University of Virginia Library

23. CHAPTER XXIII.
TRIAL BY VIEW.

When mounted our muster consisted of ten persons,
besides the servants, and included all the gentlemen
assembled, with the addition of Rip, who,
astride of Spitfire, caracoled and bounded from place
to place, like a young adjutant of a squadron. The
old walls of Swallow Barn had never echoed back
the tramp, the hum, or the shouts of a more goodly
company than that which now filed off from the gate.
Our ranks were accommodated to the nature of the
road we had to travel. At first, Mr. Wart, with his
papers still peeping forth from his pocket, shot ahead
of the troop by the common brisk and easy-racking
gait to which his tall and ungainly steed was accustomed;
and he did not seem to be aware of the inequality
of his pace, until he had gained about a
hundred yards upon the cavalcade, and was admonished
by a call from two or three of the party, that
he would soon leave us out of sight, if he went on at
that speed. His two hounds were, as usual, jogging
close at his horse's heels; and any one might very
well have mistaken our whole equipment for a party
setting out to beat a cover, with the principal
hunstman in advance; for, in addition to Philly's

hounds, we had every dog of Swallow Barn in our
train. Never, since the deluge, was there a law-suit
to be determined by so grotesque an array of judges,
counsellors, parties and witnesses as this! And
never before in the history of jurisprudence, perhaps,
was there such a case!

Philly Wart was highly amused. He had brought
himself to look upon the whole matter as a mere
pastime, and he was now determined to make the
best of it. He could not for a moment give his features
a serious cast, but laughed in reply to every
question, like a man tickled with his own thoughts.
He had reined up his horse, in obedience to our
call, and was looking back upon the approaching
host, when I rode up to him.

“This is a mode of practice very much to my
liking,” said he. “The law would not be such a
wearisome business, Mr. Littleton, if its affairs were
to be transacted in the field o' horseback; and with
a fine pack of dogs instead of a jury. Famous juries
they'd make, for courses and distances, in an
ejectment, ha, ha, ha! If it were only the right season,
I think we should be likely to look over more
boundary lines than one to-day.”

The same tone of enjoyment seemed gradually to
have visited even old Mr. Tracy, after we had left
the gate. Before this, there was a deep-seated care
upon his brow; but he now began to take the hue
of the hour. We had entered, after riding some distance,
upon a narrow and tangled path, beset with underwood,
that indicated our proximity to the ground

around the mill. Through this portion of our road
we were constrained to pass in single files, thus elongating
our line of march, until it resembled that of a
detachment of cavalry exploring a suspected haunt
of an enemy. The resemblance occasioned our venerable
friend of the Brakes to turn round to Meriwether
and remark with a pleasant but precise form
of address,—

“You perceive, Mr. Meriwether, that the most
formidable invasion of the Apple-pie frontier continues
now, as of old, to come from the direction of
Swallow Barn.”

“I could heartly wish, my dear friend,” replied
Frank, “that every invasion in the world were as
certain to promote the ends of justice and peace as
this. And I could wish, too, that every supposed
encroachment upon right, should be as gallantly and
honourably met.”

“But not quite so obstinately defended,” said Harvey
Riggs, in a half whisper, as he turned round on
his saddle to make the remark to Ned Hazard.

“Amen!” said Ned.

When we arrived at the mill there was a silent
pause for some moments, in which every one seemed
to be engaged in surveying the ragged, marshy and
unprofitable features of the landscape, and wondering
in his own mind (at least all but Mr. Tracy)
how such a piece of land could possibly have furnished
a subject for such a protracted litigation.
Philly Wart appeared to be aware of the common

surprise, and looking round, somewhat jestingly, in
the faces of the group, remarked,—

“Yes, there it is! And all that we have to do is,
to get down from our horses, organize the court, and
fall to work to determine whether the heirs of Swallow
Barn or of the Brakes are hereafter to be pestered
with this fine garden of wankopins and snake-collards!”

We dismounted; and some moments elapsed before
the parties were ready to proceed to the business
in hand. In this interval, the counsellor had walked
up to the tutor, who stood upon a hillock, with
his glass up to his eye, surveying the scene.

“What do you think of the prospect, Mr. Chub?”
asked Philly Wart. “By what name would you venture
to describe this luxuriant, refreshing, and sightly
piece of land? Is it mariscus, or mora, or hulmus,
or simple locus paludosus?”

“Sure it is not to look at this ill-favoured quagmire,
that we have been risking our necks under
boughs of trees, and dodging through brambles this
morning!” exclaimed the tutor.

“Aye,” answered Philly, “this is the very ground
of contention that has enlivened the annals of two
families and their descendants, for half a century. It
has been a gay quarrel, Mr. Chub, and has cost
something more than breath to keep it up. It has
lost nothing of its dignity, I warrant you, for want of
long opinions and sober counsel! Floreat Lex, Mr.
Chub, is our motto! It is a merry day for our craft,

when laymen take to reading the statutes, and pride
holds the purse strings.”

“This is a great Sirbonian bog,” said the tutor.
“It is as worthless as the Pomptinæ Paludes,—
Gad-a-mercy! it should be relinquished by unanimous
consent to the skunks and the muskrats!”

“It is a hereditament,—as we lawyers say, Mr.
Chub, that would pass under the name runcaria,
which signifies, full of brambles and briars, or rather,
by the title in our law Latin, (I doubt if you have
studied that kind of Latin, Mr. Chub?) of jampna,
which comes, as Lord Coke says, of jonc, the French
for bulrush, and nower, a waterish place.”

“Truly, your dog Latin suits the description of the
place marvellously well, Mr. Philpot Wart,” said
the tutor, laughing. “And what do you consider, Mr.
Meriwether,” he continued, addressing Frank, who
had just come to the spot, “the value of this ground
to be, per acre?”

“About sixpence,” answered Frank, smiling.

“Too high; you hold it all too dear,” interrupted
Philly, “threepence at the outside, and dear at that.
But come, gentlemen,—Mr. Swansdown we lose
time. Let us to business.”

Upon this, the principal personages concerned in
the business of the day, withdrew to a convenient
spot, and selecting a piece of square timber, that constituted
a part of the ruins of the mill, they took their
seats.

Old Mr. Tracy now very deliberately proceeded

to empty his pocket of a bundle of papers, neatly
tied up together, and loosening the string that bound
them, he spread them out upon his knees. Then, after
some rummaging, he produced a pair of spectacles,
which, with great caution, he adjusted upon his nose;
and taking up one of the papers, he presented it to
the arbitrators, saying, “here is the first letter in the
correspondence which arose between the lamented
Mr. Walter Hazard, and myself, touching the present
subject of difference. If you prefer it, gentlemen,
I will give you the copy of the letters that passed
in the year 1759, between my immediate ancestor
and the first Mr. Edward Hazard, in regard to
that latter gentleman's plan of erecting this mill, at
that date.”

“If you will be so kind,” said Philly, with an air
of affectionate courtesy towards the old gentleman,
“as to leave these papers with us, Mr. Tracy, we
will digest them at our leisure. In the mean time,
we will look at the deed from Gilbert Tracy to Edward
Hazard—I have it here—” Saying this, he produced
the roll of papers which had been so conspicuous
about his person all the morning, and took from
it the deed in question.

Here Philly mounted his spectacles, and began to
read, in a clear voice, such parts of the deed as related
to the nature and character of the grant; and
which parts, in order that my reader might thoroughly
understand the precise question in dispute, I have
substantially set forth in a former chapter.

“This deed, Mr. Swansdown,” said Philly, as he
finished reading, “lays the whole foundation of the
controversy. The pretensions of the parties, as based
upon this instrument are well understood, and all
that remains for us is to ascertain what was the specific
meaning of the parties thereto.”

“That must be seen,” said Mr. Tracy, “by the
letters which I have just given you.”

“Upon that point,” said Philly Wart, “the courts
have uniformly decided —”

“We are not to be governed by the adjudications
of the courts upon any of these questions,” interrupted
Mr. Tracy; “it is understood that the case is to
be adjudged according to the principles of equity.”

“Equitas sequitur legem, my friend,” said Philly,
smiling. “If there be ambiguity patent, that is, apparent
upon the face of the deed, the law allows testimony
to be received as to the intent of the parties
concerned in the covenants. But where the intention
may be derived from the construction of the covenants
themselves, according to their plain letter,
the law doth not permit acts and matters in pais to
be used to set up an intention dehors the written instrument.”

“Pray, Mr. Wart,” said Swansdown, “permit me
to ask, whether this case, agreeably to your understanding
of it, is governed by the Roman or civil law,
or strictly according to the technical principles of
the common law?”

“Only, sir, according to the course of the laws of
this commonwealth,” replied Philly, with an air of

surprise at the question, and as if nettled by the foppery
of Swansdown's manner. “Your suggestion,
Mr. Tracy, will be a subject for our consideration,”
he continued, assuming his former mild tone, to the
gentleman he addressed.

Various other papers were now produced and
read; and when all this documentary evidence had
been brought to view, Philly remarked, with a manner
that seemed to indicate profound reflection upon
the case in hand;—

“An idea strikes me, which appears to have an
important influence upon the subject under consideration.
I confess I should like to be satisfied upon
this point. Mr. Swansdown and myself, I presume,
will not differ about the construction of the deed, nor
upon the nature of the law by which it is to be determined,”
he added, smiling; “but, if my present
suspicions be confirmed, it is more than probable that
our labour will be very much abridged. I rather
suspect that this case will be found, upon examination,
to turn upon certain matters of fact which
have never yet been brought into the view of the
courts—”

“A very shrewd old gentleman that, Mr. Hazard,”
whispered the tutor, who stood by all this time, listening
with profound attention; “a man of genius, I
assure you, Mr. Edward!”

“—The facts to which I allude are these; namely,
in the first place, to what distance did the mill-dam
anciently and originally extend, from the present
margin of the Apple-pie, in upon the land belonging

to the tract called the Brakes? Secondly, how long
did the mill-pond exist within the said original limits;
and when did it first begin to recede from the same?
And, thirdly, which is the most important point of all,
did the same mill-pond contract in its dimensions by
gradual and imperceptible stages, or did it sink into
the present narrow channel of the Apple-pie, by any
violent and sudden disruption of its banks?

“The bearing and value of these questions,” continued
the lawyer, “will be understood by referring
to the conceded fact, namely, that the two contiguous
estates were divided by the water-line or margin
of the mill-dam on the side of the Brakes. Now, it
is a principle of law, upon which Mr. Swansdown
and myself cannot possibly disagree,—for it is asserted
without contradiction by the ablest writers,—both
in the common and civil law, Mr. Swansdown, that
where a river, holding the relation which this mill-dam
occupied between these two estates, changes
its course by slow and invisible mutatious, so as to
leave new land where formerly was water, then he
to whose territory the accretions may be made in
such wise, shall hold them as the gain or increment
of his original stock. But if the river change its
course by some forcible impulse of nature, as by violent
floods, or the like, then shall he who suffers loss
by such vicissitude, be indemnified by the possession
of the derelict channel. And it would seem to me,
that in case the river, in the instance put, should
merely dwindle and pine away, as this famous mill-pond
seems to have done,” said Philly, with a smile,

“then, the possessors of the banks on either side
should consider it to be the will of heaven that they
should be separated by narrower partitions, and
should, straightway, follow the retreating waters;
and, when these become so small as to allow them to
do so, they should shake hands from the opposite
banks, and thank God they were such near neighbours.”

“He's a man of a clear head, Mr. Riggs,” said
the tutor again, with increased admiration, “and
expounds law like a book:—and with a great deal
of wit too!—He reminds me of the celebrated Mr.
Ponsonby whom I once heard at the Four Courts, in
a cause—”

“I am entirely of Mr. Warts' opinion of the value
of these considerations,” said Swansdown.

“They seem to me sagacious and reasonable,”
said Mr. Tracy, “and concur to strengthen the first
views which I took upon this subject.”

“Let these facts then, gentlemen, be inquired in-into,”
said Meriwether.

Wart arose from his seat and walking carelessly
a short distance from the group, beckoned Meriwether
to follow him, and, when they were together
said,—

“I have thrown out enough to put Mr. Tracy
upon a new scent, which, if it be well followed up,
will answer our purpose; and now, I think I will
give our friend Swansdown a walk into the marsh.”

“Since it is agreed, Mr. Swansdown,” said Philly,
returning to the party, “that testimony should be

heard upon the questions I have proposed, we shall
be able to form a better judgment by a cautious survey
of the ground ourselves. It is scarcely possible
that the mill-pond should have vanished without
leaving some traces to show whether it went off in a
night, or wasted away, like a chesnut fence-rail under
the united attacks of sun and wind. There is
nothing like the Trial by View.”

“In what manner do you propose, Mr. Wart, to
enjoy this view?” asked Swansdown, with some
concern. “Can we see it from the hill side? for it
seems rather hazardous for a passage on horseback.”

“By walking over it,” replied Philly very cooly.
“With a little circumspection we can get across
tolerably dry. Leap from one tuft to another, and
keep your balance. The thing is very easy.”

“We shall find brambles in our way,” said the
reluctant Swansdown.

“E squillâ non nascitur rosa, Mr. Swansdown,”
replied the other. “It is not the first time I have explored
a marsh. Why man, if you had your gun
with you, the woodcock would take you twice
through the thickest of it! This is a notorious place
for woodcock—”

“There are snakes, and some of them of a dangerous
species. I have an utter horror of snakes,” persisted
Swansdown.

“There are some copperheads and a few mocassins,”
replied Philly, “whose bite is not altogether
harmless. As to the black snake, and viper and
common water snake, you may amuse yourself with

taking them in your hand. Or take St. Patrick's
plan, Mr. Swansdown; cut a hazle rod, and if you
use it properly you may conjure every snake of them
out of striking distance.”

“Ha, ha! A facetious man, that Mr. Philly
Wart,” said the parson again, to Harvey Riggs.

“Come, Mr. Swansdown, I will lead the way.
Don't be alarmed: We shall be better acquainted
with the boundary when we get back.”

Saying these words, Philly walked forward along
the margin of the marshy ground which was once
the bed of the dam, and having selected a favourable
point for entering upon this region, he turned into
it with a prompt and persevering step, making
advantage of such spots as were firm enough to sustain
his weight, and, pushing the shrubbery to one
side, was soon lost to view. Swansdown, ashamed
of being outdone, but protesting his reluctance, and
laughing with a forced and dry laugh, cautiously entered
at the same point, and followed in Philly's footsteps.
When they were both still within hearing
Philly's voice could be recognized, saying—

“Look where you step, Mr. Swansdown! That's
the true rule of life, and particularly, for a man who
meddles with law. Have your eyes about you
man! Latet anguis in herbâ, ha, ha, ha!”

“Hear to him!” exclaimed the parson, “a prodigious
smart man, that Philly Wart!”

“After a short interval, Philly's voice was heard
calling out, “Mr. Swansdown, Mr. Swansdown,
where are you? Not lost, I hope! This way, man;

take the left side of the gum-tree and you will reach
the bank of the Apple-pie as dry as a bone. And a
monstrous stream it is, as you will find when you
get here!”

“I have encountered shocking obstacles, Mr.
Wart,” exclaimed the voice of Swansdown, at
some distance; “I have one leg submersed in water
and mud, up to the knee; and have had a score of
black snakes hissing at me, ever since I got into this
cursed place. Pray allow me to return!”

“Come on man!” was the reply, “you will reach
dry ground presently. What signifies a wet foot!
Here's a noble prospect for you.”

Another interval of silence now ensued, and this
being followed by a distant hum of conversation,
showed us that the two wanderers had fallen again
into company.

Whilst we sat amongst the willows that skirted
the original margin of the dam, expecting to see the
counsellor and his companion emerge from the
thicket on the opposite side, our attention was all
at once aroused by the deep tongue of Wart's hounds,
who had been exploring the fastness cotemporaneously
with their master. They had evidently turned
out a fox; and the rapidly retreating and advancing
notes informed us of the fact that the object of their
pursuit was doubling, with great activity, from one
part of the swamp to another. This sudden out-break
threw a surprising exhilaration into our party.

We sprang to our feet and ran from place to place,
expecting every moment to see the fox appear upon

the field: these movements were accompanied with
a general hallooing and shouting, in which the voice
of Philly Wart, amongst the recesses of the marsh,
was distinctly audible. Rip, at the first note, had
run to his horse, and now came galloping past us,
half wild with delight. Mr. Chub was in a perfect
ecstasy, jumping, flinging out his arms, and vocife
rating all the technical cries of encouragement usual
amongst the votaries of the chace. Even old Mr.
Tracy was roused by the vivacity of the scene.
His eyes sparkled and his gestures became peculiarly
animated. All the dogs of our train had taken
into the swamp, and barked with a deafening clamour
as they pursued the track of the hounds, whose
strong musical notes were now fast dying away in
distance, as these eager animals pursued their prey
directly up the stream for more than a mile. For a
time, they were even lost to the ear, until, having
made another double, they were heard retracing
their steps, and coming back to their original starting
point, as their short and sonorous notes crowded
upon the ear with increasing distinctness.

At length, the little animal, that had given rise to
all this uproar, was descried on the opposite side of
the swamp, some distance ahead of her pursuers,
speeding, with terrified haste, to a hole in the bank,
where she was observed safely to accomplish her
retreat.

The duration of this animating episode was not
above half an hour; and for the greater portion of
that period we had totally lost all intelligence of

Wart and Swansdown, but were now greatly
amused to perceive the old lawyer breaking out of
the cover, immediately at the spot where the fox had
taken to the earth. And there he stood, guarding
the place against the invasion of the dogs, who
seemed to be frantic with disappointment at not being
permitted to enter this entrenchment of their
enemy. By whipping, hallooing and scolding, Philly
succeeded in drawing them away; and now, for the
first time during this interval, turned his attention to
the fate of his comrade. Swansdown was no where
to be seen. Wart called aloud several times without
receiving an answer; and at length the party on
our side, also, began to vociferate the name of the
lost gentleman. This was no sooner done than we
were surprised to receive an answer from the midst
of the bushes, within ten paces of the spot where we
stood. In one instant afterwards, Mr. Swansdown
reappeared, almost exactly at the point where he
had first entered the swamp. His plight was sadly
changed. A thick coat of black mud covered the
lower extremities of his pantaloons, and his dress, in
places, was torn by briars; but as if glad to be extricated
from his perils, on any terms, he came forth
with a face of good humour, and readily joined us in
the laugh that his strangely discomfited exterior excited.

“Well,” he remarked, “to gratify Mr. Wart, I
have seen the Apple-pie; and I can truly say that I
have enjoyed more pleasure in my life, at less cost.
A fine figure I make of it!” he exclaimed, pointing

to his clothes. “We had no sooner reached what
Mr. Wart called the bank of the rivulet, than those
misbegotten whelps set up such a hideous yelling as
turned my excellent friend, the counsellor, crazy
upon the spot; and thereupon he set off at full speed,
like an old hound himself, leaving me to flounder
back or forward, as best I might. I scarcely know
what course I took, and when I thought I had
reached the other side, it seems I had arrived just
where I started. I can't say I think as highly of
Mr. Wart's trial by the view, as he does!”

We gave the unfortunate gentleman all the consolation
his case admitted of; and returning to the
ruins of the mill, there took our seats to await the
return of Mr. Wart.

It was not long before he appeared, followed by
the two dogs. He had crossed from the side on
which we left him, with as little concern as if he
had been walking on the firmest ground, and joined
our company, more in the guise of an experienced
woodman than of a gentleman of the learned profession
intent upon disentangling points of law.

It may well be supposed that the labours of the
day terminated at this point. Our spirits had been
too much roused by the events of the morning to allow
us to sit down again to the business of the law-suit;
and the uncomfortable condition of Swansdown
made it necessary that he should, as soon as
possible, be allowed an opportunity to change his
dress. It was therefore intimated by Mr. Wart, that
the question of the boundary line should be adjourned

until the next morning, when, he remarked, he
thought he should be able to give testimony himself
that would be material to the cause.

In accordance with this intimation, it was arranged
that the parties should convene the next morning at
the Brakes; and having determined upon this, old
Mr. Tracy and Swansdown mounted their horses
and pursued their road to the mansion house at the
Brakes, which was not above two miles distant.

The rest of the party returned to Swallow Barn.