THE audience in the court-room arose and remained standing until the judge in his black silk robe had entered and taken his place on the bench. Then the audience resumed its seat, and the clerk began to read the proceedings for the previous day. The ceremony attendant upon the sitting of the Circuit Court of the United States carried with it an impressive sense of majestic, imperial authority, and an air of grave, judicial deliberation. It was the Government of the United States of America, the spirit of supreme order and law moving through its servant, and, next to the Great Ruler of Events, it was greatest. It had assumed for the good of men the right to sit in judgment, and to say wherein lay the justice of their complicated quarrels. Before it, every man's cause was of equal import, and every man was of equal stature; bond or free, one stood before it naked of influence, and with his shoulder made as high as the shoulder of his fellow.
This is the theory. If it fails, it is because the law at best is but a human device, and its servants, after all, are but men like the others.
The building in which the Federal Court held its session was a substantial, handsome structure, and maintained a strange contrast to the town in which it stood. The town was rough, miserable, uncouth; the temporary habitation of men, struggling ever with the relentlessanankeof things; in equal contrast to the officers of this court was the audience in the great court-room. They were the pioneers of civilization; a motley crowd in which the best and worst of human society was mixed and intermixed. They were, for the most part, bronzed, bearded, fearless examples of the inexorable law of the survival of the fittest, but not all. Some were the reckless advance agents of those hardy vices that follow close in the wake of empire,—devils too villainous to be tolerated in the cities of the East, and too bold and too wary to be stamped out by the deliberate machinery of the law.
Against these the officers of the court bore some evidence of polish. They were exact, calculating men, bred to respect order, and obey and maintain the customs of law. The contrast was significant, and one recalled and understood the constant bitter conflict between the judicial tribunals of the State and the judicial tribunals of the Federal Government, bitterly waged and as yet undecided. From one standpoint, this was the calm tribunal of the supreme power of the land, providing the same rights and remedies on the very border of its jurisdiction that it provided at the capital itself, favoring no condition and acting as even-eyed as nature.
On the other hand, one understood how the remote Commonwealth held this court to be the tribunal of a far off imperial government, seeking to enforce laws and customs foreign and repugnant to the laws and customs of its people. To them the Federal judge was a king's governor, travelling with his retinue over a subjugated province, and enforcing his edict by virtue of foreign armies quartered convenient to his hand. And looking on from this point of view, one understood why the outpost State hated this court so bitterly, and whence arose the fierce clamor against it. One understood how the far West smarted under its injunctions, and denounced them as the royal mandates of an emperor's consul, and how the far South collided with this tribunal and cried out against it to the Congress of the United States in a memorial clanging like a bell.
So the conflict was easy to understand, and it was easy to appreciate how large the spectre of discord loomed, and most difficult indeed to force the problem to some happy end.
When the clerk had finished, the marshal called the jury, and struggled bravely, but at times unsuccessfully, with the marvellous tangle of names. Indeed, if the list of this panel had been placed before a student of philology, he would have required no further history of the civilization of the Southwest. When the marshal had ended, the judge directed that the jury should be dismissed until two o'clock, and when order was again restored, the judge turned and looked down gravely from the bench.
“This court,” he said, “is ready to pass upon the matter taken under advisement yesterday afternoon. It seems that one Hiram Martin, a citizen of and a resident in the State of New Mexico, brought an action in this court against Ambercrombie Hergan and others to recover the sum of fifty thousand dollars, money, as it is said, borrowed by the said Hergan. The declaration contained the common countsin assumpsit, with which was filed, in lieu of the bill of particulars, a promissory note, made by the said Hergan to the said plaintiff, calling for fifty thousand dollars, and endorsed by one Randal and another Culver-son. This note, in addition to the matter usually had in such instruments, recited that it was given in accord with a certain agreement of even date therewith, made and entered into by the parties to the said note. The case coming on for trial, the defendants, by their attorney, appeared and filed their plea exhibiting the said agreement, maintaining that the said note was given for money loaned for the purpose of being used in a gambling venture, and was, therefore, void at law. An issue being had upon the said plea, the case was put to trial, and the said agreement having been admitted, the defendants, by their attorney, moved this court to exclude the evidence, and direct the jury to find for the defendants; which motion this court took time to consider.
“The facts herewith concerned are involved in no controversy, and the agreement being couched in plain terms, admits of no doubtful construction. It would seem that the defendant Hergan called at the gambling house of one Crawley, a resident of this State, and requested a private interview with the said Crawley and the plaintiff; that in this interview Hergan explained that he was considering what it pleased him to denominate 'a gambling venture in oil,' and solicited the two men to join him in the venture. This they declined to do, but suggested that they would advance to Hergan such money as he might need upon a promissory note with good security.
“It appears that some controversy arose as to the rate of interest to be paid; and a division of the profits was suggested in lieu of the larger per cent. This matter was finally concluded by the plaintiff and the said Crawley advancing the said sum, and taking therefor the note filed in this cause, and in addition thereto entering into this agreement in writing with the said Hergan, wherein it is set forth that the money loaned is to be used by the said Hergan for the express purpose of 'a gamble in oil,' and for no other purpose; and that if any profit should result from said gambling venture, the said plaintiff and the said Crawley were to receive one-eighth of said profits. It seems that the money was paid and presumably used by Hergan for the purpose as stated. Afterward the note was presented for payment, and being refused, was duly protested, and later sued upon in this court.
“It is maintained by the defendants that this transaction was contrary to public policy, and that the money, having been loaned for a known illegal purpose, cannot be recovered in a judicial tribunal, but falls Within the purlieus of those matters which arepar se ex turfe causa, and for which the law provides no remedy. On the contrary, it is urged by counsel for the plaintiff that the transaction as between the parties to this suit was entirely commercial and innocent; that the plaintiff is a mere lender of money in abona fidetransaction, and is in no wise a party to any illegal proceeding, and that the mere use to which the money was put is a matter of no moment.
“The law, being for the welfare and the protection of human society, refuses to recognize and enforce certain contracts had among its citizens, when those contracts are founded in moral turpitude or inconsistent with the good order or solid interests of society.
“'No people,' declares Chancellor Kent in hisCommentaries, 'are bound or ought to enforce or hold valid in their courts of justice any contract which is injurious to the public rights or offends their morals or contravenes their policy or violates a public law.' Hence contracts having an illegal or immoral consideration, or tending to the violation of law or the debauching of public morals, are held to becontra bonas mores, and are void.
“It is said that the object of all law is to suppress vice, and to promote the general welfare of society, and it does not give its assistance to persons to enforce a demand originating in their breach or violation of its principles and enactments. It is not necessary that the law expressly prohibit or enjoin an act. It may impliedly prohibit or enjoin it. In either case a contract in violation of its principles is void under the wholesome maximex turpi causa non oritur actio.
“It may happen, and, indeed, frequently does happen, that the individual suffers great hurt from this sweeping policy of the law, but it is held that the good of the commonwealth rises above the mere benefit of the individual citizen, and that where the welfare of the whole of society is involved, the law will not pause to consider the injury entailed upon the mere unit. Hence the policy of government in the exigencies of war, when protection must be had against violence, and the policy of government in the peaceful administration of the law, when protection must be had against vice.
“Thus gambling, wagering, and all gambling and wagering contracts and transactions are illegal as against public policy, since they are repugnant to the well-being of society, fraught with vice, pregnant with demoralization, and corrupting alike to the youth and to the aged, as they inspire a hope of reward without labor.
“It is significant that in matters of this nature human society has been progressive. Under the common law of England wagers were not unlawful or unenforceable, but the statute of 9th Anne followed and altered the common law, and the statutes of 8th and 9th Victoria altered it yet farther, and in the United States every separate Commonwealth has its respective statute striking at this vice.
“I think it will not at this day be denied that all transactions in stocks, by way of margin, settlement of differences, and payment of gains or losses, without intending to deliver the stocks, is a gambling or wagering operation which the law does not sanction, and will not carry into effect; and it has been held in the Supreme Court of the United States in the case of Irwin vs. Williar, 'If under the guise of a contract to deliver goods at a future day the real intent be to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void.' And that 'Generally in this country wagering contracts are held to be illegal and void as against public policy.'
“Indeed the courts of the land have gone to the extremity of denouncing in no uncertain terms the dangerous character of these illegal ventures. Judge Blauford, in the case of Cunningham vs. The National Bank of Augusta, in speaking of these transactions termed 'futures,' declares: 'If this is not a speculation on chances—a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro or poker cannot be more hazardous, dangerous, or uncertain. Indeed it may be said that these animals are tame, gentle, and submissive compared to this monster. The law has caged them and driven them to the den. They have been outlawed; while this ferocious beast has been allowed to stalk about in open mid-day with gilded signs and flaming advertisements to lure the unhappy victim to its embrace of death and destruction. What are some of the consequences of these speculations in 'futures'? The faithful chroniclers of the day have informed us, as growing directly out of these nefarious practices, that there have been bankruptcies, defalcations of public officers, embezzlements, forgeries, larcenies, and deaths. Certainly no one will contend for a moment that a transaction fraught with such evil consequences is not immoral, illegal, and contrary to public policy.'
“In so far as this doctrine is concerned with the case at bar, it is certain that the parties understood and intended that the money loaned should be used for the purpose of engaging in an illegal speculation in oil,—'a gamble in oil,' as it is termed in the agreement, and that such gambling transactions are against public policy and the law of the land. But it is contended by learned counsel that all this can have no bearing upon the case at bar for the reason that in the cases heretofore cited announcing these conclusions of law, the litigants were the parties who dealt with or for each other, and were the immediate parties engaged in an unlawful gambling venture, and the ones to gain or lose directly by the venture, and not a mere stranger who loaned money to another to engage in such transactions, and having but an undetermined interest in the result; and that the law will not lend its aid to a further wrong. The defendant having committed one wrong cannot be permitted to use his first wrongful act as an instrument whereby to effect a second wrongful act.
“The objection is ingenious, but I judge fully met by the declaration of Lord Mansfield in Holman's case: 'The objection,' said the learned judge, 'that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is allowed, but it is founded on the general principle of policy which the defendant has the advantage of, contrary to the real justice as between himself and plaintiff, by accident, if I may so say. The principle of public policy is this:ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own statement or otherwise the cause of action appear to ariseex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because it will not lend its aid to such a plaintiff.'
“This claim of the plaintiff to this action is unsound for the further reason that any promise, contract, or undertaking the performance of which would tend to promote, advance, or carry into effect an object or purpose which is unlawful, is itself void and will not maintain an action. The law which prohibits the end, will not lend its aid in promoting the means assigned to carry it into effect. Nor is it possible for an act contrary to law to be made the basis of a contract enforceable in courts of law. Hence when one lends money to another for the express purpose of enabling him to commit a specific unlawful act, and such act be afterwards committed by means of the aid so received, the lender is aparticeps criminis, and the law will not aid him to recover money advanced for such a purpose, and much less would it assist him, if, as in this case he retained an interest in the result of the venture.”
It was very unusual for counsel to interrupt the judge in the delivery of his opinion, but at this point the attorney for Martin arose.
“If your honor please,” he said, “this court is taking away the remedy of the plaintiff, and permitting the wrong to stand. Does this court reverse the ancient doctrine upon which the theory of human justice has its eternal basis, the ancient doctrine that the law will always provide a remedy for a wrong?”
The faintest shadow of a smile flitted over the judicial face.
“That sage maxim: 'lex semper debit remédiant,'” answered the judge, “is a gigantic error couched in very good law Latin. The motion to exclude the evidence is sustained, and the jury will find a verdict for the defendants.”
THE Governor's machine marched gravely out of the Circuit Court of the United States and down the wide steps, the Major leading, the Executive following second, and the Honorable Ambercrombie Hergan bringing up the rear, every man as silent and as solemn as a Japanese diplomat. The machine passed through the great arched doorway and directly across the street to “The Happy Maria” saloon, an institution with a variegated past. The machine filed in through the door and lined up before the bar as mysteriously as a country delegation in a caucus.
The Bartender of “The Happy Maria” was a lame actor from St. Louis. When he turned and beheld the solemn array, he stepped back and tapped his forehead tragically with his fingers.
“Ha!” he muttered, “it is Ulfius and Brastias and Sir Bedivere.”
To this no response was made, except that the Major raised his hand and pointed to the bottle of “Dougherty” reposing on the second shelf beside the box of “scrap” and the proprietor's pistol-belt. The bartender hurried forward, took down the bottle, placed three little glasses on the bar and began to fill them. When he came to the third glass, he paused and set down the bottle. A puzzled expression gathered on his face. He thrust his forefinger into his mouth and began to lisp:
“Be there two or be there three
In our king's companee?”
The Major turned just in time to catch a glimpse of the Governor as he vanished in a telegraph office next door; then he swung around toward the barkeeper with the dramatic abandon of a professional at a benefit.
“Pour on, good seneschal,” he cried; “it is the man who would be married. He hastens with glad tidings to the well beloved. He will return.”
(See the famous opinion of Henry St. George Tucker, President of the Supreme Court of Virginia, in the leading case of Gallego's Executors vs. Attorney General, 3 Leigh, 450; also the opinion of John Marshall, Chief Justice of the United States, in the case of the Trustees of the Philadelphia Baptist Association el at. vs. Hart's Executors, 4 Wheaton's U. S. Reports, 330; also Knox vs. Knox's Executors, 9 W. Va., 125; 2y W. Va., 109, and cases cited.)
ALL this,” said Randolph Mason,” is the veriest nonsense.”
The younger Mrs. Van Bartan straightened up in her chair and looked sharply at the counsellor. She was a woman of magnificent presence, with a great fleece of yellow hair, fine eyes, and regular, clear-cut features.
“Do you mean that it is not the truth?” she asked.
“Half truth,” responded Mason.
“Then,” said the woman, smiling, “it is only half nonsense.”
“Madam,” said Randolph Mason, “if you desire my aid, you must explain this entire matter. I do not choose to guess riddles.”
“I have told you,” began the young woman, slowly, “that my husband and myself reside with his mother in a certain city of the Virginias; that his father is dead, and, by his will, left his entire property to the elder Mrs. Van Bartan—my mother-in-law; that was all true.”
The counsellor nodded.
“The other part,” she went on, “I was trying to put into a 'hypothetical case '—is n't that what you call it?”
She hesitated for a moment.
“It is hard to tell, and I was only trying to save myself, but I suppose the surgeon is quite useless if the wound is not fully revealed. If you will listen to me I will explain. It is hard to tell, and it hurts, but everything is at stake, and if I lose now I lose everything. It will simply mean that I have made sacrifice after sacrifice for nothing at all. One shrinks from putting one's heart upon a dissecting table where the valves may be pinned back and pried into with the point of a scalpel, and so one struggles with a hurt until it finally aches so bitterly that the expert must be had. Then one goes to the surgeon or the priest or the lawyer, and takes an anaesthetic while he cuts it out.”
“Madam,” said Randolph Mason, “you talk like a diplomat: you say nothing at all.”
The younger Mrs. Van Bartan unbuttoned her coat and threw it back with the air of one who has ultimately decided to keep nothing in reserve.
“I have been married three years,” she began, “my father's name is Summers. In the good days of Virginia our family was wealthy, but of late years we have met with one disaster after another until the family became very poor, and the effort to maintain an appearance of respectability was a nipping struggle indeed.
“About this time the coal industries of West Virginia began to develop, and our city became a manufacturing centre. This brought in many Eastern capitalists, among them Michael Van Bartan, who established great iron mills, out of which he made a vast fortune. Shortly thereafter he died, leaving his widow and one son, Gerald Van Bartan.
“This woman I have never quite understood. After the death of her husband, she maintained their country place in almost profligate magnificence, but she has always seemed terribly disappointed in her son. He was a good, easy-going fellow, and his mother, an ambitious, restless woman, had great plans for his future. But, failing that, and being a person of shrewd instinct, she set about finding for him an ambitious wife, who would probably be able to succeed where she had failed. But while the mother was striving to select a suitable woman for her purpose, the son paid court to me,—and I married him.”
The young woman paused for a moment, and the lines of her mouth hardened. Then she went on:
“He was not quite the person with whom I had hoped to spend my life, but he had wealth, and we were so miserably poor,—and, I judge after all, one is never permitted to do just what one wishes in this weary world. This marriage was a bitter disappointment to Mrs. Van Bartan, but she was a woman with the resources of an empress. She came at once to me, and, with the kindest and most gracious courtesy, welcomed me as her daughter, and began at once to shower upon me the most substantial evidences of her good will. We were taken to live with her at the country place, and everything was done that a shrewd woman could imagine to bring me completely under her influence, and, through me, to move my husband to the effort which she desired. But it was all an utter failure.
“I appreciated thoroughly the incapacity of Gerald Van Bartan, and said as much to his mother. I went deliberately to her and pointed out how very vain her ambition was, and how certainly it must come to nothing. I said how difficult it was for men to lift themselves even the least bit higher than their fellows; how it required years of labor and selfdenial and courage. I reminded her that my husband had not one of the qualities necessary for such work; that he was not industrious, and not ambitious she knew well; that the habits of the man had been formed, and this work could not be now undone.
“Then I blundered like a fool. I said that wealth had caused these habits to become fixed, and that we must accept him as his luxurious life had made him; that if he had been thrown out to struggle with poverty, some qualities might have been developed, but that he had never been forced to feel the necessity for an effort, and consequently he had never called his faculties into use, nor could he now since the necessity did not arise. I begged her to abandon the effort as vexatious and entirely hopeless.
“To all this the elder Mrs. Van Bartan listened attentively and made no comment. When I had finished, she laughed, and said that I had entirely misapprehended her intentions toward her son; that she had no object in life but to make us as happy as it were possible to do, but that one could not tell what conditions might arise, and she had wished simply to put her son in a position to care for himself and me, if it ever should be necessary. Then she stroked my hair, as she might have done to a child, and bade me not worry over trifles. I now congratulated myself that the matter was finally settled, but I was fearfully wrong. I had read this remarkable woman poorly. Although again beaten, she was unconquered, and she determined upon a final desperate move. Perhaps my foolish prattle, furnished the suggestion, but it is rather more probable, I think, that her master mind evolved the plan out of what she considered a desperate condition.”
The woman's face was now grave, and she seemed deeply in earnest.
“It was the plan of Mrs. Van Bartan to convince my husband and myself that future poverty was impending, but just how to make this impression strongly probable, was a matter of great difficulty, and one which she appreciated fully. In order to do this effectually, it was necessary for her, in some manner, apparently to dispose of her property, and at the same time actually to retain it in possession.
“This was a difficult problem, but difficult problems were not appalling to Mrs. Van Bartan, and she finally determined upon this shrewd scheme. She would make a will, leaving her entire estate at her death to the church of which she was a member, and entirely disinheriting my husband. This will could have the effect she desired, and at the same time leave her unhampered in the use of her property, and free to destroy this will or make another at her pleasure. This is now her plan. How I have discovered it is not of importance, since it is a part of her plan in this matter to have me suspect her intention and finally to have me believe that she has decided to cut us off without a dollar. Having determined upon this move, she will carry it through with the skill of a master strategist. She will have the paper drawn by her legal adviser in the presence of witnesses; she will declare her intention to the most substantial people of our city, and will take good care to see that her act is made known through the most reliable sources. There will be no blunder anywhere,—Mrs. Van Rartan does not blunder.”
“Has this will been drafted?” asked Randolph Mason.
“No,” replied the young woman, “but it will be made soon. Mrs. Van Bartan is now preparing public opinion for her act. She is far too wise to hurry.”
“I see no danger in all this,” said Mason, “since it is not this woman's intention to really disinherit her son. Ultimately she will destroy this document or make another.”
“But,” said the young woman, bending forward in her chair, “Mrs. Van Bartan is afflicted with an aortic aneurism, and may drop dead at any moment. This she refuses to believe, and although she has been examined by celebrated specialists, she stoutly asserts that her health is as good as it ever was in her whole life.
“Now suppose she makes this will and dies suddenly without having an opportunity to make another. What then? Her intention will not help us. This will holds, and we are left entirely without a dollar in the world. Now, what am I to do to save us? It is of no use to go to Mrs. Van Bartan. She is an iron woman. She has her plan, and Heaven could not change her in the least. I must do something. It all depends on me, and I don't know which way to turn. You must show me some way; you must do something.”
Randolph Mason turned around in his chair and looked squarely at the young woman.
“Madam,” he said, “you have neglected to tell me the most important matter.”
“Oh, no, sir,” responded the younger Mrs. Van Bartan, “I have told you everything.”
“By no means,” said Mason. “You have said that Mr. Van Bartan is not the man with whom you had hoped to spend your life. Who is that man?”
The young woman looked down at the floor and was silent.
“Well,” she said, “I don't know that I meant quite that. I was meaning, you know, that there were other considerations moving me to this alliance beyond mere affection. I did not say that I loved some one else, did I? Did I say I loved some one else?”
“You evade,” said Mason, bluntly. “It is the weakling's method of confession, and as well the fool's method.”
The blood came into the face of the younger Mrs. Van Bartan, and she looked up resolutely.
“You don't spare me at all,” she said, bitterly. “You pry out everything, even the very heart linings. Suppose I did love some one else, what has that to do with this matter? That is all over and past and gone. Can't I permit it to sleep and be forgotten? Suppose there was another man? Suppose there is now? Must I empty out his heart too? Can't I spare him? Can't I leave him out of this?”
“I am waiting, madam,” said Mason, quietly.
The young woman passed her hand downward over her face, as though to remove something that was clinging to her.
“If you must know,” she said slowly, “his name is Dalton, Robert Dalton, a member of the law firm of Carpenter, Lomax, & Dalton, of our city. He is said to be an able lawyer. He is the elder Mrs. Van Bartan's legal adviser, but I have no right to tell you all this. It is unjust to him. and unjust to me, and unfair to us all.”
“And he still loves you?” said Mason, with the blunt indifference of a surgeon who thrusts his thumb into a wound.
The young woman threw back her head. “You are brutal,” she cried, “to ask such a question, and I should be a fool, a miserable, contemptible fool if I should answer.”
“But you have answered it, madam,” replied Randolph Mason.
The younger Mrs. Van Bartan covered her face with her hands, and began to sob. The counsellor sat and watched her, as an expert might watch an intricate piece of machinery that he was testing. There was no emotion of any sort visible in his face—nothing at all, except the intense interest of the expert.
Presently Mason leaned back in his chair. The result was evidently satisfactory.
“Is this man married?” he asked.
The woman did not answer. She simply pressed her hands tighter against her face. The counsellor waited for a few moments. Then he repeated:
“Is this man married?”
The woman's hands trembled violently. “No,” she sobbed, “and he never will be.” The lines in the face of Randolph Mason grew deep and resolute as one has seen the lines in the face of a great physician when, in some desperate case, he finally turned from the bedside of the patient in order to write the prescription upon which he had decided.
“Madam,” he said, in a voice that was firm and admitted of no protest, “this man Dalton is perhaps a person of some learning. Since he is your mother-in-law's legal adviser, he will have the matter in his hands. He is under your influence. Could a problem be more simple? You have but to go to him and say what you have said to me. He will know what to do.”
She dropped her hands in astonishment.
“Go to him? Go to him?” she repeated.
“Yes,” said Mason, “and tell him the truth,—and wait.”
“But,” began the younger Mrs. Van Bartan, “how could he help me? What could——”
“Madam,” interrupted Mason, rising, “this is your coat, I believe. Permit my clerk to assist you to your carriage.”
Robert dalton was of good blood, having descended from colonial families of degree. He was perhaps in his middle thirties, in appearance no usual man, straight as a spire, with a powerful face in which every feature seemed prominent; hair rather prematurely gray, and soft and clinging as a woman's, and withal a manner courtly to such a degree that the young, and those others unskilled in divining the natures of men, associated with Mr. Dalton relations of a so-called romantic nature. This conclusion was grossly erroneous, and led to much profitless gossip. In fact, Robert Dalton was a stern and practical man of large legal acquirements, with no more romance in his composition than a ship carpenter. In the practice of his profession he was always cold, clear headed, and technical, believing no man, and fearing no man; in truth, the wags asserted, his courtesy was in itself a libel, because of all members of the bar no one was more rigid, more exacting, or more relentless than Robert Dalton, of Carpenter, Lomax, & Dalton.
The mental build of young Dalton rendered him especially valuable as a chancery lawyer, and this department of the business he gradually assumed until it was almost entirely in his hands. For years he drafted all difficult pleadings, especially difficult under the rigid practice of the common law obtaining in the Virginias. He drafted likewise all deeds, wills, and papers of like tenor, with such unusual care and skill that he rapidly gained a reputation,—the sort of reputation which it usually requires a lifetime to establish, and the value of which is above rubies.
When the judges spoke of him they said, “If Mr. Dalton prepared this paper it is probably correct.”
It would be unwise to attribute to young Dalton an utter disregard for social relations. The error of such an assertion would readily be detected by those who knew him. In fact, he was usually present at prominent social functions, and largely sought after by reason of his magnetic nature and the charm of his vigorous mind.
The father of young Dalton had been a man of improvident habits, and, immediately upon the death of his wife, squandered his large estate in the riot of dissipation, so that his son inherited nothing but a dilapidated manor-house and a single slave. This servant, a pure negro, was deeply attached to young Dalton, and the two continued to reside in the manor-house near the city suburbs, the negro acting as cook, valet, and man-of-all-work. This manor house was one of the first built in the Virginias. It was surrounded by a long, ill-kept lawn, in which the ancient knotted oaks seemed to stand guard over the memory of some departed greatness. The house itself, covered with the green Virginia creeper, was little better than a ruin. The plaster had fallen away from the great pillars, and the walls were cracked, in places, almost to the roof.
Strangely enough, Robert Dalton never attempted to repair the estate, taking pride rather in its air of decay. This statement is not entirely accurate. He did, indeed, fit up the ancient drawing-room for the purposes of a library, thrusting in rows of bookcases beside long antique mirrors and mahogany window seats. These bookcases were filled entirely with reports of courts, late digests, the decisions of tribunals of last resort, and volume after volume on wills, contracts, and corporations, but scarcely a volume on standard or current literature. For these latter he had no inclination, and, as he apologetically explained, no time.
In this library, Dalton did most of his legal work, obtaining here freedom from interruption and the quiet which he required.
As the city developed, this neglected suburban street was seized upon and assumed as the fashionable quarter by the wealthy Eastern families. They paved it far into the country, and ruthlessly wiped out the splendid old homesteads, erecting on their ruins ostentatious palaces with prim lawns, reminding one not a little of that civilized vandalism which would cut out from its frame the superb painting of a landscape and replace therein a practical and entirely accurate map of the same landscape.
These wealthy families swept out, too, the old social customs of this city, setting up elaborate formalities and impoverishing standards of dress and entertainment.
The recognized leader was Mrs. LeConte Dean, the wife of a nail manufacturer of vast wealth. Her receptions were the society events. Indeed, it has been said that recognition by this newly rich importation determined one's social status.
The Van Bartans were another of these wealthy families coming directly from the city of New York. The father had founded gigantic iron mills from which he had gathered a princely revenue. Upon his death, the wife, a grim woman of frightful prejudices, had continued to maintain their country place in sumptuous, albeit rather frigid, elegance. They had one child, Gerald Van Bartan, an utterly worthless young man of extravagant habits and wandering aims; nevertheless, a youth of generosity and kindly impulses. The boy was a source of ceaseless vexation to his mother.
Carpenter, Lomax, & Dalton were her solicitors; especially Robert Dalton, in whom she reposed the greatest confidence, and not infrequently she spoke to him at great length of her difficulties with her son, and usually concluded by working herself into a towering rage.
When one morning in the early autumn it was announced that Gerald Van Bartan was very shortly to wed Miss Columbia Summers, a young lady of great beauty and of aristocratic lineage, but of reduced and nipping finances, the city was very justly indignant. Robert Dalton had for many years paid court to this young woman, and the self-constituted match-makers had long since entered up their decree in this matter and dismissed it, and they resented, as almost a personal affront, the going afield of their plans.
Thereupon idle folk prattled of the great blow to Dalton, his broken heart, and other drivel. There was no evidence that Robert Dalton had any other than a passing interest in this matter, and neither his partners nor those others intimately acquainted with the man suspected that this gossip contained any element of truth Indeed, he had come to be regarded as of stoical build.
When this rumor came to the ears of Mrs. Van Rartan, she received it with almost suspicious composure, and a few days later sent for Dalton, her solicitor, and inquired if she could dispose of her entire property. To this Dalton replied that she could, the title to all property having passed to her by virtue of her husband's will, of which she was the sole beneficiary. Thereupon she smiled, and said that she might require his services further on.
The wedding and receptions which followed were great social functions, and for three years thereafter Mrs. Van Bartan maintained the two young people in the veriest profligate magnificence, the elder woman anticipating every wish of the younger, and heaping upon her the costliest gowns and jewels to be had.
During this time, Carpenter and Lomax watched Dalton closely, but they could detect no change in the man, except perhaps that he was even more rigid and exacting in his professional transactions.
Thus matters continued without event until the night set apart for the first autumn reception of Mrs. LeConte Dean. These were annual events of great revelry, and largely attended. The night was unpropitious, raw, and foggy, as October nights usually are in this region, but this in no wise interfered with the occasion; indeed, it was long remembered as one of startling magnificence.
This reception Robert Dalton determined not to attend, partly because he avoided as far as possible every gathering at which he might be thrown with the younger Mrs. Van Bartan, but principally because the firm had an important case in the Federal Court then sitting, and he had been asked to prepare an elaborate decree for the following day.
After determining to remain at home, Robert Dalton went into his library, gathered his books of reference from their cases, and began the preparation of his legal paper. This decree he found more difficult to draft than he had anticipated, and, striving to adjust its intricate matters, he became more and more absorbed until he was entirely unconscious of his surroundings and of the time that had elapsed.
Finally he arose in order to refer to some report that was not within reach of his hand. As he turned to the light he beheld a woman, wrapped in the folds of a long party cloak, standing with her hand on the door, as though she had just entered. Dalton was so utterly astonished that he literally rubbed his eyes to ascertain if he were not the victim of an illusion. Whereupon the woman threw back her cloak, and advanced to the table, when he perceived to his amazement that it was the younger Mrs. Van Bartan. To this man she seemed a daughter of the very gods in the full bloom of womanhood. The rich velvet cloak thrown back from her bare shoulders, the ball dress clinging like puffy webs to a form that his brooding mind had idolized; her eyes illumined, and her splendid hair wound in loose coils above her dainty head.
It would all be very weary to set out in detail what occurred on this October night; how the younger woman explained that she had finally divined the intention of the elder Mrs. Van Bartan, and how she had hoped to see Dalton at the LeConte Dean's, and not finding him had slipped away, and, availing herself of the foggy night, had been driven unattended to his house in order to implore his aid; how she came and stood beside him, and pointed out the dread results sure to follow the elder Mrs. Van Bartan's unnatural intentions,—results disastrous to her and to hers. Gerald Van Bartan was worthless, she knew that; he had never been taught to work; he was now too old to learn; it would mean poverty, grinding poverty, and shame worse than all; and her father, aged and broken in health, and the others of them, all dependent upon her, would be thrown out to huddle in beggary, literally, beggary.
How Dalton replied that there was nothing he could do; reminding her that the elder Mrs. Van Bartan was a woman of iron will, of stern resolve, of relentless determination, and that neither he nor any other living man could affect her. And how like a woman she answered that he, Dalton, would be sent for to make the will, and that he must save her some way, she did not know how,—he would know, he was shrewd, he was a great lawyer, he could certainly find some way; this she knew, and he must do it.
And how he labored to show her that there was nothing he could do—absolutely nothing; that the whole thing was hopeless, thoroughly, utterly hopeless; and then how she came to him and put her bare white arms around him and looked up into his face, the big tears shining in her glorious eyes, and said that if this were true, then she proposed to tell him all the truth, the truth that she loved him, him only in all the wide world, him always from her very childhood, and that for others she had made this sacrifice; and how great, how awful a sacrifice it had been, men could not understand. How he coldly loosed her arms, although to do it wrenched his very heart loose; although he would have given his life gladly to have taken her in his embrace if only for a moment, and told her how he understood and how he loved her for it, and how he would always love her to the very end of all things; but, instead, how he had sternly led her out to the carriage and forced her to leave him, and how he turned back into the library with his head swimming and his heart pounding like a hammer, and fought the whole thing out through the long October night, until the dawn crept in and the birds began to chirp in the Virginia creeper.
Some weeks later, as was anticipated, the elder Mrs. Van Bartan summoned Robert Dalton to her residence in order to prepare her will. Upon his arrival he found Simon Harrison, President of the First National Bank, and David Pickney, a steel manufacturer, both prominent citizens of unquestioned integrity; also the late Milton South, a most estimable physician. At Mrs. Van Bartan's request, Robert Dalton prepared the will in the presence of these three persons. When he had finished he handed the paper to the testatrix, who thereupon read it aloud in the presence of all, declared it entirely correct, and affixed her signature. As is customary, Dalton requested the three gentlemen to converse with the testatrix and satisfy themselves that she was in proper mental condition. This they did at some length, and not unskilfully, all being men of good sense. Afterward Harrison and Pickney subscribed their names as witnesses in the manner prescribed by the statute. Mrs. Van Bartan then placed the will in an envelope, sealed it with her own hand in the presence of all, and gave it to Simon Harrison to retain until after her death.
On the seventeenth day of December following, Mrs. Van Bartan died suddenly, and some days thereafter the will was opened and read at her late residence by Simon Harrison, executor. Gerald Van Bartan and his young wife were present, as was also Robert Dalton, and those others who had been with the deceased when the will was drawn. The elder members of the law firm, Carpenter and Lomax, were likewise present, and, at the request of Harrison, the Episcopal minister, Rev. Mr. Boreland, and his counsel, an obscure practitioner named Gouch.
The will was short, leaving the entire estate, real and personal, naming it specifically, for some religious purpose; and, in a spirit of grim jest, it would seem, one dollar each to her “beloved children,” Gerald Van Bartan and Columbia Van Bartan, his wife.
The effect of this will upon the two young people, as the executor slowly read its provisions, would require a dramatist of no little stature to describe. The woman's face grew drawn and bloodless. The man's knees seemed to give way, and he would have fallen had he not been helped to a chair.
Dalton, men did not notice, for he was a skilful actor. When the executor had finished, Mr. Lomax plucked Carpenter by the arm, and inquired, in a low voice, if he had noticed any defect in the will. Carpenter replied that he had not, but that he had paid little attention to its form, whereupon Lomax requested him to examine it closely. The elder counsellor stepped up beside Harrison and began to go carefully over the instrument. Presently he stopped in amazement, and put his finger down on the paper.
“This will,” he said, “is utterly void.”
At the word, the blood surged back into Columbia Van Bartan's face. She took two steps toward Robert Dalton, then turned and buried her face in the folds of a heavy curtain. Dalton was cool and entirely incredulous.
“I think you are very much mistaken, Mr. Carpenter,” he said quietly.
“Mistaken?” answered the counsellor. “Why, this bequest is made simply to 'St. Luke's Episcopal Church.' That organization is neither an individual nor a corporation; it has no recognized legal existence. And this request must fail for want of a devisee.”
At this point Harrison, who was a slow but very careful man, interrupted and explained with great accuracy that the will was in every detail exactly as the testatrix had desired it; that even the language used was her language; that she had said “St. Luke's Episcopal Church,” and that Mr. Dalton had written it in the instrument precisely as Mrs. Van Bartan had said, and that there could be no possible error either by accident or design.
Carpenter was about to reply, when Lomax, noticing his excitement, stepped in between Harrison and the elder attorney, and pointed out at great length that this was all no doubt true, but that, under the law, an indefinite religious organization, could not take a bequest; that this was not generally known to those unfamiliar with legal business, but that Mr. Dalton should have known that, in order to devise property to a religious organization, it must be given to a board of trustees, or to a certain person or persons, named in the will, for a specific and accurately determined purpose; that this, Mr. Dalton should have explained, and that his writing down the exact words of Mrs. Van Bartan had defeated her intentions, and rendered this bequest void.
“But, sir,” put in the attorney Gouch, pompously, “the testatrix's intention must control. I see no——”
“Come, come, my good man,” cried Carpenter, angrily, “this is what is known in Virginia as a 'vague and indefinite charity.' Such bequests have been held void for almost a century. Why Silas Hart attempted to create such a devise as early as 1790, and John Marshall, Chief Justice of the United States, held it void at law. Twenty years later. Joseph Gallego attempted to bequeath a similar charity to the Roman Catholic Church at Richmond, and Henry St. George Tucker, President of the Supreme Court of Virginia, in a famous opinion, held that it must fail, and from that time until the present the courts of this country have been passing upon this common error of testators and their incompetent advisers.”
Robert Dalton looked up anxiously. “In what cases?” he stammered.
“What cases!” almost shouted the elder counsellor, for he had now lost his temper completely. “What cases, you bungler! Ask the veriest pettyfogger; ask the commonest justice of the peace, but do not catechise me.” And after having delivered himself of this venom, he seized his hat and cane and stalked out of the house. He was greatly enraged to think that a man of Dalton's learning, a member of a firm of high standing, should make such a stupendous blunder.
Later in the day Robert Dalton came to the office and requested Carpenter and Lomax to join him in his private room. His face showed plainly the evidences of a great mental strain. When they were together he closed the door, and, turning to them, said that he had examined the question which they had raised, in regard to Mrs. Van Bartan's will, and he was now satisfied that he had made a prodigious error in drafting the instrument; that as his mistake would deprive a powerful church of a vast estate, endless criticism of a most acrimonious character would follow; that it was not just for any part of this criticism to fall upon the shoulders of either Carpenter or Lomax, and, therefore, he had determined to publicly withdraw from the firm. To this they made scarcely a courteous objection, and Dalton accordingly withdrew, publishing an announcement thereof in the daily papers.
The report of a great error in Mrs. Van Bartan's will spread through the city with the marvellous rapidity of an evil rumor. The vials of bitter criticism were poured out upon the head of Robert Dalton. Men declared that they had long suspected that he was a sham, a posing ignoramus, a dangerous blunderer.
The executor, Harrison, as was his duty, attempted to execute the charitable bequest, but, of course, failed. Whereupon the press of the city stood up in the market-place like the selfcomplacent Pharisee and declared that in this day mistakes were crimes; that it was not enough for an attorney to do the best he knew,—it was his duty to know; it was not enough for an attorney to be honest, he must he likewise competent; that the law was a learned profession in which the bungler was equally as dangerous as the knave; that vast estates were conveyed by will, and how easily by mistake or design a lawyer could destroy the testator's most sacred wish; he could rob the helpless of his right, the dependent of his inheritance, or the charitable institution of its patron's aid, and all this without color of criminal wrong. The law, it asserted, punished with relentless hand the man who blundered in positions of trust; it punished with awful penalties the man who blundered in the heat of passion, but it had no censure, no sting, no scourge for the man who blundered at the bedside of the dying.
Thus was Robert Dalton's fame as a lawyer damned into the veriest blackness.