Epilegomina.
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THE arrival of the mail this day, (January 29th,
1805) at this place, (Carlisle) announces the acquittal
of the impeached judges. I am not one of those who
have found the least fault, or taken exception even in
my mind to the enquiry which the House of Representatives
thought proper to institute in the shape of an
impeachment. For though it sounds harsh to talk of
an impeachment where the heart is sound, and but mere
error of judgment, and what Judge is not fallible? yet
what can be done when a power is exercised which becomes
questionable on the ground of the constitution or
of law? It was under this view of the matter, and
with this impression, that I was willing to submit to
the examination of the question in the case of Passmore;
though my motives were misapprehended, and
instead of obtaining credit, for republican virtue, I was
stigmatized as coming forward to insult the majesty of
the people, in the persons of their representatives. But
I was always far from thinking there might not be
ground of an examination of the abstract principle; for
as to manner or motive with the court, I was sensible
that nothing did exist, and nothing could appear, partial,
tyrannical, or oppressive. Even the hint of Judge
Yeates, with regard to apologies, though I objected
to it, I well knew was the offspring of humanity. But
I thought it unnecessary as it respected the defendant
who was a person capable of deciding for himself, and
had council; but still more as it respected the prosecutor,
(Bayard) who might think it an insult to talk of
apologies, in a case where he had been charged with
perjury, bankruptcy, subterfuge, and fraud. But why
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not proceed by indictment, and bring the matter before
a Jury? Because the interference with a suit depending,
reflecting on the cause of action, or canvasing
the merits of the controversy, is not an indictable
offence. It cannot be brought before a jury. The attachment
of the court is the only remedy which the law
gives. Where it is coupled with a libel on the person,
I am not clear that it could be taken into view by
the court in assessing the fine on a conviction for the
libel. Because the offences are distinct; the one indictable
as a crime; the other reprehensible as a misdemeanour
of a high, but peculiar nature, and for which the
attachment is provided. The whole confusion has arisen,
from the not discriminating the libel on the cause, from
the libel on the person. The constitution provides in
the one case. In the other it is left to the common
law.
I have understood, that in the course of the late
trial, an allusion was made by a manager (Boileau) on the
part of the commonwealth, to a pamphlet which in the
pendency of the prosecution had been published at
Carlisle, my place of residence, containing strictures
on the impeachment of the Judges, and the proceedings
of the legislative branches in my case. The inference
naturally was, and the insinuation plainly made,
that the publication was by me. I had seen the pamphlet,
and cast my eye over some part of it, shortly
after it appeared, and was hurt much at the circumstance,
as I foresaw immediately the application; that
it would be adduced as an example of Judges themselves,
or others for them interfering in a case depending
before a Judicial Tribunal. All I can do is to aver
that it was without my privity or approbation: I had
no knowledge of the writing, nor do I know but by report,
who was the author. I have never called in question
the necessity, or the expediency of the impeachment;
or attributed to a blameable motive the proceedings
in my own case.
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This frankness, I hope will relieve me, from the
suspicion of having written this book, in a spirit of
malevolence towards the representative bodies; or that
I have them in view, in my allusions to the running
down Judges, or judicial establishments. It is the
wild fire out of doors; the inflammatory gass of popular
obloquy that has shewn itself in 4th of July toasts;
collected, and selected, published, and republished, in
country journals especially; all tending to the same
point, the bearing down the Judges on the approaching
trial; thus deprived of a protection which every
other citizen enjoys, the repression of every thing of this
kind during the pendency of the plaint; or matter undetermined
in a court of justice.
Let it be understood, therefore, that it is not a legal
enquiry in the cases of judges as well as every
other citizen, that I arraign; it is the unfairness of
edeavouring to prepossess the public mind against
them, during the investigation, or with a view to instigate
complaints. For should this out of door spirit
prevail, I can easily see where it will terminate. Every
4th of July orator will ressucitate liberty, and call
her shade around to hover over the demolition of the
common law, and the power of courts. Every man
that sets up for office must promise a victim to obtain
suffrages. Every candidate that goes upon the election
ground must edeavour to render himself popular
by talking of knocking down a Judge. Every young
member of assembly will make his first essay, at putting
on his arms, by the atchievement of moving an
impeachment. At home, every man that loses a cause,
or suffers penally for a crime, or misdemeanour, will
complain and bring forward accusations. Judge hunting
will become, to speak figuratively, a fashionable
country sport, and the ambitious to hark in, will pursue
it with as much avidity, as men do the wild boar in the
forests of Westphalia.
If it should be thought by the wise and judicious,
that this is an eligible state of things, let it go on.
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The principle I hope will be universal, and no man will
insits upon a court protecting his cause, when they are
not protected themselves. This principle of the common
law, taken away, or restrained, will make a change
in the administration of justice, and the peace of the
commonwealth; but if it should be thought adviseable
by the law-making power, to tolerate or sanction it,
who can hinder? It must take place, “and let all the
people say amen.”
It is easy to see the result of all this. Who will
be a judge under such circumstances? No one that
is fit for it. I do not flatter myself so much as to suppose
that a change of men on the bench to which I
belong, can materially affect the administration of justice;
but it is the change of situation? that prostration
of spirit; that abatement of mind, which I deprecate,
and which must put the office far below the acceptance
of any person qualified.
I have no idea as is suggested by some, that the noisy
and vociferous have in view to depreciate the office of a
judge, in order to bring it to a level with themselves, and
that they may occupy it. For they do not look even so far
before them. They have nothing more in view, than
to put down what is just before them, without thinking
what is to come after; and others have not even that
in view; but by an instinctive impulse, call out with
those that are around them.
These are the errors of democracy, and it is at such
a time as this, that it becomes all real democrats to
speak out, and endeavour to correct the public mind.
This is not effected under a government of laws, by
imposing silence on the individual; or checking the
exercise of private judgment; for liberty like nature,
permits every animal to exert its powers, and enjoy its
own voice. It is by respectful treatment, and the reasoning
of truth, that the uninformed are instructed,
and the misled set right. Democracy is a wild but
generous animal. It is never destroyed but by its own
strength.
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It is a great pity that the public prints are not always
in the hands of men whose information is equal to
their zeal for the republic. But it cannot be, in a
young country especially, where learning is yet but in
its infancy; and the helps that we get from abroad,
though able, yet are fresh hands, and do not always
understand the work. They over do it. They have
got a new heaven, and a new earth here, and they
think there ought to be new every thing; or, in fact,
they will let nothing stand that has not been put up by
themselves. Well-meaning men; but like a spring
flood, they bring more water than serves the mills.
I have thought it due from intelligent and well educated
men, naturalized among us, and who have influence,
or are supposed to have influence over the mad-caps
of their countrymen, to give them lessons of
good sense, and tell them when they are upon a wrong
scent.
But they find the same difficulty that we do with
those that have been born in the country, but have not
had the best opportunities of information, or whose activity
and zeal of mind carries them beyond the bounds
of moderation. It is a subject of regret, as it brings reproach
upon the liberality of those who are for extending
the rights of citizenship to all from beyond the water
as soon as they arrive. It occasions a protraction of
the rights of citizenship under our naturalization laws.
With what good will would every man felicitate the arrival
of active spirits from the trans-atlantic countries to
these shores, were it not for the wild fire which they
bring among us; and which added to the fury of our
own hot spurs, carry us to an extreme. For we have
Harry Piercys among ourselves, enough in all conscience,
in this battle. Our democracy at the present time
in Pennsylvania, is going the way of all democracies, to
extremes. It is the subject of exultation to its opponents;
I cannot blame them. They have had their
mortifications, and it is natural to rejoice, at what they
must perceive is coming to pass, the humiliation of
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their adversaries. For what is a greater humiliation
to any individual, or body of people, than to see a
cause of shame in their own folly and extravagance;
or perhaps, injustice.
Before the election of the present Governor, from
the growing settlement of the state, the organization
of the courts had been found inadequate to the administration
of justice, which ought to be rendered
speedy, and brought as much as possible home to
every man's door. The knowledge which the Governor,
in the capacity of Chief Justice, could not but
have of the geography, as well as population, of the
state, put it in his power to have contributed to arrangements
of this nature; and his intimate knowledge of
the law qualified him abundantly to adapt changes to
the administration of it. Much was expected from
this; and though it appears to have been pressed in
strong terms every session, by the Governor; yet
nothing on a great scale has been done. The constituents,
in the mean time complain of the delay of law;
but seek for the cause of this, as the Indians do diseases,
in an evil spirit, that of the lawyers, or the law
itself. They wish the representatives to pow-wow, and
drive this devil out by some means, so that every man
may get his own, and cost him nothing. The representative
is willing to do his best; but no two can
agree upon the same means; and neither of these two
is willing to trust a third because he has also his opinion.
It is unfortunate, and will lose to the democratic
administration the opportunity, and the credit of establishing
a system that would put to silence the calumny
of those who say, that we are friends to neither law,
nor order.
The opposition to the election of Governor M'Kean,
was not to himself personally, but on account of the
political principles of a great portion of those by whom
he was taken up. These, on account of their attachment
to the French revolution, in the early stages of
it and also to the struggle of the Patriots of Ireland,
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were associated in epithet, and called Jacobins,
and United Irishmen. It was apprehended that these
would be disposed to run to extremes, as the revolutionists
in France had done; and that a Governor
elected by these, could not but go with them in all
their excesses and projects in administering the government.
Better things were expected by me of these
people themselves; for I had been an enthusiast in
the revolutionary cause of France; and strongly attached
to the cause of the Patriots in Ireland, and I
could not find in myself any thing of that spirit which
was deprecated as likely to take possession of this
state, on these people geting possession of the government.
I threw the small weight I had, into the scale
with them, and having succeeded, I have been anxious,
that unfavourable predictions might not be fulfilled.
The vanity of a man will sometimes assist his virtue.
I had considered myself a sort of leader on a small
scale, in a particular district; at least it would seem
to me, that I was so considered by others, if I may
infer it from the attacks upon me, from the opposite
quarter; and I felt a concern for the honour of the
people with whom I considered myself as having contended.
So much so, that it entered greatly into my
mind when I came forward, and offered myself to be impeached
with the other Judges. And now I feel it as
a matter that interests myself; it has become my own
ambition, what ought to be theirs, to prove that the
democratic part of the community are not incapable of
establishing, and preserving order, as well as effecting
a revolution.
I must acknowledge that I have not been able to
prove to my own satisfaction, that this has appeared
in every proceeding of the legislative body; I do not
speak so much of the bills which the Governor has
negatived, as of those which, but for the opposition
expected from him, would have been brought forward.
The governor's negative, it will be observed, renders
two thirds of each house necessary to pass a law, and
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this is a check to the bringing forward, such as give
reason to have it supposed, that the governor will not
sanction, and which two thirds cannot be obtained to
pass.
But it is to the constituent that my ideas are always
remounting; the people at home, amongst
whom disorganizing principles, as they are called, are
entertained, or about to be propagated. It is the object
of this book to reach them; and I have written
it in a playful way, to shew that I am in good humour,
and “hoping it will find them in the same
condition.”
There is an ultimate point of depression, as well as
exaltation, to use the language of Hume, from whence
things begin to return in a contrary direction. There
is reason to hope that this destructive gass, which for
some years, has infected our atmosphere, with more
pernicious consequences to the body politic, than a
yellow fever to a city, will begin to dissipate. But
however guardedly I may express myself, I know the
consequence of the freedom with which I write, that
it may draw upon me invective, and perhaps abuse,
not from men of high standing and authority; for I
have a confidence in great minds, and they are incapable
of even disapproving the freedom of open and manly
stricture; but from subordinates who may think
that the gods are pleased with burnt-offerings; and
for this reason may be disposed to scorch, and immolate,
to have the pretence of rendering service. And independent
of this, there is an enjoyment which is of
itself pleasing, the abusing such as differ in opinion,
whatever moderation they may use. The intollerance,
in this respect, is always in proportion to the uneducated,
and uncivilized state of mind of the possessor.
For the savage who lifts his tomhack, or scalps the
infant, or little child that beseeches him to spare it,
is no worse a creature than Howard the philanthropist;
but the infernal fury of false notions of what is praise-worthy
or virtuous, makes the difference. The plea
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sure of announcing to his town when he returns, the
bloody success, by a scalp halloo, is the sole motive,
which the warrior has, in his trespass upon humanity.
Self-love is the great spring of human actions; and
upon how small a matter in the point of our existence,
does it depend whether a man shall place his happiness
in beneficence or murder; in truth, or defamation?
What but the accident of preceptorship, and just
sentiments of propriety? It is thus that a man is an
Hortensius, or a Curtius,[2] who might have been a
Cobbet, or what is worse, if possible, even a Callender
itself. I put this thing in the neuter gender, as an
entity whose species, much less his sex, did not deserve
to be determined; something beneath the human,
but above the beast; an Abhorson or Hippo-griff;
it was difficult to ascertain.
Who could help dissenting from the federal administration
in many particulars? Yet, at the same time,
entertaining more than respect, even affection, for the
patriots who meant well, but from which we dissented.
But, when a man feels the influenza of other errors in
other times, coming home to himself, perhaps more
immediately, if he happens to be a lawyer or a judge,
it is a stronger temptation to him at least, to
dissent. But it is with great reluctance, that
a mind of sensibility can draw off from the body of
those whose political sentiments he has approved, and
in the main still does approve. It is with great regret
that he can give up journalists and withdraw from
them, whose prints have merit. But if those journalists
attack the foundations of our jurisprudence, and
thus sap the very essence of our liberty, what can be
done but bear testimony against it? The common
law has been examined, principle by principle, and
tested by experience for more than 10 centuries
within the perfect knowledge of our books and records;
and has been caressed, and valued the more
it has been known. The only other regular system in
the world, that of the Roman republic, or what is
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called the Roman civil law, begun and formed chiefly
under the republic through a period of near 800 years,
has been postponed to it, in the opinion of sages who
understood them both; and yet the public mind is to
be poisoned by the declarations of sciolists who know
nothing of the matter. There are things suited to the
lowest vulgar; but in democracy where suffrage is
universal, it is of moment that even the lowest of the
community, in point of information, or the opportunity
of it, should not be lead astray. Who can approve
the use that is made of the medium of the press in this
way? At the same time it is of such moment to have
spirited journalists, that I am unwilling to repress
the efforts of such, severely reprehending even what
I conceive to be error.
What is it produces a third party, but the excesses
of that to which the individuals belonged? What gave
the democratic party the late preponderance, but great
bodies of moderate men breaking off from what was
called the federal interest, and throwing their weight
into the other scale? What will bring the democratic
scale once more to the beam, but the same weight
leaving it? It is not the mere weight of vote, that I
have in view. It is the weight of reason, which they
have with them, and which they will be able to assign.
Revolutions, in the public opinion, are slow in forming;
but in shewing themselves, they are like a shot.
It carried with it no recommendation, to hear of hostility
to courts of law, and professional men at the bar.
But to hear of an attack upon the most valuable part
of our jurisprudence itself, the common law, must be
considered as the ne plus ultra of barbarism. For
though a bill was actually brought into our legislature
some years ago, and now lies upon the files, to abolish
the common law; yet it received no countenance,
and it is but of late that the doctrine has been
revived; and this law is stigmatized as a nuisance
which ought to be abolished. The error has arisen
from the idea broached by some of the judges of the
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federal courts, that the constitution carried with it a
common law jurisdiction, in all laws whatsoever. That
was attracting at once the cognizance of all subjects
of legal controversy, and absorbing the whole judicial
authority of the Union; not professedly and in the
first instance, but usurping a great deal in the mean
time, and working naturally towards an usurpation of
the whole. But, it was not from an exception to the
common law that an opposition was made; but to the
power of the federal courts exercising common law
jurisdiction. I can resolve it into no other cause, that
journalists, and others of great acuteness of mind
have been led to express, and perhaps entertain, a
prejudice against the common law.
FINIS.
Brackenridge, H. H. (Hugh Henry), 1748-1816 [1804], Modern chivalry: containing the adventures of a Captain, &c. Part II. Volume 2 (published for the author, Carlisle) [word count] [eaf801v2T].
