unintentionally altering a few of the expressions really used,
gives an effect to the statement completely at variance with
what the party actually did say. But where the admission
is deliberately made and precisely identified, the evidence it
affords is often of the most satisfactory nature. (In a some-
what extended experience of jury trials, we have been com-
pelled to the conclusion that the most unreliable of all evi-
dence is that of the oral admissions of the party, and especially
D. A. HOLLINGSWORTH, ASSIGNEE, U8. N.GRAY ETAL. 483

where they purport to have been made during the pendency
of the action, or after the parties were in a state of contro-
versy. It is not uncommon for different witnesses of the same
conversation to give precisely opposite accounts of it; and in
some instances it will appear that the witness deposes to the
statements of one party as coming from the other, and it is
not very uncommon to find witnesses of the best intentions
repeating the declarations of the party in his own favor as
the fullest admissions of the utter falsity of his claim. When
we reflect upon the inaccuracy of many witnesses in their
original comprehension of a conversation; their extreme lia-
bility to mingle subsequent facts and occurrences with the
original transactions, and the impossibility of recollecting
the precise terms used by the party or of translating them
by exact equivalents, we must conclude there is no substan-
tial reliance upon this class of testimony. The fact, too,
that in the final trial of open questions of fact, both sides
are largely supported by evidence of this character, in the
majority of instances, must lead all cautious triers of fact
greatly to distrust its reliability.)” (Sec. 200, p. 29, Red-
field’s 12th ed. of Greenleaf on Evidence, and cases therein
cited.)

It may be remarked first of all, that in every material
statement of Mr. Miller in regard to the admissions of J.
D. Taylor, he is flatly contradicted by Mr. Taylor, and there
is no way of reconciling their statements, or of accounting
for the difference, unless it is to suppose either that Mr.
Miller did not hear distinctly what Mr. Taylor said, or for-
got what he heard before his testimony was taken. Mr.
Taylor testifies to facts established by the corroborating tes-
timony of several other witnesses. Mr. Miller testifies to
admissions of Mr. Taylor inconsistent both with his own tes-
timony and that of the corroborating witnesses.

There is one thing in which there is no disagreement
484 D,.A. HOLLINGSWORTH, ASSIGNEE, vs, N. GRAY ET AL.

between them. Mr. Miller has been afflicted for more than
a quarter of a century with incurable deafness. He says
himself as to the cause of his deafness: ‘I have never been
able to ascertain that to my satisfaction. Probably catarrh
was the cause.” And as to the duration of the infirmity, he
says: “It is a growth of twenty-five or more years.”

J. D. Taylor, speaking of the same matter, says: “ Mr.
Miller was a stranger to me, and was quite hard of hear-
ing—could not hear ordinary conversation—and would hold
his hand behind his ear and ask me to speak louder, from
time to time, as we were talking. When his deposition
was taken in this case, at Columbus, I noticed that he did
not hear the questions the first time they were asked, but
after they were asked and written down, the notary would
read them to Mr. Miller in a loud tone of voice, and the
latter would draw up close to the notary and hold his hand
behind his ear, in order to hear the questions; and I also
noticed then that he could not hear our conversation, though
we talked considerably during the day we were taking his
deposition, and sometimes talked about Mr. Miller. I found
then that he was much harder of hearing than I supposed
he was when I had met him before that.”

Far be it from me to mock the infirmities of any man;
but when they stand in the way of truth, it is the privilege
of logic to thrust them aside. The truth is not to be sacri-
ficed because one man is blind and another deaf. When a
blind man swears to what he saw, or a deaf man to what
he heard, I want to inquire a little further. Nothing is so
deceptive as partial deafness. All the gentler tones and
flexions of voice which distinguish one word from another
are lost. None but the sharp and boisterous notes of the
speaker are heard, and the wide ellipses are filled out by
the hearer, according to his own judgment or fancy, and

the meaning often eked out by what is uppermost in his
D. A. HOLLINGSWORTH, ASSIGNEE, vs.N.GRAY ETAL, 485

own mind. Add these considerations to the caution of Prof.
Greenleaf, and the testimony of Mr. Miller is hardly worth
considering.

But let us try the most important point in his testimony
by the test of probabilities. He says: “I asked him (Mr.
Taylor) if he did not know that Nathan Gray was not able
to pay his debts and the firm of N. Gray & Son’s at the time
the mortgage was taken. He answered that he knew, by
report, that the firm was not able to pay its debts, and that
the son had absconded; that he did not deem it to be ma~-
terial to his interest to know whether Nathan Gray could pay
his debts or not, his object being to secure the debt coming
to the bank.”

J. D. Taylor, at this time, was a man of forty-two years—
nearly twenty years a practicing lawyer—considered by the
stockholders of the Guernsey National Bank sufficiently sa-
gacious and respectable to be the president of a bank. Is it
at all probable that such a man would tell a deliberate false-
hood, to the manifest injury both of himself and his constit-
uents? He may have told Mr. Miller, and probably did tell
him, that he now knew, from report, that Nathan Gray was
not able to pay the debts of the firm, and that the son had
absconded ; but he could not have said that he knew it be-
fore the mortgage was given, without manifest falsehood and
folly.

I give this as a single sample of the conflict between Mil-
ler and Taylor, leaving the rest to the scrutiny of the Court,
and pass to another sample of the same witness’ testimony,
in which he does Nathan Gray the same injustice.

In speaking of his conversation with Nathan Gray, he says:
“T asked him if he did not know himself to be unable to pay
his debts when he gave the mortgage. He answered that he
scarcely knew anything, but that if he had to pay the papers,
486 D. A. HOLLINGSWORTH, ASSIGNEE, Us. N. GRAY ET AL.

forged and genuine, he knew he could not pay out, and had
been advised to make an assignment.”

This is another of Mr. Miller’s anachronisms, by mistake
or otherwise saddled on Nathan Gray. But no one who has
read Gray’s own deposition will ever believe that he inten-
tionally gave such an answer to such a question, vr that he
made any such admission with reference to the date of the
mortgage. On that day, all the debts of the firm, includ-
ing the bank debt of $4,000, which he could then recollect,
amounted to $6,000. If any of the notes in bank were forged,
they were included in this estimate; so that $6,000 comprised
all the papers, forged and genuine, present to his mind at
that time. To pay these debts, he had the store and book-
accounts at Smyrna, out of which his assignees, after all the
depreciation, waste, and expenses incident to breaking up a
store and selling out at auction, are realizing $8,000 or $9,000,
without touching his farm.

If Nathan Gray ever made the speech out of which Henry
Miller’s story was translated, it was made in reference to the
debts, forged and genuine, including that of Reed, Jones &
Co., which had come to his knowledge after he made the
mortgage and went home. In his letter of November Ist,
having been driven to an assignment by a creditor of the
name of Johnson, he writes thus: “ After I came home, I
found things different to what I expected, although they
seemed pretty bad when I was out there, and I thought the
best I could do was to make an assignment of the firm, and
I did so, and I hope things will work out right.”

Though driven to this assignment, he still hoped things
would work out right. On the 19th of October he was con-
fident he could pay all his debts. On the Ist of November
he still hoped things would work out right. On the second
Tuesday of November, when Mr. Miller visited him, he was
in despair. He was sorry then that he had made the mort-
D. A. HOLLINGSWORTH, ASSIGNEE, v8. N.GRAY ETAL, 487

gage. Why? Because, when he made it, he honestly be-
lieved he could pay all the debts of the firm from the assets
of the firm, and save his farm. Now he had found out that
all would have to go, and he regrets that all had not been
divided equally.

Having disposed of Mr. Miller by samples illustrative of
the whole, I take leave of him, and come to the important
inquirics in the case:

First. Did Nathan Gray, on the 19th day of October,
1872, mortgage his farm to the Guernsey National Bank of
Cambridge, with intent to delay, defraud, or hinder his ered-
itors?

The intent of Nathan Gray can best be come at by con-
sidering the circumstances in which he was placed, and the
degree of knowledge he possessed at the time. He knew
there was a stock of goods on hand, estimated by a mer-
chant at from $10,000 to $11,000, and that there were out-
standing book-accounts estimated at from $6,000 to $8,000.
He knew of but $6,000 indebtedness of the firm, including
the $4,000 due and becoming due to the bank. He could
not but have believed that the assets of the firm would fully
pay all the debts of the firm. He did not, by the mortgage,
put any property out of the reach of attachments or execu-
tions, which the creditors of the firm had a right to take in
the first instance, and, by giving the mortgage, he lifted
from the assets of the firm $4,000 of the burden, and took
it upon himsclf. Every hour he could purchase from the
bank was for the benefit of the other creditors. It would
require but a short time to convert cnough of the assets to
pay all the other creditors, and then he could turn on the
bank debt, and wipe that out too. This, and this alone,
was the honest purpose of his mind when he made the
mortgage.

It may be said that the assets were not sufficient to pay
488 D. A. HOLLINGSWORTH, ASSIGNEE, Us. N. GRAY ET AL.

the debts of the firm. That is probably true; but did
Nathan Gray know they were not sufficient at the time he
made the mortgage? The debts were far greater and more
numerous than he anticipated. The assets may have fallen
short of his expectations; but we are considering a question
of intent; of the purpose of mind as it existed in the brain
of Nathan Gray when he made the mortgage. To illus-
trate: A merchant in Cincinnati owes $75,000, and has in
California $100,000 in gold, wherewith he expects to pay
his debts. This gold he expects in a few days, having sent
‘his son, a trusty young man to bring it. Meanwhile, one
of his creditors takes a fancy to his homestead, and he sells
it to him in good faith, in payment of his claim, and on the
10th day of October makes him a deed of conveyance. In
three days after, the news arrives that on the 5th of October
his son was murdered, and all the gold stolen; or, that on
the 5th of October his son had embezzled all the gold and
followed Marion O. Gray to parts unknown. He was a
ruined, insolvent man five days before the deed of convey-
ance was made; but will anybody tell me that this conyey-
ance was made with intent to delay, defraud, or hinder credit-
ors? or, that this conveyance was an act of bankruptey?
Second. Did Nathan Gray, on the 19th day of October,
1872, being insolvent, mortgage his farm with intent to give
a preference to the Guernsey National Bank of Cambridge,
or to defeat or delay the operation of the bankrupt act?
This again turns on the question of inlention, Was a
bad purpose present to the mind of Nathan Gray when he
made the mortgage? It may be admitted that Nathan Gray
was insolvent at this time. His estate was not sufficient to
pay his debts; or, rather, both his private estate and the as-
sets of his firm put together, were not sufficient to pay the
debts of the firm. But does it necessarily follow that he
made the mortgage with intent to give a preference to the
D. A. HOLLINGSWORTH, ASSIGNER, v8. N.GRAY ETAL. 489

bank? So far from it, at the time he made the mortgage he
fully believed that, from the assets of the firm, he could pay
all the debts of the firm, without touching the mortgaged
estate. His confident expectation was, to pay all the other
creditors one hundred cents on the dollar, and to pay the
bank no more than one hundred cents on the dollar. How
could this be called an intent to give the bank a preference?
Nor is it possible to suppose he did it with intent to defeat
or delay the operation of the bankrupt act. The idea of
bankruptcy was not in all his thoughts at the time. He did
not know or believe himself to be in any danger of bank-
ruptey. The bankrupt act was going about like a roaring
lion, seeking whom it might devour, and had its attendant
jackalls to smell out the prey and pick the bones; but
Nathan Gray had no fear of either. He knew himself to be
an honest man, and believed himself to be a solvent man,
and why should he seek to defeat or delay the operations of
the bankrupt act? That which he sought was time and op-
portunity to pay all the creditors he had every dime he owed
them. He was under a mistake as to the extent of his in-
debtedness, and as to the sufficiency of his means to pay, but
this implies no dishonest infent.

Nathan Gray is not the first honest man who has been
insolvent for months, perhaps for years, without knowing it.
Hundreds of good merchants, who, in the strength and vigor
of manhood, amassed fortunes, as they grow old, out of a
desire to advance sons, nephews, or favorite clerks, dcliver
over store-house, goods, good-will, and everything to the
management of younger men as junior partners, and retire
to the quiet of country-seats. These good easy old men do
not attend the play-house, the race-course, or the trotting-
park, to see with what giddy speed fast young men, fast
young women, and fast young horses are carrying thcir es-
tates to ruin. One of these old men owes a merchant a debt
490 D. A. HOLLINGSWORTH, ASSIGNEE, ts, N. GRAY ET AL.

of $5,000, which he wants to pay. The creditor wants a
piece of land from him for a building-site, and the old gen-
tleman slices off five acres, and sells it to him for $1,000 the
acre, and makes him a deed of general warranty. Within a
week he discovers that the fast young men are hawking the
paper of his firm about the streets at 25 per cent discount,
and, on investigation, finds that he is, and for a long while
has been, insolvent. Will anybody tell me that this convey-
ance was made with intent to give one creditor a preference
over others? or that this is an act of bankruptcy ?

To what purpose did Congress use this word INTENT?
Why, simply this: that a clear and well-defined distinc-
tion might be drawn between an honest man and a rogue.
The man who, in the first instance, conveys with intent to
delay, defraud, or hinder his creditors, is a rogue, and de-
serves to be driven into bankruptcy. The man who, in the
second instance, conveys with intent to give one of his cred-
itors a preference over others, is a rogue, and deserves to be
driven into bankruptcy. But the man who acts without such
roguish intent, is no bankrupt, and you cannot lawfully drive
him into bankruptcy. This word intent, like the statue of
Terminus, stands forever on the line between honesty and
dishonesty. The man who stands on the side of dishonesty,
must take his chances for bankruptcy, plunder, ruin, dis-
grace ; but the man who stands on the side of honesty, is
secure, “ana the gates of hell shall not prevail against him.”
-On the 80th page of Bump, he tells us that a fraud upon
the bankrupt act means a conveyance or payment contrary
to its provisions. And then he adds: “ Of course, every
man must be presumed to intend the necessary consequences
of his own acts.” This old saw belongs to the law of homi-
cide, as when an assassin discharges a pistol against a man’s
breast, or cleaves his head open with an axe, the necessary
consequences being to kill, “Every such man must be pre-
D. A. HOLLINGSWORTH, ASSIGNEE, vs. N.GRAY ETAT. 491

sumed to intend the necessary consequences of his own acts.”
Here, there is no other assignable motive. But in the case
of Nathan Gray, there was another and a far different mo-
tive from a fraud on the bankrupt act. But let us read Mr.
Bump through: “Of course, every man must be presumed
to intend the necessary consequences of his own acts, and
when there has been a preference in fact given by a debtor,
at a time when he was actually insolvent, and did not hon-
estly believe that he could continue in business, the law con-
clusively presumes that a preference was intended.” This
takes the proper distinction; faintly, to be sure—-but still,
here it is: “ Actually insolvent, and does not honestly believe
‘that he can continue in business.” But Nathan Gray did
honestly believe that he could continue in business long enough
to convert the assets, and pay the debts of the firm, dollar
for.dollar and cent for cent; and he continued in this belief
until the Monday following, when his mind was overwhelmed
with the accounts of the multiplied debts, frauds, forgeries,
and flight of his son.

The concurrence of two events—the sinking of a ship and
the collapse of an underwriter—may reduce a rich man to
poverty in aday. His good ship Argus, laden with the silks
of India, and fully insured, may weigh anchor at Calcutta on
the Ist day of April, and on the 5th be sunk by a storm in
the Bay of Bengal, and on the same day the underwriters go
down also. On the 10th he learns that the underwriters
have failed, and on the 20th that the ship and cargo are
lost; and now for the first time he knows himself to be in-
solvent. He had been proprietor of a few outlying lots in
Cincinnati; and between the 5th and the 10th he had a sale
and conveyed one lot to A, another to B, and another to C.
All these conveyances were made in good faith, and in dis-
charge of bona fide debts, without the slightest knowledge
that the ship had sunk or the underwriters failed. A neces-
492. D. A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

sary conscqucnee of all three of thcse conveyances was to
give A, B, and C a preference over other creditors. A, B,
and C are all paid, and there is nothing left for the other
creditors. Now, in such a case, what becomes of the old saw,
that every man is presumed to intend the necessary conse-
quences of his own act?

A man who, knowing himself to be insolvent, gives a
preference to one creditor over the others, of course intends
to give the preference, and is chargeable with the necessary
consequences of his act. Not so with the man who be-
lieves himself to be solvent, and expects to pay all his
creditors. The distinction between the honest intent and
the roguish intent is very well drawn on the 473d and 474th
pages of Bump: “ Although insolvency in fact exists, yet if
the debtor honestly believes he shall be able to go on in his
business, and with such a belief pays a just debt without a
design to give a preference, such payment is not fraudulent,
though bankruptcy should afterward ensue. And, on the
other hand, if the debtor being insolvent, and knowing his
situation, and expecting to stop payment, shall then stop
payment, or give security to a creditor for a just debt with
a view to give him a preference over the general creditors,
such payment or giving security is fraudulent as against
the creditors, and property that ix transferred in making
such payment or giving the security may be recovered by his
assignee. It rests upon the intent with which the act was
done, and the intent is to be proved as a fact, cither by di-
reet evidence, or as the necessary and certain consequences
of other facts clearly proved.” (Gregg’s case, 4 Bankrupt
Register, 150. Morgan, Root & Co. rs, Mastick, 2 Bank-
rupt Register, 163; Doan vs. Compton & Doan, 2 Bankrupt
Register, 182.)

Here let me close this branch of the argument by reading
D. A. HOLLINGSWORTH, ASSIGNEE, Us. N.GRAY ETAL. 493

a few short passages from page 522 of Bump in regard to
preferences :

“The preference must be an advantage actually given by
the debtor to one or more of his creditors over the others,
with a knowledge of his situation and the intent to accom-
plish this end. The intent is an clement of the objectiona-
ble transaction according to the letter of the law, and though
a person is presumed to intend the natural results of his acts,
the intent is essential, and must be shown by his acts and the
circumstances.” (Miller vs. Keys, 3 Bankrupt Register, 54.)

And again:

“This intent must be an intent on the part of the debtor;
and, unless the debtor at the time knew that he was insolv-
ent or contemplated insolvency, he could have no inéent to
give one creditor a preference over another. If a person,
while paying one creditor, honestly supposes that he is able
to pay every creditor, there can be no intent to give a pref-
erence.” (Case of Diblee et al., 2 Bankrupt Register, 185;
3 Benedict, 283.)

So, too, as to defeating the operations of the bankrupt act,
it has been held that: “The question of intent is a question
of fact. The innocence or guilt of the act depends upon
the mind of him who did it, and it is not a fraud within
the meaning of the bankrupt act, unless it was meant to be
so.” (Perry vs. Langley, 2 Bankrupt Register, 180; 1 Bank-
rupt Register, 155; 1 Law Times B. R., 34; 8 American Law
Reg., 427; 7 American Law Reg., 429; Clafflin & Co. ts.
Wells, Bankrupt Register, 37; 1 Law Times B. R., 20.)

But the decision of Gray’s case does not necessarily affect
that of the bank. Nathan Gray may be guilty and the bank
innocent.

Third. Yad the officers of the Guernsey National Bank
of Cambridge, on the 19th day of October, 1872, reasonable
494 D.A. HOLLINGSWORTH, ASSIGNEF, vs. N. GRAY ET AL.

cause to believe that a fraud on the bankrupt act was in-
tended, and that Nathan Gray was insolvent?

On. the 80th page of Bump, I read this passage: “ When
there is a preference, the conditions requisite on the part of
a creditor are, that he shall have reasonable cause to believe
that the debtor is insolvent, and that the payment or trans-
fer is made in fraud of the provisions of the act. The re-
quirement is not knowledge, but reasonable cause to believe,”
etc. * * * “Unless all these requirements of the act
concur, the preference is valid.”

So the law was held in the case of Wilson vs. Bank of St.
Paul (1 American Law Times). In that case the bankers
knew the debtor to be insolvent—knew that they had com-
mitted an act of bankruptcy by allowing their commercial
paper to lie under protest for more than fourteen days—
knew they had other creditors—knew they had no other
property but the stock of goods on which they levied. With
all this knowledge they sued the debtors, who had no defense
to make, and made none; took judgment by default, levied
on the stock of goods, and sold them out. The Supreme
Court of the United States held this proceeding to be valid—
held the preference obtained thereby to be valid: because
the element of fraudulent intent on the part of the debtors
was wanting; because the bankers had not reasonable cause
to believe that in submitting, without defense, to the judg-
ment against them, they had any fraudulent intent.

The Guernsey National Bank might have taken judg-
ment by cognovit on the following Monday, for half their
debt, and secured it by levy on the goods of the firm, and
taken their chances with other creditors for the other half.
But they knew Nathan Gray to be willing, and believed
him to be able, with their aid, to pay all the indebtedness
of his firm, and as things then secmed, that which the bank
did was the best that could be done for all parties.
D. A. HOLLINGSWORTH, ASSIGNEE, 08s. N.GRAY ETAL. 495

Nathan Gray may have lacked vigilance in watching
the movements of his son. He may have had too much
confidence in the ability of his son. He may have errone-
ously attributed the recent recklessness of his son to domestic
trouble. He may have mistaken the mysterious wavering
of the son’s mind, before he took the fatal plunge, for par-
tial insanity. He may have had suspicions of his son’s dis-
honesty, which parental affection refused to believe. The
young man’s folly at Smyrna may have been egregious to
men of discernment there. But all these things were hid-
den from the eyes of these bankers by a distance of twenty-
five miles, big hills, and bad roads; and the only intimation
they had of his mismanagement before the mortgage was
made, came from his father on that day. All the informa-
tion they had as to the bad prospects of the firm, came too
late for action, and could have had no influence in taking
the mortgage.

But again, these bankers were not so depraved as to
set at naught all human testimony. They were still will-
ing to believe what an honest man would tell them about
a matter which he, of all others, ought to know best. The
cashier had known Nathan Gray for twenty years, and had
faith in him as a man of truth, honor, and integrity; and
after he had learned the worst of his affairs in the bank, he
assured Mr. Laurence and others, and no doubt believed,
that his firm was abundantly able to pay all its indebted-
ness.

Where, now, was the reasonable cause to believe that
this firm was insolvent; or that Nathan Gray was insolv-
ent, and that Nathan Gray was about to mortgage his farm
in fraud of the bankrupt act? Reasonable cause to believe
is not a thing to be jumped at by guess. It is an impli-
cation of fraud against the vendee, and must be proved.

Thus, in the case of Darby vs. Lucas (1 Dillon, 164), the
32
496 D. A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ET AL.

Court say: “The existence on the part of the vendee of
‘reasonable cause to believe each of the two elementary facts—
to wit, the insolvency of the debtor, and the debtor’s inten-
tion to contravene the bankrupt act—must be satisfactorily
proved, to render a deed void.” (See 5 Bankrupt Register,
437, and Judson vs. Kelty, 6 Bankrupt Register, 165.)

If there had been doubts in the minds of these bankers
as to the solvency of Nathan Gray & Son, or their intent
to commit a fraud on the bankrupt act by preferring cred-
itors, how were they to solve those doubts? In the case of
Warren vs. National Bank (5 Bankrupt Register, 479), it is
said: “ When a creditor is put on inquiry, the proper place
to seek for information as to the status and prospect of the
debtor and his relation to other creditors, is from the debtor
himself.” This is precisely what they did. Nathan Gray
stood before them face to face, and assured the president, the
cashier, and the directors present, that they were abundantly
able to pay all their indebtedness.

The indebtedness of N. Gray & Son to the Guernsey
National Bank of Canibridge was a just and bona fide debt
for money loaned. The bank had a perfect right to give
Nathan Gray further time to pay this indebtedness—had a
perfect right to take a mortgage on the individual property
of Nathan Gray to secure this indebtedness; and the only
question is, had the officers of the bank reasonable cause to
beliere that a fraud on the bankrupt act was intended by
Nathan Gray, and that Nathan Gray was insolvent? There
is no ground for dispute about the meaning of these three
English words. They belong to the common parlance of
the country, and everybody understands them. Their com-
bined meaning is equally simple and easy to be understood.
All the scholars in America cannot frame a combination of
English words more simple and clear to the common under-
D. A. HOLLINGSWORTH, ASSIGNEE, vs. N. GRAY ETAL. 497

standing of men, and all the paraphrastic twaddle of little
jurists is like stirring mud into water to make it clearer.

We have seen that reasonable cause to believe, is a matter
to be proved—but how proved? The law can afford no rule.
It is forever an open question, for court or jury to decide
in the light of all the evidence, and under all the circum-
stances of each case. I can imagine a case where the pro-
test of a single bill, unexplained, would be conclusive. TI
can imagine another case, where the dishonor and protest
of forty bills would be no proof at all.

In the case of Toof vs. Martin (13 Wallace, 40), at first
glance, the Court seem to have made the protest of a note
or bill reasonable cause to believe. And so it might be in
that particular case; and so it might be among commercial
men in the great commercial centers, where promptness
stands higher in the scale of business ethics than honesty.
But even in the commercial centers, such a rule admits of
so many exceptions, that it is hardly worth calling a rule.
The prima facie evidence by protest, terrible as the word is
among commercial men, may be explained away. Let us
test its power by a few simple illustrations. Thus, for in-
stance, my debtor lived in Covington before the Ohio river
was bridged. His note matured in the spring, on the same
day the ice broke up, and during al] the three days of grace
the river was covered with floating ice so that no boat could
cross. My-debtor did not come to time, and I knew he
could not come; but, in order to hold the indorser, T pro-
tested his note. Am TI bound to admit this as reasonable
cause to believe him insolvent? Again, my debtor lives in
the city, and is my intimate friend. \t the maturity of his
note he asks me to ride out with him to the race-course.
On our way home the horse takes fright, runs, upsets the
carriage, and fractures my debtor’s skull; and, during all

the three days of grace, the attending physician will not
498 D. A. HOLLINGSWORTH, ASSIGNEE, v8. N. GRAY ET AL.

allow him to be spoken to, and he does not come to time,
and I know he cannot come; but, in order to hold the in-
dorser, I protest his note. Am I bound to concede this
as a reasonable cause to believe him insolvent? Again, my
debtor and I meet in New York, on the last day of grace
but one, and we set out for home on the same train, with
time enough. But a collision occurs, and we are detained
twenty-four hours. My debtor does not come to time, and
I know he cannot come; but my cashier, to fix the lability
of the indorser, protests his note. Must I accept this as rea-
reasonable cause to believe him insolvent?

Instances might be multiplied ad infinitum, to show the
folly of setting up any rule as to what shall constitute rea-
sonable cause to believe. It must forever be an open ques-
tion, to be determined by the good sense of the judge or
jury, taking into consideration all the circumstances of the
case.

It is impossible, for instance, to apply the arbitrary rules
of the commercial centers to the transaction of business in
the rural districts. The people are different; their modes of
life are different; their manner of doing business is different ;
their ideas of right and wrong are different; their estimates
of character are different; their banking systems are different.
In the city, promptness makes the man. In the country, hon-
esty makes the man. In the city, the customers of a bank do
business in sight of the bank; in the country, they do busi-
ness ten, fifteen, twenty, or thirty miles from the bank. In
the city, the banks discount only commercial paper, with
drawer, indorser, acceptor, holder, and so on, so as to re-
quire presentation, acceptance, demand, protest, and notice,
to stimulate and secure promptness. In the country, two,
three, four or more honest, responsible men make their joint
and several bond, in which all are principals, requiring nei-
ther demand, protest, nor noticc, and the bank discounts the
D, A. HOLLINGSWORTH, ASSIGNEE, 08. N. GRAY ETAL. 499

bond. In the city, all partiés are so convenient to the bank
that tickets are distributed among them to remind them of
the time for payment. In the country, they live so far out,
that a bank runner would never find them, and the time of
payment is left to their own memories. In the city, if the
note is not paid before the close of banking hours, it is de-
livered over to a notary, who makes demand at the counter
where the note is made payable, and sometimes at the debt-
or’s place of business, protests the note for non-payment, and
notifies the indorsers. In the country, the people do not
know what a notary is, or what a protest means. If one of
these countrymen was informed that the bank apprehended a
run, and needed the money, he would get out of his bed at
midnight and bestir himself to pay his bond a week before
it was due; and if he did not think they needed the money,
he would pay on the day of maturity, the day before, or the
day after, depending on whether he had other business in
town, so that he might “kill two birds with one stone.”
And many a time, when he cannot pay the whole debt, the
banker enters a credit on the bond for what he can pay,
and the balance is paid at a more convenient season. The
reputation of having his paper go over and be protested is
ruinous to a city merchant. It does not affect the reputa-
tion of an honest countryman at all.

This obvious distinction is very well drawn in a pas-
sage on page 486 of Bump. “If the debtor is a merchant,
or resides in a mercantile community, the non-payment of
his note is prima facie evidence of insolvency ; and ifa party,
after such non-payment, takes from him a judgment to se-
cure either a past indebtedness or a present advance, he does
so at his peril. But in an agricultural community the rule
is different. There, the general experience is that notes are
not punctually paid at maturity, and no man is suspected of
being insolvent from the fact alone that his notes are not
500 D. A. HOLLINGSWORTH, ASSIGNEE, ts. N. GRAY ET AL.

punctually paid.’ (Shaffer vs, Fritchery, 4 Bank. Reg., 179;
Golson vs. Neihoff, 5 Bank. Reg., 56; Wanderhoff vs. City
Bank, 5 Bank. Reg., 270; 1 Dillon, 476; 3 Chicago Legal
News, 338, 355.)

I cannot bring myself to believe that Congress ever in-
tended to make any man the subject of involuntary bank-
ruptcy unless he had willfully committed a fraud in viola-
tion of the law, and hence I have insisted that the words of
the act should be received in their true and literal sense,
according to the standards of the English language. I have
read some very ill-considered commentaries on the bankrupt
act, taking their argument from the idea that the act was
highly remedial, and therefore to be liberally construed.
This means that the courts are not to understand or admin-
ister the law according to its letter, but constructively for the
accomplishment of certain ends which the commentator takes
on himself to propose. Hence the word intent does not mean
intent; the word fraud does not mean fraud; the word defeat
does not mean defeat; the word hinder does not mean hinder ;
the word delay does not mean delay; the word reasonable
does not mean reasonable; the word cause does not mean
cause ; the word believe does not mean believe; the word in-
solvent does not mean insolvent; and so of all the rest: every
significant word touching involuntary bankruptcy must be
wrested from its literal and ordinary sense and held to mean
something else.

Whatever may be said of voluntary bankruptcy, involun-
tary bankruptcy is PENAL. It presupposes that its object is
guilty of a crime against the law and a fraud upon his ecred-
itors. It drags him away from the jurisdiction of the State
tribunals; it wrests from him the earnings of his life; it
appoints an administrator de bonis non upon his estate while
he is yet alive; it disgraces him and his children to the third
and fourth gencration. Why? Not because he is poor, but
D. A. HOLLINGSWORTH, ASSIGNEE, vs. N.GRAY ETAL. 501

because he is dishonest; not because he is tisolvent; but be-
cause he has committed fraud; not because he has unwit-
tingly given one creditor more than he is able to give to
others, but because he intended to defraud, to delay, to hin-
der his creditors, and defeat or delay the operation of the
law.

I cannot be persuaded that Congress intended to make
the bankrupt act a general administrator of every man’s
estate who is unable to pay all his debts on demand—to re-
quire every debtor who cannot pay on demand to go into
voluntary bankruptcy, and have his property devoured by
hungry officials, and his debts canceled ; or if he refuses, then
to authorize a creditor to whom he owes $250, to drive him
into involuntary bankruptcy, while he is engaged in an hon-
est and hopeful endeavor to pay all his debts, neither con-
cealing himself nor his property from the process of the law.
The language of Mr. Justice Miller, in deciding the case of
Wilson vs. Bank of St. Paul, is sublime with truth and com-
mon sense, and I beg leave to read a paragraph or two: “We
do not construe the act as intended to cover all cases of in-
solvency, to the exclusion of other judicial proceedings. It
is very liberal in the class of insolvents which it does include,
and needs no extension in this direction by implication. But
it still leaves, in a great majority of cases, parties who are
really insolvent to the chances of their energy; care and
prudence in business may enable them finally to recover
without disastrous failure or positive bankruptcy. All ex-
perience shows both the wisdom and justice of this policy.

“Many find themselves with ample means, good credit, large
business, totally insolvent; that is, unable to meet their cur-
rent obligations as fast as they mature. But by forbearance
of creditors, by mecting only such debts as are pressed, and
even by the submission of some of their property to be seized
on execution, they are finally able to pay all, and to save
502 -D. A. HOLLINGSWORTH, ASSIGNEE, vs. N, GRAY ET AL.

their commercial character and much of their property. If
creditors are not satisfied with this, and the parties have com-
mitted an act of bankruptcy, any creditor can institute pro-
ceedings in a bankrupt court. But until this is done, their
honest struggle to meet their debts and to avoid the break-
ing up of all their business is not, of itself, to be construed
into an act of bankruptcy, or a fraud upon the act.”
AN ADDRESS

ON

THE ASPECT OF NATIONAL AFFAIRS

AND THE

RIGHT OF SECESSION:

DELIVERED BEFORE

THE LITERARY CLUB OF CINCINNATI,

Saturpay Eveninc, Marcu 16, 1861.

PRELIMINARY STATEMENT.

As this purports to be a book of arguments to courts and
juries, in actions at law, it may, at the first glance, seem in-
congruous to insert a popular address touching a political
complication. But when it is remembered that the Ameri-
can People were, at the time of its delivery, called upon to
decide a mixed question of law and fact, involving legal con-
siderations as well as governmental policy, it may not be in-
appropriate to publish, in this connection, an address deliv-
ered before a club which had a part to bear in that decision,
and which afterwards contributed of its members some able
and eminent men, who rendered its judgment in the matter
on many a bloody field of stricken battle.

And, as this volume was begun with an argument upon
the relations of the slave and free States and upon the sub-
ject of slavery, it may properly be closed with an address
bearing on the same topics, delivered in plain view of the
final struggle which was to result in letting the oppressed go
free, and in settling forever the question of the right of se-

cession.
(503)
504 THE RIGHT OF SECESSION.

ADDRESS OF JUDGE JOHNSTON.

Gentlemen :

We have come, at last, to the great question of man’s ca-
pacity for self-government. We have proved to tke world
our capacity for everything else. Nothing, depending on
human genius or human daring, is above our reach or beyond
our power. The only remaining question is, Can any sys-
tem of self-government be contrived by the wisdom of man
or the bounty of God, with which the people will be satis-
fied? Or must they be remanded, like other ungrateful peo-
ple, to civil war and fraternal bloodshed? to fire, sword,
famine, desolation, and poverty, till, worn out with calamity,
they subside into peace, and seek safety for life and property
in proffered despotism ?

Such has been the fortune of other countries who had
more freedom than they knew what to do with, more wealth
than the rational wants of man required, and greater pros-
perity than could be borne by the vanity and weakness of
human nature. Can it be possible that, in seventy years, we
have culminated in glory? Not in glory only, but in bad-
ness and folly, like the builders of ancient Babel, till God
has come down to confound our language, and scatter us
abroad ? ;

The Constitution under which we have lived for seventy
years, has challenged the admiration of wisc men throughout
the world. For the few and simple, but indispensable pur-
poses for which it was made, no government contrived by
the wit of man was evcr so wise, so equal, or so beneficent.
No human government ever was administered with so much
moderation, so much wisdom, and so much equality toward
THE RIGHT OF SECESSION. 508

the different sections of the country. Nor was any govern-
ment ever so successful in the results of its administration.

States, revolving within their own constitutional spheres,
have moved onward to unexampled prosperity, without the
expense of building forts, fleets, and arsenals, or raising and
supporting armies, because the common defense was taken
care of by the Federal Government; without the expense of
building light-houses, and improving rivers and harbors, be-
cause the common commerce of the Nation was provided for
by the Federal Government; without the endless vexation
of providing a safe mode of correspondence with the differ-
ent sections of our own country or of foreign countries, be-

cause ‘

post-roads” were established, and the mails brought
to every man’s door by the Federal Government; without
conflicts or border wars between the several States, because
the Federal Government furnished a common umpire between
them ; without the commerce of one State being taxed or in-
terrupted by another State, because the Federal Government
guaranteed free trade between them; without the commerce
of any State on the high seas being menaced by any power
on earth, because the flag of the Union floated aloft on
every sea, commanding the respect of the world.

The purposes of the Federal Constitution are well and

briefly expressed in the preamble:

“We, the people of the United States, in order to form a
more perfect union, establish justice, insure domestic tran-
quillity, provide for the common defense, promote the gen-
eral welfare, and to secure the blessings of liberty to our-
selves and our posterity, do ordain and establish this Con-
STITUTION FOR THE UNITED STATES OF AMERICA.”

The few simple and general principles of this instrument
were not only ordained by the people in convention, but rati-

fied by the States separately. Among the rest is this one,
worthy of notice first of all:
506 THE RIGHT OF SECESSION.

“Art. VI.—This constitution, and the laws of the United
States which shall be made in pursuance thereof, and all
treaties made, or which shall be made under the authority
of the United States, shall be the supreme law of the land;
and the judges of every State shall be bound thereby, any-
thing in the constitution or laws of any State to the con-
trary notwithstanding.”

“The senators and representatives before mentioned, and
the members of the several State legislatures, and all execu-
tive and judicial officers, both of the United States, and of
the several- States, shall be bound by an oath or affirmation,
to support this Constitution.”

One would suppose that, whatever may be the extent or
the meaning of the Constitution, there were two things be-
yond all doubt: First, that the instrument is a law; second,
that, as far it goes, it is supreme.

To all human government, I admit, there is a right of
resistance—a revolutionary right, which overrides all forms
of law, and all obligations of allegiance—a disruption of
the social tie, and an appeal to the god of battles. But
revolution is not justifiable for every discontent which may
arise in a State. The causes which may justify revolution
are well defined in our Declaration of Independence:

“We hold these truths to be self-evident: That all men are
created equal; that they are endowed by their Creator with
certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness. That, to secure these rights,
governments are instituted among men, deriving their just
powers from the consent of the governed; that, whenever
any form of government becomes destructive of these ends, it
is the right of the people to altcr or abolish it, and to insti-
tute a new government, laying its foundations on such prin-
ciples, and organizing its powers in such form as to them
shall seem most likely to secure their safety and happiness.
Prudence, indeed, will dictate that governments long estab-
lished should not be changed for light and transient causes ;
THE RIGHT OF SECESSION. 507

and, accordingly, all experience hath shown that mankind
are more disposed to suffer, while evils are sufferable, than
to right themselves by abolishing the forms to which they
are accustomed. But when a long train of qbuses and usur-
pations, pursuing invariably the same object, evinces a de-
sign to reduce them under absolute despotism, it is their right,
it is their duty, to throw off such government, and provide
new guards for their future security. Such has been the pa-
tient sufferance of these colonies, and such is now the neces-
sity which constrains them to alter their former systems of
government. The history of the present king of Great Brit-
ain is a history of repeated injuries and usurpations, all hav-
ing in direct object the establishment of an absolute tyranny
over these States. To prove this, let facts be submitted to a
candid world.”

Then follow twenty-seven specific charges, which fully sus-
tain the general allegation above made. Such are the causes
which warrant revolutions.

It is difficult to imagine how such a state of things could
arise in a republic where the people are the source of all
power; where a new president is elected every four years;
new representatives elected every two years; new senators
elected every six years; rotation in office every four years ;
and none but the judiciary, who can make no law, holding
office during good behavior; and where the objects of the
government are so few and simple.

If the people practice “a long train of abuses and usur-
pations” on themselves—if they “ pursue invariably the same
object, evincing a design to reduce themselves under absolute
despotism ”—if they practice on themselves “ repeated injuries
and usurpations, all having in direct object the establishment
of absolute tyranny over’’ themselves, according to the rule
laid down in the Declaration of Independence, they prove
themselves “unfit to be the rulers of a free people;” and
there is an end of self-government. The glorious idea with
508 THE RIGHT OF SECESSION.

which we have filled and fired the world is all a delusion.
The people cannot govern themselves. They must have
kings by the grace of God, and senators by birth. They
must have crowns and miters to dazzle their stupid gaze;
and a titled nobility to stand between them and the throne.
The dangerous truth, lurking in every bosom, “that all men
are created equal,” must be again smothered. Mankind do
not know the value of freedom, and, therefore, it is not safe
to trust them with it. They do not want to be rationally
free, and, therefore, let us have a revolution, in which some-
thing newer and more grateful than freedom may turn up.

But the politicians along the Gulf do not want revolu-
tion. There is something in the word REVOLT ‘more start-
ling to the Southern than to the Northern car. What they
think of is, getting out of the Union without a revolution.
They will carry with them the arsenals and arms of the
United States; the mints and money of the United States;
the forts and light-houses of the United States; the Con-
stitution and laws of the United States; but they will leave
the United States behind. Tuts Is SECESSION.

Let us, then, inquire into the right of secession—from
whence it comes, and whither it tends.

This inquiry runs directly into the question, whether the
instrument under which we have lived so long and grown
so great, is, in fact, as it purports to be, a “ ConsTITUTION
FoR THE Unitep Srates or AmMERICcA;” or whether it is
something else, called, for want of better scholarship, “a

Constitution :”

whether it is, in its own language, ** the su-
preme law of the land,” ordained by the people; or whether
it is some sort of a treaty between the States in their corpo-
rate capacity, open at both ends, so that either party may
creep out at pleasure.

This latter view, so far as I know its genealogy, origin-

ated in a set of abstractions in the nature of a modern
THE RIGHT OF SECESSION. 509

platform passed by the Legislature of Virginia, and after-
ward by the Legislature of Kentucky, in high party times,
during the administration of John Adams—times when po-
litical platforms on both sides were built, not upright like
the towers, but obliquely, like the abutments of a suspen-
sion bridge, with reference to astrong pull from the other side.

These abstractions declare that the United States are
“united by a compact, under the style and title of a Consti-
tution for the United States ; that to this compact, cach State
acceded as a State, and is an integral party, its co-States
forming to itself the other party; that the Government cre-
ated by this compact was not made the exclusive or final
judge of the extent of the powers delegated to itself; but
that, as in all other cases of compact among parties having
no common judge, each party has an equal right to judge for
himself, as well of infractions as the mode and manner of
redress.”

Tt is well known that Mr. Madison, who brought forward
these resolutions, in after life repudiated their doctrine ; and
if, as is supposed, Mr. Jefferson drafted them, I have two
remarks to make: First, Any man who mingles as much
in party polities and writes as many volumes as Mr. Jetfer-
son did, without writing something for his friends to be
ashamed of, is a happy man. Second, No President of the
United States ever disregarded such abstractions more than
Mr. Jefferson. He was a strict constructionist of the Consti-
tution, but all the better for that. Those who construe the
Constitution strictly are the truest friends to the Constitution
and the Union. Those who defend strictly the constitutional
rights of the States, are least likely to infringe the powers of
the Federal Government. Those who depart from the letter
of the Constitution, and run after vague abstractions and
party platforms, are, in the end, far more likely to run into

nullification, secession, and treason.
510 THE RIGHT OF SECESSION.

I cannot trust my ability to go into the philological argu-
ment of this question. All that the construction of words,
and the pith of language, and the powers of metaphysics,
could do oni the one side; or the lights of analogy, and the
powers of logic, and the breadth of thought, could do on the
other, has been done by Calhoun and Webster. The lesser
lights are not worth reading on either side.

Philological argument, however powerful, is unsatisfactory
to the common mind. When two mighty minds enter into a
contest, as to whether the Constitution means what it says,
or whether it means something else, there is more of won-
derment than of conviction left on the common mind. We
wonder why so little can be said in favor of that which, on
reflection, is self-evident—we wonder how so much can be
said in support of some idea which, on reflection, is without
foundation.

In such a dilemma the mind feels around it in search of
some argument which enters into the practical workings of
the government. It wants to know whether such theories,
if acted upon, would not counteract the known and admitted
powers of the Constitution ?—whether the instrument admits
of a construction which, in the end, will destroy itself? What
I propose, then, is a practical inquiry into the effects of these
doctrines on the acknowledged powers of the Government ;—
whether these abstractions, put in action, and the Constitu-
tion, can exist and act together at the same time.

Whenever you admit the right of a State to be the sole
judge of her own grievances and her own remedies, and to
withdraw from the Union at pleasure, you concede to her the
right to nullify the powers of the Federal Constitution, and
defeat the movements of the Federal Government; not only
as to the relations between the Federal Government and the
nullifying State, but as to the relations and duties of the Fed-
THE RIGHT OF SECESSION. 511

eral Government to othcr Statcs, at peace with the Federal
Government, and desiring to remain in the Union.

I propose to illustrate by a few examples; and, first of all,
the treaty-making power of the Government.

The treaty-making power, in all civilized countries, is all
but unbounded. Through this power whole kingdoms have
been bought, sold, and exchanged; the navigation of rivers
and inland seas, the right of way across continents, and the
commerce of nations secured.

So great was this treaty-making power, that the framers of
the Constitution, in conferring it on the President, guarded
it by requiring the advice and consent of two-thirds of the
Senate. Art. II, Sec. 2, provides that “ He shall have power,
by and with the advice and consent of the Senate, to make
treaties, provided two-thirds of the Senate present concur.”

The most important exercise of this power since the Con-
stitution was adopted, fell out under the administration of Mr.
Jefferson, in the purchase, from the First Consul of France,
of the Louisiana Territory. At that time the north-western
slope of Tennessee, Kentucky, Virginia, Pennsylvania, and
New York, and the whole North-western Territory—now
composing Ohio, Indiana, and Michigan—were a wilderness,
struggling into cultivation, with every element of success,
except a market for their produce. Canals were not then in
use, and railroads had not been invented. The only outlet
for the vast valley, west of the Blue Ridge, was the Missis-
sippi river, flowing through the dominions of a foreign power.
The great and only depot for this vast valley was the city
of New Orleans, situated within the dominions of a foreign
power.

To purchase by treaty a commercial highway, and a depot
for the people in the Mississippi valley, was the primary ob-
ject of Mr. Jefferson. He sent Mr. Livingston and Mr. Mon-
roe to France, not to purchase the Louisiana Territory, but
512 THE RIGHT OF SECESSION.

to purchase the free navigation of the Mississippi river, the
city of New Orleans, and, if it might be done, the Floridas.
The entire Louisiana Territory was unexpeetedly offered by
the French minister. It was unexpectedly purchased by the
American ministers. The treaty was gladly accepted by Mr.
Jefferson. It was wisely ratified by the Senate within a few
days.

Thus, for the consideration of eighty millions of franes,
the most magnificent river in the world—the great emporium
of the South-west for all time to come—and rich land enough
for an empire, were purchased, through the treaty-making
power of the Federal Constitution. That in all this Mr.
Livingston, Mr. Monroe, Mr. Jefferson, and the United States
Senate acted in good faith, wisely and considerately, cannot
be denied. .

With whose money, and for whose behoof, was this pur-
chase made? It was purchased with the money, and held in
trust for every citizen of the United States, cast and west,
north and south: for them, and their heirs, assigns, and suc-
cessors forever. Every citizen of the United States has, by
birthright, a visitorial power over this purchase, to inquire
whether the purposes of this trust are faithfully executed ;
whether the navigation of the Mississippi is free and unob-
structed; whether the ports of entry along its banks are
open and free to the flag of the Union, and the commerce of
all the States ; whether the duties on foreign goods are faith-
fully collected and paid into the Treasury of the United
States; whether on this soil “the citizens of each State” en-
joy “all the privileges and immunities of citizens in the
several States ;”) whether here ‘this Constitution, and the
laws of the United States which ‘have been’? made in pur-
suance thereof, and all treaties made under the authority of
the United States, are the supreme law of the land.”

The purchasers from the United States within the Mis-
THE RIGHT OF SECESSION. 513

sissippi Valley have still higher rights—rights in the na-
ture of covenants running with their title.

All the territory drained by the Mississippi, from the sum-
mit of the Appalachian to the summit of the Rocky Mount-
ains, is, more or less, settled by the citizens of the United
States. These lands have been surveyed and sold by the
Federal Government, and purchased in good faith by the
citizens. The purchasers did not purchase the land over
which their parchments spread merely ; they purchased the
land with all the rights, privileges, appurtenances, and ease-
ments thereunto belonging. Without these the lands would
have been comparatively valueless. With them they furnish
homes to the purchasers, and a rich inheritance to their chil-
dren.

What were the rights so purchased by the citizen and
guaranteed by the Government—the covenants so running
with their title? The chiefest of these were the free navi-
gation of the Mississippi, and free trade in all the ports on
its border. There is not a man in all the Mississippi Valley
but knows, as he watches the melting snows, and marks
the trickling current from his spring, that he has a right
to follow their waters to the Gulf. The latest settler in
Minnesota knows that the waters of the Mississippi are, of -
right, as free to him as the waters of the Minnehaha. To
these rights the citizens looked when they purchased their
land, and it is a fraud on them if they can be deprived of
these rights.

It is time to pause here and inquire whether it was in the
contemplation of Mr. Livingston and Mr. Monroe, while
they were negotiating for the purchase of Louisiana, at the
rate of eighty millions of francs, to be paid from the Treas-
ury of the United States; or of Mr. Jefferson when he adopt-
ed their contract ; or of the United States Senate when they
ratified it, that the millions of people to whom this great
514 THE RIGHT OF SECESSION.

valley was to be sold, could, in a few years, be robbed of
their rights, and left without remedy, by a few desperadoes
at the mouth of the river; that the future State of Louisi-
ana, occupying a patch of land on either side, could take the
mint of the United States under one arm, and thc custom-
house under the other, withdraw from the Union, sit down
in the channel of the Mississippi, and shut up the common
highway of thirty-four States.

But again: I wish to group this treaty-making power with
one of the powers of Congress, conferred by the Constitution
(Art. IV, Sec. 3) in these words: “New States may be ad-
‘mitted by the Congress into this Union.” And yet another
power conferred by the Constitution (Art. I, Sec. 8), to “ pro-
vide for the common defense of the United States.”

In 1819, through the treaty-making power, we purchased
Florida from Spain, and, in 1821, took possession; and since
that time she has been admitted into the Union as a State.
Every one who has read the discussions of that day, knows
that the value of the land was not the object of the acqui-
sition. The common defense of the United States” was the
leading object. The peninsula was a long tongue of land
projecting into the sea, entangled with piny barrens, ever-
glades, lakes, and lagoons, a fit hiding-place for pirates, and
a convenient foot-hold for a foreign enemy. For the com-
mon defense it was purchased, conquered, fortified and ad-
mitted into the Union.

So, too, as to Texas. True, Texas was hopelessly involved
in debt, and the bond-holders were plying Congressmen with
all the arguments usually presented by desperate speculators
to politicians of easy virtue. Truc, all the most valuable
lands had already been assigned to valiant filibusters, who
had aided in the conquest; and these lands were compara-
tively valueless unless the United States should take the
new republic under her protection. But the argument for
THE RIGHT OF SECESSION. 515

the public ear—the justification for the assumption by the
United States of so enormous a debt, for so insignificant a
consideration, was “‘ the common defense of the United States,”
General Houston said England was negotiating for Texas. If
England takes it, she takes it on condition that slavery is to
be abolished, was the arguinent in one quarter. But, if Eng-
land takes it, there will be no safety for the United States,
was the grand argument. “The common defense of the United
States,” the highest, and noblest, and most patriotic of all con-
siderations, was made the pretext for the grandest swindle the
world ever beheld.

I will not pause here to inquire how many millions of
money, and how many lives the acquisition, the conquest, the
fortification, and the defense of Florida and Texas have cost
the United States. It turns one’s brain to foot up the bill.
I only speak of the principle on which these things were
done. It was the common defense of the nation everywhere,
paid for by the treasure of the nation everywhere.

On this same principle of “common defense,” our Senator
Pugh, and other very worthy gentlemen, have advocated the
acquisition of Cuba. But before we spend any more of our
blood and treasure for “common defenses” of this sort, let
us settle the question whether these defenses may lawfully
secede, and leave us the next day after we have paid for
them ?—and whether sworn officers of the army, in the com-
mission and pay of the United States, may lawfully surren-
der them ?

But again: Among the powers of Congress, under the Con-
stitution (Art. I, Sec. 8), is this: “To regulate commerce with
foreign nations, and among the several States, and with the
Indian tribes.” Again, at Sec. 9, among the limitations we
find this: “No tax or duty shall be laid on articles exported
from any State ;”—“No preference shall be given by any
regulation of commerce or revenue to the ports of one State
516 THE RIGHT OF SECESSION.

over those of another; nor shall vessels bound to or from
one State be obliged to enter, clear, or pay duties in an-
other.”

Thus, free trade is guaranteed to every State in the Union
with every other State. Equal terms of trade are guaran-
teed to every State of the Union with foreign nations; and
national highways are guaranteed, whereby the people of ev-
ery State may find their way to the ocean, free from taxation
or tribute levied by any other State. Can the Federal Gov-
ernment secure these rights?

Ohio, for example, is an inland State, surrounded by other
States, each of which has as good a right to secede as the
State of South Carolina. Without these immunities of the
Constitution, she may be cut off from the commerce of the
world. These immunities are guaranteed by the Constitu-
tion ; and, as a loyal State, she has a right to demand of the
Federal Government full security in the enjoyment of them;
and the Federal Government is bound to respond to her de-
mand

The principal avenue of Ohio trade is the Mississippi
river. Through this channel millions of dollars worth of
her produce every year finds its way to the markets of her
sister States on the sea-coast, or to the markets of foreign
countries. Now, if the State of Louisiana can peacefully and
lawfully secede, and close up the free navigation of the Mis-
sissippi, what becomes of the constitutional power of the
Federal Government to fulfill her guarantees ?

Driven from the Mississippi, she may turn to the north-
ern lakes and the St. Lawrence; but there she will find her-
self in the dominions of Great Britain, creeping through the
canals of a foreign power, and passing under the guns of the
strongest fortress, next to Gibraltar, in the world.

Driven from the waters at both ends, she may turn to the
Erie Canal and the Hudson. But the State of New York
THE RIGHT OF SECESSION. 517

may as well secede as the State of Louisiana. She may
block up the passage against Ohio produce, build her custom-
house on the line, and demand tribute.

New York being closed against her trade, she may turn to
Pennsylvania and seek an outlet through the Pennsylvania
railroads. But Pennsylvania may as well secede as New
York. She may shut her ports against Ohio produce, open
her custom-house, and demand tribute.

Pennsylvania having barred her ports against her, she
may next turn to Virginia, and seek an outlet through the
Baltimore and Ohio railroad. But Virginia may as well se-
cede as Pennsylvania. She, too, may close her doors against
Ohio commerce, set up her custom-house, and demand trib-
ute.

Having failed in Virginia, she may turn to Kentucky, and
finding Kentucky out of the sisterhood of States, she may
have no better success. No one of her sister States regards
the constitutional obligation of free trade and equal rights
among the States.

What next? Ohio may store up her produce and wait
for the opening of the Pacific railroad; taking the chances
that the Pacific States may secede also.

If Iam told that these evils are not likely to happen, I
have to reply that if the secession of Louisiana is lawful, the
very worst of them has already happened ; and all the rest
may happen, for aught the Federal Government can do, if
the right of peaceable secession be admitted.

But again: By Art. IV, Sec. 4, of the Constitution, it is
deciared that—

“The United States shall guarantee to every State in this
Union a Republican form of government, and shall protect
each of them against invasion; and, on application of the

Legislature, or the Executive (when the Legislature cannot
be convened), against domestic violence.”
518 THE RIGHT OF SECESSION.

Here is a duty made imperative by the Constitution—a
duty neither to be evaded nor postponed. If one of the States
is invaded by a foreign power, the Federal Government, on
its own motion, must protect such State; or, in case of do-
mestic violence, on request she must afford such protection.
It is a part of the mutual defense mentioned in the preamble.

Both these misfortunes may, in time, befall the State of
South Carolina. She may in time have to struggle with both
foreign invasion and domestic violence. We have had two
wars with Great Britain, and, it is possible at least, we may
have a third. In that event, we might expect to be assailed
at the weakest point, which is the seaward of South Carolina.
The old ships sunk in the channel might not be sufficient to
keep a British fleet out of Charleston harbor; especially if
Fort Sumter should be battered down and leveled with the
sea. Besides reducing Charleston to ashes, the enemy might
land large bodies of black troops from Jamaica, with procla-
mations of freedom to the slaves, and arms ready to put in
their hands. In such an emergency, it would be the sworn
duty of the President of the United States, as commander-
in-chief of the army and navy, to march into South Caro-
lina troops sufficient to repel the invasion ; and, if requested,
to subdue domestic violence. The treasonable folly of dem-
agogues, and the outrages committed by their deluded tools
on the property and the flag of the Union, would be no excuse
for a neglect of this duty. In order to this, either the State
of North Carolina, or the State of Georgia, or both, would
have to be crossed. But suppose both these States to have
seceded, and both to resist; both to resolve that they will
regard any attempt to march an armed force across their ter-
ritories as a hostile invasion, and that they will resist it to
the last extremity. The Federal Government is left to the
dilemma of allowing one State to perish, or of cutting its
way with the sword through two other States. :
THE RIGHT OF SECESSION. 519

Or, suppose the enemy, as in 1815, should direct their
hostile movements to New Orleans; the most ready and nat-
ural plan to repel the invasion would be to ship men and
munitions of war down the Mississippi. But here again the
State of Mississippi, on the one side, and the State of Arkan-
sas on the other, according to the theory of secession, may
lawfully place themselves in an attitude of hostility to the
Federal Government, and, in order to repel an invasion on
one State, she must run the gauntlet between the guns of
other States.

Can any man, worthy of a place outside a lunatic asylum,
suppose that our fathers framed a constitution admitting of
a construction at variance with its express powers and pro-
visions?

But again: One of the constitutional powers of Congress
(Art. I, See. 8) is—

“To provide for calling forth the militia to execute the
laws of the Union, suppress insurrections, and repel inva-
sions.”

The framers of the Constitution foresaw that in this coun-
try, as in all other countries, the laws would sometimes have
to be executed by force; that domestic insurrections would
sometimes arise, and have to be suppressed by force; and
that sudden invasions would sometimes occur, and have to
be repelled by force. It was not the policy of the Federal
Republic to keep large standing armies in time of peace to
accomplish all the purposes of armed force, and hence the
provision for calling out the militia. But how completely
could the surrounding and adjacent States accomplish the
’ destruction of a sister State, which might be in jeopardy,
simply by seceding from the Union, and refusing to respond
to the call, or to allow the militia of other States to pass
over their territories.
520 THE RIGHT OF SECESSION.

But again: Another of the constitutional powers of Con-
gress Girt. I, Sec. 8), is:

“To lay and collect taxes, dutics, imposts, and excises ; to
pay the debts and provide for the general welfare of the
United States; but all duties, imposts, and excises shall be
uniform throughout the United States.”

It was not to be expected that the United States would
escape the calamities common to all nations. It was not
to be expected that they would escape expensive wars, both
foreign and domestic; nor was it the policy of the Federal
Republic that the National Treasury should always be full
and overflowing with gold, over and above the ordinary
wauts of the Government. Hence the provision for debts,
and the power to lay taxes, in various ways, to pay those
debts. But justice and equity required that all such taxes
should “be un1Frorm throughout the United States.”

Let us now suppose a heavy debt, incurred by the Fed-
eral Government, for “the general welfare” of the nation,
and a uniform tax laid by Congress to pay that debt.
After the tax is laid, and before it is collected, one-third
of the States secede from the Union, and set at defiance all
the provisions of the Constitution under which the debt was
contracted and the tax laid, and refuse to pay their propor-
tion. If they may lawfully do this, how shall the Federal
Government lawfully compel the remaining two-thirds of
the States to pay the whole tax, and discharge the whole
debt, incurred for the common benefit and general welfare
of all the States ?

But again: Another of the powers of Congress under the
Federal Constitution (Art. I, See. 8), is: “To establish post-
offices and post-roads.”

It was important to the interests of commerce and the
diffusion of knowledge, that the postal system should be
national and universal; that the mails should be carried
THE RIGHT OF SECESSION. 521

with safety and dispatch throughout every part of the United
States. Hence, instead of leaving this power to the States,
it was conferred on the Federal Legislature. Incident to
this power of establishing the mail arises the power of the
Government to punish thefts and robberies of the mail.

Under this power, it is the duty of the Government to
carry safely and deliver promptly the Northern mails to
the good people of the States of North Carolina and Ten-
nessee. They have a right to demand this at the hands
of the Government, and the Government is bound in good
faith to comply with the demand. But the States of Vir-
ginia and Kentucky, extending east and west from the At-
lantic to the Mississippi, secede from the Union, and declare
by law that no foreign State shall establish post-roads, or
carry mails across their territories; and, abjuring all allegi-
ance to the Federal Government, the Federal judges resign,
and the Federal courts are closed. In such circumstances,
how shall the Federal Government fulfill her obligations to
North Carolina and Tennessee, and other States farther
south? How shall thieves and robbers of the mail be pun-
ished, where there are no judges to try them, and no courts
wherein they may be tried ?

Thus a refractory State, if the right of secession be ad-
mitted, may not only release herself from the bonds of the
Union, but may make it impossible for the Federal Gov-
ernment to discharge her constitutional obligations to other
States, in harmony with the Union, and obedient to its laws.

But again: Another provision of the Constitution (Art. I,
Sec. 10), is that

“No State shall enter into any treaty, alliance, or confed-
eration; grant letters of marque and reprisal; coin money ;
emit bills of credit; make anything but gold and silver coin
a tender in the payment of debts; pass any bill of attainder,
522 THE RIGHT OF SECESSION.

cx post facto law, or law impairing the obligation of con-
tracts, or grant any titles of nobility.”

The State of Louisiana professes to have cast off her alle-
giance to the United States, and freed herself from all the
obligations of this Constitution. Admit the lawfulness of
this, and what follows? Louisiana may enter into treaty
with some foreign power for the exclusive navigation of the
Mississippi river to her northern line; she may enter into
alliance and confederation -with some unfriendly nation; she
may issue letters of marque and reprisal, and turn a band of
legalized pirates loose on the commerce of the United States;
she may coin money out of brass and babbitt metal; she may
issue bills of credit and make them a lawful tender in the
payment of debts.

At this hour the people of Louisiana are largely indebted
to the people of the feeding States of the West for the bread
and meat they have eaten; and this indebtedness is doubt-
less mutual, to a great extent, for sugars and other Southern
products furnished to the people. Now, the Constitution
guarantees to all these creditors alike the payment of their
claims in gold and silver coin, in a medium of equal value
at home and abroad. Allow that Louisiana is released from
her obligations to the Constitution, with the spirit of repu-
diation which prevails, and she may issue “bills of credit,”
and declare them to be a lawful tender in the payment of
debts; and the creditors who have sold them their bread and
meat, having no Federal court to redress their grievances,
may be paid off in Louisiana bills of no more value than
chaff; while the Louisiana creditors may demand and collect
gold and silver coin for every dime due them throughout all
the States which remain faithful to the Constitution and the
Union. Does this commend itself to the conscience or the
common sense of any constitutional lawyer? Yet these are
THE RIGHT OF SECESSION. 523

some of the plain and practical results of the right of se-

cession.
But again: There is yet another passage, among the mis-

cellaneous provisions of the Constitution (Art. IV, Sec. 2)5

to which I wish to refer, and then I have done. It is this:

“No person held to labor or service in one State, under
the laws thereof, escaping into another, shall, in consequence
of any law or regulation therein, be discharged from such
service or labor; but shall be delivered up on claim of the
party to whom such service or labor may be due.”

This is the MaGNa Cuarra of slavery. Without this it
has no respectable foundation in the civilized world. The
slave-trade is at an end. The ministers of the principal Eu-
ropean powers, in the Congress of Vienna, in 1815, put their
seal of condemnation upon it. As early as 1821, there was not
a flag of any European state that could legally cover it north
of the equator. By the act of Congress of 1820, and the
act of the British Parliament of 1824, it is declared to be
piracy, and punishable with death. Domestic slavery alone
remains, and in this country is protected by this clause of
the Constitution. Without this clause, slave property in the
Border States is not worth a rush. By this clause the Fed-
eral Government is bound to deliver up to his master every
escaping slave. Every slave-owner has a constitutional right
to demand it at the hands of the Government. The Govern-
ment has responded to that demand, in the passage of the
Fugitive Slave Act. If this is not sufficient, Congress ought
to make it better. But while it is the law, let it be faithfully
executed.

But let us bring the right of secession in contact with this
provision of the Constitution and the Fugitive Slave Act,
and see how they stand together. Pennsylvania, Ohio, In-
diana, Illinois, Wisconsin, and Kansas have as clear a right
524 THE RIGHT OF SECESSION.

to secede as the tier of States along the Gulf, which have
already asserted the right. Suppose they do secede, what
becomes of the power of the Federal Government to guaran-
tee property in slaves, and cause fugitives from laber to be
delivered up? Rightful, lawful, peaceful secession, if there
be such a thing, puts an end to ail constitutional power, and
leaves the Federal Government utterly helpless, and unable
to enforce the law.

What next? A universal jubilee among the negroes. Ey-
ery slave in the Border States who has a mind to be free,
escapes across the line and is free. And there is no obli-
gation on the seceding State, and no power in the Federal
Government to remand him to bondage. A border war
might, and probably would ensue, in which all the other
States, North and South, would become involved ; but this
could not mend the matter. The empty swagger of Mr.
Davis, about fighting the Northern States on their own soil,
would avail him nothing in the day of battle. Americans

 

are all equally braye—throughout the country every man
counts one. Every battle-field, from the struggle at Bunker
Hill to the storming of Chepultepec, has proved Northern
men to be fully equal in courage, strength and endurance to
Southern men; and with double their numbers, greatly su-
perior means of transporting men and munitions of war by
railroad, and no revolting domestics at home, it requires but
little sagacity to determine what would be the result in the
long run. :

The practical results would be the same if the Border
States on the Southern side could secede. In cither ease,
the constitutional obligation to deliver up fugitive slaves
would be at an end. In cither case, the appalling pros-
pect of a border war would be equal.

While we acknowledge the authority of a common parent

to keep the peace between us, we shall go on harmoniously
THE RIGHT OF SECESSION. 525

and affectionately, helping each other on to prosperity, to
happiness, to glory; but, if we deny the authority of our
common parent, and rush madly into civil war, none but God
can tell the end of it.

Other parts of the Constitution might be commented upon,
but enough has been done to show that every provision con-
tained in it is at variance with the right of secession; that
the right of secession, the moment it is exercised, contra-
venes and destroys the powers of the Federal Government
to accomplish the purposes for which it was made; that the
right of secession and the Constitution cannot stand to-
gether, and that the one or the other must fall.

If we admit the right of secession at all, there is no point
at which we can safely say it will end. Other States, North
as well as South, in time, will discover, or imagine they
discover, reasons far stronger than the Gulf States can show,
why they should withdraw from the Union. The State of
New York may wake up to the fact that her imposts alone
contribute more to the Treasury of the United States than
those of all the Gulf States put together; that she has more
power to resist the Federal Government than all the Gulf
States put together; and, seizing on these considerations,
she may demand at the hands of the Federal Government,
unreasonable and unconstitutional advantages over her sister
States as the price of her allegiance; may demand, at the
hands of her sister States, unreasonable and ruinous conces-
sions as the condition on which she will remain in the Un-
ion; may hold out to the States north of her unequal ad-
vantages over the States south of her, or threaten them with
exclusion from the benefits of her commerce, as inducements
to join her standard of secession.

The question of slavery is not the only sectional ques-
tion about which States may differ. So far as it can affect
the Gulf States, that question is settled. Kansas, by the
526 THE RIGHT OF SECESSION.

choice of her own people, is a free State; and whenever
the dwellers among the mountain spurs of New Mexico are
numerous enough to form a State, they, too, will come in,
voting slavery up or voting it down, as they please. When
a line between free labor and slave labor is once settled,
from the Atlantic to the Pacific, and the hot blood arising
from the contest cooled, we may expect rest on that question.
But, if we had rest from contentions about slavery, the
right of secession, if admitted to be lawful, would not rest.
Denying the common umpirage of the Federal Government,
it would run constantly into encroachments of one State on
the rights of another; into tyranny of the strong over the
weak ; into border wars and endless strife. Wicked and am-
bitious malcontents will always find reasons for treason and
secession, if you will only allow such crimes to be lawful.
During the first era of treason and secession in this coun-
try, slavery was not an element. Division between the North
and the South was not the idea. O’Fallen and his South
Carolina Colony sought to detach, by secession from Geor-
gia, the territory now forming the State of Mississippi, and
transfer it to Spain. Sevier, Robinson, and others sought to
wrest, by secession from North Carolina, the territory now
forming the State of Tennessee, and transfer it to Spain.
General Wilkinson, Sebastian, and others sought to alienate,
by secession from Virginia, the territory now forming the
State of Kentucky, and transfer it to Spain. Bradford and
his associates sought to separate, by secession from Pennsyl-
vania, all the territory west of the Allechany mountains, and
set up for themselves. But. in all this, slavery was not an
element, and divisions between the North and the South were
not spoken of. The free navigation of the Mississippi, which
the Federal Government had not yet secured, was one ele-
ment. An “irrepressible conflict,” supposed to exist between
the Atlantic States and the Western country, was another ele-
THE RIGHT OF SECESSION. 527

ment; and, in Pennsylvania, the excise on distilled spirits
was another element.

In the second era of treason and secession, under the lead
of Aaron Burr, slavery was not an element, nor were North-
ern and Southern divisions thought of. Fomenting jealous-
ies between the people and States on the Atlantic slope and
those on the Western slope of the Appalachian mountains,
and thus dividing the Union by a line running north and
south, and setting up a separate government in the Missis-
sippi valley, was the primary object of that movement.

Nor was African slavery an element in the third era of
treason and secession, which occurred in General Jackson’s
administration. The subject of complaint then was, that the
revenue laws of the United States were unequal and oppress-
ive in their operation—that the planting districts of the coun-
try were unreasonably taxed for the protection of the manv-
facturing districts. After this attempt at the disruption of
the Government was put down by General Jackson, and the
cause of complaint removed by Mr. Clay’s bill, Gencral Jack-
son, in a letter to a friend, declared that the complaint against
the revenue laws was a mere pretext for treason, and predicted
that African slavery would be the next pretext. Here are
his words, too truly verified :

“T have had a laborious task here, but nullification is dead ;
and its actors and courtiers will only be remembered by the
people to be execrated for their wicked designs to sever and
destroy the only good government on the globe, and that
prosperity and happiness we enjoy over every other portion
of the world. Haman’s gallows ought to be the fate of all
such ambitious men, who would involve their country in civil
war, and all the evils in its train, that they might reign and
ride on its whirlwinds, and direct the storm. The free peo-
ple of the United States have spoken, and consigned these
wicked demagogues to their proper doom. Take care of your
nullifiers; you have them among you; let them meet with the
528 THE RIGHT OF SECESSION.

indignant frowns of every man who loves his country. The
tariff, it is now known, was a mere pretext; its burden was
on your coarse sioulanes By the law of July, 1832, coarse
woolen was reduced to five per cent. for the benefit of the
South. Mr. Clay’s bill takes it up and classes it with wool-
ens at fifty per cent., reduces it gradually down to twenty
per cent., and there it remains; and Mr. Calhoun and all the
nullifiers agree to the principle. The cash duties and home
valuation will be equal to fifteen per cent. more, and after the
year 1842, you pay on coarse woolens thirty-five per cent.
If this is not protection, I cannot understand; therefore, the
tariff was only the pretext, and disunion and a Southern con-
federacy the real object. The next pretext will be the negro
or slavery question.”

It would require but little argument to prove that all
. the complaints of the seceding States about negroes is a
mere pretext—as much so as the complaints about the tariff.
The Border States, as I shall show, have some ground of
complaint; but these people have none. Their slaves never
escape into the free States; and whether the fugitive law is
well executed or not, does not affect their interests. Their
complaints about slavery in the territories is all a sham.
Every man knows, and every Southern statesman has often
declared, that the people in the territories, when they come
to form constitutions, and be admitted as States, have a per-
fect right to admit or exclude slavery

 

“to vote it up, or
vote it down.” The attempt to force slavery on the people
of Kansas against their will could only have been made for
the purpose of provoking a sectional quarrel about negroes,
and bringing on a crisis. It could not have been made with
the serious expectation that the people of Kansas would sub-
mit. And yet this controversy is made a pretext for an at-
tempt to divide the Union and destroy the Government.
What infernal star is to preside over the fifth era of
treason and secession, God only knows. We have reason,
THE RIGHT OF SECESSION. 529

however, to believe, from what we have seen of the past,
that if the right of secession is conceded, excuses will never
be wanting to ambitious demagogues, who prefer their own
advancement to the good of their country. A political her-
esy, so versatile in its instincts; so ready to form alliances
with every grievance and discontent; so ready to embrace
every local prejudice and popular furor, for the destruction
of the Government, is not to be tolerated. It is a wolf with-
out even sheep’s clothing, and fit to be knocked on the head
by every honest man whenever he meets it.

Nor do I believe that the election of Mr. Lincoln, as a
ground for dissolving the Union, is more than a hollow
pretext. The ery of abolition against him is but a raw-
head and bloody-bones to stir up the prejudices of igno-
rant masses, and prepare them to be at once the dupes, the
tools, and the victims of treason. Coming across a Southern
man, who told me that the election of Mr. Lincoln was a
violation of the Constitution, I insisted on knowing how this
thing could be. I was informed that the violation of the
Constitution lay in certain bad doctrines put forward in the
Chicago platform, which he alleged, by the election of Mr.
Lincoln, was foisted on the people instead of the Constitu-
tion.

No one can increase my contempt for platforms. They
are not the work of statesmen, but of politicians. Thcy are
the contrivances of the demagogues who rule conyentions,
for the purpose of destroying some onc’s prospects, or turn-
ing to account some prevailing public scntiment or pop-
ular furor. After they have been used in convention, two
things may be said of them. First, The masses of the voting
public neither know nor care anything about them, but act
upon the prevailing sentiment of the day. Second, The per-
son elected, if an honest man, with the Constitution for his
platform, and a wise expediency for his guide, regards them
530 THE RIGHT OF SECESSION,

as of no more authority than the quack nostrums published
on the odd leaves of an almanac.

The leading demagogues along the Gulf cared nothing
about the Chicago platform. This was not the mote that
troubled their eye. Their grievance was more incurable.
The scepter had departed from them. They had failed, by
stampede, to drive Mr. Douglas from the field. They had
failed, by fanfaronade, in Mr. Lincoln’s case, to frighten the
people from the first and highest principle of free govern-
ment—the right of the majority to rule. The secession move-
ment did not come from a sober conviction that the seceding
States would better their condition; it was rather like the
angry outbreak of a spoiled and willful child, who, failing
to bully his mother out of all that he wants, flings the bread
and butter she gives him away.

For many years, they had had far more than their propor-
tion of Federal patronage; far more than their proportion
of the public money had been expended in fortifying their
coast and improving their commerce ; they had had far more
than their proportion of public offices in the gift of the Pres-
ident; and, what is more remarkable, since the time of Mar-
tin Van Buren down to the time of Stephen A. Douglas, we
had not had a Democratic President, nor a Democratic can-
didate for the Presidency, who was not nominated by their
dictation. They had been so long masters of the Democratic
party, that the revolt of Mr. Douglas and his friends could
not be brooked. They saw, in his nomination, what has since
been proved in the election of Mr. Lincoln, a determination,
on the part of the majority, not to be always dictated to, but
to have something to say in the affairs of State. And, if
public sentiment should take such a dircetion, it might post-
pone the chances of these ambitious men to be President for
a long while—perhaps during the lifetime of some of then.

One of the most fruitful sources of civil commotions, war
THE RIGHT OF SECESSION. 531

and bloodshed, is the Just for power. All the nations from
which we derive our characteristics have been rent with feuds
and drenched with blood from this cause. The blood of our
ancestors still boils in our veins, and the same causes which
distracted them, now distract us. The ambition to be Presi-
dent of the United States is both intense and wide-spread.
True, the term of office is but four years; but, within that
brief period, thousands and tens of thousands of places of
honor, trust and profit, are dispensed by him; and millions
and hundreds of millions of money disbursed, directly or in-
directly, through his appointment. Hence the inauguration
of a President inspires an interest more intense than the
coronation of seven kings. This ambition to be President
cannot often be gratified. The Presidency is an immense
lottery, in which the blanks are many and the prizes few.
And I apprehend there are many ambitious men, both North
and South, who would gladly rend the Union in two to be
President of one-half of it.

Among the illustrious dead, there have been a great many
who had a commendable ambition to be President, without
attaining their object. We cannot withhold our admiration
from the man of true ambition, who makes it subservient
to the good of his country. Among thesc, the gods of
my political idolatry were Clay and Webster. The chief
desire of Clay’s life was to be President; but his ambition
soared far above the groveling thought of being President
of less than the whole Nation. As I thrust my head from
the window of the rail-car to catch a glance of the pillar
his grateful countrymen erected to his memory, it makes
me proud to remember that here sleeps a man, ambitious
as he was, who would yet “rather be right than Presi-
dent.” Webster was as anxious to be President as Clay,
but his ambition was too big to preside over a broken frag-
ment of his country. Let him tell his own story:
532 THE RIGHT OF SECESSION.

“When my eyes shall be turned to behold for the last time
the sun in heaven, may I not see him shining on the broken
and dishonored fragments of a once glorious Union; on
States dissevered, discordant, belligerent; on a land rent with
civil feuds, or drenched, it may be, in fraternal blood.”

What a lesson the lives of such men teach the world!
How instructive the reflection, that true merit must look
for its reward beyond the limits of this present life.

I would be far from holding the honest, sober-minded
public at large in the Gulf States responsible for the folly
and treason of those who now tyrannize over and burden
them with taxes to defray the expenses of a fruitless flourish
of arms. There are times when all the elements of society
become mixed and turned upside down, so that scarcely any
man is responsible for the, position you find him in. A
French wit once said that English society was like English
ale, all froth at the top and dirt at the bottom. He was
right in his philosophy, if he had but admitted that there
was a goodly stratum of ale in the middle. This is the
structure of society everywhere, more so, perhaps, in the ex-
treme South than anywhere else. It is observable, too, that
when “the times are out of joint,” the men of froth at the
top, and the men of dirt at the bottom, always combine to
put down and keep down the better part of community.

From all that I can learn by conversation with travelers,
and letters from friends, and from what I know of the strue-
ture of Southern society, I believe this to be the condition
of things in the Gulf States at this hour. There is a fear-
ful looking for the people know not what—a reign of terror
in which no man feels safe in the honest expression of his
convictions. Tam satisfied that when the popular delirium
subsides, there will be found a large majority of the best and
most substantial citizens in this section of the country true
to the Constitution and to the Union. If I am asked why
THE RIGHT OF SECESSION. 5383

these men did not speak out, the answer is: some of them
did speak out, and others would have spoken out but for the
pusillanimous policy of the Federal Executive. The com-
mander-in-chief of the army and navy of the United States,
month after month, saw the hand of treason seizing on the
arms of the United States, and heard the note of prepara-
tion for war against the Government, without any provision
to meet or to check the evil.

The army and navy were established rather to keep the
peace than to be employed in war. It was the opinion of
Washington, that the best way to preserve the peace was to
be prepared for war. This maxim applies to civil wars at
home as well as to wars with foreign enemies. Every prep-
aration to resist the laws by an armed force was a sufficient
reason to garrison the adjacent forts, and anchor ships of
war in the adjacent harbors. If this had been done, it would
have secured obedience to the laws. Men, well affected to-
ward the Constitution and the Union, would have been en-
couraged to speak put, without incurring the danger of mob
violence, and they would have been listened to with respect.
Seditious demagogues would have fretted out their hour on
the stage and disappeared. The new administration would
have had time to define its position, and give the lie to alle-
gations of intended wrong and oppression to the South, made
and circulated to delude and disaffect the common mind.
Honest people, who suffered soreness and mortification at the
election of Mr. Lincoln, instead of being betrayed into trea-
son and violence toward the Government, would have looked
forward to the inevitable changes in the administration of
all free government; and in the calmer light of reason would
have seen that no man, or party of men, could remain long
in power who abused that power.

But nothing of the kind was done. The President was
overreached, overawed and overruled by a bevy of traitors
§34 THE RIGHT OF SECESSION.

in his cabinet. They constantly pressed on him the impolicy
of making any preparation to meet the coming trouble—ex-
horted him to make no military demonstration, lest it might
irritate the people. Putting together what these miscreants
said aloud for the President’s ear, and what they said in
their hearts, behind his back, it was as if one had said:
“Shut your eyes, old man, while I steal a few millions more
from the Treasury.” Another: “Hold still, old man, while
I plunder the arsenals and military stores, and scatter the
troops of the United States so widely that you will not know
where to find them for six months to come.” Another:
“Hands off, old man, while I order one-half the navy into
the Pacific, and scatter the residue along the coast of Africa,
so that they cannot be recalled for half a year.” "And he,
good easy man, had said: “Gentlemen, Mr. Cass and I are
too old to trouble our heads about such things. You are
all young and smart; have things your own way.” Holt,
Dix, and Stanton, for whose brows immortal laurels are
growing green, stood up for their country. But for them,
the Executive might have slept on in the lap of Delilah—
been shorn of the last lock of manhood—bound hand and
foot, and delivered over to the enemy, to be waked up by
the shrill shout of the vixen, “The Philistines be upon thee,
Samson !”

Now that everybody knows what everybody ought to have
known, and what nearly everybody but the chief executive
did know, the weak and pusillanimous idea is advanced, that
the best government in the world, and the only republic
worth the name, is to be frittered away, inch by inch, for
the want of power to defend its own existence.

We have seen that there is no want of constitutional power
in the Federal Government. The. power to exccute the laws,
suppress insurrections from within, and repel invasions from
without, stand upon the sanie constitutional footing. But it
THE RIGHT OF SECESSION. 535

may be interesting to inquire whether there are any respecta-
ble authorities for the exercise of this power. We necd not
travel out of Cincinnati for an instance in which the officer
of the Federal Government has called out the military to
execute the Fugitive Slave Law. The same thing has oc-
eurred in Boston, New York, and other places, in extraor-
dinary cases, where resistance to the law was apprehended ;
and I have never met with a Southern man who questioned
either the power or the policy of exercising it in such a ease.
But I rely on higher authority, and more to the point. I
propose to inquire what THREE Presidents have done in cases
of armed resistance to the law—two of them the most popu-
lar Presidents we ever had, and the third filling a place in
the common heart of America and the world, far, very far,
above all our conceptions of popularity.

In the first era of treason and secession, there was a singu-
lar resemblance between the conduct of the insurrectionists
in Western Pennsylvania, and that of our deluded brethren
in the Gulf States. They killed, they whipped, they tarred
and feathered, they banished; they burned barns, houses, and
distilleries, and stopped short of seizing the United States
arsenal in Pittsburg only for the want of sufficient force.
It is said that this insurrection, at one time, numbered seven
thousand men in arms. There was great allowance to be
made for these people. Most of them were from the north
of Ireland, where they had been accustomed both to drink
whisky and hate excise laws. This excise law, though war-
ranted by the Constitution (Art. I, Sec. 8), and uniform
throughout the United States, bore hard on the people of
the West, who were so remote from market that whisky was
the only form in which their produce could be transported
and turned to money. They were urged on by ambitious
demagogues, and refused to wait for the constitutional rem-
edy—flew to arms, and defied the Federal Government. The
536 THE RIGHT OF SECESSION.

excise law was modified to relieve them from their burdens ;
still they resisted. Washington sent out commissioners to re-
monstrate with them; still they resisted. Washington’s lan-
guage, on this occasion, was worthy of a great ruler: “Cost
what it may, the people must be taught to obey the law.” He
called out the militia of New Jersey, Pennsylvania, Mary-
land, and Virginia, put them under the command of General
Henry Lee, then Governor of Virginia, and marched an army
of fourteen thousand men to Pittsburg. As they marched
over the ground on which the insurrectionists paraded but
yesterday, not a dog moved his tongue. The leaders fled to
the Spanish dominions below, and there was an end of in-
surrection, treason and secession. At this day, there is no
spot, in America where the name of Washington is more re-
vered than the spot where this insurrection was put down ;
no people truer to the Constitution and the Union than the
sons and grandsons of these insurrectionists.

In the second era of treason and secession, which camara
during the administration of Mr. Jefferson, military force
was used, by order of the President, to suppress insurrection
and punish treason. Burr had fallen from his pristine glory.
His hopes in the East were blasted. Still,

“To reign was worth ambition, though in hell.”

He came to the West with his head and heart both full
of treason. There was asccond and third project in contem-
plation, if the first should fail; but the primary object was
to divide the Union—to revive and inflame the old preju-
dices of the people in the Mississippi Valley against the peo-
ple of the Atlantic States, disrupt the Union and sct up a
South-western Confederacy.

Burr’s confederate traitor, Gencral Wilkinson, betrayed
him to Mr. Jefferson. The bare attempt at such a thing
by a man of Burr’s sagacity, strongly suggested its possi-
bility. Mr. Jefferson, in sight of danger, did not hold still
THE RIGHT OF SECESSION. 537

for fear of irritating the Western people. He prepared for
the worst. By his order, Governor Tiffen called out the
militia of Ohio, and by armed force intercepted and cap-
tured fourteen of Burr’s transport boats near the mouth of
the Muskingum, for which he received the thanks of the
President. The territorial governor of Louisiana, in like
manner, called out the militia to seize his transports and
intercept his flight. He was arrested, carried to Rich-
mond, Virginia, and there indicted and tried for treason.

By the Constitution, every one accused of a crime is
entitled to a trial in the same State or district where the
crime was committed. By the same instrument, (Art. III,
Sec. 8), treason is confined within very narrow limits:
“Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies,
giving them aid and comfort.” Chief Justice Marshall held
that there must be, not a design merely, but some overt act
of treason to sustain an indictment. The Government failed
to prove any overt act of war against the United States
within the district of Virginia, and Burr was acquitted.
The moral effect was the same as if he had heen hanged.
The public were advertised of the estimate in which trai-
tors were held, and treason did not show her head till 1832.

The third era of treason and secession occurred in 1832,
during the administration of General Jackson. The osten-
sible subject of complaint then, was the revenue laws, which,
as was alleged, were oppressive to the people of the planting
States. General Jackson believed this was a mere pretext
on the part of the leaders. Whether he was right in this I
will not undertake to say. Whatever the grievance was,
they resorted for their remedy to secession and violence.
They pulled down from the custom-house at Charleston the
flag of the Union, and trampled it under their fect, and
passed laws in the Legislature of South Carolina to resist
538 THE RIGHT OF SECESSION.

the Federal Government in the collection of the revenues.
General Jackson, following the example of Washington, re-
monstrated earnestly with tbem against their lawless conduct ;
but when they refused to listen to reason, he ordered Gen-
eral Scott, with a garrison of cight hundred men, to Fort
Moultrie, to see that the laws were faithfully executed. If,
by transmigration, the soul of Andrew Jackson had occu-
pied the body of James Buchanan, we would have had peace
to-day.

Gloomy as is the aspect of affairs, I still think we shall
have peace. I do not think a gun will be fired along the
Gulf. The Federal Administration, as indicated by the In-
augural, is kind, conciliatory and wise. The President ad-
vises those who are disaffected to take further time, and reflect
more seriously upon the consequences of the provisional steps
they have taken. And while the Gulf States are thus tak-
ing time to reflect, let us see what can be done toward a fair,
honorable and just understanding with the Border States.

I come now to speak of the reciprocal duties of the States
toward each other. And, first, as to the vexed question of
slavery. Whether, in the abstract, it is right or wrong—
whether the institution is Divine or human, is not now the
question. The framers of the Federal Constitution found it
here, and left it here; and, inasmuch as it did not exist in
some of the States, and might be abolished in others, they
fixed the guarantee in the Constitution, that escaping slaves
should be delivered up, on demand, to their masters.

The spirit as well as the letter of this guarantee ought to
be carried out. No good citizen of the United States can
excuse himself from this. He is a bad citizin who goes into
a slave State and excites in’the mind of a slave disobedience
to his master. He is a bad citizen who, by word, or letter,
or printed papers, persuades a slave to escape from his mas-
ter. He is a bad citizen who knowingly assists a slave to
THE RIGHT OF SECESSION, 539

escape from his master. He is a bad citizen who attempts
to baffle or defeat a master in the recapture of his slave.
And when Congress makes a law for the recapture of slaves,
which is held by the supreme judiciary of the United States
to be constitutional, he is a bad citizen who resists the exe-
cution of that law. And a man whose conscience will not
allow him, in good faith, to execute the law, ought not to
hold the office of judge, commissioner, or marshal under the
Federal Government. Thus much for the duty of the citizen.

The same rule of good faith and constitutional obligation
forbids the Legislature of any State to pass laws to thwart
or defeat acts of Congress, which, by the terms of the Con-
stitution, are the supreme laws of the land. And, though
all such State legislation is unconstitutional and void, still
it is offensive, and has a powerful tendency to destroy the
good feeling between the States, and weaken the bonds of
the Union. Such acts are inconsideratcly passed, and ought
to be repealed. No considerations of State or personal pride
ought to stand in the way of such an act of obedience to the
supreme law of the land. No man who nullifics the supreme
laws himself, ought to condemn others for nullifying them.
The Northern nullificr is no better in principle than the
Southern nullifier. They only differ in degree.

But there are reciprocal duties which ought to be per-
formed by the slaveholding States. If, as has been said,
and as I partly believe, busy-bodies from the free States
go into the slave States to excite discontents, and stir up
insurrections among the slaves, it is their privilege; it is
their duty, to pass such penal laws as may remedy the
evil, and see to it that such laws are enforced. But in
these, as in all other cases of crime, the party accused
should have a fair and impartial trial. The practice, too
common in the distant South, of seizing on citizens of the
free States, engaged in their lawful business, and putting
540 THE RIGHT OF SECESSION.

some to death, and subjecting others to ignominious pun-
ishments on mere suspicion of being Abolitionists, makes
more Abolitionists in one year than all the lectures which
could be delivered in seven. Offenses of this kind, com-
mitted in the Gulf States, do great injury to the rights of
our neighbors in the Border States. Mcn in the free States
are but men, and it is in vain to attempt to reconcile them
to outrages of this kind. The man whose brother or kins-
man has been ignominiously murdered, will not be persuaded
to forgive and forget. All the laws in the universe won’t
make a man. quiet under such circumstances.

And then there are some things which our Southern breth-
ren must not expect, because, in the nature of things, they
are impossible. Among these is the favorite idea of Mr.
Calhoun, that there must be equality of representation in
Congress, at least in the Senate, between the slaveholding
and non-slaveholding States. _, The Constitution, as it is, for
the purposes of apportionment, attaches the character of per-.
sons to property, and gives to every five slaves the weight
of three free men. This is all they can expect in that di-
rection. The other idea is inadmissible, on every principle
of popular government, and runs back into the Rotten Bor-
ough system of England. As the people swell in numbers,
they overflow and form new States, and by this: means, not
only the number of the people, but the number of States, is

greater North than South. The reasons of this inequality
are natural and plain. ’ First, The people of the free States
marry younger, and bring up more children, than the peo-
ple of the slave States. Second, There is more emigration
from the slave States to the free, than from the free States
to the slave. Third, The influx of population from abroad
runs more into the free than into the slave States. In
1860, the population of the free States outnumbered that
of the slave States two to onc. In 1880 they will outnum-
THE RIGHT OF SECESSION. 541

ber them three to one. And, should a disruption of the
Union take place, this change will come as early as 1870,

The great democratic principle, that the majority must
rule, cannot be smothered, unless we run into anarchy, and
from thence into despotism. What remains to us on both
sides is to settle definitely the line between ns, and leave
each other, and each other’s institutions alone. With this,
and a strict construction of the Constitution, no harm can
befall any section of the country.

All attempts to amend the Constitution at this time, I
think, are futile, for the simple reason that a vote of two-
thirds cannot now be had. Then leave the Constitution
alone. It is the temple of liberty in which our fathers
worshiped ; and all attempts to change or remodel it seem
to me like picking a frustum from a granite column, and
filling its place with brickbats. If the legislation under the
Constitution is insufficient for the purposes of justice, peace
and harmony, let that be amended.

Another duty we owe each other on both sides is, to speak
of each other according to some measure of decency. The
man on my right who steals my horses, is not half so bad a
neighbor as the man on my left who slanders me and my
household. We dwellers in the North, and you dwellers in
the South, must quit lying about each other—quit calling each
other hard names, quit accusing each other of crimes of
which neither of us are guilty.

But, unless the printing-press undertakes this reform, we
are undone. In this city there is one press which could
accomplish a world of good—enough to purchase absolution
for the sins of several years past, and indulgences of several
years to come. I would not disparage the other journals of:
the city, but all the rest are helpless in the South, because
not read in the South.

Tf this journal would forget, for awhile, that it has a party
’

542 THE RIGHT OF SECESSION.

to save, and remember that it might be the means of saving
a country; if it would put aside all the virulence of party,
and earnestly tell the South the truth as to the real state of
public sentiment in the North, among all parties—tell them
that the idea that the Democracy are pro-slavery men is all
a delusion—that the idea that the Republicans are Abolition-
ists is all a delusion—tell them neither one party nor the
other desire to interfere with slavery as a domestic institu-
tion—that both of them are heartily tired of discussions on
that subject, and would both be glad if the word slave should
never be heard again in Congress—that the Abolitionists,
whom they seem so much to abhor, are but the Northern
nullifiers—that the nullifiers in the South are but the South-
ern abolitionists—men of kindred spirits toiling at either
end of the lever to work out the same common mischief.
The result could not but be happy. I know of no journal
in Ohio, except this one, which could venture on such a
work with any hope of success, and, therefore, I make the
suggestion in all kindness. All the other journals can do is
to pour cold water on the heads of fanatics at home, and
keep the fever of party down, till time and wiser counsels
shall restore the nation to peace.

Young gentlemen, you must pardon what I am now about
to say. You have stouter hearts and stronger hands to de-
fend the Union, if the day of trial should come, but none of
you love it so well. T am longer acquainted with it, and,
therefore, love it better. It is over half a century since mv
venerable father threaded the gaps of the Alleghany mount-
ains, and took up his abode in Ohio. I first found myself
in a log-cabin in the wilderness, where night was made hid-
eous by the howling of the wolf, and the paths of the woods
dangerous by the prowling of savage beasts. J have seen
and felt all the poverty, privations, hardships and toils of
backwoods life, when shabby little pack-horses did the work
-THE RIGHT OF SECESSION. 543

of commerce, now performed by canals, steamboats and rail-
roads. There were in those days no cities, no crowded marts,
no splendid feats and shows to dazzle the vision of poor boys.
We had but two wonderful things to gaze upon and admire:
the Sun shining in the heavens above, and the FLac or THE
Uxton floating over our heads. As I grew older and more
thoughtful, I still associated these wonders. I looked upon
the sun and said: This isthe lamp which God in his power
has hung out to the universe. I looked upon our National
banner and said: This is the beacon-light which God in his
providence has hung out to the struggling, bewildered and
faint-hearted votaries of freedom throughout the world. I
hoped their lights would last forever, or be extinguished to-

gether, and blend harmoniously in the texture of the “

new
heaven and the new earth.”

I am not now without hope. We shall still see brighter
days. The tempests and darkness which deform the face of
our country will blow over, and.in a brighter sky we shall
see the morning Sun and the National banner both arising

to their meridian splendor.
35