Chapter 14

Containing Observations

To speak seriously upon the subject, I doubt much, whether in the present commercial state of society, and where property is not held in common, people would be safe and prosperous without law altogether. I do not know whether, even lawyers are not a necessary evil. It is true, they take up more time, than is perhaps necessary, in their pleadings, and cite more authorities than are absolutely applicable to the point in question. The younger council read authorities, to shew that they have read, and the older to prove that the have not forgotten. I would allow ninety-nine cases out of an hundred, that have nothing to do with the matter, but the citing five hundred cases, not one of which is any thing to the purpose, is carrying it to an excess which in strictness cannot be justified. It takes up time, and is not paying a proper respect to the common sense of the country. A little original reason and reflection of the advocate himself might answer the purpose in some cases. The reason of a mans own raising, may be as good as that which is bought at market.

----What is’t t’ us,
Though it were said by Trismegistus?

Not that I mean to undervalue, much less to lay aside altogether, the assistance of borrowed reason, and the auxiliary deductions of other men, whether on this side the water or beyond it. But there is such a thing as being enslaved to authorities, or at least, loading the argument with too much incumbrance of quotations. It depends a good deal upon the countenance given by the court to such a lumber drawn from old books; yet the correcting it requires, an infinity of care, lest you lose the advantages of recurring to first principles.

Antiquos recludere fontes. The profound divine reads the commentators and thence assists the comments which he makes himself. The avoiding one error leads into a worse.

----Fuga Culpae,
In vitum ducit.

In tearing up the darnel, the wheat may come with it. The books must be read.

Nocturna manu, versate diurna.

But in an argument, I value more the judgment of selection, than the labour of collecting. It is a flattering thing to a court, to take it for granted, that they understand first principles; and even a jury are not displeased when you seem to suppose in the summing up the evidence, and the remarks upon it, that they themselves can see a thing that is as plain as a pike-staff. Hence long speaking, and an over-minute investigation, is sometimes odious. Or to attempt to make them believe what cannot be believed, makes a man sick, provided he is not disposed to laugh. This depends a good deal on the natural playfulness of his mind or the mood in which he is, from the want of food, or sleep. I excuse the people showing a dissatisfaction to the trial by jury, under the pleadings of advocates, when the harangues, in an evening are like to prove eternal. When the stream of the orator turns upon itself; visits the ground that it had left, and is unwilling to quit the enchanted borders of the argument.

Yet, I think, all things considered, that there is some use in courts of justice; and that it would not consist with ancient habits, to lay them aside all at once. Liberty has been accustomed to them. I do not find that she has ever done without them. Wherever she comes, she seems to call for them.

There is a strange coincidence between liberty, and an established jurisprudence. Whether it be matter of accident, or a connection in the natural existence, may deserve investigation. To give the devil his due, there is a good deal of pains taken in the courts to secure a fair trial, in the empanneling the jurors, and the admissibility of evidence, whether oral or written. As to the protecting the suitors from each other, and what is called the consequential contempt, it is a matter too delicate to touch upon, and we shall pass it by. But it seems to me the peace is better kept, than if there were no courts at all, and no protection given to the parties, relative to the matter in question, even out of doors. However, this I leave to the consideration of the prudent.

Some are of opinion that it would be better to argue all matters of meum, tuum, in the public papers, or in hand-bills posted upon trees. The principal objection I see to this, is that the suitors waxing warm in the controversy, would call one another names and come to blows. A great deal of ill blood between neighbours might shw itself. How could you keep lawyers from writing in the gazettes, any more than from speaking at the bar? And here, their jargon reduced to paper, would spread wider, and have more permanence than floating on the atmosphere with which their breath had mixed it in the first instance. The theories of ingenious men are not to be discouraged; yet it is not to be taken for granted that every theory that is plausible, is practicable; and will be found to answer the expectations of the most deliberate projector.

The independence of judges, is a favourite theme with the judiciary themselves. And doubtless there is some reason on their side. For the Scripture says, “the fear of man bringeth a snare;” and the man that has most influence, in elections, is likely to be most feared by an elective officer. It would not be a state conducive to justice; that in giving judgment, the judge should not be under the temptation to be looking about, and turning in his mind, the probability of being turned out in consequence of the judgment he was then to give: whether John O’Nokes, or John O’Stiles were to be the next members of the Legislative body. But this supposes judges fallible, and subject to the weakness of human nature, which is not to be supposed at all.

But if you confer independence any more than in a ministerial officer, the judge becomes impudent. Power corrupts. It is natural to count too much upon a man's standing. Every one overrates his own importance; much more his own services. Self-love, and self-consequence swells, and produces oedematous effects. The man that has given his vote at an election, or written a paper, will conceive that he has turned the election; that day light springs because he has croaked. He will denounce the man that differs from him, as swerving from the faith; the orthodoxy of the creed; making no allowance for the different organization of the brain, and the conception of things. How much more intolerant is a man like to be, that conceives himself fixed in a seat for an interminable period.

There is such a thing as tyranny in judges; and I am no enemy to the investigation of official conduct. But let the power paramount, the people, take care that they exercise not tyranny themselves; or give way to passion, which even in a body politic, is possible. Let the sovereign, like that of all the earth, do justice; and consider that the possession of power is upheld by justice.

But as to the notion of some, that law, lawyers, and judges, might be laid aside altogether; I doubt as already hinted, the good policy of this. At least the experiment may be premature. Republican principles have purified the world a good deal; but I do not know that it is just come to this, that men are universally virtuous. Some vestiges of that iron-age yet remain. The old man of federalism enters yet a little into our dealings with each other. I admit that public offices are pretty well purged; but there are unfair transactions yet spoken of among the multitude. It may be too soon yet to abolish all law, and jurisprudence. I admit that courts of law are a check upon the freedom of the press, and I excuse the publishers of gazettes, in their zeal to have them overthrown, or at least reduced to fear and subordination. Because it is drawing all things to their own examination. But are they sure that they are good republicans in this? Or, indeed, that they consult their own security in the event of this license. For prostrate the courts, and the cudgel prostrates themselves. While they are pushing at a judge, they are preparing the way for some robust man in due time, to push at them. With different weapons it is true. For the bludgeon is corporal, and made of wood, or some other material of a solid substance. It is not the interest of a printer that a judge be rendered timid, by persecution; for he stands between the cudgelist, or pugelist in a controversy with the man of types. Thus the freedom of the press, is supported by the laws, and by the due enforcement of them. Yet it is natural for a man at first view, to think, that if there were no courts, he could write with less restraint. He could make every man tributary to his opinion; or to his measures; for if he did not libel, he could threaten to libel, and compel a submission.

It seems to me that a poor man is safer in a country of laws, than one without laws. “For wealth maketh many friends;” and I do not hear any complaints that the rich are favoured in the courts. But, that may be owing to the mode of trial, which is in the face of the world, and where lawyers are suffered to make as free with the character and conduct of a rich rogue in a cause, as with one of a more circumscribed estate. This last is one argument I have just hit upon, in favour of lawyers; and I find myself well disposed to give them a lift when I can with propriety. For though I would be willing to muzzle them a little in their speeches; yet I do not wish to see them run down altogether.

Fortitude is a requisite qualification in a judge. It requires resolution to preserve order at the bar; overawe petulance; arrest impertinence in manners, or in argument; suppress side-bar conversation; and render the practice tolerable to practitioners of mild and modest demeanor; of delicate and gentle disposition; of scrupulous honour, and liberality in the conduct of a suit, or management in courts. Resolution is necessary to decision unequivocal and satisfactory, unawed by forensic opinion or the influence of individuals. It is dangerous therefore to sap this spirit of independence, by the precarious tenure of the office, while at the same time the right of the citizen is examined, and the power of the court considered in its latitude and operation. All I mean to say, is, that the examination of the judicial conduct is a high trust, in the view of an enlightened public, and answerable to the present time, and to posterity, for the consequences.

What is the reason of the fluctuations of parties in republics?

The reasons are many. But one is the unskilful driving of the state carriage, by those who get possession of the curricle. Phaeton, you know, though he had the best advice from his father.

In medito tutissimus ibis.

The middle way is the best; yet before the middle of the day, he had set the earth on fire. The people are always honest, but oftentimes the instruments of their own servitude; by distrust where they ought to have confidence, and confidence where they ought to have distrust. The bulk cannot have perfect information; and that reach of thought which observation, and experience gives. They must trust a good deal to others in the science of government, and the expediency of public measures; and it depends upon those whom they do trust, whether the power of a party is long lived, or short. All depends upon the wisdom, and integrity of those that lead. What ruined the federal administration, but the intemperance of driving. The upright disapproved, and the prudent forsook it. The unskilful pilots were not aware of an under current that had begun to set. Extremes will always beget the same effect; and the like tension of a chord, produce a return in a contrary direction. Judgment, how far to go, and where to stop, is the great secret. Trained shaft horses, that will back down the inclined plane of a hill, are excellent in a team. Younglings, though mettlesome and generous, are apt to draw too fast, upon a declivity or even on a plain.

For that reason, I cannot say, that I am favourable to a change of representatives every year, even when what has been done, does not altogether please me. Because experience is a great softener of the mind; it gives knowledge. A man after some time begins to understand the game, and to find out who it is that takes a lead with a view to some object of his own. That may be unfathomable in the early breaking of the business, and yet come out at last. Or a man may come to see his own error, and profit by the recollection.

But how will an honest man in a deliberate body, know what to trust but his own judgment? Nothing. Then let him think humbly, diligently, extensively, distrusting pre-conceived opinions, and laying his mind open to the light of truth. Yet there may be some rules to guide the judgment. Such as trusting the judgment of others who have had experience in the science, or establishment, relative to which, the question is agitated, or the measure proposed. Every one is to be trusted in that thing, of which he has some knowledge.

That man is to be trusted who is free from the imputation of inordinate selfishness in private life. You will find an artist that is fonder of the art than the emoluments. There are men that connect the public good with their own happiness; generous spirits who manifest this by their disinterestedness in ordinary transactions. This is a good sign, and ought to inspire confidence in their agency, in public matters. The man that covets good will more than money, and the praise of benevolence, more than that of private gain, has some soul in him, and other things equal, is to be trusted before him of a contracted spirit, and self-love, in all his actions.

But after all, things will take their course; and no party in a republic will retain power always, because they will abuse it; but the duration of power in an elective government, will depend considerably upon the being able to distinguish between vigour and moderation.

There is a natural alliance between liberty and letters. Men of letters are seldom men of wealth, and these naturally ally themselves with the democratic interest in a commonwealth. These form a balance with the bulk of the people, against power, springing from family interest, and large estates. It is not good policy in republicans to declare war against letters; or even to frown upon them, for in literary men is their best support. They are as necessary to them as light to the steps. They are a safe auxiliary; for all they want is, to have the praise of giving information. The study of political law, and municipal jurisprudence qualifies to inform, and hence at the commencement of the American revolution, lawyers were the first to give the alarm and assert the rights of the people. Shall we forget the recent services of lawyers in framing the federal, and state constitutions? The name of lawyer ought not to be hunted down, because there are characters, unworthy of the profession with whom the love of money is inordinate, and insatiable.

There is ground, for the regret, that literary institutions are not favoured; that it has become a popular thing to call out against learning, as not necessary to make republicans. The knowledge of our rights, and capacity to prosecute, and defend them, does not spring from the ground; but from education and study. Under a federal government; we are peculiarly situated. We stand in need of law, learning, and legal abilities to support ourselves in a contest with the claims of the general government, which, as it bounds the state jurisdiction, must in the nature of things encroach upon it. It is of great moment, with a view to this very object that our judiciary by composed of able men that under the concurrent jurisdiction of the courts, it may be able to hold its own; or more especially, that from a want of confidence in the abilities of the state judges, recurrence may not be had to the tribunals of the United States, by legitimate election; or by those collusions against which it is difficult to guard.