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.
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