James Fenimore Cooper.

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confidence can be placed. It is a superstructure
regularly reared on a solid foundation, and not a
tower from which a number of heavy and ill-balanced
dependants are suspended. As to the prognostics of
its dissolution, they are founded on theories that are
getting to be a little obsolete ; and the best argument
that is urged to prove their truth, after all, is merely
the fact that the confederation of the United States
has not existed more than the full term of tifty yeaw


during the last half century. Perhaps it may console
these impatient reasoners to know, that, while the
records of the country are certainly limited to the
brief period named, so far as improvement, wealth,
power, and a general advancement are concerned,
it has every appearance of having been in existence
two or three centuries.

In order to effect the material objects of the new
confederation, it became necessary that the States
should part freely with their power. The principle
was adopted that every thing which was necessary
to the general v^^elfare should be yielded to the gen-
eral government, while the States should, of course,
retain all the rest of their authority. But, with a view
to give the utmost efficiency to the new system, an
executive, courts, and subordinate functionaries were
created, who were to act on the people sometimes
through, but oftener without, the intermediate agency
of the State authorities. . As bur present business is
vc;;h the courts, we will confine ourselves to that
branch of the subject.

Although the several States preserve the outlines
of the judicial institutions which they inherited from
their ancestors, there are not, probably, two in the
whole confederation whose forms of jurisprudence
are precisely the same. There is necessarily a dif-
ference in the policy of a large State and the policy
of a small one ; in that of a large, new State and that
of a large old one ; in that of a State without and in
that of a State with slaves ; in a commercial and in a
purely agricultural State ; and, in short, in a society
which exists under the direct influence of certain in-
terests, and in a society which exists under the in-
fluence of certain others. You may trace in this
power of accommodating their minute policy to their
own particular condition, and, what is probably quite
as important, to their own pleasure, one of the great
reasons for the durability of the Union.


Had T the necessary knowledge to impart it, you
would not possess the patience to read a detailed
account of the shades of difference which exist in the
jurisprudence of twenty-four separate communities.
I shall therefore take tlie outline of that of New-York,
the most populous of the States, and point out its con-
nexion with that of the Union. It will be sathciently
exact to give you an idea of the whole.

The foundation of the laws of New- York, is the
common law of England. Some of the provisions of
this law, and a few of its principles, have been de-
stroyed by the constitution of the State, which, of
course, has substituted the maxims of a republic fo!"
those of a monarchy. Statute law has changed, and
is daily changing certain other decrees of the com-
mon law, which are found to be inapplicable to the
peculiar state of this society. I know no better evi-
dence of the boldness and usefulness of reform, as it
exists in this country, than is to be found in the early
changes they made in the common law. It is now
near half a century since they destroyed the right of
entail, the trial by battle, the detestable and unnatural
law of the half-blood, and a variety of other similar
usages that are just beginning to become obnoxious
to European censure. The Americans themselves
say that New- York has still a great deal to do, and
daily complaints are heard against impediments to
justice, which are to be traced to the usages of a
comparatively dark age.*

The lowest tribunal known to the laws, is what is

* There are people who may find it curious to know, that the
advancement of public opinion, and the consequent security
of liberty, is making bold inroads on those practices which are
known to have given birth to political rights. In the State of
Louisiana, and, the writer believes, in one or two others, the
use of a jury is dispensed with, in all civil cases, in which it is
not demanded by one of the parties. It is said that more than
five-sixths of the civil actions are tried by the court. Still the
right of a trial by jury is guarantied by the constitution of the
United States.


called a justices' court, or the suits before a justice
of the peace. In each county there is also a regular
court for the trial of criminal causes, and for the
common pleas of that county. The presiding officers
of these courts are termed judges ; they are commonly
five in number, and are sometimes aided by what are
called assistant justices. In the older counties these
judges are usually men of education, and always men
of character. They are frequently lawyers, who con-
tinue to practise in the higher courts, and they are
often men of landed estate, yeomen of good charac-
ters and influence, and sometimes merchants. Their
criminal duties are not unlike those of the quarter
sessions in England. Executions in civil actions is-
sued out of this court, take effect on all property
found within the limits of the county, and judgments
are liens on real estate, according to priority of date,
without reference to the courts v/here any other sim-
ilar claims may be recorded.

The State is next subdivided into judicial circuits.
For each of these circuits there is one judge. This
officer presides at the circuit courts, assisted by the
judges of the county; and as the judgments obtained
under verdicts in this court are perfected before the
supreme court of the State, they have a lien on all
property belonging to the party concerned within the
bounds of the State. Both of these courts take cogni-
zance of crimes.

The supreme court (of the State" of New-York) is
composed of three judges. They constitute a court
of law, to which appeals are made from the inferior
tribunals. The judges do not regularly preside at any
of the circuits, though it is within the scope of their
powers to do so if they please."^ They settle all causes,

* There has been a recent change in the courts of New-
York. A few years since there were five judges of the su-
preme court, and they tried all causes at Nisi Prius, holding
the circuits in person. It was found that the business accu-


and the reports of their proceedings form the ordina-
ry books of precedents.

There is a chancellor who hears and decides in
all cases where equity is claimed, and who exercises
the usual authority in granting injunctions against the
consummation of proceedings at law. In many of the
States, the equitable power is lodged in the same
courts as the legal, the judges hearing causes on what
is termed the equity side. The chancellor of the
State is purely a law officer, exercising no other func-
tions, and holding his commission by the same ten-
ures as the judges. In one or two of the States,
however, the governor acts as chancellor.

The Senate of the State, (of New-York,) assisted
by the chancellor and judges of the Supreme Court,
form a tribunal for appeals, and for the correction of
errors in the last resort. Their decision is final, un-
less the defendant should happen to be a foreigner,
or a citizen of another State, in which case the cause
can be carried into the courts of the United States*
under certain circumstances. This court is not known
to many of the States.

The jurisdiction of the courts of a State, embraces
most of the ordinary interests of life. Nearly all of-
fences against persons and things, whether considered
in reference to the protection of the individual, or in

mulated, and, in order to repair the evil, the circuit judges
were appointed ; those of the supreme court were reduced in
number, and the common duties of the latter were limited to
the terms. The better opinion in the State is, that this de-
parture from a practice which has been sanctioned by so many-
centuries is not successful. A return to the former system is
already contemplated, with an increase of the judges, that shall
make their whole number equal to the labour they have to un-

* The plaintiff, beinff an alien, or a citizen of another State,
can do the same thing m the first stages of the suit. But it is
impossible to be minute in a work like this ; the writer merely
aims at giving a general idea of the system of the jurisprudence
of the United States.

Vol. II. O


reference to the dignity and security of society, can
he tried before some one of the tribunals mentioned.
In many cases the tribunals have concurrent power,
those of the United States always being supreme,
when they have a right to interfere at all.

The lowest tribunal established by the United
States is that of the district courts. The rule is to
make each State a district for the trial of causes un-
der the laws of the Union, though some of the larger
States are divided into two. Each of these courts
has its particular judge, its recording, and its execu-
tive officers. The latter are called marshals ; they
exercise all the ordinary duties of an English sheritF.*
Original causes are tried before the district judge. If
A. should fail in the conditions of an ordinary con-
tract made with B., the latter would bring his suit in
the county in which the former resided, or in the su-
preme court of the State, as he might please ; but if
the contract had direct reference to matter which is
exclusively controlled by the laws of the United
States, he would probably bring his action in the cir-
cuit court of the State in which the defendant lived.
In matters that arise from seizures under the cus-
toms, or that affect any other of the direct interests
of the United States, the District Court is always
competent to proceed. If process issues on execu-
tion from the courts of the State, it is to the sheriff;
but from the United States' courts it is directed to
the marshal. The same distinction is observed for
the execution of sentences under the respective crimi-
nal laws of the two authorities. Thus, it would be
possible, as in the cases of an ordinary murder and
of piracy, for tvv^o convicts to issue from the same
gaol, and to go to the same gallows, though the one
should be hanged under the orders of a sheriff, and
the other under the orders of a marshal. Though

* Each county has a sheriiF under the laws of the State.


there are no points of collision, in matters of mere
dignity, the marshal is a man of more importance than
a sheriff, inasmuch as his bailiwick embraces a whole
State instead of a county ; and he executes the su-
preme law of the land, though, in fact, his functions
are often limited to a (5ourse of concurrent, or rather
to a division of familiar powers.*

Each State also forms a district for the circuit
courts of the United States. At the circuit, a judge
of the supreme court of the United States presides,
assisted by the judge of the district. They hear
original cases, and such appeals as, by law, can be
brought from the tribunals of the State. It frequently
happens, that actions affecting parties residing in dif-
ferent States, are brought in the courts of a particular
State, because the property in dispute lies there, and
the defendant then carries his appeal to one of the
circuit courts of the United States. You will see
that, of necessity, the laws of the several States must
be known to the judges of these circuits, as a great
deal of their power goes no further than to take care
that thcseJaws shall not infringe on the rights which
are guarantied by the confederation.

The judges of the supreme court of the United
States sit once a year, to hear appeals and questions
of law. They have all the equity powers which are
necessarily incident to justice, there being no chan-
cellor of the United States. Their decisions are final,
no appeal lying to any other body of the land. This
dignified and powerful tribunal not only decides on
the interests of individuals, but on the interests of

* The United States have, as yet, no gaols. There is such
perfect understanding between the two authorities, that the
States lend their gaols, court-rooms, fcc. to the officers of
the United States, though it is probable that, ere long, provision
wiil be made for both. " A convict, scntencpd to hard laboi.r by
a court of the United States, is sent to the Penitentiary of the?
State where he is convicted, the former defraying any exceS3
of expense over the fruits of his earnings.


States. Communities that are, even now, larger than
the smallest kingdoms of Europe, can come before
them, in their corporate capacity, as suitors and de-

The affairs of this immensely important tribunal,
have ever been conducted with surprising dignity and
moderation. The judges are amenable to public
opinion, the severest punishment and the tightest
check in a free community, and their corruption can
be punished by impeachment. An instance of the
latter occurred during high party times, and while the
doctrines of Europe were more in fashion than they
are at present, but the accused was not found guilty.

The duties of the supreme court are often of a
highly delicate nature, but the judges have contrived
to create a great degree of reverence for, and of
confidence in, their decisions. As the population of
the country increases, the number of the judges will
be increased to meet its wants.*

You know that steam was first successfully applied
to boats in America. The celebrated Fulton obtained
a law (in the State of New- York) creating a mono-
poly of its use in his favour for a term of years. At
first, the experiment was deemed so hazardous, that
he enjoyed this exclusive right without molestation.
But, when the immense profits of the speculation
became apparent, men began to question the legality
of the monopoly. Boats were built without the con-
sent of the assignees of Fulton. The chancellor of
the State of New- York, regarding the act of his own
legislature, granted an injunction, prohibiting their
use. The parties then joined issue, and the case
was carried through the courts of the State, until it
reached the Court of Errors, where it was decided in
favour of the law of the State. New parties appealed
to the circuit court of the United States, as citizens

* It has recently been raised to nine.


of another State, and as citizens claiming the protec-
tion of the laws of the confederacy. \t was contended
that the law^ of New-York was unconstitutional, in-
asmuch as the States had conceded the right to pro-
tect inventions, &c. &;c. to the general government,
and that no State had a right to grant a monopoly on
waters, that might interfere with the commerce of
the whole country. So the supreme court decided,
and, since that decision, there has been an end of
the monopoly. Many of the States have enacted
laws, of different natures, that have always been
treated with great reflection and candour, but which
have been as efTectually destroyed by this court.

In respect of mere dignity, the judges of the su-
preme court of the United States stand foremost over
all others. A judge of the district court is, as a rule,
perhaps, about equal to a judge of the supreme court
of a State, though these parallels are entirely arbi-
trary. In point of variety of power, the judges of
the States have much the most ; but, in j)oint of im-
portance, those of the United States are the greatest,
since appeals can be made to, but not from, them.

You can easily imagine that numberless questions
of jurisdiction between the courts of the confedera-
tion and those of the States, still remain to be decid-
ed. Although the laws of the United States, when
constitutional, are called supreme, yet there are
points W'here the two authorities must of necessity
meet. To take a strong case, the life of the citizen is,
in most instances, to be protected by the laws of the
State ; but it is possible to conceive a case In which
some of the rights that are fairly enough incidental
to the discharge of the powers ceded to the United
States, might impair the force of a State law for the
protection of the life of its citizen. In such a case
reason must decide the limits of the two authorities,
as it has had to decide the limits of concurrent au-
thorities elsewhere. It would be folly to say always


that the United States law being paramount, should
prevail. In fact, in such questions, it is not supreme,
even in theory ; for the States, having reserved to
themselves all the power they have not expressly
yielded to the United States, have clearly the same
claim to the rights incidental to the powers reserved,
as the United States possess to the rights incidental
to the powers which have been conceded. The
courts of the States (which are hound to know and
respect the authority of the United States) might
have a natural leaning to extend these incidental
powers, and it is in fixing their limits that the su-
preme court of the United States, which is placed
above all petty and local interests, exhibits most of
is usefulness and majesty.

A species of natural law is growing up under this
system, that promises to be eminently useful, inas-
much as it is adapted to actual necessity. I am a
great venerator of those laws which are enacted by
custom, since I entertain the opinion that the stamp
of uyage is worth a dozen legislative seals, especially
in a community where men, being as free as possible,
have every opportunity of consulting the useful.

The States have conceded all power to Congress
to regulate commerce. Now, Congress has jurisdic-
tion over more than twenty degrees of latitude. It
has not, however, yet seen fit to establish quarantine
regulations for the numerous ports within its jurisdic-
tion, though it is scarcely possible to imagine any
measure which more intimately affects commerce
than these laws. But the States do continue to pass
quarantine laws, under their natural right to protect
the lives of their citizens. Should any State, under
this plea, attempt to pass such laws, however, as
would operate unjustly towards another State, the
court of the United States might then pronounce a
decision affecting the question. There is as yet a
divided opinion, in theory, on the subject of this


right, while the practice is just what it ought to be ;
that is to say, those who are most familiar with the
subject provide for its wants, and should any abuses
arise, there is a power in the country competent to
put them down.

As its institutions get matured by time, the power
of the confederation is every day receiving strength.
A vast deal of constitutional law, however, remains
to be decided ; but as new cases arise, the ability to
make discreet decisions, grows with experience.
Laws are enacted to meet the regulations necessary
to the common good, and as the legislators are them-
selves citizens of the States to be governed, and one
body of them (the Senate) are the legal protectors of
their corporate rights, there is little fear that the
general government will ever reach that point of au-
thority that shall make it weak, by setting it up in
opposition to a force that it would vainly strive to
sul)due. It may appear paradoxical, but the secret
of the actual durability of this confederation consists
in its apparent weakness. So long as the influence
of the several States shall be of sufficient importance
to satisfy their jealousy, I think it will endure ; and
so long as the present representative system shall
prevail, there is every motive to believe the States
will possess, with a reasonable portion of the power,
a share in all the honour, and the profit, and the secu-
rity of being members of an Union that must shortly
stand foremost among the nations of the earth.

The true balance of power, which elsewhere is
found to exist in the hands of individuals, exists here
in the hands of legislative bodies, who are the direct
representatives of those whose interests are controlled
by the government.

( 164 .)

Sec. Sec.


A GREAT event has jast been decided in this city.
The ceremony of the election of a President of the
United States, for the four years which shall com-
mence on the fourth day of March next, took place
yesterday. The circumstances which led to the pe-
culiar forms of this choice, the characters of the can-
didates, and the probahle result that it will have on
the policy of the country, may not be without interest
to one who studies mankind as generally as youiself.

The first President, you know, was Washington.
He was succeeded by the Vice-President, the elder
Adams."* At the end of four years, a hot contest oc-
curred between Mr. Adams and Mr. Jeilerson, the
President and Vice-President of the day, for the
chair. In order to give you a proper understanding
of the case, it will be necessary to explain the law
for the election to this high office.

You know that the sovereignty of the States is
represented by the Senate. Thus, Rhode Island,
with 70,000 inhabitants, has two members in the
Senate, as well as New-York with 1,700,000. But
the members of the lower house, which is the con-
necting link between the States, are apportioned

* An absurd story is told bj^ a recent traveller, or a pretend-
ed traveller, in the United States, concernins^ the wish of Mr
Adams, when Vice-President, to have the title of " Highness,
and Protector of our Liberties," given to the President of the
United States. It is said he introduced a resolution to that
effect iвАЮn the Senate. Now, it happens, independently of the
gross folly of the title, that the Vice-President, who is merely a
presiding officer, has no right to introduce any law or resolution
into the Senate at all.


according to the population. The State of Rhode
Island has, therefore, two Representatives, and the
State of New-York thirty-four. In- all ordinary
cases of le2;islation, each individual, whether a Sen-
ator or a Representative, gives one vote. While
New-York has, consequently, eighteen times more
influence in the lower house than Rhode Island, in
the upper house they are equal. It is in this division
of power that another system of the checks and bal-
ances of this government is to be traced.

For the election of the President, bodies are es-
pecially convened that are at other times unknown
to the constitution. They are called electoral col-
leges, of which there are as many as there are States.
These colleges are composed of citizens chosen in
each State, in such a manner as its own laws may
prescribe. They are sometimes elected by the legis-
latures, sometimes in districts by the people, and
sometimes again by the people in what is called a
general ticket; that is to say, every citizen votes for
the whole of the electors that his State is entitled to
choose. The number is determined by the popula-
tion of the State. The number of Representatives
is added to the two Senators, and the amount forms
the body of the electors. Thus New-York, having
thirty-foLir'Representatives and two Senators, chooses
thirty-six electors ; while Rhode Island, having but
two of each class, is limited to four electors.

Within a certain number of days after their own
election, the electors of each State meet at some in-
dicated place, and form the several colleges. The
time is fixed at so short a period as to prevent, as
much as possible, the danger of corruption. There
is undoubtedly a preconcert between parties, and an
understanding in the way of pledges; but there can-
not well be any direct bribery on the part of power-
ful individuals. Each elector gives one vote for
President, and another for Vice-President, As the


constitution formerly stood, the citizen who received
the greatest number of votes, provided they made
more than half of the whole number, was chosen
for the former office, and the citizen who received the
next greatest number, under the same provision, was
chosen for the latter office. The constitution has,

Online LibraryJames Fenimore CooperNotions of the Americans: picked up by a travelling bachelor (Volume 1-2) → online text (page 42 of 58)