tracted trial, as nearly all lawyers agreed, Judge Oakley leaned heavily in favor of the lady both in acceptance and rejection of evidences, as well as by comment upon the proof in his final charge to the jury. More over, Mr. Van Buren was further handi capped before the jury by the constant presence of his client, who from time to time indulged in stage play of countenance, shrugs, scowls, and facial applause, all of which did not impress the jurors in his favor. They dismissed the actor's claim, but upheld that of the lady, to whom they awarded the divorce with alimony. During the legal combat, which of course excited widespread popular interest from the nota bility of parties, co-respondents, and coun sel engaged, Mr. Van Buren, handicapped although he was, displayed his best points as advocate. Ever on guard, like an expe rienced swordsman in a Parisian duel, and appreciating the skill and fence of his great antagonist, O'Conor, he never lost coolness nor courage, nor missed opportunity for cross-examination hinges or interjectional summings up to the jury, in which he avoided recklessness, and for which he be came noted in all his nisi prius cases. His veiled retorts to the judge at times proved to be wonderful specimens of rhetorical im plication, his tongue sometimes hovering over the dangerous border lines of con tempt and, indeed, cool insolence. Merci less was his- cross-examination of the main witness named Doty, who appeared against his client, and testified to adulterous acts between actor and actress in a state-room of a Hudson River steamer of which the wit ness was steward. The whole examination satisfied nearly every hearer except jury and judge, — but especially attending members of the bar, — that the witness was commit ting perjury. Mr. Van Buren rained inter rogations upon him, scarcely allowing the witness time for breath between those and his answers; and the counsel adroitly jumped from incident to incident without allowing
the witness to rest attention upon anything consecutive or chronological. Here I may digress to say that this witness was, after the trial, indicted for perjury while I was Dis trict Attorney of the county, and conducted the prosecution for the people. The Re corder before whom Doty was tried had been then recently elected, and had reached the bench in his old age from a practice solely devoted to civil cases, and without any experience in criminal law. The cir cumstances again handicapped Mr. Van Bu ren in organizing the prosecution. Much cor roboratory evidence was strangely excluded because of misconception on the part of the Recorder of Starkie's or Greenleafs rules of evidence. The jurors were told by counsel for accused that the case was one of per secution and revenge, an idea favored by Forrest's attitude on the stand when deny ing Doty's testimony. Miss Clifton was dead. So with excluded corroboration the case virtually resolved itself into one of oath against oath; and Doty was acquitted. As Mr. Van Buren and I left court together (he had refused to take active part in, but had rendered constant aid by advice, sug gestions, promptings, and counsel), he re marked, " What else could be expected with ' doty age ' on the bench assisting a Doty in the dock? " The solution of the contra dictory evidence came to me later. Tech nically the accused was guilty of perjury, but morally not; for the incidents he testi fied to really transpired, but he had changed the venue of them from a bagnio to a steam boat for domestic and family reasons, threat ening his own marital condition. He could explain his own presence on a steamboat, but not as visitant to a house of ill-repute. Mrs. Forrest's subsequent private life satisfied a large number of her previous sympathizers that the divorce should have been awarded against herself. But Mr. Van Buren immediately began appeal procedure with the pertinacity and devotion to a client's interest which always characterized
