Chapter 12

The Captain, in the capacity of governor, began to turn his thoughts towards government; and considered with himself what had been the means of governing men, from time immemorial. This he found might be comprehended under two general heads, fear and affection. The priest is an adjunct of fear, because he holds out the horror of what is to come, or is invisible.

What the origin of sacrifices? The true religion ordained them being of mystical type and signification; the false, in order to be like the true, and also, because not having tithes, these became doubly necessary for subsistence. For when a bullock was offered up to the gods, the smell went to them, but the taste to mortals. It was not that any thing could be got out of viscera, that tripes were inspected; but because this could not be done until the cow was killed; and in that case, the priest got a beef-steak. What contempt would one entertain of the Haruspices, poring over the entrails of cattle, in order to ascertain the events of futurity, if he had no idea, all this time, that it let to a barbecue?

Having discovered this, he would do the past ages more justice, and would be disposed to acknowledge, that men were not just such fools, heretofore, as he had thought them to be.

But what the origin of human sacrifices? That has a deeper foundation. It was not that Gentiles devoured them; or were cannibals. But, it was a state engine, and under pretence that a human victim was desired by the gods, some individual, obnoxious to the government, was pointed out by the priest, in collusion with the officer, and made the holocaust. We have a proof of this from the poet Virgil, who puts a tale into the mouth of Simon, viz. that a victim being necessary to procure a favourable wind to the Greeks to return home, Ulysses, having a grudge on an old account, got Calchas to denounce Pil Garlick, as one the gods had pitched upon; and accordingly being marked out for the altar, he had run off. In the Foola country, according to Winterbotham, whom we have already quoted, the Bandoo woman is made use of by the Purra, to single out the culprit that is to go to pot and be knocked on the head. In the South Sea islands, it is the usual policy. A letter from a missionary at Otaheite, tells us that the emperor of that island, lately dead, had offered up in his time, at least two thousand human persons. These were, doubtless, such as had been in opposition to the administration.

Lettres de cachet, had answered this end in France; the inquisition in catholic countries, which was an ecclesiastical tribunal, served the same purpose.

The clergy in free states, are useful to government; but not in the same way. It is by inculcating obedience as a divine precept, and a moral duty. This is the only “alliance of church and state,” that exists in this country. Or if the clergy here do not touch upon politics at all, yet by teaching such doctrines as lead men to virtue, they make them good citizens. Even the Calvinist, though he talks of nothing but faith, and spiritual affections, yet produces the effect of good works. So that in fact he comes to the same point with the Arminian who talks chiefly of good works.

In the ancient republics, founded like ours, on reason and the laws, the power of speech was the great means of keeping men together. Hence the orators of the popular assemblies. With us the press is the great pulley, by which the public mind is hoisted, or let down to any sentiment. It is a wonderful block and tackle, so to speak, on board the state ship. It can overthrow a good administration, and for a while support the bad. But the press cannot exist but by liberty. Nevertheless the freedom of it may be lost by its own exertions. The intemperance, and indiscretion of the journalist, propels to popular excesses, which subdue the laws; and bring despotism. See the French revolution.

These were the reflections of the governor, who thought it fortunate that a press had been established in his government as a vehicle of information, but was a little afraid of some of the correspondents; Harum Scarum, Tom the Tinker; Clonmel the ballad singer; Will Watlin, and others. O’Fin the Irishman, was an excellent flail man; but threshing grain, and threshing in a news paper, require, if not different powers of mind, yet at least different cultivation. He was an honest good hearted fellow; but as on a barn floor, an unskilful, or careless person will bring the voluble end of the jack-staff about his own head; and hurt; so it is with a politician who enters the list with a view to do good; but, from mistake of the true interest of the body politic, does harm.

Under this idea of the effect of a journal to guide, or mislead the public mind, the Governor solicited an interview with the author of the “Twilight.” After such introductory compliments and observations as may be presumed on the occasion, the governor insensibly drew him (the editor) into a conversation on the subject of the press, and his gazette in particular.-Editor, said he, your good sense I know, and your patriotism; but I am afraid of your being a little too much carried away with the spirit of the times, economies; dissolution of courts, disuse of codes of law, and invectives against lawyers. There is a medium in all things. This may be carried too far. Would you not think it prudent to restrain this downhill speed a little As to attacks upon the administration, or the policy of measures merely executive, or even the constitutionality, or expediency of a law, I should think the greatest freedom may be used; or the public conduct of men in office may be canvassed; though, by the bye, I should not think the public had any interest in their amours, their costume, as for instance the cut of their pantaloons, or the colour of their breeches; or peccadilloes, even in the breaches of decorum. Such restriction may perhaps be laying an anchor to windward in my own behalf, as I am not the most exact of all men in these particulars. But I ask or wish for no indulgence, on the score of official acts; let them be the subject of your examination, and strictures. At the same time taking the rule of humanity for your guide, as expressed by the Poet.

“Nothing extenuate, or set down aught in malice.”

But I advert chiefly to such sentiments, as poison in respect of the elementary principles and constitutions of government itself, and the prostration of those establishments on which the security of property, reputation and liberty depend.

You will assign to us typographists a very narrow sphere, indeed, said the editor; and you will strike away from us the footstool of all our popularity. What is it to the macaronie, whether you acquire territory to the republic, or lose it; but what is the fashion of your boot, or the cape of your coat? What is it to a female, whether you wisely sanction a remedial act by your approbation, or negative it? But whether you keep a mistress, or ever had one. The taste of our subscribers is as various, as their faces, and we must please our subscribers. Every body can understand scurrility, but it requires one to knit the brow to take up a report on the finances. As to the taste of the time, we must fall in with it, if we mean to keep on the popular side of the question. The rage is now economies, and down with the lawyers. We cannot avoid harking in a little. You are not to take it for granted that we speak our own minds in every thing you see in our papers; no more than an advocate who is employed on the wrong side to plead: it happens to fall to his lot, and he finds his account in it.

Cannot you fill up your journal, said the Governor,or at least a great part of it, with essays on agriculture; experiments in chemistry, mathematical problems, or love adventures, years ago, or at a great distance? Let the goverors, and the laws alone, since you cannot speak of them according to your own judgment.

That would never do, said the editor. The public would not take half the interest in it. Finding fault is a secret satisfaction, and the source of great delight to the human mind.-Hence slanders in society. Why not much more in public life? When a man builds a cabin, it pleases us to object to the plan, or something done about it; much more when the subject of our remark is of a high and noble nature, such as a measure of the executive.

The fact is, a newspaper is a battery, and it must have something to batter at. Where the editor is a friend to the executive, or the legislative part of the administration, he must make a butt of the judiciary. It is against this he must bring his catapult, or battering ram, to bear. Fortunate the man who is unentrammelled with any attachments, or restraints of affection, gratitude, or obligation; he has the whole before him, and he is not under the necessity of slackening his efforts, at one angle, lest he should affect another. A clear field, and no favour. That is the province of the printer. An advocate seldom finds it his interest to be retained by a suitor altogether. And as to building up systems, that is what we do not so well understand. We leave that to the sages, and philosophers, with whom we are naturally at war. It is not our forte; every man has his faculty. One to spin a rope; another to pick oakum.

Well, said the Governor, you must take your own way. I had no idea of shackling the press, but only of suggesting such hints, as might conduce to its credit, and the good of the community.

I do not know, said the Governor to the Chief Justice, the blind lawyer who was present; the editor now withdrawn; I do not know, said he, whether, notwithstanding my observations to the printer, something might not be done in settling suits, and composing differences in matters of property without such extensive codes of jurisprudence and court trials, with advocates, and endless speeches. I should like to hear your idea on this subject, Chief Justice.

Might we not do without such struggling to exist in other respects? said the Chief Justice; The acre must be grubbed; the maize planted; the sickle is necessary. Why clothing? at least why tailors. Skins, or a plaid might answer. Why houses? It is probable that mankind had tried the acorn: the bear skin; the cave, or the hut before these. Must they return to this state, to see whether they cannot now do without them?

The presumption is, that before laws, men had tried what it was to dispense with them. Jury trial would not seem to have been an invention, all at once like the cotton loom by Arkwright. It is probable that it was considered an improvement upon arbitrations, when it first came into use. But it would not seem to have been adopted all at once, but to be the result of successive amendments. In fact, it is nothing but a mode of arbitration by the vicinage, uniting with it the advantage of a cour to inform as to what the law is, and furnishing an executive authority to carry awards into effect, and execution.

This trial is of immemorial usage, and hid in deep antiquity. If we had its history, it would be seen that its laws, are the result of gradual accession; and these added from an experience of defect. Just as in our own time, and in these states, we find amendments, or at least, changes in the summoning, return, impannelling, or serving of juries.

The privilege of councel in capital cases; as to matters of fact, or witnesses on oath, is but a late acquisition in England. And the presumption is, that at least, as to the privilege of councel, it did not originally obtain in civil cases. But that the prerogative of the crown had impeded this improvement in the criminal laws, so that it did not keep equal pace with that in the civil. Yet with us it begins now to be thought a grievance to have councel in any case. It seems to be a wish of many to try a system of judicial determination without it.

What would be the effect of the experiment of simple arbitration? said the governor.

An injury to credit, said the chief justice: men would not so eadily give trust, knowing that the screw of the law was relaxed, and they could not so readily recover what was due to them; of course, it would reduce contracts, and bring matters to the immediate exchange of money, and commodities.--In the third place it would shake the security of property, real and personal; on account of the uncertainty of holding it, the rules of evidence being rendered uncertain before a tribunal having no rules; and also on account of having no principles of contract or use, but the notions of right and wrong, in the breasts of the auditors; and these as changable as the different sets that sit upon a controversy.

In the last place, it would check, if not put a stop to all improvement. A great object of the social compact is, the security of private property; the ascertaining and protecting meum and tuum; the mine and thine of possessions. With sovereigns, the ultima ratio regum, is the means of redress in case of an invasion. Of trespass with individuals in a state of society, what else but the laws? And what are laws without tribunals to lay down and enforce them? tribunals, not casual and temporary, but fixed and moving with set times, and the regularity of clock work; tribunals who have rules of property as well understood, and as certain in their applications, as the laws of gravitation, or magnetism. When the barons met at Runningmede, did they complain of any thing more than the delay of justice? Nulli negabimus, nulli deferemus justitiam, is a provision of the magna charta. Could there be steady justice, otherwise than by a proper organization of courts and juries? Not unless we take the short way of despotism, and appoint subordinates with a prompt power, and arbitrary discretion. Trial by jury and the constituted courts, had been in use time out of mind, before magna charta, and more than eight hundred years since, it has been tolerated, nay prized, and the constant subject of eulogy; notwithstanding what I consider as that which might be the subject of amendment, the principle of unanimity. It ought not rashly to be changed, in the essential law of its nature, that it shall be annexed to a court where men sit, who are learned in the usages, and customs, or written laws, of the society. Human wisdom never has devised an equal mode of uniting the means of ascertaining fact and applying law. It is the lifegiving principle in this regulation, that the jury and the court are associated in the trial, and that one cannot move without the other. As to the mode of bringing forward juries by return of the sheriff; by a special jury, selected in the manner known, or by election of the country, these are particulars of a lesser nature, and may be the subject of modification from time to time, and yet the vital principle preserved. But the moment the tribunals of fact and law are separated, the talismanic charm is gone; that which was never understood before, will then be felt.

But, said the Governor, did they not lay aside law judges, and attempt the system of mere arbitrament in France, during the revolution?

It would have been matter of wonder if they had not, said the chief justice. When the cord from its extreme tension is let go, it vibrates nearly as far on the other side of the circle to that from which it had been drawn. What could you expect in return from despotism but the opposite extreme? In the state of the public mind, in France, what was there to arrest at a medium? Was it natural for the precipitancy of the national will, to stop short of the utmost latitude? You might as well expect the stone of Sysiphus down hill, of itself, to stop short, at a proper point.

Of what account was it, what the mode of settling disputes, relative to property in France, at some periods of the revolution? Proscriptions brought owners, and possessors, so quickly to the guillotine; and conscriptions took them so hastily to the cannon’s mouth or the bayonet’s point, that it was of little consequence what the tribunals of justice, or of litigation. But had they the trial by the vicinage to lose? or have they continued to do even without judges? Bonaparte, you may say, has given them courts. If he had let them alone, they would have had them of themselves, unless anarchy had continued, or some other sovereignty of like nature had taken place.

What was the law in France before the revolution? From what sources drawn? The Roman civil law. Not this only, but usages, customs, and written laws of a general or local nature, derived from their Gallic ancestors; or from the Goths of Franconia; from the law of nature; from the law of nations; from municipal institutions, and a thousand sources as numerous as the springs that make the rivers of their country.

Could not property be held and adjudged without a knowledge of all these? said the governor.-No more than you could breathe without the atmosphere, unless another atmosphere be given you. For what is property, but that which is peculiarly my right? And what constitutes in my right, but the laws under which it was acquired, and to which it is subject?

Is this Roman civil law, that you speak of, a thing of much extent? said the governor.

It is as extensive, said the chief justice, as the common law with us, or as any law must be, that arises out of the concerns of a great community, or is provided for it. Romulus made regulations; Numa, institutions; the plebiscita, or resolutions of the tribunes, and the commons; senatus consulta; judicia pretoris; responsa prudentum; these continued in the twelve tables, institutes, pandects, and commentaries, are grounds of that law, which, on the decline and fall of the empire, was incorporated by the barbarous nations on their codes, as they became civilized, and an agricultural and commercial people. It is the experience and wisdom of ages which can alone provide for the cases of difference in matters of claim or right amongst a people. It will require the application of years in those who administer these laws, to acquire a knowledge of the rules established relative to them, and which rules, by the change of property under them, have become as much the right of the citizens as the property itself. For the laws of property go with it; and are the right of the purchaser; and as much a part of his estate, as the charters and documents that constitute the evidence of acquisition. A bit of a manual, or collect of the rules of a legislative body, will fill a duodecimo volume; and yet how small a part is this of the “law of parliament,” which embraces privileges, immunities, laws of election, &c.&c.&c! And in the code of the community, there are a thousand chapters of law more extensive than this, and equally important to be known, and every day in use by the whole of the people. So that the disuse of lawyers, judges, and courts, or superseding the necessity of them by novel institutions, is what will be found impracticable consistent with government.

Nevertheless, said Harum Scarum, who had just come in, and heard the concluding part of what the chief justice had said, Harum Scarum, whom the governor had just appointed secretary: Nevertheless, said he, so it is, that nolens volens, the people will have the lawyers and the judges down. They may let the chief justice alone a while, because he is blind.--There is a generosity in men that leads them to spare the miserable. But as to lawyers that have their hands, and judges that can see, down they go; every day has its rage; ca ira, it will go on. The Marseilles hymn need not be sung to this.--Marchez, Marchez: March on, March on. It will march of itself, quick step. There needs no drum beat, or fife to play. So much for the lawyers; they are under way, and down they go.

Every day has its trumpery of opinions, and pursuits; obstinacies, and predilections. We had the age of swindlers some time ago. Every man that had a mountain, or no matter whether he had one or not, sold the top first, and then the bottom For though your lawyers say, that Cujus est solum, ejus est usque ad coelum; yet we have no such maxim as usque ad Tartarum, and so he might sell the bottom, and by the bye, represent it as level, and well watered, which he could not always say, with a good conscience, as to the frustrum of the cone whether the parabola, or the hyperbola. It was not enough for the swindler, to purchase or sell lands that were neither in the moon, or ‘on the earth, nor in the waters under the earth;’ but he must go to the ring of Saturn, and the planet Herschel.- There was no end to deception on one hand, or credulity on the other.

But we have seen this age pass over, and now is the age of economies. A man wears spectacles, or a clout on his eye, to save daylight; his shirt above his coat in the daytime, and sleeps in his coat at night, to save his shirt. It has got among the very Indians. A sachem runs with his back-side bare, to save his breeches, but wastes as much oil on his porteriors to keep them from muskitoes, as would buy overalls, or pantaloons, to hide his nakedness.

Harum Scarum, said the governor, you are an extravagant fellow in your painting; you exaggerate. I expect better things from the people, than such derangement in their ideas of policy. But, in the mean time let us take dinner.


Observations

There are two problems in politics, which have some difficulty in solution. The one is the power of the judiciary, to adjudge the law void on the ground of unconstitutionality.--The other is that which we have just touched upon a little, in the preceding chapters; viz. the practicability of adjusting civil controversies by arbitration.

On the first point we find a precedent in the government of the Athenian people. I shall quote from a translation of the “travels of Anacharsis the younger.”

“Amidst that multitude of decrees, we see from time to time enacted with the sanction of the Senate, and the people, some there are in manifest contradiction to the welfare of the state, and which it is important not to suffer to subsist. But as they were the acts of the legislative power, it should seem that no authority, no tribunal is competent to annul them. The people themselves should not attempt it, lest the orators who have already taken them by surprise, should again mislead them.-What resource then shall there be for the republic? A law singular indeed at first sight, but admirable in its nature, and so essential as to reduce it impossible either to suppress or neglect it, without destroying the democracy; I mean the law that authorises the very lowest citizen to appeal from a judgment of the whole people, whenever he is able to demonstrate, that the new decree is contrary to the laws already established.

In these circumstances, it is the invisible sovereign, it is the laws which loudly protest against the national judgment that has violated them; it is in the name of the laws that the accusation is brought forward; it is before the tribunal, which is the chief depositary and avenger of the laws, that it is prosecuted; and the judges by setting aside the decree, only pronounce that the authority of the people has happened to clash unintentionally with that of the laws; or rather they maintain the ancient and permanent decisions of the people against their present and transient inclinations.”

On the second point, I meet with a precedent, in the same state, the Athenian, and I quote from the same book. “I cannot overlook an institution which appears to me highly favourable to these, who, though they appeal to the laws, wish not to be litigious. Every year forty inferior judges go the circuit through the different towns of Attica, hold their assizes there, decide on certain acts of violence, and terminate all processes for small sums, referring more considerable causes to arbitration.

“These arbitrators are all persons of good reputation, and about 60 years of age. At the end of every year, they are drawn by lot, out of each tribe, to the number of 44.

“Persons who do not choose to expose themselve to the delays of ordinary justice, to deposit a sum of money previous to the judgment, or to pay the fine (damages) decreed against the plaintiff, failing in his proofs, may confide their interest to one or more arbitrators nominated by themselves, or whom the Archon draws by lot in their presence. When the arbitrators are of their own choice, they take an oath to abide by their decision from which they cannot appeal; but if they are chosen by lot, they are not deprived of that resource; and the arbitrators, inclose the depositions of the witnesses, and all the documents of the process, into a box, which they carefully seal up, and transmit them to the Archon, whose duty it is to lay the cause before one of the higher tribunals.

“If the Archon has referred the matter in dispute to arbitrators drawn by lot, at the request only of one party, the adverse party has the right, either to demur against the competency of the tribunals, or to alledge other exceptions.

“Arbitrators called upon to decide in affairs where one of the parties are their friends or relations might be tempted to pronounce an iniquitous judgment; in such cases, it is provided, that the cause may be removed into one of the superior courts. They might also permit themselves to be corrupted by presents, or be influenced by private prejudices: in which case the injured party has a right at the expiration of the year to prosecute them in a court of justice, and compel them to defend, and show the reasons of their award. The fear of such a scrutiny might likewise induce them to elude the exercise of these functions. But the law has provided against that by fixing a stigma on every arbitrator who when drawn by lot, refuses to perform his duty.”

The idea of an action against an arbitrator for a wrong judgment, involves this, that the court above must judge of his judgment. The jury trial had not got quit of this under the shape of an attaint until the granting of new trials took place. It proves that arbitration has been brought to perfection in the present state of trial by jury, in the presence, and under the direction of the court.