University of Virginia Library

11. CHAPTER XI.

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 twelve-month.”

“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 over-whelming
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 a
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 squadrom
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 be 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.