Clement M. Hammond, “Then and Now” (1884)




Boston, September 20, 2084.

My Dear Louise:

When Mr. De Domain told me that Anarchy prevented crime to a great extent, I did not doubt his words, for he is unquestionably honest, but an enthusiast is very apt to exaggerate the benefits of the thing in which he is most interested, and so I began a systematic reading of the newspapers to see how many crimes were reported. I know you will say: “You can’t tell anything by the newspapers,” but newspapers are not today what they were two hundred years ago. Now the papers tell the truth according to the best knowledge of those who edit them: then it was a notorious fact that policy and expediency determined whether a newspaper should tell the truth or lie. But I did not depend altogether upon the papers for my information for fear that there might be certain classes of cases which the editors thought it better not to publish at all. Every day for the past two weeks I have attended some court and watched the proceedings and studied the calendar. I think that I need only say that there is no shade of exaggeration in what Mr. De Demain has said.

In all there are but four courts in Boston. Each is in session for two hours each day unless some important case which may be on trial requires more time for its completion, when the length of session is continued at will. In all my attendance upon these courts, I have not seen one case that required more than an hour for trial, and on several occasions there were no cases at all ready for hearing. There are no lawyers today. Those having cases before the courts in charge are termed jurists.

This much I learned by attending the courts. When Mr. De Demain called last evening, I told him of my experience, and many questions by me brought out answers which I will put together in the form of a little essay.

“All criminal cases are tried before a jury of twelve, and the jury decides all questions of law, fact, and punishment. Of course there is no statute law and no other law that carries force with itself. A jury decides after hearing evidence that a certain act is a crime or that it is not. This, you see, makes a judge unnecessary. Most crimes are committed under such peculiar circumstances that it is better to decide upon every point in every case.

“The public courts are little used in civil cases, but such cases are left entirely to the judgment of a jury when they are brought before these courts. Such a jury may consist of any number decided on by the parties to the case. Most civil cases are taken before private courts, of which there are some dozen or twenty in the city. Business is conducted much the same in these as in the public courts, but the expense is somewhat less and the proceedings may be kept private if desired. A keeps a court. B and C are parties to a case which they bring before this court. A has an understanding with fifty or more men, well-known to be honest, whereby he may call upon any number of them to act as jurors. B and C look over the list of these names and mutually agree upon three, four, six, or any number they desire, and these sit and listen to the evidence presented by B and C, and their unanimous decision is binding upon both parties. There are no decisions upon complicated questions of law to be appealed from to higher courts, and so higher courts are unnecessary. Justice is no longer hedged in by endless petty forms. Most small civil cases are left by the parties interested the judgment of one man, who carefully investigates the matter and decides.

“In the time of the State justice was too good a thing for common, everyday use; in fact it was seldom used at all. It was personified and placed on a bright pedestal where it might be admired as a beautiful image. Then, that the people might not get at it, it was hedged in with law, and fenced in with lawyers and judges, and to make this hedge and fence stronger was the constant aim of legislatures and congresses. The shadow, even, of justice could not fall outside of the enclosure in which it was so sacredly kept.

“‘Legal’ is a word no longer used. ‘Is it just?’ is asked, instead of ‘is it legal:’ Justice always meant more than law, never mind how numerous laws were, and if a thing were legal, that was enough. If justice instead of law had defined the bounds of right and wrong, people would have questioned whether a thing were just before doing an injury to a fellow being. I think it was Coleridge who said there could be no definition of right and wrong except in the technical language of the courts. If ‘technical language’ were omitted, this would be true. It is for no man or number of men to decide upon a question and settle it for all time, saying ‘this shall be right’ and ‘this shall be wrong.’ As I said before, every case in which is raised the question of right or wrong has about it peculiar circumstances which must decide. So long as nature knows no absolute right or wrong, man will know none, and nature will always act, as she acts now and ever has acted, upon the impulse of the moment. Forces which have been at work through all time determine such acts, but nothing determines that these forces shall cause such acts. That they do is enough. Why should they not? Why should we suppose a controlling hand? Every man, when he is about to act, must decide for that time whether such act will be just. There is no absolute justice by which he can measure his act. Still, there is justice in the world, but it is simply an ever-varying phase of human nature. The moment you define justice, that moment it ceases to be justice. This—the defining of justice—was the greatest fault of the State; this was the greatest barrier to liberty; this was the greatest barrier to human happiness; this was the greatest curse of the human race.

“The people of your time could see that nature acted well without an outside controlling power. They could see, too, that man was a part of nature, and with the other part of nature acted spontaneously. But they could not see that man needed no outside hand to guide him. ‘God and the State!’ Well did Bakounine connect them. One is as absurd as the other. One is as unnecessary as the other.”

Mr. De Demain was becoming excited and blasphemous, and I checked him, and as the hour was quite late, he took leave of me. What he said seems, to glance at it hastily, very sensible, but I shall give it more thought, and I trust that you, my dear Louise, will do the same.


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About Shawn P. Wilbur 2132 Articles
Independent scholar, translator and archivist.