Part 10

The probat of wills, the granting of administrations, the appointment of guardians, and the supervision of the accounts and conduct of guardians, executors, and administrators, are confided to an officer, called the _Judge of Probat_, appointed in each county for those purposes only; and holding his court monthly, in several convenient places of the county, to hear motions and decide disputes on those subjects. His records and proceedings are kept by a distinct clerk, called the _Register of Probat_; and an appeal lies from his decisions immediately to the supreme court. We, in Virginia, sorely need some tribunal like this; specially charged with the interests of widows and orphans.

Equally worthy to be copied, is the Massachusetts mode of constituting _juries_. Lists of all persons qualified to serve, are kept by the town-clerks; from which, just before a court, the town quota of jurors is drawn by lot: and no one is compellable to serve oftener than once in three years. _They are paid for their service._ Against juries thus formed, I heard no complaints, of partiality, corruption, or undue ignorance. They receive a compensation, which at least defrays their reasonable expenses; and if there be still some burthen, it is borne equally by all, and recurs at such long intervals, as to be absolutely unfelt. How different is our plan, of sending out the sheriff just before a trial, to gather in the sweepings of the court-yard! Suitors and witnesses, attending perhaps for the tenth time, in hopes of having their causes determined--strangers from other counties, nay, travellers from other states--tipplers from the tavern porch--the nearest merchants, mechanics, and farmers, torn suddenly and capriciously from their employments--such is the medley, produced by a system as oppressive to most of the jurors themselves, as it is subversive of the important ends for which they are empanneled. One is really tempted to believe, that in adhering so pertinaciously to a system so obviously defective and so easily remedied, our statesmen have been governed by a fixed design to bring jury-trial itself into disrepute.

Wiser in another respect also than we, these "Bay folk" have no courts (except for cases of twenty dollars or less) held by _men who have not themselves studied the science they are to expound_: no parallel to our county courts--those _crack_ tribunals of some great men, whose admiration arises either from the want of intimate knowledge--they having ranged generally in a higher sphere--or from their enjoying over that bench an _influence_, flattering to their vanity, and blinding to their judgments. How long will the public attention sleep--how long will the hand of reform be palsied--when will an attempt be made to cure the unfitness of these courts for the weighty, multifarious, and difficult functions entrusted to them?--the ludicrous, if it were a less mischievous, uncertainty of their decisions, owing to their ignorance of any fixed rules by which to decide?--the delays, so fatal to justice, that attend their unsteady ministration?--the ruinous accumulation of costs, besides harassment and loss of time in dancing attendance upon them through years of litigation?

The Massachusetts and Connecticut plan, of an _itinerant supreme court_, cannot be commended to imitation. The common arguments, of _bringing justice home to the people_, and _enabling suitors to see in person to their causes_, are not pertinent, where the whole case is contained in the record; where no witnesses are to be summoned or examined--no counsel to be instructed in the cause. Then, the loss of time in travelling, and the want of so extensive a library and so able a bar, as would be formed if the court sat always in one place, must essentially impair the correctness of its decisions, and lower the superiority of its intellect.

The common-law of England is made the basis of Massachusetts law, not, as in Virginia, by a legislative declaration that it shall be so, but by adjudications of the courts, recognizing and adopting it as such. By a still bolder stretch, the courts have acknowledged as generally binding, English statutes made in amendment of the common-law--not only before, but _since_ the foundation of the colony: nay, the terms of the decision do not exclude English statutes subsequent to the American revolution. This comprehensive grafting of a foreign code upon the domestic, not by professed and authorised law-givers, but by mere judges, is perhaps one of the most remarkable instances of judicial legislation, any where to be found: and must have arisen from a licentious spirit of _construction_, which, when it acts upon written laws, may naturally be expected to make them mean almost any thing that the interpreters choose.[3] The admirers of an _unwritten law, reposited in the breasts of judges and to be sought only in precedents and decisions_, may vaunt, if they will, its happy _elasticity_, dilating and contracting to fit every conceivable emergency: but I doubt if (among other evils) it does not nurture habits of latitudinous interpretation, destined to be well nigh fatal to one of the great boasts of modern times--written forms of government. Minds accustomed always to make the law adapt itself to the particular occasion; to regard that _as law_, which the immediate case requires; naturally fritter away constitutions with as little ceremony, as children demolish or alter their sand houses and dirt pies.

[Footnote 3: Hardly less startling an exercise of legislative power by the judiciary, was in the abolition of slavery. The Bill of Rights prefixed to the constitution of Massachusetts, adopted in 1780, asserts, as most of our state constitutions do--substantially copying the Declaration of Independence--"_that all men are born free and equal_, and have certain natural and unalienable rights;" namely, the right of enjoying their lives and liberties, &c. On this, some masters spontaneously yielded freedom to their slaves; others, on its being demanded of them. In 1781, a master who refused, was sued by his slave for a trespass, assault and battery, and false imprisonment; and pleaded, that the plaintiff, being his slave, had no right to sue him. The court held, that slavery was contrary to the first article of the Bill of Rights; and that therefore the plea was bad, and the plaintiff was free. This decision virtually abolished slavery in Massachusetts, without any legislative act for doing so. Some other suits were brought; but in most cases, masters yielded at once. There were then not quite five thousand slaves in the state. Abolition was similarly effected in New Hampshire. It was by legislation in New York, where there were twenty-one thousand slaves, in a whole population of three hundred and forty thousand.]

The chief court of Massachusetts has tasked the readers of law-books, as heavily as our's has done. Its decisions fill twenty-seven or twenty-eight octavo volumes--about our number. The supreme court of New York has issued more than thirty; the supreme court at Washington eighteen or twenty; Pennsylvania, Connecticut, South Carolina--but I forbear the appalling list. Every good law library, however, should have at least the five sets first named; and they are as yet but just begun. If the monstrous increase be not checked, what purse can buy, what head can read (much less remember,) nay what room can hold them, a century hence? Already, indeed, we are grievously over-tasked: for besides the thousands of tomes, English and American, now accumulated,[4] it is impossible to keep pace with the daily accessions, poured forth from a hundred manufactories of legal oracles. Some powerful condenser, or another Caliph Omar, is our only hope. The oppressive bulkiness of law-reports is owing partly to the reporters; but more, to the judges--who, apparently more intent on the display of learning and ingenuity, than upon adjusting the rights of the parties, often swell the simple and clear page or two, which the case requires, into a rambling and voluminous disquisition of twenty pages. Nay, not content with _one_ such disquisition in each case, each judge presents his own; and the reporter spreads them all at length in his next volume. I wish that both judges and reporters could be obliged to study, as models of lucid brevity, Yelverton's Reports, and the still more admirable decisions of Chief Justice Tindal, of the English Common-Pleas[5]--who frequently compresses into half a page or less, what our American judges would wire-draw into half a dozen pages.

[Footnote 4: "Immenso aliarum super alias acervatarum legum cumulo."]

[Footnote 5: In the late "English Common-Law Reports."]

Lawyers are very numerous in Massachusetts--somewhere about seven hundred; of whom one hundred and sixty or one hundred and eighty are in Boston. Their intercourse appears to be marked by the same fraternal spirit, which strews the toilsome path of the profession in the south with so many sweets and flowers. Admission to the bar is procured, not by examination, but by leave of court, on recommendation of those who are already practising there; provided the candidate have studied five years in some lawyer's office; or have so studied three years, and be a graduate of some college. He has, besides, to pay for admission into the supreme court, a fee of thirty dollars, and for the common-pleas, twenty dollars; to be expended towards a joint library, for the use of the bar in each county. These libraries are sometimes large, and well selected. The emoluments of practice, except to the very leaders of the profession, seem far inferior to those of practisers occupying correspondent grades of talent and fame in Virginia: indeed, I doubt whether any but Mr. Webster receives an amount comparable to the incomes of several there, whom I could name. Yet the life of a lawyer is probably more pleasant in Massachusetts. From the pre-requisites to admission, you may infer that well-stored minds abound more with the fraternity: at least it was so, till our university, and our several excellent law-schools, began to give a clearer and more expanded ken to the mental optics of our young lawyers. Then, in society at large--certainly in the towns and villages--there is more literature afloat in Massachusetts: amusements are of a more rational cast. Where _we_ have a horse-race, a barbecue, a whist-party, or a _pool_ at back-gammon, our Yankee brethren have a meeting of some lyceum, or other society for mutual improvement, at which a lecture is given or a debate held, upon some interesting subject, of economy or morals: or an unceremonious evening visit is dedicated to conversation, in which politics engross no unreasonable share. The newspapers--even the most violent political ones--at once attest and foster the prevalent taste for general knowledge, by devoting a considerable part of their sheets to literary and useful matter: unlike the two giants of the press in Virginia, that can hardly ever spare a column, and never a page, from the embittering--aye, the brutalizing--themes of party strife, to topics which might exalt, enlighten, purify, innocently amuse, and humanize the public mind. There is less locomotion in the practice of a Massachusetts lawyer: he rarely attends more than two counties; for the most part, only one. This, if he loves domestic life, is a great point for him. And in the ordering of a New England home-stead, there is a quiet, smooth despatch--a neatness--a happy fitting of means to ends--a nicety of contrivances for comfort--an economy of trouble in every thing--all calculated doubly to endear it to a home-loving man. When to all this we add, that though the prime necessaries of life are cheaper with us, those elegancies and luxuries which as the world goes have become necessaries, are so much more accessible in New England, as to make a smaller income yield a larger store of comfort; it will not seem wonderful, that the balance of enjoyment is on the Massachusetts lawyer's side. I take for granted, you see, that he is not insensible to intellectual pleasures; and that _they_ conduce the most of all to happiness.

This is probably the last time you will hear from me before we meet; as my tour is drawing near its close. The six weeks it has occupied, have been crowded with more mind-stirring incident, than any six months of my previous life. Vivid indeed is the contrast, between the plodding, eventless tenor of the preceding eight years, and the exciting, the feverish interest of these six weeks. Yet they have afforded scarcely a describable adventure; nothing, at all calculated to make an auditor's eyes stretch wide, or his hair stand on end. In truth, the interest is explicable in great part by the simple case of a plough-horse, turned loose to kick up his heels for an hour. He enjoys the recreation (if his spirit is not broken by excessive work,) five fold more than a daily roamer of the pasture could do. Judge how the sport has kept my faculties aroused, by the fact, that though habitually a great sleeper, requiring seven or eight hours in the twenty-four, my sleep, since leaving Virginia, would hardly average five hours. Even while on foot--walking from twenty to thirty miles a day--my nightly allowance was sometimes less than five, never more than six hours.

Let me commend to tourists, _foot-travelling_--if they wish to see a country thoroughly: I do not mean its rivers and mountains, cities, forests, and churches, but its MEN and WOMEN. _These_ "constitute a State." Whoever would see _them_ in their truest, every-day garb--of dress and manners--upon occasions and amid scenes, where refined disguises are laid aside, and life appears with the least sophistication possible in our state of society; should walk among them without equipage and in very plain clothes; call in at their houses--partake of their meals--nay, find some excuse for tarrying a day or two at one place--enter their schools, and their public meetings--see them at their work--and hold "various talk" with them. In two or three weeks thus employed, he will obtain a deeper insight into their customs, character and institutions, than from months spent in whirling along the highways, and attending formal dinner parties. Unless he is a hardened pedestrian, he should take care to begin by short journies, of only eight, ten, or fifteen miles a day; and not till after five or six days, stretch away at thirty miles daily. Otherwise he may cripple himself, so as greatly to mar the pleasure of his jaunt. I speak from sore experience on this point.

Though I have been obliged to concede to the Yankees, a superiority in some respects over ourselves, you will not suspect me of having over-colored my limnings, or of having wantonly--much less ill-naturedly--disparaged our good old commonwealth. Without wishing to lower the generally just and salutary, (though sometimes amusing) pride her children feel at the bare mention of her honored name, I have aimed to draw their attention to some traits of Yankee life and character, which we may advantageously copy--nay, the _want of which_ is the main cause of our lagging march in the numberless improvements, that distinguish this age, and appear so fruitful of blessings to mankind. My aim too has been, to disabuse them of a few of the prejudices, which ignorance and misrepresentation have fostered against our Northern brethren. Let any one who thinks I have exaggerated their excellencies, only come among them, and see for himself; bringing to the scrutiny _a candid mind_, prepared to _allow_ for unavoidable differences.--Indeed our people ought to travel northward oftener. It would be a good thing, if exploring parties were frequently sent hither, (as to a moral _terra incognita_,) to observe and report the particulars deserving of our imitation. Our independent planters, and shrewd, notable housewives, could not make such an excursion, without carrying home a hundred _notions_, for which they and their neighbors would be the richer and better all their days. Nor might they profit less, by sending their statesmen and law-givers, to take lessons in civil polity. There are admirable things of every magnitude; from TOWNSHIP GOVERNMENTS, COMMON SCHOOLS, and COURTS OF PROBAT, down to _closed doors_, _splayed_ and _rumfordized_ fire-places,[6] _seasoned wood_,[7] and _cold light-bread_.[8] Some things, too, they would see, to be shunned: I need only name excessive _banking_,--enormously multiplied _corporations_, for manufacturing, and other purposes--and, what strikes yet more fatally at the foundation of popular government, the _caucus_ system. But the strongest reason for a more frequent intercourse, is the liberalizing of mind that would result; the unlearning of our long cherished prejudices, from seeing the Yankees _at home_--that place, where human character may always be the most accurately judged. They too, have some (though fewer and less bitter,) reciprocal prejudices, to be cured by a more intimate acquaintance. No mind but must see the unspeakable importance of weeding away these mutual and groundless dislikes. The perpetuity of our union--and the liberty, the peace, the happiness of its members--in a great degree depend upon the accomplishment of that expurgation. There cannot be a simpler _recipe_. _The North and the South need only know each other better, to love each other more._

[Footnote 6: When the sides of a fire-place are slanting, instead of being square with the back, they are said to be _splayed_. When the back leans forward at top, approaching the inner side of the arch or front top, so as to make the flue only six or eight inches wide, it is said to be _Rumford-ized_, If my readers pardon me for being thus elementary, I will presume further upon it, and add, that the latter term comes from Count _Rumford_, who invented that improvement. The sides of a New England fire-place often slope at an angle of 120 or 130 degrees with the back; so as to make the width _behind_, not more than half the width in front. The wood is usually sawed, to fit the hinder part of the fire-place.]

[Footnote 7: The wood is cut 12, sometimes 15 or 18 months, before it is burned. If cut in the summer, it is suffered to lie out for a few months, and then put away till the second winter, in the _wood-house_; a constant and close appendage to every dwelling. Southrons have no idea, though Yankees have experimental knowledge, of the saving and comfort there is in using this, instead of green wood--how vastly further any given quantity of the former will go, in producing heat. It has been satisfactorily shewn, that in a cord of green wood, there are about 140 or 150 gallons of _water_; all of which must be changed to steam--that is, _evaporated_--before the particles of the wood in which it is lodged can burn: and in doing this, just so much _heat_ is expended, which would otherwise be employed in warming the room. The time spent in this process, makes our people fancy that green wood actually _burns_ longer than dry: and because a dozen billets of green, when the water is entirely evaporated, give out more heat than four dry ones, they think that hotter fires can be made of green wood!]

[Footnote 8: The bread should not be eaten till it is _cured_, or stale; i.e., at least twenty-four hours old; and it is _good_, for several days more. The superior wholesomeness of _cured_ bread is explained by the fact, that on coming out of the oven, it has an over-proportion of carbonic acid gas--well known to be poisonous when unmixed; but by lying in the open air, the bread parts with most of this noxious gas, and imbibes instead of it, oxygen gas--the wholesome, vital _principle_ in the atmosphere.]

For the Southern Literary Messenger.

THE WALTZ AND THE GALLOPADE.

MR. WHITE,--Although a short time only has passed since I wrote you a long letter, partly to fulfil a promise made before your Messenger began to perform his most welcome peregrinations, yet the spirit moveth me irresistibly to address you again. The immediate cause of this second tax upon your patience being so soon levied, is the perusal of an article published some time ago in that spirited paper, the "Constitutional Whig" of your city,--wherein, to my great gratification, its talented editor has lashed in well merited style, that outrage upon the yet unsophisticated manners and customs of our country, seen, I believe, for the first time in the city of Washington last winter, as if in mockery of the character and memory of its illustrious founder. I mean the "Fancy Ball," as it is styled by those who have undertaken to describe it; although with all due deference to their superior taste and knowledge, I would venture to suggest "the frantic hurlyburly" as a more appropriate term. I do this from having some reason to believe, that a more deplorable caricature of what was designed to be represented, was never perpetrated by the would-be fashionables in any country--either _in_ or _out_ of Christendom. This foreign and apish intruder has not yet, thank heaven, gained such footing among us, as altogether to preclude the hope of extirpating it from the land, if a few such pens as that wielded by the editor of the Whig, could be exerted for so laudable a purpose; and therefore it is that I venture to cry--"to the rescue," in the hope that several others will obey the call. Let it once be deemed "_the fashion_" to have "Fancy Balls," and even the greatest clodhoppers among us are sufficiently acquainted with the despotism of this tyrant, to know that _his_ behests will bid defiance alike to reason, ridicule, and reproof--to good sense, good manners, and good principles.

I am much gratified, Mr. Editor, at another circumstance brought to my notice incidentally by this article in the "Whig." It is, that our language, copious as it certainly is, does not yet afford terms of its own to express several of the foreign fooleries and attempts to corrupt our yet simple, unaffected character, described as a part of this extraordinary exhibition, "the Fancy Ball;" such, for example, as the waltz and the gallopade. For the benefit of those who may wish to know the literal meaning of these outlandish terms, without the means of gratifying such wish, I beg leave to offer the fruit of my researches--aided, as I confess myself to have been, by far better scholars than I am.

The first term--"_waltz_," is evidently of German extraction, being plainly derived from the verb "_walzen_" which, with the adjunct "_sich_," means to roll, welter, or wallow oneself; and with the prefix "_das_" becomes the participle rolling, weltering, wallowing; from which selfish process the transition is quite easy, to roll, or welter, or wallow another. In either case the predominant idea is, that the term describes some action natural to an animal of the order Belluæ; for our English correlative terms are never applied to human beings, but by way of derision or contempt expressed in figurative language. Quere: how does it accord with human pride and vanity--how far is it reconcileable to the lowest aspirations that we are ever willing to acknowledge ourselves capable of feeling, to be ambitious of imitating either hogs, horses, or monkies in our actions?