Frederick Marryat – The Complete Collection

Chapter 66

The striped pig, I have already mentioned; but were I to relate all I have been told upon this head, it would occupy too much of the reader's time and patience.

The mass of the citizens of the United States have certainly a very great dislike to all law except their own, i.e., the decision of the majority; and it must be acknowledged that it is not only the principle of equality, but the parties who are elected as district judges, that, by their own conduct, contribute much to that want of respect with which they are treated in their courts. When a judge on his bench sits half-asleep, with his hat on, and his coat and shoes off; his heels kicking upon the railing or table which is as high or higher than his head; his toes peeping through a pair of old worsted stockings, and with a huge quid of tobacco in his cheek, you cannot expect that much respect will be paid to him. Yet such is even now the practice in the interior of the western states. I was much amused at reading an English critique upon a work by Judge Hall (a district judge), in which the writer says, "We can imagine his honour in all the solemnity of his flowing wig," etcetera, etcetera. The last time I saw his honour he was cashier to a bank at Cincinnati, thumbing American bank-notes--dirtier work than is ever practised in the lowest grade of the law, as any one would say if he had ever had any American bank-notes in his possession.

As may be supposed, in a new country like America, many odd scenes take place. In the towns in the interior, a lawyer's office is generally a small wooden house, of one room, twelve feet square, built of clapboards, and with the door wide open; and the little domicile with its tenant used to remind me of a spider in its web waiting for flies.

Not forty years back, on the other side of the Alleghany mountains, deer skins at forty cents per pound, and the furs of other animals at a settled price, were legal tender, and received both by judges and lawyers as fees. The lawyers in the towns on the banks of the Susquehannah, where it appears the people, (notwithstanding Campbell's beautiful description,) were extremely litigious, used to receive all their fees in kind, such as skins, corn, whiskey, etcetera, etcetera, and, as soon as they had sufficient to load a raft, were to be seen gliding down the river to dispose of their cargo at the first favourable mart for produce. Had they worn the wigs and gown of our own legal profession, the effect would have been more picturesque.

There is a record of a very curious trial which occurred in the state of New York. A man had lent a large iron, kettle, or boiler, to another, and it being returned cracked , an action was brought against the borrower for the value of the kettle. After the plaintiff's case had been heard, the counsel for the defendant rose and said:--"Mister Judge, we defend this action upon three counts, all of which we shall most satisfactorily prove to you.

"In the first place, we will prove, by undoubted evidence, that the kettle was cracked when we borrowed it.

"In the second, that the kettle, when we returned it was whole and sound.

"And in the third, we will prove that we never borrowed the kettle at all."

There is such a thing as proving too much, but one thing is pretty fairly proved in this case, which is, that the defendant's counsel must have originally descended from the Milesian stock.

I have heard many amusing stories of the peculiar eloquence of the lawyers in the newly settled western states, where metaphor is so abundant. One lawyer was so extremely metaphorical upon an occasion, when the stealing of a pig was the case in point, that at last he got to "coruscating rays." The judge (who appeared equally metaphorical-- himself) thought proper to pull him up by saying:--"Mr --, I wish you would take the feathers from the wings of your imagination, and put them into the tail of your judgment."

Extract from an American paper:--

"Scene.--A Court-house not fifty miles from the city of Louisville. Judge presiding with great dignity. A noise is heard before the door. He looks up, fired with indignation.--`Mr Sheriff, sir, bring them men in here; this in the temple of liberty--this in the sanctuary of justice, and it shall not be profaned by the cracking of nuts and the eating of gingerbread.'"-- Marblehead Register .

I have already observed that there is a great error in the office of the inferior and district judges being elective, but there are others equally serious. In the first place the judges are not sufficiently paid. Captain Hamilton remarks:--

"The low salaries of the judges constitute matter of general complaint among the members of the bar, both at Philadelphia and New York. These are so inadequate, when compared with the income of a well-employed barrister, that the state is deprived of the advantage of having the highest legal talent on the bench. Men from the lower walks of the profession, therefore, are generally promoted to the office; and for the sake of a wretched saving of a few thousand dollars, the public are content to submit their lives and properties to the decision of men of inferior intelligence and learning.

"In one respect, I am told, the very excess of democracy defeats itself. In some states the judges are so inordinately underpaid, that no lawyer who does not possess a considerable private fortune can afford to accept the office. From this circumstance, something of aristocratic distinction has become connected with it, and a seat on the bench is now more greedily coveted than it would be were the salary more commensurate with the duties of the situation."

The next error is, that political questions are permitted to interfere with the ends of justice. It is a well-known fact that, not long ago, an Irishman, who had murdered his wife, was brought to trial upon the eve of an election; and, although his guilt was undoubted, he was acquitted, because the Irish party, which were so influential as to be able to turn the election, had declared that, if their countryman was convicted, they would vote on the other side.

But worst of all is the difficulty of finding an honest jury--a fact generally acknowledged. Politics, private animosities, bribery, all have their influence to defeat the ends of justice, and it argues strongly against the moral standard of a nation that such should be the case; but that it is so is undoubted. [See Note 1.] The truth is that the juries, have no respect for the judges, however respectable they may be, and as many of them really are. The feeling "I'm as good as he" operates everywhere. There is no shutting up a jury and starving them out as with us; no citizen, "free and enlightened, aged twenty-one, white," would submit to such an invasion of his rights. Captain Hamilton observes:--

"It was not without astonishment, I confess, that I remarked that three-fourths of the jury-men were engaged in eating bread and cheese, and that the foreman actually announced the verdict with his mouth full, ejecting the disjointed syllables during the intervals of mastication! In truth, an American seems to look on a judge exactly as he does on a carpenter or coppersmith; and it never occurs to him, that an administrator of justice is entitled to greater respect than a constructor of brass knockers, or the sheather of a ship's bottom. The judge and the brazier are paid equally for their work; and Jonathan firmly believes that, while he has money in his pocket, there is no risk of suffering from the want either of law or warming pans."

One most notorious case of bribery, I can vouch for, as I am acquainted with the two parties, one of whom purchased the snuff-box in which the other enclosed the notes and presented to the jurymen. A gentleman at New York of the name of Stoughton, had a quarrel with another of the name of Goodwin: the latter followed the former down the street, and murdered him in open day by passing a small sword through his body. The case was as clear as a case could be, but there is a great dislike to capital punishment in America, and particularly was there in this instance, as the criminal was of good family and extensive connections. It was ascertained that all the jury except two intended to acquit the prisoner upon some pretended want of evidence, but that these two had determined that the law should take its course, and were quite inexorable. Before the jury retired to consult upon the verdict, it was determined by the friends of the prisoner that an attempt should be made by bribery to soften down the resolution of these two men. As they were retiring, a snuff-box was put into the hands of one of them by a gentleman, with the observation that he and his friend would probably find a pinch of snuff agreeable after so long a trial. The snuff-box contained bank notes to the amount of 2,500 dollars (500 pounds sterling). The snuff-box and its contents were not returned, and the prisoner was acquitted.

The unwillingness to take away life is a very remarkable feature in America, and were it not carried to such an extreme length, would be a very commendable one. An instance of this occurred just before my arrival at New York. A young man by the name of Robinson, who was a clerk in an importing house, had formed a connection with a young woman on the town, of the name of Ellen Jewitt. Not having the means to meet her demands upon his purse, he had for many months embezzled from the store goods to a very large amount, which she had sold to supply her wants or wishes. At last, Robinson, probably no longer caring for the girl, and aware that he was in her power, determined upon murdering her. Such accumulated crime can hardly be conceived! He went to sleep with her, made her drunk with champagne before they retired to bed, and then as she lay in bed murdered her with an axe, which he had brought with him from his master's store. The house of ill-fame in which he visited her was at that time full of other people of both sexes, who had retired to rest--it is said nearly one hundred were there on that night, thoughtless of the danger to which they were exposed, fearful that the murder of the young woman would be discovered and brought home to him, the miscreant resolved to set fire to the house, and by thus sending unprepared into the next world so many of his fellow creatures, escape the punishment which he deserved. He set fire to the bed upon which his unfortunate victim laid, and having satisfied himself that his work was securely done, locked the door of the room, and quitted the premises. A merciful Providence, however, directed otherwise; the fire was discovered, and the flames extinguished, and his crime made manifest. The evidence in an English court would have been more than sufficient to convict him; but in America, such is the feeling against taking life that, strange to say, Robinson was acquitted, and permitted to leave for Texas, where it is said, he still lives under a false name. I have heard this subject canvassed over and over again in New York; and, although some, with a view of extenuating to a foreigner such a disgraceful disregard to security of life, have endeavoured to show that the evidence was not quite satisfactory, there really was not a shadow of doubt in the whole case. See Note 2.