In my observations on the licence of the press in the early pages of this book, it may be seen that I have had in view personal, and not political stricture. The difference of these I cannot so well express as in the words of the greatest orator in the knowledge of history, Curran of Ireland. I quote him to give myself an opportunity of saying how much I admire him. It is on Finertys trial for a libel, that the following correct sentiments are beautifully expressed.
Having stated to you gentlemen, the great and exclusive extent of your jurisdiction, I shall beg leave to suggest to you a distinction that will strike you at first sight; and that is the distinction between public animadversions upon the character of private individuals and those which are written upon measures of government, and the persons who conduct them; the former may be called personal, and the latter political publications. No two things can be more different in their nature, nor, in the point of view in which the are to be looked on by a jury. The criminality of a merely personal libel, consists in this, that it tends to a breach of the peace; it tends to all the vindictive paroxisms of exasperated vanity; or to the deeper and more deadly vengeance of irritated pride.--The truth is, few men see at once that they cannot be hurt so much as they think by the mere battery of a news-paper. They do not reflect, that every character has a natural station, from which it cannot be raised by the bawlings of a news-hawker. If it is wantonly aspersed, it is but for a season, and that a short one, WHEN IT EMERGES LIKE THE MOON FROM BEHIND A PASSING CLOUD TO ITS ORIGINAL BRIGHTNESS. It is right, however, that the law and that you, should hold the strictest hand over this kind of public animadversion that forces humility and innocence from their retreat into the glare of public view. --That wounds and sacrifices; that destroys the cordiality and peace of domestic life; and, that, without eradicating a single vice or a single folly, plants a thousand thorns in the human heart.
It will not give universal satisfaction to have introduced the name of Porcupine, or Calender. For though no man can respect these characters; yet, consciousness of having once favored them from other motives, will touch the self-love of some, as it will be said the one is dead; and the other run away; and it was not worth while, or perhaps liberal, to make use of their names even in a dramatic way; or as a character in a fable. As to Porcupine, it was said at the time, that though occasionally coarse in his language, and gross in his reflections, yet such a spirit and stile of writing, was necessary to counteract the excess of democratic principles; that in fact, it did good. I doubt upon that head; or rather to the best of my judgment, it did harm to the cause which it was thought to serve. Indignation is insensibly transferred from the advocate to the cause.
It has been said, in the british Parliament, that "He deserved a statue of gold for his services rendered here." This is a great mistake. He did injury to thje character of British manners and liberality. It produced something like a personal resentment against the whole nation whence such a writer came. An intemperate partizan in public or in private life, can never serve any cause.
But it was not with a view to pourtray this spectre of scurrility that the name is introduced; but because it suited to the counterpart, Pole-cat. I had thought of Peter Panther; but Porcupine could be drawn from real life, and was at hand.
I will not say, that before Porcupine came and since, there has not been a portion of scurrility in some gazettes, unworthy of the press. There has been too much; but I believe the example and the fate of this monster, and his successor Calender, has greatly contributed to reform the abuse. It is a check upon an editor, to be threatened, not with a prosecution, but to be called a Porcupine, or a Calender.
It will be natural for a reader to apply in his own mind, the history of the Village and its agitations, to the state where we live; and it will be asked, what ground is there for the idea, that here we talk of pulling down Churches; or burning Colleges. There is no ground, so far as respects Churches; but it is introduced by way of illustration. What if any one should say, Let us have no books, and no doctrines, but the Ten Commandments, the Lords prayer, and the Apostles Creed? Give us the gospel in a narrow compass, and have no more preaching about it. This would be no more than is said of the law; why cannot we have it in a pocket-book, and let every man be his own lawyer? Our Acts of Assembly fill several Folio Volumes; and yet these are not the one thousanth part of our Law. Why not, at least, put the Acts of Assembly in a nut shell? Ask our Legislators. What else law have we but the acts of the legislative body? The law of nations forms a part of the municipal law of this state. This law is of great extent, and to be collected from many books. The common law, before the revolution, made a part of our law; and by an act of our legislature of the 28th January, 1777, it is recognized and established to be a part of our law, and such statute laws of England as have heretofore been in force. This law must be collected from commentaries, and decisions. It is of an immense extent. Because the relations of men, and the contracts of parties, are of an infinite variety. But how is Turkey governed? Do the Muffti require such a multiplicity of rules? No, nor the Cadi in Persia; because having no law, they are a law unto themselves. There is no jury there. It must be a profession, a business of study to understand our law: we cannot therefore burn the books of law, or court-houses, any more than we can dispense with sermons and commentaries on the Bible; or pull down religious edifices.
I will not say, that people talk of burning colleges; but they do not talk much of building them up. The constitution provides, Art. 7. That the legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the state, in such a manner that the poor may be taught gratis.
Sec. 11. The arts and sciences shall be promoted in one or more seminaries of learning. We do not hear of much exertion on this head; either in the legislative body, or out of doors. But what is more exceptionable; or at least unfortunate, in the opinion of literary men, and perhaps in the opinion of some that have the misfortune not to be learned, is that learning does not seem to be in repute universally. The surest means in some places, as is said, to make your way to a public function, is to declaim against learning. It would be a libel on the body politic, if a state could be the subject of a libel, to say, or to insinuate that this is general. But it is heard in some places. I do not know that it is carried so far that a candidate for an office will affect not to be able to write, but make his mark; but it is not far from it; for he will take care to have it known, that he is no scholar; that he has had no dealings with the devil in this way; that he has kept himself all his life, thank God, free from the black art of letters; that he has nothing but the plain light of nature to go by, and therefore cannot be a rogue; that as for learned men that have sold themselves to the devil, they may go to their purchaser; he will have nothing to do with Old Nick or his agents. This is not just the language used; but it is the spirit of it. It may be a caricatura, as we distort the features to mark deformity more deformed. But the picture is not without some original of this drawing. To speak figuratively, as we say of fevers, it may be in low grounds, and about marshes, that we have the indisposition; that is, in the secluded parts of the country. But so it is that it does exist.
It is true, the savages of our frontier country, and elsewhere dispense with the use of letters; and at a treaty, Canajohalas and other chiefs make their marks. They are able counsellors, and bloody warriors, notwithstanding. The Little Turtle defeated general St. Clair, who is a man of genius, and literary education; and yet the Little Turtle can neither read nor write, any more than a wild Turkey; or a water Terapin. But let it be considered, that the deliberations of the council-house, at the Miami Towns, embrace but simple objects; and a man may throw a tomhawk, that holds a pen, but very awkwardly. So that there is nothing to be infered from this, candidly speaking. I grant, that Charlemagne, made his mark, by diping his hand in ink, and placing it upon the parchment. It was his hand, no doubt; but it must have taken up a large portion of the vellum; and it would have saved expence, if he could have signed himself, in a smaller character. But what may pass, in an illiterate age, with an emperor, will not be so well received in a more enlightened period, and in the case of a common person.
It is not the want of learning that I consider as a defect; but the contempt of it. A man of strong mind may do without it; but he ought not to undervalue the assistance of it, in those who have but moderate parts to depend upon. It is a bad lesson to young people; who had better take a lesson from their books. At any rate, it is good to have the thing mixed; here a scholar and there an illiterate person; that the honesty of the one may correct the craft of the other.
How comes it that a lawyer in this state seems to be considered as a limb of Satan? There is a great prejudice against them. It would seem to me that it is carried to an extreme. an advertisement appeared some years ago in a Philadelphia news-paper of a Ship just arrived with indented servants; Tradesmen of all descriptions; Carpenters, Joiners, and Sawyers. The error of the press had made it Lawyers. it gave a general alarm, for the people thought we had enough of them in this country already.
But if we have lawyers at all; it is certainly an advantage to have them well educated. Were it for nothing else but the credit of the thing, I should like to see an enlightened, and liberal bar in a country. It is thought that learning makes them make long speeches. If that should be make appear; I bar learning; for I like brevity: with Shakespeare, I think it the soul of wit.
I attribute the making long speeches, to the taking long notes. When everything is taken down, every thing must be answered, though it is not worth the answering. This draws replies long into the night; and we labour under the disadvantage of not having wool-sacks to sleep upon as they have in England, while the counsel are fatiguing themselves; or at least the juries.
The prejudice against lawyers stands upon the ground with the prejudice against learning. The majority are not lawyers, or learned men. A justice of the peace is a deadly foe to a lawyer; for what the one loses, the other gets. The chancery jurisdiction of a justice is hewn out of the jurisdiction of the courts of law, and abridges the province of the lawyer. It is well if it does not edge out the trial by jury. How? This mode of trial is retained by the courts of law. But who are at the bottom of this hostility to the courts of law. I will not say the holy army of justices; though some may break a spear at it. I believe there are of them, that think their jurisdiction is sufficiently encreased: but there are others who would not object to a little more.
In China there are no courts of law or lawyers; all justices of the peace. They call them Mandarins. In capital cases, there is an appeal to the emperor. There is no jury trial there.
A limb of the law, is a good name for a lawyer; for we say a limb of Satan; and a lawyer in a free country is the next thing to it: a thorn in the flesh to buffet the people. There is freedom enough in the constitution; why need we be afraid of aristocracy in practice? Every man is brought up to the bull-ring in a court of law, be he rich or poor; but the sheriff, in Arabia, who is a justice of the peace; not like our sheriff here, though it is spelt the same, nearly, can summons no jury; at least he takes care not to do it. But the governments of those countries, are arbitrary, not free. It is an astonishing thing to me, that a free government, and the exclusion of lawyers, cannot well be reconciled.
How can the overthrow of a judiciary tribunal, affect liberty? No otherwise than as it militates against a branch of the government. Take away a branch from a tree, and the shade is reduced. What is a branch that is borne down by the rest? But suppose the judiciary branch goes; the legislative and executive remain. There are two sprigs to the legislative branch. Which is strongest? That of the house of representatives. Is there no danger of this outgrowing the other two? There is half a sprig in the executive. But the great sprig of the house of representatives is the rod of Aaron that will swallow up the other rods. There is talk now of abolishing the senate. That will be talked of, unless it becomes an en-registering office. It is hoped that will never be. In this I allude not to any disposition that has yet shewn itself in the house of representatives; but to what I have heard broached out of doors.
Despotism is not a self-born thing. It has its origin in first causes. These not perceptible, like the gass that produces the yellow fever. Why call out against the fever? It is the gass that is the cause. Whence sprung the emperor that now affects the French? From the mountain of the national assembly. It is the madness of the people that makes emperors. They are not always aware when they are planting serpents teeth. Reflecting men saw the emperor, in the insurrections of Paris; in the revolutionary tribunals; in the dominancy of the clubs; in the deportations to Cayenne. Whether it springs from the seed, or grows from the plant; is oviparous, or viviparous, despotism is not of a day; it is of gradual increase. Will not the people give him credit that can point out to men, where a germ of it exists.
In what is hinted at, in several pages of the preceding chapter, of hostility to laws and a disposition to overthrow establishments, and judges, I have in view, not the proceedings of a public body, but the prejudices of the people. It is talk out of doors that I respect. And this is the fountain which is to be corrected. Representatives must yield to the prejudices of their constituents even contrary to their own judgment. It is therefore into this pool that I cast my salt. It is to correct these waters that I write this book. I have been in the legislature myself, and I know how a member must yield to clamours at home. For it comes within the spirit of the principle, to obey instructions.
In the song which I have put into the mouth of Clonmel, I have nothing else in view but to give a picture of the excess of the spirit of reform. It is taken from the life; for though not in verse, yet I have heard similar sentiments expressed by the uninformed.
The talk of abolishing the courts, and the judges, is a language which I put into the mouth of Tom the Tinker; yet is more general than is imagined. I am afraid it may affect ultimately the democratic interest; to which I feel myself attached; for I aver myself to be a democrat. No Perkin Warbeck, or Lambert Simnel; but a genuine Plantagenet. Hence my concern for their honor and existence, which can alone be supported by their wisdom and their justice.
Judges are impeached, and violent persons will have them broke before they are tried. But accusation and condemnation are not the same thing. It is not on every bill that is found by a grand jury that there is not a defence.
There is nothing to be collected from any hints of mine that I arraign the justice or policy of the impeachment; much less, that I wish to see it quashed, or withdrawn. I have it only in view to arraign preconceived opinions, and the forestalling the public judgment.
Sublime is that tribunal that is to judge judges. The highest judicature of the body politic. It presents an awful, but majestic spectacle. Our senators, in this capacity are the representatives of heaven. I see them seated on a mount fast by the throne of God; the stream of justice issuing at their right hand; full and equal in its current; crystal in its fountains, and giving vegetation to the groves and gardens on its borders: The stream of injustice at their left, bursting like a torrent of inflamed naptha, scorching and consuming all before it.
It lies with this sublime court to give its lessons of impartial justice to the subordinate judiciaries. I rejoice in this power of the constitution. I shall submit to its decisions.
CONCLUSION OF THIS VOLUME
It occurs to me, that I shall have all the lawyers on my back; because I have said to them, as was said to the Pharisees, Use not vain repetitions as the heathens do: for they think they shall be heard for their much speaking. By the bye the heathen with us, that is the savages of North America, are not long speakers. They call it a talk, it is true; but it is raised above a common conversation. And they are not tedious speakers; short, clear and pithy, are the characteristics of their eloquence.
The heathen--are the Gentile nations here meant, that bordered on Judea? or does it refer to the redundance of the Greek and Roman eloquence? The loquacious Greek was proverbial. When a language becomes copious, the speakers become verbose.
But the lawyers will say, how can we help it? we are not our own masters, we are bought with a price. The client will have talk for his money. He purchases his plantation by the acre; he sells his wheat by the bushel; or if a shopkeeper in the city, he measures tape by the yard. Omnia deus dedit, says the Latin scholar, Numero, mensura, et pondere. He will have quantity, let what will go with the quality. For of that he is not a judge.
I admit it is difficult to get a man to understand that the cause is oftentimes won, with judgment, and silence like the game of chess. All depends upon the move. A client will say, you ought to refund me something; or take less than I promised. You had no trouble. Or he will go away, and say, lawyer McGonnicle took twenty dollars of me, and did not say a word.
He was six hours on his feet, says a man coming from the court. This sounds well, and it looks as if the man was a great lawyer. So that self-preservation is at the bottom of long speaking. Or is it in accommodation to false opinion.
I admit something in all this. An advocate will occasionally find himself under the necessity of saying more than is necessary, in order to save appearances, and to satisfy his client who is not like the court and jury, weary of the harangue. But this is not the great cause of prolixity. It has a deeper root; it is a false stile of eloquence that has been introduced, and is become fashionable. I have asked chief justice Shippen, if he could recollect and trace, the origin and progress of it. Is it imported, or of domestic origin? He thinks it was introduced by John Dickinson, who was an agreeable, but a lengthy speaker. At nisi prius or at the bar in England, there was no such thing. But whether there is or not; is of no account. The thing ought not to be. Because it will lead to the loss of the jury trial.
A lawyer must say every thing that his ingenuity can suggest on the subject. The strongest reasons are not sufficient; he must bring up the weaker. After throwing bombs, he must cast jackstones.
There is more sense in the common mind than is imagined; and close thought in strong words will be understood, and a few will suffice.
The bar of this state is said to excel in legal knowledge; but certainly is behind none in liberality of practice; and delicacy in argument. In practice, no catches, or as the common people call it, snap judgments; lying in wait at the docket; making surreptitious entries, and giving trouble to get slips right. This the meanest lawyer can do. A rat can [gnaw] the bow-string of Philoctetes. The drawback in the opinion of foreigners, and the feelings of the people here, is the length of speeches.
I will not say that hence arises wholly the prejudice against lawyers. A prejudice against the liberal professions, exists in all countries; or they are made the subjects of invective from the occasional abuse of their privileges. Woe unto you lawyers, is a scripture expression, and applies to the priests among the Jews who were the interpreters of the law of Moses. The physicians of all countries are said to kill people. And as to advocates they get no quarter in any country. Wits will exclaim even without ill will. Don Quevedo, a Spanish writer, in his vision of hell, tells us, that he observed a couple of men, lying on their backs asleep in a corner, with the cobwebs grown across their mouths. He was told these were porters, and had been employed in carrying in lawyers, but there had been no occasion for their services, for a century past, these cattle had come so fast of themselves, that the carriers had laid themselves up, in the interval of business, to take a nap there.
As to the length of speaking, how can it be helped in advocates? Not by any act of the legislature, constitutionally, at least in criminal cases; for it is provided by the constitution that in criminal cases, the party shall be heard by himself and his counsel. but this provision was not meant to exclude the right in civil cases, which existed at the common law; but because in capital cases, in the courts of criminal jurisdiction in England, counsel was not allowed to the accused, except on law points, arising on the trial. In civil cases the legislature may change the law or modify it; but I am not able to say, what regulation by an act of the legislature might be expedient; or what practicable by the courts themselves. The safest and most easy remedy would be in the bar themselves: cultivating a stile of eloquence of greater brevity, and endeavouring to be more laconic in their speeches.
They are not aware that this length of speaking has become insufferable. That resentment against the bar on that account, has been accumulating, and is now ready to overwhelm their existence. It is a great cause of that obloquy against the proceedings of the courts of justice, which is heard in this state. Delay is the effect; and delay is an obstruction of justice.
But delay is the cause of loss to the lawyer. It is a vulgar idea, but founded in mistake, that lawyers delay causes for the sake of fees. It is their interest to have speedy trials, as much as with merchants to have quick returns. It is the interest of the advocates that I endeavour to promote, in suggesting a reform in the length of pleadings. I am endeavouring, in the scouted language of some reasoners, to save the lawyers from themselves. It is on this principle that I attempt to school them a little on the point of oratory at the bar.
Some one will say, that I but affect to treat them thus cavalierly. That is like the case of an Indian in a skirmish, of which I have heard, on the west of the Ohio, who on his party being defeated, pursued one of his own people, with his tomhack lifted up, ready to strike, and was mistaken for a volunteer. In the heat of the affair seeing him alert, and pursuing, they thought the one before him was in good hands, and they let them both escape.
To apply the story. It may be thought that I affect to school the profession, to save it from arbitration laws, in the spirit of what has been called the adjustment bill. I am not one of those with whom it has been clear, that the adjustment bill passed into a law, would do any injury to lawyers. It might winnow off some of the chaff, but better corn would come to the mill. I have no idea that anything can hurt the profession, but the overthrow of liberty. Council is to advise, and an advocate to speak, will be always wanted where the laws govern and not men. Rules of property and contract in civil cases, and the principles of law in matters of life, liberty, and reputation, will always call for the assistance of the head, and the powers of speech, in a republic.
My concern in the case of innovations, doubtless meant for improvements, has been that the experiment would not shew wisdom in the framers; but, on the contrary, discredit the administration by which they had been introduced; or, if tolerated, and approved, would lead to aristocracy, and despotism in the end. This by gradations insensible, as opiates unnerve the constitution. It would take a volume to trace gradatim, how, and why this would be brought about; and after all it may be a spectre of the imagination. Let the wise determine. Were I a practising lawyer, as probably I may soon be, I should apprehend little from it on the score of profit, and loss to the profession. My idea is, that eighteen months would put an end to it, and it would, by that time have sowed a pretty fruitful field of controversy, that would last as many years. As to the constitution, it seems to be in vain to talk to the people about it, when it is the way of what they wish, and must have.
But hinting as has been done with regard to the exuberance of oratory at the bar, it is to be taken subject to the exception of cases which cannot be considered in a few words; either where the facts are complicated, and the evidence extensive; or where a point of law embraces an extensive scope of argument. The elucidation in some cases, must be drawn from the law of nature; the law of nations; the municipal law. Statutes, commentaries and decisions must be examined at full length.
It is not half a day, or a day, that will suffice always, to do justice to a question. The court themselves will stand in need of the careful preparation, and the minute investigation of the council. The bringing forward lucidly, and arguing a matter well, is a great help to a court. It is doing for them, what they would have to do for themselves, without their assistance.--The labour of the counsel is the ease of the court. Many a midnight thought is expended by the laborious lawyer, of which the court feels the benefit, in the light which he throws upon the subject of the litigation. It is the
----Rudis indigestaque moles,
of the unprepared that wastes the most time.
It is the highest effort of a strong mind to condense. Having taken a comprehensive view of the whole horizon of the subject, the man of talents collects the principles that govern and illustrate the case. To state and press these, is the effort of the great orator. To reduce to generals, and bring forward the result.
But in order to speak short upon any subject--think long. Much reflection is the secret of all that is excellent in oratory. No man that speaks just enough, and no more, ever wearies those that hear him. And that is enough which exhausts the subject, before the patience of the auditory.
There is such a thing as alarming the patience. A speaker branches out his subject. It is all proper that this should be done in his own mind. It is necessary that he should have a system of argument, and a certain order of arrangement. But I do not approve of an explanation of this. I remember the alarm which I have felt listening to a speaker in the pulpit, when he has spread out the table of his doctrine into heads and sections. When he had done with the first, that is well, thought I. But then, there is the second head; will he be as long upon that? Now if he had said, This point of doctrine arises from the text, I would have heard it out without fore-casting in my mind that the ulterior divisions were to come yet. It is not in the language of nature to have such compartments. It is well enough in a book of didactic dissertation. For there one can lay down the volume, and amuse himself otherwise when he is weary. The Indian in his talk has an order in his mind, and pursues it by the wampum belt, as the Catholic says his prayer by his beads. It is not the secret of persuasion, which does not steal upon the heart; and whatever the effect in matters of the judgment, may be the annunciation of method; it is unfavourable to all that interests the heart, and governs the imagination. You will see no such thing in Demosthenes or Curran. Cicero has something of it, but I always thought it a blemish. Ars est celare artem.
There is no such thing in the works of nature. Artificial gardens sometimes present that view, but these are not in the best taste.
The hills and mountains, vales, and extensive plains are dispersed with a beautiful variety. The stars of the heavens are not at marked distances. There is a concealed regularity, order and proportion in all that affects. The mind remains cold where there is nothing that surprises and comes unexpectedly upon it."