University of Virginia Library

6. BOOK VI.

1. CHAP. I.

THE foregoing had been the reflections
of the Captain during the exhibition
of the farce. But the play being ended,
and having come home, the next day he
began to put his resolution in practice;
and to think how he could supply himself
with another servant. It struck him to
purchase a negro; and mentioning this to
the company, at breakfast, at the Indian
Queen, one of the people called Quakers,
who was present, and overheard the
conversation, made an apology for the
liberty he took in making some objections.
Friend, said he, thee appears to
be a discreet man, from thy behaviour,
and conversation; and if thee will not be
offended, I would ask if thee canst reconcile

it with thy principles, to keep a
slave. As to that, said the Captain, I have
thought upon the subject, and do not see
any great harm in the matter. If we look
to inanimate nature, we shall find, that
the great law is Force. The Cartesians
call it pressure and suction: The Newtonians
call it attraction and gravitation.
The sun, the largest body in the universe,
endeavours to draw all towards it; while
the lesser globes struggle to fly off at a
tangent. The dense air takes place of the
rare; and the heavier particles of water
cause the lighter to recede. The tall oak
overshades the under wood. There is a
predominancy, and subordination in all
things. In the animal creation, the weaker
is always subject to the strong; who even
devour them, when the flesh suits their
appetite: and the very teeth and jaw-bone
of carnivorous animals, shew the intention
of nature, that they should make a prey
of living creatures. Do you blame yourselves,
when you subjugate elephants, or
horses, or oxen of the plough, to your
use? What right have you to invade the
liberty of a playful young colt, more than
of an African inhabitant? Or have you
not as good a right to take up a negro, and
put him to your work, as you have to cut a
calf, and manufacture him for the draft?

In this case, there is a difference, said
the Quaker; a negro is a human creature,
and possesses all the natural rights of man.

That may be, said the Captain. But
what are the natural rights of men? Are
they not finally resolvable, as in the inanimate
world, into power on the one hand,
and weakness on the other.

Who is it that abstains from dominion,
when he has it in his power to assert it?
Power is the great law of nature; and nothing
but the pacts or conventions of society
can contravene it. I should think myself
justifiable in making any man a slave to
answer my purposes, provided I treated him
well while he was such. This I take to be
the only condition which the law of reason
annexes to the enjoyment of such property.
I may be warranted in taking, and managing
an animal of the horse kind; but it is
my indisputable duty not to abuse him by
causing him to suffer famine, or endure
too much toil. The same with any other
animal that I enslave; there is a tacit condition
annexed to the grant which the law
of nature gives, viz. That the service be
exacted with moderation; and proper

nourishment be provided. I admit also,
that humanity would dictate that a slave
ought to be consulted as much as is consistent
with my convenience. For instance;
if I had the Grand Turk in my power, as
he has been accustomed to a soft and effeminate
way of living, it would be hard to
put him all at once to maul rails, or clearing
out meadow ground, or the like; or if
it should fall in my way to have Catherine
of Russia in that capacity, as she is a women
of an elevated mind, it would be inhumane
to put her to the lowest drudgery,
such as scrubing out rooms, and carrying
water from the pump; but rather indulge
her if I could afford it, with a more easy
employment, especially as she is an old woman,
of knitting stockings and carding
wool. There is no man would be more
disposed to treat a slave with tenderness
than myself; but to deny me of my right
altogether of making one, or of trafficking
for one when made, is carrying the matter
too far.

So much for the right of enslaving. But
if we put it on the principle of what will
conduce to the aggregate happiness of
mankind, we shall find it to be, that there
should be master and servant, or in other

words, owner and slave. The economy
of nature illustrates this, in the subserviency
of one thing to another: But, independent
of any illustration, it must be known
on reflection, and is felt in experience, that
all are not competent to all things; and
in the case of temporary servants, much
time is taken up in contracting with them
for their remanence; and it is a considerable
time before they get into the habit
of our service; and having it in their power
to retire from us, when inclination may
direct, there is an insecurity in the attachment.
But as the slave has the master
always to provide for him; so master
has the slave always to subserve him: and
thus, by a conjoint interest, the felicity
of both is promoted, and the sum of human
happiness increased. Hence it is,
that most nations have made use of slaves.
The patriarch Abraham, had threescore
and ten servants born in his house. What
were these but slaves? The Jews, his descendants,
had bond-men, and bond-women: Were not these slaves? The Roman
slaves were more in number than the citizens;
and amongst the Greeks, the most
virtuous of them, viz. the Spartans, kept
in their service the most depressed of all
slaves, the Helotes; who, when we consider
the black broth, the food, and severe
life of the masters, must have lived
on poor fare, and in a laborious service
indeed.

But it may be said, that example of
wrong never constitutes right. Grant it;
but if you examine the capacities, and even
inclinations of men, will you not find,
that some are qualified only to be slaves.
They have not understanding to act for
themselves. Nor do all love freedom, even
when they have it. Do not many surrender
it; and prefer kissing a great man's
backside, to being independent? It is not
always, even from the views of advantage,
that men are sycophants; but from an
abstract pleasure in being drawn into the
vortex of others. There is a pleasure in
slavery, more than unenslaved men know.
Why is it, that, even after the convulsion
of a revolution in a government, in favour
of liberty, there is a natural tendency
to slavery; and it finally terminates in
this point. The fact is, a state of liberty
is an unnatural state. Like a bone out of
place, the mind, in an individual, or political
capacity, seeks the condition of a
master or servant; avoiding, as the particular

propensity may be, the one or the other.
There cannot be a greater proof that
this is founded in nature, than the common
moral observation, that the greatest tyrants,
that is, the worst masters, make the most abject
slaves: And, vice versa, that the most
subservient of mankind, when you give
them power, make the worst use of it: All
this because, in these cases, the persons are
misplaced, and not in their proper stations.
Julius Cesar made a humane generous master;
but he would have made a very intriguing,
troublesome valet de chambre. It
would have been impossible to have got any
good of him. On the other hand, Tiberius
would have made an excellent hostler, and
taken a beating, with as much resignation,
as a house beagle, who is used to it. So
that it evidently is the provision of nature,
that there are materials of slavery; and
the fault of those, whom she intends for
masters, if they do not make slaves. But
as it is difficult to determine, a priori, who
are intended for slavery or freedom, so
as to make a judicious distribution, things
must take their course; and the rule be,
catch, catch can; and every man have a
servant when he can get one. It is in
vain to be squeamish, and stick at colour.
It is true, I would rather have a white
person, if such could be got; as I prefer
white to black; especially in the summer
season, as being a more light and airy colour.

Thy reasoning, said the Quaker, is more
rhetorical than logical; and thy analogies
of nature, and historical proofs, cannot
so far oppress the light within, as to make
me think, that it is given to thee, or me,
to make slaves of our species.

As to that, said the Captain, I am not
clear that a negro is of our species. You
may claim kindred with him, if you
please; but I shall not.

I shall not dispute that with thee, said
the Quaker: for I perceive thee does not
give credit to what the book says of the
first man, and his descendants: But will
thee not grant me, that the African,
though not of the same stock, is, at least
a man; that is of the human genus,
though the species of the white and the
black may not be the same; if so, hast
thou more right to enslave him, than he
thee?

Grant it, said the Captain; for my reasoning
tends to that, and resolves the right
into the power.

If so, said the Quaker, thee may be the
slave in thy turn.

Doubtless, said the Captain; and it is
not of so much consequence who is slave,
as that there be one. It is better that the
foot be foot, and the head be head; but
if there is a conversion, nevertheless, let
there be head and foot. It is necessary
that there be domination and subjection,
in order to produce a compound improvement
and advantage.

You could see by the Quaker's countenance,
that he thought the reasoning sophistical;
but as he did not know very well
what he could say more, he was silent.

2. CHAP. II.
Containing Remarks.

IT is thought by some, the Captain was
not serious in thus advocating the cause
of slavery. Be that as it may, he omitted
some serious arguments, that naturally
present themselves on that side on which
he reasoned: For instance, it strikes me
at first blush, that there can be no moral
wrong in catching a young African, and
bringing him away from his own happiness
to pursue ours. For if there were, is
it to be supposed, that humane and just
persons, would promote and support the evil,
by purchasing such negro, or retaining
him, and his offspring, when purchased.
For, on the principle that the receiver
is the thief, or, to speak more strictly,
a thief, the purchaser of the African
takes the guilt along with the possession;
and, in the language of the law, every act
of retainer is a new trespass. For the evil

of the original act, if there be evil in it,
cannot be rendered pure by the filtration
of purchase, and retaining. So that the
holder of the negro, in the tenth transmission,
is an aider, or abettor, of the original
act of taking; if I may use the word
aider, or abettor, in a case of trespass;
where, by the definition of the law, all
who any ways concur in the act, and further
it, are principals. The holder of a
negro must, therefore, look back to that
act which first made him, or an ancestor,
a slave; and if he cannot justify this, he
cannot justify the retaining him in servitude:—What
a consequence must this be!
There is no man that pretends to humanity,
much less to religion, would be safe
in being the possessor of a slave. The only
way therefore to get rid of the difficulty is
to justify, ab origine, traffic in all such property.

That it is justifiable I have no doubt.
Is there any religious denomination, except
the fanatical people called Quakers,
that have made it a term of communion
not to hold a slave. In admitting to
church privileges, I have never heard,
of the question asked, Have you any negroes,
and do you keep slaves? If it was

a matter of conscience, would not conscientious
persons themselves make it.

The assemblies or synods of the Presbyterian
church, or conventions of the Episcopal,
in America, have said nothing on
this subject. Is an omission of this kind
reconcilable with the idea, that it is a
natural evil, or a moral wrong.

In the phrenzy of the day, some weak
minded powers, in Europe, begin to consider
what is called the African trade as a
moral wrong, and to provide for a gradual
abolition of it. If they will abolish
it, I approve of its being done gradually;
because, numbers being embarked in this
trade, it must ruin them all at once, to
desist from it. On this principle, I have
always thought it a defect in the criminal
codes of most nations, not giving licence
to the perpetrators of offences, to proceed,
for a limited time, in larcenies, burglaries,
&c. until they get their hands out of use
to these pursuits, and in use to others. For
it must be greatly inconvenient to thieves
and cut-throats, who have engaged in this
way of life, and spent time, and expended
money, and run great risks in acquiring
skill in their employment, to be obliged
all at once to withdraw their hands, and lay

aside picking locks, and apply themselves
to industry in other ways, for a livelihood.

The law of Pennsylvania on this principle,
has provided for the gradual abolition
of the slavery of negroes. For those who
have got them could not do without them,
no more than a robber could do without
the money that he takes, being pressed by
some great necessity to make use of that
expedient to recruit his purse. All those
therefore who have been originally taken
from the coast of Africa, and deprived of
liberty, or descended from such, and inheriting
slavery, when recorded agreeably
to the act in question, continue slaves, and
for life, and their offspring to a certain
period. But were we to entramel the
case with political or moral doubts respecting
the original right of caption, and subjugation,
the difficulty would exist of reconciling
it with natural right to hold a
slave for a moment, even whether the law
sanctioned it or not; in which case we should
find it necessary to go as far as the fanatics in
religion, and set our slaves free altogether.

It is from not duly attending to this circumstance,
that abstract reasoners talk of
abolition; a doctrine which, however absurd,

is becoming the whim of the day;
and the phrensy seems to gain such ground,
that I would not wonder if they would
next assert that it is unlawful to use the servitude
of horses, or other beasts of burden,
as having a natural right, to live in
the fields, and be as free as mankind. The
best way to avoid extremes, is to check
the principle; I hold the right of absolute
subjugation, of whites, blacks, and browns
of all nations, against gradual abolition,
or any abolition whatsoever. This being
the only consistent principle, short of an
absolute emancipation, made instantly; for
in no mean is there reason, or a rest for
conscience.

That it is of importance to settle the consciences
of sober minded persons in Pennsylvania,
clergymen, and members of the
Presbyterian church especially, who have
negroes, must be well known from that
tenderness of conscience, for which such
are remarkable. Some, indeed, carry their
ideas of the extent of duties so far, as not
to omit grace to meat, or the formal worship
of prayer, reading chapters, and singing
psalms, on the set occasions, on any
consideration whatsoever; what is more,
will not shave a beard, on the Sabbath day,

for a cow. Now, should they, by any
means, come once to think of the wickedness
of enslaving men, there would be no
getting them to keep a negro. For those
of this denomination; and, indeed, most,
or all others of the Christian, hold, that
the Africans, though of a sable race, is
of their own species; being descended
from Adam. This being the case, a slight
matter, the bare directing their attention to
the subject, would alarm pious people, and
lead them to the favourite maxim of the
gospel—“Do to others, as you would
have others to do to you.”

As opposed to the enfranchisement of negroes,
generally, and in Pennsylvania in
particular, I have been under apprehensions,
that some of our young lawyers in
the courts, might plead the constitution of
the state, by which it is established that
“all men are born equally free and independent.”
Now admitting that a negro is
a man, how shall any master retain him as
a slave? On a habeus corpus, he must be
set at liberty. At least I cannot conceive
how the judge could remand him to his
drudgery. The constitution is the law
paramount, and framed by a convention of
the people, recognizing the original right

of freedom in a negro, allowing him to
be a man; and caries us above the act of
the legislature for the gradual abolition,
&c. which by implication seems to suppose
that negroes may be slaves:—

An implication inconsistent with the power
exercised by the law. For if negroes
were slaves, and so the property of those
who claimed them, could the legislature
affect that property, without indemnification
to the masters?

I shall say no more on this head, lest I
should furnish hints to pettifoggers, who
may make an ill use of their information.

3. CHAP. III.

JUST at this moment a waiter coming
in, told him there was a person without,
that is, in the bar room, who wished
to speak with him. Going out, who should
strike his optics, but Teague.

The fact was, being elated with the success
of his performance on the stage, attributing
that to art which was nature itself,
he had counted more upon his accomplishments
than he ought to have done,
and had made advances to the mistress of
the manager, who was also an actress, and
not greatly coveting an amour with the
bog-trotter, made a merit of the circumstance,
to induce an opinion of fidelity, and
informed the manager of the presumption
of the Irishman. The manager in the
most unbecoming manner, without either
citation, examination, trial, conviction,
or judgment, but laying aside all forms of
law, had instituted an original process of

himself, and laying hold of a horse-whip,
had applied this implement to the back and
shoulders of Teague, and as the Irishman
made an effort of resistance at the first onset,
the manager had been under the necessity,
by turning the but end of the whip,
to knock him down, which he did by a
stroke above the left eye-brow, which not
only bereft him of senses for the present,
but a discolouration of the eye for some
days, and a scar probably his whole life
after.

It was this incident had induced him
to leave the theatre, and brought him
back to the Captain, whom he now accosted
in the following manner: Dear master,
for the love of shalvation, forgive a poor
sharvant that has been killed this marning
with a great cudgel, just for nothing at all,
but not plasing a damned whore, that
wanted me to stale the manager's cloathing,
and go off wid her. This is all that
a poor sharvant gets by being hanest; but
by shant Patrick, and the holy crass, it is
what I deserve for leaving the sarvice of
a good master, as your anour, and taking
up with bog-tratters, and stage players,
that would sooner take a cup of wine than
the holy sacrament, and get drunk every

night in de wake, and go to de devil
head foremost; but if your honour, dear
master, will forgive the past, and my running
away, and laving you, I will come
back again, and sarve you to the day of
judgment, or any langer time that your
honour plases, and clane your boots and
spurs, and rub down the bay harse; the
poor old crature, how aften I have tought
of him when I was in my rambles and he
was a slape, laste they should chare him of
his oats, and give him nather hay nor
straw to ate; for I always liked to take
care of a good harse, and a good master;
and aften tought of your honour, when
I was among the bog-tratters of the stage,
and gave you a good name, and was always
talking of you and forgot my part,
and put the managers in a passion, who
fell upon me, and bate me like a dog.

The Captain saw the inconsistency in the
relation; one while alleging the tale bearing
of the mistress, as the occasion of it;
again, a deficiency in the recital of his
part; but expecting no truth from the Irishman,
cared very little how it came to
pass. The principal thing that occupied
his thoughts, was whether to receive the
bog-trotter, or dismiss him. He reflected

with himself on the trouble he had had
with him, on his various pretensions to
advancement; his uneasiness of mind, and
fatigue of body, for several days past, in
examining stews, methodistical conventicles,
rumaging philosophical societies, attending
elections, and listening to the debates
of Congress, to see if he could any
where observe his physiognomy, or distinguish
his brogue. He could not think
of subjecting himself to such uncertainty
in the attendance of any servant, with such
preposterous ideas, as being a legislator,
philosopher, &c. Again, he considered,
that probably this last chastisement he had
received, might have a good effect, in curing
him of the freaks of his ambition;
and a mind broken and reduced by disappointment,
is in a mellow state, and more
capable of receiving the seeds of good advice,
than a mind full of vanity or pride,
that has never yet received blows. Deliberating
on these grounds, his humanity
prevailed, and he determined to receive the
raggamuffin into favour.

This being settled, and learning from
the Irishman in what manner he had been
inveigled, and drawn away by the manager,
to go upon the stage; and that it was

only because Teague had made advances
to a woman that was a whore already,
that the manager had made such an attack
upon his person, he wished to punish him,
if it should appear to be within the province
of the law to do it. Accordingly,
inquiring what principal lawyer there was
in that city, was informed of a certain counsellor
Grab. Taking Teague with him,
he set out to consult this gentleman.
Counsellor Grab was in his office, amongst
large shelves of books, or shelves of large
books; not, as the Latins say, Co-opertus,
aut obrutus, sed comitatus libris; that is,
In the midst of his books. He had on a
pair of spectacles, not so much on account
of age, as to make the client believe that
he laboured under a premature want of
sight, from much reading; or, because a
pair of lenses, magnifying the organs of
vision, gives the appearance of a larger eye,
which has a good effect on the person consulting,
impressing the idea of a broader
view of things that are before it.

Entering, the Captain addressed himself
to the counsellor, and gave him the outlines
of the injury done to Teague; The
counsellor, in the mean time, suspending
his reading in a large book, which he had

before him, printed in Saxon letter, and
raising his head, until the glasses of his
spectacles were brought to bear upon the
physiognomy of the Captain.

The Captain having finished his account,
referred him to Teague, the subject
of the battery, for a a more particular
detail of the circumstances. Teague was
glad of the opportunity of speaking before
a learned lawyer, and was beginning to
give a relation of the whole affair; but
the Captain stopped him, bidding him wait
until the lawyer should himself request him
to begin. The lawyer was silent: after
having reconnoitered with his glasses, one
while the Captain, another while Teague,
he dropped his optics, and began to read
again. The Captain, thinking he had not
been sufficiently understood, recommenced
the narration, and gave an account of
what he himself had suffered from the inveigling
and detaining his servant, and
the visible injury which the servant himself
had sustained. The lawyer was still
silent; and, though he had eyed him while
speaking, as a Tuscan astronomer would
the moon, yet he applyed himself again to
the reading the black letter, that was before
him.

The Captain thought it strange treatment;
and was, for some time, at a loss
to know what to think of the matter. But
recollecting, opportunely, that the circumstance
of a fee had been omitted, he took
out his purse, and threw down two dollars.
The lawyer seemed a little moved,
but cast his eye again upon the black letter.
Finding the two dollars not sufficient,
the Captain threw down two more.
The counsellor raised his head from the
book, and you might discern some dilitation
of the muscles of the face, as bespeaking
an approaching opening of the
voice; but still there was silence; and
might have been to this hour, had not the
Captain recollected, at this moment, what
he had all along forgot, that half a joe
was the fee of a lawyer. Doubling, therefore,
the four dollars that were already
down, the lawyer came to his voice, the
organs of his speech were loosed, and taking
the glasses from his eyes, he gave his
counsel as follows:

Said he, You have a double remedy in
this case; against the manager who inveigled,
and against the servant himself:
Against the servant, on the act of Assembly,
if indented; at common law, on the

contract to serve. For even a servant at
will, and not engaged for any special
time, is not at liberty to desert the service
of his master, without reasonable notice
first given. So that you may have your
remedy against the servant, in the first
instance, by bringing the matter before
the court of quarter sessions; and having
time put upon him, as the phrase is, for
this dereliction of your service; or, an
action on the contract, express or implied,
as the case may be, wherein he shall repair,
in damages, the loss sustained.

The bog-trotter was alarmed at the idea
of an action against him; and looking
wistfully at his master, exclaimed; Dear
master, will you trow de law upon me,
dat am as innocent as a shild unborn; and
would go to death and damnation for you.
Dear master, I suffered enough by de cudgel
of dat player, for all de running away
I have done; and, God love your shoul,
keep de law in its own place, and not let
it come acrass a poor sharvant, that has
nathing but as he works and trats about;
but let dese grate big books of his honour
de lawyer, spake to de manager, for his
deceiving a poor sharvant, and putting it
in his head to run away, and lave a good

master; and his beating him with a grate
cudgel into the bargain.

I have no desire, said the Captain, to
pursue the bog-trotter; as he has made
acknowledgments for his fault; but would
want the utmost rigour of the law to be
put in force against the player.

You have also in this case a double remedy,
said the counsellor; by prosecution
on the part of the servant, and on your
part. Nay, the servant himself has a double
remedy; for he may prosecute by indictment,
or bring his action of assault
and battery; or both. I would recommend
the action only; because, where no indictment
is prosecuted, and the civil action
only brought, exemplary damages may be
given, as well as reparatory. For in the
civil action, it will affect the minds of a
jury, that the party has already suffered all
that is in the nature of punishment by a
criminal proceeding; and nothing remains
with them, but to give reparatory damages.
On the part of the master, two kinds
of action may be brought; either an action
of trespass, vi et armis, laying a perquod
servitium amisit; or simply an action
on the case, for the consequential damage
of inveigling the servant.

As to the number of remedies said the
Captain, or the kind of them, I care very
little how many there are, or what they
are; I want only a good remedy; give
me a good swingeing one against the rascal,
and I care very little what it is called.

I shall then, said the counsellor, advise
simply an action on the case; and count generally
on the inveigling, and detaining,
and rendering unfit for service while in
his power. In this mode, the whole circumstances
of the injury may be brought
together, and summed up into one point
of view; and enhancing the quantum of damages,
can expatiate on the value of your
servant, and the special occasion you had
for his service, at this particular juncture;
for I make no doubt he is a valuable servant;
and that it has been an almost irreparable
injury to you, to have been defrauded
of his service at this time.

As to his value, said the Captain, there
can be no doubt, not only as a servant,
but in other respects. I have been offered,
or at least I suppose I could have got, an
hundred pounds for him, to be a member
of Congress, or to preach, or to go to
the Philosophical Society, or to be an Indian
treaty-man; but have refused every

proposal made him, or me, for these purposes;
and now to have him kidnapped,
and taken off, without fee or reward, and
employed as an actor, and beat, and rendered
useless, at least for some time, into
the bargain, is too much for any man to
put up with. If there is law in the land, let
it be put in force; and this man made
an example.

The counsellor had no need of spectacles,
to give himself the appearance of a
glaring and broad look, on this occasion;
for the words of the Captain made him
stare sufficiently, without the aid of a magnifying
medium, to enlarge his optics.
He began to take him for a madman;
at least, in some degree, deranged in his
brain; to talk of his servant being in request
for a member of Congress, and the
like.

Yes, continued the Captain, he not only
inveigled away a servant, that was
thought fit to be a member of Congress,
and a preacher, and an Indian treaty-maker,
and a philosopher, and what not;
but has kept me, these three days, trotting
after him, and trying to find him, at election
places, and in Congress boarding-houses,
and the hall where they have their

debates, and churches, and pulpits, and
chambers of philosophical societies, and
professorships, and where not; to see if
I could find him; while this manager had
him, in the mean time, at rehearsals,
teaching him the art of mimickry, for the
stage.

The counsellor, in the mean time, had
reflected with himself, that, whether madman,
or no madman, the Captain had
money, and might be a good client, let
his cause be what it would; and so composing
the muscles of his face, seemed to
agree with him; and observe, that doubtless
the quality and capacity of the servant
would be taken into view, in estimating
the damages: That, if it appeared he was
not only fit stuff for a servant; but to be
advanced to such eminent offices as these,
not only the inveigling the embryo legislator,
preacher, and philosopher; but the
assaulting and beating him, and, by that
means, disabling him from immediate service,
must be viewed in the light of an
atrocious injury, and insure a verdict accordingly.

Very well, said the Captain; and I shall
wish to have the matter determined as
speedily as possible, as I may be but a few

days in town; and, besides, as the marks
are yet apparent on the face, and, I suppose,
back, of the bog-trotter, it will appear
to the judges, and jury, without the
trouble of witnesses, what damage he has
sustained.

The process of law, said the counsellor,
is tedious, but certain; you cannot expect
a trial, in this case, until the 3d or 4th
term; that is, nine months, or a year.

How so, said the Captain? Because, said
the counsellor, it is now two months, or
upwards, before the court to which the
writ will be returnable. Even if a declaration
is then filed, the defendant may
imparl until the succeeding term, which
is three months; when if there is no demurer
general or special, a rule to plead
will be taken, which may not be put in
until the succeeding term of three months
again: At this term, if there is no replication,
rejoinder, surrejoinder, rebutter,
or surrebutter, to draw up and file,
while the defendant may crave a term, issue
will be joined, and at the next term
trial. But even after a verdict, there may
be the delay of a term, on a motion for a
new trial depending; so that in the law

there is delay; but this delay is the price
of justice.

It is a price, said the Captain, that I
will not give for it. If you will bring it
about in a short time to have this fellow
flogged, even with half the stripes he has
given my servant, I shall not think the
half joe thrown away; but to be a year or
half a year about the business, is putting
the matter so far off, that it may as well
be omitted altogether. If you could only
get him sentenced to take a kick or two
from my foot, or Teague's, before we leave
the city, I should be satisfied.

The lex talionis, said the counsellor,
makes no part of our law. You can punish
only in estate, not in person, for a
simple assault and battery, as this is. Do
you not hang a man for murder, said the
Captain; and why not punish personally for
an assault and battery? Because it is our
law, said the counsellor; and, in a civil
action, the object is damages.

A civil action, and damages, are strange
phrases, said the Captain; how can civility
and damages, be reconciled.

These are technical terms, said the
counsellor, which persons, not of the prosession,
are at loss to understand; but

have, in themselves, a distinct and sensible
meaning.

Let the terms mean what they will, said
the Captain, it all comes to this at last—
There is no getting at the manager, under
a year, or two year's race for it; before
which time, Teague will have forgot
the abuse he has received, and I my trouble
in running after a strayed Irishman,
through this city; and, therefore, it may
be as well to give the matter up, and sit
down with the loss.

That as you please, said the counsellor;
and putting on his spectacles, cast his eye
again upon the black letter.

The Captain, without bidding him kiss
his backside, beckoned to Teague to follow
him, and withdrew from the chamber.

Having retired; Teague, said the Captain,
this thing of law has been well said
to be a bottomless pit. The way to it is
like that to the shades;

This pettifogger seemed to have a thousand
remedies at his command, and yet
none that would serve us; as the redress,
if any, is to be postponed to such a distant
day. I have heard a great deal of these
cattle, and I believe they are best off that
have least to do with them. They have
so much jargon of technical terms, that
the devil himself cannot understand them.
Their whole object is to get money; and,
provided they can pick the pocket of half
a joe, they care little about the person
that consults them. The first loss is the
best; you had better put up with the currying
you have got, than have my pocket
picked, on pretence of redress a year or
two hence, which may, perhaps, prove a
century.

Teague was contented to put up with
the drubbing, and have no more said about
it.

4. CHAP. IV.

THE Captain had consoled himself
with the idea that Teague was now
cured of his folly, and would no more be
disposed to entertain notions of ambition,
and unreasonable projects. He was disappointed
in his hope; for that very evening,
the Irishman washing down the recollection
of his woes with some exhilerating
drink, and though not intoxicated, but
enlivened only, he came to the Captain:
Said he, Dear master, what would your
anour think, if a poor sharvant should
turn lawyer; and get a half joe when a
customer comes to consult him in the
morning? would it not be better than
currying a horse, and tratting about like
a big dog; with no sense to live like a
man of fartune, and have a big house over
his head, and books about him, and
take half joes from paple that come to him
about their quarrels and batings, through

de town, and sending dem aff as wise as
if dey never had come to him, and de
great spectacles, to look like a blind man,
dat was blind before he was born, and
could see more than two or three other
paple, for all dat; and was a canjurer,
and a wizzard, and could take money for
nating. Would it not be better, master,
than tratting like a fool, and disputing wid
paple, and having nating to lay up; but
be as poor as a church mouse, or a rat, all
the days of our life, and paple laugh after
us when we are gone.

The Captain was thrown into a reverie
of thought, by the speech of the bog-trotter;
reflecting, that his presumption
and folly was incurable; for, notwithstanding
all that had been said to him, or
suffered by him, his natural propensity remained
the same; according to the maxim—
Naturam expellas bufurca, usque recurret;
You may toss out nature with a
pitchfork, she will still come back upon
you. Not so much from any further view
of reclaiming him, as from indignation,
and resentment, against his presumption,
the Captain projected, in his mind, a farther
means of chastising him. He had
heard of a work-house, in this city, into

which refractory servants are committed,
and put to hard labour; such as pounding
hemp, grinding plaister of Paris, and picking
old ropes into oakum. He resolved to
have the raggamuffin put into this a while.
Counterfeiting, therefore, an approbation
of his project of becoming lawyer, doubtless,
said he, the profession of the law is a
profitable business, where money is very
easily got, by the bare breath of the
mouth. Nevertheless, it requires time and
study to qualify for this profession. Nay,
the introduction to the study, by being
put under an eminent lawyer, in full practice,
is itself very expensive. An hundred
pistoles is sometimes the fee. This I could
not very well afford; but I have an acquaintance
in this town, who, I am persuaded,
would be willing to oblige me,
and will take less. I will call upon him
early to-morrow, and settle the contract.

Accordingly the next day, calling on
the keeper of the work-house, he gave him
an account of his refractory servant, and
with a gratuity of a couple of guineas, obtained
his consent, to take the bog-trotter
under his direction, and give him a few
lessons in picking oakum, and grinding
plaister of Paris, and pounding hemp, not

withholding, in the mean time, a seasonable
application of the cowskin, in the intervals
of study of these several branches of the
law. For the idea was to be imposed upon
Teague, that this was an office, or as
it were an inn of court, or chamber of
the Inner Temple; and that the several
flagellations, and grindings, and poundings,
were so many lessons, and lectures,
to qualify him for the practice of the law.

It happened, fortunately, that the keeper
of the work-house was well qualified
for the task; for, in early years, he had
been put an apprentice to an attorney, and
had some opportunity of attending courts,
and hearing the names of books to which
the advocates referred in their pleadings;
but having a turn for extravagance, and
a dissolute manner of life, he had come to
poverty, and, through various scenes, to
jail. There, by address, he had gained
the good will of the jailor's daughter,
whom he married; and, by the interest of
his new father-in-law, having obtained his
liberation, he was, from acting as deputy
jailor, in a series of time, at length promoted
to be the keeper of this work-house.
Indeed, from his employment, being acquainted
with the prisoners, and finding

himself sometimes interested in their fate,
and being led to attend their trials, he
had, even in his last capacity, been a good
deal about courts, and heard law phrases
and books mentioned.

Accordingly, when Teague was introduced,
which was that very afternoon, he
had, at his command, the names of the
abridgers, and reporters, and commentators
of the law, and the technical terms in
the commencement and process of a suit;
so that, when the key was turned, and,
after having stript him of the linen doublet
that was upon him, he began to give
him the first application of the cowskin,
he told him this was reading Wood's Institutes;
and when, after this, he was sentenced
to an hour or two's hard labour,
at grinding plaister of Paris, this was called
Coke upon Littleton; and when the employment
was varied, pounding hemp, or
picking oakum, it was called Hawkin's
Pleas of the crown, or Foster, or 4th
Blackstone, &c. When the poor bog-trotter,
reduced to a skeleton, living on
bread and water, complained of the hard
usage, and offered himself a servant for
life, to curry horses and brush boots, to
any Christian creature that would take him

out of that place; he was told, that, as he
had begun the study of the law, he must
go through with it; that that was but the
commencement of the suit; that in a year's
time he would learn to file a declaration;
in another, to put in a plea; in a third,
to join issue; and in a fourth, to conduct
a trial; that unless a bill of exceptions
had been filed, or there was a motion, in
arrest of judgment, or a writ of error
brought, he might be admitted the fifth,
and begin to practice the sixth year: At
all events, provided he would submit himself,
with due application, to fasting, and
cowskinning, and grinding plaister of Paris,
pounding hemp, and picking oakum,
he might be a lawyer the seventh year,
and wear spectacles, like counsellor Grab,
and take half a joe when he thought proper.

I know not by what simile to represent
the howl of the Irishman, at this prospect of
the duration of his woes. It was like that
of a wolf at the bottom of a well, or a
dog that had lost his master, or a cow
her comrade, or some forlorn wanderer
that has missed the way, and given up all
hopes of being extricated from the wilderness.
At the various applications of the

cowskin, he had jumped, and cursed, and
swore, and prayed, and beseeched, and
promised a thousand services, of currying
horses, and brushing boots, and trotting
where ever he was ordered, provided they
would set him at liberty. When employed
at the hard labour, before mentioned,
he had groaned, and cursed the law, the
counsellor, and the half joe. Ah, thought
he, if my dear master, the Captain, knew
how hard a ting it was to study law, and
to fast widout ating or drinking, and be
bate wid a cow-skin, he would not have
given the hundred pistoles, nor the half
of it, to have had me kicked and cuffed
in dis manner: I would give body and
shoul into the bargain, if I could see him
once more at that iron gate there, to spake
to him, and besache him to take me out
of this purgatory. He was a good master;
and when I was a fool, and wanted to be
a member of Congress, and prache, and
be a phalosophar, he told me, Teague,
you are a fool; and what they would do
wid me there; how they would bate me,
and ate me, and take de skin aff my back,
and make a cow or a shape od me; and
now I am worse than a cow or a shape,
or a horse in de tame; for I am cut, and
curried, black and blue; till my flesh is
raw, and a cholic in my belly, wid fasting;
and all to stoody dis law. The devil take
counsellor Grab, and de half joe.

5. CHAP. V.

THE Captain having been led to think
so much of law, of late, was struck
with the idea of visiting courts of justice,
and hearing some of those cases argued,
which come before them. Understanding
that a court was then sitting, he resolved
to take the opportunity of the interval
of Teague's purgation, in the workhouse,
to amuse himself with the pleading
of the advocates. Accordingly, repairing
to the court house, he took his place amongst
the crowd, and listened to what
was going forward.

What came before the court was a motion
in arrest of judgment. A Jonathan
Mun had been indicted, and found guilty
of “feloniously taking and carrying away
water out of the well of Andrew Mab.”
It was moved in arrest of judgment, that
larceny could not be committed of water
in a well, it being real property; for it

was a distinction of the common law, that
larceny could not be committed of things
real, or savouring of the realty, Black. 232.
2 Ray. 470. Hawkins, &c. So that taking
away the soil was merely a trespass;
and taking away the water could be no
more.

It was answered, that water being fluitans,
et mobilis, could not be considered
as real property; that an ejectment would
not lie for water, but for so many acres of
land covered with water, Yelv. 143. 1
Burr. 142. Because it was impossible to
give execution of a thing which is always
transient and running, Run. 36. quotes
Cro. Jas. 150. Lev. 114. Sid. 151.
Thence it is that in a grant of the soil it is
necessary, as we see from old forms, to add
the right of ways, woods, and water-courses, Lilly. Con. 132. and 179. Bridg.
Con. 321. That whatever might be said
of water in its natural bed on the soil,
as water in a running stream; yet a well
being dug by the labour of hands, the
water thus acquired, must be counted as
personal, not real property. Barbcray,
Titius, and Locke. That at a well, the
water being drawn up by the bucket, and
thus by one act separated from the freehold,

and by another taken from the bucket,
it becomes a subject of larceny; as in
the law of corn, trees, or grass growing.
For if these be severed at one time, and
at another time taken away, it is larceny.
Hawk. Pl. Cr. 93.

It was replied, that an ejectment would
lie of water in a well; for here the water
is fixed in a certain place, within the
bounds and compass of the well; and is
considered as part of the soil. Run. 37.
That, ex vi termini, in the indictment,
“out of the well,” it must be considered
as water ex, out of, or from the well;
that is, water severed by the very act of
taking; for otherwise it would have been
expressed, by “water out of the bucket”
of Andrew Mab; not out of the well;
and so the taking could not be larceny,
but trespass; as in the case of a tree
that is cut down at one time, and taken
away at another; or apples growing on a
tree, or shaken down and gathered from
the soil; the first being a trespass, the second
larceny.

Curia advisari vult.

The Captain whispering to lawyer Grab,
enquired what difference it made in the

punishment, whether it was larceny or trespass?
He was answered, that in the one
case it was hanging by the common law,
and in the other to pay the value of the
property. A very material difference indeed,
said the Captain, to depend on so
nice a distinction.