Seward is now the Minister for Foreign Affairs in the States, and it is hardly too much to say that he has made himself a laughing-stock among the diplomatists of Europe, by the mixture of his ignorance and his arrogance. His reports to his own ministers during the single year of his office, as published by himself apparently with great satisfaction, are a monument not so much of his incapacity as of his want of training for such work. We all know his long state papers on the "Trent" affair. What are we to think of a statesman who acknowledges the action of his country"s servant to have been wrong, and in the same breath declares that he would have held by that wrong, had the material welfare of his country been thereby improved?
The United States have now created a great army and a great debt.
They will soon also have created a great navy. Affairs of other nations will press upon them, and they will press against the affairs of other nations. In this way statecraft will become necessary to them; and by degrees their ministers will become habile, graceful, adroit;--and perhaps crafty, as are the ministers of other nations.
And, moreover, the United States have had no outlying colonies or dependencies, such as an India and Canada are to us, as Cuba is and Mexico was to Spain, and as were the provinces of the Roman empire.
Territories she has had, but by the peculiar beneficence of her political arrangements, these territories have a.s.sumed the guise of sovereign States, and been admitted into federal partnership on equal terms, with a rapidity which has hardly left to the central Government the reality of any dominion of its own. We are inclined to suppose that these new States have been allowed to a.s.sume their equal privileges and State rights because they have been contiguous to the old States--as though it were merely an extension of frontier.
But this has not been so. California and Oregon have been very much further from Washington than the Canadas are from London. Indeed they are still further, and I hardly know whether they can be brought much nearer than Canada is to us, even with the a.s.sistance of railways.
But nevertheless California and Oregon were admitted as States, the former as quickly and the latter much more quickly than its population would seem to justify Congress in doing, according to the received ratio of population. A preference in this way has been always given by the United States to a young population over one that was older. Oregon with its 60,000 inhabitants has one representative.
New York with 4,000,000 inhabitants has thirty-three. But in order to be equal with Oregon, New York should have sixty-six. In this way the outlying populations have been encouraged to take upon themselves their own governance, and the governing power of the President and his cabinet has been kept within moderate limits.
But not the less is the position of the President very dominant in the eyes of us Englishmen by reason of the authority with which he is endowed. It is not that the scope of his power is great, but that he is so nearly irresponsible in the exercise of that power. We know that he can be impeached by the representatives and expelled from his office by the verdict of the Senate; but this, in fact, does not amount to much. Responsibility of this nature is doubtless very necessary, and prevents ebullitions of tyranny such as those in which a Sultan or an Emperor may indulge; but it is not that responsibility which especially recommends itself to the minds of free men. So much of responsibility they take as a matter of course, as they do the air which they breathe. It would be nothing to us to know that Lord Palmerston could be impeached for robbing the Treasury, or Lord Russell punished for selling us to Austria. It is well that such laws should exist, but we do not in the least suspect those n.o.ble lords of such treachery. We are anxious to know, not in what way they may be impeached and beheaded for great crimes, but by what method they may be kept constantly straight in small matters. That they are true and honest is a matter of course. But they must be obedient also, discreet, capable, and above all things of one mind with the public.
Let them be that; or if not they, then with as little delay as may be, some others in their place. That with us is the meaning of ministerial responsibility. To that responsibility all the cabinet is subject. But in the Government of the United States there is no such responsibility. The President is placed at the head of the executive for four years, and while he there remains no man can question him. It is not that the scope of his power is great. Our own Prime Minister is doubtless more powerful,--has a wider authority. But it is that within the scope of his power the President is free from all check. There are no reins, const.i.tutional or unconst.i.tutional, by which he can be restrained. He can absolutely repudiate a majority of both Houses, and refuse the pa.s.sage of any act of Congress even though supported by those majorities. He can retain the services of ministers distasteful to the whole country. He can place his own myrmidons at the head of the army and navy,--or can himself take the command immediately on his own shoulders. All this he can do, and there is no one that can question him.
It is hardly necessary that I should point out the fundamental difference between our King or Queen, and the President of the United States. Our Sovereign, we all know, is not responsible. Such is the nature of our const.i.tution. But there is not on that account any a.n.a.logy between the irresponsibility of the Queen and that of the President. The Queen can do no wrong; but therefore, in all matters of policy and governance, she must be ruled by advice. For that advice her ministers are responsible; and no act of policy or governance can be done in England as to which responsibility does not immediately settle on the shoulders appointed to bear it. But this is not so in the States. The President is nominally responsible.
But from that every-day working responsibility, which is to us so invaluable, the President is in fact free.
I will give an instance of this. Now, at this very moment of my writing, news has reached us that President Lincoln has relieved General Maclellan from the command of the whole army, that he has given separate commands to two other generals,--to General Halleck, namely, and alas! to General Fremont, and that he has altogether altered the whole organization of the military command as it previously existed. This he did not only during war, but with reference to a special battle, for the special fighting of which he, as ex-officio Commander-in-Chief of the forces, had given orders. I do not hereby intend to criticise this act of the President"s, or to point out that that has been done which had better have been left undone. The President, in a strategetical point of view, may have been,--very probably has been, quite right. I, at any rate, cannot say that he has been wrong. But then neither can anybody else say so with any power of making himself heard. Of this action of the President"s, so terribly great in its importance to the nation, no one has the power of expressing any opinion to which the President is bound to listen. For four years he has this sway, and at the end of four years he becomes so powerless that it is not then worth the while of any demagogue in a fourth-rate town to occupy his voice with that President"s name. The anger of the country as to the things done both by Pierce and Buchanan is very bitter. But who wastes a thought upon either of these men? A past President in the United States is of less consideration than a past Mayor in an English borough. Whatever evil he may have done during his office, when out of office he is not worth the powder which would be expended in an attack.
But the President has his ministers as our Queen has hers. In one sense he has such ministers. He has high state servants who under him take the control of the various departments, and exercise among them a certain degree of patronage and executive power. But they are the President"s ministers, and not the ministers of the people. Till lately there has been no chief minister among them, nor am I prepared to say that there is any such chief at present. According to the existing theory of the government these gentlemen have simply been the confidential servants of the commonwealth under the President, and have been attached each to his own department without concerted political alliance among themselves, without any acknowledged chief below the President, and without any combined responsibility even to the President. If one minister was in fault--let us say the Postmaster-General,--he alone was in fault, and it did not fall to the lot of any other minister either to defend him, or to declare that his conduct was indefensible. Each owed his duty and his defence to the President alone; and each might be removed alone, without explanation given by the President to the others. I imagine that the late practice of the President"s cabinet has in some degree departed from this theory; but if so, the departure has sprung from individual ambition rather than from any preconcerted plan. Some one place in the cabinet has seemed to give to some one man an opportunity of making himself pre-eminent, and of this opportunity advantage has been taken. I am not now intending to allude to any individual, but am endeavouring to indicate the way in which a ministerial cabinet, after the fashion of our British cabinet, is struggling to get itself created. No doubt the position of Foreign Secretary has for some time past been considered as the most influential under the President.
This has been so much the case that many have not hesitated to call the Secretary of State the chief minister. At the present moment, May, 1862, the gentleman who is at the head of the war department has, I think, in his own hands greater power than any of his colleagues.
It will probably come to pa.s.s before long that one special minister will be the avowed leader of the cabinet, and that he will be recognized as the chief servant of the State under the President. Our own cabinet, which now-a-days seems with us to be an inst.i.tution as fixed as Parliament and as necessary as the throne, has grown by degrees into its present shape, and is not, in truth, nearly so old as many of us suppose it to be. It shaped itself, I imagine, into its present form, and even into its present joint responsibility, during the reign of George III. It must be remembered that even with us there is no such thing as a const.i.tutional Prime Minister, and that our Prime Minister is not placed above the other ministers in any manner that is palpable to the senses. He is paid no more than the others; he has no superior t.i.tle; he does not take the highest rank among them; he never talks of his subordinates, but always of his colleagues; he has a t.i.tle of his own, that of First Lord of the Treasury, but it implies no headship in the cabinet. That he is the head of all political power in the nation, the Atlas who has to bear the globe, the G.o.d in whose hands rest the thunderbolts and the showers, all men do know. No man"s position is more a.s.sured to him.
But the bounds of that position are written in no book, are defined by no law, have settled themselves not in accordance with the recorded wisdom of any great men, but as expediency and the fitness of political things in Great Britain have seemed from time to time to require. This drifting of great matters into their proper places is not as closely in accordance with the idiosyncrasies of the American people as it is with our own. They would prefer to define by words, as the French do, what shall be the exact position of every public servant connected with their Government; or rather of every public servant with whom the people shall be held as having any concern.
But nevertheless, I think it will come to pa.s.s that a cabinet will gradually form itself at Washington as it has done at London, and that of that cabinet there will be some recognized and ostensible chief.
But a Prime Minister in the United States can never take the place there which is taken here by our Premier. Over our Premier there is no one politically superior. The highest political responsibility of the nation rests on him. In the States this must always rest on the President, and any minister, whatever may be his name or a.s.sumed position, can only be responsible through the President. And it is here especially that the working of the United States system of Government seems to me deficient,--appears as though it wanted something to make it perfect and round at all points. Our ministers retire from their offices, as do the Presidents; and indeed the ministerial term of office with us, though of course not fixed, is in truth much shorter than the Presidential term of four years. But our ministers do not, in fact, ever go out. At one time they take one position, with pay, patronage, and power; and at another time another position, without these good things; but in either position they are acting as public men, and are, in truth, responsible for what they say and do. But the President, on whom it is presumed that the whole of the responsibility of the United States Government rests, goes out at a certain day, and of him no more is heard. There is no future before him to urge him on to constancy; no hope of other things beyond, of greater honours and a wider fame, to keep him wakeful in his country"s cause. He has already enrolled his name on the list of his country"s rulers, and received what reward his country can give him. Conscience, duty, patriotism may make him true to his place.
True to his place, in a certain degree, they will make him. But ambition and hope of things still to come are the moving motives in the minds of most men. Few men can allow their energies to expand to their fullest extent in the cold atmosphere of duty alone. The President of the States must feel that he has reached the top of the ladder, and that he soon will have done with life. As he goes out he is a dead man. And what can be expected from one who is counting the last lingering hours of his existence? "It will not be in my time,"
Mr. Buchanan is reported to have said, when a friend spoke to him with warning voice of the coming rebellion. "It will not be in my time." In the old days, before democracy had prevailed in upsetting that system of Presidential election which the const.i.tution had intended to fix as permanent, the Presidents were generally re-elected for a second term. Of the seven first Presidents five were sent back to the White House for a second period of four years.
But this has never been done since the days of General Jackson; nor will it be done, unless a stronger conservative reaction takes place than the country even as yet seems to promise. As things have lately ordered themselves, it may almost be said that no man in the Union would be so improbable a candidate for the Presidency as the outgoing President. And it has been only natural that it should be so. Looking at the men themselves who have lately been chosen, the fault has not consisted in their non-reelection, but in their original selection.
There has been no desire for great men; no search after a man of such a nature, that when tried the people should be anxious to keep him.
"It will not be in my time," says the expiring President. And so, without dismay, he sees the empire of his country slide away from him.
A President, with the possibility of re-election before him, would be as a minister who goes out, knowing that he may possibly come in again before the session is over,--and perhaps believing that the chances of his doing so are in his favour. Under the existing political phase of things in the United States, no President has any such prospect;--but the ministers of the President have that chance.
It is no uncommon thing at present for a minister under one President to reappear as a minister under another; but a statesman has no a.s.surance that he will do so because he has shown ministerial capacity. We know intimately the names of all our possible ministers,--too intimately as some of us think,--and would be taken much by surprise if a gentleman without an official reputation were placed at the head of a high office. If something of this feeling prevailed as to the President"s cabinet, if there were some a.s.surance that competent statesmen would be appointed as Secretaries of State, a certain amount of national responsibility would by degrees attach itself to them, and the President"s shoulders would, to that amount, be lightened. As it is, the President pretends to bear a burden which, if really borne, would indicate the possession of Herculean shoulders. But, in fact, the burden at present is borne by no one.
The government of the United States is not in truth responsible either to the people or to Congress.
But these ministers, if it be desired that they shall have weight in the country, should sit in Congress either as senators or as representatives. That they cannot so sit without an amendment of the const.i.tution I have explained in the previous chapter; and any such amendment cannot be very readily made. Without such seats they cannot really share the responsibility of the President, or be in any degree amenable to public opinion for the advice which they give in their public functions. It will be said that the const.i.tution has expressly intended that they should not be responsible, and such, no doubt, has been the case. But the const.i.tution, good as it is, cannot be taken as perfect. The government has become greater than seems to have been contemplated when that code was drawn up. It has spread itself as it were over a wider surface, and has extended to matters which it was not then necessary to touch. That theory of governing by the means of little men was very well while the government itself was small.
A President and his clerks may have sufficed when there were from thirteen to eighteen States; while there were no territories, or none at least that required government; while the population was still below five millions; while a standing army was an evil not known and not feared; while foreign politics was a troublesome embroglio in which it was quite unnecessary that the United States should take a part. Now there are thirty-four States. The territories populated by American citizens stretch from the States on the Atlantic to those on the Pacific. There is a population of thirty million souls. At the present moment the United States are employing more soldiers than any other nation, and have acknowledged the necessity of maintaining a large army even when the present troubles shall be over. In addition to this the United States have occasion for the use of statecraft with all the great kingdoms of Europe. That theory of ruling by little men will not do much longer. It will be well that they should bring forth their big men and put them in the place of rulers.
The President has at present seven ministers. They are the Secretary of State, who is supposed to have the direction of Foreign Affairs; the Secretary of the Treasury, who answers to our Chancellor of the Exchequer; the Secretaries of the Army and of the Navy; the Minister of the Interior; the Attorney-General; and the Postmaster-General.
If these officers were allowed to hold seats in one House or in the other,--or rather if the President were enjoined to place in these offices men who were known as members of Congress, not only would the position of the President"s ministers be enhanced and their weight increased, but the position also of Congress would be enhanced and the weight of Congress would be increased. I may, perhaps, best exemplify this by suggesting what would be the effect on our Parliament by withdrawing from it the men who at the present moment,--or at any moment,--form the Queen"s cabinet. I will not say that by adding to Congress the men who usually form the President"s cabinet, a weight would be given equal to that which the withdrawal of the British cabinet would take from the British Parliament. I cannot pay that compliment to the President"s choice of servants. But the relationship between Congress and the President"s ministers would gradually come to resemble that which exists between Parliament and the Queen"s ministers. The Secretaries of State and of the Treasury would after a while obtain that honour of leading the Houses which is exercised by our high political officers, and the dignity added to the positions would make the places worthy of the acceptance of great men. It is hardly so at present. The career of one of the President"s ministers is not a very high career as things now stand; nor is the man supposed to have achieved much who has achieved that position. I think it would be otherwise if the ministers were the leaders of the legislative Houses. To Congress itself would be given the power of questioning and ultimately of controlling these ministers. The power of the President would no doubt be diminished as that of Congress would be increased. But an alteration in that direction is in itself desirable. It is the fault of the present system of government in the United States that the President has too much of power and weight, while the Congress of the nation lacks power and weight. As matters now stand, Congress has not that dignity of position which it should hold; and it is without it because it is not endowed with that control over the officers of the government which our Parliament is enabled to exercise.
The want of this close connection with Congress and the President"s ministers has been so much felt, that it has been found necessary to create a medium of communication. This has been done by a system which has now become a recognized part of the machinery of the government, but which is, I believe, founded on no regularly organized authority. At any rate no provision is made for it in the const.i.tution; nor, as far as I am aware, has it been established by any special enactment or written rule. Nevertheless, I believe I am justified in saying that it has become a recognized link in the system of government adopted by the United States. In each House standing committees are named, to which are delegated the special consideration of certain affairs of state. There are, for instance, committees of foreign affairs, of finance, the judiciary committee, and others of a similar nature. To these committees are referred all questions which come before the House bearing on the special subject to which each is devoted. Questions of taxation are referred to the finance committee before they are discussed in the House; and the House, when it goes into such discussion, has before it the report of the committee. In this way very much of the work of the legislature is done by branches of each House, and by selected men whose time and intellects are devoted to special subjects. It is easy to see that much time and useless debate may be thus saved, and I am disposed to believe that this system of committees has worked efficiently and beneficially. The mode of selection of the members has been so contrived as to give to each political party that amount of preponderance in each committee which such party holds in the House.
If the democrats have in the Senate a majority, it would be within their power to vote none but democrats into the committee on finance; but this would be manifestly unjust to the republican party, and the injustice would itself frustrate the object of the party in power; therefore the democrats simply vote to themselves a majority in each committee, keeping to themselves as great a preponderance in the committee as they have in the whole House, and arranging also that the chairman of the committee shall belong to their own party. By these committees the chief legislative measures of the country are originated and inaugurated,--as they are with us by the ministers of the Crown, and the chairman of each committee is supposed to have a certain amicable relation with that minister who presides over the office with which his committee is connected. Mr. Sumner is at present chairman of the committee on foreign affairs, and he is presumed to be in connection with Mr. Seward, who, as Secretary of State, has the management of the foreign relations of the Government.
But it seems to me that this supposed connection between the committees and the ministers is only a makeshift, showing by its existence the absolute necessity of close communication between the executive and the legislative, but showing also by its imperfections the great want of some better method of communication. In the first place the chairman of the committee is in no way bound to hold any communication with the minister. He is simply a senator, and as such has no ministerial duties, and can have none. He holds no appointment under the President, and has no palpable connection with the executive. And then it is quite as likely that he may be opposed in politics to the minister as that he may agree with him. If the two be opposed to each other on general politics, it may be presumed that they cannot act together in union on one special subject.
Nor, whether they act in union or do not so act, can either have any authority over the other. The minister is not responsible to Congress, nor is the chairman of the committee in any way bound to support the minister. It is presumed that the chairman must know the minister"s secrets, but the chairman may be bound by party considerations to use those secrets against the minister.
The system of committees appears to me to be good as regards the work of legislation. It seems well adapted to effect economy of time and the application of special men to special services. But I am driven to think that that connection between the chairmen of the committees and the ministers, which I have attempted to describe, is an arrangement very imperfect in itself, but plainly indicating the necessity of some such close relation between the executive and the legislature of the United States as does exist in the political system of Great Britain. With us the Queen"s minister has a greater weight in Parliament than the President"s minister could hold in Congress, because the Queen is bound to employ a minister in whom the Parliament has confidence. As soon as such confidence ceases, the minister ceases to be minister. As the Crown has no politics of its own, it is simply necessary that the minister of the day should hold the politics of the people as testified by their representatives. The machinery of the President"s Government cannot be made to work after this fashion. The President himself is a political officer, and the country is bound to bear with his politics for four years, whatever those politics may be. The ministry which he selects on coming to his seat will probably represent a majority in Congress, seeing that the same suffrages which have elected the President will also have elected the Congress. But there exists no necessity on the part of the President to employ ministers who shall carry with them the support of Congress. If, however, the ministers sat in Congress,--if it were required of each minister that he should have a seat either in one House or in the other,--the President would, I think, find himself constrained to change a ministry in which Congress should decline to confide. It might not be so at first, but there would be a tendency in that direction.
The governing powers do not rest exclusively with the President, or with the President and his ministers; they are shared in a certain degree with the Senate, which sits from time to time in executive Session, laying aside at such periods its legislative character. It is this executive authority which lends so great a dignity to the Senate, gives it the privilege of preponderating over the other House, and makes it the political safeguard of the nation. The questions of government as to which the Senate is empowered to interfere are soon told. All treaties made by the President must be sanctioned by the Senate; and all appointments made by the President must be confirmed by the Senate. The list is short, and one is disposed to think, when first hearing it, that the thing itself does not amount to much. But it does amount to very much; it enables the Senate to fetter the President, if the Senate should be so inclined, both as regards foreign politics and home politics. A Secretary for Foreign Affairs at Washington may write what despatches he pleases without reference to the Senate; but the Senate interferes before those despatches can have resulted in any fact which may be detrimental to the nation. It is not only that the Senate is responsible for such treaties as are made, but that the President is deterred from the making of treaties for which the Senate would decline to make itself responsible. Even though no treaty should ever be refused its sanction by the Senate, the protecting power of the Senate in that matter would not on that account have been less necessary or less efficacious. Though the bars with which we protect our house may never have been tried by a thief, we do not therefore believe that our house would have been safe if such bars had been known to be wanting. And then, as to that matter of state appointments, is it not the fact that all governing powers consist in the selection of the agents by whom the action of Government shall be carried on? It must come to this, I imagine, when the argument is pushed home. The power of the most powerful man depends only on the extent of his authority over his agents. According to the const.i.tution of the United States, the President can select no agent either at home or abroad, for purposes either of peace or war, or to the employment of whom the Senate does not agree with him. Such a rule as this should save the nation from the use of disreputable agents as public servants. It might, perhaps, have done more towards such salvation than it has as yet effected;--and it may well be hoped that it will do more in future.
Such are the executive powers of the Senate; and it is, I think, remarkable that the Senate has always used these powers with extreme moderation. It has never shown a factious inclination to hinder Government by unnecessary interference, or a disposition to clip the President"s wings by putting itself altogether at variance with him. I am not quite sure whether some fault may not have lain on the other side; whether the Senate may not have been somewhat slack in exercising the protective privileges given to it by the const.i.tution.
And here I cannot but remark how great is the deference paid to all governors and edicts of Government throughout the United States.
One would have been disposed to think that such a feeling would be stronger in an old country such as Great Britain than in a young country such as the States. But I think that it is not so. There is less disposition to question the action of government either at Washington or at New York, than there is in London. Men in America seem to be content when they have voted in their governors, and to feel that for them all political action is over until the time shall come for voting for others. And this feeling, which seems to prevail among the people, prevails also in both Houses of Congress. Bitter denunciations against the President"s policy or the President"s ministers are seldom heard. Speeches are not often made with the object of impeding the action of Government. That so small and so grave a body as the Senate should abstain from factious opposition to the Government when employed on executive functions was perhaps to be expected. It is of course well that it should be so. I confess, however, that it has appeared to me that the Senate has not used the power placed in its hands as freely as the const.i.tution has intended.
But I look at the matter as an Englishman, and as an Englishman I can endure no government action which is not immediately subject to Parliamentary control.
Such are the governing powers of the United States. I think it will be seen that they are much more limited in their scope of action than with us; but within that scope of action much more independent and self-sufficient. And, in addition to this, those who exercise power in the United States are not only free from immediate responsibility, but are not made subject to the hope or fear of future judgment.
Success will bring no award, and failure no punishment. I am not aware that any political delinquency has ever yet brought down retribution on the head of the offender in the United States, or that any great deed has been held as ent.i.tling the doer of it to his country"s grat.i.tude. t.i.tles of n.o.bility they have none; pensions they never give; and political disgrace is unknown. The line of politics would seem to be cold and unalluring. It is cold;--and would be unalluring, were it not that as a profession it is profitable. In much of this I expect that a change will gradually take place. The theory has been that public affairs should be in the hands of little men. The theory was intelligible while the public affairs were small; but they are small no longer, and that theory, I fancy, will have to alter itself. Great men are needed for the government, and in order to produce great men a career of greatness must be opened to them. I can see no reason why the career and the men should not be forthcoming.
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 endeavour to describe the circ.u.mstances 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, honoured 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 splendour 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 practising 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 favour 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 pa.s.sion 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 trespa.s.s 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 a.s.sumed 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 munic.i.p.al power. The latter is perhaps more in the hands of merchants and men in trade than of any other cla.s.s; 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 Ca.s.s 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 circ.u.mstance of more than one senator who is not a lawyer. Lawyers form the ruling cla.s.s in America as the landowners do with us. With us that ruling cla.s.s is the wealthiest cla.s.s; 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 const.i.tution 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 Ma.s.sachusetts to the supreme tribunal of the nation at Washington.
The national tribunals are of two cla.s.ses. First, there is the Supreme Court specially ordained by the const.i.tution. 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 const.i.tuted 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 a.s.signed 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 amba.s.sadors 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 const.i.tution, 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 ent.i.tled 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.