Privilege of Counsel

PROBABLY an enlightened observer, certainly one learned in the law, would place upon Judge Vose the responsibility for the verdict in the case of Dunshee vs. Brown, but the old judge had had a vast experience in the introduction of evidence, and he was so shrewd with his juries that very rarely did the Supreme Court “have the temerity,” as he put it, to reverse one of his decisions. Profound as was his reverence for law as an instrument of justice, it sometimes yielded to the humanity of his nature; legal doctrines were seldom perverted in his court from the principles of justice upon which they were originally founded, and there was a sincerity and force about his application of them which made the annual session of the Circuit Court in Sussex County an event of interest equal to March town meeting or the Valley Fair at Whittleboro.

On one occasion the unfortunate holder of a promissory note had battled vainly before him against an insurmountable defense, technical to the point of being discreditable; the judge, who put conscience above the law, abruptly ordered a recess, and hurried into his room to open the safety valve of his indignation by denouncing in good round Saxon profanity the legal doctrine which made possible such “deviltry,” the seventeenth-century lawyers who invented it, and the judge who had handed it down to him. Whereupon he took a drink of water, returned to the courtroom, and gravely dismissed the plaintiff’s case with sound learning and citation of authority, and with all observance of judicial decorum.

Caleb Dunshee of Fitzroy, the exultant defendant in this case, not long after bought one of the two general stores in Wellford, the judge’s home, and his arrival in the village was duly discussed while the evening mail was being sorted. General disapproval was coupled with a reservation of final opinion for the sake of fairness. Bill Brown, six foot three, of slack mouth and lazy speech, said he had worked for him “hayin’, and he was almighty near at dinner-time.” Roswell Hinds had heard that he was “ closer ’n the bark on a tree. I dunno what kind of a tree’t was,” said the exact Roswell, “and that might make some difference. The bark on a beech’s a lot closer ’n birch or oak bark, ’n’ I’ve see buttonwoods where most o’ the bark had fell to the ground, but I don’t believe’t means ’t he pays more taxes ’n he’s assessed for, and I dunno”— But further pursuit of the idea was cut short by the opening of the postmaster’s little slide window and the general movement forward.

In truth, Caleb Dunshee, though a thrifty citizen, was not likely to prove an ingratiating neighbor, or to promote the harmony of the small community. His virtues, as the result of his mercantile career, were of a public and ostentatious character, for in that way they seemed to promise the direct return without which they would have had no interest for him. It was significant that in a village of “Sis,” “Bills,” “Hens,” and “Daves” he was always Mr. Dunshee to his face and Caleb Dunshee behind his narrow back; the familiarity of “ Caleb ” tempted not even the mail-time loungers; he was alien, cold in nature as he was unprepossessing in name. Perhaps it was his second, not his first, nature to be mechanical. In his youth there had been occasional kindly impulses; but seven years of “clerking” and pinching before marriage, together with a few harrowing days on the verge of failure at the beginning of his business career, had confirmed his natural tendency to regard life as a matter of debit and credit, best conducted upon the principle of quick returns, where success is assured to the man with the smallest number of entries on the wrong side of the profit and loss account. He was a deacon of the Orthodox Church; gave regularly to missions; but to a debtor he was as unyielding as a brick in the wall of a house.

From all this it ensued that the patriarchal soul of keen old Judge Vose was vexed when the feather-beds, cookstove, extra harnesses, and children of Mr. Dunshee rode into town in his double hay wagon. Amos Brown, brother of Bill, counseled a generous reception, and some pains were taken to bring the newcomers to the grange meetings and church suppers. Said Amos, “This town comes mighty nigh ‘ runnin’ emptin’s ’ if it can’t spare a mess o’ chicken pie, a few crullers ’n’ a cup o’ coffee to them that’s willin’ to contribute a dime to clothe the shady bodies and improve the shady morals of the benighted inhabitants of Marycaybo.” Amos’s words, if not law, were generally regarded as a sort of gospel, and hesitating beginnings of hospitality were undertaken, but the newcomer was unfortunate in the promptness with which opportunities were offered for the display of his peculiarities. Hen Chapin borrowed a spade one Saturday afternoon to dig out a ground-hog, and his wrath at being charged five cents for the use of it did not go down with the sun. “ He’s meaner ’n skim milk in ice cream,” he said on Monday. “I cussed a little, and told him I’d give him a dime ’stead of five cents ’f he’d put it in the contribution box next day, ’n’ he wa’n’t a mite ashamed, ’n’ agreed to do it. I sat behind him at church,’n’ see him put in the dime I give him, ’n’ then take out five cents in change.”

Dunshee harvested all the grass he could surreptitiously cut on the highway. He dug a well on his land just by his line fence, and by sinking it a few feet lower than Bill Brown’s made it necessary for that easy-going giant to put in a Fourth of July, dedicated to the circus, in grime and sweat below the surface of his orchard. He borrowed seed potatoes, and returned the favor with kidney beans aged beyond hope of fecundation, and apples “gnawed by the ungrateful worm.”

Amos Brown was provoked at these pettinesses on the part of his neighbor, and nettled at being provoked, but he had the tolerance which must be learned in a small community. As he put it, “ He was not given to borrowin’ trouble for the sake of payin’ interest on it.” Amos was not Job, however, and the limit of his patience was suddenly revealed one afternoon in late August. The katydids were rasping their evening love-song, and the long shadows of the western hills were just beginning to march up the eastern side of the valley. As camp followers in this daily procession the damphaired village boys were straggling up from the river, slapping at the mosquitoes with their wet towels. Amos was walking his horse slowly to cool him off before feeding him, when he saw down the broad street the form of Dunshee driving a cow, — a wretched, haggard cow, with a burr-adorned tail and wild eye, a trained hind foot for pestering dogs, a leathery teat and a reluctant udder. Amos recognized her at once as the chattel of Jed Weymouth, self-supporting and hardened in backyard thefts, and known to the village as “Jed’s dried beef.”

Now the animal which Caleb Dunshee was driving furnished a small supply of chalklike milk to Jed in life, and promised a generous chew, if not sustenance, to the Weymouth family when she should pass from the category of milch kine to that of “beef critters;” so Amos suspected evil at sight of the pair, and drew up. “Bought the cow?” he began mildly and with finesse. “Ye’ll find her good to a harrer or cultivator, but she’s a mite light for early spring ploughin’! ” Dunshee smiled with sardonic satisfaction. “No, I shan’t use her,” he said briefly. “She don’t belong to me.” The boys who were toiling up the hill in small groups stopped to listen to the colloquy, wriggling their toes in the dust. “Thought ye might have wished to get her off the highway and relieve her sufferin’s with a dose o’ chloroform,” said Amos genially. Dunshee’s thin lips grew thinner, and he started the cow on. She, with the agility born of an austere diet and a perverseness partly congenital and partly acquired from contact with a bitter world, and suspicious of all attempts to direct her movements, leaped through the “cloud of witnesses around,” oversetting one boy, and, with waving tail and a galloping action very high behind, curveted on to the sidewalk and down the street. After several unsuccessful rushes and attempts to flank her, somewhat hampered by the apparent zeal of the boys in throwing apples and stones at the critical moment of approach, and with much “hawing” and “geeing” quite inapplicable to her sex, Dunshee finally got the vantage position and started her forward again.

Amos had sat silent, but his curiosity increased, and he said, “Ye need n’t bother to drive her to Jed’s, Mr. Dunshee, for he’s workin’ over to John Felch’s, and he’ll pick her up on his way home.” “No he won’t,” replied Dunshee, with a disagreeable smile; “she’s going to the pound for the night for being a highway stray and a nuisance to the neighbors.” There was a silence of voices, and the boys stopped dragging their feet in the dust and perched themselves on the wall. The crickets and katydids had the field uninterruptedly for a minute. Then the stormy wrath of Amos broke. “So that’s the kind of a dried up, wormy ‘None Such’ ye are!” exploded Amos. “Ye ain’t content with the profit on your maggoty figs ’n’ your won’t-wash-warranted dress goods, but ye’ve got to squeeze a dollar out o’ the pound master so’s Jed’ll have to pay five dollars for poundage or lose his cow. I ain’t swore since last prayer-meetin’, but I snum if ye ain’t the gol-dingedest old usurer that ever sold rancid butter or took an I. O. U. for a meal from a starving man. I’ve a mind to tie ye to the critter’s hind leg and see if she can’t kick a little o’ the milk o’ human kindness into your pinched old carcass. If ye go another step with that cow I’ll tie ye to the pound fence for a stray hog, and bring the neighbors to see if any one claims the property.”

Now the lay reader, while recognizing this indignation as righteous, may be oblivious of the fact, apparent at once to counsel learned in the law, that it was “tortious” as well. To charge the general merchant of Wellford with the sale of maggot-infested provisions and breach of warranty might gratify the virtuous wrath of Amos and contain elements of fundamental truth, but was not likely, whatever its moral justification, to prosper the commercial interests of Caleb; nor can it truthfully be said that it was so designed. And then there was the monstrous epithet of Usurer, imputing the offense described in Chapter 214 of the Code of Penal Offenses of the Commonwealth of New Hampshire as follows: —

“A person who, directly or indirectly, receives any interest, discount, or consideration upon the loan or forbearance of money, goods, or things in action, or upon the loan, use, or sale of his personal credit in anywise, . . . greater than six per centum per annum is guilty of a misdemeanor.”

Now Dunshee was by perilous escape familiar with the pains and penalties of this statute, and his flat eyes contracted evilly as possible revenges flashed on his mind. “Usurer!” he said with vicious coolness. “Do I understand you rightly, Mr. Brown, to call me a usurer? Boys, do you hear what he says ? He called me a usurer, and I wish that you should remember that word.” “Usurer, I said,” retorted Brown, “gol-dinged, white-livered skunk of a usurer! You boys get off that wall ’n’ go ’n’ tell your mothers I said ‘Usurer,’ ’n’ tell ’em not to forget it before the grange meetin’ — little withered-up usurer! — ’n’ I’ve got money enough to pay for the pleasure of sayin’ it’s often’s I wish.” The spirit of Dunshee was consumed with gall, and he abandoned the cow to her wayside cropping, where Jed, returning home shortly, found her. The boys went off whistling, and Amos, now cooling off with his horse, turned aside into his yard.

The story passed at once through the village, and the debate at the grange meeting on the topic “Is Ensilage or Orts better for Winter Fattening?” was practically abandoned for the more engrossing gossip. There could be no doubt that Dunshee would have the law on him. Hen Chapin “ allowed the man that could get around Caleb Dunshee in the law would have to move faster’n a chipping squirrel through a hole in the wall. But I d’no’s Amos’d have to pay much damages,” said he, “if ’t ain’t a state’s prison offense to slang the meanest man on the footstool. I allays thought Amos’d come to a boil ’fore long.” Roswell, the precise, was equally oracular. “I’ve see lawyers old and young,” he announced, “ ’n’ I tell ye there ain’t much about law I don’t know. Now I’d give the last piece o’ pie I hope to eat, ’n’ I like pie, — that is, I favor pie for breakfast,— ’f Mr. Dunshee’d sue Amos and Amos’d come out top o’ the heap. Not that I want to see lawin’ goin’ on ’cept it’s in the winter time when the’ ain’t much else to do, ’n’it’s allfired costly all seasons, but I do despise that Dunshee, — that is’s far’s my duty as a member o’ the Orthodox Church ’ll let me.” And so said all the Grangers in one way or another, and so said the members of the Unitarian Sewing Circle and the school trustees and the board of selectmen and the “line-fence-viewers,” and the village was expectant.

Sure as sunrising, Dunshee, after visiting his lawyer at the county seat, began an action against Amos Brown in the Superior Court for Sussex County by filing a declaration in an action for slander, bristling with “wilfully,” “malicious,” “wrongful,” “tortious,” “aforesaids,” and “ad damnums,” wherein, among other things, the offensive and damaging remarks of Amos were set forth, and other circumstances, all to the damage of the plaintiff in the sum of five thousand dollars.

Brown was not to be questioned on the subject. “ I c’n pay for my fun ’f I have to,” said he, “but I guess the jury ’ll have to fix the price,” and nothing more would he say. One night, however, he drove over the hills to Whittleboro and interviewed a retired lawyer there, and within the required time there was filed a plea to the declaration in “Dunshee vs. Brown” containing a denial of all and singular the matters alleged in the declaration except the utterance of the offensive words, which were again, as if by design, set out in haec verba, namely, to wit, etcetera; and there was an added allegation to the effect that the plaintiff was in such general evil repute and bad odor in the community that no damage could by any possibility have resulted to him, “as to all of which the defendant put himself upon the country.” Some surprise was excited in the county, where the case had now become notorious, by the subscription of the paper, “Amos Brown, defendant, pro se;” but Judge Vose, who declined to answer legal questions as being likely to sit at the trial, admitted that the defendant did not need a lawyer if he was satisfied to try the case himself.

The trial came on in January at Whittleboro. People came in on trains up and down the Cheshire branch of the B. & M. R. R.; horses, with shaggy winter coats and breath frozen on their mouths, occupied every hitching-post and crowded the square in front of the courthouse; in the courtroom the stove, surrounded by little coffin-like boxes filled with sawdust, was red, and the windows were opaque with frost. Buffalo and wolfskin coated farmers speculated on the case, and the boys ate apples and loaded the impoverished air with the flavor of “chankins” and peanuts. Interest centred on the action of Dunshee vs. Brown, and the crowd continued to increase in density until that cause was called. Dunshee appeared by a careful and pertinacious attorney; Brown pleaded in his own behalf. The jury box was filled without objection, and the trial began.

The lawyer read the pleadings to the court, called attention to the fact that the utterance of the slander was admitted, claimed that the plaintiff had a prima facie case, and asked that five thousand dollars damages be awarded to his wronged client. Judge Vose called upon the defendant, who thereupon summoned his witnesses. The first was the oldest of the boys who had viewed the affair, and against objection as to the materiality of the evidence he related all the details of the occurrence, including the awkward attempts of Dunshee to corner the refractory cow and the care with which Amos had asked the boys to remember his words.

Hen Chapin testified that “most everybody in Wellford believed Dunshee’d cheat in a trade if he wa’n’t afraid he’d be found out.” “I sh’d think Hen believes so!” said Roswell Hinds, who was on the jury, to his neighbor during a five-minute recess. “Hen was out on the mountain last fall after ginseng, and got caught in a shower just afore sundown. It rained a spell after he hit the road, and he was wetter’n a mess o’ snow. Comin’ down Kittredge hill by the slate mine he met Dunshee in his buggy carryin’ a demijohn o’ whiskey over to Doc Graves’s. Hen sorter forecast a drink, an’ he stopped ’n’ figured around the subject a little same’s a cat’ll push a mouse around before she hits it plumb to glory. Dunshee did n’t warm up to the idee, so Hen says, ‘Got anythin’ to drink there, Mr. Dunshee ?’ ‘Got some raw sperrits,’ says the old man. ‘Let’s have a drink,’ says Hen. ‘Can’t do it,’he says, ‘but I c’n sell ye one.’ That got Hen sorter het up around the gizzard, but he was on the trail o’ that drink, so he says, ‘I’ll buy it off ye,’ ’n’ he took a swig out o’ the neck. She was pretty stiff liquor, ’n’ filled Hen full o’ the sperrit o’ the Golden Rule, so he says to Dunshee to take one himself, ’n’ he did. ’N’ then I vum if the old man did n’t charge him twenty cents for two drinks, ’n’ Hen c’d ’a’ et wrought nails he was so all-fired mad.”

Jed Weymouth took the stand, but could give no testimony which Judge Vose considered material to the controversy. Some more efforts of the same kind were unsuccessfully made, and the defendant rested. The plaintiff’s lawyer claimed that not even a prima facie defense had been made out, but wished to introduce some evidence on the point of damage. He showed no special damage as a result of the slander, but he had one or two wholesale merchants from neighboring towns who swore that Dunshee was a reputable citizen and sold only honest goods, and gave testimony which was generally perfunctory.

When the testimony was finished Amos rose to his feet. “Gentlemen of the jury,” he said, “I ain’t the kind of a man to break the Ninth Commandment, ’n’ I don’t hanker to say mean things about a man even if they’re true, but I ain’t liked this man Dunshee since he moved into Wellford. Ye’ve heard what his neighbors think of him, ’n’ I’ve got a chance to tell you and him, too, what I think of him, ’n’ I’m goin’ to use it. Now perhaps I had n’t any call to give Caleb Dunshee a dressin’ down in the street, ’n’ I don’ know’s I got much excuse to offer for that, but what I do know is that nothin’ ’t I or even the minister could say about him would hurt his earthly prospects or make him out much meaner’n he is, ’n’ if I’ve got to pay for my mad I got the worth o’ some o’ my money out on it. Why, I’ve see him feed his cows on potater parin’s and sculch, ’n’ I don’t believe, to do him justice, he feeds himself ’n’ his family much better.” At this point Dunshee’s lawyer interposed with great indignation, and Judge Vose said with dignity that the counsel must confine himself to the evidence. “Can’t I even say my mind about him, judge?” said Amos. “Ain’t it the law” — and he read from a paper in his hand—“‘that counsel can characterize the actions of the parties in the subject matter of the controversy; where reputation is involved can discuss the evidence upon it, and can comment on the appearance and demeanor of witnesses’?” Judge Vose explained the law briefly, and Amos proceeded: “Well, if I can’t tell what I see him do, ye can all see here what he looks like, — the meanest little runt of a”— Judge Vose interfered with a reproof, and Amos inquired, “Can’t I comment on the appearance of the witnesses, ’n’ he was a witness ? Did n’t the court say so in Watkins vs. Gorham, 17 New Hampshire Reports? Can’t I call the jury’s attention to his mean head ’n’ his usurious little eyes ’n’ his splay ears ’n’ ” — Dunshee and his lawyer were in a frenzy, and Judge Vose had to restore order. “You may refer to his appearance and behavior on the stand so far as they indicate his credibility or throw doubt upon it,” he said, “but the Court will not permit you to refer to personal characteristics which are purely physical.” “All right, judge,” said Amos cheerfully, “but I never knew a man tell the truth whose eyes jammed right up against his nose like Dunshee’s. But I’ll be careful, ’n’ I ain’t got much to say anyhow.

“But I’ll be doggoned,” — and here Amos turned to the plaintiff, who was shifting uneasily about as on a penitential stool, — “I’ll be doggoned ’f ’t ain’t worth while to get ye up here where the whole county c’n look at ye and see how all-fired meechin’ ’n’ few in the hill the human race c’n become. Yes, judge, I know I’m addressin’ the jury. You’ve been a-sneerin’ at me ’cause I ain’t got a lawyer to charge a dollar every time he writes his name, but the jurors know ye, most of ’em do, ’n’ if Ros Hinds likes ye any better ’n the rest o’ your neighbors ye c’n be mighty glad he’s on the jury. I don’t believe Mrs. Hinds was much t’other side o’ the truth when she said you’d peel an egg to save the shell, ’n’ they ain’t a man, woman, nor child in Wellford ’ll sell eggs or butter to your store, or buy anything from ye ’thout takin’ it to the light or goin’ down to the bottom o’ the barrel.” Here Dunshee and his lawyer made another furious demonstration, but Amos waved them off, — “Privilege o’ counsel addressin’ the jury,” he said, again reading from his paper. “ ‘ Sparks vs. Bollum, 22d of New Hampshire,’—’n’ I’m most through, judge, though ’f ye’d only let me tell a few mean things he’s done right in ’n’ aroun’ the street it’d be sunup before I’d be through. I ain’t goin’ to tell how he tried to foreclose on Widder Sparhawk’s place when she did n’t pay the mortgage interest for two days ’cause the check her boy Sam sent her from Boston got lost in the mails, ’cause ye won’t let me; nor I ain’t goin’ to tell how much Canady money ’n’ light quarters gets into the Orthodox contribution box; nor I ain’t goin’ to do any more’n ask the jury to look at ye ’n’ to look at Jed Weymouth, ’n’ think o’ his sick wife ’n’ his seven children ’n’ his brindle cow. You’ve got no more soundness in your pinched-up carcass ’n a corky pippin — about as much soul and sweetness as a pignut — about as much generosity ’n’ feelin’ for others’s a crossbred hog—’n’ the same identical kindness o’ disposition as John Felch’s old ram. If ye sh’d run for office in Sussex County for anything from sheriff to highway inspector ye would n’t get votes enough to blow your shriveled nose on, ’n’ I hope the jury’ll say what they think of ye after they get out o’ the jury box if ye do win your cussed case. For as for me I believe all men were created free and equal and entitled to freedom o’ speech and the press.”

Here Amos sat down. The courtroom was in a babel of applause and the jury on an awkward grin. When the tumult could be quieted the plaintiff’s lawyer summed up in an address, in which he dwelt at length on attractive generalities: the inalienable right of the citizen to life, liberty, and the pursuit of happiness; the evil done in the world by slanderous tongues, and the “ægis,” “palladium,” etc., which the jury afforded to the wronged citizen. Then he referred, and unwisely too, to his client’s virtues: his respectability, his piety and his thrift; and tried pathos in allusions to the injured home and the hearth darkened by evil report. It was excellent Fourth Reader eloquence, and the hard-headed farmers spat on unconcerned.

In a precise charge Judge Vose then instructed the jury that the remarks of the defendant were slanderous in themselves. They were consciously made in the hearing of others, namely, the village boys, and the request of the defendant for their repetition aggravated the injury. The only question for the jury to consider was the amount of damages to be awarded, and they must consider the evidence and the remarks upon either side only so far as they related to that question. Whereupon the jury withdrew to their room, and the crowd broke into groups for discussion and prediction. The unanimous opinion was that Amos had made Dunshee squirm.

In half an hour a written request for instructions came from the jury room, and Judge Vose having been sent for, and having taken his seat, it was read to this effect: “What is the smallest amount of damages the jury can award so as to prevent the plaintiff from appealing and not to give him costs ? ” Judge Vose sent for the jury and rebuked them in language which was more severe than his tone, and there was a gratified twinkle in his mild eye as he started to put on his overcoat, again, but the foreman of the jury, before they left their seats, announced that they had agreed upon a verdict.

“ What is your verdict ? ” said the Clerk. “We find for the plaintiff,” said the foreman, “in the sum of $19.80.” And so said they all, good men and true.

Unrestrained joy reigned in the courtroom, and Amos was almost sorry for Dunshee as he drove home behind the brown colt, while the frost-nipped sun dropped over the white hills.

Ten days later there was an oyster supper at the tavern, to which Amos paid for admission and supper tickets for the nine members of the Weymouth family. No allusion to the lawsuit was publicly permitted, but Hen Chapin suggested to Amos that Dunshee and his wife be sent for. Amos negatived the proposal. “It might be kindly meant and more like it might not,” he said, “and in either case better not do it. ’T ain’t well to stroke a mad dog, ’cause he might mistake your meanin’ ’n’ bite ye, and ’tother way about ’t ain’t quite fair to throw rocks at him when he’s got a tin can to his tail. He’s got trouble enough.”