 | STORY
OF THE
SECOND WISE MAN OF GOTHAM. The merry tales of the three wise men of Gotham |  |
2. STORY
OF THE
SECOND WISE MAN OF GOTHAM.
THE PERFECTION OF REASON.
“My brother Harmony,” said Mr. Quominus, the
second Wise Man of Gotham, “has fallen a sacrifice
to the perfectibility of man; I, on the contrary,
am a martyr to the Perfection of Reason. I was
born in a country, where they have sufficient wisdom
to make their own laws, but not quite enough,
as it would seem, to understand them afterwards.
In order to remedy this singular inconvenience,
they resorted to a method equally singular, and original.
They enlisted the wise men of other nations
in their behalf; and justly considering that it was
quite a sufficient effort of human wisdom for one
country to make its own laws, they determined to
resort to another for their interpretation. Accordingly,
they made a vast number of laws, believing
they could not have too much of a good thing, and
then sent beyond sea to get them explained. In a
couple of hundred years, these explanations, being
all carefully recorded in books, amounted to upwards
of three thousand volumes, of goodly size,
containing upon an average, each, one hundred
contradictory interpretations of different wise men.
Such a mass of wisdom, and such a variety of opinions,
never got together under the same roof in this
world. Some very aged persons, who had lived
long enough to get about half through this invaluable
collection, discovered that it was like the sermon
that suited any text, and the text that suited
any sermon—for every man could find in it, a decision,
or at least, an opinion, to suit his purpose. A
system so supported on all sides, by all sorts of opinions,
certainly merited the honour of being called
a science; and such a science, as certainly, deserved
a respectable name. It was accordingly aptly
denominated the perfection of reason, because
it furnished every man, however different his opinions
might be, with reasons in support of them.
In addition to this great requisite of every perfect
system, namely, that it should suit every body
—this accumulation of contradictory opinions, it
was affirmed, possessed another irresistible claim to
the dignified appellation it had obtained. It cannot
be denied, said the admirers of this science,
that although the laws are expressly devised to settle
such disputes, or conflicting claims, as might
otherwise occasion a resort to force, still it is never
the intention of a wise legislator, that people should
actually appeal to them for this purpose. They
are merely to be held up in terrorem, or rather like
buoys, to float on the surface of society, for the purpose
of warning mankind of the shoals and quicksands
that the more intricate and inconsistent the
laws, and the more various and contradictory their
interpretations, the greater delay and expense
there will be found in settling appeals to them, and
consequently the number of law-suits be greatly
diminished. Thus, when the laws become perfectly
unintelligible, they are absolutely perfect, for then
nobody in their senses will go to law, and the science
will do its duty after the manner of a scarecrow,
which frightens the birds from the corn,
merely by flourishing its unintelligible rattle. Thus
you see, that no other name than that of the perfection
of reason, could possibly have suited this
excellent science.
In addition to the singular happiness of being
born in a country, governed according to the perfection
of reason, I was brought up under an uncle,
(my father dying when I was quite a child,) who
adored the law, and might be said never to have
had any other mistress. He was a bachelor, of
competent estate, but rather indifferent education
—he was better fed than taught; and, when I say
he could read and write and cipher a little, I go as
far as strict biographical veracity will warrant. He
was without a profession, rich, and a bachelor.
Such a man has but one chance for happiness in
this world—he must get unto himself a hobby, and
ride away as if the sheriff was at his heels. To
for the source of the Niger. Yet I think I can
account for that of my uncle. He had gained possession
of a large part of his property, by a law-suit,
and ever after held law to be the perfection of
reason, while the honest gentleman who lost the
estate, held it in utter abhorrence. The suit lasted
nineteen years, at the expiration of which, there
was found a great flaw in the defendant's title. He
had no more money, and no man ever successfully
appealed to the perfection of reason, with an empty
pocket.
From this time, it was his great delight to attend
the courts, where, as he used to affirm, with surprising
satisfaction, they sometimes nearly argued his
head off his shoulders, and so confounded his notions
of the distinctions between right and wrong,
that he could hardly tell the difference, until he
went home and looked over the ten commandments.
I remember the delight with which he
related a case he had read in some book of reports,
where a man tried on a confession of murder, was
acquitted by the jury, under the express direction
of the judge, because the charge set forth that he
committed the murder outside, whereas it appeared
in evidence that it was done inside, of a certain
door. Another time, he fell into an ecstasy at a
decision which he always held to the day of his
death, to be the most exquisite specimen of nice
course of his life. It seems a fellow had been caught
with a bundle of counterfeit notes, which the indictment
set forth was found in his right breeches pocket,
when it appeared in evidence it was taken from his
left breeches pocket. “After three days hard argument,
the court decided,” said my good uncle, rubbing
his hands—“they decided that the prosecutor
had mistaken the locus in po or the hocus in quo”—
my uncle, as I said before, was no scholar—“and
therefore the prisoner must be acquitted.” Had the
law never done any thing else, but make this distinction
between a man's pockets, it would in his opinion
have fully merited its title of the perfection of reason.
“It is worth while to go a thousand leagues,”
would he say, “to find out how little the actual
commission of a crime has to do with the real
matter of fact, in the eye of the perfection of reason.
It is all settled by the hocus in quo—which I
suppose is what we call hocus-pocus in English.”
Like a vast many ignorant people, he mistook
quibbling subtilty for deep reasoning—the art of
confounding with that of enlightening the understanding—incomprehensibility
for clearness, and
perplexity for wisdom—forgetting, or rather, never
having discovered, that true wisdom is perfect simplicity.
The good gentleman, however, almost exclusively
confined his idolatry to the common law. He
the wisdom of ages. Nothing, indeed, could equal
his admiration of the common law, except his
thorough contempt for statute and civil law. If he
could have had his will, he would have outlawed
the statutes, and made it capital to read Justinian,
Mercy upon us! how he would rail at Caius, Ulpian,
Papinian, Tribonian and the rest of the civil
law gentlemen, whom he called by no other name
than pettifoggers of the forum. Not that he knew,
or had ever read a word of either of these writers.
His contempt was perfectly gratuitous—it was the
homage of ignorance at the shrine of prejudice.
Next to his veneration for the common law, was
his profound respect for English judges confounding—I
beg pardon, expounding it. Even their contradicting
themselves every day, did not alter his
opinion that they were the only inspired high
priests of the perfection of reason. Towards the
judges and jurists of other countries he looked rather
askew, believing that human reason never attained
to any tolerable degree of perfection out of
the three kingdoms, and that a French, Italian,
German, or Dutch judge, knew no more about managing
the common law, than they did about boxing,
or any other abstruse science. But of all the
judges, past or present, he, like most ignorant people,
held those of his own country the cheapest for
divers reasons. He maintained that they either had
them. That they were in fact little better than instruments
in the hands of subtle lawyers, or mere
echoes of the decisions of others. He once went
so far as to swear, he could teach a parrot to retail
the decisions of his betters, and thus make a capital
judge of him, for his gravity would pass for wisdom.
So far indeed did he carry this unjust prejudice, as
to declare it his firm conviction, that if the developement
of their organs, was examined by a competent
phrenologist, nine out of ten would be found
destitute of the organ of judgment. But in this, I
am convinced, notwithstanding the causes I have to
complain of the perfection of reason, the good gentleman
carried his prejudices beyond all reasonable
bounds. I have had, as you will perceive in the
course of my narrative, pretty sufficient reason for
dissatisfaction on this head. But notwithstanding
I am free to bear testimony to the talents, learning,
and uprightness of the great majority of the judges
of my native country. As respects the administration
of justice, they are in my opinion, as able and
upright, as the perfection of reason will permit them
to be. If they err at all, I am inclined to think it
is in permitting too great a latitude to the subtilties
and sophistries of ingenious pleaders; and in
giving undue weight to ancient precedents, derived
from reasons long since inapplicable to the state
of our manners, habits and social relations. A
appears to me another fault, which, however, almost
deserves to be pardoned on account of its novelty.
It has happened to me more than once, to
hear a judge decide upon a case, on the ground of
some recorded decision of another judge, when I
myself would a thousand times rather have trusted
it to his own unbiassed sense of right and
wrong. It seems odd, to see a lawyer teaching a
judge his lesson, out of a pile of books, and making
him who is there as a master, appear more like a
scholar, learning his alphabet from some beardless
pedagogue.
However this may be, my uncle had a most vehement
and perfect veneration for the common law,
and for English judges sitting in judgment upon it,
and from time to time pronouncing it to be, sometimes
flesh, sometimes fish, and sometimes fowl.
I verily think, if he could only have found out in
what impenetrable labyrinth the common law was
enshrined, he would have made a pilgrimage to the
spot. Indeed, he once talked very seriously of going
to England only to see the chief justice of the
common pleas in his gown and wig. But he was
prevented by one of those untoward accidents,
which disconcert the great schemes of life. He
died before he could come to a determination.
This, however, was long after he had condemned
me to study the perfection of reason. He decreed
convinced, that both nature and fate intended me
only for a client.
I was accordingly sent into the country to live
with a learned jurist, who boarded a certain number
of pupils, to whom he read law lectures three times
a week. In the intervals, we dipt into the works of
the famous writers who have analyzed and laid
down the great principles of the law. We knew
nothing, however, and learned nothing of the real
mysteries of the profession; nor did I discover until
after long experience in the world, that the theory
and the practice of the law, were no nearer related
to each other, than the two extremes of the same
earth. They were the antipodes of each other.
Here in the retirement of a country mansion, and
apart from the great business of the world, which
alone furnishes the practical application and infallible
test of all human institutions, I revelled in
the beautiful theory of the law. Every where I
read the most lofty and eloquent eulogiums on the
science, from the pens of the greatest names; and
every where I saw in the English books, the highest,
most unqualified testimony to the unequaled
excellence of the common law, above all others. It
was the aggregate of human experience, the perfection
of reason. I actually fell in love with it, and
studied with an amorous enthusiasm which I can
hardly believe possible, now that my mistress has
jilted me so many times.
At the end of three years, I was sent for to my
worthy uncle, who was dangerously ill. I found
him in the hands of a physician, who had himself
invented six new diseases, and of course must have
been a clever fellow. But my poor uncle's time
was fast approaching—he grew worse every day,
and the doctor invented a new name for every new
symptom that appeared. Calling me one morning
to his bed side, he expressed his affection for me,
and said he had left me all he was worth in the
world. “You will find yourself rich—but remember
that riches make themselves wings, and fly
away. Remember too, that the only way to restrain
their flight, is by a proper knowledge of the
laws whereby you will be enabled to take care of
your wealth. By knowing what is lawful and what
is not lawful—by applying the immutable rules of
right and wrong as defined by the laws—I mean
the common law—you will have a due sense of
your rights and duties, and thus no danger can befall
you.”
Rising upon his elbow, he continued, with an enthusiasm
that lent new light to the dying taper—
“Law is indeed the perfection of reason—therefore
it must necessarily conform to the purest principles,
and inculcate the soundest doctrines of morality.
It is therefore the great worldly monitor to
teach us what is due to ourselves and to others. It
is in fact, a practical commentary upon the great
what we would they should do unto us.' It is likewise
a `rule of action,' as hath been truly defined.
It must therefore be founded upon immutable principles.
It is intended for the daily use and government
of people of common sense—therefore, it
must of necessity be so plain and simple in its precepts,
as to be within the comprehension of the
most ordinary understanding. Dost thou reverence
this noble science, my dear nephew?”
“I do,” replied I, bowing reverentially.
“Dost thou believe in Holt, Hale, Somers, Hard-wicke,
lord Raymond, chief justice Coke, judge
Buller, lords Mansfield, Thurlow, Ellenborough and
all the English judges?”
“In every mother's son of them,” said I, little
wotting that I had pledged myself to the belief of
greater contradictions, than I could digest for the
rest of my life.
“And in the common law?” quoth he.
“I believe it to be the perfection of reason.”
“Enough, my dear son—now take my last advice.
Never resort to any tribunal but the common
law, if you are aggrieved, assaulted, or defrauded.
Eschew the court of chancery, as clogged,
impestered, and corrupted by an infusion of
that mischievous quality miscalled equity, which
the common law abhorreth. Thou hast only to appeal
to the common law for redress—for that is the
perfection of reason.”
“It is the perfection of justice,” said I.
“I affirm it with my latest breath,” said my good
uncle, and expired with a smile of triumph. When
the doctor arrived he discovered symptoms of a new
symptom, which he immediately christened by a
new name. There was a swelling under the tongue.
“It was only an unnatural expansion of the organ
of common law—did he examine the angle of constructiveness,”
interrupted Mr. Le Peigne, the
third Wise Man of Gotham.
“Not that I know of,” said Mr. Quominus.
“What an imperfect machine your uncle must
have been,” said the Man Machine, “not to know
that in the perfect state of society, there is no use
for either law or gospel.”
“Very likely,” replied Mr. Quominus, “but he
was kind to me, and left me a good estate. I am
therefore bound not to hear his memory insulted.”
“No intention in the world,” returned the other,
“but as you made free with the old gentleman
yourself”—
“That may be,” quoth Mr. Quominus, “but I
don't like other people to take the same liberties.”
He then proceeded with his narrative.
Finding myself in possession of a plentiful estate,
I determined not to enter upon the practice of the
law, except now and then con amore, and in the
meanwhile, amuse myself with such recreations as
my fortune placed in my power. As I was fond of
which I paid a high price, being verbally assured
that he had an amazing number of good qualities,
and no faults. In a day or two, I discovered he
was broken-winded, and blind of an eye; of
course I insisted on returning the horse and receiving
my money back again, on the ground of deception.
The jockey refused, alleging that neither
loss of wind, or of an eye, was the fault of the
horse, but his misfortune, and therefore when he
denied his having any fault, he practised no deception
whatever. Moreover, he snapt his fingers
at me in defiance.
This was in my opinion a proper occasion to resort
to the perfection of reason for redress. I accordingly
invoked the shade of my uncle, and commenced
taking my first practical lesson in the common
law, by bringing a suit against the jockey. I
cannot describe my feelings on this first occasion of
applying to the grand tribunal of human reason—I
looked upon myself, as now exercising the highest
privilege that could possibly fall to the lot of humanity,
and entered the court with the awe of a
young devotee for the first time kneeling at the
shrine of his patron saint. Being somewhat addicted
to blushing, which our lecturer assured us was
always a sign of a bad cause, I employed on this
occasion, a lawyer, who was seldom, if ever, guilty
sworn, the trial commenced.
I proved all I thought necessary, namely, that I
had paid the full price of a good horse, and got one
that was good for nothing. I was satisfied that in
the eye of the perfection of reason, this would of
course be deemed a case of deception, if not fraud.
But I was mistaken with a vengeance—the perfection
of reason was not so easily satisfied. I was
cross questioned for three quarters of an hour, by a
fellow that had the throat and the impudence of ten
brazen trumpets, until I began to doubt whether I
had actually bought a horse, or a cow. I fell into
a horrible perspiration. As the trial proceeded, I
found this was not by any means so clear a case as
I imagined. Common sense to be sure would have
been perfectly satisfied that I had been cheated;
but in the eye of common law and the perfection of
reason, it appeared exquisitely doubtful. The difficulty
was in finding out whether I had in fact received
a warranty for the horse. My lawyer insisted
that paying the full price of a good horse, was
presumptive proof of warranty—no man in his
senses would wilfully give as much for a horse he
knew to be bad, as for a good one. The brazen
trumpet then attempted to prove me out of my
senses, at the same time stoutly maintaining that
by the perfection of reason, every man had a right
to the benefit of his superior knowledge in making
every fact that may operate to his disadvantage.
“Accusare nemo se debet nisi coram deo,” cried
he, “no man is obliged to accuse himself—or his
horse.”
“Ignorantia facti excusat,” exclaimed my champion,
“my client was ignorant of the facts of blindness
and broken wind.”
“Ignorantia non excusat legem,” brayed he of
the trumpet.
“Communis error facit jus,” retorted my lawyer.
“Lord Raymond is on our side, in addition to
whose high authority, I have four chief justices, one
baron in eyre, and equity besides in our favour.”
“A fig for equity—common law has nothing to do
with it,” brayed the trumpet.
“In omnibus quidem maxime tamen, in jure Aequitas
est,” exclaimed our side—“precedents innumerable
in our favour.”
“Pish!—Judicandum est legibus non exemplis,”
quoth trumpet—
“Caius, Ulpian, Tribonian.”
“St. Thomas Aquinas.”
“The French judges on our side.”
“The English judges on ours.”
“Do unto others as you would they should do
unto you.”
“That's not law.”
“No, but its gospel.”
“The opposite counsel must be hard run for
law, your honours, when he is obliged to resort to
gospel.”
“Omne actum ab agentis intentione est Judicandum,”
said our side.
“Caveat Emptor!” answered the brazen
trumpet.
This did our business—at that awful annunciation
my counsel was struck dumb, and word spake
never more—the judge nodded approbation—Caveat
emptor carried the day—the jury gave a verdict
in favour of the jockey, and my horse being
thus legally reinstated in the possession of his eye
and his wind, was left on my hands as an excellent
purchase.
I must acknowledge this decision a little undermined
my faith in the common law, as in addition
to a bad horse on my hands, I had a bill of costs
to pay besides. However, impressions of long
growth and standing are not worn away at once.
To be sure, law was I found rather an expensive
article. But after all, it is the price that constitutes
the value of a thing in the common estimation, and
it is doubtful whether the ignorant would not come
to despise the law, if they could get it for nothing.
Upon the whole, I continued to cherish a profound
devotion for the perfection of reason.
This devotion was, however, destined to receive
another shock, in consequence of a very trifling affair,
vexation. It happened that one day being in immediate
want, I called in at a shop, picked out a pair
of ready made boots, paid for them the full price
and ordered them to be sent home. After wearing
them a day or two, they went to pieces, the leather
and workmanship being equally bad. Upon the
cobbler absolutely refusing to take back the boots
and return the money, or make any other satisfaction,
I again resorted to the great tribunal of human
reason. I was certain the law was on my side on
this occasion, for I had witnessed not long before a
decision on a case which I believed exactly parallel,
in which the buyer had recovered. I employed
the same lawyer, who as ill luck would have it,
was again opposed by he of the brazen trumpet.
To make all sure, the boots were produced in
open court, and admitted on all hands to be utterly
infamous. Even the opposite counsel could say
nothing in their behalf. But he had a great deal to
say for all that. He produced six maxims in good
law latin in his favour; but as my counsel matched
him with six more on our side, that account was
pretty well balanced. We then quoted opinions
and decisions without number, showing there was
always an implied warranty where a fair price was
given for a pair of boots. The opposite side denied
that this was law, and to it they went, tooth and
nail, marshalling Grotius, Wolf, Puffendorf, Ulpian,
Thurlow and Ellenborough, against each other; for,
however strange it may seem, the perfection of reason,
is precisely what the most reasonable people
differ about in toto. There was a bloody battle of
words between them, and all about a pair of bad
boots—that nobody denied were bad.
“'Tis contrary to reason that a man should pay
for what is worth nothing,” said we.
“Reason has nothing to do with the question,”
said the other.
“Law is the perfection of reason—and the perfection
of reason is to be honest.”
“I appeal to the court if that is law?”
The court decided it was not law.
“'Tis reason and philosophy. Socrates, says
that the principles of all law are founded in philosophy.”
“Pooh!—Socrates was no lawyer.”
“But he was a sage of antiquity.”
“Yes, but he was not a sage of the law—and as
for antiquity—they had no books of reports, and
how should they know any thing of the law?”
“But for all that,” said my counsel, “lord Mansfield
calls Socrates `the great lawyer of antiquity.”'
“The d—l he does—I beg pardon of the honourable
court—but really my surprise—lord Mansfield
says so—why, then there is something in it.
He was a sage of the law. I submit to the definition
to all he can make of it.”
The two combatants, each in his turn, read a
number of opinions and cases, from a pile of books
as high as a man's head, each differing from the
other so completely, that I was at that moment seriously
inclined to compare the law to Hydra, with
its hundred heads, each uttering a different language.
What, however, surprised me most, was,
that the opinions of our own judges seemed to
be of little or no authority. Whence I concluded
that human reason was not quite so perfect here, as
in England and elsewhere. I began to be weary of
all this turmoil about my boots, and fairly wished
them in the Red sea.
“May it please the court,” said I, with due submission,
“I thought I came here to be judged by a
court and jury of my own fellow citizens and not by
Grotius, Papinian, or my lord chief justice of England,
whom I don't wish to trouble about such a
small affair. To cut the matter short, if the counsel
on both sides will say no more about it, we will
put the law quite out of the question and leave it
to the jury to say whether the boots were bad or
not.”
“That is impossible,” said the judge, “the law
must take its course now, and the cause be decided
secundum artem. Go on, gentlemen.”
“Facilis descensus,” said the brazen trumpet,
winking at my counsel.
Away they tilted again, and the desperate battle
of the books was renewed with greater vigour than
ever. Common law, civil law and statute law took
the field in the armour of a thousand words, and
long before the contest ended, neither myself or the
jury, such is the perfection of reason, could tell
what was law, or what was reason—or whether
there were any such things in the world. Law
maxims flew about like hail, and as it appeared to
me quite as much at random, for I confess I could
not make out the application of some of them.
“Velutas pro lege semper habetur,” said the brazen
trumpet, “it has always been the custom to sell
bad boots and that is common law.”
“Quid leges sine moribus vanae proficiunt? What
are laws without morals, as Horace says.”
“Horace was a jack pudding—the learned counsel
is irrelevant.”
“Ubi jus incertum ibi just nullum—uncertain law
is no law.”
“Tot homines quot sententiae—every man has a
different opinion of his own.”
“Semel malus semper praesumitur esse malus—
your client has often cheated before.”
“Caveat Emptor!”
I began to tremble and so did my counsel. Nevertheless
he would not give up the ghost—but
faintly rejoined—
“Aequitas sequitur legem.”
“Caveat Emptor!”
“Actus legis nulli facit injuriam,” said we still
fainter and fainter.
“Caveat Emptor!”—brayed the trumpet, with
a blast that carried all before it. My counsel,
after gaining a little breath, said he committed his
cause to the court and jury. The judge then addressed
the jury, as nearly as I can recollect, as
follows:
“Gentlemen of the jury,
“There are four kinds of law, the civil law, the
canon law, the statute law, and the common law.
Three of these are decidedly against the defendent,
but the fourth, which is the perfection of reason,
is fortunately for him, at least one half on his side.
It is true the other half is against him, but of
that I make no account since it appears sufficiently
evident from the authorities produced by the learned
counsel for the defendent, that the half of the
law which is against him does not apply to the present
case.
“Gentlemen, law is the perfection of reason,
and of course, nothing but a perfect reason can
comprehend it. It is, therefore, not to be wondered
at, that there should be so many different opinions
as to what law is. It is also a rule of action
—but every rule has its exceptions, and in some
cases the exceptions are very often too strong for
the rule. Law, gentlemen, I speak of common
be inferred from experience, the wisdom of
one age being the folly of another, and the wisdom
of different nations altogether different in kind and
degree, there is much difficulty in defining exactly
what is the wisdom of ages. That it is the common
law is certain, but nobody can tell exactly
what is the common law. It is best defined, as the
perfection of reason.
“Nevertheless, gentlemen of the jury, there is
not that uncertainty in the rules of the common
law, that might be inferred from these observations.
Various judges decide in various ways, and upon
various grounds. Sometimes we go according to
Lord Coke; sometimes according to Lord Hard-wicke;
sometimes according to Lord Mansfield—
sometimes according to law—and sometimes, but
very rarely according to our own conscience and
judgment of the case before us. Now, in this case,
gentlemen of the jury, conscience has nothing to
say—it must be quiet, and refrain from interfering
in the deliberations of the court, and the decision
of the jury. It is a question of common law—and
not of justice or equity. It is not for us to inquire
whether the boots were bad boots, or whether in
conscience or in honesty the maker ought to take
them back again, but whether the great maxim
which lies at the root of the common law, of Caveat
emptor, applies to this particular case. Gentlemen,
most especially in purchasing from persons of bad
character. It appears by the testimony of credible
persons, that the defendant is notorious for selling
bad boots. Now if a person will deal with a
tradesman of bad character, it is his own fault if he
is taken in. The fault in the eye of the common
law, is not in the seller for being a rogue, but in the
buyer, for not governing himself by the maxim caveat
emptor, and taking care of himself more especially
on this particular occasion.
“But we will admit for the sake of argument,
and not with any view to weaken the cause of the
defendant in this suit—that he is a man of fair character.
Still, gentlemen of the jury, this would
furnish no justification to the plaintiff in disregarding
the great maxim of Caveat emptor, since the
common law, which is the perfection of reason,
goes upon the supposition, that every man, whatever
may be the character he bears in society, is a rogue
in grain, and therefore, in dealing with all men it
is necessary to bear in mind, that Caveat emptor.
Hence it is absolutely requisite, that in all purchases,
the buyer should procure a warranty in order
to guard against this presumption of the common
law. If he neglect this, he cannot pretend to
recover damages for any fraud or deception, except
in particular cases.
“In purchasing, for instance, a pair of ill made
turns upon the fact whether the shoemaker took
measure of him for that particular pair of boots or
not. If he did, the common law holds, that this
taking measure amounts to a warranty, and the
buyer is released from all responsibility to Caveat
emptor. If, on the contrary, no measure was
taken, the bootmaker however bad may be his boots,
is exonerated from all blame and responsibility in
the eye of the common law. And this distinction,
gentlemen of the jury, is manifestly founded in the
perfection of reason, and the wisdom of ages.
The mere act of measuring a man for a pair of
boots, is in the eye of the common law in the nature
of a covenant with warranty. And why?—a shoemaker's
measure is either of parchment or paper—
if of parchment the covenant and warranty is the
stronger. Now, gentlemen of the jury, it cannot
be necessary to apprise you, that all covenants are
written either on parchment or paper, and according
to the reasoning of the common law, the substance
or material made use of in measuring a man for a pair
of boots, being the same with that used in all covenants,
it follows, from analogy, that it is in the nature
of a covenant with warranty. This is one ground,
therefore, on which the law makes so wide a distinction
between being measured for a pair of boots,
and purchasing the boots without being measured.
Another ground of distinction is this. The presumption
boots of bad quality, without having been
measured for them, that these boots were actually
made for another person, or at least not expressly
for him. The intention, therefore, of the maker
was not to cheat him, but some other purchaser.
All that can be said is, that a bad bargain lay in his
way and he found it. There was no intention to
defraud him especially, and therefore, in the eye of
the common law, no fraud was practised towards
him individually. The buyer in this case has clearly
no right to redress for an injury not originally
intended against him, but some one else. It is like
an unintentional blow, which it is not lawful for him
to resent, and it is in the nature of a sort of Quixotic
career, to undertake resenting wrongs, or redressing
injuries intended for other people.
“There is another light, gentlemen of the jury,
in which the conduct of the defendant is justified
in the eye of the perfection of reason. It is held
that every man is permitted to make a fair use of
his superior sagacity and knowledge, and that ignorance
is no ground on the part of the buyer for setting
aside a covenant. The ignorant indeed are
apt in the extreme, to confound this exercise of superior
sagacity and knowledge, with downright
fraud and deception. But in the eye of the common
law, and consequently in that of reason, there
is a wide and manifest distinction between deceiving
him wilfully.
“Knowledge, gentlemen of the jury, is a quality
of which a man cannot divest himself at pleasure.
It is impossible for a wise man to be ignorant—or
to refrain from making use of his wisdom. If then
by an involuntary exercise of his knowledge of
facts, of value, of defect, or of quality in an article,
he deceives one ignorant of all these, and makes
a good bargain out of him, in the eye of the common
law, which is the perfection of reason, this is
but the natural and inevitable consequence of the
eternal and irreversible distinction between knowledge
and ignorance. As well might you expect
the stronger animal to yield to the weaker in a
contest of strength, as knowledge to yield to ignorance
in a contest of bargaining. The more knowing
man therefore does not deceive the other wilfully,
which constitutes the essence of every offence,
but simply because he cannot help it if he
would. Physicians are punished for being flagrantly
ignorant of their profession, and people that choose
to make bargains without knowing any thing about
it, must take the consequences.
“The law in this case, gentlemen of the jury, is,
that the plaintiff, not being measured for his boots,
there is no implied warranty. The defendant is
therefore to be considered as having merely made
a legal use of his superior knowledge of boots, and
with costs. You will find this laid down distinctly
in Twigg vs. Twist—and innumerable other cases.
The principle may in fact be said to be settled on
the immutable basis of common law, common sense
and common justice.”
The jury were so convinced of the soundness of
these principles, that they gave a verdict against
me without leaving the court. One of them, it is
true, made me an apology afterwards. “We were
convinced you had been cheated abominably—but
the law was against you, and what could we do, my
good friend?” I don't know, not I, replied I,
hardly knowing what I said, for to confess the truth,
I began to be strangely bewildered in the fathomless
profundity of the perfection of reason. It was
three days, before I got rid of a strange buzzing in
my head, and came to any tolerable perception of
the distinction between right and wrong. Indeed,
I am free to confess, that this argument of the judge,
has ever since strangely confused me, so that to this
day, I am apt to mistake the voice of the law, for
the whisperings of conscience; and to confound the
latitude allowed by the former, with the restrictive
morality of the latter. The continuation of my
story will furnish more than one example of this.
This last decision in the matter of the boots,
made me for sometime rather shy of the perfection
of reason, and I came to a resolution, like some
in a duel, never to go to law again, except on the
defensive. But it was not long before my habitual
confidence in the common law, together with the
last advice of my good uncle, again made me the
victim of Caveat emptor.
It happened about this time that an agricultural
society was instituted among us, and I became a
member, having a landed estate in the neighbourhood.
In order to prove myself worthy of my station,
I went largely into the improvement of the
breed of horses, and purchased several fine ones from
time to time. One day a fellow brought me a most
beautiful animal, which he presented to me as a
full blooded horse, with a pedigree equal to a first
rate legitimate monarch. After a good deal of
chaffering, I purchased him at a great price, and
the exhibition of the society happening the next
morning, presented the animal, in the full expectation
of bearing off the prize for the best horse in
the county. You may guess my astonishment and
mortification, when the committee of investigation
solemnly decided that my horse was a mare. They
all burst into a roar of laughter—the story circulated
through the fair with prodigious rapidity, and
there was a universal giggle that shook the very
firmament. I was quizzed to death, and to this day
the story is regularly told at the anniversary dinner
of our society. I was mortified to the bone, and
of reason, in spite of Caveat emptor, of
whom by this time I began to stand in great awe.
A fraud so open and palpable, I was assured
could not be sheltered even behind his sevenfold
shield. I could not rest a moment till I had
brought this rogue to condign punishment—which
was very unfortunate, for under various pretences,
he managed to keep off the suit for two
years—so that I lost two years sleep, in addition to
being the laughing stock of the society. But for
all this there is no doubt that the maxim, dilationes
in lege sunt odiosae—is as true as the gospel.
My uncle believed it, and so did I. But time
brings all things about at last. Time gives and
time takes away—time strengthens, time weakens—
time builds up, and time pulls down—time brings
us into the world and time takes us out of it—time
in fact does every thing—it can even put an end to
a lawsuit.
My uncle used to dwell with rapture on the sublime
gravity of the law, and of those by whom it
was administered. But I am bold to say that on
this occasion, there was not much to be said in favour
of either. However, as usual, I proved the
sex of the animal, and the fact of her being imposed
on me for a horse. This seemed all that
was material to a decision of the case, and I remained
a few moments quietly expecting a charge
damages for the injury done to my character
and feelings, as well as a restitution of the purchase
money. So sure was I of the justice of my cause
that I had not employed any counsel. This was a
great oversight, since experience has taught me
that justice is blind, and of course requires a lawyer
to direct her. By this omission of mine, she
fell into the hands of the opposite counsel, who led
her astray entirely from my interests. His address
to the jury was, as nearly as I can recollect, as follows:
“Gentlemen of the jury: The plaintiff in this
suit, relying, it would seem, on the justice of his
cause, has omitted to employ counsel, and thereby
set a most mischievous example to the world. He
has in effect committed a fraud, by withholding from
some worthy member of the profession the fee to
which his labours in the acquirement of legal knowledge
have justly entitled him. Gentlemen, you
are bound to discourage this dangerous example,
by an exemplary verdict, if it be only on the ground,
that should it become general, you will in future be
deprived of the benefits of legal disquisition, and
left as it were alone in the wilderness of the law
with no other guides to a just decision, but the feeble
and uncertain lights of reason and conscience.
“Gentlemen of the jury, the case on which you
are now to decide, is one of extreme intricacy, although
as clear as the sun. Indeed it is a common
and fatal error, to suppose that justice, law, and
equity, can possibly be apparent to reason and conscience
at the first glance. Justice, gentlemen, is
represented as blind, and for what reason? To indicate
that she cannot see, except through the magic
spectacles of the law, upon the noses of the
learned counsel. Law, gentlemen, is represented
as a bottomless pit, and why? To indicate metaphorically,
that profound depth and obscurity which
baffles the visual organs of uninspired people.
Common law, gentlemen, what is it? It is the sublime
of incomprehensibility—it is the philosopher's
stone, which has baffled the wisdom and researches
of ages—it is nothing, it is every thing—it is here,
there, every where, and nowhere. Sometimes it is
the conscience of the judge, and sometimes of the
jury—sometimes it is the voice of the dead, and
sometimes of the living—it comes from the mouldering
tomb, and from the judges' bench—it is sometimes
in the head and sometimes in the heart—in
short, it is an ethereal essence, eluding the senses,
and sporting before the imagination—a mysterious,
inexplicable, indefinable and invisible guide, that
takes us by a hand which we cannot feel, leads us
by a light which we cannot see, to a consummation
utterly incomprehensible! I beg pardon for this digression,
gentlemen of the jury, to which I have
and mysterious of all sciences, and my desire
of warning you against indulging the common vanity
of supposing that the case is perfectly clear because
it appears so to you. I trust, if you will honour
me with a portion of your serious attention, I
shall ere long convince you, that it is one of the
most difficult and complicated cases on which the
wit of man was ever called upon to decide. It is
the error of ignorance to make up its mind quickly—
it is the province of learning to preserve the judgment
in that salutary equilibrium of doubt and uncertainty,
which keeps us from deciding at all, for
fear of deciding wrong.
“Gentlemen of the jury, the question does not
turn upon a mare or a horse, nor upon the fact of
the animal being purchased by the plaintiff, for
one thing and turning out to be another. All this,
I say, has nothing to do with the question. The
question is, whether there was fraud in the contract
or not, and to this I shall confine my argument.
Gentlemen of the jury, there are cases of fraud, and
cases of deception—there are intrinsic defects and
extrinsic defects that, under circumstances, may
vitiate a contract. Intrinsic defects are different
from extrinsic defects, and extrinsic defects are different
from intrinsic ones. Intrinsic defects are
such as may not appear externally, and therefore
they may be made legal grounds for a presumption
such as address themselves immediately to the five
senses, and are obvious at first sight. In order,
therefore, that the plaintiff may entitle himself to
relief in the present case, it is necessary for him to
prove that he was blind at the time of making the
purchase. If he was not blind, he must of necessity
have perceived the difference between a mare and
a horse, and having so perceived it, if he purchased
with his eyes open, he purchased wilfully, and cannot
plead deception. He became in fact a party
in the fraud.
“Gentlemen of the jury, there are frauds so
monstrous as to amount to no frauds at all—deceptions
so gross, open and palpable, as to argue, either
wilful co-operation on the part of the person said
to be deceived, or a total deprivation of the organ
of making bargains. In such cases it is necessary
for the person aggrieved, and seeking relief at the
hands of justice, to prove himself either non compos,
or so near it as to come within the statute of imbecility?
The plaintiff has neither done one or the
other; on the contrary he affects to be learned in
the laws, and a judge of horses, although, I must
take leave to say that he is not very profound in
either. Upon the whole, gentlemen of the jury,
there is no ground for the charge of deception urged
against my client. The fraud would be too monstrous
for human credulity; it is, as I said before, too
great for a fraud.
“But, gentlemen of the jury, we will suppose, for
the sake of argument, the plaintiff in this suit is
not only blind, but actually non compos. We will
suppose him, moreover, a notorious swindler, pick-pocket
and cheat—we will moreover suppose him
a person that has murdered his father, mother, un-uncle,
aunt, and several others of his nearest relatives—we
will, in addition to this, suppose”—
I could stand this no longer—
“I beg pardon of the court,” said I, “but the
gentleman has no right to suppose any such thing.”
“What, not for the sake of argument? I appeal
to the court, whether it is not an allowable fiction
of law, to suppose, for the sake of argument, any
person we please, a rogue.”
The judge decided that fictions of law, and argumentative
suppositions, were allowable, and the
counsel proceeded—
“As I was saying, gentlemen of the jury, when
the gentleman thought proper to interrupt me—we
will suppose—but, as I perceive, these suppositions
are not relished by the gentleman, whose conscience
seems a little sensitive on these points—we will suppose,
gentlemen of the jury, for the sake of argument,
that one half of you were non compos, and
the other half utterly incapable of distinguishing a
mare from a horse. Suppose further, for the sake
of argument, that one half of you were intoxicated
at this present moment, and the other half asleep.
argument, that you were a low-bred, uneducated,
ignorant, obstinate, dirty”—
Here one of the jurymen, a stout, hard-featured
fellow, with little of the polish of any court but a
court of law, started up and exclaimed in a passion—
“I'll tell you what, Mr. Lawyer, if you go on
insulting the jury with your suppositions, dam'me if
I don't knock you down—for the sake of argument.”
The counsel was rather alarmed at this formidable
threat; but the privilege of supposition was too
dear to his profession, and too essential to a long
speech, to be easily given up.
“Will the court permit itself to be insulted in
this manner?” said he. “Shall a counsel be interrupted
in the regular discharge of his duty to his
client? I throw myself upon the protection of the
court, and appeal to your honour, whether I have
exceeded the reasonable line of discussion allowed
to counsel.”
His honour decided that he had not, and threatened
to commit the juryman for contempt. “Go
on, Mr. Quodlibet.” Mr. Quodlibet proceeded—
“As the gentlemen of the jury, (at least one of
them) seem not inclined to lend a favourable ear to
my suppositions, I will take the liberty of supposing,
for the sake of argument, that your honour is a
judge who brings nothing to the bench with him,
and quiddities of the law. I will further suppose—
for the sake of argument—that your honour is a
man so utterly ignorant of those sublime distinctions
that mark the difference—the eternal and impassable
separation between the two sexes,—as not
to know a horse from a mare. I will further suppose—for
the sake of argument—that your honour is
entirely destitute of the faculties of seeing, hearing,
tasting, smelling and feeling—that you are neither
mens sana, nor corpore sano—that you are—in
short—for the sake of argument—a miserable, ignorant,
conceited, supercilious pettifogger, destitute of
every faculty, but that of citing exploded decisions,
and applying them to wrong cases—that—for the
sake of argument—you are a mere parrot, saying only
what you have learned by rote—an echo repeating
nothing but eternal repetitions—that—”
At each of these suppositions, his honour became
more and more uneasy in his seat—he looked this
way, and he looked that—he blew his nose, wiped
his face, coughed and hemmed—but it came to be
too hot at last, and he could no longer stand the
cross fire of these suppositions.
“Really, Mr. Quodlibet, I don't see—I—really,
sir, it appears to me, that your suppositions have
nothing to do with the question before the court and
jury. I cannot sit still and permit this line of discussion.
Be pleased to confine your remarks to
myself abused, even for the sake of argument.”
“Why, may it please your honour,” rejoined
counsellor Quodlibet, with a low bow—“what can
I do? The plaintiff has come here with malice
prepense—he has brought no counsel into court,
and has offered no argument in his case. I must
therefore either suppose he has argued the question,
and oppose a speech that has never been made—or
I must suppose a case and argue that—or I must say
nothing, which is a case not to be found in any of
the books. Will your honour permit me to suppose
that the plaintiff has actually offered an elaborate
argument, in this case, and answer it accordingly?
I must either suppose a case, or suppose an
argument.”
“Any thing you please, Mr. Quodlibet, so you
don't suppose me an ignoramus, or a rogue.”
Mr. Quodlibet then went on with increasing animation,
seemingly resolved to demolish the shadowy
counsel and his imaginary speech.
“Gentlemen of the jury, the opposite counsel, or
rather the plaintiff in this suit, has asserted that a
mare is a horse.”
“May it please the court, I asserted no such
thing.”
“Well, then, gentlemen of the jury, the plaintiff
in this suit has ignorantly affirmed that a cow or a
bull are synonymous.”
“I deny it, may it please the court.”
“Well, then, gentlemen of the jury, the plaintiff
in this suit, has founded his claim to a verdict, upon
the preposterous assumption that the law was expressly
devised to protect the weak, the ignorant,
and the inexperienced, against the violence and
fraud of the strong and the cunning. Now, I affirm
directly the contrary—I say, gentlemen of the
jury, the law, whatever may have been its original
intention, is now principally directed to the object
of securing to the cunning and experienced of this
world, the fruits of that knowledge and sagacity, to
which in the eye of reason they are justly entitled.
The law, at least the common law as it is now
quite settled by the decisions of the English judges,
rests upon the principle, that the weak and the ignorant
are naturally, and therefore properly, the
prey of the strong and the cunning, as much so as
the weaker and less wary birds and beasts are of
the more wily and powerful. In a state of nature,
strength and courage constitute right; in a country
governed by the perfection of reason, superior
knowledge, sagacity and cunning. Hence originates
the great maxim of Caveat emptor—(here I
began to quake) a maxim, gentlemen, which inculcates
upon the purchaser of any article whatever—
the necessity of wariness, deliberation, examination
and suspicion—which says to him, if he makes a
bad bargain it is his own fault—that if he is ignorant,
his own fault—and that, to sum up all in one word,
`Caveat Emptor.”'
His honour, after a charge of three quarters of an
hour, in which he told the jury, what the law was
not, at least twenty times, omitting at the same
time, to tell what it was, ended, so far as I can recollect,
nearly as follows:
“Gentlemen of the jury, to conclude—the case
mainly turns, after all, upon two points—first, whether
a fraud may be so great, impudent, brazen and
enormous, as actually to lose its character, and become
something else. Secondly, whether, in the
eye of the common law, a mare is synonymous with
a horse—a horse with a mare.
“As to the first point, I know of no case, nor any
decision, bearing directly upon it, by which to be
governed. I regret this, because I am thus under
the unpleasant necessity of being obliged to resort
to my own judgment to decide, a course extremely
troublesome and inconvenient, and savouring of
vanity. Fortunately, however, there is a decision,
in some one of the books, of a certain court of judicature
in the kingdom of Brobdignag, which, in the
absence of all other precedent, I shall rely on in
this case. It was there solemnly decided that a
man might be actually too little for a dwarf. Arguing
from the analogy of the two cases, I am inclined
to believe, that if a man may be too little for
Now, gentlemen, it is almost impossible to conceive
a more impudent, gross, and prodigious deception,
than to sell a mare for a horse, to a person
having the use of his eyes. It is in fact so gross a
fraud, that it is quite impossible to believe the defendant
intended it for a fraud. When a human
being gets beyond a certain size, he is no longer
called a man but a giant—so when a fraud is committed
of an enormous magnitude, it ceases to be a
fraud—it is a misnomer to call it a fraud, and the
plaintiff would be nonsuited upon that ground, if
there were no other.
“Touching the second point, gentlemen of the
jury, there is no doubt that in ordinary acceptation,
a mare is a horse, but it is not quite so clear that a
horse is a mare. The horse, gentlemen, or as he
is called in the latin tongue Equus, gave name to
the equestrain order in Rome, which was so called
from riding on horseback. Now, gentlemen, there
can be little doubt that many of these equestrians
rode upon mares, yet they were called indiscriminately
horsemen. I am, therefore, inclined to believe
that mare and horse were considered as synonymous
at that time. This is, however, opposed to
the maxim, that though a mare is a horse, a horse
is no mare, which being a common saying, whereof
the memory of man runneth not to the contrary, is
of equal authority with the common law, which
gentlemen, that a mare is a horse, you will find a
verdict for the defendant—if you believe, on the
other hand, that a mare is not a horse, you will find
a verdict for the defendant on the ground that the
enormity of the fraud makes it no fraud at all—if
you believe, however, that a fraud is a fraud, however
gross and palpable, you must still find a verdict
for the defendant on the ground that Caveat
Emptor.”
I never heard this word, that it did not sound to
my ears like the croaking of the prophetic raven, or
the screeching of the ominous owl. The jury gave
a verdict for the defendant, with costs of suit, out of
due respect for Caveat emptor, and all I gained by
the perfection of reason, was a bill of costs a yard-long,
and the laugh of the universe. I was, however,
a little consoled, when an honest neighbour
told me I had certainly the most extraordinary
team in the world—“a sound horse that was blind
of an eye and broken-winded—and a mare that had
been miraculously metamorphosed into a horse, by
the magic of the common law.”
Never, surely, was a man so jilted by his beloved
as I was by the common law. This last decision,
which established the doctrine, that a mare was a
horse, and a fraud no fraud, almost drove me mad,
and could I have conveniently found a country where
there was no such thing as law, I think I should certainly
decisions coming thus one upon the back of another,
at first gave me a mortal distaste to the law, particularly
the common law, with Caveat emptor at its
head. But when again, I reverted to the authority
of so many sages, all agreeing in pronouncing it the
perfection of reason, I was thrown in the dilemma
of at length being obliged either to acknowledge
the perfection of the common law, or to confess
myself an ass. I was never in truth very confident
in my own opinions, and yielding to the authority
of great names, and early impressions, I at
length came to the conclusion that the sense of
justice, the suggestions of conscience, and the moral
feeling, by which it is supposed men may almost
instinctively decide upon what is right, and what is
wrong, were so many jack-a-lanterns, when put in
comparison with the steady light of the perfection
of reason. In short, I no longer depended in the
direction of my conduct upon my perceptions of
moral justice. I considered the perfection of reason
as the only true guide, and yielded implicit
submission to Caveat emptor, firmly believing, that
if I could only get him on my side, I might cheat,
swindle and deceive, with perfect impunity, and in
strict conformity not only with the wisdom of ages,
but the perfection of reason. You will perhaps
wonder at this conclusion; but I am clearly of
opinion that many an honest man has been made a
justice at the shrine of the common law, and many
a one perverted by its equivocal maxims. It is
too much in the nature of man, I fear, to convert
decisions against him, which his own innate sense
of right teaches him are immoral in their tendency
and unjust in their principles, into a warrant for the
indulgence of his own evil propensities. Unquestionably,
he who has frequently appealed in vain
to the law for redress, in cases where his own consciousness
taught him he was right, will be more apt,
ever afterwards, to study what is law, than what is
right, and square his morality accordingly. At
least, it was so with me, and I have no hesitation in
confessing that at one time of my life, I became
little better than a rogue, merely through the seductions
of Caveat emptor, and the perfection of reason.
While I was, however, wavering between my
early impressions of morality, and the temptations
of the common law, I was unexpectedly called upon
to act on the defensive in an affair of much greater
consequence than any of the preceding. This was
a suit brought for the recovery of the estate, which
I mentioned as having been gained by my uncle in
a lawsuit, at least thirty years before. He had remained
in quiet possession, and so had I, ever since;
I should as soon have expected a suit to turn me
out of my skin, as out of my estate. However, a
suit was brought, and by a man that had failed four
property, or at least sworn he had done so—and
had never paid one tenth of his honest debts. If
he ever had any rights in the estate, they should,
in the eye of justice, have belonged entirely to his
creditors. These, however, were all dead or dispersed,
and the gentleman had now a fair field.
I was served with a declaration of war, which
made my hair stand on end. First, I had entered
by force of arms, and violently taken possession of
this honest man's estate—I had beaten him with
staves, sticks, stones and what-not, till he had
scarcely a whole bone in his skin. Then I had not
only got possession viet armis, but not content with
this, had actually cheated him out of it afterwards.
In fact, if I remember right, I had got possession in
ten different ways. Nay, I did not stop here,
rogue as I was. I had fraudulently, forcibly, and
illegally kept possession, and forcibly, fraudulently
and illegally converted the proceeds of the said honest
man's estate, to my own use, profit and behoof,
fraudulently, forcibly and illegally. Now I declare
solemnly, there was not one word of truth in all
this, yet it was no joke I assure you.
After this first shot, my antagonist cited me to
appear, defend myself, and make good my title. I
appeared, ready armed with two great lawyers, as
squires of the body, but as ill-luck would have it a
principal witness of the plaintiff was absent, and application
in lege sunt odiosae, said his honor, and granted
the motion. The next term, I appeared as before—and
the trial was again postponed. In this
way matters went on for five or six years, during
which my opponent, under one pretence or other,
put off the decision. The different judges never
failed to quote dilationes in lege sunt odiosae—but
then they all granted the delay odious as it was in
the eyes of the perfection of reason. I begged of
my counsel, as I was all this time kept in a state of
agitation and uncertainty, and could neither sell or
improve my estate, to bring matters to a close as
quick as possible. They assured me this was out
of the question—it rested with the plaintiff to bring
his suit up when he pleased.
“And how long can he delay it?”
“Till doomsday—or until all his money is spent.”
“Dilationes in leges sunt odiosae,” said I, shrugging
up my shoulders.
“To be sure they are,” replied my counsel with
infinite gravity.”
“And so he can keep me in this state of uncertainty
all my life?”
“Yea—and you and your posterity for ever, to
the hundredth generation.”
“And this is called the perfection of reason, when
any wretch may thus keep the lawful possessor of
property as long as he pleases, in this state of expense
reason!”
“Unquestionably—it is as reasonable that you
who enjoy the sweets of possession, should suffer
the fear of being turned out, as that he who endures
the pain of being out of possession, should enjoy
the hope of getting in. This is the perfection
of equal justice.”
At length an aged person, upon whose recollection
of the facts connected with the former history
of the estate, I had relied materially in maintaining
my title, died. The very next term, the plaintiff
was ready and the trial came on. It was not the
absence of one of his witnesses but the presence
of one of mine, that was so inconvenient to him.
The trial occupied three days—one in hearing testimony—and
two in hearing speeches, which after
all signified nothing as it appeared. It was the
cases cited, that decided the question of right. My
counsel cited Holt—but he was knocked down by
chief justice Buller, who butted him quite out of
court. After this first round they took a little
breath, and to it again. The opposite counsel
cited Strange—and mine Espinasse—they quoted
Fonblanque—and we Dallas—“Pish,” said they,
“this is only a dictum of one of our own judges.”
“Your honour will turn to page 116, vol. 112,
Troutback vs. Sturgeon.” “Your honour,” cried
we, “will please to turn to page 250, vol. 99, Crane
affirms, your honour, in the famous case of
Cock-a-doodle manor, which settled the principle.”
This last blow ended the second round, and in fact
decided the question in my favour. Lord Mansfield
carried all before him, and our adversaries
never held up their heads afterwards. They
gave in at the third round, with a faint effort at
milling a little with Glanville, and a few of the old
school fancy.
The judge was at last permitted to say a little for
himself. In truth I began to think, he was to have
nothing to do in the business and that my cause was
to be tried by the judges of England, not those of
my own country. I have not sufficient recollection
of his charge to repeat it, but I remember his decision
turned altogether on the authority of lord
Mansfield. Such was his exemplary modesty, that
he never intruded his own opinions, or appeared to
consult his own judgment. This seemed rather
odd to me, although, I had by this time become
pretty well accustomed to it. I could not help thinking
that a plain man of good judgment and acquirements,
who had heard all the testimony appertaining
to this special case, was better qualified to decide
upon it, than even my lord Mansfield, meaning
no disrespect to his lordship—who died long ago,
and never dreamed of me, my adversary or my
cause. Thanks, however, to my lord, to whom I
was a very clever fellow, I gained my suit, and rejoiced
mightily in the laws, which were now entirely
restored to my good graces.
But I might have kept my joy for a better opportunity.
My honest friend was not satisfied like me,
with my lord Mansfield's decision. He appealed to
a superior court—but luckily lord Mansfield reigned
paramount there also, and again I was triumphant.
It cost me all the proceeds of my estate that year
though; it was one of Pyrrhus' victories. My
honest friend again appealed to a still higher court;
I thought there was no end to them. Here he kept
me dangling for three years more, waiting, as he
afterwards boasted, for some new decision of an
English judge, that should overthrow lord Mansfield's
doctrine, and turn it upside down. At length
such a decision was made by a sage of the bench;
one in fact that seemed made exactly to suit his
purpose. It was directly in the teeth of his lordship,
and unsettled the law of at least half a century.
In charging the jury, his honour, delivered
himself to this effect:
“Gentlemen of the jury: The perfection and
beauty of the law consists in this—that it is not
only a rule of action, but a rule which, being founded
in the perfection of reason and the wisdom of
ages, is not liable to those changes, to which all else
is subjected in this world. Such is the stability of
know the extent of his rights and his duties, and
the course necessary for him to pursue, in order to
secure those rights and perform those duties. Law
is, in fact, the result of the perfection of reason,
based on the accumulated wisdom of ages. This
may be most especially affirmed of the common
law, which is expressly founded upon maxims and
practices, so ancient that the memory of man runneth
not to the contrary thereof.
“Yet, gentlemen of the jury, certain self-sufficient
persons, misled by that ignis-fatuus common
sense, have affected to lament that, notwithstanding
this perfection of the common law, it is exposed to
one very serious imperfection. In the lapse of
ages, necessary to produce that perfect oblivion
of the origin of any rule or custom which makes it
amount to law, mankind have from time to time
forgot what the custom actually is, and great doubts
and uncertainties arise in consequence thereof.
Thus, say these cavillers, though there is no doubt
that the common law is really and truly the perfection
of reason, if we could only rescue it perfectly
from the obscurity of ages, yet, as it is, we
must take it as we find it laid down by persons
who differ continually from each other. The
mischief, continue they, is, that such is the diversity,
the waywardness, the pride and the obstinacy of
another, upon almost every principle of the common
law. By this means, the common law, in effect,
ceases to be a rule of action, since it is impossible
to say that a dozen different rules can make one
rule.
“In order to decide upon these contradictory
decisions, different judges resort, not to their own
opinions, but to the opinions and decisions of
others. Some are of opinion, that as the whole
force and authority of the common law is derived
from its antiquity, it follows, of course, that the
people of these remote ages were wiser than those
which succeeded them. As a matter of course, if
this position be correct, then the decisions of persons
living the nearest to the sources and origin of
the common law, must be of the greatest authority
in settling its principles. They argue that if those
ages, and sages, which produced and expounded
the doctrines and practice of the common law,
were not wiser, or at least as wise as we are at present,
it were best to discard it entirely, or so modify
it as to make it comport with the wisdom of the
present times.
“Some, gentlemen of the jury, on the other
hand, maintain a contrary doctrine, in expounding
the principles of the common law. They argue
that as it is a received axiom, that every succeeding
is, that it must produce wiser men in every science.
Hence, it would seem to follow, say they, that
those decisions which approach the nearest to our
time should be most relied upon,—in other words,
that every succeeding decision, is of weightier authority
than the preceding one; and consequently
that it operates somewhat in the nature of a new
law, which abrogates the old. Among those who
believe that human reason is every day becoming
more perfect, I profess myself to be one, and of
consequence I consider, the latest decisions on points
of law as unquestionably the best. We prefer new
fashions in dress, furniture and other matters, on
account of their superior elegance, and why should
we not in like manner, prefer new opinions? There
is in fact a fashion in science and literature as well
as in every thing else; and not to follow it, is to
depart from the spirit of the age. A man who
should at this time of day, believe in animal magnetism,
and reject phrenology, would be considered
quite as antediluvian as one that should discard
high capes and put on high cuffs. Were a physician
to confine himself to the lessons of experience,
and invent no new theories, he would never become
president of a medical college—and were a
lawyer to found his practice on the simple rules of
a written code, it is almost a moral certainty, that
he would never grow rich. There would be an
more glorious uncertainty of the law.
“Gentlemen of the jury, it is a vulgar error to
suppose, because the common law is the perfection
of reason, that it is to remain stationary and unalterable.
To be permanently perfect, it must be
changing continually, in order to accommodate itself
to the wisdom of the age, which for the time being,
is always the perfection of wisdom. Every thing
new, is undoubtedly an improvement upon the old.
It may be objected, perhaps, to this doctrine, that
as the common law is a rule of action, it is indispensable
that the rule should be known to all, and
consequently that it should be permanent. This
reasoning is entirely fallacious. In the first place,
there is no necessity that a rule should be settled,
or permanent, to constitute it a rule. The moon
changes every day, and yet nobody denies it to be
a moon. No two years are exactly the same, and
yet the seasons remain unalterable—and no man
continues unchanged to the end of his life—yet nobody
denies that he is still the same man. So is
the rule a rule, though it should alter every day of
the year. The same fallacy is observable in the argument,
that a rule of action should necessarily be
known to those who are expected to be guided by it
in the common affairs of life. Such a doctrine,
gentlemen, would be fatal to the liberal and learned
professions. Men are expected to get well, when
have physicians to cure them. They are, moreover,
expected to be acquainted with the laws
which are to regulate their conduct—yet it is necessary
to have lawyers and judges to interpret
them, which we all know is rather a difficult matter.
If mankind were all virtuous, there would be
no need of preachers—if they were all in good
health, there would be no occasion for doctors—
and if they were all wise, there would be no occasion
for lawyers or judges—for no man would ever
go to law.
“Gentlemen of the jury, I flatter myself, I have
now succeeded in establishing the following positions:
First, that the common law is the perfection
of reason, because it adapts itself to our reason, or
our reason adapts itself to the common law. Secondly,
that inasmuch, as the common law derives
its authority from its early adoption by our ancestors,
it seems to follow as a matter of course, that
the latest decisions on it must be the most irrefragable.
There is thus the wisdom of invention belonging
to our ancestors, and the wisdom of improvement
belonging to their descendants—both which, combined,
constitute the perfection of reason. Thirdly,
that though the law is a rule of action, there is no necessity
that it should either be understood by every
body alike, nor indeed by any body but gentlemen
of the profession. Nor is it proper that even they
the judges instead of having perhaps ten or a dozen
different opinions to take their choice of, would be
confined to one alone. Besides this, as two different
opinions are necessary to a suit at law, if the
rule were so simple and plain as to be comprehended
by persons of ordinary understanding, there
would be none but fools that would go to law, and
that would destroy the dignity of the profession.
Fourthly, that a rule of action need not be permanent
to constitute it a rule, as instanced in the case
of the moon, which, although not laid down in any
of the books, is conclusive.
“From these positions it results, gentlemen of
the jury, that you will find a verdict for the plaintiff.
I am free to confess, that had the decision of
lord Mansfield, in the matter of the manor of Cock-a-doodle,
been posterior to that of my lord chief
justice Bridlegoose, I should have given an opinion
directly to the contrary. The decision of judge
Bridlegoose, being the latest, is certainly the best,
as he has the advantage not only of lord Mansfield's,
but his own wisdom besides, to direct him—which
is two to one at least. I acknowledge it is a hard
case, gentlemen, a very hard case—and I could almost
wish judge Bridlegoose had delayed his opinion
till this suit was decided. The defendant has,
however, his remedy at law. He can wait till a
new opinion comes out, in opposition to judge
of his property.”
What a pity lord Mansfield had not been a little
later in coming into the world! I should have been
a rich man probably to this day, in spite of the perfection
of reason. As it was, I lost my estate, only
because judge Bridlegoose unfortunately for me,
had the last word. I would have appealed from
this decision, but unluckily there was no court to
appeal to—we had got to the top of the ladder, and
there was an end to the perfection of reason.
This blow was soon followed up by another, and
yet another, which both together left me destitute
of every thing like real property in this world, if
the word real can apply to any thing which lies at
the mercy of the perfection of reason. In producing
the papers necessary to establish my right
to the property of which I had been divested, in
the manner just related, by the perfection of judge
Bridlegoose's reason, I unwarily exhibited two
deeds relating to two other pieces of land of which
my good uncle and his ancestors had been in possession
almost a century. It happened that one of
these was without a seal, and the other did not specify
that the conveyance was made to the purchaser,
his heirs and assigns for ever. The lawyer who examined
them, immediately scented a couple of exquisite
lawsuits. He went to work and after more
than half a year's indefatigable research discovered
derived his title.
I was again accused, in technical phrase, of assaulting,
beating, bruising and maltreating, some
half a dozen men, women and children whom I
had never seen, and of fraudulently keeping possession
of property, which had descended to me
through two or three generations. Formerly I
should have smiled at these attempts to dispossess
me, but I began to doubt whether, in the eye of the
perfection of reason, there was such a thing as an
indefeisible title even to the possession of a man's
own head. Besides, I was horribly afraid that
judge Bridlegoose might have been giving another
opinion, that would do my business as effectually
as the first.
In the first of these cases the flaw in my title consisted
in the want of a seal to the deed of conveyance.
There was no doubt as to the hand-writing
of the person who made it; but still it was contended
that the absence of the seal rendered the whole
a nullity. It was the seal and not the hand writing
which verified the instrument. I produced receipts
for the purchase, proving beyond doubt that a full
and fair value was given and received, but all would
not do. Even my own counsel had nothing to say
in favour of my right. All argument was waved
for once, and the judge gave his charge to the jury.
I was rejoiced to see that he was a different person
chief justice Bridlegoose, but I soon found I had
only got out of the fryingpan into the fire. His
honour began—
“Gentlemen of the jury: I cannot sufficiently congratulate
both myself and you, that we are here deliberating
and deciding under the purest and most perfect
system of laws, with which any people were ever
blessed; a system combining the wisdom of our ancestors
with that of our own—a system happily characterized
by the sages of the law, as the result of
the experience of ages, and the perfection of reason.
I speak, gentlemen, of the common law—which is,
I will venture to say—I can hardly say what it is—
sometimes it is one thing, sometimes another—sometimes
it is founded upon a rule, and sometimes upon
exceptions to a rule—sometimes it is defined and
sometimes it is not defined—sometimes it is the product
of ages of darkness, illustrated and explained by
the wisdom of ages of light—and sometimes it is the
offspring of ages of light, mellowed down as it were
into an agreeable twilight, by the obscurities of
ages of darkness. It is in fact, gentlemen, a chaos
of wisdom and experience, out of which issues
beauty and order, as did the fair creations of this
harmonious universe. Even its inconsistencies and
diversities, may be justly said to contribute to its unequalled
perfection. As in a concert, the different
instruments all played by different persons, and the
different voices attuned to different pitches, men,
bass, all conduce to the nicest and most accurate
harmony; so do the different opinions of different
judges and jurists, administer to the harmony, beauty
and perfection of the common law.
“Another excellence peculiar to the common
law, is its capacity of adapting itself to times,
changes and circumstances, without any other violence
than an occasional departure from common
sense, a species of instinct which the law holds in
little respect. Hence we find it in one age, one
thing, in another age, another thing—in the mouth
of one judge it speaks one opinion, in that of another
judge, another opinion, according to the variations
produced by time, the difference of climate,
the wind, the fashion and other modifying circumstances.
Hence too, and this is another peculiar
excellence of the law, that let a man's case be apparently
ever so bad, it is ten to one but he can find
somewhere or another, a decision of some court or
judge, that makes in his favour. This is what is
meant by the law looking with equal eyes on all
persons, and presuming every man to be innocent
till he is found guilty. The common law has in
fact all the qualities of the famous pair of enchanted
seven-league boots, which, it is recorded, fitted
every body, great and small, from little Hop-o'-my-thumb,
to the great giant Blunderbore.
Gentlemen of the jury, the common law is, above
insist, particularly, as it has a direct bearing upon
this case. Its very essence consists in the obscurity
of its origin, like the claim of many families to nobility.
From this early origin arises the indispensible
requirement of the common law, that a seal
should be necessary to constitute a legal conveyance
of real property. The necessity of this, will
become sufficiently apparent, when we consider the
fact, that in those remote periods, which produced
that stupendous edifice of wisdom, called the common
law, not one in a thousand, could either read
or write. I leave it to you, gentlemen of the jury,
to explain how it happened, as it did undoubtedly
happen, that the perfection of wisdom should have
orginated in the perfection of ignorance. It is a
severe reflection upon learning and refinement, certainly,
that to this day they have not been able to
improve upon this great work of ignorance and barbarity.
However, this we must leave to inquirers
in other places—until the English judges have decided
upon this matter, I shall hold my tongue.
People that cannot write, or who consider writing
beneath their dignity and rank, generally make
their mark now-a-days, in the shape of a cross, to
indicate, I imagine, that by this sacred symbol, they
pledge themselves to what they have thus signed.
But in those early ages of the perfection of reason,
it was the custom to affix a seal bearing some legend
whose act, or deed, it was appended. This custom
appears at least as ancient as the æra of Solomon,
and thus far we can distinctly trace the antiquity of
this peculiarity of the common law. Gentlemen,
Solomon was a wise man and must have had good
reasons for what he did. The seal of Solomon is
frequently alluded to in the Koran. In like manner
we find the ancient kings of Asia, signifying their
sovereign, behests, by sending a person with their
seal, as evidence of the orders he carried. To intrust
a favourite with a seal in the days of Haround
Alraschid, was to give into his hands the
power of the whole empire of the Caliphs. The
custom, therefore, of affixing a seal, is sanctioned
by great names, and long usages, the eternal basis
of truth and justice.
“The practice thus derived from the remotest
antiquity, subsists in the present age, in the law
alone, the great depository of all the sacred relics
of time and ignorance, preserved by the hallowed
industry of the profession. I had like to have forgotten,
however, to observe that the reasons on
which it was founded have entirely ceased. In this
country at least, almost all persons of both sexes,
who can ever be supposed in a situation to make
conveyance of land, can write their names. If there
should be occasionally a solitary instance to the
contrary, witnesses can always be obtained to sign
not deny too, that the signature of a person in his
own proper hand-writing, properly attested by
witnesses, and verified by the signature of a magistrate,
is rather stronger evidence of authenticity
than the mere affixing a seal. But this
does not in reality render a seal less necessary, as
a corroborative and security, in addition to the signatures.
It is easy for a man to sign the name of
another, and to imitate it with sufficient exactness
for all the purposes of fraud; but it is not so easy
to get a wafer or bit of wax for a seal. The seal,
therefore, is additional security that the instrument
is genuine. Besides, if it were not so, the very
tenor of the instrument is “witness my hand and
seal.” Now, if there is not seal, the conveyance
asserts what is not true—it presents on the face of
it a falsehood—it is therefore a fraudulent conveyance,
and must be set aside.”
The jury accordingly set it aside; and thus was I
deprived of my land, only because king Solomon,
and Haroun Alraschid, not being able or willing to
write their names, signified their sovereign will by
a seal. It is not for nothing, that the most enlightened
statesmen consider learning as so mischievous
an ingredient in human affairs. If there had been
no such villanous practice as that of writing of
names, my unlucky conveyance would have had a
seal to it, and I might have been in quiet possession
of a wafer, or a little bit of wax, not worth a stiver.
I confess I considered it rather a hard case, that I
should lose one estate in consequence of one judge's
veneration for the latest, and a second on account
of another's veneration for the earliest practice under
the common law.
Well was it said that riches make to themselves
wings and fly away; and if I am not mistaken, one
of these wings is the common law. At least it was
so with me. The very next day, as if to take me
while I was going, the other cause came on, for the
farm that had only been conveyed to my grandfather,
and not to his heirs, as was undoubtedly
intended by both parties. The amount of the
purchase money was acknowledged on all hands to
be far too great to admit of the supposition that
my ancestor, who was at the time of purchasing,
almost seventy years old, contemplated only a life
estate. Common sense offered another presumption
in my favour, in the fact that the property had
never been questioned or claimed till the present
moment, a lapse of more than half a century,
by the adverse party. But these presumptions,
although conclusive in the eye of common sense,
were of no account in the estimation of the perfection
of reason. The law was against me, and
there was an end of the business. It was, moreover,
an old law, which like old wine ought always
doubt founded in the perfection of reason at some
time or other, and though the reasons had long
since ceased to exist, still the law remained, and it
was the perfection of reason to retain the law,
when the reason had passed away. It was unquestionably
the misfortune of my ancestor that the
conveyance was not full—but Caveat Emptor!
Whenever I heard Caveat Emptor quoted, I knew
it was all over with me, and quietly resigned myself
to be dealt with according to the perfection of reason,
which has decided that if one man places confidence
in another, he forfeits all right to the protection
of the common law. Thus it appeared to
me that while the law inculcated morality, it upheld
fraud—an inconsistency which could not but be
highly injurious to the integrity of mankind. The
judge charged the jury, that though there was not
the least doubt that the property was purchased
in fee simple for ever, and that it was both unjust
and unreasonable to deprive me of it—yet, as by
the common law, which was undoubtedly the perfection
of reason, I had no title to the possession,
they must of necessity find against me. As by
the common law and indeed the law in general, a
jury is considered as having no comprehension of
any thing but matter of fact, a verdict was given
against me as a matter of course. The opposite
party condoled with me on this untoward result;
that though he had an undoubted claim to
the back rents, for at least half a hundred years, still
he was too generous to bring it forward against me.
Thus does the law visit the sins of the father upon
the children to the third and fourth generation, and
thus was I dispossessed of three estates, one after
the other—the first, by the authority of my lord chief
justice Bridlegoose, who was good enough to decide
upon my case without my knowledge or consent—
the second, by the inexcusable carelessness of one
ancestor in omitting to have his deed sealed, as well
as signed—and the third, because another of my
ancestors, forgot that in buying for himself he was
not buying for his heirs. I think, however, I may
say with perfect truth, that the trouble my losses
gave me was nothing to the trouble I had to reconcile
these decisions to the wisdom of ages and
the perfection of reason. My perplexity was such,
that I fell sick, and for some time became actually
deranged in the attempt to bring about this hopeless
reconciliation. In short, I fairly lost my wits
in searching for the wisdom of ages and the perfection
of reason in the inextricable labyrinth of the
common law. When I recovered, I was told that
during my temporary alienation of mind, I had delivered
more than one legal opinion, that would
have done honour to a lord chancellor.
On my recovery, my thoughts naturally turned
of ages, the perfection of reason, and judge Bridlegoose,
I had scarcely sufficient left for the support
of a gentleman. I had a few thousands in the
funds, but did not know how soon I should be deprived
of these, by the decision of judge Bridlegoose,
or some new luminary of the law that might
spring up in foreign parts, to my utter confusion and
ruin. In casting about for the best means of retrieving
my affairs, an opening seemed to present
itself in the pursuits of commerce. I saw hundreds
around me, apparently sporting in the sunshine
of wealth, and rising from nothing to the
summit of opulence, as if my magic. I resolved
to commence business, upon the capital I had still
left, and the experience I had acquired in the common
law. I flattered myself I understood Caveat
Emptor pretty well, and with it all the mysteries of
bargaining.
I must apologize for the transactions of that portion
of my life upon which I am now entering. I
confess, when I look back I am ashamed of it. But
we have covenanted to disguise nothing from each
other, and I shall not spare myself. Thus much,
however, I will offer in extenuation. I had been
accustomed from my earliest youth to consider the
common law, not only as the perfection of reason,
but as the standard of moral obligation, the guardian
of ignorance, the protector of weakness; and
to it to avenge frauds committed upon me in vain,
and I had been stripped of a large portion of my
property, by decisions which my own reason, that
guide and monitor which is the only true prompter
of man's conscience, proclaimed were not only unjust,
but absurd and ridiculous. These decisions
had not only weakened my respect for the laws,
but my perceptions of right and wrong. Awed by
the authority of ancient usages, and great names to
support them, I was often tempted to think, that I
had myself mistaken the immutable principles of
morality and justice, and that the laws were after
all the only unerring standard. In that case, I had
a right to make use of the experience I had so
dearly purchased, and to avail myself of the knowledge
which had cost me so much. Heaven knows
I had paid dear enough for it, and I thought I might
exert it, agreeably to the precepts of the wisdom of
ages and the perfection of reason. In fine, gentlemen,
I believe it will too frequently be found, that
a man who often appeals in vain to the laws when
his own reason and conscience teach him that his
cause is just; or who suffers by their operation,
without any fault of his own, will be very apt either
to take the law into his own hands, or revenge his
injuries and disappointments, by converting his
dear bought experience into the means of repairing
his losses, at the expense of others. There is nothing
and fraud, as a general want of confidence in the
justice of the laws.
I confess with shame and contrition that I entered
into trade with a full resolution of making Caveat
Emptor pay back all it had deprived me of in
the whole course of my life. I was not quite a
rogue; but I was sufficiently so I fear to go to the
full length morality of the common law—and that
is far enough in all conscience. Preparatory to commencing
business, I determined to reduce my establishment,
which indeed I had not the means of keeping
up any longer. In the first place, I cast about
how to dispose of, to the best advantage, my famous
span of horses, which I was resolved to believe
most firmly, were not only both horses, but both perfectly
sound and free from fault—they having been
so pronounced by the perfection of reason. By the
way, gentlemen, my last purchase, turned out a bad
bargain in other respects, having all the obstinacy
of her sex, and as many tricks as a monkey.
There was an old lady, a neighbour of mine,
very rich, and nearly blind, who had an old coachman
half blind himself, and so phlegmatic, that
whenever he drove his mistress an airing, a pleasant,
lively, talkative young lady, of the neighbourhood,
was always invited to be of the party, to sit
on the front seat, and keep him awake by incessant
talking. In short, the lady was old, the
so old, that they had hardly one of the five
senses in perfection—the horses and carriage were
old, and the cats and dogs so very old, that they
had outlived their instincts, and lay down like the
lion and the lamb in peace together.
This worthy old lady, hearing I was going to
break up housekeeping, took it into her head to
buy my horses, to replace her own, one of which
had been knocked up in the desperate effort to trot
down a hill. I sent them over for her to look at,
and the whole household turned out I was told to
examine their points. There was not a good eye
among the whole of them. The old lady bought
my span, and the very next day, being Sunday, set
forth to a neighbouring church to exhibit her new
acquisition. She arrived there, after no small
vexation and delay, owing to the vagaries of the
ever memorable feminine horse which has heretofore
figured in my story. She had a habit of stopping
short now and then, but was not otherwise vicious;
and it was worth while to see the one eyed
gentleman, her companion, turn round and look at
her on these occasions, as if to ask an explanation.
He was certainly a horse of great parts, though he
had but one eye and was broken-winded.
There was not a soul at church but knew my
horses, and had heard the story of the mysterious
animal that was a horse in the eye of the law, and
flocked round, and the tale was repeated at least
two hundred times. Never since the days of Gil
Blas' mule, was an animal so taken to pieces, criticised,
reviewed, and held up to nought, as were
those of the good old lady. She was in such a
passion, that when she got home, she could not tell
either chapter or verse of the text. The next
morning she sent them over, with a tart note,
charging me with deception, and demanding her
money back again.
“Caveat Emptor!” cried I, and snapt my fingers
at the old lady, just as the horse jockey did at
me. I was sure I had the common law on my side
this time, and defied justice and all her works. I
had given no warranty, and had not even verbally
answered for my horses. The old lady brought a
suit; but I cared not a rush for it, and only cautioned
my lawyer to ply them well with Caveat
Emptor, whenever he had an opportunity. I ought
to mention there was a new judge on the bench;
the admirer of judge Bridlegoose and his decisions,
being absent on some account or other. As ill
luck would have it the brazen trumpet, who by his
eloquence had wrought the jury to pronounce one
of these same horses, a sound horse in the eye of
the common law, was again opposed to me.
In the first place, the old lady proved the horses
were both bad. But this I did not mind, so long
as I had honest Caveat Emptor on my side.
In the second place, she proved that I knew they
were bad. The counsel read the record of the decision,
by which I had the blinker thrown on my
hands, to prove him an unsound horse. Now this
was the very decision on which I had relied, in conjunction
with Caveat Emptor, to bring me off with
flying colours. I calculated to prove by it, that as
he had been decided virtually at least, to be a
sound animal, by being thrown on my hands as a
fair purchase, I had a right to dispose of him as
such at any time.
After the testimony was concluded, the brazen
trumpet attacked me with the whole force of his
lungs, and tore me all to nought, for doing exactly
what the perfection of reason authorises every body
to do—making use of my superior knowledge in
bargaining. I am sure I had paid for it. He contradicted
every word he said on a former trial,
and made me out to be one of the greatest rogues
in existence. And so I was, for aught I know, for
I had been corrupted by the common law, and
Caveat Emptor. My old counsel made an excellent
defence—indeed he and the other counsel,
seemed to have exchanged souls, or at least tongues
on this occasion. I remarked that the trumpet
used the very same arguments against me as defendant,
that my present counsel did in my favour
when I was plaintiff, in a similar suit, and that on
the contrary my counsel borrowed his old arguments
me as odd, but I suppose the perfection of reason
consists in the capacity of accommodating itself to
time and occasion. But it was the argument of
the judge that threw me into despair.
“Gentlemen of the jury,” said he, “the common
law is not only the wisdom of ages, and the perfection
of reason, but it is likewise essentially a moral
code which at the same time that it protects and
vindicates the rights of the people, teaches them
their duties. The learned counsel for the defendant
has relied mainly upon the suit, which has just
been cited, in which the very horse now in question,
was decided to be a fair purchase and left on
his hands. He contends that this decision was in
effect sanctioning the practice of imposing an unsound
animal upon a purchaser, or at least if not
so, he contends that it decided the character of the
horse as a sound animal, in the eye of the common
law.
“Gentlemen, the learned counsel forgets, that
though this is the same horse, the court and jury
are very different from those which decided the
former case. My worthy brother, for whose learning,
sagacity and legal acumen, I have the most exalted
respect, is, however, I must be permitted to
say, rather too much under the thumb of Caveat
Emptor, and follows the practice of the English
judges, who I think give it too great a latitude in
incline to the doctrines of Grotius, Wolf and others
of the writers on natural law, which rests in
fact on the same basis with the common law, and
who mingle a considerable portion of equity in their
ideas of covenants. They differ with many of the
English authorities, in their exposition of the
maxim of Caveat Emptor, and consequently in their
estimate of the degree of diligence and circumspection
necessary in the buyer, and the latitude
to be given to the seller in disguising, or making
use of his superior knowledge in the article of
which he is about to dispose.
“Gentlemen of the jury, I am free to confess,
that though, in some respects, I agree with preceding
authorities, in others I differ from them all, and
so differing I shall take leave to consult my own
ideas of justice in this case.
“In the first place, there is a manifest distinction
between being silent as to defects in the article
which forms the subject of the covenant, and fraudulently
concealing them. By merely being silent
on these defects, you practise no deception, because
you leave the buyer the free use of his eyes,
and other senses, which are the guides and guardians
of human nature in all the ordinary transactions
of life. If the buyer should chance to be
ignorant of the nature and value of the article,
that is his own fault; the seller is not obliged to
in fact no business to purchase an article of the
qualities and value of which he was totally ignorant.
Ignorance is not involuntary—it is in the
nature of a blameable negligence not to acquire
knowledge—and as Ignorantia legis neminem excusat,
so ignorance of the points that constitute the
value, or of the defects which diminish the value
of a horse, is no ground for vacating a covenant,
or recovering damages.
“But, gentlemen of the jury, it is far otherwise
with those natural and involuntary defects which
render it impossible for a person to be a judge of
the article purchased. The plaintiff in this suit is
an elderly lady, who in the first place, lies under
no sort of obligation to become acquainted with
the value of horses—her ignorance is therefore no
bar in law to recovering in this suit. Had the deception
been practised in the purchase and sale of
a carpet, a silk gown, or any article of that kind,
of which females are bound to be judges, it would
have been a different affair altogether. But not
only is the plaintiff not obliged by her sex to become
a judge of horses, but if she were, it is in
proof, that she has become incapacitated by a defect
in the organs of vision. Now, gentlemen,
physical defects are viewed in a very different
light by the common law, from defects of knowledge,
judgment and experience. To impose upon
upon one who is incapable from nature or infirmity,
of judging, is fraud. These distinctions are founded
in the wisdom of ages and the perfection of reason.
I am, therefore, of opinion, that the defendant
take back his horses, return the purchase money,
and pay the costs of the prosecution.”
Thus was I obliged to receive back my horses,
in spite of Caveat Emptor, who seemed destined
in one way or other to be my utter ruin. I could
not help complaining to myself, that I had been
obliged to keep them on my hands after being
cheated in the purchase, solely because one judge
had no opinion of his own; and now was obliged
to receive them again, merely because another
judge chose to have an opinion of his own. If
the judges had only been exchanged, I might have
gained both suits—as it was, both were decided
against me. “What a misfortune,” thought I, “that
though the common law is always the same,
the judges are so different, and that the perfection
of reason should be expounded by persons
whose reason is so imperfect!” Fearful that my
horses would play me some more tricks, I took the
first opportunity to give them away—taking the
precaution to accompany the donation by a special
warranty, certifying one to be unsound, and the
other worth nothing.
Having got these incumbrances fairly off my
trade, and plunged in the mysteries of buying and
selling, under the guidance and protection of honest
Caveat Emptor, notwithstanding the many ill
turns I had received at his hands. I purchased articles
at a low price and sold at a high one, always
taking care to avoid any express warranty; and
though I was from time to time sued by the ignorant
for thus making a legal use of my superior knowledge,
I always escaped with flying colours, under
the broad shield of Caveat Emptor, who I will
do him the justice to say, stood by me like a
brave fellow. Thus I sailed before the wind for
some time and laid up money. My avarice as
usual expanded with my acquisitions, and I determined
to launch out into foreign trade. I accordingly
purchased a large ship, which the owner assured
me was one of the finest vessels that ever
sailed the salt seas, and put in her a valuable cargo,
for Europe. In order to cover all losses, I made
insurance for the full amount of vessel and cargo,
and despatched her on her voyage. This time, I
happened to be perfectly honest. I believed the
vessel to be an excellent one, in all respects, for
as such I had bought her, and the cargo was precisely
as I had represented it to be. It was on my
part, I solemnly assure you, a fair transaction.
About a month from the sailing of my great ship,
news came that she had sprung a-leak, a few days
went to pieces. However, this gave me no very
great uneasiness, as I calculated on being completely
covered by the policy of insurance. To my surprise
and mortification, payment was positively refused
on the ground that I had practised fraud, or
at least deception. Even if this had been the fact,
I should have relied on my friend Caveat Emptor
to bring me off—but I was entirely innocent,
and innocence, although of little weight in the
eye of the perfection of reason, is of some value
in keeping up a man's courage. I commenced
a suit for the recovery of my money, in full
confidence of not only having the law, but justice
likewise on my side.
But, miserable is the man who depends upon his
innocence in a suit at common law; he might better
depend upon his guilt, for guilt is careful if possible
to get the law on its side, while innocence relies
upon itself. The defence of the insurers was, that I
had practised a fraud in representing the vessel to be
what she was not. It was proved by the honest
gentleman, of whom I had bought her, that she was
not only not a first rate vessel, but quite the contrary.
That he had built her to sell, and that both in
materials and workmanship, she was defective in a
very great degree. The captains and mate, who
had escaped the wreck, also testified, that she was
rotten in many of her timbers, leaky, and in fact
in her, if they had known her condition.
Here I took the liberty to ask, how I, who was
totally ignorant of ships, could be supposed to know
of defects, which had escaped the eyes of professional
men?
“Caveat Emptor!” replied the court. I acquiesced,
without a murmur, for I relied less upon my
innocence on this occasion, than upon my friend
Caveat Emptor. 'Tis a bad rule that wont work
both ways, thought I, for I had not become sufficiently
aware what a trimming turn-coat rascal this
Caveat Emptor was, and how he changed sides,
with as little ceremony as a first rate politician. I
desired my counsel to lose no opportunity of touching
them up with Caveat Emptor, but he struck me
dumb by replying—
“My dear friend, Caveat Emptor won't do in this
case.”
“Then the Lord have mercy upon me,” I exclaimed
in despair—“if honest Caveat goes over to the
enemy I am a dead man.”
I pass over the arguments of the counsel, who
marshalled armies of judges and volumes of decisions,
one against the other, and made such a variety
of beautiful distinctions, that not a single man in
court, gifted with common sense, could tell black
from white, or make out what the law was for the
to be remembered as a warning to posterity.
“Gentlemen of the jury,” said he, “the principle
involved in the case before you, has been settled
by so many solemn decisions in the English courts,
that no argument, or decision of mine can fix it
more irrevocably. It is only necessary, therefore,
to state one or two nice distinctions, and to recapitulate
the arguments on which it is to be presumed
these decisions were founded.
“The plaintiff hinted in the course of the trial,
that he expected to avail himself of the maxim
Caveat Emptor, but it is hardly necessary to tell you
that it does not apply in this case. Gentlemen, the
common law being the perfection of reason, accommodates
itself in the happiest manner to the accidents
of situation and circumstance. It is immutable,
and unalterable—yet it is different and variable.
It is founded in the wisdom of ages—and it
contradicts itself without the least inconsistency. I
will acknowledge, gentlemen, that had this been an
affair of the land, instead of the water, the maxim
Caveat Emptor would go to exonerate the plaintiff
from all suspicion of fraud, but happening as it did
on the water, the case is diametrically opposite.
And the distinction most strikingly exemplifies the
wisdom of the common law. Gentlemen of the
jury, there is one species of animals for the earth,
and another for the sea—there is one kind of vehicle
the ocean—and there is also one law for the
land, and another for the water. As well might
you attempt to go to sea in a plough, or turn up the
earth with the keel of a ship of the line—as well
might you travel by land on the back of a whale,
or cross the seas mounted on an elephant—as to
apply the same maxims of law to the ocean and the
land. The elephant would drown in the fathomless
deep, and if I might be allowed the personification,
Caveat Emptor cannot breathe in the atmosphere
of salt-water; his lungs are too weak for it.
“Hence, gentlemen of the jury, it follows from
strict deduction of analogy, that there must of necessity
be a law for the land and a law for the sea,
or the law could not possibly be the perfection of
reason. Hence too, it is law, that when a man
buys a ship ready built, the parties being on Terra
Firma, he does it at his peril, and must look out for
Caveat Emptor. But if, on the contrary, he purchases
a vessel, the parties being on the water, I
should say that Caveat Emptor would not apply.
However this may be, I have no hesitation in saying,
that though the buyer of a ship is bound to beware,
the person who insures her is entirely exonerated
from that obligation. In the one case if the
buyer purchases a bad vessel it is at his own risk;
in the other, if the insurer takes a risk upon her, it
is not necessary in the eye of the perfection of reason,
of the jury, a man on land has a perfect right by
the common law, to make use of his superior knowledge
of certain articles of merchandise in disposing
of them to another who has not an equal knowledge;
but he has no right to the benefits either of
superior knowledge or superior ignorance, in dealing
with an insurance company, which, though not
exactly a sea animal, is a sort of amphibious monster,
entitled to the privileges of both elements.
“Gentlemen of the jury, the counsel for the
plaintiff in this suit has relied upon a decision, in a
cause where he himself was obliged to take up with
a broken-winded horse he had purchased, by virtue
of the maxim Caveat Emptor. But this case resembles
the present in no one ground of principle.
Between the defects of a horse and those of a ship
there can be no possible analogy. Whoever heard
of a ship being broken-winded or blind of an eye, or
indeed having any eyes but dead eyes, which in the
eye of the common law are no eyes at all? If the
animal had been a Sea horse, I am not quite clean
that there might not be some ground of analogy on
which to found an application of the same principle
equally to both cases. As it is, gentlemen, you must
find for the defendants, in spite of Caveat Emptor.”
I had now but one resource against absolute
poverty, to which nothing can reconcile a reasonable
man, but the reflection that it puts him in some
money he cannot sue; and without it there is no
cause for his being sued. He may therefore snap
his fingers at the perfection of reason and defy Satan
and all his works, among the worst of which I
reckon the subtilties of the law. I made one effort
more; I brought an action against the person who
sold me the ship, which it had just been decided to
be a fraud for me to get insured. I had only to
produce the record of that trial to prove that I had
been deceived in the purchase. But the case was
now altered—there was one law for the land, and
another for the sea; and my old friend Caveat Emptor
once more changed sides to my utter confusion.
There being no actual warranty, the court instructed
the jury, “that according to the maxim Caveat
Emptor, it was my own fault if I bought a bad
vessel, although the price I paid might furnish presumptive
evidence I thought her a good one. The
plaintiff has relied on the decision of this court,
in a case where it was decided partly upon the
evidence of the seller of this very vessel, that she
was not sea-worthy, to prove that the defendant
knew she was so at the time he sold her to the
plaintiff. Now there is no proof that he did actually
know the situation of the vessel at the precise
moment of making the bargain. He might have
become acquainted with these defects afterwards,
for aught we know. But at all events, if he did
defendant in this cause, is a seaman by profession,
and once commanded this very ship. Now, gentlemen,
it is a maxim in law, accusare nemo se debet,
&c. and it is a common saying, which amounts to a
precept of common law, that “every sailor is a
piece of his ship;” of course he cannot be bound in
law or justice to disclose her defects. I am free to
acknowledge that this is a hard case, but that is
neither your fault nor mine. The law must have
its course, let what will become of morality and
justice; for it is a maxim in law, that injustice to
individuals is the good of the whole. There is no
other foundation, under the common law, for individual
right, but individual wrong; and as one
man's meat is another man's poison, so the decision
of a law-suit, in opposition to reason and conscience,
only the more firmly establishes the perfection of
reason. It is with law as with religion. Each has
its martyrs, whose sacrifice is the strongest possible
proof of the divinity of its origin. Gentlemen of
the jury, you will find for the defendant on the
ground that Caveat Emptor.”
Thus was I, like many of my fellow men, ruined
by the very friend upon whom I placed the greatest
reliance. Caveat Emptor, whether as friend or foe,
seemed destined to be my bane in conjunction with
the perfection of reason. I had now nothing left
in the world, but a thirty-sixth part, as tenant in
in one of the out wards of my native city; together
with a claim of very considerable amount, on a merchant
in a neighbouring seaport town. This last I
determined to put in suit in good time. But first
I took special care to find out how honest Caveat
Emptor stood affected towards me, in this particular
instance. To my great content, I discovered
that my case did not turn upon that pivot at all.
I then proceeded to apply all my dear bought knowledge
to the case—consulted the laws—ransacked
the decisions of every court for precedents—applied
principles, and in short, had, as I thought, made
myself thoroughly master of the whole subject.
After this, to make all sure, I wrote out a fair statement
of my case, and sent it with a fee to two of the
first counsel of the place where my antagonist resided.
They assured me my claim was perfectly
good. Upon this I sent him a defiance, at least my
counsel did, of twenty folio pages. He accepted
the challenge and I was to meet him on his own
ground in the course of a few months, to decide the
matter then and there, according to law.
I was on the spot in time, as confident of victory
as ever was knight errant, gifted with an enchanted
sword, and invulnerable armour. The trial opened,
and after some little preliminary forms, the lawyer
on the opposite side got up and began to talk about
something that Lord Ellenborough, and a late deceased
and decided in a certain case of Twaddle vs.
Tweedle. What the plague have I to do with
Twaddle vs. Tweedle, thought I, in no little perplexity
at finding that my cause was in danger of
being decided by the ghosts of Lord Ellenborough
and the chief justice of Pennsylvania, instead of the
chief justice then sitting on the bench before me.
My astonishment was increased tenfold, on hearing
my counsel instead of saying any thing about
me or my cause, begin to talk about a certain law-suit
between one Dick Harvey and a Mr. Moody.
Upon this, the other side got up, and talked about
the great decision between Fairbanks vs. Fairchild,
which it seems, was too strong for Dick Harvey
and Mr. Moody. Down he popt, and up jumped
we with the still greater and later decision of my
Lord Somebody, in the case of Cannon vs. Swivel.
The opposite lawyer was not in the least daunted,
but produced another and later decision of the same
judge, which as he maintained nullified the other.
Whose cause are you trying? whispered I to my
counsel. I thought mine was to come on to-day.
Before he could answer me, the judge rose and said
something about Locus in quo, whereupon my counsel
turned round to me very coolly and said—
“You've lost your cause.” It was too true, though
heaven is my witness that to this day I could never
tell why or wherefore. All I know is that Locus in
Emptor, and that between them both, I had now
nothing left but the thirty-sixth part of thirty feet
square of land in my native city. But fate had
determined that I should become a perfect martyr
to the perfection of reason.
It seems an industrious young lawyer, having just
then no business in hand, purchased out one of the
joint tenants, and being very anxious to get exclusive
possession of his foot of land that he might
improve it, applied for a partition. I had, I confess,
received notice of this, but considered it a
trifle not worth attending to at the time. But I
found to my cost that there are no such things as
trifles in the common law. On my return from the
signal overthrow I had received at the hands of
Locus in quo, I was saluted with a bill of costs of
partition, amounting to considerably more than my
share of the land was worth. I was glad to make it
over to the professor of the perfection of reason,
for his trouble and expense in procuring the partition,
and he generously relinquished all further
claim upon me. Thus we settled the partition by
my being partitioned out of the last shilling of property
that Caveat Emptor and Locus in quo had
left me.
Gentlemen, I hope you will not think me unreasonable
if, by this time, I began to lose my respect for the
perfection of reason. If my worthy uncle had risen
it to my good graces. Like a mistress, so full of
caprices, contradictions and coquetries, that she
at last tires out and disgusts the most ardent admirer,
the perfection of reason had played me so
many tricks, that I turned my back on it in utter
disgust. It appeared to me that whatever the law
might have been in ages of comparative ignorance
and simplicity, it had now become so refined in its
distinctions—so subtle in its metaphysics—so complicated
and contradictory in its decisions—so wearisome
and capricious in its sinuosities, as to be
compared to nothing but an Indian trail through
some pathless wilderness, invisible to all eyes, untraceable
by all feet, save those only which are
guided by an infallible instinct, the joint offspring of
nature and necessity. So far from being the perfection
of reason, it seemed to me nothing more than
the perfection of quibbling sophistry. Instead of a
plain straight forward rule of action, simple in
itself and easy of comprehension to those who are
to be governed by its provisions, it appeared to my
awakened senses little else than a farrago of contradictory
decisions, pursued through all the mazes
of inextricable subtilty into the obscurity of fathomless
darkness—a jumble—a chaos without a sun to
enlighten, or a hand powerful enough to reduce it to
order and beauty. In short, under the influence of
my perpetual disappointments at the hands of the
now nothing left in the world, and was consequently
above the laws. If any thing can reconcile a reasonable
man to the ills of poverty, it is the consoling
reflection, that he has passed into that bourne where
the lawyers cease from troubling, and the client is
at rest.
The remainder of my story is soon told. I was a
ruined man, and that too, at the hands of the perfection
of reason. Being without the good things
of this world, there was nothing left me, but to turn
philosopher, and despise them. Indeed, I have
always observed, that in proportion as a man gets
money he contemns wisdom, just as he who becomes
poor despises wealth and takes to wisdom.
Money is certainly the root of all evil, as every man
is convinced the moment he sees it in the hands
of others. There are three things which constitute
as it were the three sheet anchors that keep a
man riding steady in the same roadstead all his life
—property, friends, and a home. My fortune had
gone off with honest Caveat Emptor and Locus in
quo—my friends followed closely after—and as to
home—I was a bachelor, and a bachelor has no
home.
In casting about for employment during the remainder
of my days, I at length determined to
travel over all parts of the world, and return laden
with improvements from all countries for the good
of my own. I will visit, thought I, the distant and
laden with honey. I will bring home with me the
newest fashions in dress, and the latest opinions in
morals—the most exquisite refinements in taste,
and the most fashionable models in literature—the
rarest plants, and the most odoriferous flowers. I
will introduce the thistle from Canada—the black
rose and the black swan—mummies from Egypt—
dust from the pyramids, and cobwebs from the
catacombs—little wooden shoes and white lions
from China—paper systems and joint stock companies
from the British isles—Perigord pies from
France, and music from Italy. My return will be
hailed as a new era, and I shall be remembered as
the benefactor of my country by a hundred succeeding
generations. But from this I was deterred by
the reflection, that with the exception of the source
of the Niger, and the northwest passage, there was
nothing new to be discovered under the sun. The
world had been in fact ravaged, not by an irruption
of Goths or Vandals, but by armies of peaceful warriors,
who instead of destroying with fire and sword,
deluged whole countries with bloody ink, and put
men, women and children to the point of the pen
without mercy, insomuch that a nation stood no
more chance of a tolerably decent character among
them, than a man who keeps a company waiting
dinner two hours for him. There was, in truth, not
a hole or corner, either above or under ground, a
pyramid, a cataract, catacomb, subterranean temple,
and described half a dozen times over.
Like Alexander, I wept for a new world, and remained
in sorrowing perplexity, when, one lucky
day, at least a dozen of them made their appearance
in the nick of time, each ready to be served
up in Paternoster Row, to the literary epicures,
like boiled eggs at a breakfast. I allude to the
promulgation of the sublime theory of the CONCENTRIC
SPHERES, which hath sufficiently demonstrated
that this globe of ours, instead of being as it
were all outside crust, is like the famous pie, which,
when opened, discovered four-and-twenty black-birds
all gayly singing a beautiful Italian air. Thus,
in a similar manner, the centre of this mundane
terrene, when it comes to be explored by adventurous
travellers, instead of being tenanted by worms,
ground hogs, embryo locusts, field mice, pismires,
and other inglorious subterraneans, will be found,
beyond doubt, to be peopled by an enlightened race
of illustrious Troglodites, who from the very nature
of their locality must of necessity see deeper into
a subject than other people. At once my mind
was made up. I determined to seek these pure and
unsophisticated mortals who, being thus retired from
the great outside world, must of necessity be free
from those vices, follies, and crimes which have
entailed upon us the disagreeable necessity of being
governed by THE PERFECTION OF REASON.
| STORY
OF THE
SECOND WISE MAN OF GOTHAM. The merry tales of the three wise men of Gotham | |