the constitution, emanate from the judges of this exalted tribunal.
When it is thought necessary that the constitution of any particular
state should be altered or amended, the legislature authorizes the
people to express their opinions as to whether they are or are not in
favour of calling a general convention. This is usually arranged at the
time of a general election. If there be a majority in favour of the
convention, the legislature then calls upon the people to elect persons
to serve as members or delegates, and it fixes the time of meeting.
If any amendments are made by the convention, they are submitted to
the people for their approval; and if a majority decide upon their
adoption, they forthwith become part of the constitution.
When it is considered that the supreme court has a federal jurisdiction
extending over a union of twenty-four states, many of them as large
or larger than England, whose humble and individual importance are
increasing, and which are divided and subdivided by party, and by
conflicting and annually arising interests, and which are becoming
more and more democratic in every succeeding year, and consequently
more and more opposed to the spirit in which the constitution was
originally framed, some idea may be formed of the importance that is
attached to the decisions of this court, whose authorities, from first
to last, are intended as a safeguard to the Union. The independence
of this court, and, in fact, of all the federal judiciary, may be
termed the sheet anchor of the United States. Its power constitutes
their chief hope; the abuse of it is the only medium of tyranny, and
is therefore the principal source of apprehension. The judges of all
the federal courts hold their offices during good behaviour, and are
removable only by impeachment. It would reasonably be supposed that the
individual states would follow the example of the general government in
the appointment of their judges; but this is not the case. In seven of
the states they are elected for a term of years only; in Rhode Island
they are elected annually; in five of the states they are obliged to go
out of office at sixty, sixty-five, or seventy years of age. This law
in the enlightened state of New York has deprived it of the valuable
services of Chancellor Kent, the author of the admirable Commentaries
on the laws of America. There are many democrats who actually wish that
the judges of the supreme court should be elected for a term of years
only. This custom is notoriously productive of sufficient hardships in
some of the more remote states, where, on account of the smallness of
the salary, amounting to not more than two or three hundred pounds, the
bench is sometimes filled by young and inexperienced men, who are the
children of party, and whose decisions must be occasionally affected by
the hope of re-election.
Entailed estates are but little known in the United States: in South
Carolina, Georgia, and Louisiana, not at all. In many of the states
they are nothing in effect but an estate in fee; the limitation in
tail being of no value, except it be in special tail. But in all cases
estates tail may be barred by a simple deed of bargain and sale, and
which is, in fact, the almost universal assurance; lease and release
being but little known. In other respects the doctrine of the statutes
of uses is in full operation, excepting in the state of New York, where
it has been discontinued since the new code passed in 1829.
The proceedings of the courts of equity are for the most part similar
to those practised in England. Many of the states have chancellors,
whose offices are held like those of the other judges. The state
of New York had just been obliged to appoint a vice-chancellor, on
account of the increase of business. The duties of the chancellor,
as far as they go, are the same as those of the lord chancellor of
England; but in many of the states the jurisdiction in bankruptcy or
insolvency is separate. The terms bankruptcy and insolvency are used
indiscriminately, although the distinction is of course generally known
and understood among lawyers. By the articles of the constitution, the
general government is enabled to pass uniform laws on the subject of
bankruptcy. No general bankrupt law has, however, been passed, although
such a measure has been often contemplated. In the United States a
proportion of the people, large beyond that of any other country, is
engaged more or less in traffic of some kind or other in the course of
the year, and the difficulty of coming to any equitable decision as
to who may or may not be considered a bankrupt, has been the reason
why no general law on the subject has been passed by the federal
congress. The states likewise have the power of passing bankrupt
laws; but they would only be productive of confusion, as they would
not be allowed to have the effect of rescinding a contract between
citizens of different states; the supreme court having decided that
a discharge under the bankrupt or insolvent laws of one state, could
not affect contracts made or to be executed in another. As a matter
of necessity, the states have insolvent laws of their own, which are
generally recognized and respected in all of them as far as they
conveniently can be. In some cases the person only, not the debt,
is released by them; in others, the debt is discharged, but future
acquisitions by gift, devise, or descent, are liable, though not the
produce of future industry. The whole law on the subject of bail in
the United States is much the same as that of England. A debtor to the
United States can only be released by obtaining a release under the
United States’ insolvent law. In order to be enabled to apply for a
release under the insolvent laws of any particular state, a debtor must
have resided in that state for a certain period, generally one year;
and on the surrender of all property (if he has any), he obtains a
discharge from prison, which is also a discharge from the debt itself,
and as a personal discharge, is respected throughout the Union; but
as a discharge from the debt, it often operates as such only in the
state that grants the discharge. Between citizens of the same state it
releases the debt as well as the person; between citizens of different
states, or between a citizen and a foreigner, or between foreigners,
the discharge depends on circumstances. If the suit be brought in the
courts of any particular state, and the party has been released by the
laws of that state, the debt is considered equally cancelled as if the
controversy had been between citizens of the same state. If the debtor
to the United States has applied for, and obtained the benefit of the
United States’ insolvent law, it can only be in cases where a judgment
has been obtained against him, and he has been taken in execution. He
must, however, remain in prison for thirty days, and surrender all his
property, which he must swear does not exceed thirty dollars, over and
above his necessary wearing apparel; for if he has property beyond that
amount, he cannot obtain the benefit of this law. By this discharge,
the person only is released, so that property subsequently obtained
from any source is responsible. In all other cases of discharge, under
the insolvent laws of individual states, before noticed, the person
or the debt are discharged (as mentioned above), but still with the
reservation, that all property acquired by descent, gift, or devise,
shall be subjected to execution, but not the future acquisitions of the
debtor by other means.
Fugitive debtors from other countries can be sued and imprisoned only
as if they were citizens of America, that is, by exhibiting against
them a bailable cause of action. They must remain in prison, if taken
immediately on their arrival, until entitled by a residence in the
state (usually for one year) to apply for the benefit of the insolvent
laws. State citizenship is required only in a few of the states, the
more general law being, that they may be discharged after a year’s
residence in the state in which they happen to be sued, whether they
have become citizens or not. Foreigners become citizens of the United
States after five years’ residence. The acts of naturalization, the
last of which was passed in 1816, require that an oath be taken before
a state-court by a foreigner of good moral character three years before
his admission, of his intention to become a citizen, and to renounce
his native allegiance; and at the time of admission he must satisfy
the court, that he has resided five or six years, at least, within the
United States, and likewise take an oath to renounce and abjure his
native allegiance, and to support the constitution of the United States.
America is in some respects, a laboratory for the rest of the world.
It is the fittest region for experiment. From the first of January,
1832, imprisonment for debt has ceased in the state of New York; the
fact is, there is so much more false capital in the United States than
in England, that a creditor is not often one dollar the richer for
having put his debtor into confinement. The example, if it succeed,
will probably soon be followed in Massachusetts, where there is a
strong party in favour of a similar experiment. Whilst I was in that
state, a meeting was held at Boston, to consider of its propriety; but
the united arguments of many speakers, tended to prove nothing more
than what was most probably acknowledged beforehand, by three-fourths
of those who heard them, and into which all that can be said on the
subject must ultimately resolve itself, namely, that the sufferings
of an innocent debtor are highly unjust, and much to be lamented; but
that it would be very objectionable to have no means of confining one
whose conduct had been fraudulent. By the constitution of the state
of Illinois, imprisonment for debt is disallowed, except in cases of
fraud, or the refusal of the debtor to deliver up his property for the
benefit of his creditors.
The question as to the power of any court or officer to remove a child
from his parents on account of their misconduct, remains unsettled;
but if either of the parents were dead, and the survivor an unsuitable
person to take care of the child, application would be made to the
orphan’s court, which exists in every state. Its authority resembles
that of the lord chancellor in cases of infants being wards of court.
Wills, both of real and personal estate, are proved there; and all
executors and administrators pass their accounts in this court, from
whose decisions an appeal lies to the chancellor. All deeds are by
law required to be registered. Wills are proved and witnessed as in
England; and a similar law prevents a witness from taking a legacy.
A case of fraud used in obtaining a will, the only fraud of which
the English court of chancery does not take notice, is decided by the
chancellor in some states; in others, it is usual to send it, as in
England, to a jury.
The whole law of mortgage is, generally speaking, much the same as in
England.
The proceedings in a chancery suit, differ only in the pleadings being
a little more simple: a bill for instance, contains merely the stating
and interrogating parts, and the prayer. Witnesses are examined, as in
England, upon written interrogatories. The effect of an answer and the
mode of using it in court, are also similar.
There is no such officer as an accountant-general. Masters in chancery
are known only in some of the states. Their duties are somewhat
similar; and matters are referred to any one of them whom the parties
may agree upon. In New York, I observed that “Mr. A. master in
chancery,” was almost as frequently to be seen on the door, as the
names of a counsellor and solicitor. In those states where there are
no masters in chancery, the court has a “Permanent Auditor,” who
discharges nearly all the duties assigned to the masters in England.
The form of an action, the pleadings, and the method of obtaining
evidence, are essentially the same as those used in England, generally.
In some states the action of ejectment is unknown; in others, it
has merely undergone some modification. Real actions, such as writs
of right, writs of entry, are much used; the period of limitation
has, however, been altered from that of England. The English law
of prescription is acknowledged, with a very few necessarily
constitutional exceptions. The period of limitation allowed in an
action of assumpsit, also varies in different states; in some it is
three years, in others it is six, as in England. Where the action of
ejectment is in use, the period of limitation is in some states twenty
years, as in England; in others, seven years is thought sufficient.
Juries are generally constituted as in England, with the exception of
special juries, which are never formed.
Throughout the United States a counsellor is allowed to make a speech
for the prisoner, and act generally in his behalf, as in a civil cause.
Every state in the Union has its rules for the admission of
counsellors, solicitors, and attorneys. They generally require that
a student shall have studied law with some counsellor for at least
three years. On application for an admission as an attorney, the
court usually appoints three gentlemen of the bar to examine into the
moral and legal qualifications of the applicant. If he be previously
and favourably known to them, the examination is almost nominal. If
he be unknown, or be known, but with unfavourable impressions, the
examination is proportionably more strict. When admitted as either
counsellor or solicitor, he can generally practise in both characters,
the distinction being nominal, excepting in the supreme court of the
United States, where no person can be counsellor and solicitor at
the same time. In the country particularly, it is usual for a lawyer
to assume the duties of attorney, conveyancer, proctor, solicitor,
and counsellor; but after having practised some time, he usually
confines himself to the practice of a counsellor only. A barrister
and solicitor are frequently partners: as I have before remarked,
it would be impossible for any practitioner to obtain a livelihood,
excepting in the larger towns, without exercising his abilities in
both capacities. For the “materiel” of a great part of the foregoing
remarks I am indebted to the kind and able assistance of a gentleman of
the Baltimore bar, and I have endeavoured that their accuracy should
not suffer under my pen.
It would be tedious to enter into any detail of the different state
constitutions. It is sufficient to remark, that their affairs
are usually administered by a governor, a senate, and a house of
representatives. The executive authority is vested in the governor,
who has in some states the benefit of a council. In some states he
is elected for a period of four years, but more usually for two.
The legislature consists of a senate, and house of representatives:
both, or the latter, are usually elected annually; but sometimes for
a longer period, with modifications. In the state of Rhode Island,
whose government is founded on the provisions of the charter granted
to the colony by Charles the Second in 1663, and which is the only
state in the Union that has no written constitution; the governor,
senate, and judges are elected annually; the members of the house of
representatives are elected every six months, or semi-annually, as they
term it. In general, no other qualifications are required of voters but
those of colour, age, sex, and residence. In nearly all the states the
right of suffrage is enjoyed by free white citizens, who have resided
for one year in the state, and six months in the country. In some of
the states, colour is no bar. As to age, that of twenty-one years is
the usual requisition. Every voter must of course be a citizen of the
United States.
Without entering at large upon the hackneyed subject of universal
suffrage, it may be sufficient to remark, that the intrinsic evils of
the system are more or less acknowledged by a very large proportion of
the better class of Americans, although they of course diminish in the
same ratio with the increase of virtue and intelligence; the objection
is not merely, that the uncultivated and the ignorant part of the
community should be allowed the unqualified right of suffrage; but it
lies in the corrupt influence to which it is open. Both the rich and
the poor man have rights to be protected; but it must be unreasonable,
that the wealthy and enlightened should be controlled by the needy.
The object of my charity goes to the poll; and not only exercises as
much political liberty as myself, but a great deal more; because the
poorer classes being the more numerous, the government is, in effect,
under their direction. If in addition to this it be considered, that
they must frequently vote in compliance with the wishes of a superior,
it follows, that the most corrupt, or the most successful at intrigue,
must enjoy the greatest share of political power. A person who does
not in such a country as America, gain some sort of qualification by
his industry is, surely, unworthy to be trusted with the right of
suffrage. I was informed that votes were very rarely bought with money,
and believed it; because where the voters and the candidates are so
numerous, the disbursements must be very large, and the difficulty of
concealment proportionately increased. They are rather commanded by
considerations of place; and it is very evident, that a person who
could be influenced by interest in one way, could easily be bribed in
another, were it not for the fear of detection. The system of treating
is common enough. “Why, Sir!” said an old woman to a gentleman of
South Carolina, my informant, “I guess Mr. A. is the fittest man
of the two, but t’other whiskies the best.” The influence of petty
demagogues is very great; there being usually two or three in every
village. Naturalized foreigners, as a body of voters, possess great
power in some places: in New York, where there are said to be nearly
30,000 Irish, their influence over the elections is much complained of.
The house of representatives of the United States is composed of
members chosen every second year, by the people of the several states.
In Virginia and Kentucky they are voted for, _vivâ voce_, and not by
ballot, as in the other states. At present, one member is returned
for every forty thousand persons, five slaves in the slave states
counting as three whites. The present number is 216. As the number of
representatives might be too large, in consequence of the increasing
population, the constitution provides that the number should not
exceed one for every 30,000, but that no state shall be without a
representative. As the minimum only is there mentioned, the federal
congress has the power of extending the number of electors necessary
for the return of a member.
The senate of the United States is composed of two members from each
state. They are chosen by the legislature of the several states, for
the term of six years; one-third of them being elected every two years.
The only qualifications necessary for a senator are—that he be thirty
years of age, in conformity with the age of the Roman senator; and that
he have been for nine years a citizen of the United States, and an
inhabitant of the state for which he is elected.
The qualifications required of a member of the house of
representatives are—that he be twenty-five years of age; seven years a
citizen of the United States, and an inhabitant of the state where he
is chosen. No property qualification is required in either case; and
the consequence is, that the house of representatives is half filled
with young lawyers. The only privilege it enjoys in its legislative
character, which is not shared by the senate, is, that it has the
exclusive right of originating all money bills.
Chancellor Kent, in his Commentaries, observes, “that the great
object of the separation of the legislature into two houses, acting
separately, and with co-ordinate powers, is to destroy the evil
effects of sudden and strong excitement; and of precipitate measures,
springing from passion, caprice, prejudice, personal influence, and
party intrigue, which have been found, by sad experience, to exercise
a potent and dangerous sway in single assemblies.”
No one can, for a moment, doubt the force of these remarks. It is
the best arrangement that can be adopted in a republic: still it is
but splitting one pillar into two; the interests and inducements are
co-extensive. The senate of the United States and the British house of
lords are, or may be, equally influenced by the love of their country,
and both are intended for its protection; but the one is little more
than another house of representatives, the other a most essentially
distinct part of the government: both are bound by the ties of honour,
and the duties of both are defined and exacted by the constitution; but
those of the house of lords are dictated by the further necessity of
consulting their own security, by a proper and constant interposition
between the throne and the people. The interests of the one are the
same as those of the house of representatives, the only additional
power they enjoy consisting of an association with the president, for
the purpose of making treaties, and in the appointment of government
officers. The interests of the house of lords are identified with those
of the house of commons, not merely with reference to property up to an
extent usually far exceeding the amount of the qualifications necessary
for obtaining a seat in that house; but they purchase an additional
security to the constitution, by obliging the peers of Great Britain to
keep a watchful eye on every attempt at encroachment upon the dignity
of the crown, their own rank in the country, and their rights as
“hereditary lawgivers.” In these times, when speculation is afloat, not
as to what they will do, but as to what they dare do, how true should
they be to themselves. Their obligations are far more weighty than the
“legal presumption” (to use the words of Chancellor Kent, when speaking
of the senate with reference to the houses of representatives), “that
the senate will entertain more enlarged views of public policy, will
feel a higher and greater sense of national character, and a greater
regard for stability in the administration of the government.”