CHAPTER XI.
“The strawberry grows underneath the nettle;And wholesome berries thrive and ripen best,Neighbour’d by fruit of baser quality.”King Henry V.
“The strawberry grows underneath the nettle;And wholesome berries thrive and ripen best,Neighbour’d by fruit of baser quality.”King Henry V.
“The strawberry grows underneath the nettle;And wholesome berries thrive and ripen best,Neighbour’d by fruit of baser quality.”King Henry V.
“The strawberry grows underneath the nettle;
And wholesome berries thrive and ripen best,
Neighbour’d by fruit of baser quality.”
King Henry V.
There stood a very pretty pavilion in one of the groves of Rattletrap, overhanging the water, with the rock of the river-shore for its foundation. It had two small apartments, in one of which Dunscomb had caused a book-case, a table, a rocking-chair and a lounge to be placed. The other was furnished more like an ordinary summer-house, and was at all times accessible to the inmates of the family. The sanctum, or office, was kept locked; and here its owner often brought his papers, and passed whole days, during the warm months, when it is the usage to be out of town, in preparing his cases. To this spot, then, the counsellor now held his way, attended by Timms, having ordered a servant to bring a light and some segars; smoking being one of the regular occupations of the office. In a few minutes, each of the two men of the law had a segar in his mouth, and was seated at a little window that commanded a fine view of the Hudson, its fleet of sloops, steamers, tow-boats and colliers, and its high, rocky western shore, which has obtained the not inappropriate name of the Palisades.
The segars, the glass, and the pleasant scenery, teeming as was the last with movement and life, appeared, for the moment, to drive from the minds of the two men of the law the business onwhich they had met. It was a proof of the effect of habit that a person like Dunscomb, who was really a good man, and one who loved his fellow-creatures, could just then forget that a human life was, in some measure, dependent on the decisions of this very interview, and permit his thoughts to wander from so important an interest. So it was, however; and the first topic that arose in this consultation had no reference whatever to Mary Monson or her approaching trial, though it soon led the colloquists round to her situation, as it might be without their intending it.
“This is a charming retreat, ’Squire Dunscomb,” commenced Timms, settling himself with some method in a very commodious arm-chair; “and one that I should often frequent, did I own it.”
“I hope you will live to be master of one quite as pleasant, Timms, some time or other. They tell me your practice, now, is one of the best in Duke’s; some two or three thousand a year, I dare say, if the truth were known.”
“It’s as good as anybody’s on our circuit, unless you count the bigwigs from York. I won’t name the sum, even to as old a friend as yourself, ’Squire; for the man who lets the world peep into his purse, will soon find it footing him up, like a sum in arithmetic. You’ve gentlemen in town, however, who sometimes get more for a single case, than I can ’arn in a twelvemonth.”
“Still, considering your beginning, and late appearance at the bar, Timms, you are doing pretty well. Do you lead in many trials at the circuit?”
“That depends pretty much on age, you know, ’Squire. Gen’rally older lawyers are put into all my causes; but I have carried one or two through, on my own shoulders, and that by main strength too.”
“It must have been by your facts, rather than by your law. The verdicts turned altogether on testimony, did they not?”
“Pretty much—andthat’s the sort of caseIlike. A man can prepare his evidence beforehand, and make some calculations where it will land him; but, as for the law, I do not see that studying it as hard as I will, makes me much the wiser. A case is no sooner settled one way, by a judge in New York, than it is settled in another, in Pennsylvany or Virginny.”
“And that, too, when courts were identical, and had a character! Now, we have eight Supreme Courts, and they are beginning to settle the law in eight different ways. Have you studied the Code pretty closely, Timms?”
“Not I, sir. They tell me things will come round under it in time, and I try to be patient. There’s one thing about it that Idolike. It has taken all the Latin out of the law, which is a great help to us poor scholars.”
“It has that advantage, I confess; and before it is done, it will take all the law out of the Latin. They tell me it was proposed to call the old process of ‘ne exeat’ a writ of ‘no go.’”
“Well, to my mind, the last would be the best term of the two.”
“Ay, toyourmind, it might, Timms. How do you like the fee-bills, and the new mode of obtaining your compensation?”
“Capital! The more they change them matters, the deeper we’ll dig into ’em, ’Squire! I never knew reform help the great body of the community—all it favours is individdles.”
“There is more truth in that, Timms, than you are probably aware of yourself. Reform, fully half the time, does no more than shift the pack-saddle from one set of shoulders to another. Nor do I believe much is gained by endeavouring to make law cheap. It were better for the community that it should be dear; though cases do occur in which its charges might amount to a denial of justice. It is to be regretted that the world oftener decides under the influence of exceptions, rather than under thatof the rule. Besides, it is no easy matter to check the gains of a thousand or two of hungry attorneys.”
“There you’re right, ’Squire, if you never hit the nail on the head before! But the new scheme is working well forus, and, in one sense, it may work well for the people. The compensation is the first thing thought of now; and when that is the case, the client stops to think. It isn’t every person that holds as large and as open a purse as our lady at Biberry!”
“Ay, she continues to fee you, does she, Timms? Pray, how much has she given you altogether?”
“Not enough to build a new wing to the Astor Library, nor to set up a parson in a gothic temple; still, enough to engage me, heart and hand, in her service. First and last, my receipts have been a thousand dollars, besides money for the outlays.”
“Which have amounted to——”
“More than as much more. This is a matter of life and death, you know, sir; and prices rise accordingly. All I have received has been handed to me either in gold or in good current paper. The first troubled me a good deal; for I was not certain some more pieces might not be recognized, though they were all eagles and half-eagles.”
“Has any such recognition occurred?” demanded Dunscomb, with interest.
“To be frank with you, ’Squire Dunscomb, I sent the money to town at once, and set it afloat in the great current in Wall Street, where it could do neither good nor harm on the trial. It would have been very green in me to pay out the precise coin among the people of Duke’s. No one could say what might have been the consequences.”
“It is not very easy for me to foretell the consequences of the substitutes which, it seems, youdiduse. A fee to a counsel I can understand; but what the deuce you have done, legally, with a thousand dollars out-of-doors, exceeds my penetrationI trust you have not been attempting to purchase jurors, Timms?”
“Not I,sir.sir.I know the penalties too well, to venture on such a defence. Besides, it is too soon to attempt that game. Jurors may be bought; sometimesarebought, I have heard say”—here Timms screwed up his face into a most significant mimicry of disapprobation—“butIhave done nothing of the sort in the ‘Statevs. Mary Monson.’ It is too soon to operate, even should the testimony drive us tothat, in the long run.”
“I forbid all illegal measures, Timms. You know my rule of trying causes is never to overstep the limits of the law.”
“Yes, sir; I understand your principle, which will answer, provided both sides stick to it. But, let a man act as close to what is called honesty as he please, what certainty has he that his adversary will observe the same rule? This is the great difficulty I find in getting along in the world, ’Squire; opposition upsets all a man’s best intentions. Now, in politics, sir, there is no man in the country better disposed to uphold respectable candidates and just principles than I am myself; but the other side squeeze us up so tight, that before the election comes off, I’m ready to vote for the devil, rather than get the worst of it.”
“Ay, that’s the wicked man’s excuse all over the world, Timms. In voting for the gentleman you have just mentioned, you will remember you are sustaining the enemy of your race, whatever may be his particular relation to his party. But in this affair at Biberry, you will please to remember it is not an election, nor is the devil a candidate. What success have you had with the testimony?”
“There’s an abstract of it, sir; and a pretty mess it is! So far as I can see, we shall have to rest entirely on the witnesses of the State; for I can get nothing out of the accused.”
“Does she still insist on her silence, in respect of the past?”
“As close as if she had been born dumb. I have told her inthe strongest language that her life depends on her appearing before the jury with a plain tale and a good character; but she will help me to neither. I never had such a client before—”
“Open-handed, you mean, I suppose, Timms?”
“In that partic’lar, ’Squire Dunscomb, she is just what the profession likes—liberal, and pays down. Of course, I am so much the more anxious to do all I can in her case; but she will not let me serve her.”
“There must be some strong reason for all this reserve, Timms—Have you questioned the Swiss maid, that my niece sent to her. We knowher, and it would seem that she knows Mary Monson. Here is so obvious a way of coming at the past, I trust you have spoken to her?”
“She will not let me say a word to the maid. There they live together, chatter with one another from morning to night, in French, that nobody understands; but will see no one but me, and me only in public, as it might be.”
“In public!—You have not asked forprivateinterviews, eh! Timms? Remember your views upon the county, and the great danger there is of the electors’ finding you out.”
“I well know, ’Squire Dunscomb, that your opinion of me is not very flattering in some partic’lars; while in others I think you place me pretty well up the ladder. As for old Duke’s, I believe I stand as well in that county as any man in it, now the Revolutionary patriots are nearly gone. So long as any ofthemlasted, we modern fellows had no chance; and the way in which relics were brought to light was wonderful! If Washington only had an army one-tenth as strong as these patriots make it out to be, he would have driven the British from the country years sooner than it was actually done. Luckily, my grandfatherdidserve a short tour of duty in that war; and my own father was a captain of militia in 1814, lying out on Harlem Heights and Harlem Common, most of the fall; when and where he caughtthe rheumatism. This was no bad capital to start upon; and, though you treat it lightly, ’Squire, I’m a favourite in the county—Iam!”
“Nobody doubts it, Timms; or can doubt it, if he knew the history of these matters. Let me see—I believe I first heard of you as a Temperance Lecturer?”
“Excuse me; I began with the Common Schools, on which I lectured with some success, one whole season.Thencame the Temperance cause, out of which, I will own, not a little capital was made.”
“And do you stop there, Timms; or do you ride some other hobby into power?”
“It’s my way, Mr. Dunscomb, to try all sorts of med’cines. Some folks that wunt touch rhubarb will swallow salts; and all palates must be satisfied. Free Sile and Emancipation Doctrines are coming greatly into favour; but they are ticklish things, that cut like a two-edged sword, and I do not fancy meddling with them. There are about as many opposed to meddling with slavery in the free States, as there are in favour of it. I wish I knew your sentiments, ’Squire Dunscomb, on this subject. I’ve always found your doctrines touching the Constitution to be sound, and such as would standexamination.”examination.”
“The constitutional part of the question is very simple, and presents no difficulties whatever,” returned the counsellor, squinting through the ruby of his glass, with an old-bachelor sort of delight, “except for those who have special ends to obtain.”
“Has, or has not, Congress a legal right to enact laws preventing the admission of slaves into California?”
“Congress has the legal right to govern any of its territories despotically; of course, to admit or to receive what it may please within their limits. The resident of a territory is not a citizen, and has nolegalclaim to be so considered. California, as a conquered territory, may be thus governed by the laws of nations,unless the treaty of cession places some restrictions on the authority of the conqueror. A great deal of absurdity is afloat among those who should know better, touching the powers of government in this country. You yourself, are one of those fellows, Timms, who get things upside-down, and fancy the Constitution is to be looked into for everything.”
“And is it not, ’Squire?—that is, in the way of theory—in practice, I know it is a very different matter. Are we not to look into the Constitution for all the powers of the government?”
“Of thegovernment, perhaps, in one sense—but not for those of thenation. Whence come the powers to make war and peace, to form treaties and alliances, maintain armies and navies, coin money, &c.?”
“You’ll find them all in the Constitution, as I read it, sir.”
“There is just your mistake; and connected with it are most of the errors that are floating about in our political world. Thecountrygets its legal right to do all these things from the laws of nations; the Constitution merely sayingwhoshall be its agents in the exercise of these powers. Thuswaris rendered legal by the custom of nations; and the Constitution says Congress shall declare war. It also says Congress shall pass all laws that become necessary to carry out this power. It follows, Congress may pass any law that has a legitimate aim to secure a conquest. Nor is this all the functionaries of the government can do, on general principles, in the absence of any special provisions by a direct law. The latter merely supersedes or directs the power of the former. The Constitution guarantees nothing to the territories. They are strictly subject, and may be governed absolutely. The only protection of their people is in the sympathy and habits of the people of the States. We give them political liberty, not as of legal necessity, but as a boon to which they are entitled in good-fellowship—or as the father provides for his children.”
“Then you think Congress has power to exclude slavery from California?”
“I can’t imagine a greater legal absurdity than to deny it. I see no use in any legislation on the subject, as a matter of practice, since California will shortly decide on this interest for itself; but, as a right in theory, it strikes me to be madness to deny that the government of the United States has full power over all its territories, both on general principles and under the Constitution.”
“And in the Deestrict—you hold to the same power in the Deestrict?”
“Beyond a question. Congress can abolish domestic servitude or slavery in the District of Columbia, whenever it shall see fit. Therightis as clear as the sun at noon-day.”
“If these are your opinions, ’Squire, I’ll go for Free Sile and Abolition in the Deestrict. They have a popular cry, and take wonderfully well in Duke’s, and will build me up considerable. I like to be right; but, most of all, I like to be strong.”
“If you adopt such a course, you will espouse trouble without any dower, and that will be worse than McBrain’s three wives; and, what is more, in the instance of the District, you will be guilty of an act of oppression. You will remember that the possession of a legal power to do a particular thing, does not infer a moral right to exercise it. As respects your Free Soil, it may be well to put down a foot; and, so far as votes legally used can be thrown, to prevent the further extension of slavery. In this respect you are right enough, and will be sustained by an overwhelming majority of the nation; but, when it comes to the District, the question has several sides to it.”
“You said yourself, ’Squire, that Congress has all power to legislate for the Deestrict?”
“No doubt it has—but the possession of a power does not necessarily imply its use. We have power, as a nation, to makewar on little Portugal, and crush her; but it would be very wicked to do so. When a member of Congress votes on any question that strictly applies to the District, he should reason precisely as if his constituents all lived in the Districtitself.itself.You will understand, Timms, that liberty is closely connected with practice, and is not a mere creature of phrases and professions. What more intolerable tyranny could exist than to have a man elected by New Yorkers legislating for the District on strictly New York policy; or, if you will, on New York prejudices? If the people of the District wish to get rid of the institution of domestic slavery, there are ways for ascertaining the fact; and once assured of that, Congress ought to give the required relief. But in framing such a law, great care should be taken not to violate the comity of the Union. The comity of nations is, in practice, a portion of their laws, and is respected as such; how much more, then, ought we to respect this comity in managing the relations between the several States of this Union!”
“Yes, thesovereignStates of the Union,” laying emphasis on the word we have italicized.
“Pshaw—they are no more sovereign than you and I are sovereign.”
“Not sovereign, sir!” exclaimed Timms, actually jumping to his feet in astonishment; “why this is against the National Faith—contrary to all the theories.”
“Something so, I must confess; yet very good common sense. If there be any sovereignty left in the States, it is the very minimum, and a thing of show, rather than of substance. If you will look at the Constitution, you will find that the equal representation of the States in the Senate is the only right of sovereign character that is left to the members of the Union separate and apart from their confederated communities.”
Timms rubbed his brows, and seemed to be in some mental trouble. The doctrine of the “Sovereign States” is so very common,so familiar in men’s mouths, that no one dreams of disputing it. Nevertheless, Dunscomb had a great reputation in his set, as a constitutional lawyer; and the “expounders” were very apt to steal his demonstrations, without giving him credit for them. As before the nation, a school-boy would have carried equal weight; but the direct, vigorous, common-sense arguments that he brought to the discussions, as well as the originality of his views, ever commanded the profound respect of the intelligent. Timms had cut out for himself a path by which he intended to ascend in the scale of society; and had industriously, if not very profoundly, considered all the agitating questions of the day, in the relations they might be supposed to bear to his especial interests. He had almost determined to come out an abolitionist; for he saw that the prejudices of the hour were daily inclining the electors of the northern States, more and more, to oppose the further extension of domestic slavery, so far as surface was concerned, which was in effect preparing the way for the final destruction of the institution altogether. For Mr. Dunscomb, however, this wily limb of the law, and skilful manager of men, had the most profound respect; and he was very glad to draw him out still further on a subject that was getting to be of such intense interest to himself, as well as to the nation at large; for, out of all doubt, it isthequestion, not only of the “Hour,” but for years to come.
“Well, sir, this surprises me more and more. The States not sovereign!—Why, theygaveall the power it possesses to the Federal Government!”
“Very true; and it is precisely forthatreason they are not sovereign—that which is given away is no longer possessed. All the great powers of sovereignty are directly bestowed on the Union, which alone possesses them.”
“I will grant you that, ’Squire; but enough is retained to hang either of us. The deuce is in it if that be not a sovereign power.”
“It does not follow from the instance cited. Send a squadron abroad, and its officers can hang; but they are not sovereign, for the simple reason that there is a recognised authority over them, which can increase, sustain, or take away altogether, any such and all other power. Thus is it with the States. By a particular clause, the Constitution can be amended, including all the interests involved, with a single exception. This is an instance in which the exception does strictly prove the rule. All interests but the one excepted can be dealt with, by a species of legislation that is higher than common. The Union can constitutionally abolish domestic slavery altogether——”
“It can!—It would be the making of any political man’s fortune to be able to showthat!”
“Nothing is easier than to show it, in the way of theory, Timms; though nothing would be harder to achieve, in the way of practice. The Constitution can be legally amended so as to effect this end, provided majorities in three-fourths of the States can be obtained; though every living soul in the remaining States were opposed to it. That this is the just construction of the great fundamental law, as it has been solemnly adopted, no discreet man can doubt; though, on the other hand, no discreet person would think of attempting such a measure, as the vote necessary to success cannot be obtained. To talk of the sovereignty of a community over this particular interest, for instance, when all the authority on the subject can be taken from it in direct opposition to the wishes of every man, woman and child it contains, is an absurdity. The sovereignty, as respects slavery, is in the Union, and not in the several States; and therein you can see the fallacy of contending that Congress has nothing to do with the interest, when Congress can take the initiative in altering this or any other clause of the great national compact.”
“But, the Deestrict—the Deestrict, ’Squire Dunscomb—what can and ought to be done there?”
“I believe in my soul, Timms, you have an aim on a seat in Congress! Why stop short of the Presidency? Men as little likely as yourself to be elevated to that high office have been placed in the executive chair; and why not you as well as another?”
“It is an office ‘neither to be sought nor declined,’ said an eminent statesman,” answered Timms, with a seriousness that amused his companion; who saw, by his manner, that his old pupil held himself in reserve for the accidents of political life. “But, sir, I am very anxious to get right on the subject of the Deestrict”—Timms pronounced this word as we have spelt it—“and I know that if any man can set me right, it is yourself.”
“As respects the District, Mr. Timms, here is my faith. It is a territory provided for in the Constitution for a national purpose, and must be regarded as strictly national property, held exclusively for objects that call all classes of citizens within its borders. Now, two great principles, in my view, should control all legislation for this little community. As I have said already, it would be tyranny to make the notions and policy of New York or Vermont bear on the legislation of the District; but, every member is bound to act strictly as a representative of the people of the spot for whom the law is intended. If I were in Congress, I would at any time, on a respectable application, vote to refer the question of abolition to the people of the District; if they said ay, I would say ay; if no, no. Beyond this I would never go; nor do I think the man who wishes to push matters beyond this, sufficiently respects the general principles of representative government, or knows how to respect the spirit of the national compact. On the supposition that the District ask relief from the institution of slavery, great care should be observed in granting the necessary legislation. Although the man in South Carolina has no more right to insist that the District should maintain the ‘peculiar institution,’ because his particular State maintainsit, than the Vermontese to insist on carrying his Green Mountain notions into the District laws; yet has the Carolinian rights in this territory that must ever he respected, let the general policy adopted be what it may. Every American has an implied right to visit the District on terms of equality. Now, there would be no equality if a law were passed excluding the domestics from any portion of the country. In the slave States, slaves exclusively perform the functions of domestics; and sweeping abolition might very easily introduce regulations that would be unjust towards the slave-holders. As respects the northern man, the existence of slavery in or out of the District is purely a speculative question; but it is not so with the southern. This should never be forgotten; and I always feel disgust when I hear a northern man swagger and make a parade of his morality on this subject.”
“But the southern men swagger and make a parade of their chivalry, ’Squire, on the other hand!”
“Quite true; but, with them, there is a strong provocation. It is a matter of life and death to the south; and the comity of which I spoke requires great moderation on our part. As for the threats of dissolution, of which we have had so many, like the cry of ‘wolf,’ they have worn themselves out, and are treated with indifference.”
“The threat is still used, Mr. Dunscomb!”
“Beyond a doubt, Timms; but of one thing you may rest well assured—if ever there be a separation between the free and the slave States of this Union, the wedge will be driven home by northern hands; not by indirection, but coolly, steadily, and with a thorough northern determination to open the seam. There will be no fuss about chivalry, but the thing will be done. I regard the measure as very unlikely to happen, the Mississippi and its tributaries binding the States together, to say nothing of ancestry, history, and moral ties, in a way to render a rupturevery difficult to effect; but, should it come at all, rely on it, it will come directly from the north. I am sorry to say there is an impatience of the threats and expedients that have so much disfigured southern policy, that have set many at the north to ‘calculating the value;’ and thousands may now be found where ten years since it would not have been easy to meet with one, who deem separation better than union with slavery. Still, the general feeling of the north is passive; and I trust it will so continue.”
“Look at the laws for the recovery of fugitives, ’Squire, and the manner in which they are administered.”
“Bad enough, I grant you, and full of a want of good faith. Go to the bottom of this subject, Timms, or let it alone altogether. Some men will tell you that slavery is a sin, and contrary to revealed religion. This I hold to be quite untrue. At all events, if it be a sin, it is a sin to give the son the rich inheritance of the father, instead of dividing it among the poor; to eat a dinner while a hungrier man than yourself is within sound of your voice; or, indeed, to do anything that is necessary and agreeable, when the act may be still more necessary to, or confer greater pleasure on, another. I believe in a Providence; and I make little doubt that African slavery is an important feature in God’s Laws, instead of being disobedience to them.—But enough of this, Timms—you will court popularity, which is your Archimedean lever, and forget all I tell you. Is Mary Monson in greater favour now than when I last saw you?”
“The question is not easily answered, sir. She pays well, and money is a powerful screw!”
“I do not inquire what you do with her money,” said Dunscomb, with the evasion of a man who knew that it would not do to probe every weak spot in morals, any more than it would do to inflame the diseases of the body; “but, I own, I should like to know if our client has any suspicions of its uses?”
Timms now cast a furtive glance behind him, and edged his chair nearer to his companion, in a confidential way, as if he would trusthimwith a private opinion that he should keep religiously from all others.
“Not only does she know all about it,” he answered, with a knowing inclination of the head, “but she enters into the affair, heart and hand. To my great surprise, she has even made two or three suggestions that were capital in their way! Capital! yes, sir; quite capital! If you were not so stiff in your practice, ’Squire, I should delight to tell you all about it. She’s sharp, you may depend on it! She’s wonderfully sharp!”
“What!—That refined, lady-like, accomplished young woman!”
“She has an accomplishment or two you’ve never dreamed of, ’Squire. I’d pit her ag’in the sharpest practitioner in Duke’s, and she’d come out ahead. I thought I knew something of preparing a cause; but she has given hints that will be worth more to me than all her fees!”
“You do not mean that she showsexperiencein such practices?”
“Perhaps not. It seems more like mother-wit, I acknowledge; but it’s mother-wit of the brightest sort. She understands them reporters by instinct, as it might be. What is more, she backs all her suggestions with gold, or current bank-notes.”
“And where can she get so much money?”
“That is more than I can tell you,” returned Timms, opening some papers belonging to the case, and laying them a little formally before the senior counsel, to invite his particular attention. “I’ve never thought it advisable to ask the question.”
“Timms, you do not,cannotthink Mary Monson guilty?”
“I never go beyond the necessary facts of a case; and my opinion is of no consequence whatever. We are employed to defend her; and the counsel for the State are not about to get averdict without some working for it. That’s my conscience in these matters, ’Squire Dunscomb.”
Dunscomb asked no more questions. He turned gloomily to the papers, shoved his glass aside, as if it gave him pleasure no longer, and began to read. For near four hours he and Timms were earnestly engaged in preparing a brief, and in otherwise getting the cause ready for trial.