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.
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