In order to understand why I mention any other than the French, in the capital of France, you will remember that there are many thousands of foreigners established here, for longer or shorter periods, who, by means of their money (a necessary that, relatively, is less abundant with the French), materially affect society, contriving to penetrate it in all directions, in some way or other.
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.