“If it please your honor, I am the poor duke’s constable, and
my name is Elbow. I do lean upon justice, sir, and do bring in
here before your good honor two notorious benefactors.”

MEASURE FOR MEASURE.

The efforts of the Solitary’s friends to ward off the blow were unavailing, and the perseverance of the constable was crowned with success. Of course it was impossible for Holden to walk through the streets of Hillsdale with such a companion without attracting observation. Long before he reached the office, where he was to have his trial, a crowd of idle boys was gathered at his heels, attending in a sort of triumphal procession, and wondering what was to be done with the prisoner. Basset had need of all his natural dignity, and more than he could assume besides, to keep the little mob in tolerable order. It is true the conduct of Holden, who, to the great astonishment of the constable, followed him like a lamb to the slaughter, made the task less difficult.

The place to which he was taken was no other than the office of Ketchum, it not being usual for justices to have offices of their own, the amount of business not warranting such an expense. On occasions like the present it was customary for the lawyer who took charge of the case to supply the court-room, and this, of course, was his own office, as the most convenient place where law books and other necessary instruments were at hand. Here, then, Holden was left by the constable with Ketchum, the officer of the law meanwhile proceeding to hunt up Squire Miller. During his absence, Ketchum addressed some remarks to the prisoner, and endeavored to engage him in conversation, but without success, Holden receiving his advances with coldness, and evidently averse to establish the relation of even speaking acquaintanceship. Ketchum finding all efforts vain, at last desisted, and Holden sat in silence, brooding over his own thoughts.

Upon Basset’s return, he was accompanied not only by the justice, but also by Pownal, who had accidentally heard of the arrest, and by two or three other persons attracted by curiosity. Pownal immediately walked up to his friend, and, grasping his hand, expressed his interest, and tendered his services.

“I know not,” said Holden, in reply to his expressions of sympathy, “why I am to be made a gazing-stock for curious eyes; but the Lord’s will be done.”

Pownal requested to see the warrant, and for the first time learned the nature of the accusation; he then sent a messenger after Mr. Tippit, and that gentleman, in compliance with the summons, soon made his appearance. Him Pownal engaged to defend the prisoner. By this time the little office was filled with an inquisitive crowd, eager to hear the eloquence of the counsel, and to watch the vibrations of the scales of justice, among whom Judge Bernard might be seen seated by the side of the prisoner. Any person entered and departed as he pleased, the room being, for the time of the trial, converted into a public place; and while preparations were being made preliminary to the opening of the court, the spectators amused themselves with making observations to each other.

“What have they took Holden up for?” said a man to Mr. Davenport, who, of course, was present.

“I hear it is for profane speaking and reviling,” answered Davenport.

“If everybody was to have his desarts,” said our friend, Tom Gladding, squirting a stream of tobacco juice over the floor, “I guess, some others would be worse off,” and he looked sharply at Davenport.

“It is time such things should be punished,” said Davenport. “People begin to act as if there was no law in the country.”

“Don’t you be quite so hard on a fellow,” said Tom. “I recollect the time before you were convarted, squire, when you swore like a trooper.”

The face of Davenport faded into a dusky grey with anger, and he looked as if he would have liked to annihilate the audacious Tom, but, by a violent effort, controlling his passion, he said:

“I trust the Lord has forgiven me the sin.”

“I hope he has,” said Tom, “and seems to me it would be a good thing for Squire Miller to follow his example.”

“Suppose you tell him so,” said Davenport, sarcastically.

“Well, seeing as how you’re so pressing,” said Gladding “I don’t care if I do. Squire,” he cried, addressing the Justice, and drawing the attention of all to himself, “here’s Squire Davenport says, he expects the Lord’s forgive his cussing and swearing, and thinks you’d better do as well by Father Holden, and let him run.”

A general shout of laughter greeted this speech of Gladding’s, and there were exclamations of “Well said, Tom,” and “He had him, there,” and “Who would have thought that of Davenport?”

The unfortunate victim glared, with fury in his eyes, at Tom, who, interpreting his looks to suit himself, cried

“He’s coming, Squire, to speak for himself.”

Davenport here protested, he had said no such thing, and that it was a shame he should be abused by a scurrilous fellow, in such a manner.

“What’s that you say?” said Gladding, stepping up to Davenport; “I’m no more squirrilous, than you are yourself; though, for that matter, there ain’t a squirrel on a walnut tree, but would be ashamed to be seen in your company, squirrilous fellow, eh!”

“Silence!” cried the Justice. “Mister Gladding, I must say, I think such language very improper; and I hope, if you expect to remain here, you will stop it.”

“Squire,” said Gladding, “he begun it; I’ll leave it to the company, if he didn’t first call me a squirrel.”

“Silence!” reiterated the Justice; “we must have order; and, if you don’t choose to observe order, you must leave the room.”

“You hain’t opened court yet,” persisted the pertinacious Tom. “I guess we know our rights.”

Here Basset came up to Tom, and, taking him by the arm, whispered a few words into his ear. They seemed to be of a sedative character, for the latter, contenting himself with an occasional glance of mischievous fun at his late opponent, abstained from further remark.

By this time, the subpoena for the witnesses had been returned, and the persons summoned made their appearance. The overt act was so notorious, that it had not been considered necessary to summon many, and the few needed were soon hunted up. Hereupon, Mr. Ketchum having intimated a readiness, on the part of the State, to proceed, Mr. Tippit, after some conversation with Judge Bernard and Pownal, Holden refusing to hold any intercourse with him also, entered the plea of “not guilty,” for his client.

The hour of noon had now arrived, and that being the dinner-time of most present, Justice Miller yielded to the request of Mr. Tippet, and the pleadings of his own stomach, to adjourn the sitting of the court till two o’clock in the afternoon, in order, not only to gratify the demands of appetite, but, also, that the counsel might have an opportunity to confer with his client and prepare his defence. Ketchum remonstrated against the delay as unreasonable, but the Justice, who felt no disposition to hurry himself, and was, at bottom, not an unamiable man, told him, there would be time enough to finish the case in the afternoon, provided he and Mr. Tippit did not talk too long. Meanwhile, upon the promise of Judge Bernard to be responsible for the safety of the prisoner, Holden was allowed to depart with him, and Pownal, who had been invited to dinner with the Judge, accompanied them to his house.

Here they found Faith, in a state of high excitement. “I,” she said, seizing the old man’s hands, while the tears streamed down her cheeks; “I am to blame for this persecution. O, Father Holden, if I had not begged, and almost forced you to go with us that evening, this would not have happened.”

“Dear child!” said Holden, “afflict not thyself. Thou and I are but as flying dust on the eternal wheels of destiny. Fear not, nor let thy heart be troubled. Even yet, the Lord will make bare his arm and I shall escape, even as a bird from the snare of the fowler.”

But Faith partook not of the enthusiast’s confidence. To her alarmed imagination, the deliverance of Holden seemed as improbable as that of Daniel from the den of lions, and the impending doom almost as dreadful as that destined for the prophet. She knew what the consequences would be were Holden found guilty; for, soon after the reading of the warrant by Pownal, its contents had been communicated to her, and she had been informed respecting the punishment. To her delicate and sensitive mind, the charge itself that of profane speaking and reviling, was inexpressibly revolting. She knew that the condition of mind such language implies, was entirely wanting, and that it was in the performance of what he considered a duty, the old man had spoken. Father Holden capable of profane speaking! He, whose heart was the seat of all noble emotions; he, who had renounced the world, and trampled its temptations and vanities under foot; he, who living in the world, was not of the world! That such an one, so harmless, so guileless, so innocent, should be paraded through the streets like a wild beast which it was unsafe to have at large, that he should be exposed to the prying looks of coarse and unfeeling men, and compelled to hear their vile ribaldry, and, finally, compelled to an ignominious punishment, among the vicious, in a workhouse! The disgrace was more than she could bear. It seemed her heart would break. Overcome by her emotions, she left the room, followed by Anne, who partook of her grief and indignation.

All participated in the feelings of the young ladies, and, as might be supposed, the young men most. To Pownal, a wish of Anne’s was a command; nor was there a danger, scarcely, he would have refused to encounter to gratify her. He had never, indeed, breathed a word of love, but he had flattered himself of late that she understood his feelings, and that the knowledge gave her no displeasure; and, in spite of the disparity in their conditions, hope nestled at the bottom of his heart. Besides, Faith was with him a favorite, and it distressed him to witness her excitement.

Nor could William Bernard behold unmoved the tears of Faith, or the agitation of his sister. Never, indeed, before had the divine eyes of Faith Armstrong so affected him as now, when suffused with tears; nor had her beauty ever shone so resplendent. Upon the withdrawal of the girls, he put his arm into that of Pownal, and drawing him into a recess, the young men took counsel together respecting what should be done.

At the appointed hour, all parties were again present in the little office of the lawyer, and the examination commenced. It is unnecessary to recapitulate in full the testimony. In spite of the ingenuity of Mr. Tippit, who closely cross-examined the witnesses for the prosecution, and thereby only made them rather strengthen than weaken the force of their testimony, the facts were fully proved. Indeed, the whole occurrence was too recent and public to make the proof a task of any difficulty. The only differences in the statements of the witnesses were, that some thought Holden was standing at the side of the reading-desk, when he addressed Davenport, while others were as sure he was in front, a circumstance considered by Ketchum and the Court as of no consequence, while Tippit regarded it as of the greatest importance, as a test of the accuracy of the memory, if not of the veracity of the witnesses; and, again, what came out in the persevering cross-examination by Tippit, viz.: that in the opinion of some witnesses, Holden, instead of saying “soul-damning and abominable lies,” said “damned, abominable lies”. The eyes of Ketchum fairly danced when the efforts of his opponent succeeded in eliciting from the badgered and provoked witness this most mal-a-propos testimony which his own ingenuity had been unable to draw forth, and he took care, in the rest of the examination, to get the same statement if possible from the remainder of the witnesses. In this he was partially successful, each one intending most sincerely to tell the truth, and yet artfully led on by the lawyer, often falsely coloring and distorting the facts. On the conclusion of the testimony on the part of the State, Mr. Tippit produced witnesses to prove the words spoken, who, after all, did not alter the complexion of things, and also the good character of the prisoner, but this latter proposal was stoutly opposed by Ketchum, as irrelevant to the issue.

“What have we to do,” said he, “with the character of the prisoner? His character is not at issue. That may be as good as the Court’s, for instance (and I desire no higher), and yet the offence charged may have been committed. If brother Tippit is allowed to run into all these side issues, we shall never be done with the examination, and therefore I object to the testimony.”

Tippit, in reply, expressed great surprise at the conduct of his brother, Ketchum; “but,” said he, “I do not wonder at the anxiety of the gentleman to keep out testimony of so vast importance for my client. Here is a discrepancy. Some witnesses state the language said to have been used by my client in one way, some in another. Now, although a man of good character might use the words ’soul damning and abominable,’ which we are constantly hearing in sermons and prayers, and if they are proper there, one might suppose them proper in common discourse, he would be less likely to use the other phrase; though, if he did, I hope I shall be able to convince the court there’s no great harm in that.”

Here Ketchum’s face expressed unutterable astonishment, and the Justice, as if scandalized at the proposition, interrupted the counsel, and told him he hoped he did not mean to justify profane language.

“Far from it, please your honor,” answered Tippit, “but I say we have been guilty of no profanity which, at the proper time, I expect to satisfy the court of. We offer the testimony now for two purposes: first, to assist the judgment of the court in coming to a conclusion, whether the words were spoken or not, because if we prove the prisoner’s good character, it is less likely they were uttered by him; and secondly, if your honor should be of opinion that the words were used, in mitigation of punishment, if, indeed, the court should be disposed to take notice at all of the trifle of which the prisoner stands accused.”

Ketchum reiterated his objections, denying that the testimony was admissible for either purpose. He did not think, he said, that his brother Tippit was able to assist the judgment of the court a great deal; as for judgment, the article was so scarce with a certain gentleman, he advised him to keep the modicum he had for his own use. So far as mitigation of punishment was concerned, he thought the greater the respectability of the offender, the greater should be the punishment, both because his education and opportunities should have taught him better, and by way of example to others, in like case to offend. The doctrine of the gentleman, he added, might do well enough where kings and aristocrats ground the people to powder, but he hoped never to see the day, when, in our own free country, a man might do what he pleased because he was respectable.

This sentiment, notwithstanding the feelings of almost all present were in favor of Holden, was so decidedly patriotic, that it met the most favorable reception, and there was a general whispering and rustling among the audience. After the sensation had subsided, Justice Miller, with some hesitation, decided to receive the testimony for the present. “It is different,” he said, “from allowing evidence to go to a jury. I am both court and jury, and will think it over, and reject it, if I think it should be.” With this decision the counsel were obliged to acquiesce, and Tippit proceeded with his testimony.

It was easier to prove the good character of Holden than the exact occurrence at the meeting. Judge Bernard, Mr. Armstrong, who came into the court in the afternoon, Pownal, and many others, testified to his irreproachable reputation, and were certain that his conduct proceeded from no evil intent.

After the testimony had all been taken, followed the speeches of the counsel. Ketchum, who, as prosecutor, was entitled to the opening and closing arguments, rose and stated that, as the days were short, and it was growing late, he would waive his right of opening, and reserve what he had to say to the time when his brother Tippit had concluded. To this arrangement Tippit strenuously objected, insisting that the State had made out so poor a case, that he hardly knew what to reply to, and that in all fairness the counsel for the State ought to enlighten him. The court, however, decided, that although it was a strange thing for a lawyer to desire to be excused from making a speech, yet it was a course he felt much obliged to Mr. Ketchum for adopting, and hoped that he would not revenge himself for the abstinence by putting two speeches into one, at the conclusion.

Smiles and applauding whispers among the audience rewarded the Justice for this brilliant display of wit.

Hereupon Mr. Tippit rose and addressed the court. He begun by hinting at the embarrassment he felt in not having the advantage, to use his own language, of what his brother Ketchum intended to say. For his own part, he had carefully considered the law and evidence, and could not find the shadow of a pretext for detaining the prisoner. He then went on to speak of the prisoner himself, his age, his harmless life, and the excellent character he sustained. All this, he argued, went to show the improbability of his having uttered the language considered most objectionable. He contended that although he would most cheerfully admit that the prisoner had said something in the conference-room, it was impossible to determine accurately what that something was; that if in this state of things the court not be satisfied what the words were exactly, it was as if no words at all had been uttered, and there were none to be passed upon. But what were the words? Here the learned counsel minutely examined the evidence, and arrived at the conclusion, that it was impossible to ascertain them. Hence, he said, the corpus delicti is wanting. But suppose the words were as testified by some, though they are contradicted by others, “damned abominable,” what then? Was that reviling or profane speaking? The words were two. Now, no one would pretend that “abominable” was profane language. “The idea is abominable,” said Tippit, “and I hope brother Ketchum won’t take me up for saying that. What does the other word mean?” Hereupon the counsel referred to a dictionary, to which also we refer our readers. “There you see,” said he, “there is no harm in it. At most, the word can in its present application, be considered only as an intensitive, or the like. The fact is, may it please the court, it is but a strong form of expression, and means no more nor less than very, and I should be willing to leave it to the good sense of those who hear me, as to a jury, to say if my construction is not correct.”

Here Tom Gladding nodded his head at Tippit.

“Mr. Gladding,” continued Tippit, “nods his head, and I honor his judgment, and venture to say there is not a man here better qualified to speak on the subject.”

Here there was a general laugh at Tom’s expense, in which the court itself joined. Tom, appearing to regard the joke very little, and only saying, “The squire’s got it right by chance this time, I guess.” Presently, the court commanded silence, and Mr. Tippit proceeded.

“I flatter myself,” he added, “that I have satisfied your honor there is no profane language in the case; and that ought to be sufficient for my purpose, even though the court should be of opinion that the prisoner was guilty of reviling; because the words of the statute are in the conjunctive, providing punishment only where profane speaking and reviling are united, being levelled, not at one alone, but at both as one act. It should also be borne in mind, that the statute is penal, and for that reason must be construed, strictly, in favor of liberty. But I will now proceed to inquire whether there has been any reviling in the sense of the statute. Who was intended to be protected against injurious language? Reasonable beings only, certainly. Assuredly not the delicate feelings of horses, or cows, or pigs, and if so, much less those of an inanimate object, like a book. Now, it will be recollected that the language uttered characterized the contents of a book, not Mr. Davenport. The words were consistent with the supposition that the prisoner cherished the highest respect for him, whatever his opinion might be of the sermon. It was then absurd to pursue a man criminally for criticising a book, and requesting another not to read it, which was all that had been done.”

Here Ketchum inquired how his brother Tippit would get over the words, “man of sin,” which it was testified had been applied by the prisoner to Davenport.

Mr. Tippit treated the inquiry with great contempt. “Does the gentleman,” he asked, in turn, “claim for Mr. Davenport a superhuman degree of piety? Would he have us understand that Mr. Davenport is not a sinful man, and is the expression made use of by Mr. Holden more than tantamount to that? I do not think the words worthy of notice,” he said, “nor am I disposed to waste time on them.” Mr. Tippit concluded by saying, that if a man, in the honest expression of his opinions about a book, was to be dealt with criminally, free speech, free action, the noble inheritance of our ancestors, were gone, and the liberties of the country no more. Collecting himself for a last effort, he represented the Goddess of Liberty, like Niobe, all tears, weeping over the fate of her children, should the iniquity, contemplated by Ketchum, be consummated.

The impression made by the lawyer’s speech was favorable, as was evident from the looks of the audience, and the approving hum that filled the room, and prepossessed as they were in favor of Holden, they would undoubtedly have acquitted him, but, alas! they were not the tribunal to decide his fate. We have already dilated on the proceedings of the little court of pied poudre, beyond our original intention, and for that reason shall endeavor, without designing, “with malice prepense,” to slight the eloquence of Ketchum, to compress his remarks into as small a compass as possible. He has since risen to the dignity of a County Court Judge, and, therefore, needs no celebrity, which a work so unpretending as the present, can confer.

Mr. Ketchum then began by saying, that to be sure his experience in courts was not very great, but he had some, and, so far as it went, he never knew a case plainer than the one on trial. The gentleman (bowing to Tippit), with all his ingenuity, and he was not going to deny him his due, which was greater than his knowledge of the law, had been unable to affect his own mind, or, as he believed, the mind of his honor, or of any one present. He felt, therefore, that the task before him, though an unpleasant one, was lightened by the inability of his brother Tippit to make out even a plausible defence. Peeling this, he should, if he consulted only his own inclinations, be disposed to leave the case where it was, without comment, but he supposed it was expected he should say something, and in the discharge of his duty, he would comply with the expectation. As for the character of the prisoner, he had nothing to say about it. He would neither admit that it was good, nor claim that it was bad; whatever it might be, it had nothing to do with the case. The question was, what was done at the meeting? All the witnesses agreed that the prisoner interrupted the proceedings. True, they disagreed in respect to the exact words, but take the testimony of any, and sufficient was made out to support the prosecution. Here he dwelt upon a criticism of the words, coming to conclusions precisely the opposite of Tippit’s, and contending they were both profane and reviling. “It was preposterous,” he claimed, “to say that Holden meant merely to criticise the book. The language was not addressed to the book, but to Davenport: the book was not called, ‘man of sin,’ but Davenport. The words, ‘man of sin’ had a peculiar meaning. They were designed in the Scriptures to express condemnation, and horror, and wickedness. They were not synonymous with ’sinful man,’ though even these words might be considered words of reviling, had they been used in the same circumstances. The contempt affected by his brother Tippit was so much powder and shot thrown away. Nobody believed he really felt it. It was like the grimaces of a culprit, trying to hide his apprehensions by forced smiles.” He concluded by apologizing for not being a poet, like his brother Tippit, nor as familiar with goddesses. He knew that his friend was a gallant young man, and fond of the ladies, and he would confess to the weakness himself, but as for goddesses, they were a touch above him, &c.

The court had listened with patience to both testimony and speech, and was now to pass sentence, acting up to the advice of a shrewd English lawyer, to one who without much legal learning had been appointed to a judgeship in a colony, never to give his reasons when he pronounced judgment, for although the judgment had an equal chance to be right or wrong, the reasons were almost certain to be incorrect, Justice Miller contented himself with finding the prisoner guilty, and sentenced him to a week’s confinement in the town workhouse.

It was not without some surprise that the friends of Holden heard the decision. Although contemplating its possibility, they had indulged a hope that the Justice would be unwilling to subject one so harmless, and whom they considered innocent of all intention to violate the law, to any punishment; but with that reverence for law which characterizes New England, and without which there can be no security for free institutions, they submitted, although not without some murmurs. It was in vain, they knew, to ask for any mitigation; Justice Miller having once pronounced sentence, being as inexorable as the Supreme Court. The room was soon nearly emptied of the spectators, none remaining except the particular friends of the prisoner. Nothing remained but to carry the sentence into execution. Holden’s friends also at last took a sorrowful leave, and the mittimus being made out, it was handed to Basset, to remove the prisoner to the place of destination.

For the sake of greater security, Basset now produced a pair of handcuffs, which he put on the condemned man’s hands, who offered no objection, but calmly submitted to his fate.