Chapter 2

The Captain being obliged to leave the village, was now about to renew his travels; not, as heretofore, on a voluntary excursion, but in the capacity of an exile. He was accompanied as usual, by the bog-trotter; and with several others of the village who were willing to share his fortunes in some new establishment. Amongst these were the blind lawyer and fiddler; Clonmel the ballad singer; the Latin schoolmaster; O’Fin, an Irishman; Tom the Tinker, and others; the Captain mounted: the rest on foot. A blind mare, with a pack-saddle, served to carry their provisions. This was the whole caravan which was about to set out for the new settlement.

After two days traveling, they came to a town, where judges and lawyers continued yet to be tolerated. Nevertheless a judge, just before, had been driven from the bench, owing to a fracas that had happened on the bench itself, with a brother judge, and which took its rise from a difference relative to idiom, and dialect of language. The one was a Scotch gentleman, and spoke with the Saxon pronunciation; which is still that of the north of England, and the south of Scotland. The other was a native of France, and had acquired the English language after his arrival in this country, some years before. The Scotch judge found fault with the gallicisms of his French associate, and said he did na’ like the accent, and that it was an error to bring it on the bench. That it did na’ behoove (the French judge) to open his mouth to give a charge, especially to a grand jury, wi’ sic’ a dialec’ upon his gab. The French judge seemed to think that his gallicisms were as good as the other’s patois, or scoticisms; and observed that the French language had a footing in the courts, and was even the language of the law itself, at a very early period. A great part of the law of the tenure of real property, came from the Normans, who were French; that England became almost a French country under William the conqueror; that the terms de la loi, or law phrases, are vestiges of French to this day. C'est sui que use: in pleadings, ne unque accouple en loyal matremonie; antre fouis acquit, tout tems prit, and many others. Are there any vestiges of broad Scotch in the law books?

Aye, quo’ the Scotch judge, the law was Saxon before it was French, and it is time that it should come back to the Saxon again. Ye sha’ na’ deliver a charge on this bench, unless ye adap’ your language to the state of society and speak plain English, or Saxon; for they are a’ the same thing; and ha’ the same privilege in a’ courts of justice.

The French judge began to address the jury; when the Scotch judge interrupted, and called a constable to take him down frae the bench.

The French judge being a choleric man, laid hold of him by the waist-band of the breeches, and the nape of the neck, and whirled him with a contortion of the body from the seat of justice, amongst the lawyers of the bar. His body having a rotary motion, and his legs diverging like the spokes of a wheel, his heels flew round, and one of them hit the clerk on the nose, and a barrister above the brow; and caused great disturbance, to the fear and terror of the suitors, and other good citizens of the commonwealth. The result was, that the Scotch judge had to leave the bench altogether, and go to the bar. The French judge in the mean time had been sent to Congress. Hence it was, that a vacancy existed in the place of judge; or rather two vacancies; but the main difficulty was to get a chief justice; or president. The Captain made mention of the blind lawyer, whom he had in company; but they were unwilling to have a blind man. They wished to have a perfect judge; or one at least in possession of all his outward senses. He then proposed the bog-trotter; stating that he had been in request for that promotion, before they had set out from the midland country.

The offer was accepted, and Teague was made a judge, and took his seat upon the bench.

The Captain had determined with himself, that he would oppose the advancement of the Teague O’Regan no more, having got so much ill-will by it. Nevertheless, he thought it not amiss to put him under the care of the blind lawyer, or for some time to give him instructions for the office, which at least could do him no harm, if it did no good. Accordingly, the lawyer took him in tow, and began, as follows.

Teague, said he, you are arrived to honour and emolument, which some of your betters have deserved, and could not obtain. However, “time and chance happeneth to all men.” You are now on the seat of justice; and it remains for you, if possible, to qualify yourself for it. For I take it, you are yet to begin to obtain the requisites for the discharge of that trust. Now I have no idea that you can acquire legal knowledge. That is out of the question. Nor do I think it possible that you can ever attain the first elements of jurisprudence. But this is not absolutely necessary upon the bench, more than at the bar. I have known a judge upon a bench, whom I would not trust with the value of a hob nail, in a case of mine. It would be a substitute for sense if you could cite cases. But you have not even cases to cite, and call authorities. You must therefore begin a peg lower, and content yourself with the saving appearances, merely personal. Your gait must be steady; your demeanour slow; gravity is a great cover for stupidity; stupidity indeed supplies the place, and in most cases, gives gravity. But still it is to be cultivated. You must wear spectacles, to make people think you can read. If you do not take notes; yet seem to take them; for it is the fashion of the time, to be a great note taker. At least talk of your notes; that will pass for taking them. The Areopagi took no notes; for they sat in the night, and had no candle light. And justice herself is said to be blind, and can take no notes. But note taking is now the main part of the qualification of a judge; so that if you do not take notes, you must seem to take them. I myself, had I been appointed a judge, would have had to scratch a little. My fiddler might have been a good assistant to me for note taking, had he not been blind too; for having the use of his elbow on the fiddle, he could scratch notes with great rapidity, could he write; but that he could not do, nor read either. So that I should have been as much at a loss as you in this particular. But it would not be impossible for you, as you have your eye sight, to learn to write Abracadabra, Tantarara, and pass them for notes. However, if you cannot acquire all excellencies, you can avoid some defects. You can give attention, and seem to understand what is said in argument, though, it be impossible that you should understand a syllable. It is a great indelicacy in a gentleman to refuse his ear, or to shew himself inattentive in private conversation. But in a judge it is intolerable, when you are to decide upon a point which is argued with much earnestness at the bar, and where the counsel expect at least that you will hear them, even if you should not decide in their favour. For when they are heard, and are satisfied that they are understood, they are disposed to be content. But it is an error of which I hope you will not be capable, to interrupt the argument by matters of your own concern. As for instance, when an advocate is at the pinching point of his reasoning, to call out for the crier to bring you something. You will see the advocate in such a case, turn and writhe himself, and shew, in his countenance, the irritation that he feels. But he is obliged to resume his oratory, and go on, saying your honour, and he would rather say, “cannot you take the advantage of a pause to call for what you want.” It is mentioned of Lord Camden, that he was in all respects, the most correct of men in his treatment of the bar, save that he would sometimes, in the middle of an argument, stoop down to garter up his stockings.

It is dangerous in a judge to attempt wit, especially if he has none. There are few that have the talent; and it is not every one that knows that he has it not. It will be your best way to attempt nothing of the kind; but preserve gravity, and an imposing air of austerity. For as far as I can learn from the Captain, you are not happy at a bon mot.

But you must be careful of your mind itself, that it be not rendered vain by being called your honour. If the bar discover that you are weak on this head, they will plaister you with “your honour; your honour and your honour.” They will be careful also to say, the “learned judge,” and this the more unlearned they think you are. And especially when they mean to impose upon you sophism for argument, and false construction for solid deduction, and conclusion. The “learned judge upon the bench;” when at the same time they will be at a loss to say, whether they think you or the bench you sit upon, the most destitute of sense and understanding.

A man that has been behind the scene knows the vanity of all this, and how much must pass for nothing of all that apparent deference which is paid to the understanding of a judge. For the counsel of delicacy, and refined manners, will pay this respect to the office, on a principle of good breeding, and what becomes the profession; others will do the same thing, and, perhaps overdo it, from motives of prudence, and to gain a point with the court. There is trick in all trades, and there is craft, in the craft, if I may use a pun on this occasion.

But you have never been behind the scene; and have no experience of this play upon travellers; and managing the weaknesses of man. You are but a young judge, and likely to be lifted up with vanity, from your sudden elevation. Because you sit a little higher than the bar, and the suitors; for the bench is usually raised a little, you associate your situation with yourself; thence comes arrogance, and insult.

“Man, vain man, drest in a little brief authority.”

But it will be necessary that you maintain order, and support authority; because otherwise, the bar will become a bear garden, and intolerable to the practitioner. Rudeness must be repressed, and petulance overawed. Interruption and bluster cannot be endured. Rules of priority as to the right of motion, and order of speaking, must be enforced. In questioning, or cross questioning a witness, the modest and observant advocate must be permitted to proceed without disturbance. All these things, your own good sense, if you have any sense, good, or bad, must teach you to consider, and apply.

By my showl, said the bog-trotter, but I will take de poker to dem, and give dem over de nose wid a shilelah, if dey make any spaches out of deir turn, in my hearing. It were better for dem dey were diging turf in Laugh-Swilly. Dey shall interrupt no good paple in my presence.

That will not do, said the blind Lawyer; you must call a constable; and commit for misbehaviour. It will be descending from your dignity to take a cow-skin, or cudgel in your hand; nor does the law warrant it. “All things must be done decently, and in order.” You can lay your hands upon no man yourself. It must be by your officers, that you execute the laws. The sheriff is at hand, the coroner with his rod; or the constable with his staff. These are the ministers of the law in your hands to keep the peace. You can act only by warrant of authority, or what is called a precept.

The bog-trotter thought it hard, that he could not take a staff from the constable, and preserve the peace himself. But he was disposed to submit to the restriction since it seemed to be the practice of the court. He enquired, however, whether it might not be allowable to take a batabuoy to de officer, or sharvant of de court, if he did his duty slowly, so as to break de patience of de lawyers, and, be waiting for him.

As to this, the Lawyer gave him the proper information, and here “endeth the first lesson.”


Observations

It may seem to shock all credibility, that Teague should have a seat upon the bench.

Ficta voluptatis causa, sint proxima veris..

This is a maxim of the critic, and founded in the principles of human nature. For a just taste does not relish what is incredible. But why should it be thought incredible, that Teague should be a judge? Or why distrust his capacity since he had a commission? On the death of attorney Noy, the author of the maxims, we have the following anecdote. Dining with the Chancellor, it was lamented by some, that such a loss had happened: what will the king do for an Attorney General?

When the company were gone, said the valet to the Chancellor: why need you be at a loss for an Attorney General? I will be Attorney General.

You Attorney General! Are you fit for an Attorney General?

Let the king give me a commission, said the valet, and I will see who will dare to say, that I am not fit for it.

There is certainly a great deal in a commission, and the possession of power. I was early struck with this, in seeing the respect paid to the opinion of a man made a justice of the peace, when none had been paid before; and yet the commission had but very little increased his law knowledge; or, in fact, had left it just where it was; some degrees below zero.

It may be thought, that I mean to undervalue in a judge, the faculty of taking notes. On this head I will explain myself. Certain it is, that the taking notes, detracts from the exercise of memory; but much more from the exercise of understanding. The mind is divided, and the act of putting upon paper, detracts something from the operation of puting in the head. The mechanical and intellectual are at variance, and in some degree, however imperceptible, destroy each other. The revolution, and composition of forces, produce a line in a diagonal direction. It is impossible that the man who writes, can more than half think. All those relations and combinations of ideas that present themselves, and are managed by him at his ease when he gives his whole mind, are lost in part, or have not justice done them, when they are to be recovered, and adjusted from the partial hints that can, in the mean time, be thrown upon paper. A note taker, and a thinker, on the bench might be of use. The thinker to look over the notes, and assist himself afterwards. The note taker not to think at all; but to mind his pen. At the bar, it was my way, to take in a writer where I had the command of the cause; but it was understood between us, that he was to confine himself to his province for the time being, and neither speak, nor think.

In the history of ancient oratory, tribunitial, or judicial, do we meet with any thing on note taking? In Cicero de Oratore, have we any thing? Has Quintilian a chapter on the subject? No man can be an orator that dissipates his mind with taking notes. It is a qualification at the bar, or on the bench, extremely subordinate.

Nevertheless, I do not mean to exclude it altogether. A skeleton of the cause must be preserved, for the sake of a reserved point, a motion for a new trial; or in arrest of judgment. It is that full body of evidence, to which I object. If it is in paper, it wastes the time of the country to copy, and if oral, it turns the judge into a mechanic to take down. It is not necessary for the purposes of justice, to have all that comes out in a cause put upon paper. There is seldom more than a single particular in the testimony of a witness that affects the cause. It is the height of ability to select and take this down. The late chief justice, the governor, had this talent. I have heard the present Chief Justice speak of it with admiration. The present Chief Justice (Shippen) himself possesses it in a high degree. Perhaps hits the medium perfectly.

It is in the case of jury trial, that my exception chiefly lies to length of note taking, when the examination of a witness is delayed until the judge, or the counsel takes down; and the mind of the judge carried off from the hearing of the evidence, is not so well prepared to give his charge, which ought to consist of the resulting points of the controversy, and not a suming up of the evidence, for that is supposed to have been done by the counsel, or by the jury in their own minds. But a man that is writing all the time the council are speaking, can but half think. But these strictures must be taken “with a grain of salt;” and it is not to be supposed that I would dispense with note taking altogether in the case, especially of the presiding judge. On a motion for new trial, some detail of the case is necessary for those who have not tried the cause.

On an argument upon a law point, where the decision is not immediately to be made, and the notes are taken for the purpose of examination of the books, it is immaterial of what length, because the counsel are not stopped by the impediment of clerk-ship.

After all, as I am not in the habit of taking notes much myself, and do not like it, and resting a great deal upon felicity of memory, the result of trusting to it, I thought it well enough to argue my own cause, and to see what could be said on behalf of my own way, in this particular, whether it be a defect, or an excellence.

I had forgot to mention, in its proper place, that though the people objected to the taking the blind lawyer for a judge, yet they agreed that he might be a clerk, and associate the blind fiddler for his deputy. This arrangement being made, the Captain was disembarrassed of this part of the trumpery he had with him, and which encumbered the caravan.