Andrew took the floor to plead that while in fact there was no stipulation in his son's commission specifically forbidding him to dispose of the estate, no reasonable man could question that such was the spirit of the thing — why would he apprentice the young man to Peter Paggen to learn the plantation trade, if he meant to dispose of his holdings in Maryland? But, he added, if anyone were carping enough to challenge his intent, he offered in evidence a transcript of his will and testament, prepared in 1693, wherein he bequeathed Cooke's Point to his children, share and share alike. Did that suggest to the Court that he meant for his son to dispose of the property? Andrew concluded with high indignation and a red face. When he was finished, Roxanne nodded her belief in the justice of his arguments and lent him her linen handkerchief to mop his brow.
"If't please Your Excellency," Sowter declared in his turn, "my client freely grants Andrew Cooke's intention; we have no doubt whate'er that the young man was not instructed to dispose of Cooke's Point. But good St. Abdon, sir, the question hath to do with authority, not with instruction: I submit that if young Mister Cooke's commission lawfully empowered him to dispose of the property, the question of paternal sanction is immaterial."
The Governor rubbed his nose and sighed. "The Court agrees."
Sowter then obtained further concession from the Court that if in the management of the estate Ebenezer had found it expedient to lease, sell, or grant away some small portion of it, his action would be fully authorized by the phrase "all matters pertinent thereto" — since, after all, the very sot-weed for the sale of which the plantation existed was part and parcel of the estate. And having won this point, he declared that what applied to a part applied to the whole; to infer some arbitrary limitation from the language of the commission would be patently absurd.
"If Mister Eben had the right to sell one leaf o' sot-weed," Sowter concluded, "he had the right to sell the whole estate."
By way of rebuttal, Andrew maintained that to interpret so broadly the phrase "all matters pertinent thereto" was in effect to contradict it, for if the attorney disposed of the whole estate, he by that gesture disposed of his power of attorney as well.
"Which in sooth he did!" laughed Sowter. "We ne'er disputed that!"
Nicholson consulted Burlingame and Sir Thomas. "I greatly fear," he then declared, "the Court must find for Mister Sowter on this first question. 'Tis common practice for an overseer with power of attorney to deed away portions of an estate to indentured servants, for example, in fulfillment of their bonds — 'twas just such a matter, as I recall, that Mister Spurdance was litigating with Mister Smith in the Cambridge Court. And albeit 'tis the custom of attorneys to consult the owners ere they make any large transaction, in the absence of any stipulation to the contrary the Court must rule that Eben Cooke was lawfully empowered to dispose o' the whole estate as he saw fit."
This was a hard blow for Andrew; Ebenezer was touched to observe more distress than anger in the look his father gave him.
"As to the second question," Nicholson proceeded grimly, "let me merely enquire whether there is any difference of opinion. 'Tis thy contention, is't not, Mister Cooke, that the boy granted away his legacy unwittingly to Mister Smith?"
"Aye," said Andrew. "Eben himself will swear to't, as will — " He hesitated, loath to pronounce Burlingame's name.
"As will the clerk o' this Court and this unfortunate young lady here, whom my boy was coerced by Mister Smith into marrying. Both were eyewitnesses to the grant. Moreover, Your Excellency may consult the records of the Circuit Court, session of September last — "
"I have already," the Governor said. "Mister Sowter, is't thy intent to dispute this question of fact, or do ye allow that the grantor was unaware o' the nature of his grant?"
"We have no mind to dispute that fact," Sowter replied. "Howbeit — "
"Nay, now, spare me thy howbeits for the nonce, sir. To proceed, then: Ebenezer Cooke was fully within his rights as Andrew Cooke's attorney to grant away Cooke's Point to William Smith, but 'tis agreed by all parties that he did so unaware that it was his own estate he granted. I now ask Ebenezer Cooke to describe in full the circumstances o' the grant, and then we'll have an end to the tawdry business."
The poet released Joan's hand long enough to do as he was bid: he reviewed as clearly as he could recall them the details of his journey to Cambridge with Henry Burlingame; their dispute concerning the relationship of innocence to justice; his indignation at the conduct of Judge Hammaker's court; his intervention in the case of Smith v. Spurdance and the several stipulations of his verdict thereon.
" 'Twas an outrage against Justice I sought innocently to rectify," he concluded. "Howbeit, when my innocence was stripped from me I saw I had not rectified but perpetrated injustice: not only did I grant what was not mine to grant — I mean morally — but in so doing I ruined a good and faithful man, Ben Spurdance; and indirectly, by giving this house to William Smith to turn into a den of viciousness, I ruined many another man as well, for which God forgive me."
"I see," Nicholson smiled drily. "And may the Court infer that your estimation of innocence hath been revised somewhat in consequence?"
Though he knew there was nothing malicious in the question, Ebenezer could not return the smile. "The Court may," he answered quietly, and resumed his seat. Seldom had he felt more dispirited about himself than now, when, with many of his perils behind him, he had leisure to contemplate the destruction wrought by his innocence. He scarcely took notice of the fact that it was Joan who took his hand this time; he stole a guilty glance at his sister, whose rueful eyes said plainly that the gesture had not escaped her.
Nicholson next requested a preliminary statement from both Andrew Cooke and Richard Sowter on the question of the validity of the grant.
"My contentions are three, sir," Andrew declared. "I hold in the first place that Judge Hammaker had no authority to delegate his office to my son, who hath no reading in the law, and thus that the sentence imposed on Spurdance was unlawful; second, that e'en if the sentence was lawful, the grant was not, being made unknowingly; and third, that e'en should an innocent grant be ruled binding, the conditions of my son's were not fulfilled. That is to say, Smith was ordered to find a husband for the girl Susan Warren, supposedly his daughter; but I hold, sir, that her marriage to my son is null and void, on the double grounds that he was coerced into wedding her and that her name is not Susan Warren but Joan Toast. The stipulations being therefore unsatisfied, the grant must be revoked."
Impressed as he was by the persuasiveness of his father's case, Ebenezer was greatly perturbed by this last contention. "A word, Your Excellency!" he pleaded.
"Not now," said Nicholson. "The floor is Mister Sowter's."
Sowter then declared his intention to show first, by legal precedent, that it was within Judge Hammaker's rights, under special circumstances, to delegate the authority of the Bench in effect, since in fact he never relinquished it at alclass="underline" what he had done, in other words, was grant Ebenezer the privilege of pronouncing a sentence which he then ratified and so made lawful, but which he could as easily have overriden; it was in truth no more than a consultation that Hammaker availed himself of, as a judge will often consult an expert and disinterested third party before ruling on a difficult civil suit (furthermore, he added in an aside to Andrew, it must be allowed that Ebenezer was a disinterested party; otherwise the grant was made knowingly and could scarcely be challenged). In the second place, he meant to demonstrate both by reason and by precedent what no man familiar with torts would seriously question: that a lawful contract lawfully signed is binding, it being the responsibility of the signatories to apprise themselves of its terms. Moreover, it would be a mockery of justice to hold that a breach of contract committed by Ben Spurdance was more reprehensible than the same breach committed by Messrs. Cooke and son; if in the Circuit Court's opinion William Smith was due the whole of Malden (less one and a half acres) in redress of his grievances, then surely it was no less his due for the fact that 'Squire Cooke and not poor Spurdance happened to own it — Spurdance too, the Court was to remember, had power of attorney, and was thus acting in Andrew's behalf when he deprived the cooper of his just reward. As for that feeble casuistry regarding the marriage —