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Preface

The object of this book is to draw the attention of the reader to some of the social evils that beset us ; more particularly in connection with the administration^ of criminal justice. So long a time has intervened since the thought occurred, and so many interruptions have delayed the progress of the work, that it is felt the subject has been very imperfectly treated ; but it is hoped that enough has been done to cause a few to reflect on a matter of vital importance; ,one that to them may possess the interest of novelty.

A strange indifference exists as to the composition of the juries. In our view, the institution itself, so admirable in a monarchy, is totally unsuited to a democracy. The very principle that renders it so safe where there is a great central power to resist, renders it unsafe in- a state of society in which few have sufficient resolution to attempt even to resist popular impulses.

A hundred instances might be given in which the juries of this country are an evil ; one or two of which we will point out. In trials between railroad companies and those who dwell along their lines, prejudice is usually so strong against the former that justice for them is nearly hopeless. In certain parts of the country, the juries are made the instruments of defeating the claim of creditors who dwell at a distance, and are believed to have interests onposed to the particular community where the debtor resides. This is a most crying -evil, and has been the source of many and grievous wrongs. Whenever there is a motive for creating a simulated public opinion, by the united action of several journals, justice is next to hopeless ; such combinations rarely, if ever, occurring in its behalf. In cases that are connected with the workings of political schemes, and not unfrequently in

I those in which political men are parties to the suits, it is often found that the general prejudices or partialities of the out-door factions enter the jury-box. This is a most serious evil too ; for, even when the feeling does not produce a direct and flagrant wrong, it is very apt so far to temper the right as to deprive it of much of its virtue. In a country like this, in which party penetrates to the very bottom of society, the extent of this evil can be known only to those who are brought into close contact with the ordinary workings of the institution..

In a democracy, proper selections in the material, that are necessary to render juries safe, become nearly impossible. Then, the tendency is to the accumulation of power in bodies of men ; and in a state of society like our own, the juries get to be much too independent of the opinion of the court. It is precisely in that condition of things in which the influence and authority of the judge guide the juror, and the investigation and substantial power of the juror react on the proceedings of the court, that the greatest benefits have been found to accrue from this institution. The reverse of this state of things will be very likely to produce the greatest amount of evil.

It is certain that the juries are falling into disrepute throughout the length and breadth of the land. The difficulty is to find a substitute. As they are bodies holding the lives, property and character of every member of the community, more or less, in their power, it is not to be supposed that the masses will surrender this important means of exercising their authority voluntarily, or with good will. Time alone can bring reform through the extent of the abuses.

The writer has not the vanity to suppose that anything contained in this book will produce a very serious impression on the popularity of the jury. Such is not its. design. All that is anticipated is to cause a portion of his readers to reflect on the

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subject ; persons who probably have never yet given it a moment of thought.

There is a tendency, at the present time, to court change for its own sake. This is erroneously termed a love of reform. Something very like a revolution is going on in our midst, while there is much reason to apprehend that few real grievances are abated; the spurious too exclusively occupying the popular mind, to render easy a just distinction between them. When an American prates about aristocracjr, it is pretty safe to set him down as knavish or ignorant. It is purely cant; and the declaimers would be puzzled to point to a single element of the little understood and much decried institution, the country being absolutely without any, unless the enjoyment of the ordinary rights of property can be so considered. But the demagogue must have his war-cry as well as the Indian ; and it is probable he will continue to whoop as long as the country contains minds weak enough to furnish him with dupes.

Coofbrstown, March 12, 1850.

Chapter I

" Mar. —My Lord Aumerle, is Harry Hereford armed t -Aum.— Yea, at all points; and longs to enter in."— Kua Richabd 1L

In one respect, there is a visible improvement in tttfe goodly town of Manhattan, and that is in its architecture. Of its growth, there has never been any question, while many have disputed its pretension to improvement. A vast expansion of mediocrity, though useful and imposing, rarely satisfies eitner the judgment or the taste; those who possess these qualities requiring a nearer approach to what is excellent than can ever be found beneath the term just mentioned.

A town which is built of red bricks, that are faced with white marble, the whole garnished with green blinds, can never have but one outside sign — that of tawdry vulgarity. But this radical defect is slowly disappearing from the streets of Manhattan ; and those who build are getting to understand that architecture, like statuary, will not admit of strong contrasts in colors. Horace Walpole tells us of a certain old Lord Pembroke, who blackened the ejres of the gods and goddesses in the celebrated gallery at Wilton, and prided himself on the achievement, as if he had been another Phidias. There have been thousands of those who have labored in the spirit of this Earl of Pembroke in the streets of all the American towns; but traveling, hints, books and example, are slowly effecting a change; and whole squares may now be seen in which the eye rests with satisfaction on blinds, facings and bricks, all brought to the same pleasing, sober, architectural tint. We regard this as the first step, in advance, that has been made in the right direction, so far as the outward aspect of the town is concerned, and look forward, with hope, to the day when Manhattan shall have banished its rag-fair finery altogether, and the place will become as remarkable for the chaste simplicity of its streets, as they have hitherto been for their marked want of taste. With this great town, mottled as it is, in people as well as in hues, with its native population collected from all parts of this vast republic, and its European representatives amounting to scores of thousands, we shall have much to do in the succeeding pages. Our researches, however, will be bestowed more on things moral than on things physical ; and we shall endeavor to carry the reader with us through scenes that, we regret to say, are far more characteristic than novel.

In one of the cross streets that communicate with Broadway and below Canal, stands a dwelling that is obnoxious to air the charges of bad taste to which there has already been allusion, as well as to certain others that have not yet been named at all. A quarter of a century since, or within the first twenty years of its own existence, the house itself would have been regarded as decidedly patrician, though it is now lost amid the thousands of similar abodes that have arisen since its own construction. There it stands, with its red bricks periodically painted redder; its marble facings, making a livery of red turned up with white; its green blinds, its high stoop, its half-buried and low basement, and all its neatness and comfort, notwithstanding its flagrant architectural sins. Into this building we now propose to enter, at the very early hour of eight in the morning.

The principal floor was divided, as usual, between a dining and a drawing-room, with large communicating doors. This was the stereotyped construction of all Manhattanese dwellings of any pretension, a quarter of a century since ; and that of Mr. Thomas Dunscomb, the owner and occupant of the house in question, had been built in rigid conformity with the fashion of its day. Squire Dunscomb, as this gentleman was termed in all the adjacent country counties, where he* was well known as a reliable and sound legal [adviser; Mr. Thomas Dunscomb, as he

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was styled by various single ladies, who wondered he never married; or Tom Dunscomb, as he was familiarly called by a herd of unyoked youths, all of whom were turned of sixty, was a capital fellow in each of his many characters. As a lawyer he was as near the top of the bar as a man can be who never had any pretensions to be'^tn orator, and whose longest effort seldom exceeded half an hour. Should the plan of placing eloquence in hobbles reach our own bar, his habit of condensing, his trick of getting multum in parvo, may yet bring him to • the very summit ; for he will have an immense advantage over those who, resembling a country buck at a town ball, need the whole field to cut their flourishes in. As a man of the world, he was well-bred, though a little cynical, very agreeable, most especially with the ladies, and quite familiar with all the better habits of the best-toned circles of the place. As a boon companion, Tom Dunscomb was an immense f a vorite,being particularly warm-hearted, and always ready for any extra eating or drinking. In addition to these leading qualities, Dunscomb was known be rich, haying inherited a tolerable estate, as well as having added much to his means, by a large and lucrative practice. If to these circumstances we add that of a \ery prepossessing personal appearance, in which age was' very green, the reader has all that is necessary for an introduction to one of our principal characters.

Though a bachelor, Mr. Dunscomb did not live alone. He had a nephew and a niece in his family, the orphan children of a sister who had now been dead many years. They bore the name of Wilmeter, which in the family parlance was almost always pronounced Wilmington. It was Jack Wilmington, and Sally Wilmington, at school, at home, and with ail their intimates; though Mr. John Wilmeter, and Miss Sarah Wilmeter were often spoken of in their little out-door world, it being rather an affectation of the time to prove, in this manner, that one retains some knowledge of the spelling-bodk. We shall write the name as it is written by the parties themselves, forewarning the reader that if he desires to pronounce it by the same family standard, he must take the unauthorized spelling as a guide. We own ourselves to a strong predilection for old familiar sounds, as well as old familiar faces.

At half-past 8 a.m., of a fine morning, late in May, when the roses were beginning to show their tints amid the vferdure of the leaves in Mr. Dunscomb'syard, the three individuals just mentioned were at the breakfast table of what it is the fashion of New York to term a dining-room. The windows were open, and a soft and fragrant air filled the apartment. We have said that Mr. Dunscomb was affluent, and he chose to enjoj' his means, not a la Manhattan, in idle competition with the nouveaux riches, but in a more quiet and rational way. His father had occupied lots, " running through," as it is termed ; building his house on one street and his stables on the other ; leaving himself a space in the rear of the former that was prodigious for a town so squeezed into parallelograms of twentyfive feet by a hundred. This open space was of the usual breadth, but it actually measured a hundred and fifty feet in length, an area that would have almost justified its being termed a "park," in the nomenclature of the town. This yard Sarah had caused to be well garnished with shrubbery, and, for its dimensions, it was really a sort of oasis in that wilderness of bricks.

The family was not alone that morning. A certain Michael Millington was a guest of Jack's, and seemingly quite at home in the little circle. The business of eating and drinking was pretty well through with, though each of the four cups had its remains of tea or coffee, and Sarah sat stirring hers idty, while her soft eyes were turned with interest on the countenances of the two young men. The last had a sheet of writing paper lyinfc between them, and their heads were close together, as both studied that which was written on it in pencil. As for Mr. Dunscomb, himself, he was fairly surrounded by documents of one sort and another. Two or three of the morning papers, glanced at but not read, lay opened on the floor; on each side of his plate was a brief, or some lease or release ; while a copy of the new and much* talked-of code was in his hand. Aswesay in our American English, Mr. Dunscomb was " emphaticalty " a common-law lawyer; and, as our transatlantic brethren would remark in their sometime cockney dialect, he was not at all " agreeable " to this great innovation on " the perfection of human reason." He muttered occasional^' as he read, and now and then he laid down the book and seemed to muse. All this, however, was quite lost on Sarah, whose soft blue eyes still rested on the interested countenances of the two young men. At length Jack seized the paper, and wrote a line or two hurriedly, with his pencil.

'• There, Mike," he said, in a tone of self-gratulation, " I think that will do ? "

"It has one merit of a good toast,"

answered the friend, a little doubtingly ; " it is sententious."

" As all toasts ought to be. If we are to have this dinner, and the speeches, and all the usual publications afterward, I choose that we should appear with some little credit. Pray, sir," raising his eyes to his uncle, and his voice to correspond, " what do you think of it, now ? "

" Just as I always have, Jack. It will never do at all. Justice would halt miserably under such a system of practice. Some of the forms of pleadings are infernal, if pleadings they can be called at all. I detest even the names they give their proceedings — complaints and answers ! "

"They are certainly not as formidable to the ear," returned Jack, a little saucily, " as rebutters and sur-rebutters. But I was not thinking of the code, sir ; I was asking j'our opinion of my new toast."

" Even a fee could not extract an opinion, unless I heard it read."

" Well, sir, here it is : * The Constitution of the United States ; the palladium of our civil and religious liberties. ' Now I do not think I can much better that, Uncle Tom."

" I am very sorry to hear you say so, Jack."

"Why so, sir? I'm sure it is good American sentiment; and what is more, it has a flavor of the old English principles that you so much admire, about it, too. Why do you dislike it, sir ? "

"For several reasons — it would be commonplace, which a toast should never be, were it true ; but there happens not to be a word of truth in your sentiment, sonorous as it. may sound in your ears."

"Not true 1 Does not the constitution guarantee to the citizen religious liberty ? "

"Not a bit of it."

" You amaze me, sir ! Why, here, just listen to its language, if you please."

Hereupon Jack opened a book, and read the clause on which he relied to con Cute one of the ablest constitutional lawyers and clearest heads in America. Not that Mr. Dunscotnb was what is called an "expounder," great or small; but he never made a mistake on the subject in hand, and had often caused tlie best of the " expounders " to retrace their steps. He was an original thinker, but of the safest and most useful sort ; one who distinguished between the institutions of England and America, while he submitted to the fair application of minor principles that are so common to both. As for his nephew, he knew no more of the great instrument he held in his hand than he had gleaned from ill-digested newspaper remarks, vapid speeches in

Congress, and the erroneous notions that float about the country, coming from " nobody knows whom," and leading literally to nothing. The ignorance that prevails on such subjects is really astounding, when oqe remembers the great number of battles that are annually fought over this much-neglected compact.

" Ay, here is the clause — just please to hear it, sir," continued Jack. " 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances/ There, I think that will go far toward justifying the whole toast, Mike."

This was said a little triumphantly, and not a little confidently.

The only answer Mr. Dunscomb condescended to make was an expressive " Umph !" As for Michael Millington, he was a little timid about expressing an opinion, and that for two reasons ; he had often experienced Mr. Dunscomb's superior wisdom, and he knew that Sarah heard all that passed.

" I wish your uncle would lay aside the code for a minute, Jack, and let us know what he thinks of our authorities," said Michael, in an undertone.

" Come, Uncle Toms" cried the more hardy nephew — " come out of jour reserve, and face the constitution of your country. Even Sarah can see that, for once, we are right, and that my toast is of proof."

"It is a very good proot-sheet, Jack, not only of your own mind, but of half the minds in the country. Ranker nonsense cannot be uttered, however, than to say that the Constitution of the United States is the palladium of anything in which civil or religious liberty is concerned."

" You do not dispute the fidelity of my quotation, sir ? "

" By no means. The clause you read is a very useless exhibition of certain facts that existed just as distinctly before it was framed, as they do to-daj7. Congress had no power to make an established religion, or abridge the freedom of speech, or that of the press, or the right of the people to petition, before that amendment was introduced, and consequently the clause itself is supererogatory. You take nothing by your motion, jack."

" I do not understand you, sir. To me, it seems that I have the best of it."

" Congress has no power but what has been conceded to it directly, or by necessary connection. Now there happens to

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be nothing said about granting any such authority to Congress, and consequently the prohibition is not necessary. But admitting that Congress did really possess the power to establish a religion previously to the adoption of this amendment, the constitution would not prove a palladium to religious liberty, unless it prohibited everybody else from meddliug with the opinions of the citizen. Any State of this Union that pleases may establish a religion, and compel its citizens to support it."

" Why, sir, but our own State constitution has a provision similar to this, to prevent it."

"Very true, but our own State constitution can be altered in this behalf, without asking permission of any one but our own people. I think that even Sarah will understand that the United States is no palladium of religious liberty, if it cannot prevent a State from establishing Mohammedanism, as soon as a few forms can be complied with."

Sarah colored, glanced timidly at Michael Millington, but made no reply. .She did not understand much of what she had just heard, though rather an intelligent girl, but had hoped that Jack and his friend were nearer right than was likely to turn out to be the case. Jack, himself, being a young limb of the law, comprehended what his uncle meant, and had the grace to color, too, at the manner in which he had manifested his ignorance of the great national compact. With a view to relieve himself from his dilemma, he cried, with a ready dexterlt}* —

" Well, since this won't do, I must try the jury. * The trial by jury, the palladium of our liberties.' How do you like that, sir?"

" Worse than the other, boy. God protect the country that has no better shield against wrong than that which a jury can hold before it."

Jack looked at Michael, and Michael looked at Jack; while Sarah looked at both in turn.

" You surely will not deny, sir, that the trial by jury is one of the most precious of the gifts received from our ancestors ?" said the first, a little categorically, Sarah brightening up at this question, as if she fancied that her brother had now got on solid ground.

" Your question cannot be answered in a breath, Jack," returned the uncle. " The trial by jury was undoubtedly a most precious boon bestowed on a people among whom there existed an hereditary ruling power, on the abuses of which it was often a most salutary check."

"Well, sir, is it not the same check here, assuring to the citizens independent justice ? "

"Who compose the ruling power in America, Jack ? "

" The people to be sure, sir."

" And who the jurors ?"

"The people, too, I suppose," answered the nephew, hesitating a little before he replied.

"Well, let us suppose a citizen has a conflict of rights with the public, which is the government, who will compose the tribunal that is to decide the question ? '*

"A jury, to be sure, sir. The trial by jury is guaranteed by the constitution to us all."

" Ay," said Mr. Dunscomb, smiling " much as are our religious and political liberties. But according to your own admission, this is very much like making one of the parties a judge in his own case. A insists that he has a right to certain lands, for instance, which the public claims for itself. In such a case, part of the public compose the tribunal."

" But is it not true, Mr. Dunscomb," put in Millington, " that the popular prejudice is usually against government, iu all cases with private citizens ? "

Sarah's face looked brighter now than ever, for she felt sure that Mike, as her brother familiarly called his friend, had asked a most apposite question.

"Certainly; you are right as to particular sets of cases, but wrong as to others. In a commercial town like this, the feeling is against government in all cases connected with the collection of the revenue, I admit; and you will see that the fact makes against the trial by jury in another form, since a judge ought to be strictly impartial ; above all prejudice whatever."

" But, uncle, a judge and a jurjr are surely very different things," cried Sarah, secretly impelled to come to Michael's rescue, though she scarce knew anything of the merits of the subject.

"Quite right, my dear," the uncle answered, nodding his head kindly, casting a glance at his niece that caused her to blush under the consciousness of being fully understood in her motives, if not in her remark. " Most profoundly right ; a judge and a juror ought to be very different things. What I most complain of is the fact that the jurors are fast becoming judges. Nay, by George, they are getting to be legislators, making the law as well as interpreting it. How often does it happen, nowadays, that the court tells the jury that such is the law, and the jury comes in with a verdict which tells the court that such is not the law ? This

WORKS OF FENIMORE COOPER.

is an every-day occurrence, in the actual state of public opinion."

" But the court will order a new trial, if the verdict is against law and evidence," said Michael, determined that Sarah should be sustained.

"Ay, and another jury will be likely to sustain the old one. No — no — the trial fry Jury ^ no more a palladium of our liberties than the constitution of the United States."

"Who, or what is, then, sir?" demanded Jack.

" God I Yes the Deity, in his Divine Providence ; if any thiug is to save us. It may not be his pleasure to let us perish, for it would seem that some great plan for the advancement of civilization is going on, and it may be a part of it to make us important agents. Ail things regarded, I am much inclined to believe such is the fact. But, did the result depend on us, miserable instruments in the almighty hands as we are, woful would be the end ! "

"You do not look at things ccndeur de rose, Uncle Tom," Sarah smilingly observed.

" Because I am not a young lady of twenty, who is well satisfied with herself and her advantages. There is but one character for which I have a greater contempt than that of a senseless grumbler, who regards all things a tort et h trovers, and who cries, there is nothing good in the world."

"And what is the exception, sir ? "

" The man who is puffed up with conceit and fancies all around him perfection, when so much of it is the reverse; who ever shouts ' Liberty,' in the midst of the direst oppression."

" But direst oppression is certainly no term to be applied to anything in New York ! "

" You think not ? What would you say to a state of society in which the law is available to one class of citizens only, in the way of compulsion, and not at ail, in the way of protection ? "

" I do not understand you, sir ; here, it is our boast that all are protected alike."

"Ay, so far as boasting goes, we are beyond reproach. But what are the facts ? Here is a man that owes money. The law is appealed to, to compel payment. Verdict is rendered, and execution issued. The sheriff enters his house, and sells bis very furniture, to extort the amount of the debt from him."

"That is his misfortune, sir. Such things must happen to all debtors who eannot, or will not, pay." • "If this were true, I should have nothing to say. Imagine this very debtor to be also a creditor ; to have debts due to him of many times the sums that he owes, but which the law will not aid him in collecting. For him the law is all oppression— no protection."

" But surely, Uncle Tom, nothing of the sort exists here ! "

" Surely, Miss Sarah Wil meter, such things do exist here in practice, whatever may be the theory on the subject; what is more, they exist under the influence of facts that arc directly connected with the working of the institutions. My case is not suppositious at all, but real. Several landlords have quite recently felt ali Lhe rigors of the law as debtors, when it was a dead letter to them in their character of creditors. This has actually happened, and that more than once ; and it might happen a hundred times, were the landlords more in debt. In the latter case it would be an everyday occurrence."