Фредерик Марриет
Diary in America, Series One
Volume Three—Chapter Nine
Remarks—Law
The lawyers are the real aristocracy of America; they comprehend nearly the whole of the gentility, talent, and liberal information of the Union. Any one who has had the pleasure of being at one of their meetings, such as the Rent Club at New York, would be satisfied that there is no want of gentlemen with enlightened, liberal ideas in the United States; but it is to the law, the navy, and the army, that you must chiefly look for this class of people. Such must ever be the case in a democracy, where the mass are to be led; the knowledge of the laws of the country, and the habit of public speaking being essential to those who would reside at the helm or assist in the evolutions: the consequence has been, that in every era of the Union, the lawyers have always been the most prominent actors; and it may be added that they ever will play the most distinguished parts. Clay and Webster of the present day are, and all the leading men of the former generation were, lawyers. Their presidents have almost all been lawyers, and any deviation from this custom has been attended with evil results; witness the elevation of General Jackson to the presidency, and the heavy price which the Americans have paid for their phantom glory. The names of Judge Marshall and of Chancellor Kent are well known in this country, and most deservedly so: indeed, I am informed it has latterly been the custom in our own law courts, to cite as cases the decisions of many of the superior American judges—a just tribute to their discrimination and their worth.
The general arrangement of that part of the American constitution relating to the judicature is extremely good, perhaps the best of all their legislative arrangements, yet it contains some great errors; one of which is, that of district and inferior judges being elected, as it leaves the judge at the mercy of an excitable and overbearing people, who will attempt to dictate to him as they do to their spiritual teacher. Occasionally he must choose whether he will decide as they wish, or lose his situation on the ensuing election. Justice as well as religion will be interfered with by the despotism of the democracy.
The Americans are fond of law in one respect, that is, they are fond of going to law. It is excitement to them, and not so expensive as in this country. It is a pleasure which they can afford, and for which they cheerfully pay.
But, on the other hand, the very first object of the Americans, after a law has been passed, is to find out how they can evade it; this exercises their ingenuity, and it is very amusing to observe how cleverly they sometimes manage it. Every state enactment to uphold the morals, or for the better regulation of society, is immediately opposed by the sovereign people.
An act was passed to prohibit the playing of nine pins, (a very foolish act, as the Americans have so few amusements): as soon as the law was put in force, it was notified every where, “Ten pins played here,” and they have been played every where, ever since.
Another act was passed to put down billiard tables, and in this instance every precaution was taken by an accurate description of the billiard table, that the law might be enforced. Whereupon an extra pocket was added to the billiard table, and thus the law was evaded.
When I was at Louisville, a bill which had been brought in by congress, to prevent the numerous accidents which occurred in steam navigation, came into force. Inspectors were appointed to see that the steam-boats complied with the regulations; and those boats which were not provided according to law, did not receive the certificate from the inspectors, and were liable to a fine of five hundred dollars if they navigated without it. A steam-boat was ready to start; the passengers clubbed together and subscribed half the sum, (two hundred and fifty dollars), and, as the informer was to have half the penalty, the captain of the boat went and informed against himself and received the other half; and thus was the fine paid.
At Baltimore, in consequence of the prevalence of hydrophobia, the civic authorities passed a law, that all dogs should be muzzled, or, rather, the terms were, “that all dogs should wear a muzzle,” or the owner of a dog not wearing a muzzle, should be brought up and fined; and the regulation farther stated that anybody convicted of having, “removed the muzzle from off a dog should also be severely fined.” A man, therefore, tied a muzzle to his dog’s tail (the act not stating where the muzzle was to be placed). One of the city officers, perceiving this dog with his muzzle at the wrong end, took possession of the dog and brought it to the town-hall; its master being well known, was summoned, and appeared. He proved that he had complied with the act, in having fixed a muzzle on the dog; and, farther, the city officer having taken the muzzle off the dog’s tail, he insisted that he should be fined five dollars for so doing.
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.
But leniency towards crime is the grand characteristic of American legislation. Whether it proceeds, (as I much suspect it does,) from the national vanity being unwilling to admit that such things can take place among “a very moral people,” or from a more praiseworthy feeling, I am not justified in asserting: the reader must form his own opinion, when he has read all I have to say upon other points connected with the subject.
I have been very much amused with the reports of the sentences given by my excellent friend the recorder of New York. He is said to be one of the soundest lawyers in the Union, and a very worthy man; but I trust say, that as recorder, he does not add to the dignity of the bench by his facetious remarks, and the peculiar lenity he occasionally shows to the culprits. See Note 3.
I will give an extract from the newspapers of some of the proceedings an his court, as they will, I am convinced, be as amusing to the reader as they have been to me.
The Recorder then called out—“Mr Crier, make the usual proclamation;” “Mr Clerk, call out the prisoners, and let us proceed to sentencing them!”
Clerk. Put Stephen Schofield to the bar.
It was done.
Clerk. Prisoner, you may remember you have heretofore been indicted for a certain crime by you committed; upon your indictment you were arraigned; upon your arraignment you pleaded guilty, and threw yourself upon the mercy of the court. What have you now to say, why judgment should not be passed upon you according to law.
The prisoner, who was a bad-looking mulatto, was silent.
Recorder. Schofield, you have been convicted of a very bad crime; you attempted to take liberties with a young white girl—a most serious offence. This is getting to be a very bad crime, and practised, I am sorry to say, to a great extent in this community: it must be put a stop to. Had you been convicted of the whole crime, we should have sent you to the state-prison for life. As it is, we sentence you to hard labour in the state-prison at Sing Sing for five years; and that’s the judgment of the court; and when you come out, take no more liberties with white girls.
Prisoner. Thank your honour it ain’t no worse.
Clerk. Bring out Mary Burns.
It was done.
Clerk. Prisoner, you may remember, etcetera, etcetera, upon your arraignment you pleaded not guilty, and put yourself on your country for trial; which country hath found you guilty. What have you now to say why judgment should not be pronounced upon you according to law?
(Silent).
Recorder. Mary Burns, Mrs Forgay gave you her chemise to wash.
Prisoner. No, she didn’t give it to me.
Recorder. But you got it somehow, and you stole the money. Now, you see, our respectable fellow-citizens, the ladies, must have their chemises washed, and, to do so, they must put confidence in their servants; and they have a right to sew their money up in their chemise if they think proper, and servants must not steal it from them. As you’re a young woman, and not married, it would not be right to deprive you of the opportunity to get a husband for five years; so we shall only send you to Sing Sing for two years and six months; the keeper will work you in whatever way he may think proper.—Go to the next.
Charles Liston was brought out and arraigned, pro formâ. He was a dark negro.
Clerk. Liston, what have you to say why judgment, etcetera?
Prisoner. All I got to say to his honour de honourable court is, dat I see de error of my ways, and I hope dey may soon see de error of deirs. I broke de law of my free country, and I must lose my liberty, and go to Sing Sing. But I trow myself on de mercy of de Recorder; and all I got to say to his honour, de honourable Richard Riker, is, dat I hope he’ll live to be de next mayor of New York till I come out of Sing Sing.
Recorder (laughing). A very good speech! But, Liston, whether I’m mayor or not, you must suffer some. This stealing from entries is a most pernicious crime, and one against which our respectable fellow-citizens can scarcely guard. Two-thirds of our citizens hang their hats and coats in entries, and we must protect their hats and coats. We, therefore, sentence you to Sing Sing for five years,—Go to the next.
John Mcdonald and Godfrey Crawluck were put to the bar.
Recorder. Mcdonald and Crawluck, you stole two beeves. Now, however much I like beef, I’d he very hungry before I’d steal any beef. You are on the high road to ruin. You went up the road to Harlem, and down the road to Yorkville, and you’ll soon go to destruction. We shall send you to Sing Sing for two years each; and when you come out, take your mother’s maiden name, and lead a good life, and don’t eat any more beef—I mean, don’t steal any more beeves—Go to the next.
Luke Staken was arraigned.
Recorder.—Staken, you slept in a room with Lahay, and stole all his gold (1000 dollars). This sleeping in rooms with other people, and stealing their things, is a serious offence, and practised to a great extent in this city; and what makes the matter worse, you stole one thousand dollars in specie, when specie is so scarce. We send you to Sing Sing for five years.
Jacob Williams was arraigned. He looked as if he had not many days to live, though a young man.
Recorder. Williams, you stole a lot of kerseymere from a store, and ran off with it—a most pernicious crime! But, as your health is not good, we shall only send you to Sing Sing for three years and six months.
John H Murray was arraigned.
Recorder. Murray, you’re a deep fellow. You got a Green Mountain boy into an alley, and played at “shuffle and burn,” and you burned him out of a hundred dollars. You must go to Sing Sing for five years; and we hope the reputable reporters attending for the respectable public press will warn our respectable country friends, when they come into New York, not to go into Orange street, and play at “shuffle and burn” among bad girls and bad men, or they’ll very likely get burnt, like this Green Mountain boy.—Go to the next.
William Shay, charged with shying glasses at the head of a tavern-keeper. Guilty.
Recorder. This rioting is a very bad crime, Shay, and deserves heavy punishment; but as we understand you have a wife and sundry little Shays, we’ll let you off, provided you give your solemn promise never to do so any more.
Shay. I gives it—wery solemnly.
Recorder. Then we discharge you.
Shay. Thank your honour—your honour’s a capital judge.
John Bowen, charged with stealing a basket. Guilty.
Recorder. Now, John, we’ve convicted you; and you’ll have to get out stone for three months on Blackwell’s Island—that’s the judgment of the court.
Buckley and Charles Rogers, charged with loafing, sleeping in the park, and leaving the gate open, were discharged, with a caution to take care how they interfered with corporation rights in future, or they would get their corporation into trouble.
Ann Boyle, charged with being too lively in the street. Let off on condition of being quiet for the time to come.
Thomas Dixon, charged with petty larceny. Guilty.
Dixon. I wish to have judgment suspended.
Recorder. It’s a bad time to talk about suspension; why do you request this?
Dixon. I’ve an uncle I want to see, and other relations.
Recorder. In that case we’ll send you to Black well’s island for six months, you’ll be sure to find them all there. Sentence accordingly.
Charles Enroff, charged with petty larceny—coming Paddy over an Irish shoemaker, and thereby cheating him out of a pair of shoes.—Guilty.
Sentenced to the penitentiary, Blackwell’s island, for six months, to get out stone.
Charles Thorn, charged with assaulting Miss Rachael Prigmore.
Recorder. Miss Prigmore, how came this man to strike you?
Rachael. Because I wouldn’t have him. (A laugh.) He was always a teasing me, and spouting poetry about roses and thorns; so when I told him to be off he struck me.
Prisoner (theatrically). Me strike you! Oh, Rachael—
“Perhaps it was right to dissemble your love,
But why did you kick me down stairs?”
Prisoner’s Counsel. That’s it, your honour. Why did she kick him down stairs?
This the fair Rachael indignantly denied, and the prisoner was found guilty.
Recorder. This striking of women is a very bad crime, you must get out stone for two months.
Prisoner. She’ll repent, your honour. She loves me—I know she does.
“On the cold flinty rock, when I’m busy at work,
Oh, Rachael, I’ll think of thee.”
Thomas Ward, charged with petty larceny. Guilty. Ward had nothing to offer to ward off his sentence, therefore he was sent to the island for six months.
Maria Brandon, charged with petty larceny. Guilty. Sentenced to pick oakum for six months.
Maria. Well, I’ve friends, that’s comfort, they’ll sing—
“Oh, come to this bower, my own stricken deer.”
Recorder. You’re right, Maria, it’s an oakum bower you’re going to.
The court then adjourned. See Note 4.
But all these are nothing compared with the following, which at first I did not credit. I made the strictest inquiry, and was informed by a legal gentleman present that it was correct. I give the extract as it stood in the newspapers.
Influence of a Pretty Girl.—“Catherine Manly,” said the Recorder yesterday, in the sessions, “you have been convicted of a very bad crime. This stealing is a very serious offence; but, as you are a pretty girl! we’ll suspend judgment, in hopes you will do better for the future.” We have often heard that justice was blind. What a fib to say so!
Mr Carey, in his publication on Wealth, asserts, that security of property and or person are greater in the United States than in England. How far he is correct I shall now proceed to examine. Mr Carey says, in his observations on security of person:—“Comparing Massachusetts with England and Wales, we find in the former 1 in 86,871 sentenced to one year’s imprisonment or more; whereas, in the latter 1 in 70,000 is sentenced to more than one year. The number sentenced to one year or more in England is greater than in Pennsylvania. It is obvious, therefore, that security is much greater in Massachusetts than in England, and consequently greater than in any other part of the world.”
Relative to crimes against security of property, he asserts:—
Of crimes against property, involving punishments of one year’s imprisonment, or more, we find:—
While in England, in the year 1834, their convictions for offences against property, involving punishments exceeding one year’s imprisonment, was 1 in 3,120.
Now, that these numbers are fairly given, as far as they go, I have no doubt; but the comparison is not just, because, first, in America crime is not so easily detected; and, secondly, when detected, conviction does not always follow.
Mr Carey must be well aware that, in the American newspapers, you continually meet with a paragraph like this:—“A body of a white man, or of a negro, was found floating near such and such a wharf, on Saturday last, with evident marks of violence upon it, etcetera. etcetera, and the coroner’s inquest is returned either found drowned, or violence by person or persons unknown.” Now, let Mr Carey take a list from the coroner’s books of the number of bodies found in this manner at New York, and the number of instances in which the perpetrators have been discovered; let him compare this list with a similar one made for England and Wales, and he will then ascertain the difference between the crimes committed in proportion to the convictions which take place through the activity of the police in our country, and, it may be said, the total want of police in the United States.
As to the second point, namely, that when crimes are detected, conviction does not follow, (see Note 5) I have only to refer back to the cases of Robinson and Goodwin, two instances out of the many in which criminals in the United States are allowed to escape, who, if they had committed the same offence in England, would most certainly have been hanged. But there is another point which renders Mr Carey’s statement unfair, which is, that he has no right to select one, two, or even three states out of twenty-six, and compare them all with England and Wales.
The question is, the comparative security of person and property in Great Britain and the United States. I acknowledge that, if Ireland were taken into the account, it would very much reduce our proportional numbers; but, then, there crime is fomented by traitors and demagogues—a circumstance which must not be overlooked.
Still, the whole of Ireland would offer nothing equal in atrocity to what I can prove relative to one small town in America: that of Augusta, in Georgia, containing only a population of 3,000, in which, in one year, there were fifty-nine assassinations committed in open day, without any notice being taken of them by the authorities.
This, alone, will exceed all Ireland, and I therefore do not hesitate to assert, that if every crime committed in the United States were followed up by conviction, as it would be in Great Britain, the result would fully substantiate the fact, that, in security of person and property, the advantage is considerably in favour of my own country.
Note 1. Miss Martineau, speaking of the jealousy between the Americans and the French creoles, says—“No American expects to get a verdict, on any evidence, from a jury of French creoles.”
Note 2. America though little more than sixty years old as a nation, has already published an United States Criminal Calendar (Boston, 1835.) I have this book in my possession, and, although in number of criminals it is not quite equal to our Newgate Calendar, it far exceeds it in atrocity of crime.
Note 3. Some allowance must be made for the license of the reporters, but in the main it is a very fair specimen of the recorder’s style and language.
