University of Virginia Library

27. CHAPTER XXVII.
THE AWARD.

Whilst Harvey and myself were still discoursing
over the matters I have imperfectly brought to
my reader's attention in the last chapter, Ned Hazard
opened the door of the study, and came towards
us, with an animated step and a countenance full of
merriment. He told us, with much boasting, of his
own participation in the exploit, and of the inestimable
value of his services, that the old family law-suit,
which had been so tempest-tost and weather-beaten,
was at length happily towed into port: that the Apple-pie
was once more elevated to the rank of a frontier
stream, upon whose banks the whilom hostile
clans of the Tracy and the Hazard might now assemble
in peace: that after wading through a sea
of manuscript to oblige Mr. Tracy, and hearing
many wise legal apothegms from his lips, and turning
Swansdown's brain topsy-turvey with points and
discriminations, merely to prevent him from marring
the decision, Mr. Wart had succeeded in bringing
the matter to a close, and was now busy in drawing
up a formal judgment upon the case. “Philly,”
continued Ned, “is like to suffer injury from retention.
It is as much as he can do to prevent himself

from bursting out into a horse-laugh at every line he
writes. But he is, I believe, somewhat overawed
by Mr. Tracy, who takes the whole matter as gravely
as if it were a state business. The best of it is,
Swansdown is in doubt as to the propriety of the
decision, and, with very little encouragement, would
bring in a verdict against the Brakes. Philly's whole
endeavour, for the last hour, has therefore been to
mystify the case in such a manner as to keep Swansdown
from insisting upon the inquiry, whether the
mill-pond oozed away in a series of years, or was
carried off by some violent accident. Now, you
know it is a fact of common notoriety, that it was
swept off in a tremendous flood. Philly, finding
Swansdown likely to dwell on this circumstance, has
made a masterly diversion upon a point of law that
has happily quieted the gentleman's scruples. He
says, the act of God works no man injury, and that if
the dam has been swept away suddenly, it makes no
difference, because it would have wasted away at
any rate, by this time; and that it is extremely probable
it was very much diminished before the flood:
that if, therefore, it was not an absolute, imperceptible
decrease, it was quasi a decrease of that nature.
I think Philly has written something of this sort in
his report. This jargon has so confounded Swansdown,
as to set him to gazing at the ceiling in a
brown study, and has thrown Mr. Tracy into an ecstasy
of admiration at Philly's learning and acuteness.
All this time, however, Mr. Wart has had his
mouth puckered up with repressed laughter, which
so affected me, that I could not remain in the room.
I have drunk half a dozen glasses of water, and have
been thrumming my fingers against the window-panes
ever since this debate has been in agitation,
merely to escape notice. Mr. Tracy has, in consequence,
given me some sharp rebukes for my inattention
to the momentous principles that Philly has
been expounding. In short, I was obliged to make
my escape.”

“Will they admit bystanders,” asked Harvey,
“to be present at the deliberation?”

“Oh! cheerfully,” replied Ned; “but you must be
very careful how you behave. Mr. Tracy is in the
most nervous state imaginable. He is greatly delighted
with the result of the trial; but I don't think
he is quite satisfied with Philly's waiving an opinion
upon the points of law connected with the deed. It
is a little curious to observe how pertinaciously the
old gentleman adheres to his notion of the facts. He
has twenty times asserted that the site of the mill-dam
was never surveyed: and there they have the
very document of the survey itself, which is shown
to him every time he makes the assertion; he looks
at it, and, as we all suppose, is convinced;—but, in
the next minute, commences anew with the same
objection. I remarked that at length he began to
get out of humour at this sort of contradiction.”

“The old gentleman,” said Harvey, “is turning a
little sour with age. His temperament is growing
chilly; his constitution resembles that waterish, gravelly

soil that you see sometimes around a spring,
where nothing grows but sheep-sorrel.”

In a few moments we all repaired to the study.
Philly Wart and Swansdown were standing together,
at the moment of our entrance, in one corner of the
room. The former held in his hand a sheet of paper
upon which the award was written, and was silently
reading it over, whilst his features expressed that
comic perturbation which a man surprised by some
droll incident in a church might be supposed to wear.
He looked at us, upon our approach, from beneath
his spectacles, as his chin rested upon his waistcoat,
and smiled, but read on. Swansdown's face wore
that air of gravity and doubt, that I can fancy was
legible in the countenances of the signers of the Declaration
of Independence, after they had put their
names to that important document. At the table,
with his back to these two, sat Mr. Tracy, with a
silk handkerchief folded and laid upon his head, to
guard him against the breeze that blew in through
the window. His hands were spread flat upon the
board, in such a manner as to throw his elbows directly
outwards from his body; and he was casting
a keen glance over the field of papers that lay unfolded
before him. As soon as he was aware of our approach,
he raised his head, looked at us with an expression
of good humour, and remarked, with his
usual slow and distinct utterance,—

“Our friends have had a serious job of it to-day,”
nodding towards the papers strewed over the table,

“but I believe, by dint of perseverance, we have
reached the bottom at last.”

We offered him our congratulations upon the
event; but he absolutely refused to allow us to express
any pleasure at his success, lest it might be considered
as triumphing over his friend Meriwether.
He declared, that moderation in victory was a sentiment
that he desired particularly to evince in this
case; and he therefore checked our advances with
a gravity that made us laugh. The old gentleman,
however, was too full of his victory to preserve his
consistency in this humour; for when Harvey Riggs
insinuated a compliment to his judgment, by reminding
him that he had frequently predicted the result,
whenever this case should come to be fairly considered,
he laughed outright for some moments, with his
hand across his eyes, and concluded by saying—

“I am not apt to take up fancies unadvisedly. I
generally reflect upon my grounds. But, dogs take
our friend Wart! he is for pruning the case so
much, that he must needs slur over all my law touching
the phraseology of the deed. Ha, ha, ha! I see
his drift: he will spare our friend Meriwether.
Well, well! it is quite immaterial what shot brings
down the pigeon, so that we get him, ha, ha, ha!”

“A good judge,” said Mr. Wart, speaking from
the spot where we first found him, “will never decide
more than the case requires. I am not apt to deal
in obiter dicta.”

“The commonwealth has done you injustice, Mr.

Wart,” said Mr. Tracy; “you should have been on
the bench long ago.”

“I am afraid my chance has gone for ever now,”
replied Philly, “for here Mr. Swansdown and myself
have overruled the opinions of the whole Court
of Appeals.”

“These courts are obstinate bodies,” said the old
gentleman; “it is a difficult thing to bring them to
reason, when they have once got a fantasy into their
brains. And now, Mr. Wart, pray favour the gentlemen
with a reading of your award.”

“I will,” said Philly, “if I can make out my
own scrawl. It has been a rapid business. We
have administered justice velis levatis, I may say,
considering the nature of the case, and the time we
have been at it.”

Upon this, Philly began to read aloud. The document
in his hand, although hastily prepared, was
drawn out with all the technical verbiage that belonged
to the nature of such an instrument. It
gave a brief history of the controversy from the
commencement, which part Philly ran over with a
hurried voice; but he assumed a more deliberate
manner when he came to the grounds of the decision,
stating, “that the said arbitrators, having duly
considered all and singular the letters, declarations
in writing, and other papers touching the exposition
of the intent of the said parties, and their motives
for making and receiving the said grant, and also duly
considering the deeds appertaining thereunto, and

all other matters connected therewith, have not
found it necessary to declare their opinion upon the
true intent and effect in law of the said deeds, by
reason that certain facts and matters in evidence
have come to the knowledge of the said arbitrators,
whereby the original proprietary rights and relations
of the said parties litigant—”

“I wish you would change that word `litigant,'
Mr. Wart,” said Mr. Tracy, who during the reading
of the award sat listening with fixed attention,
and nodding his head, somewhat in the manner of
one keeping time in a concert: “I don't like that
word; it would imply that Mr. Meriwether and myself
have been litigious, which is too strong a term.”—

Philly turned up his eyes with a queer expression,
inclined his head sidewise, and raised one shoulder
so as to touch his ear.

—“I wish you would say, `of the parties laying
claim to the land in dispute;' I think that would be
better.”

“As you please,” replied Philly, approaching the
table, and altering the phrase in conformity with this
suggestion.

—“Of the said parties claiming the land in dispute,”
continued the counsellor, “have grown to be dependant
upon the principles of law brought into view by
the said facts and matters in evidence: which said
facts and matters in evidence show that the said
mill-dam, herein above mentioned, was originally
bounded by courses and distances, as laid off and described

in the survey thereof by a certain Jeremiah
Perkins, made under the direction of the said Gilbert
Tracy and Edward Hazard, as appears by the said
survey filed in the proceedings in this case.”—

“I don't think the site of the dam was laid off by
course and distance,” said Mr. Tracy, interrupting
the lawyer.

“The paper is here,” replied Philly, stooping over
the table, and producing it.

Mr. Tracy took it, and put it down again. “It
must be a spurious document that,” he remarked
gravely.

The truth was, this paper, which had been always
kept at Swallow Barn, presented a fact that
completely overthrew one of Mr. Tracy's strongest
positions, namely, that as the deed granted so much
land only as might be used by the dam, the portion
granted was necessarily mutable, and incapable
of being confined to specific boundaries. This
document of the survey, therefore, offended his
sight whenever it was produced. And as it had
but recently been brought to his consideration,
he had pondered too long over the case, in its other
aspects, to be able to accommodate his conceptions
to this new state of things. It was impossible
to break the crust of his prejudices, which now enveloped
him like a suite of mail.

“I thought,” said Philly, with a conciliatory inclination
of his head, “we had settled this point before.”

“Aye, aye,” replied the old gentleman, recollecting
himself, “go on, sir!”

—“And it hath also appeared that when the said
grist-mill fell into disuse and decay, the mill-dam
aforesaid was gradually drained of the water therein
contained, by the action of wind and weather, in
such wise that, during the space of twenty-one
years, the bed or site of the said dam became derelict
by slow and imperceptible degrees; save and
except that by a certain severe tempest, about the
period of the vernal equinox, in the year seventeen
hundred and —, the actual date not being precisely
known, a portion of the said dam was carried
away; which, being the act of God, that doth no
man harm, it is considered ought not to prejudice
the rights of the parties; and the more especially as
it hath appeared to these arbitrators, that the said
mill-dam had before that time fallen into desuetude,
and, notwithstanding the said tempest, would, in the
nature of things, have dwindled down, contracted
and wasted away into the present natural and original
channel of the said Apple-pie Branch. And
further, it hath appeared that neither of the said parties
litigant —”

“I will alter the word here also,” said Philly,
taking the pen, and inserting the same periphrasis as
before.

Mr. Tracy nodded, and the counsellor proceeded—
—“Has had occasion, during the time aforesaid,
to exercise any acts of ownership over the said land,

seeing that the same was barren and unproductive,
and altogether unfit for any purpose of tillage,—”

“True,” said Mr. Tracy.

—“Therefore the said arbitrators, carefully weighing
the said several facts with full and ample consideration,
and having heard all that the said Isaac
Tracy on the one side, and Edward Hazard, for and
on behalf of the said Francis Meriwether, on the
other side, had to urge in respect of their said several
pretensions —”

“Devilish little on behalf of Frank!” whispered
Ned Hazard.

—“Do, in virtue of the powers vested in them
by this reference, award, adjudge and determine,
for the complete and final ending of the said dispute,
and for the quieting of actions in all time to
come, that the land so left by the recession of the
waters as aforesaid, shall henceforth be deemed and
taken as followeth, that is to say; all that piece or
parcel of land lying eastwardly between the bank
of the said Apple-pie Branch, as the same now exists,
and the former margin of the said mill-dam,
bounding on the line of the tract called the Brakes,
is hereby declared to have reverted to the original
proprietors of the said tract called the Brakes, to
them and their heirs for ever: And that the main
channel of the said Apple-pie Branch shall be the
only true and established conterminous boundary
line of the said tracts of the Brakes and Swallow
Barn respectively.”

“Very conclusive and satisfactory!” cried Mr.
Tracy, rising from his chair.

“There you are, gentlemen,” said Philly, throwing
the paper down upon the table, “exactly in statu
quo ante bellum. It is a great thing, Mr. Swansdown,
to pacify these border feuds.”

“I have always permitted myself,” replied th
worthy thus addressed, “to indulge the hope that
our intercession would prove advantageous to the
permanent interests of the families. It has been a
case, certainly, attended with its difficulties; and
has given rise to some curious and recondite principles
of jurisprudence.”

“Very curious and recondite!” said Philly, looking
archly around him. “It has been a perfect dragnet
case. We have fished up a great deal of law,
my dear sir!”

“I confess I have been sadly puzzled,” replied
Swansdown, “with the intricacies of this whole proceeding.”

“So have I,” said Philly. “But you have had
much the worst of it. For there, in the first place,
you were lost in the brambles; then, you were
soused in the mud; and after that, you were torn
with briars: you have some of the marks upon your
face yet. Then, you lost entirely our chase of the
fox; but I believe you are not fond of that, sir?”

“These were trifles,” replied the other. “I alluded
to the conflicting opinions.”

“I understand you,” interrupted the lawyer. “It
takes a good nose and a fleet foot to follow one of

these little old-fashioned ejectments through its doublings.”

Saying this, Philly opened the door of the study,
and walked into the hall, wiping his spectacles
with his handkerchief, and casting strange and comic
looks upon Hazard, Harvey and myself, who followed
him. He was highly excited with the proceedings
of the morning, and being relieved from the
restraint of Mr. Tracy's presence, gave vent to his
feelings by amusing remarks, and a sly, half-quiet
and half-jocular demeanor, that never broke out into
any open fit of laughter, nor yet fell to the level of his
ordinary calmness.

It was now the family dinner-hour, and the household
assembled in one of the parlours, where the result
of the arbitration was made known, and gave
rise to a great deal of animated conversation.

The behaviour of Mr. Tracy at the dinner-table
was punctilious and precise. He was even more
lavish than usual of the personal civilities that characterize
his manners at all times; and it was observable,
that during the whole time that he mingled in
the family groups where the decision that had just
been made was a subject of constant recurrence, he
never permitted an expression relating to it to escape
his lips. He sat but a few moments after the cloth
was drawn, leaving the table in the occupation of
his company, and retired to the study, where he employed
himself amongst the papers belonging to the
law-suit.

As the long afternoon wore away, the boundary

line and all its concerns were forgotten; and our
party fell into the various amusements that their situation
afforded. At length, the hour came for our
return to Swallow Barn. Prudence, at the persuasion
of the ladies, had consented to remain during
the night. Ned Hazard informed Mr. Tracy
that he was requested by Meriwether to invite the
whole family, with Mr. Swansdown, to dinner at
Swallow Barn the next day. The old gentleman
expressed great pleasure in accepting the invitation,
and the rest promised to keep the appointment
without fail.

Having despatched these matters, Mr. Wart and
Rip mounted their horses, and rode slowly down the
hill from the mansion. But just as Hazard, who
had delayed a moment after his comrades, was
leaving the door, his horse, grown restive by seeing
his two companions moving off, after neighing, and
tossing up his head, and champing his bit, made a
sudden start, broke his bridle, and went off at full
speed, leaping and flinging himself into wild and
playful motions as he disappeared in the direction of
the road.

All pursuit was vain. And as it was apparent
that he would make the best of his way to his own
stable, Ned got into the carriage with the little girls
and myself; and, followed by Wilful, we were
wheeled off from the Brakes as rapidly as old Carey
could urge his mettlesome cattle forward.