LETTER VII.

English Jurisprudence.--English Justice.--Justice in

France.--Continental Jurisprudence.--Juries.--Legal Injustice.--The Bar

in France.--Precedence of the Law.

To JACOB SUTHERLAND, ESQ. NEW YORK.

Your legal pursuits will naturally give you an interest in the subject

of the state of justice in this part of the world. A correspondence like

mine would not admit of any very profound analysis of the subject, did I

possess the necessary learning, which I do not, but I may present a few

general facts and notions, that will give you some idea of the state of

this important feature of society. The forms and modes of English

jurisprudence are so much like our own, as to create the impression that

the administration of justice is equally free from venality and favour.

As a whole and when the points at issue reach the higher functionaries

of the law, I should think this opinion true; but, taking those facts

that appear in the daily prints, through the police reports and in the

form of personal narratives, as guides, I should think that there is

much more oppression, many more abuses, and far more outrages on the

intention of the law, in the purlieus of the courts in England, through

the agency of subordinates, than with us. The delays and charges of a

suit in chancery almost amount to a denial of justice. Quite lately, I

saw a statement, which went to show that a legacy to a charity of about

1000_l_., with the interest of some fourteen years, had been consumed in

this court, with the exception of rather more than 100_l_. This is an

intolerable state of things, and goes to prove, I think, that, in some

of its features at least, English jurisprudence is behind that of every

other free country.

But I have been much impressed lately, by a case that would be likely to

escape the attention of more regular commentators. A peer of the realm

having struck a constable on a race-course, is proceeded against, in the

civil action. The jury found for the plaintiff, damages fifty pounds. In

summing up, the judge reasoned exactly contrary to what I am inclined to

think would have been the case had the matter been tried before you. He

gave it as his opinion that the action was frivolous, and ought never to

have been brought; that the affair should have been settled out of

court; and, in short, left the impression that it was not, as such, so

great a hardship for a constable to be struck by a peer, that his honour

might not be satisfied with the offering of a guinea or two. The jury

thought differently; from which I infer that the facts did not sustain

the judge in his notions. Now, the reasoning at home would, I think,

have been just the other way. The English judge said, in substance, a

man of Lord ----'s dignity ought not to have been exposed to this

action; you would have said, a senator is a law-maker, and owes even a

higher example of order than common to the community; _he_ insinuated

that a small reparation ought to suffice, while _you_ would have made

some strong hints at smart-money.

I mention this case, for I think it rather illustrative of English

justice. Indeed, it is not easy to see how it well can be otherwise:

when society is divided into castes, the weak must go to the wall. I

know that the theory here is quite different, and that one of the boasts

of England is the equality of its justice; but I am dealing in _facts_,

and not in theories. In America it is thought, and with proper

limitations I dare say justly, that the bias of juries, in the very

lowest courts, is in favour of the poor against the rich; but the right

of appeal restores the balance, and, in a great degree, secures justice.

In each case it is the controlling power that does the wrong; in England

the few, in America the many.

In France, as you probably know, juries are confined to criminal cases.

The consequence is, a continuance of the old practice of soliciting

justice. The judge virtually decides in chambers, and he hears the

parties in chambers, or, in other words, wherever he may choose to

receive them. The client depends as much on external influence and his

own solicitations, as on the law and the justice of his case. He visits

the judge officially, and works upon his mind by all the means in his

power. You and I have been acquainted intimately from boyhood, and it

has been my bad luck to have had more to do with the courts than I could

wish; and yet, in all the freedom of an otherwise unfettered

intercourse, I have never dared to introduce the subject of any suit in

which I have been a party. I have been afraid of wounding your sense of

right, to say nothing of my own, and of forfeiting your esteem, or at

least, of losing your society. Now had we been Frenchmen, you would have

expected me to _solicit_ you; you would probably have heard me with the

bias of an old friend; and my adversary must have been a singularly

lucky fellow, or you a very honest one, if he did not get the worst of

it, supposing the case to admit of doubt. Formerly, it was known that

influence prevailed; bribes were offered and received, and a suit was a

contest of money and favouritism rather than one of facts and

principles.

I asked General La Fayette not long since, what he thought of the actual

condition of France as respects the administration of justice. In most

political cases he accused the government of the grossest injustice,

illegality, and oppression. In the ordinary criminal cases he believed

the intentions of the courts and juries perfectly fair, as, indeed, it

is difficult to believe they should not be. In the civil suits he

thought a great improvement had taken place; nor did he believe that

there now exists much of the ancient corruption. The civil code of

Napoleon had worked well, and all he complained of was a want of fitness

between the subordinate provisions of a system invented by a military

despot for his own support, and the system of _quasi_ liberty that had

been adopted at the restoration; for the Bourbons had gladly availed

themselves of all the machinery of power that Napoleon bequeathed to

France.

A gentleman who heard the conversation afterwards told me the following

anecdote. A friend of his had long been an unsuccessful suitor in one of

the higher courts of the kingdom. They met one day in the street, when

the other told him that an unsealed letter, which he held in his hand,

contained an offer of a pair of carriage-horses to the wife of the judge

who had the control of his affair. On being told he dare not take so

strong a step, M. de ----, my informant, was requested to read the

letter, to seal it and to put it in the _boîte aux lettres_ with his own

hands, in order to satisfy himself of the actual state of justice in

France. All this was done, and "I can only add," continued M. de ----,

"that I afterwards saw the horses in the carriage of Madame ----, and

that my friend gained his cause." To this anecdote I can only say, I

tell it exactly as I heard it, and that M. de ---- is a deputy, and one

of the honestest and simplest-minded men of my acquaintance. It is but

proper to add, that the judge in question has a bad name, and is little

esteemed by the bar; but the above-mentioned fact would go to show that

too much of the old system remains.

In Germany justice bears a better name, though the absence of juries

generally must subject the suitor to the assaults of personal influence.

Farther south, report speaks still less favourably of the manner in

which the laws are interpreted; and, indeed, it would seem to be an

inevitable consequence of despotism that justice should be abused. One

hears occasionally of some signal act of moderation and equity on the

part of monarchies, but the merits of systems are to be proved, not by

these brilliant _coups de justice_, but by the steady, quiet and regular

working of the machine, on which men know how to calculate, in which

they have faith, and which as seldom deceives them as comports with

human fallibility, rather than by _scenes_ in which the blind goddess is

made to play a part in a _melodrama_.

On the whole, it is fair to presume that, while public opinion, and that

intelligence which acts virtually as a bill of rights, even in the most

despotic governments of Europe, not even excepting Turkey, perhaps, have

produced a beneficial influence on the courts, the secrecy of their

proceedings, the irresponsible nature of their trusts (responsible to

power, and irresponsible to the nation), and the absence of publicity,

produce precisely the effects that a common-sense view of the facts

would lead one who understands human nature to expect.

I am no great admirer of the compromising verdicts of juries, in civil

suits that admit of a question as to amounts. They are an admirable

invention to settle questions of guilty or not guilty, but an

enlightened court would, nine times in ten, do more justice in the cases

just named. Would it not be an improvement to alter the present powers

of juries, by letting them simply find for or against the suitor,

leaving the damages to be assessed by regular officers, that might

resemble masters in chancery? At all events, juries, or some active

substitute, cannot be safely dispensed with until a people have made

great progress in the science of publicity, and in a knowledge of the

general principles connected with jurisprudence.

This latter feature is quite peculiar to America. Nothing has struck me

more in Europe than the ignorance which everywhere exists on such

subjects, even among educated people. No one appears to have any

distinct notions of legal principles, or even of general law, beyond a

few prominent facts, but the professional men. Chance threw me, not long

since into the company of three or four exceedingly clever young

Englishmen. They were all elder sons, and two were the heirs of

peers.[7] Something was said on the subject of a claim of a gentleman

with whom I am connected to a large Irish estate. The grandfather of

this gentleman was the next brother to the incumbent, who died

intestate. The grandson, however, was defeated in his claim, in

consequence of its being proved, that the ancestor through whom he

derived his claim was of the half-blood. My English companions did not

understand the principle, and when, I explained by adding, that the

grandfather of the claimant was born of a different mother from the

last holder in fee, and that he could never inherit at law (unless by

devise), the estate going to a hundredth cousin of the whole blood in

preference, or even escheating to the king, they one and all protested

England had no such law! They were evidently struck with the injustice

of transferring property that had been acquired by the common ancestor

of two brothers to a remote cousin, merely because the affinity between

the sons was only on the father's side although that very father may

have accumulated the estate; and they could not believe that what struck

them as so grievous a wrong, could be the law of descents under which

they lived. Luckily for me, one learned in the profession happened to be

present, and corroborated the fact. Now all these gentlemen were members

of parliament; but they were accustomed to leave legal questions of this

nature to the management of professional men.

[Footnote 7: This absurd and unaccountable provision of the common law

has since been superseded by a statute regulating descents on a more

intelligible and just provision. England has made greater advances in

common sense and in the right, in all such matters, within the last five

years, than during the previous hundred.]

I mentioned this conversation to another Englishman, who thought the

difficulty well disposed of by saying, that if property ever escheated

in this manner, I ought to remember, that the crown invariably bestowed

it on the natural heir. This struck me as singular reasoning to be used

by a people who profess to cherish liberty, inasmuch as, to a certain

degree, it places all the land in the kingdom at the mercy of the

sovereign. I need not tell you, moreover, that this answer was

insufficient, as it did not meet the contingency of a remote cousin's

inheriting to the prejudice of the children of him who earned the

estate. But habit is all in all with the English in such matters; and

that which they are accustomed to see and hear, they are accustomed to

think right.

The bar is rising greatly in public consideration in France. Before the

revolution there were certain legal families of great distinction; but

these could scarcely be considered as forming a portion of the regular

practitioners. Now, many of the most distinguished statesmen, peers, and

politicians of France, commenced their careers as advocates. The

practice of public speaking gives them an immense advantage in the

chambers, and fully half of the most popular debaters are members who

belong to the profession. New candidates for public favour appear every

day, and the time is at hand when the fortunes of France, so lately

controlled by soldiers, will be more influenced by men of this

profession than by those of all the others. This is a great step in

moral civilization; for the country that most feels the ascendancy of

the law, and that least feels that of arms, is nearest to the summit of

human perfection. When asked which profession takes rank in America, I

tell them the law in influence, and the church in deference. Some of my

moustachoed auditors stare at this reply; for here the sword has

precedence of all others, and the law, with few exceptions, is deemed a

calling for none but those who are in the secondary ranks of society.

But, as I have told you, opinion is undergoing a great change in this

particular. I believe that every efficient man in the present ministry

is, or has been, a lawyer.

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