by Paul S . Gillies , Esq .
RUMINATIONS I Will Be Heard
I will be as harsh as truth , and as uncompromising as justice . On this subject , I do not wish to think , or speak , or write with moderation . I am in earnest — I will not equivocate — I will not excuse — I will not retreat a single inch — and I will be heard . 1
When I first read these words of William Lloyd Garrison , from the first issue of the Liberator , published in 1831 , I was stirred . It was so direct and so determined . I could feel the passion and the commitment in those words . I wished I could be as determined .
In the life of George Whitefield , the English preacher who took America by storm on seven trips to the new world in the eighteenth century and converted tens of thousands through his sermons , he was once speaking in a church with a listless congregation . One man was asleep . His biographer relates the story : About this time , Whitefield stopped . His face went rapidly through many changes , till it looked more like a rising thunder-cloud than any thing else ; and beginning very deliberately , he said , “ If I had come to speak to you in my own name , you might rest your elbows upon your knees , and your heads with your hands , and sleep ; and once in a while look up and say , ‘ What does the babbler talk of ?’ But I have not come to you in my own name . No ; I have come to you in the name of the Lord God of hosts , and — here he brought down his hand and foot at once , so as to make the whole house ring-- ‘ and I must , and will be heard .’” 2 Could Garrison have been influenced by Whitefield ? Or is this a demand that comes naturally from the deepest recesses of faith and justice ?
Woodstock attorney Charles Marsh spoke with a small , almost feeble voice , so that everyone in the courtroom had to lean in to hear him . He made few gestures , and then only with the forefinger of his right hand . Yet he had a hypnotic power to persuade by the sheer force of logic and his own conviction that he was right . He could be severe . Judge Titus Hutchinson said he had the most wonderful ability to make any person appear perfectly contemptible on the stand , in only a few quiet questions on cross-examination . He also would be heard . [ A ] s Mr . Marsh was addressing the jury in behalf of a client whose politics were obnoxious to the court , he admonished the jury that the presiding judge would be more likely in his charge to do what he could to secure a verdict against his client--but that they were sworn to find the facts from the evidence , and it was no part of the judge ’ s province to meddle with that matter in his charges -- and in that respect it was their duty to disregard what the judge might say . The judge interrupted him , calling him to account , and intimated that he would commit him for contempt . Mr . Marsh quietly turned towards him , and extending his forefinger somewhat in the direction of the judge ’ s nose , said in a suppressed tone —“ I defy you to do it . Your honor dare not do it .” The judge quailed , and the argument proceeded . In another instance , Marsh was interrupted by Judge Richard Skinner and admonished for being too menacing in his crossexamination of a witness . Marsh continued , and the judge interrupted him again . Marsh turned toward the bench and said , “ I have made known to the court the reason of the course I am pursuing . I regard it important to the rights and interests of my client that I should be permitted to proceed . In my long experience in the courts , I think I have learned what are my rights , as well as what are my duties both towards my client and the court , and I have self-respect enough to insist on the one and perform the other , and I am in no need of being instructed by the court as to either . I will thank your honor not to interrupt me again while I am undertaking to cross-examine this witness .” 3
We timid souls , who daily bow obsequiously before a bench , mumbling our “ Your Honors ” while rising with respect to the court : who among us would ever push back like that ? We must have courage . We must not feint in the face of authority . We have a case to present , and a judge who gets in the way ought to be cautioned , but would you , when the moment arrived and the judge ’ s face turned red and steam shot from the mouth and nose ? Would you stand up to that judge ?
Whitefield ’ s courage came from his mission . Garrison ’ s courage came from his convictions . Marsh ’ s courage came from his professional ethic .
In one of my first appearances at court , I saw something disturbing . Waiting our turn , I saw the lawyer in the hearing ahead of ours challenge the judge ’ s ruling . Evidence
earned an objection . The judge sustained the objection . The opposing lawyer stood up . “ I sustained the objection ,” said the judge . “ You are mistaken ,” said the lawyer , moving out from behind the table and advancing on the bench . “ The evidence is not to be admitted ,” said the judge . “ But it should be ,” said the lawyer , attempting to explain his legal position . They went back and forth , the tension in the room rising . I saw the bailiff snap open the strap on his service revolver . Then it was over , and the courtroom never seemed so empty and quiet . That snap has stayed with me since .
This is not about contempt . It is close , but it is just below the line . We are people , you , me , and the judge . We have our court faces , and we are rarely unmasked . But there are times when the blood rises up , the injustice of a ruling pricks our usually placid demeanor , and we say something we instantly regret , or we think it anyway . Or say it out loud with feeling on the drive home , over and over again .
Courtrooms are sinkholes of emotion for professionals . Feelings are the office of witnesses , not lawyers , nor judges . Sometimes they spill out . Standing at the window on the second floor of the Newfane courthouse , looking out on the front lawn and its magnificent trees , it was pointed out to me the spot , just down there , where two seasoned attorneys exchanged blows , while the jury in its room watched from the first floor .
There have been Vermont lawyers who fought with their clients , one who famous-
14 THE VERMONT BAR JOURNAL • WINTER 2017 www . vtbar . org