UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES 
 
 THE GIFT OF 
 
 MAY TREAT MORRISON 
 
 IN MEMORY OF 
 
 ALEXANDER F MORRISON
 
 NISI PRIUS
 
 NISI PRIUS 
 
 BY 
 
 J. C. BROWDER 
 ' 
 
 OF THE LOGAN COUNTY <KY.) BAR 
 
 NEW YORK 
 THE NEALE PUBLISHING COMPANY 
 
 1912
 
 Copyright, 191*, by 
 
 The Neale Publishing Company
 
 TO 
 THE COUNTRY LAWYER 
 
 A SPECIALIST IN ALL BRANCHES OF A VAST 
 
 AND ILLIMITABLE SCIENCE, THESE PAGES ARE 
 
 AFFECTIONATELY INSCRIBED 
 
 OS 
 
 I 
 
 K. 
 
 2 
 u. 
 O 
 
 4SOG3G
 
 PREFACE 
 
 To the Bench and Bar these desultory chapters are, 
 with more or less trepidation, respectfully submit 
 ted. They were prepared at odd moments and un 
 der circumstances well calculated to hinder and im 
 pair consistent effort in such a line of endeavor. 
 It will be accepted as axiomatic that the Law is a 
 jealous mistress and will not brook a division of 
 homage. Even as one cannot serve God and Mam 
 mon, you cannot serve the Law and anything 
 else. This is said, not by way of apology, but in 
 explanation of the many imperfections and short 
 comings which have found place in this volume. 
 
 As to the venue, no less than to the personal 
 identity of those who appear in this chronicle, a 
 prefatory word may not be out of place. 
 
 Mecklenberg County will not be found on the 
 map of Kentucky; nor does its seat of government, 
 the town of Greenwood, appear there. Neverthe 
 less, the author gives assurance most respectfully 
 that both Mecklenberg County and the town of 
 Greenwood are very much in Kentucky, and have 
 intertwined themselves into her history from the 
 early infancy of the Commonwealth. 
 
 Touching the personal identity of those who 
 grace the pages of this history, a more difficult 
 and delicate task is presented. Realism and Fic 
 tion by joint and common effort have created them. 
 That there may be no offense, in case any individ-
 
 PREFACE 
 
 ual should look into this mirror and recognize him 
 self, it is here said that those things that compli 
 ment are but Realism, while all else is Fiction pure 
 and simple. 
 
 J. C. B. 
 
 RUSSELLVILLE, KY,, 
 
 June, 1912.
 
 CHAPTER I 
 
 THE June term of the Mecklenberg County Circuit 
 Court convened on the first Monday in that month 
 of months. As a rule the term did not extend over 
 a period greater than three weeks, although under 
 the law of the Commonwealth four weeks were al 
 lotted for that sitting of the court. At the time of 
 this chronicle there was no extraordinary litigation 
 on the docket calculated to extend the term be 
 yond its usual period. Its duration, however, de 
 pended upon the dispatch of business and the many 
 other innumerable contingencies so well understood 
 by the profession and so thoroughly unappreciated 
 and contemned by the laity. 
 
 On this first Monday in June, in a good year 
 that shall be nameless, all was in readiness for the 
 opening of court. Old Uncle Toby, the janitor of 
 the somewhat ancient temple of justice, had, as was 
 his unbroken custom thrice each year, swept out 
 the building, sprinkled fresh water over the 
 gummed plank floor, and added new sawdust to 
 many small square wooden boxes, which useful and 
 time-honored receptacles stood ready and willing 
 to receive and absorb an unlimited quantity of am 
 ber fluid aimed at them with uncommon accuracy 
 by lawyers, parties, officers, and spectators. Un 
 cle Toby was a decrepit and bent old darkey be 
 longing to that period in the nation's history styled 
 by some philosophers as our elder and better day.
 
 io NISI PRIUS 
 
 He had .held. fris .important position many, many 
 years.,*'. jKfe pfece.cf himself- -.en somewhat of a lofty 
 pedestal and, once having reached the topmost 
 height, did not scruple to scorn the base level from 
 which he had ascended. The other darkies in town 
 regarded circuit court as a thing consisting of the 
 judge, the Commonwealth's attorney, and Uncle 
 Toby. It must be owned that Uncle Toby's bear 
 ing and his disdain of the members of his own race 
 were responsible for this view among them. He 
 had served many a day in his important post. The 
 younger members of the bar could not recall the 
 court-house at all without connecting Uncle Toby 
 with it. Those at the bar who had reached middle 
 age knew him at the time they were licensed, and 
 the oldest practitioners said that he was there when 
 they began their careers back in the obscure past. 
 
 This first Monday was a typical June day in 
 Kentucky. The freshening breeze stirred softly 
 through the great oaks and maples in the old court 
 house yard. The song of birds came from the thick 
 foliage of the clustering trees, and the cooling shade 
 afforded an inviting resting place. 
 
 These trees, aged sentinels of this house of law, 
 by their very dignity commanded the visitor to 
 pause and reflect. Throughout the fleeting years 
 they had been dumb auditors to tragedy and com 
 edy alike, and through their great, overhanging 
 boughs had been wafted to high heaven the mighty, 
 irresistible eloquence of forensic orator and advo 
 cate. In the iron days of ante-bellum tempests im 
 passioned appeals, that made the old rafters shake,
 
 NISI PRIUS ii 
 
 had echoed through their soft and quiet leaves. 
 Human life had been demanded of twelve men, 
 sitting in a semi-circle, in thunder tones; gallows 
 had yawned and murdered under their protecting 
 shade. Yet, unmoved had they stood, oblivious 
 to the shock of many a winter's blast and unre 
 sponsive to eloquence and oratory in days when 
 there was oratory, the kind that made men for 
 sake home and perish, smilingly, in the din and 
 roar of war. 
 
 People were coming into town, horse-back, mule- 
 back, in wagons, buggies, and in other more or 
 less motley-looking vehicles. The public water 
 sprinkler had performed its morning service, and 
 the main street, which ran through the center of 
 the town, had a fresh and clean and cool appear 
 ance. The hitching rail, directly in front of the 
 court-house, on the public square, an unmistakable 
 monument of another age, was already being taken 
 advantage of, and lazy mules and horses were idly 
 lashing ambitious flies with their busy tails. 
 
 The presiding judge resided in another county 
 in the district. He was not due to arrive in Green 
 wood until noon, the train on which he usually 
 came being due at that hour. He reached there at 
 twelve o'clock, had dinner with his friend and host, 
 Jim Hanna, the dignified and altogether unique 
 proprietor of the " best hotel in town," opened 
 court at one o'clock, organized and charged the 
 grand jury, called and set for trial the common law 
 docket, heard a few preliminary motions and ad 
 journed court until the following day, when the
 
 12 NISI PRIUS 
 
 usual grind began, commencing with, and complet 
 ing, the criminal docket before going into the civil 
 causes. 
 
 Judge Cole and Captain Henry, two leaders of 
 the local bar, each with a practice more or less 
 grand, peculiar, and unique, had been engaged in 
 their usual occupation of pitching horseshoes in the 
 court-house yard. It occurred to Judge Cole, after 
 he had worsted his worthy opponent in several 
 contests, that he had not yet prepared his " trial 
 docket." 
 
 He therefore straightway repaired to the office 
 of the circuit court clerk for the purpose of tak 
 ing a memorandum of his cases. He was coun 
 sel in many causes, either expressly or by neces 
 sary implication. The Judge, on reaching the 
 clerk's office, drew from his pocket a small mem 
 orandum book, such as enterprising commercial 
 companies issue and send broadcast as advertise 
 ments, and at once began to jot down his cases, 
 taking with great deliberation the exact style and 
 number of each. 
 
 Now the Judge would never rise to his feet and 
 make a motion in any cause unless he had his " pri 
 vate docket " in his hand. When at motion hour 
 any member of the bar entered a motion of any 
 kind, in any case in which the Judge chanced to be 
 counsel, it was his invariable and unbroken habit 
 to remark, adjusting his rather wise appearing 
 glasses : " Pardon me, your Honor ; allow me to 
 examine my private docket yes, yes, I object to 
 that motion, may it please the Court." So many,
 
 NISI PRIUS 13 
 
 many times had the presiding judge heard this 
 declaration coming from the profound Cole, that 
 his sense of humor, of which he had more than a 
 fair proportion, prompted him on several occasions 
 to inquire of the attorney : " What is the ground 
 of the objection?" Removing his glasses and 
 looking intently out the window, with knitted brow 
 Judge Cole uniformly replied, with something of a 
 bow: " My grounds of objection, may it please the 
 Court, are that the motion is not well taken." At 
 which utterance the Court frequently was forced to 
 seek refuge behind a certain vase with flowers that, 
 thanks to the jailer's wife, was always on the 
 bench. 
 
 Judge Cole, at the time of this narrative, was 
 counsel for the sheriff of the county. The sheriff 
 invariably sought Cole's legal opinion on such im 
 portant matters as preparing his returns on sum 
 mons and subpoenas and certain other complex and 
 profound duties devolving upon the shoulders of 
 that high functionary. Captain Henry had been 
 the official attorney for the preceding sheriff, and 
 that member of the Mecklenberg County bar could 
 not at all appreciate the judgment and wisdom of 
 the present sheriff in the matter of his choice of 
 counsel. Captain Henry had in years agone been 
 the sheriff of the county himself and, as he in 
 variably " surmised," was not only learned in the 
 law as a lawyer, but he had this learning supple 
 mented by experience acquired in the actual admin 
 istration of the shrievalty itself. Judge Cole, how 
 ever, be it said to his credit, had been county judge
 
 14 NISI PRIUS 
 
 years ago and was likewise familiar with all " fiscal 
 matters " connected with the office of sheriff. 
 
 The reader's pardon is asked for dwelling at such 
 length upon Judge Cole and Captain Henry, for 
 there were other members of the bar with whose 
 personality this narrative shall treat and other per 
 sons outside the charmed circle with whom this 
 tale shall deal. But the Judge and the Captain, 
 being persons of no little importance, deserve a 
 place in this history in consonance therewith. 
 
 There was Bill Scott, an attorney who insisted 
 upon looking upon a certain well-known fluid when 
 it was red, and who insisted on imbibing too freely 
 when in the midst of his most " important cause." 
 Years ago, Scott had thrown off the mask and now 
 made no concealment of the fact that he believed 
 in " going after business." When a suit was in 
 stituted, the luckless defendant in some way acci 
 dentally ran across Scott, who by the purest chance 
 had had, not long previous, a case exactly resem 
 bling the one in question, and had actually gained 
 it on a little point that he didn't " put everybody 
 next to." And when an unhappy (or happy) in 
 dividual was injured by some heartless and ruth 
 less octopus, formerly known as corporation, Scott 
 generally heard first the doctor's diagnosis of the 
 injury. If inadvertently no physician had been 
 considered needed by the injured man, very soon 
 Scott had the fellow on his back and had a doctor 
 at his " bed of pain and affliction." It was common 
 talk, and of general acceptance, that Scott had put 
 more men to bed by his wise and prudential coun-
 
 NISI PRIUS 15 
 
 sel than had any physician in active practice in the 
 county. No counsel for the defense in any of Mr. 
 Scott's cases had ever been able to say to a jury, 
 " Why, gentlemen, if this man had been really in 
 jured, why did he not have a doctor and why did 
 he not go to bed ? " Once, years ago, it was re 
 ported, Scott got caught on that proposition but 
 only once, and no more. 
 
 Scott it was, who, at a previous term, had con 
 vulsed the court by a unique and altogether frank 
 request. One fine morning, when motion hour was 
 well under way, it was whispered about the court 
 room that a wreck had occurred at the Illinois 
 Central Railroad depot. Scott, restless and anx 
 ious to get to the scene, was unable to conceal his 
 anxiety. Suddenly he arose and moved the court 
 to suspend for an hour " to give every lawyer a 
 fair chance." 
 
 Passing on to the other members of the bar, 
 there was Colonel Stevens, a splendid type of the 
 Kentucky lawyer. The Colonel had a large and 
 compensating practice, and was counsel for one 
 side or the other in every important case in the 
 county. He numbered banks, coal mines, and rail 
 roads and many others of the soulless in his client 
 age. Lawyers, courts, and the public generally en 
 tertained a high regard for the Colonel both pro 
 fessionally and personally. He eschewed the 
 criminal practice. It was not to his taste. 
 
 Tom Henderson, a younger man, of somewhere 
 near two-and-thirty years, was foremost in that 
 section of the State as. a jury lawyer, and the older
 
 16 NISI PRIUS 
 
 members of the bar looked upon him as of great 
 promise. Born and reared in Kentucky, he had 
 inherited and absorbed a goodly quantity of native 
 Kentucky eloquence and was an orator of great 
 force and weight before any jury or audience. A 
 good common school education, a few years at col 
 lege, rounding out with two years in the law school, 
 had prepared him for the profession. He was the 
 senior member of the firm of Henderson & Brown- 
 low. Brownlow, a quiet, modest, accurate student, 
 was developing into what is known as a first-class 
 office lawyer. He had persistently refused to make 
 a jury speech and so long had he delayed breaking 
 the ice that now what at the beginning would have 
 been a trivial task, was an impossible thing for him 
 to accomplish. As an investigator of authorities 
 and as a pleader he was unexcelled at the bar. 
 The firm of Henderson & Brownlow therefore 
 made a successful and paying combination. 
 
 Marcellus Jumpus, another light, was more of an 
 " advisory counsel " than anything else. He did 
 not attempt to practice a case unassisted. If a mine 
 explosion occurred, Marcellus was early on the 
 scene, confidentially suggesting to bereaved widows 
 and to injured employees that he had a " cer 
 tain fine lawyer, a trial lawyer, in mind, who 
 could take this case and make things hum," and 
 that if he, Marcellus, were given the case he would 
 not only throw his entire soul and head into the 
 case, but he would obtain " able counsel to really 
 take the lead in the court-house, while I do the 
 quiet, valuable work on the outside." Jumpus had
 
 NISI PRIUS 17 
 
 profited by this method on several occasions. He 
 found it a better business getter than practicing 
 alone, and then, of prime importance, he avoided 
 the deep waters at nisi prius. 
 
 Old Judge Thompson, formerly a member of the 
 bar of Harris County, had practiced at the Meck- 
 lenberg County bar for twenty-odd years. He had 
 a receding forehead, a rather small, drawn mouth, 
 and a voice that always kept a high key. He was 
 strong on the ethics of the profession; believed de 
 voutly in the courtesies due from one lawyer to 
 another; never missed a meeting of the Bar Asso 
 ciation, uniformly making several speeches before 
 that body on " the ethics of the profession." Be 
 lieving that it was a courtesy due the court, he 
 always made from three to ten motions at every 
 sitting thereof. He could not be driven from a 
 position unless perchance his opponent happened to 
 be a visiting lawyer, in which event his desire to be 
 courteous to the foreigner almost compelled him 
 to confess the correctness of his adversary's theory. 
 On several occasions he had been chosen special 
 judge in some causes in which the regular judge 
 was disqualified. At these times he assumed the 
 bench with rare dignity and pomp, always wearing 
 a long Prince Albert coat and white waistcoat, and 
 brooking no delays or nonsense in his court, pre 
 serving a pose and decorum that would have put 
 Lord Mansfield to shame. 
 
 In his practice he was noted for citing absent 
 authorities. Invariably he referred to a case " di 
 rectly in point," and that case was always some-
 
 18 NISI PRIUS 
 
 where in " I4th Bush." Many times, when his 
 citation had been challenged by doubting opposing 
 counsel, Judge Thompson would hurry from the 
 court-house post haste to his office, announcing that 
 he would bring back " I4th Bush " containing the 
 case referred to. He never returned. The next 
 morning he explained that he " had lost his mem 
 oranda." 
 
 Tobias Mathews, likewise a member of this bar, 
 was possibly the youngest lawyer there at this time. 
 He had had his license to misrepresent an unsus 
 pecting clientage for about four years, having ob 
 tained a smattering of law at some modern make 
 shift law school, where one year of careless and 
 untrained study prepared the ambitious for the 
 fray. Mathews brought all sorts and conditions 
 of lawsuits. He plunged in, heels over head, and 
 rarely ever wakened until he had passed through 
 the slaughter-house and fallen head first into the 
 open grave and then frequently he did not know 
 what had happened. Mathews sued everything 
 and everybody, and was the busiest and most active 
 of all the lawyers at the bar. He talked inces 
 santly, blinking the while small black eyes that 
 shone from under a narrow brow; but about him 
 was the saving grace of constant good humor, a 
 trait in the profession that covers a multitude of 
 sins. When he made an utterly hopeless motion 
 or suggestion in court, and the bar could not re 
 strain its laughter, nor the Court his amused smile, 
 Mathews smiled with them and sat down, nothing 
 daunted.
 
 NISI PRIUS 19 
 
 Ben Haggard, the Commonwealth's attorney, 
 while he resided in another county in the district, 
 was a constant and regular attendant *upon the 
 court, and therefore ex-officio a member of the 
 Mecklenberg County bar. Haggard was a man of 
 striking and handsome personality, an able advo 
 cate, a clean officer, and popular for his strong and 
 vigorous enforcement of the law and his sense of 
 justice manifest on all occasions. He usually 
 came with the presiding judge at the opening of 
 the term, completed the criminal docket, and re 
 turned to his home county. 
 
 Judge Thomas Lowden, the judge of the Sev 
 enth Judicial District, who presided over the des 
 tinies of the Mecklenberg Circuit Court, was an 
 ideal trial judge. He was of average stature, clean 
 shaven, attractive in personal appearance, and 
 looked the jurist from head to foot. To Judge 
 Lowden was given a finely developed sense of 
 what lawyers call equity. In no case was he ad 
 vocate, but in every case he was judge. He had 
 a splendid education and a splendid legal mind; 
 was thoroughly familiar with all rules of practice, 
 and doubtless knew more of the science of the pro 
 fession than any lawyer in the district. Notwith 
 standing his learning and profound ability as a 
 judge, he was a sociable and most excellent com 
 panion, and was possessed of a rare and finely cul 
 tivated sense of humor. In a judge this is an 
 oasis in the desert. It prevents him from develop 
 ing into dry parchment and preserves his soul and 
 heart.
 
 20 NISI PRIUS 
 
 The jailer was one Sam Henry, a cousin of 
 Captain Henry. Sam had held the post for long 
 years. No man in the county could beat him in 
 the elections. He could kiss more babies and 
 shake more hands than any four men in the county. 
 In addition to this, there was added an unanswer 
 able qualification for public office, to-wit, he was 
 crippled. 
 
 Fent Bascom, the sheriff of the county, was a 
 long, blank-looking individual, who won his office 
 on the ground of his " fine nerve." It was said of 
 Fent that he would fight a tree full of wildcats 
 with his right hand tied behind him. In a repub 
 lic or democracy the electorate cannot resist that. 
 It was so in Greece, even as it is now. 
 
 Tom New was the circuit court clerk. Tom was 
 a wonder. He was perhaps fifty years of age, 
 short of stature, clean shaven, and wore glasses 
 and invariably looked over them. His legs bowed 
 in, so that he must have been knock-kneed. He 
 smoked a pipe constantly. He gave gratuitious ad 
 vice to every litigant in his court, and had he been 
 as wise in reality as he incessantly posed, Solomon 
 would have been as naught in comparison. When 
 he read his orders at the morning session he would 
 look over his silver-rimmed spectacles in the direc 
 tion of the Court, as if to say, " Haven't you got 
 a great clerk ? " When he made what provincial 
 counsel call a " break," that is, some inexcusable 
 mistake, he was not daunted. The laughter of the 
 attorneys, Court, and spectators had no terrors for 
 him. He promptly, with flexible veracity, in-
 
 NISI PRIUS 21 
 
 vented some excuse, usually attaching all the blame 
 to some lawyer or officer who, be it said, was al 
 ways absent. These excuses were transparent in 
 ventions, pierced by everybody, but New thought 
 all hands accepted them, and was content. Such 
 was his lack of penetration, so little of it was 
 vouchsafed to him, that he imagined his observers 
 had none. He blundered and blustered, and doing 
 so was self-persuaded that he was the best of clerks. 
 When unexpectedly called upon to administer an 
 oath to witness or jury he invariably knocked over 
 a chair, two or three order books, and concluded 
 the performance by using the wrong oath. He 
 would swear the witness to try the issue and the 
 jury to tell the truth. He was on both sides of 
 every case tried in his court. The plaintiff appre 
 ciated New's hope of his success. The defendant 
 had the same gratitude. When occasionally he 
 was confronted by them both, instead of being 
 taken back he only laughed and said he really hoped 
 for each good friend's success. On public days he 
 would invite twenty voters home to dine with him, 
 proceed homeward alone, via an unusual route, and 
 later would upbraid his disappointed guests, swear 
 ing they must have concealed themselves, as he 
 looked for them all over town. 
 
 He was chosen clerk for the simple reason, really, 
 that he ran for the office year in and year out un 
 til the electorate, exhausted and wearied at his 
 persistency, elected him for the purpose of getting 
 rid of him. Such was New, with his legs curved 
 the wrong way. When you looked at him you had
 
 22 NISI PRIUS 
 
 a feeling of regret and sadness. Sadness because 
 Charles Dickens never knew him. 
 
 There were other lawyers and other persons at 
 this term of court, but enough has been said con 
 cerning the chief characters with whom this his 
 tory shall deal. The others will be introduced to 
 the gentle reader as we progress. The dramatis 
 persona in chief have been presented. 
 
 The stage is set, the actors costumed and ready. 
 At a tinkle of the bell the curtain shall rise. It is 
 to be hoped that pit and dome can see and hear. 
 The thing is presented to you, O critical reader, 
 just as it transpired. Whether the lawyer was 
 profoundly learned or profoundly ignorant, your 
 own learning must decide. The chronicle will not 
 so specify.
 
 CHAPTER II 
 
 IT was just twelve o'clock when Judge Lowden 
 alighted from the 'bus or carry-all in front of the 
 Hanna House. Several visiting lawyers, members 
 of the grand jury for that term, and a handful of 
 traveling salesmen likewise tumbled out of the 
 ancient vehicle and made for the hotel register. 
 The hotel proprietor, Mr. James Hanna, addressed 
 by everybody simply as " Jim," and referred to by 
 everybody as " Old Jim," was at the door of his 
 well-known hostelry, wearing his usual smile, which 
 peeped from under a rather bristly, sandy mus 
 tache. 
 
 "Hello, Judge! How's the Court this time?" 
 At the same time extending his long arm, shaking 
 Judge Lowden warmly by the hand. 
 
 " Middlin', Jim, thank you. How's the wife 
 and youngsters ? " 
 
 " Well and hungry as usual. Judge, twenty- 
 eight will be vacant by supper. There's a travel 
 ing man in there now, but he gets out this even 
 ing. You can just leave your suit-case in Sarah's 
 room this evening." 
 
 Here a white-eyed, pearly-toothed darkey ap 
 peared at the rear door of the office and proceeded 
 loudly to ring a large bell, announcing the noon 
 day meal. 
 
 " Gentlemen, the feast is spread in the banquet 
 23
 
 24 NISI PRIUS 
 
 hall. Those who hunger and thirst may proceed 
 to that room." 
 
 This was Old Jim's regular remark each day at 
 dinner. He had a solitary waiter a black, real 
 black, darkey who went by the name of Fox. Fox 
 had no mind at all. He did not need it in his 
 vocation. His intellectual machinery operated 
 on a limited scale only and consisted in " How 
 will you have your eggs? Coffee, milk, or wa 
 ter?" That was the extent of his conversational 
 powers. When a smart traveling salesman curtly 
 replied, " Straight up, and coffee," Fox invariably 
 brought them boiled, with a glass of milk. But, 
 with all these shortcomings, Fox was possessed of 
 one divine gift, a gift not dissimilar to one pos 
 sessed by Judge Cole in his arguments to juries 
 staying qualities. That blessed accomplishment 
 covered more than a multitude of sins surely with 
 Fox, possibly with Judge Cole. 
 
 In passing from the hotel office to the dining- 
 room, one had to enter through a narrow hallway 
 or passageway, where was found a wash basin, 
 a bucket of water, and a towel which hung 
 from a rack on the wall. This towel was of doubt 
 ful age and unquestionably was a veteran in the 
 business. A small vacant room opened into this 
 little passageway. 
 
 As Judge Lowden passed on his way to the din 
 ing-room Old Jim, with a twinkle in his eye, which 
 had a well-fixed significance to the Court, looked 
 out from the vacant room and beckoned to the 
 Judge, with the remark that he had a little " fluid,"
 
 NISI PRIUS 25 
 
 and inquired if the Court would care to have a 
 " nip " before dining. The Judge replied, with 
 thanks, in the negative. If one could have wit 
 nessed what followed he would have observed Old 
 Jim happily drawing a cork and muttering to him 
 self the words : " I can't figure out how the Court 
 can decline a drink." 
 
 Now, be it said here at this stage that Old Jim 
 was beyond the meridian of life, and his friends 
 and enemies agreed that in his day he had con 
 sumed enough " licker " to float a battle-ship. He 
 was of the iron type, and had a constitution like 
 an ox. When he had " too much aboard " he had 
 the good sense to disappear until fully recuperated. 
 When he had the due and proper quantity, which 
 philosophers have never yet been able exactly to 
 measure, he was a genius of rare type, overflowing 
 with anecdotes, told with wonderful charm and 
 accomplishment. Sometimes he swore right nobly, 
 and though he admitted to the charge of having his 
 religion in his wife's name, yet he was in common 
 parlance " as straight as a string " and was never 
 known to have done a questionable act or injured 
 friend or foe. 
 
 Judge Lowden having completed his repast, now 
 sought his usual seat under a bending water maple 
 that overhung the pavement in front of the hotel 
 and, lighting a cigar, was engaged in passing away 
 the few remaining moments before the time for 
 the opening of court. Hanna, drawing a chair 
 near the Judge, began, as was his wont, to recite 
 different bits of news and events since the last
 
 26 NISI PRIUS 
 
 term, directly leading up to a present smallpox 
 alarm, which had threatened to require the post 
 ponement of the entire term of court. The Judge, 
 some week or ten days previous to the convening 
 of the term, had been informed fully as to the con 
 ditions, and after careful inquiry and mature delib 
 eration had concluded that the scare was much ex 
 aggerated, and had determined to hold the term as 
 usual. He reached the conclusion that the County 
 Board of Health was unduly exercised, and that it 
 had overestimated and magnified the whole situa 
 tion, due, possibly to an exaggerated idea of its 
 own importance. In fine and in short, nobody save 
 the members of that wise body had taken the mat 
 ter seriously, an attitude the health board could 
 not at all appreciate or comprehend. 
 
 This smallpox scare was the topic uppermost in 
 Jim's mind, for the very excellent and all-sufficient 
 reason that had the opinions of the board been 
 taken seriously, their counsel heeded, and proper 
 quarantine regulations established, travel in and 
 out of Greenwood would have been light and the 
 earnings of Old Jim's hotel would have been cor 
 respondingly reduced. This potent fact, coupled 
 with Jim's ancient and natural political differences 
 with the chief members of the board, made it an 
 agreeable and easy task for him to join in the gen 
 eral ridicule and to enjoy the discomfiture of the 
 earnest advocates of universal vaccination and 
 strict quarantine. Thus he opened the subject: 
 
 " Judge, we have been havin' hell with the Board 
 of Health since you were here last February. Old
 
 NISI PRIUS 27 
 
 Doctor Bowmer has been tearing his shirt. He 
 says the people don't treat the board with due re 
 spect. You know the old Doc, well, he's dignity 
 itself, and he can't figure it out why the people 
 don't obey his sweeping order about vaccination. 
 It's a great story. But there's the court-house bell 
 and I'll have to tell you about it later." 
 
 Responsive to the ringing bell, Judge Lowden 
 arose and made his way to the court-house. The 
 members of the bar were seated about in a semi 
 circle, Judge Cole, glasses adjusted, scanning his 
 " private docket " ; Captain Henry, freshly shaven, 
 with papers protruding from every visible pocket; 
 Bill Scott, looking as if he had not had a drink for 
 thirty days, abusing the clerk for losing a record 
 in an " important case " in which he was counsel. 
 Colonel Stevens was not present ; but with that one 
 exception the entire membership of the bar occu 
 pied their places when the Judge entered. 
 
 " Mr. Clerk, call the grand jury," came from 
 the bench, and the June term of the Mecklenberg 
 Circuit Court was under way. 
 
 On the voir dire the usual routine of questions 
 and answers were put, the Court assuming the mo 
 notonous task of qualifying the members of the 
 grand jury. The archaic and now ridiculous ques 
 tions relating to keepers of taverns, the one relat 
 ing to " horse, jack, or bull " were put and an 
 swered. In replying to the interrogatory as to 
 whether any member of the panel was a civil offi 
 cer, one dignified, magnificent-looking old farmer, 
 one of the most prominent men in the county, said
 
 28 NISI PRIUS 
 
 slowly, " Jedge, I'm gardeen for a minor heir." 
 He was chosen and was the balance wheel of the 
 jury such was his native sense. Monarchies, 
 despotisms, plutocracies, take note of this and trust 
 your plain citizenry. 
 
 Accepting some excuses, denying others, order 
 ing the summoning of several by-standers to com 
 plete the panel, the twelve " inquisitive gentlemen " 
 were soon in the jury box and were listening, with 
 more or less interest and appreciation, to a clear 
 and excellent charge, in which their duties were 
 defined and in which suggestions of the method of 
 their work were made. Many penal statutes were 
 directly pointed out to them ; others referred to gen 
 erally. They were told impressively to know no 
 friends and remember no enemies; that the salva 
 tion and endurance of the Commonwealth depended 
 upon their duty being done fearlessly and impar 
 tially; that prosecutions must originate with their 
 action and that theirs was a grave and serious re 
 sponsibility. 
 
 Near the conclusion of the charge it was ob 
 served that Doctor Bowmer was gradually nearing 
 the bench. He was advancing by small creeps. 
 He had written to the Judge before his coming to 
 Greenwood, telling him of the flagrant violation 
 of the laws relating to vaccination, naming many 
 specific cases, with the request that the grand jury 
 be charged especially as to these gross infractions 
 of the law. He had sat there and heard the Court's 
 charge, and thus far no mention had been made of 
 this most serious subject. He was visibly annoyed.
 
 NISI PRIUS 29 
 
 As the Judge grew nearer and nearer to the end of 
 his admonition, Dr. Bowmer's anxiety increased. 
 He grew nearer and nearer to the Judge. He was 
 now quietly and noiselessly approaching the Bench. 
 When the Judge reached a pause in his lecture, Dr. 
 Bowmer arose and whispered to him, " Tell 'em 
 about the Board of Health." The Judge, very 
 quietly and with something of a chill in his voice, 
 said to the anxious doctor : " Doctor, take a seat 
 outside the bar rail," and without any mention of 
 the Board of Health or smallpox or vaccination 
 shortly brought his charge to an end with " I will 
 appoint Mr. Hardy foreman of this grand jury. 
 Mr. Sheriff, conduct them to their jury room." 
 Whereupon the twelve members of the inquisitorial 
 body slowly filed out of the court-room, not before, 
 however, Mr. Hardy approached the court with 
 the excuse that an older or more experienced man 
 should be foreman, to which the judge only smiled 
 and said very kindly : " We will afford you an op 
 portunity to acquire some experience." 
 
 The common law docket was then passed to the 
 Judge and he began the calling of cases, suggest 
 ing to counsel present that they indicate what cases 
 would likely be tried and those that would not be 
 tried, so that he could set the docket for jury trials. 
 As was usual on the first day, every case was con 
 sidered as certain to be tried. The first case 
 called brought Judge Cole to his feet, moving the 
 Court that it be dismissed without prejudice. Now 
 Captain Henry was opposing counsel, and he ob 
 jected, for the defendant, to the case being dis-
 
 30 NISI PRIUS 
 
 missed. A strange smile lighted up the face of the 
 Judge. He queried Captain Henry and asked him 
 how or by what rule of practice he could prevent 
 a plaintiff from dismissing his own suit, to which 
 the Captain replied: 
 
 " If the Court please, this suit has been on this 
 docket for a year. We are ready for trial. They 
 are running. We've driven them to cover. Now, 
 after the pleadings are all made up and the case 
 prepared for trial, it's a great injustice to the de 
 fendant to simply throw the case out of court. 
 Under the constitution we are entitled to a trial, 
 and we now demand a trial. Ordinarily, I believe 
 in extending all courtesy to opposing counsel, but 
 in this case, sir, we will neither give nor ask quar 
 ter. We want it practiced strictly by the Code and 
 under the constitution." 
 
 There being no jury business for that afternoon, 
 the Judge, who sustained himself by the humor of 
 the practice, treated these suggestions as serious, 
 and called upon Judge Cole to know what his views 
 were on the subject. Cole, quickly seeing the gen 
 eral smile that pervaded the bar when Captain 
 Henry made his point, knew that the Captain had 
 made a fool of himself, but really did not know in 
 just what particular. He knew enough, however, 
 to warrant him in ridiculing his worthy opponent, 
 trusting to the accuracy of the general smile that 
 went the rounds when the Captain resumed his 
 seat. Let it be here said that Judge Cole was an 
 adept in the art of catching on in an instant. He 
 arose with a smile of scorn on his lips, adjusted his
 
 NISI PRIUS 31 
 
 glasses, looked over his " private docket " and, ad 
 dressing the Bench, said : 
 
 " May it please the Court, for many years I have 
 practiced at this bar. I never heard of such a sug 
 gestion before the beginning of the trial. No jury 
 has been chosen ; no witness has appeared, and now, 
 to-day, the first day of the term, I come and move 
 to dismiss this case without prejudice. I have that 
 right at this time. I will admit that had I waited 
 until to-morrow or the next day or until the case 
 had been set down for trial there would be a grave 
 question presented whether we had this right >a 
 very serious question would then arise; but at this 
 stage Captain Henry's point is amusing." 
 
 The Judge looked at Captain Henry, who was 
 turning very rapidly the leaves of the Code. 
 The Captain, taking the look to be an invitation to 
 proceed with the discussion, arose and with a 
 freezing accent in his voice and more or less of 
 contempt in his expression, said: 
 
 " I desire to remind Judge Cole of the fact that 
 this is not a magistrate's court that we are in. I 
 concede that before a justice of the peace the gen 
 tleman's point might receive serious consideration. 
 I have here the Constitution of the State, the Code 
 of Practice, and the Kentucky Statutes. I have 
 examined all of them " his voice here beginning 
 to rise, indicating that a speech was coming 
 " and, sir, I am here to say that we are entitled to 
 a! trial of this cause. Will Mr. Cole I cannot say 
 Judge Cole now will Mr. Cole take issue with the 
 Constitution? It guarantees to every man charged
 
 32 NISI PRIUS 
 
 with crime a speedy trial. Not a dismissal, which 
 is nothing, but a trial, a speedy trial. The Bill 
 of Human Rights at the very start of the Consti 
 tution says so; all the books say so. Will counsel 
 no, pardon me, will the gentleman deny that 
 
 authority? I make the point " 
 
 He was here interrupted by Judge Cole, who 
 arose and said : " If the Court please, I have this 
 case down on my private docket. It is the ca?,e of 
 Sylvester Dupoyster v. Finis Blacklock, and is num 
 ber 2645, Common Law. Nobody is charged with 
 crime in this case. This is a civil suit for money 
 we claim to be due us. Counsel talks as if it were 
 an indictment and I was the Commonwealth's At 
 torney. I concede that if this were an indictment 
 and I were the State's Attorney, Captain Henry's 
 remarks would be well founded, for the Consti 
 tution and Code and Statutes all give to a man 
 charged with crime the right to a speedy trial. In 
 such a case the point of Captain Henry would, of 
 course, prevail, but," turning fiercely to Captain 
 Henry, " sir, show me any constitution or code or 
 statutes or decision anywhere demanding any 
 speedy trial in a civil case. On the contrary, such 
 cases are always delayed. Why, sir, I know of 
 cases on this docket that have been there for years 
 and years, and no complaint has ever been made. 
 I guess I've got the inherent right to dismiss my 
 own case, and I insist on my motion to dismiss. 
 Your Honor can't have any doubt about that 
 proposition. If so, I'm willing to leave it to the 
 crowd here. Every lawyer knows that."
 
 NISI PRIUS 33 
 
 At this juncture Captain Henry looked the part 
 of a defeated general. He was knitting his brows 
 and appeared as wise as possible, but he knew not 
 what to suggest. One of the younger members 
 of the bar was seen to pass the Captain a note, 
 which he hurriedly and slyly read, doing his ut 
 most to conceal the fact from onlookers. As he 
 read, the anxious expression gradually faded from 
 his face; a smile lit up his countenance and he 
 looked the very monarch of all he surveyed. He 
 arose, smiled with infinite pity upon his antagonist, 
 and in a spirit of crushing triumph said to the 
 Court : 
 
 " It seems not to have dawned upon the Judge 
 pardon me, I should say Mr. Cole that I have 
 a counterclaim in my answer in this case. The 
 plaintiff cannot have the whole case dismissed when 
 his adversary has a counterclaim against him. Did 
 I not, Mr. Cole, just a few moments ago remind 
 you of the very manifest fact that this is not the 
 court of a justice of the peace, but the forum of 
 the circuit court? If not, permit me to now call 
 your attention to that fact. Do you follow me?" 
 
 Edmund Burke himself could not have shown 
 the withering satire and sarcasm that Captain 
 Henry manifested after the receipt of the life-sav 
 ing communication from the friendly young law 
 yer, that saved the day for him. Judge Cole, evi 
 dently in despair, was on the verge of surrendering 
 at once, as he did not know how to meet this last 
 sudden and apparently unanswerable thrust. The 
 Court, looking in Judge Cole's direction, discov-
 
 34 NISI PRIUS 
 
 ered him sitting very low in his chair, apparently 
 without any reply ready for Captain Henry. He 
 was slowly turning the leaves of his " private 
 docket," visibly affected by Henry's last blow, but 
 trying to conceal his anxiety. 
 
 " Well, Judge," said the Court, " what have you 
 to say to that last proposition of the Captain's?" 
 
 " There's nothing in the point, if your Honor 
 please. I don't care to draw out the discussion 
 longer. I say there is nothing in the point. I 
 simply desire that my motion be submitted." 
 
 " But," said the Court, " what do you think of 
 the point as to the counterclaim? I want to hear 
 your views on that question." 
 
 " May it please this honorable court " At 
 
 this juncture Judge Cole felt some one pulling at 
 his coat-tail, and, looking around, observed a young 
 lawyer, a visiting attorney from Madisonville, try 
 ing to clandestinely hand him a note. He seized 
 the communication with the frenzy of a dying man 
 and placed it between the leaves of his " private 
 docket " and did it so quickly that only the sharp 
 eyes of the Court and a few of the spectators ob 
 served it. He continued: 
 
 " Pardon me, Judge, permit me to examine my 
 private docket." 
 
 He looked long and closely at his " private 
 docket " and then resuming said, with even more 
 satire and scorn than Captain Henry had employed : 
 
 " The counterclaim mentioned is not in fact any 
 counterclaim at all. My suit is a suit on an open 
 account, consisting of various items, making a to-
 
 NISI PRIUS 35 
 
 tal amount due on the account of $193.50. The 
 defendant files a thing here which he marks an 
 swer and counterclaim, and asks judgment over 
 and against my client for $5.50 alleged damages 
 for alleged slander. Now, I submit that the dam 
 ages are not in liquidation, do not grow or flow out 
 of the matter sued on, and are not a part of the 
 transaction involved in the original lawsuit. 
 And," turning to Captain Henry " speaking of 
 magistrate's courts, it seems you have been hoisted 
 up again on your own spike. The idea of pleading 
 slander damages in counterclaim in a suit on an 
 open account ! Preposterous ! " 
 
 Here Judge Cole resumed his seat in tri 
 umph. Captain Henry was on his feet in an in 
 stant. 
 
 " Judge, the Code says that if the thing grew 
 out of the thing in controversy it can be pleaded 
 in a counterclaim. Now all of this slander sprang 
 directly not indirectly, but directly from this 
 account. I will overwhelm them with proof as to 
 what the plaintiff, Dupoyster, said about my client, 
 and I " 
 
 Here the Court interrupted with : 
 
 " Captain Henry, please read me that part of 
 your answer relating to the counterclaim." 
 
 " All right, your Honor," replied the Captain, 
 " I was just going to suggest that very course. I 
 will proceed." 
 
 The following part of the answer and counter 
 claim was then read to the Court by the expert 
 pleader :
 
 36 NISI PRIUS 
 
 " Reiterating and renewing all his former 
 charges and claims and allegations, defendant now 
 comes and says that he not only does not owe the 
 account sued on, but that the plaintiff knows, and 
 knew at the time of the things hereinafter set out, 
 that he owed no part of said account. He alleges 
 that the plaintiff sent him many letters and duns to 
 pay said alleged account; that he sent said letters 
 through the mails of the United States, and sent 
 postal cards, dunning him and annoying him and 
 harassing him, not concealing the purpose of said 
 notes and postal cards, but writing them thus openly 
 so that people could see and understand what the 
 said duns and demands were about; that in this 
 wise defendant was greatly humiliated and dis 
 turbed and annoyed and harassed ; that the plaintiff 
 talked about this defendant in an unbecoming and 
 slanderous manner, telling everybody who came 
 into his store that the defendant would never pay 
 an honest debt ; that he was a dead-beat, a bum, and 
 such other rude and highly uncomplimentary 
 
 things; that he said to Sam Jenkins on the 
 
 day of these words or in substance these 
 
 words : ' He ' (referring to defendant) ' aint worth 
 three hurrahs in hell ' (referring to defendant's 
 financial standing and not his particular personal 
 ity) * and if the store business in this country de 
 pended on such cattle as Finis Blacklock, the deal 
 ers might as well shut up shop right now.' De 
 fendant says that by virtue of said wrongful and 
 viperous charges and slanders he, the defendant, 
 yvho theretofore stood high in the neighborhood,
 
 NISI PRIUS 37 
 
 was reduced to a bad standing and reputation; 
 that all of his friends and neighbors believed said 
 charges and claims, though they all knew the de 
 fendant's previous good reputation and really knew 
 that the plaintiff was a reckless man with the truth, 
 liable to say anything if a dollar was at stake. He 
 says his credit was shocked and broken and im 
 paired, on account of said vile slanders and false 
 claims and charges as aforesaid; that previous to 
 the utterance of said charges defendant was able 
 to get credit anywhere to a reasonable extent, but 
 that since he has refused to pay this debt to the 
 plaintiff he is unable to obtain any credit anywhere, 
 though the other store keepers and merchants all 
 know that the claims and charges of the plaintiff 
 are all false, on account of the previous good repu 
 tation and high standing of this defendant; but 
 they, said other merchants out of care and pru 
 dence do not of course like to run any extra risks, 
 all of which has been the direct and approximate 
 result of plaintiff's conduct, which has been con 
 tinuous, without any intervening agency; that said 
 damages resulting, as aforesaid, are not remote 
 or contingent, but are plain and ambiguous ; that 
 no part of said damages has ever been paid, though 
 overdue and many times demanded; that the de 
 fendant has no inadequate remedy at law or in 
 equity, save by means of this proceeding, and, as 
 defendant verily believes, he will receive great and 
 irreparable injury unless the court grants him re 
 dress here and now in this action; that no court 
 or clerk or judge or sheriff or jailer or constable
 
 38 NISI PRIUS 
 
 has ever denied him this relief, and that same has 
 never been applied for and refused heretofore. He 
 says if required to maintain a separate action for 
 damages, he will be endangered by delay in pro 
 curing a judgment, having an execution issued and 
 returned ' no property found,' because the plain 
 tiff has threatened to transfer his property, 
 said store, to his wife (which, however, would 
 be a fraudulent conveyance, but we could 
 not attack it until six months passed, which 
 would be too late) ; that there are no other 
 liens on said property, so far as the defendant has 
 heard or knows save this one; and that the plain 
 tiff's property cannot be divided without material 
 injury to this defendant. Said account is for 
 $193.50 that plaintiff claims the defendant owes 
 him, and defendant says that for said viperous 
 slander and abuse, his claim against the plaintiff is 
 for $199.00, so that, premises considered, even if 
 the court or jury (but this is not a jury case, how 
 ever) should hold that defendant is bound for said 
 account of $193.50, then plaintiff is bound for this 
 slander bill of $199.00, so that the plaintiff will 
 owe defendant, on a settlement, the sum of $5.50 
 and all his costs, including a reasonable attorney's 
 fee to Thomas Henry, Esq., his attorney and coun 
 selor at law (who prepared this case for him at 
 some pains). And in view of all the premises and 
 the cross accounts between the parties litigant in 
 this action, defendant asks that this cause be re 
 ferred to the Master Commissioner, who shall be 
 charged and directed by the court to audit and
 
 NISI PRIUS 39 
 
 marshal both of said claims and present them, prop 
 erly proved, to the court for final determination 
 and adjudication; and this answer setting up ac 
 counts and questions too complicated for a jury to 
 try with sense and accuracy, the defendant moves 
 that this case be taken from the jury docket and 
 be known as an equity case, to be decided by the 
 court, on this answer and the report of said 
 Master Commissioner (after he makes said re 
 port). 
 
 " And now having fully pleaded the things and 
 matters above enumerated, he prays as herein in 
 dicated and he also prays for such other general 
 and proper relief as he may appear entitled to (in 
 cluding costs and the fee for his attorney, Thomas 
 Henry, Esq., his counsel herein, who prepared this 
 case at some pains) and further deponent sayeth 
 not. FINIS BLACKLOCK, 
 
 " By Thos. Henry, Atty." 
 
 " Now, your Honor," continued the Captain, 
 " you have the whole thing laid bare. You see 
 the wrong and the damages and the disgrace and 
 reduction of earning power, shaken credit, lost 
 standing, and all these infinite things that go to 
 destroy a man's previous good standing. We say 
 it grows out of this account, and we demand re 
 dress. All we want is a chance at 'em. Will 
 jurisprudence deny us that? Must justice hang 
 her head in helpless oblivion and melancholy? Is 
 this temple of justice a mockery? I know this 
 Court well enough to know his answer."
 
 40 NISI PRIUS 
 
 The Captain dropped in his seat with victory in 
 his eyes and scorn upon his lips. But Judge Cole 
 had been told by one he knew to be a most excel 
 lent lawyer, in that life-saving note, that the mat 
 ter set out in that answer could not be pleaded in 
 a counterclaim, and he was sure of his ground. 
 He arose again: 
 
 " Judge," he said, " I dislike to prolong a fool 
 ish argument, but we lawyers never know what 
 the Court might do unless we give the Court full 
 and free benefit of our views. Out of precaution. 
 I shall reply to the argument of my friend on the 
 other side of this case this important case. I 
 shall begin by saying " 
 
 Here the Court interrupted, saying: 
 
 " Judge, I do not think it necessary to further 
 press your point. I do not see how that matter 
 can well be matter for a counterclaim. I am clear 
 that it does not come up to the requirements of the 
 Code. It is foreign to, instead of growing out of, 
 the transaction set up in the petition. Unless Cap 
 tain Henry can show me some authority or suggest 
 some more plausible reason, I will have to sustain 
 you on that proposition." 
 
 Captain Henry was again in the depths. He 
 said afterwards that he felt himself slipping. At 
 this particular and perilous moment, however, he 
 again felt a friendly nudge at his side, and at once, 
 as if from an inspiration, held his hand behind his 
 back, hoping to conceal his movements from the 
 Court Someone quietly and deftly slipped an 
 other note into the palm of his hand, which, placing
 
 NISI PRIUS 41 
 
 between the leaves of the open Code, he quickly 
 read. A smile stole gradually over his face; there 
 was cheer in his soul. Quickly and secretly crum 
 bling the note between his fingers, he arose and 
 with the utmost confidence proceeded to furnish 
 the Court the " more plausible reason " called for 
 by his Honor, speaking thus : 
 
 " I have thought about what your Honor has 
 said. I went deeply into that feature of the case 
 when I prepared that pleading. But, may it please 
 the Court, there is no demurrer to this counter 
 claim; there is no motion to strike," his voice 
 rapidly rising " there is no motion to elect. Sir, 
 there is a reply; a reply on the merits; a pleading 
 on the merits, denying all of the allegations of my 
 counterclaim. They have waived the thing; they 
 have waived everything; they have voluntarily 
 submitted to the Court's jurisdiction, and now, 
 after waiver, after an express and deliberate 
 waiver, can they crawfish and back out and hedge? 
 I submit that if they had raised the question at 
 the proper time they might have been right; but 
 at this stage, never! They reply, they plead; their 
 reply contains all sorts of things, does it not, Mister 
 Cole? Permit me to ask you, is it just a denial 
 or does it contain any affirmative matter?" 
 
 By Judge Cole : " It's a mere travesty, a com 
 plete travesty; no affirmative matter whatever." 
 
 The Court was again seeking refuge behind the 
 flowers. 
 
 " I thought it had," continued Captain Henry, 
 " a second paragraph of new matter. But that
 
 42 NISI PRIUS 
 
 cuts no figure. You answered on the merits; you 
 replied; you forever waived your right to now 
 raise this question. The Court knows that the law 
 frowns on such dilatory tactics." 
 
 " May it please the Court," renewed Judge Cole, 
 " I did not file a demurrer because I thought this 
 the best way to raise the question. I thought about 
 the demurrer and the motion to strike and the mo 
 tion to elect. Mr. Henry don't catch me on any 
 of those elementary things, but I was due to plead 
 in March. No court was in session; the clerk did 
 not feel, so he said to me, like passing on a de 
 murrer or an important motion. I had to do some 
 thing in March, and Captain Henry was planning 
 to take judgment by default if I had not pleaded 
 and denied his counterclaim from stem to stern. 
 You can smile, Mr. Henry, all you desire, sir, but 
 I guess I will practice this side of this lawsuit as 
 I myself may prefer. I admit that I have waived 
 the demurrer and have waived the motion to strike, 
 but I do not concede that I have waived the mo 
 tion to elect. My recollection of the Code is that 
 a motion to elect is never waived. I did not in 
 tend to raise any question of jurisdiction in your 
 Honor's court. I consider that a reflection on any 
 court, to try to take a case out of his court." 
 
 " Let me see the reply, Mr. Clerk," said the 
 Court, whereupon the clerk bustled and hurried 
 about in his small clerk's compartment, knocked a 
 large order book off the railing, dropped his 
 glasses, and finally handed the Judge a bundle of 
 papers in the case in question. The Judge began
 
 NISI PRIUS 43 
 
 leisurely to scan the record before him, while Cap 
 tain Henry and Judge Cole eyed each other tri 
 umphantly, each feeling great sympathy for the 
 other, and each feeling his victory quite visibly. 
 They were awaiting their fate, as it was apparent 
 the Court had heard all he desired and had fa 
 miliarized himself with the questions presented and 
 was ready to announce his decision. It was thus 
 he ruled in the case of Dupoyster v. Blacklock: 
 
 " Gentlemen, I have heard you with interest. I 
 do not think such matter as is contained in the 
 second paragraph of the answer can be properly 
 set up in a counterclaim in this sort of action. It 
 is certainly foreign to the cause of action set out 
 in the petition. As to the question of waiver, that 
 presents a serious situation " (here Captain Henry 
 - expanded his chest, with a bow of satisfaction and 
 intelligence, while Judge Cole correspondingly slid 
 down lower in his seat), "but I see there is as a 
 matter of fact no reply in this record. Here is a re 
 ply in another case, that of Harwood v. Sum 
 mers, on which Judge Cole is marked as counsel, 
 but there is no reply here in this case. I infer 
 that by mistake or oversight this pleading was put 
 in these papers." 
 
 Here Judge Cole, straightening up, remarked: 
 
 " Judge, pardon me, allow me to examine my pri 
 vate docket. Yes, I filed that reply in that other 
 case. I recall now that I expressly avoided reply 
 ing in this case for fear I would waive something. 
 I now demur to that answer and counterclaim." 
 
 Captain Henry was making dog-ears on the
 
 44 NISI PRIUS 
 
 Code and silently felt the earth gradually slipping 
 from under his feet. 
 
 By the Court : " Let the demurrer to the answer 
 and counterclaim be sustained and let the case be 
 dismissed without prejudice." 
 
 The call of the docket was then resumed and 
 all the common law jury cases set down for trial, 
 after which court adjourned for the day. 
 
 As lawyers, judge, and court officials filed out 
 of the court-house and assembled on the yard, 
 Judge Cole, being in the assembly of a dozen or 
 more, looked across the street and spied Captain 
 Henry hurrying along, whereupon he called out 
 to him: 
 
 " Captain Henry, come over for a moment, 
 please. I want to speak to you about a little mat 
 ter." 
 
 Captain Henry, turning abruptly, hesitated a mo 
 ment, then walked directly towards the crowd, 
 which included Judge Lowden, Judge Cole, and a 
 dozen others. When Henry had gotten well into 
 the circle, Judge Cole, with a serious mien and 
 freezing dignity, said: 
 
 " Permit me to suggest that the assizes that as 
 semble in the temple there " pointing to the 
 court-house " is not the court of a justice of the 
 peace nor a Greenwood police court; but, sir, it is 
 the circuit court, the circuit court, sir."
 
 CHAPTER III 
 
 THAT evening the " feast was spread " again at old 
 Hanna's hotel supper, as it has been, is, and 
 doubtless will ever be designated in this land south 
 of the Mason and Dixon line. Commonwealth's 
 Attorney Haggard and Judge Lowden had already 
 found chairs under the maple on the pavement. A 
 quiet moon swung high in the heavens and sent 
 its silvery rays scattering through the trees. These 
 two faithful, incorruptible, and patient public 
 servants smoked in silence, relishing the serene and 
 beautiful night perhaps more than conversation. 
 Men on intimate terms can thus ignore convention 
 with impunity. By and by Host Hanna, having 
 performed his pro rata of the evening chores, came 
 to the door of his hostelry, discovered the presence 
 of the smokers, and forthwith joined them. He 
 had a deep prejudice against the Anglo-Saxon 
 word " Mister." With him it must be "Judge," 
 or "Colonel," or "Captain," or "Major," or 
 " Bill," or " Tom " ; but " Mister " never. As is 
 manifest, he had had no difficulties on this score 
 regarding Judge Lowden. Not so Haggard. 
 When that official first qualified and made his 
 initial appearance in Greenwood Hanna was con 
 fronted with his old difficulty. He at once and 
 without ceremony handed to Haggard, gratis, the 
 not unusual title of " Colonel," and since that hour 
 had always addressed him after that fashion. 
 
 45
 
 46 NISI PRIUS 
 
 " Colonel," he said, addressing the State's coun 
 sel, " do you expect to try the Dudley case this 
 term?" 
 
 " Hard to say, Jim ; but the County Attorney 
 thinks we will be ready." 
 
 " Burned if I've ever believed that young fel 
 low guilty," ventured Jim. 
 
 " There is grave doubt about it, but I'm inclined 
 to fear he killed Thomas. There are some over 
 powering circumstances connected with it all," re 
 plied Haggard. 
 
 " Well," replied Jim, " I've been on many a 
 jury, but if ever I hang a man on circumstantial 
 evidence or a nigger's testimony I hope somebody 
 will have me bored for the simples." 
 
 So ended the reference to the somewhat sensa 
 tional and widely known case of Commonwealth 
 of Kentucky vs. Hiram Dudley. Of this cause 
 celebre more anon. 
 
 " Gentlemen," resumed Jim, after a brief si 
 lence, " I desire to announce to the Court and his 
 able prosecutor, that by a stroke of good fortune, 
 or by reason of supposed political influence, I have 
 a gallon of ten-year-old. Judge Hun is looking 
 after his fences in his race for renomination for 
 Judge of the Court of Appeals. He passed 
 through this pasture yesterday, and right here is 
 where he -found quite a break in his fence. Is it 
 necessary for me to remark that the gap is re 
 paired ? " 
 
 " Bear in mind, my distinguished county boss," 
 interposed Haggard, " Judge Hun intended that
 
 NISI PRIUS 47 
 
 investment to circulate freely among the electorate ; 
 but I see his plans are going amiss. Do you 
 suppose I, after my long and hot ride to-day, 
 would spurn a real old-fashioned Greenwood 
 toddy?" 
 
 Hanna was off on the instant in quest of ice, 
 sugar, water, and the nectar or poison ac 
 cording to the view-point. Returning with the 
 aforementioned ingredients, the host proceeded, 
 with uncommon and unconcealed delight, to mix 
 two extremely mild decoctions, it being a rare 
 thing for either of his guests to indulge. Ere he 
 could complete the task he heard footsteps and, 
 looking up the pavement, saw the Master Commis 
 sioner of the Mecklenberg Circuit Court, one 
 James Higgins, approaching. 
 
 Now, foxhounds and pointers and setters are 
 said to have noses for things that creep and things 
 that fly, but James Higgins, Master Commissioner, 
 had a nose for things that flow. From the back 
 room of some distant grocery store James had 
 been observed suddenly to raise himself, sniff the 
 air, and forthwith leave his companions. He made 
 straight to the source of the aroma. But if James 
 Higgins, Master Commissioner, could sniff from 
 afar, James Hanna, host, could suddenly hide 
 " licker." That is a most essential accomplish 
 ment to such of Hanna's philosophy who reside 
 in what law books denominate " dry territory " ; 
 and Greenwood had been " dry " (in books) these 
 many years. 
 
 No sooner, then, had Hanna realized the gravity
 
 48 NISI PRIUS 
 
 of the situation, which gravity consisted in the 
 possible discovery and immediate consumption of 
 his possession, than he had the liquor, concomitants, 
 and all deftly hidden under his chair and was 
 quietly and indifferently watching the majestic 
 passage of the moon across the heavens. 
 
 " Fine night, gentlemen," ventured the hopeful 
 Commissioner. 
 
 " Magnificent," in a duet from Haggard and 
 Lowden, Hanna rather coldly silent. 
 
 "Balmy; but," continued Higgins, "I feel 
 rather chilly. Guess I'm taking cold." This fol 
 lowed by a lamentable effort to cough. 
 
 " Higgins," said Hanna, looking at the moon and 
 apparently oblivious to the cough, " did you ever 
 realize what a lot of machinery is required up there 
 to navigate that moon and all those stars ? " 
 
 " Never did," replied Higgins, as if to dismiss 
 such a foreign topic. He then took a chair just 
 opposite Hanna and suspectingly shot a glance in 
 his direction, as if to pierce the shadow beneath his 
 chair. 
 
 " You ought to read up on that," said Old Jim, 
 bringing his knees closer together, as Higgins ren 
 dered the second act of his coughing comedy. 
 
 " Mistah Hanna," called Fox from the hotel 
 door, " you is wanted at the phone." 
 
 Have you ever, O gentle reader, seen a man 
 drowning in the sea? Did you observe the mute 
 but eloquent appeal in his despairing look? If so, 
 you know something of Old Jim's despair at hear 
 ing these words. Great generalship manifests it-
 
 NISI PRIUS 49 
 
 self, however, in the twinkling of an eye. His dis 
 comfiture was short-lived. 
 
 " Tell him," he said, " I've gone to the lodge, 
 and to leave his number." 
 
 " Yas, sah," obeyed the handy Fox. 
 
 Now Old Jim, having barely escaped this disas 
 ter and fearing at any moment a second such dan 
 ger, determined to get rid of Higgins quickly. 
 The four rather liberal drinks he had taken since 
 supper were calling for reinforcements, and then 
 the whole supply was in jeopardy; not such jeop 
 ardy as arises on a demurrable indictment, but 
 jeopardy real and actual. It was thus, then, that 
 this high priest of the Hanna House sent his anx 
 ious and thirsty guest on his way rejoicing. 
 
 " Well, sir, if I wasn't so tired and worn out, 
 I'd go down to Henry Dance's and make him let 
 me in on that jug of his. Henry is a sly old fox, 
 but when I met the night train he was there, and I 
 saw him sign for his jug. Clever fellow, old 
 Dance; never refused a man a drink in his life. 
 Fact, ain't it, Higgins ? " 
 
 " No doubt about it, Jim," answered Hig 
 gins, rising with assumed deliberation. " Well, 
 gentlemen," he continued, " good-night and pleas 
 ant dreams," saying which the Master Commis 
 sioner proceeded not too slowly down the street. 
 When he had gotten well out of hearing Old Jim 
 drew out his safely guarded prize, remarking 
 dryly : 
 
 " Gentlemen, both of you are wise and profound 
 lawyers. Here's a difficult problem for you:
 
 50 NISI PRIUS 
 
 Which course should you take from this spot were 
 you en route to Henry Dance's house and were to 
 tal strangers in these parts ? " 
 
 Amid the laugh that followed, the two lawyers 
 sipped their mild mixture, while Old Jim took a 
 drink that would have shamed a sailor on shore 
 leave. 
 
 Thus ended the first night of the June term in 
 the good town of Greenwood, in Mecklenberg 
 County.
 
 CHAPTER IV 
 
 THE next day the petit or trail jury was, after the 
 usual delay consequent upon the qualification of 
 that body, duly empaneled and the uninteresting 
 grind of the first trial day was begun. The Court, 
 from the bench, patiently called the docket, while 
 Haggard at his table looked over each indictment, 
 taking divers and sundry orders in language unin 
 telligible to the uninitiated. " Continued with an 
 alias to Logan " ; " filed away with leave to rein 
 state " ; " dismissed for want of proof " ; " contin 
 ued with an attachment for John Hop " ; " plea of 
 guilty and a sixty dollar fine." These and other 
 kindred orders were called out in the clear, rich 
 voice of the State's Attorney. 
 
 After an hour or two a case was called in which 
 all the Commonwealth's witnesses responded, and, 
 following a brief consultation with them, Haggard 
 uttered the words that had come to be a terror to 
 lawyers over the district, viz : " The Common 
 wealth is ready." The defendant's affidavit for a 
 continuance was held to be insufficient, and the 
 cause was under way. The proof was heard and 
 plainly showed that public worship had been dis 
 turbed plainly to everybody except Judge 
 Thompson, the defendant's counsel. He addressed 
 the jury with his high-pitched voice. He became 
 excited. He more screamed than spoke. He ex- 
 Si
 
 52 NISI PRIUS 
 
 ceeded his allotted time, and was stopped by the 
 Court. 
 
 Haggard followed in a five-minute speech that 
 contained no surplus words. The jury rendered 
 a verdict of guilty. A number of other causes 
 were disposed of by order. Then followed in 
 rapid succession the trial of a defendant charged 
 with breach of the peace, another with selling li 
 quor in local option territory, a railroad company 
 for obstructing a public highway, a man charged 
 with operating a poolroom without a license, two 
 others for gaming. And so the day wore on, and 
 when the hour of adjournment had arrived the 
 Court congratulated himself upon the volume of 
 business dispatched. 
 
 The mills of the gods do grind exceedingly fine, 
 but they grind slowly, whereas the Mecklenberg 
 circuit court grinds exceedingly fine and not 
 slowly. Delays, waste of time, and waste of pub 
 lic money in the administration of justice through 
 the necessary instrumentality of the circuit court 
 are due to one agency, and one alone the judge 
 upon the bench. Where he, like Judge Lowden, 
 combines the executive with the jurist, the Com 
 monwealth profits. A judge without the capacity 
 to expedite things, safeguarding justice at the 
 same time, depletes the public treasury and depletes 
 the supply of public esteem and faith in the effi 
 cacy of courts. Such a lot of judges, presiding in 
 the fog of precedent, provoked the greatest master 
 of the English language to scorn and despise " the 
 law's delay." Often have they stirred a demon in
 
 NISI PRIUS 53 
 
 the breasts of the multitude, and, after a poor 
 trembling wretch has been rushed to the gallows, 
 without the intervention of court or jury, this be 
 fogged jurist wisely discourses upon the evils of 
 mob violence. It ought to be possible to place him 
 beneath the gallows, thus affording him the oppor 
 tunity of seeing the fearful ruin he has wrought. 
 And then with the dead wretch above and the de 
 laying wretch below, two things would be together 
 that ought to be together, viz : Cause and Effect. 
 
 You philosophers who denounce mob law, do 
 not go hence and misquote these lines. The mob 
 in all cases (and there are no exceptions) is but 
 the slumbering savage within us. It is the sense 
 less, wild, barbaric murder of one man by many. 
 Were any member of any mob to be apprehended, 
 his would be the loudest demand for a trial by 
 jury in an orderly, just, and discriminating court. 
 And yet this is the thing he is assuming to deny to 
 a wretched, friendless culprit! But, O you phi 
 losophers and slow judges, who vent one hundred 
 per cent, of your energies in denouncing the effect, 
 so modify your arithmetic as to address fifty per 
 cent, thereof to the cause, and perhaps the remain 
 ing fifty per cent, in course of time will come to be 
 treasury stock which you will have no occasion to 
 float. 
 
 And to you, brothers in the criminal practice, 
 take this word from one of your own guild. Pray 
 do not denounce these lines as a desire that men 
 charged with crime be hurried to the gallows un 
 der the mere forms of law merely to avoid the
 
 54 NISI PRIUS 
 
 bloodthirsty demands of frenzied lynchers. There 
 is a glorious, dignified, and happy medium. In 
 Lowden's court you have full and ample time and 
 opportunity to prepare for trial. The sheriff 
 stands ready to produce all your witnesses, a jury 
 practically of your own choosing is afforded you. 
 You are heard patiently and intelligently on all 
 questions; there is no unseemly haste nor un 
 seemly delay. There is only this one iron-clad 
 rule of practice your case must be tried. He 
 who demands more should have less. In a long 
 career, the best bit of advice a brilliant old lawyer 
 ever gave to the young who drank from his wis 
 dom was this : " Young man, learn well this 
 phrase, ' Your Honor, I'm ready.' "
 
 CHAPTER V 
 
 IT was past ten o'clock that night when Haggard 
 dropped into Judge Lowden's room. The judge 
 had repaired thereto immediately after supper to 
 read and to prepare to decide a number of motions, 
 demurrers, et id omne genus, that had been submit 
 ted, including some minor chancery cases sub 
 mitted for final adjudication. His countenance 
 was lit up by an amused expression. Observing 
 the look of inquiry in Haggard's face, the Judge 
 said : 
 
 "Haggard, here's a divorce suit brought by old 
 Jumpus. Scott signs the answer as attorney for 
 the defendant. They have taken the depositions 
 of two witnesses. These depositions were taken 
 before Jumpus, as examiner, to all of which he 
 solemnly certifies. He also certifies to the credi 
 bility of the two witnesses and that Scott was pres 
 ent, but waived cross-examination, and that the sig 
 nature of the witnesses was, by mutual consent, 
 waived. What say you, Mr. State's Attorney, to 
 that record?" 
 
 " Actions for divorce, being a specialty with my 
 friend Jumpus," replied Haggard, " I can appre 
 ciate the short and speedy road he has taken to a 
 judgment" 
 
 " Seriously," interposed the Judge, " in this case 
 the petition is demurrable; the answer is demur- 
 rable; the attorney for plaintiff, in his capacity as 
 
 55
 
 56 NISI PRIUS 
 
 examiner, takes his own depositions; the questions 
 are fearfully leading, the answers all transparently 
 couched in the language of the plaintiff's counsel; 
 everything is waived, which fact is certified to me 
 by the plaintiff's attorney, and " 
 
 This sentence was not completed, for at that 
 moment a knock was heard at the door and, re 
 sponding to Judge Lowden's " Come in," in walked 
 no less a personage than Marcellus Jumpus, Esq., 
 attorney and counselor. With a chivalry of an 
 other age Jumpus, possessed of his usual embar 
 rassment consequent upon coming into the pres 
 ence of the Judge, said : 
 
 " Pardon me, gentlemen, for intruding myself, 
 but, Judge, did you get that divorce case of 
 Boggess vs. Boggess, submitted this morning?" 
 
 " Yes, I have just read the record," responded 
 Lowden. 
 
 " There's two children in that case," said 
 Jumpus, " and in drawing the judgment, how must 
 I dispose of them? " 
 
 " I cannot give you a judgment in this case as 
 it is now presented," said the Judge. 
 
 "Why, what's the matter, Judge?" inquired 
 the unhappy attorney. 
 
 " Your petition," said the Court, " is bad on 
 demurrer. The grounds for divorce are statutory, 
 and the ground alleged by you is not found among 
 those enumerated in the statute. You allege ' that 
 the defendant is perverse and obtuse, and when the 
 plaintiff ordered him to go and fetch a back-log 
 he replied, " Dura the back-log, I'm going to Pond
 
 NISI PRIUS 57 
 
 Creek to ketch a mess of fish." You and Scott 
 can't waive the signature of these witnesses. If 
 that were permitted, any man and woman in Meck- 
 lenberg County could readily obtain a divorce. 
 You, being attorney for the plaintiff, cannot take 
 these depositions as examiner. Think how wide 
 that would open the door. Now, let us read this 
 deposition of Mandy Bunch ; and bear in mind that 
 you wrote the questions and answers and that you 
 are attorney for the plaintiff seeking the divorce. 
 Omitting the style of the case, this document reads 
 thus: 
 
 " ' The deposition of Mandy Bunch, taken at 
 the law office of Marcellus Jumpus, in Greenwood, 
 Ky., by consent of the parties, on April 10, 18 , 
 to be read as evidence on behalf of the plaintiff on 
 the trial of the above styled cause, now pending in 
 the Mecklenberg Circuit Court. The witness be 
 ing duly sworn by Marcellus Jumpus, examiner, 
 deposed as follows, examined by Marcellus Jumpus, 
 attorney for plaintiff. 
 
 " ' Q. Mandy, how old are you and do you 
 know Mike Boggess and Emma Boggess, and how 
 long have you known them? 
 
 "'A. Thirty-six; yes; ten years. 
 
 " ' Q. Is it not a fact that Emma has always 
 conducted herself as a proper wife, in all respects, 
 and is it not a fact that Mike is trifling and no ac 
 count and has been a long time ? 
 
 " ' A. Yes, sir. 
 
 " ' Q. State whether the act of divorce set up
 
 58 NISI PRIUS 
 
 in the petition occurred in Mecklenberg County, 
 and within five years before this suit was filed? 
 
 "'A. Yes, sir. 
 
 " ' Q. I'll ask you if Mike spends his time fish 
 ing in Pond Creek or in looking after his family, 
 and will get you to state if he is a poor pro 
 vider? 
 
 "'A. Yes, sir. 
 
 " ' Q. Were you present at his house in Feb 
 ruary last, one day, when Emma ordered him to 
 bring some stove wood? If you say you were, 
 isn't it true that he refused to get it and went off 
 fishing? State fully about this? 
 
 "'A. Yes, sir. 
 
 " * Q. If you know any other facts about this 
 case, please state them in your own way? 
 
 " ' A. Don't know any more. 
 
 " ' Cross-examination waived. 
 
 " ' I, Marcellus Jumpus, an examiner in and for 
 Mecklenberg County, Kentucky, hereby certify that 
 the foregoing deposition of Mandy Bunch was 
 taken before me at the time and place mentioned 
 in the caption. That I wrote the questions down 
 as asked by plaintiff's attorney and took down the 
 answers of the witness. The plaintiff was present 
 in person and by Attorney Marcellus Jumpus, that 
 the defendant was not present, but was represented 
 by his attorney, William Scott. That the witness 
 Mandy Bunch is a person of good moral character 
 and worthy of belief under oath. 
 
 " ' Witness my hand as such examiner this 
 April , 1 8 . MARCELLUS JUMPUS, 
 
 " ' Ex. M. Co., Ky.'
 
 NISI PRIUS 59 
 
 " Now what do you say the Court should do in 
 this case, Mr. Jumpus ? " concluded Judge Lowden. 
 
 " I told my client," said Jumpus, " that there 
 were some close questions involved in this case 
 when I consented to bring the suit. Just pass it 
 in the morning, Judge, and I will think over it," 
 after which Marcellus rather sheepishly bowed him 
 self out. 
 
 Haggard, who during this recital had been quite 
 buried in the pillows on Judge Lowden's bed, to 
 which retreat he had been drawn to avoid an ex 
 plosion, now banished all levity and wore a se 
 rious mien. 
 
 " Judge," said he, " isn't that a commentary, a 
 sad commentary, on the caliber of the profession 
 in Kentucky? How is such a thing possible in 
 this enlightened age in this great State ? " 
 
 " There's no difficulty," replied Lowden, " to 
 ascertain the cause of the trouble. It is our worth 
 less and archaic system of laws regulating the re 
 quirements for admission to the bar. Jumpus is 
 not alone in this district. Every county has its 
 Jumpus one, two, and some of them more than 
 two. An unlettered, unprepared fellow loafs about 
 the court-house, absorbs a smattering of court pro 
 cedure, and concludes he must practice law. The 
 county judge promptly gives him the required cer 
 tificate of good moral character. He makes his 
 application. The circuit judge, obeying the statute, 
 appoints two lawyers to examine him touching his 
 knowledge of the law and the practice thereof. 
 They go through the forms and report him quali-
 
 60 NISI PRIUS 
 
 fied; hence his license, hence Jumpus, hence this 
 record here Boggess v. Boggess." 
 
 " To all of which," added Haggard, " I can only 
 repeat the first observation a sad commentary. 
 There is a consolation in knowing, however, that 
 their sphere for disastrous operations is limited. 
 Few people retain them." 
 
 " Very true," the Judge replied, " but some do 
 
 once." 
 
 And the two men lapsed into thought and said 
 no more. 
 
 Since the night this very usual and ordinary oc 
 currence took place some years since the Gen 
 eral Assembly of the Commonwealth of Kentucky, 
 at the urgent behest of a group of far-seeing, State- 
 loving men, threw off the lethargy of years' stand 
 ing and smashed the old system, providing in its 
 stead an adequate and thorough means of testing 
 the qualifications of each applicant for admission 
 to the bar before he should be let loose on the pub 
 lic. The new law passed both Houses of the Leg 
 islature by practically a unanimous vote, and a new 
 day had dawned. Henceforth lawyers, like unto 
 physicians, surgeons, dentists, even undertakers, 
 must be qualified to practice before being suffered 
 to do so. But the delight of the Commonwealth 
 was short-lived. A Governor himself a lawyer 
 
 vetoed the measure, delivering some incoherent 
 excuses, among which was this: The new law 
 worked a hardship on the country boy, which, on 
 being interpreted, means that the country boy can 
 not prepare himself. While comparisons are
 
 NISI PRIUS 61 
 
 odious, and the metropolitan lawyers are admit 
 tedly among the ablest in the State, the annals of 
 the Commonwealth from infancy will bear witness 
 to the achievements of her country youths, who 
 have adorned the bench and illuminated the bar. 
 The so-called country boy may desire protection, 
 but not such protection as demands the sacrifice 
 and surrender of his self-respect.
 
 CHAPTER VI 
 
 THE next morning at nine o'clock the court was 
 convened with usual promptness. The minutes of 
 the previous day's business were read by Tom New 
 (the clerk that always led to the belief that Nov 
 elist Dickens lived in vain). Had Tom a score of 
 deputies they should not read his minutes. He 
 could not forego that wise look over his glasses 
 when he finished the line " ordered that court ad 
 journ until to-morrow morning at nine o'clock." 
 
 Motions were called for, the Court addressing 
 each member of the bar separately. 
 
 " Yes, your Honor," responded Judge Thomp 
 son, when his name was called, " I have a motion." 
 
 He then proceeded to explain the status of some 
 case, after which explanation the Court inquired 
 as to what his motion was. Thompson replied 
 that he wanted to file so-and-so later in this term. 
 This procedure occurred every morning at motion 
 hour throughout every term. Judge Cole also had 
 a motion. He arose, holding in his hand two pre 
 pared pleadings, one of which he filed, and was in 
 the act of filing its fellow when it occurred to him 
 to " save the other one for to-morrow." He took 
 his seat abruptly. Colonel Stevens and Tom Hen 
 derson briefly argued a demurrer in some railroad 
 case. Captain Henry filed what he termed an an 
 swer as " gardeen ad litem." Tobias Mathews 
 filed two separate reports as attorney for non-resi- 
 
 62
 
 NISI PRIUS 63 
 
 dent defendants. Jumpus asked leave until the 
 next term to file an amended petition in Boggess 
 v. Boggess. Judge Yust of Madisonville, a very 
 towering oak of a man, a giant in frame and in in 
 tellect, moved for a rule against the Master Com 
 missioner, to show cause why he had not executed 
 a certain order of distribution made at the previous 
 term. A half a dozen other attorneys, who were 
 interested in the same matter, joined in the demand, 
 by spontaneous acclaim, each looking daggers at 
 the Master Commissioner. 
 
 Now James Higgins, Master Commissioner, is 
 the same James Higgins who, on an occasion of 
 which the reader has been heretofore advised, went 
 off to Henry Dance's in search of Jim Hanna's 
 will-o'-the-wisp. Some of his characteristics were 
 made manifest on that occasion. But he had 
 others. He was a living, walking apology, and 
 courtesy was his monomania. His courtesy was 
 not the ordinary kind observed in general; it was 
 rather intermingled with gallantry, chivalry, and 
 Chesterfieldianism. This characteristic had been 
 more pronounced at this term of court than ever 
 before, in view of the fact that Higgins had heard 
 certain well-defined and distinct mutterings emanat 
 ing from certain other politicians, who had inti 
 mated that no man should hold the office of Master 
 Commissioner forever. There were some vague 
 expressions about the ancient and time-honored 
 doctrine of democracy " rotation in office " ; mut 
 terings about rewards due other boys in the 
 trenches. Also, let it be said, in that wonderful
 
 64 NISI PRIUS 
 
 organization and brotherhood known as " states 
 men who keep their ears to the ground," James 
 was the chief high priest. No tremor or rumble 
 or quake, howsoever slight, ever failed to be reg 
 istered on his seismograph. 
 
 Now, from all of this it will be seen at once 
 that if James had been a Chesterfield prior to the 
 hearing of these distant rumblings, after hearing 
 and thoroughly grasping their meaning, why, may 
 it please the Court, he became simply two Chester 
 fields. When Judge Yust, who on occasion could 
 look the part of the Colossus of Rhodes, moved 
 for this rule, and in a chorus six or seven other 
 lawyers joined in the demand, Higgins, whose offi 
 cial efficiency was already in the limelight, imme 
 diately put on his most humble and apologetic 
 countenance. 
 
 " Your Honor and gentlemen," he began, " I 
 must humbly beg your pardon. I'm a gentleman. 
 Your Honor is a gentleman. You are gentlemen. 
 We are all gentlemen. I've been Master Commis 
 sioner of this honorable court for years," 'then 
 reflecting a moment " for a few years, I may say, 
 and if I have ever done an unkind thing I do not 
 know it. Judge, I try to do my duty. Does your 
 Honor know of any more faithful public servant? 
 I believe in the doctrine announced and promul 
 gated by that peerless, matchless, unsullied Ne- 
 braskan who " 
 
 Here Judge Lowden, realizing his drift, inter 
 rupted Higgins. To the auditors who knew him it 
 was evident he was bent on burying in oblivion the
 
 NISI PRIUS 65 
 
 oration Cicero delivered on the Conspiracy and the 
 one Demosthenes delivered on the Crown. 
 
 " Mr. Higgins," said the Court, " you will have 
 to make a written response to the rule, in the reg 
 ular way. The Court cannot take the matter up 
 m this manner. Mr. Clerk, give me the criminal 
 docket." 
 
 And that day's grind began. 
 
 Before any of the regular criminal trials were 
 begun, Marcellus Jumpus announced that there was 
 a lunatic present " who desired an inquest into his 
 insanity." The court concluded to dispose of the 
 case at once, rather than keep the unfortunate de 
 fendant waiting. Accordingly, the demented one 
 was brought to the bar and a jury called. The de 
 fendant, Nat Mann, seemed rational. He had an 
 aged, feeble appearance, but gave no outward or 
 visible sign of distressed mentality. While the 
 jury were being qualified, Jumpus went over and 
 talked with Mann. Judge Yust, who had been 
 called out of the court-room during these prelim 
 inaries, returned and entered the bar just at this 
 stage of the proceedings. 
 
 " Judge Yust," said the Court, " we are going to 
 hold this inquest. Will you represent this man?" 
 
 Yust, as quick as a flash, said in a stage whisper : 
 
 " Who is it, Jumpus, or the other fellow ? " 
 
 After the waves of the convulsion induced by 
 this shaft had subsided, the trial began. At first 
 it seemed from the evidence that Mann was de 
 mented, but when Yust (who had read Mr. Charles 
 Reade's " Hard Cash " ) proceeded to cross-exam-
 
 66 NISI PRIUS 
 
 ine the witnesses and put Mann on the stand and 
 question him, the oft-repeated sham and farce was 
 laid bare another effort to incarcerate an unde- 
 sired, feeble, useless relation in a mad-house. The 
 jury promptly found the defendant sane. The last 
 Judge Yust heard of the case was Jumpus, with 
 much gesticulation, trying to explain to his client 
 the son-in-law how it all had transpired. 
 
 Thus the court plodded on through the day, and 
 when evening came the docket had been cleared of 
 many cases. Indeed, the court was up with the 
 docket, and it was announced that the case of Com 
 monwealth vs. Hiram Dudley, charged with mur 
 der, would be the first called the next day.
 
 CHAPTER VII 
 
 TEN o'clock that evening found Judge Yust, " Col 
 onel " Haggard, and Judge Lowden in the latter 's 
 room at Hanna's hotel. Relating sundry profes 
 sional experiences, exchanging anecdotes apropos 
 of laws, lawyers, and law courts, as is the wont and 
 habit of the guild where two or three are gathered 
 together, they had spent a delightful hour or two 
 in triangular communion. Judge Yust, a native of 
 Mecklenberg County, who had removed from its his 
 toric precincts only a few years previous, was sur 
 charged with localisms and was a veritable prince 
 of story-tellers. There are lawyers of eminence 
 and pronounced success, as lawyers, but place 
 them on a social occasion among such men as Yust 
 and lo ! you have a pig, an owl, a mule. 
 
 Yust was one of creation's rare combinations. 
 In chancery he was at home; before the inscrutable 
 twelve he was adroit, persuasive, dangerous; at 
 work he was a worker, at play a player. Perfectly 
 at home in a company of profoundest scholars, he 
 was equally at ease among the unlettered and un 
 learned. In youth he had read and comprehended 
 Saint Paul's adage, and it had served him many a 
 good turn in his long and picturesque career at the 
 bar. 
 
 He had just concluded an anecdote applicable to 
 James Hanna, Esq., when that dignitary, without 
 ceremony, protruded his blond head in the door, 
 
 67
 
 68 NISI PRIUS 
 
 hesitated for an instant and then entered. Jim 
 made it a rule not to knock before entering, in his 
 hotel. He took the ground that the landlord, ex- 
 officio, had the right of entry, and the right of in 
 gress and egress, to and from any part of the 
 hostelry over whose destinies he presided. Survey 
 ing the company assembled, he said : 
 
 " Fools rush in where angels fear to tread. 
 Judge, have you plenty of water? Do you want 
 anything? If so, ask and it shall be given unto 
 you." 
 
 " Nothing, Jim, thank you," responded Lowden, 
 as the host dropped into a chair and proceeded to 
 replenish his cob pipe. The Judge, without Han- 
 na's vision, displayed four fingers of his right hand 
 to Yust and Haggard, a signal quickly understood 
 by those two old acquaintances of Hanna's. The 
 signal, on being interpreted, had this meaning: the 
 Judge knew from the tone of Jim's voice, the flash 
 of his eye, and his general demeanor that the keeper 
 of the Hanna House had had just four drinks of 
 spirituous, vinous, and malt liquor. These four 
 and no more always oiled the tongue of this rare 
 and brilliant rough diamond. Sentiment and ro 
 mance at once fairly oozed from his pores. His 
 assembled observers congratulated themselves on 
 the prospect of an Hannaesque story. 
 
 Their prognostications were not without founda 
 tion. Judge Lowden, with a knowing wink in the 
 direction of Haggard and Yust, said, with solemn 
 countenance : 
 
 " Jim, you drink too much whisky."
 
 NISI PRIUS 69 
 
 " That's what Mrs. Hanna says," replied Jim. 
 " Peculiar how penetrating minds run in the same 
 error." 
 
 " But," insisted Lowden, " it's all your imagina 
 tion. What good do you get out of it? " 
 
 " Judge," said the lectured one, after an appre 
 ciable pause, " the thing is efficacious. The trans 
 formation that a good drink of good liquor will 
 work is wonderful. I've seen that illustrated a 
 thousand times. Did I ever tell you " here his 
 face lit up " my experience with old Uncle Si 
 David, which occurred in my race for the Legis 
 lature years ago ? " 
 
 " No, let's have it," chorused three voices simul 
 taneously. 
 
 Hanna refilled his pipe, cleared his throat, pulled 
 his somewhat frayed blond mustache, leaned his 
 cane-bottom chair against the broad bedpost, and 
 thus was related his experience with old Uncle Si 
 David : 
 
 " Well, sir, before I reached the age of wisdom 
 and at a time when I was mentally deficient, I was 
 seized with an ambition to represent Mecklenberg 
 County in the State Legislature. You wouldn't 
 look at me now and think I ever had such notions, 
 but I did. It's true I got beat, but that's not the 
 first time the great common people made a fearful 
 blunder; nor was it the last, present office-holders 
 excepted. 
 
 " Well, to make a long story longer, I made a 
 canvass over the county, one of these house-to- 
 house kind, and I think I saw every voter in the
 
 70 NISI PRIUS 
 
 county except a few. Since that election I have al 
 ways believed those few were the ones who voted 
 for me. In the course of that canvass I met many 
 kinds of characters and had many experiences. I 
 have never forgotten old Uncle Si David. He 
 lived, Judge, out here on the Russellville road and 
 had been a power in his bailiwick. I think his 
 health had been bad for a year or so, at least I 
 hadn't heard anything of him for several years, un 
 til one cold, wet, gloomy day I met him in the road 
 when I was making my race. The mud was hock 
 deep, the drizzling rain was cold and incessant, and 
 it was about the gloomiest day I ever saw. Uncle 
 Si was riding one of these little sway-back, gimlet- 
 tailed mules, which was floundering along through 
 the mud depressingly. Uncle Si's face was long 
 and he looked to me as if he hadn't smiled in ten 
 years. It occurred to me that I had better 'lection- 
 eer with him, which I proceeded to do. 
 
 " Now, gentlemen, be advised that I had a flask 
 of twelve-year-old in my saddle pockets the self 
 same despised article Judge Lowden was just abus 
 ing. 
 
 " ' How are you making it, Uncle Si ? ' said I as 
 cheerfully as possible. 
 
 " ' Mighty poorly, Jim, mighty poorly. Look at 
 those clouds; damned if it ever is going to stop 
 rainin'. 1 
 
 " ' I'll ride a piece with you,' said I, ' if you don't 
 object. How's the world treating you, Uncle Si, 
 these days ? ' 
 
 " ' Mighty hard, Jim, powerful hard,' said he.
 
 NISI PRIUS 71 
 
 ' Luck is eternally agin me. Listen at that rain ! 
 Ruin every year of corn I've got. Jim, you know 
 that black mare mule I bought at Duke's sale there 
 in Greenwood four years ago? Well, she's had the 
 distemper, and it's gone to her eyes and she's dead 
 sure going blind. And that foxhound, Top, 
 damned if he didn't hang hisself on the paling 
 fence and died the next day. Tobacco ain't bring 
 ing no price at all, and I've got ten thousand 
 pounds hanging up which ain't worth strippin' out 
 and deliverin'. Did you ever see a rainy spell hold 
 on as long as this one? Durned if I'd recognize 
 the sun if it was to come out. And there's that 
 idiot daughter of mine, Jim, she gives me and her 
 mammy a world of trouble. Helpless critter 
 can't do nothin', and keeps her mammy runnin' 
 after her all day. And my boy Tim strong 
 enough, but he don't seem to ketch on to farmin'; 
 but when the world is dead agin a man he ' 
 
 " Uncle Si never finished this sentence, for at 
 that minute his mule suddenly went into the mud 
 almost to his belly, very nearly throwing the old 
 man from his saddle. 
 
 " ' Dad blast your infernal time,' said he, ' I've 
 got a notion to break your damned thick head with 
 this single-tree,' which weapon the old man bran 
 dished. 
 
 " When Uncle Si's mule pulled out of the mud. 
 we found ourselves very near a big oak tree, and 
 as the rain was coming down like putting out fire 
 we stopped under it, hoping it would hold up. 
 Drawing out that flask I said to Uncle Si :
 
 72 NISI PRIUS 
 
 " ' Would you like to have a drink of this li 
 quor ? ' 
 
 " I could see him brighten a little. 
 
 " ' I believe I will take just a small taste, Jim,' 
 says he. He took the flask and, gentlemen, I've 
 seen big drinks in my day, and when pushed I can 
 take a fair drink myself, but that drink of Uncle 
 Si's is in a class all to itself. After he had swal 
 lowed it he smacked his lips, cleared his throat, and 
 sat down on a log, holding the bridle of his mule. 
 
 " Having some anxiety as to the ration supply, 
 I took a swallow myself. Well, in five minutes 
 Uncle Si's ill luck began to turn. 
 
 " ' Jim/ says he, ' the clouds are breaking off 
 in the west. Look at that piece of blue sky over 
 yonder.' 
 
 "And then he said, 'Where's that flask?' I 
 handed it over to him, and drink No. i lost its 
 reputation with me, being eclipsed by drink No. 2. 
 We were silent for some time and then Si said : ' It 
 ain't but few cases of distemper that puts a mule's 
 eyes out. They do go blind occasionally, but it's 
 powerful rare, powerful rare.' 
 
 " ' Maybe it don't ever happen,' I said. 
 
 " ' Well, I have even heard that said by good 
 veterinarians,' he added, and getting up from the 
 log, Si mounted his mule, saying, * Let's be going 
 on, Jim.; it ain't rainin' much. But before we go, 
 I'd like to sample that licker once more.' 
 
 " I handed him the flask and inwardly felt a 
 sympathy for the reputation of drink No. 2. My 
 guess was correct, as the old fellow emptied it to
 
 NISI PRIUS 73 
 
 the last drop. We rode on in the same mud, under 
 the same black sky, in the same cold rain. 
 
 " ' Jim,' says he, ' you see that tract of fine land 
 over there? I think I'll just buy that in the 
 spring. That boy Tim of mine ought to have a 
 farm. He's just naturally a farmer. Him and 
 me differs sometimes about things, but it's ten to 
 one he's right and I'm wrong. Gosh, he could 
 make that dirt bloom like flowers ! ' 
 
 " I said nothing to this and on we rode." 
 
 " ' Jim,' he continued after a pause, ' do you 
 know this is about the best season I ever saw to 
 put up tobacco ? It's damp and in fine order. My 
 neighbors have got it in their heads that it won't 
 bring much this season, but I doubt that a whole 
 lot. I know one thing dead sure there's a light 
 crop in Virginia and Tennessee, and I wouldn't be 
 afraid to gamble on the price soaring by early 
 spring. My, but this good rain will be fine for 
 wheat ! ' 
 
 " The old fellow looked the picture of content- 
 edness, and I didn't care to do any of the talking. 
 
 " ' Jim,' says he, ' you know that hound that 
 hung hisself on the fence? Well, sir, he was old 
 and wore out, and I would have had to kill him 
 this spring, anyhow. He'd done played out, and 
 it was about the best thing that could have hap 
 pened. Mandy's cousin Eph has got a bitch, 
 one of the best that ever hit the woods, and she's 
 going to have a litter of pups next month. Eph 
 said I could have two of 'em. They're by the best 
 dog in these parts.'
 
 74 NISI PRIUS 
 
 ' Uncle Si,' said I, ' you are an old experienced 
 farmer, do you think all this wet weather will 
 hurt the ungathered corn ? ' 
 
 " * No danger, Jim,' he said ; ' corn that's ma 
 tured and is as firm and solid as this year's crop 
 won't know it rained. That reminds me, that idiot 
 daughter of mine is to help me haul some corn to 
 morrow. Jim, that girl is the biggest help about 
 the place you ever saw. I sometimes reckon it's 
 the best thing for me and Mandy that she is 'er 
 idiot. If she had sense there would be a lot of no 
 'count boys hangin' 'round her day and night. As 
 it is, she is company for her mammy and you don't 
 know how much she does about the place every 
 day. There ain't a man in Mecklenberg County 
 that can beat her shellin' corn. Well, Jim, here's 
 my turnin' off place. I've got to take this single 
 tree to the blacksmith shop. Luck to you. I'm for 
 you, and will make all the boys turn out.' 
 
 " We stopped, said good-by, and Uncle Si rode 
 on down the narrow lane in the deep black mud, the 
 rain-water dripping from his clothes. When he got 
 about seventy-five yards down the road he turned 
 in his saddle and hallooed to me: 
 
 " ' Jim, don't wear yourself out in this race. 
 'Tain't necessary; you've got it won hands down.' 
 
 " And the old man passed out of my sight. Gen 
 tlemen, that's been a long time ago, but I can see old 
 Uncle Si now as plain as if it was yesterday 
 
 " And yet the Court here says it's all imagina 
 tion."
 
 CHAPTER VIII 
 
 WHEN court convened the next morning the atten 
 dance of the public had been so augmented that 
 there was scarcely a vacant seat remaining in the 
 room. The Dudley murder trial was the drawing 
 card. The sheriff had diligently executed the va 
 rious processes for both the State and the defendant, 
 summoning their witnesses, of whom there.were not 
 a few. Friends and relations of the defendant and 
 of the murdered man supplemented the attendance 
 considerably. There was the usual hush and ex 
 pectancy that is always incident to a momentous 
 trial. Speculations and expressions of guilt and 
 innocence were whispered. The defendant's wife, 
 a sweet- faced little woman, sat meekly and almost 
 tearfully near the defendant's counsel table. Two 
 little boys, aged six and eight years respectively, sat 
 one on either side of her. Each swung his cap to 
 and fro and looked somewhat cowed by the press 
 ing, staring sea of strange faces. At intervals the 
 mother would gaze at her two boys with infinite 
 tenderness and draw them closer to her. Imagina 
 tion took wing at the sight of this young woman 
 clinging to her two brown-haired, brown-eyed sons. 
 Her husband had been in the Mecklenberg County 
 jail for some months. You could not reject the 
 mental photograph of this wife and mother many a 
 desolate, miserable night looking long and tenderly 
 at those two brown heads on the same pillow, the 
 
 75
 
 ;6 NISI PRIUS 
 
 father penned in an iron cage charged with murder. 
 Gentle, tender young wife and mother, if you have 
 courage, prepare to employ it now, thine hour of 
 sore travail is come. 
 
 Back of the prosecutor's table were banked the 
 other wife and the other children widow and 
 orphans of the murdered man. Haggard was in 
 his seat, and in his rear sat the County Attorney, 
 who, by virtue of his office, assisted in the prose 
 cution. The countenance of the Commonwealth's 
 Attorney presented problems impossible of under 
 standing. He was seen to gaze long and intently 
 at Mrs. Dudley and her two handsome boys. A 
 look of indefinable pathos, short-lived as a meteor, 
 swept across his face, only to be succeeded by his 
 customary calm, impenetrable expression. 
 
 While the orders of the previous day were being 
 read, Henderson and Brownlow, counsel for the de 
 fendant, entered and took seats at their table. All 
 eyes were turned toward Tom Henderson. He 
 had a fatigued, weary appearance, as if a great 
 weight rested on his fine, broad shoulders. It did 
 not require an excessively penetrating mind to 
 fathom the fact that this lawyer had not slept many 
 hours the night previous. Brownlow seemed nerv 
 ous, while Henderson appeared tired, and Haggard 
 impenetrable and fathomless. 
 
 " Commonwealth v. Hiram Dudley, indicted for 
 murder," said Judge Lowden. " What do you say 
 for the Commonwealth, Mr. Haggard ? " 
 
 " Your Honor, I'll ask the sheriff to call these 
 witnesses."
 
 NISI PRIUS 77 
 
 The sheriff did as directed. All the State's wit 
 nesses, with a few exceptions, responded. 
 
 " May it please the Court," said Haggard, " if 
 your Honor will indulge me, I will ask for a few 
 minutes to talk to these witnesses before I an 
 nounce." 
 
 " Very well. Messrs. Henderson and Brown- 
 low, the Court suggests that you call your wit 
 nesses and confer with them while Mr. Haggard is 
 out, in order to save time," directed Lowden. 
 
 " Certainly, your Honor," said Brownlow, ris 
 ing and handing a list of names to the sheriff, who 
 proceeded to call them. Remarkable to state, every 
 witness answered. This case had been continued 
 at the last term, and these gentlemen knew another 
 continuance on their motion was well-nigh out of 
 the range of things possible. Accordingly, they 
 bent every effort to " get ready," determined to 
 have it out and over with. Henderson and Brown- 
 low thereupon retired, followed by a great horde 
 of witnesses. 
 
 After a time the assembled spectators grew rest 
 less in waiting. The Judge quietly read a news 
 paper, as if unmindful of the unpardonable incon 
 venience the onlookers were suffering. After so 
 long a time Messrs. Henderson and Brownlow filed 
 back into court, followed by those who had gone 
 out with them. They took their seats. Presently 
 Haggard walked briskly in, conferred with the 
 Court in a whisper, and took his seat. 
 
 "Mr. Jailer," said the Court, "bring out the 
 defendant."
 
 78 NISI PRIUS 
 
 The jailer hobbled off to execute that order, and 
 a deep and penetrating silence fell throughout the 
 room. At each noise heard at the door the audi 
 ence turned and stared to catch a glimpse of the 
 prisoner. There were many false alarms. Finally 
 the jailer appeared, and by his side walked, with 
 head erect, Hiram Dudley. He went straight to 
 his wife and took his seat at her side, just in the 
 rear of his attorneys. He smiled bravely at his 
 little family. They had breakfasted with him in the 
 jail that morning. He looked for an instant into 
 the faces of his two boys, and something glistened 
 in his eyes, but only for a second's time. Then he 
 whispered in his wife's ear, and she smiled faintly. 
 
 Hiram Dudley, a young Mecklenberg County 
 farmer, was thirty-four years of age.' k He was 
 slightly over the average height, with clean-cut fea 
 tures, a rather finely shaped head, dark brown 
 eyes, and a chin that at once challenged attention 
 for its indication of strength. 
 
 "What do you say, Mr. Haggard?" said the 
 Court. 
 
 " The Commonwealth is ready," replied the 
 State's Attorney. 
 
 Mrs. Dudley remembered those four words years 
 after all these things had transpired. 
 
 " And you, gentlemen ? " said Judge Lowden. 
 
 " The defendant is ready, your Honor," replied 
 Henderson. 
 
 " Mr. Clerk, draw a jury," ordered the Court, 
 and the celebrated case of the Commonwealth v. 
 Dudley wa.s under trial.
 
 NISI PRIUS 79 
 
 Twelve of the regular panel were called and 
 took their seats in the jury box. After being duly 
 sworn, they were interrogated by the State's At 
 torney. One was a distant relative of the accused, 
 two others had formed and expressed an opinion, 
 and another had formed an opinion from current 
 rumor, but did not recall whether he had expressed 
 it. The four were excused on peremptory chal 
 lenge. Their places being rilled, the interrogation 
 was resumed. One of the questions put by Hag 
 gard struck cold the beating heart of the defend 
 ant's wife. 
 
 " In a case," said he, " where the law and the 
 evidence justified it, have you such conscientious 
 scruples against capital punishment as would pre 
 vent you from returning a verdict of guilty and 
 fixing the penalty at death." 
 
 " Ask that again, please," requested a rather 
 timid-looking juror. The question being repeated, 
 he said, after a visible pause: 
 
 " I couldn't hang a man." 
 
 " Challenge for cause," said Haggard. 
 
 " Sustained ; stand aside," said the Court. 
 
 Another juror had the question repeated. He 
 said it would require " mighty clear evidence ; but 
 if he's proved guilty, I could do it." Henderson 
 made a note of this. Finally after more question 
 ing and the excusing of one and examination of an 
 other juror, Haggard and the County Attorney con 
 ferred with the murdered man's widow, and Hag 
 gard said in firm voice: 
 
 " The Commonwealth accepts the jury."
 
 8o NISI PRIUS 
 
 By the Court : " What do you say for the de 
 fense?" 
 
 " We desire time to confer, your Honor," said 
 Brownlow, whereupon Brownlow, Henderson, Mrs. 
 Dudley and, the Court consenting, Dudley accom 
 panied by the jailer filed out of the court-room and 
 repaired to the County Clerk's office, which was lo 
 cated in another building on the court-house square. 
 When the party reached their room of consultation 
 it was agreed that Brownlow, Dudley, and Mrs. 
 Dudley should remain there and look closely over 
 the jury list, while Henderson should hasten to 
 Jim Hanna and consult him. 
 
 " He knows more," said Henderson, " about the 
 private lives of these men than all the lawyers in 
 Greenwood combined," and he hastened out in 
 quest of Hanna. He found him drawing a bucket 
 of water from the well in the rear of his hotel and, 
 beckoning him to a room, the two at once repaired 
 thereto. 
 
 "Want a little drink?" said Jim. 
 
 " Drink ! Hell, no, man, not now ! I want to 
 go over this jury list. The Commonwealth has 
 accepted this jury" showing the list "in the 
 Dudley case, and some of them have got me 
 stumped." 
 
 " Awful lot of hanging fellows on there, Tom," 
 gravely said Old Jim. 
 
 " Oh, Jim, cut out your jokes. This is no time 
 for nonsense. I want you to tell me all you know 
 about these fellows. I'll begin at the top. How 
 about Squire Henry ? "
 
 NISI PRIUS 81 
 
 " Don't take him," asserted Jim. 
 
 "Why?" asked the lawyer. 
 
 " He was a justice of the peace for twelve years," 
 replied Jim, " and they always develop into the 
 strongest prosecutors. Every man arrested is al 
 ways guilty with them. Scratch him." 
 
 "Well, how about Henry Rhoads?" 
 
 " Well, Henry is a good sort of a fellow. Hasn't 
 got much strength, apt to go with the majority of 
 the jury. I don't believe he would ever sign a 
 death verdict. I'd take him." 
 
 "There's Joe Walker," continued Henderson; 
 " he's a former client of mine, and we are good 
 friends." 
 
 " Is he the Walker that lives down here beyond 
 old man Harbison's on the Madisonville road? 
 Yes? Well, don't take him. He had an older 
 brother killed in a brawl twenty years ago, and he 
 spent a small fortune trying to convict his slayer, 
 but never succeeded. He would likely want to con 
 vict." 
 
 " Well, what do you say to Tom Spruce? " asked 
 Henderson. 
 
 "Did Haggard accept that fellow?" asked Old 
 Jim. " You don't tell me ! You take him quick. 
 He had a row with Jack Thomas a few years ago, 
 something like the fuss Dudley had with him. It 
 was about a division fence, and they quarreled over 
 it for years. Take him? I should say so." 
 
 " Bob Gaines ? " inquired the lawyer. 
 
 Hanna pondered briefly and said slowly: 
 
 " I'd accept him. He was arrested once and
 
 82 NISI PRIUS 
 
 tried and acquitted. It was a small offense, and 
 the evidence against him was nearly all circum 
 stantial. They will have to cite him with their 
 circumstantial evidence." 
 
 " J. H. Howley, Mrs. Dudley knows him well, 
 and we are going to accept him. W. T. Baxter 
 what about him ? " asked Henderson. 
 
 " Well, he's a negative quantity himself, but he's 
 a cousin of Spruce, and will do whatever Spruce 
 does. Take him." 
 
 " Ed Oats looks like a level-headed fellow to 
 me ? " inquired Henderson. 
 
 " Take him. Haggard has forgotten it, but he 
 had a son in trouble here a few years back, and 
 Haggard prosecuted him like the devil. Ed 
 couldn't agree with any argument of Haggard's, 
 ever." 
 
 " I know," said Henderson, " we don't want 
 George Garvin. He is too thick with the Thomas 
 family. The next is I. D. Burgher what of 
 him?" 
 
 " I hardly know about Burgher," said Jim. 
 " Let's see. I. D. Burgher. He's a great Baptist, 
 and all of Dudley's folks are Baptists. He's a 
 clean man, a kind-hearted sort of fellow. I believe 
 I'd take him." 
 
 " What about Buck Sawyer ? I don't even know 
 him," asked Henderson. 
 
 " Sawyer," said Hanna, " hasn't lived in this 
 country long. He came from Logan about six 
 years ago. He has a young wife and two tow- 
 headed boys just about like Dudley's."
 
 NISI PRIUS 83 
 
 " I noticed when he was questioned," said Hen 
 derson, "he begged the judge to excuse him; that 
 struck me. I think we will just accept you, Mr. 
 Sawyer. Now here's the problem Captain 
 Vance. What do you say about him, Jim? Re 
 member, he is a strong-willed man." 
 
 " Now there is a problem," essayed Old Jim, as 
 he knit his brow. " One thing is sure. He'll con 
 trol that jury. If he's for you, you are in the 
 clear; but if he is against you, it's hell to pay. I 
 remember once he was on a jury here in a dam 
 age suit. When they went out they stood eleven 
 to one against him, but in three hours they filed in 
 with a unanimous verdict, his way. Let's see, let's 
 see," reflected Hanna. " His daughter married a 
 Weir; there's no connection there. One of his 
 boys went off to Texas, one married a Gordon, and 
 had some kind of trouble divorce maybe. The 
 old Captain had a terrible suit here with the Green 
 wood National Bank. My, he was bitter! Oh, 
 yes, Jackson's brother-in-law was a director in that 
 bank, and I've heard that before the War the Cap 
 tain had some kind of trouble with a woman. I 
 imagine that evidence was mostly circumstantial. 
 But, you know, he was foreman of that jury that 
 gave Bud Henson the limit. That was a strong 
 case of guilt, though. Let me see. Tom, damned 
 if I wouldn't take him, if it was me," concluded this 
 master of this rare and devious art of selecting a 
 jury. 
 
 " Thanks, Jim, that's the twelfth man," and Hen 
 derson hurried to the Clerk's office. On reaching
 
 84 NISI PRIUS 
 
 there Brownlow remarked that the Court had sent 
 for them. A hurried comparison of conclusions 
 was had, and the party filed into court. 
 
 " The defense will excuse T. J. Henry, Joe 
 Walker, and George Garvin," said Henderson, ad 
 dressing the Court. 
 
 The County Attorney shot a pleased smile at 
 Haggard, who sat impenetrable. Brownlow caught 
 the smile. It made him nervous. He said to Hen 
 derson, 
 
 " Whom could we have left on that jury that 
 tickles the other side so much ? " 
 
 " Don't know," muttered Henderson ; " one 
 thing certain, we know more about that panel than 
 they do." 
 
 Three new jurymen were called and examined. 
 The State excused one. Another was called and 
 disqualified himself. He had an opinion. The 
 next qualified and, after consulting, the State again 
 accepted the jury. 
 
 The defendant's counsel held a whispered con 
 ference. They were fully satisfied with two of 
 the three last called, but were perplexed as to Ja 
 son Barrow, a sphinxlike fellow who betrayed 
 nothing in his countenance. Jim Hanna had care 
 lessly wandered into the court-room, which fact 
 was unknown to Henderson and Brownlow. 
 Brownlow was inclined to accept Barrow, while 
 Henderson was tortured by grave misgivings. 
 While thus in doubt Henderson felt a nudge, and 
 on turning was handed a small bit of the margin 
 of a newspaper, on which was scrawled these
 
 NISI PRIUS 85 
 
 words: " Scratch Barrow; he'll ruin you." It was 
 unsigned. Henderson clandestinely looked about 
 him and surveyed the audience. He discovered 
 Hanna, who gave him a significant nod. Then 
 followed another conference with Brownlow, after 
 which Henderson said: 
 
 " We excuse Mr. Barrow." 
 
 " Call another, Mr. Clerk," ordered the Court. 
 
 " That exhausts the regular panel, your Honor," 
 responded the clerk. 
 
 " Mr. Sheriff," said Judge Lowden, " summon a 
 by-stander." 
 
 The sheriff gazed scrutinizingly over the throng 
 of masculine faces present, hesitated, and called 
 out: 
 
 " Come around, Mr. Agnew." That gentleman, 
 who was seated in the rear of the room, arose and, 
 with screeching new brogans, that screeched and 
 screeched and screeched with his every step, came 
 forward. He was sworn, qualified, and quickly 
 accepted by the Commonwealth. 
 
 " Judge," spoke up Henderson, " I hope your 
 Honor will pardon me, but I'm called to the tele 
 phone for a moment." 
 
 O Henderson, in this thou art a liar, but a kind 
 Providence will doubtless hold thee guiltless, so 
 great and terrible is the battle thou art engaged in ! 
 
 Henderson being told by the Court to return as 
 quickly as possible, hurriedly left the court-room, 
 sending a knowing look to Old Jim Hanna as he 
 passed out. Hanna, with excellent sang froid, 
 liesurely walked out of the court-room, the most
 
 86 NISI PRIUS 
 
 indifferent mortal conceivable. At the door Hen 
 derson nervously seized Old Jim's coat-sleeve, 
 saying : 
 
 " What on earth do you know about this Ag- 
 new? Dudley doesn't like his looks." 
 
 " Nothin','' vouchsafed Hanna. 
 
 " I don't propose to accept a juror," replied Hen 
 derson, " when I'm absolutely in the dark." 
 
 " Bob Jenkins over there came from Agnew's 
 neighborhood suppose we go to the store and 
 ask Bob ? " suggested Hanna. 
 
 The two men hurried across the street and 
 found, on inquiry, that Jenkins was in the court 
 room attending the trial. He was hurriedly sent 
 for and at once joined them. 
 
 " Bob," said Hanna, " that fellow Duke Agnew, 
 who has been called as a juryman over there, 
 didn't you come from his neighborhood ? " 
 
 To which Jenkins replied in the affirmative. 
 
 " Well," said Hanna, " would you take him as a 
 juryman if you were in Tom Henderson's place? " 
 
 Jenkins hesitated and seemed embarrassed. He 
 then suddenly said: 
 
 " Come back here, Jim," and the two men drew 
 apart from Henderson, engaging in a whispered 
 colloquy. Presently Hanna rejoined Henderson, 
 took him by the arm, silent the while, and the two 
 men left the store. When they had gotten well 
 out of Jenkins' hearing Hanna said : 
 
 " He made me swear I'd never tell you, but that 
 damned scoundrel Agnew stayed all night with 
 Jenkins last night and told him confidentially that
 
 NISI PRIUS 87 
 
 Dudley was as guilty as hell. Now what do you 
 think of that?" 
 
 " What a close call ! " was all the staggered ad 
 vocate could say. 
 
 When Henderson returned to the court-room and 
 had resumed his seat Brownlow arose and said the 
 defendant would excuse Mr. Agnew. 
 
 " Summon another by-stander," ordered the 
 Court. 
 
 The sheriff duplicated his former " gaze and 
 think " scene, and summoned Mr. Buskill. Buskill 
 was opposed to capital punishment, and was ex 
 cused. Mr. Mansard was summoned. The State 
 challenged for cause. The defense objected. His 
 qualifications were argued. The Court finally sus 
 tained the prosecution, and Mr. Mansard was ex 
 cused. 
 
 Mr. Turley was called. Hanna was now sit 
 ting near Henderson. While Turley was being 
 sworn, Hanna leaned toward Henderson and whis 
 pered, " Take him without fail, I can't explain 
 now, but you must have him on that jury. I'm 
 afraid, though," he added, " Haggard will excuse 
 him." 
 
 " I will try to dust Haggard's eyes," said Hen 
 derson. 
 
 Haggard began to interrogate Mr. Turley. Al 
 most immediately Henderson broke in, and, inter 
 rupting Haggard, said to the venireman: 
 
 " I did not understand your answer to Mr. Hag 
 gard's last question. What was it ? " 
 
 Turley repeated his answer, whereupon Hender-
 
 88 NISI PRIUS 
 
 son fairly leaped on him, making, apparently, a 
 desperate effort to disqualify him. He questioned 
 and cross-questioned him, but elicited no legal rea 
 son why he should not sit as a juror. Then to 
 complete the feint Henderson, with grave mien, 
 said: 
 
 " We challenge Mr. Turley for cause." 
 
 " Overruled," responded the Court. " What do 
 you say to the jury, Mr. Haggard? " 
 
 " The Commonwealth accepts the jury, your 
 Honor," replied the prosecuting attorney. 
 
 " And so do we, your Honor," quickly retorted 
 Henderson. 
 
 Haggard saw in a flash how skillfully the trap 
 had been set, and how speedily and unconsciously 
 he had fallen into it. He had accepted Turley be 
 cause Henderson's questions and challenge led to 
 the impression that the defense did not want him 
 under any circumstances. Lowden saw it all. He 
 could not but admire the consummate skill Hender 
 son had employed in trapping the able prosecutor. 
 Haggard bit his fine, thin, tightly compressed lips, 
 and perhaps inwardly and bitterly resolved to have 
 his vengeance before the end of the trial. 
 
 O Haggard, do not chide yourself for this er 
 ror! You are a great criminal lawyer, but in this 
 master science in which you are engaged the great 
 and the small, the giants and the pigmies, all must 
 take sword thrusts. Sometimes they are pinioned 
 fatally, again they recover and draw. Deity has 
 accomplished many things, but as yet no brain has 
 been constructed, in this or any other age or clime,
 
 NISI PRIUS 89 
 
 that surely could call itself master of this vast, 
 illimitable, boundless thing the law. 
 
 " Swear the jury to try the issue," were the 
 words from the bench that broke in on Haggard's 
 reverie, and Hiram Dudley was in jeopardy. 
 
 " Oyez ! oyez ! court now stands adjourned until 
 one o'clock," followed after the jury had been ad 
 monished and put in the custody of a deputy sheriff.
 
 CHAPTER IX 
 
 AT one o'clock actors and spectators in this drama 
 were all in their places. Following the usual brief 
 formality of opening court, the roll of the jury was 
 called. Henderson then asked for the rule that 
 is, the separation and exclusion of the witnesses 
 from the court-room. This motion, as a matter of 
 course, was sustained. All of the witnesses were 
 required to stand, were duly sworn, admonished, 
 and directed to keep without the hearing of the 
 court, but to remain in calling distance. They 
 sourly and gingerly left the court-house, much to 
 the gratification of certain spectators, who now had 
 comfortable seats. 
 
 " Read the indictment, Mr. Haggard," said the 
 Court. 
 
 Haggard arose, holding a single piece of paper 
 in his hand. 
 
 " May it please the Court and you gentlemen of 
 the jury, I will read this indictment." Then fol 
 lowed the formal charge couched in simple lan 
 guage. Mrs. Dudley caught only certain words, 
 such as " offense of murder " and " willfully, un 
 lawfully, feloniously and with malice afore 
 thought," " shoot and kill one Jackson Thomas," 
 " leaded ball or balls," " a year and a day," 
 " against the peace and dignity of the Common 
 wealth of Kentucky." 
 
 "To all of which," Haggard continued, "the 
 
 defendant enters a plea of " 
 
 90
 
 NISI PRIUS 91 
 
 " Not guilty," said Henderson. 
 
 " And," continued Haggard, looking at Hender 
 son, who nodded his head affirmatively, " waives 
 formal arraignment. Gentlemen, it is sometimes 
 my custom to make an opening statement on the 
 beginning of a trial such as this. However, I shall 
 not do so on this occasion. I shall only say that 
 from the evidence you will hear you will see laid 
 bare a fiendish, foul, cold-blooded, and cruel mur 
 der. The defendant, in the night time, like an 
 assassin, shot and killed Jackson Thomas, a citizen 
 of your county. He was killed in the very prime 
 of life, in the very bosom of his family. The poor 
 fellow was beneath his own vine and fig tree, joy 
 ous with his wife and children about him, and was 
 brutally murdered, without a chance to defend him 
 self shot down like a dog, his very bowels being 
 scattered over his hearthstone. The great State of 
 Kentucky demands at your hands that this cow 
 ardly assassination be revenged. You will hear 
 the evidence, gentlemen, and make up your verdict 
 accordingly." 
 
 The Court inquiringly looked at Henderson, who 
 arose and said : 
 
 " Your Honor, we do not know that we care to 
 consume any time in making an opening statement, 
 but should we conclude to do so, we will reserve 
 our statement until the conclusion of the Common 
 wealth's evidence." 
 
 " Call a witness," ordered the Court. 
 
 " Call Mrs. Mary Thomas," said Haggard. 
 
 Mrs. Thomas was called. She appeared clad in
 
 92 NISI PRIUS 
 
 the deepest black, threw her veil aside, held up 
 her right hand, was sworn and took the witness 
 stand. 
 
 Her voice trembled perceptibly, but soon assumed 
 its normal tone. Omitting preliminaries, she 
 stated that she was the widow of the late Jackson 
 Thomas; she and her husband and their six chil 
 dren had resided on a farm about eight miles out 
 from Greenwood on the Russellville road. Hiram 
 Dudley lived on an adjoining farm. Her husband 
 was shot and killed at about eleven o'clock at night 
 at his door on the I4th of the preceding August. 
 She was at the house at the time. 
 
 " Now, Mrs. Thomas, I want you to tell the jury 
 in your own way just what transpired that night," 
 said Haggard. 
 
 " Well, we had supper as usual, and Jack 
 that's my husband he went down into the lower 
 field to turn the cattle into the pasture you 
 know we used one pasture in the day time and an 
 other at night. Well, the pasture we used to use 
 had been plowed up and " 
 
 By Mr. Haggard, in a kind voice: 
 
 " Never mind, Mrs. Thomas, about those things. 
 Just relate the things that occurred at the time of 
 the assassination of your husband." 
 
 " Oh, excuse me," broke in Mrs. Thomas ; " this 
 is my first experience in court. I'll do my best, 
 Mr. Haggard. Well, after my husband returned 
 from the pasture we were sitting on the porch 
 watching the moon rise and he said to me, 
 ' Mary,' "
 
 NISI PRIUS 93 
 
 " We object," thundered Brownlow and Hen 
 derson in a duet. 
 
 " Yes, don't tell anything your husband said to 
 you on the porch," suggested Haggard. " Just 
 tell what occurred at the time of the shooting." 
 
 " Well," said the witness wearily, " Jack and I 
 sat there and talked until about nine o'clock, and 
 then we went to bed. The two older children were 
 staying all night with Henry Storms' children and 
 the others were in bed. Our room is upstairs 
 over the downstairs bedroom. We used to sleep 
 downstairs, but Jack and I talked about it and he 
 said " 
 
 " We object," came the duet again from the de 
 fendant's table. 
 
 " Just confine yourself, madam, to the occasion 
 of the shooting," gently interposed Judge Lowden. 
 
 " Thank you, Judge, I'm trying my best to." 
 
 " Well, proceed," requested Haggard. 
 
 " What was the question you asked ? " inquired 
 the uninitiated witness. 
 
 " Just relate the facts about the shooting," said 
 Haggard. 
 
 " Well, we went to bed and were, I suppose, 
 asleep by half after nine. At ten minutes to eleven 
 o'clock I know, because I looked at the clock as 
 soon as Jack struck a light at ten minutes to 
 eleven o'clock we were both awakened by loud ham 
 mering or knocking on the front door downstairs. 
 We aroused at the same time. We both sat up in 
 bed that's an unusual thing in the country. The 
 knocking continued. Jack got out of bed, pulled
 
 94 NISI PRIUS 
 
 on his trousers, struck a match, looked at the clock, 
 lit a candle and said he would go down and see 
 who it was. As he went out the door and got to 
 the first landing on the steps the candle flickered 
 and went out. He did not relight it left it on 
 the window-sill, for I found it there the next day. 
 He went on downstairs and I went to my front 
 window out of curiosity, to see what I could see. 
 The moon was full, and it was as bright as day. 
 I could not see anywhere near the front door, as 
 the roof of the front porch cut off my view. 
 
 " I heard my husband unlatch the front door. 
 He then said through the screen door, ' Who is 
 it?' A voice answered, 'A quick delivery letter, 
 Mr. Thomas.' I then heard him unlatch the screen 
 door and heard it open it always screeched on 
 
 its hinges. Then I heard Oh, I can't tell it ! 
 
 I can hear it all in my ears now and " Here 
 
 the witness broke down and sobbed hysterically. 
 
 " Calm yourself, Mrs. Thomas, and do not 
 hurry," said the Court. " Mr. Sheriff, hand Mrs. 
 Thomas some water." 
 
 She drank the water, dried her eyes, and seemed 
 stronger than before the break-down. She re 
 sumed : 
 
 " When the screen door opened I heard a terri 
 ble report like both barrels of a shotgun fired at 
 once. I was stunned and almost froze where I 
 stood. An instant after the shot I saw out the 
 window a man running rapidly across the yard, 
 diagonally. He leaped the fence with one bound, 
 mounted a horse standing there and rushed away.
 
 NISI PRIUS 95 
 
 He had something in his hand that I took to be a 
 shotgun. At the same time that he jumped the 
 fence I saw a white dog leap the fence and run off 
 down the road, south, the direction the man 
 had taken. All this I saw in a twinkling." 
 
 " Now, did you hear any voices downstairs," 
 asked Haggard, " either just before, at the time of, 
 or immediately following the report of the gun?" 
 
 " Yes, sir, I did. I distinctly heard some one 
 say, ' Nine hundred dollars.' I did not recognize 
 this voice. Then I heard my husband's! voice. He 
 used Hiram Dudley's name. Everybody calls 
 Mr. Dudley ' Hi ' for short. I heard Jack say, 
 ' You are Hi ' He never finished the sen 
 tence. The gun fired at that instant." 
 
 Henderson was objecting to all these state 
 ments, but the Court held they were a part of the 
 res gestae and competent. 
 
 " Well," inquired Haggard, oblivious to the ob 
 jections, "did you hear anything further?" 
 
 " Yes, sir," continued the witness. " As the 
 man dashed away on his horse I rushed to my hus 
 band. As I went down the stairs I heard him use 
 these words ' Woman Leavenworth extor 
 tion.' I got to his side then. He never spoke 
 again. The children were up and rushed out for 
 the doctor. He groaned twice and died with his 
 head in my lap." 
 
 Here the witness again broke down. She again 
 restored herself after a brief pause. 
 
 " How long have you known the defendant, Hi 
 Dudley?" inquired Haggard.
 
 96 NISI PRIUS 
 
 " Ten or twelve years," answered the witness. 
 
 "By what name did your husband call him?" 
 
 " Always called him Hi," she replied ; " that is, 
 he used to when they were on speaking terms. 
 They haven't spoken, though, for three or four 
 years." 
 
 " Why was that ? " interrogated counsel. 
 
 " They had a misunderstanding about some of 
 Mr. Dudley's hogs getting in our corn. We took 
 the hogs and held them until the damages and feed 
 bill were paid. Mr. Dudley and Jack came near 
 to blows in our lot one evening, and, with the help 
 of Tom Ennis, I separated them. They haven't 
 been on good terms since." 
 
 " You say you saw the man run across the yard, 
 leap the fence, and ride away? Compared to the 
 defendant's build, what size man was that ? " 
 
 " He was just of such a build as Mr. Dudley." 
 
 " You say you saw a white dog leap the fence 
 at the same time. State whether or not at that 
 time Dudley owned a white setter dog?" 
 
 " Yes, sir, he did that followed him every 
 where." 
 
 " How did the size of that dog you say jumped 
 the fence compare with the size of Dudley's dog? " 
 
 " Just about the same size." 
 
 " With reference to Dudley's house, which 
 way did the man go after he mounted ? " 
 
 " He went in the direction of Mr. Dudley's 
 house." 
 
 "Which direction did the dog go?" 
 
 " The same the man took."
 
 NISI PRIUS 97 
 
 " How long did your husband live after you 
 reached him ? " 
 
 " I should say from two to three minutes." 
 
 " Immediately after he died, did you make a 
 light and examine the hall ? " 
 
 " Yes, sir as best I could in the condition I 
 was in." 
 
 "If you discovered or found anything, state 
 what it was ? " 
 
 " I found this gun wad. That gun was a muz 
 zle-loader. I found this paper wad in the burnt 
 clothing of my husband, where the wound was in 
 flicted." 
 
 " Unwrap that paper and read anything that may 
 be on it?" 
 
 " It is badly singed and powder burnt. All I 
 can decipher are the words in large black letters, 
 ' Farmer's Gaze ' ' : 
 
 " Is there a publication that circulates about here 
 called The Farmer's Gazette?" 
 
 " There is." 
 
 " Do you know, of your own personal knowl 
 edge, whether at the time of this murder Hiram 
 Dudley was a subscriber to this journal?" 
 
 Henderson turned visibly pale at the question. 
 
 "I do not of my own knowledge," replied 
 the witness. 
 
 "Did you find anything else there?" pursued 
 the relentless prosecutor. 
 
 " Yes, on the porch, just in front of the door, I 
 found this." 
 
 Here the witness exhibited a white handkerchief
 
 98 NISI PRIUS 
 
 with a thin stain of blood, not more than a half 
 inch in width, but extending entirely across the 
 handkerchief. 
 
 " Do you, of your own knowledge, know whether 
 the morning of the day this killing occurred the 
 defendant Dudley had cut his right forefinger and 
 had tied it up with his handkerchief ? " 
 
 " I do not of my own knowledge." 
 
 " Were you awake the remainder of that night 
 after your husband was killed?" 
 
 " I was." 
 
 " The next day, did you see any tracks in the 
 yard in the course taken by the murderer? " 
 
 " Yes, sir. The yard was in grass and the 
 ground was hard except on that side of the yard. 
 I had been preparing to replant some flowers in 
 an old bed over there and there was soft earth 
 running alongside the fence for about twenty feet. 
 It was about fifteen feet wide. I saw four or five 
 tracks there at daylight the next day." 
 
 " Did you the next day see any shoes fitted to 
 those tracks ? " 
 
 " Yes, sir, and they fit exactly." 
 
 " We object, your Honor," snapped Henderson. 
 " They have not shown the absence of opportunity 
 for forty people to make tracks in that yard be 
 tween 10:50 p. M. and daylight." 
 
 " If the .Court please, I propose to show that by 
 other proof. I can introduce but one witness at 
 a time," replied Haggard. 
 
 " On that idea, you may proceed," said Judge 
 Lowden.
 
 NISI PRIUS 99 
 
 " Do you know whether those shoes were Hiram 
 Dudley's?" 
 
 " The sheriff said " 
 
 " Never mind what anybody said, Mrs. Thomas," 
 interrupted Henderson. 
 
 " I do not know myself," she added. 
 
 " Mrs. Thomas," continued Haggard, " did any 
 physician reach your house that night? " 
 
 " Yes ; Dr. Dayton got there an hour after my 
 husband died. He examined him and picked a 
 dozen shot out of what he called the surface 
 wounds." 
 
 " Have you those shot and did you see the doc 
 tor get them out ? " 
 
 " I did. Here they are." 
 
 And the witness opened a small paper package 
 and held the shot in the palm of her hand. 
 
 " Do you know whether they are squirrel shot? " 
 
 " I'm not a hunter, but they are thq size my boys 
 always use in squirrel hunting." 
 
 " Do you know whether Hiram Dudley is a 
 squirrel hunter? " 
 
 " Yes, sir. He is regarded as a wonderfully fine 
 shot, and always makes the biggest bag squirrel 
 hunting." 
 
 Haggard paused and reflected. The County At 
 torney whispered something in his ear. He re 
 sumed. 
 
 " Was this killing in this, Mecklenberg, county? " 
 
 "Yes, sir." 
 
 " Is this defendant here the Hiram Dudley you 
 have been talking about?"
 
 ioo NISI PRIUS 
 
 "Yes, sir." 
 
 Then followed a brief consultation with the 
 County Attorney. Haggard stroked his chin med- 
 itatingly, looked at the ceiling and said quietly : 
 
 " I believe you may take the witness, gentle 
 men."
 
 CHAPTER X 
 
 HENDERSON began the most difficult, dangerous, 
 and delicate task ever allotted to a lawyer the 
 cross-examination of the heart-broken widow of 
 the man your client is accused of slaying. Her evi 
 dence cannot be accepted as altogether true merely 
 for delicacy's sake. Courtesy to the gentler sex 
 and a general surrender to them in all departments 
 of life is altogether chivalric and gallant, but when 
 the man sitting behind you is staring at the gal 
 lows the woman in black is not a tear-stained, ten 
 der, gentle widow, but she becomes a witness, and 
 witness only. But beware lest you excite sympa 
 thy for her should you press too hard. So, be 
 tween that danger and the other absolute necessity, 
 you have no alternative. The bright and glittering 
 sword of Damocles hangs over your good, clear 
 head, Defender Henderson. Others greater than 
 you, so circumstanced, have snapped the thin bar 
 rier and gone to their professional death. 
 
 Tom Henderson's distinct characteristic in the 
 cross-examination of a witness was brushing aside 
 all redundant matter and plunging heels over head 
 into the very gist of the evidence. He knew no 
 preliminaries. Thus he began his task. 
 
 " You say you saw a dog jump the fence? Are 
 you sure of this ? " 
 
 "Yes, sir, I am." 
 
 "It was a moonlight night?" 
 101
 
 102 NISI PRIUS 
 
 "Yes, sir," .. 
 
 " At that. time did not _one pf your boys own a 
 white goat ? " 
 
 "Yes, that is true." 
 
 " Did not this goat stay in the yard ? " 
 
 "Yes, sir." 
 
 " At a little distance, would it not appear to be 
 approximately the same size as Mr. Dudley's bird 
 dog? " 
 
 " Yes, it would, I believe." 
 
 " Have you not seen it jump the yard fence 
 often?" 
 
 " Yes, I have." 
 
 " Is! it not true that the goat was fearfully afraid 
 of the discharge of firearms? " 
 
 " I really do not know." 
 
 " At daylight, the morning after the killing, when 
 you examined the human tracks, did you see 
 whether the other tracks were made by a goat or 
 by a dog? " 
 
 " No, sir, we did not." 
 
 " If I understand you, your husband just before 
 the shot was fired said 'Nine hundred dollars'; 
 or some person said it, you didn't know who? " 
 
 " Yes, sir, that is true." 
 
 " That was not your husband's voice ? " 
 
 " I do not know; my best opinion is it was not." 
 
 " Do you know Mr. Dudley's voice ? " 
 
 " I do." 
 
 " Was it his voice ? " 
 
 " I cannot say." 
 
 " Give your best opinion."
 
 NISI PRIUS 103 
 
 " I do not know." 
 
 " Give your opinion." 
 
 " I have no opinion." 
 
 " Did it sound like Dudley's voice ? " 
 
 " I do not know." 
 
 " When you heard the voice, you never thought 
 of Dudley, did you?" 
 
 " No, sir." 
 
 " Then there was nothing in the voice to remind 
 you Dudley was there? " 
 
 " No, sir." 
 
 " You didn't then think it any voice you knew, 
 did you?" 
 
 " No, sir." 
 
 " The voice you heard had nothing about it to 
 remind you of Dudley, did it?" 
 
 " No, sir." 
 
 " Well, then, it did not sound like his voice, did 
 it?" 
 
 " No, I don't guess it did." 
 
 " Well, now, after the nine hundred dollar ex 
 pression uttered by a strange voice, you say you 
 
 heard Mr. Thomas say, ' You are Hi ,' and no 
 
 more ? " 
 
 " Exactly." 
 
 " Now, did your husband say this * You are 
 h-i-g-h/ referring to the nine hundred dollars? " 
 
 " I don't know what he meant. I only know 
 what he said." 
 
 " Isn't it just as consistent with what you heard 
 to say that he said ' H-i-g-h ' as to say he said 
 'H-i'?"
 
 104 NISI PRIUS 
 
 " I suppose it is." ) 
 
 " After he was shot, you heard these words 
 ' Woman Leavenworth extortion ' spoken by 
 Mr. Thomas ? " 
 
 "Yes, sir." 
 
 " Hadn't your husband lived in Leavenworth, 
 Kansas, before he and you were married?" 
 
 " Yes, sir, for only a few months. Twenty 
 years ago." 
 
 " Do you know whether on the day before the 
 day he was killed a stranger called at your house 
 to see your husband ? " 
 
 " Yes, sir a man came there to see Jack the 
 day before." 
 
 " Is it not true that you and Mr. Thomas were 
 seated on your front porch and this man rode up 
 to the gate? And didn't Mr. Thomas, as soon as 
 he saw the stranger, leave you and go to the yard 
 gate and meet the visitor at the gate ? " 
 
 " Yes, sir ; but what has that to do with this 
 case ? " 
 
 " How long," persisted Henderson, " did the 
 stranger remain in conversation with your husband 
 at the gate ? " 
 
 " How long? I should say about thirty or forty 
 minutes." 
 
 " When your husband returned to you, did he 
 offer any explanation as to who his visitor had 
 been?" 
 
 "No, sir, he did not." 
 
 " Did you inquire ? " 
 
 " No, sir. Just as soon as he got to the house
 
 NISI PRIUS 105 
 
 he said he had to hurry out to the tobacco patch 
 to see after the hands." 
 
 " That is all, Mrs. Thomas/' concluded Hender 
 son abruptly. 
 
 " How far " re-examined by Haggard " is 
 your front yard fence from the front of your 
 house? " 
 
 " Really, I never measured it. I suppose, 
 though, it's something like fifty to sixty yards." 
 
 " What kind of walk leads from the gate to the 
 house?" 
 
 " Why, it's a gravel walk, with some rose bushes 
 on each side of it." 
 
 " You may stand aside. Call Dr. Dayton, Mr. 
 Sheriff," said Haggard.
 
 CHAPTER XI 
 
 DR. TOM DAYTON, perhaps more than six feet in 
 height, broad shouldered, a goodly sprinkling of 
 silver in his thin hair, took the stand. He wore 
 sideburns, and his bright eye twinkled the twofold 
 traits of candor and good humor. He took the 
 oath with the air of a man familiar with the pro 
 ceedings, as indeed he was. For forty years or 
 more this fine old country doctor had baffled the 
 snows of winter and the suns of summer over hill 
 and vale throughout all sections of Mecklenberg 
 County, comforting, cheering, healing. For this 
 he was paid sometimes. 
 
 Henderson knew that whatsoever the old doctor 
 said to that jury would be accepted by them as ab 
 solutely true. Therefore the chief counsel for the 
 defense had misgivings such as only those who 
 have had a similar experience can appreciate. 
 
 " Thomas E. Dayton, practiced forty years, 
 Mecklenberg County, Louisville School of Medi 
 cine," was his reply to counsel's first question. 
 
 Being requested to tell all he knew concerning 
 the tragedy, he said: 
 
 "About 11:30 at night on the I4th of last 
 August I got word to go to Mr. Thomas' quick. 
 I reached there some time after midnight. Mr. 
 Thomas was lying on his back in his front hall. 
 He was dead, and had been dead, I should say, 
 perhaps an hour. He had been shot in the stom- 
 
 106
 
 NISI PRIUS 107 
 
 ach a mortal wound. I examined his body. I 
 removed a number of shot from the epidermis ; they 
 were squirrel shot. The wound was sufficient to, 
 and did, produce almost immediate death. I saw 
 the gunwad and the handkerchief. Mrs. Thomas 
 showed them to me. After I had removed the 
 few shot I made an examination of the yard and 
 found four or five tracks in the soft earth, which 
 tracks led from the house to the fence in a diag 
 onal course. I at once gave orders to keep every 
 body off that ground, and one of Thomas' boys 
 stretched a wire around the tracks to keep people 
 off. Mrs. Thomas, in an hour after I reached her, 
 became hysterical and, being uneasy about her, I 
 remained there the rest of the night. The news 
 spread, and a short while after daylight many peo 
 ple called. The tracks were guarded and no one 
 touched them. That day I saw some shoes fitted 
 to them, and they fit precisely. I did not know 
 whose shoes they were." 
 
 " Ask him," said Haggard to Henderson. 
 
 The defendant's attorneys whispered one to the 
 other. Brownlow insisted on the witness being 
 cross-examined. Henderson feared it. Reluc 
 tantly, however, he began the cross-examination. 
 
 " Is it not true, Doctor, that when you reached 
 the house Mrs. Thomas was in such a state of 
 mental distress as to be hardly responsible ? " 
 
 "No, sir," firmly came from the witness; "on 
 the contrary, she was wonderfully calm and self- 
 possessed. Women are given to that in moments 
 of great distress. An hour after I reached the
 
 io8 NISI PRIUS 
 
 house, however, the reaction came and she was al 
 most demented. At first, though, she was thor 
 oughly at herself and related all the details of the 
 tragedy with remarkable coolness." 
 
 " Stand aside," came from Henderson quickly, 
 and he was seen to whisper into Brownlow's ear. 
 
 The next witness, Mack Burnley, took the wit 
 ness chair. Mr. Burnley was a neighboring 
 farmer, on pleasant terms with both families in 
 volved in this case. His reputation was that of an 
 honest man, and his veracity had never been ques 
 tioned. 
 
 He remembered the occasion of the killing. It 
 was a brilliant moonlight night. His house was on 
 the road between the Thomas house and the Dud 
 ley house. While the Dudley farm joined the 
 Thomas farm, yet by the public road the houses 
 were some two miles distant from each other. 
 
 " Tell the jury what you were doing that night, 
 and what you saw or heard, and give the time as 
 near as you can," instructed Haggard. 
 
 " I had been missing a lot of chickens lately, 
 and at first thought foxes were doing the work. 
 Later, I had reason to suspect otherwise, and I de 
 termined to watch and catch the thief. There is 
 an old summerhouse in the corner of my yard, 
 very near the public road, and after my henhouse 
 burned my wife had this old summerhouse fixed up 
 for a temporary henhouse. We were still using 
 it. Between it and my front fence about ten 
 feet apart they are is a low, thick cedar tree. 
 At about nine o'clock I got my shotgun and went
 
 NISI PRIUS 109 
 
 out and hid myself under this tree to watch for 
 the thief." 
 
 " How long did you stay there? " 
 
 " I guess until one or one-thirty in the night." 
 
 " Did you see the defendant that night ; if so, 
 state all about it?" 
 
 " I did. Somewhere about eleven o'clock I 
 didn't have a watch I heard a horse approach 
 ing me rapidly; sounded like it was running very 
 fast. Naturally, I kept very still and cocked my 
 gun. Hiram Dudley was riding the horse, and he 
 was going like the wind. He shot by me in a 
 second. It was bright as day, and I recognized 
 him and his horse; it was his sorrel three-year-old. 
 I would have spoken or hallooed, but as he was 
 passing I heard a twig break in 'the cedar thicket 
 next to my yard and I thought possibly my thief 
 was there, so kept still." 
 
 " Take the witness," said the prosecutor. 
 
 Henderson braced himself. Muttering inwardly 
 the word " caution," he proceeded. 
 
 "You had no watch?" 
 
 " No, sir." 
 
 " How far is it from your summerhouse to 
 Thomas' front gate ? " 
 
 " About a mile or three-quarters, possibly." 
 
 " At that time was there an old traction engine 
 on the side of the road between your place and 
 Thomas' front gate?" 
 
 " Yes, there was." 
 
 "How far was it from your place?" 
 
 " I guess about a quarter."
 
 no NISI PRIUS 
 
 " When Dudley passed you what was his man 
 ner? Did he say anything?" 
 
 " I did not hear him say a word. He was rock 
 ing in his saddle, peculiar-like ; rather reared back." 
 
 Now the next question in Henderson's mind, 
 even though yet unexpressed in words, made a cold 
 chill pass up and down his spine. He feared to 
 ask it, yet he felt it must be asked. Here's what 
 he whispered to Brownlow: " If he saw it you can 
 rest assured Haggard would have asked him. The 
 fact that Haggard failed to ask about it, proves 
 that he could not prove it by him. I am willing 
 to take the chance what do you say?" 
 
 " It's gambling," whispered Brownlow, " but all 
 the odds are our way." 
 
 " Now," said Henderson to the witness with rare 
 nonchalance, living an age the while, " it was a 
 brilliant night and you had no difficulty in recog 
 nizing Dudley and his horse ? " 
 
 " None whatever." 
 
 Henderson paused. He whispered to Brown- 
 low : " Let's wait. We can recall him later. I'm 
 afraid of it." Then to Burnley: "Stand aside." 
 
 " Just a moment," said Haggard, 
 
 " Was Dudley coming from the direction of 
 Thomas' house?" 
 
 " Yes, sir." 
 
 " Was he going toward his own ? " 
 
 "Yes, sir."' 
 
 " Judge," said Henderson, " perhaps the jury 
 would prefer hearing the witness testify than Mr. 
 Haggard. The questions are very leading."
 
 NISI PRIUS in 
 
 " Yes ; don't lead the witness, Mr. Haggard," 
 directed the Court. 
 
 " Call John Dudley," was Haggard's only an 
 swer. 
 
 John Dudley was the eight-year-old son of the 
 defendant. The Judge leaned forward intently. 
 Henderson had been prepared for this, and was not 
 the least abashed. His knowledge of what was to 
 follow perhaps helped in the matter of those sleep 
 less nights hereinbefore referred to. But at least 
 there was lacking the element of surprise a con 
 dition altogether consoling in such situations. 
 
 " Come around, John," it was Henderson's 
 cheery voice, " my little man, and talk to Mr. Hag 
 gard awhile." 
 
 Haggard said he did not care to have him sworn, 
 and that was dispensed with. Henderson wrote 
 on his memorandum of the trial these words, 1 " Jno. 
 D. testified against us. Not sworn. Error." 
 
 " My boy," kindly began Haggard, " how old 
 are you ? " 
 
 " Eight." 
 
 " Whose boy are you ? " 
 
 " Mrs. Dudley's ; used to be papa's and mania's 
 both, but papa's been gone so long I'm just mama's 
 now." 
 
 " Do you remember when they came and took 
 your papa away? " 
 
 " Yes, sir. Mama tells Will and me about it 
 every night when we say our prayers." 
 
 Haggard was beginning to feel ill at ease. This 
 manly little fellow had already dimmed the eye of
 
 H2 NISI PRIUS 
 
 every juror in the box. It was too late to retrace 
 his steps now. He somehow felt like a drowning 
 man. He must needs swim on and on until he 
 reached the shore; stop in midstream he could 
 not. 
 
 " Did your father have a shotgun ? " 
 
 " Yes, sir, a dandy," brightened the little fellow. 
 " He used to take me out huntin', and we had lots 
 of fun. The last time we went out that was 
 just before they took him away I saw an old 
 squirrel settin' on a limb in a tree across the fence, 
 and I said ' Hit him, Dad ' ; but he wouldn't do it. 
 He said Mr. Todd didn't like for nobody to kill his 
 squirrels, and it was Mr. Todd's land." 
 
 " Do you remember when you went to bed the 
 night before they took your father away? " 
 
 " Yes, sir." 
 
 " Did your father keep his gun in that room ? " 
 
 " Yes, sir." 
 
 " Did he keep it on the wall in a sort of a 
 rack?" 
 
 " There was two nails drove in the wall, big 
 nails, and he kept it hangin' on those nails." 
 
 " Before you went to sleep did you see your 
 father with the gun ? " 
 
 " Yes, sir, while I was in bed papa took the gun 
 down from the wall and was gettin' ready to load 
 it, but I went. to sleep right then." 
 
 " When you got up next morning where was 
 the gun ? " 
 
 " It was on the wall where it stays." 
 
 "You may ask him," concluded Haggard.
 
 NISI PRIUS 113 
 
 " We move to exclude all this witness' testimony 
 from the jury," he continued. 
 
 " What's the point? " inquired the Court. 
 
 " All incompetent," was the blanket response 
 made by Henderson. 
 
 "Overruled," said the Court. "Call another." 
 
 Henderson wrote in his memorandum : " Boy not 
 cross-examined ; no waiver of failure to swear him. 
 Motion to exclude overruled." 
 
 Tip Allen, deputy sheriff, was next called. He 
 had executed the warrant of arrest on August 15. 
 He went to Dudley's house with the warrant, about 
 noon. Told Mr. Dudley his business. 
 
 "What, if anything, did Dudley do or say?" 
 asked Haggard. 
 
 " He said very little. He thought for some 
 time and said : ' I'm ready to go with you.' I 
 asked him if he would object to allowing me to 
 examine his shotgun. He said ' Certainly not, ex 
 amine it ' ; and I did so, carefully." 
 
 " What kind of gun was it? " 
 
 " Double-barrel muzzle-loader." 
 
 " With reference to its having been fired, give 
 its appearance ? " 
 
 " The gun was empty. It looked to me like it 
 had been fired recently. It smelled of freshly 
 burned powder and there were two exploded caps 
 under the hammers." 
 
 " Is this the gun? " exhibiting a gun. 
 
 " Yes, sir, that is it." 
 
 " Now, did you say anything to Dudley about 
 his shoes or the tracks?"
 
 ii4 NISI PRIUS 
 
 ' Yes, I did. I told him there were some tracks 
 in the yard, and asked him if he would object to 
 lending me a pair of his shoes to fit in the tracks. 
 He said he would be glad to let me have them, and 
 gave me a pair." 
 
 " What did you do with them? " 
 
 " I left Mr. Dudley with the constable and went 
 and tried the shoes in the tracks." 
 
 "What result?" 
 
 " Well, they fit the tracks." 
 
 " Now, before you left Dudley's house did you 
 notice any wound on his finger? If so, tell about 
 that." 
 
 " Just before we left after I brought the shoes 
 back Mrs. Dudley got a piece of cloth and some 
 turpentine and tied up his right forefinger. He 
 had a cut place on it." 
 
 " Did he say anything about his finger? " 
 
 " He just remarked that he cut it to the bone 
 the day before." 
 
 " Give the names of those who saw the shoes 
 fitted in the tracks." 
 
 The witness named a dozen or more persons. 
 
 " That's all," said Haggard. 
 
 " Stand aside," quickly said Henderson. 
 
 Henry Reno was the next witness. He was 
 editor, owner, publisher, typesetter, newsboy, and 
 janitor of the Greenwood Record, a weekly news 
 paper published at Greenwood. Reno had a pencil 
 behind one ear, a pen behind the other, and news 
 papers protruding from every pocket. Who and 
 what he was was soon shown.
 
 NISI PRIUS 115 
 
 " As publisher of the Record, do you club with 
 other periodicals, that is, do you sell your paper 
 and include other journals?" asked Haggard. 
 
 "Yes, sir; we have all the metropolitan dailies 
 and others on our clubbing list." 
 
 " In your clubbing list is there such a periodical 
 as The Farmer's Gazette? " 
 
 "Yes, sir." 
 
 " Do you know the defendant, Hiram Dudley? " 
 
 " Quite well." 
 
 " Was he, on and prior to last August 14, a 
 subscriber to The Farmer's Gazette?" 
 
 " Yes, sir, he was." 
 
 "How do you know? " 
 
 " He subscribed for the Record for one year 
 June 17 last, and along with the Record he also 
 took the weekly Courier Journal and The Farmer's 
 Gazette. He told me afterward, in a joking way, 
 that the fellow who edited the Gazette was an ag 
 riculturist and not a farmer." 
 
 " That is all," by Haggard. 
 
 " How many other subscribers to the Gazette 
 were there in Mecklenberg County at that time ? " 
 cross-examined Henderson. 
 
 " My books show sixteen." 
 
 " Read the list, please ? " 
 
 The witness here read sixteen names, all of 
 whom are strangers to the reader with one excep 
 tion James Hanna, Esq. Reno then stood aside. 
 
 " May it please the Court," said Henderson, 
 " when Mr. Burnley was on the stand we neglected 
 to ask him a question. We want him recalled."
 
 n6 NISI PRIUS 
 
 Burnley again took the stand. Henderson, in 
 wardly a fit patient for a nerve expert, outwardly 
 as calm as any disinterested onlooker, proceeded 
 to the dangerous question he and Brownlow had 
 deferred till now. 
 
 " When you were waiting for chicken thieves," 
 began Henderson, " on the night of the tragedy, 
 you say you are sure it was Dudley who rode by 
 you?" 
 
 " Yes, I am positive." 
 
 " Wasn't it too dark for you to surely recognize 
 him?" 
 
 " No, sir ; I could tell almost as plain as I now 
 recognize you." 
 
 " But you could only see a dim form on horse 
 back a mere outline?" 
 
 " No. I could see everything, his hat, his face, 
 his arms, and I could see both his hands on the 
 bridle. It was plain as day. I wasn't eight feet 
 from him as he passed." 
 
 " Then you could see his arms and hands both 
 hands holding the bridle? " 
 
 " Yes, that is true." 
 
 " Then," triumphantly pressed Henderson, " he 
 had nothing in his hand other than the bridle ? " 
 
 " He did not." 
 
 " Are you sure ? " 
 
 " Absolutely sure." 
 
 " He did not have a shotgun, then ? " 
 
 " I never saw it." 
 
 " You saw both hands, his saddle, his shoul 
 ders and all, and you swear he had no shotgun? "
 
 NISI PRIUS 117 
 
 " I do. He could not have had a shotgun with 
 out me seeing it." 
 
 " Stand aside ; that is all," and Dudley's lawyer's 
 heart beat quiet. 
 
 " Gentlemen," said Judge Lowden, " it's grow 
 ing late and we'll adjourn here. Mr. Sheriff, what 
 deputy will you have to take charge of this jury 
 for the night?" 
 
 " Mr. Allen, your Honor," replied that kind but 
 thoughtless functionary. Henderson was on his 
 feet and at the Judge's bench in an instant. 
 
 " Don't worry, Tom," said the Court privately 
 to Henderson, before he could speak. Then quietly 
 addressing the sheriff, Judge Lowden reminded 
 him that Allen was a witness in the case and it 
 would be improper to place the jury in his cus 
 tody. Deputy Howard was then chosen, and 
 sworn to keep the jury together, suffering no per 
 son to speak to any of them, " and that you will 
 not do so yourself, concerning any matter relating 
 to this case," etc., etc. 
 
 " Now, gentlemen," continued the Court, ad 
 dressing the jury, " you are to be kept together as 
 the law requires in this sort of case. I want to 
 caution you. This is a very critical period in this 
 trial you can't be too prudent and too careful. 
 I don't want any man to find out how any jury 
 man views this case. If you are in any way ap 
 proached, remember it is an insult to you and con 
 tempt of this court. I don't apprehend any such 
 thing, but should it occur, you report it to the Court 
 and I will see that it is never repeated. I want
 
 NISI PRIUS 
 
 you to try this case like twelve, disinterested gen 
 tlemen ought to try a case. Don't discuss it in 
 any way. Don't make up your minds until you 
 have heard it all in the orderly, sober, quiet way 
 provided by law. Go now, gentlemen, until nine 
 o'clock to-morrow morning. Everybody remain 
 seated until the jury passes out. Mr. Sheriff, ad 
 journ court." 
 
 And as the building was emptying itself, its old 
 rafters echoed, as it had done for many a year, 
 with the now almost extinct: 
 
 " Oyez ! oyez ! the honorable Mecklenberg Cir 
 cuit Court now stands adjourned until nine o'clock 
 to-morrow morning."
 
 CHAPTER XII 
 
 PROMPTLY at the appointed hour the following day 
 hostilities were resumed. Haggard called and ex 
 amined a half dozen witnesses, who made state 
 ments similar to those of Mrs. Thomas and Tip 
 Allen regarding the tracks and the shoes. 
 
 He then called Bud Jones, who testified to hear 
 ing Dudley, three weeks before the killing, say that 
 he would kill Jack Thomas if he ever annoyed him 
 any more. He was not cross-examined. 
 
 In the vulgar jargon of the profession Haggard 
 was reserving his " big gun " for the last. Hen 
 derson was aware of this habit of his antagonist. 
 He thought he knew what the particular " big 
 gun " was, but despite this knowledge he could not 
 overcome a certain grave misgiving, when he 
 looked at the impenetrable Haggard, with his gran 
 ite-like expression. 
 
 Haggard had about " filled in " all the gaps in 
 the evidence, a proceeding so dull and uninterest 
 ing to the public and of so vital importance to the 
 making of a well-rounded, perfect, complete case. 
 This " filling in " process is carried out by calling 
 this witness and that witness to prove small and 
 comparatively insignificant facts. Such minor de 
 tails, taken separately, amount to nothing; mar 
 shaled collectively by a skillful and adroit advocate 
 the public then realizes their immense value and 
 importance. 
 
 119
 
 120 NISI PRIUS 
 
 Having thus " touched up " his case, the Com 
 monwealth's Attorney concluded to fire his " big 
 gun," then close and watch the enemy defend him 
 self. 
 
 " Call Miss Mary Holland," said he. 
 
 Now, Miss Holland was a cousin to Mrs. Dud 
 ley and resided with the Dudleys. She had lived 
 with them for several years, and was a member of 
 that household at the time this tragedy occurred. 
 When her name was called Henderson, though he 
 knew her testimony was extremely dangerous to 
 him, sighed a sigh of relief. Better, anything, 
 than springing a surprise at this stage of the trial. 
 He knew that this was Haggard's final thrust and, 
 though a broadside, it were better than a sudden, 
 unexpected stab in the dark. He despised woman's 
 tongue in general, when he reflected that Haggard 
 would never have had this witness from under Dud 
 ley's own roof but for her innocent indiscretion in 
 talking promiscuously on the day of Dudley's arrest. 
 It seemed the very irony of fate that this woman, 
 who loved the earth under the defendant's feet, 
 should be almost the chief reliance of the prosecu 
 tion against him. When she finally saw and 
 grasped her position, she had wept bitterly on Mrs. 
 Dudley's shoulder, then raged and stamped her 
 foot, and finally, with commendable heroism but 
 doubtful integrity, offered to merrily perjure her 
 soul and deny it all. Hiram Dudley had thought 
 it over. One day he sent for her to come to the 
 jail. 
 
 " Mary," said he, " this is bad enough ; don't
 
 NISI PRIUS 121 
 
 make it worse. You must tell the exact truth on 
 the witness stand. There are two reasons: First, 
 it is the truth ; second, they could prove you lied if 
 you denied it." 
 
 " You reside with the Dudleys, I believe ? " began 
 Haggard. 
 
 " Yes, sir, I do." 
 
 " Were you living there last August? " 
 
 " I was." 
 
 " Were you at home there the night Mr. 
 Thomas was killed ? " 
 
 " I was." 
 
 " Where were you that night, after ten o'clock ? " 
 
 " I was in my room at Mr. Dudley's." 
 
 " Does your room join his room? " 
 
 " Yes, it does." 
 
 " Did you see or hear him that night after ten 
 o'clock?" 
 
 " Yes, sir." 
 
 " Tell how that happened, what you saw, the 
 time, etc." 
 
 " Well, my room joins Hiram's. It was a very 
 hot night, and we had all the windows and doors 
 open. Mrs. Dudley and I talked until about nine 
 o'clock, and then retired. She went to her room, 
 where the two children were asleep, and I remained 
 in my room. Mr. Dudley was then sitting in his 
 wife's room where the children were reading. 
 I left my room door open and went to bed, extin 
 guishing the light in my room. I immediately 
 went fast asleep. Some time later, I don't know 
 whether eleven or twelve o'clock, I was awakened
 
 122 NISI PRIUS 
 
 by Mr. Dudley's voice in the side yard, saying, 
 ' Wooh, Dick ! ' Dick is the young horse on the 
 place. He kept this up awhile, and finally I heard 
 the stable door shut and Hiram entered the house, 
 coming around and entering the front door. I paid 
 no particular attention to it, as he had been going 
 down to Mr. Jason's, sitting up at night with Mr. 
 Jason, who was then quite sick. He came into the 
 hall and walked into his wife's room, she in the 
 meantime speaking to him. She struck a light 
 presently and, lying in my bed, I could see him. It 
 was then he walked to the nails on the wall and 
 hung up the shotgun he had in his hands." 
 
 " The first you saw was Dudley putting the shot 
 gun on the nails in the wall ? " 
 
 " Yes, sir." 
 
 " And that was between eleven and twelve 
 o'clock?" 
 
 " I should say about that time." 
 
 " Was Dudley in the habit of coming in with his 
 shotgun at that hour of the night? " 
 
 " No, sir." 
 
 " Did you ever know it to happen before? " 
 
 " No, sir." 
 
 " You may ask her," said Haggard. 
 
 " Stand aside for the present," directed Hender 
 son. 
 
 " The Commonwealth will rest here, your 
 Honor," announced Haggard. 
 
 Henderson, Brownlow, and Dudley conferred 
 briefly. Henderson then arose to make the open 
 ing statement for the defense. This is all he said :
 
 NISI PRIUS 123 
 
 " Your Honor, please, and you gentlemen of the 
 jury, I am constrained to feel that you, as the triers 
 of this case, had rather hear this defendant's testi 
 mony directly from his witnesses than from his re 
 tained attorney. Perhaps, in a feverish, long-cher 
 ished hope of seeing the defendant once more 
 breathe the free air of heaven, I should be made the 
 partisan defender of his innocence, rather than the 
 true and accurate narrator of the facts. There 
 fore, knowing my utter incapacity to relate the 
 story of each of his witnesses without discolora 
 tion, I shall forego that task, leaving them to tell it 
 all to you from this witness stand. As I grow in 
 years and experience in this grave business of try 
 ing men for their lives and liberties, I begin to real 
 ize the utter futility of attempting to undervalue the 
 evidence offered by the other side. I confess my 
 friend, the learned Commonw r ealth's Attorney, has 
 presented a wonderful chain of circumstances. 
 But, my friends, if fate has been unkind to this 
 young husband and father in arraying all these bits 
 of evidence against him, fortune has fully compen 
 sated by making possible of proof another array of 
 indisputable facts, which at once pronounce his in 
 nocence. But for this latter series of circum 
 stances, I shudder at what might have been the 
 consequences here. Circumstantial evidence, at 
 best a cruel, relentless engine of oppression, hence 
 forth to me shall be always disregarded and looked 
 upon as a monster viper, attempting to coil about 
 the very vitals of some unfortunate man who hap 
 pens not to have a witness to the real fact. There
 
 124 NISI PRIUS 
 
 are pages of history that run red with instances 
 where innocent men have been condemned to death 
 on circumstantial evidence, and after their bones 
 had rotted in avoided and despised sepulchers the 
 fearful and terrible mistake discovered. And, gen 
 tlemen, there are other pages of other history where 
 enlightened jurymen have refused to administer 
 justice of the type of the Dark Ages, and have 
 stood firm and resolute, demanding something more 
 than suspicion before condemning a fellow-man to 
 death. It may be I do not know that some 
 of you have had personal experience with this thing 
 circumstantial evidence. I trust such is the 
 case, for then perhaps you will the more patiently 
 lend an ear to this young man. You have heard it 
 said, doubtless, that so long as all the links are 
 there, a chain of circumstantial evidence is stronger 
 than any direct evidence; that witnesses to the fact 
 may lie, may err, may not remember; but that cir 
 cumstances cannot lie, or err, or forget. I take is 
 sue here. In direct evidence, it is quite true, the 
 witness may lie; but if not lying, no doubt exists. 
 In circumstantial evidence you have not only the 
 likelihood of the witness to the circumstance lying, 
 but, in addition, the circumstance itself may lie. 
 In direct evidence you have the one lie to guard 
 against, while in circumstantial evidence you have 
 to deal with two possible lies the relator of the 
 circumstance and the circumstance itself. And 
 when you shall have heard this defendant's evi 
 dence you will understand what I mean by circum 
 stances lying. For example, the footprints told a
 
 NISI PRIUS 125 
 
 terrible lie; the handkerchief bandage duplicated 
 the perjury; the gun wad, a circumstance, told the 
 most terrible lie of them all. Had that tissue of 
 falsehoods been told by direct evidence, we could 
 have cross-examined the witnesses; but we cannot 
 cross-examine an inanimate gunwad, a handker 
 chief, a footprint. We can account for them, pro 
 vided, and that's an awful word at this juncture 
 provided, we chance to have a witness in addi 
 tion to the defendant. I flatter myself that I know 
 you twelve men. I know you will not take from 
 this little woman and these glorious handsome boys 
 this husband and father unless you know not 
 merely suspect that he is a murderer. I shall 
 trust you to follow the evidence, step by step, or, 
 to gratify the ear of the learned prosecutor, link by 
 link." 
 
 " Mr. Dudley, be sworn," said the speaker, as 
 he resumed his seat.
 
 CHAPTER XIII 
 
 THE defendant, being sworn, took the witness stand 
 without the slightest emotion or trepidation. 
 
 " Your name? " began Henderson. 
 
 " Hiram Dudley." 
 
 "Your age and place of residence?" 
 
 " Thirty- four years of age. I live out here on 
 a little farm the old Warren place about eight 
 miles from town." 
 
 " Are you married ? " 
 
 " Yes, sir." 
 
 " Whom did you marry? " 
 
 " I married Ella Jameson." 
 
 "When?" 
 
 " Eleven years ago." 
 
 " Have you any children? " 
 
 " We have two boys there, John and Will." 
 
 "How old are they?" 
 
 " John is eight and Will is six." 
 
 For the laymen's information, should a layman 
 do us the honor to attempt these pages, it is here 
 said that Henderson was asking these simple ques 
 tions chiefly to afford the witness ample opportu 
 nity to become accustomed to the witness stand. 
 
 " How long have you lived on this farm? " 
 
 " About twelve years." 
 
 " With relation to the Thomas farm, where is 
 your farm ? " 
 
 " My land joins the Thomas land ; but by the 
 126
 
 NISI PRIUS 127 
 
 public road it is about two miles from my gate to 
 his." 
 
 " Where is the Burnley place ? " 
 
 " It is between my gate and the Thomas place 
 about half way." 
 
 Henderson had spent many hours over just what 
 method he would employ in examining the defend 
 ant. He had the saving sense to realize that his 
 client's life or liberty depended to a very large de 
 gree upon the impression he made upon his hear 
 ers. It was his opinion that Haggard expected 
 Dudley to flatly deny many of the condemning cir 
 cumstances. This was far from the defendant's 
 intention, and still further removed from his at 
 torneys' plans. It would have gratified Haggard 
 immeasurably had the defendant boldly contro 
 verted all these proved facts. Unfortunate is the 
 witness who denies a fact clearly proved against 
 him. Wise is the witness who admits all proved 
 facts and, in lieu of denial, substitutes explanation. 
 So, after much serious consideration and consulta 
 tion with Brownlow, Henderson had determined 
 to proceed with the examination, rather reversing 
 the usual order. He could not resist noticing the 
 effect on Haggard as he proceeded. 
 
 " Did you pass Mr. Burnley's gate between eleven 
 and twelve o'clock on the night of this murder, 
 riding horseback? " 
 
 " I did." 
 
 " When you reached your home, did you, when 
 you had entered your room, hang your shotgun on 
 the rack on the wall ? "
 
 128 NISI PRIUS 
 
 " I did." 
 
 " On the day before the killing had you cut 
 your finger ? " 
 
 "I had." 
 
 " On the day of the killing, did you have your 
 finger bandaged ? " 
 
 " Yes, sir, I did." 
 
 " Had you at that time a white setter bird dog 
 that usually followed you?" 
 
 " Yes, sir. There he lies under that table now." 
 
 " When the deputy sheriff examined your shot 
 gun on the day following the killing, was it loaded 
 or unloaded? " 
 
 " The gun was then empty." 
 
 " Is it true that it then smelled of burnt powder 
 and had it been recently fired ? " 
 
 " That is true. It had been fired the evening 
 before." 
 
 All this staggered Haggard. Every time the de 
 fendant admitted the truth of one of the State's 
 facts the profound prosecutor felt that another ar 
 gument had been swept away. He turned to the 
 County Attorney and muttered: 
 
 " Looks like he's going to wind up by pleading 
 guilty." 
 
 But the State's counsel, nevertheless, was sorely 
 disappointed at the enemy's method of fighting. 
 He would so much more have preferred to stand 
 his clearly proved facts alongside the defendant's 
 unsupported and interested denial. 
 
 " Were you, at the time of the killing, a regular 
 subscriber to The Farmer's Gazette?"
 
 NISI PRIUS 129 
 
 " I was, and am still." 
 
 " You recall, your little boy John testified that 
 after supper on the evening of the tragedy, just 
 before he fell off to sleep, you took your gun, got 
 the loading material and prepared to load the gun 
 then he went to sleep? Is that true? " 
 
 " Yes, that is true." 
 
 Haggard, externally still placid, shook himself 
 as men sometimes do, thinking perhaps they are 
 dreaming and the thing is not real after all. Here 
 was: a defendant calmly admitting every fact proved 
 by the Commonwealth. Would he never deny at 
 least one? 
 
 " Ah, Henderson," he reflected, " I have you on 
 this mass of undeniable evidence. You realize it 
 and propose to admit all my facts and deny my con 
 clusions." 
 
 " Were you," resumed Henderson, who thought 
 he read some of Haggard's reflections, " were you 
 at and before the time of this killing on friendly 
 or unfriendly terms with Jackson Thomas?" 
 
 " We were on unfriendly terms. We did not 
 speak and had not spoken for several years." 
 
 "Do you know the witness Bud Jones?" 
 
 " I do." 
 
 " Did you at Kedron Church, about three weeks 
 before the killing, have any talk with Jones relat 
 ing to Mr. Thomas ? " 
 
 " Mr. Jones did most of the talking yes, such 
 a conversation took place." 
 
 " Did you say in the presence of Bud Jones, at 
 the time and place indicated, or say in substance,
 
 130 NISI PRIUS 
 
 that you proposed to kill Jackson Thomas if he 
 should annoy you again ? " 
 
 " Yes, substantially that. I want to say, though, 
 that Mr. Jones only told a part of that talk. What 
 he said was true, but he did not tell that he said 
 to me " 
 
 " We object, your Honor," said Haggard, glad 
 to relieve his pent-up feeling. 
 
 " Now, your Honor," said Henderson, " Jones 
 singled out an extract, a fraction of an entire con 
 versation. Isolated, it has an entirely different 
 purport and meaning than it has as a part of the 
 entire conversation. We insist that all the conver 
 sation that is, all of it relating to this subject, 
 is competent." 
 
 " You may detail all of the conversation," ruled 
 the Court, " relating to Mr. Thomas. You must 
 draw the line there." 
 
 " Now," resumed Henderson, " tell the jury all 
 that was said in connection with Jackson Thomas 
 in that conversation." 
 
 " Well, Jones began the talk. He asked me if 
 people in the country where I came from submit 
 ted to a man slandering the women folks. I asked 
 him what he meant. He replied that Mr. Thomas 
 had said to him that my wife's virtue and my char 
 acter were about on a par. I did not believe 
 Thomas had said such a thing, and so told Jones. 
 He insisted he had. We argued it. I said to him, 
 ' Bud Jones, Thomas never said such a thing for 
 two reasons. First, he has no cause to do so ; sec 
 ond, he ought to know that if he ever began that
 
 NISI PRIUS 131 
 
 sort of annoyance I would kill him on sight! That 
 is about what I said. Jones still argued. I saw 
 he was a busybody interested in getting up trouble, 
 and I left him." 
 
 "Are you in the habit of hunting squirrels?" 
 
 " Yes, very often." 
 
 " Did you usually keep your gun loaded with 
 squirrel shot ? " 
 
 " Nearly always." 
 
 " Was your gun a muzzle-loader? " 
 
 " It was." 
 
 " Did you frequently make the wads out of news 
 papers that were lying about your house ? " 
 
 " Yes, nearly always." 
 
 " On the night of the killing was Mary Holland 
 staying at your house ? " 
 
 " She was." 
 
 " When you came in did your wife make a 
 light?" 
 
 " Yes, sir, she did." 
 
 " Do you recall whether the door leading from 
 your room to Miss Holland's room was open or 
 closed?" 
 
 " I do not recollect, for sure, but my best judg 
 ment is the door was open." 
 
 "Did you kill Jackson Thomas?" 
 
 " I did not, as God reigns and as I love that 
 woman and these two boys." 
 
 " Were you in his yard or anywhere near his 
 door on that night?" 
 
 " I was not." 
 
 " Now, Mr. Dudley, I want you to begin at the
 
 I 3 2 NISI PRIUS 
 
 beginning and tell this jury all about your move 
 ments on that night ? " 
 
 Twelve men were leaning intently forward. 
 Judge Lowden had long since discarded his news 
 paper and Haggard fastened his piercing eye on 
 the witness as if to fathom all his depths. He had 
 studied men, and had read many liars by counte 
 nance. Here was a simple farmer putting at sea 
 all his erstwhile successful methods. The witness 
 was neither bold nor backward. He was quiet, yet 
 intense ; mild yet firm. Had he been otherwise this 
 prosecutor of long experience would not have held 
 that per se against him. He had long since learned 
 that when life or liberty is at stake, when rustics 
 unaccustomed to public appearance, when timid 
 women are put under the gaze of crowds of strange 
 faces, when men easily embarrassed testify, all of 
 these, he knew, stammered and colored and contra 
 dicted themselves, and thereby not infrequently 
 were put down as liars by those inexperienced in 
 the study of witnesses. Every lawyer has seen the 
 most scrupulous witness become so embarrassed 
 by public appearance that he made the wildest, most 
 absurd statements. When jurymen learn to dis 
 tinguish between embarrassment and dishonesty 
 perhaps justice will less often miscarry. 
 
 None of these suggestions are germane to Dud 
 ley. Quietly, he thus told his story. 
 
 " I will tell it the best I can. I usually feed the 
 stock about dark every evening. On the evening 
 of Mr. Thomas' death I was at my stock barn a 
 little earlier than usual. I led two mules down to
 
 NISI PRIUS 133 
 
 the pond for water, and as I did so a lot of doves 
 flew up from the pond. As you know, dove shoot 
 ing about here is good. I took the mules back to 
 the barn, went to the house and got my gun. When 
 I reached the pond a lot of them were on the edge 
 of the water, drinking. I fired the right barrel 
 and killed three at one shot. When the others flew 
 up I tried them on the wing, but missed. I took 
 the three doves to the house. It was too late to 
 cook them for supper, and the folks had them next 
 day. That's how it happened my gun was empty 
 and showed that it had been freshly fired. I took 
 the gun in my room, intending to clean and reload 
 it after supper. 
 
 " After supper we my wife and I put the 
 boys to bed. William, the little fellow, at once 
 went to sleep. John remained awake for some lit 
 tle time. He has always been interested in guns, 
 and would not go to sleep until I agreed with him 
 to clean and load the gun. To humor the boy, I 
 got the gun, loading material, rags, etc., and pre 
 tended to begin loading it. The boy, already very 
 sleepy, dropped off to sleep just as I had begun. 
 I put the gun on the floor by the table, laying it 
 down flat and picked up a paper and began to read. 
 My wife went into Mary Holland's room and they 
 talked in there until about nine-thirty o'clock and 
 Mary put out her light and went to bed. Wife and 
 I talked until about ten o'clock, I should say, and 
 she concluded to go to bed. 
 
 " Mr. Jason, who lived down the road north of 
 me about a quarter of a mile beyond Mr. Thomas,
 
 134 NISI PRIUS 
 
 had been very sick. The neighbors had been sit 
 ting up with him at night, and this night it was my 
 time. I was to be there at about eleven o'clock. 
 My wife knew this and went to bed. 
 
 " I went to the barn and saddled a young three- 
 year-old I had been using, trying to break him. I 
 mounted him and left my premises. As I went by 
 Mr. Burnley's house I saw him open his front door 
 and walk out on to the porch. My horse was spir 
 ited and was prancing in the sandy road there in 
 front of Mr. Burnley's gate. I got by, though, in 
 a minute and I don't think Mr. Burnley saw me at 
 that time. I rode on down the road in the moon 
 light, and before I got to the Thomas place I passed 
 an old traction engine on the roadside. My young 
 horse frightened at this, but I soon quieted him and 
 after that, a short distance, I passed Mr. Thomas' 
 house. It was all dark and quiet. I continued on 
 past the Thomas place until I came to the Gray- 
 son place. Mr. Grayson was just entering his gate, 
 leading a horse and buggy. We spoke, and I in 
 quired about Mr. Jason. He said he was about 
 the same, but that he was too sick to be alone at 
 night, and that Jackson Thomas was to sit up with 
 him that night " 
 
 " We object to the conversation with Mr. Gray- 
 son," interrupted Haggard. 
 
 " No, don't tell the conversation you had with 
 Grayson. W r hat information did you obtain from 
 Grayson ? " asked Henderson. 
 
 " That Mr. Thomas was to sit up with Jason 
 that night. He had just come from there and
 
 NISI PRIUS 135 
 
 Thomas was expected when he left. Mr. Gray- 
 son died a month after that, but Mr. and Mrs. Ja 
 son are here. 
 
 " Well," continued Dudley, " I knew it would 
 not do for Mr. Thomas and me to be there at the 
 same time. Only one man was needed, and 
 Thomas and I did not speak. I then concluded to 
 go on back home. I was walking the young horse, 
 and I passed Mr. Thomas' house on my way back 
 and walked the horse down the road. I came upon 
 the old traction engine unexpectedly. My horse 
 gave a tremendous jump, shied, and then lunged 
 forward, beginning to run away. At that instant 
 I heard the report of a gun one shot in the 
 distance behind me. The colt got the best of me 
 and ran like the wind. I had both hands on the 
 bridle and was pulling back as hard as I could 
 and sawing his mouth all the time. This is what 
 I was doing when I passed Mr. Burnley's house 
 then. As the colt recognized his home gate he 
 stopped. I went into the side yard with him and 
 had trouble getting him into the barn. The noise 
 I there made is what awakened Mary Holland. 
 
 " I then went around the house and unlocked 
 the front door and went into the hall and then into 
 our room. My wife did not expect me home until 
 morning, and was a little frightened. She spoke 
 to me in the dark, and I answered. I had no 
 match with me, but the lamp and matches were at 
 the head of her bed, and she lit the lamp. While 
 she was lighting it my feet struck something on 
 the floor, near the table, and then I remembered
 
 136 NISI PRIUS 
 
 I had forgotten to load the gun. Just as my wife 
 was putting the match to the lamp, I picked up the 
 gun, and then the light shone brightly. I walked 
 across the room and hung the gun on the wall. 
 
 " In a few minutes I explained to my wife why 
 I came home so unexpectedly, undressed, went to 
 bed and was soon asleep. The next day I heard 
 of Mr. Thomas' killing, and that I was suspected. 
 I did nothing, and could do nothing. At about 
 noon I was arrested and taken to town and put in 
 jail, where I have been since."
 
 CHAPTER XIV 
 
 HENDERSON, himself a firm believer in his client's 
 absolute innocence, agreed with himself, so to 
 speak, that he could present a strong case of not 
 guilty. 
 
 The question of who killed Thomas, presuming 
 Dudley did not, was quite another matter. Was 
 it incumbent on him to fasten the crime on the 
 guilty man, or merely to establish the fact that his 
 client did not do it? On the question of Dudley's 
 guilt Henderson was quite satisfied that respectable 
 and strong evidence was at hand; as to who was 
 the real assassin the proof became hazy and largely 
 speculative. Weighing this in all its phases, he had 
 finally resolved to bend every effort in marshaling 
 the facts conducing to show, first, that Dudley did 
 not fire the fatal shot; second, that a certain other 
 individual did fire it. It would be superfluous to 
 add that he had far more faith in his ability to 
 demonstrate the truth of proposition No. I than 
 that of proposition No. 2. 
 
 The examination was resumed. 
 
 " Did you have any motive or reason to kill 
 Jackson Thomas ? " 
 
 " None whatever." 
 
 " Did you have or ever have any transaction of 
 any nature with him involving nine hundred dol 
 lars?" 
 
 " None whatever." 
 
 " Did you ever have any transaction of any kind 
 with him involving any money in any amount ? " 
 
 i37
 
 138 NISI PRIUS 
 
 " None, except the trouble we had about the hogs 
 absolutely none." 
 
 " Did you ever have any transaction of any kind 
 with him, in which the city of Leavenworth was in 
 volved?" 
 
 " None whatever." 
 
 " Were you ever in Leavenworth ? " 
 
 " Never." 
 
 " Do you know or did you ever know any per 
 son by the name of Leavenworth? " 
 
 " Never in my life." 
 
 " Did you ever have any transaction or relation 
 with Mr. Thomas in which any woman was in 
 volved?" 
 
 " Never in my life." 
 
 " Have you any idea of the meaning or signifi 
 cance of the words ' woman, Leavenworth, extor 
 tion/ spoken of by Mrs. Thomas ? " 
 
 " None whatever." 
 
 " You said you had badly cut your finger the 
 day before the killing. Now on the night of the 
 killing was your finger bandaged with a white 
 handkerchief ? " 
 
 " No, sir. I cut my finger the day before with 
 a hand ax. My wife bandaged it that day. The 
 next day, in the afternoon, I was in my wife's 
 room and she, Mary Holland and Mrs. James, a 
 neighbor, were in the room. My wife noticed the 
 bandage was gone and my finger swollen. Of 
 course she wanted to tie it up again. She and 
 Mary Holland were doing some knitting or some 
 such work. My wife held some yarn or something
 
 NISI PRIUS 139 
 
 wrapped around her two hands and Mary was 
 rolling the stuff into a large ball. Both of them 
 being busy, Mrs. James offered to bandage the fin 
 ger. She got a piece of colored calico or goods 
 of some kind, and wrapped my finger with it. I 
 had this colored stuff on my finger when I rode 
 by Mr. Thomas' house that night. It remained on 
 my finger all that night and until a short while be 
 fore I was arrested the next day." 
 
 " On the night of the killing, when you started 
 to Mr. Jason's, did your white setter dog follow 
 you?" 
 
 " No, sir. He never followed me at night." 
 
 " Was the dog with you when you met Mr. 
 Grayson and received the information about 
 Thomas sitting up with Jason ? " 
 
 "No, sir." 
 
 " Was the dog with you when you rode by Burn 
 ley's in a run, going home ? " 
 
 " No, sir ; the dog was at home asleep on the 
 floor in the hall." 
 
 " That is all for the present. Ask him, Mr. 
 Haggard," concluded Henderson. 
 
 Haggard doubted the wisdom of a cross-exam 
 ination. Henderson saw his hesitation, and re 
 joiced that these misgivings had now taken up their 
 abode at the other table. 
 
 " If you cross-examine him," whispered Autom 
 aton, alias the County Attorney, " he will only 
 make it stronger." Haggard looked his associate 
 over, poorly concealing a bored expression. 
 
 " That's nothing to me. I'm trying to find out
 
 140 NISI PRIUS 
 
 whether this man is guilty. I believe he is, as 
 guilty as hell, but I do not propose to dodge the 
 fullest inquiry in this or any other case I prose 
 cute." 
 
 Now, in this merry old world there are all sorts 
 and conditions of attorneys for the Crown. There 
 is the bitter, fox-visaged skeptic, to whom all ac 
 cused are prima facie guilty. Class No. 2 em 
 braces the spineless lot, in whom the original milk 
 of human kindness has turned to clabber, with 
 whom all accused are innocent. Thanks to the 
 divine scheme of men's creation, Class No. 3 
 splits evenly the obnoxious extremes, and, behold! 
 a fearless, unrelenting, uncompromising prosecutor 
 of crime and defender of innocence. In short, an 
 inquirer of the truth. 
 
 Haggard turned on Dudley. The cross-exam 
 ination was fierce, tireless, merciless. The rapid 
 fire of questions continued and continued. Once, 
 during the heat of the battle, Henderson scented 
 danger. His eagle's eye saw breakers ahead. 
 The witness, however cool and self-assured, was 
 no match for this master of his science. Like the 
 fagging prize-fighter, Dudley only needed a respite 
 for a breath or two. Henderson objected to the 
 line of interrogation. He argued his objection at 
 length. The Court ruled against him. He re 
 peated his argument, as if hoping to induce the 
 Court to reverse himself. -He won, not the point, 
 but time. Lowden saw and understood it all. In 
 his just judge's heart he could find no censure for 
 Henderson. He was judge now, but long ago he
 
 NISI PRIUS 141 
 
 was down there on the floor struggling against just 
 some such onslaught. He ruled on the second ar 
 gument. If he was more deliberate than usual, 
 charge it to his superb sense of fair play. 
 
 " Proceed, Mr. Haggard," concluded the Court. 
 Dudley had had his " breathing spell." His phys 
 ical and mental self had become normal again. 
 Having reflected full ten minutes on the last ques 
 tion, during the argument, he said quietly and with 
 dangerous humility, 
 
 " What was your last question, Mr. Haggard ? " 
 Haggard was fretted by the interruption. He 
 knew the plan of Henderson in consuming this 
 time. It angered him to know that it had been 
 highly successful. Yet he had been powerless to 
 prevent it. He resumed the fierce attack. Spurred 
 on by Henderson's successful coup, he grew the 
 more relentless. He spared the witness nothing. 
 This second assault, as is often the case in actual 
 battle, was more terrible than the first. Thrust 
 after thrust, charge after charge, grape, canister, 
 shrapnel, followed relentlessly the one upon the 
 other. At first the witness returned blow for blow ; 
 then he parried, then the inevitable result of prac 
 ticed skill matched with inexperience, a look to 
 the rear, an anxiousness to hurry into full retreat. 
 Dudley was visibly weakening. Already this ap 
 peared to the practiced eye of his attorney. It was 
 not a question of lying or speaking the truth. The 
 thing was resolved into an intellectual duel, be 
 tween a giant and a pigmy. Haggard saw he had 
 punctured the enemy's armor. Henderson saw it.
 
 142 NISI PRIUS 
 
 Lowden saw it. The twelve " good men and 
 true " had not yet discovered it. Soon it would 
 appear to them. Haggard pressed his advantage. 
 He looked the witness out of countenance and was 
 gradually and mercilessly drawing his net about 
 him. To Henderson the supreme moment of that 
 trial had come. The " objecting ruse " could not 
 be duplicated without the jury seeing that he was 
 " on the run." Just as Haggard was preparing to 
 crush the now hapless defendant, Henderson gave 
 an almost imperceptible nod to Jim Hanna, who 
 was standing in the doorway. Whereupon, Hanna, 
 with his eternal sang froid, indifferently walked to 
 Henderson's table and handed him a note. Hanna's 
 nonchalance wasi equaled, if not surpassed, by Hen 
 derson's surprise. He read the note and said 
 apologetically : 
 
 " Your Honor will pardon me, but I'm called 
 to the long distance telephone on a matter of im 
 portance." 
 
 " Certainly, suspend a few minutes, Mr. Hag 
 gard," said the Court, " until Mr. Henderson re 
 turns." 
 
 " All right, your Honor," said Haggard, and 
 then under his breath, " Damn that fellow ! " 
 
 Henderson was off to the telephone, and Dud 
 ley leaned back in his chair, thanking God he had 
 a lawyer. 
 
 Now, O you ethical reader, judge not, lest ye 
 be judged. This only shall be said to you here. 
 This lawyer, to the bottom of his heart and the 
 depths of his soul, believed his client was speak-
 
 NISI PRIUS 143 
 
 ing the absolute truth. He saw that client, for 
 whose life and liberty he was responsible, thrust 
 into the midst of a terribly uneven combat. It was 
 not a contest of truth over anything. It was a bat 
 tle in which truth was a mighty weapon, but, alas ! 
 not the only one. It may have been a veritable 
 broadsword, but loquacity, intellectuality, skill, per 
 sistency, coolness, these were the sharp rapiers and 
 lances. So, be it here confessed, that this lawyer, 
 with set jaws, muttered to himself: 
 
 "This defendant is honest. I shall not suppress 
 or distort the truth, but, by Heaven! he shall not 
 be made to appear dishonest." And so he left the 
 courtroom for the telephone. 
 
 When he returned the weakened pugilist had 
 breathed and breathed and breathed and the ag 
 gressive pugilist had become disgusted and, in a 
 measure, dispirited. But this Commonwealth's At 
 torney had, somehow, never been able to find the 
 word " quit " in his lexicon. He attempted the 
 third charge upon the enemy's ramparts, but with 
 out avail. He was met by this drawbridge being 
 hoisted in the very face of his cohorts : 
 
 " Now, may it please the Court," objected Hen 
 derson, " that has all been gone over two or three 
 times. I must object to so much repetition. Your 
 Honor has allowed a very wide latitude already, 
 and we must object to further repetition." 
 
 " I think," were the Court's words music to 
 him of the defense, " you have been over that sev 
 eral times, Mr. Haggard, Don't repeat. Pass on 
 to some other matter,"
 
 144 NISI PRIUS 
 
 So thorough and complete had been the cross- 
 examination, that there remained no " other mat 
 ter." 
 
 " Stand aside," coolly surrendered the sphinx- 
 like representative of the State. 
 
 Thus ended the cross-examination of Hiram 
 Dudley. It was a memorable one. To this day 
 they tell you of it in Greenwood. 
 
 Dudley's case emerged from the fire very little 
 impaired. He was pressed to say whether he met 
 any other man on horseback as he rode home after 
 eral times, Mr. Haggard. Don't repeat. Pass on 
 one. 
 
 'He was asked to explain why he did not turn 
 back when he heard the shot. He replied that 
 he was some distance from the shot ; that the report 
 of a gun in the country, such as he had heard, at 
 tracted no particular attention. He was closely 
 pressed to tell if a man had fired the shot and im 
 mediately leaped on a horse and hurried down the 
 road, going the same direction he was going, if he 
 would not have heard him or seen him. He an 
 swered by saying he did not hear or see any person 
 after he heard the shot. Haggard then inquired 
 if it was possible for a traveler on that road to go 
 south from Thomas' house without traveling the 
 "identical road you were traveling?" 
 
 " Yes, it is possible," he had answered. " When 
 you leave Thomas' gate going south toward my 
 house, there is a short distance from Mr. Thomas' 
 gate a by-road that leads off into some timber and 
 again enters the main road below my house. We
 
 NISI PRIUS 145 
 
 use that by-road in winter, when the main road is 
 bad." 
 
 " Would the traveler reach or pass Burnley's 
 before he reached this by-road ? " 
 
 " He would not. If he took the by-road he 
 would circle Mr. Burnley's and would not pass his 
 place at all."
 
 CHAPTER XV 
 
 " RECALL Mr. Burnley," said Henderson, when 
 Dudley had concluded. 
 
 " Mr. Burnley, when you saw Dudley ride by 
 your gate on this night, was there a white dog 
 following him, or with him ? " 
 
 " I did not see any." 
 
 " After 1 Dudley passed, did you still remain there 
 watching for foxes and thieves ? " 
 
 " I did." 
 
 " Did you ever see a white dog pass there on 
 that night?" 
 
 " No, sir." 
 
 " Watching, as you were, would you have no 
 ticed such a dog had it passed? " 
 
 " I'm sure I would." 
 
 " That is all," by Henderson. 
 
 " Wait just a moment, please," said Haggard. 
 " Either just before or just after Dudley passed 
 your place going toward his house, state if any 
 other person passed there that night ? " 
 
 " I am positive none did." 
 
 "Stand aside." 
 
 " One moment," said Henderson. " Could a 
 man traveling horseback leave Thomas' place, go 
 ing south, and go a mile or two south without pass 
 ing your place? " 
 
 " No, sir yes ; I was too fast there. A little 
 way from Mr. Thomas' gate, south, there is a by- 
 
 146
 
 NISI PRIUS 147 
 
 road that goes off into some timber. We call it 
 the wet weather road. You can go by that road 
 and come out on the main road down below Dud 
 ley's." 
 
 " Zed Dance, please," from Henderson. 
 
 Mr. Dance being duly sworn, deposed that he 
 lived in the Thomas neighborhood ; had lived there 
 many years; knew all the parties in interest; re 
 membered the occasion of Mr. Thomas being killed ; 
 went over to the Thomas place next morning 
 when he heard of it. Replying to questions, he 
 said: 
 
 " I live kinder between Thomas and Burnley, 
 south of Thomas, angling." 
 
 " Do you live on the main road ? " 
 
 " No, I live off the main road on a sorter by 
 road wet weather road, I call it ; leads off the 
 main road near Mr. Thomas' and runs by me, and 
 on down further it runs into the big road again." 
 
 " Now, the afternoon after the night of the kill 
 ing, if you found anything on your place, just tell 
 about it." 
 
 " I found a gun. I went down into my lower 
 field that lies on this road we were talking of 
 fallowin' for wheat land. Just over my fence, in 
 the weeds, as I was walking along, I struck some 
 thing. I looked down, saw the gun, and picked it 
 up. It was a single-barreled muzzle-loader. I 
 give it to the county judge." 
 
 The gun was here produced and identified. 
 
 " Was it loaded or empty when you found it ? " 
 
 "It was empty just like it is now."
 
 148 NISI PRIUS 
 
 " Could you tell, from examining it, whether it 
 had been recently fired ? " 
 
 " No, I couldn't, because it had been pitched 
 over the fence, muzzle forward, and the barrel had 
 stuck in the mud." 
 
 " Do you know whose gun that is? " 
 
 " I've heard, but don't know myself." 
 
 " Ask him, gentlemen," said Henderson. 
 
 " Were you asleep from ten to twelve o'clock on 
 the night of the killing?" asked Haggard. 
 
 " I was awake and up all night had a sick 
 child." 
 
 " Did you hear or see any person pass your place 
 between those hours that night?" 
 
 " No, sir none at all." 
 
 " Do you think you could have heard had such 
 been the case? " 
 
 " Looks like I would. My house is close to the 
 road. There's a rocky hill along there and we had 
 windows and doors open." 
 
 Ben Hobson, next called, deposed that he con 
 ducted a little repair shop next door to the Hanna 
 House and had done so for several years. 
 
 "Do you recognize this single-barreled gun?" 
 
 " Yes, it is my gun." 
 
 " Where did you get it, and when ? " 
 
 " About two years ago I had a bill for repairing 
 old uncle Charley Judson's watch he's the old 
 darkey that lives down the street here. He left 
 me the old gun to pay the bill." 
 
 " Did you sell or give the gun away? " 
 
 " Didn't do either."
 
 NISI PRIUS 149 
 
 " How came it out of your possession?" 
 
 " I can't tell you to save my life." 
 
 " When did you first miss it from your place? " 
 
 " Last August." 
 
 " Do you recall the occasion of Mr. Thomas be 
 ing killed?" 
 
 " Yes, sir." 
 
 " With reference to that date, when did you 
 miss it?" 
 
 " I missed it the day he was killed. I believe he 
 was killed on August 14, and I missed that gun 
 early that day." 
 
 Haggard declined to cross-examine. He arose 
 and objected to " all this stuff about this gun. 
 What bearing has it on this case ? " 
 
 " The defendant pleads not guilty," said Hen 
 derson. " Any fact tending to show that Dudley 
 did not fire the shot is competent. Therefore, it 
 follows any fact tending to show that some other 
 person fired the shot is a fact tending to show that 
 the defendant did not do so." 
 
 " Go ahead," said Lowden. " I'll have to watch 
 this evidence as it comes. I can't pass on it by 
 piecemeal. I'll control it by instructions, if neces 
 sary. Proceed, gentlemen." 
 
 " Recall Mrs. Thomas, please," said Hender 
 son. 
 
 " Mrs. Thomas, please describe the appearance 
 of the man who came to your husband's gate the 
 day previous to the killing and there talked with 
 him?" 
 
 " I can hardly do that. He was about your size,
 
 150 NISI PRIUS 
 
 I reckon, middle-aged. I remember he had a dark 
 brown beard. That's about all I noticed." 
 
 " Call James Hanna," directed Henderson. A 
 faint reminiscent smile lit up the countenance of 
 Judge Lowden so well and so truly did he know 
 the witness whose name had just been called. 
 
 " Watch something drop," murmured Haggard 
 to his associate. Hanna was pitching horseshoes 
 in the court-house yard. He soon entered, carrying 
 a sort of ledger under his arm. Was sworn, or at 
 tempted to be sworn, by clerk, Tom New. Hanna, 
 however, looked full at the clerk, knowing that 
 official so well, whereupon the aforesaid New im 
 mediately became a living illustration of the word 
 confusion. He pushed a large order book off the 
 rail of his apartment and concluded the perform 
 ance by swearing Old Jim to " well and truly try 
 the issue joined between Dudley Hanna and Hiram 
 New," etc., etc. Later when New was joked for 
 his blunder, he, without hesitation or compunction, 
 declared the proceedings had grown dull and he 
 really rendered the performance " on purpose to 
 liven up things a bit." 
 
 " Mr. Hanna, you conduct what is known as the 
 ' Hanna House ' in this city, do you ? " 
 
 " They say I'm guilty of that charge," he duly 
 replied. 
 
 " Do you keep there a hotel register, on which 
 your guests register their names ? " 
 
 " Yes, sir ; here it is." 
 
 " Will you examine the register on the date of 
 August 12 last, and see if you had any guest on
 
 NISI PRIUS 151 
 
 that day who registered from Leavenworth, Kan 
 sas?" 
 
 " Yes. Patrick Dunavan, Leavenworth, Kan 
 sas. He registered for lodging August 12 and 
 registered off for the early morning train 
 August 15." 
 
 " Look and see what room he had ? " 
 
 " Number sixteen." 
 
 " Were you at that time a regular subscriber to 
 The Farmer's Gazette?" 
 
 " I was." 
 
 " Do you know whether any copies of that pe 
 riodical were in this room number sixteen at the 
 time this man had the room ? " 
 
 " I am sure there was, for this reason. We al 
 ways let the old papers and magazines accumulate 
 at the hotel. They were usually piled in a little 
 paper rack we had, and that rack has been in six 
 teen for several years, and is there now full of 
 such papers." 
 
 " Do you recall anything about the personal ap 
 pearance of this man Patrick Dunavan ? " 
 
 " Only this. He was very dark, and I remem 
 ber thinking he was the darkest-looking, queerest- 
 talking fellow I ever met to have the Irish name 
 Pat Dunavan. I know he was not Irish." 
 
 Hanna was not cross-examined. 
 
 Haggard was ignoring this line of evidence as 
 altogether too far-fetched to merit consideration. 
 
 Mrs. James was next called. She testified that 
 she was at the Dudley home the afternoon of 
 August 14. She corroborated Dudley's statement
 
 152 NISI PRIUS 
 
 regarding his bandaged finger. She herself, she 
 said, had tied it up with a bit of dark calico while 
 Mrs. Dudley was busy with the yarn. Mrs. James 
 was over at Dudley's again the next morning and 
 observed the same calico bandage on Dudley's fin 
 ger. She joked him, so she said, about having a 
 nurse who could tie on a bandage that would not 
 easily come off. 
 
 " What were Mrs. Dudley and Miss Holland do 
 ing when you reached there on the I5th the 
 morning after the tragedy?" asked Henderson. 
 
 " They were on the kitchen porch picking some 
 doves Hiram had killed. At least they said he 
 had killed " 
 
 " Don't tell what they said," interposed Haggard. 
 
 " Well, they were picking doves on the porch." 
 
 Mary Holland was then recalled. She testified 
 to Mrs. James' statement as to the doves, with this 
 addition she saw Dudley the evening before 
 when he came from the pond with the doves and 
 the gun. She also corroborated the statement of 
 the defendant and Mrs. James as to the bandage. 
 She further swore that the setter dog was in the 
 hall, asleep on the floor, when Dudley came home 
 the night of the tragedy. The dog had growled 
 when Dudley's steps were first heard on the porch. 
 She had told Dudley that evening that the Jasons 
 wanted him to sit up with Mr. Jason that night. 
 Mr. Crews had asked her to tell him. 
 
 After a cross-examination of no importance Mr. 
 Crews was called. The sheriff advised that Crews 
 had gone out in town, but would return in a short
 
 NISI PRIUS 153 
 
 while. As it was now past noon the court took a 
 recess. 
 
 On reconvening, Crews testified that he had been 
 down at Jason's on the night of the I3th of August. 
 When he left, Mr. Jason, the sick man, requested 
 him to ask Mr. Dudley to come down the next 
 night to sit up with him. He agreed to get him 
 word. Mrs. Jason was not then in the sick-room, 
 but he, Crews, presumed she understood the mat 
 ter. Crews further stated that he saw Miss Mary 
 Holland the next morning, the i/jth, and sent the 
 message to Dudley by her. 
 
 Mr. Jason, next called, fully corroborated Crews 
 as to telling him to get word to Mr. Dudley. 
 
 Mrs. Jason deposed that on the afternoon of the 
 1 3th Mr. Grayson was at her house to see Mr. 
 Jason. When he left she walked to the yard gate 
 with him. They were talking about Mr. Jason's 
 progress. It occurred to her, she said, to arrange 
 for someone to sit up with Mr. Jason that night, 
 the 1 3th, and she suggested Mr. Thomas. Mr. 
 Grayson replied that Mr. Crews had volunteered 
 to come that night, the I3th. She then told Mr. 
 Grayson to see Mr. Thomas and request him to 
 come the I4th. He agreed to do so. Her hus 
 band did not know she had arranged for Mr. 
 Thomas for the I4th and she did not know he had 
 arranged for Mr. Dudley to be there. Mr. Gray- 
 son had since died. 
 
 Henderson knew that Haggard would pounce 
 upon this. He could have had the witness pro 
 ceed further or he could stop and suffer Haggard
 
 154 NISI PRIUS 
 
 to draw it from her. He reasoned, and with man 
 ifest wisdom, that a fact favorable to you is more 
 potent if brought out by your opponent. Hence, 
 he turned the witness over. 
 
 Haggard quickly seized the apparent flaw. 
 
 " Mr. Thomas did not come to your home on 
 that night, the I4th, did he?" 
 
 " No, sir." 
 
 " Don't you know he was in his bed asleep and 
 had no plan at all to go to your house?" 
 
 " I suppose, from what I have heard, he was 
 asleep." 
 
 " Mr. Thomas was neighborly enough to have 
 come, had you sent him word to do so, was he 
 not?" 
 
 " I am sure he would have come had we wanted 
 it. That afternoon my husband expressed pleas 
 ure in the expectancy of seeing Mr. Dudley that 
 night, whereupon I remarked that Mr. Thomas was 
 to come. Mr. Jason said he had sent for Mr. Dud 
 ley. I said I had notified Mr. Thomas. Then the 
 mistake was first discovered. We then, as Mr. 
 Thomas was so much nearer, sent him word not 
 to come that night." 
 
 " By whom did you send the word ? " asked the 
 nettled prosecutor. 
 
 " I was then alone with Mr. Jason and there 
 was no person by whom I could send him word. 
 I went out to my gate, thinking I would wait until 
 perhaps I could send word by some passer-by. 
 Presently a stranger passed, going in the direction 
 of Mr. Thomas'. I asked if he was going that
 
 NISI PRIUS 155 
 
 far, and he nodded his head. I then sent the mes 
 sage by him. I never saw him before and haven't 
 seen him since. He was dark, wore a beard, and 
 I could hardly understand his English." 
 " That will do," said Haggard.
 
 CHAPTER XVI 
 
 HENDERSON then proceeded to call a dozen men 
 of standing, by whom he established his client's 
 reputation for peace, good order, and quietude in 
 his community. One old farmer, answering the 
 stereotyped question, said, " It's good, except when 
 he's riled." He was Henderson's only regret out 
 of the twelve. He then called little John Dudley, 
 the eight-year-old lad who had testified for the 
 State earlier. The boy gave a graphic account of 
 his father killing the three doves. His bright, 
 cheery face captivated his auditors and his child's 
 prattle drove home unerring shafts of truth. Hen 
 derson was so delighted with the evident impres 
 sion the boy was making he was loath to conclude 
 his examination. This was the defendant's part 
 ing shot. He was about to close. All things, how 
 ever, must end at one time or another, and finally 
 Henderson said, with an I-dare-you-to expression, 
 " You may ask him, Mr. Haggard." 
 That lawyer was just at that moment revolving 
 in his own mind a sort of " To be or not to be " 
 proposition, and still reflected while the boy-wit 
 ness innocently and fearlessly looked at him. Just 
 as Haggard had concluded to ask the question a 
 keg of dynamite or jug of nitro-glycerine exploded 
 touched off by a manifestation of tenderness in 
 effable, found only in childhood. The youthful 
 witness, looking straight at Haggard, said: 
 
 156
 
 NISI PRIUS 157 
 
 " Why do you hate my papa so hard ? " and a 
 great glistening tear rolled down his ruddy cheek. 
 
 Haggard, somehow, managed to say : 
 
 " Why, my little man, I do not hate your papa." 
 
 " Papa said you didn't ; but you want to send 
 him away." 
 
 "That is all, my boy; you may go," said Hag 
 gard, and the unconscious victor went back to his 
 father's side. 
 
 " The defendant will rest here, your Honor," 
 came from Henderson. As this valiant fighter re 
 sumed his seat, he gave due and devout thanks for 
 the creation of boys, and one boy in particular. 
 
 If you who read these pages have stood in the 
 forum circumstanced as was Henderson, words of 
 explanation would be as carrying coals to Newcas 
 tle. As there is a crest to every wave in the sea, 
 a supreme height to every storm, so there is a su 
 preme, tense, vital moment in every great trial. 
 Men will ask how a ruddy cheek, a single sparkling 
 tear, a child's voice, trivialities of no consequence, 
 can bear heavily and irresistibly in the scales of 
 justice. Psychologists, not lawyers, must give an 
 swer. Answer me how the flash of a leader's eye 
 in a twinkling at supreme moments turns the tide 
 of battle and makes a thin, wavering line an ir 
 resistible, victorious legion of conquerors? 
 
 Haggard could do battle with the bold perjurer. 
 He could tower high above the overawed and cow 
 ering exaggerater. Easily he could drive to quar 
 ter over-ready witnesses who faced his iron visage. 
 Past-master in repartee, he had grown accustomed
 
 158 NISI PRIUS 
 
 to vanquishing. But now he felt limp and help 
 less. He wondered if any others observed it. One 
 did, and drank to its depths that cup, aye, bowl of 
 joy. The prosecutor's listless form lay stretched 
 out, figuratively speaking, and at least one observer 
 there was Henderson. 
 
 But this business of which we write admits of 
 no tears over spilled milk. There is, instanter, an 
 other pail of fresh milk, as witness : 
 
 " Call Mr. Jones," and Haggard was going into 
 his rebuttal. 
 
 Jones denied the conversation with Dudley, as 
 had been detailed by the defendant. Henderson, 
 some who w, had a profound contempt for the afore 
 said Mr. Jones. He fancied that Jones was swear 
 ing falsely. Quite true, it was concerning a minor 
 matter, but this was a case involving a man's life, as 
 Henderson reasoned, and he who would gratui 
 tously lie in such a cause was a reptile to be 
 shunned by all men. Forgive the zealous lawyer 
 if he revenged himself on this witness. Here is 
 how he chose to do it, simultaneously impairing 
 the value of his adverse testimony. Haggard con 
 cluded his examination of Jones, and said: 
 
 " Ask him, Mr. Henderson." 
 
 Henderson made no response. He had his head 
 turned rather away from the witness, and was ap 
 parently looking over his notes. He seemed not 
 to hear Haggard. The prosecutor repeated his 
 words, and still Henderson did not hear, so occu 
 pied was he with his notes. The Court then said 
 quite audibly:
 
 NISI PRIUS 159 
 
 " Mr. Henderson, do you care to ask the wit 
 ness?" 
 
 "What witness, your Honor?" thrust Hender 
 son. " Oh, I beg pardon ! is Mr. Jones on the 
 stand again? I did not know he was testifying. 
 What did your Honor ask me?" 
 
 "Do you care to cross-examine the witness?" 
 replied the Court. 
 
 " Not at all," and Henderson again went to his 
 notes, whereat the said Jones slunk away, feeling 
 and looking as if he had cut but a small figure with 
 his evidence. 
 
 Haggard proceeded to the " gap-filling " process, 
 and called several witnesses touching minor de 
 tails. Shortly thereafter, consulting his associate, 
 he finally closed the evidence for the Common 
 wealth. The defense had no sur-rebuttal and the 
 court reporter put his pencils in his pocket and 
 pushed back his small table. 
 
 Judge Lowden, contrary to the wont and habit 
 of some distinguished jurists who shall be name 
 less here had his instructions fully prepared and 
 ready for the jury. They were models of clear 
 ness and brevity. It is believed that when a cer 
 tain Englishman of another age coined the phrase, 
 " brevity is the soul of wit," he had just heard a 
 court's charge such as were the fashion in that 
 musty, cob-webbian period, and he intended his 
 coinage as pointing a contrast. In Lowden's court 
 the lawyers rarely presented instructions. All 
 counsel, somehow, assumed that the Court could 
 and would present each of the opposing theories
 
 160 NISI PRIUS 
 
 CORRECTLY,, clearly, briefly, a triangular consumma 
 tion most devoutly to be wished and always had 
 in this court. 
 
 We shall not incorporate all those instructions 
 in these pages. One chiefly interested Henderson. 
 
 "If the jury have a reasonable doubt of the de 
 fendant having been proved guilty, they will find 
 him not guilty." 
 
 Need it be said that at this particular time Hen 
 derson had no trouble convincing himself that this 
 instruction was the very basic-stone of American 
 liberty? 
 
 It was determined to have only one speech on each 
 side. Henderson, under a rule of law obnoxious 
 to defendant's counsel, and thoroughly sound to 
 the prosecuting fraternity, was the first speaker; 
 Haggard, the last. And this was a danger to be 
 reckoned with. Old Judge Cole, an ardent admirer 
 of Haggard's forensic powers, had often said 
 " that closing argument of Haggard's had increased 
 greatly the population of two certain neighbor 
 hoods not far from the towns of Frankfort and 
 Eddyville." 
 
 Let the uninitiated, however, bear in mind this 
 truth: the case makes the speech, and a speech is 
 made up of two elements logic and eloquence. 
 While Haggard would have unlimited supplies of 
 logic, Henderson, who possessed an equal supply 
 of that ingredient, likewise, by reason of his case, 
 was surcharged with eloquence, and he made a 
 speech that afternoon. The old walls, the swaying 
 trees outside, the honest old rafters, all, if to any
 
 NISI PRIUS 161 
 
 extent animate, must have been reminded of other 
 days. He argued the testimony from every possi 
 ble standpoint; he collected his facts and hurled 
 them at the jury rapidly, powerfully. His rich and 
 mellow voice rose and fell as the speaker's needs 
 required. 
 
 He said, inter alia, that every mortal connected 
 with the case, with one very small exception, had 
 his good opinion and esteem; that he should not 
 attempt to discuss the witness, Mr. Jones. When 
 honest men were engaged in a grave effort to investi 
 gate facts as clean, honest men should do, the crawl 
 ing of a small reptile across the floor should not 
 disconcert them. 
 
 " I shall not, therefore," he said, " take your 
 minds from potent facts told by clean people, by 
 so much as referring to petty stuff manufactured 
 by a very petty person." 
 
 Burnley had seen no gun as Dudley rode by; he 
 had seen no dog, though on the lookout for foxes 
 and thieves. Mrs. James and Miss Holland had 
 demolished the State's theory relative to the white 
 handkerchief. Who was this dark stranger seen 
 talking to Mr. Thomas the day before the killing? 
 Who was the dark stranger who occupied room 
 sixteen at Hanna's hotel? He came on August 12, 
 and left early the I5th. How chanced this shotgun 
 to be missed by Hobson on the I4th? The stran 
 ger's room at the hotel was where Hanna kept his 
 copies of The Farmer's Gazette. Thomas had 
 lived at Leavenworth, Kansas. The stranger reg 
 istered from Leavenworth. What did the proof
 
 162 NISI PRIUS 
 
 show Dudley knew of any nine hundred dollar 
 transaction with Thomas? 
 
 And so did Henderson swing broadsword and 
 saber until the shadows began to lengthen; but 
 those within the portals of that historic edifice did 
 not observe the fast-falling eventide. The speaker 
 held them within his grasp and played upon their 
 emotions and sentiments as upon a stringed instru 
 ment. At the termination of a subdivision of his 
 speech he was reminded by the Court of the late 
 hour, and court was adjourned. A night session 
 was agreed upon. Mr. Henderson was to conclude 
 after supper, and after which Mr. Haggard, for the 
 State, was to close the case. 
 
 Accordingly at eight o'clock the " jury assem 
 bled according to adjournment." The old house 
 was packed fairly to suffocation. Disgruntled 
 swains, as reward for their thriftiness in early ob 
 taining seats, gingerly resigned them to eager la 
 dies. Dingy lamps, now venerable in service, shed 
 a weird light, a calcium light, as it were, upon the 
 actors in the final act of this drama. The jailer, 
 classified by Judge Cole as " omnes omnivirum," 
 looked the part, when he authoritatively pushed his 
 way through the mass, escorting his prisoner. 
 Clerk Tom New, pencils and pens behind each ear, 
 dockets, order books, and file boxes all about him, 
 stood serene behind his railing. He smiled upon 
 a grateful and appreciative constituency. Not con 
 tent with being merely observed, like the Mad 
 Prince in the drama, he was satisfied he was " the 
 admired of all admirers."
 
 NISI PRIUS 163 
 
 The Judge was on the bench. Dudley sat by 
 his wife and the ever-present boys. Presently, 
 Haggard and Henderson entered, chatting pleas 
 antly. People wondered how these two could thus 
 lie down together like the lion and the lamb 
 of fable. Mrs. Thomas feared vaguely that " her 
 lawyer " had gone over to the enemy. Even Mrs. 
 Dudley, who considered Henderson a veritable 
 Cyclops, for an instant secretly questioned his sin 
 cerity. Ah, Public, do you demand that we fight 
 always? But that glorious and genuine fellowship 
 of contending advocates no matter, the story is 
 too long; perhaps you would not understand, after 
 all. Suffice it to say, it has been so since Moses, 
 and will continue until temples crumble and time 
 is no more. 
 
 " Proceed with the argument," came from 
 Lowden. A glass of water, a rearranging of the 
 instructions and exhibits, and Henderson was 
 launched into his last effort for this man, this wife, 
 these boys. When he had gone home to his own 
 supper of which he ate none his own bairns 
 had romped joyously beneath his feet and swung 
 about his great broad shoulders. The young 
 mother had met him at the gate, the picture of 
 peace and felicity. They all had sat under the 
 great oak in the yard. The sun had gone down 
 gloriously behind the blue haze in the distance, and 
 the soft June twilight, the freshening breeze, the 
 very murmur of approaching night, had soothed 
 and rested him immeasurably. 
 
 The children, his boys and girls, romped and
 
 1 64 NISI PRIUS 
 
 cheered, rolled and tumbled, as free as the passing 
 zephyrs that made the roses nod. These things 
 had stirred the man. Latent powers he knew not 
 of awoke within him. Dudley's boys, somewhat 
 like Demosthenes' pebbles, made an orator. Com 
 passion reached the depths of his soul, and oratory 
 is of the soul, not mind nor heart nor body. 
 
 He had thrown off a feeling of sadness as he 
 briskly walked to the court-house. 'He met Hag 
 gard, and they chatted pleasantly about everything 
 except this case. When he entered the court 
 room and pushed his way through the crowded 
 aisle he at once saw the anxious face of the 
 mother. She sat very close to her two sons. The 
 wave passed over him again. He did not know 
 just what it was fear, anxiety, compassion, hope. 
 All perhaps contributed to that strange medley of 
 emotions. 
 
 It was thus the defendant's counsel felt when 
 he arose. Is it any wonder that he made the great 
 est speech of his career? During the afternoon 
 argument he had noticed two jurymen who paid him 
 no attention. They were respectful, but he knew 
 he was making no headway in that quarter. 
 Their faces were turned toward him, but they were 
 faces that, to an experienced advocate, plainly 
 showed the speaker they listened not. And now 
 they were still oblivious to all his argument and 
 all his appeals. While standing on his feet this 
 lawyer resolved not to sit down until these two 
 should hear him. Thanks to his perseverance and 
 eloquence, the tide eventually turned. When other
 
 NISI PRIUS 165 
 
 eyes were wet, one of these loudly blew his nose. 
 " One of them," reflected Henderson. After 
 awhile the other leaned forward, intent, rapt, trans 
 fixed, and presently, following what lawyers call 
 an interrogative argument, bowed his head in un 
 conscious assent to the proposition Henderson was 
 advancing. " The other one," thought the speaker. 
 He was now about to conclude. This lawyer 
 knew thoroughly the one great point touching the 
 subtle and fine art of jury speaking when to 
 stop. The crowd had gradually increased and 
 surged about him; tables, chairs, railings, all were 
 converted into seats. As he was about to con 
 clude his attention was attracted by something fall 
 ing at his feet. He stooped and picked up Master 
 William Dudley's cap. He turned, without ceasing 
 to speak, as if to hand the boy his cap. But he did 
 not do so. Master Will and Master John had sur 
 rendered their chairs long ago and had climbed upon 
 the large table. It is said that the eyelids of those 
 of eight and six weigh more than do ours. The 
 two boys were curled against each other, fast 
 asleep on the table. A soiled, chubby hand of 
 each hung listlessly over the table's edge. They 
 lay in such position that their faces were directly 
 toward the jury, and the old lamp, hung high on 
 the post in the center of the bar, shone flickeringly 
 and softly upon them. Verily, it made a picture. 
 Henderson, with sentences unfinished, stood stock- 
 still and could not take his eyes from them. The 
 whole assemblage was as silent as the tomb. A 
 pin falling to the floor would have been heard.
 
 166 NISI PRIUS 
 
 It was a strange and incomprehensible thing. Men 
 afterward differed as to the length of time Hender 
 son, the jury, the judge, and the spectators on that 
 side of the room gazed and gazed at those long 
 lashes, curling, brown tresses, that lay upon two 
 beautiful brows of childhood. And while they 
 looked a smile flitted across the face of the younger 
 lad such as is common to that age in sleep. 
 
 " Gentlemen," finally resumed this human law 
 yer, " I am done. I have no words adequate to 
 thank you for listening to me for so long a time. 
 If in your judgment I have overstepped the limits 
 and have consumed too much of your time, forgive 
 me. This is the supreme hour of my life. When 
 I look at that table there something tells me that 
 a just God will lead you. What a picture! They 
 went fast asleep with their father's life hanging in 
 the balance. As they sleep they trust in you. Ah, 
 gentlemen, one of them asked me if you men had 
 any little boys. I thank God I could tell him you 
 all had. What a solace to know that in this 
 country the men who try other men charged with 
 crime must be housekeepers! Time has taught us 
 that fathers and husbands know all about the pas 
 sions, emotions, and sentiments of men. Even as 
 these lads, peacefully sleeping there, have en 
 trusted their father to you, so do I. No doubt 
 they are dreaming of the romp they are to have 
 with ' Dad ' to-morrow at home. And did you ob 
 serve one of them smile in his sleep ? Did the little 
 fellow, in his dream, see his great-hearted father 
 entering his gate, once more to grab him up and
 
 NISI PRIUS 167 
 
 press him to his breast? Perhaps he saw the 
 angels come down softly from heaven and unlock 
 his iron cage to free him. Perhaps " (one of the 
 jurymen had recently lost his only boy a lad of 
 seven years) " some other little boy yonder in the 
 heavens looked down and smiled upon him, and in 
 his dream he heard the small voice say ' Don't fear, 
 Will; there's one on that jury whose heart is big 
 and tender and kind.' Oh, gentlemen, to take this 
 man's life while they sleep and dream and smile, 
 to roughly awaken them in a few hours, when they 
 say ' Where is our father,' to reply, ' We killed him 
 while you slept,' is this the thing this great and 
 powerful State demands? 
 
 " Let not my learned friend upbraid me on the 
 charge of attempting to excite sympathy. That is 
 not my purpose. I am talking about the terrible 
 gravity of taking this innocent man forever away 
 from this wife and these boys. I am guilty of 
 pointing out the consequences of a mistake in your 
 verdict not attempting to play upon your sym 
 pathies." 
 
 And so Henderson concluded and took his seat, 
 weary, worn, and exhausted.
 
 CHAPTER XVII 
 
 IT were needless to report in haec verba the close, 
 powerful, eloquent argument of Ben Haggard. 
 He was master of satire, eloquence, logic, pathos. 
 At one time Henderson inwardly trembled, for it 
 looked as though the almost irresistible prosecutor 
 would sweep the jury from their moorings. With 
 consummate skill this veteran advocate minimized 
 the strong points that stood out in favor of the 
 defendant, and correspondingly magnified, illus 
 trated and elaborated the wonderful chain of cir 
 cumstances favorable to the State. With merciless 
 sarcasm he frequently referred to " Henderson's 
 man of straw from Leavenworth." There was, he 
 said, the night horseman, the empty shotgun, freshly 
 fired; the tell-tale gunwad, made with Dudley's 
 newspapers; the gun being hung upon the wall at 
 midnight, the blood-stained handkerchief, the white 
 dog leaping the fence and following the horseman ; 
 the wild flight homeward; the ill-will and threat, 
 a perfect case of the motive for murder, and, 
 lastly, the dead man, ere he died, calling Dudley's 
 name, just as the cowardly shot was fired; to say 
 nothing of the tracks, footprints that the defend 
 ant's shoes exactly fit. 
 
 " Can you twelve men," he thundered, " be 
 blinded to your solemn duty to society and to your 
 selves, by a reckless, impassioned appeal for wives 
 and children, in no wise charged with crime in this 
 
 168
 
 NISI PRIUS 169 
 
 case? If that's to be the ruling method in this 
 court, it were well to abolish the whole system and 
 go back to the barbaric code of the survival of the 
 fittest, for every assassin, every thief, every crimi 
 nal, has a wife, a child, a mother, a father, a sister 
 or brother or some relative whose poor heart must 
 bleed." 
 
 And Haggard, fierce, eloquent, gentle, logical, 
 swept on and on, until it seemed to the patient little 
 wife of the defendant that her heart died within 
 her. Once she had whispered into Henderson's 
 ear: "Can I make a statement to the jury?" and 
 she scarcely heard his reply, " No ; that would 
 never do. Don't let all that stuff worry you." 
 Oh, Henderson, thou consoler! There was just 
 this difference between the lawyer and the woman. 
 They had the same degree of anxiety, but very 
 different powers of concealment, that was all. 
 
 Once Henderson objected to a certain line of 
 argument, and immediately regretted he had done 
 so. The Court merely said, 
 
 " I think it is responsive to the preceding argu 
 ment." 
 
 Finally, after what seemed to Henderson an age, 
 Haggard concluded. The Court looked at his 
 watch. He reflected and said to the jury : 
 
 " Gentlemen, it is late. I will not submit this 
 case to you until to-morrow morning." 
 
 Then followed an admonition to the jury, as 
 to their course and conduct in the interim one 
 characteristic of this great, just, and judicial judge, 
 and one that ought to be written in the statute laws
 
 1 70 NISI PRIUS 
 
 of the Commonwealth. Perhaps (who knows?) 
 Judge Lowden had learned it to be unwise and in 
 judicious to permit a jury in a doubtful criminal 
 case to retire to the consideration of it immediately 
 following the prosecuting attorney's closing argu 
 ment. It were more sane and calm and judicious 
 to let them coolly consider, than to rush them to a 
 verdict on the heels of a powerful closing speech. 
 So the court adjourned, the sleeping cherubs were 
 awakened, the curious departed, the defendant led 
 off to jail. There on his iron bed, in his iron cage, 
 he slept and dreamed and tossed. His dreams 
 were alternate in extremes. Once he saw his home 
 his castle : his wife, busy in domestic tasks, sing 
 ing the clean sweet song of labor; his ideals, the 
 boys, rollicking in the irrepressible, untamed ardor 
 of their years, and himself among them. Then the 
 incomprehensible panorama changed, and he saw 
 the gaunt outlines of a scaffold. A young man 
 was being quietly led up its short, yet long, stair 
 way, while a fair and beloved young woman, comely, 
 pale, trembling, supported herself clutchingly 
 against one of its columns. The sun was rising 
 and its darts of gold lit up the vast vault of God's 
 heaven. Someone inquired, and he heard a voice 
 saying, " There is Dudley, the murderer." Here he 
 had started in his sleep and thrust out his hands. 
 They struck the damp stone wall of his cell, and 
 he was awake, shivering, trembling, great drops 
 of perspiration on his brow. He slept no more, 
 for the gray light of day-dawn was stealing over 
 the earth.
 
 NISI PRIUS 171 
 
 O thoughtful reader, let courts and juries pon 
 der long and well this soul's suffering. Guilty, his 
 suffering is immeasurable ; innocent, it is illimitable, 
 boundless, utterly hopeless. The writer of these 
 crude lines has, like you, stood before the all- 
 powerful twelve and demanded an eye for an 
 eye, a tooth for a tooth, a life for a life; and 
 has had such request granted; and has seen, in the 
 cold gray dawn, the mute victim, cowed, terror- 
 stricken, helplessly led to his death, his quivering, 
 wriggling form dangling, jerking, writhing, then 
 quite still, save for the slight swaying in the soft 
 breeze. The wise men have not yet declared this 
 to be a relic of barbarism not yet. Perhaps they 
 never will. Perhaps such is not the case. Or 
 ganized society, with its complex and manifold 
 problems, may not be able to survive without this 
 terrible weapon of self-preservation. It would be 
 the purest dicta to give expression here touching 
 such a subject. 
 
 Upon the reconvening of the court a crowd 
 strange, curious morbid Public was on hand 
 when Judge Lowden handed the jury the indict 
 ment and instructions and sent them to a room to 
 consult upon their verdict. When they had gone 
 the business of the court resumed its wonted grind. 
 The very first case called, an indictment for dis 
 turbing public worship, brought from Haggard 
 his copyright phrase, " The Commonwealth is 
 ready," and Tobias Mathews called the names of 
 not less than forty witnesses, more than half of 
 whom (to the infinite surprise of the aforesaid
 
 172 NISI PRIUS 
 
 Tobias) were absent. That versatile barrister had 
 reason to flee from the wrath that was to come, 
 and while he is laboring heavily with his affidavit 
 for a continuance, let us return to the chief of the 
 causa celebra at this term. 
 
 Time wore on. Our curious Public thinned out. 
 Predictions of an early acquittal and an early con 
 viction were steadily merging themselves into the 
 belief that a " hung jury " would result in the Dud 
 ley case. Ten o'clock came, and yet no word from 
 the jury room. Eleven o'clock, and still no appear 
 ance of the jury. Just before the time for the noon 
 adjournment, while Captain Henry was gallantly 
 and heroically demonstrating that Doctor Spruce's 
 Green Bitters was not an intoxicating liquor, ac 
 cording to an intelligent and sensible interpretation 
 of his Honor's instructions, the all-thrilling tidings 
 were whispered about that the Dudley jury was 
 coming with a verdict. As if by magic, our re 
 doubtable and irrepressible Public, come to see the 
 wife faint or the defendant turn pale, had returned 
 to their respective points of vantage, and with 
 bated breath watched the weary twelve file into 
 court. Captain Vance, glasses on nose, white 
 paper in hand, led the silent, ominous procession. 
 When the jury had been called, the Court, ad 
 dressing Captain Vance, said: 
 
 " Read your verdict, gentlemen." 
 
 Thereupon the foreman readjusted his glasses 
 and amid deathlike stillness read : 
 
 " We, the jury, fail to agree. Zed Vance, 
 foreman."
 
 NISI PRIUS 173 
 
 Another admonition, and court took the noon re 
 cess. At one o'clock the jurors were again sent to 
 their room. All the long hot afternoon they de 
 bated, argued, pleaded with no result. Various 
 rumors were afloat as to how " they stood " one 
 as reliable and trustworthy as another. Passers- 
 by beneath their window heard, once, high and 
 angry words. At five in the afternoon Judge 
 Lowden, giving up hope of an agreement, had the 
 jury brought into court, and inquired if there was 
 any prospect of a verdict. " None whatever," 
 spoke up two determined voices at the same time, 
 and the experienced judge knew that these two 
 men were the leaders of the two factions of the 
 jury. They were, then, with the thanks of the 
 Court, discharged " from further consideration of 
 the case." 
 
 In thirty seconds it was known of all men how 
 the jury stood six for conviction, six for ac 
 quittal. Of the former, two were for the death 
 penalty and four for life imprisonment. So ended 
 the trial of the Commonwealth v. Dudley.
 
 CHAPTER XVIII 
 
 THE aftermath of this case does not concern this 
 chronicle, but if perchance there be those who have 
 cultivated an interest in defendant Dudley, his 
 wife, and two superb boys, a brief word of ex 
 planation touching the conclusion of this remark 
 able case will not be without interest to them. 
 
 At the following October term the case was by 
 common consent continued, counsel on each side 
 feeling the utter impossibility of engaging again in 
 that titanic struggle so soon after the mistrial. At 
 the February term next the long and desperate 
 struggle was renewed with redoubled vigor. As 
 is quite frequent, each side had strengthened per 
 ceptibly. Each now knew all the details of the 
 other's theory. In the midst of that raging battle, 
 in which victory wavered alternately from one side 
 to the other, a strange and remarkable event oc 
 curred abruptly terminating the proceedings. 
 It was this. On the second night of the trial Ben 
 Haggard walked into Judge Lowden's room at the 
 Hanna House, his face whiter than Lowden had 
 ever noticed it before. Dropping into a chair, he 
 handed an envelope to Lowden, saying: 
 
 " The County Judge has just come by and given 
 me that letter, which he received in to-night's mail. 
 Read it." 
 
 Lowden opened and read these words: 
 174
 
 NISI PRIUS 175 
 
 " LEA YEN WORTH, KANSAS, Februarys, 18 
 " THE COUNTY JUDGE, 
 
 " Greenwood, 
 
 " Mecklenberg County, Ky. 
 
 "My Dear Sir: I have just witnessed a sad and 
 melancholy spectacle one of the strangest in my 
 long experience as a priest, and was solemnly com 
 missioned by a dying man to write to someone in 
 your county. This morning I was hurriedly sum 
 moned to the Emergency Hospital in this city, 
 being told that a dying man requested my presence 
 there immediately. On reaching the hospital I was 
 told that one Ricardo Ferrago had been crushed 
 under the wheels of a train, and had but a few 
 hours to live. When I reached the poor man's 
 bedside, he was in agony more the agony of soul 
 than of the body. ' Oh, holy father ! ' cried he, in 
 broken English, ' my soul is burning and you can 
 save me. Will you beseech the Holy Virgin to 
 forgive, forgive, forgive ? ' I calmed the dying 
 man, and prayed with him. I assured him that ere 
 he faced the God of us all he should confess and 
 repent all his sins. He said he had sent for me to 
 tell all; that he was a murderer, a foul, black, 
 cowardly murderer. After this he raved and 
 cursed and was quite delirious. Suddenly, how 
 ever, his full faculties were restored. He was 
 calm and bid me sit on his bed and hold his hand 
 while he should relate his crime. Omitting his 
 broken English, this is the terrible confession he. 
 made: 
 
 " ' Holy father, may the Blessed Virgin pity me
 
 176 NISI PRIUS 
 
 and give me strength to relate all to you. I am a 
 dying man. I can feel my heart's blood growing 
 less and less, and before the sun sets over there I 
 shall be dead. 
 
 " ' I killed a man. I shot him down without 
 warning. I did it for money 'all for money. 
 Years, years ago I came to America from my na 
 tive, sunny Italy. They told me money grew on 
 trees across the sea. Would that I had remained 
 where God placed me! After a while I drifted 
 into Leavenworth. At the house where I lodged 
 lived a young man by name of Jackson Thomas. 
 In those days he drank, and was wild and reck 
 less. I w r as near penniless. A low woman in the 
 house enticed us both into her company. She 
 made thieves of us. The three of us planned to 
 rob a safe in a store in our neighborhood. All 
 three of us engaged in the robbing. The woman 
 and I were to watch while Thomas entered, ob 
 tained the money, and returned. He entered, put 
 the gold and silver in his pockets, and when he 
 turned to leave the safe he was seized by the night 
 watchman and hurried to jail. We escaped. 
 Thomas was loyal to us, and made no mention of 
 any confederates. He was tried and sentenced to 
 five years' imprisonment. All this time we were 
 in communication with him. Just before he was 
 to be taken to the prison the three of us contrived 
 a plan for his escape. He escaped and was never 
 captured. 
 
 " ' Thomas drifted about and finally settled in 
 Mecklenberg County, Kentucky, near a small town
 
 NISI PRIUS 177 
 
 called Greenwood. He prospered, and the woman 
 and I went the other way. I was desperate for 
 money. I heard from Thomas, and frequently 
 made him furnish me money, threatening to ex 
 pose him unless he did so. He had married, had 
 a large family, and was an exemplary man. We 
 blackmailed him thus for years. He protested, but 
 always paid. 
 
 " ' Finally my troubles came thick and fast, and 
 my fruit business was about to be taken from me 
 and sold. It was mortgaged for nine hundred dol 
 lars, and I could not raise fifty. I wrote to 
 Thomas. The woman she died six months ago, 
 rest her soul ! also wrote to him. He refused 
 to answer. We wrote again. Still no answer. I 
 then in desperation went to Greenwood, Kentucky, 
 and, finding where Thomas lived, went to see him. 
 This was last August, one year ago. He met me 
 at the gate, but refused to invite me into his house. 
 I demanded the nine hundred dollars. I begged 
 for it. I told him if he would only give it to me 
 he should never hear of Ricardo Ferrago again. 
 He expressed fear of my presence in that section. 
 I told him I had registered under an assumed name 
 at the hotel, Patrick something, I forget now. All 
 my appeals were in vain. Finally, in desperation, 
 I told him I would kill him if he refused me. This 
 seemed to alarm him. He was so prosperous and 
 I so ill-used, I envied him. I hated him. I de 
 termined to kill him. 
 
 " ' I returned to the hotel. A gunsmith had a 
 shop adjoining the hotel they connected in the
 
 178 NISI PRIUS 
 
 rear. That same afternoon I was in his shop and 
 priced a gun a one-barrel shotgun. The price 
 was too high. I did not have the money. I 
 watched the smith when he closed his shop. The 
 window was not locked, though the door was. 
 Early in the night I went to the rear of the shop, 
 raised the window, reached for the gun and ob 
 tained it, took it to my room and concealed it un 
 der the bed. I then went in search of powder and 
 shot and caps the gun being a muzzle-loading 
 gun. Finally I found a small grocery store and 
 made the purchase. Returning to the hotel, I told 
 the proprietor that I would retire. Reaching my 
 room I loaded the gun heavily, making the wad 
 with some old newspapers I found in the room. I 
 then stole stealthily down the back stairs and 
 hurriedly walked in the direction of the Thomas 
 place. A mile out of town I passed a house on 
 the road. A horse, saddled, was hitched near the 
 gate. Seeing no person about, I quickly mounted 
 the horse and rode rapidly away. It was a beauti 
 ful, moonlight night. Once I thought I heard 
 someone approaching, and I turned suddenly out 
 of the road into some trees and soon came to an 
 open field. Without warning, I rode into a high 
 barbed wire, suspended, and cut a fearful gash in 
 my cheek. I sat there, trying to check the flow of 
 blood with my handkerchief. Being satisfied the 
 other traveler had passed on, I resumed the road. 
 When I reached Thomas' place all was quiet and 
 dark within. I dismounted, tied my horse, and 
 went boldly into the yard. Some sheep or goats,
 
 NISI PRIUS 179 
 
 in the yard, frightened me, I came upon them so 
 suddenly. I knocked on the door loudly. At first 
 I heard no sign of life within. I knocked again. 
 Then I heard someone on the inside. I saw a light 
 within. Thomas' voice called to know who was 
 there. In a disguised voice I told him I had an 
 important letter for him. I could see him on the 
 upper stairway landing. There his candle went 
 out. He first opened the main door and later the 
 screen door. The moon was now full upon his 
 face, while it shone upon my back. I said to him, 
 holding the gun behind my back : " Emily and I 
 must have the nine hundred dollars now will 
 you give it?" He cursed me, and was saying 
 something about damn you, the woman, extortion 
 and all ! when I drew the gun, put it at his stomach 
 and fired. He fell, with a groan. I ran through 
 the yard, almost knocking down one of the sheep, 
 leaped the fence, mounted the horse and dashed 
 away. Presently I heard another rider. I turned 
 into a side road and continued, hardly knowing 
 where I was going. Suddenly, I realized I still 
 had the shotgun in my hand. I hurled it over a 
 fence into some weeds. After a little I again 
 found myself on the main road. I proceeded 
 rapidly in the direction of Greenwood. I soon 
 approached the house where I had obtained the 
 horse. The light was burning just as when I 
 passed it shortly before. I dismounted, tied the 
 horse just as I had found him, and walked rapidly 
 into the town, seeing no mortal on the way. 
 " ' When I reached the hotel I quietly entered
 
 i8o NISI PRIUS 
 
 up the rear steps as I had come out, and was in 
 my room. I left Greenwood early the next morn 
 ing. At St. Louis I saw in a paper that Jackson 
 Thomas had been killed the night before. O, most 
 holy father, give me some assurance, some hope ! ' 
 " And here the dying man fell back exhausted. 
 He again revived and I communicated all to the 
 chief physician. He suggested that the dying man 
 sign an affidavit, swearing to these statements. A 
 notary public was obtained and the affidavit made. 
 I enclose it to you, as also a copy of the Times, in 
 which you will see a full account of all the long 
 terrible story. Ferrago could not indicate to whom 
 these papers be sent, so the notary and Dr. Mea- 
 champ suggested you as the proper official with 
 whom to communicate. Respectfully, 
 
 " Your obedient servant. 
 
 "JOHN O'MARA/' 
 
 Judge Lowden read this document eagerly. 
 He then read the enclosed affidavit and newspaper. 
 
 " I cannot say that I am greatly surprised, Ben," 
 said he. 
 
 Haggard was silent. He finally arose, took the 
 letter and contents, put on his hat and started to 
 the door. 
 
 "Where are you going?" asked the judge. 
 
 " First," answered the iron prosecutor, " I am 
 going to Tom Henderson's office, and then he and 
 I are going over to the county jail." And he passed 
 through the door. 
 
 And in after years in Mecklenberg County Ben
 
 NISI PRIUS 181 
 
 Haggard had difficulty in convicting on circum 
 stantial evidence. To this day lawyers are heard 
 to say, " Why, gentlemen, lots of you recall the 
 Dudley case, a stronger case than this, by far, 
 yet he was absolutely innocent. It is better that 
 ninety and nine guilty men escape than that one 
 innocent man be convicted."
 
 CHAPTER XIX 
 
 SUNDAY came. Judge Lowden and Haggard went 
 to their homes, as did the jury. The old temple, 
 silent, grim, historic, gave out no sound, as Green 
 wood's citizenry wended their ways to church on 
 that Sunday in June. A rumor, which had gained 
 more than mere current report, had been afloat of 
 late, in which one of our acquaintances, to wit, 
 Judge Cole, took more than a passing interest. 
 The busy dame had it that the redoubtable Cole 
 was about to be " churched." Now, for the bene 
 fit of those unenlightened persons, of whom there 
 are a few in this world, it is possibly quite 
 essential to define just what that term signified. 
 To be " churched " was to be excommunicated ; to 
 be formally charged, tried, condemned. The juris 
 diction of the tribunal, which was both exclusive 
 and comprehensive, covered any and all cases of 
 heresy, schism, disloyalty, and that broad category 
 of offenses which for want of specific title in state 
 craft is generally described as lese majesty. 
 
 Judge Cole, whose spiritual privileges were now 
 in jeopardy, had not been disturbed by the 
 threatened trial. His constitutional right of free 
 speech was at stake, and he despised the " he who 
 fights and runs away " idea. Now the particular 
 offense charged against him was the use by him 
 of certain language in a recent address to a certain 
 jury in defense of a client accused of vending 
 
 182
 
 NISI PRIUS 183 
 
 liquor in prohibition territory. A certain God 
 fearing parson, who had espoused the cause of 
 the prosecution and had given it substantial aid in 
 convicting the defendant, had been rather liberally 
 cauterized by Cole in his speech. He had been 
 grossly affronted by such phrases in Cole's speech 
 as " a long-nosed parson, with his affidavit face, 
 buttin' into this case," and " this preacher, instead 
 of proclaiming the gospel from the highways and 
 by-ways, is seen to rush down to the footlights 
 and fire off his horse pistol, to the disgust of jus 
 tice-loving men and the chargin and lasting morti 
 fication of his flock." A third specification ap 
 peared in the charge. Not content with uttering 
 these un-Christian comments, the accused had 
 hurled satire, invective, and abuse at the meek and 
 righteous man. His aphorism, " the ministry 
 throwing itself into the scales of Justice, thereby 
 tipping same," constituted no minor portion of the 
 advocate's many offenses. 
 
 But the deponent who instigated these proceed 
 ings had reckoned without his host. It had not 
 been intended to really try the culprit. It was a 
 measure conceived to overawe the accused, and 
 to extract an apology coupled with assurances of 
 future good behavior. The arrow fell wide of its 
 mark. Not only was Cole thoroughly unintimi- 
 dated, he was ready, willing, and anxious for the 
 fray. He was a member of the bar; he had been 
 engaged in defending a client; his accuser had de 
 scended from his lofty eminence and had become a 
 runner for the Commonwealth. In addressing the
 
 184 NISI PRIUS 
 
 jury, he had exercised his inalienable and constitu 
 tional right of free speech, and had called a spade 
 a spade. His personal liberty, no less than his 
 professional usefulness, was thus assailed. He 
 would show one parson whom he had tackled. He 
 would appeal to the freemen in the congregation. 
 If the worst came to the worst, there were other 
 churches. Since he had heard of the impending 
 trial, he had at once addressed a letter to the 
 offended man of cloth, who resided out in the 
 country, from the tenor of which communication 
 that individual readily saw he had stirred up the 
 proverbial hornets' nest. It ran thus: 
 
 " JOHN COLE, 
 " Attorney and Counselor at Law. 
 
 " Collections a specialty. 
 " Official Attorney for Sheriff. 
 
 " GREENWOOD, KY. 
 " REV. (?) HENRY STOUT, 
 
 " Bremen, Ky. 
 
 " Sir My attention has been called to a plan of 
 yours to have me churched because I saw my duty 
 and done it. You are hereby informed that I will 
 be at the churching to seize the glove you have 
 thrown down. Please be on hand yourself. 
 
 " Yours truly, 
 
 " JOHN COLE. 
 " P. S. Don't fail to be on hand yourself." 
 
 On receipt of this brief communication the
 
 NISI PRIUS 185 
 
 Reverend Mr. Stout, misnamed by one of those 
 frequent vagaries of nature, promptly decided not 
 to be on hand himself. Well did he know the 
 fierce debating powers of Attorney Cole. His 
 faint heart quailed at the thought of having that 
 gentleman's bent ringer shaken in his face while his 
 terrible voice thundered at him. 
 
 On this Sunday morning we again meet our old 
 acquaintance, Morbid Public. He has, to be sure, 
 heard of the prospective thrilling proceedings, and 
 has turned out en masse to witness the event. It 
 was known of all men that Cole, J., had the habit 
 of giving a Roland for an Oliver. Marcellus 
 Jumpus had often ventured the assertion " that old 
 Cole could speak his way out of hell." Only once 
 had his roaring, ear-splitting oratory met with a 
 terrible end. That was recalled by everybody 
 about the court-house. 
 
 Judge Lowden had delivered that blow. Cole 
 had been aiding the prosecution in a certain 
 criminal case. A verdict of guilty had been ren 
 dered. Defendant's attorney had argued his mo 
 tion for a new trial. Cole was replying. He had 
 spoken two hours and had advanced, by slow de 
 grees, on to the Court until his outstretched finger 
 almost touched Judge Lowden. His voice was 
 high. He yelled and stamped and perspired, and 
 his black eye glared. There was some question 
 relative to misconduct of one of the jurymen, in 
 which the opposing counsel was in some way in 
 volved. Cole had reserved this for his conclusion. 
 He intended to deal " seriously, but frankly " with
 
 i86 NISI PRIUS 
 
 the defendant's attorney. And here is how Judge 
 Lowden " squelched " him, as Jumpus said : 
 
 Spoke Judge Cole: 
 
 " Now, your Honor," he fairly roared, " I am 
 about to conclude. Shall the wheels of justice be 
 come clogged up for such a trivial matter? And, 
 sir, I now come to a point in this case directly con 
 cerning this defendant's attorney a point, sir, I 
 would fain omit " 
 
 " Suppose you just omit it," came from Judge 
 Lowden, in a quiet voice. 
 
 Jumpus used the only word when he said Cole 
 was " squelched." He stopped, stared, gulped, his 
 tongue froze. In short and in fine he was literally, 
 actually, indubitably squelched. 
 
 Our Public on that Sunday morning saw Judge 
 Cole enter the church. He was a prince. Freshly 
 shaven, his mustache cropped a little closer than 
 usual, to give him, no doubt, a fiercer look, he wore 
 his frock coat. Its tails were stiff from lack of 
 use and insisted on standing out. The garment 
 was buttoned in front. He carried his cane in 
 one hand, while the other he kept palm inward, in 
 his bosom. He, with characteristic good judgment, 
 waited until the building had filled ere he made his 
 entrance. Then he entered. With dignity inde 
 scribable he walked down the aisle and took a seat 
 at the very front. Those who knew him could de 
 tect fire in his eye and a speech a Cole speech 
 fairly oozing from his pores. There he sat in the 
 proud consciousness experienced by every general 
 who routs his foe. The Rev. Mr. Stout, as Cole
 
 NISI PRIUS 187 
 
 said afterward, " failed to come to the scratch," 
 and there was no opening of the floodgates of his 
 pent-up oratory. 
 
 And this is how it happened that John Cole, 
 Esq., attorney and counselor at law, collections 
 a specialty; official attorney for sheriff, was not 
 churched. This narrative undoubtedly suffers by 
 the not in that line, as things of interest would 
 then and there have transpired. However, as truth 
 is mightier than fiction, and as departures in plead 
 ing are to be condemned, the actualities only are 
 related.
 
 CHAPTER XX 
 
 MONDAY came, the tenth of June, the seventh day 
 of court. Lowden and Haggard again rode up 
 the main street in the old carry-all. Hanna met 
 them just as he had done the Monday previous. 
 The old bell, through the scrupulous promptitude of 
 Uncle Toby, again gave notice that " cote was 
 settin'." The criminal docket was not yet finished, 
 hence Haggard's return with Judge Lowden. 
 There were several criminal cases to be disposed 
 of, motions for new trials, two bills of exception 
 in which the State's counsel was interested, to say 
 nothing of quite a number of indictments to be 
 drawn. 
 
 The court convened and the case of Common 
 wealth v. Gaines was first called. Mr. Blontz, 
 hailing from another county, announced that he 
 represented the defendant. Now Lawyer Blontz 
 was a lawyer. He was thick-set, wore glasses, and 
 looked at one with a vacant, hopeless kind of gaze. 
 Providence in the divine division of things had 
 allotted to Blontz a double portion of self-assur 
 ance; but by a singular oversight had neglected to 
 supply a commensurate amount of gray matter. 
 It therefore allowed that the Hon. Blontz pos 
 sessed all the outward and visible signs of a lawyer 
 without in the least being the owner of any quali 
 fications even tending in that direction. Another 
 singular feature in the make-up of Blontz that is 
 
 188
 
 NISI PRIUS 189 
 
 worthy of mention, was that while all mankind 
 knew his professional limitations and shortcomings, 
 he himself lived in blissful ignorance thereof and 
 reveled in the sweet belief that he was the ablest 
 of advocates, the shrewdest of attorneys, the wisest 
 of advisers. It need not be added that he was the 
 happiest of men. Self-satisfaction dulls the edge 
 of discontent and makes men merry despite any 
 and all other environments and conditions. 
 
 So then, patient reader, Mr. Blontz was there 
 in court, looking as wise as a tree nay, a forest 
 full of owls. He looked hard at you and straight 
 at you, but his gaze was vacant and the luster in 
 his luminous expression gave token of no single 
 idea. Gaines, his client, charged with selling 
 liquor in prohibition territory, sat admiringly hard 
 by, and feasted his dull eyes upon the great man, 
 his attorney. Ah, lawyer who reads these pages, 
 do not mock your brother Blontz. Like him, you 
 number clients who place you on a pedestal. You 
 are catalogued with Justinian, Blackstone, Mar 
 shall, Webster, Evarts, until, until you try your 
 client's causes and lose. 
 
 Now defendant Gaines, himself an ox, dully 
 stared at his great lawyer. He was destined to ex 
 perience even a greater awe and admiration shortly. 
 Blontz arose. He adjusted his glasses. He took 
 up the indictment. His deliberation was pro 
 nounced. Perhaps it was exceeded by his absolute 
 confidence in his infallibility. 
 
 " I desire to file a demurrer to this indictment," 
 he said, much after the manner of Lord Eldon
 
 190 NISI PRIUS 
 
 delivering a decree. The Court took the indict 
 ment. Judge Yust, who was sitting on the bench 
 with Judge Lowden, asked the Judge in a whisper, 
 
 "What is his point?" 
 
 " He hasn't the least idea in the world," replied 
 the Court. 
 
 " What is the point of your demurrer, Mr. 
 Blontz ? " inquired the Court. 
 
 Blontz arose, read the indictment aloud, and 
 gave this specific and altogether definite reply: 
 
 " Your Honor, the indictment fails to state a 
 public offense." 
 
 " In what particular ? " pursued the now relent 
 less Lowden. 
 
 " It fails to give the exact date of the sale. The 
 blank day of March don't mean anything. That 
 might be another sale than the one the grand jury 
 indicted him for," and Blontz proceeded to assign 
 numerous other equally as conclusive and lucid 
 grounds in support of the demurrer. When he had 
 concluded, the Court inquired if he had any other 
 reasons to suggest ; to which he replied in the nega 
 tive. Judge Lowden then ruled thus on the de 
 murrer : 
 
 " None of the points suggested by Mr. Blontz 
 on his demurrer are tenable. The indictment is not 
 bad on demurrer for any of those reasons. It is, 
 however, fatally defective in that its allegations re 
 lating to the local option law being in force are in 
 praesenti. It avers, in substance, that this defend 
 ant sold liquor in this county, where the local op 
 tion law is in force, whereas it should be charged
 
 NISI PRIUS 191 
 
 that the law was in force at the time the sale was 
 made. Let the demurrer be sustained," and Hag 
 gard was listening to the County Attorney's ex 
 planation of why the indictment was so clumsily 
 drawn. 
 
 " That is all, Mr. Gaines ; you may go now," 
 said Blontz to his admiring client. And Blontz 
 and Gaines were seen to leave the court-room to 
 gether, contented. 
 
 " How did you get it throwed out?" asked the 
 merry defendant of the merry lawyer as they 
 crossed the court-house yard, the one fairly bask 
 ing in the effervescing joy of the other. 
 
 "Easy, Gaines, easy," said Blontz, as he wisely 
 winked one of his eternally vacant eyes. " These 
 Greenwood fellows don't know the tricks. A little 
 technicality that I don't use except when necessary. 
 When you get in that court-room you have to work 
 this thing," and he tapped his head with his finger. 
 
 " Damned if you ain't a wheel-horse, and that's 
 no mistake," said Gaines, and he paid his fee to his 
 lawyer, while the Mecklenberg County grand jury, 
 to whom the indictment had been re-referred, was 
 finding a new indictment, without the defect and 
 from the toils of which even the admired Mr. 
 Blontz could not extricate the subsequently skep 
 tical Gaines.
 
 CHAPTER XXI 
 
 LOWDEN suffered a sigh of relief when he closed the 
 Commonwealth's docket and called for the com 
 mon law docket. The criminal session had not 
 been without interest, but to this seasoned and ex 
 perienced jurist the average criminal case was a 
 bore. With the criminal business concluded, our 
 old friend Morbid Public disappeared. The 
 benches of the temple were empty, nor could a civil 
 cause of gigantic importance entice them thither. 
 Tears, pale faces, weeping widows, tales of pistol 
 and dagger, and the flowing of life blood these 
 all went out one door while Morbid Public 
 evacuated through another. And now the court 
 went about its business uninfluenced by the ap 
 proving or disapproving laugh or smile or look or 
 frown of many non-discriminating on-lookers. 
 
 An appealed case involving all the thrilling de 
 tails betwixt a landlord and his tenant over their 
 respective shares in a small crop first obtained the 
 right of way. Cole, for the tenant, stormed a 
 great deal about " honest sweat," " horny handed 
 laborer," " up with the sun," " humble, helpless in 
 a pitched battle with a landed nabob." Captain 
 Henry, noting about nine land-owners on the jury, 
 was fluent touching " trifling tenants," " shirking 
 croppers," " necessity for business methods on the 
 
 192
 
 NISI PRIUS 193 
 
 farm " ; and so the mill ground merrily on through 
 out that afternoon in June and the landlord-tenant 
 cause was concluded. 
 
 An action in ejectment was begun and con 
 cluded soon. Tobias Mathews stood sponsor 
 for the plaintiff. Brownlow, for the defendant, 
 had contented himself with merely filing a traverse 
 of the petition, denying in toto the plaintiff's title. 
 Of all the weapons in the vast armory of the law 
 a simple traverse by the defendant in an action in 
 ejectment is the most valuable. Doubtless it has 
 won more battles than all the warriors from 
 Alexander to Grant. 
 
 Brownlow had filed it and kept his peace. He 
 sat reposing in his chair watching Mathews very 
 much after the fashion of an Indian chief behold 
 ing a captive run the gauntlet. The unconscious 
 Mathews, all smiles, bustled hither and thither, 
 speaking to witnesses, carrying deed books, con 
 sulting his client. The trial proceeded rapidly 
 enough until Mathews reached the 4o's. Here 
 were breakers ahead, but the oblivious Mathews, as 
 blind as the very goddess at whose shrine he wor 
 shiped, stalked confidently and merrily along. 
 Abruptly and without warning the ice grew thin. 
 It snapped, opened, and the icy waters engulfed 
 the unsuspecting youth ere he was aware of his fate. 
 Yet he bobbed up smiling, nothing daunted. While 
 the Court was waiting a verdict for the defendant 
 to be signed by the jury, having sustained a motion 
 for a peremptory instruction, Mathews smiled in 
 all directions. As Judge Cole was passing out the
 
 194 NISI PRIUS 
 
 door Colonel Stevens, whom he met, inquired what 
 the court was engaged in. 
 
 " Puttin' Mathews on the cooling board just 
 now," said Cole. " They were trying to try a land 
 case. Brownlow denied Mathews' title, and Ma- 
 thews didn't hold out for the second quarter. He 
 took a balloon ascension, soared and soared, col 
 lapsed, and then hit the ground like a thousand 
 brick, still grinnin'. Damned if I believe he knows 
 it yet. Got down to 1844, struck a snag, grinned, 
 gulped, and died, but still grinnin', " concluded the 
 critic, as he passed out to a cane bottom chair un 
 der the shade of a great tree, and there resumed 
 one of his chief occupations sitting down. 
 
 That night as Lowden, Haggard, Henderson, 
 and Jim Hanna sat on the pavement in front of 
 the Hanna House, Mathews joined the group. 
 He said he had entertained Brownlow for a while, 
 anyhow. He couldn't understand, he said, the jus 
 tice of the rule of law that required his client to 
 prove a title from the Commonwealth down, 
 " while the defendant just sits there and don't even 
 open his mouth; and if I fail anywhere along the 
 line out I go, although my man has a deed to the 
 land." 
 
 " Well, you see, Tobe," said Hanna, " we have 
 to have rules and regulations about this law busi 
 ness. We can't just turn a fellow like you loose 
 up there and let you run wild. Rules and regula 
 tions are as necessary up there as they were to old 
 man Bulcher. Judge," brightened up Old Jim, 
 " have you ever heard that story about old man
 
 NISI PRIUS 195 
 
 Blucher's rules and regulations? You know old 
 Blucher?" 
 
 " Oh, yes, quite well," replied Lowden, at once 
 banishing the wise or unwise rule governing actions 
 in ejectment and lighting a fresh cigar in anticipa 
 tion of Hanna's story. 
 
 " Well," began that rare and versatile genius, 
 " old man Blucher, you know, loves what we some 
 times call the coin of the realm. You may have 
 known men who sorter loved it, but when it comes 
 down to real love, Mr. Blucher's affection for the 
 dollar is in a class all by itself. And then he is a 
 very pious man too. He was in the Civil War, 
 enlisting in some Yankee regiment, like nearly all 
 these infernal Republicans did around here. The 
 old man don't believe in fightin' much. It's not his 
 line. He says the war was the roughest thing you 
 can imagine. Just the other day there was some 
 thing in the paper about little old fightin' Joe 
 Wheeler, and old man Blucher told me all over 
 again his story about rules and regulations. I call 
 it that, but he doesn't. I'm going to give it to you 
 just like he gave it to me. 
 
 " ' Jimmie,' he says to me, says he, ' I see they 
 are praisin' up General Joe Wheeler a powerful 
 lot in the papers. That's all wrong. I never did 
 like General Wheeler. He was the roughest, most 
 reckless man I ever saw. In a battle he'd just 
 simply run over you, if you didn't get out of his 
 way. The man wouldn't stop to think nor nothin' ; 
 but would come at you like a cyclone, pell mell. 
 Reckless, Jimmie, awful reckless.
 
 196 NISI PRIUS 
 
 " ' You know, Jimmie, I went into the army 
 when I was a young man. Things were all upset, 
 and I thought it would be a good opportunity to 
 make a little money. You know soldiers are reck 
 less and wild. They don't pay any attention to 
 economy or business or saving their money, and 
 when they've got the money they pay high for 
 things. Well, I had saved some money and so I 
 went in. It was awful rough. Soldiers would 
 curse and drink; didn't make any difference if there 
 was to be a battle next day. You never saw so 
 many reckless, wicked men. 
 
 " * I thought so long as I wasn't making any 
 money except my pay, I might try to make a little 
 extra money. I got a small camp stove that 
 kinder folded up. I could carry it around with me 
 handy. Whenever we'd pitch camp I would get 
 out and buy some meal and cook corn-cakes and 
 sell them to the soldiers. It was a fine chance to 
 do business. Rations to men was always short, 
 and when they had money I could get sometimes 
 five cents for a corn-cake. They would smell the 
 cakes cookin' on my stove and pay me most any 
 price. Lots of times they wanted to buy my cakes 
 on credit, and once I let a fellow have two and 
 trusted him for the pay. He never did pay me for 
 those two cakes, and I stopped the credit business. 
 You know, Jimmie, it ain't business, and you've 
 got to have rules and regulations in business. So 
 I told the boys that I couldn't sell my cakes with 
 out the money. On pay-days I made a lot of 
 money, and saved it all. Once I thought some
 
 NISI PRIUS 197 
 
 soldiers intended to get into my knapsack and take 
 my money, and I kept awake three nights watching 
 it. You know, Jimmie, I had to be careful among 
 all those wild fellows. I tried to talk religion to 
 a big fellow once and asked him to join me in 
 prayer. He said he would if I would sell him 
 some cakes on credit. Of course, I couldn't do 
 that. You have to have rules and regulations 
 about business, and if I had sold him my cakes on 
 credit he might have got killed in the next battle, 
 and where would I have gotten my pay ? This big 
 fellow then said he was sick and felt like if he 
 didn't get some good food he would soon die. Of 
 course I felt sorry for him, but I had to have my 
 rules. After awhile he came back and said he 
 would let me take his ring to secure me if I would 
 let him have six cakes. I wouldn't agree to six, 
 and we agreed on four. It was a gold ring, and 
 I sold it afterward for a good profit. 
 
 " ' I was making money plentiful. One night 
 we heard that this same General Joe Wheeler in 
 the papers now, was about to attack us. I thought 
 we ought to move out then, as I had always heard 
 Mr. Wheeler was the most reckless man in the 
 Rebel army. But they wouldn't budge. I packed 
 up my stove and got everything ready. Next day 
 Mr. Wheeler charged us with cavalry. You can't 
 imagine how fast they came, Mr. Wheeler in front, 
 runnin' over everybody. He'd kill you in a min 
 ute if you just stood there. I never have admired 
 that fellow since. I saw we were overwhelmed, so 
 I got my stove and hid under a log. They were
 
 198 NISI PRIUS 
 
 passing with a lot of prisoners, and I was dis 
 covered. We were all taken to Andersonville, the 
 Confederate prison. Of course I was not glad to 
 be in prison, but that was better than fighting, and 
 I was satisfied. You know, Jimmie, the Con 
 federates were not able to feed their prisoners of 
 war, and lots of Union soldiers died from neglect 
 and starvation while prisoners. There were thou 
 sands of us Yankees in this Andersonville prison, 
 and I thought it would be a fine place for my busi 
 ness. So I managed to get some meal and fixed 
 up my stove. I sold cakes for large prices. I got 
 watches and rings and trinkets after the money 
 all gave out. They tried to get me to sell my 
 cakes on credit, but I told them I had to go by my 
 rules and regulations. I had my stove out in the 
 corner of the prison yard, under a little plum tree. 
 It was near the high prison wall. We were 
 guarded by sentinels all the time. They walked on 
 the wall with long guns always loaded. One day 
 when some prisoners were trying to get me to sell 
 my cakes on credit, I noticed a long, tall Texas 
 Confederate sentinel on the wall near us. He had 
 stopped his walking and was looking hard at me. 
 He never spoke a word, just looked at me, like he 
 was thinking. The next day a wounded soldier 
 crawled to my stove and wanted a cake. He said 
 he was expecting a letter every day from his 
 mother, with money, and he would pay me when it 
 came. I told him I couldn't do it. The fellow 
 looked honest, Jimmie, but I didn't think he would 
 live a week, and it wasn't business to sell him the
 
 NISI PRIUS 199 
 
 cakes on credit. I explained it to him. The boy 
 actually cried. Must have been homesick as well 
 as hungry. Now what do you reckon happened 
 just then? That long, mean-looking Texas sen 
 tinel called to me. I looked up and; he had his gun 
 leveled at my head " You damned stingy cuss, if 
 you don't make that boy a dozen cakes and give 
 'em to him right now, I'll blow the top of your 
 head off." And Jimmie, I believe he would have 
 done it. He was the meanest-looking man I ever 
 hope to see. I tried to argue with him. He 
 cursed and cocked his gun. I told him how much 
 the meal cost me, and he began to count to ten, 
 saying he supposed there would be a dead hog 
 around there soon. I never was treated so bad in 
 my life. That fellow stood there and made me 
 make a dozen cakes for that sick boy. I never got 
 a cent for them. When the boy had eaten them the 
 Texas sentinel told him to come every day at that 
 same time and to bring two other sick prisoners 
 with him each day. Do you know, that man made 
 me make cakes for those three soldiers every day! 
 I believe he would have shot me dead right there 
 if I had refused to make them. I wasn't get 
 ting any pay. My business wasn't paying at all. 
 About the fourth day I told the Texas fellow that 
 my meal was all gone and I couldn't make any 
 more cakes. He looked at me, and said when the 
 three soldiers came if there wasn't plenty of meal 
 there, there would be a funeral in that prison soon. 
 He'd done it, too. I had to get me some more 
 meal. I went to the commanding officer and told
 
 200 NISI PRIUS 
 
 him how I was being treated. He looked curious 
 at me and told me to obey the prison guards. He 
 said the big Texas fellow on the wall had killed 
 lots of men, and he hoped I wouldn't make him 
 mad. Of course, Jimmie, I couldn't afford to 
 make him mad. One day they said General 
 Wheeler was to come there to inspect the prison. 
 He was a cussin' man too. He came. He saw 
 my stove and asked mighty rough what I was doing 
 with that thing there. I tried to explain to him, 
 but all I could hear him say was something about 
 " damned vultures living on sick soldiers ! " But, 
 you see, Jimmie, I hadn't got paid for all my 
 cakes. Now that very day that Mr. Wheeler was 
 there the Texas fellow made me use up all the meal 
 I had, and I made up several dozen nice cakes. He 
 then sent for about a dozen prisoners and made 
 me give them all my cakes and wouldn't let me ask 
 for a cent of pay. He sat there and watched them 
 eat all the cakes, and wouldn't even let me eat one. 
 He then made me hand him the stove, which he 
 threw over the wall. It broke into pieces. He 
 then looked at me, with his hard and wicked look 
 and said, " Now don't let me catch you around 
 this end of the yard again. Them's the rules, and 
 we have to have rules and regulations, you know." 
 Now, Jimmie, I have always believed Mr. Wheeler 
 put that fellow up to that, and I haven't ever liked 
 him since. Do you blame me ? ' 
 
 " So Tobe," concluded Hanna, " we must have 
 rules and regulations in this law business, just like 
 in selling cakes."
 
 CHAPTER XXII 
 
 THE first case called for trial Tuesday morning 
 was one in which Marcellus Jumpus starred for the 
 plaintiff. Jumpus somehow had heard of the 
 plaintiff's injury, and it need not be said that in 
 due course the plaintiff knew something of his legal 
 rights. Judge Thompson, with a candor that was 
 painful, observed that Jumpus was a Paracamph 
 lawyer the first aid to the injured. Jumpus had 
 explained explicitly such mystifying terms as 
 " gross negligence," " punitive damages," " per 
 manent injury," etc. Early in the game Bill Scott 
 in brotherly sympathy had said to Jumpus, " You 
 had better make that fellow go to bed," and straight 
 way the aforesaid plaintiff had sought and kept his 
 couch at least for awhile. Colonel Stevens was 
 defending the coal company. He had no concern 
 as to the outcome of the case. Assumed risk was 
 his rapier, with which he proposed to run Jumpus 
 through. The Colonel merely sat steady in the boat 
 and watched the current flow. Captain Henry 
 fairly expressed it when he said to Cole in the court 
 house yard, that Jumpus was inside " as busy as 
 a bird dog " with Hazel v. Blackwood Coal Co. 
 The observation vouchsafed by Bill Scott was that 
 Jumpus was " carrying the thing too far with his 
 crutch pendente lite." 
 
 When Judge Lowden called the case, Jumpus an 
 nounced ready. He had a look in his small eye 
 
 201
 
 202 NISI PRIUS 
 
 that plainly said, " You delaying octopus, at last I 
 have you where you have most dread before a 
 jury." He rather anticipated that Stevens would 
 move to continue so dangerous a case was this 
 in the eye of Jumpus. Stevens did not so move. 
 A motion to require the petition to be verified, 
 which had been previously filed, was what he called 
 up. It was sustained, and Hazel limped wretchedly 
 to the clerk's desk to subscribe to the affidavit. 
 When Hazel was thus irrevocably tied to his de 
 tailed allegations, an answer and reply were filed and 
 Colonel Stevens announced ready. 
 
 From the opening statement, one would wonder 
 how Hazel ever got all his dismembered parts to 
 gether to come to the court-house. He had been 
 fearfully and terribly cut and 1 bruised and mangled. 
 His left leg was stiff, his good right arm was for 
 ever stiff, so stiff he could not raise it at all. For 
 ever it must hang " palsied by his side." His in 
 ternal injuries were fearful. He had bad dreams 
 at night, could not sleep nor eat. His earning 
 power was totally destroyed and his expectancy was 
 twenty-nine years. 
 
 Stevens declined to make an opening statement 
 for the defendant. This displeased Jumpus. He 
 whispered to his client, " Some trick, but I'll watch 
 him." Hazel was called to the witness stand. 
 Jumpus, the picture of sympathy, seized his good 
 arm and helped the " wreck " to the chair. It was 
 quite a task to get this mashed and mangled cripple 
 a distance of six feet, but Jumpus, the sympathetic, 
 finally did so, tenderly and carefully. He con-
 
 NISI PRIUS 203 
 
 sumed some time in this accomplishment, but apolo 
 gized to the jury, by saying, " Excuse us, gentlemen, 
 but you will have to bear with us, in his condition." 
 
 Marcellus then proceeded to delve into the long 
 and sad story of Hazel's undoing. Finally, he con 
 cluded his examination and said, 
 
 " Mr. Hazel, if you want to rest a bit before Colo 
 nel Stevens asks you, you may do so." 
 
 Hazel sighed, and in a weak voice said he would 
 try to stand it. The Colonel took him gently 
 through what Judge Cole called " a course of 
 sprouts." The witness emphasized the fact that his 
 right arm could not be raised. It hung limp by his 
 side and he was powerless to lift it. That condition 
 had existed since his injury. His back was sprained, 
 his legs were weak, his left one entirely valueless. 
 He had to be almost carried about. It gave him 
 fearful pain to walk only a few steps. But his stiff 
 arm gave him the greatest anxiety. Here Jumpus 
 interrupted the cross-examination to say : 
 
 " I did not hear you say just which arm that is? " 
 
 " My right arm," groaned Hazel, and Jumpus 
 looked things, though he said nothing. Colonel 
 Stevens completed the cross-examination and turned 
 the witness back to Jumpus, who proceeded to re- 
 examine him more for emphasis than for light. 
 Hazel, between groans, appeared at one time as if he 
 might sing an old song, entitled, " Lead, and I will 
 follow." 
 
 Now Colonel Stevens' hat was hanging on a peg 
 in the upright post near the witness chair. The hat 
 was perhaps seven or eight feet from the floor. It
 
 204 NISI PRIUS 
 
 was immediately to the right of the witness, and out 
 of reach of all others in their seats, save the stiff- 
 armed plaintiff. When Jumpus had left the stiff 
 arms and legs and was rehashing some minor de 
 scriptive details relative to the place of the accident, 
 Colonel Stevens suddenly announced he had to go 
 to his office for a moment. 
 
 " Mr. Hazel," said he quite innocently, " will you 
 kindly hand me my hat there ? " 
 
 Hazel on the impulse reached high with his right 
 hand and handed the hat to Stevens. In reaching 
 for the hat he had raised his arm easily, quickly, 
 and without the slightest difficulty. Instantly the 
 witness saw and realized his blunder. It was too 
 late. He felt like a bubble being rushed out to the 
 open sea on a receding tide. Jumpus sickened. 
 Captain Henry leaned over to Judge Yust, in the 
 stillness, and muttered, " The walls of Jericho are 
 crumbling." Stevens looked at Hazel, and Hazel 
 looked at Jumpus, and Jumpus looked nowhere. 
 He helplessly stared into space. Stevens, no word 
 being yet uttered by lawyer or witness, reflected 
 momentarily and then said: 
 
 " I don't think I'll have to go. Mr. Hazel, kindly 
 hang my hat up for me." 
 
 The man slowly took the hat, hesitated slightly, 
 and with his same right arm replaced the hat on 
 the peg. He could not resist doing it. Some in 
 visible force compelled him after he had inad 
 vertently made the first blunder. The trial went 
 on, though Jumpus could not put any life into it. 
 From thenceforth he was limp.
 
 NISI PRIUS 205 
 
 At the noon adjournment Judge Beckwith, from 
 an adjoining county, drew up at the hotel. Beck 
 with, a princely looking man of some fifty-odd 
 years, had been a regular and constant practitioner 
 at the Greenwood bar for more than a quarter of a 
 century. His hair was white, as white as the driven 
 snow, his mustache sprinkled with gray, his frame 
 erect, his countenance kind, merry, handsome. He 
 dined with Lowden, who in two words told him of 
 Jumpus' case then on trial. 
 
 Finishing dinner, Judge Beckwith met Jumpus. 
 The latter was in a quandary over his instruc 
 tions. 
 
 " I'm dead sure to get to the jury," he said to 
 Beckwith, which prospect the latter experienced 
 lawyer doubted, in view of some remarks made by 
 Lowden in professional confidence at dinner. 
 Jumpus asked Beckwith if he would write him some 
 instructions ? 
 
 " You can sit down here," he said, " and dash 
 'em off in a minute." 
 
 Now Beckwith had not been overlooked by the 
 Divine Distributor when the sense of humor was 
 being divided out. And Beckwith was going home 
 on the 3 :2O p. M. train. Why not be guilty of a 
 bit of humor? He decided. He wrote a com 
 plete set of instructions, and finished them just as 
 the court-house bell summoned the joyful Jumpus 
 back to war. He seized the instructions, pocketed 
 them, thanked Beckwith, and hurried on to help 
 Hazel to his chair. 
 
 Jumpus was beginning now to forget the arm
 
 206 NISI PRIUS 
 
 episode. He argued that he still had other and 
 many ailments, if he had lost the arm. He met 
 the mine foreman at the door and passed him 
 haughtily. Then he, again the essence of sympa 
 thy, aided Hazel to his chair, but it was noted he 
 did not duplicate his apology to the jury. He was 
 improved, but still had misgivings. 
 
 And so they fought on through the afternoon. 
 Beck with looked in before he left. They were 
 nearing the end of the evidence, and he walked 
 away, rather more hurriedly than was his custom. 
 Stevens had made his motion for a peremptory in 
 struction. Lowden had overruled it. His lucid 
 and exhaustive opinion in passing on that motion 
 may be summarized into two lines. 
 
 " Stevens," said he to that lawyer, " do you sup 
 pose this court has the heart to throw old Jumpus 
 out on a peremptory, after that arm tragedy? And 
 then I want to hear Jumpus follow you, anyhow," 
 he tantalizingly concluded. 
 
 Stevens finished his evidence quickly. It was 
 short, sharp, telling. He then passed up his in 
 structions to the Court. Jumpus thought of his 
 own batch. He had not read them since Beckwith 
 had prepared them, but he knew Judge Beckwith to 
 be at the forefront of the profession. And then, 
 unlike his colleague Tobias Mathews, he so far 
 recognized his own shortcomings as to force the 
 realization that it was altogether useless for him 
 to read them. 
 
 This is what he handed up, and this is what Judge 
 Lowden sat there that day on the bench and read:
 
 NISI PRIUS 207 
 
 " INSTRUCTIONS 
 
 "I The Court instructs the jury that the de 
 fendant coal company was and is an insurer of the 
 plaintiff's life and person, and that when it em 
 ployed him it agreed and undertook, by implica 
 tion, to see that so long as he remained in its serv 
 ice it would provide him with a perfectly safe and 
 secure place in which to work, and one in which it 
 would be impossible for him to sustain any injury 
 to his leg, or back or arm (or internal injury), 
 whether by his own negligence or by the negligence 
 of any of his fellow-servants; and if the jury shall 
 believe from the argument of the attorney for the 
 plaintiff that the plaintiff received the injuries com 
 plained of while on defendant's premises, and shall 
 further believe from said argument that the defend 
 ant is an octopus, or is in any degree related to an 
 octopus, they must find for the plaintiff such com 
 pensatory damages as the jury may believe from 
 said argument he has sustained, not less than the 
 amount claimed in the petition. 
 
 " II Compensatory damages mean in law the 
 money which the jury has the power to take out 
 of the treasury of an octopus or other corporation 
 and put into the pocket of the plaintiff, and inas 
 much as the attorney for the plaintiff is entitled to 
 one-half of this sum for his services as a witness 
 during his speech, the jury are warned that it 
 might be well to award interest on the verdict from 
 the date of the incorporation of the defendant. 
 
 " III Negligence, when applied to the defend-
 
 208 NISI PRIUS 
 
 ant, means its failure to pay compensatory and 
 punitive damages on demand immediately after the 
 plaintiff is injured, whether by his own or fellow- 
 servant's carelessness; and means, when applied to 
 the plaintiff, his failure to sue for such damages 
 at the first term of court having jurisdiction of the 
 crime. 
 
 " IV Gross negligence means any act of a 
 corporation. 
 
 "V Ordinary care means any act of the plain 
 tiff or of the plaintiff's attorney. 
 
 " VI Contributory negligence means the act of 
 the defendant in submitting its case to this particu 
 lar jury. 
 
 " VII Punitive damages, as used 'in the in 
 structions, means the amount the jury must award 
 the plaintiff for the stiff arm. 
 
 " VIII Nine or more of the jury may find a 
 verdict for the plaintiff, but if less than twelve 
 agree, those agreeing must sign the verdict." 
 
 Judge Lowden saw the trail of Beckwith. He 
 knew at once that the trustful Jump'us had not so 
 much as seen the instructions. He suppressed him 
 self, and quietly put them in his coat. 
 
 While Lowden was revising his instructions at 
 the suggestion of counsel, Hazel sighed and 
 groaned. Once, in a weak voice, he asked for 
 water. 
 
 " Mr. Sheriff," spoke up Jumpus, " give the 
 plaintiff a glass of water." 
 
 And thus the drama, with Jumpus in the center
 
 NISI PRIUS 209 
 
 of the stage, proceeded while waiting the comple 
 tion of the Court's charge. It was almost finished 
 when an unlocked for and disastrous event oc 
 curred. 
 
 Jim Higgins, Master Commissioner, of whom we 
 have heard heretofore, rushed wildly to the door of 
 the court-house, yelling " Fire ! " at the top of h'is 
 voice. People broke and ran, pell mell, toward the 
 scene of the supposed blaze. Hazel, he of stiff 
 limbs and impulsive temperament, was the first to 
 leap to his feet, dash from the building and fairly 
 fly down the street, running like a wild deer, his 
 voice at its height, calling "Fire!" The judge, 
 jury, and lawyers leisurely went to the door and 
 looked out. They had all noted Hazel when the 
 alarm was given ; they saw him disappear down the 
 street as fleet of foot as any lad of Marathon. 
 
 It was a false alarm. 
 
 The jury and judge resumed their seats. The 
 people were all returning. The jury waited. 
 Presently, Hazel hurried in. Midway between the 
 door and his chair a thought apparently struck him. 
 He paused and then limped slightly to his chair. 
 
 Marcellus Jumpus looked at Hazel. 
 
 Afterward, Clerk Tom New said he heard Jumpus 
 mutter between his teeth, " Pity you didn't break 
 your damned neck runnin' down that street." 
 
 Of course the wind was out of Jumpus' sails. 
 In truth, they hung limp and lifeless. Stevens 
 spoke briefly, ten minutes. Jumpus tried to reply. 
 Once he very nearly " got up steam, but his pipes 
 were plugged," said Captain Henry. That was
 
 210 NISI PRIUS 
 
 when he injected into his speech something about 
 a probability of Hazel's mind being weakened by 
 his long and intense pain and suffering. Finally. 
 he resumed his seat. Higgins, the fire alarm ex 
 pert, looked in at the door, but passed on. Very 
 soon the jury returned a verdict for the defendant, 
 and court was adjourned for the day. 
 
 That evening at dusk Judge Cole, coming up 
 Main street, met Jumpus standing on the corner at 
 Barvis' drug store. He wore a countenance of an 
 ger. In his hand he carried a huge stick or club. 
 " Hello, Jumpus ! " greeted Cole ; " what are you 
 doing here? " 
 
 " I'm waitin' for Jim Higgins and his big 
 mouth," responded defeated hope and he was. 
 Had the worthy Master Commissioner ventured 
 thither at that hour the prediction may be safely 
 indulged that some person other than James Hig 
 gins, Esq., would probably have filed a report of 
 assets and liabilities in a suit to settle the estate of 
 a certain demised citizen of Greenwood, Mecklen- 
 berg County, Kentucky. 
 
 But the fates guided Higgins that evening, and 
 he came not.
 
 CHAPTER XXIII 
 
 WHILE Captain Henry and Judge Cole were 
 friends after the manner of a rather loose construc 
 tion of that term, and were daily thrown into pleas 
 ant contact one with the other, yet there was a 
 certain element of jealous envy, poorly concealed, in 
 each for the other. If one would say to Henry 
 that Cole was " a fine lawyer," the former inva 
 riably replied, " Yes, Cole is a fairly good law 
 yer." If you had occasion to animadvert on 
 Henry's talents to Cole, the latter would say, " Yes, 
 he does right well." Once when Captain Henry 
 said something about his authorities, Judge Cole 
 had remarked that no authorities would ever be 
 produced, as " Henry practiced altogether by ear." 
 
 On this Wednesday, the ninth day of the term, 
 the twelfth day of June, these two belligerents 
 were lustily pounding each other in the famous 
 " horse-swappin' "' case of Sledge v. Goad. A 
 mistrial in the quarterly court, verdict for plain 
 tiff for $58 in that tribunal, an appeal to the cir 
 cuit court, two mistrials therein, and this, the third 
 effort, was the expensive and long drawn out his 
 tory of this now famous cause. 
 
 The recovery or non-recovery by the plaintiff 
 was now in itself an insignificant matter. It had 
 degenerated into a death struggle for costs. The 
 last taxation, thanks to the thrift of the irrepressi 
 ble New, showed an accumulated bill of $277.60 
 
 211
 
 212 NISI PRIUS 
 
 to be paid by the unsuccessful party. Each liti 
 gant was amply solvent, hence two titans held the 
 forum, trying, as Jim Hanna said, " to get from 
 under." An imposing array of witnesses had car- 
 avaned to each trial, sworn lustily, claimed their 
 attendance, heard of the hung jury, and bided their 
 time against the next calling of the case. 
 
 Now, in horse cases, wherein is involved the 
 large question of fraud and misrepresentation, the 
 qualities, traits, and defects of the respective ani 
 mals, there is a vast and comprehensive latitude 
 both in veracity and knowledge, particularly the 
 former. Molly, the gray mare, was quite easily 
 proved the best and soundest of animals, free from 
 any defect. Likewise, Beck, the mule, whose char 
 acter and reputation were in the limelight, was 
 handily shown to be the best and most amiable of 
 toilers, with never an inclination to kick, even 
 turning her other cheek when assaulted. These 
 two propositions being indubitably established, it 
 was then quite satisfactorily made clear that both 
 Molly and Beck were victims of all the ills that 
 horse and mule flesh are heir to. Each was moon- 
 eyed, each was thick-winded. Molly would eter 
 nally balk, while Beck would lie down, accoutered. 
 In short and in fine, Sledge had traded Goad a 
 first-class animal, receiving therefor a diseased and 
 worthless one, and Goad had likewise traded 
 Sledge a mo y del mule, only to be handed a blind im 
 becile of a mare in return. These utterly hopeless 
 and irreconcilable facts were proved by two score 
 of witnesses.
 
 NISI PRIUS 213 
 
 Hence the repeated occurrence of that which the 
 public cannot always understand a hung jury. 
 
 We shall not encumber these pages with the 
 many fierce tilts between Judge Cole and Captain 
 Henry, now transformed into " Mr." Cole and 
 " Mr." Henry. Suffice it to say, the case was 
 " practiced by the Code." Nothing was waived or 
 agreed to. Toward the conclusion the fight was 
 fast and furious, and looked favorable for the de 
 fendant. An insignificant incident turned the tide 
 of battle and gave Judge Cole a signal victory. 
 Lest some other advocate in some other age and 
 under some other sun may make the same irre 
 trievable error, the story of what happened is here 
 presented. 
 
 The evidence had been concluded and the argu 
 ment of counsel was about to begin. Under the 
 pleadings, the onus probandi was on the defend 
 ant, which, of course, gave to his counsel that price 
 less and effective weapon the concluding argu 
 ment. 
 
 Lawyers, you have heard advocates claim they 
 preferred the first address to the jury. Heed them 
 not, for they know not what they say. There is 
 this immense difference between the first and last 
 speech. The first advocate must do these three 
 things : 
 
 i . Argue his case. 
 
 2. Anticipate his opponent. 
 
 3. Leave no gaps unclosed. 
 
 Now the concluding attorney has this one broad 
 license :
 
 2i 4 NISI PRIUS 
 
 i. Say what suits him. 
 
 As Judge Yust frequently said, he who would 
 voluntarily elect to make the opening address in 
 stead of the closing one was a fit subject for the 
 court, sua sponte, to appoint a guardian ad litem 
 to represent. 
 
 Judge Cole was afraid of Henry's closing argu 
 ment. Vainly had he fought for the burden of 
 proof beginning his fight after the pleadings had 
 been made up. His idea was that the plaintiff, be 
 ing plaintiff, was entitled always to open the evi 
 dence and close the argument. Sorely was he dis 
 appointed when the Court ruled otherwise. Even 
 tually, it made victory perch upon his banners in 
 a way not dreamed of, all of which was in man 
 ner and form as follows, to-wit : Judge Cole, spon 
 sor for the gray mare, launched forth. He sang 
 paeans to her many virtues and flung out some 
 strange words about Pegasus. He said that Henry 
 and the plaintiff and the mule were similar in their 
 stubbornness and disposition. At this comparison, 
 more or less odious, Captain Henry made an error. 
 He left the court-room, concluding to remain out 
 of hearing until disagreeable personalities were 
 dropped, and with the further design and purpose 
 of sharpening his eloquence with a tool he had 
 used before, to-wit, one very long and tall drink 
 from Jim Hanna's most recent jug. 
 
 Now, he who is to follow ought to hear every 
 word of the first address. He should hear every 
 argument, illustration, interpretation of law and 
 evidence, every figure of speech, and particularly
 
 NISI PRIUS 215 
 
 every anecdote that emanates from him who is to 
 be followed and emasculated. 
 
 Judge Cole told an anecdote in that speech. It 
 was a long and side-splitting affair. It required, 
 in its many details and ramifications, not less than 
 twenty minutes of time. This was the twenty min 
 utes Captain Henry was out. He left the court 
 room just before Cole began his story and re 
 turned thereto just after it was finished. Cole was 
 reminded of the story by the testimony of one of 
 defendant's witnesses. He began somewhat after 
 this fashion: 
 
 " Now, there's Tom Bandy's testimony. Tom's 
 a pretty specimen to be coming in here trying to 
 swear away this plaintiff's rights. And, gentle 
 men, that reminds me of a story I once heard about 
 old man Judson Tyson, who lived out here near 
 Pond Creek," and Cole proceeded, with great elab 
 oration of detail, to relate the story of old man 
 Judson Tyson. It cannot grace these pages for 
 divers reasons, not the least of which is a desire 
 to keep within the limits prescribed by Congress in 
 its statutory regulation of the mails of these United 
 States of America. 
 
 The story was told, immensely enjoyed by jury, 
 onlookers and Court, decorum to the contrary not 
 withstanding. While the tale is not here related, 
 the reader ought to be told that this story was one 
 of those lengthy affairs the whole point, wit, and 
 substance of which hung exclusively upon the 
 denouement. The thing carried the auditor, puz 
 zled and expectant, till suddenly, at the end, the
 
 2i6 NISI PRIUS 
 
 climax elucidated, illuminated, electrified, con 
 vulsed. Cole told it, put it aside, resumed his ar 
 gument, including personalities, and it was then 
 that Captain Henry returned to the court-room. 
 
 After unlimbering, charging, and counter-charg 
 ing, Judge Cole finally ended his speech and sat 
 down. 
 
 Captain Henry, wearing that satisfied air ever 
 and always with him of the last speech, arose and 
 addressed the jury. He had not spoken ten min 
 utes before he made the fearful, fatal, pitiful mis 
 take penalty for absenting himself from the 
 court-house while his worthy opponent spoke. 
 
 He told an anecdote. 
 
 It was Cole's anecdote. 
 
 He said that Sledge, the plaintiff, " was a rare 
 and wonderful swearer. And, gentlemen, the way 
 he testifies in this case reminds me of a story I once 
 heard on old man Judson Tyson, who used to live 
 out here on Pond Creek. It's a little long, but it's 
 worth telling, and I am going to tell it." 
 
 And he told it. 
 
 He omitted nothing, but gave all the fearful de 
 tails. It was awful. At the very outset of the 
 tale the jury, spectators, and Court shook with 
 laughter. The Captain, mistaking this as a tribute 
 to his story-telling ability, inwardly congratulated 
 himself and elaborated the greater, himself smiling 
 at the success he was achieving. On he went. 
 The further he went the more intense became the 
 laughter, although no point had as yet appeared in 
 the telling, a thing that did not dawn upon the
 
 NISI PRIUS 217 
 
 pleased narrator. He thought his comical manner 
 of recitation was winning this plainly visible success, 
 and he flushed with conscious gratification. The 
 ever-increasing merriment only served to spur him 
 on to greater effort. Once when he made a gri 
 mace in imitation of old man Judson Tyson, just as 
 Cole had done, the laughter was side-splitting. 
 One large and fat-faced juryman fairly shook until 
 the tears ran down his cheeks. The Court was in 
 clined under the bench, his only refuge. He 
 thought he would expire then and there. The Cap 
 tain saw and noted Judge Lowden's intense laugh 
 ter, something out of the ordinary with this re 
 served judge. This was accepted as the very high 
 est tribute to the story-teller, and he redoubled his 
 grimaces, antics, brogue. He prolonged the thing, 
 loath to leave a theme that was making such a hit. 
 
 O you jury-lawyers, reading here of Henry's 
 dilemma, may the gods of our temples never send 
 this thing to you! 
 
 After a long agony this ended, as all things else 
 must end. The Captain plunged vociferously into 
 his argument. He soared, he shook his finger, he 
 lauded and condemned alternately. He really 
 made an ingenious and able argument. It availed 
 nothing. His hearers could not listen. They tried 
 honestly tried. It was psychologically impossi 
 ble. The laughter was still there. Very true, it 
 had gone in under the surface, but it was yet there. 
 The jury could still hear the brogue, could still see 
 the second-handed grimaces, and still shook in 
 wardly. Men may go from the sublime to the
 
 218 NISI PRIUS 
 
 ridiculous in a short space of time, but they cannot 
 go from the ridiculous to the sublime suddenly. 
 Before they get away from the ridiculous entirely 
 the sublime has gone. Henry finished his speech. 
 
 The jury retired. To show that they carried 
 into the jury room more of the ridiculous than of 
 the sublime, as their door closed on them the large 
 fat-faced juror promptly exploded. Such things 
 are contagious, especially so when each has already 
 an artery full of the virus. Others exploded, and 
 presently the twelve men giggled and, like children 
 in school, were powerless to stop themselves. 
 
 Downstairs the Captain sat and confidently 
 awaited his verdict. Opposite sat Cole, feasting 
 yet on the meal that was to last him many and 
 many a year. Marcellus Jumpus wrote a brief 
 note. He handed it to the sheriff, who in turn de 
 livered it to the Captain. It read thus : 
 
 " HENRY While you was out gettin' that drink 
 Cole told that Judson Tyson story to the jury. 
 JUMPUS/' 
 
 Lowden was looking at Captain Henry. Never 
 in his life of observation did he so enjoy a counte 
 nance-study. Henry's countenance, at first but 
 usual, gradually underwent a change. You could 
 see the thing slowly dawn upon him. Then you 
 could see his full and complete realization of it all. 
 It was a wonderful study in physiognomic expres 
 sion. 
 
 Presently, footsteps were heard. The jury was
 
 NISI PRIUS 219 
 
 returning. Captain Henry arose, looked hopelessly 
 about him, and without waiting to hear the verdict 
 walked slowly from the court-house. 
 
 Later, he filed a motion for a new trial, his 
 chief ground being the duplication of the Judson 
 Tyson story. And Lowden considered it seriously 
 for a while. 
 
 The end of this episode occurred toward the close 
 of the term. As the Captain entered the court 
 room one morning just before motion hour, Clerk 
 Tom New, unable to resist, said to him: 
 
 " Mornin', Captain ! how's old man Judson Ty 
 son this mornin' ? " 
 
 " Will you," hotly replied the attorney, " do me 
 the kindness to go to hell, and take old man Judson 
 Tyson with you? " 
 
 And the thing was not mentioned at Greenwood 
 for a long while in the Captain's presence.
 
 CHAPTER XXIV 
 
 WEDNESDAY afternoon wore wearily away, while 
 Judge Thompson and Bill Scott fought out and elu 
 cidated many phases of the ancient and honorable 
 writ of forcible entry and detainer. Scott knew in 
 an altogether incompetent manner hearsay 
 that the tenant could not assail his landlord's title. 
 This he voluntarily and inopportunely suggested to 
 the Court more than once. If the fates had ever 
 decreed that Judge Lowden should overlook that 
 principle of law, their plans went awry, as Scott 
 impressed it lastingly. 
 
 Likewise, Judge Thompson displayed elaborate 
 knowledge of the case in hand, and in his opening 
 statement vouchsafed a long, complete, and non-un 
 derstandable explanation of the distinction between 
 a tenant at will and a tenant by sufferance. The 
 statute of frauds and perjuries, with its hoary Eng 
 lish origin, was learnedly dwelt upon. 
 
 This cause proceeded throughout the long after 
 noon, and no single note of interest broke upon the 
 weary Lowden, who at intervals ventured only, 
 " Overruled," " Sustained," " Proceed." But when 
 court was adjourned at five o'clock the case was 
 completed, and Lowden was up with the docket. 
 
 With Wednesday evening came a luminary, a sat 
 ellite. Silas F. Dockery was his name, America 
 was his nation, a certain county his dwelling-place, 
 and damages his salvation (apologies to T. Tit 
 mouse, Esq.). 
 
 220
 
 NISI PRIUS 221 
 
 He was more than six feet tall, his forehead 
 broad, and his head seemed a great dome set upon 
 some pious temple. His eyes were small and cun 
 ning, but they sat too close one to the other. He 
 wore a streaky red beard, which fell only from his 
 chin, and he invariably turned this, end up, and 
 played with it between his teeth. He carried a 
 green bag always. Instead of smiling, he 
 fawned. 
 
 Now, Mr. Dockery came to Greenwood and 
 fetched his witnesses with him, in the main. Very 
 true, they could be procured in Mecklenberg 
 County, the scene of the accident that gave rise 
 to the pending lawsuit, but like the expert mechanic 
 Dockery's personal witnesses gave to his structure 
 of evidence those innumerable little fine touches 
 that the witnesses to the fact either would not or 
 could not supply. He drove up to Hanna's door 
 in state, registered himself and his valiant de 
 ponents, shook hands patronizingly, with both 
 hands, and was very soon actively getting it cir 
 culated that his case was a " big lawsuit." As a 
 matter of actuality, the case was decidedly unim 
 portant and trivial; but Dockery in twelve hours 
 had the town agog and talking of nothing but " the 
 Roads case." 
 
 When court convened the following day Dock 
 ery strode in in all the majesty of his six feet and 
 his massive dome. When he entered, Judge Low- 
 den had the sensation produced when a reptile 
 crawls nigh, and Bill Scott said to the lawyer sit 
 ting near him, " There's old Uriah Heep again."
 
 222 NISI PRIUS 
 
 Now Dockery's case was not set for Thursday. 
 It was not set for Friday. Saturday was the day. 
 He came Wednesday he and his witnesses. 
 Wherefore this early arrival? O, ye of little 
 knowledge, know ye not why? He came to build 
 up a sentiment in the community for his case. 
 His early arrival, all these witnesses, all this prep 
 aration, clearly foretold that a " big case " was im 
 pending. 
 
 Ere many hours men were saying " Dockery 
 doesn't fool away his time with little cases," and 
 " Mr. Dockery turned down all offers of compro 
 mise." This latter observation had been success 
 fully put afloat by Dockery, as we shall see anon. 
 
 Marcellus Jumpus was associated with Dockery 
 in this case, to help select the trial jury for a pit 
 tance, and that contingent. Before motion hour 
 Dockery had a list of the jury panel. He knew to 
 what political party each member thereof belonged 
 and with what church each juror affiliated. He 
 ascertained where they all resided, their records at 
 this and former terms as jurors in damage suits. 
 
 " Well, Mr. Binkley," he lied to that juror, " I 
 am glad to see you looking so well. I recall see 
 ing you on the jury here several years ago." All 
 of which did not displease Juror Binkley, as may be 
 seen by those who know that flesh is weak, and 
 that even a juror is flesh. 
 
 At that motion hour Dockery had a motion. He 
 was sitting among the jurymen in good fellowship, 
 when he arose. He did not say, " Roads v. L. & 
 N. R. R. Co," but only " the Roads case," as if
 
 NISI PRIUS 223 
 
 all the world knew of this great cause. Judge 
 Beckwith, for the defendant, knew all these well- 
 worn tactics. Instead of striking back and expos 
 ing them, he sat and quietly suffered with nausea. 
 Dockery in " the Roads case " took some orders 
 for the personal appearance of four or five doctors. 
 He explained that he had tried to take the deposi 
 tion of a Philadelphia specialist, but had failed. 
 However, he said, " These fine Mecklenberg 
 County doctors will do." 
 
 Now, two of these chanced to be present. As 
 jurors are flesh, even so are physicians and sur 
 geons. They were not displeased with Dockery. 
 
 Judge Beckwith called up Higgins v. L. & N. 
 R. R. Co. another of Dockery's cases. He 
 wanted something definite done about it. 
 
 " Continue it, Judge Beckwith," said Dockery. 
 " That's a small case, Judge. Higgins had his leg 
 broken. I'm satisfied Judge Beckwith and I can 
 adjust it. It's too small a matter to try out." 
 
 If Higgins had a broken leg which by no 
 means follows, he was much more seriously in 
 jured than was Plaintiff Roads. Now the reader 
 might as well know what ailed Roads. He looked 
 the picture of health 'but he wasn't. He had 
 " exostosis of the sacro-iliac," which, in turn, pro 
 duced permanent " neurasthenia," and this in turn 
 had produced " incipient paralysis." The muscles 
 of the rear neck were gradually withering. 
 
 Towards evening, after Public Sentiment had 
 been sufficiently crystallized and all eyes and ears 
 and hearts were centered in " the Roads case,"
 
 224 NISI PRIUS 
 
 Dockery was talking with Jumpus. As the crim 
 inal term has ended in this chronicle, their con 
 versation comes too late to find place in these pages. 
 Dockery saw two jurymen approaching. He care 
 lessly turned his back to them. As they grew 
 nearer and were within easy hearing, he said to 
 Jumpus, with apparent secrecy, 
 
 " The railroad offered me five thousand in the 
 Roads case, but I couldn't think of that in an in 
 jury like this." 
 
 The two triers of the fact heard this " secret," 
 and forthwith gulped it down; nor did they for 
 get it. 
 
 Beckwith would have paid one hundred dollars 
 to get rid of the case, but no negotiations had ever 
 been opened looking to a compromise. From all of 
 which it must appear passing strange that no offer 
 had been made, yet five thousand dollars in glit 
 tering gold had been spurned with scorn. 
 
 Presently Dockery and Jumpus were seen driv 
 ing over the fair little city of Greenwood. Dock 
 ery went to see and to be seen. 
 
 " George Barton he's on the jury this court," 
 said Jumpus, " lives there, in that yellow house," 
 and on they drove, Dockery quiet outwardly. 
 
 It has been said that Roads was fearfully in 
 jured. The next evening Dockery, with pillows, 
 took the injured Roads for a drive. The plaintiff 
 stood the exertion well, until, suddenly, he weak 
 ened, grew limp, and looked as if he would faint 
 away. It was, to be sure, the purest accident that 
 this took place in the very front of Juror Barton's
 
 NISI PRIUS 225 
 
 house the yellow house. Mr. Barton was on his 
 front porch. He saw the vehicle stop. He saw 
 Dockery alight, and realized that something was 
 amiss. Dockery called for help, and Barton hur 
 ried to him. 
 
 "Ah, it's Mr. Barton," said Dockery. "Mr. 
 Roads is suffering intense agony. Kindly help me 
 lift him to the ground." 
 
 And they tenderly removed the plaintiff to the 
 soft greensward. Dockery whispered to Barton: 
 
 " He collapsed suddenly. I had every reason to 
 believe he could stand this little drive; it should 
 have helped him, poor fellow ! " 
 
 A crowd assembled. A certain physician was 
 summoned, and after half an hour of commotion 
 Roads was gently hauled away amid such as these, 
 " Poor fellow ! " " He's in bad shape ! " "A per 
 fect wreck! " 
 
 And Juror Barton returned to his porch think 
 ing of poor Roads. 
 
 Meanwhile Judge Beckwith was trying lawsuits 
 by day and preparing himself therefor by night. 
 
 By Saturday morning the docket was congested 
 and there was little prospect of " the Roads case " 
 being reached. Dockery entered the court-room, 
 bowing and smiling, rubbing his clammy hands to 
 gether in a way that evoked another observation 
 from Bill Scott about Mr. Heep. Tom New 
 looked unusually well pleased with himself this 
 morning. The world at large knew not the reason 
 why, but Judge Lowden did. That observant jurist 
 had overheard Dockery asking New for some blank
 
 226 NISI PRIUS 
 
 subpoenas. Obtaining them, Dockery had pinned 
 this upon the lapel of the clerk's shining black coat: 
 
 " New, I wish we had you over in our county. 
 You know, the greatest help to lawyers is a ca 
 pable clerk." 
 
 Now, if indeed the pen is mightier than the 
 sword, fiction in this one instance was more potent 
 than the truth, for indubitably Dockery had won 
 New, and not through the instrumentality of truth. 
 The thoughtful Dockery had seen to it that both 
 the clerk and the sheriff were fully advised on one 
 point. Roads, his plaintiff, was insolvent. If he 
 lost, away went the plaintiff's costs, particularly the 
 clerk's and sheriff's fees. If he won, the defend 
 ant paid Roads and their costs. 
 
 Dollars and cents do not often corrupt courts 
 nor pollute the fountains of justice, but in Dock- 
 ery's public sentiment factory two more willing 
 hands were enlisted. Henceforth, two officials 
 who breathed the very atmosphere of the temple 
 the element Dockery was trying to surcharge 
 were wondrous kind, and emitted these and similar 
 predictions, " I expect Mr. Dockery will get a big 
 verdict." 
 
 When adjournment time came Saturday " the 
 Roads case " had not yet been called. Lowden 
 " clogged " Judge Cole's " wheels of justice " early 
 that afternoon, and dismissed the jury until Mon 
 day at noon. He went to his home county for the 
 Sunday. Haggard had gone. Judge Yust, Judge 
 Beckwith, and all the visiting attorneys took their 
 departure, with one exception Lawyer Dockery
 
 NISI PRIUS 227 
 
 remained. He had no witnesses to consult. That 
 task had been performed thrice over. Napoleon's 
 Imperial Guard may have been drilled, but Dock- 
 ery's valiant legion surpassed them in service. 
 Dockery had no law to investigate, for he was 
 amply versed in his special branch. He had no 
 rules of the defendant company to study, for he 
 carried in his omnipresent green bag several dog 
 eared books belonging to that corporation, which 
 he knew from cover to cover. 
 
 He remained over Sunday in Greenwood for 
 none of these things. His public sentiment factory 
 did not require his presence. The wheels of that 
 plant were all now rapidly in motion and the prod 
 uct was being turned out in large quantities. The 
 five thousand dollars he had " scorned " did not 
 need his further attention, nor was it necessary to 
 again take Roads driving to faint at a juryman's 
 gate. Lawyer Dockery remained over Sunday to 
 put in motion one more of his favorite schemes 
 the pious scheme. 
 
 Dockery was what is called " a prominent fig 
 ure " in his church. To it he had quite frequently 
 contributed other people's money. A fellow- 
 townsman had told at Greenwood that if the com 
 mittees would publish that Dockery had donated 
 five hundred dollars Dockery would quite cheer 
 fully donate fifty dollars. For, be it known, this 
 astute practitioner distorted the Scriptural admoni 
 tion, and gave ten per cent, of what he was her 
 alded as giving. From all of which it is now fully 
 established that certain artificial persons, created
 
 228 NISI PRIUS 
 
 and organized by and under the laws of the Com 
 monwealth of Kentucky, from year to year opened 
 their bursting coffers to home and foreign missions 
 and other worthy causes all unconsciously. 
 
 So then the Hon. Dockery, on this serene and 
 lovely Sunday morning in June, first wended his 
 way to Sunday school. It was a Methodist church, 
 which boasted of a large and influential congrega 
 tion. His pious presence was soon noted. He 
 contributed his mite or somebody's when the 
 offering was made. By his own method, he suc 
 ceeded in getting himself invited to " make a little 
 talk " to the children. He did so. His voice was 
 soft and kind. Jim Hanna's little daughter, next 
 day, said to her father : 
 
 " Oh, papa, Mr. Dockery is so nice ! I don't 
 like Mr. Beckwith like I do Mr. Dockery. He 
 made us the nicest talk at Sunday school." 
 
 Old Jim said nothing, but thought in brim 
 stone. 
 
 The Methodist Sunday school being over, our 
 pious friend drifted by pure accident to the 
 Baptist church. He saw to it, in some way, that 
 his presence and his prominence were both made 
 known. 
 
 He led in prayer. 
 
 Old Mrs. Barton, the good old saintly mother 
 of Juryman Barton, was heard to say, going home : 
 
 " Isn't Mr. Dockery a good, Christian man ? " 
 
 Sunday afternoon Dockery went for a walk. 
 He bowed to women, smiled at men, laughed with 
 children as much as he could laugh.
 
 NISI PRIUS 229 
 
 Sunday evening, supper over, he wandered aim 
 lessly about and by another mere accident stumbled 
 into the Presbyterian church. He knew well one 
 of the elders. He was at once ushered up to the 
 front. 
 
 The good parson was absent on this occasion. 
 A lay member talked briefly to the congregation, 
 and concluded by saying that Judge Dockery, one 
 of the foremost lawyers of the State, was present. 
 Judge Dockery, he said, was not a Presbyterian, 
 but was, nevertheless, a strong church member, a 
 great power for righteousness in his community. 
 He called on the delighted Dockery for some re 
 marks. 
 
 That worthy acquiesced in the request. He 
 spoke on what he denominated " Civic righteous 
 ness." He said that in his profession he was often 
 thrown with hard men, who did not have the blessed 
 peace that Christianity offered to all. And in this 
 vein he preached, even as he had done since Thurs 
 day morning, the cause of Roads v. the Railroad. 
 
 And when he lay upon his bed that night, know 
 ing that " the Roads case " would be called for 
 trial the following day, he felicitated himself in the 
 congratulatory reflections that thus far he had left 
 no stone unturned. And then he slept perhaps.
 
 CHAPTER XXV 
 
 SILAS DOCKERY, having laid sufficient unction to 
 his soul on Sunday, was on deck early Monday 
 morning. Judge Lowden, defendant's counsel 
 Beckwith, and others of the dramatis personae like 
 wise responded present when the roll of the grind 
 was called. 
 
 Shortly " Roads v. Railroad " came from the 
 bench, and the green bag was ushered to the foot 
 lights. Dockery, who had talked and talked with 
 his witnesses, saying to them, inter alia, that there 
 were " different ways of telling the truth," knew 
 that all of them were present. However, assum 
 ing the contrary, he said: 
 
 " Your Honor, I will call my witnesses. I think 
 they are here, but have not had an opportunity of 
 seeing them all." 
 
 And he called over a very long list, including 
 many men of prominence. Dockery did not intend 
 to introduce half of these witnesses, but it helped 
 things immeasurably to indicate to the jury that 
 so many people of standing were " lined up " for 
 the plaintiff. And so it happened, even as of old, 
 that many were called but few were chosen. 
 
 Finally the worthy Dockery announced ready. 
 Beckwith did likewise, and very shortly " the 
 Roads case " was under trial. 
 
 Responding to the Court's inquiry as to whether 
 counsel desired the exclusion of the witnesses, 
 
 230
 
 NISI PRIUS 231 
 
 Dockery who had thrice the number had by 
 Beckwith, and whose interest, therefore, would be 
 best subserved by allowing them to hear the trial 
 with his pre-eminent fairness said : 
 
 " I am willing for these gentlemen to remain in 
 side. It is more comfortable than standing around 
 on the outside." 
 
 Judge Beckwith, notwithstanding he knew how 
 well Dockery's cohorts had been drilled, preferred 
 to have them testify without the hearing of each 
 other. So the multitude, quite sullenly, vacated 
 the room; A juryman reflected how fair was 
 Dockery and how strict and rigid was Beckwith. 
 
 " That's what I call an audience by duress," re 
 marked Bill Scott to Tom Henderson. 
 
 "What's that, Bill?" asked Henderson. 
 
 " Old Dockery must have an audience. They 
 won't come voluntarily, so he has them summoned 
 as witnesses and forces them to stay." 
 
 The jury being chosen, Roads was brought in. 
 
 The accomplishments being now pulled off were 
 those that Marcellus Jumpus tried to initiate in the 
 case of Hazel v. Blackwood Coal Co., of which we 
 got a glimpse in the earlier pages of this chronicle. 
 It will be recalled that Jumpus did the thing right 
 well, but compared to the present actor he was the 
 basest imitator. Jumpus tried to sympathize with 
 an injured plaintiff and tried to assist him about, 
 whereas Dockery, the past-master, did those things. 
 
 The opening statement was meager. There had 
 been some ice on the car steps, and that was about 
 all his auditors grasped. The allegation was a
 
 232 NISI PRIUS 
 
 general charge of negligence, avoiding specifica 
 tion, a practice recognized and permitted in Ken 
 tucky. It did not confine the plaintiff to any sin 
 gle act of negligence designated in advance of hear 
 ing the testimony, but afforded him the opportu 
 nity, not only of pressing any particular act of 
 negligence known by himself, but of pouncing, vul 
 ture-like, on any additional failure of duty suddenly 
 appearing in the trial. 
 
 The statements being concluded, the testimony 
 began. Printer's ink and wood pulp are too dear 
 to warrant a detailed account of the different ver 
 sions of the many witnesses. To those desiring all 
 the evidence, reference is here made to the tran 
 script of testimony, of record in the clerk's office, 
 as made, transcribed, and certified by S. J. Brown 
 ing, Esq., official stenographic reporter of the 
 Mecklenberg Circuit Court. The x-ray photo 
 graphs of the plaintiff's bones are likewise among 
 the archives. 
 
 To Henderson, Doss, and others among the ob 
 servers these things looked like mere clouds or 
 blots upon a glass negative. To Dockery they 
 plainly showed the " exostosis of the sacro-iliac," 
 which, on being interpreted, means (perhaps) a 
 bony growth or formation on some bone in, about, 
 or near the base of the spine. 
 
 Dockery, ever fair and honest, offered no ob 
 jection to any question put by Beckwith. He knew 
 Beckwith would ask few, if any, incompetent ones. 
 He himself asked the most ridiculously incompetent 
 questions. When Beckwith objected, this is what
 
 NISI PRIUS 233 
 
 he invariably met, before the Court could rule, " I 
 withdraw it, Judge. I don't want anything that is 
 not fair and right." 
 
 And so, all day long, these things were with 
 drawn from the record, not from the jury's 
 minds. At each objection by Beckwith the im 
 pression that he was attempting to conceal some 
 fact by legal technicality gained ground, and at 
 each generous withdrawal by Dockery his eminent 
 fairness impressed itself upon the twelve men try 
 ing the case. 
 
 Toward the end of Dockery's evidence he pro 
 duced a letter purporting to be from an absent wit 
 ness whose name had been called several times 
 throughout the trial. 
 
 " Judge Beckwith, I have a letter here from Mr. 
 Turley, who saw all this thing. I tried to get him 
 here, but he has a sick boy and was afraid to leave 
 him. I told him you would accommodate him by 
 letting his letter be used as his deposition. Turley 
 is a fine, honest fellow can't you agree to read 
 his letter to the jury? " 
 
 Of course Beckwith declined, with thanks. 
 
 " All right," said the ever-smiling Dockery. " It 
 is not sworn to, and you can prevent its reading 
 if you insist. I thought the jury would like to 
 hear Turley's evidence." 
 
 About this time the " neurasthenia " got in its 
 work, and Roads was presenting a model illustra 
 tion of masculine hysteria superinduced by a col 
 lapse of the nervous system. Dockery asked that 
 court suspend for an hour, to allow Roads time to
 
 234 NISI PRIUS 
 
 collect himself. Lowden, already goaded, declined 
 to entertain this suggestion, and presently the plain 
 tiff recovered himself. 
 
 Later in the day Dockery suggested that per 
 haps the jury were weary and would like a recess 
 of thirty minutes, to get a breath of fresh air. 
 Considerate Dockery! 
 
 He finally closed. The motion for a non-suit, 
 or for a " premp," in local parlance, came. It 
 came strong and fast. Beckwith was armed and 
 equipped for this encounter. He pressed his foe 
 on all sides. For every proposition he cited re 
 spectable authority, and plenty. 
 
 Dockery, at first defiant, grew apprehensive. A 
 cold wave traversed his spine. He replied. His 
 reply was disjointed, illogical, scattering. He did 
 not himself see his own scintilla. A less penetrat 
 ing jurist would have sustained Beckwith. He had 
 Dockery beat, but not the Court. 
 
 Lowden's ruling was that the train porter had 
 sworn it was his duty to clean the car steps of the 
 ice; that he had noted the ice on the steps, and had 
 cleaned it; that no more had accumulated after he 
 did so. Roads swore that after all this had trans 
 pired he had fallen on the ice. There was, there 
 fore, some evidence that the ice was there, and that 
 it caused the fall. Quite true, a dozen witnesses 
 called by Dockery on other points stated there was 
 no ice on the steps. But where there is any evi 
 dence, no matter how slight, it is the province of 
 the jury to pass on it. Therefore, the Court must 
 submit this case to the jury, although the Court
 
 NISI PRIUS 235 
 
 might be of the opinion he would set aside any 
 verdict they returned in favor of the plaintiff 
 the scintilla doctrine, a thing as incongruous as it 
 is permanently imbedded in the jurisprudence of 
 Kentucky. 
 
 When Beckwith's first witness, the conductor, 
 took the stand the clerk was out when directed to 
 swear the witness. Dockery knew the conductor 
 would state nothing material, as he had very little 
 knowledge of the case. 
 
 " Don't wait on the clerk," said Dockery. " I 
 will waive the swearing of Captain Dodd. He is 
 truthful whether sworn or not." 
 
 And so, throughout all of Beckwith's testimony, 
 Dockery " played to the galleries," as Scott ex 
 pressed it. The evidence was concluded when the 
 hour for adjournment came. The motion for a 
 non-suit, being renewed, was overruled. The jury 
 were admonished with unusual force, the Court 
 knowing quite well some methods of a certain at 
 torney engaged in the trial. 
 
 Next morning the case was argued. Beckwith, 
 the first, was strong, forceful, clean. Dockery fol 
 lowed. He had not once interrupted his opponent. 
 He who has the last speech needs not to do so. 
 When Beckwith objected to some prejudicial for 
 eign matter in Dockery's speech, the latter would 
 say: 
 
 " I withdraw it all. I never objected to any 
 thing you said, Beckwith. These fellows who de 
 fend these corporations somehow always want to 
 hide something from the jury. But don't you con-
 
 236 NISI PRIUS 
 
 sider what I said, gentlemen, if Mr. Beckwith ob 
 jects. I want to be fair." 
 
 And on he went. An extract will not be out of 
 place. 
 
 " Gentlemen," he said, " last summer I broke 
 down. My health was impaired standing in 
 court-houses, day after day, month after month, 
 year after year, fighting for helpless, crippled peo 
 ple in combat with giants of wealth finally broke 
 down my health. I was weak. I was sick. My 
 doctor said to me, ' Dockery, you had better go off 
 somewhere and rest.' I could hardly get away. 
 Fatherless children and noble little women, widows, 
 had battles to fight. Their condition appealed to 
 me. In my prayers I asked God for strength to 
 help me fight these great and powerful corpora 
 tions, to whom this twenty thousand dollars we are 
 asking for is as a penny to you and me. 
 
 " Finally, I went away to rest. I went up on 
 the Hudson River. I sat on the deck of one of 
 those magnificent boats as we glided up that beau 
 tiful river. I saw palaces, kingly mansions, worth 
 millions, on the shore. One palatial castle struck 
 me in particular. I inquired. A man told me 
 whose it was. He was one of the directors, gen 
 tlemen, in this great railway. I thought of him 
 
 and of poor, crippled, ruined Roads Very 
 
 well, Mr. Beckwith, if you object, I will withdraw 
 it all. Don't consider it, gentlemen. I don't want 
 my friend Beckwith to leave the court-house think 
 ing I have been unfair to him. Beckwith's a splen 
 did lawyer a fine fellow. No bigger heart any-
 
 NISI PRIUS 237 
 
 where than his. I know from little things he has 
 said to me how he pities poor Roads. And I know, 
 if Beck with had his way, he would pay Roads, and 
 this case would not be here. But the fellows 
 higher up, in the counting-room, control that, and 
 Beckwith is here righting a battle against this crip 
 pled man in which he takes no heart. 
 
 " Oh, gentlemen, how they fear and despise a 
 jury! In legislatures and congresses they can 
 lobby and pull wires and manipulate, and before 
 courts they can split hairs and raise technicalities; 
 but get 'em before a jury of plain, honest men, how 
 they tremble! Why, my friend here would have 
 made most any sacrifice to have induced his Honor 
 on the bench to throw this case out of court. They 
 fear you twelve men, who can't be bluffed, nor 
 bought, nor misled. And well they might fear the 
 people. Do you know how many thousands of 
 human lives and limbs are yearly sacrificed to their 
 carelessness, how many orphans and widows 
 
 are Now, Mr. Beckwith, I did not interrupt 
 
 your argument. But consider it all withdrawn, if 
 you object. Tom Roads had rather hobble home, 
 dragging his wrecked body to a bleak and desolate 
 fireside, penniless, than to get a dollar of this com 
 pany's money by anything unfair." 
 
 And thus he proceeded for nearly two hours. 
 His speech was stenographically reported. Many 
 objections were noted and exceptions reserved; and 
 an equal number of withdrawals and admonitions 
 by the Court, telling the jury not to consider the 
 matter objected to.
 
 238 NISI PRIUS 
 
 The objections and exceptions worked more det 
 riment than benefit. The jury treated them thus, 
 " It's a pity Mr. Beckwith can't be as fair with the 
 jury as Mr. Dockery." The Court of Appeals 
 thus disposed of them : 
 
 " Counsel strongly insist on the misconduct of 
 the plaintiff's attorney in addressing the jury, in 
 that certain irrelevant and incompetent statements 
 were injected into the argument, and these state 
 ments all fully appear in the bill of exceptions. 
 We have examined these extracts from the attor 
 ney's argument. They were altogether irrelevant 
 and improper. But in each instance, on objection, 
 they were withdrawn and the jury admonished not 
 to consider them. We cannot indulge the presump 
 tion that the jury did not heed these admonitions. 
 On the contrary, the inference is just the op 
 posite." 
 
 Leaping over intervening details, a long story is 
 made short by quoting the jury's verdict, concurred 
 in by ten members thereof: 
 
 " We the jury find for the plaintiff, and fix the 
 damages at $9,878.00." 
 
 And the " home office " of Beckwith's corpora 
 tion knew of the trial and verdict that day, and 
 wondered how such a thing was possible. They 
 did not know, however, of the five thousand dollars 
 " spurned " offer of compromise; the Methodist and 
 Baptist and Presbyterian churches; the illness at 
 Juror Barton's gate; and other things not in proof, 
 but known by the twelve who sat in " the Roads 
 case."
 
 NISI PRIUS 239 
 
 .' And they were an honest twelve, every man 
 among them. Of official and personal integrity 
 they had an abundance. Their weakness lay only 
 in this being poorly schooled in the fine and 
 subtle art of studying human nature; from which 
 it followed that sham and pretense, wrapped in 
 the cloak of virtue, escaped their detection. Not 
 so with an experienced judge, used to the study of 
 men. If forty Dockerys, wearing forty cloaks, 
 should masquerade in his presence for thirty min 
 utes sham and pretense would be visible, and lo! 
 forty scoundrels. 
 
 And, en passant, let it be said here, you " friend 
 of the great common people," do not go hence and 
 denounce this observation of a well-known truth as 
 an argument against the ancient and priceless sys 
 tem of trial by jury. One may point out defects 
 in a structure, not as an argument in favor of de 
 stroying it, but with the hope that the same may be 
 cured and the structure thereby made more durable 
 and enduring. So, if any of Dockery's kidney 
 misquote this absent chronicler, as Dockerys usu 
 ally do, kindly file an answer traversing his 
 averments, pleading the truth, not for Dockery's 
 benefit, but for those like the twelve in " the Roads 
 case," who, not penetrating, might be humbugged 
 by the cloak he wears.
 
 CHAPTER XXVI 
 
 COLE was insisting, learnedly, the next day that in 
 the case of Rice v. I. C. R. R. Co. the burden of 
 proof was on the plaintiff. He had unlimited 
 faith in a last address before the jury. Lowden 
 was convinced that Cole's contention was correct, 
 while Colonel Stevens, for the company, had not 
 even suggested otherwise. There were two com 
 panion cases against that public service corporation, 
 Rice v. I. C. R. R. Co. and Haggin v. I. C. R. R. 
 Co. Judge Cole was attorney for each, and had 
 with great assurance prepared both actions. They 
 were actions at law to recover seventy-five dollars 
 for the death of Rice's cow and a similar sum for 
 the death of Haggin's cow. The cause of action 
 sued on was that a telegraph operator, in the serv 
 ice of the defendant, had carelessly and negligently 
 thrown a quantity of bluestone from a blockhouse; 
 that it fell on the green and inviting bluegrass; 
 that the grass was eaten by the cows, by which they 
 were poisoned, and from the effects of which poison 
 they had both " swelled up, drank a pond dry, and 
 then died." The two causes were identical, even 
 to the extent of the value of the two cows. 
 
 Rice's case was first on the docket, Haggin's 
 next. Both Rice and Haggin were present. Rice 
 was to testify for Haggin and Haggin was to tes 
 tify for Rice, from which it will be seen that reci 
 procity is not confined alone to political economy. 
 
 240
 
 NISI PRIUS 241 
 
 When Rice's case was called Judge Cole an 
 nounced ready, Lowden's ruling, giving him the 
 conclusion on Stevens, had in Cole's opinion dis 
 posed of the case. The trial began. Bill Scott 
 left the court-house. He said he would return 
 about the time " Old Cole charges the ramparts," 
 which belligerent remark related to the plaintiffs' 
 attorney's speech. 
 
 The proof was clear that the blttestone had been 
 thrown out of the blockhouse. It was established 
 that it was deadly poison. The cows were seen 
 grazing there; they then were seen rushing to a 
 near-by pond, where they, knee deep, drank until 
 their bellies came near bursting. Then they died. 
 
 It was shown that bluestone affected animals just 
 this way. The twofold inquiry of negligence or 
 no negligence and whether the cows were actually 
 killed by the chemical was submitted to the jury. 
 Stevens argued his defense as best he could. He 
 and those in attendance took it for granted the 
 jury would decide both questions against the de 
 fendant. He threw in some suggestions about 
 cows being allowed to stray on other people's prop 
 erty; the probability of them eating bluegrass and 
 the improbability of their eating a bitter, uninvit 
 ing poison. 
 
 Judge Cole followed and pursued him. He at 
 once got his elevation, and retained it. Rice 
 looked at his lawyer in unconcealed admiration. 
 Old man Haggin, a stern, severe man, softened as 
 Cole " laid it on." He reflected to himself, " He'll 
 blister 'em in my case the same way."
 
 242 NISI PRIUS 
 
 When Cole concluded, Stevens congratulated 
 him. 
 
 " Great argument, Cole," said he. " I suppose 
 they will not take long to make me pay you that 
 seventy-five dollars." 
 
 " Plain case, Colonel, plain case," replied the 
 gratified advocate. 
 
 And the jury passed out. 
 
 The Court called attention to the presence of a 
 person of unsound mind who was to be tried, say 
 ing he would defer the calling of Haggin's case 
 for a few minutes, until the lunacy case could be 
 disposed of, and took that matter up at once. 
 
 Old Haggin saw only that his case was not 
 called. He motioned to Cole and asked, 
 
 " When will my case be tried ? " 
 
 He was a man abounding in suspicion, and firmly 
 believed that every lawyer was apt to " go over to 
 the other side " at any minute. Cole assured him 
 that his case would soon be called, and then strolled 
 over near the bench, where Stevens and Lowden 
 were chatting, pending the well-worn formalities 
 of a lunacy inquest. 
 
 " Cole," said Lowden, " you made a capital ar 
 gument in that case, capital argument." 
 
 " I just told him the jury would promptly agree 
 with his theories and his figures," joined in Stevens. 
 
 " What's the use in going through a trial of 
 Haggin's case ? " said the Court. " The two cases 
 are similar in every way." 
 
 " Pay me, Stevens," said Cole. " You know 
 I've got you where the wool is short."
 
 NISI PRIUS 243 
 
 " Yes, but I like to see you earn your money," 
 responded Stevens. 
 
 " Why don't you agree," interposed the docket- 
 clearer, " to let the verdict in the Rice case be taken 
 as the verdict in the Haggin case?" 
 
 " In other words," objected Stevens, " why don't 
 I simply hand over the money to Cole without 
 trial?" 
 
 " Come on, Colonel," insisted Cole, pressing the 
 point, " be game. I never knew you had feathers 
 on your legs before." 
 
 " What's the use," insisted Lowden, " in trying 
 both the cases, when all the facts in one are the 
 facts in the other? " 
 
 " The Colonel in a game of draw poker would 
 lay down fours, if the other fellow pushed in his 
 stack," taunted Cole. 
 
 " Well, I'm giving you the money, but I can't 
 oppose the plaintiff's lawyer and the Court too," 
 said Stevens. " I'll agree to it." 
 
 " Draw the order," joyfully assented Rice's and 
 Haggin' s attorney. 
 
 Thereupon, this order was quickly prepared : 
 " Mecklenberg Circuit Court. 
 
 " Haggin j 
 
 v. ! Order. 
 
 I. C. R. R. Co. ) 
 
 " By consent of the parties to this action, made in 
 open court, it is agreed that the verdict and judg 
 ment in the case of Rice v. I. C. R. R. Co., now 
 under consideration by the jury, shall be taken and 
 entered as the verdict and judgment in this cause."
 
 244 NISI PRIUS 
 
 Both lawyers " OK'd " the order, the Court 
 scrawled " Enter L " on it, and immediately it was 
 delivered to the clerk. And the trio continued to 
 chat, in undertone, while the County Attorney was 
 examining some witnesses touching the inquiry 
 whether the person of unsound mind was an idiot 
 or a lunatic. 
 
 Old man Haggin sat upright and stiff, waiting 
 the calling of his case. 
 
 " Drat the delay of these courts ! " he reflected. 
 " I want to get my money and get away from here." 
 
 He beckoned one of his witnesses and was im 
 pressing certain points upon his understanding. 
 Cole, Stevens, and Lowden still chatted. Mr. Hag- 
 gin thought his lawyer could do something to hurry 
 the trial. 
 
 Anon, footsteps of twenty- four feet were heard. 
 The jury in the Rice case was returning with a 
 verdict. Stevens prepared himself to hear the 
 words he had long since become accustomed to; 
 Judge Cole, having that last speech still in mind, 
 stood modestly by to receive his laurels. 
 
 The verdict read thus: 
 
 " We, the jury, find for the defendant. CASPER 
 HICKS, Foreman." 
 
 "So say you all, gentlemen?" came from the 
 Bench. Affirmative nods, and then : " You may be 
 excused from the further consideration of this 
 case." 
 
 Cole sat down.
 
 NISI PRIUS 245 
 
 Lowden watched him. He stared, dazed, at 
 the blank wall. Presently the Court noted him 
 turn his head slightly and look at old Haggin. 
 Then it seemed to Lowden a shiver passed over 
 Cole's dejected frame. 
 
 " Wright v. Jowling Tie Co.," called Lowden, 
 still further studying Cole's countenance. 
 
 Old man Haggin beckoned to Judge Cole, who 
 pretended not to observe it. He beckoned again, 
 but by this time Cole's back was to him. No look 
 ing around for him; nor would Lot's wife, so cir 
 cumstanced. Judge Cole wanted time to think. 
 He had to have it. 
 
 Presently old Haggin got up and crossed over to 
 Cole. " Cole," he whispered, " when are you goin' 
 to try my case ? " 
 
 " Eh well eh Mr. Haggin," attempted 
 trouble's victim, " it can't be tried now not just 
 now." 
 
 "Why not?" pressed the relentless. 
 
 " Little pleadin' to do, you know ; delays matters 
 some," faltered Cole. 
 
 " What pleadin' ? " his client insisted. 
 
 " Technicality pure technicality. Hard to ex 
 plain," replied Cole. 
 
 "When will it be called?" asked Haggin. "I 
 want my case tried. Rice's losin' don't bother me." 
 Then whispering, " Five of them jury is my best 
 friends. You try my case. I'll attend to the rest 
 of it." 
 
 " Better continue it until I can see further," sug 
 gested the now limp, last-speech advocate.
 
 246 NISI PRIUS 
 
 " Don't want it continued ; never consent to it in 
 the world," said Haggin. " It was Rice's time to 
 continue, not mine, when I've got all them friends 
 on the jury. Call it up when they get done with 
 this sparrin' in Wright's case." 
 
 " Might be disastrous ; you can't tell," ventured 
 the desperate Cole. " Better put it off." 
 
 "What's Colonel Stevens going away for?" de 
 manded old Haggin, as Stevens gathered up his 
 books and file, got his hat and left the court-room. 
 " Don't he know my case is next ? " 
 
 " Yes no. He had to take his books away. 
 You know, books get lost left around here. He 
 knows all about the situation all about it. But 
 you see it's a technical question." 
 
 " Damn all that ! " said the old man, now visibly 
 angering. " I want that cow case tried now." 
 
 If hope springs eternal in the human breast, 
 there are times in the tide of men's affairs when it 
 dies after awhile. 
 
 Cole was on a great sinking ship. The waves 
 had gone over the deck and he had climbed to the 
 tower. They had crept up about him there and 
 he had scaled to the very top of the mast. The 
 ship then had beached, and only his head emerged 
 from the gurgling waters. 
 
 It was then he confessed. He informed the old 
 man that he had agreed with Stevens to permit the 
 verdict in the Rice case to be the verdict in 
 Haggin's case. 
 
 " What ? " screamed Haggin. 
 
 The old man looked at Cole. He motioned him
 
 NISI PRIUS 247 
 
 out of the court-house. As they went away Low- 
 den thought Cole was withering away. 
 
 Ah, if Rice had won! Cole would have been 
 the wisest and best of lawyers. Haggin, success 
 ful plaintiff, would have rejoiced and given praise 
 unto his name. All of which calls to mind a trite 
 and altogether true saying to the effect that noth 
 ing in this wide, wide world succeeds like success. 
 
 About noon that day a certain old man, who had 
 had a fine Jersey heifer killed by the railroad, wan 
 dered into Captain Henry's law office and said to 
 that worthy: 
 
 " I want to hire you to get a new hearin' in my 
 cow case."
 
 CHAPTER XXVII 
 
 " I BELIEVE Lowden will hold that our man has an 
 equitable lien on that property," said Brownlow, 
 as he and Henderson sat in their office that after 
 noon, talking of a certain chancery case. 
 
 " Well," replied Henderson, " you have read that 
 tenth Bush case, and it strikes me it's on all-fours 
 with our case. Does she say in her deposition that 
 he promised to have the deed made to her ? " 
 
 " Not as satisfactorily as I should have pre 
 ferred," rejoined Brownlow; "but when I got to 
 that point I lived days while she was testifying." 
 
 And the lawyers continued this discussion until 
 interrupted by the unannounced entrance of a 
 young man, perhaps six and twenty, who " had a 
 case." 
 
 Thomas Barton, defendant in a divorce proceed 
 ing, desired the advice of counsel. 
 
 " Ellen has sued me for a divorce," he began, 
 " and I ain't objectin' to that, particular. It's this. 
 Her father and mother are at the bottom of her 
 leaving me, and they tell me you can make a man 
 pay for separatin' man and wife. I ain't no law 
 yer, but if there's any way to get at 'em I'd like 
 powerful to do it." 
 
 " You want to sue the girl's father and mother 
 for alienating your wife's affections, is that it?" 
 asked Bro\vnlow. 
 
 248
 
 NISI PRIUS 249 
 
 " I guess that's what you call it," responded the 
 prospective client. 
 
 " Sit down," suggested Henderson, " and let us 
 have all the facts. First, is the old gentleman 
 worth enough property out of which you could col 
 lect your judgment, if you got one?" 
 
 " He's got three good farms," informed Barton, 
 " and plenty of stuff besides." 
 
 "Well," said Brownlow, "let's have all the 
 facts all of them. Those against you more 
 fully than those for you." 
 
 " Well," began the applicant for legal advice, 
 " it's a short story. Ellen and me, we got married 
 three years ago. I bought a place and was trying 
 to pay for it. We had to work hard, and I think 
 this didn't suit the old folks at all. They got down 
 on me, and I am satisfied they persuaded her to do 
 what she done. She first used to go home and 
 stay several days at a time. I could see she was 
 gettin' dissatisfied. Then she went oftener. One 
 day she went away. She cried that day when she 
 left and kissed me good-by. That's the last I 
 know of her until they served them papers on me 
 the divorce business. Of course if she wants 
 a divorce and don't want to live with me it's all 
 right; but the old man and the old woman per 
 suaded her to do all this. She never would have 
 done it if they'd let her alone. Her mother owns 
 half of the property, and they tell me I've got to 
 sue 'em both." 
 
 " Did anybody, as far as you know," inquired 
 Brownlow, " ever hear either the father or the
 
 250 NISI PRIUS 
 
 mother speak to your wife unkindly concerning 
 you?" 
 
 " Not that I know of," answered Barton. 
 
 " Did they ever say anything to her in your 
 presence reflecting on you ? " asked the senior 
 member. 
 
 " No." 
 
 " Do you know any person by whom you can 
 prove any fact showing they induced your wife to 
 leave you ? " 
 
 " No, I do not," answered Barton. 
 
 " Have you any notes or letters written by either 
 the father or mother, on the subject?" examined 
 Henderson. 
 
 " None at all." 
 
 " How do you expect us to bring such a suit 
 with no evidence at all ? " asked Brownlow. 
 
 " Don't know. They told me Tom Henderson 
 was the man to see." 
 
 " Can we sue them both, Brownlow ? " asked 
 Henderson. " I mean can we sue the father and 
 mother jointly for alienation? I doubt it." 
 
 " No doubt about that," rejoined Brownlow. 
 " They are joint tort-feasors. Their joint and 
 combined acts produced this separation. You may 
 sue either or both, and the jury may find against 
 either or both. Been clearly decided. But, thus 
 far, we haven't enough evidence to get to the jury. 
 We can't get a verdict on your suspicion, Barton. 
 You must connect the old folks in some way with 
 the separation." 
 
 " I know they put her up to it," said the hus-
 
 NISI PRIUS 251 
 
 band ; " but, come to think of it, there ain't no 
 proof." 
 
 " Do you want her to come back to you? " asked 
 Henderson. 
 
 " Yes ; but she will never do it," answered Bar 
 ton. 
 
 " Are you sure she will not come back, if you 
 insist?" asked Henderson. 
 
 " Oh, I know she won't," he replied. 
 
 " Did you ever mistreat her, or abuse her, or 
 neglect her?" asked Brownlow. 
 
 " Never did. Never had a cross word." 
 
 " Did you ever go home drinking or 
 
 " Never touched liquor in my life," interrupted 
 Barton. 
 
 " How, then, do you account for her leaving 
 you?" insisted Henderson. 
 
 " She just got tired of me. Before the old 
 folks interfered she was satisfied. They dissatis 
 fied her. I know it." 
 
 " There's the rub," said Brownlow. " A most 
 excellent case, plenty of property to compensate 
 you if you had any proof that they had anything 
 to do with it. What do you say, Tom?" 
 
 " Good case," replied Henderson, " only lacking 
 in one thing, which is everything evidence. You 
 are not going to resist the divorce case, are 
 you?" 
 
 " Well, I haven't got any lawyer in that case, 
 hoping they would let her alone and maybe she'd 
 come back." 
 
 " Well," said Henderson, " that's all we can do
 
 252 NISI PRIUS 
 
 now. Drop in here in an hour from now and we 
 will see what can be done." 
 
 Barton took his departure, and Brownlow re 
 sumed his investigation of the chancery case, in 
 which the partners were engrossed when the dis 
 turbed young husband entered. 
 
 " Nothing to that case, Tom," said Brownlow. 
 " No evidence at all. Better tell Barton so right 
 now." 
 
 " Perhaps you are right," said Henderson, as he 
 walked to and fro the length of the office. 
 
 And so they worked, Brownlow on the case in 
 chancery, Henderson on Barton's case, walking to 
 and fro. 
 
 In less than an hour Barton returned. 
 
 " Barton," said Henderson, " can you give me 
 the names of ten or twelve first-class men out in 
 your neighborhood who know you and your wife, 
 and who would like to see the divorce case dropped 
 and you two reconciled ? " 
 
 " Easy," said Barton, who proceeded to name a 
 dozen neighbors, all of whom were known to be 
 substantial, trustworthy citizens. 
 
 " Now," resumed Henderson, " you sit there at 
 that desk and write these letters exactly as I dictate 
 them." 
 
 Barton, thus guided, wrote these two letters: 
 
 " DEAR ELLEN : 
 
 " I am very unhappy in my present state. I im 
 plore you to come back to me. I never in any way
 
 NISI PRIUS 253 
 
 wronged you. Will you not drop all these divorce 
 proceedings and come home? Answer. 
 
 " Faithfully, 
 " TOM B." 
 
 " DEAR MR. AND MRS. GATES : 
 
 " I am hoping Ellen will drop the divorce case 
 and come back to me. Won't you use your influ 
 ence to that end? I have never in any way mis 
 treated your daughter. 
 
 " Truly, 
 
 "Tnos. BARTON/' 
 
 "What's the use of all this?" said Barton, as 
 he signed the letters. 
 
 " Do as your doctor says," replied Henderson. 
 " Address and mail both of these letters. Have 
 you ever mentioned to any person your determina 
 tion to sue Mr. and Mrs. Gates about this matter? " 
 
 " Only to Henry Hughes. He's the fellow who 
 sent me to you." 
 
 " You see Hughes now, and caution him about 
 absolute secrecy. Don't intimate to any other per 
 son that you have the slightest idea of bringing 
 such an action," 
 
 Barton, in mystery, agreed. 
 
 " Now," continued Henderson, " you go direct 
 to these twelve men, whose names you have given 
 to me, and to each one say this, and this only: 
 ' My wife has left me. She has sued for divorce. 
 I want the trouble dropped, the divorce case aban-
 
 254 NISI PRIUS 
 
 doned, and ourselves happily reconciled. Won't 
 you, as a mutual friend, go over to Mr. Gates' and 
 try to induce her to come back to me? Also talk 
 with her father and mother, asking them to use 
 their influence for a reconciliation.' When you 
 have told them this, urge them to do it at once. 
 When the twelve friends have interviewed your 
 wife, Mr. and Mrs. Gates, go to each man, get his 
 report of their answer, and then come to Green 
 wood and let us have it. Do exactly as we tell 
 you, and do it quickly." 
 
 " But how about my case ? " asked the wonder 
 ing Barton. 
 
 " When you return, we will talk that over. 
 Hurry and do as we suggest." 
 
 Leaping over, temporarily, the last few days of 
 the June term, to which we shall return directly, 
 Barton reported in several days. He was as mys 
 tified as ever. He had mailed the two letters, as 
 directed. He had received no replies. The twelve 
 neighbors had been seen, as directed. They had 
 called on the Gates family; had failed signally in 
 their mission, and reported divers experiences. 
 
 The twelve men made twelve separate reports. 
 Added together the twelve statements contained 
 these facts: 
 
 Called and found Mr. and Mrs. Gates and Ellen. 
 Brought up subject of reconciliation. Ellen said 
 that was what she wanted. Mr. Gates refused to 
 listen to such a suggestion. Mrs. Gates said it 
 had taken Mr. Gates and herself two years to 
 show Ellen what a no-account specimen Barton
 
 NISI PRIUS 255 
 
 was. Mr. Gates said the silly little fool would 
 never have left Barton if he and her mother had 
 not simply taken the bull by the horns. They 
 knew what was best for their daughter. They 
 had finally induced her to leave him, and they 
 would never consent to her going back to him. 
 They had a letter from Barton the other day, and 
 Ellen had one the same day, but, fearing the girl 
 would weaken and do something she would regret, 
 they destroyed her letter and told her of it after 
 ward. They saw two years ago that he was not 
 the man for Ellen, and they made up their minds 
 then to get her away from him. She cried and 
 went on, but she's always been an obedient daugh 
 ter, and finally saw we were right. The lawyer 
 says we may have to wait a year before she can 
 get the divorce, but we will just wait. Grateful 
 for neighbors trying to patch the thing up, but it 
 can't be patched up. The girl would make up with 
 him in a minute, but she married young, and doesn't 
 know her own mind. 
 
 And so the twelve reported, each adding a de 
 tail or two, but in the main their reports were 
 identical. 
 
 When Barton concluded his report he said: 
 
 " Now, about the other matter, what about 
 that?" 
 
 "What other matter?" asked Henderson. 
 
 " My suit against the old folks," said he. 
 
 " You have won it," said Henderson. 
 
 " Won it ! Then have you found any wit 
 nesses ? " inquired obtusity.
 
 256 NISI PRIUS 
 
 " Just twelve, these twelve, and most excel 
 lent ones, too. They know all the details, all, 
 and learned them from the mouths of the defend 
 ants themselves. O Brother Gates and Sister 
 Gates, you have talked too much," and the adroit 
 though legitimate evidence finder laughed merrily. 
 
 The dazed Barton saw it all, and wondered why 
 so simple a thing had not occurred to himself. 
 
 Brownlow, who worshiped at the shrine of Hen 
 derson, glowed with pride. 
 
 " Worthy of Quirk, Gammon, and Snap," he 
 said. 
 
 " I object," replied Henderson. " Nothing was 
 manufactured or created. There will be no false 
 swearing, or even exaggeration. Only the truth 
 will be used. Sometimes it is difficult to dig up 
 the truth. A fact exists, but you can't prove it. 
 Here were myriad facts, strong, potent, controlling 
 facts, lying dormant, concealed, buried. We 
 merely throw off the lid and, behold! a treasure. 
 Don't associate that with making evidence. We 
 made none. It was already made. We only 
 found a means of showing to a jury that which al 
 ready existed. It is never questionable to present 
 the simple truth." 
 
 When the summons was served on old man 
 Gates and his busy wife, and they had become ac 
 quainted with the nature of the suit, the wife, once 
 an industrious matchmaker, now the contrary, said, 
 with considerable bravado : 
 
 " I'd like to see him prove any of that stuff. I 
 would."
 
 NISI PRIUS 257 
 
 " So would I," added her co-defendant. 
 
 Then his countenance lengthened. Something 
 dawned upon him that instant. He saw the 
 twelve neighbors file by, one by one, in his mind's 
 eye. Ah, they were being sworn to testify as wit 
 nesses against him. 
 
 "Damn that young Henderson!" he growled. 
 
 Eventually the case of Barton v. Gates was 
 tried. It originated at the June term, and with its 
 origin alone can these pages deal. Chronicles of 
 other sittings of the Mecklenberg assizes must tell 
 of the ultimate conclusion of this case discov 
 ered, not created, by Barton's lawyer.
 
 CHAPTER XXVIII 
 
 THURSDAY,, the sixteenth day of the term, dawned 
 clear and beautiful. Motions, growing less numer 
 ous, indicated that the June term was on the wane. 
 Tobias Mathews was trying his Russell case. 
 Those attorneys who had causes following the Rus 
 sell case did not vacate the court-room, notwith 
 standing the fact the defendant had quite an array 
 of witnesses in that case and the plaintiff had not 
 yet closed. They had heard Russell himself tes 
 tify, and thought they saw the handwriting on the 
 wall. In short, it was freely thought that when 
 soever Mathews announced through for the plain 
 tiff, then, in a few brief moments, the next case on 
 the docket would be called. 
 
 And here is how their prophecies were verified. 
 Mathews had sued the Diamond Coal Co. for and 
 on behalf of one J. Russell for damages for per 
 sonal injury. In some way, to this deponent alto 
 gether unknown, Mathews had run the gamut of 
 demurrers, and had stated a valid cause of action. 
 Russell alleged that he had been a driver in the 
 mine operated by the defendant; that while in the 
 line of his duty he was driving a mule along the 
 track, pulling a car of coal; that he was on a de 
 scending grade; that the mule was trotting when 
 suddenly the mule stumbled in a large hole in the 
 track and fell, throwing the plaintiff violently to 
 
 258
 
 NISI PRIUS 259 
 
 the ribs of the mine, seriously injuring- him, etc., 
 etc. ; that the plaintiff did not know of the afore 
 said hole, was a new and inexperienced serv 
 ant, etc. 
 
 Russell got through swimmingly on the direct 
 examination. He elaborated his injuries, touch 
 ing lightly the facts of the manner of the accident. 
 Mathews had rather proudly turned his client over 
 for cross-examination. Knox, for the defendant, 
 with a sinister and subtle smile, began gently. 
 And 'here is why some other cases on that day's 
 docket were called earlier than they might have 
 been. 
 
 "You say there was a deep hole between the 
 rails of the track?" asked Knox. 
 
 " Yes, there was," answered Russell, with his 
 eyes fixed on Mathews. 
 
 " And that hole caused the mule to fall and thus 
 injured you? " 
 
 " That's what I said." 
 
 " Now, Mr. Russell, isn't it true there was no 
 hole there at all ? " 
 
 " No, it ain't true. Biggest kind of a hole 
 there." 
 
 "You are quite sure?" 
 
 " Of course I'm sure. I saw it there every day 
 for two months. Used to eat my dinner there 
 every day." 
 
 " Isn't it true you never saw it there until the 
 day of the accident? " 
 
 " Saw it every day, I tell you. Eat dinner there 
 by it forty times."
 
 2<5o NISI PRIUS 
 
 " And did you really know it was there every 
 day for months before the accident? " 
 
 " I sure did ; you couldn't help but see it." 
 
 " Now," pursued the relentless Knox, " you 
 know you never saw it before, and you know it 
 was not there before. If so, why didn't your mule 
 fall in it before this day?" 
 
 " I say it was there. I always slowed down 
 when I got to it. You can't make me say that 
 hole wasn't there, for I know it was there." 
 
 Now, discriminating reader, if the truth must 
 be told, know that Russell had not seen the said 
 hole at all; never ate dinner near it, never avoided 
 it, and never knew of it until the day of this acci 
 dent. This was, as you have divined, the very 
 cause of action sued on, the actual existence of the 
 hole, unknown to the plaintiff. Knox, however, 
 so framed his questions that Russell conceived the 
 idea he would " ruin his case " unless he took the 
 opposite view of the defendant's counsel. Had 
 Knox asked: 
 
 " You say you knew nothing of the hole until 
 you were injured?" his response would have been 
 that he had not known of it. But the adroit cross- 
 examiner saw fit to apparently antagonize the wit 
 ness by saying: 
 
 " Isn't it true there was no hole there at all, and 
 you never had seen such a thing?" 
 
 The witness, indulging the thought that it would 
 never do to make any admissions to opposing coun 
 sel, to save himself promptly lied, thereby ruining 
 himself. Strange anomaly! With truth from his
 
 NISI PRIUS 261 
 
 own lips victory was his; whereas, he lost by his 
 own lie. Litigants unhappily not infrequently 
 win by false testimony; but the cause is rare where 
 they, having won, in an instant lose by false testi 
 mony. 
 
 Mathews closed. Then, through a haze, he was 
 looking at Judge Lowden and was hearing some 
 vague expressions about " assumed risk," " con 
 tributory negligence," " knowledge of danger," etc., 
 and the next thing Mathews knew he was out un 
 der the trees, explaining to Russell the meaning of 
 a non-suit, impossible task, and occasionally al 
 luding to " damn fools who sometimes cut their 
 own throats." 
 
 A motion for a new trial came in due course. 
 It contained one of the most remarkable affidavits 
 ever executed. It was the dernier ressort or, as 
 put by Bill Scott, the "last dying kick." 
 
 The plaintiff made solemn affidavit that actually 
 he never knew of the existence of the hole in the 
 track until he was injured; that he so swore on 
 direct examination, but that Mr. Knox so framed 
 his questions as to make affiant believe he would 
 have no case unless he testified that he knew of the 
 hole all the time; that Knox made him swear in 
 accurately and incorrectly, " for the wicked pur 
 pose of trapping affiant." And Mathews, as coun 
 sel for the plaintiff, attached a statement to the 
 affidavit, in which he most gravely concurred. 
 
 Now, if there be one cross-examination that 
 meets with success, there are ninety-and-nine which 
 produce disaster. Once upon a time an old veteran
 
 262 NISI PRIUS 
 
 of that bar looked about him and, observing the 
 wreck and ruin and slaughter on all sides follow 
 ing a cross-examination, animadverted on the fol 
 lies of that subtle and dangerous art. He declared 
 he had the best approved definition of cross-exam 
 ination. It was this : Cross-examination A 
 thing to be avoided. 
 
 Our old friend Captain Henry always and per 
 sistently cross-examined. As Lowden often ob 
 served, he asked questions merely because, under 
 the law, he had the right to do so. It was not that 
 he had any particular object in view, or was cen 
 tered on any especial fact in the case ; it was purely 
 because the rules of practice permitted cross-exam 
 ination. No witness should testify against him 
 and escape his flashing eye. The fact that the wit 
 ness cut the ground from under the Captain's feet 
 at each answer made no outward or visible impres 
 sion on him. The lawsuit was forgotten. All 
 things were merged or submerged in the cross-ex 
 amination. 
 
 In the case under trial, the exact date of a given 
 event was all-important. Judge Thompson, for 
 the plaintiff, was making every effort to show the 
 occurrence took place on July 12, 18 . Captain 
 Henry took issue on this allegation, and was bend 
 ing all his art and resourcefulness to demonstrate 
 the event did not transpire on that day. Old man 
 Dotson was testifying for the plaintiff. Answer 
 ing Judge Thompson, he said the thing happened 
 on July 12. The Judge had not conferred fully 
 with the witness, and was amply satisfied with this
 
 NISI PRIUS 263 
 
 unsupported answer. He accordingly turned the 
 witness over for cross-examination. 
 
 By Captain Henry. 
 
 " You say this thing happened on July 12. And 
 you recall it after all these years?" 
 
 " That's what I said," replied the old man. 
 
 Henry, not satisfied to drop the matter then and 
 there, contenting himself with later arguing to the 
 jury the improbability of so accurate a memory, 
 proceeded further out on the cracking ice. 
 
 " How can you remember a thing so long, with 
 nothing special to attract your attention to it at 
 the time, I'd just like to know?" 
 
 " Well," said the old man, " my wife died the 
 day this thing happened, and I guess a man ain't 
 very apt to forget that." 
 
 Henry, having fixed by a contemporaneous event 
 the exact date his adversary was attempting to es 
 tablish, continued to exercise his legal right of 
 cross-examination. 
 
 " And you think, no matter how many years 
 have passed, a man can't be mistaken about the 
 date of his wife's death?" 
 
 " I know I ain't mistaken," answered the old 
 man. 
 
 There were two men on the jury who had bur 
 ied their wives more than twenty years before. 
 They recalled the hour and minute of their deaths, 
 to say nothing of the day and date. 
 
 Judge Thompson began to impeach the defend 
 ant. He had a half dozen respectable witnesses 
 who knew certain " shady " things of the defend-
 
 264 NISI PRIUS 
 
 ant's doing. Of course, he could not prove any 
 specific events or acts or conduct on the part of 
 the defendant, Barrow. Under the rules of evi 
 dence, he was confined to showing the defendant's 
 general reputation for truth and veracity. The 
 fact that he had swindled a neighbor, plundered a 
 friend, or what not, could not be established by 
 proof at the instance of the plaintiff. Henry com 
 bated and defeated all efforts by Thompson to 
 show any of these specific instances, and then pro 
 ceeded, by his cross-examination, to lug them all, 
 bare and visible, before the jury. 
 
 " Do you know," asked Thompson, " George 
 Barrow's general reputation for truth and veracity 
 in the community where he resides ? " 
 
 " I do," the witness answered. 
 
 "Is it good or bad?" 
 
 " Bad." 
 
 " Take the witness, Captain," Judge Thompson 
 would say, and the Captain invariably took him 
 cum onere. 
 
 " What do you know about Mr. Barrow's repu 
 tation ? " he began. 
 
 " I know it's bad." 
 
 " What did you ever hear against him ; just tell 
 something," he persisted. 
 
 "Well," drawled the witness, "he burnt Mr. 
 Hedges' barn. Everybody knows that." 
 
 " Did you see him burn it ? " snapped the cross- 
 examiner. 
 
 " No not me ; but he done it so everybody 
 says." 
 
 Another witness was called. He knew defend-
 
 NISI PRIUS 265 
 
 ant's general reputation for truth and veracity. It 
 was bad. His opinion was made up from common 
 talk, rumor, what men said of the defendant. 
 
 " Who did you ever hear discuss Mr. Barrow's 
 character or reputation ? " inquired Henry. 
 
 " Lots of people," he answered. 
 
 "Name some; just one, if you can," insisted 
 Henry. 
 
 " Old Mrs. Prior told me she had known Bar 
 row all his life, and that he had always handled 
 the truth powerful keerless. Mr. Burns said Bar 
 row would swear a dozen lies for a dollar bill. I 
 have heard myself he signed a lie-bill onct. I 
 could tell you more, but I'm not interested in this 
 case. It ain't my business." 
 
 And so the entire half dozen buried their har 
 poons deep into the unseeing Henry. 
 
 Bill Scott said Judge Thompson had given 
 Henry plenty of rope and " he had hung himself " ; 
 Tobias Mathews said " old Thompson ought to 
 divide his fee with Henry." 
 
 Judge Cole observed that the plaintiff ought 
 never to have employed any lawyer at all. " He 
 simply ought to have called his witnesses, and let 
 the Captain cross-examine himself through a 
 slaughter-house into an open grave." 
 
 Marcellus Jumpus ventured that " you may get 
 me on one of them peremptories, but I ain't out 
 cuttin' my throat from year to year." 
 
 Some of these comments reached the ear of the 
 Captain. They were as water on the duck's back. 
 The very next case he tried he cross-examined the 
 enemy's witnesses, as he said " from hell to break-
 
 266 NISI PRIUS 
 
 fast." He continued to do so, and, if he is yet 
 among the living, the assertion may be confidently 
 vouchsafed he is doing so even to this day. 
 
 The jury completed their task that day, Thurs 
 day, at noon, and were finally discharged, with the 
 thanks of the Court. They were told that the 
 trustee of the jury fund did not have the necessary 
 money with which to pay them, but would have it 
 shortly. And Tom New furnished certificates of 
 their time, which mostly were discounted to the 
 village claim shaver. They had one in Greenwood, 
 as in every other nook and corner of this old 
 world, and have had since and before the 
 days of the money-changers in the temple. 
 
 Friday afternoon was spent in hearing equity 
 cases in open court. Records were read, argu 
 ments heard, some causes decided from the bench, 
 others submitted, with " judgment see it," to be 
 taken home by Judge Lowden for consideration. 
 
 Saturday came, the eighteenth and last day of 
 the term. Those prisoners then in custody who 
 had been indicted at this term were brought into 
 court. They were asked if they desired trials at 
 this term, and all responded in the negative, ex 
 cepting one hapless youth charged with house- 
 breaking. He requested an immediate trial. He 
 had no counsel. The Court appointed Mathews to 
 defend him, and a jury of bystanders heard his 
 plea of guilty. Mathews pleaded for a light pen 
 alty. He referred to the defendant's youth and 
 surroundings, concluding by saying: 
 
 " Gentlemen, this poor boy is in a bad fix."
 
 NISI PRIUS 267 
 
 Old Judge Thompson, sitting near by, looking at 
 the boy's attorney, said absent-mindedly, though 
 quite audibly: 
 
 " That's a fact." 
 
 The court was very nearly broken up. Lowden 
 could not preserve countenance with which to com 
 mand order. While everybody laughed, Mathews 
 grinned, not the least daunted. 
 
 The Court charged the jury. Under the defend 
 ant's plea of guilty they had no province save to 
 fix the penalty. They retired and took with them 
 the Court's instructions and Judge Thompson's 
 animadversion. 
 
 So potent are small things in directing larger 
 things, the jury never agreed. There was a mis 
 trial on this plea of guilty. Some of the jury said 
 afterward that Judge Thompson's remark made it 
 impossible for them to convict that boy, who was 
 in such " a bad fix." Mathews, as is the wont and 
 habit of the human race, saw not the wherefore of 
 his client's escape, but felicitated himself on his 
 skill in effecting so successful a result. He said 
 to Henderson: 
 
 " It strikes me you are going some when you 
 hang a jury where there is a plea of guilty, eh, 
 Tom?" 
 
 To which Henderson replied, naively: 
 
 '* Yes, Tobe, right you are. The boy was in ' a 
 bad fix.' " 
 
 After which Tom New's sneeze was wafted up 
 through the swaying trees outside.
 
 CHAPTER XXIX 
 
 THAT afternoon, as the sun's rays slanted through 
 the western windows of the old court-house and 
 the tall oaks above murmured one to another, the 
 dockets were closed with a great bang, and Judge 
 Lowden ordered that court be adjourned " until 
 court in course." The June term of the Mecklen- 
 berg Circuit Court was history. 
 
 Old Uncle Toby carried forth the sawdust 
 boxes, swept the building, threw the water from 
 the cooler, closed the windows and doors, and 
 spent long summer days " fishin' " against the com 
 ing of the next milestone in his career the 
 October term. 
 
 The echoes of voices died away. Appeals, elo 
 quence, wit, humor, satire, sarcasm, logic, wisdom, 
 from Henderson, Thompson, Stevens, Haggard, 
 Beckwith, Yust, Brownlow, Cole, Knox, Mathews, 
 Henry, Scott, and others were " gone from earth 
 forever," and the mute, silent old edifice stood be 
 neath the protecting branches of its parent oaks 
 in dignity and repose. 
 
 Ah, old court-houses of the Commonwealth! 
 what a world of memories, what a wealth of his 
 tory, what myriad of thrilling events, thy very old 
 portals conjure up! Man and progress and wealth 
 have swept them all nearly all away. Their 
 ancient walls have been razed and new and splen 
 did temples reared upon their ruins, temples com- 
 
 268
 
 NISI PRIUS 269 
 
 mensurate with the march of men toward perfec 
 tion and commensurate with the power and splen 
 dor of a great Commonwealth. It was the inev 
 itable. Yet, to those who love the annals of Ken 
 tucky, to those who revere her history, at least a 
 tinge of regret is unavoidable when the four- walled 
 court-houses where Clay thundered and Breckin- 
 ridge' sung are dismantled ! 
 
 Two hours after Judge Lowden had reached his 
 hotel he was formally notified that, as a token of 
 esteem and friendship, he was to be the guest of 
 the Mecklenberg County Bar that evening at a ban 
 quet arranged exclusively in his honor. 
 
 " The boys," said Judge Cole, " concluded you 
 had been coming over here for years; and, except 
 ing that cane, they had never done anything show 
 ing their appreciation. So be here at Jim Hanna's 
 dining-room at nine o'clock. We promise not to 
 run into Sunday." 
 
 At supper that evening Captain Henry was one 
 of Hanna's guests. The Captain, freshly shaven, 
 spick and span, took several meals at Hanna's ho 
 tel during each term of court. Such a thing never 
 entered his head during vacation. 
 
 On this occasion he, Lowden, and the other 
 diners had about concluded their meal when the 
 worthy Captain did a thing that to this day, in 
 Greenwood, is recalled to the chagrin and discom 
 fiture of James Hanna, as far as such things are 
 possible with that impervious individual. A large 
 ham, pronounced by Henry as " strong as Holy 
 Writ," rested undisturbed and undisturbing at the
 
 270 NISI PRIUS 
 
 head of the table. The Captain had noticed this 
 ham at the head of the table in the early days of 
 the term. Again in the middle of the term he had 
 supped with Hanna, seeing again the same ham, 
 and now on this closing day of the June session 
 here was this same venerable and patient ham. As 
 the distinguished guest started to leave the dining- 
 room, and was in the act of passing the head of 
 the table, he seized a large meat fork and, burying 
 it deep into the insensible hog, lifted it in the air, 
 and looking squarely at it, delivered himself thus: 
 
 " Hold up your right hand, please. Do you ac 
 knowledge yourself indebted to the Commonwealth 
 of Kentucky in the sum of one hundred dollars, 
 to be void, however, on your appearance here on 
 the first day of the next October term of the Meck- 
 lenberg Circuit Court and not departing without 
 leave of court? " 
 
 Having suffered the ham to go " on his own re 
 cognizance," the attorney passed out into the hotel 
 lobby. 
 
 At nine o'clock that night the Bar of Mecklen- 
 berg County every man Jack of them filed 
 into Hanna's banquet hall. Wars, controversies, 
 bickerings, quarrels, fights, contests, in short, law 
 suits, were forgotten. And here was a company 
 of genial, jovial, friendly comrades come to revel 
 in the society of each other come from the scene 
 of battle to the banquet board of peace and friend 
 ship. 
 
 Ah, you physicians and surgeons who carve on 
 each other more than on your hapless patients,
 
 NISI PRIUS 271 
 
 and never leave off, go and take some sort of 
 physic that will cure you of an old, infectious, con 
 tagious disease known as Envy, to the end that 
 where two or three of you are gathered together 
 there may be good fellowship in lieu of daggers. 
 Strange anomaly! The relation of lawyers pro 
 fessionally one to another is all combative; yet 
 they love one another, and have since time began. 
 Doctors, never in combat professionally, consist 
 ently and heartily despise one another; that is, those 
 within the range of competition. 
 
 The hosts assembled. Jim Hanna had thrown 
 the small tables together, creating one long banquet 
 /board, which terminated at right angles with a 
 shorter section of tables, thus making a cross. At 
 the short section sat the guest of honor, Henderson 
 the toastmaster, and those who were to respond 
 after dinner. 
 
 The toasts were to be a resume of the term just 
 expired. The menu was wholesome, abundant, 
 and provincial. Of wine there was none, although 
 a certain friendly jug reposed in No. 18, where 
 Uncle Toby handed to those who dropped in water, 
 sugar, et cetera, particularly et cetera. Not at this 
 juncture accepting Hanna's challenge for an argu 
 ment on the proposition, this narrative would not 
 be complete without quoting his expressed views on 
 that subject, to- wit, the jug. 
 
 " How the devil can there be a feast of reason 
 and flow of souls on ice water? " 
 
 Thus he presented the argument, heard the same 
 and rendered his decision and provided the jug.
 
 272 NISI PRIUS 
 
 Touching the soundness of his philosophy we shall 
 have naught to do, as these unpretentious pages 
 are but the purveyors of facts, not expounders of 
 proper rules of conduct. Nor shall there be speci 
 fication of those who entered No. 18 and those who 
 did not. Some one of our guests, in the far-off 
 future, in an unguarded moment, may aspire to 
 public office, and in these halcyon days of your 
 dictating my system of morals and code of ethics 
 the published information would militate against 
 our friends' aspirations. There be quite a large 
 and highly respected element of our citizenship 
 who would have none of your candidate if he 
 visited Room No. 18. Therefore, those who are 
 riding the wave shall have no chance to sit astride 
 the crest of any breaker passing over the prostrate 
 form of any of this goodly company. 
 
 So, friends of the Mecklenberg Bar, if any of 
 you have a desire to respond to the beckoning 
 Hanna on this festive night, have no fears of the 
 holier-than-thou dictators. They shall not bring 
 this record against you. Of course, if Captain 
 Henry and Judge Cole should chance to stand for 
 the same office at the same time, each would know 
 the other's record; each knowing, others would not 
 know. In other words in pari delicto, etc. 
 
 But this is obiter dicta. 
 
 The guests reveled. Hanna related, privately, 
 an anecdote at his end of the table, and the roar of 
 laughter shook the very rafters overhead. At the 
 other end Bill Scott made an observation that pro 
 duced a rival storm, while near the center Jumpus
 
 NISI PRIUS 273 
 
 vouchsafed that he was unable to reach a verdict 
 concerning the quality of a certain decoction in 
 Room No. 1 8 without more evidence. The merri 
 ment was fast and furious. Everything was com 
 petent, relevant, material, and in the record of that 
 proceeding there was noted no objection or excep 
 tion. As Cole expressly remarked, everybody had 
 " cart blank." 
 
 When in the discretion of the toastmaster and 
 this is a sound discretion the time was ripe for 
 the speeches, he arose from his seat. Now, there 
 is an art in knowing when. Many great lawyers 
 know when to cease sneaking; many great captains 
 know when to charge the enemy; many great sing 
 ers know when to cease singing; but few, very few 
 toastmasters know when to rise. On this occasion 
 Henderson suddenly divined the psychological mo 
 ment. When he arose he was greeted with a storm 
 of applause and this before he had uttered a 
 word. Now, he had done nothing to provoke ap 
 plause. It was merely the psychological moment. 
 He stood smiling, waiting the end of the greeting. 
 Silence, anticipatory silence, pervaded the room. 
 Bill Scott, down low in his chair poor Bill, he'll 
 never run for office anyhow said thickly, but 
 audibly : 
 
 " See the skonquering hero come." 
 
 Henderson was driven to cover. Quiet being 
 finally restored, he again arose and was again 
 greeted with liberal applause. He made a speech. 
 He explained the object of " the evening festivi 
 ties " and paid a glowing tribute to Judge Lowden.
 
 274 NISI PRIUS 
 
 At the height of one of his most flowing flights 
 Brownlow's deep voice crushed things when he 
 said "Slush!" 
 
 However, Henderson got through somehow. 
 He read the list of orators for the occasion, with 
 their respective subjects. This feature of the ban 
 quet was unique. No man was to know his sub 
 ject until assigned to him by the toastmaster when 
 called upon. Unique, but altogether appropriate, 
 for the memory of man runneth not to the time 
 when post-prandial orators ever spoke on the sub 
 jects assigned to them. As these speeches were to 
 review and perpetuate the history of the June term, 
 the selection of topics was confined to such sub 
 jects as would effectuate that result. It was this 
 that Tom Henderson read: 
 
 SUBJECTS SPEAKERS 
 
 The Russell case . . . Mr. Jumpus 
 Old Man Judson \ 
 
 Tyson who lived [ Captain Henry 
 
 on Pond Creek > 
 
 Two cows Judge Cole 
 
 Bluestone .... Colonel Stevens 
 In a Bad Fix . . . . T. Mathews 
 Some Fluids I Have Known . J. Hanna 
 Our Bar Association . Judge Thompson 
 $9,878.00 (Dockery) . Judge Beckwith 
 Knowing How .... Tom New 
 An Ear to the Ground . . Jas. Higgins 
 The Jury (Not Present) . Geo. Brownlow 
 Some Cross-examinations Wm. Scott
 
 NISI PRIUS 275 
 
 To err is human, -\ 
 
 to set aside the [ J ud S e Lowden 
 verdict, divine ) 
 
 The fact that there were to be thirteen speeches 
 made nobody's flesh creep. Scott removed any 
 feeling of anxiety on the part of the superstitious 
 when he said there would be only twelve toasts and 
 one oration ; or, as he put it, " Jim Higgins will 
 deliver an orashun, the smiling valleys of Meck- 
 lenberg County, the blue vault of heaven, the un- 
 derrified Demogrocy of this distrig," and his head 
 inclined to the table, uttering no more of the Hon. 
 Higgins' figures of speech. 
 
 And it was thus this June term of the Mecklen- 
 berg Circuit Court came to be numbered among the 
 things of the past. The speeches were all made. 
 The official stenographer was not present and it 
 would be an injustice to those participating to at 
 tempt to quote from memory. The reader, being 
 familiar with the speakers and their subjects, may 
 form his own conception of them. 
 
 When the last cigars were lighted and the June 
 night was far spent, the goodly company bade fare 
 well one to the other for some, a long, long fare 
 well ; for others, until the October term, which 
 would follow in the golden autumn, when the frost 
 had kissed the hillsides into a thousand colors and 
 green meadows would be brown and sere, and 
 roses and violets withered and lifeless gone to 
 sleep until some other June. 
 
 THE END
 
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