Belford's Magazine, Vol. II, No. 3, February 1889

But the earliest lawyers on the street – those who snatch a subsistence from the dregs and scum of humanity thrown up daily by the currents of misfortune and vice, upon the strands of the police courts – saw "the Mad Avenger" already prowling about the vicinity of their offices long before the hour at which the civil and principal criminal courts would be opened for business. When the judicial mills commenced their grinding, he was within sound of their clatter, and from one to another he wandered, anxiously and wearily, as was his custom. When the day's grist was completed, and the grinders hurried away to their respective offices to prepare more grain for the morrow's grinding, he mechanically followed them.

It was getting late in the afternoon; he had not yet seen anybody approximating to the picture he had in his mind's eye – the portrait drawn by Ruth – and he was just arrived at that period of the day when he always felt most sick with disappointment, and most sorely tempted to give up the seemingly useless pursuit and go home. He stopped before the little hand-cart of a street fruit vender, which was drawn up to the curbstone, to buy an apple. While he made the purchase he heard the voice of a man, who halted just behind him, saying quickly:

"Ah! I was just coming up to see you. Are you in Fordyce vs. Baxter?"

"Not having been advised by my clerk," said a precise and deliberate speaker in reply, "that any papers in an action so entitled had been deposited in his hands, and having no other knowledge of such action than your present mention of its title, I believe that I am justified in saying, sir, that to the best of my information and belief – "

"Aha!" shouted Lem, wheeling around and seeing before him the living original of Ruth's very exact sketch – "You're the man I'm looking for!"

"What the – the – the – mischief do you mean, sir," exclaimed the little gentleman, warding off the hand that Lem stretched out to clutch his collar.

"It's the Mad Avenger," said, laughingly, the gentleman interested in Fordyce vs. Baxter. "He will ask you, in a moment, if you know the Van Deusts of Easthampton."

"Of course I will," retorted Lem, growing hot and angry, "I don't know why you call me the Mad Avenger – my name is Lemuel Pawlett, and I do want to know, for very serious reasons, if this gentleman is acquainted with the Van Deusts of Easthampton."

"And I reply that I am," answered Mr. Holden, sufficiently perturbed by the immediate excitement to forget his customary caution and make a positive statement without qualification.

"Oh! The deuce you are! Then there really are Van Deusts of Easthampton!" exclaimed the other lawyer, with genuine surprise and beginning to feel an interest in the affair.

"Thank God! I have found you, sir. Thank God!" ejaculated Lem, fervently, "for I believe you can be the means of saving an innocent man's life."

"Bless my soul!" gasped Mr. Holden – "But, here! This is no place for a consultation. Come up to my office;" and he began elbowing his way through the crowd that had already gathered.

"But are you in Fordyce vs. Baxter?" called after him the gentleman whose lucky inquiry had brought to Lem the good fortune of this meeting.

"No," Mr. Holden answered, still moving off.

"Then remember that you are retained for the plaintiff!"

"See Anderson about it," shouted back the little gentleman, disappearing with Lem in the big doorway of the stairs leading to his office.

It was with profound astonishment and genuine sorrow that the worthy lawyer heard of the murder of Jacob Van Deust, for he had achieved quite a liking for the younger of the two brothers.

"But," said he, "I am tempted to say that it seems to me somewhat strange that I have not been notified of the fact by the surviving brother."

"Old Peter is greatly broken down, sir; more shaken by the loss of his brother than any one would have believed he could be, seeing how hard and selfish he always used to seem."

"Ah!" replied Mr. Holden, meditatively, his eyes resting upon the mourning band of his hat on the table before him. "The rupture of life-long ties gives deep pain. We are such creatures of habit, if nothing more. We miss a face to which we have long been accustomed; a voice that we had thought was only in our ears, when it was in our hearts all the while. When the grave covers that face and there is only silence, or the sadness of its own echoes in the lonely heart, the world is no longer the same – But, there! – Don't talk about it any more. You have not yet told me how I can, as you said in the street, save the life of an innocent man."

"The man arrested for that murder, perpetrated at or about midnight, as is supposed, is the one you found in the road suffering from the consequences of a severe fall, and whom you helped to leave Long Island, in a disabled condition, nearly two hours earlier that night than Mr. Van Deust was killed."

"Ah! If I did not know of what the police are capable, I should be surprised at it."

"You know he is innocent, sir; and I know it, and Ruth, and Mary, his sweetheart; we all know it. But they would hang him if we couldn't prove it."

The reaction from his long sustained anxiety, the present excitement and his joyful emotion over finding the man upon whom he looked as Dorn's saviour, so affected the poor fellow that he cried like a schoolboy.

"Yes," assented Mr. Holden reflectively, "that is practically what the law seems to require sometimes – and it is hardly ever an easy thing to do. But, come, my good fellow! Leave that crying for the girls you mentioned and give me all the facts you possess bearing on the case."

"I – I – can't help it, sir. Don't mind me – I'll be over it directly. I know it's weak, and foolish, – but I've been worked up so, fearing I wouldn't find you in time."

In a few minutes Lem recovered his self-control, and then it took but a very short time for the skilful lawyer to elicit every detail of the progress of Dorn's case. Lem was surprised at seeing him smile when the discovery of the handkerchief, the strongest point against the accused, as it was deemed, was mentioned, but did not dare to ask him why he did so. When the narration was concluded, Mr. Holden asked:

"When is his trial to come off?"

"On Tuesday next, sir."

"Tuesday next. H'm. Prosecution will take up first day; defence not be reached before Wednesday – and this is Thursday – leaves me four days to get through what I have on hand. Oh, Mr. Anderson!"

The door opened noiselessly in response to his loud summons, and the old clerk poked in his head.

"If Mr. Sarcher comes to retain me in Fordyce vs. Baxter, you will decline to take his papers unless he can wait for an opinion until after next week."

"Yes, sir."

"That is all, Mr. Anderson."

"Thank you."

The clerk bowed and retired his head, again carefully closing the door. Mr. Holden turned to Lem and said, cheerily:

"With Heaven's help, young man, we will save your friend's neck."

"Oh! I'm quite satisfied you will, sir, I'm easy in my mind about it, now that I've seen you. Did you know there's a schooner goes to Sag Harbor, Tuesdays and Fridays, starting at five o'clock in the evening from Coenties Slip?"

"Yes, I know. I have taken it before, and will again, God willing, next Tuesday evening. Go home, see your friend and his sweetheart, and cheer them up, especially the girl. Tell them I'll – well, no; on second thoughts, you'd better say nothing about my evidence that you can avoid; – he would tell his counsel who must be, metaphorically speaking, an ass, or he would have kept his client quiet at the preliminary examination – and it might get to the other side. That might do harm. It is always unwise to let your antagonist in law know your weapons."

XXI.

THAT SWEET BOON – TRIAL BY JURY

On the day that Dorn Hackett's trial commenced, the little court-house of Sag Harbor was by no means large enough to contain half the people who came from all the country around to attend it. From the neighborhood in which the murder had been committed, they seemed to have come in a body. Old acquaintances, neighbors, friends of the prisoner – who had known him since he was a child; who had heard as fresh the news that his father, William Hackett, had been swept overboard from a whaler's yard-arm and lost in a gale, and who had seen the drowned man's little orphan boy grow up to young manhood among them – were present by dozens; yet among them all one could hardly hear a few faint expressions of sympathy for him, or hope for the demonstration of his innocence. There is nothing for which ignorant people, particularly rustics, are so ready as the acceptance of the guilt of a person accused legally of a crime; nothing they resent so deeply as what they believe to be an attempt to deceive them by a false assumption of innocence. The discovery of the marked handkerchief in his possession, had been, to their narrow minds, conclusive evidence of Dorn's guilt and each man of them felt it an insult to what he deemed his intelligence, that Dorn had, just before that discovery, betrayed him into a temporary fear that they might not have the right man after all.

Deacon Harkins, who, by the way, had tried to have Dorn, as a child, indentured to him by the county overseer of the poor, as soon as he heard of the drowning of the lad's father – a slavery from which the boy was saved by the kindness of a good old man, long since dead – was prominent in the crowd about the court-house, quoting texts and vaunting the foresight with which he had "always looked forward to seeing that young man come to a bad end." Aunt Thatcher, was of course, present, and – as might have been expected – vindictively exultant. Mary Wallace, having been summoned as a witness by the prosecution, was compelled to attend, and made her way through the throng to the county clerk's office, beneath the court-room, where she was given a seat to wait until she should be called. Happily there was still humanity enough among the rough people who were eagerly awaiting the conviction of her lover, to prompt some little sympathetic feeling for her; and, as she went by, they at least refrained from saying, in her hearing, that they hoped Dorn Hackett would be hanged. Aunt Thatcher was incapable of such delicacy and reserve. She had been saying that daily, and almost hourly, since she had heard of his arrest, and she continued to say it now, loudly too, until the disgusted county clerk ordered her to keep quiet or get out of his office, to which she had forced her way with Mary.

There was little difficulty in getting a jury, for in those days fewer newspapers were read than now are; fewer people sought to escape jury duty by deliberately "forming and expressing opinions relative to the guilt or innocence of the accused" in advance of the trial; and, above all, lawyers had not yet developed, as they since have, the science of delay at that point of the proceedings. Twelve "good men and true" were selected – perhaps a sample dozen as juries go. One of them heard with great difficulty; two kept yawning and dropping asleep from time to time; a fourth belied his looks, if he was not at least semi-idiotic; three were manifestly weak, simple-minded persons, devoid of moral force and easy to be influenced by a stronger will, and the remaining five were evidently men who doubtless meant to do right, but were obstinate to the verge of pig-headedness, and showed, by the countenances with which they regarded the prisoner, that they were already inimical to him. And before this "jury of his peers" Dorn Hackett stood, to be tried for his life.

It would be time and space lost to recite the thrilling opening speech of the prosecuting attorney; to tell how vividly he depicted the horrors of the crime that had been perpetrated; how artfully he seemed, by word and gesture, to connect the prisoner with the crime at every stage of its progress; how scornfully he dwelt upon "the absurd story by which the murderer had sought to explain away the damning proofs against him, and which his counsel might have the audacity to ask this intelligent jury to believe," etc. It was more like a closing than an opening speech, and when it was ended, five of the jury looked as if they were satisfied that the proper thing to do would be to take the prisoner right out and hang him to one of the big elms beside the court-house.

Mr. Dunn's heart sank within him. What had he to make headway with against that speech, before those five men and with that fatal marked handkerchief ever fluttering before his eyes?

The hearing of the witnesses for the State continued slowly all the first day. All that had been sworn to before the committing magistrate, was repeated now, and there was really very little more, but that little was adroitly handled, and the temper of the jury was to make the most of it. Peter Van Deust produced a great effect when he gave his testimony as to the identification of the handkerchief belonging to his murdered brother, which was, in the language of the prosecutor, cunningly woven into questions "voluntarily, confidently, and impudently exhibited by the prisoner to sustain his preposterous story." Poor Mary Wallace had to go on the stand and testify that Dorn had been with her, walking and conversing, in the edge of the woods, less than half a mile from the Van Deust homestead, on the night of the murder, and that he left her about nine o'clock. Witnesses were brought from New Haven to testify to Dorn's arrival in that city, the morning after the murder, with his clothes bloody, head cut, and one ankle sprained; and to his admissions that he had received those injuries while running through the woods on Long Island the night before.

"Not," exclaimed the prosecuting-attorney, "as he would have it believed, long before the murder, but when he was fleeing red-handed, conscious that the brand of Cain was on his brow!"

The prisoner's counsel protested against this sort of interpolation of comments, as irregular and unfair, and the court sustained him in that view, but the majority of the jury looked as if they would have thanked the prosecutor for expressing their sentiments so forcibly.

Then other witnesses were called to prove, as experts, that a man would have time after the hour at which it was believed the murder was committed, – say, at midnight – to run to the Napeague Inlet, take a sail-boat and reach New Haven early the next morning. One, indeed, testified that he had tried and accomplished the feat.

And that was all the State had to offer. Still, the popular feeling was that it was sufficient.

"It would hardly amount to much before a city jury," said the prosecuting-attorney, in confidential chat with some other lawyers at the close of the day's proceedings, "but I guess it will be enough down here."

The jury, at the adjournment of the court for the day, gravely heard the injunction of the judge, that they "should refrain from talking to anybody about the case," and then went out and discussed the evidence with their friends and neighbors.

"The handkerchief must hang him; that's clear," said everybody. "How could he have had it if he hadn't killed the old man?"

Dorn was remanded back to the jail, where Mary had a little interview with him, during which she wept almost constantly, and he spent all his time in trying to console her with loving words and foolish hopes, so that neither of them said or did anything particularly reasonable or worthy of the telling here. And then Mary went back to the room that had been assigned her in the tavern, and cried so all night, that in the morning her eyes were red and swollen almost sufficiently to justify in some measure the gratified assurance of Aunt Thatcher, that she "looked like a fright."

As for Lem Pawlett, it must be admitted that he acted in what seemed to his friends a most reprehensible and unaccountable manner. Following even too strictly the injunctions of Mr. Pelatiah Holden about saying nothing to anybody, he would not even give them the satisfaction of knowing positively that he had found his man, and that the much needed evidence would be forthcoming in due time. He did go so far, under Ruth's most severe pressure, as to assure her that it would "be all right," but beyond that the little maiden found that for once her power was set at naught. He felt resting upon him a responsibility that temporarily out-weighted his love, and the gravity of his stubborn silence awed the girl, and made her look upon him with a new respect. But how he suffered! Bearing alone and in silence his weighty secret, made him feel that virtually Dorn's salvation depended upon him, and should anything happen by which that evidence would not be forthcoming, and Dorn be hanged in consequence of its failure, he would be neither more nor less than the executioner of his friend. The next most unhappy man in the town that night, after the prisoner himself, was Lem Pawlett. When, from sheer exhaustion, he fell asleep, nearly at daylight, he had a horrid dream that he was tied hand and foot, and powerless to speak, while his witness was fleeing swiftly away from him on horseback, and that Dorn was standing before him, under the gallows-tree, with a noose about his neck and a horrible look of haunting reproach in his eyes. From that dream he awoke with a howl of fright, and, fearing to go to sleep again, sprang up, dressed himself and hurried out into the deserted main street of the still slumbering town.

He took his way toward the wharf. "Sometimes," he said to himself, "the packet from New York gets in early; hardly so early as this, but then she might have had an extraordinary good breeze last night." His road led him by the jail. He shuddered as he passed the grim, gray building, for never before had it seemed to him so big, so strong, so terrible. Not one living thing did he meet in his lonely walk, and when he reached the wharf the most profound silence surrounded him. The tide was rising, but without the sound of its accustomed swash on the piles. Its influx was indicated only by a slight ripple around the obstacles it met. As far out as he could see the surface of the bay was as smooth as a mirror. Going down some slimy green steps to a boat-landing, he dipped one hand into the water, and held it above his head. There was not even a breath of air moving. With sullen resignation he seated himself upon a pile of lumber and waited.

The dawn appeared, then suddenly the sun rose up behind the town, casting upon the glassy surface of the water before him long shadows of the tall warehouses, and of the people who now began to busy themselves in the vicinity. Not the smallest ripple broke the outlines of those shadows. He looked anxiously up at the sky. Ah! with what joy he would have seen, in the direction of New York, a myriad of those ragged fleecy clouds which sailors call "mare's tails," and believe to be sure harbingers of wind. But there was not one to give him hope. The sky looked like a monster dome of unflecked, burnished brass. It was high tide, and a dead calm.

With a groan he turned away and retraced his steps to the tavern. An unwonted excitement began to be perceptible in the streets, the continuation of that of the preceding day. Already people were flocking in from the country, determined to be nearest the court-room doors when they were thrown open. The tavern bar-room was crowded, even before the sleepy bar-keeper had his eyes well rubbed open, and a sort of general picnic scene was presented by the people breakfasting on cold lunches in the shade of the elms.

XXII.

IN THE NAME OF JUSTICE

When the court was opened that morning, at the usual hour, and the expectant multitude rushed, scrambled, and tumbled in, to fight first for front places and then for any place at all; the lawyers – who had entered by the judge's private stairway – were already seated inside the railing, chatting and laughing with cheerful indifference; the prisoner, looking worn and haggard, was seated in his place, and the two drowsy jurymen were already commencing to yawn.

The defence began the presentation of its evidence immediately. Mary Wallace was recalled to the stand to testify that when her lover was leaving her on the evening of the night of the murder he told her that he was going back to New Haven in Mr. Hollis's sloop. But the prosecuting attorney objected, and the court ruled that the prisoner's statements at that time were not admissible. Mr. Hollis, of New Haven, bore witness that Dorn had come over from New Haven with him that evening, had said that he might not return that night, and did not return to the beach at the appointed hour to accompany him back. Altogether, Mr. Hollis's evidence was rather injurious than otherwise, and the prosecuting attorney looked pleased as he made a note of it. Lem Pawlett was called to testify that the tracks left by the murderer in the soft earth of Mr. Van Deust's garden were those of a man wearing high-heeled, fashionable boots or shoes, and having much smaller feet than Dorn Hackett; but as he had taken no measurements of them, and only judged from memory, and didn't know the size of Dorn's feet, and was, as he readily admitted, a friend of the prisoner, the prosecuting attorney in cross-examination made it to be inferred from his manner, that there was no doubt in his mind that the witness was deliberately perjuring himself in the hope of helping the case of the accused. And at least five of the jury responsively looked as if that was the way they felt about it.

Then witnesses were put forward as sea-faring experts to prove that on the night of the murder there was almost a dead calm on the water, such as would have made it impossible for a sail-boat to go from Napeague Inlet to New Haven in the time that it was claimed by the prosecution Dorn had gone. But when the prosecuting-attorney got to bullying and confusing them in cross-examination, he made them say that they could not really swear whether the calm was that night, or the night before, or the night after, or two or three nights distant either way; and one of them even admitted that perhaps it might have blown a gale on that particular night, for all he was now prepared to make oath to about it. Simple-minded people, who do not know how much more lawyers bark than bite, when going through the ordeal of cross-examination are apt to feel much as the toad proverbially does when he finds himself under the harrow.

Things were going swimmingly for the prosecution. The defence was forced to fall back upon its last and always weakest intrenchment – proof of previous good character and reputation. A few persons were found to swear that they had known Dorn Hackett from his boyhood, and had always considered him honest, industrious, truthful and kind-hearted, and they were confident that such was his general reputation. Uncle Thatcher was one of those witnesses, at his own request, and the prosecuting attorney, who had, in some mysterious way, learned much more than he should have been permitted to know about the witnesses for the defence, asked him sneeringly:

"Did not this excellent young man, about three years ago, perpetrate an unprovoked and brutal assault on your son?"

"No, sir," replied, the old man sternly. "He thrashed him, as he deserved, for a contemptible action."

But all those witnesses to good character had to admit that they had known nothing of Dorn for three years past, during which time he had been away from the village – whaling, it was said, but for all they knew to the contrary he might have been living the most vicious and ill-regulated life in some big city. Then a stronger witness in that direction took the stand, Mr. Merriwether, of New Haven, owner of the schooner of which Dorn was master, and he could, and did, swear positively that he knew Dorn had been on a three years' whaling voyage, had since been steadily in his employ, and was in all respects moral, sober, and an entirely trustworthy young man of irreproachable character. The prosecuting attorney seeing that this witness was one who could not be easily bluffed or confused, contented himself with asking:

"You are his employer, are you not?"

"Yes, sir."

"And interested in getting him back to work for you, as you deem him a good sailor?"

"Yes, sir. But – "

"Never mind. That will do, sir. I am through with this witness." And the prosecutor sat down, looking with a scornful smile toward the jury, as if he would have said to them confidentially: "You see this man cares nothing whether the prisoner is guilty, or not, of all the crimes forbidden by the Decalogue, if he only serves him well."