CHAPTER XVII.
“What then avail impeachments, or the law’s
Severest condemnation while the queen
May snatch him from the uplifted hand of justice?”
Earl of Essex.
Perhaps the most certain proof that any people can give of a high moral condition, is in the administration of justice. Absolute infallibility is unattainable to men; but there are wide chasms in right and wrong, between the legal justice of one state of society and that of another. As the descendants of Englishmen, we in this country are apt to ascribe a higher tone of purity to the courts of the mother country, than to those of any other European nation. In this we may be right, without inferring the necessity of believing that even the ermine of England is spotless; for it can never be forgotten that Bacon and Jeffries once filled her highest judicial seats, to say nothing of many others, whose abuses of their trusts have doubtless been lost in their comparative obscurity. Passing from the parent to its offspring, the condition of American justice, so far as it is dependent on the bench, is a profound moral anomaly. It would seem that every known expedient of man has been resorted to, to render it corrupt, feeble, and ignorant; yet he would be a hardy, not to say an audacious commentator, who should presume to affirm that it is not entitled to stand in the very foremost ranks of human integrity.
Ill paid, without retiring pensions, with nothing to expect in the way of family and hereditary honours and dignities; with little, in short, either in possession or in prospect, to give any particular inducement to be honest, it is certain that, as a whole, the judges of this great republic may lay claim to be classed among the most upright of which history furnishes any account. Unhappily, popular caprice, and popular ignorance, have been brought to bear on the selection of the magistrates, of late; and it is easy to predict the result, which, like that on the militia, is soon to pull down even this all-important machinery of society to the level of the common mind.
Not only have the obvious and well-earned inducements to keep men honest—competence, honours, and security in office—been recklessly thrown away by the open hand of popular delusion, but all the minor expedients by which those who cannot think might be made to feel, have been laid aside, leaving the machinery of justice as naked as the hand. Although the colonial system was never elaborated in these last particulars, there were some of its useful and respectable remains, down as late as the commencement of the present century. The sheriff appeared with his sword, the judge was escorted to and from the court-house to his private dwelling with some show of attention and respect, leaving a salutary impression of authority on the ordinary observer. All this has disappeared. The judge slips into the county town almost unknown; lives at an inn amid a crowd of lawyers, witnesses, suitors, jurors and horse-shedders, as Timms calls them; finds his way to the bench as best he may; and seems to think that the more work he can do in the shortest time is the one great purpose of his appointment. Nevertheless, these men, as yet, are surprisingly incorrupt and intelligent. How long it will remain so, no one can predict; if it be for a human life, however, the working of the problem will demonstrate the fallibility of every appreciation of human motives. One bad consequence of the depreciation of the office of a magistrate, however, has long been apparent, in the lessening of the influence of the judge on the juries; the power that alone renders the latter institution even tolerable. This is putting an irresponsible, usually an ignorant, and often a corrupt arbiter, in the judgment-seat, in lieu of the man of high qualities for which it was alone intended.
The circuit and oyer and terminer for Duke’s presented nothing novel in its bench, its bar, its jurors, and we might add its witnesses. The first was a cool-headed, dispassionate man, with a very respectable amount of legal learning and experience, and a perfectly fair character. No one suspected him of acting wrong from evil motives; and when he did err, it was ordinarily from the pressure of business; though, occasionally, he was mistaken, because the books could not foresee every possible phase of a case. The bar was composed of plain, hard-working men, materially above the level of Timms, except in connection with mother-wit; better educated, better mannered, and, as a whole, of materially higher origin; though, as a body, neither profoundly learned nor of very refined deportment. Nevertheless, these persons had a very fair portion of all the better qualities of the northern professional men. They were shrewd, quick in the application of their acquired knowledge, ready in their natural resources, and had that general aptitude for affairs that probably is the fruit of a practice that includes all the different branches of the profession. Here and there was a usurer and extortioner among them; a fellow who disgraced his calling by running up unnecessary bills of cost, by evading the penal statutes passed to prevent abuses of this nature, and by cunning attempts to obtain more for the use of his money than the law sanctioned. But such was not the general character of the Duke’s county bar, which was rather to be censured for winking at irregular proceedings out of doors, for brow-beating witnesses, and for regarding the end so intensely as not always to be particular in reference to the means, than for such gross and positively illegal and oppressive measures as those just mentioned. As for the jurors,[jurors,] they were just what that ancient institution might be supposed to be, in a country where so many of the body of the people are liable to be summoned. An unusually large proportion of these men, when all the circumstances are considered, were perhaps as fit to be thus employed as could be obtained from the body of the community of any country on earth; but a very serious number were altogether unsuited to perform the delicate duties of their station. Fortunately, the ignorant are very apt to be influenced by the more intelligent, in cases of this nature; and by this exercise of a very natural power, less injustice is committed than might otherwise occur. Here, however, is the opening for the “horse-shedding” and “pillowing,” of which Timms has spoken, and of which so much use is made around every country court-house in the state. This is the crying evil of the times; and, taken in connection with the enormous abuse which is rendering a competition in news a regular, money-getting occupation, one that threatens to set at defiance all laws, principles and facts.
A word remains to be said of the witnesses. Perhaps the rarest thing connected with the administration of justice all over the world, is an intelligent, perfectly impartial, clear-headed, discriminating witness; one who distinctly knows all he says, fully appreciates the effect of his words on the jury, and who has the disposition to submit what he knows solely to the law and the evidence. Men of experience are of opinion that an oath usually extracts the truth. We think so too; but it is truth as the witness understands it; facts as he has seen them; and opinions that, unconsciously to himself, have been warped by reports, sneers and malice. In a country of popular sway like this, there is not one man in a thousand, probably, who has sufficient independence of mind, or sufficient moral courage, to fancy he has seen even a fact, if it be of importance, differently from what the body of the community has seen it; and nothing is more common than to find witnesses colouring their testimony, lessening its force by feeble statements, or altogether abandoning the truth, under this pressure from without, in cases of a nature and magnitude to awake a strong popular feeling. It is by no means uncommon, indeed, to persuade one class of men, by means of this influence, that they did not see that which actually occurred before their eyes, or that they did see that which never had an existence.