Transplant the Americans and their system to Russia, and the standing army will be superfluous; the distinction between citizens and soldiers, so injurious to real freedom, will be at once removed; and the country and its president will be far safer without one mercenary soldier, than the emperor of Russia with his body-guards.

Were genuine Christianity and genuine philanthropy to find a place in the hearts of all kings and all nations, no standing army, no vast apparatus of hatred and enmity would be needed; and modern regenerated Europe would put forth with redoubled vigor new flowers and new fruits, upon the stock of its ancient, glorious, and manifold civilization.

CHAPTER XXV.

THE LAW AND THE COURTS.

Legal System-Legal Studies-The Supreme Court-Circuit Courts, District Courts, and Courts of Equity-Justices of the Peace-Lynch Law-MexicoJuries-Criminal Law-Bankrupts, Debtors-Number of Criminals-Law of Inheritance-Marriage, Divorce.

Ir it is very difficult for a foreigner to comprehend the law of England and the constitution of its courts of justice, it is still more difficult to become thoroughly acquainted with the corresponding features of the American system.

For:

In the first place, the Revolutionary contest was not at all directed against the existing private law and the constitution of the judiciary; on the contrary, the English system, complicated as it is in many particulars, was for the most part retained.

Secondly, even after the separation from the mother-country, it was permitted to refer to the decisions of the English courts. which preceded, but not to those which followed that event.

Thirdly, a peculiar American development could not fail to take place. This however was far from being exactly alike in all the states; and the departure was still wider in the Spanish and French systems of law, which prevailed in Florida and

Louisiana.

Indeed the twenty-six states exist under such a variety of circumstances, that it would have been impossible to fit them. with one general code of laws, or to commit such an office to

Congress. On the other hand, most of the states have themselves formed codes, or at least statute-books, and-what is doubly necessary in America-have made them accessible to the people by composing them in their simple mother-tongue, and (as in Ohio) by the translation and explanation of the scientific terms. Moreover there are instructive works, both large and small, from the pens of Kent, Story, Walker, and others, which are intelligible even to non-professional people, and treat of public law, the rights of persons, the rights of things or law of property, the criminal law, and legal proceedings.

The study of legal science however is in many respects limited in America, and takes little or no cognizance of the earlier historical development, of the Roman law, and of the legal views promulgated by philosophers. After at the most a two-years' course at the University, students hurry into practice with a view to income, and regard the profession of a lawyer as the best preparation for that of a statesman;* though the latter never can and never should be satisfied with the views of a mere attorney. Nevertheless there are found in America some generally received principles which are equally important for the lawyer and the citizen, equally fruitful in results, and of general application. For example: There is no national church, and no distinction of rank or inheritance. All citizens have equal rights and duties, and the union of the states is founded upon a compact. The sovereign power rests with the people, and shows itself in the majority of votes. Laws refer only to rights and actions, not to morals and opinions, &c.

In America there are two classes of law courts, whose spheres of action are peculiar and wholly distinct, although at times they intrench upon one another's spheres of operation; namely, the United States' courts and those of the separate states. To the former belong:

1. The Supreme Court,

2. The Circuit Courts, and

3. The District Courts.

First, the Supreme Court is composed of a chief justice and eight judges, whose sphere of action is determined by the Constitution. Though it attracts less attention and interest, and possesses less political influence than the two Houses of Congress and the president, still it is of the highest importance and usefulness. It is in the United States alone that the highest court of judicature has the right to interpret the Constitution; to reverse such resolutions of Congress and of the states as are opposed to

*Like greyhounds when the game is started, you pant to be let loose."— Walker, p. 17.

† See page 75.

that instrument; and generally to maintain itself as the third co-ordinate branch of the government, the Judiciary, in contradistinction to the Legislative and Executive branches. Still this power does not by any means extend beyond the interpretation of the Constitution: the court can neither change it, nor limit the rights of the people in this respect. Otherwise this ostensible application of the law would be very likely to degenerate into legal tyranny; since, as history has often shown, mere jurists are far from being the best advocates and defenders of civil liberty.

Peculiar and even embarrassing relations arise from the circumstance that the Supreme Court decides some cases alone, others by appeal, and in others again it has concurrent jurisdiction with the state tribunals.

Secondly, there are nine circuit courts, each composed of two judges, one of the Supreme Court of the United States and one of the court of the state. These courts, which sit twice a year, take cognizance of various matters in the first instance, and of others by appeal from the district courts; while other causes are carried up from the circuit and district courts, to the Supreme Court of the United States.

Thirdly, there are thirty-five district courts, each composed of only one judge. They decide (excluding the state tribunals) respecting all crimes and misdemeanors against the United States, and in many civil suits in which the general government or its officers appear as plaintiffs; and lastly, they have jurisdiction as admiralty courts in matters relating to the sea, to consuls, &c.

I cannot here enlarge upon the exact condition of these tribunals, or upon the constitution and gradation of the courts in the several states. It is enough to remark in general that the English organization is every where taken as the foundation.

The very complicated forms of proceeding which sometimes occur have rendered courts of equity and chancery necessary in the United States, as well as in England. Decisions however are far from being made according to the dictates of uncertain feeling or mere caprice, without respect to law; on the contrary, the course of practice has here also reduced every thing to settled proceedings, the peculiarity of which consists chiefly in dispensing with certain very difficult and involved forms, in facilitating the reception of testimony, and in not always requiring the aid of a jury. Out of a thousand lawsuits only about twenty are brought before these courts of equity; which for the most part are held by the same judges, though not constituted alike in all the states.

The judges of the United States courts are appointed by the By the last accounts this number is already increased.

president, mostly with the sanction of the Senate; the judges of the separate state courts, and also the justices of the peace (who decide many causes in the first instance, and with merely verbal proceedings) are appointed or chosen by the governors, the legis latures, or the people. Their term of office is from one to three and even seven years, or during good behavior; more danger certainly arises from too frequent changes than from too long continuance in office. It is unreasonable to find fault (especially in the new states, where there are few persons of legal acquirements) with the choice of farmers and other such non-professional men for justices of the peace. These very persons are best acquainted with most of the matters that come before them, and have the greatest influence in preventing the adoption of arbitrary and lawless measures.

The so-called Lynch law, or resort to tar and feathers, which cannot be justified or even palliated in a country whose social and legal institutions are completely formed, exhibits, in addition to a reprehensible licentiousness, defects both in making and executing the laws, to supply which recourse has been had in all times and places to violent attempts of this sort. The traveller Hall says: "An administration of justice cheap and at every man's door, is the heaviest curse ever inflicted upon a country." According to this mode of reasoning, a justice expensive and remote would also be the best; but in fact it is the want of near, upright, and acknowledged tribunals, that has mainly given rise to the despotism of Lynch law. If ever such outrages occur in populous states like New York, they are evidence of an audacious presumption which sets private opinion above the law, substitutes popular licentiousness for popular rights, and absurdly doubts of the possibility of a legal reformation of abuses.

Those who first settle in the distant forests and prairies of the West are no doubt in part hard-handed men, of coarse feelings, and disinclined to obey laws that are not to their liking.* Experience teaches us, say they, that a man lives more agreeably and in greater freedom, if he has but few neighbors. But gradually the population becomes more dense, and the children and grandchildren of the first settlers must accustom themselves to another sort of freedom, where the individual is not to follow out his own views in redressing his own wrongs.

Vastly worse is it in Mexico, where, in the province of Oajaka alone, from 1824 to 1831, over two thousand murders were committed; and where, in the city of Mexico and its immediate vicinity, the number amounts to about one hundred and fifty a year. Even in Europe there occur instances of violence, which remind

* Murray, ii. 421. Long's Rocky Mountains, i. 106.

† Mühlenpfordt, i. 322.

us of the horrid practice of self-redress known under the name of Lynch law: for example, the outcry raised against the Jews; the storming of the house of Haber in Carlsruhe; the riotous proceedings against a clergyman in Heidelberg; the contests of the Swiss respecting the Jesuits, &c.

The proceedings of the Courts are every where public, and juries are summoned in every important civil and criminal cause. Fifteen compose what is called the grand, and twelve the petty jury in criminal cases; five are required in matters relating to apprentices, seven in investigations of insanity, and six in disputes with regard to property.* Many in America complain of the provision, that the jury must be unanimous. In several cases a second trial is granted with a new jury, for example in case of improper conduct on the part of the jurymen, or of a verdict that manifestly contradicts the evidence, or where new and important circumstances have been brought to light. Jurymen in general must possess the same qualifications as voters, and there are precise regulations as to their selection, rejection, &c. They usually receive a compensation of a dollar and a quarter for every day's attendance, and five cents for every mile of travel. According to the letter of the law, the jury decides only upon the fact; but in truth they often decide, in America as well as elsewhere, on the legal question inseparably connected with it; and in this they mostly follow their feelings, being guided by the circumstances of each individual case. This may be the manifestation of a noble and more lofty sense of right, and may supply the defects of legislation; or their decisions may proceed from passion and partiality, and undermine the necessary rules of law. Yet where the people effectively co-operate in making the laws, they would probably observe these rules more strictly than elsewhere, where the laws are often so framed as to have a one-sided bearing. If notwithstanding we condemn the excessive lenity of many proceedings of the Americans, they on the other hand often find fault with our severity, as for instance towards Silvio Pellico, Jordan, Behr, Hoffman, Eisenmann, and others.

The criminal law differs in different states; in general however it is very mild, so that the capital punishment, hanging, is inflicted for only a few crimes; for the most part only for murder

* In some states such is the case; but the practice varies widely in the different states.-TR.

† Walker, p. 538, especially in Ohio.

In Massachusetts, for example, they must be people of good understanding and fair character. State or United States officers, clergymen, physicians, and persons over sixty years of age, are exempt. The lowest ratio is one juryman for every one hundred inhabitants; the highest, one for every fifty. For every trial, they are selected by lot; and under certain circumstances, as many as twenty may be rejected. In that case the jury exercises a sort of pardoning power.