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."
In those days, a person accused was not permitted to go upon the stand in his own behalf and give his testimony, under the sanctity of an oath, as is now allowed him by the law. Then, he might be granted the privilege of making his statement, but it would be merely a statement, and the prosecution was very careful always, when a prisoner thus spoke for himself, to impress upon the jury that his unsworn affirmation of innocence was of no value whatever, when weighed in the balance against other men's affidavits. Stress would be laid upon the time and knowledge the accused had had to enable his preparation of his own version of the affair, and undue prominence and importance given to the fact that he could not be cross-examined. In this way an artful prosecutor could generally neutralize all good effect the accused might otherwise produce, if not, indeed, make the poor wretch's asseverations of innocence absolutely harmful to him, by stirring up the suspicion, antagonism, and secret consciousness of infallibility in the minds of the jury, who resent attempts to deceive them.
Dorn was duly warned of this, yet he persisted in demanding to be allowed to tell his own story, and the court granted him permission to do so. He told it simply, clearly, and truthfully, as he had told it before to Lem, to Mary, to his lawyer, and to the magistrate who committed him, but he made no new converts to his innocence now – unless it might have been the clear-sighted and experienced old judge on the bench, who believed that he heard the ring of truth in the young man's voice, and saw honesty in his frank, manly face.
But at the conclusion of the statement, as Dorn left the stand and returned to his seat by his counsel, the prosecuting attorney silently held aloft before the jury the marked and identified handkerchief, and that action was more conclusive in its effect upon their minds than all that the prisoner had said. Looking upon their faces, the lawyer for the defence murmured to himself, "We are lost!"
As the day wore on Lem Pawlett was in agony, for his witness did not appear. It made him dizzy and sick to see one witness after another leaving the stand in such rapid succession, for he did not know how soon the supply of them would run out, and the weak defence be compelled to close before the one upon whom all depended should make his appearance. "Why had he not come? The boat was due many hours ago, and had not yet arrived! Becalmed, doubtless, on this one day of all the days in the year. Perhaps he might not be aboard. He might be sick. What if he should be a cunning villain, the real criminal, for all his smooth exterior, who had purposely given that handkerchief to Dorn to cast the guilt apparently on him? He smiled when it was mentioned. And now he might be flying far away." These thoughts almost maddened Lem. Bitterly he reproached himself that he had not staid in New York and kept his witness under his eye until the last moment, and brought him along by force, if necessary. Again and again he was tempted to make his way to Mr. Dunn, and urge him to fight the day through by all means; but each time he remembered what Mr. Holden had said the prisoner's counsel must be, and refrained. Parched with thirst, and blazing with fever, yet with a cold perspiration breaking out all over him, poor Lem could hardly understand half that was going on. But when Dorn's lawyer arose and said, "May it please the court, the defence rests," the words came to his ears like a clap of thunder. It seemed to him that that was the last moment of grace, and he staggered to his feet, trying to say something; to cry a halt; to appeal to the judge for time; to do, he did not know what. But his tongue clave to the roof of his mouth, and a deputy sheriff, seeing him standing there, waving his arms and looking as if he was about to speak, shouted at him with such an awful voice, "Silence in the court," that he sank down, stunned and speechless in his place, as helpless as he had been in that awful dream of the night before.
The prosecuting attorney began summing up to the jury. If he was forcible in the opening, he was terrible now. Of course he assumed that a clear case had been made out, as prosecutors always do; that "there was no moral doubt of the guilt of the accused, any more than if the jury had actually beheld him battering in the skull of his aged victim, wiping the dripping blood from his hands upon the raiment of the corpse, and clutching the gold, for lust of which he had done this hideous deed." [Five of the jury looked as if they quite agreed with him; three others glanced timidly and furtively at the faces of the five, as if to read there what they too should think about it; the sleepy men were very wide awake now, having had a good nap while the evidence as to character was being introduced; and the deaf man had both hands up to his ears to enable him to hear better, for if there is anything that country people do love, it is a good strong speech.]
In the midst of one of his most vigorous declamatory efforts the eye of the prosecutor caught sight of the judge, who was sitting with upraised gavel and a look as if he was only waiting for the end of a sentence to arrest his progress. The speaker stopped, and the judge, laying down his gavel, held up a note and said:
"I am in receipt of a communication which is, if written in good faith – that is, by the person whose name is signed to it – of so very important a character, and has such a decided bearing upon the interests of justice in this case, that I feel it would be in the highest degree unwise to ignore it. I will therefore ask the prosecuting attorney to have the kindness to at least postpone for a short time the continuation of his address to the jury. The court will now take a recess for half an hour."
The densely packed and excited audience hardly waited the conclusion of the sheriff's formal repetition of the formal order of the court, to break out into a loud murmur of exclamations, conjecture, and discussion as to what the important communication might be. The judge, upon rising from his seat, made a sign to the prosecuting attorney and the counsel for the defence to accompany him to his room, and the trio went out by the private door, which they closed behind them.
"What is it, Lem? What do you suppose they are going to do now?" Ruth asked anxiously of the young man, who sat in a semi-inanimate condition at her side, and who actually had not heard a word of what the judge had said. He started from his dream, into which reality had again plunged him, and replied miserably:
"I don't know. Hang him, I suppose."
"Don't talk nonsense, Lem. What's the matter with you? Wake up. Didn't you hear what the judge said about his receiving an important communication that had a decided bearing, and all that?"
"Did he?"
"Yes, 'a decided bearing upon the interests of justice in this case.' Those were his very words; and he held up a letter."
"Then it's all right now, Ruth! All right at last! He has come! He has come!"
"Who has come?"
"The man who will save Dorn Hackett."