ONE HEARS a good deal about the sovereignty of the people in this republic; and many persons imagine it a sort of fiction, and wonder where it lies, who are the guardians of it, and how they would exercise it if the forms and agents of the law were removed. I am not one of those who speculate upon this mystery, for I have seen this primal ultimate authority naked at its work. And, having seen it, I know how mighty and how dread a thing it is. And I know where it lies, and who are the guardians of it, and how they exercise it when the need arises.
There was a great crowd, for the whole country was in the courtroom. It was a notorious trial.
Elihu Marsh had been shot down in his house. He had been found lying in a room, with a hole through his body that one could put his thumb in. He was an irascible old man, the last of his family, and so, lived alone. He had rich lands, but only a life estate in them, the remainder was to some foreign heirs. A girl from a neighboring farm came now and then to bake and put his house in order, and he kept a farm hand about the premises.
Nothing had been disturbed in the house when the neighbors found Marsh; no robbery had been attempted, for the man's money, a considerable sum, remained on him.
There was not much mystery about the thing, because the farm hand had disappeared. This man was a stranger in the hills. He had come from over the mountains some months before, and gone to work for Marsh. He was a big blond man, young and good looking; of better blood, one would say, than the average laborer. He gave his name as Taylor, but he was not communicative, and little else about him was known.
The country was raised, and this man was overtaken in the foothills of the mountains. He had his clothes tied into a bundle, and a long-barreled fowling-piece on his shoulder. The story he told was that he and Marsh had settled that morning, and he had left the house at noon, but that he had forgotten his gun and had gone back for it; had reached the house about four o'clock, gone into the kitchen, got his gun down from the dogwood forks over the chimney, and at once left the house. He had not seen Marsh, and did not know where he was.
He admitted that this gun had been loaded with a single huge lead bullet. He had so loaded it to kill a dog that sometimes approached the house, but not close enough to be reached with a load of shot. He affected surprise when it was pointed out that the gun had been discharged. He said that he had not fired it, and had not, until then, noticed that it was empty. When asked why he had so suddenly determined to leave the country, he was silent.
He was carried back and confined in the county jail, and now, he was on trial at the September term of the circuit court.
The court sat early. Although the judge, Simon Kilrail, was a landowner and lived on his estate in the country some half dozen miles away, he rode to the courthouse in the morning, and home at night, with his legal papers in his saddle-pockets. It was only when the court sat that he was a lawyer. At other times he harvested his hay and grazed his cattle, and tried to add to his lands like any other man in the hills, and he was as hard in a trade and as hungry for an acre as any.
It was the sign and insignia of distinction in Virginia to own land. Mr. Jefferson had annulled the titles that George the Third had granted, and the land alone remained as a patent of nobility. The Judge wished to be one of these landed gentry, and he had gone a good way to accomplish it. But when the court convened he became a lawyer and sat upon the bench with no heart in him, and a cruel tongue like the English judges.
I think everybody was at this trial. My Uncle Abner and the strange old doctor, Storm, sat on a bench near the center aisle of the court-room, and I sat behind them, for I was a half-grown lad, and permitted to witness the terrors and severities of the law.
The prisoner was the center of interest. He sat with a stolid countenance like a man careless of the issues of life. But not everybody was concerned with him, for my Uncle Abner and Storm watched the girl who had been accustomed to bake for Marsh and red up his house.
She was a beauty of her type; dark haired and dark eyed like a gypsy, and with an April nature of storm and sun. She sat among the witnesses with a little handkerchief clutched in her hands. She was nervous to the point of hysteria, and I thought that was the reason the old doctor watched her. She would be taken with a gust of tears, and then throw up her head with a fine defiance; and she kneaded and knotted and worked the handkerchief in her fingers. It was a time of stress and many witnesses were unnerved, and I think I should not have noticed this girl but for the whispering of Storm and my Uncle Abner.
The trial went forward, and it became certain that the prisoner would hang. His stubborn refusal to give any reason for his hurried departure had but one meaning, and the circumstantial evidence was conclusive. The motive, only, remained in doubt, and the Judge had charged on this with so many cases in point, and with so heavy a hand, that any virtue in it was removed. The Judge was hard against this man, and indeed there was little sympathy anywhere, for it was a foul killing-the victim an old man and no hot blood to excuse it.
In all trials of great public interest, where the evidences of guilt overwhelmingly assemble against a prisoner, there comes a moment when all the people in the court-room, as one man, and without a sign of the common purpose, agree upon a verdict; there is no outward or visible evidence of this decision, but one feels it, and it is a moment of the tensest stress.
The trial of Taylor had reached this point, and there lay a moment of deep silence, when this girl sitting among the witnesses suddenly burst into a very hysteria of tears. She stood up shaking with sobs, her voice choking in her throat, and the tears gushing through her fingers.
What she said was not heard at the time by the audience in the courtroom, but it brought the Judge to his feet and the jury crowding about her, and it broke down the silence of the prisoner, and threw him into a perfect fury of denials. We could hear his voice rise above the confusion, and we could see him struggling to get to the girl and stop her. But what she said was presently known to everybody, for it was taken down and signed; and it put the case against Taylor, to use a lawyer's term, out of court.
The girl had killed Marsh herself. And this was the manner and the reason of it: She and Taylor were sweethearts and were to be married. But they had quarreled the night before Marsh's death and the following morning Taylor had left the country. The point of the quarrel was some remark that Marsh had made to Taylor touching the girl's reputation. She had come to the house in the afternoon, and finding her lover gone, and maddened at the sight of the one who had robbed her of him, had taken the gun down from the chimney and killed Marsh. She had then put the gun back into its place and left the house. This was about two o'clock in the afternoon, and about an hour before Taylor returned for his gun.
There was a great veer of public feeling with a profound sense of having come at last upon the truth, for the story not only fitted to the circumstantial evidence against Taylor, but it fitted also to his story and it disclosed the motive for the killing. It explained, too, why he had refused to give the reason for his disappearance. That Taylor denied what the girl said and tried to stop her in her declaration, meant nothing except that the prisoner was a man, and would not have the woman he loved make such a sacrifice for him.
I cannot give all the forms of legal procedure with which the closing hours of the court were taken up, but nothing happened to shake the girl's confession. Whatever the law required was speedily got ready, and she was remanded to the care of the sheriff in order that she might come before the court in the morning.
Taylor was not released, but was also held in custody, although the case against him seemed utterly broken down. The Judge refused to permit the prisoner's counsel to take a verdict. He said that he would withdraw a juror and continue the case. But he seemed unwilling to release any clutch of the law until some one was punished for this crime.
It was on our way, and we rode out with the Judge that night. He talked with Abner and Storm about the pastures and the price of cattle, but not about the trial, as I hoped he would do, except once only, and then it was to inquire why the prosecuting attorney had not called either of them as witnesses, since they were the first to find Marsh, and Storm had been among the doctors who examined him. And Storm had explained how he had mortally offended the prosecutor in his canvass, by his remark that only a gentleman should hold office. He did but quote Mr. Hamilton, Storm said, but the man had received it as a deadly insult, and thereby proved the truth of Mr. Hamilton's expression. Storm added. And Abner said that as no circumstance about Marsh's death was questioned, and others arriving about the same time had been called, the prosecutor doubtless considered further testimony unnecessary.
The Judge nodded, and the conversation turned to other questions. At the gate, after the common formal courtesy of the country, the Judge asked us to ride in, and, to my astonishment, Abner and Storm accepted his invitation. I could see that the man was surprised, and I thought annoyed, but he took us into his library.
I could not understand why Abner and Storm had stopped here, until I remembered how from the first they had been considering the girl, and it occurred to me that they thus sought the Judge in the hope of getting some word to him in her favor. A great sentiment had leaped up for this girl. She had made a staggering sacrifice, and with a headlong courage, and it was like these men to help her if they could.
And it was to speak of the woman that they came, but not in her favor. And while Simon Kilrail listened, they told this extraordinary story: They had been of the opinion that Taylor was not guilty when the trial began, but they had suffered it to proceed in order to see what might develop. The reason was that there were certain circumstantial evidences, overlooked by the prosecutor, indicating the guilt of the woman and the innocence of Taylor. When Storm examined the body of Marsh he discovered that the man had been killed by poison, and was dead when the bullet was fired into his body. This meant that the shooting was a fabricated evidence to direct suspicion against Taylor. The woman had baked for Marsh on this morning, and the poison was in the bread which he had eaten at noon.
Abner was going on to explain something further, when a servant entered and asked the Judge what time it was. The man had been greatly impressed, and he now sat in a profound reflection. He took his watch out of his pocket and held it in his hand, then he seemed to realize the question and replied that his watch had run down. Abner gave the hour, and said that perhaps his key would wind the watch. The Judge gave it to him, and he wound it and laid it on the table. Storm observed my Uncle with, what I thought, a curious interest, but the Judge paid no attention. He was deep in his reflection and oblivious to everything. Finally he roused himself and made his comment.
"This clears the matter up," he said. "The woman killed Marsh from the motive which she gave in her confession, and she created this false evidence against Taylor because he had abandoned her. She thereby avenged herself desperately in two directions....It would be like a woman to do this, and then regret it and confess."
He then asked my uncle if he had anything further to tell him, and although I was sure that Abner was going on to say something further when the servant entered, he replied now that he had not, and asked for the horses. The Judge went out to have the horses brought, arid we remained in silence. My uncle was calm, as with some consuming idea, but Storm was as nervous as a cat. He was out of his chair when the door was closed, and hopping about the room looking at the law books standing on the shelves in their leather covers. Suddenly he stopped and plucked out a little volume. He whipped through it with his forefinger, smothered a great oath, and shot it into his pocket, then he crooked his finger to my uncle, and they talked together in a recess of the window until the Judge returned.
We rode away. I was sure that they intended to say something to the Judge in the woman's favor, for, guilty or not, it was a fine thing she had done to stand up and confess. But something in the interview had changed their purpose. Perhaps when they had heard the Judge's comment they saw it would be of no use. They talked closely together as they rode, but they kept before me and I could not hear. It was of the woman they spoke, however, for I caught a fragment.
"But where is the motive?" said Storm.
And my uncle answered, "In the twenty-first chapter of the Book of Kings."
We were early at the county seat, and it was a good thing for us, because the court-room was crowded to the doors. My uncle had got a big record book out of the county clerk's office as he came in, and I was glad of it, for he gave it to me to sit on, and it raised me up so I could see. Storm was there, too, and, in fact, every man of any standing in the county.
The sheriff opened the court, the prisoners were brought in, and the Judge took his seat on the bench. He looked haggard like a man who had not slept, as, in fact, one could hardly have done who had so cruel a duty before him. Here was every human feeling pressing to save a woman, and the law to hang her. But for all his hag-ridden face, when he came to act, the man was adamant.
He ordered the confession read, and directed the girl to stand up. Taylor tried again to protest, but he was forced down into his chair. The girl stood up bravely, but she was white as plaster, and her eyes dilated. She was asked if she still adhered to the confession and understood the consequences of it, and, although she trembled from head to toe, she spoke out distinctly. There was a moment of silence and the Judge was about to speak, when another voice filled the court-room. I turned about on my book to find my head against my Uncle Abner's legs.
"I challenge the confession!" he said.
The whole court-room moved. Every eye was on the two tragic figures standing up: the slim, pale girl and the big, somber figure of my uncle. The Judge was astounded.
"On what ground?" he said.
"On the ground," replied my uncle, "that the confession is a lie!"
One could have heard a pin fall anywhere in the whole room. The girl caught her breath in a little gasp, and the prisoner, Taylor, half rose and then sat down as though his knees were too weak to bear him. The Judge's mouth opened, but for a moment or two he did not speak, and I could understand his amazement. Here was Abner assailing a confession which he himself had supported before the Judge, and speaking for the innocence of a woman whom he himself had shown to be guilty and taking one position privately, and another publicly. What did the man mean? And I was not surprised that the Judge's voice was stem when he spoke.
"This is irregular," he said. "It may be that this woman lulled Marsh, or it may be that Taylor killed him, and there is some collusion between these persons, as you appear to suggest. And you may know something to throw light on the matter, or you may not. However that may be, this is not the time for me to hear you. You will have ample opportunity to speak when I come to try the case."
"But you will never try this case!" said Abner.
I cannot undertake to describe the desperate interest that lay on the people in the courtroom. They were breathlessly silent; one could hear the voices from the village outside, and the sounds of men and horses that came up through the open windows. No one knew what hidden thing Abner drove at. But he was a man who meant what he said, and the people knew it.
The Judge turned on him with a terrible face.
"What do you mean?" he said.
"I mean," replied Abner, and it was in his deep, hard voice, "that you must come down from the bench."
The Judge was in a heat of fury.
"You are in contempt," he roared. "I order your arrest. Sheriff!" he called.
But Abner did not move. He looked the man calmly in the face.
"You threaten me," he said, "but God Almighty threatens you." And he turned about to the audience. "The authority of the law," he said, "is in the hands of the electors of this county. Will they stand up?"
I shall never forget what happened then, for I have never in my life seen anything so deliberate and impressive. Slowly, in silence, and without passion, as though they were in a church of God, men began to get up in the courtroom.
Randolph was the first. He was a justice of the peace, vain and pompous, proud of the abilities of an ancestry that he did not inherit. And his superficialities were the annoyance of my Uncle Abner's life. But whatever I may have to say of him hereafter I want to say this thing of him here, that his bigotry and his vanities were builded on the foundations of a man. He stood up as though he stood alone, with no glance about him to see what other men would do, and he faced the Judge calmly above his great black stock. And I learned then that a man may be a blusterer and a lion.
Hiram Arnold got up, and Rockford, and Armstrong, and Alkire, and Coopman, and Monroe, and Elnathan Stone, and my father, Lewis, and Dayton and Ward, and Madison from beyond the mountains. And it seemed to me that the very hills and valleys were standing up.
It was a strange and instructive thing to see. The loudmouthed and the reckless were in that courtroom, men who would have shouted in a political convention, or run howling with a mob, but they were not the persons who stood up when Abner called upon the authority of the people to appear. Men rose whom one would not have looked to see-the blacksmith, the saddler, and old Asa Divers. And I saw that law and order and all the structure that civilization had builded up, rested on the sense of justice that certain men carried in their breasts, and that those who possessed it not, in the crisis of necessity, did not count.
Father Donovan stood up; he had a little flock beyond the valley river, and he was as poor, and almost as humble as his Master, but he was not afraid; and Bronson, who preached Calvin, and Adam Rider, who traveled a Methodist circuit.
No one of them believed in what the other taught; but they all believed in justice, and when the line was drawn, there was but one side for them all.
The last man up was Nathaniel Davisson, but the reason was that he was very old, and he had to wait for his sons to help him. He had been time and again in the Assembly of Virginia, at a time when only a gentleman and landowner could sit there. He was a just man, and honorable and unafraid.
The Judge, his face purple, made a desperate effort to enforce his authority. He pounded on his desk and ordered the sheriff to clear the courtroom. But the sheriff remained standing apart. He did not lack for courage, and I think he would have faced the people if his duty had been that way. His attitude was firm, and one could mark no uncertainty upon him, but he took no step to obey what the Judge commanded.
The Judge cried out at him in a terrible voice.
"I am the representative of the law here. Go on!"
The sheriff was a plain man, and unacquainted with the nice expressions of Mr. Jefferson, but his answer could not have been better if that gentleman had written it out for him.
"I would obey the representative of the law," he said, "if I were not in the presence of the law itself!"
The Judge rose. "This is revolution," he said; "I will send to the Governor for the militia."
It was Nathaniel Davisson who spoke then. He was very old and the tremors of dissolution were on him, but his voice was steady.
"Sit down, your Honor," he said, "there is no revolution here, and you do not require troops to support your authority. We are here to support it if it ought to be lawfully enforced. But the people have elevated you to the Bench because they believed in your integrity, and if they have been mistaken they would know it." He paused, as though to collect his strength, and then went on. "The presumptions of right are all with your Honor. You administer the law upon our authority and we stand behind you. Be assured that we will not suffer our authority to be insulted in your person." His voice grew deep and resolute. "It is a grave thing to call us up against you, and not lightly, nor for a trivial reason shall my man dare to do it." Then he turned about. "Now, Abner," he said, "what is this thing?"
Young as I was, I felt that the old man spoke for the people standing in the courtroom, with their voice and their authority, and I began to fear that the measure which my uncle had taken was high handed. But he stood there like the shadow of a great rock.
"I charge him," he said, "with the murder of Elihu Marsh! And I call upon him to vacate the Bench."
When I think about this extraordinary event now, I wonder at the calmness with which Simon Kilrail met this blow, until I reflect that he had seen it on its way, and had got ready to meet it. But even with that preparation, it took a man of iron nerve to face an assault like that and keep every muscle in its place. He had tried violence and had failed with it, and he had recourse now to the attitudes and mannerisms of a judicial dignity. He sat with his elbows on the table, and his clenched fingers propping up his jaw. He looked coldly at Abner, but he did not speak, and there was silence until Nathaniel Davisson spoke for him. His face and his voice were like iron.
"No, Abner," he said, "he shall not vacate the Bench for that, nor upon the accusation of any man. We will have your proofs, if you please."
The Judge turned his cold face from Abner to Nathaniel Davisson, and then he looked over the men standing in the courtroom.
"I am not going to remain here," he said, "to be tried by a mob, upon the viva voce indictment of a bystander. You may nullify your court, if you like, and suspend the forms of law for yourselves, but you cannot nullify the constitution of Virginia, nor suspend my right as a citizen of that commonwealth.
"And now," he said, rising, "if you will kindly make way, I will vacate this courtroom, which your violence has converted into a chamber of sedition."
The man spoke in a cold, even voice, and I thought he had presented a difficulty that could not be met. How could these men before him understand to keep the peace of this frontier, and force its lawless elements to submit to the forms of law for trial, and deny any letter of those formalities to this man? Was the grand jury, and the formal indictment, and all the right and privilege of an orderly procedure for one, and not for another?
It was Nathaniel Davisson who met this dangerous problem.
"We are not concerned," he said, "at this moment with your rights as a citizen; the rights of private citizenship are inviolate, and they remain to you, when you return to it. But you are not a private citizen. You are our agent. We have selected you to administer the law for us, and your right to act has been challenged. Well, as the authority behind you, we appear and would know the reason."
The Judge retained his imperturbable calm.
"Do you hold me a prisoner here?" he said.
"We hold you an official in your office," replied Davisson, "not only do we refuse to permit you to leave the courtroom, but we refuse to permit you to leave the Bench. This court shall remain as we have set it up until it is our will to readjust it. And it shall not be changed at the pleasure or demand of any man but by us only, and for a sufficient cause shown to us."
And again I was anxious for my uncle, for I saw how grave a thing it was to interfere with the authority of the people as manifested in the forms and agencies of the law. Abner must be very sure of the ground under him.
And he was sure. He spoke now, with no introductory expressions, but directly and in the simplest words.
"These two persons," he said, indicating Taylor and the girl, "have each been willing to die in order to save the other. Neither is guilty of this crime. Taylor has kept silent, and the girl has lied, to the same end. This is the truth: There was a lovers' quarrel, and Taylor left the country precisely as he told us, except the motive, which he would not tell lest the girl be involved. And the woman, to save him, confesses to a crime that she did not commit.
"Who did commit it?" He paused and included Storm with a gesture. "We suspected this woman because Marsh had been killed by poison in his bread, and afterwards mutilated with a shot. Yesterday we rode out with the Judge to put those facts before him." Again he paused. "An incident occurring in that interview indicated that we were wrong; a second incident assured us, and still later, a third convinced us. These incidents were, first, that the Judge's watch had run down; second, that we found in his library a book with all the leaves in it uncut, except at one certain page; and, third, that we found in the county clerk's office an unindexed record in an old deed book." There was deep quiet and he went on:
"In addition to the theory of Taylor's guilt or this woman's, there was still a third; but it had only a single incident to support it, and we feared to suggest it until the others had been explained. This theory was that some one, to benefit by Marsh's death, had planned to kill him in such a manner as to throw suspicion on this woman who baked his bread, and finding Taylor gone, and the gun above the mantel, yielded to an afterthought to create a further false evidence. It was overdone!
"The trigger guard of the gun in the recoil caught in the chain of the assassin's watch and jerked it out of his pocket; he replaced the watch, but not the key which fell to the floor, and which I picked up beside the body of the dead man."
Abner turned toward the judge.
"And so," he said, "I charge Simon Kilrail with this murder; because the key winds his watch; because the record in the old deed book is a conveyance by the heirs of Marsh's lands to him at the life tenant's death; and because the book we found in his library is a book on poisons with the leaves uncut, except at the very page describing that identical poison with which Elihu Marsh was murdered."
The strained silence that followed Abner's words was broken by a voice that thundered in the courtroom. It was Randolph's.
"Come down!" he said.
And this time Nathaniel Davisson was silent.
The Judge got slowly on his feet, a resolution was forming in his face, and it advanced swiftly.
"I will give you my answer in a moment," he said.
Then he turned about and went into his room behind the Bench. There was but one door, and that opening into the court, and the people waited.
The windows were open and we could see the green fields, and the sun, and the far-off mountains, and the peace and quiet and serenity of autumn entered. The Judge did not appear. Presently there was the sound of a shot from behind the closed door. The sheriff threw it open, and upon the floor, sprawling in a smear of blood, lay Simon Kilrail, with a dueling pistol in his hand.
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