James Fenimore Cooper.

Recollections of Europe online

. (page 11 of 29)
Online LibraryJames Fenimore CooperRecollections of Europe → online text (page 11 of 29)
Font size
QR-code for this ebook


prejudice, and ill-nature, as respects us, wrought into the national
character of that people, that will not admit of much mystification.
That they should not like us, may be natural enough; but if they seek
the intercourse, they ought, on all occasions, to be made to conduct it
equally, without annoyance and condescension and on terms of perfect
equality; conditions, by the way, that are scarcely agreeable to their
present notions of superiority.[6]

[Footnote 6: The change in this respect during the last ten years is
_patent_. No European nation has, probably, just at this moment as much
real respect for America as the English, though it is still mixed with
great ignorance, and a very sincere dislike. Still, the enterprise,
activity, and growing power of the country are forcing themselves on the
attention of our kinsmen; and if the government understood its foreign
relations as well as it does its domestic, and made a proper exhibition
of maritime preparation and of maritime force, this people would hold
the balance in many of the grave questions that are now only in abeyance
in European politics. Hitherto we have been influenced by every
vacillation in English interests, and it is quite time to think of
turning the tables, and of placing, as far as practicable, American
interests above the vicissitudes of those of other people. The thing is
more easily done than is commonly imagined, but a party politician is
rarely a statesman, the subordinate management necessary to the one
being death to the comprehensive views that belong to the other. The
peculiar nature of the American institutions, and the peculiar
geographical situation of the country, moreover, render higher qualities
necessary, perhaps, to make a statesman here than elsewhere.]

In order to understand why I mention any other than the French, in the
capital of France, you will remember that there are many thousands of
foreigners established here, for longer or shorter periods, who, by means
of their money (a necessary that, relatively, is less abundant with the
French), materially affect society, contriving to penetrate it in all
directions, in some way or other.




LETTER VII.

English Jurisprudence. - English Justice. - Justice in
France. - Continental Jurisprudence. - Juries. - Legal Injustice. - The Bar
in France. - Precedence of the Law.


To JACOB SUTHERLAND, ESQ. NEW YORK.

Your legal pursuits will naturally give you an interest in the subject
of the state of justice in this part of the world. A correspondence like
mine would not admit of any very profound analysis of the subject, did I
possess the necessary learning, which I do not, but I may present a few
general facts and notions, that will give you some idea of the state of
this important feature of society. The forms and modes of English
jurisprudence are so much like our own, as to create the impression that
the administration of justice is equally free from venality and favour.
As a whole and when the points at issue reach the higher functionaries
of the law, I should think this opinion true; but, taking those facts
that appear in the daily prints, through the police reports and in the
form of personal narratives, as guides, I should think that there is
much more oppression, many more abuses, and far more outrages on the
intention of the law, in the purlieus of the courts in England, through
the agency of subordinates, than with us. The delays and charges of a
suit in chancery almost amount to a denial of justice. Quite lately, I
saw a statement, which went to show that a legacy to a charity of about
1000_l_., with the interest of some fourteen years, had been consumed in
this court, with the exception of rather more than 100_l_. This is an
intolerable state of things, and goes to prove, I think, that, in some
of its features at least, English jurisprudence is behind that of every
other free country.

But I have been much impressed lately, by a case that would be likely to
escape the attention of more regular commentators. A peer of the realm
having struck a constable on a race-course, is proceeded against, in the
civil action. The jury found for the plaintiff, damages fifty pounds. In
summing up, the judge reasoned exactly contrary to what I am inclined to
think would have been the case had the matter been tried before you. He
gave it as his opinion that the action was frivolous, and ought never to
have been brought; that the affair should have been settled out of
court; and, in short, left the impression that it was not, as such, so
great a hardship for a constable to be struck by a peer, that his honour
might not be satisfied with the offering of a guinea or two. The jury
thought differently; from which I infer that the facts did not sustain
the judge in his notions. Now, the reasoning at home would, I think,
have been just the other way. The English judge said, in substance, a
man of Lord - - 's dignity ought not to have been exposed to this
action; you would have said, a senator is a law-maker, and owes even a
higher example of order than common to the community; _he_ insinuated
that a small reparation ought to suffice, while _you_ would have made
some strong hints at smart-money.

I mention this case, for I think it rather illustrative of English
justice. Indeed, it is not easy to see how it well can be otherwise:
when society is divided into castes, the weak must go to the wall. I
know that the theory here is quite different, and that one of the boasts
of England is the equality of its justice; but I am dealing in _facts_,
and not in theories. In America it is thought, and with proper
limitations I dare say justly, that the bias of juries, in the very
lowest courts, is in favour of the poor against the rich; but the right
of appeal restores the balance, and, in a great degree, secures justice.
In each case it is the controlling power that does the wrong; in England
the few, in America the many.

In France, as you probably know, juries are confined to criminal cases.
The consequence is, a continuance of the old practice of soliciting
justice. The judge virtually decides in chambers, and he hears the
parties in chambers, or, in other words, wherever he may choose to
receive them. The client depends as much on external influence and his
own solicitations, as on the law and the justice of his case. He visits
the judge officially, and works upon his mind by all the means in his
power. You and I have been acquainted intimately from boyhood, and it
has been my bad luck to have had more to do with the courts than I could
wish; and yet, in all the freedom of an otherwise unfettered
intercourse, I have never dared to introduce the subject of any suit in
which I have been a party. I have been afraid of wounding your sense of
right, to say nothing of my own, and of forfeiting your esteem, or at
least, of losing your society. Now had we been Frenchmen, you would have
expected me to _solicit_ you; you would probably have heard me with the
bias of an old friend; and my adversary must have been a singularly
lucky fellow, or you a very honest one, if he did not get the worst of
it, supposing the case to admit of doubt. Formerly, it was known that
influence prevailed; bribes were offered and received, and a suit was a
contest of money and favouritism rather than one of facts and
principles.

I asked General La Fayette not long since, what he thought of the actual
condition of France as respects the administration of justice. In most
political cases he accused the government of the grossest injustice,
illegality, and oppression. In the ordinary criminal cases he believed
the intentions of the courts and juries perfectly fair, as, indeed, it
is difficult to believe they should not be. In the civil suits he
thought a great improvement had taken place; nor did he believe that
there now exists much of the ancient corruption. The civil code of
Napoleon had worked well, and all he complained of was a want of fitness
between the subordinate provisions of a system invented by a military
despot for his own support, and the system of _quasi_ liberty that had
been adopted at the restoration; for the Bourbons had gladly availed
themselves of all the machinery of power that Napoleon bequeathed to
France.

A gentleman who heard the conversation afterwards told me the following
anecdote. A friend of his had long been an unsuccessful suitor in one of
the higher courts of the kingdom. They met one day in the street, when
the other told him that an unsealed letter, which he held in his hand,
contained an offer of a pair of carriage-horses to the wife of the judge
who had the control of his affair. On being told he dare not take so
strong a step, M. de - - , my informant, was requested to read the
letter, to seal it and to put it in the _boîte aux lettres_ with his own
hands, in order to satisfy himself of the actual state of justice in
France. All this was done, and "I can only add," continued M. de - - ,
"that I afterwards saw the horses in the carriage of Madame - - , and
that my friend gained his cause." To this anecdote I can only say, I
tell it exactly as I heard it, and that M. de - - is a deputy, and one
of the honestest and simplest-minded men of my acquaintance. It is but
proper to add, that the judge in question has a bad name, and is little
esteemed by the bar; but the above-mentioned fact would go to show that
too much of the old system remains.

In Germany justice bears a better name, though the absence of juries
generally must subject the suitor to the assaults of personal influence.
Farther south, report speaks still less favourably of the manner in
which the laws are interpreted; and, indeed, it would seem to be an
inevitable consequence of despotism that justice should be abused. One
hears occasionally of some signal act of moderation and equity on the
part of monarchies, but the merits of systems are to be proved, not by
these brilliant _coups de justice_, but by the steady, quiet and regular
working of the machine, on which men know how to calculate, in which
they have faith, and which as seldom deceives them as comports with
human fallibility, rather than by _scenes_ in which the blind goddess is
made to play a part in a _melodrama_.

On the whole, it is fair to presume that, while public opinion, and that
intelligence which acts virtually as a bill of rights, even in the most
despotic governments of Europe, not even excepting Turkey, perhaps, have
produced a beneficial influence on the courts, the secrecy of their
proceedings, the irresponsible nature of their trusts (responsible to
power, and irresponsible to the nation), and the absence of publicity,
produce precisely the effects that a common-sense view of the facts
would lead one who understands human nature to expect.

I am no great admirer of the compromising verdicts of juries, in civil
suits that admit of a question as to amounts. They are an admirable
invention to settle questions of guilty or not guilty, but an
enlightened court would, nine times in ten, do more justice in the cases
just named. Would it not be an improvement to alter the present powers
of juries, by letting them simply find for or against the suitor,
leaving the damages to be assessed by regular officers, that might
resemble masters in chancery? At all events, juries, or some active
substitute, cannot be safely dispensed with until a people have made
great progress in the science of publicity, and in a knowledge of the
general principles connected with jurisprudence.

This latter feature is quite peculiar to America. Nothing has struck me
more in Europe than the ignorance which everywhere exists on such
subjects, even among educated people. No one appears to have any
distinct notions of legal principles, or even of general law, beyond a
few prominent facts, but the professional men. Chance threw me, not long
since into the company of three or four exceedingly clever young
Englishmen. They were all elder sons, and two were the heirs of
peers.[7] Something was said on the subject of a claim of a gentleman
with whom I am connected to a large Irish estate. The grandfather of
this gentleman was the next brother to the incumbent, who died
intestate. The grandson, however, was defeated in his claim, in
consequence of its being proved, that the ancestor through whom he
derived his claim was of the half-blood. My English companions did not
understand the principle, and when, I explained by adding, that the
grandfather of the claimant was born of a different mother from the
last holder in fee, and that he could never inherit at law (unless by
devise), the estate going to a hundredth cousin of the whole blood in
preference, or even escheating to the king, they one and all protested
England had no such law! They were evidently struck with the injustice
of transferring property that had been acquired by the common ancestor
of two brothers to a remote cousin, merely because the affinity between
the sons was only on the father's side although that very father may
have accumulated the estate; and they could not believe that what struck
them as so grievous a wrong, could be the law of descents under which
they lived. Luckily for me, one learned in the profession happened to be
present, and corroborated the fact. Now all these gentlemen were members
of parliament; but they were accustomed to leave legal questions of this
nature to the management of professional men.

[Footnote 7: This absurd and unaccountable provision of the common law
has since been superseded by a statute regulating descents on a more
intelligible and just provision. England has made greater advances in
common sense and in the right, in all such matters, within the last five
years, than during the previous hundred.]

I mentioned this conversation to another Englishman, who thought the
difficulty well disposed of by saying, that if property ever escheated
in this manner, I ought to remember, that the crown invariably bestowed
it on the natural heir. This struck me as singular reasoning to be used
by a people who profess to cherish liberty, inasmuch as, to a certain
degree, it places all the land in the kingdom at the mercy of the
sovereign. I need not tell you, moreover, that this answer was
insufficient, as it did not meet the contingency of a remote cousin's
inheriting to the prejudice of the children of him who earned the
estate. But habit is all in all with the English in such matters; and
that which they are accustomed to see and hear, they are accustomed to
think right.

The bar is rising greatly in public consideration in France. Before the
revolution there were certain legal families of great distinction; but
these could scarcely be considered as forming a portion of the regular
practitioners. Now, many of the most distinguished statesmen, peers, and
politicians of France, commenced their careers as advocates. The
practice of public speaking gives them an immense advantage in the
chambers, and fully half of the most popular debaters are members who
belong to the profession. New candidates for public favour appear every
day, and the time is at hand when the fortunes of France, so lately
controlled by soldiers, will be more influenced by men of this
profession than by those of all the others. This is a great step in
moral civilization; for the country that most feels the ascendancy of
the law, and that least feels that of arms, is nearest to the summit of
human perfection. When asked which profession takes rank in America, I
tell them the law in influence, and the church in deference. Some of my
moustachoed auditors stare at this reply; for here the sword has
precedence of all others, and the law, with few exceptions, is deemed a
calling for none but those who are in the secondary ranks of society.
But, as I have told you, opinion is undergoing a great change in this
particular. I believe that every efficient man in the present ministry
is, or has been, a lawyer.




LETTER VIII.

Army of France. - Military Display. - Fête of the Trocadero. - Royal Review.
- Royal Ordinance. - Dissatisfaction. - Hostile Demonstration. - Dispersion
of Rioters. - French Cavalry. - Learned Coachman. - Use of Cavalry. - Cavalry
Operations. - The Conscription. - National Defence. - Napoleon's Marshals.
- Marshal Soult - Disaffection of the Army.


To COL. BANKHEAD, U.S. ARTILLERY.

The army of France obtained so high a reputation, during the wars of the
revolution and the empire, that you may feel some curiosity to know its
actual condition. As the Bourbons understand that they have been
restored to the throne, by the great powers of Europe, if not in
opposition to the wishes of a majority of Frenchmen, certainly in
opposition to the wishes of the active portion of the population, and
consequently to that part of the nation which would be most likely to
oppose their interests, they have been accused of endeavouring to keep
the establishments of France so low as to put her at the mercy of any
new combination of the allies. I should think this accusation, in a
great degree, certainly unmerited; for France, at this moment, has a
large and, so far as I can judge, a well-appointed army, and one that is
charged by the liberal party with being a heavy expense to the nation,
and that, too, chiefly with the intention of keeping the people in
subjection to tyranny. But these contradictions are common in party
politics. It is not easy here to get at statistical facts accurately,
especially those which are connected with expenditure. Nominally, the
army is about 200,000 men, but it is whispered that numerous _congés_
are given, in order to divert the funds that are thus saved to other
objects. Admitting all this to be true, and it probably is so in part, I
should think France must have fully 150,000 men embodied, without
including the National Guards. Paris is pretty well garrisoned, and the
_casernes_ in the vicinity of the capital are always occupied. It
appears to me there cannot be less than 20,000 men within a day's march
of the Tuileries, and there may be half as many more.[8]

[Footnote 8: The sudden disbandment of the guards and other troops in
1830 greatly diminished the actual force of the country.]

Since our arrival there have been several great military displays, and I
have made it a point to be present at them all. The first was a _petite
guerre_,[9] on the plains of Issy, or within a mile of the walls of the
town. There may have been 15,000 men assembled for the occasion,
including troops of all arms.

[Footnote 9: Sham-fight.]

One of the first things that struck me at Paris was the careless
militia-like manner in which the French troops marched about the
streets. The disorder, irregularity, careless and indifferent style of
moving, were all exactly such as I have heard laughed at a thousand
times in our own great body of national defenders. But this is only one
of many similar instances, in which I have discovered that what has been
deemed a peculiarity in ourselves, arising from the institutions
perhaps, is a very general quality belonging rather to man than to any
particular set of men. Our notions, you will excuse the freedom of the
remark, are apt to be a little provincial, and every one knows that
fashion, opinions and tastes only become the more exaggerated the
farther we remove from the centre of light. In this way, we come to
think of things in an exaggerated sense, until, like the boy who is
disappointed at finding a king a man, we form notions of life that are
anything but natural and true.

I was still so new to all this, however, that I confess I went to the
plain of Issy expecting to see a new style of manoeuvring, or, at least,
one very different from that which I had so often witnessed at home, nor
can I say that in this instance there was so much disappointment. The
plan of the day did not embrace two parties, but was merely an attack on
an imaginary position, against which the assailants were regularly and
scientifically brought up, the victory being a matter of convention. The
movements were very beautiful, and were made with astonishing spirit and
accuracy. All idea of disorder or the want of regularity was lost here,
for entire battalions advanced to the charges without the slightest
apparent deviation from perfectly mathematical lines.

When we reached the acclivity that overlooked the field, a new line was
forming directly beneath us, it being supposed that the advance of the
enemy had already been driven in upon his main body, and the great
attack was just on the point of commencing.

A long line of infantry of the French guards formed the centre of the
assailants. Several batteries of artillery were at hand, and divers
strong columns of horse and foot were held in reserve. A regiment of
lancers was on the nearest flank, and another of cuirassiers was
stationed at the opposite. All the men of the royal family were in the
field, surrounded by a brilliant staff. A gun was fired near them, by
way of signal, I suppose, when two brigades of artillery galloped
through the intervals of the line, unlimbered, and went to work as if
they were in downright earnest. The cannonade continued a short time,
when the infantry advanced in line, and delivered its fire by companies,
or battalions, I could not discern which, in the smoke. This lasted some
ten minutes, when I observed a strong column of troops, dressed in
scarlet, moving up with great steadiness and regularity from the rear.
These were the Swiss Guards, and there might have been fifteen hundred
or two thousand of them. The column divided into two, as it approached
the rear of the line, which broke into column in turn, and for a minute
there was a confused crowd of red and blue coats, in the smoke, that
quite set my nautical instinct at defiance. The cuirassiers chose this
moment to make a rapid and menacing movement in advance, but without
opening their column, and some of the artillery reappeared and commenced
firing at the unoccupied intervals. This lasted a very little while for
the Swiss deployed into line like clock-work, and then made a quick
charge, with beautiful precision. Halting, they threw in a heavy fire,
by battalions; the French guard rallied and formed upon their flanks;
the whole reserve came up; the cuirassiers and lancers charged, by
turning the position assailed, and for ten or fifteen minutes there was
a succession of quick evolutions, which like the _finale_ of a grand
piece of music, appeared confused even while it was the most scientific,
and then there was a sudden pause. The position, whose centre was a
copse, had been carried, and we soon saw the guards formed on the ground
that was supposed to have been held by the enemy. The artillery still
fired occasionally, as on a retreating foe, and the lancers and
cuirassiers were charging and manoeuvring, half a mile farther in
advance, as if following up their advantage.

Altogether, this was much the prettiest field exercise I ever witnessed.
There was a unity of plan, a perfection of evolution, and a division of
_matériel_ about it, that rendered it to my eyes as nearly perfect as
might be. The troops were the best of France, and the management of the
whole had been confided to some one accustomed to the field. It
contained all the poetry, without any of the horrors of a battle. It
could not possess the heart-stirring interest of a real conflict, and
yet it was not without great excitement.

Some time after the _petite guerre_ of Issy, the capital celebrated the
fête of the Trocadero. The Trocadero, you may remember, was the fortress
of Cadix, carried by assault, under the order of the Dauphin, in the war
of the late Spanish revolution. This government, which has destroyed all
the statues of the Emperor, proscribed his family, and obliterated every
visible mark of his reign in their power, has had the unaccountable
folly of endeavouring to supplant the military glory acquired under
Napoleon by that of Louis Antoine, Dauphin of France! A necessary
consequence of the attempt, is a concentration of all the military
souvenirs of the day in this affair of the Trocadero. Bold as all this
will appear to one who has not the advantage of taking a near view of
what is going on here, it has even been exceeded, through the abject
spirit of subserviency in those who have the care of public instruction,
by an attempt to exclude even the name of the Bonaparte from French
history. My girls have shown me an abridgment of the history of France,
that has been officially prepared for the ordinary schools, in which
there is no sort of allusion to him. The wags here say, that a work has



Online LibraryJames Fenimore CooperRecollections of Europe → online text (page 11 of 29)