The Case Of The Anonymous Corpse

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Popular faith in the cross-questioning of witnesses was expressed by the commercial Mr. Moulder, in Anthony Trollope’s Orley Farm: “It is the fairest thing that is. It’s the bulwark of the British Constitution. Trial by jury is, and how can you have trial by jury if the witnesses are not to be cross-questioned?”

There are and always have been exceptions to the hearsay rule, to allow for statements made by one who cannot be in court for questioning but who is nonetheless presumed to have told the truth—deathbed statements, or routine business entries, or confessions of something which it would be to his interest not to confess. But Walters’ letters were not his dying declarations, though his doom may already have been sealed when he wrote them; they were not confessions or admissions of anything that Walters could have been expected to want to conceal. The insurance lawyers argued that the letters were a kind of business entry; but a man’s business ought not to include his love letters.

The legal question was not resolved for twelve years. At the first trial, in 1882, the letters were admitted in evidence, despite objection; but the jury disagreed seven to five, and no verdict resulted. So the case was retried in 1885, with the same result, except that the division in the jury was six to six. On the third trial, in 1888, Judge O. P. Shiras refused to admit the letters in evidence, and then the jury brought in a full verdict for Sallie Hillmon for the amount of the policies plus accumulated interest. The defendants appealed to the United States Supreme Court; and the Kansas state superintendent of insurance (who had been of counsel for the insurance companies in the second trial) included in his annual report a full account of the evidence in the case, reporting that which had been admitted by the court and some which had not, and adding comments of his own, mostly favorable to the companies. (This report, as republished in The Principles of Judicial Proof by the late, great writer on the law of evidence John Henry Wigmore, is the principal authority for many of the statements in the present account.)

In the first hearing before the Supreme Court, in 1892, the insurance-company attorneys apparently presented no sound theory by which the Walters letters could have been held admissible, and we are told that the point was “miserably argued.” Nevertheless, the Supreme Court justices voted unanimously to decide in favor of the insurance companies on general principles, thus reversing the lower-court findings and clearing the way for a new trial.

The preparation of the Supreme Court’s opinion was assigned to Justice Horace Gray, who could be relied upon to find a precedent for the decision if anyone could do so. He was the most learned and resourceful member of the court—a Harvard graduate, a former chief justice of Massachusetts, an heir to wealth, and a thorough Bostonian. Typically, his opinions were larded with judicial citations and legal principles. Yet we are reliably told that even he was in “dense darkness” about how to justify the admission of Walters’ letters, until a suggestion came from his young legal secretary’s father, James Bradley Thayer, professor of evidence at the Harvard Law School. Together Justice Gray and Thayer brought forth a new legal theory and adorned it with their authority. A man’s intention, they said—whenever that intention is a distinct and material fact in a chain of circumstances—may be proved by his own contemporaneous oral or written declarations. For truly, how better can we find out what a man thinks than by what he does or says at the time? And was not Walters’ intention to leave Wichita with Hillmon the sheep trader a distinct and material fact in the chain of circumstances that may have led him to Crooked Creek? To be sure, as the professor knew, no court would have allowed Walters’ letter to be admitted in evidence if he had written his sweetheart, saying, “I have left Wichita with Hillmon the sheep trader.” Such a letter would indisputably have been hearsay. But the learned professor suggested that there was a logical difference between a hearsay account of a past fact and Walters’ personal expression of his then present intent; the Supreme Court agreed.

Justice Gray’s opinion (Insurance Company v. Hillmon, 145 U.S. 285) is famous among lawyers. Generations of them have debated whether such a distinction between a past fact and a present intention is sound or unsound. Forty years later, Justice Benjamin Cardozo, speaking for the Supreme Court in Franklin Roosevelt’s day, said the decision in the Hillmon case “marks the high water line beyond which courts have been unwilling to go.”

But the legal points of the decision were lost on the Kansas public of the nineties. To them the real question was one of motive: Who was being made the victim of conspiracy—the insurance companies or the Kansas widow? These were the years of full flood for the People’s party in Kansas and the Midwest. One Mary “Yellin” Lease rode all over the middle border, telling the farmers that “Wall Street owns the country” and urging them to “raise less corn and more hell.” At their first national convention—in Omaha on the Fourth of July, 1892—the Populists declared:

We meet in the midst of a nation brought to the verge of moral, political and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress and touches even the ermine of the bench. … From the same prolific womb of governmental injustice we breed the two great classes—tramps and millionaires.