126
The Green Bag
And the incident does not end here. "The Upas Tree" had been published but a few weeks when the Governor of New York pardoned Patrick, in igno rance of the coincidence he was com pleting — an act having special inter est for any lawyer who will follow the events of the book beyond the book itself. The pardon came a little over twelve years after Patrick's alleged crime, and the alleged murder took place a little over twelve years after my companion plot was on paper. Another incident is less dramatic, but only a little less singular. Four or five years ago, while the manuscript was still being polished in the evenings and on Sundays, the daytime being prohibited in recognition of the warning of that old saying that "the law is a jealous mis tress," a book appeared written by a colored man, detailing the woes of his race, under the title, "In the Shadow." At that time the title selected for my book was "In the Shadows," which, under the conditions, I felt constrained to abandon. It adds to the flavor of the circumstance that I have for years been connected with organizations for the benefit of the negro, like many another son of abolition parents. I soon chose the present name for the novel, and a year or two later in check ing up on the poison referred to in the book, digitalin, I was startled to stumble on the fact that digitalin and the toxin of the upas tree are of the same family of poisons. Later, when my publisher was putting out the work, he advertised it in the Publisher's Weekly and in the same number another "Upas Tree" (by Mrs. Barclay) was likewise advertised — and each advertisement took up a full page. My book was already printed and imme diately appeared, the other being pub lished later. I had no redress, as there
is, of course, no copyright on the title of a book. Meanwhile an old book of the same name, out of print, with danc ing as its subject, had been discovered; and still another, more recent, in Eng land, Mrs. Barclay's home, a contra band book on immorality. My pub lisher, in despair, telephoned: "The woods arc full of upas trees." To complete the incident it is neces sary to go back a few months to a time when I was hesitating about the par ticular publisher to whom I should sub mit the manuscript. I wrote a letter to an Eastern firm mentioning the subjectmatter, without stating the title of the book, but the negotiations went no further. This was the firm that even tually published the other "Upas Tree!" A minor incident has its special appeal. The suggestion was made to me to re turn to the old custom of placing quota tions at the head of the chapters. I readily adopted the hint because it seemed that quotations would tend to lighten somewhat the serious text and would tend to give some literary cast to a first venture. To do this well under all the circumstances proved to be an immense labor, particularly in searching original sources. Nowhere could be found, however, any reference to the upas tree itself. But after months of desultory search I happened upon the long desired treasure, part of a nature poem by Erasmus Darwin, which was promptly put on the title-page and which the publisher quite as promptly rejected, for it contained the word death, and in the rules of practice of iterary courts you are non-suited if such a word appears on the title-page of a novel. It so happens that one of the few boon companions of a lifetime, who is bound to mc with hooks of steel, has occasion to make use of a nom de plume and for many years he has used the name Eras
