no more was heard of the dissenting opinion.

Of Judge Doe's personal peculiarities much has been said. He was indifferent as to his dress, regarding such trifles as polished boots as matters of no consequence. He was apparently annoyed by forms, preferring to say at the close of a session, "We will take a recess till to-morrow morning," rather than have the sheriff adjourn the court.

As has been said, he often presided at trials for murder. He evidently disliked the morbid curiosity which crowded the court room on such occasions and always endeavored to secure such a disposal of the case as would render a trial unnecessary.

Just before the trial of Hodgman for killing his wife at Greenville, Judge Doe, who was to sit as one of the two judges, called on Hon. Charles H. Burns, who was for the defense, and told him that his client was in great danger of being convicted for murder in the first degree, and that he had investigated the case and thought this ought not to be, and urged a plea of guilty in the second degree. Mr. Burns replied that his client was an intelligent man, and that his father was present and he would consult them. The young man explained to them the circumstances and claimed that the gun which caused the death of the wife, went off by accident, and refused to admit that he shot her by design, even to save his life. Mr. Burns was convinced of the truth of his statement, which need not be further explained, and told Judge Doe that his client would not assent to the proposition.

In the meantime, Judge Doe had represented to Mr. Barnard, the attorney general, that he was in danger of a verdict of not guilty, and urged him to accept a plea of guilty in the second degree, which Mr. Barnard likewise refused to do.

Neither of the two counsel knew of the conference with his opponent.

The trial took nearly two weeks. The jury went out in the afternoon and had not agreed

at bedtime. Mr. Burns got up about five o'clock and started for the court house to see if he could hear anything, when he met. Judge Doe. Judge Doe said: "The jury have not agreed, and won't agree, and might as well be discharged. Your client ought to plead to something, and I will give him five years. I will discharge the jury and let him change his plea. He ought to be punished, but I don't think he intended to kill his wife, but he did kill her."

Mr. Burns remonstrated against discharging the jury, and said it would be unprecedented to call in a jury at five o'clock in the morning and discharge them; that, if they did not agree by nine o'clock, it would be time enough to discharge them and talk about a compromise.

"Have you heard from the jury?" said Judge Doe.

Judge Doe. "Not a word. I don't want to hear from the jury. I have seen you. I shall protest against bringing in the jury now."

At this point, the sheriff came in and told them that the jury had agreed, and from his manner it was apparent that the verdict was an acquittal.

A short time after, Judge Doe sent a letter for Hodgman to Mr. Burns, in which in a very kind manner he gave him advice as to his future life.

The trial of the Almy case attracted a great deal of attention. Almy was indicted for killing Miss Warden at Hanover. The act was committed with a revolver, under circumstances that excited the public to an unusual degree, and was followed by the remarkable hiding by Almy in the barn owned by Miss Warden's father. Under the New Hampshire law, if the accused pleads guilty to an indictment for murder, it is the duty of the court to try the question whether it is in the first or second degree, the punishment for the former being death by hanging and, of the latter, imprisonment only.

The trial was in November, and in very cold weather. There was a great deal of

interest occasioned by the peculiar circumstances of the case, and the court room was besieged. Judge Doe ordered the windows taken out of the court room, so that there was a free access for the outdoor air. He allowed all present, who chose, to wear their hats, and everybody present wore overcoats. He himself wrapped a coarse blanket about his legs.

When the trial was nearly through, Almy expressed some fear that, if the finding of the two judges was that he was only guilty of the second degree, he would be lynched. Judge Doe caused him to be asked if he would waive the right to be present when the sentence was announced. Almy gladly assented and, in consequence thereof, before anyone of the crowd had any knowledge of the intended departure, he was well on his way to Concord.

The court found Almy guilty of the first degree and handed the sentence of death to the clerk, directing that a certified copy be read to Almy in the State Prison at Concord, which was subsequently done.

Unquestionably, the idea of the chief justice was to effect another reform in the procedure of the State, and thereby avoid the sensational scene, so eagerly sought for by many persons of morbid appetite. That the Supreme Court of the State would have sustained this ruling, and held that the accused could waive the antiquated form of English law, which required that he should be asked what he had to say why sentence should not be pronounced, at a time when nothing that he could say would have any effect, as well as waive a jury trial by pleading guilty, there is no doubt. Indeed, there is no reason to suppose that Almy had any desire to raise that question. But the decision of the Supreme Court in Bell v. United States, 140 U. S. 118, had undoubtedly escaped Judge Doe's notice. When it was brought to his attention, after some effort to induce the counsel for Almy to move for a rehearing, the attorney general filed a motion

to bring the prisoner into court again, the term not having been finally adjourned. This was done and, after a rehearing, which had been asked for by the defense after the order was made to bring him in, the prisoner was sentenced anew with the usual formalities and subsequently executed. A paper written by Judge Doe, in which he analyzed the evidence and showed how the result was reached by the court, was given to the counsel for the defense, and shows very clearly the working of his mind.

Although Judge Doe was a man of great quickness of perception, usually preceding, rather than following, the words of the person addressing the court, he listened with great patience and apparent close attention to the arguments on questions of law. He took copious notes during oral arguments, often to the great satisfaction of the counsel, who supposed that his points were appreciated. His notes, which he always preserved with the papers in the case, were not, however, simply a statement of the suggestions of counsel, but very frequently, when he did not assent to the propositions, there would follow his answer to the argument prefaced by, "Doe says." He did not, however, interrupt counsel in argument in a way calculated to confuse, though he would sometimes make a suggestion intended to direct the argument to what he regarded as a vital point.

He claimed to be indifferent to the opinion of others and was wont to declare that he never read the newspapers. Probably this was "a figure of speech," as it would not do to presume on his ignorance of the important events of the day. He was not a reader of current literature, but on any subject on which his duties as a judge required him to be informed he was sure to be master of all that was essential before he announced his result. It is said that he devoted six months to the study of theology before writing his opinion in Hale v. Ever

ett.

As has been said already, when he desired,

he could be terse and pointed in his expressions. Perhaps this article could not be brought to a more appropriate close than by quoting his will in full. Not more than three or four words could be omitted, and yet it expresses plainly his intention. It should be added that the first clause is made necessary by a statute of New Hampshire.

"I, Charles Doe of Rollinsford, N. H., make this my last will and testament.

N the year 1857 it became necessary to take my deposition de bene esse in the city of New York as a witness in the Parish will case. I knew nothing of the matter in issue, but my testimony was required for the purpose of impeaching, on a collateral point, one of the witnesses for the proponents of the disputed codicils. Mr. O'Conor, the leading counsel, on behalf of the contestants, desired to see me prior to my examination, and in order that our interview might be free from interruption, it was arranged that Mr. Robert J. Dillon, with whom I had been previously in communication respecting the case, should join me at Mr. O'Conor's house, and that we should dine there together. During dinner the conversation naturally turned on the subject matter of the litigation. It appeared from Mr. O'Conor's statement, that Mr. Parish, the testator, a wealthy retired merchant, was, in the year 1849, stricken with paralysis, which deranged his intellect and reduced him to a condition of utter dementia from which he never recovered, though he survived the attack for six years. That after this attack he never uttered a distinguishable word, never wrote a syllable, and, though a dictionary was placed at his service that he might, by referring to it, util

ize it as a substitute for vocal language, he never used it. That alphabetical letter blocks provided for the same. purpose, proved equally unavailing. That his only vocabulary, if such it could be called, consisted of two inarticulate sounds, accompanied at times by incomprehensible gestures, and that his whole demeanor indicated a total absence of intelligence, yet that while in this condition two codicils had been added to his will giving to his wife a much larger interest in his property than the very generous provision he had made for her in that instrument which was executed when he was unquestionably of sound and disposing mind. That she was the only authoritative interpreter of the sounds and signs which he was in the habit of making, and her interpretation of these supposed symbols of his thoughts and wishes was always such as to create a favorable impression of his intelligence on the minds of various highly respectable and influential visitors who were permitted to see Mr. Parish and to receive his alleged communications through the medium of her interpretation, and who subsequently appeared as witnesses for the proponent. Thus, if the president of the Bible Society, having been presented to Mr.

Parish, was informed by Mrs. Parish that what he had just heard and seen was an expression of Mr. Parish's desire to give fifty dollars to the society, and that when an announcement was made under like circumstances to the rector of Grace Church, that Mr. Parish had intimated a wish to contribute liberally to the "building fund," each of these gentlemen would naturally be inclined to take a favorable view of Mr. Parish's mental capacity. That in the preparation and execution of the two codicils this faculty of interpretation was very largely and liberally invoked that Mrs. Parish would suggest to the testator any gift she desired, and if he nodded assent, very well, down it went into the codicil. If he shook his head, dissentiente, it was laid aside and brought up again, and so on, until he assented.

I remarked that Mr. O'Conor's narrative reminded me of the story of the "Professor of Signs." He inquired what the story was, and I then narrated the substance of the anecdote which will be found below. Mr. O'Conor said at its close, "That just fits our case. Where can I find it?" I told him that I had read it, when a boy, in "Chambers' Journal," and that it would be found in one of the volumes between 1836 and 1840.'

On the argument of the case before the surrogate (5 vol. Parish Will Case, p. 461), Mr. O'Conor, after commenting on the interpretative process above referred to, said, "My friend, Mr. Brady, will mention a good illustration of this language of signs"; whereupon James T. Brady read as follows:

"TWO WAYS OF TELLING A STORY."

"King James VI, on removing to London, was waited on by the Spanish ambassador, a man of erudition, but who had a crotchet in his head that every country should have a professor of signs to teach him and the like of him to understand one another.

1 Chambers' Edinburgh Journal for 1836, p. 88.

The ambassador was lamenting one day, before the king, this great desideratum throughout all Europe, when the king, who was a queerish sort of man, says to him: Why, I have a professor of signs in the northernmost college in my dominions, namely at Aberdeen; but it is a great way off, perhaps six hundred miles.' 'Were it ten thousand leagues off, I shall see him,' says the ambassador, and am determined. to set out in two or three days.' The king saw he had committed himself, and writes, or causes to be written, to the University of Aberdeen, stating the case and desiring the professors to put him off in some way, or make the best of him. The ambassador arrives, is received with great solemnity, but soon began to inquire which of them had the honor to be professor of signs; and being told that the professor was absent and would return nobody could say when, says the ambassador, 'I will await his return though it were twelve months.' Seeing that this would not do, and that they had to entertain him at great expense all the while, they contrived a stratagem. There was one Geordy, a butcher, blind of one eye, a droll fellow, with much wit and roguery about him. He is got, told the story, and instructed to be a professor of signs, but not to speak on pain of death. Geordy undertakes it. The ambassador is now told that the professor of signs would be at home next day, at which he rejoiced greatly. Geordy is gowned, wigged, and placed in a chair of state in a room of the college, all the professors and the ambassador being in the adjoining room. The ambassador is now shown into Geordy's room, and left to converse with him as well as he could, the whole professors waiting the issue with fear and trembling. The ambassador holds up one of his fingers to Geordy; Geordy holds up two of his. The ambassador holds up three; Geordy clenches his fist and looks stern. The ambassador then takes an orange from his pocket, and holds it up;

་

Geordy takes a piece of barley cake from his pocket and holds that up. After which the ambassador bows to him, and retires to the other professors, who anxiously inquire his opinion of their brother. He is a perfect miracle,' says the ambassador; I would not give him for the wealth of the Indies.' 'Well,' say the professors, to descend to particulars.' 'Why,' said the ambassador, 'I first held up one finger, denoting that there is but one God; he held up two, signifying that there are the Father and Son; I held up three, meaning the Holy Trinity; he clenched his fist, to say that these three are one. I then took out an orange, signifying the goodness of God, who gives his creatures not only the necessaries but the luxuries of life; upon which the wonderful man presented a piece of bread, showing that it was the staff of life and preferable to every luxury.' The professors were glad that matters had turned out so well; so having got quit of the ambassador, they next got Geordy, to hear his version of the signs. Well, Geordy, how have you come on, and what do you think of yon man?' 'The rascal,' said Geordy, 'what did he do first, think you? He held up one finger as much as to say, you have only one eye. Then I held up two, meaning that my one eye was perhaps as good as both his. Then the fellow held up three of his fingers, to say that there were but three eyes between us; and then I was so mad at the scoundrel that I steeked my nieve, and wanted to come a whack on the side of his head, and would ha' done it too but for your sakes. Then the rascal did not stop with his provocation there, but, forsooth, takes out an orange, as much as to say, your poor beggarly country cannot produce that. I showed him a whang of a bear bannock, meaning that I did na' care a farthing for him or his trash neither, as long as I hae this! But by a' that's guid,' concluded Geordy, I'm angry yet that I didna' thrash the hide of the scoundrel!'

46

McDiarmid's Scrap Book" is given as the source from which the above is taken. I only recently discovered that this amusing story, as it appears in its comparatively modern. garb, with various changes introduced into the original narrative, and various incidents added to it, was plagiarized in substance from the old civilian Accursius, one of the commentators of the corpus juris civilis, who lived in the twelfth century.

In treating of the origin of the Twelve Tables of the Roman Law, he tells us of the appointment of ten envoys (the decemvirs) by the Roman People, who were directed to proceed to Athens and there obtain a copy of the laws of Solon. On their arrival at Athens the Athenians were unwilling to permit them to do so until they had first ascertained if the Romans were sufficiently intelligent to be worthy of receiving this favor. In order to satisfy themselves. on this point, they dispatched a certain learned Greek to Rome to make the necessary investigations. When this was known at Rome, it was decided that as soon as this learned Greek should arrive, they would make a laughing-stock of him and of those who had sent him. Accordingly, as soon as he made his appearance, they sent to meet him a certain Roman simpleton-but let Accursius tell his story in his own words:

"Et sic objecerint illi quendam Stultum Romanum ad hoc, ut ille sapiens Græcus disputaret cum illo Stulto et derisus recederet. Qui sapiens Græcus credens illi sibi objectum esse sapientem, cœpit cum eo disputare nutu et signis; et elevavit unum digitum, significans in corde suoquod unus esset Deus. At ille Stultus credebat, quòd volebat sibi eruere unum oculum cum illo digito, et ipse elevavit duos digitos et etiam pollicem (et sic tres,) dicens in corde suo, quòd si tu

vis mihi eruere unum oculum, ego erueram tibi duos oculos. Sed ille Græcus credebat quòd Stultus ille intelligebat de Trinitate. Deinde sapiens Græcus ostendit illi Stulto manum oper