One of the lines taken by the defense was that the man had only done so in order to discover the real forgers. Charles Mitchell (that was his name) was a former convict; he had long been paid by police to make secret enquiries into and, although he had not been paid this time, it was the police he wanted to serve; such was the lawyer's argument, and what cam out most clearly for me is that there is a secret police in America.

Mr. Dallas, the attorney general, showed us all the exhibits in the case; they consisted in: 1st. The piece of forged money seized; 2nd. The circumstantial evidence; 3rd. The list of witnesses.

There are no interrogatories, nor written hearing; expert witnesses are listened to at the hearing as witnesses.

Id. Mr. Richards, Mayor of Philadelphia, told us today that there were some judges inclined towards conviction but that nonetheless in general they show themselves impartial and even kind towards the accused, and exercise a great influence over the jury. That was not always the case with the attorneys general.

What gives the judges such immense power over the jury in criminal cases is the immense influence they are necessarily in the habit of wielding in civil cases: important.

The judge is definitely master of the law in civil cases. Why then are the questions not divided? Why not give him the ostensible direction of the legal part of the case?

I see two good reasons for it: 1st. There is an advantage in having the verdict pronounced by the jury; it has more effect on public opinion; 2nd. It is almost impossible, and we find that ourselves in criminal cases (except the simplest ones) always to make a clear division between questions of law and questions of fact. The nature of things has often made an indissoluble link between them.

Besides, apart from rational motives, the strongest reason that one can give for the English procedure in this matter is that it was instituted at a time when there were, so to say, no questions of law to be resolved.

To understand American law, it is necessary to be acquainted with the judicial organization and the principles of English legislation.

(1) The most ancient and the principal source of English laws is what is called Common Law. The Common Law is composed of two elements: (1) of the traditional customs which have never been collected into a body as has been done in France from the time of Beaumanoir, but whose principles are found stated in the Records of the judges who have succeeded one another through several centuries; (2) of Statutes, or laws of the Parliaments. The Statutes are later in date than the customs, which latter come from the first years of the monarchy; they have modified and weakened them. They form with them the incoherent and undefined body of legislation which one calls Common Law. We will go on to see what further legal growths have come to be imposed on that.

(2) The temporal power of the clergy in England began with the Norman Conquest. The clergy in England, as on the Continent, was not slow to claim for itself jurisdiction in certain cases concerning conscience. All cases which concerned the execution of contracts which had some relationship to a sacrament, such as marriage and wills. The Church, in claiming to give judgment in such cases, did not confine itself to the rules of one country more than another. It recognized the universality of Roman Law and discarded the Jury. In this way, Roman Law was introduced under the mantle of the Church into the English legal system. It occupied a limited position there, but a very important one. In the course of time, ecclesiastics gave up pronouncing judgment, but the ecclesiastical tribunals continued to exist, and they still exist in our day, under the name of Doctors' Commons.

(3) It was only in the beginning of the reign of the Tudors that the inadequacy of customs or of the Common Law began to make itself felt. Society had become markedly civilized. Transactions between people had become more numerous and the need for a more developed law had followed on the growth of wealth and enlightenment.

This change made itself felt at the time when royal power was at its height. It was then natural that plaintiffs should address themselves to the Kings representative for judicial matters to obtain what the law could not give them. From that was born the court of the Chancellor, Chancery or Equity Court. That was the remedy the English found to amend the vices of their laws without changing them. They preferred to throw themselves on the mercy of arbitrariness and to create a sort of judicial dictatorship rather than undertake the reorganization of their ancient institutions. In the matters that fell within their jurisdiction, these Chancellors created an entirely new law. They drew their principles sometimes from the Common Law, sometimes from Roman Law, sometimes from their own selves, and time established their jurisprudence.

One can list under four headings the cases over which the Courts of Equity claimed jurisdiction:

1st. What is called Specific Performance of Contracts. Under the Common Law when a man who had made an agreement with another refused to carry it out, the latter could only ask the jury for damages; that was only an incomplete form of justice, for I who entered into the contract might have need of the thing promised and not of the money offered in its place. A society which had made some little advance in civilization could not put up with so rough a conception of equity.

So one turned to the Chancellor to find a remedy for the deficiency of the law. He accepted jurisdiction in cases of this type without the aid of a jury, and obliged the man who had undertaken the obligation to perform the actual terms of the contract. Note well that this applied only to contracts and not to cases concerning real property properly so called. A man buys some land; he pays for it. The property is transferred by the former owner who refuses to give it up; in that case there was no need to have recourse to the Chancellor. The jury could order that the real owner be put in possession. In that sense, to speak accurately, the contract had already been executed, and the matter was reduced to an ordinary question of ownership.

2nd. The second category of jurisdiction is what are called Trust Estates. One man gives another some land but stipulates at the same time for the payment of a life annuity. The payment of that rent is no matter for the Common Law; it was difficult for the plaintiff to start an action. The matter raised a complicated question which went beyond what the Common Law had foreseen. There was, in fact, no question of claiming back what had been given. That really was the property of the recipient; it was only desired that the recipient should perform an act posterior to the sale but which nevertheless had been foreseen by the contracting parties. When cases of this type began to become common people turned to the Chancellor, who provided the remedy.

3rd. The third category of the Chancellor's jurisdiction is bankruptcies. The order in which creditors should rank; means of forcing the debtor to pay; all these rules could not get themselves settled in the framework of the semibarbarous society of the Middle Ages. The need soon made itself felt, and the Chancellor took on the duty of filling up the gap in the law on this point.

4th. Everything relating to minors, guardianship of them and their property. That fell under the jurisdiction of the Chancellor, as the result of feudal conceptions. The lord, according to feudal laws, was the natural guardian of his vassals when minors. The King, in that sense, was the guardian of his subjects when minors.

When the royal power had grown still greater out of the ruins of that of the lords, it was the King, who through his Chancellor, took on the duty of regulating everything which concerned guardianships and to judge all the cases where the interests of minors were concerned.

It seems that when the defendant refused to obey the Chancellor's judgment, the latter had him arrested until he submitted, a procedure which is still enforced.

Such is a sketch of English law. It was necessary to talk about it in order to understand what had been taken over from it in Pennsylvania.

I said to him today: "What I least understand in America is the nature and ways of activity of the political parties. In France, and elsewhere in Europe, society is divided by two or three important conceptions round which definite interests and emotions group themselves. In America I see nothing like that: one might say that there are nothing but coteries here and no parties properly called. Personalities are everything, and principles of little account."

Mr. Biddle answered me: "I can believe that you find it difficult to understand the nature and activity of parties in America, for we get lost ourselves in just the same way. There has been a mix-up of all the old parties and today it would be impossible to say what is the political belief of those who would support the administration, or of those who attack it.

"But it has not always been like that?" I asked.

"No, certainly not," replied Mr. Biddle, "this is something quite new with us. For a long time we were divided between Federalists and Republicans. Those two parties were very like what you have in Europe; they had political doctrines to which interests and emotions were attached. They fought bitterly until the Federalist party, always short in numbers, was completely crushed by its adversary: tired of their vanquished position, the Federalists ended by giving up their own cause; they either merged in the successful party, or rallied, under other names, about questions of detail.

"But the party standard has really been knocked down for good and all. This revolution finally worked itself out when General Jackson came on the scene; he claimed to make no distinction between the old parties in his choice. Since then there have been people who support the administration, and people who attack it; people who extol a measure, and people who abuse it. But there are no parties properly so called, opposed one to the other and adopting a contrary political faith. The fact is that there are not two practicable ways of governing this people now, and political emotions have scope only over the details of administration and not over its principles."

Q. With you the Head of State can have the majority of Congress against him without public business suffering?

A. Yes, certainly. Our political machine is organized so that it can work by itself. The situation of which you speak has already come about several times; even now the President has lost the confidence of Congress and of informed opinion. His proposals are not adopted and his selections are turned down by the Senate; nonetheless public business is carried on just as well as before and no one has any fears for the future. I regard as one of the severest tests of the excellence of our institutions this ease with which we succeed in getting along without government or going upstream against it.

It would seem that the habit of changing place, of turning things upside down, of cutting, of destroying, has become a necessity of his existence. Very often the second owner too cannot persuade himself to stay still. When the land is in full cultivation, he sells it in his turn and goes further on to work up a newer piece of land.

But the third emigrant stays; it is they who make up the population. The others are as it were the advance guard of civilization in the wilds of America."

(Tocqueville, p. 81)

(Tocqueville, p. 162)