North America — Volume 2

by Anthony Trollope

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. But now, at the present moment, there is arising a strong feeling of the inexpediency of appointing judges in such a manner. An antidemocratic bias is taking possession of men's minds, causing a reaction against that tendency to universal suffrage in everything which prevailed before the war began. As to this matter of the mode of appointing judges, I have heard but one opinion expressed; and I am inclined to think that a change will be made in one State after another, as the constitutions of the different States are revised. Such revisions take place generally at periods of about twenty-five years' duration. If, therefore, it be acknowledged that the system be bad, the error can be soon corrected.

Nor is this mode of appointment the only evil that has been adopted in the State judicatures. The judges in most of the States are not appointed for life, nor even during good behaviour. They enter their places for a certain term of years, varying from fifteen down, I believe, to seven. I do not know whether any are appointed for a term of less than seven years. When they go out they have no pensions; and as a lawyer who has been on the bench for seven years can hardly recall his practice, and find himself at once in receipt of his old professional income, it may easily be imagined how great will be the judge's anxiety to retain his position on the bench. This he can do only by the universal suffrages of the people, by political popularity, and a general standing of that nature which enables a man to come forth as the favourite candidate of the lower orders. This may or may not be well when the place sought for is one of political power,—when the duties required are political in all their bearings. But no one can think it well when the place sought for is a judge's seat on the bench;—when the duties required are solely judicial. Whatever hitherto may have been the conduct of the judges in the courts of the different States, whether or no impurity has yet crept in, and the sanctity of justice has yet been outraged, no one can doubt the tendency of such an arrangement. At present even a few visits to the courts constituted in this manner will convince an observer that the judges on the bench are rather inferior than superior to the lawyers who practise before them. The manner of address, the tone of voice, the lack of dignity in the judge, and the assumption by the lawyer before him of a higher authority than his, all tell this tale. And then the judges in these courts are not paid at a rate which will secure the services of the best men. They vary in the different States, running from about £600 to about £1000 per annum. But a successful lawyer practising in the courts in which these judges sit, not unfrequently earns £3000 a year. A professional income of £2000 a year is not considered very high. When the different conditions of the bench are considered, when it is remembered that the judge may lose his place after a short term of years, and that during that short term of years he receives a payment much less than that earned by his successful professional brethren, it can hardly be expected that first-rate judges should be found. The result is seen daily in society. You meet Judge This and Judge That, not knowing whether they are ex-judges or in-judges; but you soon learn that your friends do not hold any very high social position on account of their forensic dignity.

It is, perhaps, but just to add that in Massachusetts, which I cannot but regard as in many respects the noblest of the States, the judges are appointed by the Governor, and are appointed for life.

CHAPTER XII.

THE FINANCIAL POSITION.

The Americans are proud of much that they have done in this war, and indeed much has been done which may justify pride; but of nothing are they so proud as of the noble dimensions and quick growth of their Government debt. That Mr. Secretary Chase, the American Chancellor of the Exchequer, participates in this feeling I will not venture to say; but if he do not, he is well nigh the only man in the States who does not do so. The amount of expenditure has been a subject of almost national pride, and the two million of dollars a day which has been roughly put down as the average cost of the war, has always been mentioned by northern men in a tone of triumph. This feeling is, I think, intelligible; and although we cannot allude to it without a certain amount of inward sarcasm,—a little gentle laughing in the sleeve, at the nature of this national joy, I am not prepared to say that it is altogether ridiculous. If the country be found able and willing to pay the bill, this triumph in the amount of the cost will hereafter be regarded as having been anything but ridiculous. In private life an individual will occasionally be known to lavish his whole fortune on the accomplishment of an object which he conceives to be necessary to his honour. If the object be in itself good, and if the money be really paid, we do not laugh at such a man for the sacrifices which he makes.

For myself, I think that the object of the northern States in this war has been good. I think that they could not have avoided the war without dishonour, and that it was incumbent on them to make themselves the arbiters of the future position of the South, whether that future position shall or shall not be one of secession. This they could only do by fighting. Had they acceded to secession without a civil war, they would have been regarded throughout Europe as having shown themselves inferior to the South, and would for many years to come have lost that prestige which their spirit and energy had undoubtedly won for them; and in their own country such submission on their part would have practically given to the South the power of drawing the line of division between the two new countries. That line, so drawn, would have given Virginia, Maryland, Kentucky, and Missouri to the southern Republic. The great effect of the war to the North will be, that the northern men will draw the line of secession, if any such line be drawn. I still think that such line will ultimately be drawn, and that the southern States will be allowed to secede. But if it be so, Virginia, Maryland, Kentucky, and Missouri will not be found among these seceding States; and the line may not improbably be driven south of North Carolina and Tennessee. If this can be so, the object of the war will, I think, hereafter be admitted to have been good. Whatever may be the cost in money of joining the States which I have named to a free-soil northern people, instead of allowing them to be buried in that dismal swamp, which a confederacy of southern slave States will produce, that cost can hardly be too much. At the present moment there exists in England a strong sympathy with the South, produced partly by the unreasonable vituperation with which the North treated our Government at the beginning of the war, and by the capture of Mason and Slidell; partly also by that feeling of good-will which a looker-on at a combat always has for the weaker side. But, although this sympathy does undoubtedly exist, I do not imagine that many Englishmen are of opinion that a confederacy of southern slave States will ever offer to the general civilization of the world very many attractions. It cannot be thought that the South will equal the North in riches, in energy, in education, or general well-being. Such has not been our experience of any slave country; such has not been our experience of any tropical country; and such especially has not been our experience of the southern States of the North American Union. I am no abolitionist; but to me it seems impossible that any Englishman should really advocate the cause of slavery against the cause of free soil. There are the slaves, and I know that they cannot be abolished,—neither they nor their chains; but, for myself, I will not willingly join my lot with theirs. I do not wish to have dealings with the African negro either as a free man or as a slave, if I can avoid them, believing that his employment by me in either capacity would lead to my own degradation.[*] Such, I think, are the feelings of Englishmen generally on this matter. And if such be the case, will it not be acknowledged that the northern men have done well to fight for a line which shall add five or six States to that Union which will in truth be a union of free men, rather than to that Confederacy which, even if successful, must owe its success to slavery?

*In saying this I fear that I shall be misunderstood, let me use what foot-note or other mode of protestation I may to guard myself. In thus speaking of the African negro, I do not venture to despise the work of God's hands. That He has made the negro, for His own good purposes, as He has the Esquimaux, I am aware. And I am aware that it is my duty, as it is the duty of us all, to see that no injury be done to him, and, if possible, to assist him in his condition. When I declare that I desire no dealings with the negro, I speak of him in the position in which I now find him, either as a free servant or a slave. In either position he impedes the civilization and the progress of the white man. [back]