“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 on which 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—and _that_’s the sort of case _I_ like. 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 I _do_ like. 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, to _your_ mind, 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 that of 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 for _us_, 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, you _did_ use. 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 penetration I trust you have not been
attempting to purchase jurors, Timms?”
“Not I, 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; sometimes _are_ bought, I have heard say”—here Timms screwed up
his face into a most significant mimicry of disapprobation—“but _I_ have
done nothing of the sort in the ‘State _vs_. Mary Monson.’ It is too
soon to operate, even should the testimony drive us to _that_, 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 in the 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 know _her_, 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 for _private_ interviews, 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 of _them_ lasted, 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 grandfather _did_
serve 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 caught the rheumatism. This was no bad
capital to start upon; and, though you treat it lightly, ’Squire, I’m a
favourite in the county—I _am_!”
“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. _Then_ came 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 stand 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 no _legal_ claim 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 the _government_, perhaps, in one sense—but not for those of the
_nation_. 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. The _country_
gets its legal right to do all these things from the laws of nations;
the Constitution merely saying _who_ shall be its agents in the
exercise of these powers. Thus _war_ is 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. The _right_ is
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 make war 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 District 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, the _sovereign_ States 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 is _the_
question, not only of the “Hour,” but for years to come.
“Well, sir, this surprises me more and more. The States not
sovereign!—Why, they _gave_ all the power it possesses to the Federal
Government!”
“Very true; and it is precisely for _that_ reason 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 show _that_!”
“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 maintains it, 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 rupture very 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 trust _him_ with
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 shows _experience_ in 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, _cannot_ think 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 a verdict 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.