Chapter 9

Observations

Whence does the uncertainty of law arise? Let us trace it. There is the letter of the law. Litera scripta manet; “What is written lasts.” But there is the spirit, that is the construction of laws. This depends upon the mind of the construer; and two men may not in some cases construe alike.

There is again the application of the rule to the case; And it is the mind that must apply. The history of these constructions and applications are found in what are called reports. But this history, like other histories, is not always the truth. No two judges or two lawyers will agree precisely in their statements of the same decision. Some particulars, omitted or added, makes the difference. Yet these are helps to establish the decision.

What is it that can correct the construction or the application as it was originally made, or as it appears in the report?-Reason. It was this at first make the construction, or the application. Hence the maxim, “that nothing which is against reason can be law.”

When the usage and custom which makes unwritten law, like the laws of a game at school, are in the memory of men, and the application of them to the case, depends upon two minds, it is morally, but not physically certain, but the application will be the same. But in all these cases, both of usage and custom, or of written law, there is a higher degree of certainty than where there are no positive institutions, or rules at all. Which is most likely to establish certainty in the transmission of usage and custom, or construction of statutes, the occasional application of the law, by arbitrators, who have little knowledge of positive institutions, or tribunals in which records of legal proceedings are preserved, and men are employed who have devoted their lives to the study, and to the perfect knowledge of which they do not find a life sufficient?

Visionary men, like Rousseau, and Godwin, have seldom more in view than to support paradoxes. The ability is shown by the novelty or extravagance of the proposition. Godwin, in his Political Justice, with great brilliancy, supports the idea of deciding every case on its own peculiar circumstances, according to the notions of equity, which lie in the breast of the judge. This is what is done in Constantinople. But it is to avoid this that laws are enacted, and means used to procure uniformity of construction, and application in a free country. The object is to produce certainty.

The imperfection of human judgment produces uncertainty. This must be greater in proportion as there is no buoy to steer by; but a great difficulty arises, in the administration of the laws, to guard the consciences of men. Which is most likely to secure this? Tribunals open; and it is a principle of our law, that the courts shall be open; and shall be held at known times and places. Can arbitrations have this requisite? It is a principle of jury trial, that the jurors who are to try a particular cause, cannot be known until they go upon it; and after hearing they are to be kept together without speaking to any one until they are agreed. There is not that opportunity for labouring a jury that arbitration presents.

At the same time I am not one of those who frown upon arbitrations; or think those unworthy citizens who meditate or inculcate the idea of what has been called an adjustment bill. I profess myself a reformist; and with regard to others who attempt reforms, I am not ready to cry out, “they that have turned the world upside down have come hither also.” I have been for letting the experiment be made. I know the consequence that it will soon be laid aside. Perhaps something might be retained of it that may be found wise. But the difficulty of geting men together, that act not immediately under a compulsory process, and thus keeping them from being tampered with; independent of arbitrary notions of right or wrong, and unassisted reasonings, will be found to be such, that men who in the sincerity and benevolence of patriotism, have called for the system in the extent contemplated, will be the first to recede, and acknowledge that there is a difference between what is rational in theory and practical amongst men.

No one can have a greater contempt of pedantry, and opposition to reform in principle, or practice, than I have. A professional man thinks himself learned, because he is technical and knows the terms of his art, as a workman his tools; but has become shackled in forms and a slave to precedents, and has no horizon of original thought and comprehension. He cannot recur to the correctress, reason, or to experiment, the source of improvement amongst men.

At this particular time there is a fermentation of the public mind with regard to the administration of justice. I have no fear for liberty, provided the form of the government is left untouched; for a generous constitution will soon give warning of the malady, and on an error in reform a fever will ensue, and demand to be expelled. The wounding or destroying a principle of the constitution affects liberty, as taking away the trial by jury in the courts of law; or placing the tenure of a judicial commission on other grounds than on what the constitution has placed it; and the like vital parts of the system.

To reform with safety requires a perfect knowledge of the subject of the reform. To reform the law, either in its principles, or administration, requires a lawyer; a scientific, and philosophical lawyer: not a pedant, even though on the bench of justice. Natural narrowness of mind, or technical contraction, unfits for this. But an unreasonable jealousy of professional men is to be avoided. There is such a thing as patriotism on the bench, and on the bench what interest can there be but to lessen service? Interest therefore here, is not in the way of extending settlement by arbitration, so far as it may be practicable, and consistent with the preservation of the democracy. For be assured that the recoil of a measure hurts the authors more than those against whom the ordinance may have been directed.

But difference of opinion produces ill will. A man and wife will separate on a disagreement which has taken place about fixing a hen-coop, or laying out a bed of parsley. Christians have burnt each other, because the one would say off and the other from; and what man of sense doubts but the burner and the burned were equally good men? The creeds, confessions and commentaries of the one were just as orthodox as the other, but not precisely the same: and the nearer they come together the more wrath. This ought to teach in politics, at least, concession and forbearance.

If objects of sense mock the senses and deceive vision, how much more things in the political or moral world, which we cannot comprehend but by reasoning?. What a farce it was in the year 1779, in America, to see committees formed from the one end of the continent to the other, instituting regulations of the prices of commodities at a standing value, when the medium of circulation continued to depreciate? The thing was absurd; yet I recollect Thomas Paine, an uncommon, but uninformed man, was a secretary to a committee, and an enthusiast in the project. The committee regulated “that a measure of fine flour should be sold for a shekel, and two measures of barley for a shekel, in the gate of Samaria;” but neither barley nor flour were brought to market, and as there was “no reasoning with the belly,” the space of ten days undeceived the projectors.

The chemist tells us of substances that decompose, which is a process in order to the composition of other bodies; but that it depends upon a knowledge of the properties and quantity, whether the ingredients constitute a poison or a medicine. So may it be said of the spirit of reform.

The practice of the courts in Pennsylvania, is rendered simple to what it is in England; and could be still improved, as it would seem to me; either by the law of practice, which the courts themselves have the power of making, or with the aid of the legislature. But it is only a scientific man that understands the system, as a farmer knows his grounds, who can easily and with safety complete the reformation. The law itself is much improved in Pennsylvania, both criminal and civil, and I am not sensible of much wanting, but in the organization of the tribunals for its administration. Now it will not do to make a law that there shall be no litigation; or that every man shall know the law; for such a law cannot be carried into effect. I doubt, then, whether it will be found satisfactory to provide “that every man shall be his own lawyer,” and his neighbour’s judge in the capacity of arbitrator.

The excellence of jury trial is sanctioned by immemorial usage; and is secured to a certain extent by the constitution. What is the extent? “Trial by jury shall be as heretofore.” This mode of trial has its laws. Does the constitution mean that the laws of this trial shall be as heretofore? or, does it mean any thing more? It may mean that it shall be the mode of trial in the same tribunals as heretofore; that is, the courts of justice. Does it mean to bar extending the jurisdiction of the justice of the peace in point of action? This is a great question.

I admit that screwing up the construction of the constitution too tight, the public mind will revolt against it. Driven to a contention, much that is valuable in the constitution might be lost in that torrent which an overstrained construction had produced, like waters in a dam without a flood-gate. The discretion of the legislative body must not be too much disputed. It produces the very effect, in some way or other, which the over cautious apprehend. While the great boundaries of the constitution are unbroken, I do not fear much from those laws which regulate the police of justice, and may be enacted, and continued as the experiment may seem to justify, But I wish to see the democracy move in the groove of our noble constitution; like one on the heavenly bodies preserving its orbit, and bidding far for perpetuity. For this reason, I am afraid of even experiment, in a case where there is doubt, and which is of great moment and delicacy.