Hang the Dog
‘Jiang the dog,’ said the leading counsel for the prosecution, in a case where a disappointed lover had slain his rival. Thrilled with the tragic effect of the whole scene then being enacted, I thought it would be grand sometime to say the same thing in the same way. From the sphere of influence of those words I could not escape; by that picturesque display of oratory I was uprooted from the soil, and taken forever out of the class of producers. To a country lad of sixteen murder sounded like something criminal, which really ought to be punished. I wished that I were a barrister, so that I too might take part in putting people to death. I wondered how it was that I had not before recognized the impulse and power that I now instinctively felt. Certain was I that every vile reptile of the species Homo sapiens who transgressed the command, ‘Thou shalt not kill,’ should be hanged; and that of all men I was the person best fitted by nature to enforce that divine law.
A farmer friend advised that if I wished to become a lawyer I ought to go to Chicago, and try cases for the corporations. He did not know that my secret purpose in life was to hang someone, and that my plan was to settle wherever my services were most needed, I selected Peoria. ‘But up there,’ he said (meaning Chicago), ‘they pay ten thousand dollars a year.’ That seemed like a vast fortune, hardly to be accumulated in one lifetime. From that day forward Chicago was a doomed city — I could feel it. I knew that sooner or later she must open her gates and surrender. But I did not know then that the demand for competent lawyers is always greater than the supply, simply because excellence in every line of human endeavor is very limited. Anyway, I had decided to give Peoria the first chance to be saved from legal chaos.
But in about eight weeks after starting I had a very decided feeling that I should have stayed on the farm where I belonged. I could see that my ambition to hang either man or beast was waning. And it looked to me as if Peoria did not care to be saved.
A deficit in my accounts soon ceased to worry me. It was very nearly my normal state. I never saw such peaceful, law-abiding citizens. No one seemed to appreciate the fact that a veritable Moses was in their midst, and that I was there for the purpose of ridding the community of bad characters. Embryonic greatness appeared to be a drug on the market. I would have sold myself ‘short.’ Finally a friend from my home town established himself in Peoria, in the buggy business. He felt sorry for me, and said so. I believe he was afraid he would have to support me. My first case in a court of record was his suit in replevin to recover ten thousand dollars’ worth of buggies. The amount dazed me. I hardly knew whether to file a declaration or a complaint. I had a case now, and was certain that I needed a lawyer. Common honesty required that I advise my friend to employ a regular attorney.
On the way to the trial I met a lawyer who is now a Federal Judge, and expressed to him my fear of the lawyer on the other side, ‘Young man,’said he, ‘you are the best lawyer in the country. Never admit that there are any better.’ In order to make out a case I had to show fraud, and could not quite make the grade; but this case is where I learned that, as my judicial friend said, self-reliance, confidence in your own ability, is fundamentally essential to a lawyer’s kind of salesmanship. The man who appears in court uncertain of his position, doubtful of the law, and ready to admit (if charged with it) that he is a fool anyway, should be operating with a broom of bristles and a shovel. The young man who is willing to turn the right cheek if smitten on the left may as well enter the prize ring as the law. ‘An eye for an eye and a tooth for a tooth,’said the old prosecutor at Fairfield, ’is the unalterable will of God.'
A very demure and modest brunette came to my office and complained that her husband had abandoned her and wrongfully taken away her piano. I brought suit to recover it. All through the trial, defendant’s counsel kept in the foreground the fact that my relations with my client had been very friendly; that we had been seen together on a steamboat excursion and at a dinner party. The purpose was manifest. It was embarrassing, too. It looked as though I had broken up a home, and ought to be horsewhipped. Something had to happen to change that atmosphere. Fortunately, counsel overplayed his hand by too much cross-examination. He asked her if I had not, at a dance before her husband left her, told her that she was ‘very beautiful.’ I knew she would truthfully answer, ‘No’; but I objected on the ground that it did not affect her title to the piano, and said, ‘I will leave it to the jury to say now whether I was right or wrong.’ The jurors laughed; and I added, ‘Her husband won’t speak to her. Why should he object if others do?’ That changed the atmosphere — always a very decisive thing — and left unimpeached her personal beauty, which of itself clearly constituted a preponderance of the evidence. The presumption that a beautiful woman is truthful cannot be overcome by proof; and the reader can well imagine who got the piano.
The campaign of 1900 was approaching, and if the Democratic candidate should be elected State’s Attorney I wished to become his Assistant. This was my opportunity to become ‘the secular arm’ of the State, as it was described by the scholiasts of the Spanish Inquisition. I was in Peoria for that ‘ sacred ’ purpose, and to ‘ abandon ’ all accused ones to that secular arm. The chief of police had officially refused to permit a lawyer friend of mine, a duly licensed attorney, to interview his client then in the city prison, on the ground that he was not lawyer enough to be recognized. My friend did not look upon that as much of a compliment, and did not consider it a final adjudication. He felt sure there was a technical flaw somewhere in that holding. It became necessary to institute a proceeding against the ‘Chief’ to recover the statutory penalty for such a violation of the rights of attorney and client. The leaders of the three big Democratic wards of the city insisted that I withdraw from the case, and said that if I appeared against the ‘ Chief ’ my chances of becoming Assistant to any Democratic State’s Attorney were ruined. I appeared against him, and the ruling of the chief of police was reversed; and my friend thereafter enjoyed the rare distinction of having it established by adjudication that he was a regular lawyer. He was grateful to me. I know he was. He gave me the advantage of considering my efforts as a personal favor to him, and never commercialized our friendly relations by offering me any part of the proceeds. People appeared to have the idea that I was practising law for the exercise. The net result, to me, however, was very satisfactory. After I became a prosecutor I learned that all contest for my job ended with that trial; and that the defeat in that case of the incoming State’s Attorney commanded his respect.
The People of the State of Illinois vs. William Dooley was called for trial on the morning of the day we went into office. The charge was murder. I was nearing the goal of my early ambition — but not yet. While playing a game of billiards the defendant had struck someone on the head with a billiard cue and killed him; and who should appear as counsel for the defense but the far-famed and able previous State’s Attorney. He was of commanding appearance physically, and of great intellectual power. In his opening he made an exhaustive and convincing outline of the evidence; then he turned toward me with a snarl, as though I had insulted him, and, apparently resenting my arrogance and conceit in being there at all, said, ‘I’ll show this young laddie-buck how to try a lawsuit.’
I do not know why that should affect my knees, but it did. My thought was ’I guess you will, all right.’ I had a vague feeling that I might be in trouble myself before the thing was over. I thought I ought to apologize for insulting the jury with my presence. Dooley did not appear to be the dog I intended to hang. But the best thing counsel showed me was the great advantage of keeping your own temper when your opponent loses his. In that case I learned the real power of being cheerful when your opponent is angry. Counsel’s bitterness toward me personally cost his client twenty years in the penitentiary.
‘Ellsworth Hinckle Kills Wife; Cuts Jugular Vein’ appeared the following July in large black letters across the front page of the morning papers. I moved slowly. I walked silently to the office, instinctively reflecting upon my early ambition. I knew the hour had come. There was nothing I wished to say; yet almost aloud I thought, ‘Here is the case at last.’ The State’s Attorney looked me over intently, and after a pause said, ‘Well, say it.’ After some hesitation I got it out: ‘They will hang this man.’ They say Webster spent thirty years preparing for his reply to Hayne. For twelve years I had looked forward to this case. The evidence disclosed that the defendant had theretofore beaten his wife and driven her out into the street to prostitute herself for his support. That was enough to hang any man. It was no victory for the State.
But when I got squarely up to the point of saying, ‘Hang the dog,’ they appeared to be ‘lost words.’ All my life I had worked toward this moment. I had struggled for years to get into a position where, officially, I could use those words. I had rolled them over in the roof of my mouth so many times I could almost sing them. And now I could not get them out. I could find no place in my argument to put them. They did not seem becoming or appropriate. I was so sure that the jury would hang the defendant that I did not feel like adding insult to injury. It did not seem right for the State, in that bestial manner, to demand the sacrifice of blood. In my heart I looked upon capital punishment as a relic of barbarism, like witchcraft and human slavery. By that time I had come to believe that Jesus or anyone else had the right to change a law which justified polygamy, slavery, the sacrifice of Jephthah’s daughter, and blood for blood.
At 10 p. M. the jury came in, slowly and solemnly. It was the death penalty.
At last I had taken part in one of those bloody orgies of breaking the neck of a human being and strangling him to death that are called capital punishment. Illinois had receded from the teachings of the Lowly Nazarene, and had glutted the savage vengeance which it inherited from the cave man and from the desert tribes of two thousand years before the Christian era. Most of the other revealed laws have been abandoned, presumably as of spurious origin; but this particular one, ‘Whoso sheddeth man’s blood, by man shall his blood be shed,’ we cling to, as of the very essence of divinity. It is the last one of the great State crimes inaugurated by those who did not know that the sun and moon cannot stand still, and who believed that Balaam’s ass conversed with its master. Capital punishment in its inception is a form of religious neurosis, which in most cases prevents the proper punishment of capital crime and in no case prevents the crime. Certainty of imprisonment is more deterring than a ninety-per-cent chance of escape. When and wherever capital punishment has been abolished crime has been relatively less. Whoever would murder expecting life imprisonment is not deterred by any penalty. The ‘hang the dog’ philosophy of the modern mind, the ‘hang the dog’ arguments of prosecutors, contribute as much as any other one thing to the failure of juries to convict. Some day in the approaching scientific age that human mass called the people will realize that capital punishment is no more justified than any of the other prodigious crimes authorized by those who did not know that blood circulated in their veins or that there is such a thing as a law of gravitation.
To proceed with my journey: I had longed for the Hinckle case; and, while I prosecuted other capital cases, from that day forward I abhorred them. Homicide is justifiable only in individual self-defense against an assailant; but, in order that societ y may defend itself against the further assaults of any individual, is it necessary to take his life? Is it foreign to the criminal law to consider the natural rights of the parties? A prosecutor with an ambition to hang someone is unfit to represent the State. And the prosecutor who goes so far away from the question of the guilt of the defendant and the character of the crime in the abstract as to indulge in personal abuse of the defendant or his counsel is going away from the goal of his ambition to become a trial lawyer. Prosecutors constantly induce acquittals by engaging in personal animosities with more experienced counsel for the defense, who deliberately initiate controversies with a motive very similar to that of a mother bird in fluttering about at some distance from the nest. The Hinckle case was the line of cleavage between what is commonly expected as to the duties of a prosecutor and the correct conception of what they are.
I was beginning to learn, too, that advocacy is an art; that the argument is but a small part of the forensics of a lawsuit; that there is eloquence in the massing, sequence, and clear presentation of the evidence, and value in the unimportant incidents of a trial.
The decisive iniluence of immaterial matters is illustrated by one case in particular. The charge was murder. The killing took place in the dark, and in the presence of no eyewitness; the most direct evidence to show that the defendant was the man who fired the fatal shot was the testimony of a young woman who, from a distance of a hundred yards, saw the defendant pass under an electric light, going away from the scene of the crime, immediately after she heard the shooting. The witness was rather tall and slender, with fair skin and dark hair, and wore a black silk all-over lace gown and a large broad-brimmed black hat. She was modest and refined by nature, and very striking in appearance. By the desertion of her father and the death of her mother she had been left alone to support five small children, her brothers and sisters. She kept them well dressed and in school and Sunday school. Her means of supporting them was well known, and not commendable; but she certainly did not look the part. I impressed upon her that her position in life was a great misfortune for which she was not entirely to blame; and that in answering about it on crossexamination she should manifest no resentment, express nothing but sorrow, and show the jury that in her heart she was a good woman.
She had testified concerning the support of these children, and counsel for the defense asked her how she did it. She avoided a direct answer. He squared himself for the grand assault, confident of victory, and, intending her complete destruction, came out triumphantly with the direct question: ‘Is it not a fact that you earn your living by walking the streets at night?’ She hesitated, and looked toward me for assistance. The jury were surprised. They could hardly believe it. They leaned forward, hoping that she might deny the charge. I could see her lips begin to quiver, and the tears coming. There was perfect silence; it was a tragic moment. I knew we were at the turning point in the case. I requested the judge to instruct the witness that she was not required to give an answer that would tend to degrade her. He did, and she declined to answer. ‘Well, then,’ said counsel, ‘you refuse to answer because the truth would degrade you?’ She could no longer restrain her emotions. ‘It certainly would, Mr.—,’she replied, bursting into tears. She wept bitterly for what she was. There was no acting; she realized the truth. Sympathetic tears of the jury attested their compassion for her. The clerk brought her a glass of water. I stepped up, took her by the hand, and helped her down as tenderly as if she had been the queen of the land. The court took a recess, and counsel for the defense slunk away like a whipped cur.
In my argument I referred to the Lord’s forgiveness of the woman brought to Him for condemnation: ‘He that is without sin among you, let him first cast a stone at her,’ and then said: ‘There is but one issue in this case. Did this woman tell the truth?’ The jury thought that she did. But, on the ground that there was no evidence to sustain the finding of the jury, the court set aside the verdict and discharged the defendant.
Upon arrival in Chicago I was employed by Mr. James F. Meagher, now deceased, and at a salary less than Mr. Meagher paid his chauffeur. That was eminently fair, too. He had tried out the chauffeur; and a good chauffeur is worth more, and less likely to cause damage, than a poor trial lawyer.
For a ‘try-out,’ as he called it, Mr. Meagher assigned me to a case where I could not be skeptical. I had to trust in the Lord. It was one of those suits which are responsible for the general impression that all lawyers are dishonest. He introduced me to a theatre owner whose company had been sued for $1400 by a theatre-ticket broker. Upon the owner’s office door in the Majestic Theatre Building appeared the name of his company and the words, ‘Western Agency.’ The ticket broker had paid to the agent $1200 in advance for six hundred seats for the coming performance of Harry Lauder. The agent received the money, disappeared to parts unknown, and never delivered the tickets. It would seem reasonable to suppose that the broker, not having received his merchandise, was entitled to the return of his money.
‘Mr. Meagher, I cannot weaken on the first case,’ said I, ‘but please tell me how you expect a man to defend this suit.’ For thirty years Mr. Meagher had been an object of terror to all attorneys for the plaintiff. He walked to the window, looked out over the lake during a long rhetorical pause, turned back to me, and said: ‘Hedrick, there is but one way. Every time an opponent sticks up his head, bat hell out of him.’ He had great confidence in an American jury. Verily the American jury system, especially the requirement of unanimity, is a wonderful institution. That requirement saves many a man from paying his debts when he does n’t feel that he can afford it, or from suffering severe punishment for careless and indiscreet acts when his family needs him at home. It is a great thing, too, for a young lawyer. If the facts are against him he still has something to work on.
Plaintiff’s counsel in this case knew that, and commenced operations with the jury as though he were moulding bits of clay. But his technique, I thought, was faulty. He examined each juror with unusual personal familiarity. He called the first man ‘George.’ I did not regard that as art.
Only a very poor quality of human clay responds to that kind of workmanship. He then informed the juror that he personally was a member of the law firm of Blank and Blank and that ‘Mr. Hedrick works for the firm representing the defendant,’ and concluded by asking each juror if ‘man to man, face to face, and heart to heart ’ he would give the plaintiff a fair trial. It would almost make you weep, it was so tender. He capered and cajoled through the whole examination, and finished each time with that same dash of pathos. I kept perfectly silent, and tried to assume an attitude of dignified reserve and confidence. My thought was to create the impression that a great wrong was being attempted by a cunning hypocrite.
When it came my turn I said to the first man, ‘Your name is Hawkins, I believe.’ He nodded, and I continued, ‘You will have to pardon me if I call you Mr. Hawkins. I don’t know you well enough to call you George.’ The juror seemed pleased. I then inquired if the fact that opposing counsel was a member of the firm of Blank and Blank and that I only worked for a salary would make any difference to him as a juror. He answered emphatically, ‘No.’ I added, ‘You know there are lawyers who would not consider it much of an honor to be a member of the firm of Blank and Blank. Counsel objected; but the court made no ruling, and I went on. With just a suggestion of imitation and pathos, as delicately and artistically as I could do it, I solemnly inquired, ‘Now, Mr. Hawkins, man to man, face to face, and heart to heart, will you give the defendant a fair trial?’ A responsive smile was the only answer. I waived my opening statement, and said I would have the defendant as a witness tell the jury the facts.
Plaintiff had a perfectly good claim for $1200, but it looked like good business to add the ‘99 cents.’ He claimed an additional $200 that he was not entitled to. He said the defendant had promised to redeem at the box office before eight o’clock one hundred tickets, at $2.00 each, for some other performance. It was a fabrication out of whole cloth. I could have disproved it, but I did not, because, as the reader will learn, I quit the evidence in a terrible rage; and I could not back in and unload that testimony without the jury knowing it was all I had.
This bargain-counter claim for the extra $200 came between me and the merits of the case. It won my sincere affection; I loved it. The rest of the plaintiff’s cause I treated with cold indifference. The plaintiff explained that, after defendant’s refusal to redeem the tickets, he had given them to his friends and hotel acquaintances. In cross-examination, with pencil and paper in hand, I said, ‘We will send for them. Kindly give me the name of one person to whom you gave a ticket.’ He did not dare to take the risk. For a moment he looked as though he might choke to death. I asked him to name any person to whom he had ever given a ticket in his life. He refused to answer.
About this time James J. Jeffries, the ex-champion, came into the courtroom and took a seat near my client, who had been complimenting the ‘acting’ of Mr. Jeffries that week at the American Music Hall. He had come to the trial to see the kind of ‘ show ’ my client put on. I was introduced to him, and I can never forget that ham of a hand I tried to shake. I stood up and introduced him: ‘If the court please, and gentlemen of the jury, Mr. Jeffries.’ The way the opposing lawyer abused me for that one little act of kindness to the jury was a shame. I never thought it was so wrong. He said I ought to be disbarred. That caused ill feeling, and precipitated another blunder. ‘Why, Your Honor,’ said I, ’Mr. Jeffries is the peer of any member of the firm of Blank and Blank.’ Everything I did seemed to be wrong. One of the Appellate Court judges, who read of the incident in the morning papers, said I should have been kicked out of court. Evidently that was not his idea of the way to become a barrister.
The defendant witness and I had agreed upon certain words to be used as a cue. This was at the time when the theatrical trust was in its palmy days, and he was one of the very few independents. I thought the jury should know that the trust was fighting him. They might find that the trust was the real power behind the prosecution of the plaintiff’s case, and this would excuse defendant’s agent for running away with the plaintiff’s money. I assumed that the court would be narrow and technical about such things, and that it would take a broad mind to see the materiality of this evidence. So it was arranged that when I used the words ‘alone or with someone’ the witness, with a show of deep feeling and earnestness, should proceed to state, before objection could be sustained, how the trust was persecuting him. He could tell that story with sincerity, too. He testified that he was born in Germany, came to America alone as a stowaway, at the age of twelve, drove an ice wagon for five years, and then entered the employ of a booking agency. ’Mr. Hedrick,’ said the court, ’that is all very interesting, but I don’t see what it has to do with this case.’ I assured the court that I wanted to show the jury ‘fully all the facts.’ In order to proceed with the business romance of my hero I was forced to use the cue, ‘Are you in business alone or with someone?’ The witness jumped right into high speed, and away he went — all about how he was the only independent and the trust had been persecuting him for years. The court rapped on the bench vigorously. ‘What’s that? What’s that?’ he said. ‘Strike that out, Mr. Reporter, strike that out!’ But on went my witness. His first sentence was enough, but I could n’t stop him; he very nearly ruined a good defense. It was not all acting, either. The manifest genuineness of his emotions saved the day.
It was my turn now. I put on a show of my own. I used all my ammunition in telling the court in the hearing of the jury how I wished to prove who and what’ was behind this iniquitous prosecution. The court ruled against me, and I commenced all over again. I tried pathos, and then got as mad as David Garrick in King Lear; but it was of no avail. I stopped, looked first at the witness, then a long time at the jury, and finally turned to the court: ‘Your Honor, I will leave this case to the jury.’
That was the end of the testimony; but there was a bit of material evidence I had failed to introduce. At that time the social lions were wearing those high ‘lay-down’ collars, which struck the wearer just at the back of the ear and made him look like a Manila convict being choked to death in wooden stocks. Counsel for the plaintiff had selected one of those evidences of a great mind in which to appear before the jury. The moment I saw that collar I knew it was bound to become an exhibit in the case. No one can become a barrister unless he is able to sense those decisive facts. But that personal kind of evidence must go in just at the right niche or not at all. If you offer it when it is forced and unnatural the jury will get the idea that it is of no importance, and some juror may suspect you of impertinence and ill breeding. It was not until plaintiff’s closing argument that the materiality of this evidence became manifest.
I had devoted my time to plaintiff’s generosity in giving to nobody one hundred of another man’s tickets, and I made vague references to dark and devious facts which I could, but would not, discuss, because it was ‘ not proper to go outside of the record.’ I was too honest to do that. It would not be fair. Then I offered my sympathy to the plaintiff in being used as a tool, a Punch and Judy, for those behind him pulling the strings to put an ‘independent’ out of business. I never saw such utter lack of appreciation. It was positively rude the way the opposing party and counsel accepted my condolences. Counsel laid down a barrage of oratory about my impudence to the whole human race; I was a disgrace to the bar, and my conduct an insult to the intelligence of the jury. Just at the highest pitch of this grand philippic his voice broke and began to squeak. It needed oil. He was out of air. His compliments to me had been so questionable that anything I might say, even at that tense moment, would be not only excused but expected. He took another sip of water, and paused for breath. ‘You could breathe better,’ I ventured to suggest, ‘if you took about two inches off the top story of that collar.’ It was the truth. As testimony it could not be denied. As advice it did not appear to be appreciated, and added very little to the friendly relations of counsel. The jury disagreed; two years later I met one of the jurors and he inquired if ‘the top story’ had ever been taken off ‘that collar.
Shortly afterward I was put to work trying damage cases for the Gas Company, and have since tried a rate case for that company and a capital-stock case for the Pullman Company (of palace-car fame). At last I was representing the corporations ‘up there’ — in the big city. It has been a long trail, and beautiful scenery all the way. No man ever became a trial lawyer without a struggle. Every man knows in his heart the one thing he can do best. The most eminent success will be attained by the lawyer who early in his career seeks and finds employment in that special line which he loves best and for which he knows he is best fitted. Attainment is limited to one’s capacity. There is in each human embryo a latent potentiality, whose utmost development marks the success of the individual.
Man’s duty consists in the utmost development of himself and the furtherance of the cause of justice among men. Confucius was right: ‘Do good for good, and for evil, justice.’ And retaliation is not justice. Crime has never been retarded by the severity of punishments. This was proven by the experience of England, with its one-time long list, of governmental cruelties, since abolished for the more effectual humaneness. Public executions do not even assuage the passions and instincts which produce the vice. Blood for blood is a stage in the development of man which must be surpassed, just as we have surpassed the burning stake and trial by right of battle, and by water — if the accused did not drown he was deemed guilty. It is more blessed to save life than to destroy it. No advocate has achieved the completest satisfaction his calling can give until he has experienced the thrill and tasted the everlasting joy of saving a human life.
Over on the near-west side of Chicago in 1920 a father of a very unruly son went out on the street one night to find the son and bring him home. The boy saw his father first and started to run.
In a moment of distraction and confusion the father shot the boy in the back and killed him, in order, as the newspapers said, ‘to save his soul.’
My associate in that case suggested that the prosecutors ‘over on the north side’ (at the Criminal Court building) did not know me, and that he had observed that jurors would help a lawyer win his case if they liked the lawyer and thought he was green at the business. So we deliberately decided that I should go into the trial of that case on the theory that I was just a plain ‘boob,’ and knew nothing at all about criminal practice and mighty little about any kind of law.
In examining the jury I asked the most outlandish questions I could think of; then, after counsel had argued his objections, I withdrew the question, speaking in a droll nasal tone, and inquired, ‘How do you ask that question, Mr. Counsel?’ And he would tell me, much to my chagrin.
Counsel for the State in his opening made an elaborate and learned disquisition on the law and the evidence, closing with a solemn demand for the death penalty. I sat there quietly, staring out into space as though I had no idea what to do next. ‘Proceed, Mr. Hedrick,’ said the court. ‘With the evidence, Your Honor?’ I inquired. ‘No,’ said the judge; ‘the practice over here is that you can make your opening statement now or reserve it till the close of the State’s case.’ ‘Reserve it,’
I repeated aloud. Manifestly I was not certain what the court meant. But, after a short pause of doubt, I said, ‘I got nothin’ to hold back, Your Honor; I ’ll give it ’em now’; and the jury laughed. That was the makings of an atmosphere, and helped to destroy the awful seriousness of what we were doing.
Then, with all the simplicity and frankness I could command, I said, ‘My defense is an alibi, that the defendant, the real defendant, the mind of the defendant, was not there at the time of this accident ; and I ’ll tell you men how it was ’ — which I proceeded to do in the most colloquial and commonplace manner.
After several days, and toward the close of the trial, my associate heard one of the newspaper boys say to opposing counsel: ‘Where does Hedrick get that farmer stuff? I know that guy.’ From that moment on I conducted myself in a lawyerlike way, but never changed my rôle, and never thereafter gave my opponent an opening to question my perfect confidence in anything I said or did. Some of the jurors congratulated me upon my success in my ‘first criminal case,’ and one juror wrote, ‘It was a pleasure to see you in action.’ The verdict was one of the kind that caused Mark Twain to say that the criminal laws in this country are all wrong; that we should prosecute and punish people for insanity, and not for murder. The jury thought the defendant insane at the time of the homicide and ‘Not guilty,’ but sane at the time of the trial. One doctor testified that the rapidity of his recovery without medical aid was hard to explain.
Æsthetics is the expression and exhibition of the truth which the artist sees in such a way that it can be seen and understood by others. That is the talent which distinguished Wagner and Michelangelo in music and painting. It is no less essential to the advocate. The jury must see what he sees. The means of transmitting to the jury the vision of the advocate must be artistic. The emotions, prejudices, sympathies, and brains, or lack of brains, in the jury box are all that the State has furnished as the means of receiving and reflecting the truth. In order to project a true picture of what he sees the advocate must be an artist, and the means adopted must be suitable to the material upon which the impression is to be made.
Keep this to yourself. In one other People’s case I represented the defendant, William D. Shepherd, charged with the murder of Billy McClintock.
I defended Mr. Shepherd until we got him into jail, and he then procured other counsel to get himself out.
‘Hang the dog!’ was the general public clamor from all parts of the country. Instinctively most men believed that the expectation of inheriting a million dollars caused Mr. Shepherd to think of that crime. That they called motive. Would that as an inducement have caused so many men to wish for the death of another that it may safely be accepted as presumptive evidence of guilt? If that be so, then we have not progressed very far from the instincts of our ancestors who fed upon one another, and cannot have very much regard for human life beyond our affections and self-interest. Instinctive disregard for the lives of others may be the reason men have cried, ‘Hang the dog!’ until it has become an idiom of our language, a ‘hangdog expression.’ The State’s prima facie case before the grand jury justified the holding of Mr. Shepherd in custody without bail; but there was no reliable evidence of his guilt, and he was never in the slightest danger of conviction; and yet that expression was applied to him with all its pristine vigor. And logically, on account of the law of capital punishment, the State was forced to take the position that the defendant should be hanged or turned loose; and this would have resulted in his acquittal even if there had been some evidence against him.
The general notion is that for every life feloniously taken society should wreak its revenge and kill the man who did the deed. Retaliation is the origin and the spirit of capital punishment — the idea is that the way to reform a criminal is to kill him, as though another would not be born; that a bad man should be disposed of as a bad dog.
As I stand here at life’s divide and look toward the western slope I do not anticipate the need of continued human slaughter. Looking backward through the ages, I can see now that it was a long stride from the amœba and the trilobite to man, and that man’s journey upward has hardly begun. It was a bit of progress when human life was so highly valued as to be sacrificed only to appease the wrath of deities. Then commenced our own religious education: ‘Behold also, the gallows fifty cubits high, which Haman had made for Mordecai’; ‘And the Lord said unto Moses, Take all the heads of the people, and hang them up before the Lord against the sun, that the fierce anger of the Lord may be turned away from Israel.’ Centuries later Christian martyrs considered human life of little value, and were more anxious to die well than to live well; and ablaze was the Inquisition, for the ‘glory of God.’ In the name of the Lord, Massachusetts undertook to cast devils out of women — and never succeeded. After the Lord hath spoken, who can deny the source of capital punishment? After those few kind words to Moses, who could blame us for taking the head of an individual and hanging it in the sun? And, if it be done in a spirit of anger and revenge, the Almighty is in no position to punish us.
But there is no religious authority justifying ‘fierce anger’ and cruelty in the treatment, of dogs. Dogs are not hanged, and do not deserve it. ‘Hang the dog’ is applied only to man, meaning that defendant man has animal instincts. If it were not so he would not favor retaliatory punishments, in kind like the offense, known in 1100 B. C. as lex talionis.
Quite true it is that the human embryo and the dog embryo are from their beginning and for a long stage in development precisely the same. But the human embryo has in it a latent potentiality of manhood that no fellow man has the right to extinguish. It is that something which distinguishes men from beasts. It is variously called mind, soul, principle, reason, and God. Whatever it may be, no man has the natural or divine right to destroy it.
The truth is, God has been misquoted. He never said to Moses the cruel words which have been attributed to Him. And Moses had been buried with his fathers four centuries before those words were written by someone whose identity has never been established. It was a fraud upon the Jewish nation. If the people believed that in anger God declared to Moses, or to some other ancient patriarch of the Church, the spirit of retaliation, they would accept it as a rule of law. And that is precisely what occurred. Capital punishment was criminal ab initio. And nineteen centuries ago Jesus repudiated that pernicious doctrine. He had that very law in mind and undertook to abolish it: ‘Ye have heard that it hath been said. An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil.’ In His own peculiar method of idiomatic speech, that was His declaration that the socalled Law of Moses is fundamentally sinful. After reading the Son of Man’s clear denunciation of that savage custom, it is hard to understand how any devout Christian can find it in his heart to say, ‘Hang the dog.’