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Cooper's Ways of the Hour

Brownson's Quarterly Review, July, 1851
Art. I. - The Ways of the Hour; a Tale. By the Author of " The Spy," "The Red Hover," &c., &c. New York : Putnam.    1850.   12mo.    pp. 512.
We cannot characterize our government and institu­
tions by a single term, without misleading some as to
their true nature. They are not strictly democratic, for
they include monarchical and aristocratic elements ; they
are not strictly monarchical or strictly aristocratic, for they
evidently include democratic elements. It is always an
error to denominate them from any one of the simple or
absolute forms of government, that is, from pure democ­
racy, pure aristocracy, or pure monarchy, the only simple
and absolute forms of government there are, or can be.
Our government, whether State or national, is properly
speaking a mixed government, and its characteristic is not
in any one of the simple forms of government, but in its
original and peculiar combination of them all in one
harmonious and complex system. 
Our government is republican as opposed to hereditary monarchy; it is democratic as opposed to hereditary aris­tocracy, and in that it recognizes equality before the laws, makes its various officers elective by the people at large, and acknowledges general eligibility ; but it is monarchical, in that it establishes the unity of the executive, invests the President with the command of the army and navy, and gives him a conditional veto on the acts of the legisla­ture ; and it is aristocratic, in that it vests the legislative power, not in the people at large, but in the oplimates, or those legally presumed to be such, and recognizes in these, during their term of office and within the limits of the Constitution, the legislative power in its plenitude, to be exercised according to their own discretion, unfettered by any instructions from their constituents, and with no other responsibility than that which every man owes to God, the King of kings, and Lord of lords. It therefore in­cludes essentially, as essential principles of its constitu­tion, the elementary principles of all the simple forms of government, and its aim is, by tempering them one with another, to secure what is good and to guard against what is evil or hurtful in each.
The great political danger in this country arises from forgetful ness or neglect of this mixed or complex character of our government and institutions, and the constant ten­dency to interpret them according to the principles of a simple and absolute form of government. Simplicity is more easily understood than complexity; the former is within the reach of every body, the latter is within the reach of none but the few who make it a special study. The human understanding also loves simplicity, and natu­rally tends in all the matters on which it operates to re­duce all as far as possible to a single principle, and to elim­inate whatever is opposed to it, or does not logically pro­ceed from it. It craves unity and simplicity, and looks upon multiplicity and complexity as defects. The consti­tution of the Continental governments of Europe is far more simple, and follows far more strictly the law of unity, than that of Great Britain, and hence, while a culti­vated Englishman readily comprehends a Continental gov­ernment, a Frenchman or a German cannot, without a long and special study, speak for five minutes of the Eng­lish constitution without committing some egregious blun­der. Foreigners always blunder, for the same reason, when they speak of our complicated government, and so do the great body of our own people, whenever they attempt to go beyond the mere routine of practiee to which they are accustomed from childhood. They do not take in the government as a complex whole, but seize it merely in one of its elements, and seek to understand and explain the whole by virtue of that as its exclusive principle. Whatever does not proceed from that as its principle, or is   not logically reconcilable  with  it, they regard  as  an anomaly to be cleared away. The single element seized upon is regarded as the nor ma of the government, and whatever would oppose, limit, restrain, or modify its prac­tical operation, as repugnant to the government itself, and therefore not to be suffered to remain. Consequently, the. tendency is always to reduce the government as far as possible to a simple and absolute form of government, and therefore to pave the way for tyranny, since every simple and absolute form of government, untempered by some admixture of the elements of the other forms, is always tyrannical.
The monarchical and aristocratic elements, though es­sential to onr Constitution, do not hold in it the most prominent place. They are there, but they are there with­out dclat and without development, and their real char­acter and importance in our system are the very last that strike the student of our peculiar civil polity. The demo­cratic element has apparently a much larger sphere than either of them, is the most prominent, and that which first strikes the attention. It accordingly is the element first apprehended, and the one the majority take to be the ex­clusive principle, the norma of the government. Hence the government is generally taken to be in its principle and intention a purely democratic government, to be interpreted and administered on the democratic principle alone. This is a great mistake, and involves the gravest consequences, - consequences, perhaps, no less grave, in the long run, than the total destruction of our government as a mixed government.
This mistake is perfectly natural. The democratic ele­ment has in our institutions too large a sphere, as Wash­ington and the more eminent statesmen of his time con­tended. Let us not be misunderstood. When we say that the democratic element has too large a sphere, we do not mean that the sphere actually assigned it in the Constitu­tion is too large, pi'oviding it practically remains within that sphere. It is too large in the sense that it has the power to make itself larger, and to gain the absolute ascendency over the other elements intended to restrain or temper it. If democracy would be contented to remain and operate only within the bounds prescribed, it would not have too large a sphere; but as these bounds are to a great extent  prescribed  only on the parchment constitution,   and  as  they  are  not  sufficiently defended by the power given to the other elements, it is able to transcend them, and to  operate  beyond  its constitutional  sphere. The original defect of the American constitutions whs not so much in the too great power given to the democratic element  as  in  the  weakness  of  the  defences  provided against its usurpation.    The framers of those constitutions gave a just proportion to the several elements so long as each remained within its constitutional limits, and in the exercise of its legitimate power; but they did not guard sufficiently against  democratic  ascendency.     They were familiar with the abuses of monarchy and aristocracy, and effectually guarded against them ; but they were not so familiar with the abuses of democracy, and did not fully anticipate  and  guard against them.    They did not take into the account the fact that  every  people, by   a   sort of instinctive logic, labors incessantly to simplify its in­stitutions,  and  that in the process  of simplification the stronger element gains the ascendency, and tends to render itself  exclusive by eliminating or absorbing  the others. They did not take sufficiently into the account the influ­ence of popular theories, or foresee the consequences which would  be drawn from certain maxims which  passed cur­rent with them, and  certain principles which  they laid down as the basis of their own proceedings.    They had had no experience of the Jacobinical revolutions which followed  the  establishment of our republic, and  conse­quently could not anticipate the facility with which their own principles could be perverted to serve as the basis of a  system  with  which   they had   no affinity.     They did not see that the Contrdt Sociale was already in  Locke's Essays on Government, that the French Revolution and all its  horrors were in  the Contrat  Sociale, and that all modern Red Republicanism, Socialism, and Communism were in the French Revolution.    They had no suspicion of the poison concealed in the phrase sovereignly of the people, - a phrase in their sense so innocent and so just. Hence they did not take all the precautions which were requisite  against the   perversion of the institutions they founded to a pure democracy, or which they would have taken if they had had our experience.
The whole history of the formation of our governments, and the maxims we adopted, when seen in the light of Jacobinical interpretation, were well calculated to induce the half-learned, the semidotti, as are always the majority where education is general, whose little learning is more dangerous than none, to regard our institutions as purely democratic in theory. The sovereignty of the people was loudly and unequivocally asserted. This meant at the time, save in the minds of a few speculators, whose de­signs were not suspected, simply the right of the people in any given locality, when finding themselves without legitimate government, and thrown back into a state of nature, to assemble in convention and institute govern­ment for themselves, and in such form as they believed, under the circumstances, best adapted to the public good. This was all that was really meant by this phrase. But when Jacobinism arose, the phrase assumed a new and a terrible meaning. It then came to mean that the sov­ereignty resides permanently in the people regarded as prior to government, - after the institution of government, and during its existence, as before its institution, and where there is no civil polity. The people were thus, instead of being in certain exceptional eases the medial origin, or rightful institutors of the government, the per­sisting ground of its authority. They were then the real persisting sovereign, and the so-called government was nothing but an agency created by them, holding to them the relation of an agent to his principal, and bound to obey its instructions, which they could alter or revoke at will. This is pure democracy. As our institutions plainly recognize the sovereignty of the people, the con­clusion that they are purely democratic became inevi­table as soon as the sovereignty of the people came to be understood in this sense. The fallacy arises from the ambiguity, as the logician would say, of the middle term, that is, the sovereignty of the people. Where there is no government the people have the right to institute govern­ment. This is all the sovereignty our institutions recog­nize in the people; for as soon as the government is insti­tuted, their sovereignty or right to institute government no longer exists.
Precisely here lies the difference between the theory of our institutions and Jacobinism. The theory of our insti­tutions is, that as soon as the government was instituted, it became vested with the sovereignty, with full authority, according to its constitution, to govern, - an authority derived, not from the people, save as they were the medium of its institution, but from the Divine Law under which all legitimate governments hold; the Jacobinical theory agrees with ours as to the origin of the government, but goes farther, and maintains that the popular sovereignty does not cease with the institution of government, but survives it, and persists through all its acts as the perma­nent and indestructible ground of its authority, - that the government not only is indebted to the intervention of the people as its medial origin, or instrument of its institution, but actually holds its powers from them, and is in all re­spects simply their agent, bound by their instructions, al­terable or revocable at their will. This Jacobinical theory of popular sovereignty is much the most natural and sim­ple, and is far the most easily apprehended; it demands very little practical wisdom or strength and acuteness of thought to be understood and applied, and places the wise and simple, the learned and unlearned, on the same level. It is, therefore, the very theory that the multitude, washed or unwashed, must find the best adapted to their powers and attainments, and the one we may be sure they will accept and insist on.
Having once entertained the Jacobinical doctrine of the sovereignty of the people, it was easy to find it confirmed by our own institutions, both State and national. As a matter of fact, our political constitutions had been framed by conventions of the people, and most of these constitutions contain provisions for convening the people anew to alter or amend them. These facts, rightly inter­preted, afford no countenance to Jacobinism. The rule for interpreting facts is to draw from them no principle broader than is requisite to account for them, and to interpret them as strictly as possible in accordance with the principles generally received on the subject to which they relate. The first of these two facts merely implies the right of the people, when destitute of government, and thrown back into a state of nature, to institute government, - a right derived from the necessity of the case. The second fact does not necessarily warrant any thing more ; for the peo­ple can come together in convention, and alter or amend the constitution, only by virtue of a legal provision, and as legally convened.     Some of the constitutions provide for their amendment through ordinary legislative bodies, without an extraordinary convention, and all might have done so, if it had been deemed expedient by the framers of the law. Conventions called for amending the consti­tution are, then, only a part of the legal machinery of the government, and rest for their authority, not on the will of the people regarded as antecedent to government, not on a supposed reservation of popular sovereignty, but on the law, as do the several other parts of the governmental machinery. But hardly had our government been insti­tuted before the Jacobinical doctrine was broached. Con­templated in its light, the convention was no longer a part of the machinery of government, brought into play only on extraordinary occasions, but a resumption by the peo­ple of the power they had previously delegated. It was an appeal of the agent to his principal for additional in­structions, or it was the principal calling his agent to an account of his agency, and modifying or revoking his instructions. This interpretation is more easy and less complicated than the other; it demands no acquaintance with law or political science to be understood ; and therefore was held to be the true theory of the conven­tion in our political system, making that system pure Jacobinism.
The frequency of elections and constant recurrence to the people in the practical operations of the government tend to produce the general impression, that our govern­ment is theoretically a pure democracy. The people are constantly called upon, in consequence of general suffrage, and the short term of all elective offices, to give their votes in reference to all important measures, and are seen everywhere acting, and deciding by their votes the most important questions of the country. The fact is, that the part they act is solely by virtue of positive law, which in­trusts them with a share in the administration of govern­ment, for suffrage is a trust conferred by law on whom the will of the legislator chooses, not a natural right. But the people and their action are visible, while the law by vir­tue of which they act, and to which they are responsible, is invisible, save to the lawyer and statesman. Demagogues do not generally themselves perceive it, and when they do, it is for their interest to keep others from seeing it. They are in popular states what courtiers are in monarchical states, and flatter the people as these flatter the king. In order to be in favor with the people, they flatter them, ex­aggerate their power, as well as their wisdom and honesty, and tell them that they are sovereign, that they have the right to do as they will, and that government and all insti­tutions are but the work of their hands and the instruments of their pleasure. The elections being almost daily, at least following each other with such frequency that one is hardly over before the politicians begin to prepare for another, and the flatteries and adulations of the people being so unremitting and so gross, the limitations or restrictions originally imposed on the democratic element are lost sight of, and the general conviction is naturally and almost in­evitably produced, that our government is intended, and should be interpreted, to be a pure democracy, a simple and absolute government of the democratic form.
These facts and considerations show that the democratic element had too many facilities for escaping its constitu­tional limits, and of making itself recognized as the ex­clusive principle of the American government. Certain it is, that it is now so recognized, and democracy, pure, sim­ple, unlimited democracy, is now the general political doc­trine of the country. No man who seeks power or place dares question the soundness of democracy, and all parties profess to be democratic, and only vie with each other as to which shall be the most thoroughly democratic. Whigs, Democrats, and Free Soilers all alike profess to be dem­ocrats, and to bow alike to the majesty of the people. All consent to regard democracy as the law, and to be tried under it. The consequence is, that there has come to be a wide discrepancy between the political theories and the political institutions of the country. In reality a demo­crat, in the proper sense of the term, is false to our institu­tions, as much so as is an aristocrat or a monarchist, and yet the man who opposes exclusively what is called ultra-democracy or radicalism is sure to be denounced, when not ignored, as one who opposes the form of government our fathers established. We ourselves are so denounced, and ninety-nine out of every hundred of our political readers will hold us to be no loyal American citizen because we will not advocate exclusive democracy. They will accuse us of going to extremes, simply because we protest against all extremes.     They will pronounce the distinctions we have made vain subtilties, the over-refinements of a met­aphysical mind, and look upon us as at heart the friend of tyrants and aristocrats, so little do they appreciate our mo­tives, and so far are they from comprehending and being loyal to the mixed and complex character of the American government and institutions.
This discrepancy is not only wide, but exceedingly dangerous. "When the people have the part they really and constitutionally have here, one of two things is neces­sary, either that popular political theories conform to the political institutions of the country, or that the political institutions conform to the popular political theories. In the long run the institutions must correct the theories, or the theories will undermine and revolutionize, by force or otherwise, the institutions. Our own experience proves this. The popular political theory of the country is purely democratic, that is, Jacobinical, although practically there are and must be by every party, when in power, many de­partures from it. The struggle is really to carry out this theory, and to reduce every thing to it as the norma, or rule, - to eliminate from our institutions every thing repugnant to it, or that interposes any obstacle to the immediate and sovereign action of the popular will. No man can have observed with any care the course of events amongst us without having perceived that there has been, and that there is, a constant tendency to bring every thing in our institutions into strict logical consistency with the demo­cratic principle as the exclusive principle of the govern­ment. This is seen in the constitutions of the new States, and more especially in the changes introduced into the con­stitutions of the old States by the conventions assembled from time to time to amend them. The grand aim in all appears to be to remove all the provisions which give to the government a mixed character and restrict the action of the democratic element, and to provide for the free, full, and immediate action of the popular will, that is, the will of the majority for the time, in determining every meas-nro of the government. A revolution has been silently go­ing on. Even Mr. Jefferson, the father of American radi­calism, to say nothing of Washington, Adams, Hamilton, or Madison, were he to come back among us, would no longer recognize the institutions he, helped found, and which he so ardently loved.    Even he would now be regarded as a conservative, as one of those men who are afraid of progress, who dare not trust the people, and have their faces on the backside of their heads, or, as Mr. Emer­son expresses it, " have their eyes in their hindhead, not in their forehead." In several of the individual States this revolution has gone so far as to convert them very nearly into pure democracies, where the will of the multitude, or the will of what the demagogues make pass for the ma­jority, reigns without a rival, unrestrained, as absolutely as reigns the Grand Turk in Stamboul.
The revolution affected by popular theories touches the more important and vital interest of the community. The great body of our people, with their half-learned leaders, mistake the liberty of the multitude to govern for the lib­erty of the people under government and through its pro­tection. With them the great questions regard the elec­tions of presidents, congress-men, governors, assembly­men, the institution of government, the installation of its oflicers, and special enactments relating chiefly to industrial and financial matters. They do not reflect that govern­ment with us is already instituted, and that the chief con­cern is now as to its administration, and especially the ad­ministration of justice. The state with us is constituted, and as originally constituted well constituted, and nothing can be more foolish or more mischievous than to proceed as if we had no state, and were called upon to constitute it, - as if the inquiry were not how to govern, but how to get a governor. The great business of a state is not to be ever constituting itself, but to administer the laws. The very idea of a state (status) is of something established, fixed, and immovable ; and a nation by the very fact that it is a nation has already a body of laws, written or un­written, and is not called upon to make the laws. In no civilized state are the laws to be made, or is any other legislation requisite than the few enactments which relate to administration, or which are demanded to adapt the ex­isting laws to the altered circumstances which time and events may have introduced. To suppose that the laws are still to be framed in any nation, is to suppose that it is either in the infancy or in the decrepitude of its civiliza­tion. It must be a nation just born, or a nation passed into its dotage, that has every thing to learn and do, or that has forgotten all that it has ever done or known, that has inherited nothing or that has dissipated its patrimony, and in either case the attempt to make for itself a body of laws must always prove no less unsuccessful than ridiculous. The glory of a generation is in having inherited a noble pat­rimony, not in having every thing to create anew for itself.
The glory of our country is not in its own enactments, with which it is seldom satisfied, and which it seeks to re­peal or modify as soon as made; but in the common law, which we have inherited from our English ancestors. What is of most vital importance to us is an able and inde­pendent judiciary for its administration. We enter not here into the controversy between the common lawyers and the civil lawyers as to the relative merits of their respec­tive systems. Some might, perhaps, prefer the civil law, but the common law, the law inherited from our Eng­lish ancestors, is a good system of law, and if the civil law practice renders it less difficult for the guilty to es­cape detection, the practice of the common law courts, we arc inclined to believe, affords the best protection to the innocent. The main principles of the two systems are substantially the same, and it is easy by statute to adopt those provisions of the civil law which are thought to be superior to the common law, if any such there are. The common law is the law of the land ; it is interwoven with all our habits as a people; it is the life-blood of all our in­stitutions, the conscience of the American state, the com­mon sense of the American community. There is no good reason for rejecting it, and every lawyer, if worthy of the name, knows that the various modifications that have in late years been introduced into it by statute have only marred its beauty, broken its symmetry, and detracted from its efficiency. 'What is wanted is not a change of the law, or a modification of the law, but courts independently constituted for its administration.
But, unhappily, the independence of the courts of law, or the judiciary, is precisely the thing to which the popular theories of the country arc the most directly and inveter-ately opposed, because an independent judiciary opposes the most effectual barrier to popular tyranny and oppression. The radical movement of the country exerts all its force to destroy the independence of the courts, and to make them, like every thing else, mere agencies for executing whatever may be the popular will, caprice, or prejudice for the moment. It seeks to deprive the judiciary of every member competent to discharge the duties of a judge, and to render the courts weak and contemptible. Under the pretext of economy it cuts down the salaries of judges to a point so low, that none but third or fourth rate men, men who could not gain a competence at the bar, can af­ford to accept a seat on the bench. Having got a weak judiciary that will yield to every popular breeze, the move­ment seeks to secure the fruits of its victory by making the judges elective by the people for a short term of years, and reeligible. The independent tenure by which the judges originally held their ofliee is now destroyed in most of the States, and soon will be in all. The popular theory declares the multitude to be sovereign, and the multitude can tolerate no institution not flexible to their will. So the judges, on whose competency, independence, and im­partiality depend the vital interests of both the community and the individual, must be selected from the class of in­ferior men, be made elective by the people for a short term of office and reeligible, so that they will be impotent to resist popular opinion or prejudice, and have every induce­ment to bow in all obsequiousness to the majesty of the multitude.    Vive la multitude !
But this is not enough. The same popular tendency, which distrusts whatever in supposed to rise above the com­mon level, attacks the prerogatives of the court, and claims them for the jury. The court having, or being supposed to have, some knowledge of the law, may still have some regard to its legal reputation, and insist on abiding by the law, instead of yielding to popular clamor. So the office of the judge must be reduced to that of a mere presiding officer, and the jury, innocent of any legal attainments, must be made judges both of the law and the fact. Being taken immediately from the multitude, sharing all their prejudices and passions in the given locality, the jury will be pretty sure to gratify them, and render a verdict in ac­cordance with the decision arrived at out of court.
Yet even this is too little to satisfy the democratic ten­dency. Law is both a science and an art, and can there­fore be understood and practised only by those who have made it the subject of special study and preparation. These by virtue of this special study and preparation con­stitute a distinct class or profession, and have the exclusive privilege of practising law. Hence they, the lawyers, are a privileged class, and exclusive democracy can tolerate no privileged classes. Every man should be free to make hats or coats without ever having served an apprentice­ship, or learned the mysteries of the craft; and if he can­not do it, then you have no business to have hats or coats, and you must either dispense with them, or else consent to have such as any one can make without any previous apprenticeship. Such handicrafts as cannot without ap­prenticeship be pursued by all are undemocratic, strike at the fundamental idea of equality, and can never be toler­ated by a free and enlightened people. So the law must be codified and simplified, so that every blockhead in the country can understand and practise it without previous study or preparation, and the courts must be thrown open to every miserable pettifogger whose impudence gets the better of his sense. Democracy cannot tolerate any thing that is not on a level with every understanding, or that demands preparatory discipline, that would give science an advantage over ignorance, wisdom over folly, intellect over stupidity. New York, the Empire State, has taken the lead in this democratic warfare against science and skill, in favor of ignorance and ineptness. She has codified her laws, altered the procedure of her courts, and thrown open the practice of the law to every man who can obtain a client, and such thorough  work has she made that her learned judges no longer know how to proceed, and are obliged to confess that in her courts the erudite lawyer has no longer any advantage over the ignorant ploughman. Long life to the New York law reformers and coditiers!
These proceedings, in which all our States are following at a greater or less distance, would be simply ridiculous, if they did not involve the most vital interests of every man, woman, and child in the community,-if they did not sweep away every guaranty of personal liberty, poison the very fountain of justice, and place life, liberty,, property, and character at the mercy of the mob. We may boast of our free institutions as much as we please, but let us at least have the modesty not to boast of our freedom as in­dividuals, so long as the administration of justice is sub­jected to popular opinion, prejudice, or caprice, and a man must be acquitted or condemned, not according to the law and evidence, but according to the ignorant and prejudiced clamors of the multitude outside. There is not a monarch­ical state in Christian Europe that would tolerate the direct and personal intervention of the sovereign in the adminis­tration of justice. It was one of the gravest complaints of our ancestors against several of the kings of England, that, instead of remitting the decision of causes to independent and impartial judges, they usurped it to themselves. And yet this is precisely what we in our enlightened love of liberty are laboring to do. We are laboring to secure the direct intervention of the people, said to be sovereign here, in the decision of causes. We have not yet wholly suc­ceeded in doing it; the judiciary, in some localities, still retains its former character ; but the tide is setting in strongly and rapidly against it everywhere. Yet few take the alarm; the majority clap their hands and exult, and if one ventures to utter a warning, the mob exclaims, "What, you distrust the people,do you? You are afraid to trust your cause to the wisdom and justice of the people, are you ? Do not be frightened. Vox populi, vox Dei. You are safe in the hands of the people." If he remonstrates, he is denounced as no democrat, and nobody will venture henceforth to furnish him wood or water. Every man who wants oilice, or wants popular influence, must join in the cry of retrenchment, low salaries, open courts, respon­sible judges, a popular judiciary, and urge on the destruc­tive movement with all his might. It may be death to liberty, but it is sport to the demagogues, and so no man must dare raise his voice against it.
We have been drawn into this train of remark at the present time by Mr. Fenimore Cooper's late work, the title of which we have placed at the head of this article. Our readers are aware ol' our estimation of our distinguished countryman as an author. He undeniably stands at the head of American authors of his class, and has done as much as any other man, if not more, for the literary char­acter of our country. As works of mere amusement his earlier works are superior to his later productions, but for depth of thought, solidity of principles, and high moral aims and tendency, they are far inferior. To our judg­ment, and even to our taste, his later works, in which he attempts to correct the foibles, errors, and dangerous ten­dencies of his countrymen, are far preferable to those of his earlier works in which his principal moral aim was to defend our character and institutions against the aspersions and prejudices of Europeans. We will not say that he has per­formed the delicate task he undertook with as much adroit­ness, amiableness, and tenderness as was possible, but lie has labored at it in a free, noble, and manly spirit, and de­serves the warm gratitude! of his fellow-citizens. The press, as was to be expected, since it could not ignore, has as­sailed him with a spite, bitterness, and meanness worthy of itself and of him. To fall under the condemnation of the American press, as it now is, with a very few excep­tions, is a high honor, for it has no appreciation of manli­ness or nobleness of character, and no real knowledge of the various subjects on which it pronounces its judgments. Its conductors have just that smattering of knowledge which makes a man conceited, and fancy that beyond what he knows there is nothing to be known, and when they commend any one we may always presume that he has said or done some very foolish or very wicked thing. Happy is the literary man in this country whose character is established, and whose reputation can neither be en­hanced nor diminished by the newspaper rabble. The edi­torial rabble have done their best to make Mr. Cooper unpop­ular, and to drive him from the place he originally held in the hearts of his countrymen; but, unless it be for a brief moment, they have labored in vain. No sensible man heeds the newspapers in this country, - hardly enough to feel contempt for their llippancy, conceit, and impudence,- and Mr. Cooper will live in the hearts of his countrymen when his newspaper assailants and their sheets are as if they had not been.
The work before us, the last of Mr. Cooper's that we have seen, may not be precisely to the taste of the young, the giddy, the thoughtless, the sentimental, and the roman­tic,- although it is by no means void of interest simply as a novel, and contains scenes and incidents of great beauty and power ; but the grave and thoughtful, the cul­tivated and refined, the Christian and the patriot, the mor­alist and the statesman, will read it with pleasure and instruction. We do not by any means claim perfection for it. It has some slight defects ; it appears to have been hastily written, and not to have received so high a finish as the author was capable of giving it.    It contains some views with which we do not wholly agree, and some exag­gerations which will impair its efficiency. Lawyer Timms, one of the characters introduced, is hardly a faithful repre­sentative of the class of lawyers intended. Mr. Dunscombe, his model lawyer, is a noble character. We love and honor him as a man, but one of our legal friends tells us that his management of the case of Mary Monson does not justify the high praise awarded him as a counsellor; and the au­thor seems to have sacrificed his legal reputation to the exigencies of the story. The author has also exaggerated the feeling of the people towards what they call the aris­tocracy. With all our democracy, we are the most aristo­cratic people on earth, and we do not think that, in any part of our widely-extended country, a lady would find the fact of her being young, beautiful, accomplished, and very rich, likely to tell to her disadvantage on a trial for murder. The difficulty, as far as we know the temper of our countrymen, would not be to obtain a verdict acquitting such a person as Mary Monson is described to be, in case of her innocence, but in obtaining a verdict against her in case of her guilt. We are a gallant people; and, though we are chary of hanging a man for murdering a woman, especially, if she was his wife or his paramour, we have, as a people, too devout a worship for the sex to hang a lady, especially if young, brilliant, accomplished, beautiful, and rich. All the young men would swear to her innocence because they are young men, and all the old men would do the same because they would be thought young. Aris­tocracy as such, that is, wealth and breeding, the only aristocracy we have among us, does not generally excite hostility in our society, if modest and unassuming. Even according to Mr. Cooper's showing, the hostility to his hero­ine grew out of her isolation, and apparent contempt for public opinion in Biberry, rather than out of her supposed connection with the aristocratic classes. Had she been known in the outset to be connected as she was with those classes, she would never, under the circumstances alleged, have been put upon her trial.
There is no doubt a feeling of envy towards those who have wealth and breeding very widely diffused through the community, but this does not operate, except in the case of the Antirenters, unfavorably towards them in the courts of justice.    We have nothing to say in favor of the Anti-renters, nor in favor of New York justice so far as the rights of the Van Rensselaers and other landlords in that State are concerned, and in the countenance New York has shown and still shows to Antirentism, she has incurred a disgrace that twenty generations will not wipe out. But the tenants have votes, and no party can do without them, and they must be permitted to refuse to pay their rents, and encouraged to murder the officers sent to enforce pay­ment. In cases like these, aristocracy is in the way of one's getting his honest dues, and when justice is on one side, and the majority of voters on the other, justice, of course, must be allowed to kick the beam. What mighty advantage would there be in votes, if they con­trolled by a sense of justice, or if one man, because he has law and justice on his side, can withstand a whole com­munity ? No ; democracy goes for the greatest good of the greatest number, and when one man has rights that conflict with the interests of numbers, the rights must yield to the interests. This is the beauty of a popular govern­ment, under which the interests of the people are to be con­sulted before the; interests of the Patroon, and the law is not to be enforced when it does not accord with public sentiment. In the State of New York they have carried out the principle of popular government to its fullest extent, and possess it in all its beauty. We shall have it so in all the other States soon, and then the administration of jus­tice will be wonderfully simplified, and the courts have nothing to do but to collect and register the sentences pro­nounced by public opinion, - perhaps not so much, for Judge Lynch may be then the only administrator of justice retained. Woe then to the man who has not the local press, the demagogues, the old women, and boys of the neighborhood, on his side. A short shrift and a hempen tippet will be all the justice he can expect. We live in an age of progress, and we make- rapid progress, for our road is down hill. We shall be at the bottom soon, unless bot­tom there proves to be none.
Nevertheless, Mr. Cooper's work is sound and healthy, and contains much matter that every American citizen ought to read and meditate daily. The purpose of the author is, by means of an ingeniously devised and in gen­eral felicitously managed story, to draw the public atten­tion to the administration of justice as affected by the popular theories of the country and the recent legislation and attempts at law reform especially in the State of New York, and to point out the dangers to which we are exposed from the extraneous influences brought to bear upon both court and jury. His arrows are pointed more particularly against this outside influence, the want of independence in the court and jury, and the recent law of the State of New York with regard to the property of married women,- what he calls "the Cup-and-Saucer Law."
This outside influence is so strong, that the author thinks the trial by jury has become very nearly a mockery, and he would go so far as to abolish it altogether. With much that he says on this point we cordially agree, and it is cer­tain that the jury in a popular government has a very dif­ferent signification from what it has under a monarchy, or even an aristocracy. The jury was originally intended to operate to the protection of the accused, by introducing a popular element to temper the authority of the crown, rep­resented by the court; and when; the crown had an undue influence, it was, no doubt, a wise and salutary institution, especially in England, after the Norman conquest had in­troduced a distinction of race between the governing class and the people, lint precisely for the reason that the jury was needed in monarchical England, it is objectionable in this country; for here the element to be guarded against is the popular element, which is too strong, not the element of authority, represented by the judge, which is too weak. As in England the influence of the crown might defeat the ends of justice, so here the popular influence is liable to do the same. This danger is increased, not guarded against, by the institution of the jury. Moreover, the jury here often fails of its end, in consequence of the little care or judgment employed in the selection of jurors. Men utterly incompetent, morally and intellectually, often make up the panel, and serve on our juries, - men who cannot be made to understand a single element of the cause they have to try, and who are utterly unscrupulous as to the verdict they render, - who even consent to decide important causes by tossing up a copper. These and various other objections can easily be urged against the institution; but, neverthe­less, we are not prepared to go so far with Mr. Cooper as to abolish it. It is an old institution, dear from old asso­ciations to our people; it is a part of our general system for the administration of justice, and we are unwilling, especially in these times of change and innovation, to dis­turb it. We do not see what we could substitute for it, that would be an improvement; and after all, we are far from being convinced that it docs not even here serve a useful purpose, at least the purpose of taking" oil' a portion of the odium of unpopular judgments from the judge, - in these times a matter of vital importance. Without it the people would lose their confidence in the courts, and would at­tack still more vehemently the independence of the judi­ciary. Let more care be bestowed in determining the qualifications of jurors, and let the jury more distinctly understand that it is the province of the court to declare the law, and that their province is simply to judge of the fact, and there will be little occasion to find fault with the jury. Certain we are, that it would, upon the whole, be beneficial, and equally certain we arc, that, if it should in the present temper of the people be abolished, its place would be supplied by some institution that would be little less than unmixed evil. The age and country should go to school for some time before attempting innovations, unless it be in the purely material world. Because the age has invented lucifer matches, it does not follow that it can invent a useful substitute for the jury.
The author shows also this outside influence as it affects the judges, in rendering them impatient, and afraid of wasting time. Not only our courts of law, but our legis­lative assemblies generally, are afraid of consuming time, and seem to fancy that their merit is in proportion to the celerity with which they despatch the business before them. This is a great mistake, and it, no doubt, arises from the everlasting cry of "retrenchment," and constant reference to public opinion. Nothing is lost by taking full time to deliberate. The great defect of our people is to be always in a hurry, to do every thing in a hurry, and consequently to do nothing well. It would be better to increase the number of judges, and to have smaller judicial districts, than to have our courts always in a hurry, and always reminding the counsel, " Time is precious," often to the confusion of their brains, and to the great detriment of their clients. Multiplying the judicial districts and appointing more judges would remedy the evil, and be a great econo­my of time and money in the end, even if the judges were paid, as they should be, a liberal salary. High salaries, for all important offices, are always commended by a wise economy. Offices which do not demand much learning or talent, which any body that is honest and lias common sense can fill, should have only a low salary attached to them, - too low to make it much of an object to aspire to them. Higher offices, which demand a high order of intel­lect and attainments, should always have liberal salaries attached to them. Unhappily, fancying ourselves wiser than all the past, and called upon to open a new era for the world, we in this country reverse this rule, - give a lib­eral salary to a tide-waiter, and a meagre one to the Chief Justice and his associates, to the President, heads of depart­ments, Congress-men, and members of State legislatures. The consequence is, no man fit to fill the higher offices can accept one of them without a great personal sacrifice, and half the country is scrambling for the lower ones. But this comes from claiming to be wiser than our fathers.
The " Cup-and-Saucer Law " deserves all the severity with which Mr. Cooper treats it. We have no wish to see revived the old pagan doctrine, which includes a man's wife and children among his goods and chattels ; we thank God for our holy religion, which lias emancipated woman, and elevated her to be the companion, though not, the head, of man. We yield to no one in our respect for the dignity of woman, or in our appreciation of her appropriate sphere. But we have no sympathy with the almost universal pru­riency of our age and country, and have long since ceased to be a follower of Frances Wright, or a disciple of Mary Wolstouecroft. Woman often suffers much from man, and man often suffers, too, from woman, and the woman as often ruins the man as the man does the woman. Neither is, ordinarily, an angel nor a demon, though both are some­times the latter. In families where there is misery the fault is not always that of the husband, and not unfre­quently a man flies to the club or to the dram-shop solely because his "angel" wife cannot make his own fireside pleasant to him. We are willing that the property a wife has before marriage should be settled on her, or at least a portion of it; but we cannot endure a law which not only vests her with it after marriage, but allows her the man­agement of it during coverture independently of her hus­band, and to make and receive devises and bequests, precisely as if single. This separation of the interests of the husband and wife, this distinction of the unity of the married pair, making them two, and permitting them in hardly any respeet to be one, effected by the recent law of the State of New York, and which all the other States are aspiring to imitate, is incompatible with the true nature and meaning of marriage, and is the most odious and immoral in prin­ciple of any measure we remember ever to have seen de­liberately adopted by a civilized state. It is simply the first step towards realizing the doctrines preached by Fran­ces Wright. Under this law, the wife may, if we under­stand it, as freely buy and sell, sue and be sued, as if she were single. She is during coverture, as before or after, in the fullest sense, a person in law. She may dispose of her property to enrich her paramour, if disposed ; or she may receive from him the gift of a farm in a distant part of the country, and, under pretence of managing it, leave her hus­band's house, and reside on it, to her husband's dishonor, and to the neglect of all her duties as a wife. She may even charge her husband with every cent she lets him have, and bring a suit against him to recover pay for any cup and saucer of hers he may have accidentally broken when taking his tea. If she is not pleased with his society, she can leave him, if she has property of her own, and reside where she pleases, return when it suits her convenience, and go away when she is tired of her spouse. Such is the legislation of a free and enlightened people. The full ef­fects of this legislation will not be immediately seen, for as yet our men and our women retain, to some extent, the views and habits formed under a less unchristian system, and our wives will not at once avail themselves of all the license the law gives them. But our daughters, at farthest our granddaughters, will, and then the beautiful effects of the Antichristian and immoral legislation now insisted on will be seen and felt; but then it will be too late.
It is not our design to enlarge, at present, on this topic, for we confess that we have not ourselves thoroughly ex­amined all the bearings of the law in question. It seems to us to have been the work of ignorant, but well-meaning persons, who, seeing certain evils accrue under the old law, undertook, without any just conceptions of their cause, to remedy them, and adopted the first remedy that presented itself, without ever once stopping to inquire whether the application of that remedy would not produce a thousand other evils, each a hundredfold worse. In this way most of our legislative innovations are introduced. Their authors have no bad intention, nay, they have good intentions ; but they are ordinary men, from the ordinary walks of life, with nothing but a superficial knowledge of the subjects on which they attempt to legislate. A legislator was once thought to be a rare character, and it was supposed no man, unless divinely assisted, could be a competent legis­lator ; but now every ploughman, blacksmith, shoemaker, tinker, or shopkeeper has only to be chosen a member of a legislature to be a Moses, a Minos, a Lycurgus, a Solon, or a Nuraa. No previous study or discipline is regarded as necessary ; learning, science, art, are superfluous, and we attempt to make ignorance and folly answer the pur­poses of knowledge and wisdom, and with what ample success - is it not written in our statute-books 1
In the legislation that aflects financial matters and pure­ly business  interests, we respect public opinion, and  the intervention of the people.    In reference to this legislation, we are as good a democrat as any of our countrymen, and in this legislation we think our country compares favorably with any other country.    In this legislation the people are at home, and we have always great confidence in the wis­dom and utility of those measures which  command the general assent of the people.    Here we believe the judg­ment of the people is a safer guide than the judgment of individuals, however learned, able, and distinguished.    It is, indeed, only on matters of this sort that we need legis­lation, and it is probable, that legislation on other matters was not contemplated by our fathers ; for all other matters, with a few trifling exceptions, were already covered by the common law, which contained the condensed wisdom of ages.   The error of the country lies in claiming for the people a legislative capacity beyond these, in regarding statute law as the most important portion of the law, and in attempt­ing to amend the common law, or the lex non scripla. We set out with the false assumption that we are a new people, bound by nothing that was before us, and  under the necessity of creating every thing anew for ourselves. Hence, instead of confining ourselves to such alterations in statute law, the lex scripla, as  our separation from the mother country and our peculiar circumstances rendered necessary, we have undertaken to revise the whole law of the land, as it affects both the rights of persons and things. We have unsettled every thing, and in our ineptness have vitiated the administration of justice, and rendered life, lib­erty, and property insecure, by making them, as in Turkey, wholly dependent on the will or caprice of the sovereign,- there on the will or caprice of the Sultan, here on the will or caprice of the multitude.
In purely economical matters the  people are the best judges, and in regard to those matters we would have the democratic element felt; but in matters of justice, in the respect in which law is ethical, and deals with ethics, we want no popular legislation.    In regard to rights, whether of persons or of things, and the administration of justice, the people can intervene only to do injury.    In regard to these, save as to the organization of the courts, we needed no further legislation, and no  further intervention  of the legislator.    The law had been settled from time immemo­rial, and only needed to be executed, and for its execution the  executive  and judiciary branches  of the government sufficed.     Least of all did we need the intervention of the popular element, in the judgment of causes, especially in the shape of public opinion outside of the courts of law. The habit of appealing to the public on all occasions is so universal amongst us, and  the practice  of discussing all questions in   public, and deciding them by a  plurality of voices, has become so general, that nearly all manliness and independence of character have been lost amongst us. There is no country on earth where public opinion is so powerful and so intolerant as in these United States, or where men's souls are really so enslaved.    It is not that dungeons and racks are prepared for the body, which were, after all, but a trifle, for it matters little what is done to the body if the soul be free ; but it is that the mind itself, the very soul, is fettered and bound   by the  intangible tyrant called public sentiment.    We do not dare act from princi­ple, to follow the right from our own personal conviction, whether we go alone or with the crowd, but we are as a people continually asking,   What will people  say?    We are so habituated to this, it has become so much a part of our American nature, that we regard it as the normal order of things, and are utterly blinded to the evils which spring from it, and  the gross injustice it operates, and we little suspect its full influence in the administration of justice.
Whether there is any probability of correcting the evil, and excluding from our courts this outside influence, is more than we know. Certain it is that matters are grow­ing worse and worse every day. The rage for innovation is so strong, and the tendency to sweep away all the guar­anties of individual rights is so irresistible, we have gone so far, and are going with such an ever-increasing celerity, in a wrong direction, that we see little prospect of things becoming better. As long as radicalism confined itself to the constitution of power and the financial concerns of the country, and let the law, the courts, and the administration of justice alone, we could suffer it to go on, without any vital injury to personal liberty; but now that it makes these the especial objects of its care and solicitude, we see no hope for the country but in its conversion, which de­pends on God, not on man. The whole tendency we de­plore results inevitably from Protestantism, which destroys the conservative influence of religion, by subjecting it to popular control. Protestantism, instead of being able to resist the evil tendency, and recall the people to a just public sentiment, must itself yield to that tendency, and be, as we every day see it, carried away with it. In fact, there is no human help for us, and if God does not in his providence specially intervene to save us from our own madness, the country will ere long lapse into bar­barism.
Our political parties might do something if they would, but they can do nothing so long as they all profess to be democratic. Democracy is a stronger word here than Con­stitution, and the term cannot now be generally adopted except in its Jacobinical sense. If all parties accept it, then all parties will only conspire to strengthen the destruc­tive tendency we have pointed out. Properly there are but two parties in the country, Conservatives or Constitution­alists, and Destructives or Radicals. The Free Soil party is an organization of the latter; and those not incorporated into that party should lay aside the name of Whig' and Democrat^ two names which refer to the constitution of gov­ernment, and inappropriate here, because here government is already constituted, and rally around the Constitution, as a true conservative party, both in regard to the general government and the Slate governments. Were they to do so, the evil could be arrested.   But they will not do so ; old party animosities, personal rivalries, and petty jealousies will prevent them from doing so. Tilings will go on as they have been going, and those of us who sound the note of warning will be unheeded, laughed at, or denounced, while the multitude will continue to boast of the wisdom and progress of the age and country. Be it so. We have done our duty as a loyal American citizen in pointing out the evil, and the great body of our Catholic brethren will do theirs, we trust, and the responsibility must rest, where it belongs, on those who have the power, and only abuse it.