FRENCH JUDGES.

THE lively M. Taine, in his recent Notes on Paris, has the following in regard to the French judges: "The law is a majestic statue, which we salute and along side of which we pass. Jurisprudence changes every twenty years. As there are always ten precedents in one direction and ten in the other, the judge chooses as he happens to fancy, and whether he knows it or not, his choice is always regulated by domestic and personal reasons. Never plead plain common sense, as though before a just magistrate; on the contrary, bring into play the motive or special argument which will touch the judge who gives the decision. One, an old lawyer, will be naturally reached by reasons of practice; another, an author, will be controlled by general considerations; another is a Bigot or a free-thinker, a high liver, or a deceived husband. Touch this chord. The most common practice is to wear out the judge, and to drown him in a flood of contrary reasoning, to humble yourself before him, to hurry him along in a deluge of interpretations, of citations and authorities; and at the end, in your last reply, to reach him the pole - that is to say, a broad, clear, conclusive argument, to which he may cling. every ten judges, nine are wrinkled, shriveled, bloated; their faces cadaverous or inflamed. The faces of no class of men are so deformed, so drawn, so hollow, so worn, so marked by suffering. This is because they remain seated all day biting their pens, silent, motionless, under the augur of the lawyer who, for two hours, three hours in succession, bores them in the name of the law. This is the inward stake which twists their lips, and strips their skulls. On the other hand, they snub the lawyers as though they were domestics."

Of

We should have supposed that so accomplished a critic as M. Taine would not have been guilty of the solecism of calling that which changes every twenty years, a statue. At that rate it could hardly be reckoned an antique. Perhaps, however, he does not speak of law and jurisprudence as one and the same thing, but means that law is the ideal, jurisprudence the actual. But the whole picture is very French. There is just enough of truth at the bottom to prevent its being a caricature. There is a good deal of shrewdness in the remark that the decisions of judges are more or less affected "by domestic and personal reasons." It will be recollected that when Serjeant Buzzfuzz, in the celebrated cause of Bardell v. Pickwick, spoke of the defendant as a slow old coach, whose wheels the jury would grease, as he would find to his cost, the sarcasm was lost on all of the jury except one, a green-grocer, who, as it happened, had, that very morning, subjected his own chaise-cart to that very operation, and who accordingly smiled assent. In a trial before one of the most honored judges of this State,

where the question was as to the meaning of the words "my crop," in a contract—whether they meant simply what the party himself actually raised by cultivation, or might also include such as he might acquire by purchase the judge decided the matter by saying: "My father was a farmer who raised potatoes for sale; he used to contract to sell his crop of potatoes; now I know that that meant the crop of potatoes which he raised, and that he was not at liberty to buy and add to it his neighbors' crops." This excellent magistrate simply had the candor to express, in audible language, that which would naturally pass through the mind of any judge similarly situated, and would, properly enough, furnish him with a standard by which to measure the rights of the litigants. This mental tendency is a tribute of the human intellect to the practical rather than the theoretical. If a proposed rule will stand the test of practical application-to use a homely expression, if it "will wash "—it is probably the right rule. The poorest judges, in all countries and times, have been learned theorists, destitute of worldly wisdom and experience. Such men may be valuable as devisers of principles for others to submit to the test of practice, but that is their only use.

The vital trouble in M. Taine's judges is in the French national characteristics and the principles of French jurisprudence. Cross twenty miles of salt water, and on the other side of the British channel M. Taine finds a strikingly different state of things. In his own country the judge is avowedly or secretly an advocate; in England he is an arbitrator. The difference is as remarkable as the difference between the national ideas. In the one it is la gloire, in the other it is equity and fair play. Consequently the one is a country of actual liberty under avowed monarchial government; the other is a country of practical despotism under pretended republican institutions. The constant struggle in England is not to turn out a republic; in France not to subside into a despotism. And as might be expected, in England the lawyers are an honored and ruling class; in France they have comparatively little influence and respect.

No man has ever paid a higher tribute to the capacity and character of the English judges than M. Taine himself. In his Notes on England he observes: "The reports of criminal trials must be perused in order to understand to what a degree the judge's part is dignified and honorably filled. Never can there be detected in him any traces of the spirit of persecution, the sentiments of a policeman, the desire to inflict vengeance on behalf of society, the instincts of the hunter warmed with the chase, and intent upon securing his prey." the judge pronounces sentence, he does so with the authority and with the impartiality of a mind thoroughly convinced. He neither declaims nor

"When

after those who have outstripped them in the race of life, that they have come almost to regard professions of virtue as so many confessions of vico, and the loudest moral reformers as performers in masquerade.

Of the purely professional relations of lawyers, I do not know that fitter words were ever spoken than those of the Attorney-General and Chancellor of the Exchequer of England, at the dinner given at the Middle Temple by the English bar to M. Berryer, of the French Bar, on the 8th of November, 1864. Sir Roundell Palmer, then attorney-general, now Lord Selborne, presided, and said in his /opening speech: "I rejoice in seeing around me so many gentlemen of our noble calling-a calling which vulgar minds frequently misrepresent and underestimate, but upon which in no small degree depend the rights and liberties both of individuals and nations. It is its high privilege and duty to supply the just weights and balances of the scale of justice, by laying before justice all the considerations which ought to weigh on every side of every question, to stand forward for the weak and miserable, and upon great occasions, when public liberties are in question, to stand forward undaunted and assert the public right." Mr. Gladstone, then Chancellor of the Exchequer, said: "I have always felt that the bar is inseparable from our national life, from the security of our national institutions; but never, so long as I looked at England alone, did I understand the full extent of its value. Some years ago it was my lot to be witness of cruel oppression in a country in the south of Europe. There the executive power did not merely break the law, but deliberately supplanted it and set it aside and established in its stead a system of pure arbitrary will. To my astonishment, I found that the audacity of tyranny which had put down chambers and municipalities, and which had extinguished the press, had not been able to do one thing-to silence the bar. I found in the courts of justice, under the bayonets of soldiers, for they bristled with bayonets, in the teeth of power, in contempt of corruption, and in defiance of violence and arbitrary rule, lawyers rising in their places and defending the cause of the accused, with a freedom and fearlessness which could not have been surpassed in free England, or even by Mr. Berryer himself." Who, remembering these words, or thinking these things, would not laugh at the popguns of Bohemians who would presume to dictate whom he should appear for and whom defend? The glowing sentences of Palmer and Gladstone were spoken of lawyers as they are and have ever been in free England, and as they must be in every country which has the reality, or keeps up even a show, of government according to law.

But in America the profession has even a wider scope and larger duties. This arises from two causes, one, the absence of privileged classes, and the other, the existence of written constitutions. These constitutions are mainly the work of lawyers; their interpretation and application are exclusively their work. Hence it follows that the lawyer who, in every country of law, stands in such close relations to liberty, order and government, stands in this country in still closer and peculiar relations. For the sake of discrimination I will call these relations political, in distinction from those which are purely professional. These relations concern society it is true, but society in its organized form. The opportunity of American lawyers to correct abuses in the government of their country and to

ameliorate its laws, and the duty of using the opportunity, are then the topics of this discourse.

I address myself directly to the members of our profession, and especially to the young gentlemen who are to-day entering it. The rest of this audience, gathered, I may presume, by reason of interest in the graduating class, will excuse me if I assume, that their interest in the future of its members will make them willing to listen to any thing intended for their friends. I shall then not hesitate to speak to those who are about to exchange the study for the practice of the profession, of the part which, in my view, American lawyers should take in the government of their country. I do not speak of the duties of citizenship generally, because I am not speaking to the general body of citizens, but to those among them who by choice or circumstance are set apart for the law.

And when I speak of the duties of a lawyer as being different from those of another citizen, I do not by any means assume that he has greater legal rights. His vote counts one and no more. But I assume that his opportunities are greater, and, for reasons which I will explain, that he can, and therefore should, do more, than if he were in any other calling, for the promotion of order and liberty among his countrymen.

Order and liberty; these two words express the end and aim of human law; order, with as much liberty as is consistent with order. All the functions of government, legislative, executive and judicial, are, or should be, exerted for these ends; the legislative, that it may prescribe the rules by which order and liberty are to be best preserved; the judicial, that it may apply these rules to the facts of particular transactions; and the executive, that it may execute the will of the legislature, as expressed in the laws and applied by the judges.

The superior opportunities of lawyers to assist in the promotion of these ends will be apparent upon the slightest observation. Their studies, more than those of other men, lead them to examine the structure of their government, the relations of the different parts to each other, and the principles which lie at their foundation; they of all men know best the political rights and duties of the people; the preparation for their profession brings every part of knowledge within the range of their inquiries. Thus much is to be said of the knowledge and training with which they must have fitted themselves for the practice of their profession, if it is to be practiced in its highest departments. Then in actual practice, they represent their clients before the courts, in respect to all that is dearest in life, the rights of person and property and the domestic relations; they are consulted and trusted in the most important and the most delicate concerns; they are the depositories of innermost secrets, and their advice is the guiding and restraining influence that moves, with a scarcely observed but constant pressure, the daily currents of human affairs. And in addition, they have in this country, as I have already said, the peculiar function of bringing to the test of written constitutions the acts of all public servants, in all the departments of government.

Functions so great and duties so important draw after them responsibilities of like proportions. Though his vote counts one, his influence may count for thousands and tens of thousands. Other things being equal, he has greater opportunities than others for his influencing the votes of his fellows, and for affecting the action of public men.

Every voter performs or should perform part of the functions of government; and as he performs them well or ill, so, to the extent of his part in them, will the government be good or bad. It may no doubt happen, on rare occasions, that good men by accident choose a bad representative, or bad men a good one. But as a general rule the representative will fairly express the wishes, the tastes, the thoughts of those who select him. If he is selected by the whole body of voters, he will represent the whole body; if he is selected by a part, and the rest vote for him as so many dummies, he will represent, not the dummies, but the part, large or small, that selected him. Leaving then the dummies aside, and looking only at the living, thinking, selecting voters, we may regard them as practically the sovereign people, and assume that all officers-presidents, governors, legislators, judges, are their agents and servants, and execute their sovereign will.

There are three classes of nominal voters; those who having the right of suffrage do not exercise it; those who exercise it, but do so as the tools of others; and those who exercise it as intelligent and free agents. Of the first it is enough to say, that they act as if they were already disfranchised; and of the second, that they deserve disfranchisement. They who will not fulfill the duties should forfeit the rights of citizenship. They are of no account and may be left out of the calculation. It is the third class, the company of electors exercising the right of choice, and really naming the public agents, that is the real source of power. That class of electors, and the agents whom they directly or indirectly appoint, it is the privilege and the duty of lawyers, more than other men, to influence and persuade.

Having advanced thus far, we pass, by an easy transition, to a contemplation of the actual condition of the country and a consideration of the consequent duties and responsibilities of lawyers, measured by the standard already given. That condition is not so good as I wish it were. This is the season, I know, of centennials and of boastful congratulations, which, however well founded in general, are sometimes extravagant. The picture is not all bright; there are shadows and dark spots. These it will do us no harm to look at upon occasion. Nothing is gained toward healing a sore by covering it out of sight. The people of this country have their good or evil fortune in their own keeping; they are disposed toward good government; it is their interest to have it; and they will have it, if they see how it can be had, and are not misled or betrayed. But we must first disabuse our minds of the pernicious notion, that abuses will cure themselves, and of that other notion, hardly less pernicious, that the machinery of our government is so simple, that it is slow to get out of order. This machinery is not simple; on the contrary it is extremely complex, and requires constant supervision. The principles which govern it are no doubt simple; so are the principles which govern the most complicated engines, but the engines themselves are none the less complicated.

Burns exclaims, in a witty poem, that we have all read:

"Oh wad some power the giftie gi'e us,

To see ourselves as ithers see us.

It would from many a blunder free us,

And foolish notion."

"THE LEXINGTON CENTENNIAL. "The English criticism of Mr. Gladstone's letter: "LONDON, Wednesday, May 5.

"The Standard severely criticises the letter from Mr. Gladstone, read at the Centennial celebration of the battle of Lexington. It remarks that the habit of toadying to Americans is discreditable in English public men and journalists. The results of the republican experiment in the United States are corruption of public life; extinction of public spirit, oppression of the minority, disgust of the honorable men with politics, and the transfer of the government into the hands of corrupt, unscrupulous and ignorant men."

The

This is, I know, the language of an enemy. Standard is the organ of the high tory party in England, and would of course publish any thing it could to the disparagement of republics. But the opinion of the tory organ is, I am sorry to say, the opinion of a great many people who are not tories. A pretty close observation of different countries has convinced me that the general opinion of thinking men, all over the world, is that our public service is sadly demoralized. I do not admit the truth of all the imputations. The exaggeration is great and manifest to Americans. But the fault of the exaggeration is very much our own. Every one of the charges could be proved by the American newspapers, if they were to be accepted as witnesNone of the imputations thus telegraphed back to us from the other side of the Atlantic is without support from the printed sheets spread upon our tables every day of our lives. If an American abroad were to deny the truth of the Standard's accusations, and the accuser, for proof, were to gather the files of the American newspapers, for any month of the last five years, the American would be driven to deny the competency and trustworthiness of the evidence.

ses.

Apart from the newspapers, however, there is evidence before our own eyes of much that is wrong. It is not my purpose to go into details. That any one may do for himself. My object is to call the attention of lawyers to the fact of their great responsibility for this wrong, to the importance of grappling with it and overcoming it, if we would preserve our free institutions, and to that end the necessity of resorting, not to petty or temporary expedients, but to fundamental principles, and the immutable laws of human society.

What is the significance of the astounding phenomenon, that, while in all the other sciences and arts of life we have advanced with a progress beyond all history, and, beyond even the dreams of the wildest dreamer, have multiplied the numbers and the wealth of our people, turned the wilderness into fruitful fields, built great cities, and girdled the sea and the land, we have not advanced in that greatest of all sciences and arts the science and art of government, but have actually gone backward? Why is this movement retrograde while all others are advancing? Whatever may be the cause, we cannot divest our profession of a great share of the responsibility. We know that fidelity to all official trusts, and as few of them as possible, is the fundamental maxim of republican government; we know that the unnecessary multiplication of offices is at once the cause and the sign of decay in public virtue; we know that the maintenance of the Federal and State governments, in the plentitude of their respective powers, is our only guaranty of liberty and order. These are fundamental principles with which every lawyer must be acquainted. His opportunity to influence the public servant and the

voter is exceptional, as I have shown, and his responsibility is commensurate with his opportunity.

I have spoken of the science and art of government as the greatest of all the sciences and arts. Perhaps I might better have said the science of government, theoretical and applied. Of all knowledge and all art, this is the most important and most neglected. Read the debates in congress and the State legislatures; read the articles of the magazines and newpapers; read the resolutions of political conventions, and say in how many do you find the great subjects that have agitated the country for the last fifteen years, treated as they would have been treated by those who in just reverence we call the fathers.

Take for example the question of the suffrage. To give this right or privilege whichever you may call it, to every human being of mature age, may be a good thing in this country, or it may be a bad thing. That question I do not discuss. But I do insist, that the question should be treated, not as one of temporary expediency or of mere partisanship, but one of good or evil government for the whole people, or the greatest number of the people.

The question who shall vote in the elections is but another form of the question who shall govern the country. Now though it may be true, that, having regard only to an imaginary social compact made at the beginning of society, one person has as much right to govern as another, yet that right is gone as soon as society is organized, for then the question becomes one of public safety, that is, the safety of all. If for example a ship's company of five hundred adult persons were cast upon an uninhabited island, and had there to organize a new community, I am not aware of any principle which would give to any one man or woman a right to participate in the organization more than another, laying out of view the rights of heads of families, if there were any there. But I do see a principle, which, after the organization of the social body, would admit or exclude new comers, not according to their original equality as men and women, but according to the best government of the existing State.

We may apply the same principle to our own institutions. At the revolution the people of each of the thirteen States were, to a great extent, homogeneous, but the suffrage was hardly anywhere universal. When the question arose whether the suffrage should be made universal among such a population, the answer should justly have depended, and, for aught that I can say, did depend solely upon the other question, whether the good government of the whole community would be promoted or impaired by it. And when the further question arose whether incomers from foreign lands and the emancipated slaves should be admitted to the suffrage, the answer should have depended upon the same principle, as to the general good; and that general good might possibly have been promoted by one class of new voters, and not by another. Now I repeat, that I do not mean at all to enter into the question whether the admission of foreigners and emancipated slaves was good or bad in itself; but I do mean, that considered as a question of political philosophy, it should have been decided, not upon the doctrine of the equality of men, but the exigencies of society. Any man who should preach universal suffrage on the banks of the Ganges would be treated, and justly treated, as a lunatic. With it, in the present condition of India, no man's life or prop

erty would be safe for an hour. In short, the question of the suffrage in any country depends upon the nature of the government, and the capacity of the proposed voter to take part in it. If he be a capable and safe depository of power, even of that moderate share which comes of voting, then he should be admitted to vote; otherwise he should not be admitted.

Then the question of the suffrage, in its application to the government of cities and towns, may be quite different from the question of suffrage as applicable to the whole State. These municipalities are corporations, the chief object of which is the protection and administration of property for the convenience of the citizens; as for example, the paving, cleaning, and lighting of streets, the building of sewers, the supply of water, the prevention or extinguishment of fires, and a hundred other objects of municipal government. For these reasons, I insist that the true theory of municipal government requires a double representation, one of property, and the other of person. They who own a bank have the management of it; so they who own the property of a town should have a greater voice in its disposition than they who own none of it. Taxation without representation was the complaint of our fathers. What was the meaning of that complaint? It was that they who pay the taxes should lay them. As things are now going on in this country, municipal taxation will soon become confiscation. I know a town where a vote in the town meeting for subscribing to the stock of a railway was carried by those who were not tax payers, against those who

were.

The same general principle which applies to the suffrage, that is to say, the greatest good of the greatest number consistent with the rights of all, applies also f to every new division of power. In respect to the admission of new States, or to the acquisition of new territories, it may be, as I think it often is, lost sight of; but it is, nevertheless, essential, and the neglect of it will sooner or later come back to our discomfiture. Every new State, with an inadequate population added to the Union, disturbs the natural and just balance of political power; yet, how many members of Congress thought of this, when at the last session they voted to admit one territory and rejected another. A vote to admit as a State a territory having a population less than one of our counties, is a vote to make the county equal in one branch of Congress to the whole State of New York. The annexation of new territory is, in some respects, a pleasant thing to think of. We like to see our flag waving over new lands, but we are apt to forget that we cannot govern without being also governed. It is very well for us to talk of governing Mexicans, Cubans, and Dominicans, but, for my part, I am free to confess, that I do not like the idea of their taking part in governing us.

Turning from these political topics, let us look at some that are not so much political as social. Look, for instance, at one suggested by what is passing now before our eyes; I mean the question of a public or private trial in cases of scandal. Why, in the name of all that is reasonable, should such a trial be public? The publicity of courts of justice is enjoined as a rule, not for the entertainment of gossips; not for the indulgence of curiosity; not because the public has any interest in the details of private affairs, but because judges will become tyrannical and corrupt if they are not watched. The majority of citizens have