University of Virginia Library

5. CHAPTER V.

It may be thought that in my allusions to impeachment,
I may have in view what has happened in this
state. It is probable, or rather certain, that it is this
which has led me to think upon the subject, and to introduce
it in a picture of democratic government, such as
that I am now describing. But if it is inferred from
thence, that I approve or condemn what has taken place
in this state, it will be unfair; or at least a misconception.
For I do not mean that any inferences, favourable
or unfavourable, should be made from it. On the contrary,
I am far from reprobating the power of impeachment
in the constitution, or finding fault with a discreet
use of it in practice. I look upon it, as the means of
avoiding tumults, and assassinations. When dissatisfaction
with the conduct of public officers, is suffered to
shew itself, and to have a vent in this way, the public
mind, having an opportunity of hearing grievances discussed,
and getting to know the real demerit, good or
bad, of the functionary, is more likely to be satisfied,
and it is safer for the object of the obloquy. Nor, on examination,
will it be found, that in many cases, where
there is a public dissatisfaction with an officer, there has
not been some foundation laid; if not in the very particular
that is made the subject of enquiry, yet in some
other that has led to it. As for instance; even in the
case of Scipio Africanus, where, perhaps, a just cause
has been the least suspected to have existed of all instances
of a great man impeached, that are to be found in
history. Yet if any one will read Livy attentively, in his
account of the way in which this young man came forward
into public life, he may anticipate the vexations he
experienced after he had accomplished great things for
the commonwealth. His error was, a premature competition
for office. Before the age allowed by law, he set
up for the Edile-ship, and carried it by the undue favour
of the populace. “Si me, omnes Quirites edilem facere
volunt, satis annorum habeo.” How arrogant the
expression; how insulting to the tribunes and Fabius
Maximus, and others of the senate who opposed it? His
offering himself for the proconsulate in Spain before his

24th year, quatuor et viginti annos ferme natus, professus
se petere, was more excusable from the occasion.

But it was in some degree by an affectation of religion
and arts of dissimulation, that he had prepared the public
mind, to favour his premature pretensions. From the
time that he had put on the toga virilis, to this, he had
been preparing the minds of the people. There was
no day, before he did any thing private or public, but that
he went into the capital, and entering a temple, sat down,
and for the most part alone, in secret, and spent there
some time. This custom, which was preserved through
his whole life, whether designedly, or that it so happened,
procured credit to the opinion published by some, that
he was a man of a divine stock, and brought up the story
before common, of Alexander the Great, and equal to it,
in fable and variety, that he had been conceived of a
huge dragon, which had been seen in the bed of his mother;
and which tale he increased by the art of neither
contradicting nor assenting.

On his return from Spain, after the expiration of his
proconsulate, he was willing to have accepted a triumph,
though to that day, there had been no instance of
any one triumphing, for whatever successes, unless he
had had the command in chief; or, as the historian expresses
it, qui sine magistratu res gessisset. It is true,
it is said that “the hope of a triumph was rather tried
than obstinately persisted in.” But it shews a too great
forwardness to catch at honours. But the inordinate
nature of his ambition was more evident, on his obtaining
the consulship. He grasped at Africa for his province
though not according to his lot, “nulla jam
modica gloria contentus.” And this he said openly,
he would carry by the people, even if the senate set
themselves against it. He made his words good, and
the senate, with all the authority and reputation of Fabius
Maximus, venerable from age and wisdom, and
other aged likewise and experienced, were bullied by the
tribunes and people into an acquiescence.

I cannot help considering his conduct in procuring the
province of Africa for his brother Lucius, having Lælius
for his colleague in the consulship, who equally was ambitious
of that designation, as extremely indelicate in
throwing his weight into the scale, in the deliberation of
the senate between the two, by offering to serve under
his brother as his lieutenant; if they would prefer his

brother. By this means, and by his previous advice to
his brother in submitting the matter to the senate, rather
than to the chance of a lot, and thus having it in his mind
to use the address of offering his services in a subordinate
capacity, which was, in fact, obtaining the command
for himself, he fixed in the minds of the principle
men much chagrin and dislike. And deservedly; for
ambition is self-love; and when it is at the expence of
others, it is odious. Every man in a community has what
may be ranked among the imperfect rights in society,
a right to have his age considered, in pretention to office;
and not to be intruded upon by the coming generation
before its time; much less to have power engrossed even
by virtue itself, or the most distinguished ability. For
the keeping the flame of public spirit burning, is the
vital principle of republican government, to which there
is nothing more smothering than inequality in the chance
of obtaining offices, honours, and emoluments. And if
the next generation come on too soon, the seniors are
pressed out, and lose their chance. Nor is it only by the
younger intruding that this equality is effected, but the
usurping by those of any age, of what is not equal.—
And I call it usurpation, where any thing is obtained;
what is more, where any thing is even taken, that reasonably
ought to go to another, in consideration of standing,
ability, or services. If these are obtained by popular favour,
unduly coveted, what reason has the candidate to
complain, or good men to regret, if the same caprice that
has advanced, should, notwithstanding unimpeachable
conduct, nevertheless impeach. We shall see that this
was the case with Scipio.

He was impeached by the tribunes of the people on a
charge of peculation, and converting the public money
to his own use, in which there was no truth; but in the
remainder of the charge, there was truth; “that he had
pushed himself forward to foreign nations in a manner as
if peace and war with the Roman people depended upon
him alone: That he had gone out as a dictator to his
brother, rather than as a lieutenant; and for no other purpose,
but that he might shew himself, and have it believed
in the east, as he accomplished in the west, that he
should seem the head, and the pillar of the Roman empire:
That a state, the mistress of the world, should
seem to be under the shade of his power: That his nod

stood in place of the decrees of the senate, or the orders
of the people.”

The charge of peculation he could easily answer; but
these things he could not answer; nor was there any
thing so definite in them, that strictly speaking, they
could be made the ground of an impeachment; but it was
easy to see that by reason of them, the alleged offence
would be established, and which alone could come within
the laws. He chose to withdraw from the trial, and go
into banishment.

If, in like manner, impeachments that have brought a
reproach upon republics were examined, it might be
found, that in the greater part of them, bating sudden
errors, and mistakes, incident to all human affairs, there
would be found, though not the best foundation for the
particular charge alleged, and the sentence pronounced,
yet remotely something blameable, which had led to the
making the charge in question.

But even taking it as matters seem to be on the surface
of things, the wrongs of democracy, and injustice of
public characters, will be found to fall short of those under
lurid despotism. For a view of this, let the history of
the Roman empire, by Livy, be compared with that of the
same people under the emperors, as we have it by the
divine pen of Tacitus. There is no one who will consult
the nature of things, or look into what has taken place in
popular governments, but will think that there is greater
chance for justice to an honest man, than where this depends
upon the caprice of an individual. For it is not the
despot himself that is alone to be dreaded; it is those
he has about him, and will allege words spoken of him,
or acts done against his government; when, in fact, it is
their own resentment, for something done, or said, or
omitted to be done, or said, which they wish to gratify.

A despotic government is safer for a dishonest man, and
he has the best chance of coming forward there, where
it is not ability or integrity that recommends, but subserviency
to the passions of the prince.

But it is the rage of mere democracy that has brought
reproach upon republicks; democratic power unbalanced,
is but the depotism of many instead of one. It is the
balancing with stays and braces of distributed powers that
gives safety. This distribution of power is the highest
effort of the mind, and yet you will find but few,
who, like my bog-trotter, will not conceive that they

could form a constitution that would give energy and
guard liberty. It is this false idea, overweaning conceit,
that I have it in view to ridicule. I am willing to
give it the whole force of my indignation, in proportion
as I know the error, and the consequences. Let any man
look at a book published in this state, under the specious
title of “Experience the test of government,” and see
the crude conceptions that it contains; I do not know
by whom written, and he will be sensible of the consequences
of putting the modelling of a constitution into
such hands. “I am not afraid of the people of Pennsylvania,”
said a pompous orator to me. The fact was, he
had nothing to be afraid of, unless they would take his
scalp. Nor am I afraid of them on my own account;
but on theirs; at least I am afraid on their account, as
well as my own. For the formation of a government, is
not a matter to which the bulk are competent: or if
they will indulge caprice in changing, and they will go
to change; whenever a change is made, it will be but
a majority that is satisfied, and perhaps that not great;
and it is to be expected that a portion of the majority,
not finding their account in the change, will associate
with the former minority, and hence a change, and so toties
quoties, until only one remains that is to be satisfied.

It will be said, impeachment is of no use; the constitution
being such, that a conviction cannot follow; it requiring
such a proportion of the tribunal, before whom
the impeachment comes to trial, to be of a mind. Is it
nothing even in the case of an acquittal, to be scared half
to death? Even on a representation of the people, and a
citation before a committee of the house of representatives,
one may as well be half hanged, as to undergo the
terror.

Can any one, looking at the quarter sessions, think that
there is no good by trying, even where there is no condemnation?
I have known many a man tried, that I
thought guilty in the letter of the law, and perhaps spirit,
but if acquitted by the exclusion of testimony not legal, or
the leaning of the jury on the side of himself, or otherwise,
I did not think there was nothing in the having brought
to trial, and shaken the prisoner well over the indictment,
or rather the indictment over him. He might reform
and it would be a warning to him.

It is possible, that something like oppression and tyranny,
or bordering on these, both to people and bar, may
have been complained of in judges with some cause in
times past. Is it to be supposed that what has taken
place, has contributed nothing to arrest, or remove this
grievance? Would not the oppression and tyranny seem
to have veered to the other side now, and to be found, in
some degree, if not with the people, at least with the bar.
It has seemed to me to be so, and it is therefore, but an
emanation of my feelings when I pourtray in my imagination
the disorder of untamed animals admitted to be
advocates. It is doubtless a caricatura of what I mean,
but a thing has usually some excess in it, to be felt as
the proper subject of a caricatura. While the lawyer
has it in his power to influence his client; and even to
excuse his own ignorance or errors, by laying the loss
of a cause upon a judge, or alleging oppression, the client
can apply to a house of representatives, and the judge,
of course, be brought down with facility, the presumption
is, that he will bear a great deal of impertinence,
impudence, and irregularity, before he will think it advisable
to endanger the running the gauntlet, by entering
into a contest with a powerful member of the bar. I
do not mean powerful in point of talents; for there is
nothing to be apprehended from men of ability; it is
from the uninformed that the difficulty arises; and insults
are received from them, because it is the instinct of
their natures, to cover their defects by noise and arrogance;
or, from a want of knowledge, they think themselves
monstrously wronged, when they have the fairest
hearing, and the fullest justice.

The suitors of the court, the jurors, the circumstantes,
or bystanders, complain of the length of speech in
the lawyers, and of the judges for suffering them.—
There was a time when the judges might have taken some
liberty in restraining, or at least in frowning on diffusiveness
of explanation; but more caution must be used
now, lest offence should be given; judges being more
under the weather than formerly. A prudent man in a
judicial station, will bear for the present, what he will not
always bear; because he will discern that this is not the
time to make head; but that after some time, the current
may begin to set in a different direction; and that
may then succeed which now would but strengthen the

tide. Besides, it is difficult to say when the speech is
too long; and it may be a question whether the court
ought to be suffered to judge of that. The constitution
provides that a man shall be heard “by himself or his
counsel;” but it does not say how long he shall be heard.
Admit the court may have a right to say, that the
speech has been long enough as to them, have they a right
to say that it has been long enough for the jury. How can
they tell whether the jury are satisfied? What is more;
is it the court or jury that have the right to say, that
they have heard enough? Or, is it the suitor or his counsel,
who have a right to say, we have not been sufficiently
heard? Tyranny and oppression in refusing to hear,
may be charged; and thus it is a matter that must depend
a good deal upon the temper of the times, and upon
a discreet discernment of what is practicable, on particular
occasions, or with particular persons, that a judge
must determine what to do. A man of sense at the bar,
is easily manageable; but a weak man is as difficult to
manage, as the visionary philosopher's panther.

Do our representatives in our legislative bodies, always
confine themselves to the point, though they may to the
question? In other words, is it possible to keep them to
order, though it may be to call them? Is it found possible
to abridge their harangues while breath and strength
of lungs last? If those whose business is not speaking
can find such facility in prolonging a discourse, what
may not be expected of such as are more in the habit;
and without fatiguing themselves, can speak interminably?
Were our orators in the legislative bodies as much
in the hearing of the people, as the advocates of our
courts, they might be complained of as much for the
length of their speeches. In the courts, it is no uncommon
thing for the judges to express a weariness of the
tediousness of counsel; and sometimes to attempt to
bring them to the point, and to abridge their harangues;
but it will seldom, if ever, be found to answer
any end but to prolong the discussion; for if you restrain
at one point, there will be an overflowing at another;
and it being like to come to an altercation, which is indecent,
it will seem best to give up the contest, and let the
thing take its course. The line is so delicate between
unseasonable interruption by the court in calling to the
point, and what is justifiable, that it is difficult to fix it
without doing injustice, and impossible without giving

dissatisfaction. In human affairs, there is no reaching
the perfect in the application of principle. All that can
be done, is to come as near it as possible, by a just discernment
of circumstances. What is done, may be
blamed; but there might be more blame, had the contrary
been done.