Part 12

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 favor. 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, with the interest of some fourteen years, had been consumed in this court, with the exception of rather more than £100. 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 £50. 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 honor 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 favoritism, rather than one of facts and principles.

I asked Gen. 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 in the _boite 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 Mad ——, 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 _melo-drama_.

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 every where 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. 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.[6]

Footnote 6:

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 debators, are members who belong to the profession. New candidates for public favor 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 ascendency 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 _moustached_ 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 are or have been lawyers.

LETTER VIII. TO COL. BANKHEAD, U. S. ARTILLERY.

The army of France obtained so high a reputation, during the wars of the revolution and of the empire, that you may feel some curiosity to know its actual condition. As the Bourbons understand that they have been restored to the throne, by the great powers of Europe, if not in opposition to the wishes of a majority of Frenchmen, certainly in opposition to the wishes of the active portion of the population, and consequently to that part of the nation which would be the most likely to oppose their interests, they have been accused of endeavouring to keep the establishments of France so low as to put her at the mercy of any new combination of the allies. I should think this accusation, in a great degree, certainly, unmerited; for France, at this moment, has a large and, so far as I can judge, a well appointed army, and one that is charged by the liberal party with being a heavy expense to the nation, and that, too, chiefly with the intention of keeping the people in subjection to tyranny. But these contradictions are common in party politics. It is not easy here to get at statistical facts, accurately, especially those which are connected with expenditure. Nominally, the army is about 200,000 men, but it is whispered, that numerous _congés_ are given, in order to divert the funds that are thus saved, to other objects. Admitting all this to be true, and it probably is so in part, I should think France must have fully 150,000 men embodied, without including the National Guards. Paris is pretty well garrisoned, and the _casernes_ in the vicinity of the capital are always occupied. It appears to me there cannot be less than 20,000 men, within a day’s march of the Tuileries, and there may be half as many more.[7]

Footnote 7:

The sudden disbandment of the guards and other troops in 1830, greatly diminished the actual force of the country.

Since our arrival there have been several great military displays, and I have made it a point to be present at them all. The first was a _petite guerre_,[8] on the plains of Issy, or within a mile of the walls of the town. There may have been 15,000 men assembled for the occasion, including troops of all arms.

Footnote 8:

Sham-fight.

One of the first things that struck me at Paris, was the careless militia-like manner in which the French troops marched about the streets. The disorder, irregularity, careless and indifferent style of moving, were all exactly such as I have heard laughed at, a thousand times, in our own great body of national defenders. But this is only one of many similar instances, in which I have discovered that what has been deemed a peculiarity in ourselves, arising from the institutions perhaps, is a very general quality belonging rather to man than to any particular set of men. Our notions, you will excuse the freedom of the remark, are apt to be a little provincial, and every one knows that fashions, opinions and tastes, only become the more exaggerated, the farther we remove from the centre of light. In this way, we come to think of things in an exaggerated sense, until, like the boy who is disappointed at finding a king a man, we form notions of life that are any thing but natural and true.

I was still so new to all this, however, that I confess I went to the plain of Issy, expecting to see a new style of manœuvring, or, at least, one very different from that which I had so often witnessed at home, nor, can I say that, in this instance, there was so much disappointment. The plan of the day did not embrace two parties, but was merely an attack on an imaginary position, against which the assailants were regularly and scientifically brought up, the victory being a matter of convention. The movements were very beautiful, and were made with astonishing spirit and accuracy. All idea of disorder, or the want of regularity, was lost, here, for entire battalions advanced to the charges without the slightest apparent deviation from perfectly mathematical lines.

When we reached the acclivity that overlooked the field, a new line was forming directly beneath us, it being supposed that the advance of the enemy had already been driven in upon his main body, and the great attack was just on the point of commencing.

A long line of infantry of the French guards, formed the centre of the assailants. Several batteries of artillery were at hand, and divers strong columns of horse and foot were held in reserve. A regiment of lancers was on the nearest flank, and another of cuirassiers was stationed at the opposite. All the men of the royal family were in the field, surrounded by a brilliant staff. A gun was fired near them, by way of signal, I suppose, when two brigades of artillery galloped through the intervals of the line, unlimbered, and went to work as if they were in downright earnest. The cannonade continued a short time, when the infantry advanced in line, and delivered its fire by companies, or battalions, I could not discern which, in the smoke. This lasted some ten minutes, when I observed a strong column of troops dressed in scarlet, moving up, with great steadiness and regularity, from the rear. These were the Swiss guards, and there might have been fifteen hundred, or two thousand of them. The column divided into two, as it approached the rear of the line, which broke into columns, in turn, and for a minute there was a confused crowd of red and blue coats, in the smoke, that quite set my nautical instinct at defiance. The cuirassiers chose this moment to make a rapid and menacing movement in advance, but without opening their column, and some of the artillery reappeared and commenced firing, at the unoccupied intervals. This lasted a very little while, for the Swiss displayed into line like clock-work, and then made a quick charge, with beautiful precision. Halting, they threw in a heavy fire, by battalions; the French guard rallied and formed upon their flanks; the whole reserve came up; the cuirassiers and lancers charged, by turning the position assailed, and for ten or fifteen minutes there was a succession of quick evolutions, which, like the _finale_ of a grand piece of music, appeared confused even while it was the most scientific, and then there was a sudden pause. The position, whose centre was a copse, had been carried, and we soon saw the guards formed on the ground that was supposed to have been held by the enemy. The artillery still fired, occasionally, as on a retreating foe, and the lancers and cuirassiers were charging and manœuvring, half a mile farther in advance, as if following up their advantage.

Altogether, this was much the prettiest field exercise I ever witnessed. There was a unity of plan, a perfection of evolution, and a division of _matériel_ about it, that rendered it to my eyes, as nearly perfect as might be. The troops were the best of France, and the management of the whole had been confided to some one accustomed to the field. It contained all the poetry, without any of the horrors of a battle. It could not possess the heart-stirring interest of a real conflict, and yet it was not without great excitement.

Some time after the _petite guerre_ of Issy, the capital celebrated the _fête_ of the Trocadero. The Trocadero, you may remember, was the fortress of Cadiz, carried by assault, under the order of the _Dauphin_, in the war of the late Spanish revolution. This government, which has destroyed all the statues of the Emperor, proscribed his family, and obliterated every visible mark of his reign in their power, has had the unaccountable folly of endeavouring to supplant the military glory acquired under Napoleon, by that of Louis Antoine, Dauphin of France! A necessary consequence of the attempt, is a concentration of all the military _souvenirs_ of the day, in this affair of the Trocadero. Bold as all this will appear to one who has not the advantage of taking a near view of what is going on here, it has even been exceeded, through the abject-spirit of subserviency in those who have the care of public instruction, by an attempt to exclude even the name of the Bonaparte from French history. My girls have shown me an abridgment of the history of France, that has been officially prepared for the ordinary schools, in which there is no sort of allusion to him. The wags here, say that a work has been especially prepared for the heir presumptive, however, in which the emperor is a little better treated; being spoken of as “a certain _Marquis de Bonaparte_, who commanded the armies of the king.”

The mimic attack on the Trocadero, like its great original, was at night. The troops assembled in the _Champs de Mars_, and the assault was made, across the beautiful bridge of Jena, on a sharp acclivity near Passy, which was the imaginary fortress. The result was a pretty good effect of night-firing, some smoke, not a little noise, with a very pretty movement of masses. I could make nothing of it, of much interest, for the obscurity prevented the eyes from helping the imagination.