Alvin Victor Sellers.

Classics of the bar, stories of the world's great jury trials and a compilation of forensic masterpieces (Volume 5) online

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remedies of the mother, three times feared, three
times provided against, and at last, happening under
the anguish of the communication made to her by
Dalton through Mrs. Richardson? Is it this, or is
it, as they put forward: that, being perfectly well,
pregnant, and about to be naturally delivered, but
not knowing who was the father of the child, and
fearing that its birth might reveal her guilt, for the
purpose of concealment she resorted to this abortion?
If it is the explanation which we lay before you,
of course this is all perfectly worthless as circum-
stantial evidence in the case. But if, on the other
hand, they have established their theory, these are
circumstances of great strength.

I pray your attention, therefore, for a moment
to the weight of the evidence. And the very first
thing to which your attention is likely to be called,
is the question: where was the motive which induced
Helen Dalton or the mother of Helen Dalton to
commit this crime of abortion? Where was the
motive to stifle the birth of life of her unborn babe
in the circumstances imputed in the libel?

My learned friend is very well aware of the impor-
tance of that part of the case, and therefore he made it
substantially the groundwork of the case, saying that
he would prove, by certain evidence more clearly
to be brought before you, that Helen Dalton stated


Classics of the Bar

that she could not tell who was the father of her
child, and to secure herself from that shame, abortion
was practiced upon her by the knowledge of some of
her family and through the instrumentality of a
low physician.

My learned brother put forward the motive and
took the issue; but having gone through with the
evidence in this part of the case, I ask you, where
is the particle of evidence, credible or incredible,
that Helen Dalton ever stated to any human being
that she did not know who was the father of her child?
From the first to the last, there is not a scintilla of
evidence from any witness, even from the most dis-
reputable and untrustworthy of them all, that Helen
Dalton ever breathed a doubt to mortal man or
woman of the paternity of her unborn babe. It was
Dalton's child, by the testimony of all, that was to
be made to be born before its time; and from the
testimony of no one, in view of the evidence, light
or dark, is there a suggestion that she ever feared
in her life that it should prove otherwise. Where
then, I ask you, does my learned brother find a
warrant for that opening which made such a lodg-
ment in your minds and in the minds of the com-
munity a fortnight ago, when this case commenced,
the assertion that she said she did not know who was
the father, and not knowing what father's face might
be painted upon its infancy she decided to destroy it?

I remind you here that they have not produced
one scrap of evidence that she ever saw the person


The Famous Case of Dalton Versus Dalton

of Sumner in her life before the middle of October.
She bore in her bosom a pregnancy of a month, or
at least of two or three weeks, before she ever saw
him in her life. I contend that nobody's suspicions
have ever dreamed that there was any colorable
pretense for the charge of an unlawful connection
with Sumner until the i6th of October, when cer-
tainly she was one or two months advanced in this
pregnancy. There is no proof which they have been
able to bring upon that point.

But I do not rest it upon the absence of evidence.
How stands the matter, so far as regards the direct
testimony? They have introduced two witnesses
who certainly are entitled to credit: Miss Snow,
a respectable young lady, and friend of Helen Dalton,
and willing to be her friend and to avow herself to
be her friend; and Mrs. Coburn, her sister, who
would know, if any human being would know, the
fact; and both declare that, to their best knowledge
and belief, Helen Dalton never saw Sumner in her
life up to the middle of October.

And now, turning again to my learned friend who
says that she declared she did not know who was the
father of her child, I ask him, as I asked before, where
was the motive to stifle this unborn babe in the birth
of life, and to add this crime of murder to all the
other incidents with which this case is connected?
Where was the motive? Do you think it probable,
Mr. Foreman I pray your attention to the evidence
do you think it probable that this young wife,


Classics of the Bar

suspected by her husband and stricken to her heart
because her husband suspected; who knew perfectly
well that she was innocent; who hoped that it might
live to be a tie and pledge to them in the days of their
reunion; who knew perfectly well that she carried in
her bosom, upon her infant's eloquent features, what
might one day testify to the legitimacy of the child,
the honor of the husband, and the virtue of the wife
do you believe that then and there she would sur-
render her body to this operation, to this peril, to
stifle and destroy her means of proof; her most elo-
quent of advocates, the most powerful means by
which a mother expecting and hoping for progeny
could look forward to restore the alienated heart of
a once loving husband, with whom she must either
live or bear no life? I turn upon him, in total absence
of proof of these alleged facts, and I ask what motive
could she have had?

I appeal, to borrow the language of the Queen of
France, when, in that great trial which terminated
with the sacrifice of her life, being accused of every-
thing else, she was accused of pandering the vices of
her son, she exclaimed, and that shriek went through
France and through Europe: "I appeal to mothers,
if it be possible!"

If it were a mere question whether abortion was
procured or not, I should leave it here; but inasmuch
as, if it were not done, if that story is as false, every
part of it, as any fabrication from the infernal world,
this whole case goes down with it, I ask you to pause



The Famous Case of Dalton Versus Dalton

a moment longer. If there was no abortion, permit
me to say, better were it for John H. Coburn, Ed-
ward O. Coburn, and Mary Hunter, if they from an
untimely birth had never seen the light, than that
they should come here and commit this great sin, if
they die without repentance and without forgive-
ness. I submit that it will follow inevitably, in every
aspect of this case, that if that story is untrue, there
is not a particle of foundation to rest their case upon
from the beginning.

I am not blaming Dalton. Do not understand me
as blaming Dalton because he brings forward their
charge of abortion. They vanquished him by it.
They made a child of him by it. They made him
believe the story. He took it as it was told to him,
and it was no folly for him to lay it before you. It
is they who fabricated it, and who by means of it
have won him to this pursuit, who are deserving of our

Now I ask you first and foremost, whether you
believe our five positive witnesses? I would not in
any ordinary case consume time upon it; but if you
bear with me, I think there is a capital distinction
between the testimony of the other side and that of
these five witnesses, who swear to matters of fact
within their own positive knowledge. If that matron
mother led that blooming and innocent child across
the street for the performance of this operation,
she knows it. If Mr. Gove was consulted about it
or counselled it either before he went West or after


Classics of the Bar

his return, he knows it perfectly. If this happened
at all, I submit to you that Dr. Calkins knows it
perfectly. And yet they all declare it to be an
absolute falsehood upon the stand.

We call Mrs. Gove who declares upon her solemn
oath in your presence, that she never advised an
operation, that she never suspected or dreamed that it
was ever charged until a late period in the history
of this case. You remember her testimony upon the
stand, and I ask you whether you believe her a willful
perjurer? Grief may have impaired her faculties
to some extent. Her memory may be occasionally
somewhat defective. Some exceptions may have
been taken as to her manner upon the stand. But
the solemnity and dignity of that Christian matron
as a witness here must, I think, have given to you
all the assurance you could desire that she meant
to tell the truth. Is there any escape for her upon
the ground of forgetfuhiess? Can it be that she could
take part in such a transaction, and not be able to
remember it? Could she have led her child to the
knife, and carried her back to a premature delivery
and have forgotten it? Gentlemen, there is no such
escape for my learned friend as this. There is the
most dreadful perjury, or she has told the truth.

Permit me to say something of Mr. Gove. He
stands before you convicted of a violation of truth
and a most deliberate perjury, if he had any agency,
direct or indirect, or if he ever suspected in his life
that the crime of abortion was committed, until he


The Famous Case of Dalton Versus Dalton

heard it in the anonymous communication of which
he has spoken.

I know very well that Mr. Gove's testimony is
liable to criticism. With this burden upon his mind,
and this long agony, I know how full his heart is.
I know, gentlemen, that he does not dismiss it from
his thoughts an hour; that it is in his prayers; that
it goes with him to his bed; that it attends him in
the streets; that it lies heavy upon his heart every-
where; that it makes him forget the proprieties of
his general character; I know that it haunts his
dreams dreams, gentlemen; he has no sleep but the
sleep which anodynes supply him; and I know very
well that in regard to the trifling matters of detail,
or concerning proprieties of conduct, Mr. Gove has
not appeared advantageously. The father has been
too strong for the citizen, in certain respects and to
a certain extent; and I need not appeal to you,
gentlemen, who may expect or fear also yourselves
to be judged, to say whether or not he would commit
a wiilful perjury upon a matter of fact like this.

Is not that a wholly delusive theory? May he not
talk imprudently or even foolishly, but yet, past the
middle of life, a man whose gray hairs give evidence
of an approach to that time when we should be
walking, thoughtful and silent, upon the solemn
shore of that vast ocean upon whose waves we are to
sail so soon, would he not put truth and good words
on board?

Is that the correct inference, that a man like

Classics of the Bar

Mr. Gove, grown up before you, a boy from the
country, of respectable and pious parentage, one of
the disciples and children of John and Charles Wes-
ley, who sings their hymns, utters their prayers
daily and nightly, comes to swear deliberately and
willfully to a falsehood? God forbid, gentlemen,
that we should thus judge one another in judgment!

I do not appeal to your charity, but I put it to
your knowledge of life, whether you cannot appre-
ciate how the father should be talkative, and forward,
and imprudent; willing to forget, or at any rate
forgetful of smaller and minute details, and yet shrink
back as if hell opened under his feet from the utter-
ance of a lie?

There is another single witness who must have
known, if anybody knew, whether this charge was
true or false, and that is Dr. Calkins. We who did
not know who he was, or care what he was, produced
him here, because we knew that whoever or whatever
he was, he would not dare to stand before the face
of that mother and child, and tell you that that
mother ever practiced abortion or assisted in it.
We called him and placed him before you, and you
know that, unless he adds to the other black list
the guilt of perjury, the charge is groundless. As
Dr. Calkins is a stranger, he was entitled to be heard
before you, and I submit to you that he is entitled to
be believed upon his oath, upon every principle of
law and common sense, until it is shown why he
should not be believed.


The Famous Case of Dalian Versus Dalton

I ask you, if there is any evidence that should
warrant you upon your oaths in saying that Dr.
Calkins has sworn to a word of untruth? My learned
brother addressed certain inquiries to ascertain
whether he had not at some other period procured
an irregular abortion. Dr. Calkins took his consti-
tutional privilege and declined to answer. What is
the inference? It is that he so respects his oath,
that he dares not answer untruly, and that he could
not answer untruly, without criminating himself, and,
therefore, he took his constitutional privileges and
declined to answer. What was to hinder him from
denying everything, but the fear of Almighty God on
the oath he had taken? And why does he stand here
and swear that he did not practice an abortion upon
Helen, but because he can truly do it?

I submit to you, that the very fact that he made
this distinction, that he claimed this constitutional
privilege in the one instance, and answered freely
hi the other instance, showed that he could negative
one inquiry as a man of conscience under oath, and
respected his oath too much to negative the other.
Although I disapprove of what we may conjecture
his practice to have been, I thank God that herein
we may see another illustration that a man may do
one wrong and yet not do another. I beg to submit
also that there is not a scrap of evidence in here that
Dr. Calkins has ever taken an infant's life, or endan-
gered a human mother.

Three witnesses, then, the only ones who have

Classics of the Bar

spoken upon the subject, declare this charge of
abortion against Helen Dalton to be false.

What becomes of this theory of abortion upon the
other side? The story is that, being well enough,
feeling herself pregnant, and not knowing who was
the father of the child, she decided to submit to this
operation, and put it to death. And upon this view
of the case, this whole operation should be con-
ducted secretly and without the knowledge of her
husband; whereas we see by his letters, she apprised
him from attack to attack, exactly or substantially
what was the matter, exactly or substantially what
they all feared, exactly or substantially what her
mother was giving in order to alleviate her pains if
the miscarriage was to happen, and after all, she con-
gratulates herself, congratulates Dalton, that she
will give him a child at last, and moots the little
playful conjugal question, "Shall it be a boy or girl?"

What do they go to next? It is said and this
brings me to an interesting and very important part
of the case that there was an intimacy between
Helen and Sumner: walks, drives, rings exchanged,
a book given, a light, frivolous, objectionable inti-
macy; and so there was.

I insist however, gentlemen, that this intimacy
which, since the days of Joseph Addison, has been
called a flirtation a vulgar, coarse word, but one
that best expresses the idea as circumstantial
evidence to prove the fact of adultery is wholly
worthless; and for this decisive reason founded



The Famous Case of Dalton Versus Dalton

upon the nature of circumstantial evidence that
it may perfectly well consist with innocence of that
great crime even though it may not consist with
propriety, with decorum, or with a proper regard to

I have the honor to submit to you that there is
no fact in all our social life better established than
this: that a young married woman may admit that
kind of intimacy and accept a certain degree of
pleasure from it, and yet at heart never be touched
for an instant by the sentiment of a dangerous love,
and start back when the proposition of crime is
intelligibly made to her, as if hell was opening under
her feet.

I submit as the result of all our observation of
life and of books our Edgeworths, our Walter
Scotts all that we have observed everywhere,
proceeds upon this distinction and reasons upon it;
every observer puts the flirt in one class and the
adulterer in another, and everybody understands that
they belong to entirely different species of characters.

We ridicule and satirize her whom we call vain,
light, coquettish; from the adulteress we turn away
with aversion and tears. We satirize one as foolish,
and turn from the other as wicked. We hold up one
as a warning to herself for her own correction; of
the other we say: "Oh no, we never mention her."
One has a right, I submit to you, gentlemen, to the
benefit of the exhortation of parents, the protection
of law, the protection of public opinion, the care of


Classics of the Bar

husband; from the other, duty, public opinion,
religion itself commands us to turn away and to tear
her from the heart, although its fibers part and its
blood follows in the effort.

Is it not a fact, gentlemen, and perfectly well
known to us all through our observation of life, that
a woman, married woman, may hover and flutter for
half a lifetime in this region of vanity, flattery, and
coquetry, and yet never dream of taking the dark
descent below? How many of them will flutter their
plumage and incline their ear to the music of flattery
and even allow it to be polluted by the whisper of a
half-suppressed warmer passion, and yet, when the
romance is broken by the solicitation of chastity,
will start and put their hands upon their ears,
and fly as if a goblin damned was revealed before

I ask you if you believe it probable that a young
wife, eighteen years of age, in the fifth month of her
marriage and the second month of her pregnancy,
modest to an extraordinary degree, as her husband
attests, a child of schools, a child of religion, has
all at once committed this great crime? If a writer
of romance should put forward such a case, would
you not say he did not understand his own foolish
business and that his case was extraordinary and
unnatural? Do you believe it probable, do you
believe it credible, that those instincts of shame,
those lessons of virtue, those lessons of childhood,
those words of the holy man by whom they had just



The Famous Case of Dalton Versus Dalton

been united in marriage, those prayers, those hymns,
those hopes, were all lost in a moment?

I admit, gentlemen, not very much accustomed to
this kind of society, probably never in her life having
received the attention and address of a young man
like this, she very naturally felt a certain degree of
pleasure in it that kind of pleasure that applies
to the head, but to which the heart which is wise
replies: Can this be joy?

But the instant she saw it was not her beauty,
or her conversation, or her manners that made the
attraction, but that the aims were lust, she resisted
and fled. If then, gentlemen, I am warranted in my
position that this series of conduct which we call
a flirtation is not circumstantial evidence of guilt
at all, this case presents the strongest possible illus-
tration of that fact.

It will not be enough for my learned brother,
when he comes to comment upon the circumstantial
evidence in this case, to say that the facts are always
and throughout consistent with the supposition of
the crime of adultery. Unless he can go further and
show that they necessarily lead to that conclusion,
and that they are utterly irreconcilable with the
hypothesis of innocence, they are worth nothing for
any purpose.

If you take the defendant's life from January
down to the last period to which the evidence in the
case has traced it, it is perfectly manifest that the
general and habitual tone of her sentiment, of her


Classics of the Bar

affection, was steadfastly for her husband, that she
loved him affectionately, deeply, constantly and
always, and although she might have been a little
influenced, her love a little suspended by this intimacy,
which she and all of us so greatly regret, yet it re-
vived again in all its original strength, the moment the
sharp realities of life brought her back again com-
pletely to herself. And I shall respectfully submit,
in the next place, that whatever your opinion may be
as to the extent to which this intimacy with Sumner
had proceeded, and how far her interest in him had
been carried, it is perfectly plain, on the evidence
introduced by the libellant himself, that it stopped
wholly short of the commission of the last great

I suppose my learned friend's argument will be
upon this point, to bring in his ecclesiastical law
books to prove that they have somewhere broached
the doctrine, that if there is proved to have been
unlawful love and opportunity, the jury may infer
the crime. I ask your Honor to instruct the jury
that whatever such authority may be quoted, we
have no such law as that in this Commonwealth.
I claim that we are not bound by it, whatever those
works may declare. They seem to be of the opinion
that where there is unlawful love and an opportunity,
adultery is necessary as a sort of chemical result.
Do they forget that there is such a thing as free will,
such a thing as conscience, such a thing as recollection
of the teachings of religion, such a thing as shame,


The Famous Case of Dalton Versus Dalton

such a thing as a point at which to stop and a point
from which to go back? They forget the inherent
virtue that pervades the nature of woman. I say
that the doctrine is old, poor, monkish, artificial,
and has never been adopted in this State, and never,
as my learned brother will present it to you, in any

They have endeavored to show that Helen Dalton
was heard to tell Mr. Dalton that he was no husband
of hers and expressing a wish as to his death.

My friend is welcome to the evidence, if he will
only quote it correctly and will make the proper use
of it. The evidence is that she was begging him not
to go, presenting to him every inducement not to go,
and even adding hi the language of frantic and
imprudent imprecation: " I hope you will get killed if
you go; for God's sake stay with me; stay with me
or you are no husband."

Is it not a fine touch of human nature in the heart?
I submit it to my learned friend and pray his com-
mentary upon it. And inasmuch as he meets my
explanation with a smile, may I be permitted to ask
him if it has not been regarded a fine touch and true
to nature in the Roman poet when he drew the
Carthagenian queen; when she had been driven
even to unsex herself in entreating Aeneas to remain,
and appealed to the memory of that secret meeting
in the cave during the storm, when she entreated him
by his offspring unborn and by the future of Carthage
to stay; and then, when she found him still fixed and


Classics of the Bar

determined upon his departure, breaking out before
the tempest of her passion and praying that he
might perish by the storm and the whirlwind and the
flood, without the care of friends or gods, upon the
angry sea; and again, when another reaction came,
falling back fainting, and carried by her servants to
her couch!

I have respectfully submitted to you that the
affection of Mrs. Dalton for Sumner was a light,
transient, superficial fancy, and no more; for the
very instant she discovered that his designs went
further than her virtue and her instincts approved,
they were met and repelled. If that be the result of
the evidence, of course all this part of the case is at
an end. But I am only too happy to call to your
remembrance, that in regard to the whole body of
evidence which is laid before you, if you take her
entire life as it is brought before you from January,
1855, when their courtship began, until her very last
letter in answer to his libel, which terminates the
series, you will find it marked by a sweet, passionate
and beautiful love for her husband, one long, true,
constant love, never interrupted, never displaced;
once losing somewhat of its entire control, but recover-
ing it again in a moment and flowing strongly and
beautifully as ever.

She was a child at school when Dalton sought
her honorably in marriage. There is no doubt, for
Dalton feelingly and strongly so declared, and I
think we had other testimony to the same effect,


The Famous Case of Dalton Versus Dalton

that she was modest, uncommonly so, and to such
an extent that, although he met her often, he sought
in vain to catch her eye in the street as she walked
to and from school. It was only when addressed
honorably and openly for marriage, that she yielded
him her heart. I submit that it is perfectly clear
that Dalton had secured that great thing, a pure and
modest young woman's first love.

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