"Est in conspectu M. N. notissima famâ
Insula, dives opum, agrorum et osboni dum regna manebant."
I consented to be _in conspectu_ on Mr. Dane's earnest representations
that matters might come up on which I was better informed than he, and
on which my statements might be important. Of course, after all this
trouble, it was not worth while to run any risk through mere personal
feeling.
At the appointed time, accordingly, the combatants appeared upon the
arena at Mars Hill House, in martial array. Messrs. Hunt, Parry, & Co.
were led by a lawyer, Mr. Sudlow, whose purpose, it soon appeared, was
not to open, but to postpone the battle. I must admit I listened in
amazement. Here, after sixteen months of backing and filling, three
months after an arbitration had been agreed on, and more than a week
after the day had been appointed by them and accepted by me, they
appeared for the purpose of saying that they could not go on with the
case. I remembered with astonishment that on the thirteenth of November
preceding, the affair had seemed so simple to Mr. Hunt that he had
written to one of those friends of mine to whom he had wished and I had
declined to refer the case, "If you and I, business men, could have
half an hour's talk together, and M. N. would abide by your decision,
I think that half hour would be sufficient to settle the whole thing."
Whereas, now, before the man whom I had chosen, three months did not
seem long enough. The reasons presented by Mr. Sudlow were, first, that
the preliminaries were not arranged. The referees themselves averred
in substance that this could be done in five minutes on the spot, and
there need be no delay on that account.
Mr. Sudlow said, secondly, that at an early stage of the affair I
had waived all legal claim, or had never made any, yet that I now
appeared with a lawyer as if to establish a legal claim; that this
was an entirely new phase, and one which they could not meet without
due preparation. It was alleged in reply, that our courts do not
distinguish between legal claims and claims in equity, and that however
I might present my claim, it was as a debt and not as a gift; that
it surely would not be held by Messrs. Hunt, Parry, & Co., that the
reference had been called to arbitrate upon a gratuity. After a good
deal of talk, Mr. Dane called for the authority by which they said I
had waived all legal claims; and they produced the letter sent them by
me on the 29th August, 1767, about eight months before this time, which
said, "Of course I know that legally I have no right to go behind a
contract, and therefore no legal claim upon you for additional money
on those books that are named in the contract." Mr. Dane pointed out,
that, even on this ground there was no waiving of legal claims, except
on those books named in the contract referred to. As only three books
were embraced in that contract, as one was published under a different
contract which we wished carried out, and five were published without
any contract at all, the postponing of the case on this pretext
was simply preposterous. It seemed to me, moreover, though I said
nothing, that even if I had supposed eight months ago that I had no
legal claims, I might have subsequently learned otherwise, and that
any person who really wanted the case looked into and satisfactorily
settled would never have been deterred by so slight an obstacle. But
the contest as it stood was two-thirds legal, and it would seem as
if an enterprising firm of four shrewd business men might have been
prepared to illustrate it in eight months if they had given their minds
to it.
Mr. Sudlow affirmed, thirdly, that Messrs. Hunt, Parry, & Co. had
supposed they should meet me alone for a friendly reference; that on
such a supposition they had arranged to be represented before the
referees by one member of their firm, Mr. Markman, who had accordingly
prepared to present the case; that until they received Mr. Dane's
letter of interrogatories of the 16th instant, they had not supposed
I should employ counsel, but if I employed counsel they also should
employ counsel; that they were not prepared to appear with counsel, and
must have a postponement for the purpose of making such preparation,
and as Mr. Hunt was to leave for Europe on the following Monday, the
postponement must hold till after his return from Europe.
Mr. Dane asked them if they meant to allege that they had stipulated
that I should not employ counsel. They said they had not so stipulated,
but that they supposed I would not employ it. Mr. Dane then said that
he had been my adviser from the beginning, both as my friend and as
a friend of Mr. Hunt, Mr. Hunt having done him the honor to speak of
him as an old friend; that he had had frequent communications with
them on this subject, as they well knew, and that they had made no
objection to his connection with it; that it made no difference except
in name, whether he was called my counsel or my friend; that, although
he was a lawyer he trusted he was not on that account to be excluded
from the circle of my friends, and that, under the circumstances,
it might be proper for him to state that my name had never been on
his account-books, and that he had all along counseled me only as a
friend. "This thing," he said, "is not to be misunderstood. We want to
be definite. Will you say that you will not proceed because M. N. has
counsel,--if you choose to call it so,--when she never said that she
would not have counsel, nothing ever having been said about it?"
They still reiterated their assertion that under the circumstances
they could not go on with the case. As the business had looked to Mr.
Hunt so simple that two business men could settle it in half an hour,
it would seem as if almost any kind of a lawyer might have mastered
it in the time between the 16th of April, when the idea of my having
counsel first dawned upon the unsuspecting minds of Messrs. H., P., &
Co., and the 22d, when the hearing was to be had. The firm must rank
law far below commerce, if a lawyer could not understand in six days
with three men to help him, what a merchant could comprehend in half an
hour alone.
Mr. Dane then consulted with me, and I told him upon the impulse of the
moment that I would go on. This, perhaps, was hardly prudent or proper.
But there had been so much difficulty and delay in bringing things even
to this stage, the trouble had weighed so heavily and disastrously
upon me, that anything seemed better than an indefinite postponement.
Moreover, the reasons which they alleged for delay appeared to me mere
quibbles. I thought I saw that they did not design to have any hearing,
and that if we should ever get together again, there would be just as
much reason for further delay as now, and if I did not secure a hearing
now, I never should. I felt that the referees must surely think they
had been summoned on a fool's errand. I was quite aware not only of
my inability to present the case adequately, but to present it at all
in person,--but I had the "brief," which Mr. Dane would have used,
and I had my formidable history in which the referees could quarry at
pleasure. Even if I should lose the case, I was not without resource;
for upon the instant when I saw that Messrs. Hunt, Parry, & Co. were
about to evade the only thing which I had wanted, namely, a fair and
full discussion, there came into my mind another tribunal which it
would be impossible for them to evade, and before which I could present
my case with or without counsel, in my own time and way. I had all
along had a vague feeling that something of service to my craft must
come out of all this harassment to me, though no definite idea had
ever evolved itself. But at that moment, tingling with indignation and
contempt, and a sense of outrage,--an outrage greater than appears
here, greater I think than the junior members of the firm knew or
intended, but not greater than Mr. Hunt knew, and I believe counted
on,--at that moment I resolved that so far as I could help it, no
person should ever be placed in the position in which I found myself.
If any writer thereafter should get into such a snare, he should not
blunder in as I had done, but walk in with his eyes open. I thought
that my brief and my "Universal History" would be enough to draw
the enemy's fire. I should know where they stood, and if I could not
understand the analysis and cultivation of the soil, I could at least
map out the ground for other investigators. I felt that I could better
afford to lose my case than my time. Mr. Hunt had calculated accurately
enough the quality and amount of resistance he was accumulating against
me. The thing he had not sufficiently calculated was the amount of
force that could be brought to overcome that resistance.
Mr. Dane then said, that, having consulted me, he had one more
proposition to make; he was not himself surprised at the turn affairs
had taken; he had at the beginning advised me to have recourse to the
courts as the only sure way of redress, but that I had always refused
to do so; that he had repeatedly predicted--even to the preceding
day--that some way would be found to avoid a hearing; that he thought
it hardly fair for them to force me to go on alone, whom they knew to
be entirely unfamiliar with the details of business, who had scarcely
in my whole life had any business transactions except with themselves,
and had left those entirely in their hands, who had not indeed expected
to appear at all in the case, and had only the night before reluctantly
consented, at his solicitations, to be present--"If you, gentlemen,
think it fair and honorable to insist now, at the last hour, that M.
N. shall, without any friend, and entirely unprepared, meet you alone,
and conduct the case herself, she will do so. We have come here in good
faith to have a hearing, and if such are the only conditions on which
it can be had, we will accept them, although I think them hard. We will
accept your understanding of the conditions instead of our own. Your
firm shall have its representative, I will withdraw, M. N. will do the
best she can, and you may see if you can make anything out of it."
Mr. Parry seemed to think, like David Copperfield, that this was a
disagreeable way of putting the business, and wished me to state that
I did not feel that they wished to take any advantage of me. Mr.
Dane said, "I do not know what M. N.'s feelings are. _My_ opinion is
understood, and I shall state it whenever and wherever I choose."
As my feelings were not under arbitration, I declined, through Mr.
Dane, to make any declaration concerning them, but said I wished to go
on with the case. Mr. Dane and Mr. Sudlow then withdrew, and the firm
were reduced to the painful necessity of proceeding, although their
anxiety in regard to my feelings was not relieved.
They did not, however, proceed according to their own statement of
what had been their understanding concerning the mode of procedure.
Before Messrs. Dane and Sudlow withdrew, Mr. Sudlow said that they were
to be represented by one member of their firm, and that Mr. Markman
had prepared himself for such representation. Mr. Dane had distinctly
stated that he withdrew on this understanding. After he was gone, I
expected that Messrs. Hunt & Parry would also withdraw, according to
their statement of their original intention, and its acceptance by Mr.
Dane. Instead of which, Mr. Parry came to me and asked me if I had
any preference as to whether the whole firm should remain or only one
member of it. I conceived that this matter had been previously settled
by express stipulation, that they had no right to open it again, and
place the decision on my preference. I disdained to receive as a favor
what seemed to me the least of my rights, and I refused to express any
preference about it.
Mr. Parry said, if I had no preference, of course they would rather
stay, and they all stayed.
The following paper was then drawn up by the referees and signed by
Messrs. Hunt, Parry, & Co. and myself:--
"ATHENS, _April_ 22, 1769.
"There being a controversy between Hunt, Parry, & Co., as successors
to Brummell & Hunt of Athens, and M. N. of Zoar, in regard to the
amount due from the former to the latter for proceeds arising from the
publication and sale of the books of which M. N. is the author, it is
hereby agreed between the parties to the controversy to submit the
points in dispute to George W. Hampden and James Russell, as friendly
referees, with the right to the referees to choose a third as umpire,
either on the general merits or on any specific point that may be
submitted to said third person. And both parties to this agreement
hereby bind themselves to accept the award of said referees as binding
and conclusive, without reserving any right of appeal to any court of
law.
"In witness whereof this agreement is signed by both parties in
presence of the referees, to whose custody it is committed."
As I did not intend ever again to sign a paper whose import I did not
fully comprehend, it may be supposed that I listened attentively to the
reading of this paper. As I had no design to appeal to any court of
law, and as it did not preclude me from appealing to the court to which
I had made up my mind to appeal, I had no hesitation in signing it.
The case being thus begun, nothing remained but to place in the hands
of the referees--
_The "entire case in all its bearings" between the firm of Brummell &
Hunt and M. N.--as presented by the latter._
_Compiled chiefly from the original documents._