Worthy Brown's Daughter

by Phillip Margolin

  “Good day to you, Mr. Penny.” Gibney said as soon as the door opened.

  “What can I do for you, Francis?”

  “You can come to Mr. Gillette’s office. He requests the pleasure of your company, if you’ve got a few minutes to spare.”

  Matthew wondered if Gillette was going to warn him away from Heather, but Gibney seemed too cheerful to be the emissary of an outraged father.

  “I could use a break,” Matthew said as he grabbed his sack coat.

  “I don’t think you’ll be needing those,” Gibney commented when Matthew put the revolvers in his coat pockets.

  “You couldn’t be more wrong. I owe you a debt of thanks for instructing me on the need to go armed. Two men attacked me when I rode home from Gillette House after the theater. I scared them off by shooting at them. I could have been badly injured if you hadn’t told me to start carrying a gun.”

  Gibney frowned. “Can you identify these men?”

  “No. It happened very fast, and it was dark. If they walked in right now, I wouldn’t know them.”

  “Let’s hope it was only someone fixing to rob anyone who came by, though the road to Gillette House in the dead of the night would be an odd place to wait.”

  Gibney thought for a moment. Then he said, “Maybe you should carry those pistols, Mr. Penny.”

  BENJAMIN GILLETTE’S BANK WAS THE first brick building in Portland. His office was on the third floor. An oil painting depicting a deer grazing near a shadowy mountain lake hung in a gilt frame over a satin-covered sofa on the north side of the room. A marquetry cabinet and several glass-fronted bookshelves filled with hand-tooled, leather-bound volumes occupied the east wall. The window behind Benjamin had a view of the Willamette. When Matthew walked in, Gillette motioned him into a high-backed chair on the other side of his ornately carved desk.

  “Thank you for coming,” Gillette said as he drew out a cigar from a teak box inlaid with ivory. He snipped off the end and lit it.

  “Join me?” he asked.

  “Thank you, sir.”

  “It’s Ben, and you’ll have to get used to calling me that if we’re going to do business together.”

  Gillette noticed Matthew’s puzzled look and took delight in his consternation.

  “Let me get to the point. I’m a businessman. Business made me wealthy. To become as wealthy as I have, a man has to twist the law on occasion, but I pride myself on never having broken it, and I don’t condone lawlessness on the part of those who work for me.”

  Gillette smiled. “I like you, son. You’ve got spunk, and I appreciate the way you handled the case in Phoenix. You could have made me look bad, but you did what was best for your client. That’s smart business.”

  Gillette worked his cigar for a moment. Then he pointed it at Matthew.

  “I’ll tell you something else. This business with the child bothers me. When Heather told me Caleb was keeping that child just to spite his servant . . . Well, it seems to me a white man has no business playing a nigger like that.

  “Then there’s that bribe. Francis has had a chat with Otis Pike. He admitted Caleb paid him to fix the case. He was surprised I didn’t know.” Gillette aimed a stream of smoke at the ceiling. He looked grim. “That really bothers me. I won’t hold with bribery of a juror, and I won’t have my reputation damaged by someone who will.

  “I’ve tolerated Barbour because he’s an excellent attorney, but I believe you go him one better, and I heartily approve of your character. Heather approves of you, too, which I assume you know.” If Gillette saw Matthew turn red, he made no comment. “That carries weight with me. I’m going to get rid of Barbour, and I’d like to retain you as my lawyer. What do you think of that?”

  Matthew was stunned. A lawyer who represented Benjamin Gillette would do very well for himself, but Matthew wondered if he had what it took to represent Gillette’s diverse interests. Matthew’s conflict could be read on his face.

  “There’s no need to make up your mind right now,” Gillette said. “Think on my offer. I’m going to San Francisco on business. I’ll wait for your decision until I get back. Caleb is out, no matter what you decide.”

  “I really appreciate the offer, Mr. Gillette.”

  “Ben. Use the week to check me out.” Gillette grinned. “Heather can give me a reference. Why don’t you have a chat with her?”

  Matthew blushed again, but Gillette pretended not to notice. When the door closed behind Matthew, he burst out laughing.

  “What do you think?” Gillette asked Francis, who’d watched from the sofa.

  “He’s a good lad. Plenty of spunk, as you said. He needed it Saturday night.”

  “Oh?”

  “Two men jumped him when he was returning to town from your house. He fought them off.”

  Benjamin looked upset. “Do you think Caleb was behind it?”

  “Hard to say. Penny can’t identify the men, and they didn’t say anything.”

  “See what you can find out.”

  Gibney nodded, and Gillette sighed.

  “Bring Caleb here so I can get this nasty business over with.”

  “Good riddance, if you ask me.”

  Gillette nodded. Then he crushed out his cigar.

  CHAPTER 19

  In Phoenix, the “courthouse” was a field shaded by an ancient oak tree. In Portland, a large, open loft on the third floor of the Coleman Barrel Company was rented when the circuit rider came to town. Thick, unpainted timbers supported the roof; sawdust covered the floor; dust motes floated in the light filtering through the cracks in the walls. The crates and barrels that usually covered the floor had been stacked against the walls so the space could accommodate a crowd larger than usual. The spectators, waiting for a glimpse of the nigger who was crazy enough to sue a white man, filled several rows of wooden benches. Among them was Heather Gillette.

  Brown v. Barbour was second on the docket behind a criminal case that Orville Mason was defending. Matthew, anticipating the unruly crowd, had Worthy Brown wait in his office. The criminal case took up the morning and part of the afternoon. When the jury reported that it had a verdict, Matthew walked to his office and got his client.

  Matthew wore his black broadcloth suit, a white shirt, a black string tie, and polished boots. He was nervous as he escorted Worthy past the jeers and belligerent stares of the men who lined the stairway leading up to the makeshift courtroom. Worthy, wearing the same clothes he’d worn to Matthew’s office, walked with his back straight, his head held high, and his eyes straight ahead. There might have been violence had it not been for the entertainment promised by the ex-slave’s suit, which captured the imagination of even the most brutal of the spectators. When they reached the loft, Orville Mason was accepting a congratulatory handshake from a grateful client and the district attorney, W. B. Thornton, was walking away, red-faced with anger.

  “Looks like you won,” Matthew said.

  Orville ignored the compliment and glanced at the hostile gallery.

  “I wish you the best on this.”

  “Thanks,” Matthew said as he began laying out his lawbooks and court papers.

  Orville walked to the back of the loft in search of a seat. Heather motioned him to a spot beside her just as Caleb Barbour started working his way through the crowd. Barbour looked poised and confident and gave no indication that he’d been dead drunk for most of the weekend. When he reached the front of the room, he ignored Matthew and Worthy Brown, but he nodded to the bench.

  “Good afternoon, Your Honor.”

  “Mr. Barbour,” Justice Tyler responded tersely.

  There was a commotion in the back of the loft, and Matthew turned in time to see Barbour’s law clerk, a skinny, bespectacled youth, dragging a reluctant Roxanne Brown into court. This was the first time Matthew had seen the subject of this notorious lawsuit. He knew
that Roxanne meant the world to her father, but she appeared to be perfectly ordinary. She was wearing a cheerful red-and-yellow head tie and a new blue dress. Matthew’s first impression was that Barbour was taking good care of his charge, but when he looked closer, he detected fear in Roxanne’s eyes and tension in her hunched shoulders.

  When Roxanne spotted her father, she started toward him. Barbour’s clerk gripped her by the upper arm and pulled her back as if she were a recalcitrant child. Worthy started to rise, but Matthew laid a hand on his forearm.

  “Your Honor,” Barbour said, “I’ve complied with the writ by producing my ward, but I see no beneficial purpose in having her remain.” He cast a glance at Worthy, who stared back angrily. “In fact, Your Honor, the child’s presence seems to be stirring up Mr. Penny’s client. I suggest my clerk be permitted to take Miss Brown to my office so as not to subject her young mind to the confusion these proceedings may engender in one not capable of fully understanding them.”

  “Mr. Penny?” Tyler inquired.

  Matthew glanced at the spectators before leaning over to his client. “I don’t like this crowd, Mr. Brown. If it gets out of hand, Roxanne will be safer in Barbour’s office.”

  Worthy wanted to see his daughter, but he recognized the wisdom of Matthew’s recommendation.

  “Mr. Brown and I have no objection to Miss Brown being spared the rigors of this proceeding,” Matthew informed the judge.

  “Very well. Mr. Barbour, have your clerk take Miss Brown to your office, but be prepared to return her here if I so order.”

  The clerk yanked on Roxanne’s arm. Her composure broke, and she looked as if she was going to speak. Worthy shook his head sadly. Roxanne lowered her head to hide her tears as the clerk led her through the gauntlet of the spectators’ cruel comments.

  “Let’s proceed, gentlemen,” the judge said when Roxanne was out of sight.

  “If the court please,” Barbour said pleasantly, “I have a preliminary matter I’d like to raise.”

  Barbour handed a document to the bailiff and a copy to Matthew.

  “This is a motion to dismiss. I believe this suit is prohibited by the Oregon Constitution.”

  Matthew felt sick after reading the document. Barbour picked up a copy of the state constitution.

  “I read from Article I, Section 35: ‘No free negro, or mulatto, not residing in this state at the time of the adoption of this constitution, shall come, reside, or be within this state, or hold any real estate, or make any contracts, or maintain any suit therein . . .’ I repeat, ‘ . . . or maintain any suit therein . . .’

  “Your Honor, in the affidavit in support of this petition for a writ of habeas corpus, petitioner swears under oath that he is a free man. The court can take judicial notice that he is of the Negro race. The constitution forbids free Negroes from bringing lawsuits in our state. That is my argument.”

  “Mr. Penny?” the judge inquired.

  “May I have a moment? Mr. Barbour never gave me notice that he was going to raise this issue. This is the first time I’ve seen this motion.”

  Matthew read the motion slowly, growing more despondent with each paragraph. Barbour smiled at Matthew’s distress. He planned to prove to Benjamin Gillette that he was twice the lawyer Matthew was by humiliating Gillette’s new attorney in court.

  Matthew rose to his feet. “The constitution only bars free Negroes not residing in Oregon when the Constitution was adopted from filing lawsuits. Mr. Barbour brought Mr. Brown to Oregon prior to the adoption of the constitution. Mr. Brown was residing in Oregon when the constitution was adopted. He is exempt from the prohibitions of Article I, Section 35.”

  “Not so,” Barbour answered. “It is true that the petitioner resided in Oregon before the constitution was adopted, but not as a free person. He was my slave. He didn’t gain his freedom until after the adoption of the constitution.”

  “What do you say to that, Mr. Penny?” the judge asked.

  “Oregon has a history of forbidding slavery, Your Honor. The provisional government prohibited slavery in 1843, and the territorial government did the same in 1848. I would argue that Mr. Brown ceased to be a slave the moment he crossed the border of the Oregon Territory and was a free man when our constitution was adopted. The fact that Mr. Barbour considered him a slave is irrelevant.”

  Tyler scowled. “Gentlemen, it is clear to me that this issue is too complex to be hashed out in a courtroom during a hearing. Mr. Penny should have been given notice so he could prepare a response to your argument, Mr. Barbour. I’m going to adjourn this case until the next term of court, two months hence. That will give both sides an opportunity to brief the issue. We’ll recess for fifteen minutes. Then I’ll take the case of Asher v. Deerfield.”

  “But, Your Honor,” Matthew said, “if this case is postponed, my client will be without his child for two more months.”

  “The issue I must decide is whether Mr. Brown has a right to sue Mr. Barbour. I won’t make that decision without adequate research and thought. Have I made myself clear?”

  “Yes, Your Honor,” Matthew answered, choking back his anger.

  “Mr. Penny . . .” Worthy started as soon as Tyler left the bench.

  “Not here, Mr. Brown,” Matthew cautioned. “I’ll answer your questions at my office. Let’s get you through this pack of smiling jackals.”

  “Mr. Penny, I want to know what this means now.”

  Matthew felt sick at heart, but he forced himself to sound determined.

  “Barbour has made a clever legal argument, which I believe to be flawed. When next we argue, I’m certain I can convince Judge Tyler that there’s no merit to it.”

  “But that will not be for two months?”

  “Unfortunately.”

  “And Roxanne must stay with Mr. Barbour until then?” Worthy asked as he turned toward the smirking barrister.

  “Yes.”

  “And at that time, I may be told that I have no right to sue him because I am a Negro?”

  “That may be true, but I doubt it. I’m certain there’s no merit in Barbour’s argument.”

  Worthy drew himself up to his full height and glared at Caleb Barbour with such hatred that the force of his emotions chased the smirk from the attorney’s lips.

  “You take good care of my Roxanne,” Worthy said menacingly.

  “Or what?” Barbour responded with false bravado, fearful of the damage to his already-tarnished reputation if a Negro backed him down.

  “I’ll make myself clear, Mr. Barbour. I ain’t your slave no more. I’m a free man. The day when I had to ask your permission to breathe is over. If any harm comes to my Roxanne, I’ll kill you, plain and simple, and take the consequences.”

  Barbour turned pale, and Matthew gripped Worthy’s arm.

  “Mr. Brown,” Matthew said, “this will do you no good. Come to my office, please. We’ll discuss this calmly.”

  Worthy shook off Matthew’s hand, but his knotted fists uncurled. Then he threw back his shoulders and walked proudly from the courtroom.

  “My, my,” Barbour said, his courage returning now that Worthy was gone. “Your nigger’s got himself a temper.”

  Matthew held his tongue and gathered up his lawbooks as the litigants in the next case moved between him and Barbour. Heather and Orville Mason closed in behind Matthew as he rushed after his client.

  “That was tough luck,” Orville said as they descended the stairs.

  “I should have seen this coming,” Matthew replied bitterly as he pushed through the door to the street. A wagon rolled by and raised a billowing cloud of dust. Matthew choked and turned his head. When the dust settled, he searched the street for Worthy Brown but couldn’t find him.

  “The poor man,” Heather said.

  “He put his faith in me, and I let him down.”

  “Nonsens
e,” Orville said. “Barbour’s ploy is clever, but I’m sure there’s a way around it. Let me help you find it.”

  “Thank you, Orville, but—”

  “No ‘buts,’” Orville answered with a smile. “I can’t abide the idea that Worthy Brown can be deprived of his child simply because he’s not white. And, knowing Caleb, I’m certain he’s doing this for sport.”

  “I’ll leave you to your work, gentlemen,” Heather said. “I must write this story for The Spokesman. Please come see me tonight, Matthew.”

  Heather walked off toward the offices of the newspaper, and the two attorneys headed for Matthew’s office. Hope was beginning to edge away the depression that had overwhelmed Matthew in court. Orville Mason was the smartest lawyer in Oregon, and he had been deeply involved in drafting Oregon’s Constitution. He would know the intent of the crafters of Article I, Section 35 intimately. If there was a way around Barbour’s argument, Orville Mason would find it.

  CHAPTER 20

  Court recessed when Jedidiah Tyler rendered his decision in the last docketed case. The judge was exhausted and wanted nothing more than a quiet evening at home. The sky was threatening by the time Tyler opened the front door of his modest two-story house on the outskirts of downtown, several blocks from the river. There was a white picket fence around his well-tended yard. The house was yellow with white trim, a surprising choice of colors for a man as somber as the judge. Aside from Mrs. McCall, his housekeeper and cook, few people entered the jurist’s sanctuary.

  The house was dark. Tyler lit the oil lamp in his bedroom then sat on the bed. He was so tired. Lately, everything seemed to take an extra effort. After taking off his jacket, tie, and boots, Tyler opened his shirt at the throat. There was a mirror across from the bed. He examined his face. Lines of age were beginning to show. Gray tinged his temples.

  Tyler picked up the lamp and wandered down the hall to his study. He was aware of the silence in the house, a sign of the emptiness of his life. Tyler’s study was the only room beside the bedroom where he spent much time. Lawbooks filled the shelves, and legal papers covered his desk. The law was Tyler’s passion. On the frontier, where everything was new, it pulsated with life. His dedication to his art had been repaid when he was elevated to the highest legal position in his adopted state. He had achieved everything he could have dreamed of in his profession. Why then did his books and papers seem so lifeless tonight? Why did the legal issues he was charged with resolving seem like petty squabbles between petty men, instead of matters of importance?