I do not propose to make any attempt to explain in detail the practices and rules of the American courts of law. No one but a lawyer should trust himself with such a task, and no lawyer would be enabled to do so in the few pages which I shall here devote to the subject. My present object is to explain, as far as I may be able to do so, the existing political position of the country. As this must depend more or less upon the power vested in the hands of the judges, and upon the tenure by which those judges hold their offices, I shall endeavor to describe the circumstances of the position in which the American judges are placed; the mode in which they are appointed; the difference which exists between the National judges and the State judges, and the extent to which they are or are not held in high esteem by the general public whom they serve.
It will, I think, be acknowledged that this last matter is one of almost paramount importance to the welfare of a country. At home in England we do not realize the importance to us in a political as well as social view of the dignity and purity of our judges, because we take from them all that dignity and purity can give as a matter of course. The honesty of our bench is to us almost as the honesty of heaven. No one dreams that it can be questioned or become questionable, and therefore there are but few who are thankful for its blessings. Few Englishmen care to know much about their own courts of law, or are even aware that the judges are the protectors of their liberties and property. There are the men, honored on all sides, trusted by every one, removed above temptation, holding positions which are coveted by all lawyers. That it is so is enough for us; and as the good thence derived comes to us so easily, we forget to remember that we might possibly be without it. The law courts of the States have much in their simplicity and the general intelligence of their arrangements to recommend them. In all ordinary causes justice is done with economy, with expedition, and I believe with precision. But they strike an Englishman at once as being deficient in splendor and dignity, as wanting that reverence which we think should be paid to words falling from the bench, and as being in danger as to that purity without which a judge becomes a curse among a people, a chief of thieves, and an arch-minister of the Evil One. I say as being in danger; not that I mean to hint that such want of purity has been shown, or that I wish it to be believed that judges with itching palms do sit upon the American bench; but because the present political tendency of the State arrangements threatens to produce such danger. We in England trust implicitly in our judges — not because they are Englishmen, but because they are Englishmen carefully selected for their high positions. We should soon distrust them if they were elected by universal suffrage from all the barristers and attorneys practicing in the different courts; and so elected only for a period of years, as is the case with reference to many of the State judges in America. Such a mode of appointment would, in our estimation, at once rob them of their prestige. And our distrust would not be diminished if the pay accorded to the work were so small that no lawyer in good practice could afford to accept the situation. When we look at a judge in court, venerable beneath his wig and adorned with his ermine, we do not admit to ourselves that that high officer is honest because he is placed above temptation by the magnitude of his salary. We do not suspect that he, as an individual, would accept bribes and favor suitors if he were in want of money. But, still, we know as a fact that an honest man, like any other good article, must be paid for at a high price. Judges and bishops expect those rewards which all men win who rise to the highest steps on the ladder of their profession. And the better they are paid, within measure, the better they will be as judges and bishops. Now, the judges in America are not well paid, and the best lawyers cannot afford to sit upon the bench.
With us the practice of the law and the judicature of our law courts are divided. We have chancery barristers and common law barristers; and we have chancery courts and courts of common law. In the States there is no such division. It prevails neither in the National or Federal courts of the United States, nor in the courts of any of the separate States. The code of laws used by the Americans is taken almost entirely from our English laws — or rather, I should say, the Federal code used by the nation is so taken, and also the various codes of the different States — as each State takes whatever laws it may think fit to adopt. Even the precedents of our courts are held as precedents in the American courts, unless they chance to jar against other decisions given specially in their own courts with reference to cases of their own. In this respect the founders of the American law proceedings have shown a conservation bias and a predilection for English written and traditional law which are much at variance with that general democratic passion for change by which we generally presume the Americans to have been actuated at their Revolution. But though they have kept our laws, and still respect our reading of those laws, they have greatly altered and simplified our practice. Whether a double set of courts of law and equity are or are not expedient, either in the one country or in the other, I do not pretend to know. It is, however, the fact that there is no such division in the States.
Moreover, there is no division in the legal profession. With us we have barristers and attorneys. In the States the same man is both barrister and attorney; and — which is perhaps in effect more startling — every lawyer is presumed to undertake law cases of every description. The same man makes your will, sells your property, brings an action for you of trespass against your neighbor, defends you when you are accused of murder, recovers for you two and sixpence, and pleads for you in an argument of three days’ length when you claim to be the sole heir to your grandfather’s enormous property. I need not describe how terribly distinct with us is the difference between an attorney and a barrister, or how much farther than poles asunder is the future Lord Chancellor, pleading before the Lords Justices at Lincoln’s Inn, from the gentleman who, at the Old Bailey, is endeavoring to secure the personal liberty of the ruffian who, a week or two since, walked off with all your silver spoons. In the States no such differences are known. A lawyer there is a lawyer, and is supposed to do for any client any work that a lawyer may be called on to perform. But though this is the theory — and as regards any difference between attorney and barrister is altogether the fact — the assumed practice is not, and cannot be, maintained as regards the various branches of a lawyer’s work. When the population was smaller, and the law cases were less complicated, the theory and the practice were no doubt alike. As great cities have grown up, and properties large in amount have come under litigation, certain lawyers have found it expedient and practicable to devote themselves to special branches of their profession. But this, even up to the present time, has not been done openly, as it were, or with any declaration made by a man as to his own branch of his calling. I believe that no such declaration on his part would be in accordance with the rules of the profession. He takes a partner, however, and thus attains his object; or more than one partner, and then the business of the house is divided among them according to their individual specialties. One will plead in court, another will give chamber counsel, and a third will take that lower business which must be done, but which first-rate men hardly like to do.
It will easily be perceived that law in this way will be made cheaper to the litigant. Whether or no that may be an unadulterated advantage, I have my doubts. I fancy that the united professional incomes of all the lawyers in the States would exceed in amount those made in England. In America every man of note seems to be a lawyer; and I am told that any lawyer who will work may make a sure income. If it be so, it would seem that Americans per head pay as much (or more) for their law as men do in England. It may be answered that they get more law for their money. That may be possible, and even yet they may not be gainers. I have been inclined to think that there was an unnecessarily slow and expensive ceremonial among us in the employment of barristers through a third party; it has seemed that the man of learning, on whose efforts the litigant really depends, is divided off from his client and employer by an unfair barrier, used only to enhance his own dignity and give an unnecessary grandeur to his position. I still think that the fault with us lies in this direction. But I feel that I am less inclined to demand an immediate alteration in our practice than I was before I had seen any of the American courts of law.
It should be generally understood that lawyers are the leading men in the States, and that the governance of the country has been almost entirely in their hands ever since the political life of the nation became full and strong. All public business of importance falls naturally into their hands, as with us it falls into the hands of men of settled wealth and landed property. Indeed, the fact on which I insist is much more clear and defined in the States than it is with us. In England the lawyers also obtain no inconsiderable share of political and municipal power. The latter is perhaps more in the hands of merchants and men in trade than of any other class; and even the highest seats of political greatness are more open with us to the world at large than they seem to be in the States to any that are not lawyers. Since the days of Washington every President of the United States has, I think, been a lawyer, excepting General Taylor. Other Presidents have been generals, but then they have also been lawyers. General Jackson was a successful lawyer. Almost all the leading politicians of the present day are lawyers. Seward, Cameron, Welles, Stanton, Chase, Sumner, Crittenden, Harris, Fessenden, are all lawyers. Webster, Clay, Calhoun, and Cass were lawyers. Hamilton and Jay were lawyers. Any man with an ambition to enter upon public life becomes a lawyer as a matter of course. It seems as though a study and practice of the law were necessary ingredients in a man’s preparation for political life. I have no doubt that a very large proportion of both houses of legislature would be found to consist of lawyers. I do not remember that I know of the circumstance of more than one Senator who is not a lawyer. Lawyers form the ruling class in America, as the landowners do with us. With us that ruling class is the wealthiest class; but this is not so in the States. It might be wished that it were so.
The great and ever-present difference between the National or Federal affairs of the United States government and the affairs of the government of each individual State, should be borne in mind at all times by those who desire to understand the political position of the States. Till this be realized no one can have any correct idea of the bearings of politics in that country. As a matter of course we in England have been inclined to regard the government and Congress of Washington as paramount throughout the States, in the same way that the government of Downing Street and the Parliament of Westminster are paramount through the British isles. Such a mistake is natural; but not the less would it be a fatal bar to any correct understanding of the Constitution of the United States. The National and State governments are independent of each other, and so also are the National and State tribunals. Each of these separate tribunals has its own judicature, its own judges, its own courts, and its own functions. Nor can the supreme tribunal at Washington exercise any authority over the proceedings of the courts in the different States, or influence the decision of their judges. For not only are the National judges and State judges independent of each other, but the laws in accordance with which they are bound to act may be essentially different. The two tribunals — those of the nation and of the State — are independent and final in their several spheres. On a matter of State jurisprudence no appeal lies from the supreme tribunal of New York or Massachusetts to the supreme tribunal of the nation at Washington.
The National tribunals are of two classes. First, there is the Supreme Court specially ordained by the Constitution. And then there are such inferior courts as Congress may from time to time see fit to establish. Congress has no power to abolish the Supreme Court, or to erect another tribunal superior to it. This court sits at Washington, and is a final court of appeal from the inferior national courts of the Federal empire. A system of inferior courts, inaugurated by Congress, has existed for about sixty years. Each State for purposes of national jurisprudence is constituted as a district; some few large States, such as New York, Pennsylvania, and Illinois, being divided into two districts. Each district has one district court, presided over by one judge. National causes in general, both civil and criminal, are commenced in these district courts, and those involving only small amounts are ended there. Above these district courts are the National circuit courts, the districts or States having been grouped into circuits as the counties are grouped with us. To each of these circuits is assigned one of the judges of the Supreme Court of Washington, who is the ex-officio judge of that circuit, and who therefore travels as do our common law judges. In each district he sits with the judge of that district, and they two together form the circuit court. Appeals from the district court lie to the circuit court in cases over a certain amount, and also in certain criminal cases. It follows therefore that appeals lie from one judge to the same judge when sitting with another — an arrangement which would seem to be fraught with some inconvenience. Certain causes, both civil and criminal, are commenced in the circuit courts. From the circuit courts the appeal lies to the Supreme Court at Washington; but such appeal beyond the circuit court is not allowed in cases which are of small magnitude or which do not involve principles of importance. If there be a division of opinion in the circuit court the case goes to the Supreme Court; from whence it might be inferred that all cases brought from the district court to the circuit court would be sent on to the Supreme Court, unless the circuit judge agreed with the district judge; for the district judge having given his judgment in the inferior court, would probably adhere to it in the superior court. No appeal lies to the Supreme Court at Washington in criminal cases.
All questions that concern more than one State, or that are litigated between citizens of different States, or which are international in their bearing, come before the national judges. All cases in which foreigners are concerned, or the rights of foreigners, are brought or may be brought into the national courts. So also are all causes affecting the Union itself, or which are governed by the laws of Congress and not by the laws of any individual State. All questions of admiralty law and maritime jurisdiction, and cases affecting ambassadors or consuls, are there tried. Matters relating to the post-office, to the customs, the collection of national taxes, to patents, to the army and navy, and to the mint, are tried in the national courts. The theory is, that the national tribunals shall expound and administer the national laws and treaties, protect national offices and national rights; and that foreigners and citizens of other States shall not be required to submit to the decisions of the State tribunals; in fact, that national tribunals shall take cognizance of all matters as to which the general government of the nation is responsible. In most of such cases the national tribunals have exclusive jurisdiction. In others it is optional with the plaintiff to select his tribunal. It is then optional with the defendant, if brought into a State court, to remain there or to remove his cause into the national tribunal. The principle is, that either at the beginning, or ultimately, such questions shall or may be decided by the national tribunals. If in any suit properly cognizable in a State court the decision should turn on a clause in the Constitution, or on a law of the United States, or on the act of a national offense, or on the validity of a national act, an appeal lies to the Supreme Court of the United States and to its officers. The object has been to give to the national tribunals of the nation full cognizance of its own laws, treaties, and congressional acts.
The judges of all the national tribunals, of whatever grade or rank, hold their offices for life, and are removable only on impeachment. They are not even removable on an address of Congress; thus holding on a firmer tenure even than our own judges, who may, I believe, be moved on an address by Parliament. The judges in America are not entitled to any pension or retiring allowances; and as there is not, as regards the judges of the national courts, any proviso that they shall cease to sit after a certain age, they are in fact immovable whatever may be their infirmities. Their position in this respect is not good, seeing that their salaries will hardly admit of their making adequate provision for the evening of life. The salary of the Chief Justice of the United States is only 1300l. per annum. All judges of the national courts, of whatever rank, are appointed by the President, but their appointments must be confirmed by the Senate. This proviso, however, gives to the Senate practically but little power, and is rarely used in opposition to the will of the President. If the President name one candidate, who on political grounds is distasteful to a majority of the Senate, it is not probable that a second nomination made by him will be more satisfactory. This seems now to be understood, and the nomination of the cabinet ministers and of the judges, as made by the President, are seldom set aside or interfered with by the Senate, unless on grounds of purely personal objection.
The position of the national judges as to their appointments and mode of tenure is very different from that of the State judges, to whom in a few lines I shall more specially allude. This should, I think, be specially noticed by Englishmen when criticising the doings of the American courts. I have observed statements made to the effect that decisions given by American judges as to international or maritime affairs affecting English interests could not be trusted, because the judges so giving them would have been elected by popular vote, and would be dependent on the popular voice for reappointment. This is not so. Judges are appointed by popular vote in very many of the States. But all matters affecting shipping and all questions touching foreigners are tried in the national courts before judges who have been appointed for life. I should not myself have had any fear with reference to the ultimate decision in the affair of Slidell and Mason had the “Trent” been carried into New York. I would, however, by no means say so much had the cause been one for trial before the tribunals of the State of New York.
I have been told that we in England have occasionally fallen into the error of attributing to the Supreme Court at Washington a quasi political power which it does not possess. This court can give no opinion to any department of the government, nor can it decide upon or influence any subject that has not come before it as a regularly litigated case in law. Though especially founded by the Constitution, it has no peculiar power under the Constitution, and stands in no peculiar relation either to that or to acts of Congress. It has no other power to decide on the constitutional legality of an act of Congress or an act of a State legislature, or of a public officer, than every court, State and National, high and low, possesses and is bound to exercise. It is simply the national court of last appeal.
In the different States such tribunals have been established as each State by its constitution and legislation has seen fit to adopt. The States are entirely free on this point. The usual course is to have one Supreme Court, sometimes called by that name, sometimes the Court of Appeals, and sometimes the Court of Errors. Then they have such especial courts as their convenience may dictate. The State jurisprudence includes all causes not expressly or by necessary implication secured to the national courts. The tribunals of the States have exclusive control over domestic relations, religion, education, the tenure and descent of land, the inheritance of property, police regulations, municipal economy, and all matters of internal trade. In this category, of course, come the relations of husband and wife, parent and child, master and servant, owner and slave, guardian and ward, tradesman and apprentice. So also do all police and criminal regulations not external in their character — highways, railroads, canals, schools, colleges, the relief of paupers, and those thousand other affairs of the world by which men are daily surrounded in their own homes and their own districts. As to such subjects Congress can make no law, and over them Congress and the national tribunals have no jurisdiction. Congress cannot say that a man shall be hung for murder in New York, nor if a man be condemned to be hung in New York can the President pardon him. The legislature of New York must say whether or no hanging shall be the punishment adjudged to murder in that State; and the Governor of the State of New York must pronounce the man’s pardon — if it be that he is to be pardoned. But Congress must decide whether or no a man shall be hung for murder committed on the high seas, or in the national forts or arsenals; and in such a case it is for the President to give or to refuse the pardon.
The judges of the States are appointed as the constitution or the laws of each State may direct in that matter. The appointments, I think, in all the old States, were formerly vested in the governor. In some States such is still the case. In some, if I am not mistaken, the nomination is now made, directly, by the legislature. But in most of the States the power of appointing has been claimed by the people, and the judges are voted in by popular election, just as the President of the Union and the Governors of the different States are voted in. There has for some years been a growing tendency in this direction, and the people in most of the States have claimed the power — or rather the power has been given to the people by politicians who have wished to get into their hands, in this way, the patronage of the courts. But now, at the present moment, there is arising a strong feeling of the inexpediency of appointing judges in such a manner. An anti-democratic bias is taking possession of men’s minds, causing a reaction against that tendency to universal suffrage in everything which prevailed before the war began. As to this matter of the mode of appointing judges, I have heard but one opinion expressed; and I am inclined to think that a change will be made in one State after another, as the constitutions of the different States are revised. Such revisions take place generally at periods of about twenty-five years’ duration. If, therefore, it be acknowledged that the system be bad, the error can be soon corrected.
Nor is this mode of appointment the only evil that has been adopted in the State judicatures. The judges in most of the States are not appointed for life, nor even during good behavior. They enter their places for a certain term of years, varying from fifteen down, I believe, to seven. I do not know whether any are appointed for a term of less than seven years. When they go out they have no pensions; and as a lawyer who has been on the bench for seven years can hardly recall his practice, and find himself at once in receipt of his old professional income, it may easily be imagined how great will be the judge’s anxiety to retain his position on the bench. This he can do only by the universal suffrages of the people, by political popularity, and a general standing of that nature which enables a man to come forth as the favorite candidate of the lower orders. This may or may not be well when the place sought for is one of political power — when the duties required are political in all their bearings. But no one can think it well when the place sought for is a judge’s seat on the bench — when the duties required are solely judicial. Whatever hitherto may have been the conduct of the judges in the courts of the different States, whether or no impurity has yet crept in, and the sanctity of justice has yet been outraged, no one can doubt the tendency of such an arrangement. At present even a few visits to the courts constituted in this manner will convince an observer that the judges on the bench are rather inferior than superior to the lawyers who practice before them. The manner of address, the tone of voice, the lack of dignity in the judge, and the assumption by the lawyer before him of a higher authority than his, all tell this tale. And then the judges in these courts are not paid at a rate which will secure the services of the best men. They vary in the different States, running from about 600l. to about 1000l. per annum. But a successful lawyer, practicing in the courts in which these judges sit, not unfrequently earns 3000l. a year. A professional income of 2000l. a year is not considered very high. When the different conditions of the bench are considered, when it is remembered that the judge may lose his place after a short term of years, and that during that short term of years he receives a payment much less than that earned by his successful professional brethren, it can hardly be expected that first-rate judges should be found. The result is seen daily in society. You meet Judge This and Judge That, not knowing whether they are ex-judges or injudges; but you soon learn that your friends do not hold any very high social position on account of their forensic dignity.
It is, perhaps, but just to add that in Massachusetts, which I cannot but regard as in many respects the noblest of the States, the judges are appointed by the Governor, and are appointed for life.
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