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THE WAYS OF THE HOUR
of red turned up with white; its green blinds, its high stoop,
its half – buried and low basement, and all its neatness and
comfort, notwithstanding its flagrant architectural sins. Into
this building we now propose to enter, at the very early hour
of eight in the morning.
The principal floor was divided, as usual, between a dining
and a drawing – room, with large communicating doors. This
was the stereotyped construction of all Manhattanese dwellings of any pretension, a quarter of a century since; and that of
Mr. Thomas Dunscomb, the owner and occupant of the house
in question, had been built in rigid conformity with the fashion of its day. ‘Squire Dunscomb, as this gentleman was termed
in all the adjacent country counties, where he was well known
as a reliable and sound legal adviser; Mr. Thomas Dunscomb,
as he was styled by various single ladies, who wondered he
never married; or Tom Dunscomb, as he was familiarly called
by a herd of unyoked youths, all of whom were turned of sixty,
was a capital fellow in each of his many characters. As a lawyer,
he was as near the top of the bar as a man can be, who never
had any pretensions to be an orator, and whose longest effort
seldom exceeded half an hour. Should the plan of placing eloquence in hobbles reach our own bar, his habit of condensing, his trick of getting multum in parvo, may yet bring him to
the very summit; for he will have an immense advantage over
those who, resembling a country buck at a town ball, need the
whole field to cut their flourishes in. As a man of the world, he
was well – bred, though a little cynical, very agreeable, most
especially with the ladies, and quite familiar with all the better habits of the best – toned circles of the place. As a boon
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JAMES FENIMORE COOPER
companion, Tom Dunscomb was an immense favourite, being
particularly warm – hearted, and always ready for any extra
eating or drinking. In addition to these leading qualities, Dunscomb was known to be rich, having inherited a very tolerable
estate, as well as having added much to his means, by a large
and lucrative practice. If to these circumstances we add that of
a very prepossessing personal appearance, in which age was
very green, the reader has all that is necessary for an introduction to one of our principal characters.
Though a bachelor, Mr. Dunscomb did not live alone. He
had a nephew and a niece in his family, the orphan children
of a sister who had now been dead many years. They bore the
name of Wilmeter, which, in the family parlance, was almost
always pronounced Wilmington. It was Jack Wilmington, and
Sally Wilmington, at school, at home, and with all their intimates; though Mr. John Wilmeter and Miss Sarah Wilmeter
were often spoken of in their little out – door world; it being rather an affectation of the times to prove, in this manner,
that one retains some knowledge of the spelling – book. We
shall write the name as it is written by the parties themselves,
forewarning the reader that if he desire to pronounce it by the
same family standard, he must take the unauthorized spelling
as a guide. We own ourselves to a strong predilection for old
familiar sounds, as well as old familiar faces
At half – past 8, A. M., of a fine morning, late in May, when
the roses were beginning to show their tints amid the verdure
of the leaves, in Mr. Dunscomb’s yard, the three individuals just
mentioned were at the breakfast – table of what it is the fashion of New York to term a dining – room. The windows were
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THE WAYS OF THE HOUR
open, and a soft and fragrant air filled the apartment. We have
said that Mr. Dunscomb was affluent, and he chose to enjoy his
means, not à la Manhattan, in idle competition with the nou-
veaux riches, but in a more quiet and rational way. His father
had occupied lots, “running through,” as it is termed; building
his house on one street and his stables on the other; leaving
himself a space in the rear of the former, that was prodigious
for a town so squeezed into parallelograms of twenty – five
feet by a hundred. This open space was of the usual breadth,
but it actually measured a hundred and fifty feet in length, an
area that would have almost justified its being termed a “park,”
in the nomenclature of the town. This yard Sarah had caused
to be well garnished with shrubbery, and, for its dimensions, it
was really a sort of oasis, in that wilderness of bricks.
The family was not alone that morning. A certain Michael
Millington was a guest of Jack’s, and seemingly quite at home
in the little circle. The business of eating and drinking was
pretty well through with, though each of the four cups had its
remains of tea or coffee, and Sarah sat stirring hers idly, while
her soft eyes were turned with interest on the countenances
of the two young men. The last had a sheet of writing – paper
lying between them, and their heads were close together, as
both studied that which was written on it in pencil. As for Mr.
Dunscomb, himself, he was fairly surrounded by documents
of one sort and another. Two or three of the morning papers,
glanced at but not read, lay opened on the floor; on each side
of his plate was a brief, or some lease or release; while a copy
of the new and much talked of code was in his hand. As we say
in our American English, Mr. Dunscomb was “emphatically”
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JAMES FENIMORE COOPER
a common – law lawyer; and, as our transatlantic brethren
would remark in their sometime cockney dialect, he was not
at all “agreeable” to this great innovation on `the perfection
of human reason.’ He muttered occasionally as he read, and
now and then he laid down the book, and seemed to muse.
All this, however, was quite lost on Sarah, whose soft blue eyes
still rested on the interested countenances of the two young
men. At length Jack seized the paper, and wrote a line or two
hurriedly, with his pencil.
“There, Mike,” he said, in a tone of self – gratulation, “I
think that will do!”
“It has one merit of a good toast,” answered the friend, a
little doubtingly; “it is sententious.”
“As all toasts ought to be. If we are to have this dinner,
and the speeches, and all the usual publications afterwards, I
choose that we should appear with some little credit. Pray, sir,”
raising his eyes to his uncle, and his voice to correspond, “what
do you think of it, now?”
“Just as I always have, Jack. It will never do at all. Justice
would halt miserably under such a system of practice. Some
of the forms of pleadings are infernal, if pleadings they can be
called at all. I detest even the names they give their proceeding
complaints and answers!”
“They are certainly not as formidable to the ear,” returned
Jack, a little saucily, “as rebutters and sur – rebutters. But I was
not thinking of the code, sir; I was asking your opinion of my
new toast.”
“Even a fee could not extract an opinion, unless I heard it
read.”
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THE WAYS OF THE HOUR
“Well, sir, here it is: `The constitution of the United States;
the palladium of our civil and religious liberties.’ Now, I do not
think I can much better that, uncle Tom!”
“I’m very sorry to hear you say so, Jack.”
“Why so, sir? I’m sure it is good American sentiment; and
what is more, it has a flavour of the old English principles that
you so much admire, about it, too. Why do you dislike it, sir?”
“For several reasons it would be common – place, which a
toast should never be, were it true; but there happens not to
be a word of truth in your sentiment, sonorous as it may sound
in your ears.”
“Not true! Does not the constitution guaranty to the citi-
zen religious liberty?” “Not a bit of it.”
“You amaze me, sir! Why, here, just listen to its language,
if you please”
Hereupon Jack opened a book, and read the clause on which
he relied to confute one of the ablest constitutional lawyers
and clearest heads in America. Not that Mr. Dunscomb was
what is called an “expounder,” great or small; but he never
made a mistake on the subject in hand, and had often caused
the best of the “expounders” to retrace their steps. He was an
original thinker, but of the safest and most useful sort; one
who distinguished between the institutions of England and
America, while he submitted to the fair application of minor
principles that are so common to both. As for his nephew, he
knew no more of the great instrument he held in his hand,
than he had gleaned from ill – digested newspaper remarks,
vapid speeches in Congress, and the erroneous notions that
float about the country, coming from “nobody knows whom,”
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JAMES FENIMORE COOPER
and leading literally to nothing. The ignorance that prevails
on such subjects is really astounding, when one remembers
the great number of battles that are annually fought over this
much – neglected compact.
“Ay, here is the clausejust please to hear it, sir,” continued
Jack.” `Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress of grievances.’ There, I think that will go far
towards justifying the whole toast, Mike.”
This was said a little triumphantly, and not a little con-
fidently. The only answer Mr. Dunscomb condescended to
make, was an expressive “Umph!” As for Michael Millington,
he was a little timid about expressing an opinion, and that for
two reasons; he had often experienced Mr. Dunscomb’s superior wisdom, and he knew that Sarah heard all that passed.
“I wish your uncle would lay aside that code for a minute,
Jack, and let us know what he thinks of our authorities,” said
Michael, in an under tone.
“Come, Uncle Tom,” cried the more hardy nephew “come
out of your reserve, and face the constitution of your country.
Even Sarah can see that, for once, we are right, and that my
toast is of proof.”
“It is a very good proof – sheet, Jack, not only of your own
mind, but of half the minds in the country. Ranker nonsense
cannot be uttered, however, than to say that the Constitution
of the United States is the palladium of anything in which
civil or religious liberty is concerned.”
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THE WAYS OF THE HOUR
“You do not dispute the fidelity of my quotation, sir?”
“By no means. The clause you read is a very useless exhibi-
tion of certain facts that existed just as distinctly before it was
framed, as they do to – day. Congress had no power to make an
established religion, or abridge the freedom of speech, or that
of the press, or the right of the people to petition, before that
amendment was introduced, and consequently the clause itself
is supererogatory. You take nothing by your motion, Jack.”
“I do not understand you, sir. To me, it seems that I have
the best of it.”
“Congress has no power but what has been conceded to it
directly, or by necessary connection. Now, there happens to be
nothing said about granting any such authority to Congress,
and consequently the prohibition is not necessary. But, admitting that Congress did really possess the power to establish
a religion previously to the adoption of this amendment, the
constitution would not prove a palladium to religious liberty,
unless it prohibited everybody else from meddling with the
opinions of the citizen. Any state of this Union that pleases,
may establish a religion, and compel its citizens to support it.”
“Why, sir, our own state constitution has a provision simi-
lar to this, to prevent it.”
“Very true; but our own state constitution can be altered
in this behalf, without asking permission of any one but our
own people. I think that even Sarah will understand that the
United States is no palladium of religious liberty, if it cannot
prevent a state from establishing Mohamedanism, as soon as a
few forms can be complied with.”
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JAMES FENIMORE COOPER
Sarah coloured, glanced timidly at Michael Millington, but
made no reply. She did not understand much of what she had
just heard, though rather an intelligent girl, but had hoped
that Jack and his friend were nearer right than was likely to
turn out to be the case. Jack, himself, being a young limb of the
law, comprehended what his uncle meant, and had the grace
to colour, too, at the manner in which he had manifested his
ignorance of the great national compact. With a view to relieve
himself from his dilemma, he cried, with a ready dexterity,
“Well, since this won’t do, I must try the jury. `The trial by
jury, the palladium of our liberties.’ How do you like that, sir?”
“Worse than the other, boy. God protect the country that
has no better shield against wrong, than that which a jury can
hold before it.”
Jack looked at Michale, and Michael looked at Jack; while
Sarah looked at both in turn.
“You surely will not deny, sir, that the trial by jury is one
of the most precious of the gifts received from our ancestors?”
said the first, a little categorically, Sarah brightening up at this
question, as if she fancied that her brother had now got on
solid ground.
“Your question cannot be answered in a breath, Jack,” re-
turned the uncle. “The trial by jury was undoubtedly a most
precious boon bestowed on a people among whom there existed an hereditary ruling power, on the abuses of which it was
often a most salutary check.”
“Well, sir, is it not the same check here; assuring to the citi-
zens independent justice?” “Who compose the ruling power in
America, Jack?”
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THE WAYS OF THE HOUR
“The people, to be sure, sir.” “And who the jurors?”
“The people, too, I suppose,” answered the nephew, hesitat-
ing a little before he replied.
“Well, let us suppose a citizen has a conflict of rights with
the public, which is the government, who will compose the
tribunal that is to decide the question?”
“A jury, to be sure, sir. The trial by jury is guarantied by the
constitution, to us all.”
“Ay,” said Mr. Dunscomb, smiling, “much as are our reli-
gious and political liberties. But according to your own admission, this is very much like making one of the parties a judge in
his own case. A insists that he has a right to certain lands, for
instance, which the public claims for itself. In such a case, part
of the public compose the tribunal.”
“But is it not true, Mr. Dunscomb,” put in Millington, “that
the popular prejudice is usually against government, in all
cases with private citizens?”
Sarah’s face looked brighter now than ever, for she felt sure
that Mike, as her brother familiarly called his friend, had asked
a most apposite question.
“Certainly; you are right as to particular sets of cases, but
wrong as to others. In a commercial town like this, the feeling is against government in all cases connected with the collection of the revenue, I admit; and you will see that the fact
makes against the trial by jury in another form, since a judge
ought to be strictly impartial; above all prejudice whatever.”
“But, uncle, a judge and a jury are surely very different
things,” cried Sarah, secretly impelled to come to Michael’s
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JAMES FENIMORE COOPER
rescue, though she scarce knew anything of the merits of the
subject.
“Quite right, my dear,” the uncle answered, nodding his
head kindly, casting a glance at his niece that caused her to
blush under the consciousness of being fully understood in
her motives, if not in her remark. “Most profoundly right; a
judge and a juror ought to be very different things. What I
most complain of is the fact that the jurors are fast becoming
judges. Nay, by George, they are getting to be legislators, making the law as well as interpreting it. How often does it happen, now – a – days, that the court tell the jury that such is the
law, and the jury comes in with a verdict which tells the court
that such is not the law? This is an every – day occurrence, in
the actual state of public opinion.”
“But the court will order a new trial, if the verdict is against
law and evidence,” said Michael, determined that Sarah should
be sustained.
“Ay, and another jury will be quite likely to sustain the old
one. Nonothe trial by jury is no more a palladium of our liberties, than the Constitution of the United States.”
“Who, or what is, then, sir?” demanded Jack.
“God! Yes, the Deity, in his Divine Providence; if anything
is to save us. It may not be his pleasure to let us perish, for
it would seem that some great plan for the advancement of
civilization is going on, and it may be a part of it to make us
important agents. All things regarded, I am much inclined to
believe such is the fact. But, did the result depend on us, miserable instruments in the Almighty hands as we are, woeful
would be the end!”
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