The Sot-Weed Factor

by John Barth

  “Nay, George,” Nicholson said gently. “He really is a servant named Bertrand Burton.”

  “Ah, marry!” Lucy moaned. Mrs. Russecks hurried to comfort her.

  “But God’s body!” The Colonel clenched his fists and snorted. “Behold my daughter, sir! Fraudulent or no, the match hath been consummated!”

  “Beyond a reasonable doubt,” the Governor agreed. “Methinks no Maryland court will dispute the match unless thy daughter sues for annulment, which is her clear prerogative. But her husband is Bertrand Burton, not Eben Cooke, and this Court here disallows her claim to any part o’ this estate, either through marriage or through this forgery of Tubman’s. D’ye have that, Burlingame?”

  Henry nodded. Andrew and Richard Sowter smiled broadly at Colonel Robotham’s defeat; and Ebenezer too, though he greatly pitied both father and daughter, felt relieved that at least one of the contenders was out of the field. The Governor advised the Colonel that he was free to leave or linger, as he pleased.

  “I shall leave this instant,” Colonel Robotham declared with great emotion, “least I commit murther on that lying lecher upstairs. God forgive him!”

  Properly hospitable now that their quarrel was settled to his advantage, Andrew offered to see the Robothams to their carriage, but the Colonel refused the courtesy and escorted his tearful daughter from the room.

  “So,” said Nicholson with a sniff. “Now, may I assume we’re all of a mind as to who is Eben Cooke and who is not? Excellent. Then as for the quarrel betwixt Mister Smith and Mister Andrew Cooke, methinks it hangs upon three main questions: a question o’ law, a question o’ fact, and another question o’ law, in that order. Did Eben Cooke’s power of attorney give him leave to dispose o’ this estate? If so, did he dispose of it knowingly or in ignorance? And if in ignorance, is the conveyance nonetheless valid before the law? I ask ye now to address yourselves to the first question, gentlemen.”

  Andrew took the floor to plead that while in fact there was no stipulation in his son’s commission specifically forbidding him to dispose of the estate, no reasonable man could question that such was the spirit of the thing—why would he apprentice the young man to Peter Paggen to learn the plantation trade, if he meant to dispose of his holdings in Maryland? But, he added, if anyone were carping enough to challenge his intent, he offered in evidence a transcript of his will and testament, prepared in 1693, wherein he bequeathed Cooke’s Point to his children, share and share alike. Did that suggest to the Court that he meant for his son to dispose of the property? Andrew concluded with high indignation and a red face. When he was finished, Roxanne nodded her belief in the justice of his arguments and lent him her linen handkerchief to mop his brow.

  “If’t please Your Excellency,” Sowter declared in his turn, “my client freely grants Andrew Cooke’s intention; we have no doubt whate’er that the young man was not instructed to dispose of Cooke’s Point. But good St. Abdon, sir, the question hath to do with authority, not with instruction: I submit that if young Mister Cooke’s commission lawfully empowered him to dispose of the property, the question of paternal sanction is immaterial.”

  The Governor rubbed his nose and sighed. “The Court agrees.”

  Sowter then obtained further concession from the Court that if in the management of the estate Ebenezer had found it expedient to lease, sell, or grant away some small portion of it, his action would be fully authorized by the phrase “all matters pertinent thereto”—since, after all, the very sot-weed for the sale of which the plantation existed was part and parcel of the estate. And having won this point, he declared that what applied to a part applied to the whole; to infer some arbitrary limitation from the language of the commission would be patently absurd.

  “If Mister Eben had the right to sell one leaf o’ sot-weed,” Sowter concluded, “he had the right to sell the whole estate.”

  By way of rebuttal, Andrew maintained that to interpret so broadly the phrase “all matters pertinent thereto” was in effect to contradict it, for if the attorney disposed of the whole estate, he by that gesture disposed of his power of attorney as well.

  “Which in sooth he did!” laughed Sowter. “We ne’er disputed that!”

  Nicholson consulted Burlingame and Sir Thomas. “I greatly fear,” he then declared, “the Court must find for Mister Sowter on this first question. ’Tis common practice for an overseer with power of attorney to deed away portions of an estate to indentured servants, for example, in fulfillment of their bonds—’twas just such a matter, as I recall, that Mister Spurdance was litigating with Mister Smith in the Cambridge Court. And albeit ’tis the custom of attorneys to consult the owners ere they make any large transaction, in the absence of any stipulation to the contrary the Court must rule that Eben Cooke was lawfully empowered to dispose o’ the whole estate as he saw fit.”

  This was a hard blow for Andrew; Ebenezer was touched to observe more distress than anger in the look his father gave him.

  “As to the second question,” Nicholson proceeded grimly, “let me merely enquire whether there is any difference of opinion. ’Tis thy contention, is’t not, Mister Cooke, that the boy granted away his legacy unwittingly to Mister Smith?”

  “Aye,” said Andrew. “Eben himself will swear to’t, as will—” He hesitated, loath to pronounce Burlingame’s name.

  “As will the clerk o’ this Court and this unfortunate young lady here, whom my boy was coerced by Mister Smith into marrying. Both were eyewitnesses to the grant. Moreover, Your Excellency may consult the records of the Circuit Court, session of September last—”

  “I have already,” the Governor said. “Mister Sowter, is’t thy intent to dispute this question of fact, or do ye allow that the grantor was unaware o’ the nature of his grant?”

  “We have no mind to dispute that fact,” Sowter replied. “Howbeit—”

  “Nay, now, spare me thy howbeits for the nonce, sir. To proceed, then: Ebenezer Cooke was fully within his rights as Andrew Cooke’s attorney to grant away Cooke’s Point to William Smith, but ’tis agreed by all parties that he did so unaware that it was his own estate he granted. I now ask Ebenezer Cooke to describe in full the circumstances o’ the grant, and then we’ll have an end to the tawdry business.”

  The poet released Joan’s hand long enough to do as he was bid: he reviewed as clearly as he could recall them the details of his journey to Cambridge with Henry Burlingame; their dispute concerning the relationship of innocence to justice; his indignation at the conduct of Judge Hammaker’s court; his intervention in the case of Smith v. Spurdance and the several stipulations of his verdict thereon.

  “ ’Twas an outrage against Justice I sought innocently to rectify,” he concluded. “Howbeit, when my innocence was stripped from me I saw I had not rectified but perpetrated injustice: not only did I grant what was not mine to grant—I mean morally—but in so doing I ruined a good and faithful man, Ben Spurdance; and indirectly, by giving this house to William Smith to turn into a den of viciousness, I ruined many another man as well, for which God forgive me.”

  “I see,” Nicholson smiled drily. “And may the Court infer that your estimation of innocence hath been revised somewhat in consequence?”

  Though he knew there was nothing malicious in the question, Ebenezer could not return the smile. “The Court may,” he answered quietly, and resumed his seat. Seldom had he felt more dispirited about himself than now, when, with many of his perils behind him, he had leisure to contemplate the destruction wrought by his innocence. He scarcely took notice of the fact that it was Joan who took his hand this time; he stole a guilty glance at his sister, whose rueful eyes said plainly that the gesture had not escaped her.

  Nicholson next requested a preliminary statement from both Andrew Cooke and Richard Sowter on the question of the validity of the grant.

  “My contentions are three, sir,” Andrew declared. “I hold in the first place that Judge Hammaker had no authority to delegate his office to my son, who h
ath no reading in the law, and thus that the sentence imposed on Spurdance was unlawful; second, that e’en if the sentence was lawful, the grant was not, being made unknowingly; and third, that e’en should an innocent grant be ruled binding, the conditions of my son’s were not fulfilled. That is to say, Smith was ordered to find a husband for the girl Susan Warren, supposedly his daughter; but I hold, sir, that her marriage to my son is null and void, on the double grounds that he was coerced into wedding her and that her name is not Susan Warren but Joan Toast. The stipulations being therefore unsatisfied, the grant must be revoked.”

  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.”

  21

  The Poet Earns His Estate

  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 reas
ons, 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.”