The Sot-Weed Factor (99 page)

Impressed as he was by the persuasiveness of his father's case, Ebenezer was greatly perturbed by this last contention. "A word, Your Excellency!" he pleaded.

"Not now," said Nicholson. "The floor is Mister Sowter's."

Sowter then declared his intention to show first, by legal precedent, that it was within Judge Hammaker's rights, under special circumstances, to delegate the authority of the Bench in effect, since in fact he never relinquished it at all: what he had done, in other words, was grant Ebenezer the privilege of pronouncing a sentence which he then ratified and so made lawful, but which he could as easily have overriden; it was in truth no more than a consultation that Hammaker availed himself of, as a judge will often consult an expert and disinterested third party before ruling on a difficult civil suit (furthermore, he added in an aside to Andrew, it must be allowed that Ebenezer
was
a disinterested party; otherwise the grant was made knowingly and could scarcely be challenged). In the second place, he meant to demonstrate both by reason and by precedent what no man familiar with torts would seriously question: that a lawful contract lawfully signed is binding, it being the responsibility of the signatories to apprise themselves of its terms. Moreover, it would be a mockery of justice to hold that a breach of contract committed by Ben Spurdance was more reprehensible than the same breach committed by Messrs. Cooke and son; if in the Circuit Court's opinion William Smith was due the whole of Malden (less one and a half acres) in redress of his grievances, then surely it was no less his due for the fact that 'Squire Cooke and not poor Spurdance happened to own it -- Spurdance too, the Court was to remember, had power of attorney, and was thus acting in Andrew's behalf when he deprived the cooper of his just reward. As for that feeble casuistry regarding the marriage --

"If't please Your Excellency," Burlingame interrupted at this point. "I am dry of ink." He showed Nicholson the paper on which he had been transcribing testimony. "See there, how I was obliged to leave Mister Sowter's period half-writ? I beg Your Excellency's leave to forage for another pot of ink and a better quill as well."

At first the Governor's expression was as impatient as were Sowter's and Andrew Cooke's, but something in Burlingame's face -- which Ebenezer too remarked, but Sowter was prevented by his position from observing -- led him to examine the page of testimony.

"Ah, well, 'tis a bother, Henry, but there's no help for't -- besides, I daresay I'm not the only man here that hath been tendered a subpoena by Dame Nature." He rapped the table-edge and stood up. "This Court stands in recess for half an hour or thereabouts. Leave the room as ye please, but not the house."

As
soon as court
was recessed Richard Sowter and William Smith retired to another room, whereupon Burlingame, so far from going in search of ink, admitted cheerfully that his pot was half full, but dispatched the militiaman to find more for appearance's sake.

"Why is't ye tricked us?" Andrew demanded. "I strenuously object!"

Burlingame shrugged. "To save Anna's dowry," he said mischievously. "I'd not want to lose my share of Cooke's Point."

"Nay, Henry," Anna scolded. "Go to!"

"I'll have somewhat to say to you anon, young lady," Andrew threatened. "Just now --"

"Just now we've a crisis on our hands, sir," Governor Nicholson broke in, "and not much time to make our plans."

"A crisis? Nonsense! You heard my arguments!"

"Aye, and Sowter's rebuttal, that leaves ye not a pot to piss in. Which vulgar trope reminds me --" He bowed to the ladies and excused himself.

"Nay, sir," urged Burlingame. " 'Tis important you hear this too."

"Ah, ah --" Nicholson waggled a finger. "I remind ye we have declared ourselves a court o' law, and 'tis popularly believed a judge should be impartial."

"As should a clerk," Andrew added sternly. "I'll win my case without thy assistance, Mister Burlingame."

"A fart for thy case!" cried Henry. "I care no more who owns this piece of dirt than doth Ebenezer, or thy daughter! 'Tis the Province I'm concerned with."

"Eh?" The Governor paused at the door. "How's that, Henry?"

Burlingame gathered all the men around the baize table for a conference.

" 'Tis about that portion of the Assembly Journal," he announced. "All of us here save you, Mister Cooke, are aware of its nature and importance -- I shall ask you merely to accept His Excellency's word for't that without this document of Bill Smith's we may well lose a much graver case than this one, and belike the entire Province o' Maryland into the bargain! With the Journal complete we may yet not get our man, but at least we can prosecute."

"That is correct, sir," Nicholson assured Andrew. "But what of't, Henry?"

Burlingame smiled. "We've heard Mister Cooke's case and Mister Sowter's, sir, and you know as well as I that as they stand, Mister Cooke hath lost every point."

Andrew protested vigorously against this opinion, and Nicholson reminded Burlingame of the unethicality of asking a judge to commit himself before the pleadings were complete. But his smile suggested, to Ebenezer at least, that Andrew's case was perhaps by no means so strong as the poet had thought.

"Methinks I should tell you now, sir," Ebenezer said to his father, "I have no intentions of disavowing my marriage, whate'er the circumstances of't. Joan's state is my responsibility --" Here he waved away McEvoy's protests. "Nay, John, 'tis mine, and I'd not abandon her again for a thousand Maidens."

In vain did his father point out that she was a diseased and dying prostitute; in vain he turned from wrath to reasonableness to supplication, and returned to wrath. Ebenezer was adamant.

"Out on't, then!" his father cried at last. "Wed the whore a second time when our case is won, and be damned t'ye! All I beg is your leave to save Malden for ye!"

Now Ebenezer found himself caught between conflicting responsibilities and could see no way to reconcile them. It was a painful moment until Burlingame came to his rescue.

" 'Tis all beside the point in any case, gentlemen," Henry said. "If Sowter hath a brain in his thieving head he'll agree that the marriage is false (if you'll pardon me, Eben, 'tis as well your father knew the match hath ne'er been consummated). But the stipulation that required it was false for the same reason: Joan Toast isn't Susan Warren, and Susan Warren isn't Bill Smith's daughter, and there's an end on't! As for the other arguments, they simply hold no water; 'twill be light work for Sowter to rest his case on precedents. Do you agree, Tom? Thou'rt no judge now."

Sir Thomas Lawrence admitted that Andrew's case struck him as vulnerable and Sowter's relatively strong, but added that he thought Mister Cooke had overlooked the best line of attack. "If
I
were thy counsel," he told Andrew, "I'd appeal the
extremity
of the Circuit Court's ruling, not its legality. Admit that Spurdance was in the wrong, but plead for the damages to be lightened -- say, to the terms of Smith's original indenture plus costs and a sop for's trouble."

Burlingame shook his head. "You don't see the problem, Tom. We don't want Sowter to win, but we dare not let him lose!"

"And why not, pray?" demanded Nicholson.

"For the best of reasons, sir," Burlingame replied calmly. "You and I and Sir Thomas know very well that this court hath no more law in't than a bawdyhouse."

Ebenezer expressed his astonishment, and Andrew openly charged Burlingame with prevarication; but Sir Thomas blushed, and Governor Nicholson scowled uncomfortably,

"Ah, well now, Henry!" He glanced angrily about the room. "I'll own 'tis not the sort o' thing a governor doth every Tuesday -- but 'tis done, dammee! If I choose to find for Smith I'll find for Smith, and if for Cooke then Cooke, arguments and precedents be damned! I doubt our friend Sowter will appeal to the Lords Commissioners!"

"I'm sure he won't," Henry agreed. "But when Judge Hammaker learns that you sat yourself down in this parlor one evening and reversed the ruling of his Circuit Court, you may rest on't
he'll
make a noise in London! And wouldn't Andros love the sound of't!"

"No more!" growled Nicholson. "The point is clear enough." His tone bade no good for Andrew's prospects.

"Well, God's blood!" that gentleman exclaimed. "I'd have ye recall, sirs, that
my
voice is as loud as Hammaker's with the Lords Commissioners! If this court hath no jurisdiction, ye'll be no better off for ruling against me!"

"Quite so," Burlingame agreed with a smile, "now that I've shown ye the way. Besides, we want the rest of the
Privie Journall
as well as the estate, if not more so. Sowter knows his client's position is shaky -- Smith's attempt to run away shows that -- but he also knows there's some connection 'twixt me and the Cookes. He's not sure of his ground, particularly with regard to our vice and sedition charges, and methinks his only motive in defending Smith's claim is to give his man more bargaining power when the time comes to bargain."

Nicholson fumed and worried his stick. "Ye might have mentioned this ere we set up court, you know!"

" 'Twere premature," Burlingame declared. "We have got rid of the Colonel already, and 'twas quite within your rights to seize Cooke's Point for the nonce -- well done, in fact."

"Thou'rt too gracious!"

"But you daren't hold the property for long on such a pretext, and you daren't release it by court order to either party. 'Tis hence I warned you to recess."

Nicholson wiped his brow. "Devil take all barristers and law-books! What a province I could have me without 'em! What do we do now?"

Burlingame shrugged. "What do all good barristers do when they have no case, sir? We settle out o' court!"

"Stay!" Ebenezer warned. "Here they are."

Richard Sowter and William Smith came in from the next room. The cooper did indeed look unsure of his ground, but his counsel was as breezy as ever.

"Did ye scare up some ink, Mister Clerk? Splendid! By St. Ludwig, 'twere a pity such eloquence as Mister Cooke's went unrecorded!"

The party around the table dispersed. Observing with some surprise that Anna had moved to the couch and was deep in conversation with Joan, Ebenezer returned with his father to his earlier place. So dispirited was Andrew by the progress of events that he offered no resistance when his son took his arm and directed him gently to a seat.

"By'r leave, Your Excellency," Sowter asked, "may I proceed with my statement?"

Burlingame, Ebenezer noticed, had been conferring in whispers with the Governor and Sir Thomas Lawrence. Now he sat back and winked at Ebenezer as if there was nothing at all to be concerned about!

"Ye may not," Nicholson grumbled.

Sowter's face clouded. "Your Excellency?"

"The Court will rule on thy client's claim some other time," the Governor said. "Just now I'm fetching the twain of ye to Anne Arundel jail. The charges are conspiracy, sedition, and high treason, and after what Tim Mitchell here hath told me, I quite expect to see ye hanged ere the year is out!"

The surprise brought even the sullen cooper to his feet. "Tim Mitchell!"

"Aye, gentlemen." Burlingame smiled. "Captain Billy's pride and pleasure, till his real son came along." His hands were busy as he spoke, and his appearance changed magically. Off came the powdered periwig, to be replaced by a short black hairpiece; from his mouth he removed a curious device which, it turned out, had held three artificial teeth in position. Most uncannily of all, he seemed able to alter at will the set of his facial muscles: the curve of his cheeks and the flare of his nose changed shape before their eyes; his habitually furrowed brow grew smooth, but crow's-feet appeared where before there were none. Finally, his voice deepened and coarsened; he drew in upon himself so as to seem at least two inches shorter; his eyes took on a craftier cast -- Nicholas Lowe, in a few miraculous seconds, had become Timothy Mitchell.

" 'Sbody!" exclaimed Sir Thomas Lawrence, and the Governor himself -- though one supposed he must have witnessed such transformations of his agent before -- was moved to shake his head.

" 'Tis a page of Ovid!" Ebenezer marveled. The others made similar expressions of their awe -- except Smith and Sowter, who were dumb struck.

"Now, Mister Smith," Burlingame said grimly, "methinks ye know what straits thou'rt in if I testify against ye -- if ye do not, I give ye leave to consult Mister Sowter, that will keep ye company in jail for's misdemeanors."

The cooper seemed ready to do violence, but Sowter waved his hand resignedly.

"Ye quite agree we've dagged ye? Splendid! Then attend me closely: 'tis my intention to expose for prosecution the entire traffic in opium and whores, the which hath paid for all of John Coode's mischief and haply Baltimore's as well. Whoe'er hath had a finger in't" -- he smiled at Andrew -- "shall be brought to account, regardless of his station --"

"St. Louis's wig, man!" Sowter complained. "Jail us and have done with't, but spare us this pious gloating!"

"Patience, Dick." Henry raised his finger. " 'Tis but my preamble to a bargain. On the strength of my deposition His Excellency hath instructed Sir Thomas to proceed against Coode, Bill Mitchell, and every traitor of a whoremaster in his company -- with the possible exception of yourselves."

Smith's eyes narrowed, and Sowter's expression became calculating as Burlingame offered to waive the charges against them in return for the cooper's portion of the
Privie Journall,
on whose
verso
was believed to be Coode's record of confiscations and prosecutions during his brief tenure of office. The cooper agreed at once to the exchange, but Sowter restrained him.

"Only think of the consequences, Bill!" he warned. "D'ye think we'll live out the month when John Coode learns ye've let go the papers? Besides, methinks His Excellency must set great store by 'em to make us such an offer; and
What will fetch eleven pence,
don't ye know,
will as lightly fetch a shilling. . ."

"Take 'em away, Sergeant," snapped Nicholson. "I'm sorry to disappoint ye, Henry, but I'll not dicker farther with traitors just to get your grandfather's diary."

"Stay!" Sowter cried at once. "We'll fetch ye the wretched papers! Only give us thy pledge in writing. . ."

Nicholson shook his head. "I'm not such a fool."

"Welladay! Then this much, at least, sir: we'll have no profit in our bargain if John Coode murthers us; grant us safe conduct to Virginia, and ye may have the papers."

Again Burlingame conferred in whispers with the Governor and Sir Thomas.

"His Excellency advises me to authorize safe exit for ye," Henry declared, "but not as a term of our first agreement. We'll fetch ye out o' Maryland in the morning if Smith relinquishes all claim to this estate."

"God bless ye, sir!" Andrew cried.

" 'Sheart!" protested Sowter. "Ye'd bleed us dry!"

Nicholson grinned. "And 'twill not be Virginia we fetch ye to, either, but Pennsylvania. I've enemies enough in Virginia."

"What liars they are that call ye Papist!" William Smith exclaimed. "Thou'rt not even a proper Gentile!"

Sowter sighed. "We've no choice, Bill. Fetch the papers, and I'll draw up a conveyance."

The rest of the company cheered the news: Anna and Ebenezer embraced each other with relief; Andrew apologized stiffly to Burlingame and commended him for his strategy, as did Nicholson, Sir Thomas, and John McEvoy; Roxanne and Henrietta looked on approvingly. Only Joan Toast remained apathetic, and the sight of her blighted Ebenezer's joy.

The cooper left the room, under guard, and returned with a roll of yellowed papers, which Burlingame received eagerly. He and Sir Thomas made a cursory inspection of the
verso
and pronounced it sufficient evidence, when combined with the 1691 Assembly Journal, to institute proceedings against Coode and his associates. Then, while Sowter, Sir Thomas, and the Governor discussed the details of releasing Malden and ferrying the two men up the Bay to Pennsylvania, Burlingame took Ebenezer aside.

"D'ye recall the story I told ye on our way to Plymouth?" he asked excitedly. "How Sir Henry and Captain John were captured by Powhatan?"

Ebenezer smiled. "They struck some lewd bargain over the King's daughter, as I recall, but we ne'er learned the outcome of't. Is that the rest of the tale?"

"Aye, methinks our story is complete. Let's read it while Tom and the Governor attend those rascals."

And then and there, despite the general excitement in the room, they read together the second and final portion of Sir Henry Burlingame's
Privie Journall,
which began (where the first had left off) with the author and Captain John Smith incarcerated in the Emperor Powhatan's village waiting for dawn, at which time the Captain was pledged to gamble their lives against his ability to do what the ablest young men of the town had found impossible: relieve Pocahontas of her maidenhood.