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THE WAYS OF THE HOUR
“Still, considering your beginning, and late appearance at
the bar, Timms, you are doing pretty well. Do you lead in many
trials at the circuit?”
“That depends pretty much on age, you know, ‘Squire.
Gen’rally older lawyers are put into all my causes; but I have
carried one or two through, on my own shoulders, and that by
main strength too.”
“It must have been by your facts, rather than by your law.
The verdicts turned altogether on testimony, did they not?”
“Pretty much and that’s the sort of case I like. A man can
prepare his evidence beforehand, and make some calculations
where it will land him; but, as for the law, I do not see that
studying it as hard as I will, makes me much the wiser. A case
is no sooner settled one way, by a judge in New York, than it is
settled in another, in Pennsylvany or Virginny.”
“And that, too, when courts were identical, and had a character! Now, we have eight Supreme Courts, and they are beginning to settle the law in eight different ways. Have you studied
the Code pretty closely, Timms?”
“Not I, sir. They tell me things will come round under it in
time, and I try to be patient. There’s one thing about it that I
do like. It has taken all the Latin out of the law, which is a great
help to us poor scholars.”
“It has that advantage, I confess; and before it is done, it
will take all the law out of the Latin. They tell me it was proposed to call the old process of `ne exeat’ a writ of `no go.”’
“Well, to my mind, the last would be the best term of the
two.”
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JAMES FENIMORE COOPER
“Ay, to your mind, it might, Timms. How do you like the
fee – bills, and the new mode of obtaining your compensation?”
“Capital! The more they change them matters, the deeper
we’ll dig into ‘em, ‘Squire! I never knew reform help the great
body of the community all it favours is individdles.”
“There is more truth in that, Timms, than you are probably aware of yourself. Reform, fully half the time, does no
more than shift the pack – saddle from one set of shoulders
to another. Nor do I believe much is gained by endeavouring
to make law cheap. It were better for the community that it
should be dear; though cases do occur in which its charges
might amount to a denial of justice. It is to be regretted that
the world oftener decides under the influence of exceptions,
rather than under that of the rule. Besides, it is no easy matter
to check the gains of a thousand or two of hungry attorneys.”
“There you’re right, ‘Squire, if you never hit the nail on the
head before! But the new scheme is working well for us, and, in
one sense, it may work well for the people. The compensation
is the first thing thought of now; and when that is the case, the
client stops to think. It isn’t every person that holds as large
and as open a purse as our lady at Biberry!”
“Ay, she continues to fee you, does she, Timms? Pray, how
much has she given you altogether?”
“Not enough to build a new wing to the Astor Library, nor
to set up a parson in a gothic temple; still, enough to engage
me, heart and hand, in her service. First and last, my receipts
have been a thousand dollars, besides money for the outlays.”
“Which have amounted to”
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THE WAYS OF THE HOUR
“More than as much more. This is a matter of life and death,
you know, sir; and prices rise accordingly. All I have received
has been handed to me either in gold or in good current paper. The first troubled me a good deal; for I was not certain
some more pieces might not be recognized, though they were
all eagles and half – eagles.”
“Has any such recognition occurred?” demanded Dunscomb, with interest.
“To be frank with you, ‘Squire Dunscomb, I sent the money
to town at once, and set it afloat in the great current in Wall
Street, where it could do neither good nor harm on the trial. It
would have been very green in me to pay out the precise coin
among the people of Duke’s. No one could say what might
have been the consequences.”
“It is not very easy for me to foretell the consequences of
the substitutes which, it seems, you did use. A fee to a counsel
I can understand; but what the deuce you have done, legally,
with a thousand dollars out – of – doors, exceeds my penetration. I trust you have not been attempting to purchase jurors,
Timms?”
“Not I, sir I know the penalties too well, to venture on such
a defence. Besides, it is too soon to attempt that game. Jurors
may be bought; sometimes are bought, I have heard say”here
Timms screwed up his face into a most significant mimicry of
disapprobation “but I have done nothing of the sort in the
`State vs. Mary Monson.’ It is too soon to operate, even should
the testimony drive us to that, in the long run.”
“I forbid all illegal measures, Timms. You know my rule of
trying causes is never to overstep the limits of the law.”
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JAMES FENIMORE COOPER
“Yes, sir; I understand your principle, which will answer,
provided both sides stick to it. But, let a man act as close to
what is called honesty as he please, what certainty has he that
his adversary will observe the same rule? This is the great difficulty I find in getting along in the world, ‘Squire; opposition
upsets all a man’s best intentions. Now, in politics, sir, there is
no man in the country better disposed to uphold respectable
candidates and just principles than I am myself; but the other
side squeeze us up so tight, that before the election comes off,
I’m ready to vote for the devil, rather than get the worst of it.”
“Ay, that’s the wicked man’s excuse all over the world,
Timms. In voting for the gentleman you have just mentioned,
you will remember you are sustaining the enemy of your race,
whatever may be his particular relation to his party. But in this
affair at Biberry, you will please to remember it is not an election, nor is the devil a candidate. What success have you had
with the testimony?”
“There’s an abstract of it, sir; and a pretty mess it is! So far as
I can see, we shall have to rest entirely on the witnesses of the
State; for I can get nothing out of the accused.”
“Does she still insist on her silence, in respect of the
past?”
“As close as if she had been born dumb. I have told her in
the strongest language that her life depends on her appearing
before the jury with a plain tale and a good character; but she
will help me to neither. I never had such a client before”
“Open – handed, you mean, I suppose, Timms?”
“In that partic’lar, ‘Squire Dunscomb, she is just what the
profession likes liberal, and pays down. Of course, I am so
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THE WAYS OF THE HOUR
much the more anxious to do all I can in her case; but she will
not let me serve her.”
“There must be some strong reason for all this reserve,
Timms Have you questioned the Swiss maid, that my niece
sent to her. We know her, and it would seem that she knows
Mary Monson. Here is so obvious a way of coming at the past,
I trust you have spoken to her?”
“She will not let me say a word to the maid. There they live
together, chatter with one another from morning to night, in
French, that nobody understands; but will see no one but me,
and me only in public, as it might be.”
“In public! You have not asked for private interviews, eh!
Timms? Remember your views upon the county, and the great
danger there is of the electors’ finding you out.”
“I well know, ‘Squire Dunscomb, that your opinion of me is
not very flattering in some partic’lars; while in others I think
you place me pretty well up the ladder. As for old Duke’s, I
believe I stand as well in that county as any man in it, now
the Revolutionary patriots are nearly gone. So long as any of
them lasted, we modern fellows had no chance; and the way in
which relics were brought to light was wonderful! If Washington only had an army one – tenth as strong as these patriots
make it out to be, he would have driven the British from the
country years sooner than it was actually done. Luckily, my
grandfather did serve a short tour of duty in that war; and my
own father was a captain of militia in 1814, lying out on Harlem Heights and Harlem Common, most of the fall; when and
where he caught the rheumatism. This was no bad capital to
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JAMES FENIMORE COOPER
start upon; and, though you treat it lightly, ‘Squire, I’m a favourite in the county I am!”
“Nobody doubts it, Timms; or can doubt it, if he knew the
history of these matters. Let me seeI believe I first heard of you
as a Temperance Lecturer?”
“Excuse me; I began with the Common Schools, on which
I lectured with some success, one whole season. Then came the
Temperance cause, out of which, I will own, not a little capital was made.” “And do you stop there, Timms; or do you ride
some other hobby into power?”
“It’s my way, Mr. Dunscomb, to try all sorts of med’cines.
Some folks that wunt touch rhubarb will swallow salts; and all
palates must be satisfied. Free Sile and Emancipation Doctrines
are coming greatly into favour; but they are ticklish things,
that cut like a two – edged sword, and I do not fancy meddling
with them. There are about as many opposed to meddling with
slavery in the free States, as there are in favour of it. I wish I
knew your sentiments, ‘Squire Dunscomb, on this subject. I’ve
always found your doctrines touching the Constitution to be
sound, and such as would stand examination.”
“The constitutional part of the question is very simple, and
presents no difficulties whatever,” returned the counsellor,
squinting through the ruby of his glass, with an old – bachelor sort of delight, “except for those who have special ends to
obtain.”
“Has, or has not, Congress a legal right to enact laws preventing the admission of slaves into California?” “Congress
has the legal right to govern any of its territories despotically;
of course, to admit or to receive what it may please within their
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THE WAYS OF THE HOUR
limits. The resident of a territory is not a citizen, and has no
legal claim to be so considered. California, as a conquered territory, may be thus governed by the laws of nations, unless the
treaty of cession places some restrictions on the authority of
the conqueror. A great deal of absurdity is afloat among those
who should know better, touching the powers of government
in this country. You, yourself, are one of those fellows, Timms,
who get things upside – down, and fancy the Constitution is
to be looked into for everything.”
“And is it not, ‘Squire? that is, in the way of theory in practice, I know it is a very different matter. Are we not to look into
the Constitution for all the powers of the government?”
“Of the government, perhaps, in one sensebut not for those
of the nation. Whence come the powers to make war and peace,
to form treaties and alliances, maintain armies and navies,
coin money, &c.?”
“You’ll find them all in the Constitution, as I read it, sir.”
“There is just your mistake; and connected with it are most
of the errors that are floating about in our political world. The
country gets its legal right to do all these things from the laws
of nations; the Constitution merely saying who shall be its
agents in the exercise of these powers. Thus war is rendered
legal by the custom of nations; and the Constitution says Congress shall declare war. It also says Congress shall pass all laws
that become necessary to carry out this power. It follows, Congress may pass any law that has a legitimate aim to secure a
conquest. Nor is this all the functionaries of the government
can do, on general principles, in the absence of any special
provisions by a direct law. The latter merely supersedes or di-
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JAMES FENIMORE COOPER
rects the power of the former. The Constitution guarantees
nothing to the territories. They are strictly subject, and may be
governed absolutely. The only protection of their people is in
the sympathy and habits of the people of the States. We give
them political liberty, not as of legal necessity, but as a boon to
which they are entitled in good – fellowship or as the father
provides for his children.”
“Then you think Congress has power to exclude slavery
from California?”
“I can’t imagine a greater legal absurdity than to deny it.
I see no use in any legislation on the subject, as a matter of
practice, since California will shortly decide on this interest
for itself; but, as a right in theory, it strikes me to be madness to
deny that the government of the United States has full power
over all its territories, both on general principles and under
the Constitution.”
“And in the Deestrict you hold to the same power in the
Deestrict?”
“Beyond a question. Congress can abolish domestic servitude or slavery in the District of Columbia, whenever it shall
see fit. The right is as clear as the sun at noon – day.”
“If these are your opinions, ‘Squire, I’ll go for Free Sile and
Abolition in the Deestrict. They have a popular cry, and take
wonderfully well in Duke’s, and will build me up considerable. I like to be right; but, most of all, I like to be strong.”
“If you adopt such a course, you will espouse trouble without any dower, and that will be worse than McBrain’s three
wives; and, what is more, in the instance of the District, you
will be guilty of an act of oppression. You will remember that
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THE WAYS OF THE HOUR
the possession of a legal power to do a particular thing, does
not infer a moral right to exercise it. As respects your Free Soil,
it may be well to put down a foot; and, so far as votes legally
used can be thrown, to prevent the further extension of slavery. In this respect you are right enough, and will be sustained
by an over – whelming majority of the nation; but, when it
comes to the District, the question has several sides to it.”
“You said yourself, ‘Squire, that Congress has all power to
legislate for the Deestrict?”
“No doubt it has but the possession of a power does not
necessarily imply its use. We have power, as a nation, to make
war on little Portugal, and crush her; but it would be very
wicked to do so. When a member of Congress votes on any
question that strictly applies to the District, he should reason
precisely as if his constituents all lived in the District itself.
You will understand, Timms, that liberty is closely connected
with practice, and is not a mere creature of phrases and professions. What more intolerable tyranny could exist than to
have a man elected by New Yorkers legislating for the District on strictly New York policy; or, if you will, on New York
prejudices? If the people of the District wish to get rid of the
institution of domestic slavery, there are ways for ascertaining
the fact; and once assured of that, Congress ought to give the
required relief. But in framing such a law, great care should
be taken not to violate the comity of the Union. The comity of
nations is, in practice, a portion of their laws, and is respected
as such; how much more, then, ought we to respect this comity
in managing the relations between the several States of this
Union!”
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JAMES FENIMORE COOPER
“Yes, the sovereign States of the Union,” laying emphasis
on the word we have italicized. “Pshaw they are no more sovereign than you and I are sovereign.”
“Not sovereign, sir!” exclaimed Timms, actually jumping
to his feet in astonishment; “why this is against the National
Faith contrary to all the theories.”
“Something so, I must confess; yet very good common
sense. If there be any sovereignty left in the States, it is the very
minimum, and a thing of show, rather than of substance. If
you will look at the Constitution, you will find that the equal
representation of the States in the Senate is the only right of a
sovereign character that is left to the members of the Union,
separate and apart from their confederated communities.”
Timms rubbed his brows, and seemed to be in some mental
trouble. The doctrine of the “Sovereign States” is so very common, so familiar in men’s mouths, that no one dreams of disputing it. Nevertheless, Dunscomb had a great reputation in
his set, as a constitutional lawyer; and the “expounders” were
very apt to steal his demonstrations, without giving him credit
for them. As before the nation, a school – boy would have carried equal weight; but the direct, vigorous, common – sense
arguments that he brought to the discussions, as well as the
originality of his views, ever commanded the profound respect
of the intelligent. Timms had cut out for himself a path by
which he intended to ascend in the scale of society; and had industriously, if not very profoundly, considered all the agitating
questions of the day, in the relations they might be supposed
to bear to his especial interests. He had almost determined to
come out an abolitionist; for he saw that the prejudices of the
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