LETTER XIV

Lawyers—Doctors—Clergy—Mechanics—Justices of the Peace—Anecdotes—Punishments—Reflections.

Jeffersonville, (Indiana,)March 10, 1819.

The greater part of my letters from America have hitherto been addressed to our late brother John. Sincewe have now to deplore that he is removed {168} from all correspondence with us, I shall direct this to you.

There are many particulars in the condition of this country, that must appear surprising to any one who has not seen a community in its infantine state. We have here lawyers who have not been regularly educated in the knowledge of their profession. Blackstone’s Commentaries are considered the great medium of instruction.

The young man who has carefully read these, and who has for a short time wrote for a practising attorney, is admitted to the bar. It is said that even the latter part of this preparatory course has, in many instances, been dispensed with. The occupation of barrister and attorney is usually performed by the same practitioner.[103]He transacts with clients, writes and pleads before courts of justice, or before a squire, as occasion requires. If we may judge from grammatical and orthographic inaccuracies, we must be apt to believe that, although some of them may be esteemed as lawyers, they are not good English scholars. Lawyers here, as elsewhere, take their stand as being of the first class in society, and a great proportion of our back-wood legislators, in State assemblies, and in the general government, are elected from among this body of gentlemen. Such are many of the counsellors who grow up in Transmontane-America; but it would be unfair to omit noticing that men of a very different character arise here.—I shall only mention one example in Henry Clay, a Kentuckian lawyer, who has for eight years made a distinguished figure in the conspicuous situation of speaker of the House of Representatives atthe capital. Mr. Clay was commissioner on the part of the United States, at the treaty of Ghent, in 1814, and plenipotentiary for commercial arrangements with Great Britain in 1815. The profession {169} also owes much of its respectability to the ingress of young gentlemen of liberal education from the Atlantic States, who make diligent research in the history of cases, and whose libraries are usually stored with law authorities, and the best models of forensic eloquence in the English language.

The medical men here are alldoctors, nor is the inferior degree, surgeon, at all recognised. In new settlements, many practise on life and limb who have not obtained the diploma of any medical school. The smallness of their laboratories renders it probable, that the universal medicine is included. Here, too, there are honoured exceptions; and the medical colleges instituted at Cincinnati and Lexington may soon furnish more accomplished practitioners.

The clergy would perhaps excuse my not giving their order the precedence, if they were told that men hold forth here, who can have no pretensions to qualifications derived from human tuition. Many of their harangues are composed of medley, declamation, and the most disgusting tautology. I have chiefly in view itinerant preachers of the methodist sect, who perhaps cry as loud as ever did the priests of Baal. Their hearers frequently join in loud vociferations, fall down, shake, and jerk in a style, that it would be in vain to attempt to describe.

Incapacity is not confined to those situations that ought to be filled with men of learning, but extends to the rudest branches of the mechanical arts. It is not thought wonderful to see a blacksmith without a screw plate; and I have known of several very plain pieces of joiner workthat were stolen for patterns by unqualified workmen. Almost every well-finished article is imported, and {170} so long as this impolicy is continued, handicraft must remain in a low state.

We have here justices of the peace who would not be promoted to the office of constable in some older communities. They are mere petty-foggers, who are occasionally employed in collecting debts, and raising suits to be brought before their own tribunals. In these cases, they act in the double capacity of agent for one party, and judge, and have no repugnance against collecting their fees in the hour of cause. I shall relate two anecdotes. One of thesegentlemen, who lives at no great distance from the spot where I write, was hearing the representations of two opponents in open court. They disagreed, and commenced a fight. The squire, not adverse to this sort of decision, joined with the constable and some other people in forming a ring for the combat. A negro man and a white woman came before the squire of a neighbouring township, for the purpose of being married. The squire objected to the union as contrary to a law of the State, that prohibits all sexual intercourse between white and coloured people, under a penalty for each offence, but suggested, that if the woman could be qualified to swear that there was black blood in her, the law would not apply. The hint was taken, and the lancet was immediately applied to the Negro’s arm. The loving bride drank the blood, made the necessary oath, and his honour joined their hands, to the great satisfaction of all parties.[104]The last of these squires {171} was not electedby the people, but appointed under the late territorial government of Indiana. He is a naturalized citizen of the United States, but a native of England.

The election of a magistrate, is an affair that usually occasions a considerable sensation in a little town. The most respectable citizens naturally support the candidate that has the real interests of society at heart; and the more licentious are as naturally averse to promote the man who, they believe, would punish themselves. It is, therefore, the relative numerical strength of the two parties, that frequently determines the character of a town judge. It is understood, that in new towns by the Ohio, the unruly part most commonly prevail, and that as they advance in population and wealth, the more orderly people take the sway. A case has come under my notice, where the conduct of {172} a squire was at variance with the practices of a large proportion of his constituents.He had resolved on exerting his power to suppress fighting, swearing, and breach of the Sabbath, and to exact the statutory penalties against the two last of these offences. On a Sabbath soon after his election, a man carrying a gun and a wild duck passed his door. He intimated his resolution of having the offender brought to justice; but the culprit gave him much abusive language, with profane swearing, and threatened to beat him for the interruption. The squire soon perceived that he was losing his popularity, and that his opposition to the will of the sovereign people was injuring his business, and for that reason resigned his commission. In cases where the squire is supposed to be remiss in the execution of his duty, the people sometimes interfere extrajudicially. At this place, a tailor’s shop was lately broke into by night, and a quantity of goods carried away. On the following day, a stranger and the lost property were discovered in an empty house adjoining. He was instantly carried before one of our magistrates. On being interrogated, he confessed being found in the house, but denied having any concern with the booty. The squire dismissed him. But the young men of the town who had assembled to hear the examination, were too sensible of the strength of the presumptive circumstances of the case, and of the admitted act of housebreaking, in entering the uninhabited apartment, to allow him to escape with impunity. They caught him at the door, led him out behind the town, where they tied him to a tree, and put the cowhide into the hand of a furious young man, who happened to be half intoxicated. The whipping was performed with such vigour, that the blood sprung in every direction. A gentleman of {173} Cincinnati told me, that, a few years ago, the citizens of that place had found it expedient to punish in the mostsummary way; and that he had several times acted as presiding judge, in what was called a court of uncommon pleas. Whipping uniformly followed conviction. Cincinnati has now outgrown that stage of population, that admits of this sort of jurisprudence, and is better regulated than certain large European cities.

Sanguinary punishments are almost universally deprecated. The best of citizens are opposed to them from philanthropic motives; and the worst view them as subversive of liberties. A considerable proportion of the humane, and perhaps most of the vicious, concur in arguing, that man has no right to take away the life of man in the punishment of any offence. A doctrine purporting, in plain terms, that the right or power in the individual to commit crime, is stronger than that in society to punish or to protect. Although this extremely lenient principle has a vast multitude of supporters, it has not been introduced into the criminal code of any state in the Union. Treason, murder, arson, and piracy committed on the high seas, remain on the list of capital crimes. The first of these offences is defined by the constitution of the United States, as consisting “only in levying war against them; or in adhering to their enemies, giving them aid and comfort.” No infliction, on this ground, has been found necessary since the epoch of the Federal Union. Other offences, as forgery, burglary, robbery, larceny, &c. being treated as inferior misdemeanours, the machinery of the executioner is seldom put into operation; and a benevolent penetentiary system is adopted in parts of the country where the population is sufficiently great to bear the expense. New {174} settlements cannot afford the large establishments combining the accommodation for solitary confinement and labour. Whipping is therefore resorted to, as a matterof necessity rather than of choice. It is chiefly to be lamented, that chastisement does not produce immediate evidence of reformation, as the sufferer usually removes to another part of the country; and may resume the character of gentleman, even while his back is raw from the recent correction.

It is with painful sensations that I recollect of the illiberal and ungenerous reflections, uttered by the minions of a faction in your country, against supposed barbarism in this. Their favourite topics, as to officers in the Militia becoming tavern-keepers, and tavern-keepers acting as Justices of the Peace; the derided punishment of whipping, and the equality of a sovereign people, might at least be mixed with some allowances for local circumstances; or, if they please, in making a contrast with the boasted condition of Great Britain, it is obviously uncandid to draw the subjects of their animadversions from the fag end of the United States, in the very act of being peopled by a heterogeneous mixture, uniting in it a considerable proportion of the most uncultivated of Americans and Europeans; not excluding fugitives, who have fled before their creditors, and the public prosecutors of England. Waving this consideration altogether, a very striking comparison may be made out in detail. The officers of the United States’ Militia are not professional soldiers, but citizens. They are not disposable tools, to be employed in foreign aggressions, or removed in time of peace from Maine to Georgia, andvice versa, to intimidate into submission fellow citizens who are not their personal acquaintances or immediate {175} kindred; but remain at home, where they attend trainings, voluntarily and gratuitously. They are at liberty to follow tavern-keeping, or any other kind of honest industry, and do not burden their countrywith a half pay list. Justices of the Peace, however unqualified they may be, and whatever disgrace the conduct of individuals brings upon themselves, are not appointed by the influence of a faction. They are not the “thorough paced” ministerialists who “have been recruiting officers for the war, instead of Justices of the Peace;”[105]nor are they the hirelings who promote the revenue from which their own pensions are drawn, by levying ruinous finesupon an unrepresented people, for the slightest infractions on excise laws, or game laws. The punishment of whipping has been already mentioned, with the causes of its being adopted in the back-woods. Perhaps it might be difficult to assign reasons equally satisfactory for resorting to it in the populous city of Dublin. The practice is comparatively humane in America, as it is applied in cases that would be punished with death in Great Britain. The States of Kentucky and Ohio have erected penetentiaries, not for the purpose of punishment alone, but also for the reformation of offenders. The horrible prison scenes witnessed by Howard, Neild, Bennet, Buxton, Fry, and other philanthropists in Britain, have no counterpart in America.[106]We know of no examples here of imprisonment for a debt of a shilling,[107]or for a supposed fraud ofone penny.[108]Nor have I ever heard of the verdict of an American {176} coroner’s inquest, announcing in their verdict the death of a prisoner for want of food.[109]Debtors are not obliged here, to sleep edgeways, for want of the breadth of their backs on a prison floor.[110]Nor has any poor boy been imprisoned for a month in Bridewell for selling religious tracts without a hawker’s license.[111]The equality that consists in universal suffrage; the absence of privileged orders, and unrestrained industry, is the enviable felicity of the American nation. The people are, themselves, the lords of the soil, and acknowledge no superiors who can dictate to them in the election of other representatives than those of the community. There are no boroughs where the members monopolize the business of the place, or who chase away the stranger as if he were an enemy; or who can exact town taxes contrary to the will of their fellow citizens. Public accounts are not kept from public inspection. There is no separate borough representation to be hired over, or owned by the partisans of a ministry. The clergy are here exalted to the dignity of citizens, whose interests are identified with those of the people. Their condition, relatively to that of their adherents,is in every respect similar to the situation of dissenting clergymen in Britain. America elevates {177} no spiritual Lords, on wool-sacks, in her senate, to oppose the introduction of parochial schools. Nor is there any political body, which courts an alliance with the clergy. I have never heard of any parson who acts as a Justice of the Peace, or who intermixes his addresses tothe Great Object of religious worship, with the eulogy of the Holy Alliance. The free scope given to industry is highly conducive to national prosperity. Every man is allowed to exert his talents, in the pursuit of any honest scheme, and in any part of the country, without being prevented by intolerant restrictions or internal taxes. His profits are his own; and he has no dread of their being wrested from him by the idle drones that infest other countries. Hence it is, that the United States abound in enterprizing people, who remove, without hesitation, to any part where they can suppose any advantage may arise, and adopt projects that would neither be tolerated nor thought of by people fettered by the trammels of impolicy. The first failure of a scheme is not here contemplated as finally ruinous, as a backward step is much more easily retrieved than in countries more thickly peopled, and where the avenues of commerce are narrowed by artificial obstructions. There are no branches of manufactures or professions of any kind, restricted to those who pay licenses to the government. The farming interest has no monopoly against the manufacturing: nor has the manufacturing any positive prohibition against the farmer. Local attachments are much weakened by the open prospects of an extensive country, by the abolition of primogenitureship, and by the introduction of laws that promote family justice. The citizen is not bound to a particular spot for the preservationof his privileges; for he can enjoy {178} the same rights all over the Union. The mechanic and the labourer do not remain unemployed in their native township, to establish their right to the poor’s rates; for industry is not taxed in paying bounties to idleness. The landholders of England may quietly enjoy the obeisances of their pauper dependents, and pay in return their poor’s rates. They may be assured, that the more equalized citizens of America are not ambitious of this interchange of benefits; and that the excess of public burdens has not yet rendered it customary for Americans to desert their own country, and to resort to France, on account of the cheapness of provisions.

The present state of North America affords the most conclusive testimony of the sound policy of a free and unrestricted trade. The United States allow commerce to regulate itself, according to its own interests, except in cases where the conduct of other nations imposes the necessity of following another course. Under legislative forbearance on this subject, the country has made unexampled progress in improvements and population. Under the jealous and illiberal government of Spain, Florida remains a contemptible province, that has scarcely a name amongst colonies. Under the fostering care and restrictions of England, Canada continues to be but a mere remnant of this great continent.

FOOTNOTES:[103]In Great Britain attorneys are not permitted to plead in court on behalf of their clients; that is the work of the barrister, who must previously have belonged to one of the inns of court. Attorneys (or solicitors) institute actions, advise clients, draw up legal papers, and act as assistants to barristers.—Ed.[104]Equivocations of this sort have been so often noticed in the United States, that they must be looked on as notorious. The practice of naturalizing foreign seamen by the solemn farce of an old woman’s first cradling bearded men, and then swearing that she rocked them; and that of procuring pre-emption rights to land in new territories, by sowing only a few grains of corn, and subsequently swearing that a crop has been cultivated on the tract claimed, have been so frequent, that it would be invidious to particularize. In England, affidavits are often managed in a simpler way.Swallowinga custom-house oath is there a well known expression. Mercantile houses of London have kept persons, called swearing clerks, to vouch for transactions, on being paid at the rate of sixpence for each oath. If it is not true that men stand at Westminster Hall with straws in their shoes, indicating their willingness to undertake any dirty job, it is time that the foul imputation were washed from thatpurefountain of justice. Before prosecutions for conspiracies had become so fashionable in England as they are now, a witness on behalf of the crown was convicted of ten separate perjuries. It would appear that a false oath is a morsel so hard, that it requires cooking before it can be masticated by the immoral in America, and that a less delicate class in England can gulp it down in the raw state. Without making any comment on regulations that protect revenue at the expense of morality; those laws that set the interests, and the very personal liberties of men at variance with their consciences, and without inquiring how far evasive subterfuges may palliate the conduct of theignorantin their own eyes, or in the sight of thegreat beinginvoked; it is suggested, in explanation, that popular institutions have the innate property of impressing an external reverence for the law, on the worst of men.—Flint.[105]Walker’s Review of Political Events, p. 125. London, 1794.—Flint.[106]This succession of philanthropists, whose labors extended over the century from 1750-1850, worked tirelessly to stir up English public sentiment against their criminal code, which contained over two hundred and nineteen offenses punishable by death, and their deplorable system of prison management. Consequently early English travellers were particularly interested in the American system. In 1831 a Parliamentary Commission was sent to investigate the prisons of Pennsylvania and New York, and upon its return certain American methods were adopted.—Ed.[107]Evidence of Mr. Law, keeper of the Borough Compter, before the Police Committee, 1814.—Flint.[108]Inquiry into Prison Discipline, by Thomas Fowell Buxton, Esq., M. P.—Flint.[109]The case of J. Burdon in Tothilfields prison in 1817.—Flint.[110]In February, 1818, twenty persons confined in the Borough Compter, slept in a space twenty feet long and six wide. The fact was confirmed by the governor.—Flint.[111]G. M. a boy of about fourteen years of age; he was confined along with twenty men and four boys. He was employed by one of them to pick pockets, and steal from the other prisoners. Caught a fever in jail, which was communicated to his father, mother, and three brothers, one of whom died. From being a sober, orderly boy, he was changed into a confirmed thief, and stole his mother’s Bible and his brother’s clothes.—Buxton’s Inquiry.—Flint.

[103]In Great Britain attorneys are not permitted to plead in court on behalf of their clients; that is the work of the barrister, who must previously have belonged to one of the inns of court. Attorneys (or solicitors) institute actions, advise clients, draw up legal papers, and act as assistants to barristers.—Ed.

[104]Equivocations of this sort have been so often noticed in the United States, that they must be looked on as notorious. The practice of naturalizing foreign seamen by the solemn farce of an old woman’s first cradling bearded men, and then swearing that she rocked them; and that of procuring pre-emption rights to land in new territories, by sowing only a few grains of corn, and subsequently swearing that a crop has been cultivated on the tract claimed, have been so frequent, that it would be invidious to particularize. In England, affidavits are often managed in a simpler way.Swallowinga custom-house oath is there a well known expression. Mercantile houses of London have kept persons, called swearing clerks, to vouch for transactions, on being paid at the rate of sixpence for each oath. If it is not true that men stand at Westminster Hall with straws in their shoes, indicating their willingness to undertake any dirty job, it is time that the foul imputation were washed from thatpurefountain of justice. Before prosecutions for conspiracies had become so fashionable in England as they are now, a witness on behalf of the crown was convicted of ten separate perjuries. It would appear that a false oath is a morsel so hard, that it requires cooking before it can be masticated by the immoral in America, and that a less delicate class in England can gulp it down in the raw state. Without making any comment on regulations that protect revenue at the expense of morality; those laws that set the interests, and the very personal liberties of men at variance with their consciences, and without inquiring how far evasive subterfuges may palliate the conduct of theignorantin their own eyes, or in the sight of thegreat beinginvoked; it is suggested, in explanation, that popular institutions have the innate property of impressing an external reverence for the law, on the worst of men.—Flint.

[105]Walker’s Review of Political Events, p. 125. London, 1794.—Flint.

[106]This succession of philanthropists, whose labors extended over the century from 1750-1850, worked tirelessly to stir up English public sentiment against their criminal code, which contained over two hundred and nineteen offenses punishable by death, and their deplorable system of prison management. Consequently early English travellers were particularly interested in the American system. In 1831 a Parliamentary Commission was sent to investigate the prisons of Pennsylvania and New York, and upon its return certain American methods were adopted.—Ed.

[107]Evidence of Mr. Law, keeper of the Borough Compter, before the Police Committee, 1814.—Flint.

[108]Inquiry into Prison Discipline, by Thomas Fowell Buxton, Esq., M. P.—Flint.

[109]The case of J. Burdon in Tothilfields prison in 1817.—Flint.

[110]In February, 1818, twenty persons confined in the Borough Compter, slept in a space twenty feet long and six wide. The fact was confirmed by the governor.—Flint.

[111]G. M. a boy of about fourteen years of age; he was confined along with twenty men and four boys. He was employed by one of them to pick pockets, and steal from the other prisoners. Caught a fever in jail, which was communicated to his father, mother, and three brothers, one of whom died. From being a sober, orderly boy, he was changed into a confirmed thief, and stole his mother’s Bible and his brother’s clothes.—Buxton’s Inquiry.—Flint.

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