Chapter 7

It may be thought that in my allusions to impeachment, I may have in view what has happened in this state. It is probable, or rather certain, that it is this which has led me to think upon the subject, and to introduce it in a picture of democratic government, such as that I am now describing. But if it is inferred from thence, that I approve or condemn what has taken place in this state, it will be unfair; or at least a misconception. For I do not mean the any inferences, favourable or unfavourable, should be made from it. On the contrary, I am far from reprobating the power of impeachment in the constitution, or finding fault with a discreet use of it in practice. I look upon it, as the means of avoiding tumults, and assassinations. When dissatisfaction with the conduct of public officers, is suffered to show itself, and to have a vent in this way, the public mind, having an opportunity of hearing grievances discussed, and getting to know the real demerit, good or bad of the functionary, is more likely to be satisfied, and it is safer for the object of the obloquy. Nor, on examination, will it be found, that in many cases, where there is a public dissatisfaction with an officer, there has not been some foundation laid; if not in the very particular that is made the subject of enquiry, yet in some other that has led to it. As for instance; even in the case of Scipio Africanus, where, perhaps, a just cause has been the least suspected to have existed of all instances of a great man impeached, that are to be found in history. Yet if any one will read Livy attentively, in his account of the way in which this young man came forward into public life, he may anticipate the vexations he experienced after he had accomplished great things for the commonwealth. His error was, a premature competition for office. Before the age allowed by law, he set up for the Edile-ship, and carried it by the undue favour of the populace. "Si me, omnes Quirites edilem facere volunt, satis annorum habeo." How arrogant the expression; how insulting to the tribunes and Fabius Maximus, and others of the senate who opposed it? His offering himself for the proconsulate in Spain before his 24th year, quatuor et viginti annos ferme natus, professus se petere, was more excusable from the occasion.


But it was in some degree by an affectation of religion and arts of dissimulation, that he had prepared the public mind, to favour his premature pretensions. From the time that he had put on the toga virilis to this, he had been preparing the minds of the people. There was no day, before he did any thing private or public, but that he went into the capital, and entering a temple, sat down, and for the most part alone, in secret, and spent there some time. This custom, which was preserved through his whole life, whether designedly, or that it so happened, procured credit to the opinion published by some, that he was a man of divine stock, and brought up the story before common, of Alexander the Great, and equal to it, in fable and variety, that he had been conceived of a huge dragon, which had been seen in the bed of his mother; and which tale he increased by the art of neither contradicting nor assenting.


On his return from Spain, after the expiration of his proconsulate, he was willing to have accepted a triumph, though to that day, there had been no instance of any one triumphing, for whatever successes, unless he had had the command in chief; or, as the historian expresses it, qui sine magistratu res gessisset. It is true, it is said that "the hope of a triumph was rather tried than obstinately persisted in." But it shows a too great forwardness to catch at honours. But the inordinate nature of his ambition was more evident, on his obtaining the consulship. He grasped at Africa for his province, though not according to his lot, "nulla jam modica gloria contentus." And this he said openly, he would carry by the people, even if the senate set themselves against it. He made his words good, and the senate, with all the authority and reputation of Fabius Maximus, venerable from age and wisdom, and other aged likewise and experienced, were bullied by the tribunes and people into an acquiescence.


I cannot help considering his conduct in procuring the province of Africa for his brother Lucius, having Laelius for his colleague in the consulship, who equally was ambitious of that designation, as extremely indelicate in throwing his weight into the scale, in the deliberation of the senate between the two, by offering to serve under his brother as his lieutenant; if they would prefer his brother. By this means, and by his previous advice to his brother in submitting the matter to the senate, rather than to the chance of a lot, and thus having it in his mind to use the address of offering his services in a subordinate capacity, which was, in fact, obtaining the command for himself, he fixed in the minds of the principal men much chagrin and dislike. And deservedly; for ambition is self-love; and when it is at the expence of others, it is odious. Every man in a community has what may be ranked among the imperfect rights in society, a right to have his age considered, in pretention to office, and not to be intruded upon by the coming generation before its time; much less to have power engrossed even by virtue itself, or the most distinguished ability. For the keeping the flame of public spirit burning, is the vital principle of republican government, to which there is nothing more smothering than inequality in the chance of obtaining offices, honours, and emoluments. And if the next generation come on too soon, the seniors are pressed out, and lose their chance. Nor is it only by the younger intruding that this equality is effected, but the usurping by those of any age, of what is not equal.-- And I call it usurpation, where any thing is obtained; what is more, where any thing is even taken, that reasonably ought to go to another, in consideration of standing, ability, or services. If these are obtained by popular favour, unduly coveted, what reason has the candidate to complain, or good men to regret, if the same caprice that has advanced, should, notwithstanding unimpeachable conduct, nevertheless impeach? We shall see that this was the case with Scipio.


He was impeached by the tribunes of the people on a charge of peculation, and converting the public money to his own use, in which there was no truth; but in the remainder of the charge, there was truth; "that he had pushed himself forward to foreign nations in a manner as if peace and war with the Roman people depended on him alone: That he had gone out as a dictator to his brother, rather than a lieutenant; and for no other purpose, but that he might show himself, and have it believed in the east, as he accomplished in the west, that he should seem the head and the pillar of the Roman empire: That a state, the mistress of the world, should seem to be under the shade of his power: That his nod stood in place of the decrees of the senate, or the orders of the people."


The charge of peculation he could easily answer; but these things he could not answer; nor was there any thing so definite in them, that strictly speaking, they could be made the ground of an impeachment; but it was easy to see that by reason of them, the alleged offence would be established, and which alone could come within the laws. He chose to withdraw from the trial, and go into banishment.


If, in like manner, impeachments that have brought a reproach upon republics were examined, it might be found, that in the greater part of them, bating sudden errors, and mistakes, incident to all human affairs, there would be found, though not the best foundation for the particular charge alleged, and the sentence pronounced, yet remotely something blameable, which had led to the making the charge in question.


But even taking it as matters seem to be on the surface of things, the wrongs of democracy, and injustice of public characters, will be found to fall short of those under lurid despotism. For a view of this, let the history of the Roman empire, by Livy, be compared with that of the same people under the emperors, as we have it by the divine pen of Tacitus. There is no one who will consult the nature of things, or look into what has taken place in popular governments, but will think that there is greater chance for justice to an honest man, than where this depends upon the caprice of an individual. For it is not the despot himself that is alone to be dreaded; it is those he has about him, and will allege words spoken of him, or acts done against his government; when, in fact, it is their own resentment, for something done, or said, or omitted to be done, or said, which they wish to gratify.


A despotic government is safer for a dishonest man, and he has the best chance of coming forward there, where it is not ability or integrity that recommends, but subserviency to the passions of the prince.


But it is the rage of mere democracy that has brought reproach upon republics; democratic power unbalanced, is but the despotism of many instead of one. It is the balancing with stays and braces of distributed powers that gives safety. This distribution of power is the highest effort of the mind, and yet you will find but few, who, like my bog-trotter, will not conceive that they could form a constitution that would give energy and guard liberty. It is this false idea, overweaning conceit, that I have in view to ridicule. I am willing to give it the whole force of my indignation, in proportion as I know the error, and the consequences. Let any man look at a book published in this state, under the specious title of "Experience the test of government," and see the crude conceptions that it contains; I do not know by whom written, and he will be sensible of the consequences of putting the modelling of a constitution into such hands. "I am not afraid of the people of Pennsylvania," said a pompous orator to me. The fact was, he had nothing to be afraid of, unless they would take his scalp. Nor am I afraid of them on my own account; but on theirs; at least I am afraid on their account, as well as my own. For the formation of a government, is not a matter to which the bulk are competent: or if they will indulge caprice in changing, and they will go to change; whenever a change is made, it will be but a majority that is satisfied, and perhaps that not great; --and it is to be expected that a portion of the majority, not finding their account in the change, will associate with the former minority, and hence a change, and so toties quoties, until only one remains that is satisfied.


It will be said impeachment is of no use; the constitution being such, that a conviction cannot follow; it requiring such a proportion of the tribunal, before whom the impeachment comes to trial, to be of a mind. Is it nothing even in the case of an acquittal, to be scared half to death? Even on a representation of the people, and a citation before a committee of the house of representatives, one may as well be half hanged, as to undergo the terror.


Can any one, looking at the quarter sessions, think that there is no good by trying, even where there is no condemnation? I have known many a man tried, that I thought guilty in the letter of the law, and perhaps in spirit, but if acquitted by the exclusion of testimony not legal, or the leaning of the jury on the side of himself, or otherwise, I did not think there was nothing in the having brought to trial, and shaken the prisoner well over the indictment, or rather the indictment over him.


It is possible, that something like oppression and tyranny, or bordering on these, both to people and bar, may have been complained of in judges with some cause in times past. Is it to be supposed that what has taken place, has contributed nothing to arrest, or remove this grievance? Would not the oppression and tyranny seem to have veered to the other side now, and to be found, in some degree, if not with the people, at least with the bar. It has seemed to me to be so, and it is therefore, but an emanation of my feelings when I pourtray in my imagination the disorder of untamed animals admitted to be advocates. It is doubtless a caricatura of what I mean, but a thing has usually some excess in it, to be felt as the proper subject of a caDo orricatura. While the lawyer has it in his power to influence his client; and even to excuse his own ignorance or errors, by laying the loss of a cause upon a judge, or alleging oppression, the client can apply to a house of representatives, and the judge, of course, be brought down with facilityu, the presumption is, that he will bear a great deal of impertinence, impudence, and irregularity, before he will think it advisable to endanger the running the gauntlet, by entering into a contest with a pewerful member of the bar. I do not mean powerful in point of talents; for there is nothing to be apprehended from men of ability; it is from the uninformed tht the difficulty arises; and insults are received from them, because it is the instinct of their natures, to cover their defects by noise and arrogance; or, from a want of knowledge, they think themselves monstrously wronged, when they have the fairest hearing, and the fullest justice.

The suitors of the court, the jurors, the circumstances, or bystanders, complain of the length of speech in the lawyers, and of the judges surrering them. There was a time when the judges might have taken some liberty in restraining, or at least frowning on diffusiveness of explanation; but more caution must be used now, lest offence should be given; judges being more under the weather than formerly. A prudent man in a judicial station, will bear for the present, what he will not always bear; because he will discern that this is not the time to make head; but that after some time, the current may begin to set in a different direction; and that may then succeed which now would but strengthen the tide. Besides, it is difficult to say when the speech is too long; and it may be a question whether the court ought to be suffered to judge of that. --The constitution provides that a man shall be heard "by himself or his counsel;" but it does not say how long he shall be heard. Admit the court may have a right to say, that the speech had been long enough as to them, have they a right to say that it has been long enough for the jury. How can they tell whether the jury are satisfied? What is more; is it the court or jury that have the right to say, that they have heard enough? Or, is it the suitor of his counsel, who have a right to say, we have not been sufficiently heard? Tyrrany and oppression, in refusing to hear, may be charged; and thus it is a matter that must depend a good deal upon the temper of the times, and upon a discreet discernment of what is practicable, on particular occasions, or with particular persons, that a judge must determine what to do. A man of sense at the bar, is easily manageable; but a weak man is as difficult to manage, as the visionary philosopher's panther.

Do our representatives in our legislative bodies, always confine themselves to the point, though they may to the question? In other words, is it possible to keep them to order, though it may be to call them? Is it found possible to abridge their harangues while breath and strength of lungs last? If those whose business is not speaking can find such facility in prolonging a discourse, what may not be expected of such as are more in the habit; and without fatiguing themselves, can speak interminably? Were our orators in the legislative bodies as much in the hearing of the people, as the advocates of our courts, they might be complained of as much for the length of their speeches. In the courts, it is no uncommon thing for the judges to express a weariness of the tediousness of counsel; and sometimes to attempt to bring them to the point, and to abridge their harangues; but it will seldom, it ever, be found to answer any end but to prolong the discussion; for if you restrain at one point, there will be an overflowing at another; --and it being like to come to an altercation, which is indecent, it will seem best to give up the contest, and let the thing take its course. The line is so delicate between unseasonable interruption by the court in calling the point, and what is justifiable, that it is difficult to fix it without doing injustice, and impossible without giving dissatisfaction. In human affairs, there is no reaching the perfect in the application of principle. All that can be done, is to come as near it as possible, by a just discernment of circumstances. What is done, may be blamed; but there might be more blame, had the contrary been done.