University of Virginia Library

LETTER VIII.
The House of Lords.

THIS day I visited the house of lords.
I assure you I had devested myself of all
my republican prejudices against this assembly
of hereditary legislators. I can
readily perceive the propriety of the existence
of such a body, in a limited monarchy,
who can guard the constitution
against the popular intemperance of the
house of commons on one hand, and the
extension of the royal prerogative on the
other. English history records honourable
instances of its utility in both these
particulars; and their extinction by the

long parliament should be a memento to
the British nation, that whenever the house
of lords is annihilated the crown will be
involved in its destruction, and the commons
made the tools of a despot. Their
high rank and proud titles are also objects
of emulation: they are at the disposal of
the sovereign, and not unfrequently conferred
as the mede of merit. They are to
the British, what the civic crowns, the
ovations, triumphal cars and arches, were
to the ancient Romans; and their soldiers
and sailors seek for nobility in the cannon's
mouth.

The house of lords is to the house of
commons, in point of decorum, what the
Opera-house is to Drury-lane theatre.—
Here is no shilling-gallery, no cat-calls,
no vulgar vociferation; but, then, even an
opera is not without its absurdities. It
exhibits heroes in recitative, dancing
princes, and British lions, who, like Nick
Bottom, “can roar you like any sucking
“dove.”

The noble lords were not convened, at
this time, in their legislative capacity, but
were sitting, as a high court of errors, to
revise a judgment rendered by the court
of king's bench. This was quite an
interesting scene to me. A hereditary
legislature has something essentially ludicrous
to the mind of a republican; but
hereditary judges, men supposed to be
born with an intuitive knowledge of Norman
French, and monkish Latin, and, in
opposition to the doctrine of Locke, come
into the world with their minds impressed
with the innate and complex ideas of their
municipal code, and possess, by birth,
what my Lord Coke calls the perfection
of human reason, which cannot be acquired
by the plebeian except by the intense
study of a long life, might provoke the
risibility of even Littleton himself.

This baronial bench seemed to me even
more absurd than the court of errors in the
state of Connecticut, where the council of
that state, composed generally of plain

farmers, correct the judgments of their
supreme court, composed of men of the
first legal talents. I noticed this juridical
solecism to a respectable clergyman of
that state, but he maintained its propriety,
for, he observed, “the great object of a
“government is, undoubtedly, to render
“justice to its citizens; but it is also an
“object of the next importance to render
“it in such manner as it shall meet the
“comprehension of the great body of the
“people. Our supreme court (he added)
“do the first, and I assure you it greatly
“aids the latter to have the opinions of
“our most eminent lawyers revised, re
“versed or confirmed by men of common
“sense.”—But the case of the Connecticut
judiciary is not (as the lawyers say)
in point, for it might, perhaps, be thought
derogatory to the noble and high court of
errors in England, to compare them to
men of mere common sense. Whilst
Although a man born a judge, simply
considered, is as ridiculous as a man born
a watchmaker, yet, to place the British
house of lords, considered in their judicial
capacity, in the fairest light, we should
rather compare them to a cast, or family,
devoted for ages, by the laws and constitution,
to the fabrication of watches. It
is obvious, although such a family, or
cast, may contain many members who
would be bungling workmen, and even
idiots who could not count the hours, yet,
in the main, it is probable they would
conduct the business of watch-making to
great advantage, as the whole tenor of
their education and converse would lead to
an acquaintance with that art. With this
view, I sat with some impatience to hear
the opinions of these hereditary judges—
grounded, as I anticipated, upon the profoundest
investigation, and delivered in
the best style of Blackstone and Mansfield.
I had therefore to exercise all my patience
while the advocates were mooting the
points in the cause, in the bald style of
the English reports, which our friend,
Joseph D*****, used to say, seemed to
be literal translations of law Latin. You
recollect those joyous vigils when, to enliven
our wine and cigars, we used to call
upon our friend to give us a dissertation
upon the classical elegancies of the Term
Reports, which he would illustrate by apt
quotations from Bracton, Fleta, and the
elder English jurists—or those enchanting
strictures of my Lord Coke upon the
statute de donis conditionalibus, the beauties
of which, he declared, were always
flotsam, jetsam, and ligan in his memory,
and which, he gaily asserted, in neatness
and force of expression, could only be
surpassed by that memorable and delectable
definition of a man-milliner, given by a
modern English lawyer of refined taste.
“A man-milliner, is a person exercising
“the art, trade, occupation, business, la
“bour, work, and mystery of a milliner—
“BEING A MAN.”

One of the advocates was very profound
and very dull; indeed, he was so tedious
that a young Scotch lawyer, near me, expressed
some very unequivocal signs of
impatience—but a companion checked
him with “hoot mon, when a mon speaks
“in character ye should na' withhold
“praise: do na' ye ken the mon is an
“advocate of the English sessions?”

The counsel for the defendant replied:
but if the argument of the first was infused
with poppy, that of his learned brother
was saturated with opium. If the first
was Somnus, the second was father Nox
himself;—eldest night—ere Satan, that
Brindsley of Milton, had canalled chaos,
and built a bridge and rail-way o'er
the “wide abyss,” for the transportation
of original sin into paradise.—Pardon the
magnificence of my metaphor, my excellent
friend; remember I am in training
for the honours of a blue-stocking club—
and when I sometimes adopt the gorgeous
metaphor or quaint epithet, consider them

as specimens of my progress in the elegant
art of modern English fashionable
fine writing.—By the aid of the Scotch
gentleman's snuff-box, I kept awake until
the arguments were concluded.

The Lord Chancellor, who presided,
prepared to collect the opinions of the
noble judges. Now was a moment of
anxious expectation. As I expected he
would begin with the youngest, I felt not
a little solicitous to discover how the
young peers would acquit themselves on
a subject abstruse in itself, and rendered
more so by the eloquence of the learned
counsel.—The Lord Chancellor seemed
to comprehend the subject, and stated the
main and collateral points with clearness
and precision—and called upon the noble
lords for any thing they might have to
offer. One of the law lords (as they are
styled here—that is, a lord who has acquired
a knowledge of the law in the
good old, vulgar, democratic way of study
and practice) gave his opinion. He was

followed by several others of the same
class.—The Lord Chancellor then stated
the main point concisely, and said—“my
“lords, is it your opinion that the judg
“ment of the court of king's bench be
“affirmed?”—casting his eyes hastily,
and cursorily, and I fancied rather contemptuously,
over the hereditary judges—
and, without waiting, or, indeed, having
any time, to estimate the votes, said “it is
“affirmed.” His lordship then gave his
own opinion seriatim, and adduced several
arguments in favour of the defendant
in error, of greater weight, I thought, than
any which had been advanced by the
counsel—and, finally, supported the judgment
of the court of king's bench, and the
present opinion of the house, handsomely.
Now, I thought this very considerate in
his lordship; as he appeared, manifestly,
to have formed and pronounced the judgment
of the house for them, it was certainly
very kind in his lordship to show
the noble lords that there might be something
very handsome said in favour of it.

After all the wisdom and parade of
this high court of errors—if this great
nation, so justly proud of its unrivalled
judiciary, as they have now a court of
conscience, (which, by the by, has jurisdiction
only of trifling matters, and is
not a court of record in England,) would
only copy humble Connecticut, and substitute
for their high court of errors a
court of common sense, it would greatly
improve the system—and the judgment,
in this case, would have been reversed
with the approbation, at least, of all those
who have a common share of it: for the
cause turned solely upon a point of ancient
practice. It was agreed, on all sides,
that the merits of the original suit was
with the losing party, and the decision,
by the house of lords, operated as an extreme
hard case. But the old maxim of
the English law, fiat justitia ruat cœlum,
is now understood to mean—let precedents

govern if justice is trampled upon.
This adherence to the technæ of forms
and practice is of great importance in
English jurisprudence. The people are
taught to pride themselves in their judicial
system, and they verily believe that
the science of the law is better understood,
and justice more impartially administered,
in the English courts, than in
those of any other nation. But the English
law is a science so transcendantly
mysterious, that nine-tenths of the people
cannot comprehend it; and when they, at
times, discover the folly and wickedness
of other departments in government, they
console themselves with the inflexible impartiality
of their judiciary.

The first natural impression of justice
is its inflexibility. It is ever uniform, and
knows no “variableness or shadow of
“turning.” Therefore, by a scrupulous
adherence to ancient forms, however absurd,
or however injurious to individuals,
the people are persuaded of the steady

course and inflexible administration of
justice. Although the essential doctrines
of the English common law have, in modern
days, been as mutable as the fashions
in Bond-street—although Lord Mansfield,
during his presidency in the court of
king's bench, effected as great a revolution
in their municipal code as ever
Mirabeau contemplated in the French
constitution—yet, as he scrupulously preserved
the forms, it excited no alarm.
This great law reformer seemed to have
learned wisdom from the unsuccessful
attempt of the czar Peter to deprive his
clergy of their beards. Lord Mansfield saw
that the sword of despotism, which could
cut in sunder the doctrines and revenues of
the Greek church, was blunted in its edge
by the formal beards of the clergy; and
while he perverted the spirit, he forbore
to meddle with the ancient and venerable
habiliments of the law. And there
can be no doubt that the foundations of
the great system of English common law
may be broken up, and, in pursuance of
the principles of Mansfield, the rights and
interests of the landholders may be made
subservient to the gains of the merchant,
and the rights, interests, and liberties of
the common people sacrificed to both—
yet, while its forms continue, while the
dignified costume of the judges shall be
preserved—while the rust of Norman and
Saxon technæ remain, and the ancient
formal practice of the courts abide, the
people will be content to worship the
venerable body—while the spirit of the
common law, of that common law which
was the birth-right, the glory, and the sure
defence of the liberties of their ancestors,
is fled to mingle with the departed spirits
of those more enlightened Englishmen
who transmitted it, as their richest legacy,
to their posterity: let us, my friend, endeavour
to guard against the delusions of
forms, and look to the essence of that
rational liberty for which our fathers successfully
fought.