THE LAW COURTS AND LAWYERS OF THE UNITED STATES.
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
endeavour 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, honoured 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 splendour 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 practising 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 favour
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 for 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 neighbour,
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 further than the 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 endeavouring 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 specialities. 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
is 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 decisions of their judges. For not only are the
national judges and the 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 offence, 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, immoveable
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 £1300 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 antidemocratic 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 behaviour. 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 favourite 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 practise 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 £600 to about £1000 per
annum. But a successful lawyer practising in the courts in which
these judges sit, not unfrequently earns £3000 a year. A professional
income of £2000 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 in-judges; 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.