Читать книгу: «Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844», страница 3

When twelve men have been found, they are sworn to give a true verdict "according to the evidence," and the jury are then ready to hear the merits of the case. To fix their attention the closer to the facts which they are impannelled and sworn to try, the indictment, in cases of importance, is usually opened by the junior counsel for the crown—a proceeding, by which they are briefly informed of the charge which is brought against the accused. The leading counsel for the crown then lays the facts of the case before the jury, in a plain unvarnished statement; no appeal is made to the passions or prejudices of the twelve men, who are to pronounce upon the guilt or innocence of the accused; but every topic, every observation, which might warp their judgment, or direct their attention from the simple facts which are about to be proved before them, is anxiously deprecated and avoided by the counsel for the prosecution. The witnesses for the crown are called one by one, sworn, examined, and cross-examined by the accused, or his counsel. When the case for the crown has been brought to a close, the defence commences, and the counsel for the defendant addresses the jury. It is the duty of the advocate, on such an occasion, to put forth all his powers in behalf of his client; to obtain acquittal is his object: he must sift the hostile evidence, he must apply every possible test to the accuracy of the testimony, and to the credibility of the witnesses; he may address himself to the reason, to the prejudices, to the sympathies, nay, even to the worst passions of the twelve men whose opinions he seeks to influence in favour of his client. He may proceed to call witnesses to disprove the facts adduced on the other side, or to show that the character of the accused stands too high for even a suspicion of the alleged clime; he has the utmost liberty of speech and action He may indefinitely protract the proceedings, and there seems to be scarcely any limit, in point of law, beyond which the ultimate event of the trial may not be, by these means, deferred. Whenever the defence closes, in those cases in which the government is the real prosecutor, the representative of the crown has the general reply; at the close of which the presiding judge sums up the evidence to the jury, and informs them of the legal bearing of the facts, on the effect and existence of which the jury has to decide. This having been accomplished, it becomes the duty of the jury to deliberate, decide, and pronounce their verdict. If the verdict be "Not guilty," the accused is for ever quit and discharged of the accusation; but if the jury pronounce him guilty, he stands convicted of the crime which has been thus charged and proved against him, and awaits the judgment of the court. In felonies and ordinary misdemeanours, judgment is generally pronounced immediately upon, or soon after, the delivery of the verdict; in other cases, when the trial has been had before the Queen's Bench, the judgment may, in England, be pronounced either immediately or during the ensuing term. But whenever this event occurs, the prisoner has still one chance more for escape: he can move an arrest of judgment, on the grounds either that the indictment is substantially defective, or that he has already been pardoned or punished for the same offense. These objections, if successful, will, even at this late stage of the proceedings, save the defendant from the consequences of his crime. But if these last resources fail, the court must give the judgment, or pronounce the measure of that punishment, which the law annexes to the crime of which the prisoner has been convicted.

By the law of this country, the species of punishment for every offence is always ascertained; but, between certain defined limits, the measure and degree of that punishment is, with very few exceptions, left to the discretion of the presiding judge. Treasons and some felonies are, indeed, capital: but, in the mercy of modern times, the great majority of felonies, and all misdemeanours, are visited, some with various terms of transportation or imprisonment, which, in most cases, may be with or without hard labour, at the discretion of the court. In these cases, the punishment is prescribed by the statute law; but there are some misdemeanours the punishment of which has not been interfered with by any statute, and to which, therefore, the common law punishments are still attached. The case of Mr O'Connell, which is now in abeyance, seems to range itself under this head of misdemeanours. Such cases are punishable by fine or imprisonment, or by both; but the amount of the one, or the duration of the other, is each left at large to be estimated by the court, according to the more or less aggravated nature of the offence, and, as it is said, also according to the quality and condition of the parties. That a fine should, in all cases, be reasonable, has been declared by Magna Charta; and the Bill of Rights has also provided, that excessive fine, or cruel and unusual punishments, should not be inflicted; but what may or may not be unreasonable or excessive, cruel or unusual, is left entirely to the judgment of the executive.

For crimes of a dark political hue, which, by their tendency to subvert the government or destroy the institutions of the country, necessarily assume a character highly dangerous to the safety and well-being of the state, it might be difficult to say what degree of punishment would be excessive or unusual. It seems probable, that in cases of this nature, which include crimes, so varied in their circumstances that there appears no limit to the degree of guilt incurred—crimes, the nature and character of which could not possibly be foreseen or provided for, in all their infinite multiplicity of detail; it seems probable that, in such cases, a large discretion may have been purposely left by the framers of our constitution, in order that the degree of guilt, on each occasion, should be measured by an expansive self-adjusting scale of punishment, applied, indeed, and administered by the judges of the land, but regulated and adjusted, in each succeeding age, by the influence of public opinion, and by the spirit and temper of the times.

Even at this latest stage of criminal prosecution, in the interval which must necessarily elapse between the pronouncing and the infliction of the sentence, the convicted delinquent is not without a remedy for any wrong he may sustain in the act which terminates the proceedings. If any judgement not warranted by law be given by the court, it may be reversed upon a writ of error, which lies from all inferior criminal jurisdictions to the Queen's Bench, and from the Queen's Bench to the House of Peers. These writs, however, in cases of misdemeanour, are not allowed, of course, but on probable cause shown to the Attorney General; and then they are understood to be grantable of common right, and ex debito justitiæ. The crown, if every other resource has failed the prisoner, has always the power of exercising the most amiable of its prerogatives. Though the sovereign herself condemns no man, "the great operation of her sceptre is mercy," and the chief magistrate, in the words of Sir William Blackstone, "holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment," is ever at liberty to grant a free, unconditional, and gracious pardon to the injured or repentant convict.

We have now rapidly traced the progress of a criminal prosecution from its commencement to its close, and we have given a summary of the ordinary proceedings on such occasions. Although it may be possible that the practice of the courts in Ireland on minor points, should occasionally differ in some degree from the practice of the English Courts, we may, nevertheless, have rendered the proceedings now pending in the sister isle, more intelligible to the general reader, who may now, perhaps, be enabled to see the bearing, and understand the importance of many struggles, which, to the unlearned, might probably appear to be wholly beside the real question now at issue between the crown and Mr O'Connell. Whatever be the result of that prosecution, whether those indicted be found guilty, or acquitted, of the misdemeanours laid to their charge; we feel assured, on the one hand, however long and grievous may have been the "provocation," that while there will be "nothing extenuate," neither will there be "set down aught in malice;" but that the measure of the retribution now demanded by the state, will be so temperately and equitably adjusted, that while the very semblance of oppression is carefully avoided, the majesty of the law, and the powers of the executive, will be amply and entirely vindicated. On the other hand, if Mr O'Connell, and his companions, in guilt or misfortune, should break through the cobwebs of the law, and hurl a retrospective defiance at the Government; we feel the utmost confidence, that the learning, foresight, and ability, of the eminent lawyers who represent the crown, together with the firmness and integrity of the Irish bench, "sans peur et sans reproche," will demonstrate to the millions who look on, that the constitutional powers of the state still remain uninjured and unimpaired in all their pristine and legitimate energy and vigour; and that neither in the machinery now set in motion, nor with those who conduct or superintend its action, but with others on whom, in the course of these proceedings, will be thrown the execution of a grave and all-important duty, must rest the real blame, if blame there be, of the failure of this "State Prosecution."

ADVENTURES IN TEXAS.
No. III.
THE STRUGGLE

I had been but three or four months in Texas, when, in consequence of the oppressive conduct of the Mexican military authorities, symptoms of discontent showed themselves, and several skirmishes occurred between the American settlers and the soldiery. The two small forts of Velasco and Nacogdoches were taken by the former, and their garrisons and a couple of field-officers made prisoners; soon after which, however, the quarrel was made up by the intervention of Colonel Austin on the part of Texas, and Colonel Mejia on the part of the Mexican authorities.

But in the year '33 occurred Santa Anna's defection from the liberal party, and the imprisonment of Stephen F. Austin, the Texian representative in the Mexican congress, by the vice-president, Gomez Farias. This was followed by Texas adopting the constitution of 1824, and declaring itself an independent state of the Mexican republic. Finally, towards the close of 1835 Texas threw off the Mexican yoke altogether, voted itself a free and sovereign republic, and prepared to defend by arms its newly asserted liberty.

The first step to be taken was, to secure our communications with the United States by getting possession of the sea-ports. General Cos had occupied Galveston harbour, and built and garrisoned a block-fort, nominally for the purpose of enforcing the customs laws, but in reality with a view to cut off our communications with New Orleans and the States. This fort it was necessary to get possession of, and my friend Fanning and myself were appointed to that duty by the Alcalde, who had taken a prominent part in all that had occurred.

Our whole force and equipment wherewith to accomplish this enterprise, consisted in a sealed despatch, to be opened at the town of Columbia, and a half-breed, named Agostino, who acted as our guide. On reaching Columbia, we called together the principal inhabitants of the place, and of the neighbouring towns of Bolivar and Marion, unsealed the letter in their presence, and six hours afterwards the forces therein specified were assembled, and we were on our march towards Galveston. The next day the fort was taken, and the garrison made prisoners, without our losing a single man.

We sent off our guide to the government at San Felipe with news of our success. In nine days he returned, bringing us the thanks of congress, and fresh orders. We were to leave a garrison in the fort, and then ascend Trinity river, and march towards San Antonio de Bexar. This route was all the more agreeable to Fanning and myself, as it would bring us into the immediate vicinity of the haciendas, or estates, of which we had some time previously obtained a grant from the Texian government; and we did not doubt that we were indebted to our friend the Alcalde for the orders which thus conciliated our private convenience with our public duty.

As we marched along we found the whole country in commotion, the settlers all arming, and hastening to the distant place of rendezvous. We arrived at Trinity river one afternoon, and immediately sent messengers for forty miles in all directions to summon the inhabitants. At the period in question, the plantations in that part of the country were very few and far between, but nevertheless by the afternoon of the next day we had got together four-and-thirty men, mounted on mustangs, each equipped with rifle and bowie-knife, powder-horn and bullet-bag, and furnished with provisions for several days. With these we started for San Antonio de Bexar, a march of two hundred and fifty miles, through trackless prairies intersected with rivers and streams, which, although not quite so big as the Mississippi or Potomac, were yet deep and wide enough to have offered serious impediment to regular armies. But to Texian farmers and backwoodsmen, they were trifling obstacles. Those we could not wade through we swam over; and in due time, and without any incident worthy of note, reached the appointed place of rendezvous, which was on the river Salado, about fifteen miles from San Antonio, the principal city of the province. This latter place it was intended to attack—an enterprise of some boldness and risk, considering that the town was protected by a strong fort, amply provided with heavy artillery, and had a garrison of nearly three thousand men, commanded by officers who had, for the most part, distinguished themselves in the revolutionary wars against the Spaniards. Our whole army, which we found encamped on the Salado, under the command of General Austin, did not exceed eight hundred men.

The day after that on which Fanning and myself, with our four and thirty recruits, reached headquarters, a council of war was held, and it was resolved to advance as far as the mission of Santa Espada. The advanced guard was to push forward immediately; the main body would follow the next day. Fanning and myself were appointed to the command of the vanguard, in conjunction with Mr Wharton, a wealthy planter, who had brought a strong party of volunteers with him, and whose mature age and cool judgment, it was thought, would counterbalance any excess of youthful heat and impetuosity on our part. Selecting ninety-two men out of the eight hundred, who, to a man, volunteered to accompany us, we set out for the mission.

These missions are a sort of picket-houses or outposts of the Catholic church, and are found in great numbers in all the frontier provinces of Spanish America, especially in Texas, Santa Fe, and Cohahuila. They are usually of sufficient strength to afford their inmates security against any predatory party of Indians or other marauders, and are occupied by priests, who, while using their endeavours to spread the doctrines of the Church of Rome, act also as spies and agents of the Mexican government.

On reaching San Espada we held a discussion as to the propriety of remaining there until the general came up, or of advancing at once towards the river. Wharton inclined to the former plan, and it was certainly the most prudent, for the mission was a strong building, surrounded by a high wall, and might have been held against very superior numbers. Fanning and I, however, did not like the idea of being cooped up in a house, and at last Wharton yielded. We left our horses and mustangs in charge of eight men, and with the remainder set out in the direction of the Salado, which flows from north to south, a third of a mile to the westward of the mission. About half-way between the latter and the river, was a small group, or island, of muskeet trees, the only object that broke the uniformity of the prairie. The bank of the river on our side was tolerably steep, about eight or ten feet high, hollowed out here and there, and covered with a thick network of wild vines. The Salado at this spot describes a sort of bow-shaped curve, with a ford at either end, by which alone the river can be passed, for although not very broad, it is rapid and deep. We resolved to take up a position within this bow, calculating that we might manage to defend the two fords, which were not above a quarter of a mile apart.

At the same time we did not lose sight of the dangers of such a position, and of the almost certainty that if the enemy managed to cross the river, we should be surrounded and cut off. But our success on the few occasions on which we had hitherto come to blows with the Mexicans, at Velasco, Nacogdoches, and Galveston, had inspired us with so much confidence, that we considered ourselves a match for thousands of such foes, and actually began to wish the enemy would attack us before our main body came up. We reconnoitred the ground, stationed a picket of twelve men at each ford, and an equal number in the island of muskeet trees; and established ourselves with the remainder amongst the vines and in the hollows on the river bank.

The commissariat department of the Texian army was, as may be supposed, not yet placed upon any very regular footing. In fact, every man was, for the present, his own commissary-general. Finding our stock of provisions to be very small, we sent out a party of foragers, who soon returned with three sheep, which they had taken from a rancho, within a mile of San Antonio. An old priest, whom they found there, had threatened them with the anger of Heaven and of General Cos; but they paid little attention to his denunciations, and, throwing down three dollars, walked off with the sheep. The priest became furious, got upon his mule, and trotted away in the direction of the City to complain to General Cos of the misconduct of the heretics.

After this we made no doubt that we should soon have a visit from the worthy Dons. Nevertheless the evening and the night passed away without incident. Day broke—still no signs of the Mexicans. This treacherous sort of calm, we thought, might forbode a storm, and we did not allow it to lull us into security. We let the men get their breakfast, which they had hardly finished when the picket from the upper ford came in with news that a strong body of cavalry was approaching the river, and that their vanguard was already in the hollow way leading to the ford. We had scarcely received this intelligence when we heard the blare of the trumpets, and the next moment we saw the officers push their horses up the declivitous bank, closely followed by their men, whom they formed up in the prairie. We counted six small squadrons, about three hundred men in all. They were the Durango dragoons—smart troops enough to all appearance, capitally mounted and equipped, and armed with carbines and sabres.

Although the enemy had doubtless reconnoitred us from the opposite shore, and ascertained our position, he could not form any accurate idea of our numbers, for with a view to deceive him, we kept the men in constant motion, sometimes showing a part of them on the prairie, then causing them to disappear again behind the vines and bushes. This was all very knowing for young soldiers such as we were; but, on the other hand, we had committed a grievous error, and sinned against all established military rules, by not placing a picket on the further side of the river, to warn us of the approach of the enemy, and the direction in which he was coming. There can be little doubt that if we had earlier notice of their approach, thirty or forty good marksmen—and all our people were that—might not only have delayed the advance of the Mexicans, but perhaps even totally disgusted them of their attempt to cross the Salado. The hollow way on the other side of the river, leading to the ford, was narrow and tolerably steep, and the bank was at least six times as high as on our side. Nothing would have been easier than to have stationed a party, so as to pick off the cavalry as they wound through this kind of pass, and emerged two by two upon the shore. Our error, however, did not strike us till it was too late to repair it; so we were fain to console ourselves with the reflection that the Mexicans would be much more likely to attribute our negligence to an excess of confidence in our resources, than to the inexperience in military matters, which was its real cause. We resolved to do our best to merit the good opinion which we thus supposed them to entertain of us.

When the whole of the dragoons had crossed the water, they marched on for a short distance in an easterly direction: then, wheeling to the right, proceeded southward, until within some five hundred paces of us, where they halted. In this position, the line of cavalry formed the chord of the arc described by the river, and occupied by us.

As soon as they halted, they opened their fire, although the could not see one of us, for we were completely sheltered by the bank. Our Mexican heroes, however, apparently did not think it necessary to be within sight or range of their opponents before firing, for they gave us a rattling volley at a distance which no carbine would carry. This done, others galloped on for about a hundred yards, halted again, loaded, fired another volley, and then giving another gallop, fired again. They continued this sort of manège till they found themselves within two hundred and fifty paces of us, and then appeared inclined to take a little time for reflection.

We kept ourselves perfectly still. The dragoons evidently did not like the aspect of matters. Our remaining concealed, and not replying to their fire, seemed to bother them. We saw the officers taking a deal of pains to encourage their men, and at last two squadrons advanced, the others following more slowly, a short distance in rear. This was the moment we had waited for. No sooner had the dragoons got into a canter, than six of our men who had received orders to that effect, sprang up the bank, took steady aim at the officers, fired, and then jumped down again.

As we had expected, the small numbers that had shown themselves, encouraged the Mexicans to advance. They seemed at first taken rather aback by the fall of four of their officers; but nevertheless, after a moment's hesitation, they came thundering along full speed. They were within sixty or seventy yards of us, when Fanning and thirty of our riflemen ascended the bank, and with a coolness and precision that would have done credit to the most veteran troops, poured a steady fire into the ranks of the dragoons.

It requires some nerve and courage for men who have never gone through any regular military training, to stand their ground singly and unprotected, within fifty yards of an advancing line of cavalry. Our fellows did it, however, and fired, not all at once, or in a hurry, but slowly and deliberately; a running fire, every shot of which told. Saddle after saddle was emptied; the men, as they had been ordered, always picking out the foremost horsemen, and as soon as they had fired, jumping down the bank to reload. When the whole of the thirty men had discharged their rifles, Wharton and myself, with the reserve of six and thirty more, took their places; but the dragoons had almost had enough already, and we had scarcely fired ten shots when they executed a right-about turn, with an uniformity and rapidity which did infinite credit to their drill, and went off at a pace that soon carried them out of reach of our bullets. They had probably not expected so warm a reception. We saw their officers doing every thing they could to check their flight, imploring, threatening, even cutting at them with their sabres, but it was no use; if they were to be killed, it must be in their own way, and they preferred being cut down by their officers to encountering the deadly precision of rifles, in the hands of men who, being sure of hitting a squirrel at a hundred yards, were not likely to miss a Durango dragoon at any point within range.

Our object in ordering the men to fire slowly was, always to have thirty or forty rifles loaded, wherewith to receive the enemy should he attempt a charge en masse. But our first greeting had been a sickener, and it appeared almost doubtful whether he would venture to attack us again, although the officers did every thing in their power to induce their men to advance. For a long time, neither threats, entreaties, nor reproaches produced any effect. We saw the officers gesticulating furiously, pointing to us with their sabres, and impatiently spurring their horses, till the fiery animals plunged and reared, and sprang with all four feet from the ground. It is only just to say, that the officers exhibited a degree of courage far beyond any thing we had expected from them. Of the two squadrons that charged us, two-thirds of the officers had fallen; but those who remained, instead of appearing intimidated by their comrades' fate, redoubled their efforts to bring their men forward.

At last there appeared some probability of their accomplishing this, after a most curious and truly Mexican fashion. Posting themselves in front of their squadrons, they rode on alone for a hundred yards or so, halted, looked round, as much as to say—"You see there is no danger as far as this," and then galloping back, led their men on. Each time that they executed this manoeuvre, the dragoons would advance slowly some thirty or forty paces, and then halt as simultaneously as if the word of command had been given. Off went the officers again, some distance to the front, and then back again to their men, and got them on a little further. In this manner these heroes were inveigled once more to within a hundred and fifty yards of our position.

Of course, at each of the numerous halts which they made during their advance, they favoured us with a general, but most innocuous discharge of their carbines; and at last, gaining confidence, I suppose, from our passiveness, and from the noise and smoke they themselves had been making, three squadrons which had not yet been under fire, formed open column and advanced at a trot. Without giving them time to halt or reflect—"Forward! Charge!" shouted the officers, urging their own horses to their utmost speed; and following the impulse thus given, the three squadrons came charging furiously along.

Up sprang thirty of our men to receive them. Their orders were to fire slowly, and not throw away a shot, but the gleaming sabres and rapid approach of the dragoons flurried some of them, and firing a hasty volley, they jumped down the bank again. This precipitation had nearly been fatal to us. Several of the dragoons fell, and there was some confusion and a momentary faltering amongst the others; but they still came on. At this critical moment, Wharton and myself, with the reserves, showed ourselves on the bank. "Slow and sure-mark your men!" shouted we both. Wharton on the right and I on the left. The command was obeyed: rifle after rifle cracked off, always aimed at the foremost of the dragoons, and at every report a saddle was emptied. Before we had all fired, Fanning and a dozen of his sharpest men had again loaded, and were by our side. For nearly a minute the Mexicans remained, as if stupefied by our murderous fire, and uncertain whether to advance or retire; but as those who attempted the former, were invariably shot down, they at last began a retreat, which was soon converted into a rout. We gave them a farewell volley, which eased a few more horses of their riders, and then got under cover again, to await what might next occur.

But the Mexican caballeros had no notion of coming up to the scratch a third time. They kept patrolling about, some three or four hundred yards off, and firing volleys at us, which they were able to do with perfect impunity, as at that distance we did not think proper to return a shot.

The skirmish had lasted nearly three quarters of an hour. Strange to say, we had not had a single man wounded, although at times the bullets had fallen about us as thick as hail. We could not account for this. Many of us had been hit by the balls, but a bruise or a graze of the skin was the worst consequence that had ensued. We were in a fair way to deem ourselves invulnerable.

We were beginning to think that the fight was over for the day, when our videttes at the lower ford brought us the somewhat unpleasant intelligence that large masses of infantry were approaching the river, and would soon be in sight. The words were hardly uttered, when the roll of the drums, and shrill squeak of the fifes became audible, and in a few minutes the head of the column of infantry, having crossed the ford, ascended the sloping bank, and defiled in the prairie opposite the island of muskeet trees. As company after company appeared, we were able to form a pretty exact estimate of their numbers. There were two battalions, together about a thousand men; and they brought a field-piece with them.

These were certainly rather long odds to be opposed to seventy-two men and three officers' for it must be remembered that we had left twenty of our people at the mission, and in the island of trees. Two battalions of infantry, and six squadrons of dragoons—the latter, to be sure, disheartened and diminished by the loss of some fifty men, but nevertheless formidable opponents, now they were supported by the foot soldiers. About twenty Mexicans to each of us. It was getting past a joke. We were all capital shots, and most of us, besides our rifles, had a brace of pistols in our belts; but what were seventy-five rifles, and five or six score of pistols against a thousand muskets and bayonets, two hundred and fifty dragoons, and a field-piece loaded with canister? If the Mexicans had a spark of courage or soldiership about them, our fate was sealed. But it was exactly this courage and soldiership, which we made sure would be wanting.