University of Virginia Library

16. CHAPTER XVI.
PROCEEDINGS AT LAW.

It was about the year 1790, that my uncle Walter
began to turn his attention to the condition of the
Apple-pie frontier.

Until this time, ever since the miscarriage of the
unfortunate enterprise of the mill, this part of the domain
had been grievously neglected. It was a perfect
wilderness. No fences had ever been erected,
on either side, to guard the contiguous territories
from encroachment; and there were numerous cow-paths
leading into the thickets, which afforded a
passage, though somewhat complicated, from the
one estate to the other. The soil was cold and barren,
and no cultivation, therefore, was expended upon
this quarter. In fact, it may be said to have belonged
to the colts, pigs, heifers, racoons, opossums and
rabbits of both proprietors. The negroes still consider
it the finest place in the whole country to catch
vermin, as they call the three latter species of animals;
and I myself, frequently in my ranges through this
region, encounter their various gins and snares set in
the many by-paths that cross it.

The tract of marsh land, occupied by the dam in
old times, did not exceed, on the Tracy side of the

Branch, above thirty acres. It was a slip of about
half a mile in length, and perhaps, at its widest part,
not more than two hundred yards broad, that bordered
on that side of the Branch. This slip, of course,
constituted the subject matter of my grand uncle's
purchase from Mr. Gilbert Tracy.

It occurred to Walter Hazard, about the period I
have referred to above, that this bottom might be
turned to some account, if it were well drained,
cleaned of its rank growth of brushwood, and exposed
to the sun and then set in grass. It would
doubtless, he thought, make an excellent pasture for
his cattle; and, at all events, would contribute to
render the surrounding country more healthy.

If my uncle Walter had been a man in the least
degree given to superstitious influences, he would
have seen, in the ill-fated schemes of his father in
this direction, the most inauspicious omens against
his success in his contemplated achievement. But
he was a man who never thought of omens, and was
now altogether intent upon adding a rich and convenient
meadow to his estate.

It seemed that the Apple-pie was to be the fountain
of an Iliad of troubles to the Hazard family.

When Walter Hazard was ready to go to work,
somewhere about midsummer, he turned in twenty
hands upon the marsh, and forthwith constructed
some rectangular ditches, traversing it upon both
sides of the branch, sufficiently near to carry off the
water. Whilst he was employed at this work, and
not dreaming of any other obstacles than those that

were before his eyes, he was exceedingly surprised
to receive a letter from Mr. Isaac Tracy, which, in
the most friendly and polite terms, intimated that the
writer had just been made acquainted with Captain
Hazard's (my uncle always bore this title after the
war,) design of draining the marsh; and regretted to
learn that he had assumed a proprietary right over a
portion of the domain that appertained to the Brakes.
The letter proceeded to acquaint my uncle that this
infringement involved a question affecting the family
dignity; and, therefore, it was suggested, that it became
necessary to remonstrate against it, more from
considerations of a personal nature, than from any
regard to the value of the soil thus brought into dispute.

Now it so happened that Mr. Tracy had, for
some time past, been revolving in his mind this subject,
to wit,—the right of ownership over the bed of
the mill-dam, after the accident that brought it again
into the condition in which it existed before the erection
of the mill. He had examined the deed from
his father, part of which I have recited in a former
chapter, and that document favoured the conclusion,
that as the grant had been made for a specific purpose,
the failure of that purpose restored the original
owner to all his former prerogatives.

This brought him to studying the law of the matter,
and he soon became perfectly assured that he
understood all about it. In short, he took up a bold,
peremptory and dogged opinion, that he was in,—as
he remarked,—of his former estate: that it was a

grant durante the existence of the mill-pond; a feoffment
defeasible upon condition subsequent, and a
dozen such other dogmas which tickled the worthy
gentleman excessively, when they once made a lodgment
in his brain. There is nothing in the world, I
believe, that produces a more sudden glory in the
mind, than the first conceits of a man who has made
some few acquisitions in an abstruse science: he is
never at rest until he makes some show of his stock
to the world; and I have observed that this remark
is particularly applicable to those who have got a
smattering of law. Mr. Tracy ran off with the thing
at full speed. He affected to consult his lawyer
upon the matter, but always silenced all attempts of
that adviser to explain, by talking the whole time
himself, and leaving him without an answer.

It was in the height of this fevour that he received
the information of my uncle's proceedings; and it
was with a kind of exultation and inward chuckling
over the certainty of his rights, that he sat down and
addressed Captain Hazard the letter of which I have
spoken. There was another sentiment equally active
in Mr. Tracy's mind to spur him on to this action.
The lord of a freehold coming by descent
through two or three generations, and especially if he
be the tenant in tail, is as tenacious as a German
Prince of every inch of his dominions. There is a
segniorial pride attached to his position, and the invasion
of the most insignificant outpost conveys an
insult to the lawful supremacy; it manifests a contemptuous
defiance of the feudal dignity. Mr. Tracy

felt all this on the present occasion, and, perhaps,
rather more acutely in consequence of the partial
alienation between his own and his neighbour's family,
produced by the late political events, and which
was, at this period, but very little removed.

The letter came upon my uncle like a gauntlet
thrown at his feet. He was somewhat choleric in
temper, and his first impulse was to make a quarrel
of it. It seemed to him to imply a dishonest intrusion.

However, when he came to consider it more
maturely, he could find no fault either with its tone
or its temper. It was a frank, polite and seemly
letter enough: “If it was Mr. Tracy's land,” said
my uncle, “he certainly had a right to say so:” and
in truth, as he thought more about it, he came to
the conclusion that it looked well to see a gentleman
inclined to stand by his rights: it was what every
man of property ought to do!

In this feeling, my uncle wrote his reply to Mr.
Tracy's letter, and filled it with every observance of
courtesy, but, at the same time, steadily gainsaying
his neighbour's opinions of the right, and desiring
that the matter should be investigated for their mutual
satisfaction. This communication was followed
by the instant withdrawal of his people from the
debatable ground, and, for the time, with an abandonment
of the meadow scheme.

Never were there, in ancient days of bull-headed
chivalry, when contentious monk, bishop or knight
appealed to fiery ordeal, cursed morsel, or wager of

battle, two antagonists better fitted for contest than
the worthies of my present story. My uncle had
been a seasoned campaigner of the Revolution, with a
sturdy soul set in an iron frame, and had grown, by
force of habit, a resolute and impregnable defender
of his point. Mr. Tracy, I have already described
as the most enamoured man in the world of an argument.
And here they were, with as pretty a field
before them as ever was spoiled by your peace-makers.
The value of the controversy not one groat;
its issue, connected with the deepest sentiment that
lay at the bottom of the hearts of both,—the pride
of conquest!

Mr. Tracy's first measure was to write a long
dissertation upon the subject, in the shape of an epistle,
to my uncle. It was filled with discussions upon
reversionary interests, resulting uses, and all the jargon
of the books, plentifully embellished with a prodigious
array of learning, contained in pithy Latin
maxims, in which the lawyers are wont to invest
meagre and common thoughts with the veil of science.
It was filled, moreover, with illustrations and
amplifications and exaggerations, the fruit of a severe
and learned study of his case by the writer.

Then followed my uncle's reply, in which it was
clear that he did not understand a word of the argument
that was intended to prostrate him. After this
came rejoinder and surrejoinder, and reduplications
of both, poured in by broadsides. Never was there
so brisk a tourney of dialectics known on the banks
of the James River! The disputants, now and then,

became sharp, and my uncle, whenever this was
the case, obtained a decided advantage by a certain
caustic humour, that he handled with great dexterity.

Eventually, as it might have been foreseen, they resolved
to go to law, and institute an amicable ejectment.
Here a difficulty arose. It was hard to determine
which should be plaintiff, and which defendant;
since it was not quite clear who was in possession.
Mr. Tracy insisted, with all imaginable politeness,
upon making my uncle the compliment of appearing
as the plaintiff in the action, which the latter obstinately
refused, inasmuch as he was unwilling it
should be understood by the world that the suit had
been one of his seeking. This was adjusted, at last,
by Mr. Tracy's commencing the proceeding himself.
It began in the county court; and then went to the
superior court; and then to the court of appeals.
This occupied some years. All the decisions, so far
as they had gone, had been in favour of my uncle;
but there were mistakes made in important points,
and proofs omitted, and papers neglected to be filed.
Mr. Tracy was deeply vexed at the issue, and waxed
warm. So, the whole proceedings were commenced
anew, and carried a second time through the same
stages. The principal points were still in my uncle's
favour. His antagonist bit his lips, affirmed the utter
impregnability of his first positions, and resolved
not to give up the point. Never was there a case so
fruitful of subdivisions! Jury after jury was brought to bear upon it; and twenty times every trace of the
original controversy was entirely out of sight. At

length they got into chancery, and then there was
the deuce to pay!

Year after year rolled away, and sometimes the
pretty little quarrel slept, like the enchanted princess,
as if it was not to wake again for a century.
And then again, all of a sudden, it was waked up,
and shoved and tossed and thumped and rolled and
racketed about, like Diogenes' tub.

It was observable, throughout all this din and
bustle, that Mr. Tracy was completely driven out
of every intrenchment of law and fact; which, so
far from having the effect of moderating his opinion
or his zeal, set him into a more thorough and vigorous
asseveration of his first principles.

He affirmed that the juries were the most singularly
obtuse and obstinate bodies he had ever encountered;
and that the courts were, beyond all
question, the most incurably opinionated tribunals
that ever were formed.

In the height of this warfare, the death of the defendant,
my uncle, occurred; which for some years
again lulled all hostilities into a profound slumber.
After a long interval, however, the contest was resumed;
and it now fell to the lot of Frank Meriwether
to enter the lists. No man could be more indisposed
by nature to such an enterprise; and it was
plainly discernible that our old friend of the Brakes
was also beginning, in his old age, to relax into a pacific
temper.

It must be remarked, that during the latter years of
this struggle the two families had grown to be upon a

very intimate footing, and that at no period had the
legal disquiets the least influence whatever upon the
private regards of the parties.

In order, therefore, to get rid of the troubles of carrying
on the debate, Frank Meriwether had thrown
out some hints of a disposition to settle the whole affair
by a reference to mutual friends; and would
gladly at any time have relinquished all claim to the
disputed territory, if he could have contrived to do
so without wounding the feelings of his neighbour,
who was now singularly tenacious to have it appear
that his only object in the pursuit was to vindicate
his first decided impressions. The old gentleman,
therefore, readily agreed to the arbitration, and still
fed his vanity with the hope that he should find in
the private judgment of impartial men, a sound,
practical, common sense justification of his original
grounds in the controversy.

This result is to be risked upon the opinions of
Singleton Oglethorpe Swansdown and Philpot Wart,
Esquires, who are immediately to convene for the
consideration of this momentous subject.