From Darwinian to Biblical Lawyering

Legal Studies Forum
Volume 18, Number 2 (1994)
reprinted by permsion Legal Studies Forum

From Darwinian to Biblical Lawyering:
The Stories of Melville Davisson Post

FRANCIS M. NEVINS
St. Louis University School of Law

     Whatever else we may be, each of us is the child of the social circum-
stances of our world; and so is each work that we create. One of the circum-
stances that can decisively shape a nation's literature and certainly has shaped
the literature of the United States is its legal thought, the categories in which
its laws are framed, the habits of mind and action in its legal community, the
roles lawyers play and the ways nonlawyers judge them. A great deal of
scholarly research and sometimes of speculative ingenuity has been devoted to
exploring the links between events in nineteenth-century American legal history
and such major works of American fiction as Cooper's The Pioneers, Haw-
thorne's The House of the Seven Gables and Melville's Billy Budd.¹ It seems
clear to me that American legal development is also intimately linked with American
fiction of the twentieth century - and not just with what academic literary
critics have canonized as great literature but with popular fiction too. In this
paper I shall concentrate on one especially interesting popular fiction writer and
explore what his work tried to tell us about law, lawyers, lawyering and justice.
     Our starting point is almost exactly 100 years ago, when Darwin's
image of the natural world as a vast, violent and neverending struggle for
survival had been translated by social Darwinians like Herbert Spencer into a
portrait of the human world; when American industrialists and railroad builders
and stock-market speculators made huge fortunes and millions of immigrants
poured into the United States to escape lives of unspeakable degradation in
Europe and found only slightly less degradation, made bearable perhaps by the
faith that now they were living in the land of opportunity.
     The American legal community's foremost social Darwinian of the
time, indeed the foremost legal thinker in all of our history, was Oliver Wen-
dell Holmes, Jr. (1841-1935), who in the late 1890s wrote the most important
jurisprudential essay of his career.² Holmes' aim in "The Path of the Law" was
to isolate law's identifying characteristics and to distinguish law from morality.
"If you want to know the law and nothing else, you must look at it as a bad
man, who cares only for the material consequences which such knowledge will
enable him to predict, not as a good one, who finds his reasons for conduct,
whether inside the law or outside of it, in the vaguer sanctions of conscience."³

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The material consequence which concerns "the bad man" is the incidence of
public force.

You can see very plainly that a bad man has as much reason as a good
one for wishing to avoid an encounter with the public force, and there-
fore you can see the practical importance of the distinction between
morality and law. A man who cares nothing for an ethical rule which
is believed and practiced by his neighbors is likely nevertheless to care
a good deal to avoid being made to pay money, and will want to keep
out of jail if he can.⁴

Holmes does not address what is the duty of the lawyer whose client
happens to be a "bad man," but the answer seems to follow as night follows
day. Given the amoral client Holmes posits, the attorney's obligation is to
stifle any moral qualms he may have and exert all his efforts to keep the client
just this side of the often arbitrary technical line that separates legal from illegal
conduct. In both theory and practice this remains the prevailing view among
American lawyers and legal ethicists today. It is also the view expounded in
the early stories of American popular culture's first important lawyer author,
Melville Davisson Post.⁵
What first attracted Post to this philosophy is not clear since his only
biographer to date was a librarian lacking both legal training and curiosity
about Post's jurisprudential development.⁶ But if we read the memoirs of
authors who were more or less Post's contemporaries, we sense that social Dar-
winism was simply in the air everyone breathed who lived and thought in the
robber-baron era at the end of the nineteenth century. Take for instance
Theodore Dreiser (1871-1945), who during the 1890s was scratching out a bare-
bones existence as a newspaper reporter, first in Chicago, then in St. Louis,
Pittsburgh and other centers of industry. Thirty years later, not yet the author
of An American Tragedy but already recognized as a major American novelist,
he wrote about that time in his memoir Newspaper Days. Dreiser was a man
torn down the middle between his Marxist egalitarian identification with the
oppressed and his social Darwinian conviction that both the rich and the poor
deserve to be what they are. That split is captured in his reflections on the
Darwinian decade that had begun thirty years before.

Indeed, the spirit of America at that time, as I see it now, was remark-
able. It was just entering then upon the most lurid phase of that vast,
splendid, most lawless and most savage period in which the great finan-
ciers, now nearly all dead, were plotting and conniving the enslavement
of the people and belaboring each other for power .... Money, mon-
ey, money. It was the greatest lure of all. You could see it in the faces
of the people, in their step and manner. Power, power, power -
everyone was seeking power in the land of the free and the home of the

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They were wildly desirous to place themselves above their fel-
lows - to push them down into a kind of abject, cringing wage slavery,
and this in the face of their constant yelping about equility, fraternity
and the like. There was almost an angry dissatisfaction with inefficien-
cy of any degree, or slowness, or age, or anything indeed which did not
tend directly to the accumulation of riches. The American of that day
wanted you to eat, sleep and dream money and power.⁷

The more fiction one has read by Americans shaped in the 1890s -
including the work of authors as far apart as Clarence E. Mulford (1883-1956),⁸
Arthur Train (1875-1945)⁹ and Erle Stanley Gardner (1889-1970)¹⁰ - the more
one becomes convinced that Dreiser's take on the decade was right. Any fuller
account of Melville Davisson Post's youthful attraction to social Darwinism
must await a fuller biography if there ever is one.

Post was born in Harrison County, West Virginia on April 19, 1869,
eight years after West Virginia became a separate state. His father, Ira Carper
Post (1842-1923), was a local aristocrat and well-to-do cattleman. His mother,
Florence May Davisson (1843-1914), was the great-granddaughter of Daniel
Davisson (1749-1819), who was one of the founding fathers of the area, having
settled in 1773 on prime land in what was to become Clarksburg, West Virgin-
ia. Melville was the second of their five children and the first of their two sons.
He grew up in an atmosphere of rural gentility and fervent Methodist Episcopal
religion. After eight years at the local elementary school on Raccoon Run, he
was allowed two years without formal education. In the fall of 1885 he was
enrolled in Buckhannon Academy, transferred to the University of West Virgin-
ia two years later, graduated in 1891 and, after a single year of legal studies, was
awarded a Bachelor of Laws degree in 1892. Later that year he was admitted
to West Virginia's bar.
During Melville's childhood and adolescence his father had begun
dabbling in West Virginia Democratic Party politics and wound up being
elected to the state legislature. The year young Post received his law degree he
attended the state Democratic convention at Parkersburg, made a speech on
behalf of one of the candidates for governor, and was chosen as a presidential
elector-at-large and later as secretary of the Electoral College. Whatever his
early political ambitions may have been, he subordinated them to the private
practice of law. He formed a partnership with attorney John A. Howard, set
up an office in Wheeling and, over the next eight years, established a reputation
as an expert at collecting bad debts. He also represented corporations and
accused criminals.

[179]

     His first literary ambitions date back to the years at Buckhannon
Academy, and some examples of his juvenilia are preserved among the family
papers at West Virginia University. It was probably around 1894 or 1895 that
he began experimenting with fiction. By the spring of 1896 he seems to have
completed the seven stories that made up his first book, and the collection was
published by G. P Putnam's Sons later that year as The Strange Schemes of
Randolph Mason.
     Jurisprudence apart, the character of Randolph Mason follows in the
tradition of the tormented protagonists of Poe. He hails from Virginia and is
described in the tale that introduces him, "The Corpus Delicti," as "the mysteri-
ous man of New York . . . as grand, gloomy, and peculiar as Napoleon ever
was ... He wanders through [his club] usually late at night, apparently with-
out noticing anything or anybody ... [H]e reminds me of a great world-weary
cynic, transplanted from some ancient mysterious empire." (23-25)
     Mason is not only a lawyer but the quintessential lawyer for his time,
a born-again social Darwinian who conceives of law in completely amoral terms
and uses his knowledge of its technicalities to help criminals get away with
their crimes. According to "The Corpus Delicti," his specialty is criminal
defense work and he has become:

famous for his powerful and ingenious defenses. He found holes in the
law through which his clients escaped, holes that by the profession at
large were not suspected to exist, and that frequently astonished the
judges. His ability caught the attention of the great corporations . . .
He pointed out methods by which they could evade obnoxious statutes,
by which they could comply with the apparent letter of the law and
yet violate its spirit, and advised them well in the most important of all
things, just how far they could.bend the law without breaking it. (24-
25)

All the early Mason stories abound with endorsements of the philoso-
phy to which Holmes in "The Path of the Law" was about to give classical
expression. From "Two Plungers of Manhattan":

     Client: "[W]e are ready to follow your instructions to the letter
in any matter that is not criminal."
     Mason: "The transaction will be safely beyond the criminal
statutes, although it is close to the border line of the law."
     Client: "'Beyond' is as good as a mile; let us hear your plan."
(87-88)

In "Woodford's Partner" Mason lectures his client:

"Sir, the law of self-preservation is the great law governing the actions of men. All other considerations are of a secondary nature. The selfish

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interest is the great motive power .... Men do not bear a hurt if the
hurt can be placed upon another. It is a bitter law, but it is, neverthe-
less, a law as fixed as gravity." (117-118)

The same social Darwinism is espoused by other characters in these
stories. "The Error of William Van Broom" ends with a prosecutor telling the
merchant who was the target of a Mason scheme:

All wrongful and injurious acts are not punished by the law. Wrongs
to become crimes must measure up to certain definite and technical
standards. These standards are laid down rigidly by the law and cannot
be contracted or expanded. They are fixed and immutable. The act
done must fit closely into the prescribed measure, else it is no crime.
If it falls short, never so little, in any,one vital element, the law must,
and will, disregard it as criminal,no- matter how injurious, or wrongful,
or unjust it may be. The law is a rigid and exact science. (175)

Dismissing charges against one of Mason's clients, the judge in "The
Sheriff of Gullmore" says:

The law cannot be figured out. It is certain and exact. It describes
perfectly what wrongs are punishable as crimes, and exactly what
elements must enter into each wrong in order to make it a crime. All
right of discretion is taken from the trial court; the judge must abide by
the law, and the law decides matters of this nature in no uncertain
terms. (250)

And in "The Animus Furandi" we learn that Mason's secretary Court-
landt Parks shares his employer's philosophy.

The world is a fighting station. The one intention of the entire busi-
ness world is robbery. The man on the street has no sense of pity; he
grows rich because he conceives some shrewd scheme by which he is
enabled to seize and enjoy the labor of others. His only object is to
avoid the law; he commits the same wrong and causes the same result-
ing injury as the pirate. The word "crime," Hogarth, was invented by
the strong with which to frighten the weak; it means nothing. Now
listen, since the thing is a cutthroat game, why not have our share of
the spoil? (263)

After these disquisitions one expects Post's early tales to portray a dog-
eat-dog world without any moral aspects. This is indeed what we find in some
of the stories, but in others Post inconsistently smuggles in moral elements,
usually by stressing the selfless motivation of the "bad man" client or the
wickedness of Mason's target. These strategies spoil the tales in which Post
adopts them but strongly suggest that he is not terribly comfortable with the
social Darwinism his spokesmen profess.

[181]

In "The Corpus Delicti," first, best known and strongest of the early
Mason stories, the client is Richard Warren, alias Samuel Walcott, whose vast
property and forthcoming marriage to beautiful young socialite Miriam St.
Clair are threatened when his spurned Mexican mistress threatens to expose
him as an impostor and a murderer. Mason's solution to the problem is sim-
plicity itself. "This growth must be cut out at the roots." (44) In other words,
the man has to kill the woman, but in such a way that it does not count as
murder under the law. The scheme involves his visiting her house disguised as
a Mexican, stabbing her to death with "a great Mexican knife," (51) cutting up
her body in her steel bathtub, and then using sulfuric acid to dissolve the body
literally into nothing. As luck would have it, he is picked up by the police in
his Mexican disguise right after finishing his grisly work and is put on trial for
murder. His defense counsel of course is Randolph Mason, who at the close
of the prosecution's case moves for a directed verdict of not guilty. Under the
doctrine of Ruloff v. People,¹¹ where there is no eyewitness to the crime but
only circumstantial evidence that a murder was committed, then purely circum-
stantial evidence that the defendant was the murderer is legally insufficient for
a conviction and, as Mason says, "this Court must compel the jury to acquit
him. (68) "Your Honor," responds the District Attorney, "this doctrine is
monstrous .... If this is the law, then the law for the highest crime is a dead
letter. The great commonwealth winks at murder and invites every man to kill
his enemy, provided he kill him in secret and hide him . (68-69) The
court, however, has no choice in the matter. "I have no right of discretion,"
the judge instructs the jury. "The law does not permit a conviction in this case,
although every one of us may be morally certain of the prisoner's guilt. I am,
therefore, gentlemen of the jury, compelled to direct you to find the prisoner
not guilty." (71) From which the jury, the spectators and of course the readers
see that, "when the skillful villain sought to evade it, ... how weak a thing [the
law] was." (74)
The remaining six stories in The Strange Schemes of Randolph Mason are
variations on the theme of the Darwinian lawyer but in a minor key inasmuch
as Mason's advice enables his clients to get away with crimes less serious than
murder. In "Two Plungers of Manhattan" Mason works out a scheme to help
a pair of brothers obtain the quick $5,000 they need to corner the market in
some commodity or other. By moralistic coincidence he picks as the target for
his scheme the corrupt retired shoe tycoon whose machinations had ruined his
client's father years before. The scheme calls for one of the brothers to make
a $25,000 down payment on the tycoon's mansion and then to turn it into a
livery stable, forcing the tycoon to pay a $7000 premium to buy back the
property. The $2000 that the brothers do not need for their speculation be-
comes Mason's fee.

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     In "Woodford's Partner" young Carper Harris, confidential clerk for a
large Baltimore wholesaler, is robbed of $20,000 of the firm's money while on
a train journey to New York. Knowing that his bosses will at 1east fire him
and probably charge him with theft too, he appeals for help to his cattle-dealer
brother William, who goes to Mason for a scheme to recoup the lost money.
Mason has William travel to West Virginia and talk beef speculator Thomas
Woodford into forming a cattle partnership. As soon as each man has deposit-
ed $5,000 in a partnership account at a local bank, William cleans out the
account and hops the first train for New York. Woodford then makes legal
moves to have William extradited to West Virginia to stand trial. "You have
violated no law," Mason assures his client; "you have simply taken advantage
of it weak places to your own gain and to the hurt of certain stupid fools."
(146) The state of New York proves Mason a good legal prophet by refusing
the request for William's extradition. Thus, as Post sums up, "[t]he blow which
Fate had sought to deliver with such malicious cunning against [Carper Harris]
had been turned aside, and had fallen with all its crushing weight upon the
shoulders of another man . . . ." (150)
     The client in "The Error of William Van Broom" is professional gam-
bler Camden Gerard, who has been using his winnings to support his younger
sister but has lost everything he owns in a long streak of bad luck. Mason
sends him to Wheeling, West Virginia to visit Van Broom, the local jeweler.
Gerard presents a forged letter of introduction from a New York diamond
importing house, hints that he wants to offer Van Broom a piece of a lucrative
international oil deal and agrees to buy a diamond necklace from Van Broom
for $3500. But when the two men go to the bank, ostensibly so that Gerard
can withdraw the money from his account, he simply ducks out with the
necklace and catches a train for New York. As the local prosecutor later
informs Van Broom, there is no basis on which to demand Gerard's extradi-
tion. Presenting the forged letter of introduction was not per se a crime. "He
bought the jewels and you trusted him. He is no more a law-breaker than you
are. He is only a sharper dealer." (173) Van Broom's disgusted response may
well be shared by most readers. "[W]hat is the good of the law anyhow?" (176)
     The most amoral of all the tales in the collection is "The Men of the
Jimmy." On a cold and snowy night, Mason is enticed to a country house on
the Hudson, seized by a gang of thieves, and forced to devise a plan whereby
they can legally raise the money they need to bribe some guards so that their
imprisoned companions can escape. Mason as usual is not at a loss for a plan.
The child of wealthy Cornelius Rockham had been kidnapped - not by these
thieves - several days earlier. Following Mason's instructions, the most pre-
sentable of his new clients, a man named Barker, visits Rockham and says that
at 11:00 that night he will tell where the child is and take Rockham to the

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place, but only if Rockham pays him $5,000 in advance. Rockham agrees, and
has some police officers wait for 11:00 with him. At the appointed hour noth-
ing happens except that Barker slips the $5,000 to one of his confederates in a
tobacco pouch. When Barker is tried for obtaining money under false pretenses,
Mason demands a directed verdict of not guilty, arguing that making a false
statement about a future event does not fall within the definition of the crime.
The district attorney simply cannot believe "that the law is so defective and its
arm so short that it cannot pluck forth the offender and punish him when by
every instinct of morality he is a criminal. If this be true, what a limitless field
is open to the knave, and what a snug harbor for him is the great common-
wealth of New York!" "[S]ir," the judge replies, "this is not a matter of senti-
ment; it is not a matter of morality; it is not even a matter of right. It is pure-
ly and simply a matter of law, and there is no law." (204) What happened to
the kidnapped child Post never bothers to tell us.
Almost equally amoral is "The Sheriff of Gullmore" which comes next
in the book. Colonel Moseby Allen is about to conclude his term as sheriff of
his West Virginia county and make an accounting of funds to his successor.
His problem is that he has lost $30,000 in county revenue speculating on Wall
Street. Mason's secretary, Courtlandt Parks, brings the sheriff's plight to
Mason's attention: unless Allen can find $30,000 in a hurry, his innocent father
and brother will have to forfeit the bond they put up when Allen took office.
Mason comes up with a scheme so that the loss falls instead on the head of
Jacob Wade, the newly elected sheriff, and on whoever his bondsmen happen
to be. Allen is indicted but the West Virginia judge is compelled to rule, as
Mason had known, that what Allen did was neither embezzlement nor larceny
nor any other crime. The result, concludes His Honor, "is not reason or
justice, but it is the law." (255)
"The Animus Furandi" opens with a conversation between Mason's
secretary Courtlandt Parks and private investigator Braxton Hogarth in which
we learn that Mason had become a sort of Poe character after having lost his
fortune in France thanks to some governmental "treachery," and that since his
return to New York Parks has been secretly soliciting criminal business for
Mason so as to help his boss recover both intellectually and financially. As part
of a scheme to feather his own nest, Parks introduces Hogarth to Mason as a
man with a problem akin to that of several previous clients: he needs to raise
a quick $20,000 to save his son from being charged with embezzling that
amount from a New Jersey bank. The scheme Mason hatches takes us back
once more to West Virginia where Walson, the manager of a coal company, is
transporting a $20,000 payroll to the mine in a box under his buckboard seat.
Hogarth handcuffs the manager, identifies himself as a detective, claims that
Walson is a fugitive desperado and marches him back to town, leaving the
buckboard with its cashbox out on the open road. By the time the "mistake"

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is straightened out and Walson goes back to retrieve the $20,000, the buckboard
hss been burned and the money stolen. Later in New York, Hogarth and
Parks visit an illegal gambling den, lose the booty at faro and take it back from
the dealer at gunpoint. They get caught on the spot but, as the district attor-
ney informs the chief of police, for various technical reasons what they did was
not robbery. The chief's last remark sums up much of the story. "[W]on't
there be hell to pay when the crooks learn the law?" (286-287). The final scene
shows a "grim, emaciated and rigidly ugly" Mason sailing back with Parks to
France.
     Into some of these earliest Randolph Mason stories Post had permitted
the intrusion of moral aspects at odds with his Darwinian premises and hinting
at a jurisprudential struggle within him. The five new tales issued by Putnam
in 1897 as The Man of Last Resort begin with Mason back in New York and
once again counseling the "bad man" (and woman) how to commit crimes
while staying within the law but culminate in the apparent death of both Post's
protagonist and his Darwinian vision.
     In a preface Post reveals that he had taken quite a blast of critical heat
for publishing The Strange Schemes and, from the critics' perspective, showing
potential criminals the loopholes in the law through which they might wriggle,
His defense, the obvious one under the circumstances, was that the Randolph
Mason stories were intended as object lessons in how the legal system should
be improved. To those who argued that he could better serve this purpose by
privately pointing out legal flaws "to a few political leaders" he replied that no
law is legitimate unless rooted in "the will of the people" so that he had no
choice but to address his lessons to the electorate at large. Almost twenty years
later, this view of juridical legitimacy was to form the basis for one of his most
powerful law stories.
     The first, longest and weakest of the five tales collected in The Man of
Last Resort is "The Governor's Machine." The setting is a nameless southwest-
ern state, most likely New Mexico, part of the "mighty new land" which "stood
open with its doors wide. Any combatant who pleased could enter .... If he
were fittest, he could win." (30-31) Alfred Randal, the handsome New England-
er who has become governor, has been using his office to accumulate a personal
fortune that will make him worthy of the woman he loves. Unfortunately the
alcoholic crony known as Billy the Plunger whom Randal appointed secretary
of state has lost $50,000 in state funds to an obese gambler. Randal is deter-
mined to save his buddy from prison and disgrace by making good the loss out
of his own profits from public service even if it means he can never propose to
his wealthy sweetheart. Billy saves Randal from his own nobility by coming
to New York and obtaining from Randolph Mason a scheme to recoup the
Money some other way. The plan turns out to be ridiculously simple. Billy

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gets the fat gambler Crawley to lend him $50,000 for speculation in oil futures
and signs a note giving Crawley 12% interest on a 30-day loan plus one-eighth
of Billy's profits. Randal signs the note as surety. Crawley's money is used to
replace the embezzled state funds and, thirty days later, the signers refuse to
repay the $50,000. Crawley's suit against them is quickly dismissed by the
court on the ground that a futures contract is a species of gambling contract
and therefore unenforceable.¹² Post takes almost 100 pages of awkward prose
and inept construction to reach this lame climax, and Mason never comes on
stage for a moment.
Much tighter and more purely Darwinian is "Mrs. Van Bartan." Mason's
client, the former Columbia Summers, is a West Virginia belle whose
family had fallen on hard times until her marriage to a man she does not love,
Gerald Van Bartan, the weak and useless only son of a deceased iron tycoon
whose widow, herself near death, is so fiercely opposed to the union that she's
prepared to cut Gerald out of her will and leave all the family property to her
church. Mason draws out of his client the one fact she's tried to keep from
him - that the man she really loves, Robert Dalton, happens to be her mother-
in-law's attorney - and tells her that she must do whatever it takes to entice
Dalton into sabotaging the will he draws for the old lady. This is precisely
how things work out. Gerald's mother dies, and it quickly becomes apparent
that the will Dalton drafted for her isn't worth the paper it's written on since
it leaves her estate "to St. Luke's Episcopal Church." A church per se is not
a legal entity capable of holding title to property, which means that the will is
void and Gerald takes by intestate succession. His career ruined by newspaper
coverage of the affair, Dalton sails off to become a law professor in Japan. (I
am not making this up.) Columbia Van Bartan tearfully visits Mason again to
revile him in the ripest of terms. "Yes, thanks to your devilish ingenuity, I
obtained [what I wanted], but at what a cost! I have the money, but it is
daubed over with the blood of a man's heart .... I charge you, do you hear
me, I charge you with the ruin of this man's life." "Madam," replies Mason,
...... I am not concerned with the nonsense of emotion." (133-134). He walks
out of the room and the story ends. Why he didn't give her the obvious advice
- arrange a little accident for her husband and take off with the Van Bartan
fortune to become a Japanese law faculty wife - does not appear. We may
have here a sort of negative infusion of morality, or perhaps Post thought the
story was already sufficiently drenched in social Darwinism.
Next comes "Once in jeopardy," almost ninety pages of leaden exposi-
tion, structural ineptitude and painfully obvious legal gimmickry. Robert
Gilmore is unique among Mason clients in that he consults the lawyer after
committing his crime, whose genesis he explains in a long dull monologue. He
and his partner Brown Hirst had schemed for Hirst to marry an unsuspecting
woman, take out $200,000 in life insurance with her as beneficiary, fake his

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own suicide and slip off to Europe, after which Gilmore would court and
marry his widow, take control of the insurance proceeds and eventually desert
her and join Hirst overseas. But when the time came to go out with Hirst and
fake a suicide, Gilmore, who had actually fallen in love with Mrs. Hirst, had
thrown his partner over a bridge into the raging Tug River hundreds of feet be-
low. Refusing to believe that her husband killed himself, Mrs. Hirst has hired
a private detective to prove it was murder. Gilmore is convinced he'll be
caught and begs Mason to save his life. Mason's advice: Gilmore must be
framed for the murder and put on trial in West Virginia where the faked
evidence against him will explode and he'll be acquitted so that he can never
be tried again on the same charge. The balance of this long-winded story
details the working out of the plan but befuddles the reader because the only
false evidence presented at Gilmore's trial is his own confession, which turns
out to be inadmissible. In terms of plot mechanics this is the sloppiest of all
the Randolph Mason exploits.
The shortest, most vividly written and interesting story in the collection
is "The Grazier." The scene once again is West Virginia and the title character
is Rufus Alshire, a giant of a man who runs cattle on his spread and "loved the
open sky, and the blue hills, and the monster oak trees, and hated in his heart
with a stubborn bitter spirit of rebellion the least shadow of restraint." (232)
This majestic man of the hills, who quite clearly foreshadows Post's immortal
Uncle Abner, has a legal problem. His land is mortgaged to the hilt and his
promissory notes have been bought up by a rapacious oil company whose
bosses have learned that there's a huge pool of black gold beneath his property.
Alshire ventures all the way to New York to seek the advice of his young
friend Jerry Van Meter. While crossing a traffic-choked Manhattan street,
Alshire and Jerry save a man from being run over by a horse-drawn mail
wagon. As chance or providence would have it, the man is Mason's secretary
Courtlandt Parks, and suddenly the lawyer has another client. But this client
is unlike any in Mason's experience: he refuses to save his property by com-
mitting a crime. Mason is outraged by such scruples. "Commit a crime! No
man who has followed my advice has ever committed a crime. Crime is a
technical word. It is the law's name for certain acts which it is pleased to
define and punish with a penalty. None but fools, dolts, and children commit
crimes." (252) Alshire is unmoved by this legalism and insists that he won't
commit any moral wrong even if technically it's legal. Mason explodes in fury:

Moral wrong! A name used to frighten fools. There is no such thing.
The law lays down the only standard by which the acts of the citizen
are to be governed. What the law permits is right, else it would pro-
hibit it. What the law prohibits is wrong, because it punishes it. This
is the only lawful measure, the only measure bearing the stamp and
sanction of the State. All others are spurious, counterfeit, and void.

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The word moral is a pure metaphysical symbol possessing no more
intrinsic virtue than the radical sign. (252-253)

Luckily Alshire has no moral qualms about Mason's ultimate plan for him,
which involves his leasing oil rights to close friends like Jerry who don't live
in West Virginia so as to stall the foreclosure on his property for years and give
him time to drill for the oil himself. The final lines of dialogue between the
two men are pregnant with Post's future as a writer of stories about the legal
system.

^{Alshire (astonished): "Is all this possible?"}
^{Mason: "To the law all things are possible - even
justice." (257)}

The description of Mason in the final paragraph, his form thin and gaunt with
swollen purple veins showing on his forehead, suggests that the attorney is
unwell.
The collection closes with another short and relatively tight story, "The
Rule Against Carper." Social Darwinian entrepreneur Russell Carper has spent
years looting a bankrupt company for which he had been appointed receiver,
but finally after endless delaying maneuvers the court is about to enter a decree
ordering him to account and he cannot because he has been ruined in the stock
market. In a long introspective sequence we learn that the woman he loved
had broken her engagement when she found out about his legal but vile busi-
ness practices and that he had tried but failed to convince her that social Dar-
winism was ordained by God and not to be questioned by mere man. Desper-
ate, Carper goes out that night to seek the help of Randolph Mason, his last
hope, only to find that the medical problems hinted at in "The Grazier" have
grown much worse: the lawyer is "raving like a drunken sailor" and at the
point of death.from "acute mania." At this juncture Carper accepts the fact
that his ruination is well deserved. ' "For seven years he had flown the black
flag of piracy .... Every man who had passed up a prisoner on to the deck
of his galleon, had walked the plank. It was now his turn. It was justice."
(284) He goes home and, we are to understand, kills himself. Mason never
appears and, we are to understand, is also dead, or as good as dead anyway.
And so he was for the next ten years. When at last he was resurrected, the
newly incarnated Mason had nothing in common with the old version except
his legal expertise and his name.

III.

During the ten years that followed The Man of Last Resort Post wrote
next to nothing, devoting himself almost exclusively to politics, law and, later,
to his family. In 1898 he was elected chairman of West Virginia's Democratic
Congressional Committee. Three years later he cut his professional ties with

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John A. Howard and formed a new partnership with John McGraw, an older
and politically better connected attorney. The firm of McGraw & Post, based
in Grafton, specialized in representing coal mines and railroads. In 1903 the
thriving establishment lawyer married Ann Schoolfield in Philadelphia. Their
only child, born on February 5, 1905, was named Ira Carper Post II, after
Post's father. The child died of typhoid fever at the age of eighteen months.
Devastated by this and other tragedies whose exact nature remains obscure, Post
soon afterwards ended his partnership with McGraw and in fact cut all his ties
to both law and politics. From this point until his death he was identified by
the public and himself simply as a writer.
In 1906, after being wooed for several years, Post signed a contract with
the popular Pearson's Magazine to resurrect Randolph Mason and write a new
series of stories about him. The timing, and a reference in the Pearson's promo-
tional announcement (". . . . we believe that they will prove to be the most
interesting stories of the mystery class that have been produced since the
original cases of Sherlock Holmes"), make it clear that the magazine was hoping
to duplicate Conan Doyle's resurrection of the sage of Baker Street in 1903
after the world had come to believe that Holmes had plunged with Professor
Moriarty into the Reichenbach Falls. In, order to make the new Randolph
Mason tales marginally more Holmes-like, Mason's secretary Courtlandt Parks
was transformed into a first-person narrator in the manner of Dr. Watson.
That was a minor change in the format of the series compared to the
total and totally unexplained character transformation that Mason himself
underwent at the behest of the Pearson's editors. "[I]t seemed to us," they
explained in their promotional announcement, "that for magazine purposes, a
new series of stories would be much stronger, and more universally satisfactory
to our readers if Randolph Mason could be made the champion of right instead
of the tutor of criminals." Post, the editors claim, "accepted our view of the
matter and worked out his cases accordingly." How much he was paid for
agreeing does not appear, but the last two stories in The Man of Last Resort
make it plain that Post needed no bribe to renounce social Darwinism. In any
event, the promo in Pearson's was followed by a statement signed by Court-
landt Parks himself, in which he explains his employer's activities as tutor to
criminals as the result of an "attack of acute mania" - which in fact is what
ended that phase of Mason's career - and then informs us that since his recov-
ery the attorney's raison d'etre is "to find within the law a means by which to
even up and correct every manner of injustice. He would consider no case
which did not contain this element, a wrong for which the law in its regular
course offers no redress." But he protests (perhaps too much) that Mason has
not developed morals, or a conscience but rather has chosen to specialize in
redressing the balance of justice because it is hard to do. "Take a situation so
hopeless as to be called fated or inevitable, add, in the correction of it, a necessi-

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ty to return the injury directly and in an exact measure to the author of it, and
one has a difficulty not easily possible of solution to human intelligence." The
claim that Mason in these stories is operating purely as a technician is justified
in the sense that Post usually does not stack the deck by making the clients
simplistically sympathetic, as Arthur Train would often do by having his
character Mr. Tutt represent a nice young man or woman in love. But where
the earlier Randolph Mason tales had offered a Darwinian view of law and
lawyering with occasional inconsistent overtones of morality, the Pearson's
stories tend to portray the lawyer protagonist in the service of secular common
decency and the legal system itself as having the resources to bring about the
decent result despite the invocation of specific rules of law by the antagonist,
who more often than not is an avatar of the Holmesian "bad man."
Pearson's ran a new Randolph Mason story in each of its monthly issues
from February 1907 through May 1908 - total of thirteen tales, three of them
divided into two installments each - and later in 1908 all thirteen were pub-
lished in book form by Edward J. Clode as The Corrector of Destinies. Most of
the tales are cut to a single pattern, with a client victimized by a scoundrel
coming for redress to Mason, who invariably finds a judicial decision he can use
to make the client whole. The stories frequently involve financial skullduggery
among railroad, coal and oil tycoons in Virginia or western Pennsylvania, and
more often than not the linchpin of Mason's counterstrategy is a case decided
by the West Virginia Supreme Court. For a sense of how the reconstituted
Mason operates we need not explore each of the thirteen stories at length. Two
of them, one rather weak and the other the best in the collection, will suffice.
Mason's client in "Madame Versay" (Pearson's, March 1907) is an aristo-
cratic Old South matriarch, and the problem she presents is that a hapless
young man in the family has been seduced and befuddled into stealing the
ancestral jewels and turning them over to the avaricious New York "variety
actress" of the title. The woman cannot be prosecuted because that would
require prosecution of the young man too and the besmirchment of the family's
honor, but she is willing to sell the jewels back to the matriarch for $10,000
cash. Mason arranges for the payoff to be made in Richmond, Virginia, capital
of the old Confederacy, and in Confederate money. When the furious Madame
Versay threatens to have him prosecuted for passing counterfeit currency,
Mason is ready with a citation to United States v. Barrett,¹³ holding that be-
cause Confederate money does not and never was intended to simulate US.
money, it cannot be considered counterfeit.¹⁴
In "The Life Tenant" (Pearson's, October 1907) the client is a tubercular
young man named Hopkins who will die if he does not move almost at once
to the Marquesas Islands. Mason determines that a tropical lifestyle will cost
Hopkins $1200 up front and the same amount every year thereafter and uses

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his legal wiles to secure the money. At a judicial sale of tax-delinquent land in
West Virginia, Hopkins had purchased a tract that he happened to know was
rich in coal. The only mine actually on the land was a backyard pit operated
by the old farmer who had lost the property for unpaid taxes. Later Hopkins
discovered that he had bought not fee simple title to the tract but a mere life
estate, valid only for what was left of the decrepit old farmer's life. Under the
general rule of law, a life tenant may not conduct mining operations on his
property but is limited to making his living by farming the land's surface. To
make matters worse, a voracious soft coal trust knows of the wealth beneath
the land and is gleefully waiting for the old farmer to die so it can begin full-
scale excavations. Mason forces the trust to buy out his client's interest by
citing Koen v. Bartlett,¹⁵ in which the West Virginia Supreme Court had ruled
that where a mine is already in operation on a piece of property, no matter
how small the mine may be, even a backyard pit like the old farmer's, a life
tenant may legally "gut the land of every ounce of value." (164)
Certain weaknesses recur in many of these stories. Too often Post
couches either the problem or Mason's solution, or both, in long arid stretches
of narrative unrelieved by a syllable of dialogue or characterization. Mason
usually is offstage when his schemes come to climax. Most of the subordinate
players in these little dramas are simplistically drawn. And, reading the thir-
teen tales close together, one is overwhelmed by their generic similarity and
prone to forget what makes each story different.
But there is also much to enter on the credit page of the ledger. The
writing in these tales is much leaner than in the earlier Randolph Mason collec-
tions. Mason himself remains an effectively Poesque figure, an obsessive recluse
living in an old mansion "on the west side of Broadway below Wall Street" (7)
that he has turned into "one huge library of law books" (9), his domestic needs
attended to by an Italian peasant couple who live in the basement and his
administrative needs by Parks. Post vividly draws Mason "in a heavy black oak
chair before the fire ... his face thrown partly into shadow by the flaming logs
on the hearth. The masterful iron face, the lean, hard jaw with its projecting
chin, the fearless, bony nose appearing in the fantastic light flattened a little at
the end, like that of a beast of prey, and the craggy forehead - all colored,
browned, reddened by the fire." (52-53; from "The Burgoyne-Hayes Dinner.")
"(H)is chin up, his jaws looked like the close-fitting bars of a trap, his eyes wide
open, but the eyeballs dull, his body erect, rigid almost, in its gray tweeds, and
the long, nervous fingers gripped behind his back" (115; from "The Interrupted
Exile.") He does not orate anywhere near often enough, but when we do hear
him speak, his words ring with the sort of austere majesty and authority that
most readers of Post will associate with his later and much better known
character Uncle Abner.

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From the first story in the new series, "My Friend at Bridge" (Pearson's,
February 1907):

     Winfield Gerry: "The scheme of things seems to require a hell.
Matters must be adjusted somewhere."
     Mason: "This one will be adjusted here." (14)
     Gerry: The Fifty-eighth National Bank will never
shoulder such a loss. These debts aggregate three hundred thousand
dollars."
     Mason: "The Fifty-eighth National Bank will not lose a dollar."
     Gerry: "Then I do not know how under heaven Egan Bedford
can be got to cash the checks!"
     Mason: "It is sufficient that I know." (17)
From "The Interrupted Exile" (Pearson's, July and August 1907):
     Mason: "Nothing is ended until it arrives at its adjustment."
     Parks: "Then this is a case for the Court of Final Equity, if it
ever sits."
     Mason: "It is a case for me." (124)

From "The Last Check" (Pearson's, September 1907), where Mason is
being retained by the dying president of an insurance company:

     Curtis: "And, now, if only I could return the money to the
insurance company; if only I could even matters with that cold, cruel,
cunning political intriguer, I should die happy."
     Mason: "Then you will die like the saints. The Assurance
Company of North America will not lose a dollar, and matters will be
squared once for all with this politician."
     Curtis: "Human pity has always promised the impossible to the
dying, but it is no kindness."
     Mason: "Sir, I promise nothing; I merely point out the inevita-
ble."
     Curtis: "The inevitable! Why, only the hand of God could
perform the thing you speak of."
     Mason: "Pardon me; your own hand has already done it." (145)

If we think ahead to the numinous ambience of the Uncle Abner
stories, we might imagine that Randolph Mason too is being portrayed as a sort
of time-traveling Old Testament prophet. Post takes special pains to eliminate
that temptation and to make us see Mason as a totally secular righter of
wrongs. In "The Last Check," for example, one of the characters says to
Mason: "I consider this thing to be a providence of God." "On the contrary,"
Mason replies, "it is a mere principle of law." (147) And in "The Virgin of the
Mountains" (Pearson's, December 1907 and January 1908), the longest and
weakest story of the thirteen, the Italian marquis whom Mason in a momentary

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reversion to his old self had gotten off for a sadistic but in his view justified
murder, says: "Mr. Mason, I wish to thank you for my life." "Sir," Mason tells
him, "I had no interest in your life. The adjustment of your problem was the
only thing of interest to me." (227) Every so often the author remembers that
his character is still supposed to be an amoral technician.
In "The Intriguer" (Pearson's, April and May 1908), with which the
collection ends, Post not only creates the single genuinely interesting female
character in the series but also links her with his recurring Social Darwinian
theme. When Margaret Garnett speaks of the joy of the battle to survive, Post
bathes her in a kind of mystic glow much as the directors of 1950s religioso
movies did when a holy man preached the word of God. "Straining muscle
against straining muscle, wits fiercely hand to hand, with the cross for the
conquered. That's the fine thing, Courtlandt, that's life! only let the fight be
fair." (276-277.) Margaret's father, railroad mogul John A. Garnett, is about to
be ruined by the schemes of U.S. Marshal Thomas B. Wood, who's demanding
control of Garnett's line as a quid pro quo for turning in his badge. Despite
Margaret's pleas to let the Darwinian chips fall where they may, Mason steps
in and advises Garnett to agree to the deal. What the lawyer knows and no
one else in the tale seems aware of is that any contract giving a public official
some benefit in return for his resignation from office is invalid. But at the end
of the story, after Wood has been defeated, Margaret trumps Mason's ace by
announcing that she is going to marry the ex-marshal, so that in due course he
will control her father's properties anyway. This is far from a world-class
story, but it hints that the battle of jurisprudential values in Post's heart was
still raging as he put his first lawyer character to rest.

IV.

The year 1908 was triply significant in Post's creative life. It saw the
publication of the third and last Randolph Mason collection; of the twenty-fifth
and last Mason story, the never reprinted and never collected "The Marriage
Contract" (Pearson's, June 1908), in which Mason functions less as a lawyer and
more as a sort of universal uncle to young lovers in distress; and of the first of
more than two dozen tales he was to sell to America's premier popular fiction
magazine. That tale, "The Trivial Incident" (Saturday Evening Post, December
19, 1908), deals with a civil suit by an aggrieved black teenager against a small-
town banker, and in terms of racial enlightenment the story is decades ahead
of its time. At least two other non-series Post tales of roughly the same vintage
"The Locked Bag" (February 4, 1911) and "The Fairy Godmother" (Saturday
Evening Post, April 15, 1911) - are also of legal interest. These three and eight
other non-series stories from various magazines were published in book form,
with revisions and a framing structure to give them the superficial appearance

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of a novel, as The Nameless Thing (Appleton, 1912). By then Post had already
created another series character, his finest and most enduring contribution: the
immortal Uncle Abner.
     In most of the eighteen Abner stories Post published in the second
decade of this century, he sought to transcend human law altogether and to
focus on the divine law standing above man's puny structures of (in)justice.
The tales are set in the remote western area of Virginia around the middle of
the 1800s, before the Civil War split off that region into a separate state, and
their radiant center is Abner, a huge, bearded, grimly austere and supremely
righteous countryman who smites wrongdoers and mends destinies as if he were
a Biblical prophet magically transplanted to the New World. Through his
storylines, characterizations, narrative and dialogue, Post filled these tales with
a power and majesty echoing the language of the King James Bible, capturing
the essence of evangelical Protestantism and integrating it into detective fiction
with the same supreme skill that G. K. Chesterton at the same time was lavish-
ing upon his Father Brown stories in the service of rationalist Catholicism.
     The character of Uncle Abner was probably based on Ira Carper Post,
to whom Post dedicated Uncle Abner: Master of Mysteries when that collection
of the first eighteen stories in the series was published by Appleton in 1918:
"To MY FATHER whose unfailing faith in an ultimate justice behind the
moving of events has been to the writer a wonder and an inspiration." What
makes the dedication especially fitting is that most of these tales are permeated
by the theme that chance does not exist, that "[t]here was a purpose in every
moving of events" which is described interchangeably as providence or "the
justice of God." Post does not pretend that divine justice is synonymous either
with human justice or with the law as it stands but in several of the stories he
stresses that taking the law into one's own hands to achieve justice of either the
human or divine variety is a vain and foolish endeavor; that these things should
be left to the inscrutable providence that governs all.
     In the first few paragraphs of the first tale in which he appears, "The
Angel of the Lord" (Saturday Evening Post, June 3, 1911, as "The Broken
Stirrup-Leather"), Abner is described by the narrator, his young nephew Mar-
tin, as "one of those austere, deeply religious men who were the product of the
Reformation. He always carried a Bible in his pocket and he read it where he
pleased .... Abner belonged to the church militant, and his God was a war
lord." (41-42) In a later tale, "The Riddle" (Metropolitan Magazine, September
1912), Martin says of his uncle: "He was one of those austere, deeply religious
men who might have followed Cromwell, with a big iron frame, a grizzled
beard and features forged out by a smith. His god was the god of the Tishbite
[i.e. the Old Testament prophet Elijah], who numbered his followers by the

[194]

companies who drew the sword." (212) And in "The Straw Man" (original
magazine publication unknown) Abner is described as

a big, broad-shouldered, deep-chested Saxon, with all those marked
characteristics of a race living out of doors and hardened by wind and
sun. His powerful frame carried no ounce of surplus weight., It was
the frame of the empire builder on the frontier of the empire. The face
reminded one of Cromwell, the craggy features in repose seemed mold-
ed over iron, but the fine gray eyes had a calm serenity, like remote
spaces in the summer sky. The man's clothes were plain and somber.
And he gave one the impression of things big and vast. (227)

He is a landowner and cattle raiser and, though not trained as a lawyer, he
seems to have a vast fund of legal knowledge on which he draws as the occasion
demands. But the atmosphere of these stories is numinous, not legalistic, and
the aura surrounding Abner is not lawyerlike but thunderously prophetic If
we focus on the legal dimension of the tales about him, we risk losing sight of
what was most crucial for his creator, but focus on that dimension we must.
     "The Angel of the Lord," the first tale in the series, is one of several in
which Post aims to show the absence of chance and the presence of divine
purpose everywhere. The only point of legal significance is that Dix, the
evildoer who overtakes young Martin at a lonely Virginia inn and plans to kill
him during the night and steal the cattle sale money he is carrying for his
kinfolk, refers to his antagonist as "Lawyer Abner with his brief" and "Lawyer
Abner, with your neat little conclusions . . . ."(57)
     In the second Abner story, "The Wrong Hand" (Saturday Evening Post,
July 15, 1911), Post pits Abner against Gaul, a diabolical hunchback who has
cursed and rejected God because he was born deformed, and legal language
abounds in the Socratic colloquy between the two. "We do not have our
possessions in fee in this world, Gaul, but upon lease and for a certain term of
service. And when we make default in that service the lease abates and a new
man can take the title." (31) Abner personally drafts a deed covering Gaul's
land and forces the hunchback to convey the property to his dead brother
Enoch's son by proving that Gaul obtained the land by fratricide. The theme
of the right division of land among a dead man's successors will recur in several
later Abner stories.
     "The House of the Dead Man" (Saturday Evening Post, September 30,
1911) reprises the situation of the Randolph Mason story "The Sheriff of
Gullmore" and features yet another sheriff who has stolen tax revenues his
bondsmen are obliged to make good. The tale is permeated by divine provi-
dence but lacks any specific legal aspect.

[195]

The earliest Abner story of overpowering legal interest is "The Tenth
Commandment" (Saturday Evening Post, March 2, 1912). Post's figure of evil
in this story is at once a Holmesian "bad man," demanding his rights under the
law with no regard for morality, and a classic Shylock, suing to dispossess a
neighbor because of a technical defect in the other's deed until Abner, following
in the footsteps of Shakespeare's Portia, trumps the "bad man" with another
and stronger rule of law. The dialogue between these antagonists deserves to
be quoted at length.

     Abner: "You got this wedge of land on which your house is
built by a lawsuit, did you not?"
     Dillworth: "I did; but if men do not exercise ordinary care
they must suffer for that negligence."
     Abner: "Well, the little farmer who lived here on this wedge
suffered enough for his. When you dispossessed him he hanged himself
in his stable with a halter."
     Dillworth: "Abner, I have heard enough about that. I did not
take the man's life. I took what the law gave me . . .
     Abner: "It is the law, but is it justice, Dillworth?"
     Dillworth: "Abner, how shall we know what justice is unless
the law defines it?"
     Abner: "I think every man knows what it is."
     Dillworth: "And shall every man set up a standard of his own,
and disregard the standard that the law sets up? That would be the end
of justice."
     Abner: "It would be the beginning of justice, if every man
followed the standard that God gives him . . .
     Dillworth: You would saddle every man with the thing
you call a conscience, and let that ride him. Well, I would unsaddle
him from that. What is right? What is wrong? These are vexed ques-
tions. I would leave them to the law. Look what a burden is on every
man if he must decide the justice of every act as it comes up. Now the
law would lift that burden from his shoulders and I would let the law
bear it."
     Abner: "But under the law, the weak and the ignorant suffer
for their weakness and for their ignorance, and the shrewd and the
cunning profit by their shrewdness and by their cunning. How would
you help that? ......
     Dillworth: "But why should it be done? Does Nature do it?
Look with what indifference she kills off the weakling. Is there any
pity in her or any of your little soft concerns? I tell you these things
are not to be found anywhere in Nature - they are man-made."
     Abner: "Or God-made."

[196]

Dillworth: "Call it what you like, it will be equally fantastic,
and the law would be fantastic to follow after it. As for myself, Abner,
I would avoid these troublesome refinements. Since the law will under-
take to say what is right and what is wrong I shall leave her to say it
and let myself go free. What she requires me to give I shall give, and
what she permits me to take I shall take, and there shall be an end of
it." (160-164)

Post surprisingly gives Dillworth the last word in the Socratic dialogue, but
Abner of course prevails in the practical sense, tricking the proto-Darwinian
into signing over his lawsuit to Abner himself by promising to hand back
seven-eighths of what he recovers. As soon as the ink is dry on the paper, he
announces that he is dropping the suit and gleefully points out that he has kept
his promise to the letter since seven-eighths of nothing is nothing. This is one
of the most perfect twentieth-century adaptations of the core of The Merchant
of Venice and one of the finest of all the tales of Uncle Abner.
"The Devil's Tools" (original magazine publication unknown) introdu-
ces the series a new regular character, the pompous and grandiloquent Squire
Randolph. When some valuable emeralds are pried out of his daughter Betty's
heirloom necklace shortly before her wedding day, Randolph suspects Mammy
Liza, the proud old slave who's been in his family for generations, and conducts
a quasi-hearing into the theft. Abner intervenes and, while spied upon by
young Martin, discovers the truth and makes sure no one else will. "The
Riddle" (Metropolitan Magazine, September 1912) opens with Abner riding into
the county seat to appear before a grand jury, but there is no particular legal
interest in this tale of a murdered miser and the meaning of the taunting clue
to the location of his hidden gold that he left behind him: "Why don't you
look in the cow?"
The next two tales have no connection in terms of narrative but the-
matically they form a matched or rather a mismatched pair. "An Act of God"
(Metropolitan Magazine, December 1913) brings Abner and Martin to a county
fair, not for fun but on grim business, to expose a villainous deaf mute named
Blackford. Before they can do anything the scoundrel is "accidentally" stabbed
to death during a gypsy knife-thrower's performance. Squire Randolph pomp-
ously opines that the death should be categorized as, in the legal sense, an act
of God, but Abner knows better and confronts the gypsy that night. Even
though he can prove Blackford's death was murder, he has said nothing, he
explains, because he "feared that the justice of the law might contravene the
justice of God . . . ." (75) The gypsy agrees completely with Abner's view of
the situation. "Monsieur, I have done an act of justice, not as men do it, but
as the providence of God does it." (80)

[197]

     If that story seems an open invitation to take the law into one's own
hands, it is counterbalanced by "A Twilight Adventure" (Metropolitan Magazine,
April 1914), which is likely to remind today's readers of the classic anti-vigilan-
te Western novel and movie The Ox Bow Incident. On the trail, Abner and
Martin come upon some cattlemen who have transformed themselves into a
lynch mob and are about to hang two strangers they believe guilty of rustling
and murder. Abner listens to the flimsy circumstantial evidence against the
pair, twists it around so that it seems to prove the guilt of the mob's chief
instigator, then clears that man and gives the vigilantes an object lesson in the
need for due process of law.
     The most famous, most often reprinted, and by all odds the quintessen-
tial Abner story is "The Doomdorf Mystery" (Saturday Evening Post, July 18,
1914), in which Abner accompanies Squire Randolph, the local justice of the
peace, in investigating the death of a demonic farmer by a fowling piece hang-
ing on a wall in a totally sealed room. The tale is beautifully written and
superbly constructed, with a powerful climax built around Post's recurring
theme of the justice of God. But it lacks any special legal dimension, and so
do "The Hidden Law" (Metropolitan Magazine, August 1914) and "The Treasure
Hunter" (Saturday Evening Post, August 14, 1915), which come next in the
series.
     The legal element returns with a vengeance in "The Age of Miracles,"
which was a non-series story when it appeared in magazine form (Pictorial
Review, February 1916) but was revised for book publication with Abner and
Squire Randolph replacing the original protagonists. The reason why Post
originally kept this tale out of the Abner cycle is not far to seek: thematically
it is the same story as "The Tenth Commandment" only without the Socratic
colloquy. The rapacious brothers Adam and Benton Wolf have taken land
from its rightful owner through a technical defect in his deed, leaving their
victim dead and his daughter Julia homeless. "It was a proceeding at law,"
Randolph comments. "It was the law that did the thing, and we can not hold
the law in disrespect." Abner replies: "But the man who uses the law to
accomplish a wrong, we can so hold. He is an outlaw, as the highwayman and
the pirate are." (137) Now Adam has apparently shot himself in the face with
his own fowling-piece and lies in his coffin ready for the earth. With Randolph
in tow, Abner visits Benton Wolf and asks him to undo this wrong and convey
the land to Julia.

"The property is not yours. You got it by a legal trick, the judge who
heard you was bound by the technicalities of language. But you are
old, Wolf, and the next judge will go behind the record. He will be
hard to face. He has expressed Himself on these affairs. 'If the widow
and the orphan cry to me, I will surely hear their cry.' Sinister words,

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Wolff, for one who comes with a case like yours into the Court of Final
Equity." (150)

Without becoming philosophical like his forerunner Dillworth in "The Tenth
Commandment," Benton insists on his rights under the law and refuses to sign
- until Abner proves that Adam Wolf s death was not an accident but fnatri-
cide.
The only courtroom story in the Abner series, "Naboth's Vineyard"
(Illustrated Sunday Magazine, June 4, 1916), is also Post's classic exposition of
the meaning of the sovereignty of the people. Abner and young Martin are
attending the trial of a young farmhand for the murder of Elihu Marsh. The
young woman who kept house for the dead man stands up in court and con-
fesses to the crime herself but Judge Simon Kilrail refuses to direct a verdict for
the defendant. After an enigmatic late-night conversation between the judge
and Abner, the trial resumes next morning. Abner stands up in court and
unaccountably demands that Kilrail step down from the bench. The judge
holds Abner in contempt. "You threaten me," Abner intones, "but God
Almighty threatens you." Then, turning to the courtroom spectators, he
proclaims: "The authority of the law is in the hands of the electors of this
county. Will they stand up?" Then "[s]lowly, in silence, and without passion,
as though they were in a church of God, men began to get up in the court-
room." Squire Randolph, then Martin's father, then various tradesmen, then
a Catholic priest and two Protestant circuit riders, and finally old Nathaniel
Davisson, a real-world great-granduncle of Post, "a just man, and honorable and
unafraid." As Martin sums up the scene: "I saw that law and order and all the
structure that civilization had builded up, rested on the sense of justice that
certain men carried in their breasts . . . ." (334-336) When Post says "men" he
means it literally - no women included, nor Jews nor black men either, which
is precisely how things stood in the Virginia of the 1850s - but the scene
makes it clear that Post is trying to be as inclusive as the facts of history per-
mit. The sheriff refuses Kilrail's order to arrest Abner for contempt. "I would
obey the representative of the law," he says, "if I were not in the presence of
the law itself!" (337) At this point Abner accuses Judge Kilrail of the murder
of Elihu Marsh, and Nathaniel Davisson forces the judge to remain in the
courtroom and listen while Abner sets forth the incriminating evidence. Kilrail
then withdraws into his chambers and shoots himself. As recently as 1987
Post's surprise denouement, albeit without the overlay of political philosophy,
was borrowed by Hollywood for the courtroom thriller "Suspect."
"The Adopted Daughter" (Red Book, June 1916) pits Abner against yet
another prototype of the Holmesian "bad man" demanding his legal rights, the
disputed property this time being a young octoroon woman whom Sheppard
Flornoy had bought but never formally adopted nor legally emancipated.

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Upon Sheppard's sudden death, his dissolute brother Vespatian claims the
woman. "[Sheppard's] adopted daughter - sentimentally, perhaps! Perhapsl
But legally a piece of property, I think, descending to his heirs...." (305) As
in "The Age of Miracles" Abner defeats the evildoer's legal claim by proving
that he murdered his brother.
     "The Straw Man" (magazine publication unknown) takes place on a
court day and its plot depends on the law of succession, with Abner exposing
an attorney who, with a remainder interest in certain land subject to two life
estates, has murdered the one life tenant and framed the other. Thematically,
however, there is minimal legal dimension to the tale.
     Three of the eighteen stories collected in Uncle Abner seem not to have
been published in magazines before appearing in the book. "The Edge of the
Shadow" takes place shortly before the Civil War and portrays Abner as the
classic man in the middle, between a maniacal abolitionist on the one side and,
on the other, a diabolical slaveholder who anachronistically spouts Nietzschean
atheism. Abner argues that the country's only chance to avert a hellish conflict
is to enforce rigidly both the rights of due process and the concept of equality
before the law. If there is little here to interest legally oriented readers, "The
Mystery of Chance" and "The Concealed Path" offer even less as Abner twice
again teaches the lesson that what seems to be chance is really the working of
providence.
     Uncle Abner: Master of Mysteries, published in 1918, stayed in print for
at least twenty years and was praised to the rooftops by American critics for
generations.¹⁶ But the jurisprudential aspects of the Abner stories have largely
gone unnoticed, and most of the interest in these tales has been limited to
students of the crime-detective genre. As I hope I have demonstrated, they
deserve no less attention from those whose concern is the development of
American fiction on the subjects of law, lawyering and justice.
     Between 1910 and 1925 Post published dozens of short stories about
other series characters and additional dozens of nonfiction pieces, many on legal
topics, in the Saturday Evening Post, Hearst's Magazine, Pictorial Review, Coll-
ier's, McCall's, Red Book and elsewhere. Most of the nonfiction is still buried
in microfilm copies of the Saturday Evening Post but most of the short stories
were collected, sometimes with revisions to shoehorn them into series format,
in volumes like The Mystery at the Blue Villa (1919), The Sleuth of St James's
Square (1920), Monsieur Jonquelle, Prefect of Police of Paris (1923) and
Walker of the Secret Service (1924), all issued by D. Appleton & Co., the publish-
erof the Abner collection. Little of this work has weathered the years well, and none
of it deals with legal themes.

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Post's life after Uncle Abner was a slow descent into stillness. Near the
end of 1919, thirteen years after the death of his infant son, pneumonia killed
his wife. That same year Arthur Train began publishing his Mr.'Tutt stories
in the Post, and the creator of Randolph Mason and Uncle Abner quickly lost
his pre-eminence as America's foremost teller of tales about the law. Post's
beloved father, the inspiration for Abner, died in September 1923 at the age of
81. Melville hunkered dawn in his palatial West Virginia home, The Chalet,
about twelve miles from Clarksburg, and hugged solitude like a security blan-
ket. Visitors were welcome only when his flag was hoisted to the top of its
pole. He drank more than was good for him. He hunted small game, played
polo, occasionally invited neighbors for horseback sports and a picnic lunch.
One of those neighbors, a young woman named Agnes Smith Parrish, set down
her impressions of him almost half a century later.

As a person, Melville was, to put it bluntly, a darling. Quirky, not like
other people; thin, but moving slowly and deliberately; given to long
observant silences, often broken by memorable comments or amusing
anecdotes. After dinner ... he moved from chair to chair, and once
explained that it was a sign of approaching old age always to sit in the
same chair. I didn't realize it then, but whatever his age he must have
been, while I knew him, a very lonely man.¹⁷

In 1924 he roused himself long enough to conduct a vigorous campaign
for John W. Davis, a fellow attorney who was that year's Democratic candidate
for the presidency. Davis lost to Calvin Coolidge by a huge margin but re-
mained permanently grateful for Post's support and showed his gratitude thirty
years later when he was asked to select a law-related short story for an antholo-
gy and chose "The Corpus Delicti." Post, he wrote in his brief introduction,
was "an old friend of my West Virginia days - a friend who sometimes bor-
rowed my law books to do research for his magnificent lawyer stories."¹⁸But
by the middle 1920s Post's literary output of all types had slowed to a trickle,
and just after Christmas 1926 he drafted his will, naming his two nieces as
principal life beneficiaries of his estate.
In the following two years he revived Uncle Abner in four final stories
published in Country Gentleman: "The Devil's Track" July 1927), "The God
of the Hills" (September 1927), "The Dark Night" (November 1927) and the
double-length "The Mystery at Hillhouse" (May and June 1928). The first and
third of these have no legal dimension at all, while the thematic material in the
second and fourth comes straight out of much earlier Abner stories. In "The
God of the Hills" Abner visits Judge Bensen on cattle-buying business only to
find that the jurist has been clubbed to death the night before and that Squire

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Randolph is conducting an investigation. Bensen had been about to hand down
his decision in the matter of Caleb Greyhouse who, shortly before his unex-
pected death, had added a holographic codicil to his will, disinheriting his
daughter for falling in love with a family enemy and devising his property to
his conniving brother Barnes Greyhouse. Abner searches the judge's library,
finds an old Virginia case (with no citation provided) ruling that a holographic
codicil is invalid if appended to a non-holographic will, and pins Bensen's
murder on the evil brother. In the first installment of "The Mystery at Hill-
house" Post recycles the anti-lynching storyline of "A Twilight Adventure" all
but verbatim as Abner stymies a vigilante mob in pursuit of a stranger suspect-
ed of old Webster Patterson's murder by showing that the circumstantial
evidence makes the mob leader look more guilty than the suspect. In the
second installment Squire Randolph holds a quasi-formal inquest into Patter-
son's death and suspicion is spread equally among four men until Abner offers
a solution reminiscent of "The Doomdorf Mystery." With this overblown and
feeble rehash the Abner cycle limps to its end.

VI.

By then Post had already launched his final series of stories, a group of
fourteen published in American Magazine and, with one exception, collected in
book form as The Silent Witness (Farrar & Rinehart, 1930). The protagonist of
these tales is Colonel Braxton, who, like Abner, dwells in western Virginia in
the years just before the Civil War but, unlike Abner, is a lawyer.

He was a big man, with a face expressionless as a mask, except when he
wished to contort it with a stamp of vigor. His black hair was brushed
sleek, an immaculate white handkerchief, tucked into his collar, covered
the white bosom of his shirt to protect it from the ash of the cigar that
was always present, even in the courtroom. (118-119)

Braxton's oratorical style and philosophy are very close to Abner's but, perhaps
precisely because his law practice roots him more firmly in the workaday
world, he seems less impressive a figure. In at least two of the fourteen stories
he presents himself as literally on divine missions, assigned to a case, so to
speak, by the highest Court of all. As in the Abner series, the main theme is
metaphysical - that chance is an illusion and God's justice and providence the
omnipresent reality - and the criminological secondary theme is the character-
ization of circumstantial evidence as a silent witness that always tells the truth
and can never be made to lie. Our concern of course is with the stories' legal
dimension.
In "The Forgotten Witness" (American Magazine, September 1926;
collected in The Silent Witness as "The Cross-Examination") Braxton defends a

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petty criminal against the charge that he locked the county sheriff in the closet
of his house and stole the tax money the sheriff had collected. The appearance
of the closet door, which Braxton arranges to be brought into court, demolishes
the Sheriff's testimony and frees the framed client.
     "The Survivor" (American Magazine, October 1926) introduces into the
series Dabney Mason, clerk of the circuit court, a foppish but honorable and
courageous functionary who serves as a sort of Squire Randolph figure in some
of the Braxton stories. More important, this tale shows how far Post had
moved from his youthful social Darwinism. Old Peregrin Monroe had written
a will leaving his vast estate to whichever of his two nephews outlives the
other, a disposition that all but forces them into fighting a pistol duel to deter-
mine who is fittest to survive and prosper. "It would lead to my estate descend-
ing to the better man .... It will be as these newfangled scientists affirm -
a survival of the fittest!" (74) Under Monroe's will, if the nephews should die
at the same time, his estate "shall go to found a negro colony in Massachusetts."
(73) The duel indeed leaves both men dead, and Braxton, representing a beauti-
ful distant relative of the younger nephew, tries to overcome the legal presump-
tion of simultaneous death and prevent the money from being used on a "fool
errand into Massachusetts . . . ." (77)
     "The Invisible Client" (American Magazine, December 1926) opens with
the statement that Braxton "used to say that he practiced in two jurisdictions:
the courts of Virginia, and God's court." (48) In this case he sees himself before
the latter. Wealthy Junius Hagan was shot to death in his home the night
before he was to sign a will that would turn his mansion into an orphanage,
and his wicked nephew David Grier takes the property by intestate succession.
Braxton unaccountably feels "a direction to himself ... to go forward .... on
faith, as under sealed orders." (56-57) He drafts a deed conveying the mansion
to the orphanage and reserving to Grier a life estate, forces Grier to sign it by
prorving he killed his uncle, and settles back to await the justice of God, which
causes Grier to die in a train wreck within the month.
     "The Heir at Law" (American Magazine, February 1927) is another
intestacy story, but without a murder or a deus ex machina. Braxton's adver-
sary this time is Caleb Lurty, who is about to take the estate of his dead broth-
er Marshall by intestate succession, to the exclusion of Marshall's illegitimate
daughter. The discussion of injustice in the law of succession sounds almost
feminist today.

Braxton: "Upon what theory of justice, Mr. Lurty, could such
a law be founded? In what manner is our paternal ancestor of greater
value to us, that a child's estate should go to the father, while the
mother who brought him into the world takes nothing?"
Lurty: "Upon the theory, sir, that the man made the fortune."

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Braxton: "Upon the theory, rather, that the man made the
laws! " (144)

Braxton saves the day by discovering a will in favor of the daughter that Mar-
shall had signed before his death and Caleb had found and hidden.
     "The Leading Case" (American Magazine, June 1927) is one of only two
Braxton stories that is told by a functioning first-person narrator, a youth
similar to Martin in the Abner cycle. The case which brings the nameless boy,
his father and everyone for miles around into court has to do with a legal
element we have seen in Post stories several times before, a defect in a deed to
property bought at a tax sale. When the property turns out to be rich in coal,
a certain Ebenezer Ponsford shows up with a warranty deed to the land, appar-
ently signed by Patrick Henry, governor of Virginia, back in 1786, and sues to
eject the apparent owner, whose lawyer of course is Colonel Braxton. As in
the Abner story "Naboth's Vineyard," Post describes "the people as the source
of justice, as they were the source of authority in a republic." (264) But even
though popular sentiment is unanimously against Ponsford, Post surprisingly
gives equal time to the view that the law's the law regardless of justice. "If good
men from worthy motives broke the law down in one instance, evil men in
another instance, from unworthy motives, would also break it down. And so
there would be no principles established, and no clear-laid rules by which men
could be guided in the conduct of their affairs." (265) Braxton cuts the Gordian
knot of law vs. fairness by proving Ponsford's deed a forgery.
     In "Colonel Braxton Chooses a Client" (American Magazine, April 1928;
collected in The Silent Witness as "The Guardian"), Braxton is asked to represent
Ridgewood Carter, brother and legatee of the late Martha Carter, whose will
left everything to Ridgewood except some priceless old plate which she be-
queathed to her impoverished niece Sarah Carrington. The plate has been
stolen from the Carter house, apparently by thieves coming in from the Ohio
River, and Ridgewood wants Braxton to draft a deed under which he will give
Sarah title to the house and she'll give him title to the plate. Braxton, having
concluded that Ridgewood himself stole the plate, insists on adding a technical
clause to the deed that will ruin his own client's scheme. How can he possibly
justify this breach of lawyerly ethics? Because his true client in the matter, he
insists, was not Ridgewood but "The Guardian of the Fatherless" (115), God
Himself!
     "Colonel Braxton Hears the Silent Voices" (American Magazine, Septem-
ber 1928; collected in The Silent Witness as "The Mute Voices") is another pure
evidence story. Fairfield Harris, who is in love with Julia Monroe, is charged
with having shot to death the wealthy and despicable Duncan Cruger on the
evening of the day Cruger had forced Julia into marriage. Braxton as defense
counsel turns a trail of blood drops into a Not Guilty verdict.

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     One of the most fascinating of all the Braxton stories is "The Vanished
Man", American Magazine, February 1929). Without a client, Braxton becomes
involved in the mysterious disappearance of old Captain Berkley, the life tenant
of certain valuale land bordering the Ohio River, and with the captain's
companion, a proud and compassionate black man known as Horton, who is
determined to maintain the property as Berkley's steward during the seven
years before there will be a legal presumption of death. Complicating the
situation is Pittsburgh lawyer Evert Brewster, who has been retained to oust the
black man in possible. "The man was within the technical ethics of his profes-
sion," Post remarks. "But human affairs were on a larger plane. There was
always a moral right under every legal right if the latter ought to stand. And
as the0 moral right was, so would the legal right be also. There could be no
justice in the absence of a moral right." (212) When Braxton discovers what
happened to Captain Berkley and why Horton will not depart from the land,
he agrees to keep his knowledge to himself. "For I have learned one thing -
one thing in a long experience of life - I have learned to keep silent and to
stand aside when the inscrutable Providence of God is moving to the adjust-
ment of some troubled matter in the affairs of men!" (233)
     "The Mark on the Window" (American Magazine, April 1929) is yet
another evidence story. At the end of his long career, Judge Benton Woods is
shot to death with a deer rifle while standing on the courthouse balcony and
trying to calm down some gun-toting settlers who are protesting the inundation
of their homes and fields by riverboats. Braxton, appointed as a special judge
to take Woods' place and find his murderer, uses a primitive form of ballistics
to do it.
     In "The Dead Man's Shoes" (American Magazine, June 1929) Braxton
and the court clerk Dabney Mason go out to visit vicious Benedict Brant, who
has succeeded to a huge estate after the death of his older brother Maynard in
an apparent boating accident. Benedict plans and has the clear legal right to
turn his house by the Ohio into "a place of revel for the river boats - that
foothold for the devil that this law-abiding community of Virginia was so
determined to bar out." (34) First Braxton tries to persuade Brant not to
exercise his rights under the law, lest he have "the eternal forces of God to
reckon with." Brant replies: "I don't care a curse for the eternal forces of God
My brother is dead; I take the property by inheritance, and I shall do as
I please with it . . . . 11 (39) As both Braxton and Abner had done in earlier
stories, the good lawyer once again prevails by proving that the "bad man"
came into his property rights by murdering his brother.
     "The Mystery at the Mill" (American Magazine, August 1929) is the
only Braxton story that was not collected in The Silent Witness. According to
Post's biographer, Braxton "solves a cruel murder and then observes what seems

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to be the avenging agency of God settling the misdeed ..."¹⁹ There is no
indication of any legal dimension to the tale.
     "The Guilty Man" (American Magazine, September 1929) is yet another
evidence story, this time with Braxton in the unaccustomed role of prosecutor
before the grand jury whose members are considering whether to indict the
fugitive Richard Pickney for the murder of his uncle. Braxton uses a bloody
handprint on a window blind to pin the crime on the dead man's other neph-
ew.
     "The Witness in the Metal Box" (American Magazine, November 1929;
coIlected in The Silent Witness as "The Metal Box") is the second and last
Braxton story with a genuine first-person narrator, a young boy whose grandfa-
ther brings him to court. The grandfather, we learn, is the son of none other
than Daniel Davisson, Post's own great-great-grandfather, which means that the
young narrator must be either Post's great-grandfather or at least a great-grand-
uncle. What brings the old man and the boy to court is a will contest. Brax-
ton represents the daughter of the late Alexander Harrington, who apparently
left a holographic will disinheriting the woman and devising his vast estate to
his brother Blackmer Harrington. Blackmer plans to use the estate "to seize
some islands in the West Indies and add them to the Republic . . . . Once
seized, the American Government would annex the territory, and by that much
the Republic would be advanced on its manifest destiny." (14-15) Even though
Judge Lewis knows that a decision in Blackmer's favor will drag the United
States into another imperialist war, he seems to have no choice but to hold the
will valid - until Braxton opens the circular metal box of the title and uses its
contents to prove the will a forgery.
      The last story in the cycle, indeed the last tale Post ever wrote and the
only one he didn't live to see in print, is "The White Patch" (American Maga-
zine, September 1930). Braxton visits the ruthless politician Bushrod Johnson,
who has won a ruinous $20,000 libel suit against a newspaper publisher named
Culpepper, and asks him not to levy on his judgment, so that the land Cul-
pepper had received under the will of his late wife and devised in his own will
to her daughter by a previous marriage will go to the young woman as intend-
ed. Johnson refuses to take less than his full legal entitlement and rejects
Braxton's appeal to religion as garbage. Braxton then reveals that he has just
discovered Culpepper's dead body and that Johnson will never collect a penny
on his judgment since under Virginia law "personal actions pending in the
courts - like slander, like libel - abate at the death of the parties. They are
wiped out by death, as though they had never existed." (310) It is hard to
accept that this rule would nullify a judgment handed down before the party's
death, and Braxton gives us no citation. Is it possible that Post's creative life
ended with a patent mistake of law?

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VII.

Post's stories near the end of the decade were not only thematically
repetitios but few and far between. A mere three (including the two-part last
appearance of Uncle Abner and a pair of Braxtons) came out in 1928, another
six (all of the Braxtons) in 1929, and just one, the final Braxton, in 1930. On
June 23 of that year, twelve days after a serious fall from his favorite polo
pony, Melville Davisson Post died in the Clarksburg hospital at age 61. He was
laid to rest in the Elkview Masonic Cemetery between his wife and his infant
son. A large marble slab across his grave is incised with a statement of his
credo.

The universe toils in some tremendous purpose. Be not disheartened
because the understanding of that purpose is denied you .... Reflect,
that over aeons, over light years, over ages inconceivably extended, the
energies of God, patient and unwearied, have been shaping the design
of every earth creature out of the germ of life, and what could you
have seen - at any point of that interminable way - in your brief
flash of human consciousness, but the rise and fall of tides, the progres-
sions of the seasons, and no change. Go forward with a high face. The
mysterious energies of God labor to some divine perfection.²⁰

Clearly what is evoked on Post's tombstone is not the God of Abra-
ham, Isaac and Jacob, of Elijah and Abner but rather an impersonal creative
force of the sort that William James called "a stream of ideal tendency embed-
ded in the eternal structure of the world."²¹ How Post's final credo squares
with the Biblical perspective that permeated his tales of Uncle Abner and
Colonel Braxton remains a mystery. Had he kept his deepest convictions to
himself and built his fictional world around religious beliefs more acceptable to
the Saturday Evening Post? In his last years could he have gone beyond Chris-
tianity and into a philosophic faith, and might this explain why he wrote so
little near the end? Whoever tries to connect Post's fiction with his ultimate
testament must also account for why his tombstone contains not a word about
the forces that had dominated his stories from the beginning: law and justice.
I leave these tasks to his next biographer if any.
Post has been dead well over sixty years now, but his influence has
never died and, in the sense that amoral lawyer characters dominate the land-
scape of contemporary fiction and film, that influence is stronger than ever
today. His first book, The Strange Schemes of Randolph Mason, was reprinted
in hardcover in 1972. The first and most radical of his early Randolph Mason
stories, "The Corpus Delicti," has been included over the decades in a number
of anthologies.²² S.S. Van Dine, the first American detective novelist to reach
the bestseller lists, clearly alluded to the climax of Post's story during aesthete-

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amateur detective Philo Vance's discourse on law, reason and common sense:
"[A] court often acquits a prisoner, realizing full well that he is guilty. Many
a judge has said, in effect, to a culprit: 'I know, and the jury knows, that you
committed the crime, but in view of the legally admissible evidence, I declare
you innocent. Go and sin again."²³ What made "The Corpus Delicti" so
powerful - the lawyer's ability and willingness to advise a client how to
commit a cold-blooded murder, admit the deed in open court and walk away
free - was developed by Erle Stanley Gardner, with clear acknowledgment of
his source, into the centerpiece of The Bigger They Come (1939), first of the long
series of novels he wrote under the byline of A.A. Fair about disbarred attor-
ney turned private eye Donald Lam. More recently the crime novelist Law-
rence Block has published several stories dealing with New York lawyer Martin
Ehrengraf, whose philosophy and style of practice make Randolph Mason look
like a saint. In "The Ehrengraf Method" (Ellery Queen's Mystery Magazine,
February 1978) he arranges for the release of a wealthy young man who is a
serial killer of women by the simple ploy of committing a murder himself with
the same technique while his client is in jail, and in "The Ehrengraf Presump-
tion" (Ellery Queen's Mystery Magazine, May 1978) he gets Client A off on a
murder charge by framing B for the crime, then takes on B as a client and gets
him off in turn by framing C. Block has no legal training and his protagonist
serves clients not by taking advantage of glitches in the system but by breaking
the law in whatever way will work. The chasm that divides Ehrengraf from
Randolph Mason is as good a measure as any of how far the legal profession is
presently held in contempt.
Fortunately Mason is not Post's only character that has survived. The
1918 collection Uncle Abner, Master,of Mysteries remained in print for at least
two decades and was reissued in paperback as recently as 1975, while two years
later the entire cycle of 22 Abner stories, rearranged in the order of their
apparent composition, was published by a university press with a host of
scholarly apparatus but no special emphasis on the stories' legal themes.²⁴
Indeed the Abner series has been carried on in our own time, though again
without appreciable legal dimension, by John F. Suter in a cycle of fourteen
new tales published in Ellery Queen's Mystery Magazine between 1980 and 1986.
No less a figure than William Faulkner made use of certain elements of the
Abner and the Colonel Braxton stories in short works like "Smoke" (1932),²⁵
"Tomorrow", (1940) and "An Error in Chemistry" (1946) - all collected in
Knight's Gambit (1949) - and in his 1948 novel Intruder in the Dust.²⁶ These
Yoknapatawpha County chronicles center on lawyer Gavin Stevens, who
despite his mild manner and cosmopolitan tolerance bears a certain cousinly
resemblance to the attorney characters in the later stories of Post. Much of the
fiction with Gavin as protagonist is presented from the viewpoint of his teen-
age nephew Chick Mallison, whether or not the boy is physically present, just

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as the Uncle Abner tales are usually seen from the perspective, whether or not
he is physically present, of Abner's young nephew Martin. Faulkner's convo-
luted prose of course is light years removed from the austere iimplicity that
Post learned from the King James Bible and adapted to his own purposes, but
some of the central concerns in Post's stories, ranging from the proper descent
of land the nature of justice, figure just as prominently in Faulkner's.
What matters most, however, for those of us who come to Melville
Davisson Post with a background and interest in law is not his impact on other
writers but the duel of jurisprudence that was fought in his fiction and appar-
ently in his mind and heart. The conflict begins in the early Randolph Mason
stories (1896-97), where the legal philosophy is rigidly social Darwinian but
with occasional moral infusions at odds, with the dog-eat-dogma. By the time
of The Man of Last Resort's final tales, Darwinism has been challenged and
then rejected on moral grounds. In the later Randolph Mason stories (1906-07)
the lawyer still claims to be an amoral technician but usually operates as a sort
of Portia figure, using legal technicalities to defeat victimizers armed with
different technicalities, although Mason's moral basis, unlike Portia's, is reso-
lutely secular and rooted in common human decency. The Uncle Abner series
(1911-18) transforms social Darwinism into the quintessence of evil, but the
righteous protagonist is no longer a lawyer. Despite the Merchant of Venice
overtones in a few early tales like "The Tenth Commandment," the tendency
is to eschew the legal order entirely as of no account from the protagonist's
stern religious perspective. In the Colonel Braxton stories (1926-30) social
Darwinism is still the philosophy of godless Shylocks, and the viewpoint
character has become a blend of good lawyer and thundering prophet: an
uncomfortable blend in tales like "The Guardian" where it's suggested that an
attorney should betray his client if he hears the voice of God telling him to do
it. In thirty-five years of creative life Post traveled the long road from one end
of the religious-jurisprudential spectrum to its opposite, with all too infrequent
stops in the sensible secular middle ground. But the conflicting currents of legal
thought that animate some of his best stories are what makes them of continu-
ing interest to students of law in literature today.

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ENDNOTES

1. See Brook Thomas, Cross Examination of Law and Literature: Cooper; Hawthorne,
Stowe, and Melville (Cambridge University Press, 1987).

2. Oliver Wendell Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457
(1897). Holmes first presented this essay on January 8, 1897 as a speech at the dedication of a
new building at Boston University School of Law.

3. Id. at 459.

4.. Id. at 459.

5. All citations to Post's stories are integrated into the text as page references. In each case
the reference is to the first edition of the particular Post story collection being discussed. Details
as to the original magazine appearance of each Post story, where known, are also integrated into
the text.

6. See Charles A. Norton, Melville Davisson Post. Man of Many Mysteries (Bowling Green
University Popular Press, 1973). All biographical information about Post in the present article
is taken from this work.

7. Theodore Dreiser, Newspaper Days, ed., T.D. Nostwich (University of Pennsylvania
Press, 1991), 490-491. This work was first published in 1920.

8. See Francis M. Nevins, Bar-20. The Life of Clarence E. Mulford, Creator of Hopalong
Cassidy (McFarland & Co., 1993).

9. In a subsequent article I hope to establish the development of Train's jurisprudence in
the long-running Mr. Tutt series from early social Darwinism through several other stances, none
of them rooted in religion as was the later work of Post.

10. It may seem incredible that someone born in 1889 could have been profoundly influ-
enced by the social Darwinism of the 1890s, but Gardner's biographer has documented that while
in fourth grade the future creator of Perry Mason wrote a school composition on the Greek
myth of Atalanta, stressing the theme that whoever does not win the race dies. See Dorothy B.
Hughes, Erle Stanley Gardner. The Case of the Real Perry Mason (Morrow, 1978), 35-36.

11. 18 N.Y. 179 (1858).

12. See Irwin v. Williar, 110 US. 499 (1884).

13. 111 Fed. 369 (D.N.D., 1901).

14. More precisely, the court held that one who passes counterfeit Confederate money,
clearly labeled as such, could not be prosecuted for counterfeiting. One wonders what idiots
would be in the market for such worthless paper 35 years after the end of the Civil War.

15. 41 W. Va. .559, 23 S.E. 664 (1895).

16. "All of these stories are masterly examples of the justifiable surprise ending, yet have
the logic and dramatic power which we have come to associate with Athenian tragedy." Edward
J. O'Brien, The Best Sbort Stories of 1918 (Small Maynard, 1919), 360. "In conception, execution,
device and general literary quality these stories of early Virginia, written by a man who thorough-
ly knows his metier and is also an expert in law and criminology, are among the very best we
possess." Willard Huntington Wright, Introduction, The Great Detective Stories (Scribners, 1927),
23-24. "No reader can call himself connoisseur who does not know Uncle Abner forward and
backward." Howard Haycraft, Murder for Pleasure: The Life and Times of the Detective Story
(Appleton-Century, 1941), 97. The Abner collection is second only to Poe's Tales among all the
books of detective short stories written by American authors" Ellery Queen (Frederic Dannay),
Queen's Quorum (Little Brown, 1951), 68. Outside the United States, however, the critical
estimation differs. According to one eminent commentator, *the attraction the [Abner] stories
have for Americans simply does not exist for others. To English readers, Abner is likely to seem
a distant and implausible figure." Julian Symons, Mortal Consequences.- A History firom the
Detective Story to the Crime Novel (Harper & Row, 1972), 85.

17. Charles A. Norton, supra note 6, 228.

18. John W. Davis, Introduction to "The Corpus Dehcti," in Fiction Goes to Court, ed.,
Albert P Blaustein (Henry Holt, 1954), 2.

19. Charles A. Norton, supra note 6, 228.

20. Id at 62.

21. Willliam James, The Varieties of Religious Experience (Harvard University Press, 1985),
401. This work was first published in 1902.

22. Anthologies that include this story range from Albert P. Blaustein's Fiction Goes to
Court, supra note 18, , to Elizabeth Villiers Gemmette's Law in Literature: Legal Themes in Short
Stories (Praeger, 1992), which also includes Post's "The Animus Furandi.".

23. S.S. Van Dine, The "Canary" Murder Case (Scribners, 1927), 11. Van Dine was the
pseudonym of art critic Willard Huntington Wright (1887-1939). See John Loughery, Alias S.S.
Van Dine: The Man Who Created Philo Vance (Scribners, 1992).

24. Melville Davisson Post, The Complete Uncle Abner (University of California/San Diego
Extension, 1977).

25. No Faulkner specialist seems to have noticed that the plot of "Smoke* is a collage of
elements from the Colonel Braxton stories "The Mark on the Window," "The Guilty Man" and
"The Witness in the Metal Box" and the late Uncle Abner stories "The Devil's Track," 'The God
of the Hills" and the "The Mystery at Hillhouse." A full account of how Faulkner wove together
pieces of these six tales into his own fabric must be saved for another occasion.

26. Post's influence on Faulkner is usually overlooked by Faulkner scholars. For one
notable exception, see ee Michael Grimwood, Heart in Conflict: Faulkner's Struggles witb
Vocation (University of Georgia Press, 1987), 195-200.

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