North America — Volume 2

by Anthony Trollope

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.