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.
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