A Council of Whoever Is in Town

The letter from Cambridge had come down the hill at ten o’clock on the Saturday night, in the hand of a servant from Government House with a lantern, and Clay had read it in his shirt-sleeves at Mrs Arguelles’s dining table by one candle, among the dust-sheets, twice; and then he had gone to bed and slept, which he could always do, and had read it again at six on the Sunday morning, at the window, with his coffee, and found that it said exactly what it had said at ten.

It was a very good letter. He knew good letters; he had written a great many, and received more, and could tell within a paragraph whether a man was trying to persuade him of something or only to tell him something, which were different arts and seldom found in the same hand. This was the second kind. It told him, in two sides, plainly, what the law was, and stopped, and was signed. He could have framed it.

And the note that came with it, in the daughter-in-law’s hand and the old man’s left-handed signature, he read once, and folded, and put in his pocket.

It answers the question I put to you on the 19th of July. I do not think it answers the one you put to me.

That was perfectly true, and very like Adams, and Clay was rather pleased with it. The question Adams had put to him at dawn on the nineteenth was whether the Crown had passed, and how, and to whom; and Story had answered it. The question Clay had put to Adams was a different one, and he did not think he had put it in words at all, though Adams had evidently heard it. It was not what the law was. It was how the Union was to be brought to act upon the law without anybody’s having to stand up and decide it.

He finished his coffee, and called Charles, and put on his black coat, and went out into the heat to find the Attorney-General before he could get away to Annapolis.

---

The city in August was a place that nobody who had only seen it in the session would have known.

It was not merely empty. It was abandoned, in the way that a house is abandoned when the family has gone to the country and left one old servant in the kitchen: the shutters closed along the whole length of the Avenue, the boarding houses dark, the hotels with their best rooms shrouded and their dining rooms let to whoever would pay for a cold dinner at four, and the long white Axis lying in the glare from the Palace to Charter Hill with nobody on it at noon from one end to the other. The fevers came up off the low ground by the river in August, and everybody who could leave had left; and those who could not shut their windows at dusk, and burned brown paper in the rooms, and dosed themselves with bark, and waited for September. The Commons chamber was locked. The Lords’ was locked. Parliament House stood on its hill above the empty city like a temple from which the god has gone away for the summer, and the grass came up between the stones of the east steps where the Marine band had played in July.

Clay liked it. He would not have said so to anybody, and he wanted to be at Ashland so badly that some nights he could smell the grass; but he liked the city empty, a little, as a man who has spent his life in crowded rooms likes, sometimes, to walk through one of them at night when it is empty and look at the chairs. And it suited the business. A thing that had to be done quietly was better done in a town where there was nobody to see it done.

The Attorney-General was in his shirt-sleeves in a room at the top of his house on the Avenue, with every window open and a wet towel round his neck, packing. He was a dry, slow, careful Marylander of fifty, who had been at the bar for thirty years and on the Treasury bench for four, and who had never in his life been heard to give an opinion that he had not first written down, and read over, and slept on; and he looked at the Prime Minister in his doorway, at half past eight on a Sunday morning in August, with the expression of a man who sees the summer going out of the window.

“I am going to Annapolis,” he said. “On the eleven o’clock train. My wife is there. My children are there. The sea breeze is there.”

“So it is,” said Clay, and sat down on the end of his bed. “And you shall go to it, my dear sir, on the eleven o’clock train on the fifteenth. Not before. I want an opinion from you.”

---

He did not show the Attorney-General Story’s letter.

He had thought about that at the window over his coffee, and decided it, as he decided most things, in the time it took to drink a cup: the letter was private, and Story had written it privately, and trusted Adams not to use it as a judgment; and if the Attorney-General read it, the Attorney-General would write an opinion agreeing with the Chief Justice of the Union, as any sane lawyer would, and then it would be the Chief Justice’s opinion with the Attorney-General’s name on it, and anybody who wanted to say afterwards that the Court had decided the succession of the Crown in a private letter would be able to say so, and to prove it. Clay did not want anybody to be able to prove anything. So he told the Attorney-General that he had the opinion of a person of very great learning, privately, whom he was not at liberty to name; and he told him what it was, in his own words, in about four sentences, sitting on the end of the bed; and then he asked him a question.

That was the whole of it, as far as Clay was concerned. The question.

He had worked at the question all through the previous evening, at Mrs Arguelles’s table, as he would have worked at the wording of a resolution that had to pass a hostile House; and it had come out, in the end, very short. He did not ask the Attorney-General whether the Crown of the Union had passed to the King of Hanover. He did not ask whether it had passed at the instant, or needed an act, or could be determined by Parliament. If he had asked any of those things, the Attorney-General would have had to answer them, and the answer would have been a decision, with a name on it; and in December some member who did not like the answer would stand up in the House and move that the House disagreed with it, and then the House would have decided the succession of the Crown after all, by a majority of eleven on a Thursday afternoon, which was the one thing Clay had kept the House up all night in July to prevent.

He asked instead: In what form, and by whom, ought the accession of His Majesty King Ernest to be recorded and made known in the United Kingdom of America?

The Attorney-General read it twice, on the sheet that Clay gave him. Then he looked up, slowly, over the wet towel, and Clay saw him see it: that the question took the accession for granted, and asked only about the paperwork; and that any lawyer who answered it would be answering the paperwork, and would never have to say, in so many words, in any opinion that anybody could ever produce, that the King of Hanover was King of America. It would be in the question. It would not be in the answer.

“That is very neat, Mr Clay,” the Attorney-General said.

“I am obliged to you.”

“It is not a compliment.” The Attorney-General took the towel off his neck and wiped his face with it. “You are asking me to assume the only thing that matters.”

“I am asking you to assume what every sane lawyer in the Union assumes,” said Clay, “and what the Union has assumed three times since 1820 without anybody’s thinking it worth an opinion. I don’t ask you to write down that you assume it. I only ask you not to write down that you don’t.” He got up. “I’ll want it by Thursday. Two copies. And the Solicitor-General’s name beside yours, if you can get it; he’s at New York, I believe, and the mails are good.”

The Attorney-General looked at his half-packed portmanteau, and at the window, and at the Prime Minister; and sighed, and began to take his shirts out of it again.

---

The opinion came on the Thursday, as Clay had asked, in the Attorney-General’s small cramped legal hand, four pages long, with the Solicitor-General’s name beside his own, sent down by the night mail from New York and pasted in.

It was a good opinion. It was exactly as good as Clay had known it would be, and it said, at more length and with more Latin, very nearly what Story had said, without ever once saying that it was saying it. That by the eighth clause of the second Article of the Charter of Union the succession to the Crown in America follows the succession in Great Britain; and that it appears to us that there is no difference whatever between the two successions which it could be necessary for the Parliament of the Union to determine. (The Attorney-General had put that in after all, Clay noticed, in a sentence of his own, and Clay let it stand, because it was not a decision; it was an appearance.) That no act of any British authority can have effect in the Union, and that the proclamation made at St James’s on the eleventh of June last has none here and was not intended to have any. That the accession of His Majesty in the Union is properly recorded and made known by a proclamation of the Governor-General in His Majesty’s Privy Council for the United Kingdom of America, upon the advice of His Majesty’s American ministers; which proclamation, in our opinion, should declare the accession and not purport to effect it. That the commissions of the Governor-General and of all the officers of the Crown in the Union continue without renewal; and that the oaths of allegiance taken by them to Her late Majesty, or to her predecessors, and to their heirs and successors, require no repetition.

Clay read it at Mrs Arguelles’s table, and then took it up the Rise to Adams, and stood in the study while the old man had it read to him by his daughter-in-law, at the window, with his good hand on the sill.

“It is Story’s letter,” Adams said, when she had finished, “in a cocked hat.”

“It is the opinion of His Majesty’s law officers, sir,” said Clay, “on a question put to them by His Majesty’s ministers, in the ordinary course of business. Nobody has seen Story’s letter but you and I and Mrs Adams. Nobody need.”

The old man turned round and looked at him for a long moment, with the light behind him.

“You are a very clever man, Mr Clay,” he said at last. “I have always said so. I have not always said it kindly.” And then, with something that was very nearly a smile: “Very well. Draw your proclamation.”

---

The proclamation drew itself; or that was how Clay preferred to think of it afterwards, and how, he was fairly sure, everybody else who had touched it preferred to think of it too.

He did not draw it. He sent for the Clerk of the Privy Council, who was a little old man called by everybody in the city the Clerk, as if there had never been another, and who had been clerk to the Council since Marshall’s time and knew where every paper of the Crown in America had been put since 1785; and he asked him, very civilly, to prepare a form. He did not tell him what form. The Clerk went away and came back the next morning with three sheets in a fair hand, and explained that he had taken as his model the proclamation of the eleventh of June at St James’s, as printed in the London Gazette, which was the only form of the kind that he could find, since the Union had never proclaimed a sovereign in its life; and that he had made such alterations as seemed to him to be required.

He had made a great many. He had made them in red ink, in the margins of a copy of the Gazette, with his reasons in a small hand beside each one, as a clerk will who expects to be asked; and Clay sat at his table at Mrs Arguelles’s with the copy and the fair sheets side by side and read them, and found that the Clerk had done, without being told, nearly everything that Clay would have told him to do, and one or two things that Clay would not have thought of.

Where London had the Imperial Crown of the United Kingdom of Great Britain and Ireland, the Clerk had put the Crown of the United Kingdom of America, and in the margin: The Crown in this Union is not described as Imperial in any instrument known to me. Where London had the Lords Spiritual and Temporal, and the Privy Council, and numbers of other principal gentlemen of quality, with the Lord Mayor, Aldermen and citizens of London, the Clerk had put We, the Governor-General, and the Lords and others of His Majesty’s Privy Council for the United Kingdom of America, and in the margin: The Lord Mayor of London is not a person known to the law of the Union. Where London had is solely and rightfully come, the Clerk had added four words, according to the Charter, and in the margin: Art. II.8. The Crown does not come here by the law of England, and should not be said to. And where London had do now hereby, with one voice and consent of tongue and heart, publish and proclaim, the Clerk had struck out proclaim, and put make known, and in the margin, in a smaller hand than all the rest, as if he were not quite sure he was allowed: Query. Whether an instrument of this Council can proclaim what it cannot effect. Opinion of the Law Officers, 6 Aug., para. 4.

And at the King’s style, the Clerk had stopped, and copied London’s exactly, Ernest the First, by the Grace of God, King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, and written nothing in the margin at all, and then, below it, in pencil, faintly, as if he had meant to rub it out: And of America?

Clay looked at that for a long time.

He did not alter it. He was very careful not to alter anything; it was the whole art of the thing, as he had come to understand it, that the draft should go round, and that everybody should touch it, and that nobody should change it so much that he could afterwards be said to have made it. He sent it up the Rise that afternoon, the copy and the fair sheets together, with a note to the Governor-General: The Clerk’s form, sir, for your observations. I have made none. H. C.

---

Adams made three.

They came back on the Sunday in Mrs Adams’s hand, as notes on a separate sheet, with the old man’s initials at the foot in letters an inch high. The first agreed to make known. The second agreed to according to the Charter. And the third, which was the longest, observed that the style in the draft, being London’s, named first a Crown with which no instrument of the Union could have any concern, and named the Crown of the Union not at all; that an American instrument which named the King of Great Britain first and the King of America nowhere would describe a foreign sovereignty in a domestic paper, which was the precise confusion the second Article had been written to prevent; and that the Governor-General would be obliged if the Clerk would consider whether the style in an instrument of the Union ought not to name the Union’s own Crown, and fold the others into whatever general words the Clerk thought fit.

That was all. The Governor-General did not say what words. He did not say he had decided anything. He asked the Clerk to consider.

The Clerk considered. He considered for a day and a half, and came back with a fresh fair sheet, and the style on it read: Ernest the First, by the Grace of God, King of the United Kingdom of America, and of His other Realms and Territories; and in the margin, in red: Gt. Britain, Ireland and Hanover comprehended in the general words. Cf. the Governor-General’s note of 9 Aug.

So the King of Great Britain became one of the King of America’s other realms, in an American paper, on a hot Tuesday afternoon in August, at a table in a clerk’s office at the back of Parliament House, by a little old man in red ink with a footnote; and the Governor-General had not decided it, because he had only asked the Clerk to consider; and the Clerk had not decided it, because he had only done what the Governor-General asked; and the Prime Minister had not decided it, because he had made no observations at all. Clay looked at it for a long time, that evening, at Mrs Arguelles’s, by the one candle. He thought that it would be the first thing anybody in London noticed, if anybody in London ever read it, and that it was the right thing, and that if he had been asked to decide it he would have hesitated for a week. Nobody had asked him. He put it with the opinion, in the same folder, and tied the tape.

---

On the Monday, the tenth, the trial came.

The Great Western had brought it into New York on the Saturday, with the London papers to the twenty-fourth of July, and it came down by the mail on the Sunday and was in every newspaper in the capital that was still printing on the Monday morning, and in the New York papers that came down with it, at great length: the verdict, and the boy acquitted as mad and shut up during the King’s pleasure; and the doctors, and the mother; and the papers found in his box, all of them, read out in open court in London and printed in London the next morning, and reprinted now in New York, with the spelling corrected. The rules of a secret society. A list of its officers, under false names. And three letters, the last of them summoning the boy to a meeting on account of communications of an important nature from Hanover.

Clay read it at breakfast, alone, with Charles behind his chair and the flies on the butter. He read it twice. Then he put the paper down and sat for some time looking at the wall.

He did not believe it. He wished to be quite clear with himself about that, at the outset: he did not believe that the King of Hanover had sent communications of any nature whatever to a pot-boy in an Oxford Street public-house, and he thought that anybody who did believe it had not read the rest of the letters, which were about little boys knocking at doors. He also knew that it did not matter in the least what he believed. It mattered what the members believed, in December, when they came back; and what the newspapers believed in the meantime, which would be whatever sold; and what every man in the Union believed who had heard of the Duke of Cumberland and had a newspaper and a grievance. Communications from Hanover. It was in print, on both sides of the sea. It would never be out of print again.

He went up the Rise at noon and found that Adams had read it too, and had nothing to say about it, and said so at some length. Clay listened, and agreed, and then said what he had come to say, which was that the Council should be held on Friday, and not later; that the proclamation should be read on Saturday morning, and not later; and that if anybody in the Union wished to stand up after Saturday and argue that the two successions differed, and the Parliament of the Union must determine which King it would have, by reason of a letter in a pot-boy’s box, he should find, when he stood up, that the Union had already made known its King, four days before, in its own form, under its own law, by the advice of its own ministers; and that he was proposing to unmake him.

“You are hurrying it,” said Adams.

“I am, sir.”

“You told me at this window, on the nineteenth of July, that you had never seen any harm come of waiting a month in the summer.”

“So I did,” said Clay. “And we have waited a month, and it has done no harm, and now it is time to stop. Waiting is a very fine thing, sir, until the moment somebody else begins to use the time. That moment came on Saturday with the Great Western.” He picked up his hat. “Friday, at eleven, at Parliament House. I’ll find you a Council.”

---

He found them in four days, in the empty city in the fever season, by letter and by messenger and by calling at doors; and it was, he thought afterwards, the hardest whip he had ever run, and the smallest.

A Privy Council of the United Kingdom of America was anybody who had ever been sworn of it and was still alive; and in the session there were fifty of them in the capital, and in August, on the day Clay began to count, there were eleven. He had the Chancellor of the Exchequer back from the Springs by the Wednesday, grumbling, and the Attorney-General, who had not been allowed to go; and the Archbishop, who was the Primate of the Church of America and lived beside the Cathedral and never went anywhere in the summer, because he said the Church could not take a holiday from death. He had two old peers from the Tidewater who lived in the District the year round and were glad of something to do. He had Judge Cranch, the Governor-General’s cousin, from the District’s court, seventy-one and cheerful, who had been sworn of the Council by Marshall and had attended it twice since; and two judges of the Supreme Court who had stayed in the city through the vacation, and who, when Clay called on them, asked him with great courtesy whether the Chief Justice had been consulted, and were told with equal courtesy that the Chief Justice was at Cambridge, which was true. He had an old Chancellor of the Exchequer from Marshall’s time, who was dying, and came in a chair. And he had a member of the Commons from Maryland, sworn of the Council in some forgotten ministry, who had come into town to see his dentist and was caught by Clay on the steps of the dentist’s house with his face tied up in a handkerchief.

That was eleven, with Clay. With the Governor-General, twelve. Clay counted them twice, on the Thursday night, at Mrs Arguelles’s table, by the candle, with Charles asleep in the chair by the door; and he thought that the twelve of them were the whole of the Crown in America, for the purposes of the morning, and that they would sign a paper that would be read in every Province, and printed in every newspaper, and cited in every book of constitutional law that anybody would write about the Union for a hundred years; and that two of them were past seventy, and one was dying, and one had the toothache; and that it would be quite enough.

---

They met at eleven on the Friday, in the Privy Council Chamber at Parliament House, which was a long, plain, panelled room on the north side of the building, with a long table and tall windows, and had not had its shutters opened since July.

Somebody had opened them. The light came in white across the table, and the dust stood in it; and the twelve of them sat round the table in their black, in the heat, with the doors shut and the Clerk at the foot with his papers, and the Governor-General at the head, in the chair with the arms, upright, in his plain black coat, with his right arm held against his side and his left hand flat on the table in front of him.

Adams did not make a speech. Clay had wondered whether he would, and had half feared it; the old man had been making speeches for fifty years and was very good at them, and this was, God knew, an occasion for one. He did not. He said, in his high cracked voice, that His Majesty’s Privy Council had been summoned to hear a form of proclamation, prepared upon the advice of His Majesty’s ministers and in accordance with the opinion of His Majesty’s law officers, of which the Council had been sent copies; and that the Clerk would read it.

The Clerk read it.

Whereas it hath pleased Almighty God to call to His mercy our late Sovereign Lady Queen Victoria, of blessed and glorious memory, upon the tenth day of June last, by whose decease the Crown of the United Kingdom of America is solely and rightfully come, according to the Charter, to the High and Mighty Prince Ernest Augustus, Duke of Cumberland and Teviotdale, King of Hanover: We, therefore, the Governor-General, and the Lords and others of His Majesty’s Privy Council for the United Kingdom of America, do now hereby, with one voice and consent of tongue and heart, publish and make known, that the High and Mighty Prince Ernest Augustus is now, by the death of our late Sovereign of happy memory, become our only lawful and rightful Liege Lord, Ernest the First, by the Grace of God, King of the United Kingdom of America, and of His other Realms and Territories; to whom we do acknowledge all faith and constant obedience, with all hearty and humble affection; beseeching God, by whom Kings and Queens do reign, to bless the Royal Prince Ernest the First with long and happy years to reign over us.

God save the King.

He read it well, in a dry flat voice without any emphasis at all, the voice of a man reading a lease; and when he came to upon the tenth day of June last he did not pause, and when he came to make known he did not pause, and when he came to King of the United Kingdom of America, and of His other Realms and Territories, he read it exactly as he had read the rest, and only Clay, who was watching him, saw his hand tighten for a moment on the edge of the paper.

Then he stopped, and there was a silence.

Clay had wondered about the silence too. He had wondered whether somebody would ask a question: one of the judges, perhaps, about the Chief Justice; or the Archbishop, about the service; or old Cranch, who liked to know the reason for everything and generally asked. If anybody asked a question, somebody would have to answer it, and then there would be a discussion, and then a decision; and Clay had sat up half the night with the opinion in front of him, preparing to answer any question that could be asked, in such a way that the answer would not decide anything. Nobody asked. The twelve of them sat round the long table in the white light and the dust, in the heat, and looked at the paper, and at one another, and at the Governor-General; and nobody said a word.

“Is it the pleasure of the Council that it be signed?” said Adams.

Nobody spoke. That, Clay understood, sitting very still in his place at the old man’s right hand, was the answer. Nobody had to say yes. Nobody had to move it, or second it, or put it to a vote; there was no vote in a Privy Council, and never had been, and the forms did not provide for one. There was only the silence, and the paper; and after the silence had gone on for as long as it needed to, the Clerk got up from the foot of the table and carried the paper round to the head of it, and laid it in front of the Governor-General, and dipped the pen, and gave it to him.

Adams signed first, with his left hand, slowly, in letters an inch high, John Quincy Adams, filling half the width of the sheet. Then the Clerk carried it round the table, one by one, in the order of the precedence that he alone in the Union could have told without looking: the Archbishop, and the Chancellor of the Exchequer, and Clay, and the two old peers, and the old Chancellor, who could barely hold the pen; and the two judges, and Cranch, who signed with a flourish and then asked his neighbour in a loud whisper what the Clerk had meant by make known; and the Attorney-General, and the member from Maryland, with his handkerchief round his face. It took a quarter of an hour. Nobody spoke the whole time.

When the last of them had signed, the Clerk sanded it, and blotted it, and laid it in its folder, and said that it would be read at Columbia Palace at ten in the morning, and printed in the Gazette, and sent by the evening mail to the Lieutenant-Governors of the Provinces, to be read in their capitals; and the Governor-General thanked the Council for its attendance, and rose; and they rose with him, and it was over.

---

Clay went out on to the east steps afterwards, alone, into the white heat of the afternoon, and stood at the top of them, where he had stood on the twenty-first of July when the House rose, and looked down the long Axis to the Palace at the far end of it, where the workmen were already putting up a platform in front of the portico for the morning.

He had done it. Nobody would ever know that he had done it, because he had not done anything. He had asked a question that assumed its answer, and passed a draft from hand to hand until it had been altered by everybody and decided by nobody, and gathered twelve men round a table on a hot day and let a silence do what a vote could not have done; and at ten in the morning the Clerk would read the result from the steps of the Palace, and it would be the law, or the record of the law, for as long as there was a Union, and nobody would be able to say who had made it so. Not the Court: the Court had not been asked. Not the Parliament: the Parliament had gone home. Not the Governor-General: he had only presided. Not the ministry: it had only advised. Not the King: the King, so far as Clay knew, was in London, reading his newspapers, and had not been asked anything at all.

He thought that it was the best piece of work of his life, and the most American, and very possibly the most dangerous; and he did not know which of the three he was proudest of, and suspected it was the third. He thought, too, that old Adams knew exactly what had been done, and how, and by whom, and would write it down, every word, in that diary of his, in his daughter-in-law’s hand; and that one day, when they were all dead, somebody would read it, and know.

He found that he did not mind. He rather hoped they would.

Then he put on his hat, and went down the steps, and walked back along the empty Axis in the heat towards Mrs Arguelles’s, to write to Lucretia that it was done, and that he would be home, God willing, before the frost.