Atlantic Monthly Vol. 6, No. 33, July, 1860
Author: Various
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We propose to try to give some idea of those mental characteristics and peculiarities in which he differed from other lawyers, and to indicate some salient points of his genius and nature which went to make up so original and interesting an individuality. Immense labor and talent will no more produce genius or its results, than mere natural genius, without their aid and instrumentality, can reach and maintain the highest rank in any of the great departments of life or thought. With true genius, imagination is, to be sure, paramount to great and balanced faculties; but genius is always demonstrating its superiority to talent as well by its greater rapidity and certainty in seizing, arranging, and holding facts, and by the extent of its acquisitions, as by its superior philosophic and artistic grasp and vision.

Though Mr. Choate was so much more than a mere lawyer, it was in court that he displayed the full force and variety of his powers. Hic currus et arma. We shall, however, speak more especially of his jury-trials, because in them more of his whole nature was brought into play, and because of them and of his management of them there is and can be no full record. The arguments and triumphs of the great advocate are almost as evanescent and traditionary as the conversation of great talkers like Coleridge. In what we have to say we cannot be expected to call up the arguments and cases themselves, and we must necessarily be confined to a somewhat general statement of certain mental qualities and characteristics which were of the secret of his power. We shall be rewarded, if we succeed in giving in mere outline some explanation of the fact, that so much of interest and something of mystery attach themselves throughout the country to his name and genius.

A jury-trial is in itself dramatic; but mere eloquence is but a small part of what is demanded of a great advocate. Luther Martin and Jeremiah Mason were the most eminent American examples of the very many great jury-lawyers who were almost destitute of all that makes up popular eloquence. A jury-lawyer is of course greater with it, but he can do entirely without it. Almost all great trials appeal to the intellects rather than to the passions of jurors. What an advocate needs first is thorough knowledge of law, and that adaptiveness and readiness of faculty which are never surprised into forgetfulness or confusion, so that he can instantly see, meet, reason upon, and apply his legal learning to the unexpected as well as the expected points of law and evidence as they arise in a case. Secondly, he must have thorough knowledge of human nature: he must not only profoundly discuss motives in their relations to the laws of the human mind, and practically reconcile motives with conduct as they relate to the parties and witnesses in his cases, but he must prepare, present, develop, guide, and finally argue his case, within the rules of law, with strict reference to its effect upon the differing minds of twelve men. It would be difficult to name any other field of public mental effort which demands and gives scope for such variety of faculty and accomplishment.

Whatever may have been Mr. Choate's defects of character or of style, no competent judge ever saw his management of any case in court, from its opening to its close, without recognizing that he was a man of genius. It mattered not whether the amount involved was little or great, whether the parties were rich or poor, wise or ignorant, whether the subject-matter was dry or fertile,—such were his imaginative insight, his knowledge of law and of human nature, his perfection of arrangement, under which every point was treated fully, but none unduly, his consummate tact and tactics, his command of language in all its richness and delicacy to express the fullest force and the nicest shades of his meaning, and his haggard beauty of person and grace of nature, that every case rose to dramatic dignity and to its largest relations to law, psychology, and poetry; and thus, while giving it artistic unity and completeness, he all the more enforced his arguments and insured his success. How widely different in method and surroundings from the poet's exercise of the creative faculty in the calm of thought and retirement, on a selected topic and in selected hours of inspiration, was his entering, with little notice or preparation, into a case involving complicated questions of law and fact, with only a partial knowledge of the case of his antagonist! met at point after point by unexpected evidence and rulings of law, often involving such instantaneous decisions as to change his whole combinations and method of attack; examining witnesses with unerring skill, whom he was at once too chivalrous and too wise to browbeat; arguing to the court unexpected questions of law with full and available legal learning; carrying in his mind the case, and the known or surmised plan of attack of his antagonist, and shaping his own case to meet it; holding an exquisitely sensitive physical and mental organization in such perfect control as never to be irritated or disturbed; throwing his whole force on a given point, and rising to a joyousness of power in meeting the great obstacles to his success; and finally, with little or no respite for preparation, weaving visibly, as it were, before the mental eye, from all these elicited materials, his closing argument, which, as we have said, was all the more effective, because profound reasoning and exquisite tact and influence were involved in it as a work of art.

He had the temperament of the great actors,—that of the elder Kean and the elder Booth, not of Kemble and Macready,—and, like them, had the power of almost instantly passing into the nature and thought and emotion of another, and of not only absolutely realizing them, but of realizing them all the more completely because he had at the same time perfect self-direction and self-control. The absurd question is often asked, whether an actor is ever the character he represents throughout a whole play. He could be so, only if insane. But every great actor and orator must be capable of instantaneous abandonment to his part, and of as instantaneous withdrawal from it,—like the elder Booth, joking one minute at a side-scene and in the next having the big tears of a realized Lear running down his cheeks. An eminent critic says,—"Genius always lights its own fire,"—and this constant double process of mind,—one of self-direction and self-control, the other of absolute abandonment and identification,—each the more complete for the other,—the dramatic poet, the impassioned orator, and the great interpretative actor, all know, whenever the whole mind and nature are in their highest action. Mr. Choate, therefore, from pure force of mental constitution, threw himself into the life and position of the parties and witnesses in a jury-case, and they necessarily became dramatis personae, and moved in an atmosphere of his own creation. His narrative was the simplest and most artistic exhibition of his case thus seen and presented from the point of their lives and natures, and not from the dry facts and points of his case; and his argument was all the more perfect, because not exhibited in skeleton nakedness, but incorporated and intertwined with the interior and essential life of persons and events. It was in this way that he effected the acquittal of Tirrell, whom any matter-of-fact lawyer, however able, would have argued straight to the gallows; and yet we have the highest judicial authority for saying that in that case he did his simple technical duty, without interposing his own opinions or convictions. We shall say a word, before we close, of the charge that he surrendered himself too completely to his client; but to a great degree the explanation and the excuse at once lie in this dramatic imagination, which was of the essence of his genius and influence, and through which he lived the life, shared the views, and identified himself with a great actor's realization, in the part of his client.

In making real to himself the nature, life, and position of his client,—in gathering from him and his witnesses, in the preparation and trial of his case, its main facts and direction, as colored or inflamed by his client's opinions, passions, and motives,—and in seeking their explanation in the egotism and idiosyncrasy which his own sympathetic insight penetrated and harmonized into a consistent individuality,—he, of course, knew his client better than his client knew himself; he conceived him as an actor conceives character, and, in a great measure, saw with his eyes from his point of view, and, in the argument of his case, gave clear expression and consistent characterization to his nature and to his partisan views in their relations to the history of the case. We have seen his clients sit listening to the story of their own lives and conduct, held off in artistic relief and in dramatic relation, with tears running down cheeks which had not been moistened by the actual events themselves, re-presented by his arguments in such coloring and perspective.

As a part of this power of merging his own individuality in that of his client was his absolute freedom from egotism, conceit, self-assertion, and personal pride of opinion. Such an instance is, of course, exceptional. Nearly all the eminent jury-lawyers we have known have been, consciously or unconsciously, self-asserting, and their individuality rather than that of their clients has been impressed upon juries. An advocate with a great jury-reputation has two victories to win: the first, to overcome the determination of the jury to steel themselves against his influence; the second, to convince their judgments. Mr. Choate's self-surrender was so complete that they soon forgot him, because he forgot himself in his case; nothing personally demonstrative or antagonistic induced obstinacy or opposition, and every door was soon wide open to sympathy and conviction. If an advocate is conceited, or vain, or self-important, or if he thinks of producing effects as well for himself as for his client, or if his nature is hard and unadaptive,—great abilities display these qualities, instead of hiding them, and they make a refracting medium between a case and the minds of a jury. Mr. Choate was more completely free from them than any able man we ever knew. Any one of them would have been in complete contradiction to the whole composition and current of his nature. Though conscious of his powers, he was thoroughly and lovingly modest. It was because he thought so little of himself and so much of his client that he never made personal issues, and was never diverted by them from his strict and full duty. Instead of "greatly finding quarrel in a straw," where some supposed honor was at stake, he would suffer himself rather than that his case should suffer. Early in his practice, when a friend told him he bore too much from opposing counsel without rebuking them, he said: "Do you suppose I care what those men say? I want to get my client's case." Want of pugnacity too often passes for want of courage. We have seen him in positions where we wished he could have been more personally demonstrative, and (to apply the language of the ring to the contests of the court-room) that he could have stood still and struck straight from the shoulder; but when we remember how perfectly he saw through and through the faults and foibles of men, how his mischievous and genial irony, when it touched personal character, stamped and characterized it for life, and how keen was the edge and how fine the play of every weapon in his full armory of sarcasm and ridicule, (of which his speech in the Senate in reply to Mr. McDuffie's personalities gives masterly exhibition,) we are thankful that his sensibility was so exquisite and his temper so sweet, that he was a delight instead of a terror, and that he was loved instead of feared. Delicacy should be commensurate to power, that each may be complete. It would seem almost impossible that a lawyer with a practice truly immense, passing a great part of his life in public and heated contests and in discussing and often severely criticizing the motives and conduct of parties and witnesses, should not make many enemies; but he was so essentially modest, simple, gentlemanly, and tender, so considerate of the feelings of others, so evidently trying to mitigate the pain which it was often his duty to inflict, that we never heard of his searching and subtile examination of witnesses, or his profound and exhaustive analysis of character and motive, or his instantaneous and irresistible retorts upon counsel, creating or leaving behind him, in the bar or out of it, malice or ill-will in a human being. One of the most touching and beautiful things we ever saw in a court-room would have been in other hands purely painful and repulsive. It was his examination of the wretched women who were witnesses in the Tirrell case. His tact in eliciting what was necessary to be known, and which they would have concealed, was forgotten and lost in his chivalrous and Christian recognition of their common humanity, and in his gentlemanly thoughtfulness that even they were still women, with feelings yet sensitive to eye and word.

In jury-trials it would be foolish to judge style by severe or classic standards. If an advocate have skill and insight and adequate powers of expression, his style must yield and vary with the circumstances of different cases and the minds of different juries and jurors. When a friend of Erskine asked him, at the close of a jury-argument, why he so unusually and iteratively, and with such singular illustration, prolonged one part of his case, he said,—"It took me two hours to make that fat man with the buff waistcoat join the eleven!"

All men of great powers of practical influence over the minds of men know how stupid and dull of apprehension the mass of mankind are; and no one knows better than a great jury-lawyer in how many different ways it is often necessary to present arguments, and how they must be pressed, urged, and hammered into most men's minds. He is endeavoring to persuade and convince twelve men upon a question in which they have no direct pecuniary or personal interest, and he must more or less know and adapt his reasoning and his style to each juror's mind. He should know no audience but the judge and these twelve men. Retainers never seek and should not find counsel who address jurors with classical or formal correctness. Napoleon, at St. Helena, after reading one of his bulletins, which had produced the great and exact effect for which he had intended it, exclaimed,—"And yet they said I couldn't write!"

The true Yankee is suspicious of eloquence, and "stops a metaphor like a suspected person in an enemy's country." A stranger, who looked in for a few minutes upon one of Mr. Choate's jury-arguments, and saw a lawyer with a lithe and elastic figure of about five feet and eleven inches, with a face not merely of a scholarly paleness, but wrinkled all over, and, as it were, scathed with thought and with past nervous and intellectual struggles, yet still beautiful, with black hair curling as if from heat and dewy from heightened action and intensity of thought and feeling, and heard a clear, sympathetic, and varying voice uttering rapidly and unhesitatingly, sometimes with sweet caesural and almost monotonous cadences, and again with startling and electric shocks, language now exquisitely delicate and poetic, now vehement in its direct force, and again decorated and wild with Eastern extravagance and fervor of fancy, would have thought him the last man to have been born on New England soil, or to convince the judgments of twelve Yankee jurors. But those twelve men, if he had opened the case himself, had been quietly, simply, and sympathetically led into a knowledge of its facts in connection with its actors and their motives; they had seen how calmly and with what tact he had examined his witnesses, how ready, graceful, and unheated had been his arguments to the court, and how complete throughout had been his self-possession and self-control; they had, moreover, learned and become interested in the case, and were no longer the same hard and dispassionate men with whom he had begun, and they knew, as the casual spectator could not know, how systematically he was arguing while he was also vehemently enforcing his case. He, meanwhile, knew his twelve men, and what arguments, appeals, and illustrations were needed to reach the minds of one or all. He did not care how certain extravagances of style struck the critical spectator, if they stamped and riveted certain points of his case in the minds of his jury. With the keenest perception of the ridiculous himself, he did not hesitate to say things which, disconnected from his purpose, might seem ridiculous. One consequence of these audacities of expression was, that, when it became necessary for him to be iterative, he was never tedious. They gave full play to his imaginative humor and irony, and to his poetic unexpectedness and surprises. A wise observer, hearing him try a case from first to last, while recognizing those higher qualities of genius which we have before described, saw, that, for all the purposes of persuasion and argumentation, for conveying his meaning in its full force and in its most delicate distinctions and shadings, for analytic reasoning or for the "clothing upon" of the imagination, for all the essential objects and vital uses of language, his style was perfect for his purpose and for his audience. His excesses came from surplus power and dramatic intensity, and were pardoned by all imaginative minds to the real genius with which they were informed.

Every great advocate must, at times, especially in the trial of capital cases, be held popularly responsible for the acquittal of men whom the public has prejudged to be guilty. This unreasoning, impulsive, and irresponsible public never stops to inform itself; never discriminates between legal acumen and pettifogging trickery, between doing one's full duty to his client and interposing or misrepresenting his own personal opinions; and never remembers that the functions of law and the practice of law are to prevent and to punish crime, to ascertain the truth, and to determine and enforce justice,—that trial by jury, and the other means and methods through which justice is administered, are founded in the largest wisdom, philanthropy, and experience,—that they cannot work perfectly, because human nature is imperfect, but they constitute the best practical system for the application of abstract principles of right to the complicated affairs of life which the world has yet seen, and which steadily improves as our race improves,—and that every great lawyer is aiding in elucidating truth and in administering justice, when doing his duty to his client under this system. Our trial by jury has its imperfections; but, laying aside its demonstrated value and necessity in great struggles for freedom, before and since the time of Erskine, no better scheme can be devised to do its great and indispensable work. The very things which seem to an uninformed man like rejection or confusion of truth are a part of the sifting by which it is to be reached. The admission or rejection of evidence under sound rules of law, the presenting of the whole case of each party and of the best argument which can be made upon it by his counsel, the charge of the judge and the verdict of the jury,—all are necessary parts of the process of reaching truth and justice. Counsel themselves cannot know a whole case until tried to its end; their clients have a right to their best services, within the limits of personal honor; and lawyers are derelict in duty, not only to their clients, but to justice itself, if they do not present their cases to the best of their ability, when they are to be followed by opposing counsel, by the judge, and by the jury. The popular judgment is not only capricious,—it not only assumes that legal precedents, founded in justice for the protection of the honest, are petty technicalities or tricks through which the dishonest escape,—it is not only formed out of the court-room, with no opportunity to see witnesses and hear testimony, often very different in reality from what they seem in print,—but it visits upon counsel its ignorant prejudices against the theory and practice of the law itself, and forgets that lawyers cannot present to the jury a particle of evidence except with the sanction of the court under sound rules of law, and that the law is to be laid down by the court alone.

A man thoroughly in earnest in any direction is more or less a partisan. Histories are commonly uninfluential or worthless, unless written with views so earnest and decided as to show bias. As the greater interests of truth are best subserved by those whose zeal is commensurate to their scope of mind, so it is a part of the scheme of jury-trials, that, within the limits we have named, counsel shall throw their whole force into their cases, that thus they may be presented fully in all lights, and the right results more surely reached. The scheme of jury-trials itself thus providing for a lawyer's standing in the place of his client and deriving from him his partisan opinions, and for urging his case in its full force within the limits of sound rules of law, it almost invariably follows, that, the greater the talent and zeal of the advocate, and the more he believes in the views of his client, the more liable he is to be charged with overstating or misstating testimony. Mr. Choate never conceived that his duty to his client should carry him up to the line of self-surrender drawn by Lord Brougham; but, recognizing his client's full and just claims upon him, entering into his opinions and nature with the sympathetic and dramatic realization we have described, he could not faithfully perform the prescribed and admitted duty of the advocate,—necessarily, with him, involving his throwing the whole force of his physical and intellectual vitality into every case he tried,—without being a vehement partisan, or without being sometimes charged with misstating evidence or going too far for his client. Occasionally this may have been true; but we see the explanation in the very quality of his genius and temperament, and not in conscious or intentional wrong-doing.

His ability and method in his strictly legal arguments to courts of law are substantially indicated in what we have already said. His manner, however, was here calm, his general views of his subject large and philosophic, his legal learning full, his reasoning clear, strong, and consequential, his discrimination quick and sure, and his detection of a logical fallacy unerring, his style, though sometimes fairly open to the charge of redundancy, graceful and transparent in its exhibition of his argument, and his mind always at home, and in its easiest and most natural exercise, when anything in his case rose into connection with great principles.

While exhibiting in his jury-trials, as we have shown, this double process of absolute identification and of perfect supervision and self-control,—of instantaneous imaginative dips into his work, and of as instantaneous withdrawal from it,—of purposely and yet completely throwing himself in one sentence into the realization of an emotion, thus perfectly conveying his meaning while living the thought, and yet coming out of it to see quicker than any one that it might be made absurd by displacement,—he always had, as it were, an air-drawn, circle of larger thought and superintending relation far around the immediate question into which he passed so dramatically. Within this outer circle, attached and related to it by everything in the subject-matter of real poetic or philosophic importance, was his case, creatively woven and spread in artistic light and perspective; and between the two (if we do not press our illustration beyond clear limits) was a heat-lightning-like play of mind, showing itself, at one moment, in unexpected flashes of poetic analogy, at another in Puck-like mischief, and again in imaginative irony or humor.

As he recovered himself from abandonment to some part of his case or argument to guide and mould the whole, so, going into his library, he could, as completely, for minutes or for hours, banish and forget his anxieties and dramatic excitements, and pass into the cooling air and loftier and purer stimulations of the great minds of other times and countries and of the great questions that overhang us all. His mind, capacious, informed, wise, doubting, "looking before and after," here found its highest pleasures, and its little, but most loved repose. "The more a man does, the more he can do"; and, notwithstanding his immense practice, and that by physical and intellectual constitution he couldn't half do anything, he never allowed a day of his life to pass, without reading some, if ever so little, Greek, and it was a surprise to those who knew him well to find that he kept up with everything important in modern literature. Rising and going to bed early, taking early morning exercise, having a strong constitution, though he was subject to sudden but quickly overcome nervous and bilious illness, wasting no time, caring nothing for the coarser social enjoyments, leading, out of court, a self-withdrawn and solitary life, though playful, genial, and stimulating in social intercourse, with a memory as tenacious and ready as his apprehension was quick, with high powers of detecting, mastering, arranging, and fusing his acquisitions, and of penetrating to the centre of historical characters and events,—it is not strange, though he may not have been critically exact and nice in questions of quantity and college exercises, that his scholarship was large and available in all its higher aims and uses.

It will naturally be asked, how such qualities as we have described manifested themselves in character, and in political and other fields of thought and exertion. Fair abilities, zeal, industry, a sanguine temperament, and some special bent or fitness for the profession of the law, will make a good and successful lawyer. Such a man's mind will be entirely in and limited by the immediate case in hand, and virtually his intellectual life will be recorded in his cases. But with Mr. Choate, the dramatic genius and large scope and vision which made him superior to other great advocates at the same time prevented his overestimating the value of his work in kind or degree, showed him how ephemeral are the actual triumphs and how small the real value of nearly all the questions he thus vitalized into artistic reality, when compared with the great outlying truths and principles to which he allied them. Feeling this all through his cases, at the same time that he was moulding them and giving them dramatic vitality, they took their true position from natural reaction and rebound, with all the more sharpness of contrast, when he came out of them. With such a nature, it could be assumed a priori as a psychological certainty, at any rate it was the fact with him, that a certain unreality was at times thrown over life and its objects, that its projects and ambitions seemed games and mockeries, and "this brave o'erhanging firmament a pestilent congregation of vapors," and that grave doubts and fears on the great questions of existence were ever on the horizon of his mind. This gave perpetual play to his irony, and made it a necessity and a relief of mind. Except when in earnest in some larger matter, or closely occupied in accomplishing some smaller necessary purpose or duty, his imagination loved the tricksy play of exhibiting the petty side of life in contrast to its realities, just as in his cases it found its exercise in lifting them up to relations with what is poetic and permanent. But, though irony was thus the natural language of his mind, it did not pass beyond the limits of the mischievous and kindly, because there was nothing scoffing or bitter in his nature. It was fresh and natural, never studied for effect, and gave his conversation the charm of constant novelty and surprises. He loved to condense the results of thought and study into humorous or grotesque overstatements, which, while they amused his hearers, conveyed his exact meaning to every one who followed the mercurial movement of his mind. It will readily be seen how a person with neither insight into his nature nor apprehension of his meaning should, without intending it, misinterpret his life and caricature his opinions,—blundering only the more deeply when trying to be literally exact in reporting conversations or portraying character.

It has been shrewdly said, that, "when the Lord wants anything done in this world, he makes a man a little wrong-headed in the right direction." With this goes the disposition to overestimate the importance of one's work and to push principles and theories towards extremes. The saying is true of some individuals at or before certain crises in affairs; it is not true of the great inevitable historical movements, any more than the history of revolutions is the history of nations. Halifax is called a trimmer. William Wilberforce was a reformer. Each did a great work. But it would be simply absurd, except in the estimation of the moral purist, to call Wilberforce as great a man or as great an historical and influential person as Halifax. Halifax saw and acted in the clear light and large relations in which the great historian of our own times wrote the history of the Stuarts. Wilberforce was a purer man, who acted more conscientiously and persistently within his smaller range of life and thought. It would have been inconsistent with Mr. Choate's nature for him to have been "wrong-headed" in any direction. Such largeness of view, such dramatic and interpretative imagination, such volatile play of thought and fancy, and such perception of the pettiness and hollowness of nearly all the aims and ambitions of daily life we cannot expect to find coexisting with the coarser "blood-sympathies," the direct passion, and the dogged and tenacious hold of temporary and smaller objects and issues, which distinguish the American politician, or with the narrowness of view, the zeal, and the moral persistency which characterize the practical reformer. There was, therefore, in his nature a certain want of the sturdier, harder, and more robust elements of character, which, though commonly manifesting themselves in connection with self-assertion and partisan zeal, are indispensable to the man who, in any large and political way, would take hold of practical circumstances and work a purpose out of them. We admire him for what he was. We do not condemn him for the absence of qualities not allied to such delicacy and breadth of nature. It is simply just to state the fact.

He had too little political ambition to seek his own advancement. He never could have been a strictly party man. His interest in our politics was a patriotic interest in the country. While he recognized the necessity of two great parties, he despised the arts and intrigues of the politician. His modesty, sensibility, large views, and want of political ambition and partisan spirit prevented interest, as they would have precluded success in party management. Had he spent many years instead of a few in the national Senate, he never could have been a leader in its great party struggles. He had not the hardier personal and constitutional qualities of mind and character which lead and control deliberative bodies in great crises. He would not have had that statesmanlike prescience which in the case of Lord Chatham and others seems separable from great general scope of thought, and which one is tempted to call a faculty for government. But he must have been influential; for, besides being the most eloquent man in the Senate, his speeches would have been distinguished for amplitude and judgment in design, and for tact and persuasiveness in enforcement. They might not have had immediate and commanding effect, but they would have had permanent value. His speech upon the Ashburton Treaty indicates the powers he would have shown, with a longer training in the Senate. More than ten years had passed between that speech and his two speeches in the Massachusetts Constitutional Convention, upon Representation and the Judiciary, and in that time a great maturing and solidifying work had been going on in his mind. Indeed, it was one sure test of his genius, that his intellect plainly grew to the day of his death. We would point to those two speeches as giving some adequate expression of his ability to treat large subjects simply, profoundly, artistically, and convincingly. Many of his earlier and some of his later speeches and addresses, though large in conception and stamped with unmistakable genius, want solid body of thought, and are, so to speak, too fluid in style. This obviously springs from the qualities of mind and from the circumstances we have indicated. In court, the necessities of his case and the determination and shaping of all his argument and persuasion to convincing twelve men, or a court only, on questions requiring prompt decision, kept his style free from everything foreign to his purpose. But, released from these restraints, and called upon for a treatment more general and comprehensive than acute and discriminating, his style often became inflamed and decorated with sensibility and fancy. His mind, moreover, was overtasked in his profession. His unremitting mental labor in the preparation and trial of so many cases was immense and exhausting. It shortened his life. That his genius might have that free and joyous exercise necessary to its full use and exhibition in literary or political directions, an abandonment of a great part of his professional duties was indispensable. This was to him neither possible nor desirable. The mental heat and pressure, therefore, under which he wrote his speeches and addresses, and the necessity for the exercise of different methods of thought and treatment from those called into play at the bar, explain why (with a few noble exceptions) they do not give a fair or full exhibition of his genius and accomplishments. But in them his judgment never lost its anchorage. Unlike Burke, who was the god of his political idolatry, his sensibility never overmastered his reasoning. Through a style sometimes Eastern in flush and fervor, and again tropical in heat and luxuriance, were always seen the adjusting and attempering habit of thought and argument and the even balance of his mind.

We have said that his interest in politics was a patriotic interest in the nation. He knew her history and her triumphs and reverses on land and sea by heart. Though limited by no narrow love of country, he felt from sentiment and imagination that attachment to every symbol of patriotism and national power which makes the sailor suffer death with joy when he sees his country's flag floating in the smoke of victory. "The radiant ensign of the Republic" was to him the living embodiment of her honor and her power. He had for it the pride and passion of the boy, with the prophetic hopes of the patriot. Men of genius are ever revivifying the commonplace expressions and visible signs of popular enthusiasm with the poetic and historic realities which gave them birth. He felt the glow and impulse of the great sentiments of race and nationality in all their natural simplicity and poetic force. It is not now the time to discuss Mr. Choate's political preferences and opinions. No one who knew him well can hesitate to pronounce his motives pure and patriotic. We could not come to his conclusions on the policy and duty of our people at the last Presidential election. Our duties to the Union forced us to regard as paramount what he regarded as subsidiary. Our fear for the Union sprang from other sources than his. But we believe he acted from the highest convictions of duty, and he certainly exposed himself with unflinching courage to obloquy and misinterpretation when silence would have been easy and safe.

In what we have said of him as a lawyer we are sure that in every essential respect we have not overstated or misstated his powers and characteristics as they were known and conceded by lawyers and judges in Massachusetts. We have confined ourselves mainly to his jury-trials, because into them he threw the whole force and vitality of his nature, and because we could thus more completely indicate the variety of his accomplishments and the essential characteristics of his genius and individuality. A knowledge of them is indispensable to a just estimate of the man, and it must die with him and his hearers, excepting only as it may be preserved by contemporaneous written criticism and judgment, and by indeterminate and shadowy tradition.

The labors of so great a lawyer are as much more useful as they are less conspicuous than those of any prominent politician or legislator, unless he be one of the very few who have high constructive or creative ability. There is little risk of overestimating the value of a life devoted to mastering that complex system of jurisprudence, the old, ever-expanding, and ever-improving common law which is interwoven with our whole fabric of government, property, and personal rights, and to applying it profoundly through trial by jury and before courts of law, not merely that justice may be obtained for clients, but that decisions shall be made determining the rights and duties of men for generations to come. And when such a life is not only full of immense work and achievement, but is penetrated and informed with genius, sensibility, and loving-kindness, it passes sweetly and untraceably, but influentially and immortally, into the life of the nation.


Before the restoration of Charles the Second, in 1660, to the throne of his ancestors, he had issued a "Declaration," promising to all persons but such as should be excepted by Parliament a pardon of offences committed during the late disorderly times. In the Parliamentary Act of Indemnity which followed, such as had been directly concerned in the death of the late King were excepted from mercy. Colonel Whalley and Colonel Goffe were members of the High Court of Justice which convicted and sentenced him. It was known that they had fled from England; and one Captain Breedon, lately returned from Boston, reported that he had seen them there. The Ministry sent an order to Endicott, the Governor of Massachusetts, for their apprehension and transportation to England.

The friendly welcome which had in fact been extended to the distinguished fugitives cannot be confidently interpreted as an indication of favorable judgment of the act by which their lives were now endangered. No one of the New-England Colonies had formally expressed approval of the execution of King Charles the First, nor is there any other evidence of its having been generally regarded by them with favor. It is likely that in New England, as in the parent country, the opinions of patriotic men were divided in respect to the character of that measure. In New England, remote as it was from the scene of those crimes which had provoked so extreme a proceeding, it may be presumed that there was greater difficulty in admitting the force of the reasons, by which it was vindicated. And the sympathy of New England would be more likely to be with Vane, who condemned it, than with Cromwell. But the strangers, however one act of theirs might be regarded, had been eminent among those who had fought for the rights of Englishmen, and they brought introductions from men venerated and beloved by the people among whom a refuge was sought.

Edward Whalley, a younger son of a good family, first cousin of the Protector Oliver, and of John Hampden, distinguished himself at the Battle of Naseby as an officer of cavalry, and was presently promoted by Parliament to the command of a regiment. He commanded at the storm of Banbury, and at the first capture of Worcester. He was intrusted with the custody of the King's person at Hampton Court; he sat in the High Court of Justice at the trial of Charles, and was one of the signers of the death-warrant. After the Battle of Dunbar, at which he again won renown, Cromwell left him in Scotland in command of four regiments of horse. He was one of the Major-Generals among whom the kingdom was parcelled out by one of the Protector's last arrangements, and as such governed the Counties of Lincoln, Nottingham, Derby, Warwick, and Leicester. He sat as a member for Nottinghamshire in Cromwell's Second and Third Parliaments, and was called up to "the other House" when that body was constituted.

William Goffe, son of a Puritan clergyman in Sussex, was a member of Parliament, and a colonel of infantry soon after the breaking out of the Civil War. He married a daughter of Whalley. Like his father-in-law, he was a member of the High Court of Justice for the King's trial, a signer of the warrant for his execution, a member of the Protector's Third and Fourth Parliaments, and then a member of "the other House." He commanded Cromwell's regiment at the Battle of Dunbar, and rendered service particularly acceptable to him in the second expurgation of Parliament. As one of the ten Major-Generals, he held the government of Hampshire, Berkshire, and Sussex.

When Whalley and Goffe, upon the King's return, left England to escape what they apprehended might prove the fate of regicides, the policy of the Court in respect to persons circumstanced as they were had not been promulgated. Arriving in Boston, in July, and having been courteously welcomed by the Governor, they proceeded the same day to Cambridge, which place for the present they made their home. For several months they appeared there freely in public. They attended the public religious meetings, and others held at private houses, at which latter they prayed, and prophesied, or preached. They visited some of the principal towns in the neighborhood, were often in Boston, and were received, wherever they went, with distinguished attention.

At the end of four months, intelligence came to Massachusetts of the Act of Indemnity, and that Whalley and Goffe were among those excepted from it, and marked for vengeance. Three months longer they lived at Cambridge unmolested; but in the mean while affairs had been growing critical between Massachusetts and the mother country, and, though some members of the General Court assured them of protection, others thought it more prudent that they should have a hint to provide for their safety in some way which would not imply an affront to the royal government on the part of the Colony. The Governor called a Court of Assistants, in February, and without secrecy asked their advice respecting his obligation to secure the refugees. The Court refused to recommend that measure, and four days more passed, at the end of which time—whether induced by the persuasion of others, or by their own conviction of the impropriety of involving their generous hosts in further embarrassment, or simply because they had been awaiting till then the completion of arrangements for their reception at New Haven—they set off for that place.

A journey of nine days brought them to the hospitable house of the Reverend Mr. Davenport, where again they moved freely in the society of the ministers and the magistrates. But they had scarcely been at New Haven three weeks, when tidings came thither of the reception at Boston of a proclamation issued by the King for their arrest. To release their host from responsibility, they went to Milford, (as if on their way to New Netherland,) and there showed themselves in public; but returned secretly the same night to New Haven, and were concealed in Davenport's house. This was towards the last of March.

They had been so situated a month, when their friends had information from Boston that the search for them was to be undertaken in earnest. Further accounts of their having been seen in that place had reached England, and the King had sent a peremptory order to the Colonial governments for their apprehension. Endicott, to whom it was transmitted, could do no less than appear to interest himself to execute it; and this he might do with the less reluctance, because, under the circumstances, there was small likelihood that his exertions would be effectual. Two young English merchants, Thomas Kellond and Thomas Kirk, received from him a commission to prosecute the search in Massachusetts, and were also furnished with letters of recommendation to the Governors of the other Colonies. That they were zealous Royalists, direct from England, would be some evidence to the home government that the quest would be pursued in good faith. That they were foreigners, unacquainted with the roads and with the habits of the country, and betraying themselves by their deportment wherever they should go in New England, would afford comfortable assurance to the Governor that they would pursue their quest in vain.

From Boston, the pursuivants, early in May, went to Hartford, where they were informed by Winthrop, Governor of Connecticut, that "the Colonels," as they were called, had passed thence immediately before, on their way to New Haven. Thither the messengers proceeded, stopping on the way at Guilford, the residence of Deputy-Governor Leete. Since the recent death of Governor Newman, Leete had been Chief Magistrate of the Colony of New Haven, which was now, and for a few years later, distinct from Connecticut.

The Deputy-Governor received them in the presence of several other persons. He looked over their papers, and then "began to read them audibly; whereupon we told him," say the messengers, "it was convenient to be more private in such concernments as that was." They desired to be furnished "with horses, &c.," for their further journey, "which was prepared with some delays." They were accosted, on coming out, by a person who told them that the Colonels were secreted at Mr. Davenport's, "and that, without all question, Deputy Leete knew as much"; and that "in the head of a company in the field a-training," it had lately been "openly spoken by them, that, if they had but two hundred friends that would stand by them, they would not care for Old or New England."

The messengers returned to Leete, and made an application for "aid and a power to search and apprehend" the fugitives. "He refused to give any power to apprehend them, nor order any other, and said he could do nothing until he had spoken with one Mr. Gilbert and the rest of his magistrates." New Haven, the seat of government of the Colony, was twenty miles distant from Guilford. It was now Saturday afternoon, and for a New-England Governor to break the Sabbath by setting off on a journey, or by procuring horses for any other traveller, was impossible. An Indian was observed to have left Guilford while the parley was going on, and was supposed to have gone on an errand to New Haven.

Monday morning the messengers proceeded thither. "To our certain knowledge," they write, "one John Meigs was sent a-horseback before us, and by his speedy and unexpected going so early before day was to give them an information, and the rather because by the delays was used, it was break of day before we got to horse; so he got there before us. Upon our suspicion, we required the Deputy that the said John Meigs might be examined what his business was, that might occasion so early going; to which the Deputy answered, that he did not know any such thing, and refused to examine him." Leete was in no haste to make his own journey to the capital. It was for the messengers to judge whether they would use such despatch as to give an alarm there some time before any magistrate was present, to be invoked for aid. He arrived, they write, "within two hours, or thereabouts, after us and came to us to the Court chamber, where we again acquainted him with the information we had received, and that we had cause to believe they [the fugitives] were concealed in New Haven, and thereupon we required his assistance and aid for their apprehension; to which he answered, that he did not believe they were; whereupon we desired him to empower us, or order others for it; to which he gave us this answer, the he could not, or would not, make us magistrates... We set before him the danger of that delay and their inevitable escape, and how much the honor and service of his Majesty was despised and trampled on by him, and that we supposed by his unwillingness to assist in the apprehension he was willing they should escape. After which he left us, and went to several of the magistrates, and were together five or six hours in consultation, and upon breaking up of their council they told us they would not nor could not to anything until they had called a General Court of the freemen."

The messengers labored with great earnestness to shake this determination, but all in vain. For precedents they appealed to the promptness of the Governors of Massachusetts and Connecticut, "who, upon the recite of his Majesty's pleasure and order concerning the said persons, stood not upon such niceties and formalities." They represented "how much the honor and justice of his Majesty was concerned, and how ill his Sacred Majesty would resent such horrid and detestable concealments and abettings of such traitors and regicides as they were, and asked him whether he would honor and obey the King or no in this affair, and set before him the danger which by law is incurred by any one that conceals or abets traitors; to which the Deputy Leete answered, 'We honor his Majesty, but we have tender consciences'; to which we replied, that we believed that he knew where they were, and only pretended tenderness of conscience for a refusal.... We told them that for their respect to two traitors they would do themselves injury, and possibly ruin themselves and the whole Colony of New Haven."

"Finding them obstinate and pertinacious in their contempt of his Majesty," the messengers, probably misled by some false information, took the road to New Netherland, the next day, in further prosecution of their business. The Dutch Governor at that place promised them, that, if the Colonels appeared within his jurisdiction, he would give notice to Endicott, and take measures to prevent their escape by sea. Thereupon Kellond and Kirk returned by water to Boston, where they made oath before the magistrates to a report of their proceedings.

The fugitives had received timely notice of the chase. A week before Kellond and Kirk left Boston, they removed from Mr. Davenport's house to that of William Jones, son-in-law of Governor Eaton, and afterwards Deputy-Governor of Connecticut. On the day when the messengers were debating with Governor Leete at Guilford, Whalley and Goffe were conducted to a mill, at a short distance from New Haven, where they were hidden two days and nights. Thence they were led to a spot called Hatchet Harbor, about as much farther in a northwesterly direction, where they lay two nights more. Meantime, for fear of the effect of the large rewards which the messengers had offered for their capture, a more secure hiding-place had been provided for them in a hollow on the east side of West Rock, five miles from the town. In this retreat they remained four weeks, being supplied with food from a lonely farm-house in the neighborhood, to which they also sometimes withdrew in stormy weather. They caused the Deputy-Governor to be informed of their hiding-place; and on hearing that Mr. Davenport was in danger from a suspicion of harboring them, they left it, and for a week or two showed themselves at different times at New Haven and elsewhere. After two months more of concealment in their retreat on the side of West Bock, they betook themselves, just after the middle of August, to the house of one Tomkins, in or near Milford. There they remained in complete secrecy for two years, after which time they indulged themselves in more freedom, and even conducted the devotions of a few neighbors assembled in their chamber.

But the arrival at Boston of Commissioners from the King with extraordinary powers was now expected, and it was likely that they would be charged to institute a new search, which might endanger the fugitives, and would certainly be embarrassing to their protectors. Just at this time a feud in the churches of Hartford and Wethersfield had led to an emigration to a spot of fertile meadow forty miles farther up the river. Mr. Russell, hitherto minister of Wethersfield, accompanied the new settlers as their pastor. The General Court gave their town the name of Hadley. In this remotest northwestern frontier of New England a refuge was prepared for the fugitives. On hearing of the arrival of the Commissioners at Boston, they withdrew to their cave; but some Indians in hunting observed that it had been occupied, and its secrecy could no longer be counted on. They consequently directed their steps towards Hadley, travelling only by night, and there, in the month of October, 1664, were received into the house of Mr. Russell.

There—except for a remarkable momentary appearance of one of them, and except for the visits of a few confidential friends—they remained lost forever to the view of men. Presents were made to them by leading persons among the colonists, and they received remittances from friends in England. Governor Hutchinson, when he wrote his History, had in his hands the Diary of Goffe, begun at the time of their leaving London, and continued for six or seven years. They were for a time encouraged by a belief, founded on their interpretation of the Apocalypse, that the execution of their comrades was "the slaying of the witnesses," and that their own triumph was speedily to follow. Letters passed between Goffe and his wife, purporting to be between a son and mother, and signed respectively with the names of Walter and Frances Goldsmith. Four of these letters survive; tender, magnanimous, and devout, they are scarcely to be read without tears.

In the tenth year of his abode at Hadley Whalley had become extremely infirm in mind and body, and he probably did not outlive that year. Mr. Russell's house was standing till within a little more than half a century ago. At its demolition, the removal of a slab in the cellar discovered human remains of a large size. They are believed to have belonged to the stout frame which swept through Prince Rupert's lines at Naseby. Goffe survived his father-in-law nearly five years, at least; how much longer, is not known. Once he was seen abroad, after his retirement to Mr. Russell's house. The dreadful war, to which the Indian King Philip bequeathed his long execrated name, was raging with its worst terrors in the autumn of 1675. On the first day of September, the people of Hadley kept a fast, to implore the Divine protection in their distress. While they were engaged in their worship, a sentry's shot gave notice that the stealthy savages were upon them. Hutchinson, in his History, relates what follows, as he had received it from the family of Governor Leverett, who was one of the few visitors of Goffe in his retreat. "The people were in the utmost confusion. Suddenly a grave, elderly person appeared in the midst of them. In his mien and dress he differed from the rest of the people. He not only encouraged them to defend themselves, but put himself at their head, rallied, instructed, and led them on to encounter the enemy, who by this means were repulsed. As suddenly the deliverer of Hadley disappeared. The people were left in consternation, utterly unable to account for this strange phenomenon. It is not probable that they were ever able to explain it."

In the first years of the retirement of the Colonels at Hadley, they enjoyed the society of a former friend, who did not feel obliged to use the same strict precautions against discovery. John Dixwell, like themselves, was a colonel in the Parliamentary service, a member of the High Court of Justice, and a signer of the death-warrant of the King. Nothing is known of his proceedings after the restoration of the monarchy, till he came to Hadley, three or four months later than Whalley and Goffe. After a residence of some years in their neighborhood, he removed to New Haven, where, bearing the name of James Davids, and affecting no particular privacy, he lived to old age. The home-government never traced him to America; and though, among his acquaintance, it was understood that he had a secret to keep, there was no disposition to penetrate it. He married twice at New Haven, and by his second nuptials established a family, one branch of which survives. In testamentary documents, as well as in communications, while he lived, to his minister and others, he frankly made known his character and history. He died just too early to hear the tidings, which would have renewed his strength like the eagle's, of the expulsion of the House of Stuart. A fit monument directs the traveller to the place of his burial, in the square bounded on one side by the halls of Yale College.


You, who would with wanton art Counterfeit another's part, And with noisy utterance claim Right to an ignoble name,— Inharmonious!—why must you, To a better self untrue, Gifted with the charm of song, Do the generous gift such wrong?

Delicate and downy throat, Shaped for pure, melodious note,— Silvery wing of softest gray,— Bright eyes glancing every way,— Graceful outline,—motion free: Types of perfect harmony!

Ah! you much mistake your duty, Mating discord thus with beauty,— 'Mid these heavenly sunset gleams, Vexing the smooth air with screams,— Burdening the dainty breeze With insane discordancies.

I have heard you tell a tale Tender as the nightingale, Sweeter than the early thrush Pipes at day-dawn from the bush. Wake once more the liquid strain That you poured, like music-rain, When, last night, in the sweet weather, You and I were out together. Unto whom two notes are given, One of earth, and one of heaven, Were it not a shameful tale That the earth-note should prevail?

For the sake of those who love us, For the sake of God above us, Each and all should do their best To make music for the rest. So will I no more reprove, Though the chiding be in love: Uttering harsh rebuke to you, That were inharmonious, too.




People will talk. Ciascun lo dice is a tune that is played oftener than the national air of this country or any other.

"That's what they say. Means to marry her, if she is his cousin. Got money himself,—that's the story,—but wants to come and live in the old place, and get the Dudley property by-and-by."—"Mother's folks was wealthy."—"Twenty-three to twenty-five year old."—"He a'n't more'n twenty, or twenty-one at the outside."—"Looks as if he knew too much to be only twenty year old."—"Guess he's been through the mill,—don't look so green, anyhow,—hey? Did y' ever mind that cut over his left eyebrow?"

So they gossipped in Rockland. The young fellows could make nothing of Dick Venner. He was shy and proud with the few who made advances to him. The young ladies called him handsome and romantic, but he looked at them like a many-tailed pacha who was in the habit of ordering his wives by the dozen.

"What do you think of the young man over there at the Venners'?" said Miss Arabella Thornton to her father.

"Handsome," said the Judge, "but dangerous-looking. His face is indictable at common law. Do you know, my dear, I think there is a blank at the Sheriff's office, with a place for his name in it?"

The Judge paused and looked grave, as if he had just listened to the verdict of the jury and was going to pronounce sentence.

"Have you heard anything against him?" said the Judge's daughter.

"Nothing. But I don't like these mixed bloods and half-told stories. Besides, I have seen a good many desperate fellows at the bar, and I have a fancy they all have a look belonging to them. The worst one I ever sentenced looked a good deal like this fellow. A wicked mouth. All our other features are made for us; but a man makes his own mouth."

"Who was the person you sentenced?"

"He was a young fellow that undertook to garrote a man who had won his money at cards. The same slender shape, the same cunning, fierce look, smoothed over with a plausible air. Depend upon it, there is an expression in all the sort of people that live by their wits when they can, and by worse weapons when their wits fail them, that we old law-doctors know just as well as the medical counselors know the marks of disease in a man's face. Dr. Kittredge looks at a man and says he is going to die; I look at another man and say he is going to be hanged, if nothing happens. I don't say so of this one, but I don't like his looks. I wonder Dudley Venner takes to him so kindly."

"It's all for Elsie's sake," said Miss Thornton; "I feel quite sure of that. He never does anything that is not meant for her in some way. I suppose it amuses her to have her cousin about the house. She rides a good deal since he has been here. Have you seen them galloping about together? He looks like my idea of a Spanish bandit on that wild horse of his."

"Possibly he has been one,—or is one," said the Judge,—smiling as men smile whose lips have often been freighted with the life and death of their fellow-creatures. "I met them riding the other day. Perhaps Dudley is right, if it pleases her to have a companion. What will happen, though, if he makes love to her? Will Elsie be easily taken with such a fellow? You young folks are supposed to know more about these matters than we middle-aged people."

"Nobody can tell. Elsie is not like anybody else. The girls that have seen most of her think she hates men, all but 'Dudley,' as she calls her father. Some of them doubt whether she loves him. They doubt whether she can love anything human, except perhaps the old black woman that has taken care of her since she was a baby. The village people have the strangest stories about her: you know what they call her?"

She whispered three words in her father's ear. The Judge changed color as she spoke, sighed deeply, and was silent as if lost in thought for a moment.

"I remember her mother," he said, "so well! A sweeter creature never lived. Elsie has something of her in her look, but those are not the Dudley eyes. They were dark, but soft, in all I ever saw of the race. Her father's are dark too, but mild, and even tender, I should say. I don't know what there is about Elsie's,—but do you know, my dear, I find myself curiously influenced by them? I have had to face a good many sharp eyes and hard ones,—murderers' eyes and pirates',—men that had to be watched in the bar, where they stood on trial, for fear they should spring on the prosecuting officers like tigers,—but I never saw such eyes as Elsie's; and yet they have a kind of drawing virtue or power about them,—I don't know what else to call it: have you never observed this?"

His daughter smiled in her turn.

"Never observed it? Why, of course, nobody could be with Elsie Venner and not observe it. There are a good many other strange things about her: did you ever notice how she dresses?"

"Why, handsomely enough, I should think," the Judge answered. "I suppose she dresses as she likes, and sends to the city for what she wants. What do you mean in particular? We men notice effects in dress, but not much in detail."

"You never noticed the colors and patterns of her dresses? You never remarked anything curious about her ornaments? Well! I don't believe you men know, half the time, whether a lady wears a ninepenny collar or a thread-lace cape worth a thousand dollars. I don't believe you know a silk dress from a bombazine one. I don't believe you can tell whether a woman is in black or in colors, unless you happen to know she is a widow. Elsie Venner has a strange taste in dress, let me tell you. She sends for the oddest patterns of stuffs, and picks out the most curious things at the jeweller's, whenever she goes to town with her father. They say the old Doctor tells him to let her have her way about all such matters. Afraid of her mind, if she is contradicted, I suppose.—You've heard about her going to school at that place,—the 'Institoot,' as those people call it? They say she's bright enough in her way,—has studied at home, you know, with her father a good deal,—knows some modern languages and Latin, I believe: at any rate, she would have it so,—she must go to the 'Institoot.' They have a very good female teacher there, I hear; and the new master, that young Mr. Langdon, looks and talks like a well-educated young man. I wonder what they'll make of Elsie, between them!"

So they talked at the Judge's, in the calm, judicial-looking mansion-house, in the grave, still library, with the troops of wan-hued law-books staring blindly out of their titles at them as they talked, like the ghosts of dead attorneys fixed motionless and speechless, each with a thin, golden film over his unwinking eyes.

In the mean time, everything went on quietly enough after Cousin Richard's return. A man of sense,—that is, a man who knows perfectly well that a cool head is worth a dozen warm hearts in carrying the fortress of a woman's affections, (not yours, "Astarte," nor yours, "Viola,")—who knows that men are rejected by women every day because they, the men, love them, and are accepted every day because they do not, and therefore can study the arts of pleasing,—a man of sense, when he finds he has established his second parallel too soon, retires quietly to his first, and begins working on his covered ways again. [The whole art of love may be read in any Encyclopaedia under the title Fortification, where the terms just used are explained.] After the little adventure of the necklace, Dick retreated at once to his first parallel. Elsie loved riding,—and would go off with him on a gallop now and then. He was a master of all those strange Indian horseback-feats which shame the tricks of the circus-riders, and used to astonish and almost amuse her sometimes by disappearing from his saddle, like a phantom horseman, lying flat against the side of the bounding creature that bore him, as if he were a hunting leopard with his claws in the horse's flank and flattening himself out against his heaving ribs. Elsie knew a little Spanish too, which she had learned from the young person who had taught her dancing, and Dick enlarged her vocabulary with a few soft phrases, and would sing her a song sometimes, touching the air upon an ancient-looking guitar they had found with the ghostly things in the garret,—a quaint old instrument, marked E.M. on the back, and supposed to have belonged to a certain Elizabeth Mascarene, before mentioned in connection with a work of art,—a fair, dowerless lady, who smiled and sung and faded away, unwedded, a hundred years ago, as dowerless ladies, not a few, are smiling and singing and fading now,—God grant each of them His love,—and one human heart as its interpreter!

As for school, Elsie went or stayed away as she liked. Sometimes, when they thought she was at her desk in the great school-room, she would be on The Mountain,—alone always. Dick wanted to go with her, but she would never let him. Once, when she had followed the zigzag path a little way up, she looked back and caught a glimpse of him following her. She turned and passed him without a word, but giving him a look which seemed to make the scars on his wrist tingle, went to her room, where she locked herself up, and did not come out again till evening,—old Sophy having brought her food, and set it down, not speaking, but looking into her eyes inquiringly, like a dumb beast trying to feel out his master's will in his face. The evening was clear and the moon shining. As Dick sat at his chamber-window, looking at the mountain-side, he saw a gray-dressed figure flit between the trees and steal along the narrow path that led upward. Elsie's pillow was impressed that night, but she had not been missed by the household,—for Dick knew enough to keep his own counsel. The next morning she avoided him and went off early to school. It was the same morning that the young master found the flower between the leaves of his Virgil.

The girl got over her angry fit, and was pleasant enough with her cousin for a few days after this; but she shunned rather than sought him. She had taken a new interest in her books, and especially in certain poetical readings which the master conducted with the elder scholars. This gave Master Langdon a good chance to study her ways when her eye was on her book, to notice the inflections of her voice, to watch for any expression of her sentiments; for, to tell the truth, he had a kind of fear that the girl had taken a fancy to him, and, though she interested him, he did not wish to study her heart from the inside.

The more he saw her, the more the sadness of her beauty wrought upon him. She looked as if she might hate, but could not love. She hardly smiled at anything, spoke rarely, but seemed to feel that her natural power of expression lay all in her bright eyes, the force of which so many had felt, but none perhaps had tried to explain to themselves. A person accustomed to watch the faces of those who were ailing in body or mind, and to search in every line and tint for some underlying source of disorder, could hardly help analyzing the impression such a face produced upon him. The light of those beautiful eyes was like the lustre of ice; in all her features there was nothing of that human warmth which shows that sympathy has reached the soul beneath the mask of flesh it wears. The look was that of remoteness, of utter isolation. There was in its stony apathy, it seemed to him, the pathos which we find in the blind who show no film or speck over the organs of sight; for Nature had meant her to be lovely, and left out nothing but love. And yet the master could not help feeling that some instinct was working in this girl which was in some way leading her to seek his presence. She did not lift her glittering eyes upon him as at first. It seemed strange that she did not, for they were surely her natural weapons of conquest. Her color did not come and go like that of young girls under excitement. She had a clear brunette complexion, a little sun-touched, it may be,—for the master noticed once, when her necklace was slightly displaced, that a faint ring or band of a little lighter shade than the rest of the surface encircled her neck. What was the slight peculiarity of her enunciation, when she read? Not a lisp, certainly, but the least possible imperfection in articulating some of the lingual sounds,—just enough to be noticed at first, and quite forgotten after being a few times heard.

Not a word about the flower on either side. It was not uncommon for the schoolgirls to leave a rose or pink or wild flower on the teacher's desk. Finding it in the Virgil was nothing, after all; it was a little delicate flower, that looked as if it were made to press, and it was probably shut in by accident at the particular place where he found it. He took it into his head to examine it in a botanical point of view. He found it was not common,—that it grew only in certain localities,—and that one of these was among the rocks of the eastern spur of The Mountain.

It happened to come into his head how the Swiss youth climb the sides of the Alps to find the flower called the Edelweiss for the maidens whom they wish to please. It is a pretty fancy, that of scaling some dangerous height before the dawn, so as to gather the flower in its freshness, that the favored maiden may wear it to church on Sunday morning, a proof at once of her lover's devotion and his courage. Mr. Bernard determined to explore the region where this flower was said to grow, that he might see where the wild girl sought the blossoms of which Nature was so jealous.

It was on a warm, fair Saturday afternoon that he undertook his land-voyage of discovery. He had more curiosity, it may be, than he would have owned; for he had heard of the girl's wandering habits, and the guesses about her sylvan haunts, and was thinking what the chances were that he should meet her in some strange place, or come upon traces of her which would tell secrets she would not care to have known.

The woods are all alive to one who walks through them with his mind in an excited state, and his eyes and ears wide open. The trees are always talking, not merely whispering with their leaves, (for every tree talks to itself in that way, even when it stands alone in the middle of a pasture,) but grating their boughs against each other, as old horn-handed farmers press their dry, rustling palms together,—dropping a nut or a leaf or a twig, clicking to the tap of a woodpecker, or rustling as a squirrel flashes along a branch. It was now the season of singing-birds, and the woods were haunted with mysterious, tender music. The voices of the birds which love the deeper shades of the forest are sadder than those of the open fields: these are the nuns that have taken themselves away from the world and tell their griefs to the infinite listening Silences of the wilderness,—for the one deep inner silence that Nature breaks with her fitful superficial sounds becomes multiplied as the image of a star in ruffled waters. Strange! The woods at first convey the impression of profound repose, and yet, if you watch their ways with open ear, you find the life which is in them is restless and nervous as that of a woman: the little twigs are crossing and twining and separating like slender fingers that cannot be still; the stray leaf is to be flattened into its place like a truant curl; the limbs sway and twist, impatient of their constrained attitude; and the rounded masses of foliage swell upward and subside from time to time with long soft sighs, and, it may be, the falling of a few rain-drops which had lain hidden among the deeper shadows. I pray you, notice, in the sweet summer days which will soon see you among the mountains, this inward tranquillity that belongs to the heart of the woodland, with this nervousness, for I do not know what else to call it, of outer movement. One would say, that Nature, like untrained persons, could not sit still without nestling about or doing something with her limbs or features, and that high breeding was only to be looked for in trim gardens, where the soul of the trees is ill at ease perhaps, but their manners are unexceptionable, and a rustling branch or leaf falling out of season is an indecorum. The real forest is hardly still except in the Indian summer; then there is death in the house, and they are waiting for the sharp shrunken months to come with white raiment for the summer's burial.

There were many hemlocks in this neighborhood, the grandest and most solemn of all the forest-trees in the mountain regions. Up to a certain period of growth they are eminently beautiful, their boughs disposed in the most graceful pagoda-like series of close terraces, thick and dark with green crystalline leaflets. In spring the tender shoots come out of a paler green, finger-like, as if they were pointing to the violets at their feet. But when the trees have grown old, and their rough boles measure a yard through their diameter, they are no longer beautiful, but they have a sad solemnity all their own, too full of meaning to require the heart's comment to be framed in words. Below, all their earthward-looking branches are sapless and shattered, splintered by the weight of many winters' snows; above, they are still green and full of life, but their summits overtop all the deciduous trees around them, and in their companionship with heaven they are alone. On these the lightning loves to fall. One such Mr. Bernard saw,—or rather, what had been one such; for the bolt had torn the tree like an explosion from within, and the ground was strewed all around the broken stump with flakes of rough bark and strips and chips of shivered wood, into which the old tree had been rent by the bursting rocket from the thunder-cloud.

——The master had struck up The Mountain obliquely from the western side of the Dudley mansion-house. In this way he ascended until he reached a point many hundred feet above the level of the plain, and commanding all the country beneath and around. Almost at his feet he saw the mansion-house, the chimney standing out of the middle of the roof, or rather, like a black square hole in it,—the trees almost directly over their stems, the fences as lines, the whole nearly as an architect would draw a ground-plan of the house and the inclosures round it. It frightened him to see how the huge masses of rock and old forest-growths hung over the home below. As he descended a little and drew near the ledge of evil name, he was struck with the appearance of a long narrow fissure that ran parallel with it and above it for many rods, not seemingly of very old standing,—for there were many fibres of roots which had evidently been snapped asunder when the rent took place, and some of which were still succulent in both separated portions.

Mr. Bernard had made up his mind, when he set forth, not to come back before he had examined the dreaded ledge. He had half persuaded himself that it was scientific curiosity. He wished to examine the rocks, to see what flowers grew there, and perhaps to pick up an adventure in the zooelogical line; for he had on a pair of high, stout boots, and he carried a stick in his hand, which was forked at one extremity, so as to be very convenient to hold down a crotalus with, if he should happen to encounter one. He knew the aspect of the ledge, from a distance; for its bald and leprous-looking declivities stood out in their nakedness from the wooded sides of The Mountain, when this was viewed from certain points of the village. But the nearer aspect of the blasted region had something frightful in it. The cliffs were water-worn, as if they had been gnawed for thousands of years by hungry waves. In some places they overhung their base so as to look like leaning towers that might topple over at any minute. In other parts they were scooped into niches or caverns. Here and there they were cracked in deep fissures, some of them of such width that one might enter them, if he cared to run the risk of meeting the regular tenants, who might treat him as an intruder.

Parts of the ledge were cloven perpendicularly, with nothing but cracks or slightly projecting edges in which or on which a foot could find hold. High up on one of these precipitous walls of rock he saw some tufts of flowers, and knew them at once for the same that he had found between the leaves of his Virgil. Not there, surely! No woman would have clung against that steep, rough parapet to gather an idle blossom. And yet the master looked round everywhere, and even up the side of that rock, to see if there were no signs of a woman's footstep. He peered about curiously, as if his eye might fall on some of those fragments of dress which women leave after them, whenever they run against each other or against anything else,—in crowded ballrooms, in the brushwood after picnics, on the fences after rambles, scattered round over every place that has witnessed an act of violence, where rude hands have been laid upon them. Nothing. Stop, though, one moment. That stone is smooth and polished, as if it had been somewhat worn by the pressure of human feet. There is one twig broken among the stems of that clump of shrubs. He put his foot upon the stone and took hold of the close-clinging shrub. In this way he turned a sharp angle of the rock and found himself on a natural platform, which lay in front of one of the wider fissures,—whether the mouth of a cavern or not he could not yet tell. A flat stone made an easy seat, upon which he sat down, as he was very glad to do, and looked mechanically about him. A small fragment splintered from the rock was at his feet. He took it and threw it down the declivity a little below where he sat. He looked about for a stem or a straw of some kind to bite upon,—a country-instinct,—relic, no doubt, of the old vegetable-feeding habits of Eden. Is that a stem or a straw? He picked it up. It was a hairpin.

To say that Mr. Langdon had a strange sort of thrill shoot through him at the sight of this harmless little implement would be a statement not at variance with the fact of the case. That smooth stone had been often trodden, and by what foot he could not doubt. He rose up from his seat to look round for other signs of a woman's visits. What if there is a cavern here, where she has a retreat, fitted up, perhaps, as anchorites fitted their cells,—nay, it may be, carpeted and mirrored, and with one of those tiger-skins for a couch, such as they say the girl loves to lie on? Let us look, at any rate.

Mr. Bernard walked to the mouth of the cavern or fissure and looked into it. His look was met by the glitter of two diamond eyes, small, sharp, cold, shining out of the darkness, but gliding with a smooth, steady motion towards the light, and himself. He stood fixed, struck dumb, staring back into them with dilating pupils and sudden numbness of fear that cannot move, as in the terror of dreams. The two sparks of light came forward until they grew to circles of flame, and all at once lifted themselves up as if in angry surprise. Then for the first time thrilled in Mr. Bernard's ears the dreadful sound that nothing which breathes, be it man or brute, can hear unmoved,—the long, loud, stinging whirr, as the huge, thick-bodied reptile shook his many-jointed rattle and flung his jaw back for the fatal stroke. His eyes were drawn as with magnets toward the circles of flame. His ears rung as in the overture to the swooning dream of chloroform. Nature was before man with her anesthetics: the cat's first shake stupefies the mouse; the lion's first shake deadens the man's fear and feeling; and the crotalus paralyzes before he strikes. He waited as in a trance,—waited as one that longs to have the blow fall, and all over, as the man who shall be in two pieces in a second waits for the axe to drop. But while he looked straight into the flaming eyes, it seemed to him that they were losing their light and terror, that they were growing tame and dull; the open jaws closed, the neck fell backward and downward on the coil from which it rose, the charm was dissolving, the numbness was passing away, he could move once more. He heard a light breathing close to his ear, and, half turning, saw the face of Elsie Venner, looking motionless into the reptile's eyes, which had shrunk and faded under the stronger enchantment of her own.

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