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 endeavor 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, honored 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 splendor 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 practicing
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 favor 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 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.
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