LAW-RELIGION.

LECTURE V.

Judicial institutions of England adopted by the Americans— Juries-Independence of judges-The supreme court of the United States-Can the religious instruction of a country be adequately provided for without an established church ?—Illustrations from England and America.

In the two former lectures, the legislative assemblies and the executive power of England and of America have come under review; and we have next to consider the administration of justice in both countries. But as the admirable judicial institutions and the laws of England have been adopted by the Americans, with little alteration, this part of the subject will not detain us long.

The most striking and essential feature of the administration of justice in England, is its entire separation from the legislative and executive powers of the state. The combination of the judicial power with either of them is fatal to liberty, and constitutes those forms of tyranny which, in various degrees, exist elsewhere. We hear and we read of secret accusations, dropped into the lion's mouth at Venice, by some hidden blood-thirsty foe; of the dungeons of that city; of the inquisition and the bastile; of the revolutionary

guillotine, the Russian knout, the Turkish bowstring, and the slave driver's lash, as things horrible, most strange, and inconceivable to ourselves. For in these happy islands, stealthy deliberation on the doom of untried innocence is unknown, the oppressor's wrong seldom goes unpunished, and justice is glorious in her purity, open as the day, and unconfined as the air of heaven. It has been observed that the grand object of the whole machinery of our constitution is to uphold, in their integrity and independence, the courts of law at Westminster; and conversely it may be said, that the constitution owes its preservation to the perfection of our judicial system. It is sufficient to advert to the well known safeguards, by which every man guiltless of crimes is enabled to walk abroad in conscious freedom and security, and not only to view the court of justice and the gaol without dismay, but to hail them as bulwarks of his own and his country's liberty,-a terror only to evil doers, the protection of those that do well. In England a man may not be arrested and imprisoned without the warrant of a magistrate, and if wrongfully imprisoned he will obtain complete redress. If honest and respectable, he may always procure bail.

The Habeas Corpus act prevents long and oppressive detention in prison. The grand jury must find a true bill against the accused party, before he can be tried; and trial by jury and the independence of the judges secure the acquittal of the innocent. All our judicial institutions and proceedings incline in favour of the accused; and although for this reason not a few of the guilty may escape merited punishment, we gladly tolerate an inevitable imperfection, which proves how carefully the laws protect all those that honestly obey them.

Trial by jury affords us the same kind of protection in questions affecting property, that it does regarding

liberty and life, with this important and valuable difference, that whereas the acquittal of a jury absolves a man for ever from the same criminal charge; in civil cases, the judge may refuse to receive an erroneous verdict, and may order a new trial, when the substantial ends of justice require it.

One of the finest spectacles which our country affords is an intelligent jury, chosen by the regular forms of law, that are necessary to secure strict impartiality, and taking their seats, bound by the sacred solemnity of an oath, to judge in their neighbours' cause as they would themselves be judged. No other institution is better calculated not only to maintain order, equity, freedom, and right, but also to diffuse the knowledge and to inspire the love of these great principles.

So deservedly dear, to Englishmen, are these admirable institutions, that, wheresoever their descendants have settled in foreign lands, they have been carefully established and preserved. We have only, therefore, to note a few points in comparing the administration of justice in England and the United States.

"In America," says M. De Tocqueville, "all the citizens, who exercise the elective franchise, have the right of serving upon a jury. The great state of New York, however, has made a slight difference between the two privileges, but in a spirit quite contrary to that of the laws of France, for, in the state of New York, there are fewer persons eligible as jurymen than there are electors. It may be said in general, that the right of forming part of a jury, like the right of electing representatives, is open to all the citizens; the exercise of this right, however, is not put indiscriminately into any hands. Every year a body of municipal or county magistrates, called select men, in New England; supervisors, in New York; trustees, in Ohio; and sheriffs of the parish, in Louisiana,-choose for each

county a certain number of citizens, who have the right of serving as jurymen, and who are supposed to be capable of exercising their functions. These magistrates, being themselves elective, excite no distrust; their powers, like those of most republican magistrates, are very extensive and very arbitrary, and they frequently make use of them to remove unworthy or incompetent jurymen. The names of the jurymen, thus chosen, are transmitted to the county court; and the jury, who have to decide any affair, are drawn by lot from the whole list of names.'

Here our and their systems do not essentially differ. It is necessary that the office of juryman, which is, in fact, a judicial office, should devolve only on individuals that are competent by intelligence, integrity, and independence, to exercise it; and, in both England and America, probably sufficient care is taken to secure that result. Certainly, in England, none of us would deem our liberties more secure, and expect to find justice better administered, were the office to descend lower, and become, as some would have the suffrage to be,-universal.

In England, the independence of the judges is secured by the statute 1st George III., c. 23, which was enacted at the earnest recommendation of his Majesty, soon after his accession to the throne, who declared that he looked upon the independence and uprightness of the judges as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown." The English judges are appointed by the crown, but hold their offices permanently; their full salaries are secured to them, and they can only be removed for misconduct, on the address of both houses of parliament. From the following remarks of M. De Tocqueville, it appears

that the same independence is not universally secured to the judges of the United States." I am aware that a secret tendency to diminish the judicial power exists in the United States; and, by most of the constitutions of the several states, the government can, upon the demand of the houses of the legislature, remove the judges from their station. By some other constitutions the members of the tribunals are elected, and they are even subjected to frequent re-elections. I venture to predict that these innovations will, sooner or later, be attended with fatal consequences; and that it will be found out at some future period, that the attack which is made upon the judicial power has affected the democratic republic itself."

The supreme court of the United States is an institution to which the union principally owes its permanence. It consists of seven judges, appointed by the President, and removable only by impeachment.

It is to be remembered, that while the control of the general interests of the union is exercised by the federal government, each state is the guardian of its own interests, and has its own courts of law. To have submitted the interpretation of the fundamental laws of the union to these various tribunals, would have given rise to a collision of jurisdiction, which would have caused great inconvenience and disorder. The federal government has, therefore, a court whose constitution is judicial; but its prerogatives are chiefly political. It is the court of the union appointed to execute its laws, and interpret the written constitution, and it has jurisdiction, with regard to the relations of the nation with foreign powers, of the government with the citizens, and of the states with each other. It decides also in maritime causes, and in those arising between the citizens of different states-and between a state and the citizens of another state. Questions between