Wiser in another respect also than we, these "Bay folk" have no courts (except for cases of twenty dollars or less) held by men who have not themselves studied the science they are to expound: no parallel to our county courts—those crack tribunals of some great men, whose admiration arises either from the want of intimate knowledge—they having ranged generally in a higher sphere—or from their enjoying over that bench an influence, flattering to their vanity, and blinding to their judgments. How long will the public attention sleep—how long will the hand of reform be palsied—when will an attempt be made to cure the unfitness of these courts for the weighty, multifarious, and difficult functions entrusted to them?—the ludicrous, if it were a less mischievous, uncertainty of their decisions, owing to their ignorance of any fixed rules by which to decide?—the delays, so fatal to justice, that attend their unsteady ministration?—the ruinous accumulation of costs, besides harassment and loss of time in dancing attendance upon them through years of litigation?
The Massachusetts and Connecticut plan, of an itinerant supreme court, cannot be commended to imitation. The common arguments, of bringing justice home to the people, and enabling suitors to see in person to their causes, are not pertinent, where the whole case is contained in the record; where no witnesses are to be summoned or examined—no counsel to be instructed in the cause. Then, the loss of time in travelling, and the want of so extensive a library and so able a bar, as would be formed if the court sat always in one place, must essentially impair the correctness of its decisions, and lower the superiority of its intellect.
The common-law of England is made the basis of Massachusetts law, not, as in Virginia, by a legislative declaration that it shall be so, but by adjudications of the courts, recognizing and adopting it as such. By a still bolder stretch, the courts have acknowledged as generally binding, English statutes made in amendment of the common-law—not only before, but since the foundation of the colony: nay, the terms of the decision do not exclude English statutes subsequent to the American revolution. This comprehensive grafting of a foreign code upon the domestic, not by professed and authorised law-givers, but by mere judges, is perhaps one of the most remarkable instances of judicial legislation, any where to be found: and must have arisen from a licentious spirit of construction, which, when it acts upon written laws, may naturally be expected to make them mean almost any thing that the interpreters choose.3 The admirers of an unwritten law, reposited in the breasts of judges and to be sought only in precedents and decisions, may vaunt, if they will, its happy elasticity, dilating and contracting to fit every conceivable emergency: but I doubt if (among other evils) it does not nurture habits of latitudinous interpretation, destined to be well nigh fatal to one of the great boasts of modern times—written forms of government. Minds accustomed always to make the law adapt itself to the particular occasion; to regard that as law, which the immediate case requires; naturally fritter away constitutions with as little ceremony, as children demolish or alter their sand houses and dirt pies.
3 Hardly less startling an exercise of legislative power by the judiciary, was in the abolition of slavery. The Bill of Rights prefixed to the constitution of Massachusetts, adopted in 1780, asserts, as most of our state constitutions do—substantially copying the Declaration of Independence—"that all men are born free and equal, and have certain natural and unalienable rights;" namely, the right of enjoying their lives and liberties, &c. On this, some masters spontaneously yielded freedom to their slaves; others, on its being demanded of them. In 1781, a master who refused, was sued by his slave for a trespass, assault and battery, and false imprisonment; and pleaded, that the plaintiff, being his slave, had no right to sue him. The court held, that slavery was contrary to the first article of the Bill of Rights; and that therefore the plea was bad, and the plaintiff was free. This decision virtually abolished slavery in Massachusetts, without any legislative act for doing so. Some other suits were brought; but in most cases, masters yielded at once. There were then not quite five thousand slaves in the state. Abolition was similarly effected in New Hampshire. It was by legislation in New York, where there were twenty-one thousand slaves, in a whole population of three hundred and forty thousand.
The chief court of Massachusetts has tasked the readers of law-books, as heavily as our's has done. Its decisions fill twenty-seven or twenty-eight octavo volumes—about our number. The supreme court of New York has issued more than thirty; the supreme court at Washington eighteen or twenty; Pennsylvania, Connecticut, South Carolina—but I forbear the appalling list. Every good law library, however, should have at least the five sets first named; and they are as yet but just begun. If the monstrous increase be not checked, what purse can buy, what head can read (much less remember,) nay what room can hold them, a century hence? Already, indeed, we are grievously over-tasked: for besides the thousands of tomes, English and American, now accumulated,4 it is impossible to keep pace with the daily accessions, poured forth from a hundred manufactories of legal oracles. Some powerful condenser, or another Caliph Omar, is our only hope. The oppressive bulkiness of law-reports is owing partly to the reporters; but more, to the judges—who, apparently more intent on the display of learning and ingenuity, than upon adjusting the rights of the parties, often swell the simple and clear page or two, which the case requires, into a rambling and voluminous disquisition of twenty pages. Nay, not content with one such disquisition in each case, each judge presents his own; and the reporter spreads them all at length in his next volume. I wish that both judges and reporters could be obliged to study, as models of lucid brevity, Yelverton's Reports, and the still more admirable decisions of Chief Justice Tindal, of the English Common-Pleas5—who frequently compresses into half a page or less, what our American judges would wire-draw into half a dozen pages.
4 "Immenso aliarum super alias acervatarum legum cumulo."
5 In the late "English Common-Law Reports."
Lawyers are very numerous in Massachusetts—somewhere about seven hundred; of whom one hundred and sixty or one hundred and eighty are in Boston. Their intercourse appears to be marked by the same fraternal spirit, which strews the toilsome path of the profession in the south with so many sweets and flowers. Admission to the bar is procured, not by examination, but by leave of court, on recommendation of those who are already practising there; provided the candidate have studied five years in some lawyer's office; or have so studied three years, and be a graduate of some college. He has, besides, to pay for admission into the supreme court, a fee of thirty dollars, and for the common-pleas, twenty dollars; to be expended towards a joint library, for the use of the bar in each county. These libraries are sometimes large, and well selected. The emoluments of practice, except to the very leaders of the profession, seem far inferior to those of practisers occupying correspondent grades of talent and fame in Virginia: indeed, I doubt whether any but Mr. Webster receives an amount comparable to the incomes of several there, whom I could name. Yet the life of a lawyer is probably more pleasant in Massachusetts. From the pre-requisites to admission, you may infer that well-stored minds abound more with the fraternity: at least it was so, till our university, and our several excellent law-schools, began to give a clearer and more expanded ken to the mental optics of our young lawyers. Then, in society at large—certainly in the towns and villages—there is more literature afloat in Massachusetts: amusements are of a more rational cast. Where we have a horse-race, a barbecue, a whist-party, or a pool at back-gammon, our Yankee brethren have a meeting of some lyceum, or other society for mutual improvement, at which a lecture is given or a debate held, upon some interesting subject, of economy or morals: or an unceremonious evening visit is dedicated to conversation, in which politics engross no unreasonable share. The newspapers—even the most violent political ones—at once attest and foster the prevalent taste for general knowledge, by devoting a considerable part of their sheets to literary and useful matter: unlike the two giants of the press in Virginia, that can hardly ever spare a column, and never a page, from the embittering—aye, the brutalizing—themes of party strife, to topics which might exalt, enlighten, purify, innocently amuse, and humanize the public mind. There is less locomotion in the practice of a Massachusetts lawyer: he rarely attends more than two counties; for the most part, only one. This, if he loves domestic life, is a great point for him. And in the ordering of a New England home-stead, there is a quiet, smooth despatch—a neatness—a happy fitting of means to ends—a nicety of contrivances for comfort—an economy of trouble in every thing—all calculated doubly to endear it to a home-loving man. When to all this we add, that though the prime necessaries of life are cheaper with us, those elegancies and luxuries which as the world goes have become necessaries, are so much more accessible in New England, as to make a smaller income yield a larger store of comfort; it will not seem wonderful, that the balance of enjoyment is on the Massachusetts lawyer's side. I take for granted, you see, that he is not insensible to intellectual pleasures; and that they conduce the most of all to happiness.
This is probably the last time you will hear from me before we meet; as my tour is drawing near its close. The six weeks it has occupied, have been crowded with more mind-stirring incident, than any six months of my previous life. Vivid indeed is the contrast, between the plodding, eventless tenor of the preceding eight years, and the exciting, the feverish interest of these six weeks. Yet they have afforded scarcely a describable adventure; nothing, at all calculated to make an auditor's eyes stretch wide, or his hair stand on end. In truth, the interest is explicable in great part by the simple case of a plough-horse, turned loose to kick up his heels for an hour. He enjoys the recreation (if his spirit is not broken by excessive work,) five fold more than a daily roamer of the pasture could do. Judge how the sport has kept my faculties aroused, by the fact, that though habitually a great sleeper, requiring seven or eight hours in the twenty-four, my sleep, since leaving Virginia, would hardly average five hours. Even while on foot—walking from twenty to thirty miles a day—my nightly allowance was sometimes less than five, never more than six hours.