CHAPTER XI. THE LAW COURTS AND LAWYERS OF THE UNITED STATES.
I do not propose to make any attempt to explain in detail the practices and rules of the American courts of law. No one but a lawyer should trust himself with such a task, and no lawyer would be enabled to do so in the few pages which I shall here devote to the subject. 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.