Part 13

Mr. Peyton's mind was no sybils cave whence came forth wind-driven leaves inscribed with mighty thoughts disposed by chance, but a spacious castle, from whose wide open portal issued men at arms, orderly arrayed. He had hardly opened his case when the hearer was aware that he had thought over the whole of it, had given a course to pursue, and would close when he came to the end of it. This distinctness of conception comprehended the subject as a whole, and shed its light upon each detail belonging to it. This insured the most perfect method in all that he said. Before he began to speak he had determined in his own mind, not only the order of the different parts of his discourse, but also their relative importance in producing the general impression. Hence, he was never led away by the tempting character of any peculiar topic, to expatiate upon it unduly; he did not take up matter irrelevant to the case because it might touch him personally; he never spoke for those behind the bar, nor did he neglect to secure the fruits of victory in order to pursue an adversary to utter discomfiture. He spoke as a lawyer, he spoke for the verdict, and expected to gain it by showing that he was entitled to it. Some speakers hope to accomplish their object by single, or at least, successive impulses--now a clinching argumentative question, now a burst of brilliant declamation, and now a piece of keen wit, or a rough personality. Such speakers forget, or do not know, that a jury may admire, may be diverted, and even moved, without being won. He that gains the verdict must mould, and sway, and lead, and this is to be effected by continued, persistent pressure, rather than by _tours de force_. This Mr. Peyton knew well and observed it with perfect self-command. His hearers came away satisfied with the whole, rather than treasuring up remarkable points and passages. Let it not be supposed, however, that he was a cold speaker, who treated men as mere intellectual machines, to be set in motion by the pulleys, screws and levers of logic, far from it; he understood human nature well, and knew the motive power of the feelings; but then he knew, too, that the way to excite the most effective sympathy is not to make a loud outcry, but to make a forcible exhibition of real suffering--that the best way to rouse our indignation against fraud, deceit or oppression, is not to exhort us to hate it, but to show its hatefulness. One of his most distinguished contemporaries upon the same circuit was celebrated for his powers as a criminal advocate; his manner was obviously upon the pathetic order, perhaps a trifle too declamatory. We have seen them in the same cause, and have thought that if the eloquence of Gen. Briscoe G. Baldwin flushed the countenance quicker, the earnestness of Mr. Peyton stirred the heart deeper. Of the oratory of a class of speakers by no means rare (not, however, including in his class the distinguished jurist above alluded to,) it has been well said, "declamation roars while passion sleeps," of speaking justly characterised by this line, Mr. Peyton's was the precise reverse. With him thought became passionate before the expression became glowing, as the wave swells before it crests itself with foam.

Mr. Peyton's language was forcible, pure and idiomatic. It served well as the vehicle of his thoughts, but contributed nothing to them. There is a real and legitimate advantage belonging to the masterly use of words, of which many great speakers know how to avail themselves. Mr. Peyton attempted nothing of the sort. His diction was thoroughly English, with a marked preference for the Anglo Saxon branch of the language, and his sentences came out in the most natural order with unusual clearness and vigor, but not unfrequently with a plainness that bordered upon homeliness. His style, however, was always that of speaking, as distinguished from mere conversation--a distinction which some of our modern speakers forgot, when in order to appear at their ease, they treat, with no little disregard, not only the rules of rhetoric, but the rules of grammar as well, and use words and phrases which are (to take a word from the vocabulary which we are condemning) nothing better than slang. On the contrary, there was in Mr. Peyton's style the fruit of early studies and high-bred associations, a classical tinge, extremely pleasant to the scholar, though not perhaps appreciable by those for whom he generally spoke. It must not be supposed from what has been said of his excellent method, that he resembled in this respect some of our able, but greatly tedious lawyers, who take up, in regular succession, every possible point in the case, however minute, and worry us by officiously offering help where none is needed. So far from it, he showed his consummate skill as well in what he omitted as in what he handled, and, as a general thing, his speeches were shorter in duration, and yet fuller of matter than those of his opponent. His use of figurative language was easy and natural, and not stinted; but his figures were always introduced as illustrations and not as arguments. It is not unusual to meet with a speaker who is unable to enounce distinctly the general principles he wishes to use, throw out an illustration to enable himself to pick out the principle from it, or at least to give his hearers a chance to do it for themselves; not so with Mr. Peyton. He held up the torch of illustration, not to throw a light forward to guide himself in his own investigations, but to enable those following the more readily to tread the road along with him. He had a very noticeable fondness for recurring to the primary fundamental principles of morals, and doubtless he was restrained, by his practical judiciousness, from indulging this disposition to the full. One of his favorite books was Lord Bacon's essays, and under other circumstances he might himself have been a distinguished moral essayist.

As well may be supposed, his general vein was grave. The high idea he entertained of the dignity of his profession, and the earnestness with which he gave himself to it, alike precluded either levity or carelessness. However, he was fully able, quite ready upon occasion, to avail himself of a keen wit, that was all the more effective, because it was dry and sarcastic. It occurs to us to mention an instance, well known to his circuit, not illustrative of his severity, but of his pleasantry, in a criminal prosecution. He, as prosecuting attorney, was opposed by two gentlemen of ability, whose pathos had been so great as to draw abundant tears from their own eyes. One of them, a gentleman who has since filled a distinguished national position (Hon. A. H. H. Stuart, Secretary of the Interior of the United States, 1850-53) was noted for the facility with he could cover over his brilliant eloquence with the liquid varnish of his tears. On this occasion he had been singularly lachrymose, and supported by his colleague, General, afterwards Judge Baldwin, in the same way, the sensation produced was very considerable. Mr. Peyton commenced his reply by regretting the disadvantage the Commonwealth labored under in being represented by him who was a very poor hand at crying, and certainly was not able to cry against two at a time. The ludicrousness of the expression completely neutralized the pathos of his opponents. He was not averse either to a bit of farce, now and then, as is shown by a story told of him. In a remote part of the circuit a lawyer wished to adorn a moving passage of a speech he was just rising to make, with an apposite example, and applied to Mr. Peyton, sitting beside him, to help him to the name of the man in the Bible who would have his pound of flesh. With imperturbable gravity, he answered Absalom! The effect of thus confounding Shakespeare and the Bible may be imagined.

We have said that Mr. Peyton was thoroughly furnished in every part of his profession; in one department his qualifications were peculiar and unsurpassed. Without disparagement to others, it may be said, we think, that he was the best Commonwealth's Attorney in the State of Virginia. He was the lawyer of the Commonwealth, and he treated the Commonwealth as a client, and he labored for her with the same industry, zeal and fidelity that he manifested in behalf of any other client. The oft-quoted merciful maxim of the common law, "better that ninety and nine guilty men should escape than one innocent man suffer," he interpreted as a caution to respect the rights of the innocent, and not as an injunction to clear the guilty, and he labored to reduce the percentage of rogues unwhipt of justice, as low as possible. With a clearness and force rarely equaled would he point out the necessity of punishing the guilty in order that the innocent might be safe, thus exhibiting the absolute consistency of strict justice with true mercy. So simply and earnestly would he do this, that he not only bound the consciences of the jury, but also made them feel that they were individually interested in the faithful execution of the laws. Here his clear perception of the moral principles upon which rests the penal code, and his fondness for recurring to general principles, stood him in great stead. It was delightful to hear him expatiate upon this theme, for upon no other was he more truly eloquent.

Mr. Peyton served at different times in both branches of the Legislature, but we speak not of him as a politician. Our purpose has been solely to exhibit some of the qualities which made him an eminent member and ornament of the legal profession.

SKETCH OF JOHN HOWE PEYTON,

BY

WILLIAM FRAZIER, A. M., OF YALE.

"My personal acquaintance with Mr. Peyton," says Mr. Frazier in the History of Augusta County, "commenced in October, 1824, when I entered upon the practice of my profession at the Staunton bar. He was then, as I learn from his biography, in his fifty-seventh year, and from that circumstance only, it might be inferred he had passed his climatric. Certainly nothing in his physical appearance or his forensic display betokened a decay of power, bodily or mentally.

"Yet having amassed a handsome fortune, he established himself in a beautiful home, surrounded by a large and interesting family, and he felt himself entitled to some relaxation from the arduous demands of his profession--or at least from its drudgery. He, therefore, relegated to the younger members of the bar all minor causes, in the matter of taking depositions and the like vacation duties. But for ten years following the date of my introduction to him, there was hardly an important or celebrated cause tried at the Staunton bar, whether in the State Courts or the United States Courts, without the aid and illumination of his splendid intellect; whilst also in Albemarle, Rockbridge and Bath counties, he largely participated in the like weighty causes.

"In the Supreme Court of Appeals of Virginia, his reputation throughout the State enlarged the theatre of his professional service much beyond that of his local circuit.

"I wish it were in my power to give a just and discriminating analysis of his processes in the investigation and conduct of a great cause, or even a fair description of his style of forensic argument. This much may be safely said: that he seized, by apparent intuition, upon the strong and dominating points in a case, not infrequently finding those, or some of them, buried out of sight from a scrutiny less searching than his, beneath a mass of irrelevant or conflicting testimony.

"Having thus entrenched himself in one, or a few strong positions, his array of the facts was so masterly, his presentation of them so luminous, and his arguments from them so logical, that he rarely failed to carry the tribunal with him safely and irresistibly to his conclusions. Discarding thus the minor points and less material phases of the cause from his examination and discussion, or dismissing them in a few rapid, searching sentences, his debate was conspicuous for its compactness and logical order. Accordingly, his speeches did not ordinarily exceed one hour, and even in the most complex and voluminous causes they rarely went beyond two hours. I can recall but one occasion in which he consumed nearly three hours. His style was fluent, but not of that fluency which comes of redundant words and phrases, for I have never listened to one so terse and vigorous. I think it can be said there was hardly a superfluous word, and every sentence bore upon the conclusion aimed at. It was, therefore, never a weariness to hear this great advocate, and the promiscuous audience followed his argument, his sarcasm or his invective, with as much apparent interest as did court and jury.

"It has been written of him that he was equally versed and at home in every department of the profession (unless admiralty and maritime law be excepted) but I think it was as a common law lawyer that he excelled, and that it was in the common law he found his chief delight. He was perfectly conversant with the principles of the Feudal law and immemorial usages of England as expounded by Littleton, Coke, Bacon, and all the fathers and great interpreters of English jurisprudence.

"Having come to the Bar while special pleading was yet a legal science and carefully practiced system, and before popular and not too well informed legislatures sought to 'simplify' the practice of the law by Statutes of Jeofails, he was, without doubt, one of the most practiced and expert special pleaders of his time. His naturally astute and logical mind, finding its expression through the channels of a terse and luminous style, caused his pleadings in all their stages to be master pieces of art.

"His fame as a prosecutor of the pleas of the Commonwealth has never been surpassed, if equaled, in Virginia. On this field he achieved triumphs of the most brilliant kind. His pride in his profession, and the great principles of right and justice underlying it, no less his inborn contempt for chicanery and fraud, not to speak of crime in its grosser forms, combined to make him a terror to evil doers. Some critics, even among the profession, sometimes were disposed to censure him as too harsh and unrelenting towards the prisoner at the bar, but if every circuit throughout our land possessed at this day so able, fearless and conscientious a prosecutor as did the Augusta and the surrounding circuit at that happier day in our history, perhaps we might find less cause to deplore the depreciation of the public morals, which so painfully invest the present era.

"It would be a halting and very defective sketch of this eminent jurist which failed to speak of his striking originality. Negatively speaking, there were little or no common-place and hum-drum in his forensic arguments, his debates in the Senate or his addresses from the hustings to his constituents. In a positive sense, his speeches, at least on great occasions, and when his powers were thoroughly roused, rarely failed to be marked by some flash of genius. I recall a conversation just after the close of a protracted and laborious term of the Augusta Circuit Court, in which the late Judge Lucas P. Thompson and Gen. Briscoe G. Baldwin bore the leading parts. The last named was paying generous tribute to Mr. Peyton's force and originality. Judge Thompson remarked, that he had never seen Mr. Peyton go through a cause, deeply interesting and moving him, in which he did not utter some view or sentiment illuminated by genius, or, at the least, some illustration marked by a bold originality, and he instanced two causes, tried at the late term, one a civil suit and a very heavy will case, in which he made a novel and searching application of a familiar fable of Æsop. I forbear to give its details, because both the critic and his subject have passed from earth.

"In the same cause, three signatures were to be identified and proved, that of the testator and also of the two attesting witnesses, all three having died since their attestation. Many witnesses were called to prove the genuineness of the three names. Opposing counsel sought to badger the witnesses, by urging them to specify what peculiar marks there were in the handwriting and signatures, whereby they could speak positively as to their identity and genuineness. This, of course, for the most part they could not do, and in the argument of the cause before the jury, the same counsel strove to throw discredit and contempt upon those witnesses (all men of good character) for their failure and inability so to describe the quality and the peculiar marks and the calligraphy of the signers as to show they were familiar with their handwriting. In his reply to those sallies of his opponents, Mr. Peyton swept away the whole airy fabric by a single happy illustration:

"'Gentlemen,' he said, 'you have often been assembled in crowds upon some public or festive occasion. Your hats have been thrown pell-mell in a mass with perhaps a hundred other hats, all having a general resemblance. Suppose you had attempted to describe your hat to a friend or servant, so that he might go and pick it out for you. It has as many points, for description as a written signature--its color, height of crown, width of band, lining, &c. Do you think that a friend or servant could, by any possibility, have picked out your hat for you? And yet when you went yourself, the moment your eye would light upon it, you instantly recognize it among a hundred or five hundred hats. Familiarity with it has stamped its picture on your mind, and the moment you see it, the hat fills and fits the picture in your mind, as perfectly as the same hat fits your head.'

"The jury were evidently won, and gave full credence to the ridiculed witnesses.

"The other instance during the same term (cited by Judge Thompson,) occurred in the celebrated prosecution of Naaman Roberts for forgery--in forging the name of Col. Adam Dickinson to a bond for $600.00.

"The body of the bond was confessedly the handwriting of the prisoner at the bar. That was admitted. The signature was a tolerably successful attempt at imitating the peculiar handwriting of Adam Dickinson. But no expert could look at the whole paper and fail to see a general resemblance between the body of the instrument and the signature, raising a strong conviction in the mind that both proceeded from the same hand.

"The defense strongly insisted upon excluding the body of the instrument from the view of the witness, by covering it with paper or turning it down, and so confining the view to the signature only--upon the familiar doctrine of the law of evidence forbidding a comparison of various handwritings of the party as a ground for an opinion upon the identity, or genuineness of the disputed writing. And this point was ably and elaborately argued by the prisoner's counsel.

"The learned prosecutor met it thus:

"'Gentlemen, this is one entire instrument, not two or more brought into comparison. Let me ask each one of you, when you meet your friend, or when you meet a stranger, in seeking to identify him; what do you look at? Not his nose, though that is the most prominent feature of the human face; not at his mouth, his chin, his cheek; no, you look him straight in the eye, so aptly called "the window of the soul," you look him in the eye, but at the same time you see his whole face. Now put a mask on that face, leaving only the eyes visible, as the learned counsel would have you mask the face of this bond, leaving to your view only the fatal signature. If that human face, so masked, was the face of your bosom friend, could you for a moment identify him, even though permitted to look in at those windows of his soul? No; he would be as strange to you as this accursed bond has ever been strange to that worthy gentleman, Col. Adam Dickinson, but a glance at whose face traces the guilty authorship direct to the prisoner at the bar.'

"This most striking illustration seemed to thrill the whole audience, as it virtually carried the jury.

"Mr. Peyton never was a politician. His taste and predilection lay not in that direction. But no man was better informed of the course of public affairs, or had a keener insight into the character or motives of public men. Once, and so far as I knew, once only, did he participate in the debates of a Presidential canvass. It was the memorable one of 1840, and the speech was delivered from the Albemarle hustings. His analysis of the political character of Martin Van Buren, and his delineation of his public career from his desertion of DeWitt Clinton, down to his obsequious ingratiation with Andrew Jackson, was incisive and masterly and all the more powerful and impressive because pronounced in a judicial rather than a partisan temper. Competent judges, long familiar with the very able harangues and debates on that rostrum, declared it one of the ablest that had been listened to by any Albemarle audience.

"Of his services in the Virginia Senate, I need only say, what every one would naturally expect, they were most valuable from their enlightened conservatism in the prevention of crude and vicious legislation. In the last session of his first term in the Senate, a vigorous effort was made for the passage of a stay-law rather than an increase of taxation.

"It hardly needs to be said that he opposed the former and sustained the latter measure with all the vigor of his honest and manly nature. Nor could he ever have looked with any patience upon that brood of enactments since his day--the stay of executions, homestead exemptions, limitations upon sales of property, _et id omne genus_, professedly passed in the interest of the poor and the laboring man, yet in fact more detrimental to that class than any other, and most damaging to the State abroad.

"Let me say, in conclusion, that the person and figure of Mr. Peyton were fine and commanding. His carriage was always erect, his head well poised on his shoulders, while his ample chest gave token of great vitality. On rising to address court or jury, there was something more than commonly impressive in his personal presence and whether clad in 'Virginia home-spun,' or English blue broadcloth with gold buttons, (and I have often seen him in both), whenever you saw him button his coat across his breast and slowly raise his spectacles to rest them on the lofty crown, you might confidently expect an intellectual treat of no mean order.

"There never was a broader contrast presented in the same person than that between Howe Peyton, the lawyer, the public prosecutor, or even the Senatorial candidate amongst the people, and the same individual in his own home. Here in the midst of his family, or surrounded by friends, the rigor of his manner relaxed, and he was the model of an affectionate husband and father, and the most genial of companions. He was 'given to hospitality,' and there was no mansion in all this favored region where it was more generously and elegantly dispensed, through many years, than at 'Montgomery Hall.'"

SKETCH OF JOHN HOWE PEYTON,

BY

JUDGE JOHN H. McCUE, B. L., UNIVERSITY OF VIRGINIA.