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Chapter 7

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.

James Fenimore Cooper

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