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to substitute in the place of their constitutional courts the sure and swift decrees of Judge Lynch.
The trial of Judd (p. 603) for buying “fish oil” which had not been inspected according to law is unique. The defendant pleads that he bought whale oil and that whale oil is not fish oil because a whale is not a fish and relies upon the opinion of Dr. Mitchill, the great chemist and naturalist of his day. Certainly no man ever had a stronger champion. For years Dr. Mitchill occupied a position in New York City similar to that held by Dr. Oliver Wendell Holmes in Boston many years later. But the New York scientist was a public man and a politician as well and, in this capacity, Thomas Jefferson described him as the Congressional Encyclopedia and Directory. His prototype in England was Lord Brougham, of whom Samuel Rogers, seeing him driven away from a country house, said: “There go, Solon, Lycurgus, Demosthenes, Sir Isaac Newton and a great many others in a postchaise." It is interesting to note that no other person dared to enter the lists as an expert for the state; and that the learned doctor's reference to the bar was hardly complimentary. “I say positively that a whale is no more a fish than is a man; nobody pretends to the contrary but lawyers and politicians." The speech of old lawyer Sampson, whom we have met before (2 Am. St. Tr. 542), is most curious with its quotations from the Bible and the ancient historians and philosophers. And the defendant's counsel quoted Oliver Goldsmith—not his poems but his Animated Nature. The sequel to the case shows that the methods of the New York legislature have descended to its succes. sors in all the states. It promptly repealed the law under which Mr. Judd was convicted and confessed that in enacting that law it had said what it did not intend to say.
Besides the fact that it was the first prosecution for the crime of embracery in the United States, the trial of Clough (p. 664) is notable, as presenting a most complete discussion of the question as to the competency of a mason to sit on a jury when the interests of a brother mason are at stake. The trial of the question of competency by “triors" instead of by the Judge is more fully set out here than in the previous cases in New York. (See 2 Am. St. Tr. 518, 840.) The difference in orthography should be noted—triers in New York, “triors" in Boston.
Have more members of the medical profession been called upon to be tried for their lives on indictments for murder than lawyers or other learned professions ? is a question which the case of Dr. Coolidge (p. 732) and Dr. Hughes (2 Am. St. Tr. 714) may suggest.
A laughable church brawl was that of Brown, Wertendyke and Pike (p. 803), and while the jury settled it with the wisdom of Solomon, the charge of Recorder Riker on the liberty of the subject, is worth preserving.
It would be interesting to compare the treatment of the prisoners in the hands of the different belligerents in the great war now raging in Europe with that of the English soldiers in the Revolutionary War and for which Colonel Henley (p. 806) was permitted to be called to account at the instance of the English commander, General Burgoyne. Military amenities have certainly not increased in the past century, for it would hardly be admitted in Europe today that prisoners of war were entitled to demand that a court should sit on the conduct of their captors. It is clear, as his biographer points out, that great latitude was allowed to General Burgoyne in permitting him to have a court martial try Colonel Henley and to appear himself in the prosecution. He had no right to expect any favor from the Americans. His proclamation, at the beginning of the campaign, was still fresh in their recollections; and it could not be forgotten that he was responsible for some of the greatest atrocities that occurred during the war. It is quite apparent that his principal object in this trial was to obtain popularity with his army, and assistance in the unfortunate predicament in which the capture of that army had placed him at home. He accordingly exerted all his talents on this occasion, and conducted the prosecution with extraordinary ability. But in one other respect American national conduct was not so happy. The troops were never sent home, as had been promised by the treaty signed at Saratoga.
“But ere long the belief gained ground that they would be used in Europe to take the place of other troops who would be sent to America. Congress, therefore, found one excuse after another for not carrying out the convention. First, it demanded pay for the soldiers' subsistence since the surrender, not in Continental money, but in British gold. Congress thus made a spectacle to the world by refusing to accept its own money. It next imposed an impossible condition by demanding that Burgoyne make out a descriptive list of all the officers and men of the army. So in various ways Congress evaded carrying out the agreement. The British soldiers were in fact never sent home. After being kept a year in New England they were sent to Charlottesville in Virginia, making the overland march of seven hundred miles in midwinter. Here a vil. lage of cottages was built for them. When, in 1780, Virginia became the seat of war, they were scattered, some being sent to Maryland, and others to Pennsylvania. Meantime their number had constantly diminished by desertion, death, and exchange. At the close of the war most of the Germans remained in America."6
There will be many trials connected with the slavery question in the coming volumes, but that of Walker (p. 803) is important for the penalty which followed. Certainly the stocks and branding on the hand would be held at this day a “cruel and unusual punishment” within the Constitution. But the victim was probably content to be regarded as a martyr to his cause, and to be the hero of a poem by Whittier was doubtless a complete solatium for all his sufferings :
6 2 Elson Hist. United States, 97.
"Welcome home again brave seamen! with thy thoughtful brow and
gray, And the old heroic spirit of our earlier better day With that front of calm endurance on whose steady nerve, in vain Pressed the iron of the prison, smote the fiery shafts of pain!
Is the tyrant's brand upon thee? Did the brutal cravens aim
They change to wrong the duty which God has written out
Why that brand is highest honor! than its traces never yet
Hold it up before our sunshine up against our Northern air
And the tyrants of the slave land shall tremble at that sign
We sometimes speak of the violence of our party politics and of the extravagance of party writers of our press of today. But think of this kind of language from a gentle Quaker poet at almost the beginning of a political and sectional struggle which was to last for nearly twenty years!