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+Project Gutenberg's The American Judiciary, by Simeon E. Baldwin, LLD
+
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+Title: The American Judiciary
+
+Author: Simeon E. Baldwin, LLD
+
+Release Date: August, 2005 [EBook #8691]
+[Yes, we are more than one year ahead of schedule]
+[This file was first posted on August 1, 2003]
+
+Edition: 10
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***
+
+
+
+
+Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling,
+Charles Franks and the Online Distributed Proofreading Team
+
+
+
+
+                          THE
+                  AMERICAN JUDICIARY
+
+                          BY
+
+                SIMEON E. BALDWIN, LL.D.
+
+
+
+
+
+                       CONTENTS
+
+
+PART
+
+     CASES CITED.
+
+ I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED
+        STATES.
+
+II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS.
+
+
+                   _PART I_
+
+
+CHAPTER
+
+    I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN
+          JUDICIARY.
+
+   II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE
+          AND EXECUTIVE IN AMERICAN CONSTITUTIONS.
+
+  III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
+          DEPARTMENTS OF GOVERNMENT.
+
+   IV. THE FORCE OF JUDICIAL PRECEDENTS.
+
+    V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW.
+
+   VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN
+          LAW.
+
+  VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW
+          NOT TO BE LAW.
+
+
+                _PART II_
+
+
+ VIII. THE ORGANIZATION OF THE COURTS OF THE STATES.
+
+   IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES.
+
+    X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES,
+          AND OF THE UNITED STATES JUDICIARY TO THE STATES.
+
+   XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES.
+
+  XII. TRIAL BY JURY.
+
+ XIII. FORMALITIES IN JUDICIAL PROCEDURE.
+
+  XIV. TRIAL COURTS FOR CIVIL CAUSES.
+
+   XV. PROBATE COURTS.
+
+  XVI. BANKRUPTCY AND INSOLVENCY COURTS.
+
+ XVII. CRIMINAL PROCEDURE.
+
+XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT.
+
+  XIX. APPELLATE COURTS.
+
+   XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS
+          OF COURT.
+
+  XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL
+          LAW.
+
+ XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES.
+
+XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH.
+
+ XXIV. THE LAW'S DELAYS.
+
+  XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY.
+
+        INDEX.
+
+
+       *       *       *       *       *
+
+
+                 TABLE OF CASES
+
+
+  Ableman _v._ Booth
+  Allinson, Hale _v._
+  American Insurance Co. _v._ Canter
+  Ames _v._ Kansas
+  Ames, Smyth _v._
+  Andrews, _Ex parte_
+  Anthes, Commonwealth _v._
+
+  Bachert _v._ Lehigh Coal and Navigation Co.
+  Baldwin, Robertson _v._
+  Bank, Bardes _v._
+  Bank of Kentucky, Briscoe _v._
+  Bank of Mississippi _v._ Duncan
+  Bank of the U. S., Osborn _v._
+  Bardes _v._ Bank
+  Barrows _v._ Bell
+  Batchelder _v._ Moore
+  Baxter _v._ Brooks
+  Baxter, State _v._
+  Bean _v._ Beckwith
+  Bean, Beckwith _v._
+  Beckham, Taylor _v._
+  Beckwith _v._ Bean
+  Beckwith, Bean _v._
+  Bell, Barrows _v._
+  Bell's Gap R. R. Co., McCloskey _v._
+  Bernard, Coggs _v._
+  Biddle, Green _v._
+  Bidwell, Downes _v._
+  Bissell _v._ Dickerson
+  Blacker, Board of Supervisors _v._
+  Blair _v._ Williams
+  Blake _v._ McClung
+  Board of Supervisors _v._ Blacker
+  Bodley _v._ Gaither
+  Boffman, Hickman _v._
+  Bonham's case
+  Booth _v._ Clark
+  Booth, Ableman _v._
+  Borden, Luther _v._
+  Bowman _v._ Middleton
+  Boyd _v._ Thayer
+  Boyd _v._ U. S.
+  Bradburn, Mincey _v._
+  Bradley _v._ Fisher
+  Bradley _v._ New Haven
+  Bradley, _Ex parte_
+  Brainerd, Fitch _v._
+  Branch, _In re_
+  Brashears, Lapsley _v._
+  Briggs _v._ Garrett
+  Brine _v._ Insurance Co.
+  Briscoe _v._ Bank of Kentucky
+  Brooks _v._ State
+  Brooks, Baxter _v._
+  Brown, Kellogg _v._
+  Brown, Parkersburg _v._
+  Bulkley, State _v._
+  Bull, Calder _v._
+  Burgess _v._ Seligman
+  Burr's Trial
+  Burrows, Nudd _v._
+  Bush, Perry _v._
+  Bushnell, _Ex parte_
+
+  Calder _v._ Bull
+  California, Hurtado _v._
+  Call Publishing Co., Western Union Telegraph Co. _v._
+  Calvin _v._ Huntley
+  Canfield _v._ Mitchell
+  Canter, American Insurance Co. _v._
+  Carriere, Tua _v._
+  Cherokee Nation _v._ Georgia,
+  Chisholm _v._ Georgia
+  Christmas _v._ Russell
+  Church _v._ Pearne
+  City of South Bend _v._ Turner
+  Claflin _v._ Houseman
+  Clark, Booth _v._
+  Clarke's Appeal
+  Cleveland, Painesville and Eastern R. R. Co., _v._
+    Pritschau
+  Clymer, Norris _v._
+  Cochran, Gernon _v._
+  Coffin _v._ United States
+  Coggs _v._ Bernard
+  Cohens _v._ Virginia
+  Coleman _v._ Tennessee
+  Coler _v._ Tacoma Railway and Power Co.
+  Colt, Stanley _v._
+  Commonwealth _v._ Anthes
+  Conn. Pipe Mfg. Co., Ward _v._
+  Consul of Spain _v._ Consul of Great Britain
+  Cooper, Application of
+  Cooper, _In re_
+  Cooper, In the matter of
+  Copass, Hall-Moody Institute _v._
+  Croswell, People _v._
+  Cunningham, State _v._
+
+  Danbury, Hoyt _v._
+  Dartmouth College _v._ Woodward
+  Debs, U. S. _v._
+  Debs, _In re_
+  Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._
+  Demorest, Hutkoff, _v._
+  Dennison, Kentucky _v._
+  Deposit Bank _v._ Frankfort
+  Dickerson, Bissell _v._
+  Diggs _v._ Wolcott
+  Donoghue, Hanley _v._
+  Dorr _v._ United States
+  Dorrance, Vanhorne's Lessee, _v._
+  Dougherty, Lanark _v._
+  Dow _v._ Johnson
+  Downes _v._ Bidwell
+  Dred Scott _v._ Sandford
+  Drehman _v._ Stifle
+  Duncan, Bank of Mississippi _v._
+  Duncan, Johnson _v._
+  Dyson _v._ Rhode Island Co.
+
+  Eakin _v._ Raub
+  Eckrich _v._ St. Louis Transit Co.
+  Ellington, Miel _v._
+  Erdman _v._ Mitchell
+  Exchange Bank _v._ Rice
+
+  Farmers' Loan and Trust Co., Pollock _v._
+  Faulkner _v._ Hart
+  Finney _v._ Guy
+  Fish _v._ Smith
+  Fisher, Bradley _v._
+  Fitch _v._ Brainerd
+  Fletcher _v._ Peck
+  Flynn _v._ Morgan
+  Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co.
+  Frankfort, Deposit Bank _v._
+  French _v._ Waterbury
+  Frost _v._ Leighton
+
+  Gaither, Bodley _v._
+  Garland, _Ex parte_
+  Garrett, Briggs _v._
+  Genesee Chief, The
+  Georgia _v._ Stanton
+  Georgia, Cherokee Nation _v._
+  Georgia, Chisholm _v._
+  Georgia, Worcester _v._
+  Gernon _v._ Cochran
+  Gibbons _v._ Ogden
+  Goshen _v._ Stonington
+  Gould _v._ Hudson River R. R. Co.
+  Grady's case
+  Grapeshot, The
+  Gray, James _v._
+  Green _v._ Biddle
+  Griffin _v._ Wilcox
+  Griswold, Hepburn _v._
+  Griswold, United States _v._
+  Grover & Baker Sewing Machine Co. _v._ Radcliffe
+  Groves _v._ Slaughter
+  Guy, Finney _v._
+
+  Hale _v._ Allinson
+  Hall-Moody Institute _v._ Co-pass
+  Ham _v._ McClaws
+  Hanley _v._ Donoghue
+  Hanover National Bank _v._ Moyses
+  Hans _v._ Louisiana
+  Harris, Norris _v._
+  Hart, Faulkner _v._
+  Hawes _v._ Oakland
+  Hayburn's Case
+  Hepburn _v._ Griswold
+  Heywood, Wilcox _v._
+  Hickman _v._ Boffman
+  Hildreth's Heirs _v._ McIntire's Devisee
+  Hill _v._ Smith
+  Hill, Koehler _v._
+  Hoffman, People _v._
+  Holmes _v._ Walton
+  Houseman, Claflin _v._
+  Houser, State _v._
+  Howle, Metropolitan Life Insurance Co. _v._
+  Hoyt _v._ Danbury
+  Hudson River R. R. Co., Gould _v._
+  Huntley, Calvin _v._
+  Hurtado, _v._ California
+  Hutkoff _v._ Demorest
+
+  Insurance Co., Brine _v._
+  International Distillery, Pearson _v._
+  Irvine _v._ Stone
+
+  James _v._ Gray
+  Jecker _v._ Montgomery
+  Johnson _v._ Duncan
+  Johnson _v._ People
+  Johnson, Dow _v._
+  Johnson, Mississippi _v._
+  Johnson, State _v._
+  Joint Traffic Association, United States _v._
+  Judges, State _v._
+
+  Kansas, Ames _v._
+  Katz _v._ Walkinshaw
+  Kellogg _v._ Brown
+  Kellogg _v._ Warmoth
+  Kentucky _v._ Dennison
+  Kentucky, Louisville Ferry Co. _v._
+  Kepner _v._ U. S.
+  Ketcham _v._ McNamara
+  Kilbourn _v._ Thompson
+  Klein, U. S. _v._
+  Kneedler _v._ Lane
+  Koehler _v._ Hill
+
+  Lachenmeyer, Pepin _v._
+  Lanark _v._ Dougherty
+  La Ninfa, The
+  Lane, Kneedler _v._
+  Lapsley _v._ Brashears
+  Lee, State _v._
+  Legal Tender Cases, The
+  Lehigh Coal and Navigation Co., Bachert _v._
+  Leighton, Frost _v._,
+  Lennon _v._ Rawitzer,
+  Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._,
+  Little Charles, The schooner, U. S. _v._,
+  Loan Association _v._ Topeka,
+  Loomis _v._ Newhali,
+  Lottawanna, The,
+  Louisiana, Hans, _v._,
+  Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson,
+  Louisville Ferry Co. _v._ Kentucky,
+  Luke _v._ Lyde,
+  Luther _v._ Borden,
+  Lyde, Luke _v._
+
+  McCardle, _Ex parte_,
+  McClaws, Ham _v._,
+  McCloskey _v._ Bell's Gap R. R. Co.,
+  McClung, Blake _v._,
+  McConnaughy, Pennoyer _v._,
+  McCulloch _v._ Maryland,
+  McDaniel, Terry _v._,
+  McDowell _v._ Oyer,
+  McFarland _v._ People,
+  Mclntire's Devisee, Hildreth's Heirs _v._,
+  M'Kim _v._ Voorhies,
+  McLeod's Case,
+  McNamara, Ketcham _v._,
+  McVeigh _v._ Ripley
+
+  Madison, Marbury _v._,
+  Main, State _v._,
+  Marbury _v._ Madison,
+  Maryland, McCulloch _v._,
+  Mather, Rand _v._,
+  Merriman _v._ Social Mfg. Co.,
+  Merryman, _Ex parte_,
+  Metropolitan Life Insurance Co. _v._ Howle,
+  Mial _v._ Ellington,
+  Middleton, Bowman _v._,
+  Milligan, _Ex parte_,
+  Miln, New York _v._,
+  Mincey _v._ Bradburn,
+  Mississippi _v._ Johnson,
+  Mitchell, Canfield _v._,
+  Mitchell, Erdman _v._,
+  Montgomery, Jecker _v._,
+  Moore, _Ex parte_,
+  Moore, Batchelder _v._,
+  Morgan, Flynn _v._,
+  Mormon Church _v._ United States,
+  Morrill, State _v._,
+  Moses Taylor, The,
+  Moyses, Hanover National Bank _v._,
+  Mutual Reserve Fund Life Association, Vincent _v._,
+  Myers _v._ South Bethlehem
+
+  Nash, United States _v._,
+  Neagle, _In re_,
+  Neff, Pennoyer _v._,
+  Newhall, Loomis _v._,
+  New Haven, Bradley _v._,
+  New Jersey _v._ New York,
+  Newman, _Ex parte_,
+  New York _v._ Miln,
+  New York, New Jersey _v._,
+  New York and New England R. R. Co., Rumsey _v._,
+  New York, New Haven and Hartford R. R. Co., Stack _v._,
+  Noble _v._ Union River Logging Co.,
+  Norris _v._ Clymer,
+  Norris _v._ Harris,
+  Northern Securities Co. _v._ United States,
+  Norwalk Street Railway Co.'s Appeal
+  Nudd _v._ Burrows
+
+  Oakland, Hawes _v._
+  Ogden _v._ Saunders
+  Ogden, Gibbons _v._
+  Ohio and Mississippi R. R. Co. _v._ Wheeler
+  Olcott, People _v._
+  Osborn _v._ Bank of the U. 8.
+  Oyer, McDowell _v._
+
+  Parkersburg _v._ Brown
+  Patterson, William
+  Paul _v._ Virginia
+  Pearne, Church _v._
+  Pearson _v._ International Distillery
+  Pease, Starr _v._
+  Peck, Fletcher _v._
+  Pennoyer _v._ McConnaughy
+  Pennoyer _v._ Neff
+  Pennsylvania, Prigg _v._
+  Pennsylvania Coal Co., Sanderson _v._
+  People _v._ Croswell
+  People _v._ Hoffman
+  People _v._ Olcott
+  People _v._ Webb
+  People, Johnson _v._
+  People, McFarland _v._
+  Pepin _v._ Lachenmeyer
+  Perkins, United States _v._
+  Perry _v._ Bush,
+  Peters, Wheaton _v._
+  Pollock _v._ Farmers' Loan and Trust Co.
+  Prigg _v._ Pennsylvania
+  Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._
+
+  Radcliffe, Grover & Baker Sewing Machine Co. _v._
+  Rand _v._ Mather
+  Raub, Eakin _v._
+  Rawitzer, Lennon _v._
+  Reese, United States _v._
+  Regents _v._ Williams
+  Rhode Island Co., Dyson _v._
+  Rice, Exchange Bank _v._
+  Rich, Upshur County _v._
+  Ripley, McVeigh _v._
+  Robbins' Case
+  Robertson _v._ Baldwin
+  Robinson, _Ex parte_
+  Royall, _Ex parte_
+  Rumsey _v._ New York and New England R. R. Co.
+  Russell, Christmas _v._
+  Rutgers _v._ Waddington
+
+  Sanderson _v._ Penn. Coal Co.
+  Sandford, Dred Scott _v._
+  Saunders, Ogden _v._
+  Scott _v._ Sandford
+  Seligman, Burgess _v._
+  Shepherd, State _v._
+  Sheve, U. S. _v._
+  Siebold, _Ex parte_
+  Sims' Case
+  Slaughter, Groves _v._
+  Smith, Fish _v._
+  Smith, Hill _v._
+  Smith, U. S. _v._
+  Smyth _v._ Ames
+  Social Mfg. Co., Merriman _v._
+  South Bethlehem, Myers _v._
+  Sparf _v._ U. S.
+  St. Louis Transit Co., Eckrich _v._
+  Stack _v._ New York, New Haven and Hartford R. R. Co.
+  Stanley _v._ Colt
+  Stanley, U. S. _v._
+  Stanton, Georgia _v._
+  Starr _v._ Pease
+  State _v._ Baxter
+  State _v._ Bulkley
+  State _v._ Cunningham
+  State _v._ Houser
+  State _v._ Johnson
+  State _v._ Judges
+  State _v._ Lee
+  State _v._ Main
+  State _v._ Morrill
+  State _v._ Shepherd
+  State _v._ Travelers' Insurance Co.
+  State _v._ Ward
+  State _v._ Worden
+  State, Brooks _v._
+  Stephens, petitioner
+  Stifle, Drehman _v._
+  Stone, Irvine _v._
+  Stonington, Goshen _v._
+  Swift _v._ Tyson
+
+  Tacoma Railway and Power Co., Coler _v._
+  Tassel's Case
+  Taylor _v._ Beckham
+  Tennessee, Coleman _v._
+  Terry _v._ McDaniel
+  Thayer, Boyd _v._
+  The Genesee Chief
+  The Grapeshot
+  The La Ninfa
+  The Lottawanna
+  The Moses Taylor
+  The Schooner Little Charles, U. S. _v._
+  The Thomas Jefferson
+  Thomas Jefferson, The
+  Thompson, Kilbourn _v._
+  Topeka, Loan Association _v._
+  Trademark Cases
+  Travelers' Insurance Co., State _v._
+  Trevett _v._ Weeden
+  Tua _v._ Carriere
+  Turner, City of South Bend _v._
+  Tyson, Swift _v._
+
+  Union River Logging Co., Noble, _v._
+  United States _v._ Debs
+  United States _v._ Griswold
+  United States _v._ Joint Traffic Association
+  United States _v._ Klein
+  United States _v._ Nash
+  United States _v._ Perkins
+  United States _v._ The Schooner Little Charles
+  United States _v._ Reese
+  United States _v._ Robbins
+  United States _v._ Sheve
+  United States _v._ Smith
+  United States _v._ Sparf
+  United States _v._ Stanley
+  United States _v._ Wilson
+  United States _v._ Worrall
+  United States, Boyd _v._
+  United States, Coffin _v._
+  United States, Dorr _v._
+  United States, Kepner _v._
+  United States, Mormon Church _v._
+  United States, Northern Securities Co. _v._
+  Upshur County _v._ Rich
+
+  Vanhorne's lessee _v._ Dorrance
+  Vincent _v._ Mutual Reserve Fund Life Association
+  Virginia, Cohens _v._
+  Virginia, Paul _v._
+  Voorhies, M'Kim _v._
+
+  Waddington, Rutgers _v._
+  Walkinshaw, Katz _v._
+  Walton, Holmes _v._
+  Ward _v._ Conn. Pipe Mfg. Co.,
+  Ward, State _v._,
+  Warmoth, Kellogg _v._,
+  Waterbury, French _v._,
+  Webb, People _v._,
+  Weeden, Trevett _v._,
+  Western Union Telegraph Co. v. Call Publishing Co.,
+  Wheaton v. Peters,
+  Wheeler, Ohio and Mississippi R. R. Co., _v._,
+  Wheeler's Appeal,
+  Wilcox v. Heywood,
+  Wilcox, Griffin _v._,
+  Williams, Blair _v._,
+  Williams, Regents _v._,
+  Wilson, U. S. _v._,
+  Woleott, Diggs _v._,
+  Woodward, Dartmouth College, _v._,
+  Worcester v. Georgia,
+  Worden, State _v._,
+  Worrall, U. S. _v._
+
+
+            Additional cases cited in Second edition.
+
+  Janvrin v. Revere Water Co.,
+  Revere Water Co., Janvrin, _v._,
+  O'Brien's Petition,
+  Seery v. Waterbury,
+  Waterbury, Seery _v._
+
+       *       *       *       *       *
+
+
+
+
+                        PART I
+
+
+              THE NATURE AND SCOPE OF THE
+                 JUDICIAL POWER IN THE
+                     UNITED STATES
+
+       *       *       *       *       *
+
+
+
+                       CHAPTER I
+
+
+         ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE
+                   AMERICAN JUDICIARY
+
+
+No government can live and flourish without having as part of its
+system of administration of civil affairs some permanent human
+force, invested with acknowledged and supreme authority, and
+always in a position to exercise it promptly and efficiently, in
+case of need, on any proper call. It must be permanent in its
+character. Only what is permanent will have the confidence of
+the people. It must always be ready to act on the instant. The
+unexpected is continually happening, and it is emergencies that
+put governments to the test.
+
+The judiciary holds this position in the United States. The
+institutions which underlie and characterize it, both of the
+United States and of each of the States, considered by
+itself,[Footnote: I do not except Louisiana, for trial by jury
+and other institutions derived from the common law have
+profoundly affected her whole judicial system.] are the outgrowth
+of those of the thirteen English colonies on the Atlantic coast,
+which declared their independence in 1776.
+
+The colonial charters, whether of the proprietary, provincial or
+republican type, were all equally charters for Englishmen, based
+on the common law of the English people. So far as they granted
+legislative power, it was generally declared that it should be
+exercised in conformity, so far as might be practicable, with the
+laws of England. The proviso to this effect in the roving patent
+given by Queen Elizabeth to Sir Walter Raleigh may be taken as a
+type: "so always as the said statutes, lawes, and ordinances may
+be, as neere as conveniently may be, agreeable to the forme of
+the lawes, statutes, government, or pollicie of
+England."[Footnote: Poore, "Charters and Constitutions," II,
+1381.]
+
+In the Southern New England colonies, when first settled, the
+common law of England was disowned. They made the little law
+which they needed for themselves, and as cases which this might
+not provide for arose, they were to be decided by such rules as
+the magistrates might think right and warranted by the precepts
+found in the Bible. Connecticut continued to insist on this
+view, with general consistency, until the days of the Stamp Act,
+when it became the interest of her people to claim the benefit of
+the principles of the English constitution and of the common law,
+on which it was built up.[Footnote: Colonial Records of Conn.,
+1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._
+citations by D. Davenport, _arguendo,_ in Flynn _v._
+Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State
+archives.]
+
+In early Massachusetts the written pleadings often referred to
+the Bible, quoting a text from it as an authority, just as
+citations now might be made in a lawyer's brief from a legal
+treatise or reported case.[Footnote: Publications of the Colonial
+Society of Mass., III, 324.]
+
+As was anticipated in the Raleigh patent, it was found from the
+first and everywhere that if the common law was to be applied to
+the rough conditions of colonial life some modifications were
+necessary. These the colonists were, in the main, left free to
+make at their pleasure. Much of this work came to be done by
+their legislative assemblies; more by their courts. The
+assemblies sat but for a few days in the year: the courts were
+always open to suitors, and sessions of the inferior ones were
+frequent.
+
+The assemblies, however, were themselves courts. At first they
+kept in their own hands a large share of judicial power. They
+acted as the early parliaments of England had acted, both as a
+legislature and a judicial tribunal. In several colonies they
+long kept to themselves the right of deciding private
+controversies on equitable principles. They sat as a court of
+review, to grant new trials or review judgments. They passed
+acts of attainder. They settled insolvent estates.[Footnote:
+Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]
+
+This mingling of judicial with legislative functions is a thing
+to be tolerated only while the foundations of a government are
+being laid. As the Roman plebeian, in the days before the Twelve
+Tables, clamored for a known and certain law, so the common
+people of the early colonies insisted that from a similar want
+they held their rights too much at the will of their rulers. In
+the colony of New Haven a code was early framed; but there they
+built on a written law--the Bible.[Footnote: New Haven Colony
+Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where
+they were more anxious to avoid conflict with the common law, the
+problem was a serious one.
+
+Winthrop, writing in 1639, describes it with his usual clearness
+and discrimination thus:
+
+  "The people had long desired a body of laws, and thought their
+  condition very unsafe while so much power rested in the
+  discretion of magistrates.... Two great reasons there were,
+  which caused most of the magistrates and some of the elders not
+  to be very forward in this matter. One was want of sufficient
+  experience of the nature and disposition of the people,
+  considered with the condition of the country and other
+  circumstances, which made them conceive that such laws would be
+  fittest for us which should arise _pro re nata_ upon
+  occasions, etc., and so the laws of England and other states
+  grew, and therefore the fundamental laws of England are called
+  customs, consuetudines. 2. For that it would professedly
+  transgress the limits of our charter, which provide we shall
+  make no laws repugnant to the laws of England, and that we were
+  assured we must do. But to raise up laws by practice and
+  custom had been no transgression."[Footnote: Winthrop, "History
+  of New England," I, 322.]
+
+The tendency toward partial codification proved too strong to be
+resisted, and all the colonies soon had a substantial body of
+written law published in official form.
+
+The exercise of judicial power by colonial legislatures was
+steadily contracting throughout the century preceding the
+Revolution. Where there were Governors appointed by the crown,
+they discouraged it. The courts were correspondingly
+strengthened. Law became better understood and more wisely
+applied. A large body of local statute law had grown up by 1750,
+much of it already venerable by antiquity, and intimately
+interwoven with the life of the people. Its form and color
+differed in different colonies. Religious views and preferences
+had had a large effect in shaping it. So had influences
+proceeding from the civil war, the Commonwealth, and the
+Restoration. Yet at bottom there was the same substructure in
+Virginia as in Massachusetts, in Pennsylvania as in New York. It
+was the common law of England as it existed in the days of the
+last of the Tudor and first of the Stuart reigns.
+
+This had been built into the foundations of American institutions
+and kept firm in place, not only because the colonists were
+habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's
+(Conn.) Reports, 163, 189.] and themselves both English subjects
+and the descendants of Englishmen of those days, but largely by
+force of the British system of colonial government through the
+Lords of Trade and Plantations. The ancient _aula regis_,
+in which the king dispensed justice at first hand, had survived
+in another form in the tribunal known as the King in Council.
+This, so far as the colonies were concerned, was represented by a
+standing committee of the Privy Council. It was substantially
+the same thing as the Court of Star Chamber, but since 1640
+without the extraordinary penal jurisdiction which gave that so
+evil a reputation for Americans.[Footnote: Maitland, "Justice and
+Police," 5.] This committee was after this restriction of its
+powers known as the Lords of Trade and Plantations,[Footnote: It
+was afterward and is now called the Judicial Committee of the
+Privy Council.] and by its authority from the time when England
+first had colonies of any commercial importance (and those in
+America were the first) their statutes could be set aside and the
+judgments of their courts, when of any considerable magnitude and
+importance, reversed.[Footnote: See Paper on Appeals to the Lords
+of Trade from Colonial Courts, by Harold D. Hazeltine, Report of
+the American Historical Association for 1894, 299.] This
+revisory jurisdiction, though questioned and occasionally evaded
+or thwarted by the colonial governments, became solidly
+established long before the Revolution.[Footnote: "Two Centuries'
+Growth of American Law," 12, 18, 264.] In but one case did a
+colonial court formally ignore a judgment of reversal. This was
+in 1738, when the Superior Court of Judicature of Massachusetts,
+at its sittings in York County, in what is now the State of
+Maine, disobeyed an order of the King in Council made on appeal
+from one of its judgments, and when it was repeated a year later,
+adhered to its original position.[Footnote: Frost
+_v._ Leighton, Publications of the Colonial Society of
+Massachusetts, III, 246.] The amount involved was trifling, and
+the Lords of Trade and Plantations made no further effort to
+enforce their order.
+
+The natural effect of this court of appeal at London was to keep
+the public proceedings of the colonies in line with the common
+law of England, so far as related to its fundamental principles.
+
+A certain uniformity of result was thus secured. American law,
+in its substantial framework, was not allowed to vary from
+English law in any case where agreement was reasonably
+practicable. There was a central power at London ever ready to
+enforce the charter rule. The colonial courts, if their
+judgments were to stand, must proceed in conformity to the
+British constitution. Justice must be administered by due course
+of law, and to find out what that due course was the judges were
+forced to study the English law-books. When Blackstone's
+Commentaries were first published, more copies were sold in
+America than in England.[Footnote: "Two Centuries' Growth of
+American Law," 20.]
+
+The colonial bench was weaker than the colonial bar. Judicial
+station was at first always, and later often, a mere incident of
+political office. When judges were appointed whose functions
+were wholly judicial, their selection was largely dictated by
+political considerations or executive favor. Few of them were
+really learned in the law. Of the bar many were. That of
+Massachusetts did not conceal its disapprobation when
+Lieutenant-Governor Hutchinson, although he had never been a
+member of it, was appointed Chief Justice in 1760. None of the
+judges of the first Superior Court in that colony were
+lawyers.[Footnote: Winsor, "Narrative and Critical History of
+America," V, 166.] In some of the others the Governor was the
+Chancellor, and in Maryland he was at one time the Chief Justice
+also.[Footnote: Steiner, "Maryland's First Courts," Reports of
+American Historical Association for 1901, 211; Osgood, "The
+American Colonies in the Seventeenth Century," I, Chap. II; II,
+Chap. XII.] In several the judges were appointed during the
+king's pleasure, and the Governor removed them at his discretion,
+without any notice or hearing.[Footnote: Bancroft, "History of
+the United States," II, 279. A notable instance of a removal in
+consequence in part, at least, of a decision as to the royal
+prerogative, not relished by the Governor, was the case of Chief
+Justice Lewis Morris of New York, in 1733. Documents relating to
+the Colonial History of New York, V, 948; VI, 4, 8, 951.]
+
+In those colonies which were provided by charter with a Court of
+Assistants, this body soon came to act as a judicial court. This
+took place in the colony of Massachusetts Bay as soon as the seat
+of the company's government was transferred from England to
+America, and took place as a matter of course. Divisional courts
+were frequently held by part of the assistants, with original
+jurisdiction of minor causes, and all sat semi-annually, or
+oftener, to try larger ones and hear appeals.[Footnote: Noble,
+"Records of the Court of Assistants of Massachusetts Bay," I,
+Preface; Publications of the Colonial Society of Massachusetts,
+III, 317.]
+
+In Connecticut, appellate jurisdiction was originally retained by
+the General Assembly, but when the docket became too crowded,
+resort was occasionally had to the appointment of a special and
+temporary commission of appeals to clear it off. As early as
+1719, one was constituted for this purpose to hold office for two
+years.
+
+No colony set up a permanent supreme court with full appellate
+jurisdiction. None probably cared to do this, and none probably
+thought that it could. The Lords of Trade and Plantations would
+have rightly thought such a step hardly consistent with the
+maintenance of their revisory and controlling powers. It would
+have been too costly to allow two appeals; and for them to
+reverse a judgment of a colonial supreme court would have been
+more distasteful to Americans than the exercise of a similar
+power as to a court professedly of superior, not supreme,
+jurisdiction.
+
+New York had a court named Supreme, but its business was largely
+the trial of original causes, and the Governor and Council
+claimed the right of reviewing its judgments. The judges in 1765
+denied the existence of such a right, but the King in Council
+decided against them.[Footnote: Hunt, "Life of Edward
+Livingston," 26.]
+
+As soon as regular judges, not members of other departments of
+the government, were appointed for the highest court, they were
+generally required to perform circuit duty in the various
+counties during part of each year.[Footnote: See
+"Am. Hist. Review," III, 44.] This was a leading feature of the
+judicial establishment set up in 1686 under Sir Edmund Andros for
+the "Dominion of New England."[Footnote: Col. Rec. of Conn., III,
+402, 411.]
+
+South Carolina, for a hundred years, centered all her judicial
+business at Charleston. No courts sat anywhere else and all the
+lawyers in the State resided in the city. In the latter part of
+the eighteenth century she followed the other colonies in
+establishing a circuit system and county courts.[Footnote: Morse,
+"American Universal Geography," ed. 1796, 690; Osgood, "The
+American Colonies in the Seventeenth Century," II, 279, 300.]
+
+There was occasionally some little approach to English form when
+the colonial judges went on the circuit. In Massachusetts the
+sheriff or his deputy was accustomed to come out from the court
+town to meet the judges as they approached it, to open a term of
+court.[Footnote: "Life and Works of John Adams," II, 280. See
+Chap. XIII.]
+
+Acts of Parliament directly affecting procedure in American
+courts, and unifying its methods in some particulars, were
+occasionally passed during the colonial era. Such was the Act of
+1732 (V, Geo. II, Chap. VII), making affidavits taken in England
+admissible in any suit in an American colony to which an
+Englishman might be a party, and providing that all American real
+estate (including negro slaves employed upon it) should be
+subject to be levied on for any debts of the owner, although real
+estate in England could only be taken for debts of a particular
+kind.[Footnote: Connecticut promptly passed a statute extending
+the new remedy thus given, so as to authorize the sale of land
+belonging to the estate of a deceased person, to pay his debts,
+if he did not leave sufficient personal estate for that purpose.
+Col. Rec. of Conn., VII, 444.] Other English statutes, passed
+after the settlement of the colonies, and not in terms applying
+to them, were often adopted here, either by the enactment of
+colonial statutes to the same effect or by incorporation into our
+common law by tacit consent, as interpreted by the
+courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
+489, 494.]
+
+The benefit of the writ of _habeas corpus_, which, though
+issuable at common law, really first took its present shape in
+1679, by the Act of 31 Charles II, Chap. II, was thought in this
+country, though not by the Lords of Trade and Plantations, to be
+a privilege of Americans, as British subjects. In some colonies
+this statute was re-enacted, or, as in Virginia, rights under it
+conceded under the royal prerogative. In others, as in Maryland,
+it was treated as being, by tacit adoption, the birthright of the
+inhabitants. In the "Declaration and Resolves" of the first
+Continental Congress, they assert "that the respective colonies
+are entitled to the Common Law of England," and in the address to
+the people of Great Britain they complain that the English
+settlers in Canada "are now the subjects of an arbitrary
+Government, deprived of Trial by Jury, and when imprisoned cannot
+claim the Benefit of the _Habeas Corpus_ Act, that great
+Bulwark and Palladium of English Liberty."[Footnote: Journals of
+Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
+Colonies," American Historical Review, VIII, 18.]
+
+The same sentiments dictated the terms of the Ordinance of 1787,
+under which our first Territories were to be organized. One of
+its leading provisions was this:
+
+  ART. 2. The inhabitants of the said territory shall always be
+  entitled to the benefits of the writ of _habeas corpus_,
+  and of the trial by jury; of a proportionate representation of
+  the people in the legislature, and of judicial proceedings
+  according to the course of the common law.
+
+A recognized system of jurisprudence had, under the circumstances
+and from the causes which had been stated, begun to grow up
+before the Revolution. It might fairly be called American, but
+it was thoroughly English by heredity, and had been shaped by a
+long succession of English influences, and steadied by the firm
+hand of English power.
+
+The Revolutionary War made everything connected with the law of
+England distasteful to the people at large. The lawyers knew its
+value: the community did not. Public sentiment favored an
+American law for America. It was quickened by the unfriendly
+feeling toward the mother country which became pronounced toward
+the close of the eighteenth century and culminated in the War of
+1812. Several of the States, New Jersey leading off, passed
+statutes forbidding the citation, in the argument of causes, of
+any decisions of the English courts made since the Declaration of
+Independence. Under one of these Henry Clay, in 1808, was
+stopped by the Supreme Court of Kentucky when reading in argument
+from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
+Boffman, Hardin's Rep., 348, 364.] but after a few years,
+legislation of this kind, while it might remain formally
+unrepealed, was treated as obsolete both by court and
+bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
+(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
+I, 613 (1807).]
+
+In courts held by unlearned judges, also, English law-books were
+lightly considered. One of this kind was Chief Justice
+Livermore, of New Hampshire. Shortly after the close of the
+Revolution, while presiding on the bench, he stopped a lawyer who
+was reading from one with the inquiry whether he thought that the
+members of the court did not "understand the principles of
+justice as well as the old wigged lawyers of the dark ages
+did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]
+
+But whether cited or not from their original sources, the settled
+doctrines of English law were sure in the end to permeate both
+bar and bench in every State.
+
+The Roman law and the law of nations were studied in preparation
+for admission to the American bar more generally and more
+thoroughly in the years immediately preceding and following the
+Revolutionary era than they have been since.[Footnote: See
+Chap. XXIII.] The law student was also set then to reading more
+books on English law than he is now.[Footnote: See Report of the
+American Bar Association for 1903, p. 675.] He learned his
+profession by the eye and not by the ear. His only lectures were
+the occasional arguments on a demurrer or writ of error which he
+might hear in the court room, and these were a reiteration of
+rules laid down in English law-books.
+
+The reason why he read more of Roman law than is now required in
+legal education was mainly that there was more time for it, since
+of English law reports there were then few, and of American none.
+
+When the Revolution broke out it also became important in helping
+to explain the practice in prize courts. These were set up (or
+existing common law courts invested with admiralty jurisdiction)
+in all the States, and American privateers gave them not a little
+business. In order to secure uniformity of decision in matters
+so directly affecting our foreign relations, the Continental
+Congress claimed the right to exercise appellate functions,
+through a standing committee of its members, and in 1780
+organized a formal court for the purpose, styled "The Court of
+Appeals in Cases of Capture." Three judges were appointed and
+provided with a register and seal. They held terms at Hartford,
+New York, Philadelphia and Richmond during the next six years.
+On an average about ten cases were disposed of annually, and the
+decisions were generally conceded to have been fair and well
+supported by the rules of admiralty and the law of
+nations.[Footnote: See Jameson, "Essays on the Constitutional
+History of the United States," I; J. C. Bancroft Davis, "Federal
+Courts Prior to the Adoption of the Constitution," 131 United
+States Reports, Appendix, XIX.]
+
+The influence of French ideas was strong in shaping constructive
+work in American politics, as the colonies passed into States;
+but aside from the separation of the judicial department from the
+executive and legislative it had little effect upon the courts
+until the opening of the nineteenth century. Then the principles
+of the Roman law, particularly as presented and illustrated by
+the French jurists, were seized upon by Kent and Story, and
+served greatly to expand and enrich our jurisprudence.[Footnote:
+"Memoirs and Letters of James Kent," 117.]
+
+The course of events which has been sketched left certain ideas
+in regard to the position and powers of the judiciary with
+respect to the other branches of the government firmly imbedded
+in the American mind. These may be thus summarized:
+
+Judges were to proceed according to established rules, so far as
+established rules might exist.
+
+They were to proceed in analogy to established rules as to points
+which no established rule might cover.
+
+They were to look to the common law and political institutions of
+England to determine what rules were established, as to points
+not covered by local usage or legislation.
+
+Local usage or legislation might, within certain limits, depart
+from the common law and even from the political institutions of
+England.
+
+There were limits to such departure, and a colonial statute or
+judgment which transgressed them could be annulled or set aside
+by a higher authority.
+
+This higher authority might be judicial or political, or one
+which shared both judicial and political functions.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER II
+
+
+        THE SEPARATION OF THE JUDICIAL POWER FROM THE
+            LEGISLATIVE AND EXECUTIVE IN AMERICAN
+                    CONSTITUTIONS
+
+
+From the colonial system of legislatures by which all the powers
+of government were at times exercised to the modern American
+State, with its professed division of them into three parts, and
+assignment of each to a distinct department, was a long step.
+
+So far as the United States were concerned, the weakness of the
+government under the Articles of Confederation had been
+universally acknowledged and was generally thought to come in
+part from throwing whatever powers the States had granted, in a
+mass, into the hands of the Continental Congress. Nevertheless,
+the Constitution of the United States is not framed upon the
+principles of a strict tripartite division. It places the
+executive power in the hands of the President, all the
+legislative powers which were granted by it in Congress, and the
+judicial power in certain courts; but it does not follow the
+earlier State Constitutions in declaring that whatever was vested
+in either of these three depositaries was and must always be
+different in kind from that vested in any other of them.
+
+On this point Virginia set the fashion, but the sonorous phrase
+of the Massachusetts Constitution of 1780 is the most familiar,
+in its declaration (Part the First, Art. XXX) that "in the
+government of this commonwealth, the legislative department shall
+never exercise the executive and judicial powers, or either of
+them; the executive shall never exercise the legislative and
+judicial powers, or either of them; the judicial shall never
+exercise the legislative and executive powers, or either of them;
+to the end it may be a government of laws, and not of
+men."[Footnote: The last declaration of purpose was taken from
+Harrington's _Oceana_, in which it is said that while a
+monarchy is an empire of men, "a commonwealth is an empire of
+laws and not of men." Works, London ed., 35, 42, 224.]
+
+It was from an unwillingness to commit themselves to such a
+principle that the people of Connecticut and Rhode Island
+preferred for many years to be governed in the old way by their
+legislatures, without a written constitution. During this
+period, the General Assembly of Connecticut repeatedly exercised
+the power of setting aside judgments of courts, and its right to
+do so was sustained by the Supreme Court of the United
+States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3
+Dallas' Reports, 386.]
+
+The courts of the United States were called upon at an early day
+to determine how far Congress could invest them with functions
+that were not judicial or not to be performed in a judicial
+manner. An act was passed requiring the Circuit Courts to pass
+upon claims for invalid pensions, their decisions to be subject
+to review by Congress. The performance of this duty was
+declined, and the attempt to put a judgment of a court under the
+control of the legislature made the refusal so plainly proper
+that the act was repealed at the next session.[Footnote:
+Hayburn's Case, 2 Dallas' Reports, 409.]
+
+It was easier for the United States to maintain from the first
+this general scheme for the division of power than for the early
+States. Their people had grown up under too different a plan of
+government. It had become so familiar to them that they could
+hardly believe that it had been abolished. Tradition for them
+interpreted their new Constitutions and overmastered them. The
+State legislatures therefore continued for a time to claim some
+control over the judiciary, or at least a right to criticise and
+censure its doings.[Footnote: See Chap. VII.]
+
+In many of our State Constitutions, after providing for a
+distribution of powers between three separate departments,
+instead of absolutely prohibiting any of them from exercising any
+power properly belonging to either of the others, it is declared
+that this shall not be done, except as may be expressly allowed
+in subsequent articles.
+
+Such a declaration was proposed in the draft of the Constitution
+of Connecticut, reported to the convention which framed it in
+1818; but on objection it was struck out.[Footnote: Journal of
+the Constitutional Convention of Connecticut, pp. 78, 55.] It
+was thought better to leave the relations of the departments to
+each other to be worked out in practice, and for nearly eighty
+years afterward the legislature continued to exercise some
+judicial power. It sometimes gave equitable relief to carry out
+a charitable purpose in a will, which would otherwise fail. It
+interfered repeatedly in probate proceedings. It released
+sureties in judicial recognizances. It set aside judgments.
+[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315;
+Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of
+the Supreme Court of Errors sanctioned the practice;[Footnote:
+Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898
+the court overruled its former opinion, and held that as the
+three departments were made separate and distinct, it needed no
+express constitutional declaration to prevent either from
+invading the province of the other, and so that no power not
+judicial in its nature could be conferred upon the
+courts.[Footnote: Norwalk Street Railway Company's Appeal, 69
+Conn. Reports, 576; 37 Atlantic Reporter, 1080.]
+
+But may not a power be judicial in its nature and yet not wholly
+so?
+
+It is practically impossible to establish in every instance a
+plain line of demarcation between legislative, executive and
+judicial functions.
+
+Courts, for instance, make rules of practice. In one sense this
+is a judicial act, because it is one appropriate for the
+judiciary. In another point of view it is an act of legislation.
+In nothing does it resemble the act of judging a litigated cause.
+
+Impeachments are both political and judicial proceedings, but
+American constitutions leave them wholly to the legislative
+department.
+
+Franchises to exist as an artificial person are the proper
+subjects of legislative grant, but with the growing insistence in
+our Constitutions on absolute equality of right, they are now
+almost everywhere given only by general laws. Such a law will
+offer incorporation for certain purposes to any who choose to
+avail themselves of the privilege by fulfilling certain
+conditions and filing certain papers in a public office. But
+what shall be the nature of this office, and who shall decide
+whether these conditions have been fulfilled and these papers
+filed?  The legislature may select an executive, a legislative,
+or a judicial office. It may entrust this power of decision to
+an executive, a legislative, or a judicial officer. It has, in
+fact, in some States, entrusted it to a court, and authorized it,
+if it decided in favor of those claiming incorporation, not only
+to record the decision, but to issue the paper which shows that
+they are entitled to possess and enjoy the franchise.
+
+It is safe to assert that in no State are the functions of the
+courts purely judicial. Many belonging to the administration of
+the methods of political government are in all intrusted to
+judicial officers either originally or by way of review. Some of
+these concern such matters of internal police, as the enforcement
+of laws to preserve the public health or to regulate the sale of
+intoxicating liquors, and the establishment and repair of
+highways.[Footnote: Application of Cooper, 22 New York Reports,
+67, 82, 84; Norwalk Street Railway Company's Appeal, 69
+Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._
+New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter,
+960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477;
+Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North
+Eastern Rep. 381.] Instead of creating a system of bureaus and
+prefects, we have adhered to the English plan of administering
+local and county concerns through justices of the peace, courts
+of quarter-sessions, and county or parish courts.[Footnote: See
+Maitland, "Justice and Police," 85.] Of the affairs committed to
+such authorities some pertain to the conduct of elections, and
+courts are frequently empowered to appoint election officers or
+clerks, because it is felt that thus a wise impartiality in
+selection can best be attained.[Footnote: People _v._
+Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596;
+56 American Reports, 793; _Ex parte_ Siebold, 100
+U. S. Reports, 371, 397.]
+
+It is vital to the proper working of government under a written
+constitution that these constitutional restrictions on the powers
+of the courts should not be too strictly interpreted. Every step
+in the progress of civilization makes this the more obvious. No
+absolute trinity of governmental form can be maintained in human
+society, as the relations of each individual to his fellows, and
+of the State to all, become, and necessarily become, more
+numerous and complicated. In every State that department which
+in practice proves the strongest will push its jurisdiction
+furthest.
+
+It may be said, in view of its now established power to decide
+between higher and lower forms of law,[Footnote: See Chap. VII.]
+that the judiciary has proved the strongest. The legislature, as
+has been stated, have found it a convenient depositary of many
+quasi-legislative and quasi-executive functions, and this also
+has largely increased its power.
+
+The theory of the French philosophers that all the powers of
+government could be divided into three parts, each bearing a name
+descriptive only of itself, is not supported by the practical
+experience of Americans. There are functions that might as well
+be assigned to one of these parts as to another, or made into a
+fourth and called administrative.[Footnote: Under authority of
+her present Constitution, Virginia in 1904 organized a State
+Commission for the Supervision of Corporations, which has both
+judicial and administrative functions.]
+
+The Constitution of the United States recognizes this in effect.
+It makes the Senate an executive council, as well as a
+legislative chamber. It allows Congress to vest the appointment
+of any inferior officers in the courts (Art. II, Sec. 3). In
+practice this power has been freely used.
+
+The Supreme Court of the United States has had occasion to
+consider this question in connection with the statutes defining
+the jurisdiction of the Circuit Courts. It extends to certain
+"suits." But what is a suit?  It is not necessarily a proceeding
+at common law or in equity or admiralty. It may be a statutory
+process. "Even," they say, "an appeal from an assessment, if
+referred to a court and jury, or merely to a court, to be
+proceeded in according to judicial methods, may become a suit
+within the act of Congress."[Footnote: Upshur County _v._
+Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding
+by the government to take land for public use on payment of due
+compensation, they observe that "the general rule with regard to
+cases of this sort is, that the initial proceeding of
+appraisement by commissioners is an administrative proceeding,
+and not a suit; but that if an appeal is taken to a court, and a
+litigation is there instituted between parties, then it becomes a
+suit within the meaning of this act of Congress."[Footnote:
+_Ibid_., 475.]
+
+In one point of considerable importance express constitutional
+provisions generally narrow the jurisdiction of American, as
+compared with English courts. Each house of the legislature is
+made the final judge of the returns and qualifications of its
+members. In England, election contests as to a seat in the House
+of Commons has been made by Act of Parliament the subject of
+judicial determination. This avoids partizan decisions and is so
+far good. It diminishes, however, the independence of the
+legislative house in which the seat is contested. This is
+jealously guarded by our traditions as well as our Constitutions.
+The practice of wearing hats during the sessions of the House of
+Commons was an expression of the early feeling of the English
+Commons on this subject. They would not uncover before speaker
+or king. In some of the early American legislatures the same
+thing was done. Hats were occasionally worn in the House of
+Representatives at Washington as late as the second quarter of
+the nineteenth century.[Footnote: Hunt, "Life of Edward
+Livingston," 301. They were worn in the Continental Congress on
+occasions of ceremony. McMaster, "History of the People of the
+United States," I, 105.]
+
+On the other hand, American courts interfere more readily than
+the English to protect a citizen from arrest by legislative
+authority. Each house of the British parliament has large
+inherited powers over those who may treat it with contempt. Each
+house of an American legislature has some powers of this
+description, but they are far narrower ones.[Footnote: Kilbourn
+_v._ Thompson, 103 U. S. Reports, 168.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER III
+
+
+       THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
+                DEPARTMENTS OF GOVERNMENT
+
+
+Courts of Claims are the only permanent special courts for the
+disposition of causes arising from the acts of public
+officials.[Footnote: One exists for the United States; and one
+for New York.] The system of administrative law prevailing on
+the Continent of Europe, by which all such matters are withheld
+from the ordinary tribunals, is totally unknown here. If the
+Secretary of War of the United States should do some act to a
+private citizen, which may be justified by his official powers,
+but otherwise would not be, he may be summoned to answer for it
+before any civil court having jurisdiction of the parties. So
+may even the President of the United States be sued after the
+expiration of his term.
+
+The President, while President, however, cannot be compelled to
+obey a summons to appear in court. The country cannot spare him
+to go here and there in obedience to a writ. Chief Justice
+Marshall issued one against President Jefferson, directing him to
+appear at the trial of Aaron Burr and bring with him a certain
+paper. Jefferson declined to obey, and there was no attempt to
+enforce the subpoena. Had there been, it would have been found
+that he had taken measures for his protection.[Footnote: Thayer,
+"John Marshall," 79.] Marshall's action was based on an
+admission by the counsel for the government that a summons to
+testify could lawfully issue, though they denied that it could be
+accompanied by a direction to produce documents. This admission
+is now generally thought by the legal profession to have been
+ill-advised. If the President could be summoned at all, he could
+be compelled to obey the summons, and nothing could be more
+unseemly or inadmissible than an attempt of that nature by the
+judiciary against the executive power of the United States.
+
+But while there is nothing like an administrative court for the
+disposition of causes against individuals in the United States,
+considered as a collection of States or of people within those
+States, more freedom has been used by Congress in providing for
+the Territories. This has been conspicuously the case in regard
+to the Philippines. By the Act of Congress of July 1, 1902, they
+were left under the supervision of the War Department, in which
+there was constituted a "Bureau of Insular Affairs," the business
+assigned to which "shall embrace all matters pertaining to civil
+government in the island possessions of the United States subject
+to the jurisdiction of the War Department; and the Secretary of
+War is hereby authorized to detail an officer of the army whom he
+may consider especially well qualified to act under the authority
+of the Secretary of War as the Chief of said Bureau." The
+officer filling the position of chief published in 1904 this
+account of the practical working of the provisions made for the
+disposition of matters of legal controversy occurring on the
+islands: "The establishment of a judicial system in the
+Philippines affords a means for the adjudication of litigated
+questions between the inhabitants and of many questions
+respecting the jurisdiction and authority of officials of that
+government. Whenever possible, controversies are referred to
+those tribunals. In some instances questions have arisen
+affecting the action or authority of officers of the executive
+department of that government in matters controlled by the
+discretion of the administrative branch and affecting the
+administration of civil affairs. These questions are considered
+and determined by the War Department, upon investigation and
+report by the law officer."[Footnote: _National Geographic
+Magazine_ for June, 1904, p. 251.]
+
+Under our American constitutional system, the only courts of an
+administrative or political nature for calling public officers
+directly to account for a breach of public duty are our courts of
+impeachment. These act only occasionally, and when specially
+convened for the purpose of hearing charges against a particular
+individual. They do not grant relief to any party injured by the
+wrongful acts which are the subject of the accusation. They sit
+only to punish the public wrong.
+
+In constituting courts of impeachment, the control of the cause
+is generally given to officers of the legislative department, but
+judicial officers are often joined with them. Such a tribunal
+was long maintained in New York, of which the senators formed the
+majority, but in which the chancellor and judges of the Supreme
+Court also sat. The first Constitution of South Carolina,
+adopted in 1778, contained a similar provision (Art. XXIII).
+
+In most States the Senate alone constitutes the court for trying
+impeachments, but should the Governor be thus brought before
+them, the Chief Justice is added to it, and presides. A similar
+provision is contained in the Constitution of the United States
+as respects the President. The main reason for putting such a
+proceeding under judicial direction is to avoid giving the second
+in rank of the executive magistracy, whose function it generally
+is to preside over the Senate, a position of authority over his
+chief, in a proceeding which, if successful, would put him in his
+place. It also, of course, tends to promote a trial in
+accordance with all the rules of law. The court in such a
+proceeding cannot be regarded as fully organized until the Chief
+Justice is present. It is then first competent to prescribe the
+rules to govern it during the progress of the cause. This was
+the ruling of Chief Justice Chase on the impeachment of President
+Johnson, which was tacitly acquiesced in by the Senate.
+
+New York originally not only gave her legislature a share in
+judicial power, but her judges a share in that of legislation.
+Her Constitution of 1777 provided for a council of revision,
+consisting of the Governor, the Chancellor, and the judges of the
+Supreme Court, to whom all bills which passed the Senate and
+Assembly should be presented for consideration; and that if a
+majority of them should deem it improper that any such bill
+should become a law they should within ten days return it with
+their objections to the house in which it originated, which
+should enter the objections at large in its minutes, and proceed
+to reconsider the bill; and that it should not become a law
+unless re-passed by a vote of two-thirds of the members of each
+house. For forty years this remained the law, and the Council of
+Revision contained from time to time judges of great ability,
+Chancellor Kent being one. During this period 6,590 bills in all
+were passed. One hundred and twenty-eight of them were returned
+by the Council with their objections, and only seventeen of these
+received the two-thirds vote necessary to re-enact
+them.[Footnote: Poore, "Charters and Constitutions," II, 1332,
+1333, note.]
+
+An obvious objection to this method of legislation is that the
+judges who, as members of a council of revision, find nothing
+objectionable in a bill presented for their scrutiny, must
+naturally have a certain pride of opinion to conquer before,
+should its constitutionality become afterward the subject of
+litigation before them, they could be in a frame of mind to
+render an unprejudiced judgment. One of the bills which came
+under the eye of Chancellor Kent as a member of the Council was
+afterward the source of controversy before him in court. He
+adhered to his original views, but was overruled by the Supreme
+Court of the United States. Chief Justice Marshall gave the
+opinion, and half apologetically alluded to this circumstance in
+these words:
+
+  The State of New York maintains the constitutionality of these
+  laws; and their legislature, their council of revision, and
+  their judges, have repeatedly concurred in this opinion. It is
+  supported by great names--by names which have all the titles to
+  consideration that virtue, intelligence, and office can bestow.
+  No tribunal can approach the decision of this question without
+  feeling a just and real respect for that opinion which is
+  sustained by such authority; but it is the province of this
+  court, while it respects, not to bow to it implicitly; and the
+  judges must exercise, in the examination of the subject, that
+  understanding which Providence has bestowed upon them, with
+  that independence which the people of the United States expect
+  from this department of the government.[Footnote: Gibbons
+  _v._ Ogden, 9 Wheaton's Reports, 1.]
+
+A device for obtaining the same end--the views of the judges in
+advance of the enactment of a law--in a different way, has been
+from the first quite common. This is for the legislature to ask
+them specially for their opinion as to the constitutionality of a
+bill before it is put upon its passage. An analogous practice
+has always obtained in England, and was followed in several of
+the colonies.
+
+Some of our State Constitutions expressly authorize such
+proceedings. In the absence of such authority, the judges can
+properly decline to comply with the request. It always asks them
+to prejudge a question which may later come before them in court,
+and to prejudge it without hearing any of the parties whom it may
+affect injuriously.[Footnote: See the Reply of the Judges of the
+Supreme Court of the General Assembly, 33 Conn. Reports, 586.]
+
+President Washington, in 1793, brought a matter of this kind
+before the justices of the Supreme Court of the United States.
+It was during the controversy with M. Genet, the French minister,
+as to his right to refit a captured English merchantman as a
+privateer at an American port, and then send her out for a
+cruise. By the advice of his Cabinet, the President asked the
+justices a series of questions comprehending all the subjects of
+difference as to the proper exposition of the provisions of our
+treaties with France under which her minister made claim. They
+replied that they deemed it improper to enter the field of
+politics by declaring their opinions on questions not growing out
+of some case actually before them.[Footnote: Marshall, "Life of
+Washington," V, 433, 441.] No further request of this kind has
+since been made by any of the political departments to a court of
+the United States, except such as have been addressed to the
+Court of Claims.
+
+Idaho, in her Constitution (Art. V, Sec. 25), has sought to give
+the legislature the benefit of judicial advice at the opening of
+each session as to what laws it might be desirable to enact. The
+judges of her trial courts are annually to report to those of her
+Supreme Court such defects and omissions in the laws as their
+knowledge and experience may suggest, and the latter, after
+considering these suggestions, are then, within the next five
+months, to report to the Governor such defects and omissions,
+both in the Constitution and in the laws, as they may find to
+exist.
+
+The duty of the judiciary, in the course of lawsuits, to compare
+a statute, the validity of which is called in question, with the
+Constitution, and by the decision indirectly to affect
+legislation, is treated of elsewhere.[Footnote: Chap. VII.]
+
+The courts of the United States, in controversies involving
+matters affecting the foreign relations of the general
+government, acknowledge in a certain degree a dependence upon the
+executive department. If they have a treaty to construe, any
+construction of it as to the point in question already given by
+the State Department will be followed, unless plainly wrong. If
+it becomes material to determine whether a certain country is
+subject to a certain power, and the President of the United
+States has dealt with that question (as by recognizing or
+refusing to recognize a minister accredited to the United
+States), his action will be accepted as conclusive. His
+proceedings would have like weight if taken within the limits of
+his authority with respect to the government of one of the United
+States.[Footnote: Luther _v._ Borden, 7 Howard's Reports,
+1.]
+
+When questions of this nature arise in a lawsuit between private
+parties, the courts can, without notice to them, seek information
+by communicating directly with the Department of State. It will
+be given by a letter or certificate, and this will be received as
+a conclusive mode of proof or as aiding the court in taking
+judicial notice of historical facts.
+
+So an official letter or certificate from the minister or consul
+of a foreign power can be received and used as evidence as to
+facts in controversy peculiarly within the knowledge of that
+government.[Footnote: Gernon _v._ Cochran, Bee's Reports,
+209.]
+
+In prize cases, which must all be brought before the District
+Court, an appeal is allowed directly to the Supreme Court of the
+United States, although the judgments of the District Court
+generally are reviewable only in an intermediate court. This
+secures a prompt decision by the highest judicial authority of a
+question which necessarily affects, in some degree, the foreign
+relations of the United States.
+
+But there may be cases affecting a vessel claimed as a prize
+which are not brought to secure her forfeiture and so are not
+prize cases. They may even to a greater extent affect our
+relations to foreign governments. How far can the courts, in
+dealing with these, govern their action by that of the executive?
+
+This question came up for decision shortly after the adoption of
+the Constitution. Great Britain and Spain were at war. A
+British man-of-war brought a Spanish felucca into Charleston,
+claiming her as a prize, and she was advertised for sale. No
+proceedings to have her adjudicated a lawful prize had been taken
+before any court. The Spanish consul applied to the Circuit
+Court for an injunction against the sale, claiming that for the
+United States to permit it would be a breach of neutrality and
+contrary to the law of nations. The British consul resisted the
+application on the ground that a sale could not be forbidden in
+the absence of any act of Congress on the subject, except by the
+President. The Chief Justice, who sat in the case, gave the
+opinion, which was that there could be no lawful sale without the
+permission of the United States; that it was a matter proper to
+be dealt with by the President; that the court would not say how
+he should deal with it; but that an injunction might issue to
+stop the sale until further order, unless permission should be
+sooner obtained from the President.[Footnote: Consul of Spain
+_v._ Consul of Great Britain, Bee's Reports, 263.] Here,
+therefore, an act which might have been a _casus belli_ was
+stayed by a court until and unless the Executive should intervene
+and permit it.
+
+The extradition of criminals under a treaty on the demand of a
+foreign government presents a debatable ground in respect to the
+subject now under consideration. The surrender is an executive
+proceeding and a political act. But the laws may provide for a
+preliminary inquiry before a court into the propriety of
+complying with the demand. They certainly provide for a judicial
+proceeding by writ of _habeas corpus_ to release any one
+arrested in such a proceeding if held without due cause. Is the
+court before which either of these proceedings may be had at
+liberty to receive advice or submit to instructions from the
+President of the United States?
+
+This question stirred the country to its depths in 1799. Great
+Britain applied to our government for the extradition of a seaman
+who claimed to be an American citizen and was charged with
+committing murder on a British man-of-war. He was arrested in
+South Carolina, under a warrant from the District Judge, and
+lodged in jail. There was a treaty of extradition between the
+two powers covering cases of murder, but no particular machinery
+had been provided for regulating the surrender. The British
+consul asked the judge who had made the commitment to order his
+delivery to him. The judge doubted his power to do so.
+Thereupon the Secretary of State, by authority of the President,
+wrote him that the President advised and requested him to make
+the surrender, if satisfied with the proofs of criminality, as he
+(the President) was of opinion that any crime committed on a
+man-of-war was committed within the territory of the power to
+which it belonged. The judge complied with this request, after a
+public hearing on a writ of _habeas corpus_, under which he
+ordered the man in question to be brought before him, and in the
+course of it this letter was shown to counsel on both sides.
+
+The surrender became at once the subject of heated debates in
+Congress, but the President's course was ably and conclusively
+defended by Marshall on the floor of the House,[Footnote: United
+States _v._ Nash _alias_ Robins, Bee's Reports, 266;
+Robbins' Case, Wharton's State Trials, 392.] and the course
+pursued has since been followed in substance by our extradition
+statutes.[Footnote: United States Revised Statutes, Secs. 5270,
+5272.] These provide for a hearing of a judicial character, and
+then, if that results in a determination that a surrender should
+be made, it may be ordered on a warrant from the State
+Department.
+
+On the other hand, the peculiar provision of the Constitution of
+the United States which makes treaties the supreme law of the
+land calls upon the courts to enforce them according to whatever
+interpretation they may conclude to give them, even if it should
+differ from that adopted by the President or the State
+Department. If a treaty prescribes a rule by which the rights of
+private individuals are to be determined, and those rights are
+such as can be appropriately made the subject of a lawsuit, the
+court before which it may be brought has as full authority to
+construe the treaty as it would have to construe an act of
+Congress, were the matter in controversy one of a statutory
+nature. They cannot be appropriately made the subject of a
+lawsuit so long as the questions involved are under active
+consideration in the course of diplomatic negotiation and pending
+for decision before the President. Let him, however, once make
+his decision and the doors of the court fly open.
+
+These principles are well illustrated by some incidents of our
+controversy with Great Britain over the seal fisheries in Behring
+Sea. There was a serious dispute between the two governments as
+to the limits of our jurisdiction over the waters adjacent to
+Alaska. We maintained that it ran to the middle of Behring's
+Straits and from the meridian of 172 deg. to that of 193 deg. west
+longitude. Great Britain contended for the three-mile limit.
+Pending diplomatic negotiations as to this point, one of our
+revenue cruisers seized a Canadian vessel which was engaged in
+seal fishing nearly sixty miles from the Alaskan coast, and she
+was condemned, on a libel by the United States, by an admiralty
+court in Alaska.
+
+The owner in 1891 applied to the Supreme Court of the United
+States for a writ to prohibit the enforcement of this decree of
+confiscation. The Attorney-General of Canada filed in this suit
+papers in aid of the application, stating that he did so with the
+knowledge and approval of the imperial government, and that he
+would be represented by counsel employed by the British minister
+resident. The writ was refused on technical grounds, but the
+court, through Chief Justice Fuller, made these observations as
+to the merits of the cause:
+
+  In this case, Her Britannic Majesty's Attorney-General of
+  Canada has presented, with the knowledge and approval of the
+  Imperial government of Great Britain, a suggestion on behalf of
+  the claimant. He represents no property interest in the
+  vessel, as is sometimes done by consuls, but only a public
+  political interest. We are not insensible to the courtesy
+  implied in the willingness thus manifested that this court
+  should proceed to a decision on the main question argued for
+  the petitioner; nor do we permit ourselves to doubt that under
+  such circumstances the decision would receive all the
+  consideration that the utmost good faith would require; but it
+  is very clear that, presented as a political question merely,
+  it would not fall within our province to determine it.... We
+  are not to be understood, however, as underrating the weight of
+  the argument that in a case involving private rights, the court
+  may be obliged, if those rights are dependent upon the
+  construction of acts of Congress or of a treaty, and the case
+  turns upon a question, public in its nature, which has not been
+  determined by the political departments in the form of a law
+  specifically settling it, or authorizing the executive to do
+  so, to render judgment, "since we have no more right to decline
+  the jurisdiction which is given than to usurp that which is not
+  given."[Footnote: _In re_ Cooper, 143 United States
+  Reports, 472, 503.]
+
+In the following year a convention was concluded between the
+United States and Great Britain for the submission of the
+question of our jurisdiction over Behring's Sea to arbitration.
+The arbitration took place and the award supported the British
+contention. Congress passed an act to give it full effect. The
+convention provided in terms that "the high contracting parties
+engage to consider the result of the proceedings of the tribunal
+of arbitration as a full, perfect and final settlement of all the
+questions referred to by the arbitrators."
+
+In July, 1891, before the award was made, an American vessel
+engaged in the seal fishery outside the three-mile limit was
+seized by one of our revenue cutters. A libel was filed by the
+United States in the admiralty court for Alaska and she was
+condemned. Her owners appealed to the Circuit Court of Appeals,
+on the ground that the seizure was made outside of the
+jurisdiction of the United States. If so, they were entitled to
+her release. The court held that the limits of this jurisdiction
+were conclusively settled by the award, and thus adverted to the
+claim that they should treat the case as the Supreme Court of the
+United States had dealt with that which followed the seizure of
+the year before:
+
+  This question has been settled by the award of the arbitrators,
+  and this settlement must be accepted "as final." It follows
+  therefrom that the words "in the waters thereof," as used in
+  section 1956, and the words "dominion of the United States in
+  the waters of Behring Sea," in the amendment thereto, must be
+  construed to mean the waters within three miles from the shores
+  of Alaska. In coming to this conclusion, this court does not
+  decide the question adversely to the political department of
+  the government. It is undoubtedly true, as has been decided by
+  the Supreme Court, that, in pending controversies, doubtful
+  questions which are undecided must be met by the political
+  department of the government. "They are beyond the sphere of
+  judicial cognizance," and "if a wrong has been done, the power
+  of redress is with Congress, not with the judiciary." The
+  Cherokee Tobacco, 11 Wall., 616-621. But in the present case
+  there is no pending question left undetermined for the
+  political department to decide. It has been settled. The
+  award is to be construed as a treaty which has become final. A
+  treaty when accepted and agreed to becomes the supreme law of
+  the land. ... The duty of courts is to construe and give
+  effect to the latest expression of the sovereign will; hence it
+  follows that, whatever may have been the contention of the
+  government at the time _in re_ Cooper was decided, it has
+  receded therefrom since the award was rendered, by an agreement
+  to accept the same "as a full, complete, and final settlement
+  of all questions referred to by the arbitrators," and from the
+  further fact that the government since the rendition of the
+  award has passed "an act to give effect to the award rendered
+  by the tribunal of arbitration."[Footnote: The La Ninfa, 75
+  Federal Reporter, 513, 517.]
+
+The degree of confiscation was therefore reviewed. It will be
+noticed that this result was reached in a suit by the United
+States in one of their own courts, in which the claim of the
+government was one of territorial boundary, and yet that the
+court overruled the claim and threw out the suit on the strength
+of an award made in pursuance of the law of the land. The treaty
+was the law. This law provided for the award and made it,
+whichever view should be adopted, final. It was therefore for
+the court to accept it as final, even against the resistance of
+the political department of the government, and do justice
+accordingly.
+
+The courts before the Revolution, and in some States for half a
+century after it, served as a kind of political mouthpiece. The
+institution of the grand jury[Footnote: See Chap. XVII.] afforded
+the means. Those composing it are personally selected by the
+sheriff from the principal men in the county. It is the duty of
+the court to instruct them at the opening of the term which they
+are summoned to attend as to the law and practice governing the
+exercise of their functions. Frequently this charge was prefaced
+by an harangue from the judge on the social, moral, religious or
+political questions of the day.[Footnote: "Life and Works of John
+Adams," II, 169.] To this the grand jury were not backward in
+responding with compliments and perhaps presentments.
+
+In Massachusetts they went even further in 1774. The House of
+Representatives of the Provincial Assembly impeached the Chief
+Justice for accepting a salary from the Crown instead of relying
+on legislative grants, as had been the practice. The Council
+before which the articles were exhibited declined to entertain
+them. The people, however, felt that the House was right, and
+this sentiment was manifested at the next sessions of the courts
+by the grand and petit juries in every county. They refused to
+take the oaths and stated that they could not take part in
+proceedings presided over by a judge who was under impeachment.
+No business was done in court until the following year, when,
+after the battle of Lexington, new judges were appointed by the
+Council.[Footnote: "Life and Works of John Adams," II, 332; X,
+240; "Principles and Acts of the Revolution," 100.]
+
+Sometimes the laws of the State were criticised in this way by
+judge and jury.
+
+In December, 1788, a grand jury in South Carolina made this
+presentment:
+
+  We present as a grievance of the greatest magnitude the many
+  late interferences of the legislature of the State in private
+  contracts between debtor and creditor. We should be wanting in
+  our duty to our country and regardless of the obligation of our
+  solemn oath and the high trust at this time devolving upon us
+  by operation of the laws of the land, did we omit this occasion
+  between the expiration of one legislature and the meeting of a
+  new representative body, to express our utter abhorrence of
+  such interferences.[Footnote: "American Museum," VII, Appendix
+  II, 10. _Cf. ibid._, 19.]
+
+In a similar way unpopular treaties[Footnote: McMaster, "History
+of the People of the United States," II, 229.] or acts of
+Congress were formerly attacked. In 1819, the action of the
+House of Representatives as to the introduction of slavery in
+Missouri was the subject of a warm protest from a grand jury in
+that territory, which closed thus:
+
+  They hope those restrictions will never more be attempted; and,
+  if they should, they hope by the assistance of the genius of
+  '76 and the interposition of Divine Providence to find means to
+  protect their rights.[Footnote: Niles' Register, XVII, 71.]
+
+The protective tariffs of the United States were frequently
+presented as grievances in the South during the years preceding
+the nullification movement in South Carolina.[Footnote:
+U. B. Phillips, "Georgia and State Rights," Report of the
+American Historical Association for 1901, II, 117.]
+
+In 1825, a grand jury in Pennsylvania presented as a grievance
+the suspension of Commodore Porter from duty for six months under
+sentence of a naval court martial, approved by the Secretary of
+the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
+grand jury in Tennessee presented a "protest against the bold and
+daring usurpations of power by the present Executive of the
+United States" (John Quincy Adams), and stated that "being
+decidedly opposed to the present administration, we have for
+ourselves resolved to oppose all those we have just reason to
+suspect to be friendly thereto, and recommend the same course to
+all our fellow-citizens of Blount County."[Footnote: Niles'
+Register, XXXII, 366.]
+
+In 1777, the Chief Justice of South Carolina began his charge to
+a grand jury with a long statement of the justice of the
+Revolution, its military successes, and the duties of patriotism.
+The court thereupon ordered "That the political part of the Chief
+Justice's charge" be forthwith printed.[Footnote: Principles and
+Acts of the Revolution, 347.]
+
+In 1790, Judge Grimke of the same State took advantage of a
+similar occasion to comment with severity on those who had
+opposed the ratification of the Constitution of the United
+States. Jealousy had done much to poison their minds, he said,
+"for it is observable that throughout the whole of the United
+States a majority of the leaders of the opposition to our newly
+adopted government are not natives of our soil; hence this
+pernicious quality of the mind displays itself more widely in
+America."[Footnote: "American Museum," VIII, Appendix II, 33.]
+
+In 1798, when Elbridge Gerry was the Republican candidate for
+Governor of Massachusetts, a Federalist newspaper reported
+approvingly a charge of Chief Justice Dana of that State. He had
+been an ardent politician before going on the bench and had
+declined a nomination as minister to France during the preceding
+year. "The learned judge," said the Boston _Centinel_, "in
+a forcible manner proved the existence of a French faction in the
+bosom of our country and exposed the French system among us from
+the quintumvirate of Paris to the Vice-President and minority of
+Congress as apostles of atheism and anarchy, bloodshed and
+plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
+"Memoirs of Elbridge Gerry," II, 296, note.]
+
+In 1800, Justice Chase of the Supreme Court of the United States
+made several charges in Maryland hardly less objectionable, one
+of which was afterward unsuccessfully set up by the House of
+Representatives as a ground of his impeachment. The article
+stating it described the charge as "an intemperate and
+inflammatory political harangue with intent to excite the fears
+and resentment of the said grand jury and of the good people of
+Maryland against their state government and Constitution." He
+had, indeed, used this language:
+
+  You know, gentlemen, that our State and national institutions
+  were framed to secure to every member of the society, equal
+  liberty and equal rights; but the late alteration of the
+  federal judiciary by the abolition of the office of the sixteen
+  circuit judges, and the recent change in our State
+  constitution, by the establishment of universal suffrage, and
+  the further alteration that is contemplated in our State
+  judiciary (if adopted) will, in my judgment, take away all
+  security for property and personal liberty. The independence
+  of the national judiciary is already shaken to its foundation,
+  and the virtue of the people alone can restore it. The
+  independence of the judges of this State will be entirely
+  destroyed if the bill for the abolition of the two supreme
+  courts should be ratified by the next general assembly. The
+  change of the State constitution, by allowing universal
+  suffrage, will, in my opinion, certainly and rapidly destroy
+  all protection to property, and all security to personal
+  liberty; and our republican constitution will sink into a
+  mobocracy, the worst of all possible governments. I can only
+  lament that the main pillar of our State constitution has
+  already been thrown down by the establishment of universal
+  suffrage. By this shock alone the whole building totters to
+  its base and will crumble into ruins before many years elapse,
+  unless it be restored to its original state.
+
+All this was less indefensible under the judicial practice of a
+century ago than it would be now, and there were not enough votes
+of Guilty on the article of impeachment founded upon it to secure
+a conviction.
+
+In the same year, Judge Alexander Addison of the Circuit Court of
+Pennsylvania was charging a Pennsylvania grand jury that the
+Jeffersonians had assumed a name that did not belong to them.
+"Such men," he said, "disgrace the name of Republicans by
+exclusively assuming it. In their sheep's clothing they are
+ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
+For this, among other things, he was very properly impeached and
+removed in 1803, after the Republicans came into power in that
+State.[Footnote: McMaster, "History of the People of the United
+States," III, 154.]
+
+It is difficult for the American of the twentieth century to
+conceive how honorable men could so have abused official
+position.[Footnote: Wharton's State Trials, 376. Justice
+Washington made it a rule not to enter into any political
+questions in his charges unless necessary for the guidance of the
+grand jury in the work before them, and until 1817, when party
+feeling had moderated, not to give out copies of any charges for
+publication. Niles' Register, XIII, 169.] The cause lies in the
+extreme rancor which then embittered politics and debased
+society. Federalists and Republicans were hardly on speaking
+terms. Many who were actively engaged in politics felt compelled
+to carry a sword cane for defence if attacked. Judge Addison's
+charge brought out an open letter to him in a Pittsburgh
+newspaper, signed by a Republican who was on the Supreme bench of
+the State, expressing his astonishment that the people who heard
+him "were not fired with sudden indignation and did not drag you
+from your seat and tread you under foot."[Footnote: Wharton's
+State Trials, 47, note.] On the other hand, at a political
+banquet of the Boston Federalists, at about the same time, their
+approval of Judge Dana's charges to grand juries was manifested
+by this toast: "The Honorable Francis Dana, Chief Justice of the
+learned Associate Judges of our Supreme Judicial Court. While
+the political opinions delivered from the bench are dictated by
+intelligence, integrity and patriotism, may they be as highly
+respected as have ever been its judicial decisions."[Footnote:
+Austin, "Life of Elbridge Gerry," II, 297, note.]
+
+The judiciary may, and often do, command and compel inferior
+executive officers to do specific official acts which it is their
+plain duty to perform, or issue an injunction to prevent their
+doing an official act which is plainly beyond their powers.
+Heads of Departments of the State or the United States are
+subject to this power.[Footnote: Noble _v._ Union River
+Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
+U. S. Reports, 466.] So in the Federal Courts are Governors of
+States acting under a law repugnant to the Constitution of the
+United States.[Footnote: Pennoyer _v._ McConnaughy, 140
+U. S. Reports, 1.] No such writ will be issued, however, when
+the case is of a political nature and involves the exercise of
+any official discretion,[Footnote: Georgia _v._ Stanton, 6
+Wallace's Reports, 50.] nor under any circumstances against the
+President of the United States.[Footnote: Mississippi _v._
+Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
+cases be granted by a State court against the Governor there is a
+conflict of authority.
+
+The development of party government in the United States has led
+of recent years to much legislation for the regulation of party
+conventions and party organization in the interest of fair
+dealing and public order. Statutes of this nature relating to
+the form and heading of ballots for use at popular elections are
+common. If conflicting factions contend for the right of issuing
+ballots in the name of the same party, the courts may be called
+upon to decide between them on an application for an injunction
+or writ of mandamus. The legislature, however, may provide that
+some standing agency or committee of a party shall decide finally
+upon any such conflicting claims, and in such case their decision
+will be conclusive upon the courts.[Footnote: State _v._
+Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]
+
+When title to a political office is contested, the courts, unless
+there is some constitutional provision to the contrary, may be
+appealed to for a decision. This is true even in respect to the
+office of Governor.[Footnote: Boyd _v._ Thayer, 143
+U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
+548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
+is a remedy which has been, though in rare instances, abused for
+party purposes.[Footnote: Such a case was the issue by a District
+Judge of the United States in 1872 of an injunction-order under
+which the Marshal took possession of the Louisiana State-house,
+and excluded those claiming to be the legislature of the State.
+Gibson, "A Political Crime," 347 _et seq._; Senate Report,
+457, Forty-second Congress, third session.]
+
+The right of the Governors, which exists under the Constitutions
+of several States, to ask the judges of the Supreme Court for
+their opinion on any question of law, may throw upon them the
+delicate task of deciding in a collateral proceeding who is
+Governor, if the title to the office is claimed by two. This was
+the case in Florida in 1869. The House of Representatives had
+commenced proceedings of impeachment against the Governor. It
+was on the first day of a special session of the Assembly. There
+could be no such session unless a quorum was present in each
+house. There were but twelve Senators in attendance. The
+Lieutenant-Governor regarded the proceedings as regular, and
+assumed to exercise the office of Governor pending the trial.
+The Governor claimed that twelve Senators were not a quorum, and
+that the proceedings were void. On these points he requested the
+opinion of the Justices of the Supreme Court, and they gave one
+supporting his contentions.[Footnote: 12 Florida Reports, 653.]
+A few weeks later a regular session was held, at which a quorum
+was present in each house, and the proceedings of the special
+session were treated as void.[Footnote: S. S. Cox, "Three Decades
+of Federal Legislation," 518, 520.]
+
+In the early days of the United States, under the present
+Constitution, the Chief Justices of the Supreme Court of the
+United States at times filled also a political office, and so
+were invested at the same time with political and judicial
+functions. John Jay, the first Chief Justice, while holding that
+office, was made our Envoy Extraordinary to Great Britain, and
+spent a year abroad in that capacity. His acceptance of the
+position, however, occasioned general and unfavorable comment.
+John Marshall was both Chief Justice and Secretary of State for
+five weeks, during which he held one term of the Supreme Court.
+Oliver Ellsworth was both Chief Justice and minister to France at
+the same time, and for a period of over a year, during which he
+held one term of court.
+
+Nothing of this kind has since occurred, nor would it now be
+thought consistent with the proprieties of judicial office.
+
+When the result of the election of the President and
+Vice-President of the United States was contested in 1877,
+Congress, as a temporary makeshift, bridged over the difficulty
+by creating a commission of fifteen, five from each house and
+five from the Supreme Court, to decide upon the returns. Four of
+the justices were especially selected by the act passed for this
+purpose, two of them being Republicans and two Democrats, and
+they were directed to choose the fifth.[Footnote: 19 United
+States Statutes at Large, 228.] They agreed on Justice Bradley,
+a Republican. The Congressional members were equally divided
+politically. The result proved to be that on every important
+question in controversy every Republican voted for the view
+favorable to the Republican candidates and every Democrat voted
+for the other. The country could not fail to see that judges, as
+well as other public men, may be insensibly influenced by their
+political affiliations, and regarded the whole matter as a new
+proof of the wisdom of separating the judiciary from any
+unjudicial participation in the decision of political
+issues.[Footnote: See Wilson, "Division and Reunion," 286;
+S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
+"Some Account of the Work of Stephen J. Field," 440.]
+
+Justices of the Supreme Court have since sat on international
+tribunals of arbitration, but this is, or should be, a strictly
+judicial proceeding.
+
+In the State Constitutions, the judges of the highest courts are
+now often expressly forbidden to accept other office,[Footnote:
+See Chap XXII.] but in the absence of such a prohibition it would
+be considered as unbecoming. Formerly and during the first third
+of the nineteenth century this was in many States not so. Some
+were then judges because they held legislative office and as an
+incident of it. Others did not hesitate to accept political
+positions. Of the six Federalist electors chosen in New
+Hampshire at the presidential election of 1800, three were judges
+of her Supreme Court.[Footnote: Wharton's State Trials, 47.]
+
+Judges have frequently taken part in constitutional conventions
+of their States. In Virginia, Chief Justice Marshall was a
+member of that of 1829, and Judge Underwood of the District Court
+presided over that of 1867. Chancellor Kent and Chief Justice
+Spencer were members of that of 1821 in New York.
+
+It may well be doubted if the advantages to be gained by their
+counsel in such a position are not outweighed by the evil of
+exposing it to criticism as dictated by selfish considerations.
+A member of the New York convention thus alluded upon the floor
+to the measures supported by the Chief Justice and Chancellor:
+
+  He regretted that such an opinion and plan had been proposed by
+  the Chief Justice. It must have arisen from the politics of
+  the Supreme Court. The judges of that court had been occupied
+  so much in politics that they had been compelled to press upon
+  the public a system that had nothing else to recommend it than
+  such a relief to themselves from the burthen of official duties
+  as would leave them to the free exercise of their
+  electioneering qualifications. But for this, the Chief Justice
+  might have shown a Holt, or a Mansfield. The elevated
+  character of the Chancellor had been often asserted and alluded
+  to. He meant no disrespect to that honorable gentleman. He
+  respected him as highly as any man when he confined himself to
+  the discharge of the official duties of his office; but when he
+  stepped beyond that line; when he became a politician, instead
+  of being his fancied oak, which, planted deeply in our soil,
+  extended its branches from Maine to Mexico, he rather resembled
+  the Bohon Upas of Java, that destroyed whatever sought for
+  shelter or protection in its shade.[Footnote: Reports of the
+  Proceedings and Debates of the Convention of 1821, 615.]
+
+The pardoning power is essentially of a political nature.
+Judicial officers are to do justice. Mercy is an act of policy
+or grace. A pardon after conviction presupposes guilt.
+Nevertheless, in a few States this royal prerogative of pardoning
+has been committed to a board of officers, headed by the
+Governor, of which some of the judiciary are members. There is
+this advantage in it, that judges know best how fully
+circumstances of extenuation are always taken into account by the
+court before pronouncing sentence, and therefore cannot but
+exercise a restraining power against the influences of mere
+sentimental promptings to inconsiderate clemency.
+
+It may be said, in general, that the tendency towards keeping the
+judiciary apart from any active connection with the executive
+department has steadily increased since the first quarter of the
+nineteenth century.
+
+When our position as a neutral power, in 1793, involved us in
+serious questions affecting the rights of Great Britain and
+France, Washington's cabinet advised him that the ministers of
+those countries be informed that the points involved would be
+referred to persons learned in the law, and that with this in
+view the Justices of the Supreme Court of the United States be
+invited to come to the capitol, six days later, "to give their
+advice on certain matters of public concern, which will be
+referred to them by the President."[Footnote: Jefferson's
+Writings, Library Ed., I, 370.] Nothing of this nature would now
+be dreamed of, under any conditions.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER IV
+
+
+            THE FORCE OF JUDICIAL PRECEDENTS
+
+
+The antipathy to legal codification, which, until recent years,
+was a characteristic both of the English and American bar, and
+still prevails, though with diminishing force, has given, and
+necessarily given, great force to judicial precedents. It is
+mainly through them that with us unwritten law passes into
+written law. Precedent is a fruit of reason ripened by time.
+Time, it has been said, is the daughter of Antiquity and takes
+place after Reason, which is the daughter of Eternity. Precedent
+rests on both. A legal code framed in any American State is
+little more than the orderly statement of what American courts
+have decided the law to be on certain points.
+
+When reason is set to work upon the solution of a problem growing
+out of the affairs of daily life, it often happens that two minds
+will pursue different paths and perhaps come to different
+results. Not infrequently neither result can fairly be
+pronounced untenable. An English judge has said that nine-tenths
+of the cases which had ever gone to judgment in the highest
+courts of England might have been decided the other way without
+any violence to the principles of the common law.
+
+Every lawsuit looks to two results: to end a controversy, and to
+end it justly; and in the administration of human government the
+first is almost as important as the last.[Footnote: Hoyt
+_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
+the essence of justice; but among men and as administered by
+their governments it can only be such certainty as may be
+attained by an impartial, intelligent, and well-trained judge.
+If such a judge has, after a proper hearing, declared what, under
+a particular set of circumstances, the law is which determines
+the rights of the parties interested, this declaration makes it
+certain, once and forever, as far as they are concerned, and
+helps to make it certain as to any others in the future between
+whom there is a controversy under circumstances that are similar.
+If it is the declaration of a court of supreme authority it is
+ordinarily accepted as of binding force by any inferior courts of
+the same government, and treated with great respect and as high
+evidence of the law by any other of its superior courts, as well
+as by courts of other States before which a similar question may
+be presented.
+
+A decision on a point of law by the highest court in a State does
+not, however, bind its lower courts as absolutely as would a
+statute. An inferior court may disregard it and decide the same
+point another way if it be fully satisfied that the action taken
+by the court above was ill-considered and erroneous. It is
+possible that in such event, on reconsideration, the court of
+last resort may reverse its original position.[Footnote: A good
+instance of this is furnished by the case of Johnson _v._
+People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
+In McFarland _v._ People, 72 Illinois Reports, 368, the
+Supreme Court had stated in its opinion, that if two unimpeached
+witnesses gave the only testimony as to a certain point material
+to the plaintiff's case, and testified in contradiction of each
+other, the case failed for want of proof. Many years later a
+charge to the jury to this effect was asked and refused in an
+inferior court. An appeal was taken to the Supreme Court, and
+there Mr. Justice Schofield, the author of the original opinion,
+thus disposed of it: "Although in McFarland _v._ People, 72
+III., 368, the writer of this opinion expressed the belief that a
+similar instruction was free of legal objection, his remarks in
+that respect were unnecessary to a determination of the case then
+before the court, and they were made without sufficient
+consideration, and are manifestly inaccurate. They are now
+overruled. The question of competency is one of law, and
+therefore for the court; but the question of credibility,--that
+is, of worthiness of belief,--and therefore the effect of the
+competent evidence of each witness, is one of fact, and for the
+jury."] If not, that acquires by this attack a double force.
+
+Chief Justice Bleckley of Georgia once remarked that courts of
+last resort lived by correcting the errors of others and adhering
+to their own. Nevertheless, they have often, years after
+formally announcing a certain legal doctrine in one of their
+opinions, declared it to be unsound, and overruled the case in
+which it was laid down. They do this, however, with natural and
+proper reluctance, and never if this doctrine is one affecting
+private rights of property and has been followed for so long a
+course of time that it may be considered as a rule on which the
+people have relied in exchanging values and transferring titles.
+
+The public, however, have rights to be regarded as fully as
+individuals, and if a right of private ownership has been
+adjudged to exist, which involves a public loss, the precedent
+thus created might be overruled with less hesitation than one
+would be determining rights and correlative obligations that were
+purely private. Thus the North Carolina courts for seventy years
+held that a public office was the private property of the
+incumbent. No other courts in the United States took that view,
+and it has, by a recent decision, been repudiated in North
+Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
+Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
+Annotated, 697.]
+
+Still more are public interests to be regarded when a question
+arises as to reversing a decision as to the proper construction
+of a constitutional provision. If a judicial mistake be made in
+construing a statute it is easily remedied. The next legislature
+can amend the law. But a Constitution can only be amended with
+extreme difficulty and by a slow process. If the court falls
+into error as to its meaning, the correction must ordinarily come
+from its own action or not at all. Hence an opinion on a matter
+of constitutional construction is less to be regarded as a final
+and conclusive precedent than one rendered on a matter of mere
+private right.
+
+It has been the position of some American statesmen and jurists
+that judicial decisions on points of constitutional construction
+were not binding upon the executive or legislative department of
+the government. President Jackson asserted this with great force
+in his message to the Senate of July 10, 1832, disapproving the
+re-charter of the Bank of the United States. He conceded,
+however, that a judicial precedent may be conclusive when it has
+received the settled acquiescence of the people and the States.
+But while such acquiescence may strengthen the authority of a
+decision, it can hardly be regarded as that which gives it
+authority. That comes from the fact that it is an exercise of
+the judicial power of the government in a case for the disposal
+of which this judicial power has been properly invoked.
+
+The decision of the court in McCulloch _v._
+Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
+"The American Constitutional System," 44, 123.] unquestionably
+settled forever, as between the cashier of the bank and the State
+of Maryland, that the bank was a lawful institution. That in
+Osborn _v._ The Bank of the United States[Footnote: 9
+Wheaton's Reports, 738.] reaffirmed it as between the bank and
+the Treasurer of the State of Ohio. It would be intolerable if
+such judgments were not in effect equally conclusive for the
+determination of all controversies between all men and all States
+growing out of the creation of such a corporation. Practically,
+then, the opinion of the executive department to the contrary
+could only be of importance in such a case as Jackson had in
+hand; that is, in its influencing executive action in approving
+or disapproving some proposed measure of legislation. It could
+not disturb the past.
+
+The authority of a judicial precedent is weakened if it comes
+from a divided court, and especially if a dissenting opinion is
+filed in behalf of the minority. A silent dissent indicates that
+the judge from whom it proceeds is not so impressed by the fact,
+or the importance to the public, of what he deems the error of
+the majority that he thinks it worth while to express the reasons
+which lead him to differ from them.
+
+No departure from precedent in any American court has ever
+awakened so much feeling as that by the Supreme Court of the
+United States in 1872, when it decided that Congress could make
+government notes a legal tender for debts contracted before the
+law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
+Reports, 457, 529.] It had held precisely the contrary two years
+before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
+Reports, 603.] but it was by a bare majority and in the face of a
+strong dissenting opinion. In the opinions filed in the second
+case stress was laid upon this division of the court.[Footnote:
+12 Wallace's Reports, 553, 569. See George F. Hoar,
+"Autobiography," I, 286.]
+
+The word "established" is often used to describe the kind of
+precedent to which courts are bound to adhere. What serves to
+establish one?  Long popular usage, repeated judicial
+affirmations, and general recognition by approved writers on
+legal topics. Of these, in fact, the last is probably the most
+powerful. Lawyers and courts, in countries without codes, get
+their law mainly from the standard text-books. Such authors as
+Coke, Blackstone, Kent and Cooley are freely cited and relied on
+as authorities by the highest tribunals.[Footnote: See, for
+instance, Western Union Telegraph Co. _v._ Call Publishing
+Co., 181 United States Reports, 101; Louisville Ferry
+Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
+is by the writings of such men that judicial precedents are
+sifted and legal doctrines finally clothed in appropriate terms
+and arranged in scientific order.
+
+The English courts long ago declared it to be a rule of law to
+prevent perpetuities that no estate in lands could be created
+which was not to commence within the compass of a life or lives
+of persons then existing, with an exception intended to favor a
+minor heir. American courts accepted this rule, but some of them
+construed it as meaning that no estate in lands could be created
+which was to continue after the expiration of such a period.
+This construction was shown by Professor John C. Gray, in a work
+on "Perpetuities," to be unwarranted, and since its publication
+the cases which had proceeded on that basis have been generally
+treated as erroneous.
+
+The nature of a legal presumption, also, had been misconceived by
+several American courts. It had been treated as evidence of
+facts.[Footnote: Coffin _v._ United States, 156 United
+States Reports, 432.] Professor J. B. Thayer, in his
+"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-
+575.] argued so forcibly against this view that in at least one
+State a decision in which it had been taken has been formally
+overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
+Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
+Reporter, 963.]
+
+The Court of Appeals of New York once held in a carefully
+prepared opinion that a railroad might be built along the shore
+of a navigable river, under authority from the State, without
+first making compensation to the riparian proprietors, whose
+access to the waters might thus be obstructed.[Footnote: Gould
+_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
+In a text-book written by Chief Justice Cooley, this decision was
+justly criticised,[Footnote: Cooley on Constitutional
+Limitations, 670.] and not long after the publication of that
+work it was formally overruled.[Footnote: Rumsey _v._ New
+York and New England Railroad Co., 133 New York Reports, 79; 30
+Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
+It is safe to say that its fate was largely the result of the
+comments thus made by a distinguished jurist, whose only motive
+could be to maintain the integrity and consistency of legal
+science.
+
+The general doctrine of the courts, which is commonly expressed
+by the rule "_stare decisis_," was never better stated than
+by Chief Justice Black of Pennsylvania, in these words:
+
+  When a point has been solemnly ruled by the tribunal of the
+  last resort, after full argument and with the assent of all the
+  judges, we have the highest evidence which can be procured in
+  favor of the unwritten law. It is sometimes said that this
+  adherence to precedent is slavish; that it fetters the mind of
+  the judge, and compels him to decide without reference to
+  principle. But let it be remembered that _stare decisis_
+  is itself a principle of great magnitude and importance....
+
+  A palpable mistake, violating justice, reason and law, must be
+  corrected, no matter by whom it may have been made. There are
+  cases in our books which bear such marks of haste and
+  inattention, that they demand reconsideration. There are some
+  which must be disregarded, because they cannot be reconciled
+  with others. There are old decisions of which the authority
+  has become obsolete, by a total alteration in the circumstances
+  of the country and the progress of opinion. _Tempora
+  mutantur_. We change with the change of the times, as
+  necessarily as we move with the motion of the earth. But in
+  ordinary cases, to set up our mere notions above the principles
+  which the country has been acting upon as settled and
+  established, is to make ourselves not the ministers and agents
+  of the law, but the masters of the law and the tyrants of the
+  people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,
+  423.]
+
+Generally, overruling a former decision is due to a change of
+circumstances, which has given the court a new view-point. A
+marked instance of this occurred in 1851, in proceedings before
+the Supreme Court of the United States. More than a quarter of a
+century before, a suit in admiralty for seamen's wages on an
+inland river had been dismissed by the District Court of Kentucky
+for want of jurisdiction, and on appeal this action had been
+affirmed. Mr. Justice Story gave the opinion of the court, and
+said that a court of admiralty could only take cognizance of such
+a claim when the services were rendered at sea or upon waters
+within the ebb and flow of the tide.[Footnote: The Thomas
+Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
+true statement of what had always been the doctrine of both
+English and American courts. But out of what did this doctrine
+spring?  From the fact that in England there were no navigable
+waters except those in which the tide ebbed and flowed, and that
+in the United States, up to that time, there were none of a
+different kind which had been largely used for commercial
+purposes. Twenty years passed. Steam navigation had opened the
+great lakes and the great rivers of the country to a profitable
+carrying trade. The day was dawning when the bulk of American
+shipping was to be employed upon them. A suit in admiralty was
+brought against a ship for sinking another on Lake Ontario. The
+defendants put in an answer relying on the doctrine laid down by
+Story. The District Court overruled it. The case came by appeal
+to the Supreme Court, and in an opinion by Chief Justice Taney
+the appeal was dismissed. "The conviction," he said, referring
+to the opinion of Mr. Justice Story, "that this definition of
+admiralty powers was narrower than the Constitution contemplated,
+has been growing stronger every day with the growing commerce on
+the lakes and navigable rivers of the western States.... These
+lakes are in truth inland seas. Different States border on them
+on one side and a foreign nation on the other. A great and
+growing commerce is carried on upon them between different States
+and a foreign nation, which is subject to all the incidents and
+hazards that attend commerce on the ocean. Hostile fleets have
+encountered on them and prizes been made, and every reason which
+existed for the grant of admiralty jurisdiction to the general
+government on the Atlantic seas applies with equal force to the
+lakes. There is an equal necessity for the instance and for the
+prize power of the admiralty court to administer international
+law, and if the one cannot be established neither can the
+other.... The case of the _Thomas Jefferson_ did not decide
+any question of property or lay down any rule by which the right
+of property should be determined.... The rights of property and
+of parties will be the same by whatever court the law is
+administered. And as we are convinced that the former decision
+was founded in error, and that the error, if not corrected, must
+produce serious public as well as private inconvenience and loss,
+it becomes our duty not to perpetuate it."[Footnote: The Genesee
+Chief, 12 Howard's Reports, 443, 451.]
+
+But without any change of circumstances, the proper desire of all
+American courts to keep their common law in harmony with that of
+the other States is often sufficient to induce the abandonment of
+a doctrine once distinctly asserted.[Footnote: City of South Bend
+_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
+Reporter, 271.] The consistency of American law as a whole is
+immeasurably more important than the consistency of the law of
+any single State.
+
+Sometimes a court of last resort treats a doctrine which it had
+formerly asserted as manifestly unsound and abandons it without
+stopping to give a reason or even to overrule the decision which
+first announced it.
+
+Illinois for a long generation adopted the rule that if an injury
+occurred to one man through the concurring negligence of himself
+and another, but his negligence was slighter than that of the
+other, he might hold the latter responsible for the damages
+suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
+not a doctrine justified by the common law nor generally held in
+this country, and in 1894 the Supreme Court of the State refused
+to recognize it, with little or nothing more than this brief
+_ipse dixit_: "The doctrine of comparative negligence is no
+longer the law of this court."[Footnote: Lanark _v._
+Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,
+892.]
+
+Occasionally a case is overruled because it has been forgotten.
+
+An early decision in Massachusetts (Loomis _v._
+Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
+position that if a statute required contracts of a certain kind
+to be put in writing, and a contract of that kind, but embracing
+also a different and distinct matter not touched by the statute,
+was made orally, it was wholly void. Such a rule was illogical
+and unsound, and in a later decision the same court, forgetting
+that it had indorsed it, said so, and said so when it was not
+necessary to the decision.[Footnote: Irvine _v._ Stone, 6
+Cushing's Reports, 508, 510.] Subsequently, both these cases
+having been brought to its attention, it affirmed the latter,
+though remarking that "what was there said on this point was not
+essential to the decision of that case, and would have been
+omitted or modified if Loomis _v._ Newhall had been then
+remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
+Reports, 1, 5.]
+
+The authority of an opinion as a precedent on any point is always
+proportioned to the necessity of determining that point in order
+to support the judgment which was rendered. Some judges write
+treatises instead of decisions or in addition to decisions.
+Whatever goes beyond that which is required to show that the
+judgment is the legal conclusion from the ascertained facts is
+styled in law language _obiter dictum_. It may be
+interesting and even persuasive, but it is not an authoritative
+statement of law.
+
+It may grow to be such by adoption in subsequent cases. The
+Court of King's Bench in England was called on, at the beginning
+of the eighteenth century, to say whether if a man undertook as a
+friendly act, and not for pay, to cart another's goods, and did
+it carelessly, he was bound to answer for any damage that might
+result. There were four judges who heard the case, of whom three
+gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
+Raymond's Reports, 909.] Two of these opinions were confined to
+the precise point of law on which the case turned. In the third,
+Chief Justice Holt seized the opportunity to lay down the law of
+England as to all sorts of contracts arising out of the reception
+by one man of the goods of another. This he did mainly by
+setting forth what were the rules of the Roman law on the
+subject, but not referring to their Roman origin, and quoting
+them, so far as he could, from Bracton, an English legal writer
+of the thirteenth century, who had also stated them as English
+law.
+
+For four or five centuries these rules had been laid down in an
+unofficial treatise, but the courts had not fully recognized
+them. Now the Chief Justice of England had given such
+recognition in the amplest manner. Meanwhile the trade of
+England had reached a point at which some definite rules on all
+these matters had become of the utmost importance. The bar were
+only too glad to advise their clients in accordance with Lord
+Holt's opinion. It was not long before it was universally
+practiced upon, and no case in the English language touching
+contract relations of that nature is of greater importance as a
+precedent. Yet it became such not because of its intrinsic
+authority as a judgment, so much as on account of its orderly and
+scientific statement of a whole body of law of a kind that the
+people needed and for the origin of which--whether at Rome or
+London--they cared little, so long as it had been accepted by the
+highest judicial authority in the realm.
+
+On the other hand, the greatest judges have often, in delivering
+the opinion of the court, asserted doctrines the consideration of
+which was not essential to the decision, and later retracted the
+assertion on fuller consideration or seen the court in a later
+case retract it for them.
+
+Two of the great opinions of Chief Justice Marshall are Marbury
+_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
+_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
+first the court held that it had no jurisdiction to command the
+Secretary of State to deliver a commission executed under the
+preceding administration, because, although Congress had assumed
+to confer it, Congress had no power to do so; and in defending
+this position Marshall observed that the Constitution defined the
+jurisdiction of the Supreme Court over cases brought there in the
+first instance, and that in this clause of the Constitution
+affirmative words had the force of negative words so far as to
+exclude jurisdiction over any other cases than those specifically
+mentioned. In the second case this observation was relied on by
+Virginia to defeat the power of the court to review a State
+judgment. But, said the Chief Justice, "it is a maxim not to be
+disregarded that general expressions in every opinion are to be
+taken in connection with the case in which those expressions are
+used. If they go beyond the case they may be respected, but
+ought not to control the judgment in a subsequent suit when the
+very point is presented for decision.... In the case of Marbury
+_v._ Madison, the single question before the court, so far
+as that case can be applied to this, was whether the legislature
+could give this court original jurisdiction in a case in which
+the Constitution had clearly not given it, and in which no doubt
+respecting the construction of the article could possibly be
+raised. The court decided, and we think very properly, that the
+legislature could not give original jurisdiction in such a case.
+But in the reasoning of the court in support of this decision
+some expressions are used which go far beyond it.... The general
+expressions in the case of Marbury _v._ Madison must be
+understood with the limitations which are given to them in this
+opinion; limitations which in no degree affect the decision in
+that case or the tenor of its reasoning." He then proceeded to
+dispose of the case in hand by saying that Virginia having
+obtained an erroneous judgment against Cohens, Cohens had a right
+to appeal, and the suit still remained a suit by a State against
+him and not by him against a State. Unfortunately, here again
+came in next an _obiter dictum_. If, he said, this were not
+so, there was another principle equally decisive in support of
+the jurisdiction, namely, that the Constitution gave the United
+States judicial power over all cases arising under the
+Constitution or laws of the United States without respect to
+parties. Nearly a hundred years later a State was sued in the
+courts of the United States on a cause of action arising under
+the Constitution, and Cohens _v._ Virginia was relied on as
+a precedent. "It must be conceded," was the reply of the Supreme
+Court, "that the last observation of the Chief Justice does favor
+the argument of the plaintiff. But the observation was
+unnecessary to the decision, and in that sense extra-judicial,
+and though made by one who seldom used words without due
+reflection, ought not to outweigh the important considerations
+referred to which lead to a different conclusion."[Footnote: Hans
+_v._ Louisiana, 134 United States Reports, 1, 20.]
+
+It may be added that decisions on a point not material to the
+cause are generally made without the benefit of previous argument
+by counsel. The lawyers will naturally address themselves to the
+controlling questions, and if well trained will see what these
+are quite as clearly as the court. It is the argument at the
+bar, in which different views of law are presented and each
+defended by men of learning and ability, which enables the judge,
+after hearing both sides and weighing all that is said in behalf
+of one against all that is said in behalf of the other, to come
+to the true conclusion. The Romans recognized this in their rule
+as to the force of precedent in a matter of customary law. The
+first thing to ask was whether "_contradicto aliquando judicio
+consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
+legibus_, etc., 34.]
+
+The retrospective effect which a refusal to follow a former
+decision may have in disturbing vested rights being one of the
+most cogent reasons for adhering to precedent, there is less
+objection to departing from it when the decision can be so
+limited as to have only a future operation. This is occasionally
+feasible. Thus the High Court of Errors and Appeals of
+Mississippi by an early decision held that on the dissolution of
+a bank all its rights and liabilities were extinguished. Thirty
+years later the Supreme Court of the same State overruled that
+decision, declaring it "condemned by reason and the principles of
+modern and enlightened jurisprudence," but nevertheless applied
+it as a controlling precedent to a case arising out of the
+dissolution of a bank which had been incorporated previously to
+the time when the original decision was made.[Footnote: 1 Bank of
+Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]
+
+The effect of overruling a former opinion may also be limited by
+the dual character of our government.
+
+The courts of the United States follow the decisions of the State
+courts in the determination of matters of State law. If a State
+law is held by the courts of the State to have a particular
+meaning and effect it will be accorded the same in the federal
+courts. But if a federal judgment is for that reason rendered in
+a certain form, and there is no appeal, it settles the rights of
+the parties to the suit forever, even should the State courts
+afterward reverse their former rulings as being
+erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
+United States Reports, 499.]
+
+De Tocqueville, in his estimate of the American bar,[Footnote: 3
+"Democracy in America," II, Chap. XVI.] speaks of it as devoted
+to investigating what has been done rather than what ought to be
+done; to the pursuit of precedent rather than of reason.
+
+In a very limited sense this is true. Where codes are wanting,
+former judicial decisions must serve in their place. But it
+would be a mistake to suppose that it is a large part of the
+business of American lawyers to search out precedents for the
+guidance of the courts. Most cases, after any facts in dispute
+are once settled, depend on the application of the simplest
+processes of ordinary reasoning. No aid from the past is needed
+for this and none is to be had. It has been well said by an
+English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
+Chancery Appeal Cases, 526.] that the clearer a thing is the more
+difficult it is to find any express authority or any
+_dictum_ exactly to the point. Nor, if there be one, is it
+to be accepted without regard to the circumstances out of which
+it arose or the end to be effected by the judgment. A precedent
+may indeed be used slavishly, but so it may be used in the free
+spirit in which it was conceived. Many an argument at the bar,
+however, is ruined by an excessive anxiety to repeat the
+_ipsissima verba_ of some ancient opinion, when the soul of
+it is the only thing of value. And occasionally courts are
+chargeable with pursuing the letter of some of their former
+deliverances rather than the spirit which called them forth and
+gave them all their vitality.
+
+            *       *       *       *       *
+
+
+
+                      CHAPTER V
+
+
+       THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW
+
+
+The English common law was and is an unwritten law. To find it
+one has to look in legal treatises and reports of judicial
+decisions. Its historical development has been not unlike that
+of Rome. In Rome, as in England, there were in early times
+written enactments or governmental declarations of standing rules
+on but few points. Some of these writings were of special
+importance, such as the twelve tables of Rome and the _Magna
+Charta_ of England. These were regarded as so bound up with
+the very life of the people as to have a place by themselves, and
+a superior force to anything to the contrary to which the free
+consent of the people was not formally given. But in general
+Romans and Englishmen preferred to make custom their law, and to
+let this law grow "not with observation," but insensibly from day
+to day as the needs of their social organization might be found
+to require. It was a wise preference, and founded on a better
+philosophy than they knew--than the world knew, until the theory
+of evolution was demonstrated by Darwin and applied to
+governmental science by Spencer.
+
+A customary law for a people of advancing civilization and power
+must expand with corresponding rapidity. There will soon be
+disputes as to what it is on certain points and a demand for some
+authoritative information as to this. In Rome, the priests gave
+it at first, and then the lawyers. In England, the priests never
+gave it, as priests. There was no sacred college of law.
+Priests took part in legislation. A priest, at the king's right
+hand, was his spokesman in doing equity. But it was from the
+first the king as a judge, or the king's judges deputed by him
+and sitting for him, who settled controverted questions of common
+law. For the Roman and for the Englishman the first
+representatives of government who could be called judges were
+primarily and principally executive officers. The Roman
+_praetor_ was not given judicial functions because he had
+legal attainments. The _aula regis_ of early England was
+composed of the great officers of state. The chief justiciar,
+however, soon ceased to be prime minister. His associates on the
+bench, as law became a recognized profession, came to be chosen
+largely for their fitness for judicial work and to be kept at it
+during the king's pleasure. At Rome, on the contrary, the
+praetorship remained a political place, held for a fixed term, and
+a brief one. Information as to the unwritten law applicable to
+any controversy between parties had therefore to be sought from
+others. The lawyers could give it; and it was to them, not to
+the judges, that resort was had. The opinion of a great jurist
+was for Rome what the opinion of a judge was for England. It was
+commonly accepted as conclusive not only by the people but by the
+courts.
+
+Such opinions profess to state what the law was by which rights
+accrued out of a past transaction. In fact, they often do much
+more. By declaring that to be the law, and declaring it with
+authority, they are the first to make it certain that it is the
+law. The difference between this and making law is not great.
+
+The Romans at first accorded authority to the opinions
+(_responsa_) of lawyers only because of the standing and
+reputation of those who gave them. Later the emperors gave an
+official character and weight to the opinions of certain lawyers
+of the past. The English always accorded authority to the
+opinions of their judges, because they spoke for the state.
+Americans from the first have done the same.
+
+American judges have exercised these powers of ascertaining and
+developing unwritten law even more freely than English judges.
+They were forced to it as a result of applying the common law of
+one people to another people inhabiting another part of the world
+and living under very different social conditions. In doing this
+it was necessary to reject not a little of what for England had
+already been definitely settled and universally accepted. The
+legislatures of the colonies and States rejected much, but the
+courts rejected more. The legislatures also added much, but the
+courts added yet more.
+
+Usages grow up rapidly in new settlements and along frontiers
+bounded by territory held by savages. Of such usages, under the
+rulings of the courts, many were soon crystallized into law.
+
+New inventions and new political conceptions in the eighteenth
+century began to change the face of the civilized world. The
+common law as to agency had to be adapted to the operations of
+business corporations; that as to highways to railroads; that as
+to contracts by mail to contracts by telegram, and later to
+contracts by telephone. The whole law of master and servant,
+which for the English people was bottomed on the relation of
+land-owner and serf, was to be recast. Public assemblies were to
+be regulated and their proceedings published with greater regard
+to public and less to private interest.[Footnote: Barrows
+_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
+479.] Along all these lines and many others the American courts
+have now for nearly three hundred years been quarrying out
+American law from the mine of the unwritten law of the people
+within their jurisdiction. It has been their natural endeavor to
+make each part of the new system of jurisprudence which they were
+gradually building up harmonious with every other and to give a
+certain symmetry to the whole. This has forced them to deduce
+rule from rule and principle from principle with a freedom for
+which in older countries of settled institutions there is less
+occasion. The process has gone on during the last fifty years
+with ever-increasing rapidity, and for two reasons. There have
+been more novel questions to meet and there has been a greater
+wealth of suggestion and precedent at command.
+
+Not a little, however, of the development of our unwritten law
+has been and remains of a local character. This is particularly
+true of that of the Pacific States, both on account of climatic
+conditions and historical antecedents.[Footnote: Katz _v._
+Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
+the Supreme Court of California, afterward so long a member of
+the Supreme Court of the United States, did both a constructive
+and a destructive work in shaping the jurisprudence of that
+State. He found it seated in a land on which certain
+institutions of civil law origin had been impressed for centuries
+and into which other institutions of common law origin had been
+introduced in recent years. His judicial opinions molded these
+into one mass, rejecting something from each and retaining
+something from each.[Footnote: Pomeroy, "Some Account of the Work
+of Stephen J. Field," 38, 45.] Some of the results of his
+creative touch have been the foundation of decisions in distant
+States, but most were so dependent on local circumstances and
+conditions as to be incapable of transplantation.
+
+But as to all questions of general concern which can be answered
+from analogies drawn from the common law, the judges of each
+State--and it is the State judiciary on which the burden of
+developing unwritten law mainly rests--now find in the reported
+decisions of the courts of last resort in all the other States a
+fertile source of supply when they are looking for a rule to fit
+a case for which the ancient law made no direct provision. Keen
+intellects from the bench, aided perhaps by keener ones from the
+bar in forty-five different jurisdictions, are discussing the
+problems of the day as they appear mirrored in litigated causes.
+What is a new question in one State was set at rest ten years or
+ten days ago by a judicial decision in another. If the decision
+was a just and logical deduction from accepted principles of the
+older law it will probably be followed everywhere. If unjust and
+illogical, its very faults will serve to guard other courts to
+better conclusions.
+
+How far judges advance along these paths depends greatly on the
+character of the bar. A judge rarely initiates anything. He is
+apt to fall into a mistake if he does. The business which he has
+to do is brought before him by others. It is brought before him
+in the best way to throw all possible light upon it, because it
+is set before him from two opposite points of view by two
+antagonists, each strenuously endeavoring to detect a flaw in the
+reasoning of the other. These two men have previously given the
+subject in controversy much careful thought. What views neither
+presents are generally not worth presenting. As was said in the
+preceding chapter, it is only in the plainest case that a judge
+can properly or safely base his decision on a position not
+suggested at the bar or as to the soundness of which he has not
+asked the opinion of the counsel at the hearing.
+
+The development of law, therefore, whether unwritten or written,
+is primarily the work of the lawyer. It is the adoption by the
+judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]
+
+There are obvious limits to this power of developing unwritten
+law. The courts are not to push forward into a place more
+appropriate for the legislature to occupy.
+
+Mr. Justice Holmes of the Supreme Court of the United States,
+when Chief Justice of Massachusetts, stated with his usual
+elegance and force the bounds within which, as it seemed to him,
+judicial authority should be kept. In a common law suit against
+a railroad company for damages suffered by an accident on its
+road, the defendant had asked the trial court to order the
+plaintiff to submit to an examination of his person by a
+physician whom it named, for the purpose of determining what
+injuries he had really suffered. "We agree," said the Chief
+Justice, "that in view of the great increase of actions for
+personal injuries it may be desirable that the courts should have
+the power in dispute. We appreciate the ease with which, if we
+were careless or ignorant of precedent, we might deem it
+enlightened to assume that power. We do not forget the
+continuous process of developing the law that goes on through the
+courts in the form of deduction or deny that in a clear case it
+might be possible even to break away from a line of decisions in
+favor of some rule generally admitted to be based upon a deeper
+insight into the present wants of society. But the improvements
+made by the courts are made, almost invariably, by very slow
+degrees and by very short steps. Their general duty is not to
+change, but to work out, the principles already sanctioned by the
+practice of the past. No one supposes that a judge is at liberty
+to decide with sole reference even to his strongest convictions
+of policy and right. His duty in general is to develop the
+principles which he finds with such consistency as he may be able
+to attain.... In the present case we perceive no such pressing
+need of our anticipating the legislature as to justify our
+departure from what we cannot doubt is the settled tradition of
+the common law to a point beyond that which we believe to have
+been reached by equity, and beyond any to which our statutes
+dealing with kindred subjects ever have seen fit to go. It will
+be seen that we put our decision, not upon the impolicy of
+admitting such a power, but on the ground that it would be too
+great a step of judicial legislation to be justified by the
+necessities of the case."[Footnote: Stack _v._ New York, New
+Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
+58 Northeastern Reporter, 686.]
+
+The theory of judicial power thus stated carries implications
+that would not be universally accepted. It is intimated that if
+the necessity had seemed strong enough to call for the order
+asked for in the trial court it ought to have been granted,
+although not justified by any settled rule or authoritative
+precedent, nor by any clear analogy from such a rule or
+precedent. This is a view taken, though with less caution and
+qualification, in a work written by the same hand many years
+before, which is recognized as a legal classic on both sides of
+the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
+discussing some of the reasons which actuate judges in assuming
+to unfold the unwritten law, it is stated thus:
+
+  The very considerations which judges most rarely mention, and
+  always with an apology, are the secret root from which the law
+  draws all the juices of life. I mean, of course,
+  considerations of what is expedient for the community
+  concerned. Every important principle which is developed by
+  litigation is in fact and at bottom the result of more or less
+  definitely understood views of public policy: most generally,
+  to be sure, under our practice and traditions the unconscious
+  result of instinctive preferences and inarticulate convictions,
+  but none the less traceable to views of public policy in the
+  last analysis.... The truth is that the law is always
+  approaching and never reaching consistency. It is forever
+  adopting new principles from life at one end, and it always
+  retains old ones from history at the other, which have not yet
+  been absorbed or sloughed off. It will become entirely
+  consistent only when it ceases to grow.
+
+Courts enter on a dangerous ground when, to justify their action,
+they rely on any rule of public policy not stated in Constitution
+or statute and unknown to the common law. If such was once the
+habit of the English courts, it was because of social conditions
+with which they had to deal which no longer exist either in their
+country or in ours. It is for the judge to adapt old principles
+rather than adopt new ones. What one man thinks is public policy
+another, equally clear-headed and well-informed, may not. The
+safe course for the judiciary is to rely on the legislature to
+declare it, so far as the common law does not. If, however, the
+courts of a State are called upon for the first time to declare
+what any rule of the common law, governing a past transaction,
+is, or at a given time was, in that State, and this be a doubtful
+question, the decision virtually calls for the making of a new
+rule, though under the form of applying an old one, and that will
+be adopted which may be deemed best calculated to do justice in
+cases of that particular character.[Footnote: Seery _v._
+Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER VI
+
+
+      THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING
+                     WRITTEN LAW
+
+
+As governments must provide some authority to declare what the
+unwritten law governing any transaction was, so they must provide
+some authority to declare what the written law governing any
+transaction means. Few statements of any rule or principle can
+be written out in such a way as to convey exactly the same
+impression to every mind. Thought is subtler than its
+expression. The meaning of written laws will therefore often be
+questioned.
+
+An answer is sometimes attempted by the authority from which the
+law proceeded. A king declares what he intended by the terms of
+an ambiguous edict. A legislature passes an act to declare the
+meaning of a previous one. But meanwhile rights have accrued.
+Something has been done in reliance upon a certain construction
+of the law. If it was a right construction, then what was done
+was lawful, and no subsequent explanation of his intentions by
+the lawgiver can change this fact. Laws are addressed to the
+community at large, and their meaning must be determined once for
+all from the language used, however inadequate it may have been
+to express the real design of those who enacted them, unless that
+design so clearly appears, notwithstanding an unfortunate choice
+of words, as to compel an interpretation against the letter but
+in obedience to the spirit of the enactment. A "declaratory
+statute"--one declaring what a previous statute meant--is
+therefore, if it gives it a meaning unwarranted by its terms when
+so interpreted, only effectual as respects future transactions.
+As to the past, the meaning is for the courts, and while such a
+statute may aid, it cannot control them.
+
+Are the courts to send such questions to a jury or shall the
+judges decide them?  The answer must be determined by
+considerations applicable to every sort of written paper. If the
+true construction of an ambiguous document be left to juries, it
+is evident that there would be no certainty that different
+results would not be reached in different cases, and probable
+that unanimity would seldom be attainable. If left to judges, a
+decision will certainly be reached and, it may be presumed, be
+reasoned out with care, while if the matter be one of public
+importance the grounds on which they proceed will be so expressed
+as to furnish a guide to others toward the same conclusion. The
+construction of all writings is therefore, by the Anglo-American
+common law, as by the judicial system of most countries, deemed,
+in case of a question affecting litigated rights, to belong of
+right to the judges. Their possession of this power in the
+United States is especially necessary in respect to written law.
+
+In every government there must be some human voice speaking with
+supreme authority. It may be that of one man or of many men.
+The essential thing is that it should be a personal utterance,
+proceeding from persons to whom, by acknowledged law or custom,
+submission is due, and one that, if need be, can be enforced by
+the whole power of the State.
+
+The fundamental principle of American government, as laid down in
+the words of Harrington in the oldest of our State Constitutions,
+after which many of the rest, and that of the United States as
+well, have been largely patterned, is that it is one of "laws and
+not of men."[Footnote: Constitution of Massachusetts, Part the
+First, Art. XXX, quoted more fully in Chapter II.] Laws,
+however, must be administered by men. Their meaning, if it be
+uncertain, must be determined by men. It must be the subject, as
+the same Constitution twice affirms, of "impartial
+interpretation."[Footnote: _Id_., Preamble, and Part the
+First, Art. XXIX.] This interpretation is really what gives them
+force. It is the personal utterance of one speaking for the
+State, and who speaks the last word. It was simply following
+English precedent to give this power to the courts as respects
+legislative enactments. But the principle which required it
+inevitably extended with equal force to constitutional
+provisions. The people who adopt written constitutions for their
+government put their work in a form which must often give rise to
+questions as to what they intended to express. They rely on the
+judiciary to secure their enforcement, and the judiciary must
+enforce them according to what it understands their meaning to
+be.
+
+There is but a step from interpretation to enlargement. Every
+statute is passed to accomplish something. If the object is
+clear, the rules of Anglo-American law allow the court that may
+be called on to apply it to extend its operation to cases within
+the purpose evidently intended, although the language used is
+inadequate fully to express it. This is styled giving effect to
+"the equity of the statute." Even violence can be done to the
+words, if so only can this judge-discovered intent be made
+effectual. The rules governing judicial interpretation of
+statute law fill a good-sized volume.
+
+As the Roman lawyers worked out by force of logic and analogy an
+extensive system of private law from the meagre fabric of the
+Twelve Tables, so under the lead of American lawyers American
+judges have applied the processes familiar in the development of
+unwritten law to the development of our written law, both
+statutory and constitutional.
+
+Carlyle said that the Roman republic was allowed so long a day
+because on emergencies the constitution was suspended by a
+dictatorship. The American republics have a right, upon this
+theory, to a still longer one. With them the Constitution need
+not be temporarily set aside on an emergency. It may simply be
+permanently enlarged or limited by judicial construction. A
+Constitution is the garment which a nation wears. Whether
+written or unwritten, it must grow with its growth. As Mr. Bryce
+has put it: "Human affairs being what they are, there must be a
+loophole for expansion or extension in some part of every scheme
+of government; and if the Constitution is Rigid, Flexibility must
+be supplied from the minds of the Judges."[Footnote: "Studies in
+History and Jurisprudence," 197.]
+
+The Constitution of the United States declares that no State
+shall pass any law impairing the obligation of contracts. This
+proposition being the major premise, Chief Justice Marshall added
+the minor premise that every charter of a private corporation is
+a contract, and completed the syllogism by the conclusion that no
+State can pass any law impairing the obligation of such charters.
+The counsel who opposed this doctrine urged that every one must
+acknowledge that neither the men who framed the Constitution nor
+the people who adopted it ever thought that the word "contracts,"
+as so used, embraced "charters." Be it so, was Marshall's
+answer, that proves nothing unless you can go farther and satisfy
+the court that if they had contemplated the construction we put
+upon it they would have used words to exclude it.[Footnote:
+Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]
+
+The acquisition of foreign territory is a matter not especially
+provided for in the Constitution of the United States. Jefferson
+hesitated to make the Louisiana purchase on this account, and was
+quite inclined to think, when he did make it, that he had
+transcended the bounds of his authority. The courts gave the
+Constitution a different interpretation, and stamped this upon it
+as permanently as if it had been a birthmark. It was done by
+Marshall in a single sentence. "The Constitution," he observed,
+"confers absolutely on the government of the Union the powers of
+making war and of making treaties: consequently that government
+possesses the power of acquiring territory either by conquest or
+by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
+Peters' Reports, 511, 542.]
+
+In the course of the same opinion, the great Chief Justice led
+the way toward the doctrine, to be developed later, that the
+manner in which such territory was to be held and its inhabitants
+governed need not be such as the Constitution prescribed for the
+territory within one of the United States. It was to be
+prescribed by Congress under its power "to make all needful rules
+and regulations respecting the territory or other property
+belonging to the United States." Congress had set up a
+Legislative Council in the Territory of Florida, and the
+Legislative Council had established a court of admiralty, with
+judges holding office for four years. The case in hand turned
+upon the effect of a judgment of that court. It was contended at
+the bar that it had no effect, because by the express terms of
+the Constitution the judicial power of the United States extended
+to all cases of admiralty jurisdiction, and must be vested in one
+Supreme Court and such inferior courts as Congress might ordain.
+"We have only," was Marshall's reply, "to pursue this subject one
+step further to perceive that this provision of the Constitution
+does not apply to it. The next sentence declares that 'the
+judges both of the Supreme and inferior courts shall hold their
+offices during good behaviour.' The Judges of the Superior Courts
+of Florida hold their offices for four years. These Courts,
+then, are not constitutional Courts in which the judicial power
+conferred by the Constitution on the general government can be
+deposited. They are incapable of receiving it. They are
+legislative Courts, created in virtue of the general right of
+sovereignty which exists in the government, or in virtue of that
+clause which enables Congress to make all needful rules and
+regulations respecting the territory belonging to the United
+States. The jurisdiction with which they are invested is not a
+part of that judicial power which is defined in the third article
+of the Constitution, but is conferred by Congress in the
+execution of those general powers which that body possesses over
+the territories of the United States. Although admiralty
+jurisdiction can be exercised in the States in those Courts only
+which are established in pursuance of the third article of the
+Constitution, the same limitation does not extend to the
+territories. In legislating for them, Congress exercises the
+combined powers of the general and of a State
+government."[Footnote: 'American Insurance Co. _v._ Canter,
+1 Peters' Reports, 511, 546.]
+
+It will be perceived that the argument here was that the Florida
+court did not exercise any of the judicial power of the United
+States because it could not, and that it could not because the
+judges were not commissioned for life. This left unanswered the
+deeper question whether any act of Congress could serve to
+support a court existing under authority of the United States,
+the judges of which were to hold office only for a term of years.
+It was assumed that the provision for a life tenure did not apply
+to the Florida judges, because if it did the court would be
+illegally constituted. Whether it was legally or illegally
+constituted was not discussed, except for the general reference
+to the power of Congress to legislate for the territories and
+exercise the rights of sovereignty over territory newly acquired
+by contest or treaty.
+
+On this decision has been built up our present system of
+governing territorial dependencies at the will of
+Congress.[Footnote: Mormon Church _v._ United States, 136
+United States Reports, 1, 43; Dorr _vs._ United States, 195
+United States Reports, 138, 141.]
+
+Marshall's was the last appointment made to the Supreme bench
+from the Federalist party. It was not many years before that
+party disappeared from the face of the earth. Jefferson put
+three men there representing the other school of political
+doctrine,[Footnote: Among Jefferson's papers is a description of
+five men whom he especially considered with reference to filling
+the first vacancy which occurred during his administration.
+Politics figures largely in the sketch of each. As to William
+Johnson, whom he selected, it is noted that he is of "republican
+convictions and of good nerves in his political principles."
+American Historical Review, III, 282.] and his appointments were
+followed by others of a similar nature, until in 1830, after
+Mr. Justice Baldwin had taken his seat, it became evident that
+the nationalizing tendencies which the great Chief Justice from
+the beginning of the century had impressed upon its opinions were
+likely soon to cease. He apprehended himself that the court
+would come to decline jurisdiction in the cases ordinarily
+presented over writs of error to reverse the judgments of State
+courts.[Footnote: Proceedings: Massachusetts Historical Society,
+2d Series, XIV, 342.] In the following year he thought seriously
+of resigning. He disliked, he wrote to Mr. Justice Story, to
+leave him almost alone to represent the old school of thought,
+but he adds, "the solemn convictions of my judgment, sustained by
+some pride of character, admonish me not to hazard the disgrace
+of continuing in office a mere inefficient pageant."[Footnote:
+Proceedings Massachusetts Historical Society, 2d Series, XIV,
+347.]
+
+The next Chief Justice, while far from being of Marshall's
+school, was not one to attempt to overthrow what he had done. In
+Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
+insisted on the supremacy of the courts of the United States over
+those of the States with the utmost firmness, and defended the
+doctrine on principle with force and ability. The Supreme Court,
+however, under Taney, was not looked on with much favor by the
+survivors of the old Federalists. "I do not," wrote Chancellor
+Kent in 1845 to Justice Story, "regard their decisions (yours
+always excepted) with much reverence, and for a number of the
+associates I feel habitual scorn and contempt."[Footnote:
+Proceedings of the Massachusetts Historical Society, 2d Series,
+XIV, 420.]
+
+Our State constitutions generally guarantee the citizen against
+deprivation of his rights without "due process of law" or "due
+course of law." A similar provision was made for the United
+States by the fifth amendment to their Constitution, and since
+1868 the fourteenth amendment has established the same rule
+inflexibly for every State. What is due process of law?  It is
+for the courts to say, and while they have cautiously refrained
+from assuming to give any precise and exhaustive definition, they
+have, in many instances, enforced the guaranty at the cost of
+declaring some statute which they held incompatible with it to be
+no law. They have also, and much more frequently, supported some
+act of government claimed to contravene it, and which, according
+to the ancient common law of England, would contravene it,
+because in their opinion this ancient law had been outgrown.
+
+Sir Edward Coke, whom no expounder of the English common law
+outranks in authority, in his "Institutes," in treating of
+_Magna Charta_, referred to the phrase _per legem
+terrae_, as equivalent to "by the law of the land (that is, to
+speak it once for all) by the due course and process of law." It
+is incontestable that due course and process of law in England at
+the time when the American colonies were planted was understood
+to require the action of a grand jury before any one could be put
+on trial for a felony. Some of our States have abolished grand
+juries in whole or part. To review a capital sentence for murder
+in one of these States, a writ of error was prayed out from the
+Supreme Court of the United States in 1883. The
+constitutionality of the State law was sustained. In disposing
+of the case the court did not controvert the position that by the
+English common law no man could be tried for murder unless on a
+presentment or indictment proceeding from a grand jury. But,
+said the opinion, while that is due process of law which had the
+sanction of settled usage, both in England and in this country,
+at the time when our early American constitutions were adopted in
+the eighteenth century, it by no means follows that nothing else
+can be. To hold that every feature of such procedure "is
+essential to due process of law would be to deny every quality of
+the law but its age, and to render it incapable of progress or
+improvement. It would be to stamp upon our jurisprudence the
+unchangeableness attributed to the laws of the Medes and
+Persians.... It is most consonant to the true philosophy of our
+historical legal institutions to say that the spirit of personal
+liberty and individual right, which they embodied, was preserved
+and developed by a progressive growth and wise adaptation to new
+circumstances and situations of the forms and processes found fit
+to give, from time to time, new expression and greater effect to
+modern ideas of self-government.... It follows that any legal
+proceeding enforced by public authority, whether sanctioned by
+age and custom or newly devised in the discretion of the
+legislative power in furtherance of the general public good,
+which regards and preserves these principles of liberty and
+justice, must be held to be due process of law."[Footnote:
+Hurtado _v._ California, 110 United States Reports, 513,
+528, 529, 530, 537.]
+
+Many of our State Constitutions specify certain rights as
+inherent and indefeasible, and among them that "of acquiring,
+possessing, and protecting property." What is property?
+American courts have said that it includes the right of every one
+to work for others at such wages as he may choose to accept. One
+of them, in supporting a decree for an injunction against
+combined action by a labor union to deprive non-union men of a
+chance to work, by force or intimidation, notwithstanding a
+statute abrogating the common law rule making such acts a
+criminal conspiracy, has put it thus:
+
+  The right to the free use of his hands is the workman's
+  property, as much as the rich man's right to the undisturbed
+  income from his factory, houses, and lands. By his work he
+  earns present subsistence for himself and family. His savings
+  may result in accumulations which will make him as rich in
+  houses and lands as his employer. This right of acquiring
+  property is an inherent, indefeasible right of the workman. To
+  exercise it, he must have the unrestricted privilege of working
+  for such employer as he chooses, at such wages as he chooses to
+  accept. This is one of the rights guaranteed to him by our
+  Declaration of Rights. It is a right of which the legislature
+  cannot deprive him, one which the law of no trades union can
+  take from him, and one which it is the bounden duty of the
+  courts to protect. The one most concerned in jealously
+  maintaining this freedom is the workman himself.[Footnote:
+  Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
+  56 Atlantic Reporter, 331.]
+
+But, as already suggested in the preceding chapter, the judges
+whose opinions have vitalized and enlarged our written law by
+reading into it some new meaning or application have but echoed
+the voice of the bar.
+
+The greatest achievements of Marshall in this direction were
+really but a statement of his approbation of positions laid down
+before him by Daniel Webster. In the early stages of the
+Dartmouth College case, when it was before the State courts in
+New Hampshire, it was Webster and his associates, Jeremiah Mason
+and Jeremiah Smith, both lawyers of the highest rank, who first
+put forward the doctrine that the charter of a private
+corporation was a contract; and when the cause came before the
+Supreme Court of the United States it fell to the lot of Webster
+to bring it to the attention of the great Chief
+Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
+Florida case it was he, in supporting the cause of the prevailing
+party, who suggested that the Territory of Florida, though owned
+by the United States, was no part of them. "By the law of
+England," he went on to say, "when possession is taken of
+territories, the king, _Jure Corona_, has the power of
+legislation until parliament shall interfere. Congress have the
+_Jus Corona_ in this case, and Florida was to be governed by
+Congress as she thought proper."[Footnote: American Insurance
+Co. _v._ Canter, 1 Peters' Reports, 611, 538.]
+
+This argument did not spend its force in its effect on Marshall.
+When, after the lapse of two generations, greater problems of the
+relations of the United States to territory newly acquired from
+Spain arose, it was, as has been said above, made one of the
+cornerstones of the opinion of the same court which determined
+what they were.[Footnote: Downes _v._ Bidwell, 182 United
+States Reports, 244, 265.]
+
+So in the Hurtado case, which has been described at length, no
+description of due process of law was found better and none is
+better than that given by Webster so many years before in the
+Dartmouth College case. The Supreme Court of New Hampshire, from
+whose judgment that cause came up by writ of error, had held--and
+on that point its decision was final--that the change in the
+college charter was no violation of the bill of rights embodied
+in the Constitution of that state. This, following _Magna
+Charta_, provided (Part I, Art. 15) that no subject should be
+"despoiled or deprived of his property, immunities, or
+privileges, put out of the protection of the law, exiled, or
+deprived of his life, liberty or estate, but by the judgment of
+his peers or the law of the land." _Magna Charta_ was wrung
+from a tyrant king. So, said the State court, this article was
+inserted to protect the citizens against the abuse of the
+executive power. When it speaks of the law of the land it means
+the law of New Hampshire, and that is whatever the legislature of
+New Hampshire chooses to enact, so long as it contravenes no
+other constitutional provision.
+
+Webster, in paving the way toward his claim that the charter was
+a contract, and, as a vested right of property, inviolable by a
+State, alluded to the sacredness of all rights under the
+guaranties to be found in our American system of constitutional
+government. It was not surprising that the Constitution of the
+United States should protect them in the way he asserted. All
+the States, and New Hampshire among them, had done the same in
+placing the great features of _Magna Charta_ in their bills
+of rights. What, he asked, was this law of the land by which all
+things were to be tried and judged?  This was his answer: "By the
+law of the land is most clearly intended the general law; a law
+which hears before it condemns; which proceeds upon inquiry, and
+renders judgment only after trial. The meaning is that every
+citizen shall hold his life, liberty, property and immunities
+under the protection of the general rules which govern society.
+Everything which may pass under the form of an enactment is not
+therefore to be considered the law of the land. If this were so,
+acts of attainder, bills of pains and penalties, acts of
+confiscation, acts reversing judgments, and acts directly
+transferring one man's estate to another, legislative judgments,
+decrees and forfeitures in all possible forms, would be the law
+of the land."[Footnote: "Works of Daniel Webster," V, 486.]
+
+In the opinion by Mr. Justice Mathews in Hurtado _v._
+California he observes: "It is not every act, legislative in
+form, that is law. Law is something more than mere will exerted
+as an act of power. It must be not a special rule for a
+particular person or a particular case, but, in the language of
+Mr. Webster, in his familiar definition, 'the general law, a law
+which hears before it condemns, which proceeds upon inquiry, and
+renders judgment only after trial,' so 'that every citizen shall
+hold his life, liberty, property and immunities under the
+protection of the general rules which govern society.'"
+[Footnote: Hurtado _v._ California, 110 United States
+Reports, 516, 535.]
+
+Other instances might be mentioned, equally conspicuous, which
+will entitle Webster to the name given him by his contemporaries
+of "the expounder of the Constitution."[Footnote: See Article by
+Everett P. Wheeler on Constitutional Law of the United States as
+Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
+p. 366, and in the 27th Annual Report of the New York State Bar
+Association.] No one American lawyer has done as much in that
+direction, but there are few of the greater ones who have not
+done something. As, however, the glory of a battle won is for
+the commander of the victorious forces, so the glory of adding a
+new meaning to a constitution at a vital point is, with the
+public, always for the judge whose opinion is the first to
+announce it. Who announced it to him they never know or soon
+forget.
+
+The acknowledged possession by the judiciary of the power to
+interpret written law, and thus to delimit its effect, has led to
+a serious abuse in our methods of legislation. Statutes are
+often favorably reported and enacted, both in Congress and the
+State legislatures, which are admitted to be either of doubtful
+constitutionality or to contain expressions of doubtful meaning,
+on the plea that those are questions for the courts to settle.
+This has been aptly termed the method of the "_referendum_
+to the courts in legislation."[Footnote: Thomas Thacher, Address
+before the State Bar Association of New Jersey, 1903.] It is
+unfair to them, so far as any question of the Constitution is
+concerned, since as soon as the measure is enacted a presumption
+arises that it is not unconstitutional. The courts will not hold
+otherwise without strong grounds. It comes to them with the
+benefit of a full legislative endorsement. It is unfair to the
+people, both as to questions of constitutionality and of
+interpretation. A statute can be so drawn as to need no
+interpretation, or none the outcome of which can be a matter of
+doubt to any competent lawyer. A legislature abandons its
+function when it enacts what it does not understand.
+
+The Sherman Anti-Trust Act is an instance of legislation of this
+character. It forbids contracts "in restraint of trade or
+commerce" between the States. When the bill was reported it was
+objected in the House of Representatives that these terms were
+vague and uncertain. The chairman of the committee himself
+stated that just what contracts will be in restraint of such
+commerce would not and could not be known until the courts had
+construed and interpreted the phrase.
+
+The real intent of those who inserted it was that it should not
+embrace contracts which were reasonable and not contrary to
+public policy. A similar term in the English Railway and Canals
+Traffic Act had received that interpretation in the English
+courts, and they supposed that our courts would follow those
+precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
+The Supreme Court of the United States did construe it as
+embracing all contracts in restraint of inter-State trade,
+whether reasonable or unreasonable, fair or unfair.[Footnote:
+United States _v._ Joint Traffic Association, 171 United
+States Reports, 505, 570.] One of the justices who concurred in
+that opinion, in a subsequent case arising under the same statute
+intimated that on reconsideration he thought the view that had
+been thus adopted was wrong.[Footnote: Northern Securities
+Co. _v._ United States, 193 United States Reports, 197,
+361.] The addition by those who drafted the bill of three or
+four words to make their intended meaning clear would have
+avoided a result unexpected by them and probably undesired, and
+relieved the court from deciding questions of doubtful
+construction involving important political considerations and
+immense pecuniary interests.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER VII
+
+
+        THE JUDICIAL POWER OF DECLARING WHAT HAS THE
+                FORM OF LAW NOT TO BE LAW
+
+
+Government is a device for applying the power of all to secure
+the rights of each. Any government is good in which they are
+thus effectually secured. That government is best in which they
+are so secured with the least show of force. It is not too much
+to say that this result has been worked out in practice most
+effectually by the American judiciary through its mode of
+enforcing written constitutions. How far it has gone in
+developing their meaning and building upon the foundations which
+they furnish has been made the subject of discussion in the
+preceding chapter. It remains to consider its office of
+adjudging statutes which come in conflict with their meaning, as
+thus determined, to be void.
+
+The idea of a supreme authority exercising the function of
+setting aside acts of legislative bodies which it deemed
+inconsistent with a higher law was familiar to Americans from an
+early period of our colonial history.[Footnote: See Chap. I;
+Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
+American Law," 12, 19.] The charter of each colony served the
+office of a constitution. The Lords of Trade and Plantations
+exercised the power of enforcing its observance. They did in
+effect what, as the colonies passed into independent States with
+written Constitutions, naturally became the function of their own
+courts of last resort. The Constitution, like the charter, was
+the supreme law of the land. Whatever statutes the legislature
+of a State might pass, it passed as the constitutional
+representative of the people of that State. It was not made
+their plenary representative. Every Constitution contained some
+provisions restricting the legislative power. If any particular
+legislative action transgressed these restrictions, it
+necessarily went beyond the authority of the body from which it
+emanated.
+
+The Judicial Committee of the Privy Council, which now exercises
+the functions formerly belonging to the Lords of Trade and
+Plantations, and is in fact the same body, deals in a similar way
+today with questions of a constitutional character. If one of
+the provinces included in the Dominion of Canada should in its
+local legislation infringe upon a field belonging to the Dominion
+Parliament, this committee can "humbly advise the king" that the
+act in question is for that reason void.[Footnote: In July, 1903,
+for instance, an Act of the Province of Ontario, entitled the
+"Lord's Day Profanation Act," was thus declared _ultra
+vires_.]
+
+The Revolution found the new-made States of the Union without
+this safeguard against a statute repugnant to a higher law. They
+had enjoyed as colonies the advantage which Burke declared was an
+ideal in government. "The supreme authority," he said, "ought to
+make its judicature, as it were, something exterior to the
+State." The supreme judicature for America had been in England.
+There was now no King in Council with power to set a statute
+aside forthwith by an executive order. But the other function of
+the King in Council, that of acting as a court of appeal from
+colonial judgments, had been simply transferred to new hands.
+The State into which the colony had been converted now exercised
+it for itself and through her judiciary.
+
+The judgment of a court is the legal conclusion from certain
+facts. Unless it is a legal conclusion from the facts on which
+it purports to rest it is erroneous, and, if there is any higher
+court of appeal, can be reversed. If such a judgment depends
+upon a statute which justifies or forbids the act or omission
+which constituted the cause of action, it is legal or illegal
+according as this statute is or is not law. It cannot be law if
+its provisions contravene rules laid down by the Constitution of
+the State to restrict the legislative power. The court which
+tries the cause must meet this question whenever it arises like
+any other and decide it. A court of law must be governed by law.
+What has the form of law is not law, in a country governed by a
+written constitution, unless it is consistent with all which that
+instrument provides.
+
+The first decision of an American court bottomed on these
+principles was probably rendered as early as 1780, and in New
+Jersey.[Footnote: Holmes _v._ Walton, IV _American
+Historical Review_, 456.] One of her greatest statesmen, who
+after taking a distinguished part in framing the federal
+Constitution became a justice of the Supreme Court of the United
+States, vigorously enforced the same doctrine on the circuit
+fifteen years later in trying a cause turning on the
+unconstitutionally of a confirming act passed by the legislature
+of Pennsylvania. "I take it," Justice Patterson said in charging
+the jury, "to be a clear position that if a legislative act
+oppugns a constitutional principle the former must give way and
+be rejected on the score of repugnance. I hold it to be a
+position equally clear and sound that in such case it will be the
+duty of the court to adhere to the Constitution, and to declare
+the act null and void."[Footnote: Vanhorne's Lessee _v._
+Dorrance, 2 Dallas' Reports, 304, 309, 316.]
+
+The accession of the Republicans to power in 1801, only to find
+the courts of the country controlled by judges appointed from the
+ranks of the Federalists, was the occasion of new attacks upon
+the doctrine thus laid down. It was vigorously denied by Senator
+Breckenridge of Kentucky, afterward Attorney-General of the
+United States, in the debates preceding the repeal of the
+Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
+year later (in 1803) the question came for the first time before
+the Supreme Court of the United States, and the same positions
+advanced by Patterson were taken in what is known as the leading
+case upon this subject by Chief Justice Marshall.[Footnote:
+Marbury _v._ Madison, I Cranch's Reports, 137. See
+Willoughby, "The American Constitutional System," 39.] It was
+unfortunate that the action was one involving a matter of
+practical politics, in which the plaintiff sought the benefit of
+a commission the issue of which had been directed by President
+Adams at the close of his term, but which was withheld by the
+Secretary of State under President Jefferson. Party feeling ran
+high at this time. The views of Breckenridge were shared by
+many, and the supremacy of the judicial department, which this
+prerogative, if it possessed it, seemed to imply, was distasteful
+to a large part of the people.
+
+An eminent judge of a State court, Chief Justice Gibson of
+Pennsylvania, as late as 1825, in a dissenting opinion, combated
+at length the reasoning of Marshall as weak and inconclusive.
+If, he said, the judiciary had the power claimed, it would be a
+political power. Our judicial system was patterned after that of
+England. Our judges had, as such, no power not given by the
+common law. It was conceded that English judges could not hold
+an act of Parliament void because it departed from the British
+constitution. No more could American judges hold an act of a
+State legislature void because it departed from the State
+Constitution, unless that Constitution in plain terms gave them
+such a power. The Constitution of the United States did give it,
+political though it was, to all judges (Art. XI, Sec. 2), and a
+State statute which was contrary to that Constitution might
+therefore properly be declared void by the courts.[Footnote:
+Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
+Later in his judicial career Gibson abandoned this position,
+[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
+281.] and the ground taken by Marshall has been since 1845
+universally accepted.
+
+The last official attack upon it was made in 1831, at the time
+when the feeling against protective tariffs was strong in the
+South, and South Carolina was known to be meditating opposition
+to their enforcement. The judiciary committee of the House of
+Representatives reported a bill to repeal the section of the
+Judiciary Act which gave the Supreme Court of the United States
+the right to reverse judgments of State courts that it might deem
+contrary to the Constitution of the United States. The report
+said that such a grant was unwarranted by the Constitution and "a
+much greater outrage upon the fundamental principles of
+theoretical and practical liberty as established here than the
+odious writ of _quo warranto_ as it was used in England by a
+tyrannical king to destroy the right of corporations." The
+House, however, rejected the bill by a very large majority.
+
+A proper regard for the coordination of the departments of
+government forbids courts to declare that a statute is
+inconsistent with the Constitution unless the inconsistency is
+plain. It has been judicially asserted that it must be plain
+beyond a reasonable doubt, thus applying a rule of evidence which
+governs the disposition of a criminal cause. As judgments
+declaring a statute inconsistent are often rendered by a divided
+court, this position seems practically untenable. The majority
+must concede that there is a reasonable doubt whether the statute
+may not be consistent with the Constitution, since some of their
+associates either must have such a doubt, or go further and hold
+that there is no inconsistency between the two documents.
+
+This right of a court to set itself up against a legislature, and
+of a court of one sovereign to set itself up against the
+legislature of another sovereign, is something which no other
+country in the world would tolerate. It rests on solid reason,
+but as the Due de Noailles has said, "Un semblable raisonnement
+ne ferait pas fortune aupres des republicans d'Europe, fort
+chatouilleux sur le chapitre de la puissance legislative. C'est
+que la notion de l'Etat differe d'une facon essentielle sur les
+deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
+Etats-Unis, II, 145.]
+
+Our people have been satisfied with the interposition of the
+courts to defend their Constitutions from executive or
+legislative attack, because these Constitutions stand for
+something in which they thoroughly believe. President Hadley has
+well said that "a written Constitution serves much the same
+purpose in public law which a fence serves in the definition and
+protection of private rights to real estate. A fence does not
+make a boundary; it marks one. If it is set where a boundary
+line has previously existed by tradition and agreement, it forms
+an exceedingly convenient means of defending it against
+encroachments. If it is set near the boundary and allowed to
+stay there unchallenged, it may in time become itself the
+accepted boundary. But if the attempt is made to establish a
+factitious boundary by the mere act of setting up a fence the
+effort fails."[Footnote: Freedom and Responsibility, 30.]
+Americans took principles and institutions with which they had
+become familiar in colonial days and made their Constitutions out
+of them. Their attachment to what the Constitution provides goes
+behind the Constitution to the rock of ancient custom and
+precedent on which it rests, the common heritage of all the
+States.
+
+There is an obvious reason for the unwillingness of the judiciary
+to exercise the power under consideration unless in case of
+necessity. The legislature presumably does only what the public
+sentiment of the day justifies or demands. One branch of it, at
+least, is the direct representative of the people. To defeat the
+operation of a statute is therefore always presumably an
+unpopular thing to do, and if in any case there is known to be
+truth behind the presumption, it requires, as the Federalist
+[Footnote: No. LXXVIII.] put it, "an uncommon portion of
+fortitude in the judges to do their duty as faithful guardians of
+the constitution."
+
+It is seldom that an inferior court declares a statute void. The
+mere fact that it was enacted by the legislature imports the
+opinion of that body that it was within its powers; and such an
+opinion of a department of government is entitled to great
+respect. If a different, opinion is to prevail, it should
+ordinarily be first pronounced by the highest authority that can
+speak for the judicial department. So far, however, as the
+question of power or jurisdiction is concerned, a justice of the
+peace, in trying a five-dollar case, has the same authority to
+disregard a statute, whether it be one enacted by the State
+legislature or by Congress, if he deems it unconstitutional,
+which belongs to the full bench of the Supreme Court of the
+United States. If he is wrong, the only remedy is by appeal.
+
+The number of statutes which have been judicially pronounced in
+whole or part invalid in the United States is very large. Among
+the Acts of Congress which have fallen in this manner and have
+been made the subject of elaborate opinions may be mentioned the
+provision in the original Judiciary Act giving the Supreme Court
+of the United States greater original jurisdiction than the
+Constitution provided;[Footnote: Marbury _v._ Madison, I
+Cranch's Reports, 137.] the Act of 1865, excluding from practice
+in the United States courts attorneys who could not take the
+"iron-clad oath" that they had not supported the South in the
+Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
+Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
+_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
+Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
+to protect the colored voter;[Footnote: United States _v._
+Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
+1875;[Footnote: United States _v._ Stanley, 109
+U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
+Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
+of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
+157 U. S. Reports, 429.] Fifteen others of less importance have
+fallen by the same sword. The Supreme Court of the United States
+has also set aside in the same manner, as inconsistent with the
+Constitution of the United States, over two hundred statutes
+passed by States. Of the twenty-one acts of Congress thus
+declared unconstitutional, the decisions as to all but two were
+rendered after 1830; of the State statutes all but
+twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
+Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
+fourteenth amendment has added largely to the list of the latter
+since its adoption in 1868.
+
+State statutes set aside by the State courts since 1780 as in
+violation of their respective State constitutions number
+thousands. In the year from October 1, 1902, to October 1, 1903,
+the legislatures of forty-four States and fully organized
+Territories of the United States were in session and nearly
+14,400 new statutes were enacted. During the same year fifty
+State statutes were declared in whole or part unconstitutional by
+courts of last resort. Three of these decisions were rendered by
+the Supreme Court of the United States. Five statutes of
+Missouri and as many of Indiana were thus set aside; three each
+of California, Kansas and Ohio; two each of Florida, Illinois,
+Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
+and one each of those of Kentucky, Maine, Michigan, Minnesota,
+New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
+Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
+No. 86, New York State Library, "Comparative Summary and Index of
+Legislation, 1903," 273, 281.] On the average probably as many
+as one statute out of every three hundred that are enacted from
+year to year are thus judicially annulled.
+
+The declaration by a court that a statute is unconstitutional and
+void is only a step in a cause. In the judgment it may not be
+found necessary or proper even to allude to it. But the order of
+the court which the judgment contains must be executed precisely
+as if no such statute had ever been enacted. It may, in effect,
+be directed against the State whose statute is pronounced void if
+the plaintiff complains of action taken under it which has
+deprived him of property and put it in the hands of public
+officers, or seeks a remedy to prevent a threatened wrong.
+
+The State of Ohio in 1819 passed a statute reciting that a branch
+of the United States Bank was transacting business there contrary
+to the law of the State, and imposing a tax upon it, in case it
+continued to do so, of $50,000 a year, to be collected by the
+auditor and paid over to the treasurer. The auditor subsequently
+sent a man to the bank who forcibly seized and carried off
+$98,000 in specie. This was given to the State treasurer, who
+kept it in the treasury in a trunk by itself. The bank sued all
+three for the money in the Circuit Court, setting forth all these
+proceedings at length. Judgment went against them and, with a
+slight modification, was affirmed by the Supreme Court of the
+United States. It was held by Marshall in giving the opinion
+that the statute was void; that the money had never become
+mingled with the funds of the State; and that they were liable
+for it precisely as if they were private individuals who had
+wrongfully seized it.[Footnote: Osborn _v._ Bank of the
+United States, 9 Wheaton's Reports, 738.]
+
+These proceedings awakened great feeling in Ohio, and became the
+subject of much criticism throughout the country by those
+adhering to the Democratic party. The legislature of Ohio
+adopted resolutions denouncing them as unauthorized by the
+Constitution of the United States, and directed the Governor to
+forward a copy to the legislature of every other State with a
+request for its opinion on the subject. The replies varied in
+tone according to the political predilections of the party then
+in control of the State addressed.
+
+Still closer does a court come to collision with the political
+sovereignty of the State when it commands a public officer to do
+something in violation of a statute which it pronounces void, or
+not to do something which such a statute requires. A striking
+instance of this is furnished by the power to nullify legislative
+gerrymanders. The Constitutions of almost every State provide
+that it shall be districted from time to time by the legislature
+for the purpose of electing certain officers or local
+representatives, and that this shall be so done as to make the
+districts as nearly equal in population as conveniently may be,
+and composed of contiguous territory. If a legislature
+undertakes to construct districts by any other rule, the courts
+can compel those charged with the conduct of elections to
+disregard it and to hold them according to the districts
+previously established under the former law.[Footnote: State
+_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
+17 Lawyers' Reports Annotated, 145; 35 American State Reports,
+29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
+638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
+Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
+Northeastern Reporter, 980.] But however necessary may be the
+conclusion from the premises, it can hardly be agreeable to the
+authors of a law which it serves to destroy. In effect, though
+not in theory, it subordinates one department of government to
+another. The practical result is to give the judiciary a
+superior power to the legislature in determining what laws the
+latter can enact. It is not a right of veto, but in a case which
+calls for its exercise it is an equal right exercised in a
+different way.
+
+In the first instance of a resort to it[Footnote: See p. 100.]
+the section of the New Jersey Constitution of 1776 confirming the
+right of trial by jury was held by the full bench of the Supreme
+Court to render a statute void which authorized a trial without
+appeal before a jury of six, on a proceeding for the forfeiture
+of goods brought in from British territory or the British
+military lines. This was an unwelcome decision to many who were
+interested in such seizures, and they sent in several petitions
+to the legislature for redress. No action criticising the
+judges, however, was taken by that body.
+
+Four years later the Mayor's Court of New York, in the case of
+Rutgers _v._ Waddington, held that an act of the legislature
+of that State, if given the effect which it was plainly intended
+to secure, would be contrary to the Constitution of the State,
+and therefore allowed it so limited an operation as virtually to
+annul it. The legislature retorted by resolutions of
+censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]
+
+What was probably the second instance of the actual use of the
+power in question arose in 1786, out of a statute of Rhode Island
+passed to support the credit of her paper money of that year's
+issue. Any one declining to receive it in payment for goods sold
+at par was to be liable to a _qui tum_ action, to be tried
+without a jury. Counsel for a man sued in such a proceeding put
+in a plea that the act was unconstitutional and so
+void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
+Power and Unconstitutional Legislation," 234, 237.] The court,
+which was composed of five judges, threw out the action on this
+ground, treating the charter from Charles II and the long usage
+under it as having established trial by jury as a fundamental and
+indefeasible right. The General Assembly shortly afterward
+summoned the judges before it to account for this judgment. They
+appeared and stated their reasons for their conclusion,
+protesting also against the adoption of any resolution for their
+removal from office (which had been suggested) until after a
+formal trial. They were not impeached, but at the ensuing
+session, their terms of office having expired, the Assembly chose
+others in their place.
+
+Not far from the same time the Supreme Judicial Court of
+Massachusetts pronounced a statute unconstitutional, but there
+the legislature displayed no feeling, and at the next session
+unanimously repealed it.[Footnote: This, no doubt, was one of the
+instances of the exercise of this power referred to by Elbridge
+Gerry in the Federal Convention of 1787. Elliot's Debates, V,
+151. It is described in Proceedings Massachusetts Historical
+Society, XVII, 507.]
+
+In 1808, Judge Calvin Pease of the Ohio Circuit Court was
+impeached for holding a law of Ohio unconstitutional. He avowed
+the act, and insisted that as it was a judicial one the soundness
+or unsoundness of his conclusions could not be inquired into as a
+ground of impeachment. The result was an acquittal.[Footnote:
+Foster, "Commentaries on the Constitution of the United States,"
+I, 691.]
+
+Georgia was the only one of the original States which set up no
+Supreme Court at the beginning of its statehood. Her
+Constitution established (Art. III, Sec. 1) a Superior Court, and
+left it to the General Assembly to give it, if they thought best,
+appellate jurisdiction. The judges were subsequently by statute
+authorized to sit _in banc_ and hear appeals. In 1815,
+while so sitting, they declared a certain statute of the State
+unconstitutional and void. The legislature showed its resentment
+by a set of resolutions, of which the parts material in this
+connection read thus:
+
+  Whereas, John McPherson Berrien, Robert Walker, Young Gresham
+  and Stephen W. Harris, judges of the Superior Court, did, on
+  the 13th day of January, 1815, assemble themselves together in
+  the city of Augusta, pretending to be in legal convention, and
+  assuming to themselves ... the power to determine on the
+  constitutionality of laws passed by the general assembly, and
+  did declare certain acts of the legislature to be
+  unconstitutional and void; and ... the extraordinary power of
+  determining upon the constitutionality of acts of the state
+  legislature, if yielded by the general assembly whilst it is
+  not given by the constitution or laws of the state, would be an
+  abandonment of the dearest rights and liberties of the people,
+  which we, their representatives, are bound to guard and protect
+  inviolate;
+
+  Be it therefore resolved, That the members of this general
+  assembly view, with deep concern and regret, the aforesaid
+  conduct of the said judges ... and they can not refrain from an
+  expression of their entire disapprobation of the power assumed
+  by them of determining upon the constitutionality of laws
+  regularly passed by the general assembly, as prescribed by the
+  constitution of this state; we do, therefore, solemnly declare
+  and protest against the aforesaid assumption of powers, as
+  exercised by the said judges, and we do, with heartfelt
+  sensibility, deprecate the serious and distressing consequences
+  which followed such decision; yet we forbear to look with
+  severity on the past, in consequence of judicial precedents,
+  calculated in some measure to extenuate the conduct of the
+  judges, and hope that for the future this explicit expression
+  of public opinion will be obeyed.
+
+In 1821 a case was argued before the Supreme Court of the United
+States involving the validity of a Kentucky statute passed to
+protect occupants of land who had made valuable improvements upon
+it in good faith, in case it should be subsequently proved to
+belong to some one else. The occupant had employed no lawyer,
+and it was surmised that the court would decide against him. The
+Governor of Kentucky called the attention of the legislature to
+this, and advised the employment of counsel to defend the law.
+The legislature responded by resolving "that they consider an
+adjudication, that the laws in question are void, incompatible
+with the constitutional powers of this state, and highly
+injurious to the best interests of the people; and therefore do,
+in the name of the commonwealth of Kentucky, and the good people
+thereof, solemnly remonstrate and protest against any such
+adjudication," but that two commissioners should be appointed "to
+attend the Supreme Court of the United States at the next term
+and oppose any decision that may be attempted to be procured from
+the Supreme Court, that those laws are void in such manner as
+they may deem most respectful to the court and most consistent
+with the dignity of this state."[Footnote: Niles' Register, XXI,
+190, 404, 405.] The case had already been heard _ex parte_,
+and the court soon proceeded to give judgment that the statute in
+question was void. The Kentucky commissioners employed counsel,
+who moved for a reargument, and obtained one, but with the same
+result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
+1.] The legislature at its next session discussed the opinion in
+the case and resolved "that they do most solemnly protest against
+the doctrines promulgated in that decision as ruinous in their
+practical effects to the good people of this commonwealth and
+subversive of their dearest and most valuable political
+rights."[Footnote: Niles' Register, XXV, 275.]
+
+They then took up two decisions of their own Court of Appeals,
+declaring other statutes of the State unconstitutional and void,
+and resolved "that in the opinion of this legislature the
+decision of the Court of Appeals of Kentucky in the cases of
+Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
+34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
+are erroneous, and the laws declared therein to be
+unconstitutional are, in the opinion of this present General
+Assembly, constitutional and valid acts."[Footnote: Niles'
+Register, XXV, 275.] The next step was to endeavor to remove the
+judges, but the two-thirds vote required by the Constitution to
+support an address to the Governor for that purpose could not be
+secured. At the next session, in 1824, the judges were summoned
+to show cause why they should not be removed. They defended
+their conclusions so well that the two-thirds vote of each house
+required by the Constitution could not be obtained. By a
+majority vote the court was then abolished, a new one set up by
+the same name, and four new judges appointed. The old court
+refused to recognize the validity of their proceedings. The new
+one assumed to organize and to do business. At the next election
+the question which court ought to be recognized was the dominant
+one. The result was that the friends of the old court gained
+control of the House and those of the new court that of the
+Senate, one of them being also chosen as the Governor. The new
+court now got possession of most of the papers of the old court.
+The latter ordered their sergeant to bring them back. The
+Governor made preparations to use military force to resist the
+execution of this order. At last, in 1826, an act was passed
+(Session Laws, p. 13) over the Governor's veto, declaring the
+acts abolishing the old court unconstitutional and void. The
+Governor thereupon appointed a warm champion of the new court
+chief justice of the old one to fill a vacancy which had occurred
+on that bench, and for the first time for two years the judicial
+establishment of the State was on a proper footing.[Footnote:
+Niles' Register, XXXI, 324; McMaster "History of the People of
+the United States," V, 162-166; "The Old and the New Court, in
+The Green Bag," XVI, 520.]
+
+Meanwhile both courts had been sitting and disposing of cases.
+New appeals from the inferior courts had been entered in the one
+which the appellant's counsel thought most likely to stand as the
+rightful authority. The judges of the inferior courts were in
+despair when the mandates of the Court of Appeals came down, and
+they were called upon to determine whether to obey them. Some
+held that the new court was a _de facto court_, and to be
+respected accordingly. The ultimate decision fell to the old
+court, which, after the repealing Act of 1826, held that there
+could be no such thing as a _de facto_ Court of Appeals so
+long as civil government was maintained and the _de jure_
+court was in the exercise of its functions.[Footnote: Hildreth's
+Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
+Reports, 206.]
+
+The same spirit of jealousy still occasionally manifests itself
+in a less outspoken but more effective fashion. If a question of
+political importance is likely to come before a court, it may be
+within the power of the legislature to prevent it by a change in
+its statutory jurisdiction.
+
+In this way the Supreme Court of the United States was kept from
+passing on the validity of the Reconstruction Acts enacted by
+Congress at the close of the Civil War, in a case which was
+actually pending. Under these Acts a Mississippi newspaper
+editor was arrested in 1867 by military order on account of an
+article which he had published reflecting on the policy of the
+government, and held for trial before a military commission. He
+appealed to the Circuit Court of the United States for the
+District of Mississippi for discharge on a writ of _habeas
+corpus_. Judgment went against him, and he appealed to the
+Supreme Court of the United States. The court, on August 1, held
+that it had jurisdiction to review the decision and to decide
+whether he could be tried before such a commission.[Footnote:
+_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
+cause was then heard on its merits and all the questions involved
+discussed at length, four days being devoted to it. Congress
+apprehended a decision that the Reconstruction Acts were
+unconstitutional, and before one was arrived at, during the same
+month, passed an act repealing the right of appeal in such cases
+from the Circuit Court. The purpose of this was obvious, but it
+was none the less effective, and the court, without deciding the
+case, dismissed it for want of jurisdiction.[Footnote: _Ex
+parte_ McCardle, 7 Wallace's Reports, 506.]
+
+A legislature whose work has been set aside by the courts as
+unconstitutional sometimes asks, in effect, for a reconsideration
+of the question by passing another law substantially of the same
+nature, although expressed in somewhat different terms. This is
+oftenest done when the decision was made by a divided court or is
+contrary to the weight of judicial opinion in other States.
+Early in the history of California, for instance, a statute was
+passed making it a misdemeanor to keep open any store, shop or
+factory, or to sell goods, on Sunday. The Supreme Court of the
+State held this to be contrary to the provisions in her
+Constitution that all men had the inalienable right of acquiring
+property, and that the free exercise of religious profession
+should be allowed without discrimination or preference. Most of
+the other States had similar statutes, and their courts had
+supported their validity. Judge Stephen J. Field, then on the
+California bench, dissented in a vigorous opinion.[Footnote:
+_Ex parte_ Newman, 9 California Reports, 502.] Three years
+later the legislature, unconvinced by the reasoning of the
+majority of his associates, passed a new Sunday law, which did
+not differ materially from the other, and after a few months the
+court overruled their former decision, on the very ground taken
+by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
+Reports, 679.]
+
+Any dissent from a judgment setting aside a statute greatly
+weakens its force. It has also much less claim to public
+confidence if all the judges on the bench did not participate in
+it. In 1825, the Court of Appeals of Kentucky declined to follow
+a decision of the Supreme Court of the United States, which held
+certain statutes of Kentucky to be contrary to the Constitution
+of the United States.[Footnote: Green _v._ Biddle, 8
+Wheaton's Reports, 1.] The reason stated for this was that the
+decision was not concurred in by a majority of the court. It had
+been made by a majority of a quorum, but not by a majority of the
+whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
+Kentucky Reports, 57.] After this it became the practice of the
+Supreme Court under Chief Justice Marshall not to give judgment
+in any case involving constitutional questions, unless a majority
+of the court concurred in opinion in regard to these.[Footnote:
+New York _v._ Miln, 8 Peters' Reports, 118, 122.]
+
+Several American courts have asserted the doctrine that the
+judiciary can disregard a statute which plainly violates the
+fundamental principles of natural justice, although it may not
+contravene any particular constitutional provisions. The English
+courts now claim no such power, although Sir Edward Coke, in one
+of his discursive opinions, very little of which was necessary
+for the determination of the cause, asserted that an act of
+Parliament "against common right and reason" could be adjudged
+void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
+Reports, 114, 118.] So far as there was any previous judicial
+authority for this position, however, it is believed that it can
+only be found in decisions made before the Reformation, on
+questions arising from interference by Parliament with rights
+claimed under the Church of Rome. Such questions were of the
+nature of those arising under a written Constitution. The law of
+the church within its province was then accepted as a supreme
+law.[Footnote: Coxe, "Judicial Power and Unconstitutional
+Legislation,"' 147, _et seq_.]
+
+The rule laid down by Sir Edward Coke was accepted by the Supreme
+Court of South Carolina in two early cases,[Footnote: Ham
+_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
+Middleton, _Ibid_., 252.] and has been substantially
+repeated in some judicial opinions in other States.[Footnote: See
+Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
+Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
+American Decisions, 72.] In the Supreme Court of the United
+States its authority was emphatically denied by Mr. Justice
+Iredell, near the close of the eighteenth century,[Footnote:
+Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
+the full court only one member dissenting, held a State statute
+void which authorized cities to issue bonds in aid of private
+manufacturing enterprises, because they could only be discharged
+by taxation, and to tax for such a purpose would be taking
+property from all for the good of one. That, said Mr. Justice
+Miller in delivering the opinion, "is none the less a robbery
+because it is done under the forms of law and is called taxation.
+This is not legislation. It is a decree under legislative
+form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
+Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
+U. S. Reports, 487, 501.]
+
+This view of the law had been forcibly, though tentatively, put
+shortly after he came to the bench by Chief Justice Marshall in a
+leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
+Reports, 87.] but one in which it was not necessary to decide
+whether the doctrine was sound. "It may well be doubted," he
+observed, "whether the nature of society and of government does
+not prescribe some limits to the legislative power; and, if any
+be prescribed, where are they to be found, if the property of an
+individual, fairly and honestly acquired, may be seized without
+compensation?  To the legislature all legislative power is
+granted; but the question whether the act of transferring the
+property of an individual to the public be in the nature of the
+legislative power is well worthy of serious reflection."
+
+The weight of American authority is in favor of the position
+taken by Iredell.[Footnote: Cooley's "Constitutional
+Limitations," Chap, VII; State _v._ Travelers' Insurance
+Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
+57 Lawyers' Reports Annotated, 481.] Time has made it safer to
+stand upon it, for since he spoke not only have our State
+constitutions been generally expanded by adding important
+restrictions on the legislative power, but the fourteenth
+amendment has added to the Constitution of the United States a
+prohibition of State laws depriving any person of life, liberty,
+or property without due process of law. "Due process of law" is
+an elastic term. Requiring it certainly imports that no one is
+to be made to suffer in person or property unless he has had an
+opportunity to claim before an impartial tribunal the protection
+of his rights by the settled law of the land.
+
+The principle of Roman law that, as custom can make law, so
+disuse can destroy it has never been adopted in the United
+States. No court, therefore, will pronounce a statute not to
+have the force of law on the ground that it is
+obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
+undertook to import the doctrine into American jurisprudence, but
+without effect. Hill _v._ Smith, Morris' Reports, 70;
+explained and limited in Pearson _v._ International
+Distillery, 72 Iowa Reports, 357.]
+
+            *       *       *       *       *
+
+
+
+
+PART II
+
+
+
+
+
+THE ORGANIZATION AND PRACTICAL
+WORKING OF AMERICAN COURTS
+
+
+
+
+            *       *       *       *       *
+
+
+
+
+                    CHAPTER VIII
+
+
+        THE ORGANIZATION OF THE COURTS OF THE STATES
+
+
+The State Constitutions differ fundamentally from that of the
+United States in respect to the nature of the judicial
+establishment. Each of the States possesses all judicial powers
+belonging to any sovereignty, except so far as the people of the
+United States may have provided otherwise in the Constitution of
+the United States. The State Constitutions do not define those
+powers. They simply commit them to certain courts and officers.
+Their general language is that the judicial power is vested in a
+Supreme Court and such other inferior courts as may be created by
+law. On the other hand, the Constitution of the United States
+defines the judicial powers of the United States exactly and
+within a somewhat narrow range, investing the courts of the
+United States with those powers and no others. Hence the States
+require a much more complicated and extensive judicial
+establishment than do the United States, for not only is the
+great mass of litigated cases throughout the country to be
+disposed of by State courts, but they must also pass upon by far
+the greatest variety of legal questions.
+
+In each State there is one appellate court of last
+resort[Footnote: See Chap. XIX.] and several courts for the trial
+of original causes. Local justices of the peace are commonly
+given jurisdiction over prosecutions for petty misdemeanors, and
+civil cases involving small amounts (seldom over $50 or $100),
+which do not affect title to land. Then come County Courts
+(often styled Courts of Common Pleas or District Courts), having
+cognizance of actions involving greater sums, and to which
+appeals from judgments of justices of the peace can be taken.
+These generally have both civil and criminal jurisdiction.
+
+A higher court, which may be styled a Superior Court, or Circuit
+Court, often exists, with unlimited jurisdiction as respects
+values in controversy, and also as to crimes, the County Courts
+in such case having a limited jurisdiction in these respects.
+
+Municipal courts are to be found in all considerable cities and
+in many of the lesser municipalities, such as towns and boroughs.
+City Courts often have jurisdiction over civil causes to which
+one residing in the city is a party, or growing out of a
+transaction occurring within the city, irrespective of the amount
+of the matter in demand. They frequently have a criminal side,
+before which convictions may be had for petty misdemeanors, and
+those charged with higher offenses bound over for trial in some
+court of general criminal jurisdiction.[Footnote: See Goodnow,
+"City Government in the United States," Chap. IX.]
+
+For the settlement of the estates of deceased persons and the
+appointment and superintendence of guardians and similar agents
+of the law, and proceedings in insolvency, there are in many
+States special courts, known as Courts of Probate, Surrogate's
+Courts, or Orphans' Courts, and Courts of Insolvency. In others
+these functions belong to the County Courts.
+
+The early practice in this country favored having several judges
+hold all trial courts, whether a jury was or was not to be called
+in. It was a method wasteful of time and money. In
+Massachusetts it survived for their highest _nisi prius_
+court until 1804. In many States it endured much longer for
+County Courts.
+
+County Courts in some States are courts only in name, except,
+perhaps, for some very limited purposes. Their real functions
+are administrative. Some or all of those who hold them are often
+styled commissioners, and their principal duties are to manage
+the general business affairs of the county.[Footnote: See
+Constitution of West Virginia, Amendment of 1880; Constitution of
+Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
+indicates that those in that State are not fountains of law, for
+it requires the district attorneys in each county, or their
+deputies, to advise the County Courts "on all legal questions
+that may arise." In Virginia, County Courts for a long period
+were held by all the justices of the peace in the county, or such
+of them as might attend. These magistrates nominated their own
+successors to the Governor, who almost never refused to
+commission the person so recommended. The court also nominated
+the officers of militia below the rank of General, and managed
+all the county affairs, besides having an extensive civil and
+criminal jurisdiction, including the power of acquittal in cases
+of felony. However clumsy and ill-ordered such a scheme appears,
+it gave general satisfaction for a long course of years, partly
+from a usage on the part of the older members of the bar who
+might be in attendance to volunteer advice as _"amci
+curiae"_ whenever any doubtful question of law chanced to
+arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
+Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
+County Courts have jurisdiction of ordinary lawsuits the judges,
+or a majority of them, are sometimes without any legal training,
+though this is now less common than it once was.[Footnote:
+McMaster, "History of the People of the United States," III,
+154.]
+
+The Constitutions of the States generally require the existence
+of a Supreme Court of last resort, and often specify also by name
+one or more of inferior jurisdiction. Such courts stand on a
+firmer footing than those created by the legislature under a
+general power to establish inferior courts. The power to
+establish implies a power to limit and to destroy. A tribunal
+created by a Constitution, with functions defined in the
+Constitution, is, as to these and as to its independence of
+existence and action, beyond legislative control.
+
+The Republicans in Congress were within their rights when, in
+1802, they repealed the act passed by the Federalists the year
+before to create a system of Circuit Courts. Those of
+Massachusetts were within theirs when, in 1811, they abolished
+the ancient Court of Common Pleas of that State and created a new
+"Circuit Court," with fifteen judges, to take its place. Both
+would have been glad to go farther and reconstitute in some way
+the court of last resort, which was filled with old Federalists.
+Why they did not has been frankly stated by one of them in his
+account of Governor Gerry's administration:
+
+  With the Supreme Judicial Court the party did not interfere.
+  In respect for the authority of the Constitution this
+  forbearance was observed; it having been conceded after due
+  deliberation by men having the confidence of the dominant party
+  that neither the court nor the judges were within the power of
+  the legislature. The result was very reluctantly acceded to,
+  for the imposing influence of that court had been felt in the
+  political agitation of the times, and some of the judges, like
+  some ministers of the gospel, had been unwise enough to give to
+  the extension of their political feelings the aid directly
+  derived from their official authority.[Footnote: Austin, "Life
+  of Elbridge Gerry," II, 339. See Chap. XXII.]
+
+The weakest point in this system of judicial organization is the
+vesting of jurisdiction of small civil causes in justices of the
+peace. Of these there are generally several in each town, having
+jurisdiction over the whole county. Some may be lawyers. None
+need be, and few are. Any one of them can try cases. Which of
+them shall try any particular case is left to be determined by
+the lawyer who brings it.
+
+Justices of the peace can be trusted to dispose of petty criminal
+prosecutions and to conduct preliminary examinations into charges
+of any offence for the purpose of determining whether there is
+ground for holding the accused for trial before a jury, although
+even here mischief often results from their ignorance of law, and
+the sufferers have little means of redress.[Footnote: See McVeigh
+_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
+Reporter, 701.] Such prosecutions are brought by a public
+officer, who will not be apt to select an incompetent magistrate,
+and has no strong motive for choosing one specially likely to
+give judgment against the defendant. But in civil cases, for the
+lawyer who institutes them to pick out his judge at will from a
+number who are equally competent to assume jurisdiction, and at
+the same time (as is generally the law) are left wholly without
+salaries, receiving nothing except fees for cases actually
+brought before them, is to place the defendant in a much less
+favorable position than the plaintiff. If the justice decides in
+favor of the latter, he is obviously more likely to get the
+subsequent patronage of his lawyer. In most justice suits
+judgment does go for the plaintiff, and not infrequently it is to
+be feared that he gets it from that consideration. Some justices
+rarely give any other judgment. Many lawyers bring all their
+cases before one justice, and seldom fail of success.
+
+In 1903, a justice of the peace in one of our largest cities
+resigned his office and made his reasons public. They were that
+no one could afford to hold it who was not willing to stoop to
+unworthy practices. Lawyers having a large collection practice,
+who were the best customers at such a shop of justice, threw
+their business where they could get it done most cheaply. They
+expected the justice of the peace whom they favored to favor
+them. One way was by making them a discount on his legal fees.
+There was a competition among the justices for business on these
+terms, and the lowest bidder generally got it. Blank writs of
+summons, even, signed by the justice would be sold at so much a
+dozen, to be filled in to suit the attorneys.
+
+A system in which such things are possible is inherently vicious,
+and only endurable because the defeated party can always appeal
+and have a new trial before a higher court. That relief,
+however, is expensive. Judgments ought to be just in the first
+instance, and it is the business of governments to ensure this,
+so far as they reasonably can.
+
+The natural remedy would seem to be to have fewer justices of the
+peace who are authorized to try cases and to pay them a fixed
+salary. Better men could thus be had and independence of action
+promoted. That this is not done comes mainly from the feeling
+that small controversies ought to be settled by a neighborhood
+court; that any man of good common sense can generally deal with
+them as well as a lawyer; and that to salary every justice would
+be an unreasonable burden to impose on the taxpayer. The system
+is also an ancient one; it works well with honest men; and the
+people have an inherited attachment for it.
+
+In a few States a sharp line of division is drawn between courts
+of law and courts of equity. This distinction was inherited from
+England, though it has been for most purposes abolished there by
+the Judicature Acts of 1873 and 1875. It originated in the royal
+prerogative of interposing to do justice between private
+individuals in cases of an extraordinary character when the
+regular courts had no power to grant the necessary relief. The
+King was accustomed to refer requests for such action on his part
+to his principal secretary and councillor. The next step was to
+address the request directly to this officer, who was styled the
+Chancellor. If a man were acting toward another in a way that
+was against good conscience, though without absolutely
+transgressing any settled rule of law, the Chancellor could
+compel him to desist. If the legal title to land had been
+conveyed to one for the use of another, and the holder of this
+title refused to recognize the beneficial interest to serve which
+he had been invested with it, the Chancellor could bring him to
+account, although the common law would give no remedy. Soon,
+whenever a man seemed to have justice on his side, but not law,
+it was deemed a case for the Chancellor, or a case in chancery.
+Relief was given because it was equitable to give it, and so it
+was called relief in equity. The jurisdiction expanded.
+Wherever there was a right, but no adequate remedy at law, the
+Court of Chancery, or, as it was oftener called, of equity, was
+recognized as competent to step in and do justice.
+
+The Chancellor had often been an ecclesiastic. He was apt to be
+more familiar with canon law and civil law than with the common
+law. The justice which he administered came from the Crown, not
+from the people. The people spoke through a jury, called in law
+language "the country." The Chancellor spoke for himself. If he
+called in the aid of a jury, it was to advise him, not, as in a
+common law court, to make a final decision as to the question
+submitted to it.
+
+The result came to be that for several hundred years, embracing
+the whole colonial period, England had two distinct sets of
+courts, acting under different rules, and each trying a different
+kind of cases. Those involving questions of trust, account,
+fraud, mistake or accident, were the principal subjects of
+equitable jurisdiction. Equity also could prevent wrongs, while
+law could only punish them.[Footnote: See Chap. XX.] It was not,
+however, always easy to mark the line between cases, and say
+which belonged in the common law tribunals and which in those of
+chancery. Many an action failed, not because there was no just
+cause of action, but because it had been brought in the wrong
+court.
+
+In the American colonies, and for many years in the States which
+succeeded them, these distinctions of procedure were generally
+observed.[Footnote: In Pennsylvania the courts largely
+disregarded them and asserted that equity was a part of its
+common law. See Myers _v._ South Bethlehem, 149
+Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
+some there were, in some there still are, separate courts of
+equity held by a Chancellor, aided, if necessary, by
+Vice-Chancellors. In others two dockets or lists of cases were
+(and in a number of them still are) kept in the same court, and
+the same judge disposed of those on one docket as a court of
+equity and of those on the other as a court of law.
+
+Such a system is intrinsically absurd. It has been maintained by
+whatever States yet tolerate it for two reasons: because the
+lawyers and the community are used to it, and because it
+furnishes a convenient test of any claim of right to a jury
+trial. All our State Constitutions have some provision for
+maintaining such rights, but they do not define the cases in
+which the right exists. That is left to the courts, and their
+rule is that it cannot be claimed in cases that call for
+equitable as distinguished from legal relief.
+
+In most of our States and Territories legal and equitable causes
+of action or defenses may now be joined, and legal and equitable
+relief given in one suit. This reform in procedure was largely
+due to the labors of David Dudley Field, and became general
+throughout the country during the last half of the nineteenth
+century. The result has been that separate courts of equity are
+now to be found only in a few States.
+
+Congress has made use of the State courts in certain cases as
+part of the machinery of the federal government. While by the
+Constitution "the judicial power of the United States" can only
+be vested in the courts of the United States, the phrase as thus
+used refers only to the power of judging causes in courts of
+record. State courts and magistrates can therefore be given
+jurisdiction by Congress over any acts in aid of the functions of
+the United States, the supervision of which may be regarded as
+ministerial, or as incidental to judicial power rather than a
+part of it. They have received it in this way with respect to
+such matters as seizure of deserters from a merchantman, the
+arrest and commitment or bail of offenders against the criminal
+laws of the United States, the taking of affidavits and
+depositions for use in proceedings before federal authorities,
+and the naturalization of aliens.[Footnote: Robertson _v._
+Baldwin, 165 U. S. Reports, 275.]
+
+State courts also have jurisdiction over any civil action to
+enforce a right given by the laws of the United States, unless
+Congress has otherwise provided. They constitute together with
+the federal courts one general judicial system for the whole
+country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
+130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
+Northeastern Reporter, 435.]
+
+Almost all American courts are known as "courts of record." A
+court of record, in modern parlance, is one which tries causes
+between parties and is required to keep a full official and
+permanent record of its disposition of them. For this purpose
+most courts are furnished with a recording officer, called the
+clerk. His record is the only evidence of their judgments and
+cannot be contradicted or impeached in any collateral proceeding.
+If there is any error in it, it can only be shown on a direct
+proceeding brought to correct it.
+
+Justices of the peace, when authorized to try causes, act only in
+small matters and in a summary way. In most States they are not,
+when exercising this function, deemed to constitute a court of
+record. Nor is any court, even though furnished with a clerk, if
+its proceedings are not recorded in full, but simply made the
+subject of brief notes or minutes,[Footnote: Hutkoff _v._
+Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
+unless there is a statute or local practice giving such notes or
+minutes the effect of a record.
+
+A court of record has inherent power to preserve order in
+proceedings before it[Footnote: See Chap. XX.] and, unless other
+provision be made by law, to appoint a crier or other officer to
+attend upon its sessions. By statute it is commonly made the
+duty of the sheriff of the county to attend all courts of record,
+either personally or by deputy. He also executes such processes
+as under the practice of the court may be directed to him.
+Witnesses and jurors are thus summoned by him to appear before
+the court; arrests and attachments of property are made; and
+executions are levied to enforce final judgments.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER IX
+
+
+       THE ORGANIZATION OF THE COURTS OF THE UNITED STATES
+
+
+The Constitution of the United States (Art. III) provides that
+there must always be one Supreme Court of the United States. The
+establishment of such inferior courts as may be deemed proper
+from time to time is left to Congress.
+
+The judicial power of the United States is limited to cases of
+certain kinds or between certain kinds of parties. Either (1)
+the subject-matter of the action must be of a kind that concerns
+the whole nation, or (2) some party to it must be or claim under
+a political sovereign, or (3) it must be between a citizen of a
+State of the Union and one of another of the States or of a
+foreign country.
+
+In a few of the second class the Supreme Court is given original
+jurisdiction: in all others of both classes it has appellate
+jurisdiction, with such exceptions as Congress may think fit to
+make, save only that no fact tried by a jury can be thus
+re-examined, except so far as the rules of the common law would
+have permitted. Its original jurisdiction is confined to cases
+affecting ambassadors, ministers, and consuls and those to which
+a State shall be a party. It is not necessarily exclusive as
+respects any of them,[Footnote: Ames _v._ Kansas, 111
+U. S. Reports, 449, 469.] and by the eleventh amendment to the
+Constitution is so limited as not to include suits against a
+State by citizens of any other State or foreign government. In
+point of fact, few original suits have ever been brought before
+the court, and almost all of these have been instituted by or
+against States.
+
+The Supreme Court is held at Washington. There is a Chief
+Justice with eight associate justices, and each is also assigned
+for circuit duty as a judge of the Circuit Court of the United
+States in one of nine judicial circuits into which the country is
+divided. Originally there were but six judges, and each was
+required to hold two circuits a year in each district in his
+circuit. They were assigned to the circuits in pairs, and both
+sat together with the District Judge. The consequence was that
+three-fourths of their time was spent in traveling from one court
+town to another. They complained of this to Congress through the
+President in 1792, and the next year it was provided that Circuit
+Courts might be held by one justice, alone or with the District
+Judge. In 1801, an ultimate reduction of the number to five was
+provided for. They were to devote their time entirely to the
+Supreme Court, while the Circuit Courts were to be held by a new
+set of eighteen Circuit Judges. In 1802, they had only ten cases
+pending before them, and the average for some years had not
+exceeded that number. For this and other reasons mentioned
+elsewhere the Act of 1801 was repealed by the next Congress. In
+1807, another Justice of the Supreme Court was added and two more
+in 1837.
+
+Each circuit has a judicial establishment of its own, and is
+composed of a certain number of judicial districts. Of these
+there are in the whole United States about eighty. The smaller
+States constitute one district. In the larger ones there are
+several.
+
+Each district generally has its own judge, called the District
+Judge, and always its own court, called the District Court of
+that district. Each circuit has several Circuit Judges, whose
+main work is to sit in a court held in each circuit, styled the
+Circuit Court of Appeals. They can also hold a District Court.
+
+Until 1911, the District Courts had a narrow jurisdiction, and
+there were Circuit Courts having a wider one. In 1911, the
+Circuit Court was abolished, and the District Court now is the
+general trial court of the United States in the first instance.
+Anyone can sue there to enforce a right arising under the laws of
+the United States when the amount in dispute is more than $3,000.
+Rights arising under certain of these laws can only be enforced
+there, and as to them the pecuniary limitation does not apply.
+Such are patent-rights and copyrights. Any suit involving an
+amount exceeding $3,000 may be brought there when the controversy
+is between citizens of different States or citizens of a State
+and citizens of a foreign country. So may a suit by citizens of
+the same State claiming land under grants from different States,
+without respect to the value of the subject of controversy.
+Suits of any of these kinds which are brought in a State court
+may, at the option of the defendant, be transferred for trial
+into the District Court. On filing proper papers the case is
+transferred automatically. The District Court has jurisdiction
+also over bankruptcy and admiralty matters, a few other kinds of
+civil cases of minor importance, and of all offenses against the
+United States.[Footnote: The Judicial Code of the United States,
+Chapter II.]
+
+The pecuniary limit of jurisdiction was for a hundred years fixed
+at $500. The increase to $3,000 was due partly to the fact that
+the Supreme Court was overburdened by appeals from the trial
+courts, many of which involved small amounts, and more to a
+desire to keep judicial power over ordinary controversies between
+man and man, as far as practicable, in the hands of the State
+courts.
+
+Early in the nineteenth century a practice began of bringing
+suits in the Circuit Court of the United States, which purported
+to be between citizens of different States, but in which the
+plaintiff had either changed his residence for the purpose of
+giving the court jurisdiction or was really suing for the benefit
+of a citizen of the same State with the defendant. This was due
+to the high opinion entertained of the federal
+judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
+bring the cause before a federal, rather than a State tribunal.
+Such a mode of proceeding, while within the letter of the
+governing statute, was contrary to its spirit, and little better
+than a fraud. It was also an evident perversion of the intent of
+the Constitution, and became at last so far-spreading that both
+Congress and the courts used their best endeavors to put an end
+to it, and with success.[Footnote: U. S. Statutes at Large,
+XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]
+
+Another cause is also effective in lessening the docket of the
+District Courts. The ordinary lawyer prefers to sue in a State
+court, when he has the choice, on account of his greater
+familiarity with the practice there. Many American lawyers have
+never brought an action in a federal court. Most cases which
+could be so brought can also be and are brought in a State court.
+
+Congress has thus far maintained for the federal courts the
+ancient distinction between procedure in law and in equity
+explained in the preceding chapter. There are those who claim
+that the reference in Art. III, Sec. 2, of the Constitution of
+the United States to "cases in law and equity" requires its
+preservation; but this seems a strained construction of the
+phrase. Separate dockets are kept in the District Court of legal
+and of equitable actions. They are brought in different form,
+tried in a different way, and disposed of by different rules,
+though by the same judges and at the same term of court. As to
+equity cases, the rules of the old English chancery practice are
+substantially followed. In cases of a common law nature, the
+practice existing at the time in regard to those of a similar
+kind in the courts of the State within which the federal court
+may be held is to be followed, as nearly as may be.[Footnote:
+U. S. Revised Statutes, Sec. 914.] In fact, there is a departure
+from it in many points in most States,[Footnote: See Nudd
+_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
+those which have reformed their procedure in civil actions by
+fusing remedies at law with those in equity. If an action framed
+in this method be removed from a State court to a federal court,
+the plaintiff must thereupon split it in two, and present his
+case at law on one set of papers and his case in equity on
+another.
+
+The Supreme Court, under power derived from acts of Congress, has
+framed rules of procedure for the inferior trial courts of the
+United States in equity and admiralty cases, and the latter
+courts have supplemented them by further rules of their own
+making. The Equity Rules promulgated by the Supreme Court were
+revised in 1912, and took effect as changed in 1913.[Footnote:
+They are printed in Volume 226 of the United States Reports.]
+They greatly simplify the former procedure. Suits are now tried
+generally on oral testimony taken stenographically in open court.
+Formerly the evidence was usually given before officials known as
+examiners or masters in chancery. The former reported the
+testimony at length to the trial court. The latter reported
+their conclusions from it.
+
+The new rules have abolished demurrers in equity causes in favor
+of what is substantially the present English practice.[Footnote:
+See _infra,_ page 203.]
+
+In common law causes in the District Court, the State remedies by
+way of attaching the property of a defendant to respond to a
+judgment, or seizing it on execution, or imposing a lien upon it
+by a judgment, are adopted and enforced.[Footnote:
+U. S. Rev. Stat., Sec.Sec. 915, 916, 967, 988.]
+
+The field of national legislation being narrow, the offenses
+against the nation are correspondingly few. Any acts done on
+lands ceded by a State, which would have been crimes under its
+law in 1873, may be punished as such in the federal courts in the
+same manner which that law provided.[Footnote: _Ibid_., Sec.
+5391.]
+
+In the Circuit Courts, before 1866 it was customary to defer the
+trial of important causes until the Justice of the Supreme Court
+assigned to the circuit could be present. If he differed on any
+material point from the District Judge, this point could be
+certified up to the full Supreme Court for argument and decision
+there. During this period the published reports of the decisions
+of the Circuit Court contain many opinions of the highest value.
+Several of the best which Story and Bushrod Washington wrote are
+to be found among them.
+
+The Act of 1866, by which a resident Circuit Judge was appointed
+for each circuit, provided notwithstanding that each member of
+the Supreme Court should attend at least one term of the Circuit
+Court in each district as often as once in two years. The press
+of business at Washington, however, soon became such as to make
+it practically impossible for the Supreme Court Justices to do
+any substantial circuit work. When some case of national
+importance was to be heard in any district, the Justice in whose
+circuit it was included would make a special effort to go down.
+In this way Chief Justice Chase heard and sustained the plea with
+which Jefferson Davis met the indictment against him for treason.
+But ordinarily the Circuit Judge took the place of the Supreme
+Court Justice, and the latter, if he appeared at all during the
+term, remained hardly for a day.
+
+The Supreme Court, therefore, during over a hundred years
+remained the only court of the United States existing mainly for
+appellate purposes. The work which it had before it at the last
+term during which it occupied this position (October Term, 1890)
+will show how much it was then overburdened.
+
+Its docket contained 1,177 appeals brought forward by continuance
+because they could not be disposed of at the preceding term, 623
+new cases of the same kind, and 16 cases of original
+jurisdiction, making a total of 1,816 actions. Of these,
+although the term lasted nearly eight months, it was only able to
+dispose of 617, thus leaving 1,199 for continuance to the
+following term.[Footnote: 140 U. S. Reports, Appendix.] It will
+be observed that the court was no longer able to cope with its
+new business, not to mention that left over from previous years.
+
+Appeals now lie in most civil cases from the final judgments of
+the District and Circuit Courts, and from convictions for
+infamous crimes, not capital, to the Circuit Court of Appeals.
+They also extend to judgments granting a temporary injunction.
+There is a court of this name for each of the nine circuits,
+which was established in 1891 for the further relief of the
+Supreme Court and the speedier termination of litigation. This
+measure originated in the American Bar Association, by which it
+was pressed upon the attention of Congress. It had become an
+absolute necessity to devise some plan of expediting the
+disposition of appeals from the trial courts of the United
+States. There was more than enough of such business by the close
+of the Civil War (the events attending which brought up for
+decision many novel questions of the highest importance) to
+require the entire attention of the Supreme Court. It soon took
+three years after an appeal was docketed before it could be
+reached for argument. This was intolerable, and it was obviously
+necessary either to restrict the liberty of appeal; to constitute
+divisions of the court, one to hear appeals of a certain class
+and another those of another class; or to set up an intermediate
+court. The last method was preferred. The practice in the
+Circuit Court of Appeals is governed by rules of its own making,
+but in general conforms to that of the Supreme Court of the
+United States in appealed cases.
+
+The commission appointed some years since to prepare a revision
+of the laws of the United States have reported in favor of
+abolishing all jurisdiction of the Circuit Court over original
+cases and turning it into an appellate court.[Footnote: Senate
+Doc. 68, 57th Congress, 1st Session.] Should this recommendation
+be adopted, the District Court would acquire the jurisdiction now
+vested in the Circuit Court, the District Judges would sit in the
+District Court only, and the Circuit Court Judges in the Circuit
+Court only, while the Circuit Court of Appeals would come to an
+end.
+
+The American Bar Association voted in 1903 that it was desirable
+to establish a new appellate court to sit at Washington and take
+cognizance of patent and copyright cases. Such a measure would
+tend to relieve the Supreme Court of the United States of any
+undue pressure of business, and promote both uniformity and
+promptitude of decision in a class of actions in which
+promptitude and uniformity are of special importance. As things
+stand now, a patent may be pronounced invalid in one circuit and
+upheld in another by courts of equal authority; and while in such
+event the Supreme Court would probably, on a special application,
+call both these judgments up before it for review, this remedy
+cannot be claimed as a matter of absolute right, and is at best a
+slow one.
+
+The Circuit Court of Appeals is held by three judges, two
+constituting a quorum. Those generally sitting are the Circuit
+Judges belonging to the circuit. The Justice of the Supreme
+Court assigned to the circuit may also sit, and any of the
+District Judges in the circuit can be called in.
+
+Except in a very limited class of cases, the decision of this
+court is final, unless the Supreme Court, on special application,
+should think the questions involved to be of sufficient
+importance to require a review, when it can order the record sent
+up to Washington for that purpose. The Circuit Court of Appeals
+can also of its own motion certify up any questions in a cause to
+the Supreme Court for its instructions before making a final
+disposition of it.
+
+The Supreme Court has direct appellate jurisdiction over the
+District and Circuit Courts in cases turning on the limits of
+their jurisdiction, in prize causes, in equity suits by the
+United States under the statutes regulating inter-State commerce,
+and in all cases involving the construction or application of the
+Constitution of the United States, or of a treaty. Appeals also
+lie to it from judgments of conviction in the Circuit Court for
+capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32
+_ib_. 823.]
+
+The consequence of the Circuit Courts, which had been impaired by
+the practical withdrawal of the justices of the Supreme Court,
+was further lessened by the creation of the Circuit Court of
+Appeals. Before that their judgments in most cases were final.
+In criminal causes there was no appeal, and in ordinary civil
+causes none after 1875, unless the matter in controversy exceeded
+$5,000 in value. This left the life, liberty and property of the
+citizen top much in the hands of one man; and the people, led by
+the bar, insisted on stripping him of powers so liable to
+abuse.[Footnote: See an attack on a similar state of things
+existing in Louisiana at one time in the District Court, by
+Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"
+302, 303.] No sovereign can be sued in his own courts without
+his consent. The United States consent to be sued on most claims
+against them of a contractual nature, which they may dispute.
+For this purpose a Court of Claims has been established at
+Washington, consisting of a Chief Justice and four associates.
+Originally it was little more than an administrative bureau; but
+by successive amendments of the law it has come to have fully a
+judicial character,[Footnote: United States _v._ Klein, 13
+Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]
+except in one particular. It is a general principle that a court
+will make no decree that it cannot enforce. The Court of Claims
+cannot issue an execution to enforce its judgments. Money can be
+drawn from the treasury of the United States only to meet
+appropriations made by Congress. An appropriation is made by
+each Congress of a gross sum to satisfy any judgments that have
+been or may be rendered by the Court of Claims; but should this
+provision be omitted in any appropriation bill the judgments of
+the Court of Claims could not be collected.
+
+Concurrent jurisdiction in these respects is given to the
+District Court of claims not exceeding $1,000 in amount, and to
+the Circuit Court of those exceeding $1,000 and not exceeding
+$10,000.
+
+Aliens can sue in the Court of Claims when their own country
+accords a similar privilege in its courts to citizens of the
+United States.[Footnote: U. S. Revised Statutes, Sec. 1068.]
+
+This court has also a peculiar kind of advisory jurisdiction.
+Congress, or any committee of either house, can refer to it any
+questions of fact which may have come before them. The judges
+must then ascertain the facts and report them back. The head of
+any of the great executive departments may, in like manner, in
+dealing with any claim against the government, if the claimant
+consents, refer any uncontroverted questions, either of fact or
+law, to the court, which must then report back to him its
+findings and opinion. This does not take the form of a judgment,
+for there is no case and no parties are before it. It is a mere
+expression of opinion, and stands on much the footing of the
+report of a committee of inquiry to a superior
+authority.[Footnote: 22 U. S. Statutes at Large, 485; 24
+_id._, 507.]
+
+A temporary court is also in existence called the Court of
+Private Land Claims. This is composed of a Chief Justice and
+four associate justices, and has jurisdiction to hear and
+determine claims of title to land as against the United States,
+founded on Spanish or Mexican grants in New Mexico, Arizona,
+Utah, Nevada, Colorado or Wyoming. An appeal from the final
+judgment is given to the Supreme Court of the United
+States.[Footnote: 26 U. S. Statutes at Large, 854.]
+
+The District of Columbia has a special judicial establishment.
+There is a court of general jurisdiction known as the Supreme
+Court of the District of, Columbia, and appeals from its
+judgments lie to the Court of Appeals of the District of
+Columbia. This is composed of a Chief Justice and two associate
+justices, and its judgments are reviewable by the Supreme Court
+of the United States, if $5,000 is involved, or the validity of
+an authority exercised under the United States or a treaty or Act
+of Congress is in question. An appeal also lies to it from
+decisions of the Commissioner of Patents as to claims of a right
+to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]
+
+When new territory comes by conquest or cession permanently under
+the jurisdiction of the United States, it belongs to the
+President, in the exercise of his executive power, to see to its
+proper government until Congress makes other provision. He can
+institute courts there for that purpose, or if he finds courts
+created by the former sovereign in existence, can expressly or
+impliedly permit them to continue in the exercise of judicial
+functions.
+
+Each fully organized Territory has a set of local courts and one
+Supreme Court to which appeals can be taken and the judgments of
+which, in cases of large pecuniary magnitude or great legal
+importance, can be reviewed by the Supreme Court of the United
+States. These territorial courts do not exercise what is known
+in the strict sense and designated in the Constitution as "the
+judicial power of the United States." They are created to meet
+temporary conditions, and with judges whose commissions run only
+for a few years. Such courts are instruments through which
+Congress exercises its power of regulating the territory of the
+United States. They act judicially. They have judicial power.
+But the source of this power is not the clause in the
+Constitution under which the judicial power of the United States
+is defined.[Footnote: American Insurance Co. _v._ Canter, 1
+Peters' Reports, 511.] It is therefore not necessary to confine
+such courts strictly to the consideration of judicial business.
+In the organization of our earliest Territories the judges were
+given legislative functions, and while this was originally due to
+the terms of the Ordinance of 1787, it was confirmed by various
+Acts of Congress after the adoption of the Constitution of the
+United States.
+
+The Philippines are governed under an Act of Congress by a
+commission acting under the supervision of the Secretary of War.
+
+The organization of courts established by Spain has been in
+substance preserved. The Spanish law which was in force there
+was expressed in codes mainly founded on those framed for France
+under Napoleon I. In 1901, the Spanish code of civil procedure
+was supplanted by one prepared by a member of the Philippine
+Commission, and which is now familiarly known by his name as the
+Ide Code. In substance, it establishes the mode of proceeding in
+civil cases which is known in the United States as code pleading.
+Trial by jury has not been introduced into the Philippines either
+in civil or criminal causes, and need not be.[Footnote: Dorr
+_v._ United States, 195 U. S. Reports, 138.]
+
+In criminal causes, the Spanish system was originally retained,
+allowing either party, the United States or the defendant, to
+appeal from the judgment of the court of first instance to the
+Supreme Court of the islands and have there a new hearing both as
+to fact and law. This, however, so far as concerns an appeal by
+the government, was held to be contrary to the Act of Congress
+under which it was constituted.[Footnote: Kepner _v._ United
+States, 195 U. S. Reports, 100.]
+
+The courts of the United States are generally provided with an
+officer styled a marshal. He executes their process, attends
+their sessions, and exercises in general the functions which
+belong to a sheriff as respects State courts.
+
+Each District Court appoints a convenient number of District
+Court Commissioners, who issue warrants of arrest on criminal
+proceedings, take bail, inquire whether there is probable cause
+to hold the accused to answer to the charge in court, and
+discharge in such respects substantially the functions generally
+belonging to justices of the peace in the States.
+
+            *       *       *       *       *
+
+
+
+                      CHAPTER X
+
+
+       RELATIONS OF THE STATE JUDICIARY TO THE UNITED
+          STATES AND OF THE UNITED STATES JUDICIARY
+                    TO THE STATES
+
+
+Every judicial officer of a State is required by the Constitution
+of the United States to bind himself by oath or affirmation to
+support it, and this obligation compels him to respect every Act
+of Congress made in pursuance of the Constitution, and every
+treaty made under the authority of the United States, as, in case
+of conflict, superior to anything in his State Constitution or
+laws.
+
+The courts of the national government are complementary to those
+of the States. Both belong to one judicial system. Rights
+arising under the laws of the United States may be enforced by a
+State court as well as by a federal court, and rights arising
+under a State law by a federal as well as by the State court,
+unless in cases where there is some special restriction upon its
+jurisdiction. Such a restriction may be imposed by either
+government, as respects any right which it creates.
+
+The judicial power of the United States extends only to certain
+classes of cases. As to some of these it is necessarily
+exclusive: as to any of the rest Congress can make it
+such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411,
+429.] On the other hand Congress may assume to invest a State
+court with power to dispose of a certain matter of federal right,
+and the State may decline to permit the exercise of such a power.
+The United States cannot in that manner compel the courts of
+another government to do their bidding. It would tend to throw
+on the States a greater burden than they might deem necessary or
+proper. They provide courts to meet the wants of those looking
+to their own sovereignties for justice. Thus, although nothing
+could seem more anomalous than for one sovereignty to confer
+citizenship in another, the laws of the United States allow
+naturalization to be obtained by proceedings in State courts.
+Most aliens who become citizens of the United States do so in
+that way, because the State courts are more easy of access. But
+a State can at any time restrict or forbid the use of its courts
+for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's
+(Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law
+Reports, 97; 32 Atlantic Reporter, 743.]
+
+The federal courts can lend their aid to carry into effect a
+right arising wholly from the statute of a State, even if it
+affect maritime interests and must be enforced, if at all,
+through an admiralty court. Admiralty suits, it is true, can
+only be brought in the courts of the United States, but that is
+the very reason why, if such a suit gives the only remedy,
+jurisdiction of it should be entertained in the only sovereignty
+competent to give relief.[Footnote: The Lottawanna, 21 Wallace's
+Reports, 558, 580.]
+
+There are many civil cases which can be brought, at the option of
+the plaintiff, either in a court of the United States or in a
+State court. Some of these, if brought in a State court, the
+defendant can, at his option, allow to remain there or remove for
+trial into the Circuit Court of the United States. Criminal
+prosecutions by a State may also be removed, under certain
+conditions, to the Circuit Court of the United States, when the
+defense is one arising under the laws of the United States.
+
+In any cause tried in a State court, if the decision turns on a
+claim of right, set up under the Constitution, laws or treaties
+of the United States, and is against its validity, the losing
+party, if unable to secure its reversal by appeal to a higher
+court of the State, can ask such relief from the Supreme Court of
+the United States.
+
+It will be observed that it is the losing party only who has this
+remedy. If the State court decides, however erroneously, that
+the claim of a federal right is well grounded, this is conclusive
+as respects the controversy in that suit. If all State courts in
+which the validity of an unconstitutional Act of Congress was
+contested should uphold it, the courts of the United States would
+be powerless to right the wrong, unless they were called upon to
+enforce the statute in some suit brought before them for original
+trial.
+
+The obvious object of the limitation is to preserve so far as is
+possible the sovereignty of the States. The courts of the nation
+are to set aside acts or judgments flowing from that only in case
+of necessity and to preserve rights flowing from the sovereignty
+of the nation. For the same reasons, resort can be had to the
+Supreme Court of the United States only after every right of
+review given by the laws of the State has been exhausted.
+Usually this requires one who loses his cause in a trial court to
+take it up to the State court of last resort. Where, however,
+this is not permitted by the State law, he may ask for a writ of
+error from the Supreme Court of the United States to whatever
+court was the highest to which he was able to remove it; and if,
+by the State law, he was unable to appeal at all, then the writ
+will go to the trial court. One of the greatest of Chief Justice
+Marshall's great opinions was rendered on a writ of error to the
+quarterly session court for the borough of Norfolk in Virginia,
+held by the mayor, recorder, and aldermen of the
+borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's
+Reports, 264.]
+
+It was the opinion of Hamilton that an appeal might be given from
+the State courts to the inferior federal courts, in case of a
+decision turning on a right claimed under the Constitution or
+laws of the United States.[Footnote: _Federalist_,
+No. LXXXII.] This is probably true, but Congress has wisely
+forborne to make any such provision. It imposes a strain
+sufficiently great on the sovereignty of a State to subject the
+judgments of its court of last resort to reversal by the Supreme
+Court of the nation.
+
+The power to declare a statute void because inconsistent with
+constitutional provisions belongs to every court in every case in
+which such a statute is relied on either to support the action or
+in defense.[Footnote: See Chap. VII.] It therefore belongs, as
+respects a State statute which may be attacked as inconsistent
+with the Constitution of the United States, to the trial courts
+of the United States as well as to the Supreme Court. This makes
+it possible for a District or Circuit Court of the United States
+to adjudge the statute of a State in which it sits to be
+unconstitutional and void, although it may have been declared
+valid by a judgment of the highest court of the State, from which
+no appeal to the Supreme Court of the United States was ever
+taken.
+
+However derogatory to the sovereignty of the States the
+possession of such authority may seem and be, it is evidently a
+necessary feature of our dual system of government. In some way
+it was indispensable to provide for maintaining the full powers
+of the United States against encroachments by State legislation,
+and also for enforcing all the special limitations on the powers
+of State legislation which the Constitution of the United States
+lays down. This could have been done effectually in but two
+ways: either by giving to Congress or to the President a veto
+upon State laws; or by leaving the right of control to lie
+dormant until a necessity for exercising it should arise, and
+then putting it in the hands of the judiciary. The latter method
+was clearly open to the least objection.[Footnote: See Hamilton's
+discussion on this point in the _Federalist_, No. LXXX.]
+
+Jefferson maintained that there was a third, and one which the
+Constitution expressly provided. This was the calling of a
+convention of all the States for proposing amendments to it. If,
+he said, a State on the one hand by her highest authorities
+asserts a certain line of action to be within her powers, and the
+United States by their highest authorities deny it, "the ultimate
+arbiter is the people of the Union, assembled by their deputies
+in convention, at the call of Congress, or of two-thirds of the
+States. Let them decide to which they mean to give an authority
+claimed by two of their organs."[Footnote: Letter to Mr. Justice
+Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There
+seems a plain fallacy in this proposition. The question to be
+decided, in case of a conflict of judicial authority, is not
+which doctrine ought to be adopted, but which was adopted when
+the Constitution was framed. To amend that instrument and make
+it something else could not justly be allowed to alter the effect
+of acts previously done.
+
+But one serious proposition has ever been made to call a national
+constitutional convention for any such purpose. That was by
+Kentucky in January, 1861, when civil war was threatened; and it
+was not pressed. The very delays which would be inevitable in
+assembling such a body were then a reason for the call, for they
+would give time for the "sober second thought." The plan,
+however, seemed and probably was impracticable. The movement
+toward secession had gone too far.[Footnote: Debates and
+Proceedings of the National Peace Convention, 45, 61, 67.]
+
+There were many, at the time when the Constitution of the United
+States was before the people for ratification, who feared that
+the jurisdiction of their courts would be extended by judicial
+construction beyond the limits of the grant. New York in her
+vote of ratification incorporated a declaration that she
+understood it to be impossible that the jurisdiction of any court
+of the United States could ever be enlarged "by any fiction." In
+the Maryland Convention, this sentiment took shape in a proposed
+amendment to the Constitution adopted by a committee appointed
+for the purpose, but never reported, "that the Federal courts
+shall not be entitled to jurisdiction by fictions or
+collusion."[Footnote: Elliot's Debates, 550; Proceedings
+Massachusetts Historical Society, XVII, 504-7.] Had such an
+amendment been proposed and adopted, it would have cut off a
+large share of the most important cases now brought before the
+Circuit Courts. In 1787, there were only twenty-seven business
+corporations in the United States.[Footnote: Report of the
+American Historical Association for 1902, 267; _American
+Historical Review_, VIII, 449.] It was not long before they
+became countless and the large affairs of the country were in
+their hands. Could they sue and be sued in the courts of the
+United States?  The decision on this point was that, by force of
+a pure legal fiction, invented for the purpose, they might be.
+They were, indeed, not citizens of any State;[Footnote: Paul
+_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
+composed them probably were. Therefore, it must be assumed that
+they certainly were, and also that they were all citizens of the
+same State and that the State from which incorporation was
+obtained.[Footnote: Louisville, Cincinnati and Charleston
+R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
+and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,
+286.]
+
+Sir Henry Maine maintained that legal fictions were the rude
+device of early stages in government, and to add to them
+disturbed the symmetry of a legal system and was unworthy the
+approval of modern courts.[Footnote: Ancient Law, 26.] But while
+they are among the things that it is hard to justify on
+principle, it is harder to dispense with them in actual practice,
+as the instance given conspicuously illustrates.
+
+Although the United States are the only depositary of the power
+of ordering foreign relations, foreign governments are often
+aggrieved by acts of the courts of a State which the United
+States have but imperfect means of preventing or rectifying.
+
+In 1841, we were brought to the verge of war with Great Britain
+by an incident of this nature.
+
+An insurrection broke out in Canada in 1837, and a New York
+steamboat was chartered to bring supplies across the Niagara
+River to those engaged in it. One night when she was moored on
+the New York side of the river a party of loyal Canadians seized
+and burned her. During the accompanying affray an American was
+killed. A Canadian named McLeod, who was charged with having
+fired the fatal shot, was afterwards arrested in New York and
+indicted for murder. The British government then informed ours
+that it had ordered the burning of the steamer, and thereupon
+demanded McLeod's release. Our Secretary of State replied that
+the prosecution was in the hands of the State of New York, and
+the United States had no control over it. Lord Palmerston made
+the affair the subject of a dispatch, in which he stated that
+McLeod's execution would produce "a war of retaliation and
+vengeance." The President at once requested the Governor of New
+York to order a discontinuance of the prosecution. This was
+declined, but with a promise to grant a pardon in case of
+conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]
+The State courts refused to discharge the prisoner. He was tried
+on the original charge, but acquitted.
+
+Congress in 1842 did what it could to prevent the recurrence of
+such a conflict of authority by passing an Act giving the Circuit
+and District Courts of the United States jurisdiction on
+_habeas corpus_ proceedings in favor of foreigners held by
+State authority, who might claim a right of release under the
+principles of international law.[Footnote: U. S. Revised
+Statutes, Sec. 762.]
+
+The Circuit Court has since 1875 been given power to entertain
+original jurisdiction of any causes arising under the
+Constitution, laws or treaties of the United States, regardless
+of the citizenship of the parties, if a value of $2,000 is
+involved. In all cases, also, of imprisonment by State
+authority, whether under arrest before trial or after a sentence
+of conviction, in violation of rights claimed under the
+Constitution, laws or treaties of the United States, the prisoner
+may now be summarily discharged on a writ of _habeas corpus_
+by a court or judge of the United States. Ordinarily, however,
+as a matter of comity, he will be left to seek his remedy in the
+State courts, and if without success there, on a writ of error
+from the Supreme Court of the United States.[Footnote: _In
+re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117
+U. S. Reports, 241.]
+
+The State courts have no power to release on _habeas corpus_
+one who is held under the authority of the United States. If
+that authority has been illegally exerted, his remedy is in the
+federal courts alone.[Footnote: Ableman _v._ Booth, 21
+Howard's Reports, 506.]
+
+The cases in which a State can be sued in an original suit in the
+Supreme Court of the United States are defined in the
+Constitution and, as limited by the eleventh amendment to it, are
+quite few.
+
+Several such actions have been brought. In the earlier ones, the
+State declined to recognize the jurisdiction of the court and did
+not enter an appearance. The court thereupon decided to proceed
+_ex parte_ on hearing the plaintiff;[Footnote: See New
+Jersey _v._ New York, 5 Peters' Reports, 283;
+U. B. Phillips, "Georgia and State Rights;" Report of American
+Historical Association for 1901, II, 83.] and in the later cases
+the States have appeared and made defense.
+
+The court, in one of these suits, was asked to issue an
+injunction in favor of the Cherokee Indians against the State of
+Georgia to prevent her and her Governor, judges and other
+officers whatsoever from enforcing certain of her statutes which
+were alleged to be unconstitutional. The case went off on
+another point, but the majority of the court intimated it to be
+their opinion that no such injunction could properly issue
+against a sovereign State. Marshall thought it savored "too much
+of the exercise of political power to be within the proper
+province of the judicial department." Mr. Justice Johnson said
+that it was an attempt to compel the President of the United
+States, and by indirection, to do what he had declined to do on
+the plaintiff's application to him; namely, "to declare war
+against a State or to use the public force to repel the force and
+resist the laws of a State."[Footnote: Cherokee Nation _v._
+Georgia, 5 Peters' Reports, 1, 19, 29.]
+
+It would be no easy thing to enforce a judgment against a State
+should it resist. Hence the Supreme Court has been justly
+reluctant ever to make any order which would take money out of a
+State treasury, unless in cases where the Treasurer was
+individually sued, and the money in dispute was not mingled with
+other public funds. In 1794, four years before the adoption of
+the eleventh amendment, a judgment against the State of Georgia,
+authorizing an assessment of general money damages against her,
+had been entered in the Supreme Court in favor of one Chisholm,
+to whom she owed a debt. Georgia had refused to enter an
+appearance in the suit, and in anticipation of this result her
+House of Representatives had resolved, in 1793, that if any
+Federal marshal should attempt to levy an execution on such a
+judgment against the State, it should be a felony, and on
+conviction he should be hanged. The Senate had not concurred in
+this measure, but it reflected pretty closely the general state
+of public feeling in a State largely indebted for what her people
+thought it belonged to the United States to pay. The eleventh
+amendment was proposed by Congress during the term of court at
+which judgment was entered, but not adopted until 1798.
+Meanwhile, the court had thought best to defer further
+proceedings, and none were ever taken afterwards. The plaintiff
+therefore won a barren victory.[Footnote: U. B. Phillips,
+"Georgia and State Rights," Report of American Historical
+Association for 1901, II, 25.]
+
+The appellate jurisdiction of the Supreme Court of the United
+States over States is large, for the State is the party in whose
+name all criminal prosecutions in its courts are brought, and in
+many of these the defendant sets up some claim under the laws of
+the United States which is overruled.
+
+Here again, in case of resistance, it would be difficult to
+enforce a judgment of reversal.
+
+Shortly before the action of the Cherokee Nation for an
+injunction, the Georgia courts had sentenced Corn Tassel, one of
+the tribe, to death for murdering another of them. Tassel had
+claimed that by the laws of the United States and their treaty
+with his nation he could only be prosecuted before one of his
+tribal courts. He obtained a writ of error from the Supreme
+Court to review his case on this ground. It was served, but
+before it could be heard the day set for his execution had
+arrived. By the laws of the United States the allowance of the
+writ of error superseded the sentence until the appeal should be
+decided. The Governor laid the matter before the legislature,
+saying that he did not propose to regard any orders from the
+Supreme Court interfering with those of Georgia courts, and
+should resist any attempt to enforce them with all the forces at
+his command. The legislature approved his position,[Footnote:
+U. B. Phillips, "Georgia and State Rights," Report of American
+Historical Association for 1901, II, 77.] and Tassel was hanged
+on the day originally set.[Footnote: "Memoirs of William Wirt,"
+II, 291.] There had been no time to resort again to the Supreme
+Court for relief, and as soon as he was dead his writ of error
+fell with him, for such a proceeding is legally terminated if the
+plaintiff in error dies.
+
+Two years later, Rev. Mr. Worcester, a missionary who had gone to
+teach the Christian religion to the Cherokees, was convicted in
+the Superior Court of Gwinnet County on an indictment for
+residing among them without a license from the State, and sent to
+the State prison. He appealed to the Supreme Court of the United
+States, which decided that Georgia had no jurisdiction over the
+Cherokee reservation, and could not require such licenses. The
+judgment against him was therefore reversed, and an order made
+"that all proceedings on the said indictment do forever surcease;
+and that the said Samuel A. Worcester be and hereby is henceforth
+dismissed therefrom, and that he go thereof quit without day, and
+that a special mandate do go from this court to the said Superior
+Court to carry the judgment into execution."[Footnote: Worcester
+_v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior
+Court of Gwinnet County paid no respect to this mandate; the
+Governor of Georgia characterized it as an attempt at usurpation
+which he should meet in a spirit of determined resistance; and
+Worcester remained in prison until, on expressing his willingness
+to abandon any further efforts for his discharge by authority of
+the judgment on his writ of error, the Governor gave him a pardon
+on condition of his leaving the State.
+
+A year later, James Grady, who lay under a sentence of death
+under proceedings similar to those in Tassel's case, like him
+obtained a writ of error from the Supreme Court of the United
+States and had it served on the Georgia court, only to find it
+disregarded. His execution, in spite of the _"supersedeas"_
+which goes by law with every such suit, was the last of this
+series of judicial outrages.[Footnote: "Georgia and State
+Rights," 83.]
+
+It was unfortunate for the sufferers in these proceedings that
+they took place at a time when the cry of "State Rights" was
+particularly loud and general in the South. South Carolina had
+been quieted with difficulty by Jackson's action in regard to her
+nullification ordinance, and he did not wish to go farther than
+he thought it necessary in insisting on the supremacy of the
+United States.
+
+Since the Civil War, such defiance by a State of the authority of
+the Supreme Court of the United States has been unknown and would
+be almost inconceivable. The absolute right of the Supreme Court
+of the United States to pronounce finally, so far as the States
+are concerned, upon every question brought before it as to the
+meaning and effect of the national Constitution, has come to be
+universally acknowledged.
+
+The courts of a State have the same right, except that it is not
+final. This the original Judiciary Act of 1789 (Sec. 25) fully
+recognized. Something like it may belong to a Convention of the
+whole people of a State, called to act upon its fundamental
+concerns; for that would represent the sovereignty of the State
+as a whole in the fullest manner. It was from such a convention
+that the nullifying ordinance of 1832 proceeded, but the vice of
+its action was, not so much that it pronounced the protective
+tariff Acts unconstitutional and void, but that it assumed to
+deny any right of appeal in litigation growing out of these Acts
+and the Ordinance of Nullification, from the courts of South
+Carolina to the courts of the United States. This liberty of
+appeal in the regular course of judicial procedure is the one
+thing which keeps the United States in existence.
+
+The law governing the ordinary transactions of life is that of
+the State where they may have their seat. This was affirmed in
+the original Judiciary Act,[Footnote: U. S. Revised Statutes, Sec.
+721. As "equity follows the law," State legislation creating new
+equitable rights or varying those formerly established also
+affects causes in equity in the Federal courts. Brine _v._
+Insurance Co., 96 U. S. Reports, 627; but see James _v._
+Gray, 131 Federal Reporter, 401.] as a general rule for the
+courts of the United States in trials at common law. By another
+Act of Congress,[Footnote: _Ibid_., Sec. 914.] the practice,
+pleadings, and form and mode of proceeding in civil causes, other
+than those of equity and admiralty jurisdiction, in the Circuit
+and District Courts are to conform as nearly as may be to that
+followed in the State within which these courts may be held.
+
+The State laws which are thus made a rule for the United States
+courts are the law of the State as it is understood and applied
+in its own courts. Hence the construction of a State statute, or
+the doctrines of the common law in a particular State, if
+definitely settled by the courts of that State, must be followed
+in subsequent litigation in the federal courts. Where, however,
+a State court has taken a certain position as to what the law is,
+and afterwards changes its position, the federal courts are not
+compelled to change with it, if this would do injustice to one
+who has meanwhile acted on the faith of the original
+ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports,
+20, and see argument of Daniel Webster in Groves _v._
+Slaughter, 15 Peters' Reports, 449, 489.]
+
+Nor are the federal courts, in large questions of a commercial
+nature, bound always to accept the opinion of a State court as to
+what the common law of the State may be. The manner in which
+this doctrine has been evolved is an interesting example of the
+manner in which law develops by litigation, and new points are
+struck out in a single case as the joint product of lawyer and
+judge.[Footnote: See Chaps, XVII, XVIII.]
+
+A bill of exchange drawn in Maine on one Tyson, a merchant in New
+York, and bearing his acceptance, was indorsed over to one Swift,
+who took it in good faith before it fell due, in payment of a
+pre-existing debt. He sued Tyson upon it in the Circuit Court of
+the United States in Maine. If his rights were as good as if he
+had paid value for it at the time he received it, he was entitled
+to recover. If not, his action failed; for the acceptance had
+been obtained by fraud. It was made in New York. The judicial
+decisions of that State, contrary to the prevailing opinion as to
+what was the general common law rule, seemed to favor the view
+that a pre-existing debt did not stand on as good a footing as a
+present payment, in support of a claim upon negotiable paper.
+Samuel Fessenden of Portland, a lawyer of great ability, was his
+counsel. The cause was submitted on briefs, without oral
+argument. Mr. Fessenden, admitting that the law of the place
+where acceptance was made must govern the obligations of Tyson,
+insisted that the New York decisions were wrong in principle and
+ought not to be regarded.
+
+  "If," said his brief, "there is any question of law, not local,
+  but widely general in its nature and effects, it is the present
+  question. It is one in which foreigners, the citizens of
+  different States in their contests with each other, nay, every
+  nation of the civilized commercial world, are deeply
+  interested. By all without the United States this Court is
+  looked to as the judiciary of the whole nation, known as the
+  United States, whose commerce and transactions are as widely
+  diffused as is the use of bills of exchange.... How can this
+  Court preserve its control over the reason and affections of
+  the people of the United States; that control in which its
+  usefulness consists, and which its own untrammeled learning and
+  judgment would enable it naturally to maintain; if its records
+  show that it has decided-as it may be compelled to decide if
+  the construction referred to, advocated on the part of the
+  defendant, is established-the same identical question, arising
+  on a bill of exchange, first one way, and then the other, with
+  vacillating inconsistency?"
+
+Mr. Dana, for Tyson, maintained the opposite view with equal
+ability. "In coming together," he said, "from the respective
+States, the framers of the Constitution, and our representatives
+in Congress after them, must be regarded as having had in view
+the language, laws, and institutions of the States which they
+represented."
+
+Mr. Justice Story gave the opinion of the court. Referring to
+the provision in the Judiciary Act (now U. S. Revised Statutes,
+Sec. 721) above mentioned, on the construction of which the case
+must turn, "It never," he remarked, "has been supposed by us that
+the section did apply, or was designed to apply, to questions of
+a more general nature, not at all dependent upon local statutes
+or local usages of a fixed and permanent operation, as, for
+example, to the construction of ordinary contracts or other
+written instruments, and especially to questions of general
+commercial law, where the State tribunals are called upon to
+perform the like functions as ourselves, that is, to ascertain
+upon general reasoning and legal analogies, what is the true
+exposition of the contract or instrument, or what is the just
+rule furnished by the principles of commercial law to govern the
+case.... The law respecting negotiable instruments may be truly
+declared in the language of Cicero, adopted by Lord Mansfield in
+Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great
+measure, not the law of a single country only, but of the
+commercial world. _Non erit alia lex Romae, alia Athenis, alia
+nunc, alia posthac, sed et apud omnes gentes, et omni tempore,
+una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson,
+16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.]
+
+This opinion had been submitted to the court for the first time
+during the evening before it was delivered.[Footnote:
+_Ibid_., 23.] It could not have received any very close
+scrutiny. It relied on no authority except that of Cicero, for
+Lord Mansfield, in the case of Luke _v._ Lyde, was speaking
+of the law of the sea, which in the nature of things no one
+nation can prescribe or change. It was not easy to reconcile it
+with precedents cited by Mr. Dana, in one of which Mr. Justice
+Chase of the same court had held on the circuit as early as 1798
+that the United States had no common law of their own, and that
+the "common law, therefore, of one State is not the common law of
+another; but the common law of England is the law of each State,
+so far as each State has adopted it; and it results from that
+position, connected with the judicial act, that the common law
+will always apply to suits between citizen and citizen, whether
+they are instituted in a Federal, or State, Court."[Footnote:
+United States _v._ Worrall, 2 Dallas' Reports, 384, 394.]
+So the Supreme Court itself had said, in 1834, in a famous
+judgment, concurred in by Mr. Justice Story himself, that "it is
+clear, there can be no common law of the United States. The
+federal government is composed of twenty-four sovereign and
+independent States; each of which may have its local usages,
+customs and common law. There is no principle which pervades the
+union and has the authority of law that is not embodied in the
+constitution or laws of the union. The common law could be made
+a part of our federal system only by legislative adoption. When,
+therefore, a common law right is asserted, we must look to the
+State in which the controversy originated."[Footnote: Wheaton
+_v._ Peters, 8 Peters' Reports, 658.]
+
+The State courts have looked upon the doctrine announced in Swift
+_v._ Tyson with an unfriendly eye. In some, its authority
+is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna
+and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18
+Atlantic Reporter, 503.] In none will it affect the disposition
+of a cause turning upon its own law, and not pending in the
+federal courts. It has, however, been repeatedly reaffirmed by
+the Supreme Court of the United States, though the later
+decisions appear to limit its effect to questions growing out of
+commercial transactions not wholly confined to a single
+State.[Footnote: Western Union Telegraph Co. _v._ Call
+Publishing Co., 181 United States Reports, 92. See Article on
+the Common Law of the Federal Courts, by Edward C. Eliot,
+_American Law Review_, XXXVI, 498.]
+
+The right of recovery on a cause of action of a commercial nature
+will therefore often depend on the court which the plaintiff
+selects. If he sues in a State court, the common law of the
+State, as the judicial authorities of that State declare it to
+be, will be applied; if he sues in a court of the United States,
+the common law of the State as the judicial authorities of the
+United States declare it to be. Each tribunal will profess to
+decide by the same rule--the law of the State; but the federal
+court will really apply the common law of England, as it is
+generally understood to be, instead of the common law of that
+State as it is locally understood to be.
+
+The relations between the federal and State courts which have
+been described obviously present many occasions for conflicts of
+authority. That such conflicts are so infrequent is mainly due
+to a spirit of comity, which the judges of each sovereignty
+should and generally do show to those of the other. The federal
+courts are also prohibited by Act of Congress from issuing any
+injunction to stay proceedings in a State court, except in
+certain cases arising under the bankruptcy laws. Independent of
+any statute, however, the general principles of jurisprudence
+forbid any direct attempt either by a court of the State to
+control the action of a court of the United States or by a court
+of the United States to control the action of a State court,
+except to the limited extent for which provision is made in the
+national Constitution.[Footnote: Diggs _v._ Wolcott, 4
+Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's
+Reports, 279.] Each court, this exception aside, exercises
+powers belonging to an independent sovereign, and therefore
+subject to control by that sovereign only.
+
+The equitable jurisdiction of the courts of the United States
+enables them to interfere in disputes arising out of State
+elections in certain cases in which the claim is set up that
+rights held under the Constitution or laws of the United States
+have been violated. Actions for such relief are rare, and
+instances have occurred in which the remedy has been abused for
+political purposes.[Footnote: See the proceedings in the case of
+Kellogg _v._ Warmoth in the United States Circuit Court in
+Louisiana in 1872. McPherson's "History of Reconstruction,"
+100-108.]
+
+The centralizing and nationalizing tendencies which set in early
+in the nineteenth century and were so greatly strengthened by the
+course of events during and following soon after the Civil War
+have greatly weakened the position and influence of the State
+courts. They have thus rendered the State bench less attractive.
+In 1791, John Rutledge, an associate justice of the Supreme Court
+of the United States, resigned that office for the Chief
+Justiceship of South Carolina. During the last half century,
+several Chief Justices of States have resigned to become
+Associate Justices of the Supreme Court of the United States.
+Associate Justices of Supreme Courts in the smaller States have
+also frequently resigned to accept the position of District
+Judge, attracted by the life tenure, larger salary, and retiring
+pension.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XI
+
+
+      RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES
+
+
+Every State has all the rights of an independent sovereign,
+except so far as its sovereignty is limited by the Constitution
+of the United States. As respects each other the States are for
+most purposes in the position of foreign governments. The courts
+of one are regarded by those of any other as foreign courts,
+except so far as the Constitution may have prescribed a different
+rule.
+
+No legal process from a court can have any inherent force outside
+of the territorial boundaries of the government in which it is
+issued. The law of that government may attach certain
+consequences to the fact of its service in a foreign country, but
+it can do so only with reference to the effect of the proceeding
+on persons or property subject to its own jurisdiction. Courts,
+as a general rule, can act only when they have jurisdiction over
+the person, the subject-matter, and the cause.
+
+In rare cases, jurisdiction over the subject-matter may be
+regarded as giving jurisdiction over the person, so far as may be
+necessary to uphold a judgment settling the possession or title
+to property. Such a proceeding is, either in form or substance,
+one not _in personam_ but _in rem_. The commonest
+instance is a suit in admiralty to enforce a maritime lien, such
+as that given by the universal law of the sea for seamen's wages.
+Wherever the vessel is found, this lien is recognized and will be
+enforced by seizing and selling her, but only after some kind of
+public notice has been given to all who have any pecuniary
+interest in her to appear and be heard. In such a suit, personal
+notice to her owners, served within the jurisdiction of the
+government to the courts of which the seamen may resort, is not
+indispensable. The presence of the ship within the power of the
+court is enough.
+
+While State courts have no admiralty jurisdiction, they can
+adjudicate upon a claim of title or right of possession to fixed
+property within the territorial limits of their State, although
+the parties adversely interested are not and have not been
+personally served with process there or anywhere. Here again
+their power over the property necessarily implies such power of
+control over those who might lay claim to it as will suffice to
+settle any dispute over its ownership or possession. But in all
+ordinary cases they are not only powerless to subject any one to
+obedience to their judgments who is not personally within the
+State in which they exist, but powerless so to subject one who is
+personally within it, but who did not belong there and was not
+there served with process in the original proceeding leading up
+to the judgment, unless he voluntarily took part in the
+proceeding.
+
+In most civilized nations there is a recognized form of
+proceeding by which a judgment of a foreign court, fairly
+rendered after giving a proper opportunity to the defendant for a
+hearing, can be enforced by process from a domestic tribunal.
+This is styled making the foreign judgment executory. The
+English common law did not recognize such a right, and gave no
+remedy to one desiring to enforce a foreign judgment, except that
+of bringing a fresh suit. In like manner, whoever has recovered
+a judgment against an inhabitant of any State, in a court held
+outside of that State, can enforce it against him in his own
+State only by bringing a new action. This either is, or is in
+the nature of, the common law action of "debt on judgment"; and
+only two defenses are available. These are, first, that no such
+judgment exists or is in force; and, second, that if it exists,
+it was rendered by a court having no jurisdiction over the
+subject-matter or the defendant.[Footnote: Pennoyer _v._
+Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine
+Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was
+jurisdiction, it is of no consequence that it was erroneously or
+unfairly exercised. The remedy for that must be sought in the
+State where the judgment was pronounced. Even fraud on the part
+of the plaintiff in procuring it, though a defense against a
+judgment of a foreign country is not one against a judgment of
+another State.[Footnote: Christmas _v._ Russell, 5 Wallace's
+Reports, 290.] These rules are established by Art. IV, Sec. I of
+the Constitution of the United States and by Acts of Congress
+passed to enforce it.[Footnote: U. S. Revised Statutes,
+Sec. 905.]
+
+Commercial intercourse between the different States is so great
+and so constant that questions in the courts of one often arise
+which turn on the law of another. Those who do any act do it
+with implied reference to the law of the place where it is done,
+so far as respects its legal consequences. If it is a wrongful
+act there, it will in most instances be deemed a wrongful act
+everywhere. If it leads to a certain result as regards property
+rights there, it will ordinarily give a right of action anywhere,
+to secure the benefit of that result.
+
+The law of each State is largely an unwritten common law. Even
+in those where they have full codes defining civil rights, these
+codes are expressed in terms for the definitions of many of which
+the common law gives the rule. But this common law is not
+precisely the same in any two States. In minor points certainly,
+and perhaps in capital ones, there will be a divergence. In
+England there is one uniform common law. Here, divided as we are
+for most business purposes into forty-five different
+sovereignties, it is multiform.
+
+If, then, the court of one State in determining the legal effect
+of a transaction having its seat in another must be governed by
+the common law of that State, where is it to be found?  If there
+have been decisions of its highest courts in regard to what it is
+with reference to the point in question, they will ordinarily be
+accepted as conclusive.
+
+This is not by virtue of the provision in the Constitution of the
+United States that full faith and credit is to be given in each
+State to the public records and proceedings of the others. That
+refers to the effect of public records and proceedings upon the
+rights of those who are or claim under parties to them. Such
+decisions as those which have been described are accepted as
+conclusive as to the rights of those who were not parties to
+them, and simply because they are considered the best evidence
+attainable of a rule of unwritten law of general application.
+But they are not universally so considered. The rule that
+transactions are governed by the law of the place where they have
+their seat is one founded on the presumed intent of the parties
+to them. But in fact the parties to a business transaction act
+on their general notions of what the law is or must be, rather
+than on any particular knowledge of what courts have declared
+that it is. The rule that one country will accept the opinion of
+the judicial authorities of another as to what its law is, is one
+not to be pressed so far as to sacrifice essential justice. In
+this point of view, some courts hold that it is permissible to
+disregard decisions of other States which are based on a
+departure from what is generally considered a settled doctrine of
+the common law as to a commercial question. This is
+substantially the same position taken by the Supreme Court of the
+United States, and elsewhere described,[Footnote: See Chap. X.]
+concerning the right of a federal court to refuse to be bound by
+State decisions as to the unwritten law affecting foreign trade
+or trade between the States.[Footnote: Faulkner _v._ Hart,
+82 N. Y. Reports, 413, 423.]
+
+Another rule of practice of great importance is that in the
+absence of proof to the contrary the courts will presume, in a
+State basing its jurisprudence on the English common law, that
+the unwritten law of any other American State is the same as its
+own. As the reason of this rule fails in the case of Louisiana,
+Florida and Texas, which were subject to organized governments
+not derived from Great Britain at the time when they were
+incorporated into the United States, it is not applied to
+them.[Footnote: Norris _v._ Harris, 15 California Reports,
+253.]
+
+Decisions of a court constitute a precedent of binding obligation
+only within the particular territorial jurisdiction which is
+subject to its process. In the tribunals of one State decisions
+rendered in another on legal points are, so far as respects
+transactions not governed by its local law, without any
+authoritative force. They may be read, just as the opinions of
+an author expressed in a legal treatise, or as the decisions of
+an English or German court might be, for what they appear to be
+worth. No formal proof that they were really the deliverances of
+the court from which they purport to emanate is necessary to
+support their use for this purpose.
+
+The reported decisions of courts of other States, whether
+published officially or unofficially, may be cited in argument in
+any cause, to fortify the claims of counsel as to the proper
+rules to be followed in reaching a decision. For this use they
+are introduced simply for the intrinsic value of the reasoning
+and conclusions.
+
+If it is claimed that they prove the law of the State from which
+they come to be of a certain nature (and that is a material point
+in the case), they should be made the subject of proof before
+argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports,
+1.] In many States this is dispensed with by statutes allowing
+courts to take judicial notice of all reported decisions in other
+States; that is, in effect, to take any means which they think
+proper to learn what they are. It is also the general practice
+of the bar where no such statutes exist to allow the reports of
+other States to be read for any purpose without objection.
+
+Most States have statutes to facilitate the proof in court of the
+statute laws of other States. The mode prescribed by Act of
+Congress (Revised Statutes, Sec. 905) under the constitutional
+provision, to which reference has been made, involves
+considerable expense for the proper certification of copies.
+Common provisions of State legislation are that all courts may
+take judicial notice of the laws of other States (that is, take
+them into account without any formal proof at all), or that a
+copy of the official publications containing them shall be
+competent evidence of what they are.
+
+There is a certain spirit of comity to which courts often give
+expression in rendering assistance to courts of other countries.
+This judicial comity has been defined as "the deference commonly
+paid by the courts of one jurisdiction to the laws or proceedings
+of another, in causes affecting rights claimed under such laws or
+proceedings."[Footnote: "Dict. of Philosophy and Psychology,"
+_Comity_.] As between courts of the different States in the
+United States this sentiment naturally is particularly strong.
+In pursuance of it, it is usual, if there has been a judicial
+appointment in one State of a representative of the law to
+administer an estate of any kind, part of which is in another
+State, for the courts of the latter to give him such further
+powers or appointment as may be necessary to put in his
+possession or control whatever is within their jurisdiction. An
+administrator of the estate of a deceased person would thus be
+appointed, almost as a matter of course, administrator of such
+estate in whatever State property or rights of action belonging
+to it might be found. A receiver appointed by a court of equity
+to take possession of property would ordinarily, in like manner,
+be appointed to the same office wherever any part of such
+property might be situated; and in some States such an officer
+has been permitted to sue for it under his original appointment.
+The general doctrine, however, is that a receiver in chancery
+(that is, a receiver appointed by a court of equity) is simply an
+arm of the court which appoints him, and has no authority to act
+outside of the territorial jurisdiction of that court.[Footnote:
+Hale _v._ Allinson, 188 U. S. Reports, 56.]
+
+A receiver of an insolvent corporation often finds that it has
+shareholders living in several different States, who have not
+fully paid in their subscriptions to its capital stock. In such
+case, if the statute of the State under the laws of which it was
+incorporated provided for the appointment of a receiver for
+insolvent corporations of that character, he may be regarded in
+other States as one to whom each shareholder, in legal effect,
+promised to pay such part of his subscription as had not been
+previously paid to the corporation itself. On this theory of
+liability, a foreign receiver has a right of action by virtue of
+his official position, indeed, but not because of authority from
+a foreign court to use that position for such a purpose. He sues
+as one to whom the shareholder promised to make a payment, and on
+a direct contract between the two, which is implied by
+law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47
+Atlantic Reporter, 711; 84 American State Reports, 161.]
+
+The sentiment or rule (for from being a sentiment it has risen to
+be a rule) of comity between States both aids in the enforcement
+in one of rights acquired under the other,[Footnote: Finney
+_v._ Guy, 189 U. S. Reports, 335, 346.] and in the
+prevention by one of acts which would infringe on prohibitions
+created by the other. Thus, if a corporation of one State has
+been organized to do business in another, it may be enjoined in
+its home State from amalgamating with a corporation of the other,
+contrary to the public policy of the other as declared by its
+courts.[Footnote: Coler _v._ Tacoma Railway and Power Co.,
+70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]
+
+As no legal process can be effective outside the limits of the
+sovereignty by authority of which it is issued, no court of a
+State can summon before it witnesses not found within its
+jurisdiction, who live in another State. This, in view of the
+free intercourse and trade between all parts of the United
+States, would work intolerable hardship had not statutes been
+passed by every State permitting testimony to be taken outside of
+its limits by written deposition for use in civil cases.
+
+So far as criminal causes are concerned, this mode of relief
+generally cannot be pursued, owing to the common provision in our
+State Constitutions that the accused must be confronted by the
+witnesses against him. Most of the Northeastern States, to meet
+this difficulty, have passed statutes requiring their citizens
+when summoned by a local magistrate at the request of a court of
+another State to appear and testify before it in such a
+prosecution, to do so upon receiving payment for their time and
+expenses, on pain of a considerable pecuniary
+forfeiture.[Footnote: New Hampshire inaugurated this legislation
+more than sixty years ago. Public Stat., ed. 1842, 382. Most of
+the statutes apply only to adjoining or neighboring States, and
+some require reciprocity on their part.]
+
+            *       *       *       *       *
+
+Lawyers of one State have no right to practice in any other. By
+courtesy and on motion of a member of the bar, it is customary
+for the courts of other States to allow them to participate in
+the conduct of any particular cause. In some States, lawyers who
+have removed their residence into them from another may in the
+same manner be admitted to their bar; in most there is a standing
+rule on the subject which requires proof of their having
+practiced in the courts of their original State for a certain
+number of years, and otherwise provides for an examination into
+their legal attainments.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XII
+
+
+                    TRIAL BY JURY
+
+
+To have a trial by jury is, as a general rule, the right of every
+man who sues or is sued in court on a cause of action not of a
+kind to be disposed of in a court of equity or admiralty. The
+American colonies did not all adopt this mode of procedure at
+first, and few of them ever practiced it precisely on the English
+plan. In the colony of New Haven there were no juries. In all
+the New England colonies, later, there were juries, but verdicts
+in civil causes had not the conclusive force given them by the
+common law. The defeated party had what was styled the privilege
+of a review. This was a new trial before another jury, either in
+the same court or a higher one. If he lost his case again, it
+was the end of the litigation. If he gained it on the second
+trial, the other party could demand a third, and the event of
+that decided the cause forever.[Footnote: Bissell _v._
+Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]
+In criminal prosecutions a similar right was sometimes conceded
+to the defendant in case of conviction.[Footnote: Statutes of
+Connecticut, ed. 1715, p. 131.] South of New England there was
+no such radical departure from the common law, but there were
+before the Revolution variations of considerable
+importance.[Footnote: The _Federalist_, No. LXXXIII.]
+
+Instead of sending a case before an ordinary jury, the court has
+power, at the request of the parties, to direct a special jury to
+be summoned to hear it. This is seldom asked or granted unless
+the matter in controversy is of peculiar importance and
+difficulty. Such a jury is more carefully selected, with the
+assistance of the parties, so as to make it sure that it will be
+composed of men exceptionally competent to decide a cause and
+such a cause. They are generally paid a larger compensation than
+ordinary jurors receive, the parties furnishing the additional
+sum required. Prepayment of these sums may be and often is made
+a condition of granting a trial before such a jury.[Footnote:
+Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports,
+621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports
+Annotated, 911.]
+
+The requirement of unanimity on the part of the jury in civil
+causes, which we have inherited from England, is indefensible in
+principle. In practice, it has saved the institution from
+destruction. No one would feel himself safe if a majority of
+twelve men, of no special training in the study of legal rights,
+could strip him of his property. But among that number of
+persons there can hardly fail to be one or two of superior
+character and intelligence. These, with the aid of the judge, if
+he be one who fulfills properly his part of the proceeding, can
+generally lead the rest to a just conclusion. If the verdict is
+for the plaintiff, they may have to yield to some compromise as
+to the amount of damages. Not infrequently this has been arrived
+at by calling for the separate estimates of each juror, adding
+them together and dividing them by twelve. It is a rough way,
+and not the fairest, but the wiser heads may consent to it to
+secure the concurrence of the weaker.
+
+In criminal cases, the importance of a verdict to the defendant
+is so great that unanimity may well be required. While there is
+a legal presumption that he is innocent until found guilty, this
+in practice is of little avail to him with the jury. They know
+from their every-day observation of affairs that there are few
+prosecutions which reach the final stage of a trial on the
+merits, under which there ought not to be a conviction.
+
+In several States verdicts in civil causes by a three-fourths
+vote are permitted. This radical change is not likely to become
+general.
+
+Its best defense is that temptations to corruption are thus
+removed. So long as one juror, by refusing to concur with the
+rest, whether with or without reason, can prevent a verdict,
+there will be defendants seeking to prevent the recovery of what
+they know to be a just demand, who will be ready to buy a vote.
+In 1899, seven of the bailiffs in attendance on the Chicago
+courts were accused of lending themselves to such negotiations,
+and twenty men who had been jurors confessed that they had either
+taken or been offered bribes.[Footnote: Report of the New York
+State Bar Association for 1904, 51.]
+
+The Anglo-American jury is unique because it is nothing unless
+unanimous, and because it may render a general verdict, stating
+no reasons for the decision, on which a general judgment, save in
+exceptional cases, is entered as of course.
+
+In the early judicial history of the American colonies juries
+were less under the control of the judge than they are
+now.[Footnote: See Chap. XIV.] In some colonies they received no
+instructions as to the law, the chance of an unjust decision
+being guarded against in civil cases, as previously stated, by an
+absolute right in the losing party to claim a new trial before
+another jury.
+
+The general tendency of judicial practice in later years has been
+to emphasize the influence of the judge upon verdicts. This
+often extends to directing a verdict, peremptorily, for one party
+or the other, when the law is clear upon the facts claimed or
+admitted. Still more often it takes the shape of a caution as to
+the weight that can properly be given to certain testimony, or an
+opinion as to what really are the controlling sources of
+evidence. Without the guidance of an intelligent judge, a jury
+would frequently come to unfortunate and even unjust conclusions.
+That there should be such guidance is an essential part of the
+jury system, and it is generally given most effectually where the
+judges are the ablest and the most independent.
+
+The judge has at common law and by practice in most American
+States a right in his charge to comment on the evidence and
+intimate his opinion as to the weight which should or should not
+be given to any particular testimony. It is a right to be
+cautiously exercised, for juries are greatly influenced in their
+conclusions by remarks of that character. They feel that he is
+the head of the court, and there is a certain sentiment of
+loyalty to him as well as of respect for any one occupying the
+position in which they find him placed by the authority of the
+State. Sometimes this power is abused. The judge desires to
+indicate a decided opinion. He fears that if he put it in plain
+words it might seem so strong as to indicate partiality, and
+furnish ground of appeal. He therefore uses language, perhaps in
+reference to the credibility of a witness, which looks fair and
+even colorless on paper, but by the tone or emphasis in which
+some vital word is uttered, or with the aid of a shrug or glance,
+carries to those whom he is addressing an unmistakable conviction
+that he means it to be taken in a certain sense. Any such
+judicial action, however, is rare, and would be looked upon with
+disapprobation by the bar.[Footnote: See Metropolitan Life
+Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68
+Northeastern Reporter, 4.]
+
+If the case is one which has been pressed by counsel especially
+upon the sympathies of the jury, such as a suit arising out of a
+labor strike, or by a widow to recover for an injury resulting in
+her husband's death, it is customary for the court to caution
+them in their charge that justice and not sympathy is their rule
+of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation
+Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter,
+765.]
+
+The American colonies were settled at a time when the English
+criminal code was extremely harsh, and the English judges were
+disposed to administer it in such a way as to favor the crown.
+If the government promoted a prosecution, there was little hope
+for the defendant, except from the jury. The courts held that on
+criminal proceedings for publishing a libel it was for them to
+say whether the paper was libellous, and for the jury to decide
+only as to its publication by the accused. This was the occasion
+of the Charles James Fox Libel Act of 1792, and of many
+constitutional provisions to the same effect in this country,
+under which juries, even in libel cases, can render a general
+verdict of Not Guilty.
+
+It was under the influence of these ideas, and in view of the
+fact that the colonial judge often knew no more law than the
+jury, that it became common in this country either to give a jury
+in a criminal cause no instruction as to the law at all or to
+charge them that they were judges both of the law and
+fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
+258, 401.] In some of the States, a charge to the effect last
+stated is now sometimes required by statute.
+
+A jury trial is a poor mode of doing justice, if there is a rule
+of law which, as applied to certain facts, should control the
+verdict, unless that rule of law be both stated by the judge, and
+so stated as to impress upon the jury that it is their sworn duty
+to apply it, if the facts which they may find to exist are such
+as to come under its operation. That they should be so
+instructed, even if declared by express statute to be the judges
+both of the law and the facts, is the prevailing opinion of
+American courts and jurists.[Footnote: Commonwealth _v._
+Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
+U. S. Reports, 51, 71.]
+
+It is of especial importance that the duty of juries to take the
+law from the court should be clearly stated to them in a country
+of written Constitutions. Most crimes are defined by statute.
+It is easy for the defendant's counsel to claim that the statute
+on which the prosecution is based is unconstitutional. If it be,
+the accused is entitled to an acquittal; but if the jury acquit
+him on that ground, and the ground is false, injustice is done.
+Any such claim must be disposed of by the court, in order to give
+the Constitution its due supremacy.[Footnote: State _v._
+Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
+American State Reports, 30.]
+
+Mr. Justice Baldwin of the Supreme Court of the United States
+came to the bench, in 1829, strongly inclined to minimize the
+power of the federal judiciary. In one of his first cases on the
+circuit, he charged the jury in a capital case that they were
+judges of both law and fact, and if they were prepared to say
+that the law was different from what he had stated it to be, were
+not bound by the opinion of the court.[Footnote: United States
+_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
+before he found himself compelled to retreat from his position.
+A man was being tried before him for forging notes of the United
+States Bank, and his counsel claimed an acquittal because the law
+incorporating the bank was unconstitutional, reading to prove it
+the veto message of President Jackson, with the accompanying
+documents. To the Jackson Democrats on the panel this was quite
+an imposing argument, and Mr. Justice Baldwin was obliged in his
+charge to sound the warning that for a jury to exercise the power
+of treating an Act of Congress as invalid was virtually to give
+us a country without a Constitution and without laws.[Footnote:
+United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
+Pennsylvania Law Journal for November, 1846, p. 9.]
+
+In one of the Southern States where it is a statutory right to
+demand instructions that the jury are the judges of the law, it
+was the custom of a certain trial judge of commanding presence,
+when called upon to give them, to say to the jury after he had
+done so, rising to his full height, "But, gentlemen, you must
+recollect that I have told you what the law that governs this
+case is, and to this I am the only witness who has appeared or
+could appear."
+
+It was one of the acute observations of Alexander Hamilton that
+under our American Constitutions judges are less to be relied on
+by one who is attacked by the government, because those who
+direct the government are the choice of the people, and whatever
+they do is presumably popular. The judiciary, he said, was less
+independent here than in England, and therefore we had the more
+reason to cling to the trial by Jury and their power to render
+general verdicts as our greatest safety.[Footnote: People
+_v._ Croswell, 3 Johnson's Cases, 337, 353.]
+
+The States which guard these most closely are those in which
+there is the most jealousy of anything like a standing order, and
+the widest scope of popular election. Georgia was the State,
+among the old thirteen, in which these characteristics were most
+marked. Her first Constitution of 1777 expressly threw the power
+of determining the law into the hands of the jury in every case,
+though they were allowed to ask the judges holding the court for
+their opinion, in which case each judge gave his in rotation.
+The party who lost his case could demand a new trial before a
+special jury. The ordinary jury were to be sworn to bring in a
+verdict according to law and the evidence, provided it be not
+repugnant to the Constitution. The special jury were to be sworn
+to bring one in according to law and the evidence, "provided it
+be not repugnant to justice, equity, and conscience, and the
+rules and regulations contained in this Constitution, of which
+they shall judge." Apparently the meaning of this was that while
+the decision of the first jury as to the law could be revised by
+a second, that of the second, however contrary to the highest
+law, could not be.
+
+            *       *       *       *       *
+
+Resort is occasionally had to the assistance of a jury by a court
+of chancery for the better disposition of some disputed question
+of fact on which the equities of the parties depend. This cannot
+(except by force of some express statute) be claimed as a matter
+of right. The judge sends the issue to a jury for trial only if
+he thinks it would be helpful to him, but their verdict has no
+conclusive effect. He can adopt it or ignore it, at his
+pleasure.
+
+            *       *       *       *       *
+
+The selection of jurors is a long process. The general plan is
+to commit to some local authorities in each city, town, or county
+the choice of a considerable number out of the inhabitants whom
+they may think suitable to serve in that capacity; then to have
+that list revised by some higher officials or persons specially
+appointed by the courts for the purpose, who must strike out a
+large part of the names; and finally to have those who are to be
+summoned to attend any particular term of court for jury duty
+chosen by drawing from the remaining names by lot. In many
+States special qualifications as to age, education, and
+intelligence are required. Out of the jurors thus summoned to
+attend the court, there is a further choice by lot of those to
+try each particular case, subject to objections made by either
+party to any thus drawn, for proper cause.
+
+The statutes of the United States provide that jurors in the
+Circuit and District Courts shall be selected in each State from
+those qualified to serve in its highest trial courts, and in
+substantially the same manner.
+
+            *       *       *       *       *
+
+The right to a jury trial is in civil actions often waived by
+both parties, in which case the facts as well as the law are
+determined by the judge. If not expressly claimed, it is by the
+rules of practice in some States treated as waived. The number
+of civil causes tried to the jury, taking the country as a whole,
+is declining. The decline is generally found to be quite
+accurately proportioned to the confidence felt by the bar in the
+ability and independence of the judge,[Footnote: See Paper by
+Justice Henry B. Brown, in the American Bar Association Report
+for 1889, p. 265, on "Judicial Independence."] or perhaps to that
+confidence in the case of a former generation. Tradition and
+custom have a large influence on whatever pertains to the
+practice of law. In several of the States a majority of the
+civil causes which might be tried to the jury are not: in
+Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
+in England is also toward dispensing with the jury in ordinary
+civil trials. Over a million cases are brought every year in the
+English county courts, and in not one in a thousand of them is
+there a jury trial, although if the matter in demand is over L5
+in value either party may claim it.[Footnote: Maitland, "Justice
+and Police," 28, 29, 54. For small cases the jury is one of
+five, but their verdict must be unanimous.]
+
+Criminal trials, except in case of trivial offenses, it is
+generally necessary to hold before a jury, by express provisions
+of the Constitution.[Footnote: See Cooley, "Constitutional
+Limitations," 389.] During the colonial era the defendant was
+allowed in Massachusetts to waive a jury, even in capital
+cases.[Footnote: Proceedings of the Colonial Society of
+Massachusetts, VI, 95.] Statutory permission to the same effect
+has since been given in some States where there is no
+constitutional provision to the contrary.[Footnote: State
+_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
+the right to demand a jury in petty cases has been restricted in
+a number of States.[Footnote: In New Hampshire, for instance, a
+constitutional amendment was passed in 1877 denying it in cases
+involving less than $100, unless title to land is involved.]
+
+At common law the judges were accustomed and allowed to put great
+pressure upon juries, if necessary, to force them to unite in
+rendering a verdict. They could be kept together without food or
+beds all night, and even carted about from one court town to
+another until they were ready to report an agreement. Very
+little of this practice remains in the United States. In some
+States they are allowed to separate and go to their homes at
+night during the trial even of a capital case, and while
+deliberating over their verdict they are generally supplied with
+food and other comforts.
+
+The right of trial by jury was limited at common law to trials of
+what are called "issues of fact;" that is, of the truth of a
+statement of material facts made by one party and denied by the
+other. If, therefore, in a civil cause a judgment has been
+ordered for the plaintiff without a verdict, as where the
+defendant has failed to appear and answer, it is for the court to
+say for the recovery of what amount of damages the judgment shall
+be rendered. It may inquire into this by the aid of a jury, but
+such a jury need not consist of twelve. The inquiry may also be
+conducted by the judge alone.[Footnote: Dyson _v._ Rhode
+Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,
+771.]
+
+In most of our States this common law practice has been
+abandoned, and damages, in cases of the kind above described,
+would be assessed by a jury of twelve. This is because otherwise
+a defendant who did not dispute his liability for the act
+complained of and only wished to reduce the amount of damages
+claimed in the writ might, after declining to appear and plead,
+come forward with a motion to be heard by the court on the
+question of damages. A motion of that kind would naturally be
+granted, and the effect would be to transfer the decision of the
+only actual controversy between the parties from a jury to a
+judge. In Connecticut the old practice was maintained until
+1907, and the courts held that on the hearing as to the damages,
+in actions where there had been no contract between the parties
+to fix the rule of assessment, the defendant might show, if he
+could, that only nominal damages should be given, because really
+the plaintiff had no cause of action at all.[Footnote: Lennon
+_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
+334.] The result was that many suits arising out of railway
+accidents in that State were brought against the company in fault
+in other States in which process could be served to compel its
+appearance, and where a full jury trial could be secured. The
+legislature finally interposed and gave the plaintiff a right to
+claim a trial by jury, notwithstanding a default.[Footnote:
+Public Acts of 1907, 665.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XIII
+
+
+            FORMALITIES IN JUDICIAL PROCEDURE
+
+
+The sessions of a court of record of general jurisdiction are
+daily opened by a formal proclamation made, at the command of the
+judge, by the crier or sheriff's officer in attendance. In many
+States the ancient English style of expression has been
+preserved, which dates back to the Norman conquest, and begins
+with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
+often closed with such words as (for instance) "God save the
+Commonwealth of Rhode Island and Providence Plantations." The
+adjournment from day to day is announced in a similar but less
+elaborate manner.
+
+Many courts hold a certain number of stated "terms" annually, the
+first day of which is fixed by statute, and each of which is
+adjourned whenever the business that may come before it is
+finished, lasting sometimes but a few days and sometimes months.
+In a number of States such terms are opened by prayer offered by
+a minister of religion, invited in for the purpose by the sheriff
+or court attendant. No regular chaplain is employed, and one
+term may be opened by a Presbyterian minister and the next by a
+Roman Catholic priest.
+
+In some of the smaller counties in Massachusetts the sheriff or
+his deputy daily escorts the judge to and from the court house,
+in accordance with what has been the usage from colonial times.
+
+Formerly it was the practice in New England to ring the bell of
+the principal church in the town daily at the hour when court
+opened.[Footnote: This was continued in Connecticut until the
+last quarter of the nineteenth century.]
+
+In many courts it is the custom for all present to rise on a
+signal from the sheriff or marshal when the judge enters the
+court room to take his seat on the bench. This is the general
+usage in the federal courts and in the appellate courts of
+States. In the latter a formal proclamation is often made by the
+sheriff to announce the coming of the judicial procession,
+concluding with a "God save the Commonwealth." In some States
+formal bows are interchanged between bench and bar as the judges
+take their places, after which the court is opened by the
+customary proclamation and the bar then requested by the judges
+to resume their seats.
+
+The rules of official precedence are strictly observed in
+appellate courts. In entering the court room the chief justice
+advances first, and his associates follow in the order of the
+dates of their commissions, the senior associate justice taking
+his seat on his right, the second in seniority on his left, the
+third in seniority on the right of the senior associate justice,
+and so on; the junior in commission occupying the end seat on the
+left of the bench.
+
+The members of the Supreme Court and of the Circuit Court of
+Appeals of the United States have always worn black silk gowns.
+The members of the Supreme Court of South Carolina have worn them
+from a time antedating the Revolution. The New York Court of
+Appeals in 1877, at the request of the bar, preferred through
+David Dudley Field, adopted the practice,[Footnote: In 1903 it
+was extended to _nisi prius_ courts held by justices of the
+Supreme Court.] and the same thing has since been done by
+appellate courts in several other States. In one of these,
+Massachusetts, they had been worn in the colonial era. About
+1760, Chief Justice Hutchinson introduced gowns and cassocks
+there on the Supreme bench, and also gowns, bands, and tie-wigs
+for lawyers who were admitted as barristers of the Superior
+Court.[Footnote: "Life and Works of John Adams," II, 133, note,
+197.] The latter soon abandoned these, but gowns were retained
+by the judges until 1793.[Footnote: Publications of the Colonial
+Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
+I, 261, note.] In North Carolina gowns and bands were worn by
+the members of the Supreme Court in 1767.[Footnote: Proceedings
+of the Colonial Society of Massachusetts, VI, 389.] In New
+Jersey, the bar were at one time required to assume them by a
+rule of the Supreme Court, but the rule was vacated in 1791.
+
+At the first opening of the Supreme Court of the United States,
+in 1790, Chief Justice Jay wore a gown with salmon-colored
+facings on the front and sleeves, of the style then used by
+Doctors of Laws created by the University of Dublin, from which
+he had received that degree.[Footnote: 134 U. S. Reports,
+Appendix.] It has not since, in that or any other American
+court, been the practice for judges to wear academic hoods or
+other decorations on the bench.
+
+            *       *       *       *       *
+
+Counsel, in addressing the court, rise and begin with "May it
+please the Court," "May it please your honor," or, before a court
+in bane, "May it please your honors." The term "you" would never
+be used to a judge on the bench; but that of "your Honor" would
+be employed.
+
+Great pains is taken by the officers in attendance to prevent
+anything on the part of the audience that could in any way
+disturb the proceedings, such as loud conversation or unnecessary
+moving from place to place.
+
+There is a good deal of antique form in the manner in which,
+under the direction of the clerk, prisoners are arraigned and
+juries are made up or "impanelled" for the trial of a cause.
+
+In charging a jury, the judge commonly rises and the jury do the
+same.
+
+When sentence is pronounced on a conviction for crime the
+prisoner is required to rise. In cases of capital offenses, he
+is asked by the judge if he has anything to say why judgment of
+death should not be pronounced against him. It is highly
+improbable at that stage of the cause that he should have
+anything to urge which has not been already considered, but the
+ancient English practice in this respect is still followed, for
+it is not absolutely impossible that something may have occurred
+since the verdict that would affect the judgment.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XIV
+
+
+              TRIAL COURTS FOR CIVIL CAUSES
+
+
+The great bulk of litigation is confined to the civil trial
+courts, that is, to courts for the trial of ordinary causes
+between man and man. It also has its seat in the trial courts of
+the States, for not only is the judicial power of the United
+States confined by the Constitution within narrow limits, but
+these have been made still narrower by the action of Congress
+from time to time.
+
+Most lawsuits never get to trial. The defendant generally has no
+defense, and is well aware of it. The suit is brought to obtain
+security or force a settlement. He employs no lawyer and lets
+things take their course. The result is a judgment against him
+for default of appearance; for if one who has been duly summoned
+to court to answer to a demand fails to attend and answer, the
+court assumes that there is no answer that he could make, and
+disposes of the cause on such evidence as the plaintiff may
+produce. On the other hand, the plaintiff often does not care
+for a judgment. He has become satisfied that, if he got one, he
+could not collect it, or he has availed himself of the suit to
+secure a compromise of the matter in demand on satisfactory
+terms. In such case, or if, after bringing an action, he becomes
+convinced that he cannot maintain it, he withdraws it, or if the
+defendant insists, suffers a judgment to go against him, called a
+nonsuit.
+
+In some States the writ or process by which the action is begun
+must be accompanied by a full statement of the particular nature
+of the plaintiff's claim. In others this is not required, and
+such a statement is only furnished when specially ordered by the
+court. If the case goes to trial on the merits, it will be on
+such a statement furnished by the plaintiff, and on some paper
+filed by the defendant by way of answer. Occasionally these
+pleadings, as they are called, are such as to call out further
+statements or claims by way of reply and rejoinder. Their form
+is now generally regulated by statutes, and is much the same in
+most of the States, being based upon a system known as "Code
+Pleading," which originated in New York about the middle of the
+nineteenth century. It is simpler and less technical than the
+system under the common law which it replaced.
+
+If the defendant has any objections to the maintenance of the
+suit, on such a ground as that it is brought in a wrong court, or
+a wrong way, these are first disposed of. Then, if he asserts
+that the plaintiff on his own showing has no case, or if the
+plaintiff asserts that the defense set up is insufficient on its
+face, this being a question of law, the judge decides it without
+the aid of a jury. When, however, the facts are in dispute, a
+jury must be called in, if either party claims it, in an action
+not of an equitable nature, when the matter in controversy is one
+of any considerable amount.
+
+In this country we adhere to the old common law mode of taking
+exceptions to the legal sufficiency of written pleadings. This
+was by filing a paper called a "demurrer," in which the
+particular objections were set out, unless, as was frequently the
+case, they were so fundamental as to be apparent at the first
+glance. In many States, however, the objections must always be
+particularized. In England demurrers are no longer used. Her
+Judicature Act of 1873 put an end to the common law system of
+pleading, reconstituted her whole method of judicial procedure,
+and authorized the judges to make rules and orders from time to
+time to adopt the new scheme to convenience in practice. One of
+their orders, passed in 1883, abolished demurrers. In place of
+them, the party desiring to have the benefit of points of law
+arising on the face of the pleadings may state his point to the
+court and ask to have it set down for separate argument before
+proceeding to a trial of the cause on the facts. American
+lawyers are not satisfied with the reasons which led to this
+change. They were that the old practice made it a matter of
+right to claim a special hearing on a law point, while the new
+order would leave it to the discretion of the judge. The English
+judges are few and able. Such a plan may work satisfactorily
+under their administration, but it might often lead to useless
+delays and expense if introduced in a country where judges are so
+numerous and of such different qualifications as is the case in
+the United States.
+
+Our trial courts are now generally held by a single judge. Until
+the latter half of the nineteenth century it was not uncommon to
+have three judges sit together in county or city courts. One of
+them would be a lawyer and the others not.[See Chap. VIII.] In
+cities the two side judges were generally aldermen. A tribunal
+thus constituted is better adapted in some respects to trying
+questions of fact than a single judge. It is a jury of three
+acting by a majority. But for the conduct of a jury trial it is
+unwieldy, slow-moving and uncertain. In most cases any question
+of law or legal practice will be virtually decided by the
+presiding judge, but he will usually pause to go through the form
+of consulting his associates. Occasionally they will overrule
+him, and in such case it will be apt to be by a misunderstanding
+or misapplication of law. The expense of three judges, however
+moderate the compensation, has also weighed in favor of an
+abandonment of the system. It naturally results in paying too
+little to the chief judge, and too much to the others; and always
+costs more than it would to pay one man a sufficient salary.
+
+We have not the need of several judges to hold a trial court,
+which is felt in many countries. They use them for a purpose
+which our juries supply. For similar reasons Americans have not
+seen any occasion for organizing special courts, such as are the
+German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
+try special classes of causes. A jury of twelve will be apt to
+contain some men who will adequately represent those interested
+in any ordinary industrial or commercial controversy.
+
+Petty suits not of an equitable nature must generally be brought
+before a justice of the peace, who disposes of them himself, both
+as to matters of evidence and fact, but subject to an appeal to a
+higher court in which a jury trial can be had. In some States he
+can summon in a jury of six and leave the facts to their
+determination. The pleadings before him are usually in the same
+form as in the higher courts.
+
+In jury trials of civil causes the judicial function is, so far
+as possible, divided into two distinct parts. All questions of
+pure law are decided by the judge alone. All questions of pure
+fact are decided by the jury alone. All questions turning on the
+application of the law to the facts are decided by the jury under
+instructions from the judge as to what applications of the law it
+would be competent for them to make under the particular
+circumstances which they may find to have existed. The judge
+also has a large discretionary power in minor matters arising in
+the course of the suit. It is for him to say when it shall be
+tried; whether the written pleadings are in proper shape, and if
+not whether they may be amended; and in what order and within
+what limits the evidence may be introduced.
+
+No countries in the world have so artificial a set of rules of
+evidence as England and the United States. This is because in no
+other country is the right to a jury trial so extensive. Many of
+these rules date back to the early history of the English common
+law. It was a time of general illiteracy. The ordinary juror
+could not read or write. His powers of reasoning and
+discrimination had had little or no cultivation. It was thought
+dangerous to allow him to listen to any evidence that was not of
+the clearest and best kind. It was thought necessary to bring
+all witnesses in person before him and let him hear their voice
+and look into their faces in order to give him the fullest
+possible opportunity to determine whether their testimony was
+worthy of credit. But while our rules of evidence were devised
+for jury trials, they are applied with equal rigidity in all
+trials. A jury may be waived; a single judge may hear the cause;
+and yet he must rule out of consideration whatever would have
+been inadmissible if it had been made the subject of a jury
+trial.
+
+Much that in other countries is helpful in reaching a just
+conclusion is in this manner shut out in American courts. A man
+of the highest character, for instance, may say before twenty
+listeners that he saw a certain person shoot and kill another,
+and state how the whole thing happened. The person thus accused
+is sued for damages under a statute permitting such a remedy by
+the representatives of the man shot. Before the trial the
+witness of the act dies. He was the sole witness. There is no
+other testimony to be had. Under our system of practice, those
+to whom the statement was made cannot be allowed to testify to
+it. Such testimony would be "hearsay." It would put before the
+jury two questions, first whether such a statement was really
+made, and then whether, if made, it was true. The law of
+evidence says that they ought not to be perplexed by questions
+upon questions.
+
+The tendency of American legislation of late years has been
+strongly toward removing some of these artificial bars to getting
+at the truth. The common law thought it dangerous to allow a
+jury to hear any witness not under oath, nor under such an oath
+as implied his belief in the existence of a God, or any witness
+having a pecuniary interest, in the event of the cause. An
+atheist or an agnostic could not testify. The plaintiff and the
+defendant could not. These restrictions have been almost
+everywhere repealed.
+
+The trial judge has also, and necessarily, a large discretionary
+power in excluding testimony which has only a remote bearing on
+the case, and in limiting or extending the examination of a
+witness so as on the one hand to prevent needless repetition, and
+on the other to get out the truth and nothing but the truth. He
+has similar authority to restrain the arguments of counsel within
+reasonable limits.
+
+A trial judge suddenly called upon to make a ruling on some point
+of law in the progress of a trial may make a wrong one. If so,
+he may have an opportunity to correct it at a later stage of the
+proceeding. He has admitted evidence which should have been
+excluded. In his charge to the jury he may instruct them to
+disregard it, and his error will thus be cured. He has excluded
+evidence which should have been admitted. Before the case is
+closed he can change his ruling and allow it to come in. But so
+long as any ruling stands unchanged, whether it is in accordance
+with law or not, it is the law of the case for the purposes of
+the trial. Counsel may endeavor to procure a reconsideration of
+the question, but they cannot ask the jury to adopt a different
+view from that taken by the judge. Their only remedy is by a
+motion for a new trial, after the verdict, or proceedings in
+error before a higher court.
+
+            *       *       *       *       *
+
+Trial courts generally sit during a greater number of hours in
+the day than appellate courts. This is particularly true when
+they are held for short terms in a country shire town. In the
+larger cities where they sit during a large part of the year they
+generally have established hours from which they rarely depart,
+such as from ten in the morning to five in the afternoon, with a
+recess of an hour for lunch or dinner. Formerly nine o'clock was
+a more common hour for opening court. In New York in 1829 the
+sittings were from eight to three, when there was a recess of two
+hours for dinner, and then from five till some time in the
+evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs
+of William Wirt," II, 231.]
+
+The modern tendency everywhere is toward a shortening of the
+hours of daily session, especially when an official stenographer
+is employed.
+
+The clerk keeps a docket-book in which each case returned to
+court is entered and numbered. The entry reads thus:
+
+  John Doe
+      Smith
+
+    vs.
+
+  Richard Roe
+      Jones.
+
+Doe is here the plaintiff and Smith is the attorney who brought
+the suit for him. Roe is the defendant and Jones is the attorney
+who appears in his behalf. If there be more than one party on
+either side the words _et al._ will be added, signifying as
+the case may be, _et alius, et alii_ or et alium,_ or
+should there be three or more defendants, _et als_,
+signifying _et alios_.[Footnote: Another book is kept for
+criminal cases, which are docketed as "The State _v._ John
+Doe," in others as "The People _v._ John Doe," and in the
+federal courts as "The United States _v._ John Doe."] From
+this docket trial lists are made up for each term or session of
+court. Assignments for trial are sometimes made by the court and
+sometimes arranged by the bar subject to the approval of the
+court. Several cases are commonly set down for each day, so that
+if one falls out another may be ready, and in every case so
+assigned the parties must be prepared at their peril to appear
+and proceed at any minute when called upon.
+
+In courts having a large docket of cases it is customary to set
+apart one day in the week for the disposition of incidental
+motions and for arguments on points of law.
+
+When a case is called for trial the plaintiff's counsel opens by
+stating its nature and the main facts as set out in the
+declaration or complaint which he expects to prove. Sometimes
+the pleadings on both sides are read at length. The plaintiff's
+witnesses are then examined orally, after the examination of each
+an opportunity being given for his cross-examination by the other
+party. The testimony of witnesses whose attendance cannot be
+had, which may include any living out of the State (or, in the
+federal courts, over one hundred miles from the place of trial),
+or who are infirm or sick, may be secured by previously taking it
+down out of court in the form of a written deposition, under
+oath, before a magistrate. In such case the adverse party must
+have such notice as to enable him to be present and cross-examine
+the deponent, or to file written cross-interrogatories.
+Depositions are received in the same manner and subject to the
+same objections as oral testimony. In cases in equity a
+considerable part of the testimony is generally presented in
+written form, either by depositions of the kind described or
+certified by a special officer appointed by the court for the
+purpose, who may be called an "examiner."
+
+When the plaintiff's case has been thus presented, his attorney
+announces that he "rests." The defendant's attorney then states
+what he proposes to prove, and produces his evidence, at the
+close of which the plaintiff has the opportunity to meet any
+testimony so produced as to points not covered by the plaintiff's
+case as presented "in chief," by rebutting testimony. Should
+there be any new point brought out in the latter which the
+defendant had not anticipated in presenting his case (which
+rarely happens), he may now be allowed to introduce further
+testimony as to that.
+
+At the close of the evidence the plaintiff's counsel argues for
+his client; the defendant's counsel replies; and the plaintiff's
+counsel is then heard in answer to anything which has been said
+in behalf of the other side.
+
+If the trial has been had before a judge without a jury he then
+commonly takes the written pleadings and makes up his decision at
+his leisure; but if the case is plain may give final judgment on
+the spot.
+
+If the trial has been before a jury the parties argue as to facts
+in dispute to them, but as to the law upon these facts to the
+court.[Footnote: See Chap. XII.]
+
+In some States the arguments on the latter question are made
+before those on the former, and written requests or "prayers" for
+instructions to the jury as to the law are submitted to the
+court, upon which it passes before the jury are addressed. In
+most States there is no such division of argument; judge and jury
+are addressed in turn during the same speech, and counsel first
+know what view of the law is taken by the court when the judge
+gives his final charge.
+
+In every jury trial, after all the evidence is in and the
+arguments concluded, it is the duty of the court to instruct the
+jury as to what the precise controversy is and what disposition
+of the cause it would be permissible for them to make. If in
+view of facts which are undisputed by either party there can be
+in law but one conclusion, the judge should direct them to render
+a verdict accordingly. But if the facts might fairly be found as
+they are claimed to be by either party, he instructs them as to
+the law applicable to the facts so claimed by each. He can, at
+common law and by the practice in most States, give his own
+opinion as to the weight of evidence on any point in controversy.
+
+The common law requires unanimity on the part of the jury before
+they can return a verdict. If it cannot be had they report a
+disagreement, and the case stands over for another trial.
+
+If they agree upon a verdict, it must, to be effective, be
+accepted by the court. This acceptance is ordinarily a matter of
+course, but if the verdict is plainly contrary to the evidence or
+to the law as laid down in the charge, it may be set aside and a
+new trial ordered. If it gives damages which are plainly
+excessive, the judge may set it aside, unless the prevailing
+party enters a _remittitur_ of a certain amount, that is,
+formally stipulates on the record that the verdict shall stand
+only for such sum as the judge may have thus indicated to be what
+seems to him to be the utmost limit that ought to be allowed. In
+some States, if the verdict is unsatisfactory to the judge,
+though not so manifestly against the evidence that he would be
+justified in setting it aside, he may return the jury to a second
+consideration of the cause.
+
+When a verdict is accepted judgment is rendered in accordance
+with it. To this rule there are, however, certain exceptions.
+It sometimes happens that a verdict is returned for a plaintiff
+whose case as stated in his pleadings is one which in law is no
+case; the defendant having failed to take this objection and made
+his contest only on the facts. He then can ask the court not to
+render any judgment upon it. This is technically called a motion
+in arrest of judgment. Again, the verdict may be rendered, by
+reason of the state of the written pleadings, on some immaterial
+point, in favor of one party, when there are other points of
+controlling importance in favor of the other, on which it has
+been admitted that he is in the right. In such case the party
+against whom the verdict is rendered may ask for judgment in his
+own favor notwithstanding the verdict.
+
+Verdicts are ordinarily given directly for the plaintiff or the
+defendant. Printed blanks for such verdicts, one headed
+"plaintiff's verdict," and the other "defendant's verdict," are
+often handed to the jury when they retire, to choose from
+according as they may find the facts. Such a verdict is called a
+general verdict. Occasionally one of a different form is
+returned at the request of counsel and by the permission of the
+court. This is termed a "special verdict," and sets forth the
+particular facts as found by the jury in detail, without finding
+the ultimate issue for either party. This is only proper when
+such a finding would have been simply a legal conclusion from
+these facts. A special verdict leaves it to the court to apply
+the law and render judgment as that requires.
+
+In many causes the testimony is all taken out of court, before
+some officer or arm of the court, who only reports his
+conclusions from it as to the matters in controversy. This is a
+common practice in equity, the case being sent to a "master in
+chancery" for this purpose. In cases of a common law nature the
+consent of both parties is generally required; but with that any
+cause may be disposed of before an arm of the court commonly
+termed an "auditor," "referee" or "committee."
+
+The report of such a hearing sometimes is confined to the facts
+which are found to have been established. In other cases it may
+extend to a provisional decision of questions of law arising on
+those facts. The ultimate decision of any question of law is
+always for the court, and if it accepts the report it is its duty
+to draw the proper legal conclusions from the facts established.
+As to whether the report shall be accepted, and as to the legal
+questions arising upon it, the parties have a right to be heard
+in court. Improper or irregular conduct on the part of the
+officer making the report may be shown as a cause for rejecting
+it. If it is accepted the facts found generally stand as
+conclusively established.
+
+Equity causes are generally tried before a single judge, who
+decides all questions both of fact and law, proceeding in the
+same manner as in a common law cause in which a jury has been
+waived.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XV
+
+
+                   PROBATE COURTS
+
+
+The English common law regarded wills of lands as in the nature
+of conveyances, the due execution of which, if ever called in
+question in a lawsuit, was to be established then and there; but
+if never so called in question, need never be established at all
+by any judicial proceeding. Wills of personal property, on the
+other hand, were to be proved as soon as might be before an
+ecclesiastical court, and unless so established were ineffectual.
+
+This difference in the treatment of the two kinds of wills was
+due to the legal principle that so far as personal rights and
+obligations were concerned the personality of the dead was, after
+a certain fashion, continued in existence by attributing
+personality to their estates. These were to be administered by
+some one as the "personal representative" of the former owner.
+This personal representative discharged his personal obligations
+so, far as there might be personal estate or rights of property
+sufficient for the purpose. He was styled an executor if
+designated by will; an administrator if there were no
+testamentary appointment. A man's lands, however, went upon his
+death straight to his heirs unless he had by will conveyed them
+to some one else. That when he died they were part of his estate
+did not charge them with the fulfillment of his personal
+obligations. For the discharge of these the creditor must resort
+to his personal representative. His heirs occupied no such
+position.
+
+The administrator was always appointed by an ecclesiastical court
+and rendered his accounts to it. Long use and the existence of a
+State church with a regular judicial establishment, made such a
+system tolerable to the English people; but the new conditions
+under which those of them came who planted the American colonies
+made it both intolerable and impossible here.
+
+While most of the colonies had an established church, none had
+bishops or bishops' courts. The bishop of London claimed a
+certain jurisdiction over all, but in none was it recognized as
+extending over the estates of the dead. In the Crown colonies
+the instructions to the Governors generally referred to it as
+sanctioned by the government but not as extending to the probate
+of wills. Some of the Governors were given _ex-officio_
+full probate powers.[Footnote: "The American Jurisdiction of the
+Bishop of London," Transactions of the American Antiquarian
+Society, Vol. XIII, 188, 194, 197.]
+
+The same considerations which early led to the general adoption
+of a recording system for deeds of land in all the colonies
+extended to wills, since they also might convey it. Such
+records, to attain their purpose, had to be public in the fullest
+sense. Nothing was allowed to go upon them which had not some
+kind of authoritative sanction proceeding from the State. Deeds
+were first to be acknowledged before a magistrate. As to wills,
+the practice finally came to be to require them to be established
+once for all as the act of the testator by a court invested with
+special jurisdiction for that purpose, and also over all estates
+of those who die leaving no will. This, if organized for that
+special function particularly, is ordinarily styled a Court of
+Probate, occasionally a Surrogate's Court or Orphans' Court. It
+is sometimes given, and sometimes not given, a certain authority
+over the real property within the State while the estate is in
+settlement.
+
+All real estate left by a decedent is ordinarily made, by
+statute, liable for his debts in case of a deficiency of personal
+property, except so far as it may be charged with a right of
+dower. Even if it has gone into the possession of an heir or
+devisee, the proper Probate Court can order its sale for this
+purpose, if it should appear on the allowance of the
+administration account to be necessary.
+
+The formal establishment or "probate" of a will does not affirm
+the validity of its provisions. It simply adjudges the
+instrument to be a will legally executed by one competent to make
+it and who had a home or property within the territorial
+jurisdiction of the court. Commonly, if not universally, an
+opportunity is given, either in the first instance or by appeal
+to a higher court, to have these questions tried before a jury.
+
+The succession of particular persons to the property of the dead
+is not a matter of natural right. It rests upon positive law and
+is regulated by the authority of the government at its
+pleasure.[Footnote: United States _v._ Perkins, 163
+U. S. Reports, 625.] Probate procedure is therefore wholly
+determined by local legislation and practice.
+
+In many States, probate jurisdiction belongs to the county
+courts. In others it is invested in local courts for lesser
+subdivisions of territory with the purpose of cheapening the
+settlement of estates. In a few these local courts are very
+numerous, all the towns of the State being distributed into small
+groups and each furnished with its Probate Court, the judge of
+which, in many instances, has had no legal training, and receives
+no compensation except stated fees for such business as may
+actually come before him. An appeal is given from his orders to
+a higher court of general jurisdiction. In practice such a
+system works fairly well. If there are suitable lawyers in the
+group of towns forming a probate district, one of them who
+belongs to the prevailing party is generally made the judge if he
+will accept the office, and if he fills it well is apt to be
+re-elected, whichever party may then be uppermost. If a lawyer
+is not appointed and a case of any difficulty presents itself,
+the judge will probably consult some counsel in whom he feels
+confidence, and who will be sufficiently flattered by the request
+to advise him without making any charge for it.
+
+The proper seat of administration is in the State and the local
+subdivision of the State where the dead man belonged.
+Proceedings there affect all his personal property wherever it
+may be found, and generally his real estate situated anywhere in
+the State. Real estate in another State can be affected by
+probate proceedings only if they take place there, by its
+authority. For that purpose "ancillary" administration is often
+taken out, that is, one designed to serve the interests of the
+general succession as administered in the seat of the principal
+administration.
+
+Since the right of a personal representative to act for the
+estate of the dead comes from the positive law of the particular
+sovereign having the proper jurisdiction, and since no law of a
+particular sovereign can be enforced, by virtue of his power or
+anything dependent on it, outside of his territorial
+jurisdiction, it follows that no executor or administrator can of
+right maintain a suit, as such, out of the State from the laws of
+which he derives his authority. He may take possession of the
+goods of the estate found in another State, or collect debts due
+from its citizens if no objection be made, but if forced to claim
+the aid of judicial process he must first prove his title there
+before the appropriate Probate Court by taking out ancillary
+administration, in which case he will probably be compelled to
+give security for the proper discharge of his duties under such
+appointment.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XVI
+
+
+            BANKRUPTCY AND INSOLVENCY COURTS
+
+
+It is within the power of Congress to assume the exclusive
+regulation of bankruptcy proceedings throughout the United
+States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is
+in this country no real difference in meaning between the terms
+bankruptcy and insolvency. Each denotes a _status_ into
+which one unable to pay his debts, as and when they fall due, may
+put himself, or be put by his creditors. The remedy is not
+confined to any particular classes of persons, and no more fault
+is implied on the part of one who is adjudged a bankrupt than on
+the part of one who is adjudged an insolvent.
+
+During most of the history of the United States there has been no
+uniform law on the subject of bankruptcy for the whole country.
+Three bankrupt Acts were enacted by Congress from time to time
+during the first century after the adoption of the Constitution.
+Each followed some serious financial crisis, and was repealed not
+long after the immediate effects of the crisis had passed away.
+They were adopted as a kind of [Greek: seisachtheia] to help
+insolvent debtors to get on their feet again. A later Act passed
+in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large,
+544; 32 _id._, 797.] and as it contains many provisions
+which have been found useful by creditors as well as by debtors,
+it is not unlikely to remain permanently upon the statute-books.
+
+The prosperity of the United States rests mainly on the absolute
+free trade which exists between the several States. That
+necessarily results in innumerable credits extended by citizens
+of one State to those of others, and in immense property
+interests in each State belonging to non-residents. In case of
+insolvency full justice can not be worked out except through the
+legislative powers vested in the United States.
+
+The Act of 1898 allows any one except a corporation to become a
+voluntary bankrupt. Practically any insolvent debtor can be
+thrown into involuntary bankruptcy, except wage earners, farmers,
+incorporated banks, or business corporations owing less than
+$1,000. This is so even if a State court of insolvency has
+already taken charge of his affairs; and if that has occurred it
+is of itself a sufficient reason for bankruptcy proceedings.
+
+Petitions in bankruptcy are preferred to a District Court of the
+United States. Each bankrupt estate is put in charge of one or
+more trustees. They can maintain actions to recover or protect
+it, as a general rule, in the courts of any State as well as in
+those of the United States.[Footnote: See Bardes _v._ Bank,
+178 U. S. Reports, 524.]
+
+Their title does not extend to anything which by the laws of the
+State where the bankrupt belongs is exempt from his creditors.
+Such exemptions differ greatly in different parts of the country.
+In some States certain property of the value of $5,000 may be
+exempt; in others the amount which the debtor can retain is
+comparatively trifling. There is, therefore, no uniformity in
+the result; but there is, nevertheless, uniformity in the rule
+under which the results are reached, and this is enough to
+support the validity of this provision of the statute.[Footnote:
+Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]
+
+The bankrupt may propose a composition to his creditors, and it
+may be accepted by a majority of them in number if they also hold
+the major part of the indebtedness. If such an acceptance is
+confirmed by the court the entire indebtedness is discharged when
+the total amount to be paid (including whatever is necessary to
+discharge all preferred claims) is deposited in court.
+
+A discharge may be granted to every honest bankrupt (whether his
+estate pays anything to his creditors or not), which clears him
+forever of all his ordinary debts. It does not apply to taxes
+nor to liabilities for certain wrongs of an aggravated character;
+nor can two successive discharges in bankruptcy be procured
+within six years unless the first was the result of involuntary
+proceedings.
+
+Whenever there has been no national bankruptcy law in existence,
+the States have been held to be free to pass such insolvent laws
+as they might think proper. During the existence of a national
+bankruptcy law no State insolvent law can be of any force which
+covers the same field.[Footnote: Ogden _v._ Saunders, 12
+Wheaton's Reports, 213; Tua _v._ Carriere, 117
+U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports,
+709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded
+or suspended as a necessary effect of the enactment of the Act of
+Congress, although that contains no express provision to that
+effect.
+
+Most of the States have on their statute-books provisions for a
+permanent system of insolvency proceedings. In some they are as
+favorable to the debtor as the United States bankrupt law of
+1898: in more they are less favorable. Generally such
+proceedings are brought before a court of special jurisdiction,
+constituted both for this purpose and for the settlement of the
+estates of deceased persons and of those who are incapable of
+managing their own affairs. In the older States it is often made
+a condition of a discharge that the creditors shall have received
+a certain percentage of their claims.
+
+The relief which the States are competent to give either to
+debtor or to creditor is very inadequate. The discharge of the
+debtor is of no avail except as against those creditors who were
+subject to the jurisdiction of the court. None are so subject
+except those belonging in the State, or actually taking part in
+the proceedings.
+
+Every bankruptcy or insolvency proceeding is a great lawsuit.
+The discharge is the final judgment in it. It can bind none who
+are not parties to the action. Only those are parties who were
+bound to appear, or who did appear. No one belonging to any
+other State or country can be bound to appear, unless in the rare
+case of a personal service of proper process upon him, made while
+he was within the territorial jurisdiction. Any creditor,
+wherever he may reside, who files a claim against the insolvent
+estate, or receives a dividend from it, makes himself a voluntary
+party. But as against a non-resident who keeps aloof and takes
+no part in the proceedings the discharge is worthless, even in
+the courts of the very State by authority of which it was
+granted.
+
+On the other hand, the creditor gets less aid from the State
+courts than a trustee in bankruptcy. The trustee in bankruptcy
+can sue in any court in the country in which the debtor could
+have sued for the same cause of action. The trustee or assignee
+in insolvency, acting under the appointment of a State court, can
+only sue within that State, unless his title has been fortified
+by a conveyance from the insolvent which would be good at common
+law. So far as his title rests on a law, by which it was taken
+away from the bankrupt and vested in him, it is ineffectual
+wherever that law is ineffectual; and the law of no sovereign is
+effectual of its own force outside of his territorial
+jurisdiction.
+
+*[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337;
+ Hale _v._ Allinson, 188 U. S. Reports, 56.]*
+
+If, therefore, as is commonly true in estates of any magnitude,
+part of the assets can only be recovered by suit in other States,
+there must be ancillary insolvency proceedings there, to clothe
+the principal assignee with the right of action. Should the
+insolvent be the owner of land in another State, the title to
+this can only be transferred in accordance with its law, and a
+foreign assignment in insolvency will be wholly ineffectual. Nor
+will ancillary proceedings in insolvency be allowed to prejudice
+the rights of citizens of the State in which they are instituted
+to any security which they might otherwise have for debts due
+them from the insolvent.[Footnote: Ward _v._ Conn. Pipe
+Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers'
+Reports Annotated, 706; 71 Am. State Reports, 207.] The right,
+however, of every sovereignty to postpone claims under a foreign
+bankruptcy or insolvency to the interests of its own people is
+modified in the United States by the constitutional provision
+that the citizens of each State are entitled to all privileges of
+citizens in the other States.[Footnote: Blake _v._ McClung,
+172 U. S. Reports, 239.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XVII
+
+
+                   CRIMINAL PROCEDURE
+
+
+The American system of criminal procedure rests on the principle
+that the government should decide on the propriety of beginning
+all prosecutions, and then should bring and maintain, at its own
+expense, such as it may deem proper.
+
+The first step ordinarily is the filing by an informing officer
+of a written complaint in the office of some court or with some
+magistrate, upon which a warrant of arrest issues as of course.
+In some jurisdictions original informations in a trial court, as
+distinguished from indictments, can only be filed by leave of
+court first obtained. Such is the rule in the courts of the
+United States.[Footnote: United States _v._ Smith, 40
+Federal Reporter, 755.]
+
+There is no such preliminary consultation with judicial officers
+as characterizes European criminal procedure. The prosecuting
+officer assumes the entire responsibility of initiating the
+prosecution and of giving it the particular form that it may
+assume. He commonly acts only on such matters as are officially
+brought to his attention by constables or other officers of
+police. It is rare that the party injured by an offense
+complains to him personally. Hence many of the lesser offences
+go unpunished, particularly in large cities, because the police
+fail to report them, on account of favoritism or corruption.
+
+The warrant refers to the complaint for its support. Between
+them, the offense charged, the person accused, and the thing to
+be done by the officer who is to make service must be
+particularly stated. "General warrants," that is, warrants of
+arrest or seizure, not specifying the person who is to be
+arrested, nor the particular place where the seizure is to be
+made, are expressly forbidden by the fourth amendment of the
+Constitution of the United States as respects federal courts, and
+as respects those of the States, are generally prohibited by
+their Constitutions.
+
+Any private individual may, by night or day, arrest without
+warrant one whom he sees committing a felony or a breach of the
+peace or running off with goods which he has stolen. If he knows
+that a felony has been committed and has reasonable grounds for
+suspecting that it was the act of a certain person, he may arrest
+the latter, although without personal knowledge of his guilt.
+
+A sheriff, constable, or other peace officer may arrest without
+warrant any one whom he has reasonable ground for suspecting to
+be guilty of a felony, although it may turn out that no such
+felony was ever committed. For any ordinary misdemeanor he could
+not, at common law, arrest without a warrant, unless he
+personally witnessed the wrongful act or was near enough to hear
+sounds indicating what was being done.
+
+In practice, officers of local police arrest freely on mere
+suspicion and with no personal knowledge either that any offense
+has been committed or that, if any, the person taken in charge
+was connected with it. The only risk which they run is of an
+action for damages, and that is slight. If one were brought and
+they showed that they acted in good faith and not wholly without
+cause, the amount recovered would probably be very small, and in
+any case it would be difficult to collect a judgment against one
+of them, as they are generally men of small means.
+
+In some of the original States a justice of the peace or higher
+magistrate, in whose actual presence certain misdemeanors were
+committed, could deal with the offender summarily and sentence
+him to a fine without any written complaint or warrant. This was
+a survival of colonial conceptions of the majesty of official
+station, and the statutes justifying the practice soon became
+practically obsolete.
+
+It is one of the distinguishing features of the English system of
+criminal procedure that any private individual can initiate a
+criminal prosecution, and that prosecutions are generally
+instituted in that manner. In doing so, he exercises a right
+belonging to every member of the general public, and the
+proceeding is, in that point of view, a public one.[Footnote: See
+Maitland, "Justice and Police," 141.] At common law there were
+but two guaranties against thus bringing forward frivolous or
+malicious accusations. The complainant was obliged to verify his
+charge by oath, and he was liable to a civil action if the
+defendant was acquitted and it appeared that there was no
+reasonable ground for the prosecution.
+
+In some of our States, also, if any private individual files a
+complaint under oath before a proper magistrate accusing another
+of a properly specified offense, a warrant of arrest may issue.
+In many there are statutes authorizing _qui tam_ actions to
+be brought by any one. These are actions to recover a statutory
+penalty prescribed for some wrongful act in the nature of a
+misdemeanor. The term _qui tam_ comes from the Latin terms
+of the old English writ used for such proceedings, in which the
+plaintiff describes himself as one _qui tam pro domino rege
+quam pro seipso in hoc parte sequitur_. The plaintiff is
+styled "a common informer," and his action is for the joint
+benefit of himself and of the State, or of some other public
+corporation or officers designated by the statute. He is
+sometimes given an option to sue in the form of a civil action,
+or by an information and the use of criminal process. In
+proceedings of the latter description a warrant issues upon which
+the defendant is liable to arrest.[Footnote: Canfield _v._
+Mitchell, 43 Conn. Reports, 169.] The action may, under some
+statutes, be brought in the name of the government, though by and
+at the cost of the informer. In such case, unless it is
+otherwise provided, he retains the exclusive management of the
+cause as fully as if he appeared as the sole plaintiff on the
+face of the record. If the plaintiff obtains judgment, and
+collects the penalty, he must pay half of it over to the
+government. If he fails, he is personally liable to the
+defendant for the taxable costs of the action. Under such a
+statute, a public prosecuting officer can sue for the entire
+penalty, whenever no action has been brought by a private
+individual.
+
+The tendency of modern American legislation is toward placing the
+collection of penalties for misdemeanors wholly in the hands of
+public officers. The _qui tam_ action is certainly a cheap
+mode of enforcing laws, and one likely to be pressed to a prompt
+issue. As observed by the late Judge Deady, "prosecutions
+conducted by such means compare with the ordinary methods as the
+enterprising privateer does to the slow-going public
+vessel."[Footnote: United States _v._ Griswold, 24 Federal
+Reporter, 361; 30 _id_., 762.] But they appeal to sordid
+motives and are liable to abuse. One who is exposed to such a
+suit often gets a friend to bring it, in order to forestall
+proceedings by others or by the State, and with a view to
+delaying or defeating the collection of the penalty. These
+considerations induced Parliament to restrict the remedy in
+England as early as the reign of Henry VII, and have proved of
+equal force in course of time in the United States.
+
+Justices of the peace and local municipal courts of criminal
+jurisdiction are generally given power to deal finally with a few
+petty offenses, subject to a right of appeal to a court where a
+jury trial can be had. As to all others, their function is, when
+the warrant of arrest has been executed, to inquire whether there
+is probable cause for holding the defendant to answer to the
+charge which has been made against him in a higher court, and if
+they find that such cause exists, to order him to give sufficient
+security that he will appear before it for trial. The question
+is not whether the evidence satisfies them of his guilt, but
+simply whether it is sufficient, in their judgment, to make it
+proper to send him where the charge can be more thoroughly
+investigated by those who have the right to condemn or to acquit.
+In making this inquiry, they hear both sides, if the defendant
+has any testimony to offer. In most States he is now a competent
+witness in his own behalf, provided he desires to testify.
+
+He cannot be interrogated in any court or before any magistrate
+without his consent. This is a weakness in the American system
+of criminal procedure. Under the English system of prosecutions
+by private persons, there are greater objections to subjecting an
+accused person to an examination, and it can now only be had by
+his consent.[Footnote: Maitland, "Justice and Police," 129.] The
+certainty in England also that criminal prosecutions may in any
+case be subjected to the power of a public officer by the
+interposition of the Attorney-General or the Director of Public
+Prosecutions makes it more important to safeguard a defendant who
+may be arraigned for a political offense, and whose prosecution
+may be inspired by reasons of a partisan nature. The magistrates
+upon whom the task of conducting or superintending the
+examination would naturally fall are also largely both
+representative of class interests and unlearned in the law.
+
+In the United States local prosecutors are often of a different
+party from that which controls the State or the United States.
+They have no close connection with those administering the
+general affairs of the government. They hold office for fixed
+terms, not dependent on any shifting of parliamentary majorities
+or change of ministry. Committing magistrates are in a similar
+position. They are also in many cases trained lawyers. If our
+Constitutions could be so modified or so construed as to allow
+them to ask the accused the questions that the sheriff who makes
+the arrest or the reporter who hurries after him to the jail is
+sure to ask, there are many reasons for believing that it would
+oftener prove a safeguard to innocence than an occasion for
+extorted and perhaps inconsiderate or misunderstood admissions.
+And be that as it may, it would certainly lead up to important
+clues, and frequently bring out admissions that were both
+unquestionably true and necessary to establish guilt.
+
+The fifth amendment to the Constitution of the United States, and
+similar provisions in the various State Constitutions, preclude,
+so long as they stand, any radical reform in this direction.
+They speak for a policy that was necessary under the political
+conditions preceding the American Revolution, but which is out of
+harmony with those now existing in the United States. The
+interests of society are greater than those of any individual,
+and yet it is with us the State that is deprived in public
+prosecutions of an equal chance with the accused. While burdened
+with the necessity of proving his guilt beyond a reasonable
+doubt, it cannot, according to the prevailing judicial opinion in
+this country, so much as ask him at any stage of the prosecution
+where he was at the time when the crime charged was committed.
+
+The terms of our Constitutions are not such as necessarily to
+demand the construction which has been generally given them by
+the courts. They have been commonly interpreted with a view to
+making them as helpful as possible to the accused.[Footnote: Boyd
+_v._ United States, 116 U. S. Reports, 616.] Provisions
+against compelling him to testify have been treated as if they
+forbade requesting him to testify. They would seem, on
+principle, quite compatible with a procedure under which the
+committing magistrates should in every case ask the defendant
+when first brought before them whether he desires to make a
+statement, telling him at the same time that he can decline if he
+chooses. Should he then make one, it should be written down at
+length in his own words, read over to him for his assent or
+correction, and properly attested. Many a guilty man is now
+acquitted whose conviction could have been secured on what such a
+paper would have disclosed or have given a clue to ascertaining.
+Such an inquiry has long been the English practice.
+
+The hearing before the committing magistrate, if any contest is
+made, generally does not take place until some time after the
+arrest. Each party is apt to wish time to prepare for it.
+Meanwhile, the defendant can generally claim the privilege of
+release on bail, unless the crime be capital and the
+circumstances strongly point to his guilt. Here our practice
+differs from that of an English court of inquiry. While there
+bail must be allowed in case of misdemeanors and may be in case
+of felonies; the amount required is frequently so large as to be
+prohibitory.[Footnote: Maitland, "Justice and Police," 131.]
+
+The essence of bail is that the prisoner should enter into an
+obligation, together with one or more others of pecuniary
+responsibility as his sureties, to appear whenever he may be
+called for in the course of the pending proceeding, on pain of
+forfeiting a certain sum of money. All our Constitutions forbid
+the taking of excessive bail. The sum should be large enough to
+give a reasonable assurance that he will not allow it to be
+forfeited. In fixing the amount, which in each case is left to
+the good judgment of the officer before whom it is taken, special
+regard should be had to the gravity of the offense, the nature of
+the punishment in case of conviction, and the means of the
+defendant or his friends. If too large an amount is demanded,
+the defendant can get relief on a writ of _habeas corpus_
+issued by some superior judge.
+
+This privilege of bail in most States extends to, or at the
+discretion of the court may be allowed at, any stage of a cause,
+not capital, even after a final judgment and sentence, provided
+an appeal has been allowed with a stay of execution.
+
+Bail is given orally or in writing, according to the practice of
+the particular State. When given orally, it is termed a
+recognizance. This is entered into by the personal appearance of
+those who are to assume the obligation before a proper magistrate
+or clerk of court, and their due acknowledgment before him that
+they do assume it. He makes a brief minute of the fact at the
+time, from which at any subsequent time he can make up a full
+record in due form. When bail is given in writing, the
+obligation is prepared in behalf of the government and executed
+by the parties to it.
+
+Whoever gives bail as surety for another is by that very fact
+given a kind of legal control over him. He can take him into
+actual manual custody without any warrant, and against his will,
+for the purpose of returning him to court and surrendering him to
+the sheriff. This right is a common law right, arising from the
+contract of suretyship, and is not bounded by State lines. If
+the principal absconds from the State, the surety can have him
+followed and brought back without any warrant of arrest.
+
+The amount of the bail, should it be forfeited, is payable either
+to the government or to some other representative of the public
+interests, as may be prescribed by statute. If the sureties have
+any equitable claim to relief by a reduction of the amount, there
+is often given by statute or judicial practice a right to the
+court in which the obligation was given or before which its
+enforcement is sought to grant a reduction from the sum which
+would otherwise be due upon it.
+
+When a committing magistrate requires the defendant to give bail
+to appear in a higher court, and he does not give it, he will be
+committed to jail to await his trial there. In this court he is
+sometimes tried on the complaint upon which he was originally
+arrested: oftener a new accusation is prepared. This may be
+either an information or an indictment.
+
+At common law, no one could be tried for a felony unless a grand
+jury were first satisfied that there was good ground for it. The
+grand jury consisted of not more than twenty-four inhabitants of
+the county, and in practice never of more than twenty-three,
+summoned for that purpose to attend at the opening of a term of
+court. To authorize a prosecution the assent of twelve of them
+was required. They heard only the case for the prosecution, and
+heard it in secret, after having been publicly charged by the
+court as to the nature of the business which would be brought
+before them. The court appointed one of them to act as their
+foreman, and he reported back their conclusions in writing, and
+in one or the other of two forms--by presentment or indictment.
+
+A presentment was a presentation, on their own motion, of an
+accusation against one or more persons. They were the official
+representatives of the public before the court, and it might well
+be that offenses had occurred, and become matters of common
+notoriety, prosecutions for which no one cared or dared to bring.
+Such a proceeding was comparatively rare.
+
+The common course was to pass only on such written accusations as
+others might submit to their consideration. These were called
+bills of indictment. If the grand jury believed that there were
+sufficient grounds for upholding any of them, their foreman
+endorsed it as "A true bill," and it then became an indictment.
+If, on the other hand, they rejected a bill of indictment as
+unfounded, the foreman indorsed it as "Not a true bill," or with
+the Latin term "_Ignoramus_," and this was the end of it.
+
+The organization and functions of the American grand jury are
+similar, except that here we have prosecuting attorneys to
+procure the presence of the necessary witnesses and direct the
+course of their examination. In the Federal courts almost all
+criminal accusations, great or small, are, and by the fifth
+amendment to the Constitution of the United States all charges of
+infamous crimes must be, prosecuted by presentment or indictment.
+In most of the States the intervention of a grand jury is
+requisite only in case of serious offenses; in some only in
+capital cases. It is obvious that it is less needed here than in
+England, since here it is not within the power of any private
+individual to institute criminal proceedings against another at
+his own will, but they are brought by a public officer
+commissioned for that very purpose and acting under the grave
+sense of responsibility which such authority is quite sure to
+carry with it. The grand jury, however, has its plain uses
+wherever political feeling leads to public disorder. It has
+also, since the Civil War, been found an effective restraint in
+some of the Southern States, whether for good or ill, upon
+prosecutions for violations of certain laws of the United States,
+brought against members of a community in which those laws were
+regarded with general disfavor.
+
+Prosecutions by information are those not founded on a
+presentment or indictment. The information is a written
+accusation filed in court by the prosecuting officer. In certain
+classes of cases, the leave of the court must be first asked in
+some jurisdictions. It is not necessary that it be supported by
+any previous statement or complaint under oath. The officer who
+prepares it acts under an oath of office, and that is deemed
+sufficient to give probability to whatever charges he may make.
+
+If the defendant has already been bound over by a committing
+magistrate, such an information may take the place of the
+original complaint on which the arrest was made. If he has not
+yet been arrested, or if he was arrested and discharged by such a
+magistrate, the filing of an information is accompanied by a
+request for the issue of a warrant for his arrest from the court.
+Such a paper is called a bench warrant, and is granted whenever
+necessary, whether upon a presentment, indictment, or
+information.
+
+An information may be amended by leave of the court at any time.
+A presentment or indictment cannot be. They, when returned to
+court, are the work of the grand jury, and they end its work. An
+amendment of a legal process can logically be made only by the
+hand which originally prepared it. This rule leads to the escape
+of many a criminal. If prosecuted by indictment, the case
+against him must be substantially proved--in whole or part--as
+there stated, or he goes free. Prosecuting officers therefore
+naturally prefer to proceed upon information whenever the law
+permits it.
+
+The intervention of a grand jury is also often the necessary
+cause of a delay alike prejudicial to the State and to the
+prisoner. It can only be called in when a court is in session,
+by which it can be instructed as to its duties and to which it is
+to report its doings. Months often elapse in every year when no
+such court is in session. For this reason, in case of a poor man
+under arrest on a charge of crime, who cannot furnish bail, it
+would often be much better for him were his liability to be
+brought to trial to be settled promptly by a single examining
+magistrate. At the hearing in that case also he has a right to
+be present and to be heard. Before a grand jury he has no such
+right.
+
+In most States, the great majority of indictments are against
+those who have already been committed on a magistrate's warrant
+to answer to the charge, should an indictment be found. The
+accused thus has two chances of escape before he can be put on
+trial for the charge against him: one by a discharge ordered by
+the committing magistrate, and one by the refusal of the grand
+jury to return "a true bill." A grand jury is more apt to throw
+out a charge as groundless than a single magistrate. He feels
+the full weight of undivided responsibility. If he err by
+discharging the prisoner, he knows that it may let a guilty man
+go free, untried. If he err by committing him for trial, he
+knows that, if innocent, the jury are quite sure to acquit him.
+He acts also in public. The whole community knows or may know
+the proofs before him, and will hold him to account accordingly.
+On the other hand, in the grand jury room all is secret. The
+prosecuting attorney, if admitted, does not remain while the
+jurors are deliberating over their decision. No one outside
+knows who may vote for and who against the return of an
+indictment. Every opportunity is thus afforded for personal
+friendship for the accused or business connection with him to
+have its influence. Judges know this, and in their charge often
+emphasize the importance and gravity of the duty to be performed.
+In 1903, the prosecuting officer in one of the small counties in
+Kentucky had prepared indictments against several men of some
+local prominence for arson and bribery. A special grand jury was
+summoned to act upon them. There was reason to expect some
+reluctance on the part of several. Of the witnesses for the
+State some were no less reluctant. There was great public
+excitement in the court town. One witness came there over ninety
+miles by rail hidden, for fear of his life, in a closed chest in
+the car of an express company. The grand jury were told by the
+court that they must make their inquiry a thorough one and indict
+without fear or favor every person in the county who ought to be
+indicted. "If," the judge added, "the evidence calls for
+indictments and you don't make them, they will be made anyway.
+If you do not do your full duty, I will do mine by assembling
+another grand jury." They did theirs under these stirring
+injunctions, and the indictments were promptly found.
+
+After the indictment or information comes the arraignment. This
+is bringing the defendant before the court and, after the charge
+made against him has been read, directing him to plead to it.
+Before the plea is entered, if he has no counsel, he is asked if
+he desires the aid of one, and if he responds that he does (or
+should he not, if the court thinks he ought to have counsel),
+some lawyer will be assigned to that duty. Some of the younger
+members of the bar who are present are generally desirous of
+being so assigned to defend those who have no means to employ
+such assistance. The court ordinarily makes the assignment from
+among their number, but in grave cases often appoints lawyers of
+greater experience and reputation. No one who is so assigned is
+at liberty to decline without showing good cause for excuse. A
+small fee is often allowed by statute in such cases from the
+public treasury. Statutes are also common providing that
+witnesses for the defense may be summoned at the cost of the
+government, if the defendant satisfies the court that their
+testimony will be material, and that he is unable to meet this
+expense.
+
+In the federal courts, in capital cases, the defendant must be
+furnished with a copy of the indictment and a list of the jurors
+summoned to court and of the government witnesses, at least two
+days before the trial.
+
+Whether impanelling the jury for the trial of a case is a long or
+short process will depend largely on the intelligence and
+firmness of the judge who holds the court. Each side can
+challenge a certain number of the jurors in attendance without
+stating any reasons for it, as well as any and every one of them
+for cause shown. If a juror has formed an opinion as to the
+guilt of the accused so definite as to amount to a settled
+prejudice against him, he is incompetent. In grave cases the
+prisoner's counsel will often seek to examine every juror whose
+name is drawn at great length as to whether he has such an
+opinion. A capable judge will keep such an inquiry within close
+limits.
+
+In 1824, an indictment for murder was found in Kentucky against a
+son of the Governor. The case was one which excited great public
+interest, and was talked over from one end of the State to the
+other. The result was that when the trial came on it was found
+impossible, term after term, to make up a jury of men who, from
+what they had heard or read, had not formed what the defense
+claimed and the court thought to be a sufficiently firm opinion
+as to the guilt or innocence of the accused to justify their
+exclusion. The legislature was finally appealed to for relief
+and passed a statute that an opinion formed from mere rumor
+should not be a ground of challenge. The case was then, in 1827,
+taken up for the ninth time, but with the same result, whereupon
+the defendant's father gave him a pardon, on the ground that "the
+prospect of obtaining a jury is entirely hopeless," and that he
+had "no doubt of his being innocent of the foul
+charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,
+336.]
+
+When a capital case is coming on, great pains will often be taken
+by the prisoner's counsel to ascertain the characteristics and
+disposition toward his client of each of the jurors who have been
+summoned to court. This has sometimes been carried to the extent
+of trickery, particularly in some of the Southern States. Agents
+have been sent over the county to see every man capable of jury
+service. There is some ostensible reason given for the call. He
+is perhaps asked to buy a photograph of the accused; perhaps to
+contribute to a fund to provide him with counsel. This naturally
+leads to some expression of opinion in regards to the charge made
+against him, and if the man thus "interviewed" should be
+afterwards offered as a juror, he is challenged or not challenged
+according to the information so obtained.
+
+In every criminal case the defendant's guilt must be proved
+beyond a reasonable doubt. A mere preponderance of evidence is
+not enough. In other respects the rules of evidence are
+applicable which obtain in civil cases.
+
+If a verdict of Not Guilty is returned, the court orders the
+discharge of the prisoner, as a matter of course, unless
+provision has been made by statute for an appeal by the State for
+errors of law committed on the trial. No such appeal can be
+allowed for the purpose of obtaining a new trial on the ground
+that the jury came to a wrong conclusion on the facts. This
+would be to put the defendant twice in jeopardy, which our
+Constitutions generally forbid. Even under the practice
+prevailing in the Philippine Islands, where they have no juries,
+and an appeal to a higher court for a new trial on the merits has
+always been allowed to either party in a criminal case, as a
+matter of right, this rule is held to apply.[Footnote: Kepner
+_v._ United States, 195 U. S. Reports, 100.]
+
+If the verdict is one of Guilty, the sentence is pronounced by
+the judge. He generally has a broad discretion as to the extent
+and nature of the punishment. For many offenses, either fine or
+imprisonment or both may be imposed, according to his best
+judgment. For most, when imprisonment is ordered, it may be for
+a term such as he may prescribe within certain limits, as, for
+instance, from one to five years. In a number of States of late
+years the judge is permitted in such a case to sentence for not
+less than one year, and it is left to some administrative board
+to determine later how much, if any, longer the confinement shall
+last, in view of the circumstances of the offense, the character
+of the prisoner, and his conduct since his sentence.
+
+A considerable and increasing group of penologists is pressing
+upon our legislatures the extension of the principle of the
+"indeterminate sentence" by removing the limit of a
+_minimum_ term. It is doubtful if such a change would
+satisfy the constitutional requirement of a trial by jury. That
+in its nature involves a trial before a judge and a sentence
+imposed by the court upon the verdict. Can that be deemed a
+judicial sentence to imprisonment which is a sentence to
+imprisonment during the pleasure of certain administrative
+officials?  Judgments are to ascertain justice. To do this they
+must be themselves certain. In a purely indeterminate sentence
+there is no certainty until it has been made certain by the
+subsequent action of the administrative authorities. It may turn
+out to be imprisonment for life, and the advocates of this mode
+of action frankly say that such ought to be the disposition of
+all incorrigible and habitual criminals. If so, ought not the
+fate to be meted out to them by judicial authority?  Can anything
+less than that be considered as due process of law?
+
+An experienced and able judge seldom makes any serious error in
+grading the punishment of offenders who have been tried before
+him. The sentence is not pronounced until they have been fully
+heard as to all circumstances of extenuation, nor until the
+government has been heard both as to these and as to any
+circumstances of aggravation. The sentence, if the offense be a
+grave one, cannot be pronounced except in the presence of the
+convicted man. He has an opportunity for the last word.
+
+Judges who are neither able nor experienced frequently impose
+sentences too light or too severe. We have too many such judges
+in the United States. The real remedy for the evil is to choose
+better ones. As between judges and boards of prison officers or
+of public charities, the judge always has the great advantage of
+having tried the case and heard the witnesses. He ought
+therefore to be best able to fix the term of punishment.
+
+The punishment to which one can be sentenced on a conviction of
+crime is now generally limited to fine or imprisonment. For
+graver offenses both may be inflicted: for murder, and in some
+States for a very few other crimes the penalty is death. The
+policy of the older States long was to require those whose
+offenses were directed against property to make good the loss of
+the injured party. Whipping was also often added, and it was
+formerly a common mode of punishment throughout the country for
+all minor offenses. Every colony used it. It was authorized by
+the original Act of Congress in 1790 on the subject of crimes,
+and was not abolished for the courts of the United States until
+1839. It was provided for in the early statutes of most of the
+States, and in some still is. Until 1830, it was the only mode
+of corporal punishment allowed in Connecticut for the general
+crime of theft. For boys it is often the only punishment that
+can properly be administered. To fine them is to punish others.
+To imprison them is, in nine cases out of ten, to degrade them
+beyond recall. Virginia, in 1898, reverted to it as an
+alternative to fine or imprisonment in the case of boys under
+sixteen, provided the consent of his father or guardian be first
+given. Such a statute seems absolutely unobjectionable from any
+standpoint. It is often asserted that whipping is a degrading
+and inhuman invasion of the sanctity of the person. To shut a
+man up in jail against his will is a worse invasion. But as
+against neither is the person of a criminal convict sacred. He
+has justly forfeited his right to be treated like a good citizen.
+Whether whipping is a degradation or not must depend much on the
+place of its infliction. The old way in this country, as in
+England, was to inflict it in public. This puts the convict to
+unnecessary shame. Let him be whipped in private, and his only
+real degradation will be from his crime. So inhumanity is
+needless. A moderate whipping only should be allowed. That is
+far more humane to most men than a term of jail; that is, it
+detracts less from their manhood than the long slavery of
+confinement.
+
+Of late years there has been a decided movement in the United
+States toward a return to the penalty of whipping for atrocious
+cases of assault or offenses by boys.[Footnote: See Paper on
+"Whipping and Castration as Punishments for Crime," _Yale Law
+Journal_, Vol. VIII, 371, and President Roosevelt's Message to
+Congress in December, 1904.] It is probable that it will find
+more favor hereafter in the South as a punishment for negroes.
+Most of their criminals are of that race. The jails have no
+great terrors for them. They find them the only ground where
+they can mingle with their white fellow-citizens on terms of
+social equality. But they are sensitive to physical pain. A
+flogging they dread just as a boy dreads a whipping from his
+father, because it hurts. The South may have been held back from
+applying this remedy in part from the apprehension that it might
+be considered as reinstating the methods of slavery. No such
+criticism could fairly be made. Confinement in jail is
+involuntary servitude, and involuntary servitude is slavery.
+Whipping is a substitute for it: it saves from slavery.
+
+In several of the Southern States, instead of imprisonment,
+ordinary offenders are set at work in the open air, either on
+convict farms, or in chain gangs on the highway, or in the
+construction of railroads or similar works. This plan prevails
+in Georgia and Arkansas to such an extent that very few are
+confined in the penitentiary. The convicts in these States are
+mainly negroes. When, as has been at times permitted, they have
+been turned over to private employers to work in this manner for
+wages paid to the State, many of the abuses of slavery have
+reappeared, and public sentiment is becoming decidedly adverse to
+the allowance of such contracts for convict labor. Similar
+objections do not lie in their employment on State farms, and in
+North Carolina and Texas this has been tried with considerable
+success.[Footnote: See "Bulletin de la Commission Penetentiaire
+Internationale," 5th series, II, 179.]
+
+Special courts have been organized, or special sessions of
+existing courts directed, for the disposition of prosecutions
+against children in several of the States and in the District of
+Columbia during the past few years. The judge holding such a
+"Juvenile Court" or "Children's Court" is expected to deal with
+those brought before him rather in a paternal fashion. An
+officer is generally provided, known as a Probation Officer, to
+whom the custody of the accused is largely committed both before
+and after trial. He is to inquire into each case and represent
+the defense at the hearing. In case of conviction, the child
+can, on his advice, be released on probation, or the sentence can
+be suspended.
+
+For errors of law committed by the judge in the course of the
+trial the defendant commonly has a right of appeal. Until 1891
+this was not true in the federal courts, and a man convicted and
+sentenced there under an erroneous view of the law and in
+disregard of any of his rights had no remedy, even in a capital
+case. It was so in Delaware until 1897.
+
+In some States there is a right of appeal in favor of the
+government as well as of the defendant for errors of law, and
+this even after a jury trial ending in a verdict of acquittal.
+It is there held that the common constitutional provision that no
+man shall be put twice in jeopardy of life or limb is not
+contravened by the allowance of such a remedy. The writ of error
+is a stage in the original prosecution. One acquitted of crime
+is deemed not to be put out of jeopardy unless he has been
+acquitted according to the forms of law, and after a trial
+conducted according to the rules of law. What these rules are,
+in case of dispute between the government and the accused, must
+be determined by such proceedings in the cause as the legislature
+may deem best adapted to ascertain them in an authoritative
+manner. Such a mode may properly be furnished by allowing a
+resort to a higher court, and a resort in favor of either
+party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
+Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
+_J_., in People _v._ Olcott, 2 Day's Reports, 507,
+note.] In other States such a review, in favor of the
+government, of the conduct of the cause is only supported when
+the exceptions taken are founded on what may have preceded the
+trial.[Footnote: People _v._ Webb, 38 California Reports,
+467.] This distinction is approved by the Supreme Court of the
+United States.[Footnote: Kepner _v._ United States, 195
+United States Reports, 100, 130.]
+
+For errors in conclusions of fact the defendant, in certain
+cases, has a remedy on a petition for a new trial, but in no case
+can the State ask for one. This is true even though the trial
+was not had to a jury.
+
+There is no doubt that new trials are too often granted in the
+United States in favor of those who have been convicted of crime.
+Particularly is this true when they are ordered because of some
+irregularity of procedure or slip in the admission or exclusion
+of evidence. A verdict, whether in a civil or criminal case,
+should stand, notwithstanding it was preceded by erroneous
+rulings or omissions of due form, unless the court of review can
+see that substantial injustice may on that account have been
+done.[Footnote: See Paper on "New Trials for Erroneous Rulings
+upon Evidence," by Professor J. H. Wigmore, in the _Columbia
+Law Review_ for November, 1903.] To release a convicted
+criminal for error in mere technicalities not really affecting
+the question of his guilt tends to make the people lose faith in
+their courts and resort to lynch law as a surer and swifter mode
+of punishment.
+
+Appeals in criminal causes are, however, much rarer and also much
+less often successful than is generally supposed. About eleven
+thousand persons were convicted of felonies in the County Courts
+of New York during the five years from 1898 to 1902, inclusive of
+each, and of these less than nine in a thousand pursued an
+appeal, not a third of whom secured a judgment of
+reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
+for March, 1904.] In Massachusetts, about a hundred thousand
+criminal prosecutions are annually brought, and the appeals to
+the Supreme Judicial Court from sentences of conviction rarely
+exceed twenty to twenty-five in number, and upon these in each of
+the years 1902 and 1903 only two new trials were
+granted.[Footnote: _Law Notes_ for December, 1904.]
+
+A comparison of the number of those put to death in the United
+States for crime by the courts, and on a charge of crime by a
+mob, for the past three years shows these results:
+
+             Executed by
+          Judicial Sentence.   Lynched.   Total.
+
+  1901          118              125       243
+  1902          144               96       240
+  1903          123              125       248
+
+A large majority of those lynched were negroes, and met their
+fate in the South. It is extremely difficult to secure a
+conviction of those who take part in such acts of violence. They
+commit the crime of murder, and the penalty is so heavy that
+their fellow-citizens are unwilling to subject them to it. The
+offenses with which the men whom they kill are charged are also
+generally of a nature which make them peculiarly offensive to the
+community. Many are negroes charged with the rape of a white
+woman, to whom it would be intensely disagreeable to testify
+against them. Not a few are men under sentence of death, who it
+is feared may escape or delay punishment by an appeal.
+
+Such considerations cannot excuse, but present some slight
+palliation for those acts of mob violence by which the people of
+the United States are so often disgraced. It may be added that
+out of the Southern States they are quite rare, and in the
+Northeastern States substantially unknown. Of the one hundred
+and four lynchings in 1903, only twelve occurred in the North or
+West.
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XVIII
+
+
+       THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT
+
+
+A public officer, whose duties are mainly other than judicial,
+may be invested with judicial power to be exercised only in
+certain causes which may be brought before him, in disposing of
+which he acts as a court. Such an one is a judge only when he is
+holding court. When it is adjourned, no court exists of which he
+could be a judge. Justices of the peace and parish judges are
+officers of this description. But ordinarily judges are
+appointed to hold some regular court, with stated sessions, which
+is always in existence. To such a judge considerable powers of a
+judicial nature are usually given for exercise when his court is
+not in session.
+
+The writ of _habeas corpus_, for instance, may be issued
+either by a court of record or by a judge of such a court, if
+applied for when the court is not in actual session. In the
+latter case, the return of the writ is made to him, the trial had
+before him, and judgment rendered out of court, or, as it is
+styled, "at chambers." While sitting for such a purpose, he may
+be regarded as exercising functions which really belong to the
+court and acting as a part of it.
+
+Statutes often, in case of a court having but a single judge,
+give him power to hold special courts whenever he may think
+proper. In such a case no very definite line is drawn between
+what judicial business the judge does and what the court does.
+While the proper and normal constitution of a court of record
+requires the attendance not only of a judge, but of a clerk and a
+crier or sheriff's officer, the only one whose presence is
+indispensable is the judge. A District Judge of the United
+States has this power of holding special courts, and is a court
+wherever and whenever he pleases to transact judicial business,
+whether he describes himself in such papers or process as he may
+issue, as court or judge.[Footnote: The U. S. _v._ The
+Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]
+
+The judges of courts having equitable jurisdiction act often out
+of court in the issue of temporary injunctions. These are writs
+directing some one to refrain from doing a certain act. They
+generally direct it under pain of a specified pecuniary
+forfeiture; but whether they do so or not, disobedience is
+punishable also by arrest and imprisonment, being treated as a
+contempt of court. The need of an injunction is often immediate.
+It would be worthless unless promptly granted. When, therefore,
+no court having power to issue one is in actual session, there
+would be a failure of justice if the judge could not act to the
+extent of granting temporary relief. Whether the injunction
+should be made permanent is a subsequent question, to be
+determined after a full hearing by the court. It may, in urgent
+cases admitting of no delay, be issued _ex parte_, but
+ordinarily the defendant is notified and has an opportunity for a
+summary hearing, either orally or on affidavits, before action is
+taken.
+
+A similar power often vested in judges at chambers is that of
+appointing a temporary receiver; that is, of some one to take
+temporary charge of property in behalf of and as agent of the
+court, when this seems necessary in order to preserve it. If the
+affairs of a commercial partnership get into such a condition
+that the partners cannot agree on the mode of conducting it, such
+an appointment can be made to tide matters along for the time
+being. So in case of an insolvent debtor his estate may, under
+certain circumstances, be placed in a receiver's hands by a
+summary order, issued out of court.
+
+It may be added that by the statutes both of the United States
+and of all the States many powers of a _quasi_-judicial
+character are conferred on judges to be exercised out of court,
+such as those of ordering the arrest of one suspected of criminal
+conduct, examining into the charges against him on his arrest,
+and admitting him to bail or sending him to jail for want of it.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XIX
+
+
+                  APPELLATE COURTS
+
+
+For each of the States and Territories as well as for the United
+States there is one supreme court of appellate jurisdiction.
+
+The Supreme Court of the United States can entertain original
+actions of certain kinds.[Footnote: See Chap. IX.] A few also of
+the State supreme courts of appeal have a limited original
+jurisdiction. This is generally confined to equity causes,
+election contests and certain actions for extraordinary relief
+known as prerogative writs, such as informations in the nature of
+_quo warranto_ and writs of mandamus.
+
+The term "appeal" in its strictest signification is confined to a
+removal of a cause after trial to a higher court for a new trial
+on the merits.
+
+It is also and now more commonly used to denote such a removal
+for the purpose only of inquiring whether any legal errors were
+committed on the trial or are to be found in the judgment. In
+this sense it covers proceedings by a writ of error, and any
+other mode of reviewing questions of law.[Footnote: See the
+_Federalist_, No. LXXXI.] If it does not appear from the
+record of the lower court that any of the errors that may be
+claimed (or "assigned," as the phrase is) exist, the judgment is
+affirmed; otherwise the cause is sent back for a new trial or, if
+the objections are fundamental and fatal to its maintenance, is
+dismissed.
+
+Appellate courts are of many kinds. Some are such exclusively;
+some mainly. In others the functions of entertaining appeals is
+a minor one, most of their time being occupied in trying original
+causes. An appeal from judgments of a justice of the peace, for
+instance, is generally given on the merits to county courts, but
+the greater part of the litigation before them comes there in the
+first instance. So the judgments of county or other minor courts
+are often reviewable on appeal for errors in law in some superior
+court which, like them, is principally occupied in the exercise
+of an original jurisdiction.
+
+When the American colonies passed into States, as has been seen,
+they were habituated to the thought of a supreme controlling
+authority exercised by one tribunal of a judicial character of
+last resort. The judicial committee of the Privy Council had
+administered this sovereign power for them, and for a long period
+of years, with general acquiescence.[Footnote: See Chap. I.] The
+uniformity of result thus obtained was acknowledged to be
+advantageous. It was now necessary to replace them by American
+courts of last resort, and it was not difficult in doing so to
+improve upon the English model. The time had come for
+separating, as far as it could conveniently be accomplished,
+judicial from political power.
+
+Virginia was the first to act. A few days before the Declaration
+of Independence she adopted a Constitution (under which the
+government, was carried on until 1830, though it was never
+formally submitted to or ratified by the people) providing for a
+separate judiciary headed by a Supreme Court of Appeals whose
+judges should hold office during good behavior, and be ineligible
+to the Privy Council or General Assembly.
+
+This divorce of judiciary and legislature was not the plan
+universally followed.
+
+New Jersey, in which as a colony the Governor and Council had
+possessed an appellate power like that vested in the English
+House of Lords, was so well satisfied with this arrangement as to
+continue it in her Constitution of July 3, 1776, and up to the
+present time puts upon her Supreme Court a certain number of
+judges who give but a part of their time to this work, and are
+not necessarily (though in practice of late years they generally
+have been) lawyers.
+
+New York, in her Constitution of 1777, pursued a somewhat similar
+plan. Her highest court was one "for the trials of impeachments
+and the correction of errors." Its members were the Senate with
+the Chancellor and judges of the Supreme Court. When a judgment
+of that court was brought up for review the judges were to state
+their reasons for giving it, but had no vote. This scheme was
+adhered to with little modification until 1846. What made it
+tolerable was that many of those elected Senators were naturally
+lawyers, and that to be in the Senate soon became the ambition of
+a lawyer with any desire to know how it would feel to be a judge.
+Able and learned opinions were pronounced by such men in
+exercising their judicial functions, and some of them in the New
+York reports are still frequently the subject of reference as
+clear and satisfactory statements of legal principles.
+
+Connecticut, in 1784, when she instituted for the first time a
+court of last resort, made it up of the Lieutenant Governor and
+the twelve Assistants, and soon added to it the Governor himself.
+A plan of this kind was likely to work in that State, as in New
+York, better than it looked. Lawyers by this time had come to
+fill most of the higher offices of state. Although the
+Assistants were elected annually it was under a complicated
+scheme of nomination, which, unless in case of a political
+revolution, ensured re-election in every case. A majority of the
+Assistants were always members of the bar. They were also
+Federalists from the beginning of party divisions in the country.
+Naturally, the Republicans found such a state of things
+intolerable. All the power of government in Connecticut, said
+one of those who were celebrating Jefferson's second election to
+the Presidency in 1804, "together with a complete control of
+elections, are in the hands of seven lawyers who have gained a
+seat at the council board. These seven men virtually make and
+repeal laws as they please, appoint all the Judges, plead before
+those Judges, and constitute themselves a Supreme Court of Errors
+to decide in the last resort on the laws of their own making. To
+crown this absurdity, they have repealed a law which prohibited
+them to plead before the very court of which they are Judges."
+Attacks like this were too just to be resisted, and two years
+later the Governor, Lieutenant-Governor and Assistants were
+replaced by the Judges of the Superior Court.
+
+Constitutional provisions that the right of trial by jury shall
+be preserved inviolate preclude, as a general rule, the
+establishment of courts in which the judges can make a final
+disposition of petty causes which turn on disputed facts. An
+appeal from their decision must be allowed, and a new hearing
+given on the merits in a court furnished with a jury. Under the
+Constitution of the United States a trial by jury cannot be
+claimed in civil cases at common law involving a demand of not
+over twenty dollars, and in most of the older States it cannot be
+in cases where it was not a matter of right prior to the adoption
+of their Constitutions.
+
+The verdict of a jury can only be reviewed on its merits by a
+court of last resort where it was clearly and palpably against
+the weight of evidence, and in order to do this the whole
+evidence given in the trial court must be certified up.
+
+Where a judgment has been rendered on a finding of facts made by
+a judge in a cause of an equitable nature, this finding can, in
+the courts of the United States and in many of the States, be
+reversed on any point on appeal. For this purpose also all the
+evidence that was before him, or all that is pertinent to
+questions involved, must be reported to the court above.
+
+Except so far as the right of trial by jury may require it, it is
+a matter of legislative discretion whether to give any remedy in
+a higher court for the errors of a lower one.
+
+In some States an appeal is given from a judgment of an inferior
+court even though rendered on the verdict of a jury, to a higher
+one where another trial may be had before a judge of presumably
+greater ability. In many States errors in law of petty courts
+may be reviewed in higher trial courts. In a few of the larger
+ones, as in the United States,[Footnote: See Chap. IX.] errors
+in law of the higher trial courts, in a considerable class of
+cases, are finally disposed of in an intermediate appellate
+court, constituted to relieve the court of last resort from an
+overweight of business.
+
+       *       *       *       *       *
+
+Ordinarily it is the statutory right of a defeated litigant to
+take an appeal, provided he can state any colorable ground of
+exception. In some jurisdictions he is required to obtain the
+approval of the trial court or else of some member of the
+appellate court. There are many judges who think that such a
+practice should be universally adopted. It would certainly tend
+to relieve the dockets of appellate tribunals, and to bring
+lawsuits to a speedier end. If one were sure that the judge to
+whom application was made for an approval of the appeal would
+always act intelligently and impartially, such a precaution
+against useless litigation would be admirable. But the trial
+judge is not in a position that naturally leads to an
+unprejudiced judgment. The appeal is asked on account of
+mistakes of his, and he will not be apt to think that he has made
+any. The judge of the appellate court will be impartial and
+unprejudiced, but he will have a very imperfect knowledge of the
+case. He could only be asked to make a hasty examination of the
+points involved, and it would be quite possible for him to reject
+as frivolous grounds which, on a lengthy investigation after a
+full argument, might have seemed to him substantial. In view of
+these objections, and of the unequal attainments and experience
+of the different judges of our courts, the bar are generally in
+favor of making appeals a matter of right; and what the bar
+favors in such a matter the legislature usually enacts.
+
+       *       *       *       *       *
+
+The opinions and judgments of all American courts of last resort
+are officially reported for publication. At first they were not
+so reported. The earliest volume of American judicial decisions
+(Kirby's) was published in 1789 as a private venture. A few
+years later the States began to provide official reporters for
+their highest courts and soon assumed the expense of publication.
+There are now more than fifty current sets of federal and State
+reports, the annual output being about four hundred volumes,
+containing 25,000 cases. The mere indexing and digesting of
+these reports for the use of the bench and bar has become a
+science. While consulted by comparatively few who are not
+connected with the legal profession, they constitute a set of
+public records of the highest value to every student of history
+and sociology.[Footnote: See "Two Centuries' Growth of American
+Law," 6.]
+
+It is the custom to prefix to the report of each case a head-note
+stating briefly the points decided. Ordinarily this is the work
+of the reporter. In a few States the judges are required to
+prepare it; and to do so then naturally falls to the lot of that
+one of them who wrote the opinion. Occasionally the head-note
+contains statements not supported by the opinion. In such case
+the opinion controls unless it is otherwise provided by statute.
+
+It has not been the usual custom of English judges of courts of
+last resort to write out their opinions. They have commonly
+pronounced them orally and left it to the reporters to put them
+in shape. The consequence has been that English reports have a
+conversational tone, and are not free from useless repetition.
+This has been not only a matter of tradition but of necessity.
+The English judges have always been few in number. Their time
+has been largely occupied in the trial of cases on the facts. It
+is only in recent years that certain judges have been set apart
+especially for appellate work.
+
+American judges, on the other hand, are numerous. There is the
+waste of energy in our judicial system which is the necessary
+concomitant of the independent sphere belonging to each separate
+State. Combination of all of them into one empire would make it
+easy to reduce the judiciary to a tithe of its present numbers.
+Their salaries are part of the price we pay--and can well afford
+to pay--for our peculiar system of political government, under
+which every State is an _imperium in imperio_.
+
+The ever-increasing number of our States, each with a body of law
+not exactly like that of any other, and each with a written
+Constitution which is its supreme law, requires a court of last
+resort in each. Experience tends to show that it ought not to be
+composed of less than five. There should certainly be an uneven
+number to facilitate decisions by a majority; and unless a
+minority consists of as many as two, its dissent is apt to carry
+little weight in public opinion.
+
+In most of the States the court of last resort is not overworked.
+In some the judges find time to do considerable circuit duty in
+the trial of original causes. This keeps them in touch with the
+daily life of the community, and is so far good. On the other
+hand it disqualifies them from sitting on an appeal from their
+own decisions, and so either reduces the number of the appellate
+court occasionally below that which is normal and presumably
+necessary, or involves calling in some one to act temporarily,
+which imperils the continuity of thought and uniformity of
+doctrine which should characterize every such tribunal. There is
+also a certain natural bias, insensible perhaps to themselves,
+which tends to make appellate courts stand by one of their
+members whose rulings while holding a trial court are brought in
+question. For these reasons it has now become common for the
+States to confine their appellate judges exclusively to appellate
+work. The time, therefore, which the English judge gives to
+circuit duty the American judge can give to writing out his
+opinions with all the art and care which he can command.
+
+He speaks in most instances to a small audience--the bar alone.
+But it is the bar of this year and the next year and the next
+century. Every volume of reports is part of the history of
+American jurisprudence and of American jurisprudence itself.
+Occasionally some case arises which involves large political
+questions, or one of especial local interest. The opinion is
+then read more widely. The newspapers seize it: reviews take it
+up. It is not always easy to anticipate what decision will
+become a matter of public notoriety; what opinion will be quoted
+as an authority in other States; and what drop unnoticed except
+by the lawyers in the cause. A judge, therefore, though he have
+no better motive than personal ambition, is apt to do his best in
+every case to state the grounds of his conclusions clearly and in
+order. A certain style of American judicial opinion has thus
+grown up. It is dogmatic. It offers no apologies. There is
+neither time nor need for them. The writer speaks "as one having
+authority." He does not argue out conclusions previously settled
+by former precedents, but contents himself with a reference to
+the case in the reports in which the precedent is to be found.
+He is as brief as he dares to be without risking obscurity.
+
+It is undoubtedly true that many reported opinions are of a very
+different type. Some of Marshall's assume a tone of apology; but
+in his day it was needed. He struck at cherished rights of
+States, upheld by their highest courts, and struck them down, at
+a time when the country was unfamiliar with the conception of the
+United States as a national force. Many of those of judges of
+inferior ability do not rise above their source. They are
+verbose, repetitious, slovenly, inaccurate in statement, loose in
+form; perhaps sinking into a humor or sarcasm always out of place
+in the reports;[Footnote: See, for instance, Mincey _v._
+Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
+_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
+_id_., 582.] possibly unfair in describing the claims that
+are overruled. But, as a whole, Americans need not fear to
+compare the reports of their courts with those of foreign
+tribunals. No judicial opinions, viewed from the point of style
+and argument, rank higher than some of those written by American
+judges.
+
+Those of appellate courts are generally composed and delivered by
+a single one of their members, but he speaks not only for the
+court but for every other member of it who does not expressly
+dissent. Nevertheless, as their conclusions depend on one man
+for their proper expression, the responsibility for the
+particular manner in which the opinion may set them forth is
+properly deemed in a peculiar sense to rest upon him.
+
+Nor, if the opinion is afterwards relied on as establishing a
+precedent, is the court bound by anything except the statement of
+the conclusions necessary to support the judgment. If unsound
+reasons for those conclusions are given, defective illustrations
+used, or unguarded assertions made, it is chargeable with no
+inconsistency in subsequently treating them as merely the
+individual expressions of the judge who wrote the
+opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
+Mass. Reports, 37, 41. This position is not, universally
+accepted. See Merriman _v._ Social Manufacturing Co., 12
+R. I. Reports, 175, 184.]
+
+When Marshall became Chief Justice of the United States he
+introduced the practice of writing all the opinions himself, and
+with a few exceptions maintained it for ten years, and until, by
+successive changes in the court, a majority were Republicans.
+This, as has been well said, "seemed all of a sudden to give to
+the judicial department a unity like that of the executive, to
+concentrate the whole force of that department in its chief, and
+to reduce the side justices to a sort of cabinet
+advisers."[Footnote: Thayer, "John Marshall," 54.]
+
+In some of the State Supreme Courts in early days, it was the
+practice for the Chief Justice to deliver an opinion in every
+case, but his associates frequently added concurring or
+dissenting ones.
+
+Of late years the business of appellate courts in the United
+States and in most of the States is so considerable that it is
+necessary to divide the labor, and the cases are generally
+distributed equally for the preparation of opinions.
+
+It is the prevailing practice to have the opinion, when drafted
+by the judge to whom that duty is assigned, typewritten or
+printed, and a copy sent to each of the other judges for their
+consideration separately. At a subsequent conference each judge
+is called upon by the Chief Justice to state whether he concurs
+in it, and if alterations are proposed there is opportunity for
+their discussion. This practice did not become general until the
+latter part of the nineteenth century, when the typewriter had
+come into common use. Prior to that time the draft opinion was
+ordinarily first made known by its author to the other judges
+either by reading it aloud at the final consultation or by
+sending one manuscript copy around to each in succession for his
+endorsement of approval or disapproval. In some courts it was
+never thus submitted at all, and so they were occasionally
+committed to positions which they had never intended to adopt and
+afterwards found it necessary to repudiate.[Footnote: See for an
+example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,
+198.]
+
+Our courts of last resort generally have before them a printed
+statement of the doings in the lower court which they are asked
+to review, and a printed argument from each party to the appeal.
+Oral arguments are also usually heard, except in a few States
+where the press of business renders it practically impossible
+except in cases of special importance. Such a press occurs
+mainly in the largest States, but exists also in some whose
+Constitutions make it easy and over-cheap for every defeated
+litigant to carry his case up to the highest court.
+
+In the Supreme Court of Georgia no costs exceeding $10 can be
+taxed against the unsuccessful party; and it has had eight
+hundred cases in one year upon its docket. In most States he has
+substantial costs to pay. These mainly are to meet the expense
+of printing the record sent up from the court below. A single
+case will sometimes fill a volume or even a set of volumes,
+particularly in equity causes in the federal courts, in which all
+the testimony is generally written out at length. The appellant
+has to pay for the printing in the first instance, but
+ordinarily, if he succeeds, the other party will be obliged to
+reimburse him. The cost involved is occasionally several
+thousand dollars.
+
+The party taking the appeal must file a paper stating his grounds
+for it separately, distinctly, clearly and concisely. There is a
+temptation to include all that can be thought of, good, bad and
+indifferent; and whether this is done or not will depend largely
+on the opinion which the lawyers have of the ability of the
+court.
+
+In the smaller States the judges have time to enable all to study
+each case with care. In the largest ones it is not uncommon to
+assign every case on the docket, in advance of the argument, to a
+particular judge. He is expected to give it special attention
+with a view to reporting his conclusions upon it to the court,
+and, should they be approved in consultation, to writing out its
+opinion subsequently. The assignment for a term of court is not
+infrequently made in the order in which the docket (or printed
+list of cases to be heard) is made out, the chief justice taking
+the first case, the senior associate justice the second, and so
+on. At the next term the same practice will be pursued, except
+that the justice next in seniority to the one who had the last
+case under the previous assignments will now take the first case
+on the new list, and the next junior justice the second.
+
+Appellate courts generally sit not over four or five hours a day;
+this time being either preceded or followed by a consultation.
+They are seldom in session more than five days in the week. The
+cases before them are not usually assigned for argument on
+particular days. A list is made up of all which are ready to be
+heard, numbered in order, the oldest first. They are then taken
+up successively as reached, and the counsel concerned in each
+must be ready at their peril. Often a limit is fixed by rule as
+to the number of cases that can be called for argument in any one
+day. In the Supreme Court of the United States this is the
+practice, and the number is ten. In some of the States it rises
+as high as twenty.
+
+At the first consultation over a case which has been argued, the
+Chief Justice (unless a special assignment has been previously
+made of it to some particular member of the court) asks the
+junior justice his opinion as to the proper disposition to be
+made of it, and each justice in turn then gives his, in the
+reverse order of seniority. If there is any serious disagreement
+the matter is generally allowed to stand over for further
+discussion later. At some convenient time after the views of the
+various justices have been ascertained the cases are distributed
+and, as a rule, equally for the purpose of preparing the
+opinions. This distribution is sometimes made by the Chief
+Justice and sometimes by agreement, or according to the
+arrangement of the docket.
+
+Until the opinion has been finally adopted it is not usual to
+announce the decision. Not infrequently the ultimate decision is
+made the other way, and a new opinion prepared by the same, or,
+if he remains unconvinced that his first one was wrong, by
+another judge. Still more often the draft opinion is altered in
+material points to meet criticisms and avoid dissent.
+
+Dissenting opinions are comparatively rare, particularly in
+courts where there is a Chief Justice with the qualities of a
+leader; that is, with ability, learning and tact, each in full
+measure.[Footnote: Perhaps tact counts the most, for the Chief
+Justice has the advantage of hearing the opinions of all his
+associates at all consultations before he gives his own. Senator
+Hoar makes a pungent comment on Chief Justice Shaw's want of it,
+in his Autobiography, II, 413.] Every instance of dissent has a
+certain tendency to weaken the authority of the decision and even
+of the court. Law should be certain, and the community in which
+those charged with its judicial administration differ
+irreconcilably as to what its rules really are, as applied to the
+transaction of the daily business of life, will have some cause
+to think that either their laws or their courts are defective and
+inadequate. For these reasons judges of appellate courts often
+concur in opinions, of the soundness of which they are only
+convinced because of the respect they entertain for the good
+judgment of their associates. They are willing to distrust
+themselves rather than them.
+
+Not seldom, however, dissent and the preparation of a dissenting
+opinion has in the course of time, aided, perhaps, by some change
+of membership, converted the court and led to overruling a
+position incautiously taken which was inconsistent with settled
+law.[Footnote: A striking instance of this is the case of
+Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
+Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
+_id_., 126; 6 Atlantic Reporter, 453.]
+
+More than eighty out of every hundred of the opinions delivered
+in the courts of last resort of each State of the United States,
+excepting one (New Jersey), and contained in the last volume of
+the reports of each published prior to June, 1904, were
+unanimous. In New Jersey seventy-three out of every hundred
+were. In two States, Maryland and Vermont, there was dissent in
+but two out of every hundred cases, and in all the States taken
+together, out of nearly 5,000 cases decided a dissent is stated
+in 284 only. This made the proportion of unanimous decisions of
+State courts, in the country at large, to those in which there
+was dissent nineteen to one.[Footnote: _Law Notes_ for June,
+1904, p. 285.]
+
+A dissenting judge sometimes files an opinion which is then
+printed in full in the reports. More often the fact of his
+dissent is simply noted. In cases involving constitutional
+questions it is rare for a dissenting judge not to state his
+reasons. The importance of the subject justifies if it does not
+demand it. As Mr. Justice Story once observed, "Upon
+constitutional questions the public have a right to know the
+opinion of every judge who dissents from the opinion of the
+court, and the reasons of his dissent."[Footnote: Briscoe
+_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]
+
+The official reports of the courts have some of the faults of
+officialism. They often do not appear until long after the
+decisions which they chronicle have been made and their general
+make-up is sometimes unworkmanlike and unscientific. It requires
+rare gifts to make a good reporter of judicial opinions. He must
+have the art of clear and concise statement; the power to select
+what is material and drop the rest; and the faculty of close
+analysis of abstract reasoning.[Footnote: Four of the reporters
+of the Supreme Judicial Court of Massachusetts have been
+appointed justices of that court, largely in consequence of their
+good work in reporting. A good reporter always has the making of
+a good judge.] Many of our reporters also are practicing lawyers
+of no special training for the work, and who give to it but a
+portion of the year.
+
+The modern sense of the value of time, of scientific treatment of
+whatever can be treated scientifically, and of uniformity in
+scientific methods led toward the close of the nineteenth century
+to competition in reporting. Private publishing houses undertook
+the prompt publication, in scientific arrangement upon a uniform
+plan, of the opinions of the courts. This work began in 1879.
+The result has been that the series of official reports of the
+Circuit Court of Appeals of the United States has been
+discontinued, and that the decisions of all our other appellate
+courts are now twice reported. One publishing house has grouped
+the States into clusters, issuing for each cluster its own series
+of reports, known, respectively, as the Atlantic, the
+Northeastern, the Northwestern, the Southeastern, the Southern,
+the Southwestern and the Pacific Reporters. The States forming
+each group have been selected mainly because they were neighbors
+geographically, but partly from commercial reasons. Thus
+Massachusetts, which would naturally be assigned to the Atlantic
+Reporter, has been put into the Northeastern; and such inland
+States as Kansas and Colorado find their place in the Pacific
+Reporter. All the reported decisions of all the States in each
+group are printed in pamphlet form weekly, as they may be handed
+down, in chronological order; and every few months the whole
+issued as a bound volume. In this way, for a trifling sum a copy
+of any opinion of any American court of last resort can be had in
+a few days or weeks after its announcement, and a lawyer's
+library can, at slight expense, be furnished with the decisions
+not only of his own State but of several others having not unlike
+laws and institutions.
+
+The multiplication of American reports makes judicial precedents
+of decreasing value to the American lawyer. English cases are
+cited as authority far less frequently than they were before the
+middle of the nineteenth century. The omnipotence of Parliament
+and the free hand with which that has been exerted to change the
+common law have tended to separate English from American
+jurisprudence. Our written Constitutions have perpetuated here
+ideas of government and property which England does not
+recognize. Hence American precedents are of more use than
+English. But American precedents are becoming so numerous that
+the advocate who seeks to avail himself of them is tempted to
+cite too many and to examine them with too little care. In each
+State its own reports are the expression of its ultimate law.
+With these every member of its bar must be familiar. But the
+courts before which he argues listen to him with more
+satisfaction and greater benefit if he deals with the principles
+of law rather than with foreign precedents which may or may not
+correctly apply them.[Footnote: See a valuable statistical
+article on "Reports and Citations" in _Law Notes_ for
+August, 1904.]
+
+Not every opinion which is delivered is officially reported. In
+most States the court has and exercises the power of directing
+that such as they may deem of no substantial value to the
+profession at large shall not be. Many are simply applications
+of familiar rules which obviously control. Opinions of that kind
+interest only the lawyers in the cause. In the unofficial
+reports, however, such cases are sure to appear and the bar is
+divided in opinion as to whether they should not also be given a
+place in the official ones.
+
+It is not always easy for the court or the reporter to determine
+what decision may thereafter be relied on as a precedent.
+Repeated instances have occurred in which such a use has in fact
+been made and properly made of some not noted in the regular
+reports, and not infrequently they have subsequently been
+inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
+of those of the Supreme Court of the United States, one hundred
+and twelve opinions are printed, the first delivered over fifty
+years before, which previous reporters had thought best to omit,
+and two hundred and twenty-one more such are published in
+Vol. CLIV. Whoever runs them over will be apt to think that the
+previous reporters were right.] There is also in case of an
+opinion not to be officially reported a loss of a valuable
+safeguard against unsound decisions. A judge writes with more
+care and examines the points of law which may be presented more
+closely if he writes for the public and for posterity.
+
+On the whole the prevailing sentiment is that the reasons for
+repressing some are stronger than those for publishing all
+judicial opinions. It will be few only that, under any
+circumstances, will be omitted. The leading lawyers in every
+State are expected to run over, if they do not read, every case
+in every new volume of its reports. Every case dropped lightens
+this task. It helps to keep indexes of reports and digests of
+reports and legal treatises within reasonable limits. It cuts
+into an accumulating mass of material, most of which must, in any
+event, so far as points of law are concerned, be a mere
+repetition of twice-told tales, that is becoming so vast in the
+United States as to becloud rather than illuminate whoever seeks
+to know what American law really is.
+
+If reporters will not select and discriminate between adjudged
+cases publishers can and will. Many sets have been prepared and
+issued in recent years of selected cases on all subjects taken
+from the official reports of all the States. Their professed aim
+has been to include all worth preserving. In fact, they have
+naturally been guided to a considerable extent by commercial
+considerations. To every lawyer the leading cases in his own
+State are of the first importance. He is not likely to buy any
+compilation in which a number of these do not appear, even if
+intrinsically, as statements of law, they may be of no great
+value. Hence in the collections in question the rule of
+selection is often the rule of three, and they are apt to contain
+a certain proportion of the decisions of every State.
+
+The leading sets are the "American Decisions," running from
+1760[Footnote: Long after the publication of Kirby's Reports in
+1784, some unofficial reports were published of cases decided in
+colonial courts prior to any which he included.] to 1869; the
+"American Reports," from 1869 to 1886; the "American State
+Reports," from 1886 to the present time, which three sets include
+over two hundred and fifty volumes and nearly 40,000 opinions;
+and the "Lawyers' Reports Annotated," now extending over more
+than sixty volumes, the first of which was published in 1888, and
+contains no cases reported prior to the preceding year.
+
+Spencer's rule of social evolution that all progress is from the
+homogeneous to the heterogeneous tends steadily and inexorably in
+the United States to lessen the value of judicial reports out of
+the State in which the cases were decided. Each of forty-five
+different commonwealths is building upon legal foundations that
+are not dissimilar, but some of them are advancing far faster
+than others, and none proceed at exactly the same rate or on
+exactly the same lines. They are building by statute, by popular
+usage and by judicial decision. Heterogeneity is most marked in
+legislation and it tells most there. Whoever looks over a volume
+of reports will find a large proportion of the cases turning upon
+some local statute. An important index title is that of
+"Statutes Cited and Expounded." In Vol. 138, for instance, of
+the Massachusetts Reports (a volume selected at random for this
+purpose), 223 statutes or sections of statutes are noted as
+having been made the subject of remark in the 170 cases which it
+contains. Almost all are Massachusetts statutes, a very small
+proportion of which have been re-enacted elsewhere.
+
+Appellate courts thus forced at every turn to study with care
+into the effect of local legislation, much of which, to get at
+its meaning, must be traced back historically through various
+changes during a long course of years, and in the older States
+sometimes for centuries, listen unwillingly to citations from
+decisions of other States which are even remotely affected by the
+statutes that may be there in force.
+
+The newer States and those with a small population are naturally
+the ones that rely most on foreign authority. In the last volume
+(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
+cited in the opinions of the court are of that kind. In the last
+volume (Vol. 178) of the New York Reports, the percentage is but
+thirty, and in the last of the Massachusetts Reports (Vol. 185)
+it is only twenty-five.[Footnote: _Law Notes_ for April,
+1905, 8.]
+
+       *       *       *       *       *
+
+In the Supreme Court of the United States and in several of the
+appellate courts of the larger States each judge is provided with
+a clerk at public expense. While this is a means of relief from
+much which is in the nature of drudgery, it sometimes leads to a
+deterioration in the quality of the judicial opinions. A
+dictated opinion is apt to be unnecessarily long, and when a
+clerk is set to looking up authorities, although he can hardly be
+expected always to select the most apposite, it is easier to
+accept his work and use what he has gathered than to institute an
+independent search.
+
+Some of the appellate courts which are most fully employed, both
+State and federal, are provided with special libraries of
+considerable extent, and each of the individual judges is also
+often furnished with an official library, sometimes containing
+several thousand volumes, for his personal use, to be handed over
+to his successor when he retires from office.[Footnote: In New
+York, the private library of the Court of Appeals contains over
+6,000 volumes, comprehending all the reports of all the States,
+and the personal libraries provided for each judge have come to
+comprise 3,500 volumes.]
+
+In some States counsel have the right to demand to be heard
+before a full court, and those who have taken the appeal
+generally exercise it. As decisions go by majorities, the chance
+of reversing a judgment before, for instance, a court of five,
+which is a common number, is obviously greater when all its
+members sit than when four do. In either case it must be the act
+of three judges, and one is more likely to convince three out of
+five than three out of four.
+
+In the Supreme Court of the United States there is no means of
+supplying the place of a judge who is absent or disqualified.
+The remaining members, provided they constitute a quorum (that
+is, a majority), proceed without him. In most of the States
+there is some provision for filling the vacancy in such a
+contingency. Sometimes it is by calling in a judge of an
+inferior court; sometimes by application to the Governor for the
+temporary appointment of some member of the bar as a special
+associate justice to sit in a particular case.
+
+In several of the larger States all the members of the court of
+last resort do not and need not sit in every case. In some two
+permanent divisions are constituted, to each of which certain
+judges are assigned, and both divisions may be in session at the
+same time. In other States certain judges are detached for a
+certain time, during which they study causes which have been
+argued and prepare opinions. This done, they resume their seats,
+and others are released for similar duties.
+
+In Ohio, for instance, the Supreme Court consists of six judges
+and commonly sits in two divisions of three each, having equal
+authority. The whole court sits to hear any cause involving a
+point of constitutional law. It also decides those which have
+been heard in one of its divisions and in which the divisional
+court is in favor of reversing the judgment appealed from. An
+affirmance by the divisional court is final, but if it inclines
+to a reversal the judges communicate their opinions to the full
+court, which also reads the printed briefs submitted on the
+original argument, and then without any further oral hearing
+pronounces final judgment. Four judges, therefore, at least,
+must concur to accomplish a reversal. Should the full court in
+any case be equally divided, the judgment appealed from stands.
+
+Under the Constitution of California (Art. VI, Sec. 2) the
+Supreme Court, which consists of seven judges, ordinarily sits in
+two departments. Three judges can render a decision, but the
+judgment does not go into full effect for thirty days unless
+three, including the Chief Justice, have given it their approval.
+The Chief Justice also, with the concurrence of two of his
+associates, or four of these without his concurrence, can direct
+that any cause be heard before a full court within thirty days
+after judgment by a department court. He can also order the
+removal into the full court of any cause before judgment.
+
+In Michigan only five out of the eight judges sit to hear a case,
+and if one of them files an opinion dissenting from that of his
+associates, the losing party can demand a rehearing before the
+full court.
+
+Neither the bar nor the bench are quite satisfied with such
+methods of appellate procedure. The Ohio scheme is excellently
+adapted for the dispatch of business, but may prevent an oral
+argument before those who are ultimately to decide the cause.
+That of California often protracts litigation. Any such plan of
+division also must increase the risk of the court's taking a
+position inconsistent with one which it had previously assumed.
+The judges in one division may come to conclusions different from
+those reached in the other division; or where the court does not
+sit in divisions, a point may be determined by a narrow majority
+in one case which in a later one, through the substitution of one
+or two judges for those who heard the former, may be ruled the
+other way.
+
+The freedom of appeal which is generally conceded to defeated
+litigants in this country has been made the subject of severe
+criticism. It seems, however, a necessary incident of our
+political institutions. They are built upon the foundation of a
+profound reverence for the rights of the individual and of the
+equality of all before the law. Our Constitutions guaranty every
+man against deprivation of life, liberty or property without due
+process of law. If we could count on having as judges of our
+trial courts none but men of ability, learning and independence,
+it might be safe to leave it to them to say what this due process
+was. But the tenure of judicial office in most States is too
+brief, the pay too meagre, and the mode of appointment too
+subject to political influence to give always that assurance that
+could be wished either of the independence of the judiciary or of
+its representing only what is best in the legal profession.
+
+In England, until recently, there was little or no right of
+review in favor of one convicted of crime. But the judges are
+appointed for life on ample salaries, and tradition requires that
+they be selected only from among the leaders at the bar. Nor is
+the right of the individual against the State deemed so sacred
+under English as under American institutions. It cannot be in
+any country where an hereditary aristocracy has from ancient
+times had a share in government. As has been seen, the English
+practice in this respect for nearly a hundred years was adopted
+in the courts of the United States, but public sentiment finally
+pronounced against it. Much less could it be safely followed in
+the States, where criminal courts are often held by judges of
+little ability, less learning, and inferior standing at the bar,
+to which, after the expiration of a brief term, perhaps of but a
+year, they will return should they fail to secure a party
+renomination.
+
+The same reasons, if in less degree, support a liberal right of
+appeal in cases involving property only, and oppose restrictions
+based only on the amount in controversy. Americans could never
+tolerate keeping their appellate courts for the trial of large
+causes only. There must be no rich men's courts. There
+certainly must be none to which a claim of right founded on a
+constitutional provision cannot be carried up, however trifling
+in pecuniary value may be the matter in demand.
+
+Most appeals fail. There are few in which the counsel who takes
+them are fully confident of success. Every lawyer of large
+experience knows that he has often won when he expected to lose,
+and lost when he expected to prevail. There are not many cases
+involving large pecuniary interests or strong personal feeling
+that are not appealed if there is any color for it. The
+proportion of appeals which are successful will generally be not
+far from a third of the whole number taken. Of course, however,
+this must depend largely on the competency of the trial judges in
+the court where it is claimed that errors have occurred. The
+abler and more experienced those who do circuit duty may be, the
+oftener will their doings be supported in the court of last
+resort.
+
+Short terms of office and consequent lack of practical
+acquaintance with the business of a trial judge is the real cause
+why so many appeals are taken, and are allowed to be taken in our
+American States. As for the federal courts of appeal, there is
+another and unavoidable occasion for large dockets. They have
+the last word to pronounce on constitutional questions, and there
+has probably never been a year since the United States came into
+existence when the legitimate powers of the general government
+have not been repeatedly infringed upon by State legislation.
+
+In the Supreme Court of the United States, the reporter began its
+second century with a plan of stating the number of cases
+affirmed or reversed at each term, but dropped it after two
+years. The record of these years was as follows:
+
+                              Affirmed          Reversed
+  October Term, 1890            248               104
+  October Term, 1891            185               103
+
+A tabulation of the decisions reported in the various States in
+their last volumes published prior to June, 1904, shows that on a
+general average, in sixty-three out of every hundred appeals the
+judgment of the inferior court was affirmed. In Massachusetts
+the percentage was eighty-seven per cent. In Texas it was only
+thirty-four per cent., and in Arkansas and Kentucky not much over
+forty per cent.[Footnote: _Law Notes_ for June 1904,
+p. 285.]
+
+Many more appeals are taken by convicted persons in criminal
+cases at the South than in the North. Many more criminal
+prosecutions are brought there, in proportion to the population.
+This is due largely to the presence of so large a body of colored
+people, most of whom have had a very inferior education and
+training. Many more such appeals are successful also in the
+South than in the North. In the reports of the courts of last
+resort of Alabama, Florida, Louisiana and Mississippi between
+December 20, 1902, and April 25, 1903,[Footnote: As given in
+Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
+appear, in forty-six of which the judgment of conviction was set
+aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
+New Jersey, Pennsylvania, Rhode Island and Vermont between March
+12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
+Atlantic Reporter.] the reports show only twenty such cases, of
+which seven were set aside.[Footnote: _Law Notes_ for
+September, 1903, 105.] This would seem to indicate either that
+the trial judges of criminal courts in the Gulf States are
+careless or that the appellate courts there (under the pressure,
+perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
+Independence," by Justice Henry B. Brown in the Reports of the
+Am. Bar Association for 1889, 265.] are inclined to be too
+technical. If either is true it is a just cause for public
+dissatisfaction with the administration of criminal justice, and
+some palliation for the frequent resorts to Lynch law by the
+Southern people.
+
+The American plan of written opinions, at least in all cases of
+novelty or general interest, works better in small States than in
+large ones. No judge can find time to prepare more than a
+certain and quite moderate number in a year, if they are such as
+they should be. The shorter they are, the more time generally
+has been spent in condensing them. In a great State there must,
+therefore, either be a larger number of judges, or every few
+years there must be a temporary addition to the judicial force to
+clear off an accumulation of cases. The latter expedient is
+generally preferred. Sometimes a small number of lawyers are
+selected to serve as a special commission of appeals. They sit
+by themselves, but there may be a provision for their submitting
+their opinions to review by the regular court. Some of the
+leading cases in our reports have been decided by such
+commissioners. In California, where such a body now exists, its
+members are appointed by the court, and removable at its
+pleasure; but ordinarily they are chosen by the executive or
+legislative departments.
+
+Sometimes when the cases on the docket of the court of last
+resort reach a certain number (in New York this is put at 200)
+the Governor may call in judges of the next court in rank to sit
+with the regular judges until the accumulation is cleared off.
+
+Fewer causes can be heard and disposed of in American appellate
+courts than in those of other countries by reason of two things,
+our practice of delivering written opinions and the fulness of
+treatment thought necessary in such opinions, especially when
+they deal with questions of constitutional law. In France, the
+Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
+219 were sustained and 597 rejected.] Nothing approaching this
+number could be properly disposed of on the merits in any
+American Court of last resort. Many appeals, however, are here,
+as everywhere, abandoned or dismissed for some failure to comply
+with the rules of practice or because manifestly frivolous, and
+in these no opinions are ordinarily given. During the court year
+closing with the Summer of 1903, the Court of Appeals of New York
+filed only 221 opinions, although it disposed, in one way or
+another, of 640 cases; and the Supreme Court of the United States
+filed 212 opinions and disposed of 420 cases.[Footnote: See
+Chap. XXIV.]
+
+In the calendar year 1904, the Court of Appeals of New York filed
+327 opinions, and the Supreme Court of Illinois over 500.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XX
+
+
+       THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF
+                   CONTEMPTS OF COURT
+
+
+No court can with propriety pass a decree which it cannot
+enforce.[Footnote: Clarke's Appeal from Probate, 70
+Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
+U. S. Reports, 186.] After the judgment comes the issue of
+appropriate process to compel obedience to it, unless such
+obedience (as is generally the case) is voluntarily rendered.
+The whole power of government is at the command of the court for
+this purpose. A sheriff with a judicial process to serve who
+meets with resistance can summon to his aid the _posse
+comitatus_. By this term is meant the whole power of his
+county; that is, any or all of its able-bodied inhabitants on
+whom he may choose to call. Not to respond to such a call is a
+legal offense. The marshals have similar powers in serving
+process from the Federal courts.
+
+The fact that there is this force behind a writ is so well
+understood by the community that occasions for resorting to its
+use, or indeed to the use of any actual force, are extremely
+rare. If the process was lawfully issued, it would be useless to
+resist. If unlawfully, it is easier and safer to seek relief by
+an injunction, or in case of an arrest, by a writ of _habeas
+corpus_. But there have been occasions in the judicial
+history of the United States when, under the influence of a
+general popular ferment, the service of process from the courts,
+and even the holding of courts, have been forcibly prevented.
+
+Shay's Rebellion in Massachusetts (in 1786) was the first of
+these after the Revolution. Similar uprisings of less importance
+took place at about the same time in New Hampshire and Vermont.
+A few years later, the service of process from the New York
+courts was interrupted in Columbia County. There was a strip of
+territory adjoining the Hudson River, title to which was claimed
+both by New York and Massachusetts. Conflicting claims, awaking
+much bitter feeling, arose under grants from each government. In
+1791, the sheriff of Columbia County was ordered by the courts,
+in the course of a lawsuit, to sell a tract of this land.
+Seventeen persons disguised as Indians appeared at the time of
+sale to resist it, and he was killed by a shot from one of
+them.[Footnote: Report Am. Historical Association for 1896, I,
+152, note.]
+
+Then came the Whiskey Rebellion in Pennsylvania. The statutes of
+the United States[Footnote: United States Revised Statues, 5299.]
+provide that if their courts meet with opposition of a serious
+nature, the President may use the army or call out the militia of
+one or more States to restore order. Opposition to the
+enforcement of the revenue tax on whiskey in 1794 called for the
+first exercise of this power. Marshals were resisted in serving
+process, and several counties were in a state of insurrection.
+Washington sent so large a force of troops to suppress it that
+the rioters vanished on their approach, and there was no further
+obstruction of the ordinary course of justice. The total expense
+to the government in this affair was nearly $1,000,000.[Footnote:
+Wharton's "State Trials," 102.] In 1799, somewhat similar
+opposition arose in the same State against the enforcement of the
+house taxes laid by Congress. President Adams here also sent a
+sufficient force of militia to suppress it.[Footnote:
+_Ibid_., 48, 459.]
+
+In 1839, a general combination was formed among the tenant
+farmers in New York holding long or perpetual leases from
+manorial proprietors to resist the payment of the stipulated
+rents. In several counties the greater part of the land was
+occupied under such a tenure. The design was to compel the
+landlords to sell to the existing tenants at a price fixed by
+public appraisal, or else that the State should take the lands by
+eminent domain and dispose of them to the same persons on
+reasonable terms. Sheriffs were forcibly prevented from serving
+writs in dispossession proceedings. One who took with him a
+_posse comitatus_ of five hundred armed men, a hundred of
+whom were mounted, was met and turned back by a larger band, who
+were all mounted. The Governor was finally compelled to issue a
+proclamation against the "up-renters," as they were called, and
+to protect the sheriff by a large body of militia. Put down in
+one county, the movement soon reappeared in others. Disguises
+were assumed, the rioters figuring under Indian names and wearing
+more or less of the Indian garb. Three hundred of them, with
+twice that number not in disguise, prevented a sheriff from
+levying an execution for rent on tenants upon the Livingston
+manor. For six years the contest went on in several counties.
+Several lives were lost on both sides. Sheriff's officers were
+tarred and feathered and their writs destroyed. Of the rioters
+many were arrested and prosecuted from time to time and some
+convicted. Five were sent to the State's prison for life. Two
+were sentenced to be hanged. The State used its militia freely
+to defend the sheriffs, at a cost in one county of over $60,000,
+and in 1845 a series of prosecutions and convictions, resulting
+in over eighty sentences at one term of court, broke the back of
+the insurrection. It died half-victorious, however, for an
+"anti-rent" Governor and Lieutenant-Governor were elected the
+next year, and several statutory changes in the law of leases
+which the malcontents had desired were soon afterwards
+enacted.[Footnote: See Paper by David Murray on the "Anti-rent
+Episode in New York," Report of the American Historical
+Association for 1896, I, 139.]
+
+During the period of reconstruction in the Southern States,
+following the civil war, the courts were repeatedly broken up by
+violence and the service of legal process resisted, in some
+instances by authority of the military Governor.[Footnote:
+S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495,
+496, 509, 544, 565.]
+
+The writ to enforce the judgment of a court of law is called an
+execution. It is directed to the sheriff or other proper
+executive officer, and requires him to seize and sell the
+defendant's property or, as the case may be, to arrest and
+imprison him, to turn him out of possession of certain lands, or
+to take some other active step against one who has been adjudged
+in the wrong, in order to right the wrong, as the judgment may
+command.
+
+A judgment for equitable relief is not ordinarily the subject of
+an execution.[Footnote: See Chap. VIII.]
+
+A judgment at law is generally to the effect that one of the
+parties shall recover certain money or goods or land from the
+other. On the prevailing party lies the burden of moving to get
+possession of what has thus been adjudged to be due. This he
+does by taking out an execution. A judgment in equity is an
+order on the defendant to do or not to do some particular act.
+It is now an affair between him and the court. He must obey this
+mandate or he will be treating the court with disrespect.
+
+To treat a court with disrespect, or, in legal parlance, to be in
+contempt of court, is to incur very serious responsibilities. It
+is in the nature of a criminal wrong, for it is a direct
+opposition to the expressed will of the State. Whoever is guilty
+of it makes himself liable to arrest and to be subjected to fine
+or imprisonment. If, for instance, an injunction is obtained in
+a suit for the infringement of a patent right, it becomes at once
+the duty of the defendant to desist from making or selling what
+the plaintiff has proved that he only can lawfully make and sell.
+If he does not desist, the plaintiff can complain to the court,
+and if after a preliminary hearing it appears that his complaint
+is well founded, can obtain a warrant of arrest, styled a
+"process of attachment." On this, the proper officer takes the
+defendant into custody, and brings him before the court to answer
+for violating the injunction order. If the case is an aggravated
+one, he will be both fined and imprisoned, and the imprisonment
+will be in the common jail for such time as the court may order.
+
+It is the sting in the tail of an injunction that makes it
+especially formidable. The debtor who fails to pay to the
+sheriff, when demand is made upon an execution, a judgment for
+money damages commits no contempt of court. The man who keeps on
+doing what a court of equity has forbidden him to do does commit
+one.
+
+A conspicuous instance of the efficacy of an injunction was
+furnished by the great Chicago railroad strike and boycott of
+1894, initiated by the American Railway Union. Mob violence
+followed. More than a thousand freight cars were burned. Trains
+were derailed, passengers fired at, and lives lost. The officers
+of the union, after two or three weeks, wrote to the managers of
+the railroads principally affected, describing the strike as
+threatening "not only every public interest, but the peace,
+security and prosperity of our common country."[Footnote: United
+States _v._ Debs, 64 Federal Reporter, 724, 729.] A
+temporary injunction was issued against these officers and others
+by the Circuit Court of the United States in an equitable action
+brought by the United States under the direction of the
+Attorney-General. They disobeyed the injunction. Their arrest
+for this contempt of court promptly followed. This stopped the
+flood at its source. To quote from testimony given a few weeks
+later by Mr. Debs, the President of the Union, "As soon as the
+employees found that we were arrested and taken from the scene of
+action, they became demoralized and that ended the strike....
+The men went back to work and the ranks were broken and the
+strike was broken up,... not by the army, and not by any other
+power, but simply and solely by the action of the United States
+court in restraining us from discharging our duties as officers
+and representatives of our employees."[Footnote: United States
+_v._ Debs, 64 Federal Reporter, 724, 759.] The defendants
+in the contempt proceedings having been found guilty and
+sentenced to jail for terms varying from three to six months,
+appealed to the Supreme Court of the United States, but without
+avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564,
+600.]
+
+Injunctions not infrequently are granted as an equitable relief
+against a legal judgment. _Summum jus, summa injuria_ is an
+ancient maxim of the courts. The foundation of equitable
+jurisdiction is that courts of law cannot always do justice. One
+may, for instance, be invited to build a house on another's land,
+and promised a deed of the site. He builds the house and then is
+refused a deed. The invitation and promise were by word of
+mouth. The rules of law make such a house the legal property of
+the landowner. The rules of equity make it the equitable
+property of the man who built it on the faith of the landowner's
+invitation and promise. If the latter sue at law for the
+possession of the house, he may get judgment, but equity will
+prevent his enforcing the judgment, not because it is not a legal
+judgment, but because he is endeavoring to make an inequitable
+use of a legal right.
+
+A court of equity sometimes makes a decree establishing a title.
+To enforce such a judgment, a writ may be issued, called a writ
+of assistance. It is directed to the sheriff and requires him to
+do some specific act, such as putting the defendant out of
+possession of certain lands and turning it over to the plaintiff.
+
+It is, as appears from instances which have been given, possible
+that the execution of process from the courts may be defeated by
+violence which they cannot overcome. It is possible in fact
+though impossible in theory. As the sheriff can employ the
+_posse comitatus_, he ought always to have an overwhelming
+force at his command. But it is easier to "call spirits from the
+vasty deep" than to make them respond. Public feeling may be so
+strong in opposition to the service of the process that mob
+violence will be tolerated and even openly supported. An armed
+mob can only be effectually met by an armed force which is not a
+mob--that is, by disciplined soldiers.
+
+The sheriff, if so opposed, may call upon the Governor of the
+State for military assistance. How efficient it will prove will,
+of course, depend on the discipline of the militia and the
+firmness of its commanding officers. It is seldom that it fails
+to restore order, if the men carry loaded guns and are directed
+to fire at the first outbreak of forcible resistance.
+
+But the Governor may refuse to comply with the sheriff's request.
+In such case, the execution of the process of the court fails
+because of want, not of power, but of the will to exercise it on
+the part of those on whom that duty rests. In every government
+constituted by a distribution of the supreme authority between
+different departments, each of them must do its part loyally with
+respect to the others, or the whole scheme, for the time being,
+breaks down.
+
+In the United States this danger is doubly great because of the
+interdependence of the general government and the particular
+States. Judicial process may issue from a State court against
+those who oppose its execution under claim of authority from the
+United States; or from a federal Court against those who oppose
+its execution under claim of authority from a State. Some
+instances of such conflicts of jurisdiction have been already
+mentioned.[Footnote: Chap. X.]
+
+When the Supreme Court of the United States reverses a judgment
+of a State court, it can either[Footnote: U. S. Revised Statutes,
+Sec. 709.] itself render the judgment which the State court ought
+to have rendered, and issue execution, or remand the cause to it
+with directions that this be done. If the latter course be
+taken, the directions may be disobeyed. A Georgia court was
+guilty of this contumacy in the case of Worcester _v._
+Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former
+course be taken, the service of the execution may be resisted by
+the power of the State.
+
+Worcester was illegally confined in the Georgia penitentiary.
+The sentence against him had been set aside and the indictment
+adjudged to furnish no ground of prosecution. But if the Supreme
+Court had rendered a judgment dismissing the prosecution, and
+given a writ to the marshal directing him to set Worcester at
+liberty, the officer would have found the prison doors shut in
+his face. Every prison is a fortress, so built as to prevent
+rescue from without as well as escape from within. To lay siege
+to one would be too great an enterprise for the marshal to
+undertake without military assistance. For this the President
+could have been called upon. But he might have refused it. If
+so, the judgment of the judicial department would have proved
+inoperative, simply because the officer charged with the duty of
+rendering it operative had declined to fulfil that duty.
+
+The Supreme Court, in the Worcester case, probably had reason to
+believe that if it had directed a call on President Jackson for a
+military force it would have been refused. It is reported that
+the President, in private conversation, intimated as much.
+Possibly he might have been justified in the refusal. South
+Carolina was on the brink of war with the United States. Georgia
+was her next neighbor, and might have been induced to make common
+cause with her, if Jackson had battered down the doors of her
+penitentiary to release a man who, her courts insisted, had been
+properly convicted of a serious crime. A court can do nothing
+short of justice. The executive power, perhaps, may sometimes
+rightly act or decline to act from motives of national policy.
+
+In one instance the armed forces of a State were actually
+engaged, under the authority of the legislature, in forcibly
+resisting the service of process from the federal courts. It was
+in 1809, when the marshal in Pennsylvania was opposed by a large
+body of the militia called out by order of the Governor for the
+purpose. Their commanding officer was subsequently arrested and
+convicted for the offense in the Circuit Court of the United
+States.[Footnote: Wharton's State Trials, 48; McMaster, "History
+of the People of the U. S.," V, 405; Willoughby, "The American
+Constitutional System," 41, 43.]
+
+In 1859, the Governor of Ohio refused to honor a requisition from
+the Governor of Kentucky for the surrender of a fugitive from
+justice. The act charged was assisting a slave to escape. This
+was a crime in the State from which the man had fled, but not in
+the State where he had found refuge. The Supreme Court of the
+United States was asked by Kentucky to compel the surrender. It
+held that the Governor had violated his duty, but that the
+Constitution of the United States furnished no means for
+enforcing its performance by him.[Footnote: Kentucky _v._
+Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of
+this doctrine, a man indicted for murder in Kentucky has been for
+several recent years residing in safety in Indiana, because the
+Governor of that State has refused to comply with repeated
+requisitions for his surrender.
+
+       *       *       *       *       *
+
+Every court of record while in session has inherent power to
+compel all who appear before it to preserve order, to obey its
+lawful commands issued in due course of judicial procedure, and
+to refrain from any expressions of disrespect to its authority,
+under pain of fine or imprisonment, or both. This power, unless
+withdrawn by statute, belongs to any justice of the peace who has
+authority to hold a court of record, while he is holding one.
+Commonly it is, in his case, regulated by statute.[Footnote:
+Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic
+Reporter, 955.]
+
+At common law, superior courts of record also have power during
+the progress of a cause to repress or punish any disrespectful
+acts or words done or uttered, not in its presence, but so near
+to it as to constitute a breach of order or tend directly to
+lessen its efficiency. These are deemed powers inherent in such
+a court, because necessary to support its proper dignity and
+independence. Statutes are common to define or restrict them,
+but they cannot take them away altogether. To do so would be to
+take away an essential incident of the judicial power. Nor can
+they so far reduce the penalty that may be inflicted as to
+deprive the court of a reasonable measure of the right of
+self-protection.[Footnote: Batchelder _v._ Moore, 42
+California Reports, 412.] It is, to say the least, doubtful if
+they can even restrict its exercise by any court created by the
+Constitution itself.[Footnote: State _v._ Morrill, 16
+Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri
+Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_
+Robinson, 19 Wallace's Reports, 505, 510.]
+
+The accused is not entitled as of right to a trial by jury. The
+judge is the best guardian of the dignity of the court.[Footnote:
+_In re_ Debs, 158 U. S. Reports, 564, 595.]
+
+The rule of criminal law that to convict a man of crime requires
+proof of guilt beyond a reasonable doubt applies to all
+proceedings of contempt. The accused is also allowed to go free
+on giving bail until final sentence, if that is to be preceded by
+any preliminary inquiry involving adjournments from day to day.
+No such inquiry is necessary when the contempt is plain and was
+committed in the presence of the court.
+
+In the courts of the United States and in most of the States no
+appeal is allowed for errors in law from a summary sentence of
+punishment for a contempt of court. Appeals lie only from final
+judgments in a cause, and such a sentence for contempt is not so
+regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports,
+364, 376.] If the contempt be (as it may be) made the subject of
+a formal criminal prosecution and a jury trial, an appeal is
+allowed.
+
+A punishment inflicted for contempt, even though it goes beyond
+the rightful jurisdiction of the court in such a matter, is a
+judicial act, and does not expose the judge passing the sentence
+to an action for damages.[Footnote: Bradley _v._ Fisher, 13
+Wallace's Reports, 335.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XXI
+
+
+        JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO
+                     MARTIAL LAW
+
+
+Martial law is the exercise of military power. It is martial
+rule at the will of the commanding military officer.
+
+In time of war and at the seat of war martial rule is a
+necessity, and under such conditions martial law may rightfully
+be enforced by any sovereign as an incident of the war, whether
+that is being waged with foreign or domestic enemies. The case
+is different when, though war exists, an attempt is made to
+enforce martial law at a place which is not the seat of war, nor
+so near it as to make military rule necessary for military
+success. Constitutional provisions may also affect the question.
+Those affecting the United States contain limitations stricter
+than those found in some of the State Constitutions. Ordinarily
+no military officer can rightfully enforce martial law in a place
+where the regular courts of his sovereign are open and in the
+proper and unobstructed exercise of their jurisdiction.[Footnote:
+_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]
+
+The first serious contest between the judiciary and the military
+power in this country as to the questions thus involved took
+place during the war of 1812. General Jackson, in 1814, was at
+New Orleans in command of the military Department of the South.
+The city was threatened with invasion. He declared martial law,
+and not long afterwards arrested a Mr. Louaillier, a member of
+the State legislature, for writing a newspaper article in which
+he objected to the continuance of this kind of military
+government. Louaillier obtained a writ of _habeas corpus_
+from the District Judge of the United States (Judge Hall),
+directed to Jackson. The General, instead of obeying it,
+forthwith took possession of the original writ, arrested the
+Judge, and deported him from the city. Two days later despatches
+were received from the War Department officially announcing the
+conclusion of a treaty of peace. Judge Hall now returned, and a
+rule to show cause why Jackson should not be attached for
+contempt of court was issued. Jackson appeared and filed a long
+answer, first stating various objections to the jurisdiction, and
+then setting up the circumstances calling for his proclamation of
+martial law. He had been told, he said, that the legislature was
+"politically rotten." The Governor had warned him that the State
+was "filled with spies and traitors," and advised, in the
+presence of Judge Hall, and with no dissent from him, that
+martial law be proclaimed. It seemed a time when "constitutional
+forms must be suspended for the permanent preservation of
+constitutional rights." The lengthy paper, which was evidently
+written by a skilful lawyer, closed thus: "The powers which the
+exigency of the times forced him to assume have been exercised
+exclusively for the public good; and, by the blessing of God,
+they have been attended with unparalleled success. They have
+saved the country; and whatever may be the opinion of that
+country, or the decrees of its courts in relation to the means he
+has used, he can never regret that he employed them."[Footnote:
+Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court,
+not particularly impressed with these arguments, ordered the
+proceedings to go forward and required the General to answer
+certain interrogatories respecting his course of conduct, by a
+day appointed. He appeared on that day and declined to answer
+them, with this concluding shot:
+
+"Your honour will not understand me as intending any disrespect
+to the court; but as no opportunity has been afforded me of
+explaining the reasons and motives by which I was influenced, so
+it is expected that censure will constitute no part of that
+sentence, which you imagine it your duty to pronounce."[Footnote:
+_Ibid_., 387.]
+
+The sentence was a fine of $1,000, which was at once paid.
+
+The sympathy of the country was with "the hero of New Orleans" in
+this affair, whose gallant defense of that city had cast a gleam
+of glory upon the close of a long and apparently fruitless war.
+Some of her people subscribed the money to reimburse to him the
+amount of the penalty, but he declined to accept it. Nearly
+thirty years afterwards Congress made an appropriation for the
+purpose, and he received the full amount with interest (in all
+$2,700) from the treasury, as a legislative compensation for a
+judicial wrong. It would seem, however, that Judge Hall acted
+within the limits of his authority. When he signed the writ of
+_habeas corpus_ the State was at peace, and it was generally
+known, though not officially proclaimed, that a formal treaty of
+peace had been signed between the United States and Great
+Britain. The courts were open; his court was open; and the
+General should have respected the process which issued from
+it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports,
+O. S., 530. See opinion of Mr. Justice Miller in Dow _v._
+Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4
+Wallace's Reports, 2, 127.]
+
+During the Civil War, President Lincoln was responsible for many
+arrests by military officers of citizens of States remote from
+the seat of actual hostilities, and in which the courts were
+open. At its first outbreak he entirely suspended the privilege
+of the writ of _habeas corpus_, and one issued by the Chief
+Justice of the United States was disobeyed.[Footnote: _Ex
+parte_ Merryman, Taney's Decisions, 246.] Congress in 1863
+enacted that any order of the President, or under his authority,
+in the course of the war, should be a defense to any action in
+any court for what was done by virtue of it. The State courts
+disregarded the statute. If, they said, either the common law or
+martial law justified the order, it justified the act; if neither
+did, the fiat of Congress cannot make the act a lawful
+one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports,
+370.] The Supreme Court of the United States had this question
+before them, but did not find it necessary to decide
+it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510;
+Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the
+dissenting opinion of two justices in the last report, p. 292.)]
+Had they done so, it would probably have been answered in the
+same way.
+
+Missouri inserted in her Constitution of 1865 a provision similar
+to the Act of Congress. This, of course, so far as that State
+could do it, abrogated any rule of law to the contrary, and it
+was held not to contravene any provision of the Federal
+Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's
+Reports, 595.] The transaction in controversy, however, was
+before the adoption of the fourteenth amendment, and had the
+prohibition in that been then in existence, a different result
+would probably have been reached.
+
+The Governor of North Carolina (William W. Holden) in 1870
+declared two counties in a state of insurrection. The militia
+were called out and a number of citizens arrested. Writs of
+_habeas corpus_ in their favor were issued by Chief Justice
+Pearson of the Supreme Court of the State against the military
+officers.[Footnote: _Ex parte_ Moore, 64 North Carolina
+Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at
+first refused, by the Governor's authority, to obey them.
+Similar writs were then obtained from the District Judge of the
+United States, upon which the petitioners were, by the Governor's
+orders, produced before the State judge. The result was the
+impeachment of Governor Holden and his removal from
+office.[Footnote: S. S. Cox, "Three Decades of Federal
+Legislation," 458.]
+
+While martial law is the will of the commanding officer, it may
+be his will to have it applied, so far as ordinary matters of
+litigation are concerned, by courts. For that purpose, when in
+occupation of enemy's territory, he may allow the courts
+previously existing under the government of the enemy to continue
+in the exercise of their functions as his temporary
+representatives; or he can institute new tribunals of local
+jurisdiction having the name and form of civil courts, and
+proceeding according to the ordinary rules of administrative
+justice. All such courts act really as his agents and subject to
+his control, but in practice he seldom interferes with their
+judgments. He cannot, however, in establishing such a temporary
+tribunal, give it the powers of an admiralty court over prize
+cases. The judgment _in rem_ of an admiralty court,
+condemning a captured ship as a lawful prize of war, is treated
+as conclusive all over the world; but this is because it is a
+decree of a competent court, properly established to administer a
+branch of maritime law which, in its main principles, is part of
+the law of nations and common to the world. No mere military
+court on enemy's territory occupies that position.[Footnote:
+Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]
+
+This right of the military commander exists equally on foreign
+territory in military occupation and on domestic territory, when
+the ordinary courts of his country are not open. During our
+Civil War, in 1864, President Lincoln, as commander in chief of
+the army and navy, set up a "Provisional Court for the State of
+Louisiana," after the Southern portion of that State had been
+occupied by the national forces and martial law declared. Judge
+Charles A. Peabody of New York, who had been a justice of the
+Supreme Court of that State, was commissioned to hold it and to
+dispose of both civil and criminal causes. Its docket became at
+once a full one, and important litigation was transacted there
+with general acceptance until the close of the war.[Footnote: The
+Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
+Association for 1892, 199.]
+
+In the original proclamation of martial law in Louisiana the
+commanding officer announced that civil causes between parties
+would be referred to the ordinary tribunals. One of the State
+courts, known as a District Court of the City and Parish of New
+Orleans, the judge of which took the oath of allegiance to the
+United States, continued to sit and dispose of business in the
+usual course. A few months later a citizen of New York sued a
+military officer before it for ravaging a plantation which he
+owned in Louisiana, and recovered judgment. A suit upon it was
+afterwards brought in Maine, where the defendant resided. He
+pleaded that the property of the plaintiff had been taken to
+furnish his troops with necessary supplies. The case ultimately
+came before the Supreme Court of the United States. Here it was
+thrown out, the court saying that the District Court of New
+Orleans had no jurisdiction to call military officers to account
+for acts done under claim of military right.[Footnote: Dow
+_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
+litigation between private parties unconnected with military
+operations is concerned, a court of this character, established
+by law, and suffered by the military authorities to continue its
+sessions, has competent jurisdiction, and its judgments will be
+enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
+45 New York Reports, 27.] They have no power to entertain
+criminal charges against those in the military service, who would
+be punishable by court martial.[Footnote: Coleman _v._
+Tennessee, 97 U. S. Reports, 509, 519.]
+
+In 1864, during the war, but in Indiana, a State
+distant from the seat of hostilities, the military commandant
+of the district ordered the arrest of a private
+citizen and his trial before a military commission on
+charges of conspiracy against the United States, as a
+member of a secret organization known as the Order
+of American Knights or Sons of Liberty. The trial
+resulted in his conviction, and a sentence to death, which
+was approved by the President of the United States.
+Before it could be executed, he applied to the Circuit
+Court of the United States for the District of Indiana
+for a writ of _habeas corpus_. The judges of that court
+were divided in opinion in regard to the case, but it
+was decided in his favor when it came before the
+Supreme Court of the United States.[Footnote: _Ex parte_
+Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
+was unanimous, but in stating the reasons for it the
+court was divided in a manner which has not been
+uncommon since the death of Chief Justice Marshall
+when any great question of a political nature has
+been involved. Five justices held that the trial of
+a civilian by a military commission can never be vindicated
+in a peaceful State where the courts are open
+and their process unobstructed. Four justices dissented,
+and Chief Justice Chase thus summarized their
+conclusions:
+
+  There are under the Constitution three kinds of military
+  jurisdiction: one to be exercised both in peace and war;
+  another to be exercised in time of foreign war without the
+  boundaries of the United States, or in time of rebellion and
+  civil war within States or districts occupied by rebels treated
+  as belligerents; and a third to be exercised in time of
+  invasion or insurrection within the limits of the United
+  States, or during rebellion within the limits of States
+  maintaining adhesion to the National Government, when the
+  public danger requires its exercise. The first of these may be
+  called jurisdiction under military law, and is found in acts of
+  Congress prescribing rules and articles of war, or otherwise
+  providing for the government of the national forces; the second
+  may be distinguished as military government, superseding, as
+  far as may be deemed expedient, the local law, and exercised by
+  the military commander under the direction of the President,
+  with the express or implied sanction of Congress, while the
+  third may be denominated martial law proper, and is called into
+  action by Congress, or temporarily, when the action of Congress
+  cannot be invited, and in the case of justifying or excusing
+  peril, by the President, in times of insurrection or invasion,
+  or of civil or foreign war within districts or localities where
+  ordinary law no longer adequately secures public safety and
+  private rights.
+
+  We think that the power of Congress in such times and in such
+  localities to authorize trials for crimes against the security
+  and safety of the national forces may be derived from its
+  constitutional authority to raise and support armies and to
+  declare war, if not from its constitutional authority to
+  provide for governing the national forces.[Footnote: _Ex
+  parte_ Milligan, 4 Wallace's Reports, 141.]
+
+The Constitution of the United States contains some provisions
+restricting the jurisdiction of military authorities and
+tribunals over controversies, which are not found in the
+Constitutions of the States. It may well be that martial law has
+for the United States a narrower meaning than it may possess in a
+particular State.
+
+The legislature of Rhode Island in 1842, during "Dorr's
+Rebellion," by a Public Act put that State under martial law
+until further order, or until its termination should be
+proclaimed by the Governor. A squad of militia broke into the
+house of a private citizen to arrest him as an abettor of Dorr,
+and were afterwards sued in trespass before the civil courts.
+The cause finally came before the Supreme Court of the United
+States, where (one justice only dissenting) it was held that the
+Act could not be pronounced an unjustifiable exercise of
+legislative power under any provision of the federal
+Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
+Reports, 1, 45.] Whether the courts of Rhode Island could have
+taken a different view, under the fundamental laws of the State,
+was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
+Reports, 2, 129.]
+
+On the other hand, there are States in which the Constitution
+explicitly provides that "the military power shall always be held
+in an exact subordination to the civil authority and be governed
+by it."[Footnote: Constitution of Massachusetts, Declaration of
+Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
+Sec, 22.] It is a serious question whether, under such
+provisions, a legislative or executive declaration of martial law
+in time of peace, in order the better to cope with some local
+disturbance, is to be regarded as an expression of the will of
+the civil authority, by virtue of which the civil courts lose the
+power of discharging on _habeas corpus_ one restrained of
+his liberty by military command. That it is such an expression
+was held in Colorado in 1904, but by a court composed of only
+three judges, of whom one, in a dissenting opinion, observed that
+the decision of his associates "is so repugnant to my notions of
+civil liberty, so antagonistic to my ideas of a republican form
+of government, and so shocking to my sense of propriety and
+justice that I cannot properly characterize it." A similar
+question arose, but was not judicially determined, in Arkansas in
+1874. There was a contest over the election of Governor. The
+Constitution provided that such contests should be decided by the
+joint vote of both houses of the legislature. Baxter, the
+candidate who was elected on the face of the returns, was
+declared elected by the President of the Senate and took the oath
+of office. Brooks, the other candidate, presented a petition for
+a contest to the lower house, which refused to grant it. He then
+applied to the Supreme Court on _quo warranto_ proceedings,
+which threw out the case for want of jurisdiction.[Footnote:
+State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
+suit was then brought in a _nisi prius_ court, on which
+judgment was rendered in his favor,[Footnote: This judgment was
+reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
+173.] and he was put in possession of the executive chambers by
+an armed force which he assembled. Baxter then declared martial
+law in the county in which the capital was situated, and arrested
+two of the judges of the Supreme Court on their way to attend a
+special session called to take action in _mandamus_
+proceedings brought in behalf of Brooks. They were rescued after
+a day or two by United States troops and proceeded to join their
+associates. The court then gave judgment for Brooks in his third
+suit, directing the State Treasurer to pay his warrants. At this
+point the legislature applied to the President of the United
+States for protection against domestic violence, under Art. IV of
+the Constitution of the United States, and his compliance by a
+proclamation officially recognizing Governor Baxter and ordering
+the Federal troops to support him closed the history of this
+disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
+for 1874," 87-100.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXII
+
+
+       APPOINTMENT, TENURE OF OFFICE AND COMPENSATION
+                      OF JUDGES
+
+
+The oldest which survives of our American Constitution, that
+adopted by Massachusetts in 1780, requires the appointment of
+judges to be made by the Governor of the State, with the advice
+of the Council, and for good behavior.[Footnote: Constitution of
+Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]
+
+This plan was substantially followed in framing the Constitution
+of the United States. That was planned for a small number of
+States, perhaps only nine, certainly at first not over thirteen.
+The Senate, therefore, would be a body small enough to serve as
+an executive council. Its necessary enlargement by the admission
+of new States has long made it but ill-suited for this purpose,
+and has thrown the power of confirming or rejecting an executive
+nomination for judicial office largely under the control of the
+Senators from the State to which the person named belongs,
+although this control is much weakened if they do not belong to
+the party of the administration. The principle that the greater
+the concentration of the appointing power, the greater will be
+the sense of individual responsibility for every appointment
+made, makes this result of a Senate of ninety members not wholly
+unfortunate. The President now consults a council of two.
+
+Thirteen States in all originally gave to the Governor the power
+either of appointing or of nominating the judges of the higher
+courts; fourteen gave their election to the legislature; the rest
+preferred an election by the people.[Footnote: 'Baldwin, "Modern
+Political Institutions," 58, 59.] If we compare the original
+practice in each State with its present practice, we find that
+there are now fewer in which the Governor appoints or nominates;
+fewer in which the legislature elects; more in which the people
+do. Legislative elections have been found to imply a system of
+caucus nominations, and have often led to a parcelling out of
+places among the different counties in which geographical
+considerations told for more than did fitness for office. In one
+State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
+since 1880, the legislature has elected on the Governor's
+nomination. In practice they have never failed to act favorably
+upon it.
+
+Mississippi, which, in 1832, became a leader in the movement
+toward the choice of the judges by popular election, in her
+latest Constitution (of 1890) follows the plan of the United
+States, the Governor nominating and the Senate confirming.
+
+The action of the confirming or electing body when unfavorable in
+any State has generally been unfortunate. It is apt to be
+affected by local or personal political influence to which the
+chief executive would be insensible. A large number of able men
+have thus, from time to time, been deprived of a seat on the
+Supreme Court of the United States who would have added to its
+luster. In 1867 Massachusetts lost a Chief Justice of the first
+rank in this way by the defeat of Benjamin F. Thomas. The
+council refused, by a majority of one, to confirm his nomination
+because, though of the same party with them, he was of a
+different wing.[Footnote: Proceedings Mass. Historical Society,
+2d Series, XIV, 301.]
+
+In most of the States the judges are now elected by the
+people.[Footnote: In thirty-three. In one other (Florida) the
+people elect the judges of the Supreme Court, and the Governor,
+with the advice and consent of the Senate, appoints those of the
+superior courts. The Governor nominates in Delaware, Mississippi
+and New Jersey, and in the four largest New England States. In
+Rhode Island and Vermont, South Carolina and Virginia, the
+legislature elects.] This makes the choice more a political
+affair. The nominations are made by party conventions, and
+generally in connection with others of a purely political
+character. It also, in case of a nomination for re-election,
+places a judge on the bench in the disagreeable position of being
+a candidate for popular favor at the polls and an object of
+public criticism by the political press.
+
+In 1902 a justice of the Supreme Court of Michigan was nominated
+for re-election. There was an opposing candidate, some of whose
+friends published a statement that in the nine years during which
+the justice had already served he had written opinions in 68
+railroad and street railway cases of which 51 were in favor of
+the companies. He was re-elected, but some time afterwards this
+fact was reprinted in a local periodical accompanied by the
+remark that "we must conclude that either the railroad and
+railway companies--4 to 1--had exceptionally good cases from the
+standpoint of law and justice or his Honor's mind was somewhat
+warped in their favor.... You can't expurge mental prejudice
+from judicial opinions any more than you can from the reasonings
+of theologians and atheists.... To imagine a justice deciding a
+case against his personal interests is too great a stretch of
+imagination for us to appreciate."
+
+A less brutal but more dangerous attack, made in 1903 by a
+religious newspaper, illustrates the same evil. The Supreme
+Court of Nebraska has decided that under their Constitution the
+Bible cannot be used in the public schools. It was, of course, a
+pure question of the construction of a law, for the policy of
+which the court had no responsibility. The newspaper in
+question[Footnote: The Boston _Congregationalist_ of Oct. 3,
+1903.] which, though published in the East, had some circulation
+in that State, printed this paragraph:
+
+"The Supreme Court judge of Nebraska who wrote the decision that
+the State constitution prohibits the use of the Bible in the
+public schools is standing for re-election, and the fact that he
+made such a decision is not forgotten by the Christian voters."
+
+In States the control of which by one of the great political
+parties is assured, the real contest is for the nomination, and
+here there is even more license for unfavorable comment on the
+judicial record of one who seeks it. In a Southern State there
+was such a struggle in 1903 for the nomination of the prevailing
+party for Governor. The person who then held that place desired
+it. So did one of the justices of the Supreme Court. It is said
+that the friends of the former circulated a cartoon representing
+the five justices together as five jackasses, and another in
+which the justice whom they were trying to run off the field was
+caricatured in the act of setting aside a verdict in favor of a
+child injured by a railway accident. The two candidates
+subsequently met upon the platform for a joint discussion of the
+issues before the people. The Governor sharply criticised the
+character of the Supreme Court. The judge caught him by the
+collar and was about to strike him when friends intervened, and
+an explanation of the remarks was made which was accepted as
+satisfactory.
+
+In the heat of a political campaign men do not always stop to
+measure words or weigh questions of propriety. The personal
+character and public acts of an opponent are a legitimate subject
+of description and comment. Sharp attacks must be expected as a
+natural incident of such a contest, and by candidates for
+judicial office as well as others. The public record of all for
+whom votes are asked at a public election must be the subject of
+open criticism, or there would be danger that unworthy men would
+succeed. To treat such observations as have been quoted upon
+opinions previously written by a candidate for re-election,
+however unseemly or unjust, as a contempt of court would be
+indirectly to impair the right of free suffrage.
+
+If assertions published as to acts done or words said are false,
+it does not follow that they are libellous. An honest mistake
+may be a defense for such a misstatement.[Footnote: Briggs
+_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
+Reporter, 513.]
+
+Judges of trial courts, when candidates for re-election, may
+expect the publication of similar attacks on rulings which they
+have made. The following dispatches, which appeared in the same
+issue of a local newspaper in Pennsylvania in 1903, when a county
+election was soon to occur, will sufficiently illustrate this:
+
+           HOT JUDICIAL FIGHT PROMISED FOR MERCER.
+           COUNTY WILL BE SCENE OF AN INTERESTING
+                STRUGGLE FOR SEATS IN THE
+                    LEGISLATURE.
+
+  Sharon, Pa., Dec. 25.--From present indications the coming
+  judicial fight in Mercer County will be a bitter one. Public
+  interest centers in the efforts of Judge S. H. Miller and his
+  friends to secure a re-election, and the attempts of his
+  opponents to place A. W. Williams of Sharon on the bench
+  instead. While the sole topic politically is on the judgeship,
+  the twenty or more candidates for Assembly are not losing the
+  opportunity of fixing their fences. They, too, have assumed a
+  reticence in regard to the matter of the judgeship. It is
+  expected that on the last lap of the race Williams and Miller
+  will be the only two men remaining. There are three other
+  candidates for the Republican nomination who have thus far
+  announced themselves. They are: W. J. Whieldon of Mercer;
+  W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
+  Judge Miller and A. W. Williams are the closest of friends.
+
+        JUDGE MILLER ASKS FOR MODERATION. BARS PURE
+            FOOD PROSECUTIONS BY REFUSING TO
+                SENTENCE THOSE CONVICTED.
+
+  Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
+  Warren has been confronted with a new proposition in his
+  crusade in Western Pennsylvania against violators of the pure
+  food laws. Judge S. H. Miller of Mercer County, before whom
+  several oleomargarine dealers were recently convicted for the
+  illegal sale of "oleo," has refused to sentence them on the
+  ground that the procedure of the State Pure Food Bureau is
+  persecution and lacking in equity. He takes the position that
+  grocers and saloon keepers, not being expert chemists, should
+  at least be warned previous to arrest, and be given a chance to
+  determine whether the foods they are handling are pure or
+  adulterated. Judge Miller's position is a serious impediment
+  in the way of the enforcement of the law, and Commissioner
+  Warren is preparing to take action that may compel him to
+  punish offenders convicted before him.
+
+Not infrequently in the judicial history of the United States
+there has been presented to a judge the choice between rendering
+a decision according to his opinion of the law and the facts and
+losing his seat, and rendering one according to public opinion,
+or the public opinion of his party friends, and keeping it.
+
+A judge of the High Court of Errors and Appeals in Mississippi
+was one of the earlier martyrs in the cause of judicial
+independence. The State had incurred a heavy bonded debt, which
+she found it inconvenient to pay. The Governor, who had approved
+the bills under which over $15,000,000 of the bonds had been
+issued, concluded in 1841, after the issue, that it was forbidden
+by the Constitution of the State, and issued a proclamation
+declaring them void. In a suit in chancery this question came up
+for decision in 1852. Meanwhile the policy of "Repudiation" had
+been made a political issue and the people had given it their
+approval by electing its advocates year after year to the highest
+offices. The chancellor upheld the validity of the bonds, and on
+appeal his decision was unanimously affirmed.[Footnote: State
+_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
+Sergeant S. Prentiss, II, 268.] A few months later the term of
+office of one of the judges who had concurred in this opinion
+expired, and the people put a successor in his place who held
+doctrines better suited to the public sentiment of the hour.
+
+In the days preceding the Civil War, the validity of the laws
+enacted by Congress to secure the recapture of slaves who had
+fled to the free States was frequently attacked in the press and
+on the platform. The Constitution expressly provided for such
+proceedings, and the Supreme Court of the United States in 1842
+had pronounced the "Fugitive Slave law" of 1793 to be valid in
+all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
+Reports, 539.] The principle of this decision plainly covered
+the later Act of 1850, but as public sentiment in the North
+became more and more uncompromising in its hostility to the
+existence of slavery under the flag of the United States, the
+State courts were not always strong enough to withstand the
+pressure to disregard precedents and let the Constitution give
+place to what the phrase of the time called a "higher law."
+
+In 1859, a citizen of Ohio was convicted in the District Court of
+the United States and sentenced to jail for rescuing a fugitive
+slave who had been recaptured in Ohio by an agent of his master,
+to whom he had been committed in proceedings under the Act of
+Congress. He was imprisoned in an Ohio jail, the United States
+then having none of their own, but placing all their convicts in
+State jails or prisons under a contract with the State to keep
+them for a certain price. His counsel applied to the judges of
+the Supreme Court at chambers for a writ of _habeas corpus_
+against the Ohio jailer. He produced his prisoner and submitted
+a copy of the warrant of commitment from the District Court. The
+public were extremely interested in the outcome of the
+proceedings. The Attorney-General of the State assisted in
+presenting the petitioner's case. The Governor was one of the
+multitude present in the crowded court room. The
+Attorney-General declared that the position that the Supreme
+Court of the United States had the power to decide conclusively
+as to the constitutionality of the laws of the United States and
+so tie the hands of the State authority was untenable and
+monstrous. "Georgia," he said, "hung Graves and Tassel over the
+writ of error of this same Supreme Court. God bless Georgia for
+that valiant and beneficent example."[Footnote: _Ex parte_
+Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
+sectional court composed of sectional men, judging sectional
+questions upon sectional influences."[Footnote: _Ibid._,
+161.]
+
+Of the five judges, three held that the constitutionality of the
+Fugitive Slave law was settled conclusively by repeated decisions
+of the Supreme Court of the United States, and that the State
+courts could not release the prisoner. Chief Justice Swan gave
+the leading opinion. Its positions were thoroughly distasteful
+to the people of Ohio. He knew they would be. His term, which
+was one of five years, expired in the following February, and the
+vacancy was to be filled at the State election in October. On
+the day before the judgment was announced he told his wife that
+this would be fatal to his re-election. "If the law makes it
+your duty to give such an opinion," said she, "do it, whatever
+happens." He gave it, and what they anticipated occurred. The
+convention of his party declined to renominate him. He resigned
+his office immediately after the election and retired to private
+life at an age and under circumstances which made it
+impracticable for him to re-enter the bar with success, but with
+the consolation of knowing that he had acted right.
+
+Chief Justice Day of Iowa, one of the ablest men who ever sat on
+her Supreme bench, in the same way lost a re-election by writing
+an opinion of the court, which announced a doctrine that was
+legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
+Reports, 543, 603.] His term was soon to expire. He, too, knew
+that this decision would prevent his renomination, and it did.
+
+In 1885, Chief Justice Cooley of Michigan, one of the great
+jurists and judges of the country, failed to secure a re-election
+to its Supreme Court, which he had adorned for twenty-one years,
+largely on account of an opinion which he had written supporting
+a large verdict against a Detroit newspaper for libel. The
+newspaper, upon his renomination, described him as a railroad
+judge, and kept up a running fire through the campaign, which
+contributed materially to his defeat.
+
+Political contests cost money, and if judges appear as candidates
+for popular suffrage they are naturally expected to contribute to
+the expense. The other candidates on the same ticket do this,
+and if those nominated for the bench did not, somebody would have
+to do it for them, thus bringing them under obligations that
+might have an unfortunate appearance, if not an unfortunate
+effect. In New York, where some of the judicial salaries are
+higher than anywhere else in the country, and the terms for the
+highest places are long (fourteen years), it has been customary
+for those placed in nomination to contribute a large sum to the
+campaign expenses of their party. This is tacitly understood to
+be a condition of their accepting the nomination, and the amount
+to be paid is fixed by party practice. For an original
+nomination by the party in power, it is said to be about equal to
+a year's salary; for a renomination half that sum may suffice.
+
+But a judge holding office by popular election must
+in any case owe something to somebody for supporting
+his candidacy. He is therefore under a natural inclination
+to use his power, so far as he properly can, in
+such a way as to show that he has not forgotten what
+his friends have done for him. There is always a
+certain amount of judicial patronage to be bestowed.
+There are clerks and messengers, trustees and receivers,
+referees and committees, perhaps public prosecuting
+attorneys and their assistants, to appoint. Other
+things being equal, no one would blame a judge for
+naming a political friend for such a position. But as
+to whether other things are equal he is to decide. To
+the most upright and fearless man the danger of this is
+great; to a weak or bad man the feeling of personal
+obligation will be controlling. Justice Barnard of the
+Supreme Court of New York once observed on the
+bench that judges had considerable patronage to be
+disposed of at their discretion, and that for his part
+he had always succeeded in life by helping his friends
+and not his enemies. For this practice, among other
+things, he was impeached and removed from office; but
+how many judges are there who yield to this temptation
+without avowing it?  A French critic of the
+elective judiciary has thus referred to these remarks
+of Justice Barnard:
+
+  Le Juge Barnard, qui formulait en plein tribunal cette
+  declaration de principes, fut decrete d'accusation et condamne,
+  non sans justes motifs. Mais son crime impardonable etait de
+  proclamer trop franchement les doctrines de la magistrature
+  elective: il trahissait le secret professionnel.[Footnote: Duc
+  De Noailles, _Cent Ans de Republique aux Etats-Unis_, II,
+  232.]
+
+Most of the old thirteen States in their first Constitutions
+provided that the judges of their highest courts should hold
+office during good behavior, or until seventy years of age. New
+York at first put the age of superannuation at sixty, but after
+losing by this the services of Chancellor Kent for some of his
+best and most fruitful years, postponed it to seventy. Georgia
+was the first to set the fashion of short terms. Her
+Constitution of 1798 provided that the judges of her highest
+court should be "elected" for three years, but that those of her
+inferior courts should be "appointed" by the legislature and hold
+during good behavior. The legislature construed this as allowing
+it to frame such a scheme of election as it thought best, and
+that adopted was for the House to nominate three, from whom the
+Senate elected one.[Footnote: Schouler, "Constitutional Studies,"
+65.]
+
+In all but three States (Massachusetts, New Hampshire and Rhode
+Island) at the present time all judges hold for a term of years,
+and as a general rule those of the higher courts have longer
+terms than those of the inferior ones. The change from life
+tenure to that for a term of years was partly due to several
+instances which occurred early in the nineteenth century, in
+which it was evident that judges had outlived their usefulness.
+Judge Pickering of the District Court of New Hampshire lost his
+reason, and to get rid of him it became necessary to go through
+the form of impeachment. In 1803, Judge Bradbury of the Supreme
+Judicial Court of Massachusetts, who had been incapacitated by
+paralysis, was displaced in the same way, though only a few
+months before his death. In 1822, an old man who was the chief
+judge of one of the judicial districts of Maryland was presented
+by the grand jury as a "serious grievance," on account of his
+habitual absence from court. His physician certified that his
+life would be hazarded if he undertook to attend, but the natural
+answer was that then he should resign.
+
+At present, for judges of the State courts of last resort, the
+term in Pennsylvania is twenty-one years (but with a prohibition
+of re-election); in Maryland, fifteen; in New York, fourteen; in
+California, Delaware, Louisiana, Virginia, and West Virginia,
+twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
+Illinois, and Mississippi, nine. The general average is eight,
+although that particular number obtains in but seven States. In
+eighteen it is six. The shortest term is two, and is found in
+Vermont. It may be noted that the original rule in Vermont was
+to elect judges annually. As compared with the terms of office
+prescribed at the middle of the nineteenth century, those at the
+opening of the twentieth are on the average decidedly longer.
+
+            *       *       *       *       *
+
+The compensation of most American judges is a fixed salary.
+
+In some States, courts of probate and insolvency, and in all
+justices of the peace when holding court, are paid by such fees
+as they may receive, at statutory rates, for business done. As
+in the case of sheriffs and clerks, judges under such a system
+sometimes receive a much larger official income than any one
+would venture to propose to give them were they to be paid for
+their services from the public treasury. A clerk of court often
+receives more than the judge, and some judges of probate and
+insolvency more than the Chief Justice of their State.
+
+In colonial times, judges were sometimes paid in part by fees, in
+part by occasional grants by the legislature, and in part by a
+regular stipend. This practice of legislative grants from time
+to time in addition to their salaries was continued in
+Massachusetts in favor of the justices of the Supreme Judicial
+Court for a quarter of a century, in the face of a Constitution
+which provided that they "should have honourable salaries
+ascertained and established by standing laws."[Footnote: Memoir
+of Chief Justice Parsons, 228.] It was evidently indefensible in
+principle, and to remove judges, as far as possible, from
+temptation either to court the favor or dread the displeasure of
+the legislature it is now generally provided in our American
+Constitutions that their salaries shall be neither increased nor
+decreased during the term for which they may have been elected by
+any subsequent change of the law. In a few States it is thought
+sufficient to guard against the consequences of legislative
+disfavor, and the Constitutions forbid only such a decrease of
+salary.
+
+The Chief Justice of the Supreme Court of the United States
+receives $13,000 a year and his associates $12,500. Circuit
+Judges have $7,000, and District Judges $6,000.
+
+In the States, the Chief Judge of the New York Court of Appeals
+receives $10,500 and his associates $10,000. The same salaries
+are given in Pennsylvania. In New Jersey, the Chancellor and the
+Chief Justice each receive $10,000 and the associate judges
+$9,000. In Massachusetts, the Chief Justice receives $8,500 and
+his associates $8,000. In the other States less is paid, the
+average for associate judges in the highest courts being about
+$4,350. Only nine States pay over $5,000. The Chief Justice in
+many receives $500 more. These salaries are, however, generally
+supplemented by a liberal allowance for expenses, and in some
+States each judge is provided with a clerk. In New York, this
+addition amounts to $3,700; in Connecticut, to $1,500; in
+Vermont, to $300.
+
+The salaries for the highest trial court generally closely
+approximate those paid to the judges of the Supreme Court, and in
+case of trial courts held in large cities are often greater.
+Those for the inferior courts are much lower.
+
+The judges of the principal _nisi prius_ court (which is
+misnamed the Supreme Court) in New York City are allowed by law
+to accept additional compensation from the county, and receive
+from that source more than from the State, their total official
+income being $17,500. The trial judges in Chicago also receive
+$10,000, although the highest appellate judges in the State have
+a salary of only $7,000.
+
+It is not surprising that American judicial salaries are no
+greater, but rather that they are so large. They are fixed by a
+legislature, the majority of the members of which are men of very
+moderate income, and when originally fixed in the older States it
+was often by men not altogether friendly to the judiciary. It
+was a saying of Aaron Burr, which was not wholly untrue in his
+day, that "every legislature in their treatment of the judiciary
+is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
+186.] Only the influence of the bar has carried through the
+successive increases which have been everywhere made.
+
+The first pension to a retired judge ever granted in the United
+States was one of $300 voted in Kentucky in 1803. It was offered
+to one of the members of the Court of Appeals to induce him to
+resign, but the year after his resignation the statute was
+repealed on the ground that it was unconstitutional.[Footnote:
+Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
+States have allowed their judges who have reached the age of
+seventy, after not less than ten years' service, to retire, at
+their option, receiving the full official salary during the
+remainder of their lives. Rhode Island gives hers the same
+privilege after twenty-five years' service, and Massachusetts and
+Maryland have somewhat similar provisions, except that the judges
+on retirement receive but part of what they formerly did. The
+Connecticut legislature is in the habit of appointing her judges,
+both of the Supreme and Superior Court, when retired at the age
+of seventy, State referees for life, with an allowance of $2,500
+for salary and expenses, their duties being to try such questions
+of fact as the courts may refer to them and to report their
+conclusions.
+
+Our State Constitutions now generally provide that judges shall
+hold no other public office. Some also provide that all votes
+for any of them for any other than a judicial office shall be
+void.
+
+            *       *       *       *       *
+
+Occasionally a judge, in order to eke out his official income,
+accepts a salaried position, calling for but little of his time,
+in a matter of private business employment. This, however, is
+rarely done and there are obvious objections to it when the
+employer is one likely to have business before the court. Many
+of the judges of the higher courts, including several of the
+justices of the Supreme Court of the United States, are
+professors or lecturers in law schools.
+
+The best mode of appointing judges is that which secures the best
+men. Such men are unlikely to accept a place on the bench of one
+of the higher courts, unless it carries with it some prospect of
+permanence. It does, if it comes to them by way of promotion
+after they have served acceptably for a length of time in an
+inferior court. But most judges must be taken from the bar and,
+save in very unusual cases, will be in large and active practice.
+This must be totally abandoned if they take one of the higher
+judicial positions; and if they take the lowest, must be made
+secondary to it. A lawyer's practice is more easily lost than
+gathered. If it is a solid one, it is of slow growth. For one
+who has turned from the bar to the bench to expect on retirement
+from office to resume his old practice would be to expect the
+impossible. He may have achieved a position by his judicial work
+which will enable him to take a better position at the bar; but
+in that case his clients will be mainly new ones. He is more
+likely, particularly if no longer young, to sink into a meagre
+office practice and feel the pinch of narrow means, always doubly
+sharp to one who by force of circumstances has a certain social
+standing to maintain. The leaders at the bar therefore seldom
+consent to go upon the bench unless they have property enough to
+ensure their comfortable support after they leave it, without
+returning to the labors of the bar.
+
+This is one of those evils which carry in some sort their own
+antidote. The lawyers, as a body, are always anxious for their
+own sake to have an able and independent bench. They do not wish
+to trust their causes, when they come before a court of last
+resort for final disposition, to men of inferior capacity and
+standing. They therefore can generally be relied on to urge on
+the nominating or appointing power the selection of competent
+men. Their influence in this respect is little short of
+controlling. If competent men will not ordinarily go on the
+bench of an appellate court, unless by way of promotion, until
+they have accumulated a sufficient fortune to make them
+comfortable in old age, then as competent men will usually, in
+one way or another, be selected, and as few of these are men who
+from their youth have been occupying judicial positions, the
+judges will usually be possessed of some independent means. A
+property qualification almost is thus imposed by circumstances on
+those forming the American judiciary in its highest places. The
+same thing is true of our higher diplomatic positions. As Goethe
+has said, there is a dignity in gold. It is a poor kind of
+dignity when unsupported by merit, but if to gold merit be
+joined, each lends to the other solidity and power.
+
+Among the men of the first eminence at the bar whom the
+meagerness of the salary has kept off the bench may be mentioned
+Jeremiah Mason, who declined the position of Chief Justice of New
+Hampshire on this account, and William Wirt. Wirt in 1802 was
+made one of the Chancellors of Virginia at the age of
+twenty-nine. The salary and fees amounted to about five hundred
+pounds a year. He married on the strength of it, but in a few
+months found that his income was insufficient to maintain his
+family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
+99.]
+
+Dignity and power, however, are strong attractions. Theophilus
+Parsons in 1806 left a practice worth $10,000 a year--the largest
+in New England in his day--to take the place of Chief Justice of
+Massachusetts on a salary of $2,500. After three years he sent
+in his resignation, saying that he found that this sum was
+insufficient for his support, even with the addition of the
+income from such property as he possessed. The legislature
+thereupon raised the salary to $3,500, and he remained on the
+bench through a long life.[Footnote: "Memoir of Chief Justice
+Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
+Island, who then had a practice of $8,000 a year, gave it up for
+the Chief Justiceship of the State, though the salary was then
+but $750, supplemented by some trifling fees. In a few years,
+however, he resigned the office on account of the inadequacy of
+the compensation.[Footnote: Payne, "Reminiscences of the Rhode
+Island Bar," 75.]
+
+The qualities of a judge are by no means the qualities of a
+politician. The faculty of looking at both sides of a question
+and the power of forming deliberate and well-considered judgments
+do not tell for much in a campaign speech. The politician's
+title to support is standing by his friends. The judge's duty
+may be to decide a cause against his friends. Many a lawyer of
+eminence might accept a nomination from a President or Governor
+involving no participation in a political election contest who
+would refuse one from a party convention.
+
+The general sentiment of thinking men in the United States is
+that judges should never be chosen by popular vote. It is,
+however, an unpopular sentiment. The people in general do not
+appreciate the difference between their fitness to select
+political rulers and to select judicial rulers--to choose out
+good men and to choose out good lawyers. And the people make and
+ought to make our Constitutions. Rufus Choate once said that the
+question at bottom was, Are you afraid to trust the people?  If
+you answer Yes, then they cry out that "he blasphemeth." If you
+answer No, they naturally reply, Then let them elect their
+judges.
+
+Jefferson was the first to suggest an elective judiciary, basing
+his opinion on a misconception of the usage in Connecticut.
+There, he wrote, the judges had been chosen by the people every
+six months for nearly two centuries, yet with few changes on the
+bench, "so powerful is the curb of incessant
+responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
+July 12, 1816, regarding a new Constitution for Virginia.] In
+fact, the Connecticut judges were chosen annually, and those not
+holding judicial powers as an incident of political ones were
+appointed by the legislature. The experiment of resorting to
+popular election was first fully tried in Mississippi in 1832,
+under the influence of Governor Henry T. Foote, but in later life
+he expressed his regret at the course which he had taken, and the
+belief that it had weakened the character of the bench.[Footnote:
+"Casket of Reminiscenses," 348.]
+
+The scheme of popular election may be pursued with reasonable
+success if the bar use all the influence at their command to
+secure both good nominations originally and the re-election of
+all who have served well.[Footnote: It is not uncommon for local
+bar associations after the party nominations for the bench have
+been made to refer them to a committee, on the report of which
+those deemed the best are commended for popular approval. In two
+judicial districts in Iowa, the lawyers nominate judges for the
+district in a convention of delegates from the bar, and then see
+to it that the nominations are ratified by the party conventions.
+Simon Fleischmann, "The Influence of the Bar in the Selection of
+Judges," Report of 28th annual meeting of the New York State Bar
+Association (1905).] A conspicuous instance of its success under
+such conditions is shown by the repeated re-election of Judge
+Joseph E. Gary of the criminal court of the city of Chicago.
+Originally elected in 1863, when it was called the Recorder's
+Court, he has been re-elected for successive terms of six years
+without a break, and in 1903, when he was 82 years old and still
+in active service on the bench, received well-merited addresses
+of congratulation from the Chicago Law Institute and the Chicago
+Bar Association. Judges of Probate, whose functions are largely
+of a business character, and who are brought into close contact
+with the people at first hand, are frequently re-elected for a
+long period of years with little regard to their party
+affiliations.[Footnote: In the Probate District of Hartford in
+Connecticut there have been but two judges during the last forty
+years, though the elections have been annual or biennial.]
+
+In case of those having long terms of office, a re-election comes
+more easily and commonly. A man who has been ten or twenty years
+upon the bench has become set apart from the community. The
+people have ceased to think of him as one of themselves, so far
+as the active political and business life of the day is
+concerned. His position and his work, if it has been good, have
+given him a certain elevation of station. Men have learned to
+trust him, and to feel that his presence on the court helps to
+make liberty and property more secure. If he receives his party
+nomination, he is apt to secure a majority of votes, whether the
+others on the ticket are or are not elected. The opposing party
+often nominates him also, and sometimes, if his own gives the
+nomination to another, nominates him itself, and with success.
+
+In New York it has been generally the case that a good judge of
+the Court of Appeals or Supreme Court is re-elected until he
+reaches the age limit set by the Constitution. To accomplish
+this, however, it has been necessary for the bar to use constant
+efforts to bring the nominating conventions of both parties to
+the support of the same man or men, and personal ambition and
+party feeling have on a number of occasions set up an effectual
+bar. Before a recent election of two judges in that State, in
+preparation for which a scheme had been suggested by which one of
+the outgoing judges of each party should be re-elected, a third
+candidate for the succession, himself a prominent member of the
+bar and an officer of the State, published a lengthy statement of
+his claims, which concluded thus:
+
+"I am a candidate for nomination to the office of Associate Judge
+of the Court of Appeals at the coming Democratic State
+Convention. I appeal to my fellow-citizens for their support.
+While I do not believe that support for judicial candidacy should
+be unduly importuned, I feel that the present circumstances
+justify me in making this announcement. I have always stood by
+my party in its dark days, when others voted the Republican
+ticket in the interest of their business. I have assisted in
+endeavors to so shape its policies as to make success possible.
+Now that this has been accomplished, I do not think that my
+fellow-Democrats will thrust me aside to make way for those who
+neither affiliate with the party nor vote its ticket."
+
+As a general rule, in the country at large political
+considerations are decisive, both in cases of popular election
+and of executive nomination, but as to the latter exceptions are
+more frequent. One instance has occurred in which a President of
+the United States nominated to the Supreme Court a member of the
+party in opposition to the administration,[Footnote: Howell
+E. Jackson, a Democrat, was thus appointed by President Harrison,
+a Republican, in 1893. President Taft, a Republican, has since
+appointed two Democrats, justices Lurton and Lamar, and made a
+third Chief Justice.] and the same President, upon the creation
+of the Circuit Court of Appeals, when there were a number of new
+judges to be appointed, gave several of the places to those not
+of his political faith. It is, however, to be expected that the
+Presidents of the United States, as a general rule, will place
+upon the Supreme Court none whose political opinions are not
+similar to their own. It is a court wielding too great a
+political power to allow this ground of qualification to be
+lightly passed over.
+
+Precisely because of this, the political antecedents of the
+justices of the Supreme Court are more apt to be discoverable in
+their opinions than is the case in State courts. Professor
+William G. Sumner, in referring to the change of character of the
+Supreme Court by reason of Jackson's appointments to it, remarks
+with some truth that "the effect of political appointments to the
+bench is always traceable after two or three years in the
+reports, which come to read like a collection of old stump
+speeches."[Footnote: "Life of Andrew Jackson," 363.]
+
+In States where the judges are only appointed for a certain term
+of years, it is not unusual for the Governor, if he has the power
+of nomination, to exercise it in favor of outgoing judges who are
+his political opponents. So, also, if there happen to be several
+original vacancies to fill, it is the traditional method in a few
+States to give one of the places to a member of the opposition
+party. If the election belongs to the legislature, a similar
+practice prevails in some of the older States. In Connecticut
+but six instances of refusing a re-election to judges of the
+higher courts for mere party reasons have occurred for more than
+a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
+Trumbull were dropped in 1818 and 1819 as an incident of the
+political revolution which destroyed the Federalist party in
+Connecticut and brought about the adoption of a Constitution,
+under which the judges were to hold for life, to replace the
+royal charter. Judges Seymour and Waldo were dropped in 1863
+during the Civil War, because they were classed with the "Peace
+Democrats." Their successors, however, were appointed from the
+"War Democrats," though the legislature was Republican.] In
+Vermont, where elections to the Supreme Court were annual, Judge
+Redfield was placed on the Supreme bench and then re-elected year
+after year for twenty-three successive years by legislatures
+controlled by the party politically opposed to him.[Footnote:
+Edward J. Phelps, "Orations and Essays," 220.]
+
+In a few States it is not customary for his party to renominate a
+judge more than once. Two terms are considered enough for one
+man, and when he has served them he should make room for some one
+else. Many a judge has thus been taken from the bench at a time
+when, with the aid of experience, he was doing his best work.
+
+Appointments to appellate courts are generally provided for by a
+scheme calculated to prevent any sudden and general changes of
+membership. Not more than one or two receive an appointment in
+any one year, so that the terms of not more than one or two can
+expire at the same time. Where judges hold for life or--as is
+frequently the case--if there is a constitutional provision that
+no judge shall hold office after reaching the age of seventy, the
+vacancies will, of course, occur and be filled at irregular
+intervals. All this, in connection with the natural tendency to
+reappoint judges who have earned the public confidence, secures
+to the court a certain continuity of existence and consistency of
+view. In every court of last resort in the older States there
+will be apt to be found some who have served ten or twenty years
+and were at first associated with those who had themselves then
+served as long. It is not easy to "pack" a court thus
+constituted. If, however, some question of supreme political
+importance is looming up, likely soon to become the subject of
+litigation, the nominating or appointing power is not likely to
+be insensible of the party advantages that may result from its
+decision in a particular way by the highest judicial authority,
+nor of the importance of the vote to be cast by each who may
+share in its administration.
+
+During the Civil War Congress passed a conscription law. The
+Supreme Court of Pennsylvania pronounced it unconstitutional, and
+advised the issue of a temporary injunction to prevent its
+enforcement by the officials charged with that function. The
+term of the Chief Justice was about to expire. The decision had
+been made by three judges, of whom he was one, against two who
+dissented. The political party to which he belonged renominated
+him, but he was defeated at the polls. A motion was soon
+afterwards made to dissolve the injunction. His successor joined
+with the former minority in advising that the motion be granted,
+and on the ground that the Act of Congress was not
+unconstitutional. The two remaining members of the court adhered
+to their former opinion.[Footnote: Kneedler _v._ Lane, 45
+Penn. State Reports, 238. See this case reviewed in Pomeroy,
+"Introduction to the Constitutional Law of the United States,"
+Sec. 479.]
+
+In some States the justices of the Supreme Court select one of
+their number annually to be Chief Justice for the year ensuing.
+In several, whenever there is a vacancy, the office falls, as of
+course, to the justice who has the shortest time to serve. This
+is a ready way to pass a title about and attach it to as many men
+as possible in quick succession. Its ostensible defense is that
+there can be no unfair discrimination and favoritism in such an
+appointment, and that as the judge whose term has most nearly
+elapsed will naturally be the one who has served the longest, he
+will certainly have the advantages of experience. These
+considerations deserve little weight in view of the sacrifices
+that such a scheme entails. Unfair discrimination is indeed
+prevented, but so is a just and proper discrimination. The plan
+of promoting the senior associate justice when a vacancy occurs
+is liable to similar objections, though in less degree. He is at
+least not unlikely to serve for a considerable time.
+
+To be a good Chief Justice requires special gifts. Whoever holds
+that office should have not only learning and ability, but
+patience and courtesy in a high degree. He must be methodical in
+the transaction of business, if the docket of the court is a
+large one. He should have the art of presiding over its public
+sessions and disposing of the minor motions which may be made
+from the bar with dignity and tact. He should be a man who
+commonly carries his associates with him at its private
+consultations in support of any doctrine which he is firmly
+convinced to be the law applicable to the case in hand. He
+should have the faculty of conciliation. He should know when to
+yield as well as to insist, in order to secure the best results
+for his court and for his State. He should be able to write a
+clear and forcible opinion. The best lawyer in the jurisdiction
+who may be supposed to have these qualities and will accept the
+position ought to be at the head of its judiciary. Many have
+been tempted from the bar by an offer of that place who would
+have refused the appointment of associate justice. John Marshall
+was one of these. Chief Justice Parsons of Massachusetts was
+another. In the Supreme Court of the United States no Chief
+Justice has ever been appointed from among the associate
+justices, although a nomination was offered to and declined by
+Mr. Justice Cushing in 1796. In the State courts the general
+practice is to the contrary, and it is common to fill a vacancy
+by appointing one of the associate justices.
+
+Popular election and life tenure cannot well go together. The
+chance of an irremediable mistake is too great. Judicial
+nominations are often the mere incident of the prevalence in a
+party convention of one faction of the delegates, whose main
+object is to control the nominations for other positions.
+American experience seems to indicate life tenure and executive
+nomination, with some suitable provision for securing retirement
+at a certain age, as likely to secure the best judges of the
+higher courts. This has worked well for the United States, and
+no State courts have stood higher in the general opinion of the
+bar than those thus organized. For the lower courts there is
+less necessity and less chance for getting men of the first rank
+in attainments and character. Shorter terms of office can
+therefore reasonably be prescribed, and the objections to popular
+election are correspondingly less. Even as to them, however, the
+plan of executive nomination is safer than that of party
+nomination. A man acts carefully when he is the only one whom
+the public can hold responsible for what is done.
+
+It is customary to provide that vacancies in judicial offices can
+be temporarily filled by the Executive until there is an
+opportunity for a new appointment or election by the proper
+authority.
+
+The place of a judge who is absent or disqualified is in some
+States, by authority of a statute or agreement of the parties,
+occasionally taken by a member of the bar called in to try a
+particular cause or hold a particular term of court.[Footnote:
+See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
+_v._ Brown, 32 Connecticut Reports, 112.] So the English
+assize judges are constituted by special commissions for each
+circuit, which include also the barristers on the circuit who are
+sergeants at law, king's counsel, or holders of patents of
+precedence.
+
+It is hard to dislodge a judge for misconduct or inefficiency.
+Our Constitutions give remedies by impeachment or by removal by
+the Governor on address of the legislature, but lengthy
+proceedings are generally necessary to obtain the benefit of
+them, and the decision is often in favor of the judge. Party
+feeling is apt to have its influence in such matters. Whether it
+does or does not, it is an unpleasant task to assume the
+initiative. Those who best know the facts are the lawyers, and
+if some of them are the ones to move, it is at the risk, should
+they fail, of having afterwards to conduct causes in a court
+presided over by one who is not likely to regard them with a
+friendly eye.
+
+The number of judicial impeachments in the history of the country
+has been comparatively small, and few of these have resulted in
+convictions.[Footnote: See Chap. III.] Of the cases which were
+successful, the most noteworthy is that of Justice George
+G. Barnard of the Supreme Court of New York, who was convicted of
+having abused his right to issue _ex parte_ orders and of
+other measures of improper favoritism. The Bar Association of
+the City of New York brought the charges, and were influential in
+carrying the whole proceeding through to a favorable result. In
+another instance, occurring in 1854 in Massachusetts, the right
+of impeachment was stretched to its limit by removing a Judge of
+Probate, Edward G. Loring, the only real ground being that as a
+United States Commissioner he had ordered the return of a
+fugitive slave under the laws of the United States--laws the
+constitutionality of which the highest court of the State had
+recently declared to be fully settled.[Footnote: Sims' Case, 7
+Cushing's Reports, 285.]
+
+Judges of inferior courts are sometimes removable by the higher
+ones for cause, on complaint of a public prosecutor. In such
+case, the proceeding being strictly a judicial one, there is more
+assurance of success if the charges are well founded. Here also,
+however, it will be known from whom they come, and the hearings
+are likely to be so protracted and expensive to the State that
+only a flagrant case will usually be taken up. The hearings on
+such a complaint, brought in New York in 1903, extended over
+thirty-six days; the stenographic minutes of the testimony
+covered over 3,300 pages; there were over four hundred exhibits
+introduced; and the items of cost presented for taxation amounted
+to over $20,000.
+
+Removals by the Governor on the address of the legislature have
+been more frequent, and occasionally have been dictated largely
+by party managers who desired to make places for those of their
+own political faith.[Footnote: Schouler, "Constitutional
+Studies," 288, note.] In one instance it was attempted, but
+unsuccessfully, in Kentucky as a punishment for giving a judicial
+opinion that a stay-law recently passed by the legislature was
+unconstitutional. A two-thirds vote of each house was required,
+and as in the lower house, though it voted for an address by a
+large majority, this could not be obtained, the proceeding was
+allowed to drop.[Footnote: Niles' Register, XXII, 266. See
+_ante_ p. 114.] In all there have been in the whole country
+since 1776 not over thirty removals, whether on impeachment and
+conviction or on address of the two houses, of judges of a higher
+grade than justices of the peace.[Footnote: See Foster,
+"Commentaries on the Constitution of the United States,"
+Appendix, 633.]
+
+Wholesale removals have also, in rare instances, been effected
+for similar purposes by abolishing courts, the judges of which
+held during good behavior.[Footnote: See Chap. VII.] Maryland
+was the first to do this, abolishing a court and re-establishing
+it at the same session, almost in the words of the former law.
+Congress followed in 1802 by repealing the statute of the year
+before by which a new scheme of Circuit Courts was arranged and
+under which sixteen Federalists had been appointed to the bench.
+Massachusetts did the same thing in 1811 with respect to her
+Courts of Common Pleas.[Footnote: See Chap. VIII.]
+
+The occurrence of vacancies has sometimes been prevented in a
+similar manner when the nominating or appointing authority was
+politically opposed to the legislature. The existence of a
+supreme court is required by all our Constitutions, but the
+number of the judges is frequently left to be fixed from time to
+time by statute. The Federalists, when they were about to go out
+of power, provided that the Supreme Court of the United States
+should on the next vacancy be reduced from six to five, thus
+seeking to prevent Jefferson from filling such vacancy. By 1863
+the number had been raised to ten, but three years later, when a
+Democratic President was contending with a Republican Congress,
+it was enacted that as vacancies might occur it should be reduced
+to seven. In 1869, when a Republican President had come in, the
+number was restored to nine, and the new justice for whom a place
+was thus made shortly joined in reversing a decision made by the
+court not long before and quite unsatisfactory to the majority in
+Congress on an important constitutional point. Similar
+legislation, for like reasons, has been had in many of the
+States.
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXIII
+
+
+      THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
+                        BENCH
+
+
+Every lawyer is an officer of the court as fully as is the judge
+or the clerk. He has, indeed, a longer term of office than is
+generally accorded to them, for he holds his position for life,
+or during good behavior.
+
+Courts could not exist under the American system without lawyers
+to stand between litigants and the judge or jury. It is a system
+that requires written pleadings, originally very artificial in
+form and still somewhat so. It imposes many limitations on the
+introduction of evidence, which often seem to shut out what ought
+to be admitted, and rest on reasons not apparent to any who have
+not been specially instructed in legal history. It divides the
+decision of a cause between judge and jury in a manner only to be
+understood after a long and close study. It gives a defeated
+party a right of review dependent on a number of technical rules,
+and to be availed of only by those who are skilled in the
+preparation of law papers of a peculiar kind.
+
+A class of men has therefore been set apart to keep the people
+from direct approach to the bench, except when they may desire to
+argue their own cases, which rarely occurs.
+
+In England there are two such barriers, the class of barristers
+and the class of attorneys. The attorneys keep the people from
+access to the barristers; the barristers keep the attorneys from
+access to the court. The attorney prepares the case, represents
+his client in the proceedings preliminary to the trial, and
+assists the barrister whom he may retain at the trial, but cannot
+examine a witness or argue the cause.
+
+In America we do not thus divide lawyers into two classes. There
+are many of them who never in fact address the court, but it is
+not because they have not a legal right to do so. Every member
+of the bar of any court has all the legal rights of any other
+member of it.
+
+The qualifications for admission to the bar are generally left to
+be regulated by the courts. In a few States they are fixed by
+constitutional or statutory provisions. In all, when the
+Constitutions do not regulate it, the legislature can. It has
+indeed been asserted that the admission of attorneys is in its
+nature a matter for the courts only.[Footnote: See _American
+Law School Review_, I, 211.] English history does not support
+this contention.[Footnote: Pollock & Maitland, "History of
+English Law," I, 211-217; II, 226. O'Brien's Petition, 79
+Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
+Court, which are mere voluntary associations of lawyers, have
+from time immemorial exercised the function of calling to the
+bar, so far as barristers are concerned, and the admission of
+attorneys has always been regulated by Acts of
+Parliament.[Footnote: See In the Matter of Cooper, 22
+N. Y. Reports, 67, 90.] By our American legislatures the same
+course has been generally pursued.
+
+The duty of ascertaining whether candidates for admission have
+the prescribed qualifications is occasionally performed by the
+judges in person; more often by a committee of the bar appointed
+by the court for that purpose; in some States by a standing board
+of State examiners, receiving compensation for their
+services.[Footnote: This comes from fees paid by those examined.]
+The latter method was introduced in the latter part of the
+nineteenth century and is steadily gaining in favor. A committee
+of a local bar is unavoidably subject to some local influences or
+prepossessions. A State board can act with greater independence
+and maintain with more ease a high standard of admission.
+
+In early colonial days the legislature sometimes set a limit to
+the number of attorneys who could be allowed to practice before
+the courts. In some colonies the number at the bar of a
+particular court was fixed; in others the number of lawyers in
+each county.[Footnote: Acts and Laws of the Colony of Conn., May
+session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
+No such limitation now exists in any State, and the matter is
+left to be regulated by the law of supply and demand. This by
+the census of 1900 required over 114,000.
+
+The freer a country is, and the quicker its step in the march of
+civilization, the more lawyers it will naturally have. The
+growth and importance of the bar are stunted wherever it is
+overshadowed by an hereditary aristocracy. A land of absolutism
+and stagnation has no use for lawyers. The institutions of China
+would not be safe if she had a bar. Lawyers are a conservative
+force in a free country; an upheaving force under a despotic
+government. In Russia one is found enough to serve over thirty
+thousand; in the United States there is about one to every six
+hundred and sixty of the population,[Footnote: In 1870, there was
+one to every 946; in 1880, one to every 782.] and in England one
+to every eleven hundred.
+
+The colonial lawyers of the seventeenth and eighteenth centuries
+occupied an inferior place in the community as compared with that
+now held by the legal profession. There was comparatively little
+opportunity to rise to eminence. The positions on the bench, as
+has been seen, were largely held by those not trained as lawyers.
+Before such judges it was a waste of words to make elaborate
+arguments on points of law.
+
+Among the first settlers were a few who had been educated for the
+English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
+drafted the _Magna Charta_ or "Body of Liberties" of that
+colony, adopted in 1641. His opinion of the need of lawyers may
+be inferred from the fact that it provided expressly that those
+who pleaded causes for others should receive no compensation for
+it. Virginia adopted the same policy from 1645 to 1662. Later,
+lawyers practicing in Massachusetts were excluded from the
+General Court. As that had large judicial powers, it was thought
+fitting to give no opportunity to any to sit there to-day to
+judge and to appear to-morrow before an inferior court to argue
+as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
+III, 104.]
+
+As time went on, an American was occasionally sent to London to
+read law. He was apt to be a young man of fortune, who entered
+the Temple or the Inns of Court more as a means of gaining
+pleasant acquaintances than for any serious purpose of education.
+Most of them came from Pennsylvania and the Southern colonies.
+Two Presidents of the Continental Congress, Randolph and McKean,
+four signers of the Declaration of Independence, Heyward, Lynch,
+Middleton, Edward Rutledge, and John Rutledge, one of the first
+associate justices of the Supreme Court of the United States,
+were of the number.
+
+Not infrequently there were legal proceedings in London which
+concerned colonial interests. Their charters were attacked or
+colony laws and judgments put in question before the Lords of
+Trade and Plantations. In such proceedings, if counsel were
+needed, English barristers were generally employed. An American
+lawyer now and then went over to consult with them and perhaps to
+join in the argument, but the leading part was theirs.
+
+It was not until the quickening and deepening of American life
+which preceded and portended the Revolution that anything like a
+colonial bar, led by a man of learning and position, really came
+into existence.[Footnote: "Two Centuries' Growth of American
+Law," 16.] From the middle of the eighteenth century to its
+close there was a steady and rapid progress in this direction.
+Legal education was taken seriously. In the case of many it
+began with the fundamental notions of justice and right. The
+Greek and Latin classics on those heads were read.[Footnote:
+"Life of Peter Van Schaick," 9.] The private law of the Romans
+was studied to a greater extent relatively than it is now. The
+first chair of law in the United States was established at
+William and Mary College in 1779, and there, under Chancellor
+Wythe, John Marshall was a student. President Stiles of Yale, in
+his "Literary Diary," so full of that kind of historical incident
+which after a few years have passed it is most difficult to
+trace, enumerates the books read by his son, Ezra Stiles, Jr.,
+between 1778 and 1781, in preparation for the Connecticut bar,
+under the advice and in the offices of Judge Parker of Portsmouth
+and Charles Chauncey of New Haven. They comprehended, besides
+much in English and Scotch law, Burlamaqui's _Principes de
+Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
+Institutes of Justinian, certain titles of the Pandects, and
+Puffendorf _de Officio Hominis et Civis juxta Legem
+Naturalem_. James Kent at about the same time was reading
+Grotius and Puffendorf in the office of the Attorney-General of
+New York, and Edward Livingston, under Chancellor Lansing,
+explored all parts of the _Corpus Juris Civilis_.[Footnote:
+Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
+years later, under the instruction of Chief Justice Parsons of
+Massachusetts, took up Vattel and the Institutes of
+Justinian.[Footnote: Report of the American Bar Association for
+1903, 675, note.] The latter, as well as Van Muyden's
+_Compendiosa Tractatio_ of them, his father had studied in
+his preparation for the bar thirty years before.[Footnote: "Life
+and Works of John Adams," I, 46.]
+
+The lectures of Chancellor Wythe at William and Mary, like those
+of Mr. Justice Wilson in 1790 at the University of Pennsylvania
+and of Chancellor Kent in 1794 at Columbia, were designed, as
+were Blackstone's at Oxford, to give such information as to the
+nature and principles of law as might be of service to any one
+desirous of acquiring a liberal education. Such instruction
+could not be considered as anything approaching a proper
+preparation for entering on the practice of the legal profession.
+
+The United States preceded England in the endeavor to provide
+such a preparation by a systematic course of study pursued under
+competent teachers at a seat of learning established for that
+sole purpose.
+
+The need of something of the kind was felt to be pressing after
+the independence of the United States had been fully established.
+An unusual number of young men of promise were turning from the
+army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
+the number of attorneys in the State of New York had risen to
+120. Morse's "American Geography," ed. 1796, 506. Thirty years
+later it was 1,200. Miles' "Register," XIV, 311.] Those already
+members of it had educated themselves as best they could, with
+slight assistance from the lawyers in whose offices they had
+studied. They in turn were indisposed to do more for such as
+might desire to read law in their offices. Few of them were
+competent to do much.[Footnote: See "Life of Peter Van Schaick,"
+9, 13.]
+
+There was a demand for a professed school of law, and in 1784 the
+first in any English-speaking country was opened at Litchfield,
+Connecticut. There are now 104 of them,[Footnote: Report of the
+American Bar Association for 1903, p. 398.] with a total
+attendance of over fourteen thousand students. The course of
+study in a few may be completed in one year; in most two are
+required; in the rest three, with perhaps an offer of a fourth
+for advanced instruction leading to the degree of master or
+doctor of laws. The ordinary degree is that of bachelor of laws
+(LL.B.).
+
+The American Bar Association has had an important influence from
+its first organization, in 1877, in prolonging the period and
+raising the standards of legal education. In affiliation with it
+there is an "Association of American Law Schools," representing a
+large majority of the teachers and students engaged in law school
+work. This admits no institution into its ranks at which
+students are received without a preliminary education at least
+equal to that given by the ordinary high school. A few of the
+schools so associated receive no student, save in exceptional
+cases, unless he already holds a degree in arts, science,
+philosophy, or letters from some collegiate institution.
+
+In several of the States having boards of State examiners no one
+is admitted to the final examination before them who did not
+prior to the beginning of his education receive one of the
+degrees above indicated or else pass a special examination before
+the same board on certain prescribed studies, corresponding
+substantially with those ordinarily pursued in a high school.
+
+Some proof is everywhere required that an applicant for admission
+to the bar possesses a good moral character. It is necessarily
+largely a matter of form. Certificates are sometimes required
+from those familiar with his previous life, and sometimes the
+mere motion for his admission by a member of the bar representing
+the examining committee is accepted as sufficiently implying that
+no unworthy person would be thus presented.
+
+In a few States a distinction is made between attorneys with
+reference to the courts in which they may practice. When first
+admitted it is to the bar of the trial courts. Later, after a
+few years of experience, they can be admitted on further
+examination to practice also in the highest courts of the State.
+
+This distinction reaches back, in New Jersey, to the colonial
+era. Attorneys were there a different class from "counsellors,"
+and, following the English practice, the style of "sergeant" was
+also formerly bestowed on leaders at the bar. The last lawyer
+bearing the title survived until nearly the middle of the
+nineteenth century. In this State the Governor has always issued
+the licenses or commissions to attorneys and solicitors in
+chancery, but for more than a hundred and fifty years only on the
+recommendation of the Supreme Court.[Footnote: _In re_
+Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]
+
+The admission of attorneys in the several courts of the United
+States is determined by rules which they respectively establish
+from time to time. These rules make the only qualification
+membership in regular standing for a certain period of time in
+the bar of a State and good moral character.
+
+There is no doubt that the United States have been in advance of
+England both in providing means of legal education and in
+requiring their use. The length of the course of study now
+established at our older Law Schools--three years--seems all that
+can reasonably be exacted, if a proper foundation of general
+discipline and knowledge has been previously laid. The first
+provision for one or more years of graduate study for those who
+may desire it was made at Yale University in 1876, and a similar
+opportunity has since been offered at several others; but it has
+been availed of by few, and of these a considerable part had in
+view the teaching of law as their ultimate vocation rather than
+its practice.
+
+Unquestionably the American bar is now, as a whole, a far better
+trained class of men than it was twenty or thirty years ago, and
+the efficiency of the courts has been correspondingly increased.
+
+            *       *       *       *       *
+
+Members of the bar are always subject to punishment by the court
+for official misconduct. This may be by censure, temporary
+suspension from practice, or disbarment. If guilty of contempt
+of court, they can also be sentenced to fine or
+imprisonment.[Footnote: See Chap. XX.] As suspension or
+disbarment means a loss, temporary or permanent, of a livelihood,
+it is only ordered in aggravated cases and after an opportunity
+for a formal hearing.
+
+Disbarment cannot be decreed by the legislative department. That
+would be virtually an act of attainder. It must come from a
+judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's
+Reports, 333, 378.]
+
+In some States the principal trial court, which is the one by
+order of which attorneys generally are admitted to the bar,
+appoints a standing committee on grievances. In others such
+committees are created by Bar Associations, of which almost every
+State has one for the whole State, while several have also one or
+more local associations. It is the duty of such a committee to
+inquire into any instances of professional misconduct that may be
+brought to their notice and either institute proceedings for a
+hearing before themselves or bring the matter to the attention of
+the court, so that they may be instituted there by its order and
+conducted by the public prosecutor. In the larger States,
+several inquiries of this nature are ordinarily set on foot every
+year, which result in suspension or disbarment. In the smaller
+States they are rare, both because they have smaller bars and
+because the smaller a bar is the more difficult is it for any one
+of its number to hide any misdoing from the rest.
+
+The Bar Associations, which first began to start up soon after
+the Civil War, have been of great service in upholding the honor
+of the profession. Their Constitutions generally name this
+particularly as among their professed objects. One
+State[Footnote: Alabama] has recently under such influences,
+passed a statute making it a misdemeanor for an attorney to send
+out "runners" to solicit practice, and requiring the public
+prosecuting officer to institute proceedings for any violation of
+the law, upon the complaint of the council of the State Bar
+Association.
+
+The steadily and rapidly increasing proportion of lawyers to the
+population in the United States necessarily tends to a lowering
+of their average professional income, and this tendency is not
+fully overcome by the increase of the wealth and business of the
+country. The principle of the concentration of industry also
+works against the great majority of them. Searching titles to
+real estate, for instance, was until the last half of the
+nineteenth century part of the business of every lawyer. It is
+now in the larger cities monopolized by certain firms or
+corporations, who own copies or abstracts of the public records,
+laboriously prepared, which give them special facilities for
+doing the work rapidly and well. So collecting uncontested debts
+was formerly the staple of many a lawyer's practice. The general
+abolition of imprisonment for debt about the middle of the
+nineteenth century rendered the process much more difficult and
+the fees less, and of late years great collection agencies,
+generally corporations, have sprung up, with an extensive system
+of correspondents among members of the bar, by whom most suits of
+such a nature are now brought under an agreement to divide their
+fees with the central bureau.
+
+Until the last half of the nineteenth century there were probably
+no lawyers in this country whose average net income from year to
+year was equal to that of the leaders of the English bar. In
+1806 there was but one lawyer in New England with an annual
+professional income of $10,000: until about 1860 there was none
+in Connecticut, and probably not over a hundred in the entire
+country.[Footnote: Parton, "Life of Aaron Burr." 153; Great
+American Lawyers, III, 55.] In 1827, William Wirt was informed
+by Justice Thompson of the Supreme Court of the United States
+that "six, eight, and ten thousand dollars is considered great
+practice in New York and ten thousand dollars the
+_maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"
+II, 209.] Thirty years later the same was true, except that
+twenty thousand dollars had then become the highest annual
+average, and that but of a very few.[Footnote: Parton, "Life of
+Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000
+when at the height of his career.[Footnote: Harvey,
+"Reminiscences of Daniel Webster," 84.]
+
+The Civil War was the occasion of many important business
+enterprises, and gave rise to much litigation. It brought also a
+great increase of wealth to the North and West, and new and
+greater investments of Northern capital in the South. From that
+time the business of the leading lawyers in every State became
+more remunerative. Incomes of $20,000 and $25,000 were
+occasionally earned in the smaller States, and of four or five
+times as much in the larger ones.
+
+The American lawyer of the eighteenth century was apt to have his
+office in his house. During the nineteenth century this became
+less and less common and is now comparatively rare. In cities
+certain streets, generally near the court-house, are crowded with
+lawyers' offices. These are generally over business stores, but
+in some places residential streets have been converted to this
+use, and what was formerly a handsome mansion will have the
+chambers of counsel on every floor.
+
+In many of the counties in Virginia chambers for the
+accommodation of the lawyers are built in the rear of the
+court-house on public ground. A small rent is paid by the
+occupants to the county. When court is about to open each day
+the crier calls out from one of the court-house windows the name
+of each lawyer to notify him of the fact.
+
+The relations of the bar to the bench assume a peculiar character
+under the conditions of American society. The judges stand
+closer to the lawyers in this country than in any other. All of
+them, unlike those of continental Europe, have been themselves
+practicing lawyers. The majority, unlike those of England, are
+young men, sitting in minor courts, who have generally left the
+bar for but a brief period, expecting, if not desiring, soon to
+return to it. Not a few hold court but one or two days in the
+week or one or two hours in the day, and for the rest of the time
+are actively engaged in professional practice before other
+courts. Those of the latter description always occupy a somewhat
+unfortunate position. The State does not expect them to devote
+themselves entirely to its service. It does not provide for
+their compensation on that basis. It expects them to continue
+the general practice of their profession, except so far as their
+judicial duties may necessarily prevent. They certainly cannot
+practice in their own court with propriety. Statutes to prevent
+it are not uncommon. For the same man to charge the jury one day
+as judge and address them the next in argument as counsel must
+tend to confuse their notions as to the weight they should give
+to what he says, and to lend it often a weight which it may not
+deserve. So, too, his relations to the clerk and other court
+officers are such officially as to give him opportunities for
+influencing them when he is engaged at the bar, not shared by his
+brother lawyers.[Footnote: French _v._ Waterbury, 72
+Conn. Reports, 435; 44 Atlantic Reporter, 740.]
+
+There are, however, in every State quite a number of judges of
+higher courts who receive a salary deemed sufficient for their
+support and who are expected to devote their entire time to
+judicial duties. As respects those of the United States courts
+there is a statute (U. S. Revised Statutes, Sec. 713) making it
+criminal for them to practice law. Similar legislation exists in
+some of the States with regard to the judges of their higher
+courts, but without it a sense of propriety dictates their
+abstaining from it, and it has even been held that the right of
+any judge of a superior trial court of general jurisdiction over
+important causes to act as an attorney or counsellor, except in
+his own cause, is suspended by implication of law so long as he
+retains his seat on the bench.[Footnote: Perry _v._ Bush, 45
+Florida Reports; 35 Southern Reporter, 225.]
+
+The demeanor of the judges to the bar is inevitably affected to
+some extent by their tenure of office. If they hold their places
+for life, they naturally are less sedulous to avoid giving
+offense and less ready to tolerate a poor or tedious argument. A
+greater distance is maintained for this cause between bench and
+bar in the federal courts than is usual in most of the State
+courts.
+
+No judge, however, desires to have the reputation of being
+overbearing, rough or impatient, and few are. Chief Justice
+Parsons of Massachusetts at one time fell into an inveterate
+habit on the circuit of checking counsel in argument rather
+curtly when they seemed to him to wander from the vital point.
+The leaders of the bar of Boston finally determined to stop it,
+and arranged at the next term at which he was to preside that
+whoever of them was thus treated should leave the court room.
+The first to address the court was checked in the usual manner,
+and observing that he regretted his argument seemed not worthy of
+the court's attention, took his papers and went out. The next
+met the same kind of interruption in the same way, and so on
+until the court room was cleared. The Chief Justice afterwards
+sought an explanation, received it in good part, and was forever
+cured of what had been a serious impediment to his usefulness on
+the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.]
+Occasionally a trial judge will have a similar lesson taught him
+by finding no business to be disposed of when he opens court, and
+learning later that the bar agreed to the continuance of all
+pending cases, because they did not care to trust him with them,
+or were disinclined to submit to his manner of conducting a
+hearing.
+
+Judges are universally desirous of securing the good opinion of
+the bar as respects their knowledge of law and powers of
+discrimination and analysis. The bar is their little world. It
+is a critical world, for in every case that is tried there will
+be one lawyer who is dissatisfied with the result, and likely to
+think the judge wrong rather than himself, if every proposition
+of law which he has asserted has not been conceded.
+
+It is much more common for American judges to be too tolerant of
+a waste of time by counsel than to be too impatient at
+it.[Footnote: See a striking instance of this tendency given in
+Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau,
+69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They
+dislike even to seem harsh. Most of them also hold office only
+for a term of years and do not forget that undue severity may
+jeopardize their re-election. This is one reason for the fact
+that at all points the bar are subject to fewer restrictions upon
+their conduct in the trial of causes in American courts than in
+those of most other countries. Another, and a more fundamental
+one, is that the judges and lawyers stand more nearly on the same
+level both in public regard and official position. The lawyer
+holds a more permanent office in the court than the judge. He is
+quite likely to be his superior in learning and ability. He
+belongs to a class that is influential in the community, and
+whose members usually share quite actively in the direction of
+party politics. The judge in most instances holds but a brief
+authority. He does not wish to parade it in such a manner as
+might seem offensive. He is in danger of seeming to parade it if
+he goes beyond what is necessary in regulating the conduct of the
+lawyers who may appear before him. The judge who keeps a rigid
+watch on the examination of witnesses to exclude all improper
+testimony, whether objection be made to it or not, declines to
+hear argument on matters that may appear to him too clear to
+justify it, and is impatient when argument on doubtful points is
+continued longer than he thinks worth while, may be respected,
+but he will never be popular. Trials for these reasons are
+longer in the United States than in England. Fewer summary
+rulings are made. More questionable evidence is admitted. More
+time is allowed to counsel in the argument of the cause, and more
+freedom in arguing points that may seem immaterial to the court.
+
+The broad liberty of appeal generally allowed is another reason
+for hesitation on the part of trial judges to interfere more than
+seems absolutely necessary with the management of a cause by
+counsel. It is not merely the legal right of appeal but the
+practice under it which is a peculiar feature of our judicial
+system. A foreign lawyer often hesitates to cross swords with
+the judge. He distrusts his own judgment if it differs from that
+of the court. He defers to the opinion of the bench, not only as
+stating the law of the case, but as probably stating the law of
+the land. He therefore seldom appeals on minor points of
+procedure, even if he could. In the United States probably one
+case in ten of all that go to trial is carried up for review on
+points of law; many of them mere matters of practice not
+affecting the merits of the cause.
+
+The American lawyer can also safely speak with freedom of the
+conduct of the government or of high officials should it come in
+question.
+
+Those in any court, high or low, who hope for a reappointment
+know that the best way to obtain it is to secure the good will of
+the bar. The reputation of a judge depends on the opinion which
+the lawyers have of him. The general public may be deceived as
+to his character, ability and attainments; the bar cannot be.
+
+In the public sessions of court there are few judges who are not
+impressed with the necessity of maintaining the dignity of their
+position as representing the power of the State. The lawyers
+recognize this feeling as just. It is common for them to rise as
+a body when the judge enters the bench. They find no difficulty
+in using the conventional style of address of "May it please the
+Court," or "May it please your Honor." When a ruling is made in
+the course of a trial the lawyer, whose client is adversely
+affected by it, accepts it without further discussion, simply
+reserving his exception, if he have one, for purposes of review
+in a higher court. If, in addressing the jury, counsel exceed
+the bounds of professional license in commenting on testimony or
+alluding to the character of the parties, the court will check
+them without hesitation.
+
+Less outward respect was shown toward the courts by the bar in
+former times than now, and it often received less courtesy of
+treatment from the bench. An incident occurring in Massachusetts
+about the beginning of the nineteenth century may serve as an
+illustration. Robert Treat Paine, a signer of the Declaration of
+Independence, resigned his seat on the bench of the Supreme
+Judicial Court in 1804, at the age of seventy, largely on account
+of deafness. Naturally somewhat imperious in temperament, his
+bearing toward the bar had seemed harsher from this infirmity.
+Fisher Ames used to refer to him as _Ursa Major_, and once
+told a friend that he should not go into court again, when Judge
+Paine held it, without a club in one hand and a speaking trumpet
+in the other. Theophilus Parsons, not long afterwards made Chief
+Justice of the State, was arguing before him one day when the
+judge, under the misconception into which a deaf old person so
+easily falls, that the younger generation all speak hurriedly and
+indistinctly, cried out, "Mr. Parsons, I tell you once for all,
+take that glove off your tongue." "Certainly, Sir," was the
+quick retort, "and may I beg your honor to take the wool out of
+your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]
+
+Some twenty years later Roger Minott Sherman, the leader of the
+Connecticut bar, in trying a cause before an empty-headed judge
+who had been put on the bench for no other apparent reason than
+that his father was a man of distinction, quoted several English
+authorities and was about to read from another when the judge
+remarked that he need not take the trouble to read anything more
+of that sort to him. "Then," said Mr. Sherman, "with your
+Honor's permission I will read from it to the jury, and let me
+say that it is an opinion of Lord Ellenborough, a Chief Justice
+of England who rose to the bench by his own merits, and shone by
+no reflected light."
+
+One of the anecdotes of the Boston bar is that while Samuel
+Dexter, one of the great lawyers of his day, was arguing a cause
+in the Circuit Court of the United States before Justice Story,
+soon after his accession to the bench, the court suddenly
+interposed, as a certain principle was asserted, with "That
+proposition is not law, Sir," to which Mr. Dexter retorted, "It
+is the law, if your Honor please, and will finally be declared to
+be the law by this court," as indeed it was later by Justice
+Story himself.[Footnote: Payne, "Reminiscences of the Rhode
+Island Bar," 241.]
+
+Such a passage at arms between court and counsel as took place in
+either of these instances could now hardly occur.
+
+Out of court there is no longer this distance between judge and
+lawyer. While they will not talk over an unfinished case, one
+that is finally disposed of is often the subject of free comment
+by each. They are now entirely upon the same level in the
+community. Officialism is put off when the court room is closed.
+
+Socially they meet in the same circles and on the same footing.
+It is considered not improper for a judge to accept the
+hospitality of a lawyer concerned in a case before him, and even
+a case on trial. The American rule in this respect is much less
+strict than the English.[Footnote: See "Memoir of Chief Justice
+Parsons," 208-211.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXIV
+
+
+                  THE LAW'S DELAYS
+
+
+The right to be heard before judgment, the right to have judgment
+rendered only on due process of law, and the right in most cases
+to a jury trial, necessarily make the course of justice slower in
+this country than it need be in one where there are no such
+guaranties in favor of those against whom the aid of a court is
+invoked. The plaintiff, too, has corresponding rights. It was
+found not so easy by Frederick the Great to enforce his famous
+decree that every lawsuit in his dominions must be finished in a
+year. In a freer land no such result is possible.
+
+The power of the judge to expedite trials is also much less in
+the United States than in most countries. They must be had
+mainly on oral testimony. The testimony must be so given that
+thirteen different men may each understand it. What the
+witnesses may be allowed to tell, and what they cannot be,
+depends on the application of numerous and artificial rules of
+evidence. If there is a question as to whether this rule or that
+applies, the judges sometimes invite and generally allow a
+discussion by counsel. Appeals are liberally conceded. If
+exceptions to any ruling of the court are to be made the basis of
+proceedings in error, they must be carefully noted at the time,
+and afterwards made the subject of a lengthy set of papers.
+
+Many trial judges are young men of little experience either on
+the bench or at the bar. They are learning the law by
+administering it. Such men cannot decide controverted points in
+a moment, and shut off all unnecessary discussion in the manner
+that might be expected and tolerated from judges of the first
+rank. It is hardly probable that they will always come to the
+right decision at last. Hence it is that so great a liberty of
+appeal is granted in every American State.
+
+Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate
+whose appeal is heard within three months and decided within six.
+Oftener he must expect to wait a year or two. During a long
+course of years an appeal to the Supreme Court of the United
+States could not be reached for argument in regular order in less
+than three years after it was taken. In Nebraska, for some time
+prior to 1901 the Supreme Court was so overwhelmed with business
+that it could not hear a cause until five years after it was
+docketed.
+
+In 1882 a brakeman was injured on a New York railroad. He
+brought suit against the company, and in 1884 recovered $4,000
+damages. The judgment in 1886 was reversed on appeal. On a new
+trial he got a verdict for $4,900. This was appealed to two
+courts successively. The first affirmed and the second reversed
+the judgment. In 1889, there was a third trial, at which the
+company won. Two appeals by the brakeman followed. On the first
+the intermediate appellate court, in 1894, decided against him.
+On the second, in 1897, the court of last resort decided for him.
+For the fourth time the case came on in the trial court, and a
+verdict for $4,500 was recovered. The company appealed and with
+success. A fifth trial gave him a verdict for $4,900. This,
+too, was set aside on appeal. A sixth trial followed with
+exactly the same results. In 1902, the seventh and final trial
+took place. The verdict this time was for $4,500. The company
+appealed again, but was defeated.[Footnote: Case and Comment, X,
+50.] A lawsuit that embraces seven appeals and lasts for twenty
+years is, of course, a rarity, but the system of administrative
+justice under which such things are possible is faulty somewhere.
+The right of trial by jury is one cause of such delays. The
+broad right of appeal is another. The want of skill and
+experience on the part of trial judges and trial lawyers may be a
+third. The twenty-three English judges of the High Court of
+Justice (with the aid of masters in chancery and referees)
+actually try and determine about fifty-six hundred cases a
+year.[Footnote: This was the average number for each of the years
+1900 and 1901.] Each judge, therefore, on the average,
+dispatches over two hundred and forty. No American judges under
+our American system of practice could do as much and do it well.
+We tolerate a succession of motions and objections and arguments
+from the bar which English courts would not. We often take more
+time in impanelling a jury than they would in trying the case.
+
+The American bar, unlike the English, is not so constituted that
+a certain number of its members are professedly devoted in a
+special way to the trial of cases. The English barrister in
+active practice may almost be said to do nothing else. His
+standing and his income depend on his ability to try case after
+case in rapid succession. Others are responsible for their slow
+and careful preparation. He is responsible for their quick and
+effective dispatch when the preparation is ended. He becomes
+necessarily familiar with the _technique_ of a trial at
+every point. In examining a witness, he strikes directly at what
+is material, and would be ashamed to appear ignorant of what that
+is. In argument he stops when he is through. The ordinary
+American lawyer who tries a case to-day, draws papers
+constituting a partnership or a corporation the next, and
+prepares an opinion on the construction of a will the day after,
+has not that concentration of knowledge which comes from
+concentration of occupation.
+
+The art of making a clear and definite statement of the points in
+controversy on paper is also one not sufficiently cultivated by
+the American bar. Without it the system of "code pleading,"
+which has in most States supplanted the rigid and often
+meaningless forms of the common law, leads to confusion and
+obscurity. The claims of each party ought to be, but seldom are,
+so presented that matters of law are, so far as possible, kept
+distinct from matters of fact, and what he means to prove is set
+forth, but not the evidence by which he hopes to establish it.
+This looseness of pleading leads to endless motions to expunge
+this and correct that, and time of the court is taken up by the
+preliminaries of trials which, if the lawyers used more care or
+had more skill, would be devoted to the trials themselves. Still
+worse is it when such motions are postponed until the case comes
+on for final hearing, and witnesses and juries are compelled to
+wait during tedious arguments over questions of mere form.
+
+In our great centers of population business under these
+circumstances almost necessarily accumulates too fast for the
+courts to handle it.
+
+In bringing on criminal trials there is little delay, unless at
+the request of the accused, and for what seems good reason. Our
+Constitutions generally provide that whoever is to be tried on a
+criminal charge shall be tried promptly, and the practice of the
+courts conforms to this rule. The broad right of appeal,
+however, for errors of law on the part of the court may serve to
+postpone the execution of a sentence, and too many new trials are
+granted by the courts for steps in procedure in matters of a
+purely technical character. Delays from this cause are, however,
+comparatively infrequent. Most convicts are too poor to take
+advantage of it. Most also know that their sentence is just, and
+are anxious only to have it executed and through with as soon as
+possible. In hardly one case in a hundred is an appeal taken or,
+if taken, pursued to the end.[Footnote: See Chap. XVII.]
+
+In our largest cities the disposition of criminal business
+occupies the time of several judges, and the prosecuting officer
+has a staff of professional assistants. In cases of such
+importance as to call for his personal management a postponement
+is occasionally inevitable. In Chicago, in December, 1903, over
+a thousand cases were awaiting trial in the Criminal Court.
+
+It tends to expedition in the trial of any cause if it is heard
+before a judge especially familiar with the class of questions
+which it involves. Criminal courts, particularly in cities, are
+largely held by judges whose work is either wholly or mainly
+confined to them. This helps greatly to prevent delays in such
+tribunals. For a similar cause admiralty business is dispatched
+with great rapidity by the District Judges at our principal
+ports, and patent causes by the Circuit Courts.
+
+In the criminal courts of New York City in 1903, there were about
+3,000 prosecutions on which indictments were found, and the
+defendant committed for want of bail. In most of these cases
+there was a plea of guilty, but counting them with the others,
+the average time as to all which elapsed between the original
+arrest and the final judgment was only eight days. During the
+same time those who gave bail were generally tried within three
+months from their arrest.[Footnote: Nathan A. Smyth in the
+Harvard Law Review for March, 1904.]
+
+An insufficiency of judges was formerly one great cause of delay,
+but the modern tendency has been to have too many, rather than
+too few. In the Court of Chancery in Virginia (which was held by
+a single Chancellor, then a man seventy-six years old) there were
+in 1802, 2,627 causes pending at one term.
+
+In the city of New York a jury trial in civil causes cannot
+ordinarily be reached until two years after they are brought. In
+its principal trial court between four and five thousand cases
+are annually disposed of, and in 1903, there were nearly ten
+thousand on its docket. When the criminal courts in the borough
+of Manhattan--the greatest division of the city--were opened in
+October of that year, there were nearly five hundred different
+prosecutions to be disposed of, and a hundred and sixty-seven
+prisoners awaiting trial who had been unable to procure bail.
+
+In the county containing the city of Chicago (and which contains
+little else), there were in 1903 twenty thousand civil cases on
+the dockets of the courts. This mass of business it would
+require more than two years and a half to dispose of with the
+number of judges then provided, were no new suits instituted to
+divide their attention.
+
+A very large part of the cases tried to the jury are claims for
+damages for accidental injuries received by employees in the
+course of their service. In the county in Missouri including
+Kansas City there were, in December, 1903, over fifty-one hundred
+civil causes on the dockets of the various courts. The
+population of the county was less than two hundred thousand.
+About three-fourths of the cases were against corporations for
+injuries received by their employees. The defendant in such an
+action is generally in no hurry to bring it to trial. The
+plaintiff often is not. He may have a weak case, brought in the
+hope of forcing a settlement. He has probably no money to pay
+his lawyer for trying it, and finds it hard to get together what
+is necessary to summon his witnesses and provide expert testimony
+as to the nature of his injuries.
+
+Whenever it is tried, however, he is sure to want a jury, for if
+the case is a good one a jury is apt to give larger damages than
+a judge, and if a bad one a jury is less likely to appreciate its
+weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156
+Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A
+jury trial is much slower than a trial before a judge, although
+the decision is apt to come more quickly. It also facilitates
+appeals by necessarily presenting more occasions for error. A
+judge in trying a cause, if evidence of doubtful competency is
+offered, can admit it provisionally and exclude it afterwards if,
+on deliberation, he thinks that it should not be considered.
+With a jury this is impossible. There must be an immediate
+ruling one way or the other. In the charge to a jury, also,
+opportunities are offered for exceptions which do not exist if
+the cause is to be decided by the judge alone. He does not have
+to instruct himself in public. He can study the case in private
+at his leisure.
+
+A cause of delay formerly existed in several States which arose
+from the method of computing the costs taxable against the losing
+party. They included, by statute, a certain sum, say twenty-five
+or thirty-three cents a day for each day's attendance at court by
+the prevailing party. This was construed to mean each day during
+which the action lay in court, since upon any of them it might by
+possibility be called up, and the client was always represented
+by his attorney of record, a notice to whom was a notice to him.
+Christian Roselius, one of the leaders of the New Orleans bar in
+the nineteenth century, once said that he had spent a fourth of
+his life in the court house waiting for his cases to be called.
+The lawyers, as the duty of attendance fell on them, generally
+considered this allowance as their perquisite. An attorney with
+a large docket received, therefore, a number of dollars for every
+day the court sat, and the longer the term lasted or the more
+terms to which a cause was carried over, the larger was his gain
+if his client ultimately obtained judgment, and the defendant was
+of financial responsibility. This system was not universally
+discontinued until the last quarter of the nineteenth century.
+
+A few States, by statute or constitutional provision, set a
+certain time within which a decision must be rendered after the
+trial. California gives ninety days; Idaho (Const., Art. V.,
+Sec. 17) thirty. A sanction for the law sometimes provided is
+that the judge cannot draw his salary until he has made oath that
+he is in no default.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XXV
+
+
+       THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY
+
+
+Americans are proud of their country and of their State. They
+are proud of their scheme of government, by which an imperial
+world-power has been created for certain national and
+international purposes, resting on a collection of States, each
+of which is an independent sovereignty, absolutely as respects
+the others, and for the most part as respects the United States.
+They are in the mass an educated and intelligent people. The
+public schools have thus far been found adequate to Americanizing
+the children of foreign immigrants. The colored population of
+the South stands largely by itself, and constitutes no active and
+self-moving force in matters of political concern. An educated
+and intelligent people living under a government of written law
+of their own making cannot but know how vital it is that this law
+should be fully guarded and fairly administered. Americans have
+become distrustful of their legislatures. They believe that much
+of their work is ill-considered, and that some of it has its
+source in corruption. They are far removed from the chief
+executive magistrates, and from the sphere in which they move.
+The President comes nearer to them than the Governor of their
+State because he stands for more, and personifies their country,
+but it is not from him that they look for peace and safety in the
+ordinary affairs of life and home. They look for these to the
+courts, and they know that they will seldom look in vain.
+
+Only an educated and intelligent people can live under a written
+Constitution. It requires of those whom it governs a certain
+spirit of conservatism, a certain sentiment of reverence for
+ancient institutions. Our Constitutions are mainly the work of
+former generations. We may amend or recast them, but the
+substantial framework will remain the same. Our Declarations of
+Rights speak the language and the lessons of the eighteenth
+century. Their provisions are almost wholly aimed at our
+executives and legislators. They give guarantees which the
+judiciary only can enforce. No people can steadily prosper
+unless a just mean be preserved between reform and conservatism
+in the administration of the government. The courts stand for
+conservatism, but by their recognition of custom as law, and
+their free use of logic and analogy to develop law, they also
+keep a door open for the entrance of reform.
+
+The courts also come very close to the people. They are to be
+found in every county and almost every township. They settle the
+estates of the dead. They protect the living. They act largely
+through juries made up of the people and returning to them after
+a brief term of public service.
+
+All these considerations put Americans in a friendly attitude
+toward the judiciary. It makes less show of authority than the
+policeman or the militiaman. But the people feel that it has
+authority and is ready to exercise it always to secure that right
+be done. When a plain man who thinks that he has been wronged by
+another declares that he "will have the law on him," it expresses
+his conviction that he can get justice from the courts.
+
+The creation of the judiciary of the United States was welcomed
+at the outset by all.[Footnote: See "Life of Peter Van Schaick,"
+435.] It was not until party feeling had become intense that
+Republicans found it difficult to look with approval on a force
+evidently becoming stronger every day, and that Jefferson could
+describe the Supreme Court as the sappers and miners who were
+gradually undermining the foundations of American
+liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.
+"Works of Thomas Jefferson," VII, 192.]
+
+Of the political questions which engaged attention over the whole
+country from time to time from the adoption of the Constitution
+to the close of the Civil War, almost all bore some relation to
+the institution of slavery and derived their real vitality from
+that connection. Slavery depended on State laws. Unless the
+authority of each State to allow and regulate it were preserved,
+its countenance would be endangered. This was largely the source
+of the "State Rights" cry.
+
+Almost all the powers which the United States possessed the
+States had lost. For thirteen years each had been in the
+position of a full sovereign. Its courts had exercised
+jurisdiction over all kinds of actions. Now a new set of courts
+had risen up having over many actions an equal jurisdiction, over
+some a superior one.[Footnote: See Chap. X.]
+
+The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'
+Reports, 419.] in 1793, and the institution of similar suits
+against other States of the South showed that the Supreme Court
+of the United States claimed authority to render a money judgment
+against a State, which meant that it could then issue an
+execution to collect it by levying on the property of the State.
+
+In 1798, the Alien and Sedition Laws were passed, and a crime
+previously cognizable exclusively in the State courts was made a
+subject of prosecution in those of the United States if it
+affected an officer of the United States. A member of Congress,
+Matthew Lyon, of Vermont, who was sentenced in the Fall of that
+year to a fine of $1,000 and four months in jail for writing of
+the President and Senate, that his message to Congress in 1797
+was a bullying speech, which the Senate in a stupid answer had
+echoed with more servility than ever Geo. III. experienced from
+either house of parliament, served his time and paid the fine,
+but for the amount of the latter he was reimbursed by Congress in
+1840.
+
+The case of Jonathan Robbins[Footnote: See Chap. III.] in South
+Carolina in 1799, showed that the Circuit Court at the request of
+the President could surrender an American citizen to a foreign
+government to be carried off and tried for murder. This and the
+sentence of Lyon became immediately the subject of hot discussion
+in Congress, and both contributed to the political revolution
+which put Jefferson in the seat of Adams in 1801.
+
+The creation by the outgoing party of places for eighteen new
+Circuit Judges appointed by Adams in the last month of his
+administration strengthened the popular feeling that the courts
+of the United States were too powerful. That Act was at once
+repealed,[Footnote: See Chaps. IX, XXII.] and also the provision
+for the next regular term of the Supreme Court. The latter
+measure was taken to prevent any legal proceedings in the Supreme
+Court to secure its intervention in behalf of the displaced
+judges.
+
+The new circuit system had been swept away, but the full bench at
+Washington, headed by Marshall, remained. The unsuccessful
+impeachment of one of them followed in 1804.[Footnote: See
+Chap. III.]
+
+His acquittal the next year, and that of a majority of the
+Supreme Court of Pennsylvania,[Footnote: McMaster, "History of
+the United States," III, 159.] who were impeached there at the
+same time for punishing a libel on certain proceedings before
+that court by a sentence of imprisonment, satisfied all that it
+was practically impossible to secure the removal of a judge
+except for the gravest cause. Judicial independence had been
+secured by the very struggle to defeat it. What has won in any
+contest finds favor with the multitude. They admire a victor.
+From this time on the courts both of the United States and the
+States grew in public esteem. When those of the former seemed to
+trench on the fields of State sovereignty, particularly in the
+South, the inroad was resented.[Footnote: See letters of Marshall
+alluding to this, in "Proceedings of the Massachusetts Historical
+Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern
+State it was even opposed by force.[Footnote: See Chap. X.] As
+late as 1854 the supremacy of the Supreme Court of the United
+States in expounding the federal Constitution was contested by
+the courts of a Northern State; there also in a case growing out
+of the system of slavery.[Footnote: Ableman _v._ Booth, 21
+Howard's Reports, 506.]
+
+Another decision by the same tribunal of a similar nature--that
+in the Dred Scott case[Footnote: Dred Scott _v._ Sandford,
+19 Howard's Reports, 393.]--greatly strengthened the confidence
+of the Southern people in the federal courts, and weakened that
+of the North.
+
+It did much to bring on the Civil War, but the result of that
+struggle was to confirm the authority not only of the Supreme
+Court but of the Supreme Court as it was under Marshall and his
+original associates. In 1901, the centenary of his appointment
+was celebrated all over the country, North and South. Such a
+tribute was never paid before in any country to the memory of a
+judge. His services were commemorated for the very reason that
+led Jefferson to depreciate them--because they led to the
+establishment of a strong national government with a controlling
+judicial authority adequate to protect it within its sphere from
+interference or obstruction in any way by any State.
+
+Confidence in the State courts has also been strengthened during
+the last century. It was greatly shaken at the time of the fall
+of the Federalists. They had lost the executive and legislative
+power, but they retained the judicial, and the Republicans found
+it hard to tolerate courts that represented the political ideas
+of a former generation. This continued long after the extinction
+of the Federalist party, and often extended to distrust of judges
+elected by the Republicans who were thought to have become
+affected by the influence of their senior associates.
+
+In the New York constitutional convention of 1821, Peter
+R. Livingston appealed to the lawyers present to say "whether it
+has not been the case that when a man in the country of any
+political standing has had a suit depending at a circuit court,
+he has not consulted with his counsel to know what judge was to
+preside at the circuit; and whether he has not been frequently
+told that a political judge was to preside and it would not do to
+let the cause come on."[Footnote: Reports of the Proceedings and
+Debates of the Convention of 1821, 618.] Who, he asked, were the
+present judges of their Supreme Court?  "Judge Spencer came into
+office under a republican administration; Judge Van Ness was
+appointed by a mongrel council; and the elevation to the bench of
+Judge Platt was occasioned by the defection from the Republican
+ranks of a man elected to the Senate from the county of Dutchess,
+who acted the part of a political Judas, and sold his party. We
+have been bought and sold--there is not one of these men who
+would have been on the bench if our administration had been truly
+republican.... There is not a man in this Convention who is a
+republican of any standing or character who would like to have
+his liberty or property placed in the hands of a political judge
+of a different party."[Footnote: Reports of the Proceedings and
+Debates of the Convention of 1821, 620.]
+
+The judiciary may also have suffered somewhat in the esteem of
+dispassionate observers on account of its attitude in many of the
+States toward the financial enterprises in corporate form, in
+which so much money was made and lost in the first third of the
+nineteenth century. In commenting on a judicial opinion in a
+Southern bank case, the author of one of our leading American
+legal treatises, himself once a judge, has referred to this
+period in these plain words:
+
+  Decisions of this kind, which were not infrequent in the era of
+  State banks of issue, can only be "reconciled" with modern
+  holdings in view of the well-known fact that nearly all the
+  politicians were creditors of those political banks, by notes
+  often renewed, at the time when they finally suspended, and
+  that all the judges were politicians. It can hardly be doubted
+  that in many of those semi-barbarous decisions the judges were
+  either rendering decisions to exonerate themselves from their
+  liabilities to the insolvent banks or to exonerate powerful and
+  influential politicians upon whom they depended for the tenure
+  of their offices.[Footnote: Thompson on "Private Corporations,"
+  V, p. 5306.]
+
+It is quite probable that an insensible bias in favor of friends
+and neighbors may have had its share in producing the judgments
+to which reference was thus made, but quite improbable that they
+were the fruit of baser motives. Independently of other
+considerations, every judge is watched by sharp eyes in every
+step which he may take in the progress of a cause. He acts in
+view of the bar at large, and of two of their number in
+particular, one of whom probably will be disappointed by his
+decision, and solicitous to ascertain and employ every reasonable
+ground for overturning it.
+
+The Bar Association of the country have exercised a large
+influence during the past thirty years in maintaining public
+confidence in the purity of the bench.
+
+It is extremely rare that suspicion of corruption attaches to a
+judge; and rarer still that it attaches justly. Jurors are
+occasionally found who are guilty of it, and more who, without
+being chargeable with so black a crime, are more interested in
+serving a friend than in doing justice. As a whole, however,
+American courts are clean-handed throughout, and the people know
+it.
+
+The judiciary has been popularized in most States by
+constitutional provisions replacing tenure during good behavior
+by stated terms of years, and appointment by the Governor or
+legislature by election by the people.
+
+The powers of judges have been on the whole increased. The only
+matter in which they have been substantially cut down is that of
+punishment for contempt. Serious attempts have been made to
+abridge their jurisdiction over injunctions, but without success.
+These attacks have come from those representing certain labor
+unions. The more thorough organization of working-men in all
+trades and callings during the last half century, and the
+development of collectivism as a working theory, have produced a
+class of leaders among them who regard the courts as manned by
+representatives of capital and controlled in the interests of
+capital.[Footnote: The number of the _Pennsylvania Grange
+News_ for Sept., 1904, states this view at length.] As a
+judicial office can only be properly filled by one who has had a
+legal education and as, aside from a few petty magistrates and
+local tribunals, practically all our judges are trained lawyers,
+it necessarily follows that they cannot belong to the class of
+working-men in the general acceptation of that term. Their
+education has cost money and is generally the fruit of capital.
+The judges of the higher courts are usually men of some means.
+If they were not, they could not have afforded to accept their
+places. But the people at large do not believe that only the
+poor man can be relied on to deal justly on the bench. The mass
+of working-men do not believe it. They do believe that courts
+have too much power over them in their associated relations.
+They are in favor of cutting off the right of issuing injunctions
+to suppress boycotts or "picketing" in case of strikes. But they
+know that it is from the legislatures and not from the courts
+that this must be sought.
+
+The federal judges stand higher in public estimation than the
+State judges of corresponding rank. This is partly on account of
+the paramount authority of the government which they represent.
+It is partly also because there are none of them who occupy the
+lower grades of judicial station with a petty jurisdiction over
+petty controversies. It is more because of their permanence of
+tenure. This removes them from that field of criticism which
+surrounds every public officer who holds for a term limited in
+duration, and is always in the position of a candidate for
+re-appointment.
+
+Our methods of judicial appointment are not such as always to
+exclude political feeling from the bench either of the States or
+of the United States, but the people know that there is less of
+it there than in any other department of governmental action.
+
+President Hadley of Yale University has thus expressed what is
+the general view of the work of the courts held by thoughtful men
+in the United States; and it is they who in the long run form and
+lead public opinion.
+
+"On the whole, federal and State courts alike have been not only
+a protection, but the one really efficient protection of minority
+interests against oppression by the majority.... It has more
+than once happened that an impatient majority has denounced these
+courts as instruments of partisanship. The anti-slavery leaders,
+the soft money leaders, and the labor leaders have in turn taken
+exception to their utterances, and even ventured to impugn their
+motives. But I think that most intelligent men who know the
+history of the country will say that our courts have been the
+real bulwarks of American liberty; and that while Hamilton and
+his associates would be somewhat disappointed in the working of
+the machinery of legislation and administration if they could see
+it in its present shape, they would be filled with admiration at
+the work which has been accomplished by the judiciary. I believe
+it to be the judgment of sober-minded men that the courts have
+furnished the agency which has guarded us against excesses, and
+have saved the American republic from the necessity of repeating
+the successive revolutionary experiences which France underwent
+before she could attain to a stable democracy."[Footnote:
+"Freedom and Responsibility," 23, 24.]
+
+This confidence in and respect for the judiciary as a whole has
+increased with the general advance of the country in population
+and wealth. There have been larger questions with which to deal,
+and the courts have been found adequate to the task. But at the
+same time the personal consequence and reputation of every
+individual American judge has been steadily decreasing. As
+States multiply and the range of litigation widens, the work of
+judicial exposition of legal principles comes to be shared by so
+many hands that what any one man does is of comparatively small
+account. There is no room for star players upon the stage.
+Broad as it is, it is too crowded for one to make a conspicuous
+place for himself and stand as Marshall or Story, Kent or
+Parsons, did, apart from his fellows. Popular confidence is now
+not placed in courts because this or that man is the ruling
+spirit in them. It is impersonal and attaches itself to the
+institution of the judiciary as, all things considered, the best
+guaranty of good government in the United States.
+
+This spirit of confidence is, of course, not universal and
+unqualified. It is often not found in bodies of working men,
+associated as Labor Unions. They have repeatedly found a court
+enforcing public order in a way that interfered with their manner
+of conducting a strike. They have been met by injunctions, and
+more often by criminal prosecutions. The membership of a Labor
+Union, in many parts of the country, is apt to be largely of
+foreign birth. The leaders not infrequently know little of the
+English language and less of American institutions. They have
+been led, in their native land, to regard the law and its
+officers as their enemies, and they look at them in the same way
+here. It is believed, however, that a large majority of the
+Unions regard them with respect, and it is certain that such is
+the prevailing feeling of non-union men.
+
+But that the public trust in our judges is less than it was when
+the first edition of this work was published,[Footnote: See
+_supra_, page 340.] is indicated by the favor with which, in
+many quarters, the doctrine of the "judicial recall" has been
+received. The dangers incident to its practice are obvious, and
+seem far to outweigh any attending advantages.
+
+In the United States, of all lands on the face of the earth, it
+is important that the judges should act with resolution and
+without thought of the consequences personal to themselves.
+Elsewhere in form, but here only in fact, are judges armed with
+the power of declaring legislative action void which is in
+conflict with a higher form of law, that proceeded directly from
+the people, and mainly from the people of a former generation.
+To expose one who exercises this power to immediate displacement,
+by a popular vote--largely, perhaps, composed of his political
+opponents--is to invite the enactment of questionable statutes,
+and still worse--to weaken the attractions of the bench for able
+and honest men. Our judicial terms, in most of the States, are
+already too brief for the public good. To make them determinable
+at the will of the electoral constituency tends powerfully to
+keep good lawyers at the bar, who might otherwise have done honor
+to a judicial station.
+
+
+
+
+
+End of Project Gutenberg's The American Judiciary, by Simeon E. Baldwin, LLD
+
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+Project Gutenberg's The American Judiciary, by Simeon E. Baldwin, LLD
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+Title: The American Judiciary
+
+Author: Simeon E. Baldwin, LLD
+
+Release Date: August, 2005 [EBook #8691]
+[Yes, we are more than one year ahead of schedule]
+[This file was first posted on August 1, 2003]
+
+Edition: 10
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***
+
+
+
+
+Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling,
+Charles Franks and the Online Distributed Proofreading Team
+
+
+
+
+                          THE
+                  AMERICAN JUDICIARY
+
+                          BY
+
+                SIMEON E. BALDWIN, LL.D.
+
+
+
+
+
+                       CONTENTS
+
+
+PART
+
+     CASES CITED.
+
+ I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED
+        STATES.
+
+II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS.
+
+
+                   _PART I_
+
+
+CHAPTER
+
+    I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN
+          JUDICIARY.
+
+   II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE
+          AND EXECUTIVE IN AMERICAN CONSTITUTIONS.
+
+  III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
+          DEPARTMENTS OF GOVERNMENT.
+
+   IV. THE FORCE OF JUDICIAL PRECEDENTS.
+
+    V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW.
+
+   VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN
+          LAW.
+
+  VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW
+          NOT TO BE LAW.
+
+
+                _PART II_
+
+
+ VIII. THE ORGANIZATION OF THE COURTS OF THE STATES.
+
+   IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES.
+
+    X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES,
+          AND OF THE UNITED STATES JUDICIARY TO THE STATES.
+
+   XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES.
+
+  XII. TRIAL BY JURY.
+
+ XIII. FORMALITIES IN JUDICIAL PROCEDURE.
+
+  XIV. TRIAL COURTS FOR CIVIL CAUSES.
+
+   XV. PROBATE COURTS.
+
+  XVI. BANKRUPTCY AND INSOLVENCY COURTS.
+
+ XVII. CRIMINAL PROCEDURE.
+
+XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT.
+
+  XIX. APPELLATE COURTS.
+
+   XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS
+          OF COURT.
+
+  XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL
+          LAW.
+
+ XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES.
+
+XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH.
+
+ XXIV. THE LAW'S DELAYS.
+
+  XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY.
+
+        INDEX.
+
+
+       *       *       *       *       *
+
+
+                 TABLE OF CASES
+
+
+  Ableman _v._ Booth
+  Allinson, Hale _v._
+  American Insurance Co. _v._ Canter
+  Ames _v._ Kansas
+  Ames, Smyth _v._
+  Andrews, _Ex parte_
+  Anthes, Commonwealth _v._
+
+  Bachert _v._ Lehigh Coal and Navigation Co.
+  Baldwin, Robertson _v._
+  Bank, Bardes _v._
+  Bank of Kentucky, Briscoe _v._
+  Bank of Mississippi _v._ Duncan
+  Bank of the U. S., Osborn _v._
+  Bardes _v._ Bank
+  Barrows _v._ Bell
+  Batchelder _v._ Moore
+  Baxter _v._ Brooks
+  Baxter, State _v._
+  Bean _v._ Beckwith
+  Bean, Beckwith _v._
+  Beckham, Taylor _v._
+  Beckwith _v._ Bean
+  Beckwith, Bean _v._
+  Bell, Barrows _v._
+  Bell's Gap R. R. Co., McCloskey _v._
+  Bernard, Coggs _v._
+  Biddle, Green _v._
+  Bidwell, Downes _v._
+  Bissell _v._ Dickerson
+  Blacker, Board of Supervisors _v._
+  Blair _v._ Williams
+  Blake _v._ McClung
+  Board of Supervisors _v._ Blacker
+  Bodley _v._ Gaither
+  Boffman, Hickman _v._
+  Bonham's case
+  Booth _v._ Clark
+  Booth, Ableman _v._
+  Borden, Luther _v._
+  Bowman _v._ Middleton
+  Boyd _v._ Thayer
+  Boyd _v._ U. S.
+  Bradburn, Mincey _v._
+  Bradley _v._ Fisher
+  Bradley _v._ New Haven
+  Bradley, _Ex parte_
+  Brainerd, Fitch _v._
+  Branch, _In re_
+  Brashears, Lapsley _v._
+  Briggs _v._ Garrett
+  Brine _v._ Insurance Co.
+  Briscoe _v._ Bank of Kentucky
+  Brooks _v._ State
+  Brooks, Baxter _v._
+  Brown, Kellogg _v._
+  Brown, Parkersburg _v._
+  Bulkley, State _v._
+  Bull, Calder _v._
+  Burgess _v._ Seligman
+  Burr's Trial
+  Burrows, Nudd _v._
+  Bush, Perry _v._
+  Bushnell, _Ex parte_
+
+  Calder _v._ Bull
+  California, Hurtado _v._
+  Call Publishing Co., Western Union Telegraph Co. _v._
+  Calvin _v._ Huntley
+  Canfield _v._ Mitchell
+  Canter, American Insurance Co. _v._
+  Carriere, Tua _v._
+  Cherokee Nation _v._ Georgia,
+  Chisholm _v._ Georgia
+  Christmas _v._ Russell
+  Church _v._ Pearne
+  City of South Bend _v._ Turner
+  Claflin _v._ Houseman
+  Clark, Booth _v._
+  Clarke's Appeal
+  Cleveland, Painesville and Eastern R. R. Co., _v._
+    Pritschau
+  Clymer, Norris _v._
+  Cochran, Gernon _v._
+  Coffin _v._ United States
+  Coggs _v._ Bernard
+  Cohens _v._ Virginia
+  Coleman _v._ Tennessee
+  Coler _v._ Tacoma Railway and Power Co.
+  Colt, Stanley _v._
+  Commonwealth _v._ Anthes
+  Conn. Pipe Mfg. Co., Ward _v._
+  Consul of Spain _v._ Consul of Great Britain
+  Cooper, Application of
+  Cooper, _In re_
+  Cooper, In the matter of
+  Copass, Hall-Moody Institute _v._
+  Croswell, People _v._
+  Cunningham, State _v._
+
+  Danbury, Hoyt _v._
+  Dartmouth College _v._ Woodward
+  Debs, U. S. _v._
+  Debs, _In re_
+  Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._
+  Demorest, Hutkoff, _v._
+  Dennison, Kentucky _v._
+  Deposit Bank _v._ Frankfort
+  Dickerson, Bissell _v._
+  Diggs _v._ Wolcott
+  Donoghue, Hanley _v._
+  Dorr _v._ United States
+  Dorrance, Vanhorne's Lessee, _v._
+  Dougherty, Lanark _v._
+  Dow _v._ Johnson
+  Downes _v._ Bidwell
+  Dred Scott _v._ Sandford
+  Drehman _v._ Stifle
+  Duncan, Bank of Mississippi _v._
+  Duncan, Johnson _v._
+  Dyson _v._ Rhode Island Co.
+
+  Eakin _v._ Raub
+  Eckrich _v._ St. Louis Transit Co.
+  Ellington, Miel _v._
+  Erdman _v._ Mitchell
+  Exchange Bank _v._ Rice
+
+  Farmers' Loan and Trust Co., Pollock _v._
+  Faulkner _v._ Hart
+  Finney _v._ Guy
+  Fish _v._ Smith
+  Fisher, Bradley _v._
+  Fitch _v._ Brainerd
+  Fletcher _v._ Peck
+  Flynn _v._ Morgan
+  Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co.
+  Frankfort, Deposit Bank _v._
+  French _v._ Waterbury
+  Frost _v._ Leighton
+
+  Gaither, Bodley _v._
+  Garland, _Ex parte_
+  Garrett, Briggs _v._
+  Genesee Chief, The
+  Georgia _v._ Stanton
+  Georgia, Cherokee Nation _v._
+  Georgia, Chisholm _v._
+  Georgia, Worcester _v._
+  Gernon _v._ Cochran
+  Gibbons _v._ Ogden
+  Goshen _v._ Stonington
+  Gould _v._ Hudson River R. R. Co.
+  Grady's case
+  Grapeshot, The
+  Gray, James _v._
+  Green _v._ Biddle
+  Griffin _v._ Wilcox
+  Griswold, Hepburn _v._
+  Griswold, United States _v._
+  Grover & Baker Sewing Machine Co. _v._ Radcliffe
+  Groves _v._ Slaughter
+  Guy, Finney _v._
+
+  Hale _v._ Allinson
+  Hall-Moody Institute _v._ Co-pass
+  Ham _v._ McClaws
+  Hanley _v._ Donoghue
+  Hanover National Bank _v._ Moyses
+  Hans _v._ Louisiana
+  Harris, Norris _v._
+  Hart, Faulkner _v._
+  Hawes _v._ Oakland
+  Hayburn's Case
+  Hepburn _v._ Griswold
+  Heywood, Wilcox _v._
+  Hickman _v._ Boffman
+  Hildreth's Heirs _v._ McIntire's Devisee
+  Hill _v._ Smith
+  Hill, Koehler _v._
+  Hoffman, People _v._
+  Holmes _v._ Walton
+  Houseman, Claflin _v._
+  Houser, State _v._
+  Howle, Metropolitan Life Insurance Co. _v._
+  Hoyt _v._ Danbury
+  Hudson River R. R. Co., Gould _v._
+  Huntley, Calvin _v._
+  Hurtado, _v._ California
+  Hutkoff _v._ Demorest
+
+  Insurance Co., Brine _v._
+  International Distillery, Pearson _v._
+  Irvine _v._ Stone
+
+  James _v._ Gray
+  Jecker _v._ Montgomery
+  Johnson _v._ Duncan
+  Johnson _v._ People
+  Johnson, Dow _v._
+  Johnson, Mississippi _v._
+  Johnson, State _v._
+  Joint Traffic Association, United States _v._
+  Judges, State _v._
+
+  Kansas, Ames _v._
+  Katz _v._ Walkinshaw
+  Kellogg _v._ Brown
+  Kellogg _v._ Warmoth
+  Kentucky _v._ Dennison
+  Kentucky, Louisville Ferry Co. _v._
+  Kepner _v._ U. S.
+  Ketcham _v._ McNamara
+  Kilbourn _v._ Thompson
+  Klein, U. S. _v._
+  Kneedler _v._ Lane
+  Koehler _v._ Hill
+
+  Lachenmeyer, Pepin _v._
+  Lanark _v._ Dougherty
+  La Ninfa, The
+  Lane, Kneedler _v._
+  Lapsley _v._ Brashears
+  Lee, State _v._
+  Legal Tender Cases, The
+  Lehigh Coal and Navigation Co., Bachert _v._
+  Leighton, Frost _v._,
+  Lennon _v._ Rawitzer,
+  Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._,
+  Little Charles, The schooner, U. S. _v._,
+  Loan Association _v._ Topeka,
+  Loomis _v._ Newhali,
+  Lottawanna, The,
+  Louisiana, Hans, _v._,
+  Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson,
+  Louisville Ferry Co. _v._ Kentucky,
+  Luke _v._ Lyde,
+  Luther _v._ Borden,
+  Lyde, Luke _v._
+
+  McCardle, _Ex parte_,
+  McClaws, Ham _v._,
+  McCloskey _v._ Bell's Gap R. R. Co.,
+  McClung, Blake _v._,
+  McConnaughy, Pennoyer _v._,
+  McCulloch _v._ Maryland,
+  McDaniel, Terry _v._,
+  McDowell _v._ Oyer,
+  McFarland _v._ People,
+  Mclntire's Devisee, Hildreth's Heirs _v._,
+  M'Kim _v._ Voorhies,
+  McLeod's Case,
+  McNamara, Ketcham _v._,
+  McVeigh _v._ Ripley
+
+  Madison, Marbury _v._,
+  Main, State _v._,
+  Marbury _v._ Madison,
+  Maryland, McCulloch _v._,
+  Mather, Rand _v._,
+  Merriman _v._ Social Mfg. Co.,
+  Merryman, _Ex parte_,
+  Metropolitan Life Insurance Co. _v._ Howle,
+  Mial _v._ Ellington,
+  Middleton, Bowman _v._,
+  Milligan, _Ex parte_,
+  Miln, New York _v._,
+  Mincey _v._ Bradburn,
+  Mississippi _v._ Johnson,
+  Mitchell, Canfield _v._,
+  Mitchell, Erdman _v._,
+  Montgomery, Jecker _v._,
+  Moore, _Ex parte_,
+  Moore, Batchelder _v._,
+  Morgan, Flynn _v._,
+  Mormon Church _v._ United States,
+  Morrill, State _v._,
+  Moses Taylor, The,
+  Moyses, Hanover National Bank _v._,
+  Mutual Reserve Fund Life Association, Vincent _v._,
+  Myers _v._ South Bethlehem
+
+  Nash, United States _v._,
+  Neagle, _In re_,
+  Neff, Pennoyer _v._,
+  Newhall, Loomis _v._,
+  New Haven, Bradley _v._,
+  New Jersey _v._ New York,
+  Newman, _Ex parte_,
+  New York _v._ Miln,
+  New York, New Jersey _v._,
+  New York and New England R. R. Co., Rumsey _v._,
+  New York, New Haven and Hartford R. R. Co., Stack _v._,
+  Noble _v._ Union River Logging Co.,
+  Norris _v._ Clymer,
+  Norris _v._ Harris,
+  Northern Securities Co. _v._ United States,
+  Norwalk Street Railway Co.'s Appeal
+  Nudd _v._ Burrows
+
+  Oakland, Hawes _v._
+  Ogden _v._ Saunders
+  Ogden, Gibbons _v._
+  Ohio and Mississippi R. R. Co. _v._ Wheeler
+  Olcott, People _v._
+  Osborn _v._ Bank of the U. 8.
+  Oyer, McDowell _v._
+
+  Parkersburg _v._ Brown
+  Patterson, William
+  Paul _v._ Virginia
+  Pearne, Church _v._
+  Pearson _v._ International Distillery
+  Pease, Starr _v._
+  Peck, Fletcher _v._
+  Pennoyer _v._ McConnaughy
+  Pennoyer _v._ Neff
+  Pennsylvania, Prigg _v._
+  Pennsylvania Coal Co., Sanderson _v._
+  People _v._ Croswell
+  People _v._ Hoffman
+  People _v._ Olcott
+  People _v._ Webb
+  People, Johnson _v._
+  People, McFarland _v._
+  Pepin _v._ Lachenmeyer
+  Perkins, United States _v._
+  Perry _v._ Bush,
+  Peters, Wheaton _v._
+  Pollock _v._ Farmers' Loan and Trust Co.
+  Prigg _v._ Pennsylvania
+  Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._
+
+  Radcliffe, Grover & Baker Sewing Machine Co. _v._
+  Rand _v._ Mather
+  Raub, Eakin _v._
+  Rawitzer, Lennon _v._
+  Reese, United States _v._
+  Regents _v._ Williams
+  Rhode Island Co., Dyson _v._
+  Rice, Exchange Bank _v._
+  Rich, Upshur County _v._
+  Ripley, McVeigh _v._
+  Robbins' Case
+  Robertson _v._ Baldwin
+  Robinson, _Ex parte_
+  Royall, _Ex parte_
+  Rumsey _v._ New York and New England R. R. Co.
+  Russell, Christmas _v._
+  Rutgers _v._ Waddington
+
+  Sanderson _v._ Penn. Coal Co.
+  Sandford, Dred Scott _v._
+  Saunders, Ogden _v._
+  Scott _v._ Sandford
+  Seligman, Burgess _v._
+  Shepherd, State _v._
+  Sheve, U. S. _v._
+  Siebold, _Ex parte_
+  Sims' Case
+  Slaughter, Groves _v._
+  Smith, Fish _v._
+  Smith, Hill _v._
+  Smith, U. S. _v._
+  Smyth _v._ Ames
+  Social Mfg. Co., Merriman _v._
+  South Bethlehem, Myers _v._
+  Sparf _v._ U. S.
+  St. Louis Transit Co., Eckrich _v._
+  Stack _v._ New York, New Haven and Hartford R. R. Co.
+  Stanley _v._ Colt
+  Stanley, U. S. _v._
+  Stanton, Georgia _v._
+  Starr _v._ Pease
+  State _v._ Baxter
+  State _v._ Bulkley
+  State _v._ Cunningham
+  State _v._ Houser
+  State _v._ Johnson
+  State _v._ Judges
+  State _v._ Lee
+  State _v._ Main
+  State _v._ Morrill
+  State _v._ Shepherd
+  State _v._ Travelers' Insurance Co.
+  State _v._ Ward
+  State _v._ Worden
+  State, Brooks _v._
+  Stephens, petitioner
+  Stifle, Drehman _v._
+  Stone, Irvine _v._
+  Stonington, Goshen _v._
+  Swift _v._ Tyson
+
+  Tacoma Railway and Power Co., Coler _v._
+  Tassel's Case
+  Taylor _v._ Beckham
+  Tennessee, Coleman _v._
+  Terry _v._ McDaniel
+  Thayer, Boyd _v._
+  The Genesee Chief
+  The Grapeshot
+  The La Ninfa
+  The Lottawanna
+  The Moses Taylor
+  The Schooner Little Charles, U. S. _v._
+  The Thomas Jefferson
+  Thomas Jefferson, The
+  Thompson, Kilbourn _v._
+  Topeka, Loan Association _v._
+  Trademark Cases
+  Travelers' Insurance Co., State _v._
+  Trevett _v._ Weeden
+  Tua _v._ Carriere
+  Turner, City of South Bend _v._
+  Tyson, Swift _v._
+
+  Union River Logging Co., Noble, _v._
+  United States _v._ Debs
+  United States _v._ Griswold
+  United States _v._ Joint Traffic Association
+  United States _v._ Klein
+  United States _v._ Nash
+  United States _v._ Perkins
+  United States _v._ The Schooner Little Charles
+  United States _v._ Reese
+  United States _v._ Robbins
+  United States _v._ Sheve
+  United States _v._ Smith
+  United States _v._ Sparf
+  United States _v._ Stanley
+  United States _v._ Wilson
+  United States _v._ Worrall
+  United States, Boyd _v._
+  United States, Coffin _v._
+  United States, Dorr _v._
+  United States, Kepner _v._
+  United States, Mormon Church _v._
+  United States, Northern Securities Co. _v._
+  Upshur County _v._ Rich
+
+  Vanhorne's lessee _v._ Dorrance
+  Vincent _v._ Mutual Reserve Fund Life Association
+  Virginia, Cohens _v._
+  Virginia, Paul _v._
+  Voorhies, M'Kim _v._
+
+  Waddington, Rutgers _v._
+  Walkinshaw, Katz _v._
+  Walton, Holmes _v._
+  Ward _v._ Conn. Pipe Mfg. Co.,
+  Ward, State _v._,
+  Warmoth, Kellogg _v._,
+  Waterbury, French _v._,
+  Webb, People _v._,
+  Weeden, Trevett _v._,
+  Western Union Telegraph Co. v. Call Publishing Co.,
+  Wheaton v. Peters,
+  Wheeler, Ohio and Mississippi R. R. Co., _v._,
+  Wheeler's Appeal,
+  Wilcox v. Heywood,
+  Wilcox, Griffin _v._,
+  Williams, Blair _v._,
+  Williams, Regents _v._,
+  Wilson, U. S. _v._,
+  Woleott, Diggs _v._,
+  Woodward, Dartmouth College, _v._,
+  Worcester v. Georgia,
+  Worden, State _v._,
+  Worrall, U. S. _v._
+
+
+            Additional cases cited in Second edition.
+
+  Janvrin v. Revere Water Co.,
+  Revere Water Co., Janvrin, _v._,
+  O'Brien's Petition,
+  Seery v. Waterbury,
+  Waterbury, Seery _v._
+
+       *       *       *       *       *
+
+
+
+
+                        PART I
+
+
+              THE NATURE AND SCOPE OF THE
+                 JUDICIAL POWER IN THE
+                     UNITED STATES
+
+       *       *       *       *       *
+
+
+
+                       CHAPTER I
+
+
+         ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE
+                   AMERICAN JUDICIARY
+
+
+No government can live and flourish without having as part of its
+system of administration of civil affairs some permanent human
+force, invested with acknowledged and supreme authority, and
+always in a position to exercise it promptly and efficiently, in
+case of need, on any proper call. It must be permanent in its
+character. Only what is permanent will have the confidence of
+the people. It must always be ready to act on the instant. The
+unexpected is continually happening, and it is emergencies that
+put governments to the test.
+
+The judiciary holds this position in the United States. The
+institutions which underlie and characterize it, both of the
+United States and of each of the States, considered by
+itself,[Footnote: I do not except Louisiana, for trial by jury
+and other institutions derived from the common law have
+profoundly affected her whole judicial system.] are the outgrowth
+of those of the thirteen English colonies on the Atlantic coast,
+which declared their independence in 1776.
+
+The colonial charters, whether of the proprietary, provincial or
+republican type, were all equally charters for Englishmen, based
+on the common law of the English people. So far as they granted
+legislative power, it was generally declared that it should be
+exercised in conformity, so far as might be practicable, with the
+laws of England. The proviso to this effect in the roving patent
+given by Queen Elizabeth to Sir Walter Raleigh may be taken as a
+type: "so always as the said statutes, lawes, and ordinances may
+be, as neere as conveniently may be, agreeable to the forme of
+the lawes, statutes, government, or pollicie of
+England."[Footnote: Poore, "Charters and Constitutions," II,
+1381.]
+
+In the Southern New England colonies, when first settled, the
+common law of England was disowned. They made the little law
+which they needed for themselves, and as cases which this might
+not provide for arose, they were to be decided by such rules as
+the magistrates might think right and warranted by the precepts
+found in the Bible. Connecticut continued to insist on this
+view, with general consistency, until the days of the Stamp Act,
+when it became the interest of her people to claim the benefit of
+the principles of the English constitution and of the common law,
+on which it was built up.[Footnote: Colonial Records of Conn.,
+1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._
+citations by D. Davenport, _arguendo,_ in Flynn _v._
+Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State
+archives.]
+
+In early Massachusetts the written pleadings often referred to
+the Bible, quoting a text from it as an authority, just as
+citations now might be made in a lawyer's brief from a legal
+treatise or reported case.[Footnote: Publications of the Colonial
+Society of Mass., III, 324.]
+
+As was anticipated in the Raleigh patent, it was found from the
+first and everywhere that if the common law was to be applied to
+the rough conditions of colonial life some modifications were
+necessary. These the colonists were, in the main, left free to
+make at their pleasure. Much of this work came to be done by
+their legislative assemblies; more by their courts. The
+assemblies sat but for a few days in the year: the courts were
+always open to suitors, and sessions of the inferior ones were
+frequent.
+
+The assemblies, however, were themselves courts. At first they
+kept in their own hands a large share of judicial power. They
+acted as the early parliaments of England had acted, both as a
+legislature and a judicial tribunal. In several colonies they
+long kept to themselves the right of deciding private
+controversies on equitable principles. They sat as a court of
+review, to grant new trials or review judgments. They passed
+acts of attainder. They settled insolvent estates.[Footnote:
+Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]
+
+This mingling of judicial with legislative functions is a thing
+to be tolerated only while the foundations of a government are
+being laid. As the Roman plebeian, in the days before the Twelve
+Tables, clamored for a known and certain law, so the common
+people of the early colonies insisted that from a similar want
+they held their rights too much at the will of their rulers. In
+the colony of New Haven a code was early framed; but there they
+built on a written law--the Bible.[Footnote: New Haven Colony
+Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where
+they were more anxious to avoid conflict with the common law, the
+problem was a serious one.
+
+Winthrop, writing in 1639, describes it with his usual clearness
+and discrimination thus:
+
+  "The people had long desired a body of laws, and thought their
+  condition very unsafe while so much power rested in the
+  discretion of magistrates.... Two great reasons there were,
+  which caused most of the magistrates and some of the elders not
+  to be very forward in this matter. One was want of sufficient
+  experience of the nature and disposition of the people,
+  considered with the condition of the country and other
+  circumstances, which made them conceive that such laws would be
+  fittest for us which should arise _pro re nata_ upon
+  occasions, etc., and so the laws of England and other states
+  grew, and therefore the fundamental laws of England are called
+  customs, consuetudines. 2. For that it would professedly
+  transgress the limits of our charter, which provide we shall
+  make no laws repugnant to the laws of England, and that we were
+  assured we must do. But to raise up laws by practice and
+  custom had been no transgression."[Footnote: Winthrop, "History
+  of New England," I, 322.]
+
+The tendency toward partial codification proved too strong to be
+resisted, and all the colonies soon had a substantial body of
+written law published in official form.
+
+The exercise of judicial power by colonial legislatures was
+steadily contracting throughout the century preceding the
+Revolution. Where there were Governors appointed by the crown,
+they discouraged it. The courts were correspondingly
+strengthened. Law became better understood and more wisely
+applied. A large body of local statute law had grown up by 1750,
+much of it already venerable by antiquity, and intimately
+interwoven with the life of the people. Its form and color
+differed in different colonies. Religious views and preferences
+had had a large effect in shaping it. So had influences
+proceeding from the civil war, the Commonwealth, and the
+Restoration. Yet at bottom there was the same substructure in
+Virginia as in Massachusetts, in Pennsylvania as in New York. It
+was the common law of England as it existed in the days of the
+last of the Tudor and first of the Stuart reigns.
+
+This had been built into the foundations of American institutions
+and kept firm in place, not only because the colonists were
+habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's
+(Conn.) Reports, 163, 189.] and themselves both English subjects
+and the descendants of Englishmen of those days, but largely by
+force of the British system of colonial government through the
+Lords of Trade and Plantations. The ancient _aula regis_,
+in which the king dispensed justice at first hand, had survived
+in another form in the tribunal known as the King in Council.
+This, so far as the colonies were concerned, was represented by a
+standing committee of the Privy Council. It was substantially
+the same thing as the Court of Star Chamber, but since 1640
+without the extraordinary penal jurisdiction which gave that so
+evil a reputation for Americans.[Footnote: Maitland, "Justice and
+Police," 5.] This committee was after this restriction of its
+powers known as the Lords of Trade and Plantations,[Footnote: It
+was afterward and is now called the Judicial Committee of the
+Privy Council.] and by its authority from the time when England
+first had colonies of any commercial importance (and those in
+America were the first) their statutes could be set aside and the
+judgments of their courts, when of any considerable magnitude and
+importance, reversed.[Footnote: See Paper on Appeals to the Lords
+of Trade from Colonial Courts, by Harold D. Hazeltine, Report of
+the American Historical Association for 1894, 299.] This
+revisory jurisdiction, though questioned and occasionally evaded
+or thwarted by the colonial governments, became solidly
+established long before the Revolution.[Footnote: "Two Centuries'
+Growth of American Law," 12, 18, 264.] In but one case did a
+colonial court formally ignore a judgment of reversal. This was
+in 1738, when the Superior Court of Judicature of Massachusetts,
+at its sittings in York County, in what is now the State of
+Maine, disobeyed an order of the King in Council made on appeal
+from one of its judgments, and when it was repeated a year later,
+adhered to its original position.[Footnote: Frost
+_v._ Leighton, Publications of the Colonial Society of
+Massachusetts, III, 246.] The amount involved was trifling, and
+the Lords of Trade and Plantations made no further effort to
+enforce their order.
+
+The natural effect of this court of appeal at London was to keep
+the public proceedings of the colonies in line with the common
+law of England, so far as related to its fundamental principles.
+
+A certain uniformity of result was thus secured. American law,
+in its substantial framework, was not allowed to vary from
+English law in any case where agreement was reasonably
+practicable. There was a central power at London ever ready to
+enforce the charter rule. The colonial courts, if their
+judgments were to stand, must proceed in conformity to the
+British constitution. Justice must be administered by due course
+of law, and to find out what that due course was the judges were
+forced to study the English law-books. When Blackstone's
+Commentaries were first published, more copies were sold in
+America than in England.[Footnote: "Two Centuries' Growth of
+American Law," 20.]
+
+The colonial bench was weaker than the colonial bar. Judicial
+station was at first always, and later often, a mere incident of
+political office. When judges were appointed whose functions
+were wholly judicial, their selection was largely dictated by
+political considerations or executive favor. Few of them were
+really learned in the law. Of the bar many were. That of
+Massachusetts did not conceal its disapprobation when
+Lieutenant-Governor Hutchinson, although he had never been a
+member of it, was appointed Chief Justice in 1760. None of the
+judges of the first Superior Court in that colony were
+lawyers.[Footnote: Winsor, "Narrative and Critical History of
+America," V, 166.] In some of the others the Governor was the
+Chancellor, and in Maryland he was at one time the Chief Justice
+also.[Footnote: Steiner, "Maryland's First Courts," Reports of
+American Historical Association for 1901, 211; Osgood, "The
+American Colonies in the Seventeenth Century," I, Chap. II; II,
+Chap. XII.] In several the judges were appointed during the
+king's pleasure, and the Governor removed them at his discretion,
+without any notice or hearing.[Footnote: Bancroft, "History of
+the United States," II, 279. A notable instance of a removal in
+consequence in part, at least, of a decision as to the royal
+prerogative, not relished by the Governor, was the case of Chief
+Justice Lewis Morris of New York, in 1733. Documents relating to
+the Colonial History of New York, V, 948; VI, 4, 8, 951.]
+
+In those colonies which were provided by charter with a Court of
+Assistants, this body soon came to act as a judicial court. This
+took place in the colony of Massachusetts Bay as soon as the seat
+of the company's government was transferred from England to
+America, and took place as a matter of course. Divisional courts
+were frequently held by part of the assistants, with original
+jurisdiction of minor causes, and all sat semi-annually, or
+oftener, to try larger ones and hear appeals.[Footnote: Noble,
+"Records of the Court of Assistants of Massachusetts Bay," I,
+Preface; Publications of the Colonial Society of Massachusetts,
+III, 317.]
+
+In Connecticut, appellate jurisdiction was originally retained by
+the General Assembly, but when the docket became too crowded,
+resort was occasionally had to the appointment of a special and
+temporary commission of appeals to clear it off. As early as
+1719, one was constituted for this purpose to hold office for two
+years.
+
+No colony set up a permanent supreme court with full appellate
+jurisdiction. None probably cared to do this, and none probably
+thought that it could. The Lords of Trade and Plantations would
+have rightly thought such a step hardly consistent with the
+maintenance of their revisory and controlling powers. It would
+have been too costly to allow two appeals; and for them to
+reverse a judgment of a colonial supreme court would have been
+more distasteful to Americans than the exercise of a similar
+power as to a court professedly of superior, not supreme,
+jurisdiction.
+
+New York had a court named Supreme, but its business was largely
+the trial of original causes, and the Governor and Council
+claimed the right of reviewing its judgments. The judges in 1765
+denied the existence of such a right, but the King in Council
+decided against them.[Footnote: Hunt, "Life of Edward
+Livingston," 26.]
+
+As soon as regular judges, not members of other departments of
+the government, were appointed for the highest court, they were
+generally required to perform circuit duty in the various
+counties during part of each year.[Footnote: See
+"Am. Hist. Review," III, 44.] This was a leading feature of the
+judicial establishment set up in 1686 under Sir Edmund Andros for
+the "Dominion of New England."[Footnote: Col. Rec. of Conn., III,
+402, 411.]
+
+South Carolina, for a hundred years, centered all her judicial
+business at Charleston. No courts sat anywhere else and all the
+lawyers in the State resided in the city. In the latter part of
+the eighteenth century she followed the other colonies in
+establishing a circuit system and county courts.[Footnote: Morse,
+"American Universal Geography," ed. 1796, 690; Osgood, "The
+American Colonies in the Seventeenth Century," II, 279, 300.]
+
+There was occasionally some little approach to English form when
+the colonial judges went on the circuit. In Massachusetts the
+sheriff or his deputy was accustomed to come out from the court
+town to meet the judges as they approached it, to open a term of
+court.[Footnote: "Life and Works of John Adams," II, 280. See
+Chap. XIII.]
+
+Acts of Parliament directly affecting procedure in American
+courts, and unifying its methods in some particulars, were
+occasionally passed during the colonial era. Such was the Act of
+1732 (V, Geo. II, Chap. VII), making affidavits taken in England
+admissible in any suit in an American colony to which an
+Englishman might be a party, and providing that all American real
+estate (including negro slaves employed upon it) should be
+subject to be levied on for any debts of the owner, although real
+estate in England could only be taken for debts of a particular
+kind.[Footnote: Connecticut promptly passed a statute extending
+the new remedy thus given, so as to authorize the sale of land
+belonging to the estate of a deceased person, to pay his debts,
+if he did not leave sufficient personal estate for that purpose.
+Col. Rec. of Conn., VII, 444.] Other English statutes, passed
+after the settlement of the colonies, and not in terms applying
+to them, were often adopted here, either by the enactment of
+colonial statutes to the same effect or by incorporation into our
+common law by tacit consent, as interpreted by the
+courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
+489, 494.]
+
+The benefit of the writ of _habeas corpus_, which, though
+issuable at common law, really first took its present shape in
+1679, by the Act of 31 Charles II, Chap. II, was thought in this
+country, though not by the Lords of Trade and Plantations, to be
+a privilege of Americans, as British subjects. In some colonies
+this statute was re-enacted, or, as in Virginia, rights under it
+conceded under the royal prerogative. In others, as in Maryland,
+it was treated as being, by tacit adoption, the birthright of the
+inhabitants. In the "Declaration and Resolves" of the first
+Continental Congress, they assert "that the respective colonies
+are entitled to the Common Law of England," and in the address to
+the people of Great Britain they complain that the English
+settlers in Canada "are now the subjects of an arbitrary
+Government, deprived of Trial by Jury, and when imprisoned cannot
+claim the Benefit of the _Habeas Corpus_ Act, that great
+Bulwark and Palladium of English Liberty."[Footnote: Journals of
+Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
+Colonies," American Historical Review, VIII, 18.]
+
+The same sentiments dictated the terms of the Ordinance of 1787,
+under which our first Territories were to be organized. One of
+its leading provisions was this:
+
+  ART. 2. The inhabitants of the said territory shall always be
+  entitled to the benefits of the writ of _habeas corpus_,
+  and of the trial by jury; of a proportionate representation of
+  the people in the legislature, and of judicial proceedings
+  according to the course of the common law.
+
+A recognized system of jurisprudence had, under the circumstances
+and from the causes which had been stated, begun to grow up
+before the Revolution. It might fairly be called American, but
+it was thoroughly English by heredity, and had been shaped by a
+long succession of English influences, and steadied by the firm
+hand of English power.
+
+The Revolutionary War made everything connected with the law of
+England distasteful to the people at large. The lawyers knew its
+value: the community did not. Public sentiment favored an
+American law for America. It was quickened by the unfriendly
+feeling toward the mother country which became pronounced toward
+the close of the eighteenth century and culminated in the War of
+1812. Several of the States, New Jersey leading off, passed
+statutes forbidding the citation, in the argument of causes, of
+any decisions of the English courts made since the Declaration of
+Independence. Under one of these Henry Clay, in 1808, was
+stopped by the Supreme Court of Kentucky when reading in argument
+from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
+Boffman, Hardin's Rep., 348, 364.] but after a few years,
+legislation of this kind, while it might remain formally
+unrepealed, was treated as obsolete both by court and
+bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
+(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
+I, 613 (1807).]
+
+In courts held by unlearned judges, also, English law-books were
+lightly considered. One of this kind was Chief Justice
+Livermore, of New Hampshire. Shortly after the close of the
+Revolution, while presiding on the bench, he stopped a lawyer who
+was reading from one with the inquiry whether he thought that the
+members of the court did not "understand the principles of
+justice as well as the old wigged lawyers of the dark ages
+did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]
+
+But whether cited or not from their original sources, the settled
+doctrines of English law were sure in the end to permeate both
+bar and bench in every State.
+
+The Roman law and the law of nations were studied in preparation
+for admission to the American bar more generally and more
+thoroughly in the years immediately preceding and following the
+Revolutionary era than they have been since.[Footnote: See
+Chap. XXIII.] The law student was also set then to reading more
+books on English law than he is now.[Footnote: See Report of the
+American Bar Association for 1903, p. 675.] He learned his
+profession by the eye and not by the ear. His only lectures were
+the occasional arguments on a demurrer or writ of error which he
+might hear in the court room, and these were a reiteration of
+rules laid down in English law-books.
+
+The reason why he read more of Roman law than is now required in
+legal education was mainly that there was more time for it, since
+of English law reports there were then few, and of American none.
+
+When the Revolution broke out it also became important in helping
+to explain the practice in prize courts. These were set up (or
+existing common law courts invested with admiralty jurisdiction)
+in all the States, and American privateers gave them not a little
+business. In order to secure uniformity of decision in matters
+so directly affecting our foreign relations, the Continental
+Congress claimed the right to exercise appellate functions,
+through a standing committee of its members, and in 1780
+organized a formal court for the purpose, styled "The Court of
+Appeals in Cases of Capture." Three judges were appointed and
+provided with a register and seal. They held terms at Hartford,
+New York, Philadelphia and Richmond during the next six years.
+On an average about ten cases were disposed of annually, and the
+decisions were generally conceded to have been fair and well
+supported by the rules of admiralty and the law of
+nations.[Footnote: See Jameson, "Essays on the Constitutional
+History of the United States," I; J. C. Bancroft Davis, "Federal
+Courts Prior to the Adoption of the Constitution," 131 United
+States Reports, Appendix, XIX.]
+
+The influence of French ideas was strong in shaping constructive
+work in American politics, as the colonies passed into States;
+but aside from the separation of the judicial department from the
+executive and legislative it had little effect upon the courts
+until the opening of the nineteenth century. Then the principles
+of the Roman law, particularly as presented and illustrated by
+the French jurists, were seized upon by Kent and Story, and
+served greatly to expand and enrich our jurisprudence.[Footnote:
+"Memoirs and Letters of James Kent," 117.]
+
+The course of events which has been sketched left certain ideas
+in regard to the position and powers of the judiciary with
+respect to the other branches of the government firmly imbedded
+in the American mind. These may be thus summarized:
+
+Judges were to proceed according to established rules, so far as
+established rules might exist.
+
+They were to proceed in analogy to established rules as to points
+which no established rule might cover.
+
+They were to look to the common law and political institutions of
+England to determine what rules were established, as to points
+not covered by local usage or legislation.
+
+Local usage or legislation might, within certain limits, depart
+from the common law and even from the political institutions of
+England.
+
+There were limits to such departure, and a colonial statute or
+judgment which transgressed them could be annulled or set aside
+by a higher authority.
+
+This higher authority might be judicial or political, or one
+which shared both judicial and political functions.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER II
+
+
+        THE SEPARATION OF THE JUDICIAL POWER FROM THE
+            LEGISLATIVE AND EXECUTIVE IN AMERICAN
+                    CONSTITUTIONS
+
+
+From the colonial system of legislatures by which all the powers
+of government were at times exercised to the modern American
+State, with its professed division of them into three parts, and
+assignment of each to a distinct department, was a long step.
+
+So far as the United States were concerned, the weakness of the
+government under the Articles of Confederation had been
+universally acknowledged and was generally thought to come in
+part from throwing whatever powers the States had granted, in a
+mass, into the hands of the Continental Congress. Nevertheless,
+the Constitution of the United States is not framed upon the
+principles of a strict tripartite division. It places the
+executive power in the hands of the President, all the
+legislative powers which were granted by it in Congress, and the
+judicial power in certain courts; but it does not follow the
+earlier State Constitutions in declaring that whatever was vested
+in either of these three depositaries was and must always be
+different in kind from that vested in any other of them.
+
+On this point Virginia set the fashion, but the sonorous phrase
+of the Massachusetts Constitution of 1780 is the most familiar,
+in its declaration (Part the First, Art. XXX) that "in the
+government of this commonwealth, the legislative department shall
+never exercise the executive and judicial powers, or either of
+them; the executive shall never exercise the legislative and
+judicial powers, or either of them; the judicial shall never
+exercise the legislative and executive powers, or either of them;
+to the end it may be a government of laws, and not of
+men."[Footnote: The last declaration of purpose was taken from
+Harrington's _Oceana_, in which it is said that while a
+monarchy is an empire of men, "a commonwealth is an empire of
+laws and not of men." Works, London ed., 35, 42, 224.]
+
+It was from an unwillingness to commit themselves to such a
+principle that the people of Connecticut and Rhode Island
+preferred for many years to be governed in the old way by their
+legislatures, without a written constitution. During this
+period, the General Assembly of Connecticut repeatedly exercised
+the power of setting aside judgments of courts, and its right to
+do so was sustained by the Supreme Court of the United
+States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3
+Dallas' Reports, 386.]
+
+The courts of the United States were called upon at an early day
+to determine how far Congress could invest them with functions
+that were not judicial or not to be performed in a judicial
+manner. An act was passed requiring the Circuit Courts to pass
+upon claims for invalid pensions, their decisions to be subject
+to review by Congress. The performance of this duty was
+declined, and the attempt to put a judgment of a court under the
+control of the legislature made the refusal so plainly proper
+that the act was repealed at the next session.[Footnote:
+Hayburn's Case, 2 Dallas' Reports, 409.]
+
+It was easier for the United States to maintain from the first
+this general scheme for the division of power than for the early
+States. Their people had grown up under too different a plan of
+government. It had become so familiar to them that they could
+hardly believe that it had been abolished. Tradition for them
+interpreted their new Constitutions and overmastered them. The
+State legislatures therefore continued for a time to claim some
+control over the judiciary, or at least a right to criticise and
+censure its doings.[Footnote: See Chap. VII.]
+
+In many of our State Constitutions, after providing for a
+distribution of powers between three separate departments,
+instead of absolutely prohibiting any of them from exercising any
+power properly belonging to either of the others, it is declared
+that this shall not be done, except as may be expressly allowed
+in subsequent articles.
+
+Such a declaration was proposed in the draft of the Constitution
+of Connecticut, reported to the convention which framed it in
+1818; but on objection it was struck out.[Footnote: Journal of
+the Constitutional Convention of Connecticut, pp. 78, 55.] It
+was thought better to leave the relations of the departments to
+each other to be worked out in practice, and for nearly eighty
+years afterward the legislature continued to exercise some
+judicial power. It sometimes gave equitable relief to carry out
+a charitable purpose in a will, which would otherwise fail. It
+interfered repeatedly in probate proceedings. It released
+sureties in judicial recognizances. It set aside judgments.
+[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315;
+Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of
+the Supreme Court of Errors sanctioned the practice;[Footnote:
+Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898
+the court overruled its former opinion, and held that as the
+three departments were made separate and distinct, it needed no
+express constitutional declaration to prevent either from
+invading the province of the other, and so that no power not
+judicial in its nature could be conferred upon the
+courts.[Footnote: Norwalk Street Railway Company's Appeal, 69
+Conn. Reports, 576; 37 Atlantic Reporter, 1080.]
+
+But may not a power be judicial in its nature and yet not wholly
+so?
+
+It is practically impossible to establish in every instance a
+plain line of demarcation between legislative, executive and
+judicial functions.
+
+Courts, for instance, make rules of practice. In one sense this
+is a judicial act, because it is one appropriate for the
+judiciary. In another point of view it is an act of legislation.
+In nothing does it resemble the act of judging a litigated cause.
+
+Impeachments are both political and judicial proceedings, but
+American constitutions leave them wholly to the legislative
+department.
+
+Franchises to exist as an artificial person are the proper
+subjects of legislative grant, but with the growing insistence in
+our Constitutions on absolute equality of right, they are now
+almost everywhere given only by general laws. Such a law will
+offer incorporation for certain purposes to any who choose to
+avail themselves of the privilege by fulfilling certain
+conditions and filing certain papers in a public office. But
+what shall be the nature of this office, and who shall decide
+whether these conditions have been fulfilled and these papers
+filed?  The legislature may select an executive, a legislative,
+or a judicial office. It may entrust this power of decision to
+an executive, a legislative, or a judicial officer. It has, in
+fact, in some States, entrusted it to a court, and authorized it,
+if it decided in favor of those claiming incorporation, not only
+to record the decision, but to issue the paper which shows that
+they are entitled to possess and enjoy the franchise.
+
+It is safe to assert that in no State are the functions of the
+courts purely judicial. Many belonging to the administration of
+the methods of political government are in all intrusted to
+judicial officers either originally or by way of review. Some of
+these concern such matters of internal police, as the enforcement
+of laws to preserve the public health or to regulate the sale of
+intoxicating liquors, and the establishment and repair of
+highways.[Footnote: Application of Cooper, 22 New York Reports,
+67, 82, 84; Norwalk Street Railway Company's Appeal, 69
+Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._
+New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter,
+960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477;
+Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North
+Eastern Rep. 381.] Instead of creating a system of bureaus and
+prefects, we have adhered to the English plan of administering
+local and county concerns through justices of the peace, courts
+of quarter-sessions, and county or parish courts.[Footnote: See
+Maitland, "Justice and Police," 85.] Of the affairs committed to
+such authorities some pertain to the conduct of elections, and
+courts are frequently empowered to appoint election officers or
+clerks, because it is felt that thus a wise impartiality in
+selection can best be attained.[Footnote: People _v._
+Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596;
+56 American Reports, 793; _Ex parte_ Siebold, 100
+U. S. Reports, 371, 397.]
+
+It is vital to the proper working of government under a written
+constitution that these constitutional restrictions on the powers
+of the courts should not be too strictly interpreted. Every step
+in the progress of civilization makes this the more obvious. No
+absolute trinity of governmental form can be maintained in human
+society, as the relations of each individual to his fellows, and
+of the State to all, become, and necessarily become, more
+numerous and complicated. In every State that department which
+in practice proves the strongest will push its jurisdiction
+furthest.
+
+It may be said, in view of its now established power to decide
+between higher and lower forms of law,[Footnote: See Chap. VII.]
+that the judiciary has proved the strongest. The legislature, as
+has been stated, have found it a convenient depositary of many
+quasi-legislative and quasi-executive functions, and this also
+has largely increased its power.
+
+The theory of the French philosophers that all the powers of
+government could be divided into three parts, each bearing a name
+descriptive only of itself, is not supported by the practical
+experience of Americans. There are functions that might as well
+be assigned to one of these parts as to another, or made into a
+fourth and called administrative.[Footnote: Under authority of
+her present Constitution, Virginia in 1904 organized a State
+Commission for the Supervision of Corporations, which has both
+judicial and administrative functions.]
+
+The Constitution of the United States recognizes this in effect.
+It makes the Senate an executive council, as well as a
+legislative chamber. It allows Congress to vest the appointment
+of any inferior officers in the courts (Art. II, Sec. 3). In
+practice this power has been freely used.
+
+The Supreme Court of the United States has had occasion to
+consider this question in connection with the statutes defining
+the jurisdiction of the Circuit Courts. It extends to certain
+"suits." But what is a suit?  It is not necessarily a proceeding
+at common law or in equity or admiralty. It may be a statutory
+process. "Even," they say, "an appeal from an assessment, if
+referred to a court and jury, or merely to a court, to be
+proceeded in according to judicial methods, may become a suit
+within the act of Congress."[Footnote: Upshur County _v._
+Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding
+by the government to take land for public use on payment of due
+compensation, they observe that "the general rule with regard to
+cases of this sort is, that the initial proceeding of
+appraisement by commissioners is an administrative proceeding,
+and not a suit; but that if an appeal is taken to a court, and a
+litigation is there instituted between parties, then it becomes a
+suit within the meaning of this act of Congress."[Footnote:
+_Ibid_., 475.]
+
+In one point of considerable importance express constitutional
+provisions generally narrow the jurisdiction of American, as
+compared with English courts. Each house of the legislature is
+made the final judge of the returns and qualifications of its
+members. In England, election contests as to a seat in the House
+of Commons has been made by Act of Parliament the subject of
+judicial determination. This avoids partizan decisions and is so
+far good. It diminishes, however, the independence of the
+legislative house in which the seat is contested. This is
+jealously guarded by our traditions as well as our Constitutions.
+The practice of wearing hats during the sessions of the House of
+Commons was an expression of the early feeling of the English
+Commons on this subject. They would not uncover before speaker
+or king. In some of the early American legislatures the same
+thing was done. Hats were occasionally worn in the House of
+Representatives at Washington as late as the second quarter of
+the nineteenth century.[Footnote: Hunt, "Life of Edward
+Livingston," 301. They were worn in the Continental Congress on
+occasions of ceremony. McMaster, "History of the People of the
+United States," I, 105.]
+
+On the other hand, American courts interfere more readily than
+the English to protect a citizen from arrest by legislative
+authority. Each house of the British parliament has large
+inherited powers over those who may treat it with contempt. Each
+house of an American legislature has some powers of this
+description, but they are far narrower ones.[Footnote: Kilbourn
+_v._ Thompson, 103 U. S. Reports, 168.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER III
+
+
+       THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
+                DEPARTMENTS OF GOVERNMENT
+
+
+Courts of Claims are the only permanent special courts for the
+disposition of causes arising from the acts of public
+officials.[Footnote: One exists for the United States; and one
+for New York.] The system of administrative law prevailing on
+the Continent of Europe, by which all such matters are withheld
+from the ordinary tribunals, is totally unknown here. If the
+Secretary of War of the United States should do some act to a
+private citizen, which may be justified by his official powers,
+but otherwise would not be, he may be summoned to answer for it
+before any civil court having jurisdiction of the parties. So
+may even the President of the United States be sued after the
+expiration of his term.
+
+The President, while President, however, cannot be compelled to
+obey a summons to appear in court. The country cannot spare him
+to go here and there in obedience to a writ. Chief Justice
+Marshall issued one against President Jefferson, directing him to
+appear at the trial of Aaron Burr and bring with him a certain
+paper. Jefferson declined to obey, and there was no attempt to
+enforce the subpoena. Had there been, it would have been found
+that he had taken measures for his protection.[Footnote: Thayer,
+"John Marshall," 79.] Marshall's action was based on an
+admission by the counsel for the government that a summons to
+testify could lawfully issue, though they denied that it could be
+accompanied by a direction to produce documents. This admission
+is now generally thought by the legal profession to have been
+ill-advised. If the President could be summoned at all, he could
+be compelled to obey the summons, and nothing could be more
+unseemly or inadmissible than an attempt of that nature by the
+judiciary against the executive power of the United States.
+
+But while there is nothing like an administrative court for the
+disposition of causes against individuals in the United States,
+considered as a collection of States or of people within those
+States, more freedom has been used by Congress in providing for
+the Territories. This has been conspicuously the case in regard
+to the Philippines. By the Act of Congress of July 1, 1902, they
+were left under the supervision of the War Department, in which
+there was constituted a "Bureau of Insular Affairs," the business
+assigned to which "shall embrace all matters pertaining to civil
+government in the island possessions of the United States subject
+to the jurisdiction of the War Department; and the Secretary of
+War is hereby authorized to detail an officer of the army whom he
+may consider especially well qualified to act under the authority
+of the Secretary of War as the Chief of said Bureau." The
+officer filling the position of chief published in 1904 this
+account of the practical working of the provisions made for the
+disposition of matters of legal controversy occurring on the
+islands: "The establishment of a judicial system in the
+Philippines affords a means for the adjudication of litigated
+questions between the inhabitants and of many questions
+respecting the jurisdiction and authority of officials of that
+government. Whenever possible, controversies are referred to
+those tribunals. In some instances questions have arisen
+affecting the action or authority of officers of the executive
+department of that government in matters controlled by the
+discretion of the administrative branch and affecting the
+administration of civil affairs. These questions are considered
+and determined by the War Department, upon investigation and
+report by the law officer."[Footnote: _National Geographic
+Magazine_ for June, 1904, p. 251.]
+
+Under our American constitutional system, the only courts of an
+administrative or political nature for calling public officers
+directly to account for a breach of public duty are our courts of
+impeachment. These act only occasionally, and when specially
+convened for the purpose of hearing charges against a particular
+individual. They do not grant relief to any party injured by the
+wrongful acts which are the subject of the accusation. They sit
+only to punish the public wrong.
+
+In constituting courts of impeachment, the control of the cause
+is generally given to officers of the legislative department, but
+judicial officers are often joined with them. Such a tribunal
+was long maintained in New York, of which the senators formed the
+majority, but in which the chancellor and judges of the Supreme
+Court also sat. The first Constitution of South Carolina,
+adopted in 1778, contained a similar provision (Art. XXIII).
+
+In most States the Senate alone constitutes the court for trying
+impeachments, but should the Governor be thus brought before
+them, the Chief Justice is added to it, and presides. A similar
+provision is contained in the Constitution of the United States
+as respects the President. The main reason for putting such a
+proceeding under judicial direction is to avoid giving the second
+in rank of the executive magistracy, whose function it generally
+is to preside over the Senate, a position of authority over his
+chief, in a proceeding which, if successful, would put him in his
+place. It also, of course, tends to promote a trial in
+accordance with all the rules of law. The court in such a
+proceeding cannot be regarded as fully organized until the Chief
+Justice is present. It is then first competent to prescribe the
+rules to govern it during the progress of the cause. This was
+the ruling of Chief Justice Chase on the impeachment of President
+Johnson, which was tacitly acquiesced in by the Senate.
+
+New York originally not only gave her legislature a share in
+judicial power, but her judges a share in that of legislation.
+Her Constitution of 1777 provided for a council of revision,
+consisting of the Governor, the Chancellor, and the judges of the
+Supreme Court, to whom all bills which passed the Senate and
+Assembly should be presented for consideration; and that if a
+majority of them should deem it improper that any such bill
+should become a law they should within ten days return it with
+their objections to the house in which it originated, which
+should enter the objections at large in its minutes, and proceed
+to reconsider the bill; and that it should not become a law
+unless re-passed by a vote of two-thirds of the members of each
+house. For forty years this remained the law, and the Council of
+Revision contained from time to time judges of great ability,
+Chancellor Kent being one. During this period 6,590 bills in all
+were passed. One hundred and twenty-eight of them were returned
+by the Council with their objections, and only seventeen of these
+received the two-thirds vote necessary to re-enact
+them.[Footnote: Poore, "Charters and Constitutions," II, 1332,
+1333, note.]
+
+An obvious objection to this method of legislation is that the
+judges who, as members of a council of revision, find nothing
+objectionable in a bill presented for their scrutiny, must
+naturally have a certain pride of opinion to conquer before,
+should its constitutionality become afterward the subject of
+litigation before them, they could be in a frame of mind to
+render an unprejudiced judgment. One of the bills which came
+under the eye of Chancellor Kent as a member of the Council was
+afterward the source of controversy before him in court. He
+adhered to his original views, but was overruled by the Supreme
+Court of the United States. Chief Justice Marshall gave the
+opinion, and half apologetically alluded to this circumstance in
+these words:
+
+  The State of New York maintains the constitutionality of these
+  laws; and their legislature, their council of revision, and
+  their judges, have repeatedly concurred in this opinion. It is
+  supported by great names--by names which have all the titles to
+  consideration that virtue, intelligence, and office can bestow.
+  No tribunal can approach the decision of this question without
+  feeling a just and real respect for that opinion which is
+  sustained by such authority; but it is the province of this
+  court, while it respects, not to bow to it implicitly; and the
+  judges must exercise, in the examination of the subject, that
+  understanding which Providence has bestowed upon them, with
+  that independence which the people of the United States expect
+  from this department of the government.[Footnote: Gibbons
+  _v._ Ogden, 9 Wheaton's Reports, 1.]
+
+A device for obtaining the same end--the views of the judges in
+advance of the enactment of a law--in a different way, has been
+from the first quite common. This is for the legislature to ask
+them specially for their opinion as to the constitutionality of a
+bill before it is put upon its passage. An analogous practice
+has always obtained in England, and was followed in several of
+the colonies.
+
+Some of our State Constitutions expressly authorize such
+proceedings. In the absence of such authority, the judges can
+properly decline to comply with the request. It always asks them
+to prejudge a question which may later come before them in court,
+and to prejudge it without hearing any of the parties whom it may
+affect injuriously.[Footnote: See the Reply of the Judges of the
+Supreme Court of the General Assembly, 33 Conn. Reports, 586.]
+
+President Washington, in 1793, brought a matter of this kind
+before the justices of the Supreme Court of the United States.
+It was during the controversy with M. Genet, the French minister,
+as to his right to refit a captured English merchantman as a
+privateer at an American port, and then send her out for a
+cruise. By the advice of his Cabinet, the President asked the
+justices a series of questions comprehending all the subjects of
+difference as to the proper exposition of the provisions of our
+treaties with France under which her minister made claim. They
+replied that they deemed it improper to enter the field of
+politics by declaring their opinions on questions not growing out
+of some case actually before them.[Footnote: Marshall, "Life of
+Washington," V, 433, 441.] No further request of this kind has
+since been made by any of the political departments to a court of
+the United States, except such as have been addressed to the
+Court of Claims.
+
+Idaho, in her Constitution (Art. V, Sec. 25), has sought to give
+the legislature the benefit of judicial advice at the opening of
+each session as to what laws it might be desirable to enact. The
+judges of her trial courts are annually to report to those of her
+Supreme Court such defects and omissions in the laws as their
+knowledge and experience may suggest, and the latter, after
+considering these suggestions, are then, within the next five
+months, to report to the Governor such defects and omissions,
+both in the Constitution and in the laws, as they may find to
+exist.
+
+The duty of the judiciary, in the course of lawsuits, to compare
+a statute, the validity of which is called in question, with the
+Constitution, and by the decision indirectly to affect
+legislation, is treated of elsewhere.[Footnote: Chap. VII.]
+
+The courts of the United States, in controversies involving
+matters affecting the foreign relations of the general
+government, acknowledge in a certain degree a dependence upon the
+executive department. If they have a treaty to construe, any
+construction of it as to the point in question already given by
+the State Department will be followed, unless plainly wrong. If
+it becomes material to determine whether a certain country is
+subject to a certain power, and the President of the United
+States has dealt with that question (as by recognizing or
+refusing to recognize a minister accredited to the United
+States), his action will be accepted as conclusive. His
+proceedings would have like weight if taken within the limits of
+his authority with respect to the government of one of the United
+States.[Footnote: Luther _v._ Borden, 7 Howard's Reports,
+1.]
+
+When questions of this nature arise in a lawsuit between private
+parties, the courts can, without notice to them, seek information
+by communicating directly with the Department of State. It will
+be given by a letter or certificate, and this will be received as
+a conclusive mode of proof or as aiding the court in taking
+judicial notice of historical facts.
+
+So an official letter or certificate from the minister or consul
+of a foreign power can be received and used as evidence as to
+facts in controversy peculiarly within the knowledge of that
+government.[Footnote: Gernon _v._ Cochran, Bee's Reports,
+209.]
+
+In prize cases, which must all be brought before the District
+Court, an appeal is allowed directly to the Supreme Court of the
+United States, although the judgments of the District Court
+generally are reviewable only in an intermediate court. This
+secures a prompt decision by the highest judicial authority of a
+question which necessarily affects, in some degree, the foreign
+relations of the United States.
+
+But there may be cases affecting a vessel claimed as a prize
+which are not brought to secure her forfeiture and so are not
+prize cases. They may even to a greater extent affect our
+relations to foreign governments. How far can the courts, in
+dealing with these, govern their action by that of the executive?
+
+This question came up for decision shortly after the adoption of
+the Constitution. Great Britain and Spain were at war. A
+British man-of-war brought a Spanish felucca into Charleston,
+claiming her as a prize, and she was advertised for sale. No
+proceedings to have her adjudicated a lawful prize had been taken
+before any court. The Spanish consul applied to the Circuit
+Court for an injunction against the sale, claiming that for the
+United States to permit it would be a breach of neutrality and
+contrary to the law of nations. The British consul resisted the
+application on the ground that a sale could not be forbidden in
+the absence of any act of Congress on the subject, except by the
+President. The Chief Justice, who sat in the case, gave the
+opinion, which was that there could be no lawful sale without the
+permission of the United States; that it was a matter proper to
+be dealt with by the President; that the court would not say how
+he should deal with it; but that an injunction might issue to
+stop the sale until further order, unless permission should be
+sooner obtained from the President.[Footnote: Consul of Spain
+_v._ Consul of Great Britain, Bee's Reports, 263.] Here,
+therefore, an act which might have been a _casus belli_ was
+stayed by a court until and unless the Executive should intervene
+and permit it.
+
+The extradition of criminals under a treaty on the demand of a
+foreign government presents a debatable ground in respect to the
+subject now under consideration. The surrender is an executive
+proceeding and a political act. But the laws may provide for a
+preliminary inquiry before a court into the propriety of
+complying with the demand. They certainly provide for a judicial
+proceeding by writ of _habeas corpus_ to release any one
+arrested in such a proceeding if held without due cause. Is the
+court before which either of these proceedings may be had at
+liberty to receive advice or submit to instructions from the
+President of the United States?
+
+This question stirred the country to its depths in 1799. Great
+Britain applied to our government for the extradition of a seaman
+who claimed to be an American citizen and was charged with
+committing murder on a British man-of-war. He was arrested in
+South Carolina, under a warrant from the District Judge, and
+lodged in jail. There was a treaty of extradition between the
+two powers covering cases of murder, but no particular machinery
+had been provided for regulating the surrender. The British
+consul asked the judge who had made the commitment to order his
+delivery to him. The judge doubted his power to do so.
+Thereupon the Secretary of State, by authority of the President,
+wrote him that the President advised and requested him to make
+the surrender, if satisfied with the proofs of criminality, as he
+(the President) was of opinion that any crime committed on a
+man-of-war was committed within the territory of the power to
+which it belonged. The judge complied with this request, after a
+public hearing on a writ of _habeas corpus_, under which he
+ordered the man in question to be brought before him, and in the
+course of it this letter was shown to counsel on both sides.
+
+The surrender became at once the subject of heated debates in
+Congress, but the President's course was ably and conclusively
+defended by Marshall on the floor of the House,[Footnote: United
+States _v._ Nash _alias_ Robins, Bee's Reports, 266;
+Robbins' Case, Wharton's State Trials, 392.] and the course
+pursued has since been followed in substance by our extradition
+statutes.[Footnote: United States Revised Statutes, Secs. 5270,
+5272.] These provide for a hearing of a judicial character, and
+then, if that results in a determination that a surrender should
+be made, it may be ordered on a warrant from the State
+Department.
+
+On the other hand, the peculiar provision of the Constitution of
+the United States which makes treaties the supreme law of the
+land calls upon the courts to enforce them according to whatever
+interpretation they may conclude to give them, even if it should
+differ from that adopted by the President or the State
+Department. If a treaty prescribes a rule by which the rights of
+private individuals are to be determined, and those rights are
+such as can be appropriately made the subject of a lawsuit, the
+court before which it may be brought has as full authority to
+construe the treaty as it would have to construe an act of
+Congress, were the matter in controversy one of a statutory
+nature. They cannot be appropriately made the subject of a
+lawsuit so long as the questions involved are under active
+consideration in the course of diplomatic negotiation and pending
+for decision before the President. Let him, however, once make
+his decision and the doors of the court fly open.
+
+These principles are well illustrated by some incidents of our
+controversy with Great Britain over the seal fisheries in Behring
+Sea. There was a serious dispute between the two governments as
+to the limits of our jurisdiction over the waters adjacent to
+Alaska. We maintained that it ran to the middle of Behring's
+Straits and from the meridian of 172° to that of 193° west
+longitude. Great Britain contended for the three-mile limit.
+Pending diplomatic negotiations as to this point, one of our
+revenue cruisers seized a Canadian vessel which was engaged in
+seal fishing nearly sixty miles from the Alaskan coast, and she
+was condemned, on a libel by the United States, by an admiralty
+court in Alaska.
+
+The owner in 1891 applied to the Supreme Court of the United
+States for a writ to prohibit the enforcement of this decree of
+confiscation. The Attorney-General of Canada filed in this suit
+papers in aid of the application, stating that he did so with the
+knowledge and approval of the imperial government, and that he
+would be represented by counsel employed by the British minister
+resident. The writ was refused on technical grounds, but the
+court, through Chief Justice Fuller, made these observations as
+to the merits of the cause:
+
+  In this case, Her Britannic Majesty's Attorney-General of
+  Canada has presented, with the knowledge and approval of the
+  Imperial government of Great Britain, a suggestion on behalf of
+  the claimant. He represents no property interest in the
+  vessel, as is sometimes done by consuls, but only a public
+  political interest. We are not insensible to the courtesy
+  implied in the willingness thus manifested that this court
+  should proceed to a decision on the main question argued for
+  the petitioner; nor do we permit ourselves to doubt that under
+  such circumstances the decision would receive all the
+  consideration that the utmost good faith would require; but it
+  is very clear that, presented as a political question merely,
+  it would not fall within our province to determine it.... We
+  are not to be understood, however, as underrating the weight of
+  the argument that in a case involving private rights, the court
+  may be obliged, if those rights are dependent upon the
+  construction of acts of Congress or of a treaty, and the case
+  turns upon a question, public in its nature, which has not been
+  determined by the political departments in the form of a law
+  specifically settling it, or authorizing the executive to do
+  so, to render judgment, "since we have no more right to decline
+  the jurisdiction which is given than to usurp that which is not
+  given."[Footnote: _In re_ Cooper, 143 United States
+  Reports, 472, 503.]
+
+In the following year a convention was concluded between the
+United States and Great Britain for the submission of the
+question of our jurisdiction over Behring's Sea to arbitration.
+The arbitration took place and the award supported the British
+contention. Congress passed an act to give it full effect. The
+convention provided in terms that "the high contracting parties
+engage to consider the result of the proceedings of the tribunal
+of arbitration as a full, perfect and final settlement of all the
+questions referred to by the arbitrators."
+
+In July, 1891, before the award was made, an American vessel
+engaged in the seal fishery outside the three-mile limit was
+seized by one of our revenue cutters. A libel was filed by the
+United States in the admiralty court for Alaska and she was
+condemned. Her owners appealed to the Circuit Court of Appeals,
+on the ground that the seizure was made outside of the
+jurisdiction of the United States. If so, they were entitled to
+her release. The court held that the limits of this jurisdiction
+were conclusively settled by the award, and thus adverted to the
+claim that they should treat the case as the Supreme Court of the
+United States had dealt with that which followed the seizure of
+the year before:
+
+  This question has been settled by the award of the arbitrators,
+  and this settlement must be accepted "as final." It follows
+  therefrom that the words "in the waters thereof," as used in
+  section 1956, and the words "dominion of the United States in
+  the waters of Behring Sea," in the amendment thereto, must be
+  construed to mean the waters within three miles from the shores
+  of Alaska. In coming to this conclusion, this court does not
+  decide the question adversely to the political department of
+  the government. It is undoubtedly true, as has been decided by
+  the Supreme Court, that, in pending controversies, doubtful
+  questions which are undecided must be met by the political
+  department of the government. "They are beyond the sphere of
+  judicial cognizance," and "if a wrong has been done, the power
+  of redress is with Congress, not with the judiciary." The
+  Cherokee Tobacco, 11 Wall., 616-621. But in the present case
+  there is no pending question left undetermined for the
+  political department to decide. It has been settled. The
+  award is to be construed as a treaty which has become final. A
+  treaty when accepted and agreed to becomes the supreme law of
+  the land. ... The duty of courts is to construe and give
+  effect to the latest expression of the sovereign will; hence it
+  follows that, whatever may have been the contention of the
+  government at the time _in re_ Cooper was decided, it has
+  receded therefrom since the award was rendered, by an agreement
+  to accept the same "as a full, complete, and final settlement
+  of all questions referred to by the arbitrators," and from the
+  further fact that the government since the rendition of the
+  award has passed "an act to give effect to the award rendered
+  by the tribunal of arbitration."[Footnote: The La Ninfa, 75
+  Federal Reporter, 513, 517.]
+
+The degree of confiscation was therefore reviewed. It will be
+noticed that this result was reached in a suit by the United
+States in one of their own courts, in which the claim of the
+government was one of territorial boundary, and yet that the
+court overruled the claim and threw out the suit on the strength
+of an award made in pursuance of the law of the land. The treaty
+was the law. This law provided for the award and made it,
+whichever view should be adopted, final. It was therefore for
+the court to accept it as final, even against the resistance of
+the political department of the government, and do justice
+accordingly.
+
+The courts before the Revolution, and in some States for half a
+century after it, served as a kind of political mouthpiece. The
+institution of the grand jury[Footnote: See Chap. XVII.] afforded
+the means. Those composing it are personally selected by the
+sheriff from the principal men in the county. It is the duty of
+the court to instruct them at the opening of the term which they
+are summoned to attend as to the law and practice governing the
+exercise of their functions. Frequently this charge was prefaced
+by an harangue from the judge on the social, moral, religious or
+political questions of the day.[Footnote: "Life and Works of John
+Adams," II, 169.] To this the grand jury were not backward in
+responding with compliments and perhaps presentments.
+
+In Massachusetts they went even further in 1774. The House of
+Representatives of the Provincial Assembly impeached the Chief
+Justice for accepting a salary from the Crown instead of relying
+on legislative grants, as had been the practice. The Council
+before which the articles were exhibited declined to entertain
+them. The people, however, felt that the House was right, and
+this sentiment was manifested at the next sessions of the courts
+by the grand and petit juries in every county. They refused to
+take the oaths and stated that they could not take part in
+proceedings presided over by a judge who was under impeachment.
+No business was done in court until the following year, when,
+after the battle of Lexington, new judges were appointed by the
+Council.[Footnote: "Life and Works of John Adams," II, 332; X,
+240; "Principles and Acts of the Revolution," 100.]
+
+Sometimes the laws of the State were criticised in this way by
+judge and jury.
+
+In December, 1788, a grand jury in South Carolina made this
+presentment:
+
+  We present as a grievance of the greatest magnitude the many
+  late interferences of the legislature of the State in private
+  contracts between debtor and creditor. We should be wanting in
+  our duty to our country and regardless of the obligation of our
+  solemn oath and the high trust at this time devolving upon us
+  by operation of the laws of the land, did we omit this occasion
+  between the expiration of one legislature and the meeting of a
+  new representative body, to express our utter abhorrence of
+  such interferences.[Footnote: "American Museum," VII, Appendix
+  II, 10. _Cf. ibid._, 19.]
+
+In a similar way unpopular treaties[Footnote: McMaster, "History
+of the People of the United States," II, 229.] or acts of
+Congress were formerly attacked. In 1819, the action of the
+House of Representatives as to the introduction of slavery in
+Missouri was the subject of a warm protest from a grand jury in
+that territory, which closed thus:
+
+  They hope those restrictions will never more be attempted; and,
+  if they should, they hope by the assistance of the genius of
+  '76 and the interposition of Divine Providence to find means to
+  protect their rights.[Footnote: Niles' Register, XVII, 71.]
+
+The protective tariffs of the United States were frequently
+presented as grievances in the South during the years preceding
+the nullification movement in South Carolina.[Footnote:
+U. B. Phillips, "Georgia and State Rights," Report of the
+American Historical Association for 1901, II, 117.]
+
+In 1825, a grand jury in Pennsylvania presented as a grievance
+the suspension of Commodore Porter from duty for six months under
+sentence of a naval court martial, approved by the Secretary of
+the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
+grand jury in Tennessee presented a "protest against the bold and
+daring usurpations of power by the present Executive of the
+United States" (John Quincy Adams), and stated that "being
+decidedly opposed to the present administration, we have for
+ourselves resolved to oppose all those we have just reason to
+suspect to be friendly thereto, and recommend the same course to
+all our fellow-citizens of Blount County."[Footnote: Niles'
+Register, XXXII, 366.]
+
+In 1777, the Chief Justice of South Carolina began his charge to
+a grand jury with a long statement of the justice of the
+Revolution, its military successes, and the duties of patriotism.
+The court thereupon ordered "That the political part of the Chief
+Justice's charge" be forthwith printed.[Footnote: Principles and
+Acts of the Revolution, 347.]
+
+In 1790, Judge Grimke of the same State took advantage of a
+similar occasion to comment with severity on those who had
+opposed the ratification of the Constitution of the United
+States. Jealousy had done much to poison their minds, he said,
+"for it is observable that throughout the whole of the United
+States a majority of the leaders of the opposition to our newly
+adopted government are not natives of our soil; hence this
+pernicious quality of the mind displays itself more widely in
+America."[Footnote: "American Museum," VIII, Appendix II, 33.]
+
+In 1798, when Elbridge Gerry was the Republican candidate for
+Governor of Massachusetts, a Federalist newspaper reported
+approvingly a charge of Chief Justice Dana of that State. He had
+been an ardent politician before going on the bench and had
+declined a nomination as minister to France during the preceding
+year. "The learned judge," said the Boston _Centinel_, "in
+a forcible manner proved the existence of a French faction in the
+bosom of our country and exposed the French system among us from
+the quintumvirate of Paris to the Vice-President and minority of
+Congress as apostles of atheism and anarchy, bloodshed and
+plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
+"Memoirs of Elbridge Gerry," II, 296, note.]
+
+In 1800, Justice Chase of the Supreme Court of the United States
+made several charges in Maryland hardly less objectionable, one
+of which was afterward unsuccessfully set up by the House of
+Representatives as a ground of his impeachment. The article
+stating it described the charge as "an intemperate and
+inflammatory political harangue with intent to excite the fears
+and resentment of the said grand jury and of the good people of
+Maryland against their state government and Constitution." He
+had, indeed, used this language:
+
+  You know, gentlemen, that our State and national institutions
+  were framed to secure to every member of the society, equal
+  liberty and equal rights; but the late alteration of the
+  federal judiciary by the abolition of the office of the sixteen
+  circuit judges, and the recent change in our State
+  constitution, by the establishment of universal suffrage, and
+  the further alteration that is contemplated in our State
+  judiciary (if adopted) will, in my judgment, take away all
+  security for property and personal liberty. The independence
+  of the national judiciary is already shaken to its foundation,
+  and the virtue of the people alone can restore it. The
+  independence of the judges of this State will be entirely
+  destroyed if the bill for the abolition of the two supreme
+  courts should be ratified by the next general assembly. The
+  change of the State constitution, by allowing universal
+  suffrage, will, in my opinion, certainly and rapidly destroy
+  all protection to property, and all security to personal
+  liberty; and our republican constitution will sink into a
+  mobocracy, the worst of all possible governments. I can only
+  lament that the main pillar of our State constitution has
+  already been thrown down by the establishment of universal
+  suffrage. By this shock alone the whole building totters to
+  its base and will crumble into ruins before many years elapse,
+  unless it be restored to its original state.
+
+All this was less indefensible under the judicial practice of a
+century ago than it would be now, and there were not enough votes
+of Guilty on the article of impeachment founded upon it to secure
+a conviction.
+
+In the same year, Judge Alexander Addison of the Circuit Court of
+Pennsylvania was charging a Pennsylvania grand jury that the
+Jeffersonians had assumed a name that did not belong to them.
+"Such men," he said, "disgrace the name of Republicans by
+exclusively assuming it. In their sheep's clothing they are
+ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
+For this, among other things, he was very properly impeached and
+removed in 1803, after the Republicans came into power in that
+State.[Footnote: McMaster, "History of the People of the United
+States," III, 154.]
+
+It is difficult for the American of the twentieth century to
+conceive how honorable men could so have abused official
+position.[Footnote: Wharton's State Trials, 376. Justice
+Washington made it a rule not to enter into any political
+questions in his charges unless necessary for the guidance of the
+grand jury in the work before them, and until 1817, when party
+feeling had moderated, not to give out copies of any charges for
+publication. Niles' Register, XIII, 169.] The cause lies in the
+extreme rancor which then embittered politics and debased
+society. Federalists and Republicans were hardly on speaking
+terms. Many who were actively engaged in politics felt compelled
+to carry a sword cane for defence if attacked. Judge Addison's
+charge brought out an open letter to him in a Pittsburgh
+newspaper, signed by a Republican who was on the Supreme bench of
+the State, expressing his astonishment that the people who heard
+him "were not fired with sudden indignation and did not drag you
+from your seat and tread you under foot."[Footnote: Wharton's
+State Trials, 47, note.] On the other hand, at a political
+banquet of the Boston Federalists, at about the same time, their
+approval of Judge Dana's charges to grand juries was manifested
+by this toast: "The Honorable Francis Dana, Chief Justice of the
+learned Associate Judges of our Supreme Judicial Court. While
+the political opinions delivered from the bench are dictated by
+intelligence, integrity and patriotism, may they be as highly
+respected as have ever been its judicial decisions."[Footnote:
+Austin, "Life of Elbridge Gerry," II, 297, note.]
+
+The judiciary may, and often do, command and compel inferior
+executive officers to do specific official acts which it is their
+plain duty to perform, or issue an injunction to prevent their
+doing an official act which is plainly beyond their powers.
+Heads of Departments of the State or the United States are
+subject to this power.[Footnote: Noble _v._ Union River
+Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
+U. S. Reports, 466.] So in the Federal Courts are Governors of
+States acting under a law repugnant to the Constitution of the
+United States.[Footnote: Pennoyer _v._ McConnaughy, 140
+U. S. Reports, 1.] No such writ will be issued, however, when
+the case is of a political nature and involves the exercise of
+any official discretion,[Footnote: Georgia _v._ Stanton, 6
+Wallace's Reports, 50.] nor under any circumstances against the
+President of the United States.[Footnote: Mississippi _v._
+Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
+cases be granted by a State court against the Governor there is a
+conflict of authority.
+
+The development of party government in the United States has led
+of recent years to much legislation for the regulation of party
+conventions and party organization in the interest of fair
+dealing and public order. Statutes of this nature relating to
+the form and heading of ballots for use at popular elections are
+common. If conflicting factions contend for the right of issuing
+ballots in the name of the same party, the courts may be called
+upon to decide between them on an application for an injunction
+or writ of mandamus. The legislature, however, may provide that
+some standing agency or committee of a party shall decide finally
+upon any such conflicting claims, and in such case their decision
+will be conclusive upon the courts.[Footnote: State _v._
+Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]
+
+When title to a political office is contested, the courts, unless
+there is some constitutional provision to the contrary, may be
+appealed to for a decision. This is true even in respect to the
+office of Governor.[Footnote: Boyd _v._ Thayer, 143
+U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
+548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
+is a remedy which has been, though in rare instances, abused for
+party purposes.[Footnote: Such a case was the issue by a District
+Judge of the United States in 1872 of an injunction-order under
+which the Marshal took possession of the Louisiana State-house,
+and excluded those claiming to be the legislature of the State.
+Gibson, "A Political Crime," 347 _et seq._; Senate Report,
+457, Forty-second Congress, third session.]
+
+The right of the Governors, which exists under the Constitutions
+of several States, to ask the judges of the Supreme Court for
+their opinion on any question of law, may throw upon them the
+delicate task of deciding in a collateral proceeding who is
+Governor, if the title to the office is claimed by two. This was
+the case in Florida in 1869. The House of Representatives had
+commenced proceedings of impeachment against the Governor. It
+was on the first day of a special session of the Assembly. There
+could be no such session unless a quorum was present in each
+house. There were but twelve Senators in attendance. The
+Lieutenant-Governor regarded the proceedings as regular, and
+assumed to exercise the office of Governor pending the trial.
+The Governor claimed that twelve Senators were not a quorum, and
+that the proceedings were void. On these points he requested the
+opinion of the Justices of the Supreme Court, and they gave one
+supporting his contentions.[Footnote: 12 Florida Reports, 653.]
+A few weeks later a regular session was held, at which a quorum
+was present in each house, and the proceedings of the special
+session were treated as void.[Footnote: S. S. Cox, "Three Decades
+of Federal Legislation," 518, 520.]
+
+In the early days of the United States, under the present
+Constitution, the Chief Justices of the Supreme Court of the
+United States at times filled also a political office, and so
+were invested at the same time with political and judicial
+functions. John Jay, the first Chief Justice, while holding that
+office, was made our Envoy Extraordinary to Great Britain, and
+spent a year abroad in that capacity. His acceptance of the
+position, however, occasioned general and unfavorable comment.
+John Marshall was both Chief Justice and Secretary of State for
+five weeks, during which he held one term of the Supreme Court.
+Oliver Ellsworth was both Chief Justice and minister to France at
+the same time, and for a period of over a year, during which he
+held one term of court.
+
+Nothing of this kind has since occurred, nor would it now be
+thought consistent with the proprieties of judicial office.
+
+When the result of the election of the President and
+Vice-President of the United States was contested in 1877,
+Congress, as a temporary makeshift, bridged over the difficulty
+by creating a commission of fifteen, five from each house and
+five from the Supreme Court, to decide upon the returns. Four of
+the justices were especially selected by the act passed for this
+purpose, two of them being Republicans and two Democrats, and
+they were directed to choose the fifth.[Footnote: 19 United
+States Statutes at Large, 228.] They agreed on Justice Bradley,
+a Republican. The Congressional members were equally divided
+politically. The result proved to be that on every important
+question in controversy every Republican voted for the view
+favorable to the Republican candidates and every Democrat voted
+for the other. The country could not fail to see that judges, as
+well as other public men, may be insensibly influenced by their
+political affiliations, and regarded the whole matter as a new
+proof of the wisdom of separating the judiciary from any
+unjudicial participation in the decision of political
+issues.[Footnote: See Wilson, "Division and Reunion," 286;
+S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
+"Some Account of the Work of Stephen J. Field," 440.]
+
+Justices of the Supreme Court have since sat on international
+tribunals of arbitration, but this is, or should be, a strictly
+judicial proceeding.
+
+In the State Constitutions, the judges of the highest courts are
+now often expressly forbidden to accept other office,[Footnote:
+See Chap XXII.] but in the absence of such a prohibition it would
+be considered as unbecoming. Formerly and during the first third
+of the nineteenth century this was in many States not so. Some
+were then judges because they held legislative office and as an
+incident of it. Others did not hesitate to accept political
+positions. Of the six Federalist electors chosen in New
+Hampshire at the presidential election of 1800, three were judges
+of her Supreme Court.[Footnote: Wharton's State Trials, 47.]
+
+Judges have frequently taken part in constitutional conventions
+of their States. In Virginia, Chief Justice Marshall was a
+member of that of 1829, and Judge Underwood of the District Court
+presided over that of 1867. Chancellor Kent and Chief Justice
+Spencer were members of that of 1821 in New York.
+
+It may well be doubted if the advantages to be gained by their
+counsel in such a position are not outweighed by the evil of
+exposing it to criticism as dictated by selfish considerations.
+A member of the New York convention thus alluded upon the floor
+to the measures supported by the Chief Justice and Chancellor:
+
+  He regretted that such an opinion and plan had been proposed by
+  the Chief Justice. It must have arisen from the politics of
+  the Supreme Court. The judges of that court had been occupied
+  so much in politics that they had been compelled to press upon
+  the public a system that had nothing else to recommend it than
+  such a relief to themselves from the burthen of official duties
+  as would leave them to the free exercise of their
+  electioneering qualifications. But for this, the Chief Justice
+  might have shown a Holt, or a Mansfield. The elevated
+  character of the Chancellor had been often asserted and alluded
+  to. He meant no disrespect to that honorable gentleman. He
+  respected him as highly as any man when he confined himself to
+  the discharge of the official duties of his office; but when he
+  stepped beyond that line; when he became a politician, instead
+  of being his fancied oak, which, planted deeply in our soil,
+  extended its branches from Maine to Mexico, he rather resembled
+  the Bohon Upas of Java, that destroyed whatever sought for
+  shelter or protection in its shade.[Footnote: Reports of the
+  Proceedings and Debates of the Convention of 1821, 615.]
+
+The pardoning power is essentially of a political nature.
+Judicial officers are to do justice. Mercy is an act of policy
+or grace. A pardon after conviction presupposes guilt.
+Nevertheless, in a few States this royal prerogative of pardoning
+has been committed to a board of officers, headed by the
+Governor, of which some of the judiciary are members. There is
+this advantage in it, that judges know best how fully
+circumstances of extenuation are always taken into account by the
+court before pronouncing sentence, and therefore cannot but
+exercise a restraining power against the influences of mere
+sentimental promptings to inconsiderate clemency.
+
+It may be said, in general, that the tendency towards keeping the
+judiciary apart from any active connection with the executive
+department has steadily increased since the first quarter of the
+nineteenth century.
+
+When our position as a neutral power, in 1793, involved us in
+serious questions affecting the rights of Great Britain and
+France, Washington's cabinet advised him that the ministers of
+those countries be informed that the points involved would be
+referred to persons learned in the law, and that with this in
+view the Justices of the Supreme Court of the United States be
+invited to come to the capitol, six days later, "to give their
+advice on certain matters of public concern, which will be
+referred to them by the President."[Footnote: Jefferson's
+Writings, Library Ed., I, 370.] Nothing of this nature would now
+be dreamed of, under any conditions.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER IV
+
+
+            THE FORCE OF JUDICIAL PRECEDENTS
+
+
+The antipathy to legal codification, which, until recent years,
+was a characteristic both of the English and American bar, and
+still prevails, though with diminishing force, has given, and
+necessarily given, great force to judicial precedents. It is
+mainly through them that with us unwritten law passes into
+written law. Precedent is a fruit of reason ripened by time.
+Time, it has been said, is the daughter of Antiquity and takes
+place after Reason, which is the daughter of Eternity. Precedent
+rests on both. A legal code framed in any American State is
+little more than the orderly statement of what American courts
+have decided the law to be on certain points.
+
+When reason is set to work upon the solution of a problem growing
+out of the affairs of daily life, it often happens that two minds
+will pursue different paths and perhaps come to different
+results. Not infrequently neither result can fairly be
+pronounced untenable. An English judge has said that nine-tenths
+of the cases which had ever gone to judgment in the highest
+courts of England might have been decided the other way without
+any violence to the principles of the common law.
+
+Every lawsuit looks to two results: to end a controversy, and to
+end it justly; and in the administration of human government the
+first is almost as important as the last.[Footnote: Hoyt
+_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
+the essence of justice; but among men and as administered by
+their governments it can only be such certainty as may be
+attained by an impartial, intelligent, and well-trained judge.
+If such a judge has, after a proper hearing, declared what, under
+a particular set of circumstances, the law is which determines
+the rights of the parties interested, this declaration makes it
+certain, once and forever, as far as they are concerned, and
+helps to make it certain as to any others in the future between
+whom there is a controversy under circumstances that are similar.
+If it is the declaration of a court of supreme authority it is
+ordinarily accepted as of binding force by any inferior courts of
+the same government, and treated with great respect and as high
+evidence of the law by any other of its superior courts, as well
+as by courts of other States before which a similar question may
+be presented.
+
+A decision on a point of law by the highest court in a State does
+not, however, bind its lower courts as absolutely as would a
+statute. An inferior court may disregard it and decide the same
+point another way if it be fully satisfied that the action taken
+by the court above was ill-considered and erroneous. It is
+possible that in such event, on reconsideration, the court of
+last resort may reverse its original position.[Footnote: A good
+instance of this is furnished by the case of Johnson _v._
+People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
+In McFarland _v._ People, 72 Illinois Reports, 368, the
+Supreme Court had stated in its opinion, that if two unimpeached
+witnesses gave the only testimony as to a certain point material
+to the plaintiff's case, and testified in contradiction of each
+other, the case failed for want of proof. Many years later a
+charge to the jury to this effect was asked and refused in an
+inferior court. An appeal was taken to the Supreme Court, and
+there Mr. Justice Schofield, the author of the original opinion,
+thus disposed of it: "Although in McFarland _v._ People, 72
+III., 368, the writer of this opinion expressed the belief that a
+similar instruction was free of legal objection, his remarks in
+that respect were unnecessary to a determination of the case then
+before the court, and they were made without sufficient
+consideration, and are manifestly inaccurate. They are now
+overruled. The question of competency is one of law, and
+therefore for the court; but the question of credibility,--that
+is, of worthiness of belief,--and therefore the effect of the
+competent evidence of each witness, is one of fact, and for the
+jury."] If not, that acquires by this attack a double force.
+
+Chief Justice Bleckley of Georgia once remarked that courts of
+last resort lived by correcting the errors of others and adhering
+to their own. Nevertheless, they have often, years after
+formally announcing a certain legal doctrine in one of their
+opinions, declared it to be unsound, and overruled the case in
+which it was laid down. They do this, however, with natural and
+proper reluctance, and never if this doctrine is one affecting
+private rights of property and has been followed for so long a
+course of time that it may be considered as a rule on which the
+people have relied in exchanging values and transferring titles.
+
+The public, however, have rights to be regarded as fully as
+individuals, and if a right of private ownership has been
+adjudged to exist, which involves a public loss, the precedent
+thus created might be overruled with less hesitation than one
+would be determining rights and correlative obligations that were
+purely private. Thus the North Carolina courts for seventy years
+held that a public office was the private property of the
+incumbent. No other courts in the United States took that view,
+and it has, by a recent decision, been repudiated in North
+Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
+Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
+Annotated, 697.]
+
+Still more are public interests to be regarded when a question
+arises as to reversing a decision as to the proper construction
+of a constitutional provision. If a judicial mistake be made in
+construing a statute it is easily remedied. The next legislature
+can amend the law. But a Constitution can only be amended with
+extreme difficulty and by a slow process. If the court falls
+into error as to its meaning, the correction must ordinarily come
+from its own action or not at all. Hence an opinion on a matter
+of constitutional construction is less to be regarded as a final
+and conclusive precedent than one rendered on a matter of mere
+private right.
+
+It has been the position of some American statesmen and jurists
+that judicial decisions on points of constitutional construction
+were not binding upon the executive or legislative department of
+the government. President Jackson asserted this with great force
+in his message to the Senate of July 10, 1832, disapproving the
+re-charter of the Bank of the United States. He conceded,
+however, that a judicial precedent may be conclusive when it has
+received the settled acquiescence of the people and the States.
+But while such acquiescence may strengthen the authority of a
+decision, it can hardly be regarded as that which gives it
+authority. That comes from the fact that it is an exercise of
+the judicial power of the government in a case for the disposal
+of which this judicial power has been properly invoked.
+
+The decision of the court in McCulloch _v._
+Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
+"The American Constitutional System," 44, 123.] unquestionably
+settled forever, as between the cashier of the bank and the State
+of Maryland, that the bank was a lawful institution. That in
+Osborn _v._ The Bank of the United States[Footnote: 9
+Wheaton's Reports, 738.] reaffirmed it as between the bank and
+the Treasurer of the State of Ohio. It would be intolerable if
+such judgments were not in effect equally conclusive for the
+determination of all controversies between all men and all States
+growing out of the creation of such a corporation. Practically,
+then, the opinion of the executive department to the contrary
+could only be of importance in such a case as Jackson had in
+hand; that is, in its influencing executive action in approving
+or disapproving some proposed measure of legislation. It could
+not disturb the past.
+
+The authority of a judicial precedent is weakened if it comes
+from a divided court, and especially if a dissenting opinion is
+filed in behalf of the minority. A silent dissent indicates that
+the judge from whom it proceeds is not so impressed by the fact,
+or the importance to the public, of what he deems the error of
+the majority that he thinks it worth while to express the reasons
+which lead him to differ from them.
+
+No departure from precedent in any American court has ever
+awakened so much feeling as that by the Supreme Court of the
+United States in 1872, when it decided that Congress could make
+government notes a legal tender for debts contracted before the
+law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
+Reports, 457, 529.] It had held precisely the contrary two years
+before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
+Reports, 603.] but it was by a bare majority and in the face of a
+strong dissenting opinion. In the opinions filed in the second
+case stress was laid upon this division of the court.[Footnote:
+12 Wallace's Reports, 553, 569. See George F. Hoar,
+"Autobiography," I, 286.]
+
+The word "established" is often used to describe the kind of
+precedent to which courts are bound to adhere. What serves to
+establish one?  Long popular usage, repeated judicial
+affirmations, and general recognition by approved writers on
+legal topics. Of these, in fact, the last is probably the most
+powerful. Lawyers and courts, in countries without codes, get
+their law mainly from the standard text-books. Such authors as
+Coke, Blackstone, Kent and Cooley are freely cited and relied on
+as authorities by the highest tribunals.[Footnote: See, for
+instance, Western Union Telegraph Co. _v._ Call Publishing
+Co., 181 United States Reports, 101; Louisville Ferry
+Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
+is by the writings of such men that judicial precedents are
+sifted and legal doctrines finally clothed in appropriate terms
+and arranged in scientific order.
+
+The English courts long ago declared it to be a rule of law to
+prevent perpetuities that no estate in lands could be created
+which was not to commence within the compass of a life or lives
+of persons then existing, with an exception intended to favor a
+minor heir. American courts accepted this rule, but some of them
+construed it as meaning that no estate in lands could be created
+which was to continue after the expiration of such a period.
+This construction was shown by Professor John C. Gray, in a work
+on "Perpetuities," to be unwarranted, and since its publication
+the cases which had proceeded on that basis have been generally
+treated as erroneous.
+
+The nature of a legal presumption, also, had been misconceived by
+several American courts. It had been treated as evidence of
+facts.[Footnote: Coffin _v._ United States, 156 United
+States Reports, 432.] Professor J. B. Thayer, in his
+"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-
+575.] argued so forcibly against this view that in at least one
+State a decision in which it had been taken has been formally
+overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
+Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
+Reporter, 963.]
+
+The Court of Appeals of New York once held in a carefully
+prepared opinion that a railroad might be built along the shore
+of a navigable river, under authority from the State, without
+first making compensation to the riparian proprietors, whose
+access to the waters might thus be obstructed.[Footnote: Gould
+_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
+In a text-book written by Chief Justice Cooley, this decision was
+justly criticised,[Footnote: Cooley on Constitutional
+Limitations, 670.] and not long after the publication of that
+work it was formally overruled.[Footnote: Rumsey _v._ New
+York and New England Railroad Co., 133 New York Reports, 79; 30
+Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
+It is safe to say that its fate was largely the result of the
+comments thus made by a distinguished jurist, whose only motive
+could be to maintain the integrity and consistency of legal
+science.
+
+The general doctrine of the courts, which is commonly expressed
+by the rule "_stare decisis_," was never better stated than
+by Chief Justice Black of Pennsylvania, in these words:
+
+  When a point has been solemnly ruled by the tribunal of the
+  last resort, after full argument and with the assent of all the
+  judges, we have the highest evidence which can be procured in
+  favor of the unwritten law. It is sometimes said that this
+  adherence to precedent is slavish; that it fetters the mind of
+  the judge, and compels him to decide without reference to
+  principle. But let it be remembered that _stare decisis_
+  is itself a principle of great magnitude and importance....
+
+  A palpable mistake, violating justice, reason and law, must be
+  corrected, no matter by whom it may have been made. There are
+  cases in our books which bear such marks of haste and
+  inattention, that they demand reconsideration. There are some
+  which must be disregarded, because they cannot be reconciled
+  with others. There are old decisions of which the authority
+  has become obsolete, by a total alteration in the circumstances
+  of the country and the progress of opinion. _Tempora
+  mutantur_. We change with the change of the times, as
+  necessarily as we move with the motion of the earth. But in
+  ordinary cases, to set up our mere notions above the principles
+  which the country has been acting upon as settled and
+  established, is to make ourselves not the ministers and agents
+  of the law, but the masters of the law and the tyrants of the
+  people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,
+  423.]
+
+Generally, overruling a former decision is due to a change of
+circumstances, which has given the court a new view-point. A
+marked instance of this occurred in 1851, in proceedings before
+the Supreme Court of the United States. More than a quarter of a
+century before, a suit in admiralty for seamen's wages on an
+inland river had been dismissed by the District Court of Kentucky
+for want of jurisdiction, and on appeal this action had been
+affirmed. Mr. Justice Story gave the opinion of the court, and
+said that a court of admiralty could only take cognizance of such
+a claim when the services were rendered at sea or upon waters
+within the ebb and flow of the tide.[Footnote: The Thomas
+Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
+true statement of what had always been the doctrine of both
+English and American courts. But out of what did this doctrine
+spring?  From the fact that in England there were no navigable
+waters except those in which the tide ebbed and flowed, and that
+in the United States, up to that time, there were none of a
+different kind which had been largely used for commercial
+purposes. Twenty years passed. Steam navigation had opened the
+great lakes and the great rivers of the country to a profitable
+carrying trade. The day was dawning when the bulk of American
+shipping was to be employed upon them. A suit in admiralty was
+brought against a ship for sinking another on Lake Ontario. The
+defendants put in an answer relying on the doctrine laid down by
+Story. The District Court overruled it. The case came by appeal
+to the Supreme Court, and in an opinion by Chief Justice Taney
+the appeal was dismissed. "The conviction," he said, referring
+to the opinion of Mr. Justice Story, "that this definition of
+admiralty powers was narrower than the Constitution contemplated,
+has been growing stronger every day with the growing commerce on
+the lakes and navigable rivers of the western States.... These
+lakes are in truth inland seas. Different States border on them
+on one side and a foreign nation on the other. A great and
+growing commerce is carried on upon them between different States
+and a foreign nation, which is subject to all the incidents and
+hazards that attend commerce on the ocean. Hostile fleets have
+encountered on them and prizes been made, and every reason which
+existed for the grant of admiralty jurisdiction to the general
+government on the Atlantic seas applies with equal force to the
+lakes. There is an equal necessity for the instance and for the
+prize power of the admiralty court to administer international
+law, and if the one cannot be established neither can the
+other.... The case of the _Thomas Jefferson_ did not decide
+any question of property or lay down any rule by which the right
+of property should be determined.... The rights of property and
+of parties will be the same by whatever court the law is
+administered. And as we are convinced that the former decision
+was founded in error, and that the error, if not corrected, must
+produce serious public as well as private inconvenience and loss,
+it becomes our duty not to perpetuate it."[Footnote: The Genesee
+Chief, 12 Howard's Reports, 443, 451.]
+
+But without any change of circumstances, the proper desire of all
+American courts to keep their common law in harmony with that of
+the other States is often sufficient to induce the abandonment of
+a doctrine once distinctly asserted.[Footnote: City of South Bend
+_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
+Reporter, 271.] The consistency of American law as a whole is
+immeasurably more important than the consistency of the law of
+any single State.
+
+Sometimes a court of last resort treats a doctrine which it had
+formerly asserted as manifestly unsound and abandons it without
+stopping to give a reason or even to overrule the decision which
+first announced it.
+
+Illinois for a long generation adopted the rule that if an injury
+occurred to one man through the concurring negligence of himself
+and another, but his negligence was slighter than that of the
+other, he might hold the latter responsible for the damages
+suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
+not a doctrine justified by the common law nor generally held in
+this country, and in 1894 the Supreme Court of the State refused
+to recognize it, with little or nothing more than this brief
+_ipse dixit_: "The doctrine of comparative negligence is no
+longer the law of this court."[Footnote: Lanark _v._
+Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,
+892.]
+
+Occasionally a case is overruled because it has been forgotten.
+
+An early decision in Massachusetts (Loomis _v._
+Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
+position that if a statute required contracts of a certain kind
+to be put in writing, and a contract of that kind, but embracing
+also a different and distinct matter not touched by the statute,
+was made orally, it was wholly void. Such a rule was illogical
+and unsound, and in a later decision the same court, forgetting
+that it had indorsed it, said so, and said so when it was not
+necessary to the decision.[Footnote: Irvine _v._ Stone, 6
+Cushing's Reports, 508, 510.] Subsequently, both these cases
+having been brought to its attention, it affirmed the latter,
+though remarking that "what was there said on this point was not
+essential to the decision of that case, and would have been
+omitted or modified if Loomis _v._ Newhall had been then
+remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
+Reports, 1, 5.]
+
+The authority of an opinion as a precedent on any point is always
+proportioned to the necessity of determining that point in order
+to support the judgment which was rendered. Some judges write
+treatises instead of decisions or in addition to decisions.
+Whatever goes beyond that which is required to show that the
+judgment is the legal conclusion from the ascertained facts is
+styled in law language _obiter dictum_. It may be
+interesting and even persuasive, but it is not an authoritative
+statement of law.
+
+It may grow to be such by adoption in subsequent cases. The
+Court of King's Bench in England was called on, at the beginning
+of the eighteenth century, to say whether if a man undertook as a
+friendly act, and not for pay, to cart another's goods, and did
+it carelessly, he was bound to answer for any damage that might
+result. There were four judges who heard the case, of whom three
+gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
+Raymond's Reports, 909.] Two of these opinions were confined to
+the precise point of law on which the case turned. In the third,
+Chief Justice Holt seized the opportunity to lay down the law of
+England as to all sorts of contracts arising out of the reception
+by one man of the goods of another. This he did mainly by
+setting forth what were the rules of the Roman law on the
+subject, but not referring to their Roman origin, and quoting
+them, so far as he could, from Bracton, an English legal writer
+of the thirteenth century, who had also stated them as English
+law.
+
+For four or five centuries these rules had been laid down in an
+unofficial treatise, but the courts had not fully recognized
+them. Now the Chief Justice of England had given such
+recognition in the amplest manner. Meanwhile the trade of
+England had reached a point at which some definite rules on all
+these matters had become of the utmost importance. The bar were
+only too glad to advise their clients in accordance with Lord
+Holt's opinion. It was not long before it was universally
+practiced upon, and no case in the English language touching
+contract relations of that nature is of greater importance as a
+precedent. Yet it became such not because of its intrinsic
+authority as a judgment, so much as on account of its orderly and
+scientific statement of a whole body of law of a kind that the
+people needed and for the origin of which--whether at Rome or
+London--they cared little, so long as it had been accepted by the
+highest judicial authority in the realm.
+
+On the other hand, the greatest judges have often, in delivering
+the opinion of the court, asserted doctrines the consideration of
+which was not essential to the decision, and later retracted the
+assertion on fuller consideration or seen the court in a later
+case retract it for them.
+
+Two of the great opinions of Chief Justice Marshall are Marbury
+_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
+_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
+first the court held that it had no jurisdiction to command the
+Secretary of State to deliver a commission executed under the
+preceding administration, because, although Congress had assumed
+to confer it, Congress had no power to do so; and in defending
+this position Marshall observed that the Constitution defined the
+jurisdiction of the Supreme Court over cases brought there in the
+first instance, and that in this clause of the Constitution
+affirmative words had the force of negative words so far as to
+exclude jurisdiction over any other cases than those specifically
+mentioned. In the second case this observation was relied on by
+Virginia to defeat the power of the court to review a State
+judgment. But, said the Chief Justice, "it is a maxim not to be
+disregarded that general expressions in every opinion are to be
+taken in connection with the case in which those expressions are
+used. If they go beyond the case they may be respected, but
+ought not to control the judgment in a subsequent suit when the
+very point is presented for decision.... In the case of Marbury
+_v._ Madison, the single question before the court, so far
+as that case can be applied to this, was whether the legislature
+could give this court original jurisdiction in a case in which
+the Constitution had clearly not given it, and in which no doubt
+respecting the construction of the article could possibly be
+raised. The court decided, and we think very properly, that the
+legislature could not give original jurisdiction in such a case.
+But in the reasoning of the court in support of this decision
+some expressions are used which go far beyond it.... The general
+expressions in the case of Marbury _v._ Madison must be
+understood with the limitations which are given to them in this
+opinion; limitations which in no degree affect the decision in
+that case or the tenor of its reasoning." He then proceeded to
+dispose of the case in hand by saying that Virginia having
+obtained an erroneous judgment against Cohens, Cohens had a right
+to appeal, and the suit still remained a suit by a State against
+him and not by him against a State. Unfortunately, here again
+came in next an _obiter dictum_. If, he said, this were not
+so, there was another principle equally decisive in support of
+the jurisdiction, namely, that the Constitution gave the United
+States judicial power over all cases arising under the
+Constitution or laws of the United States without respect to
+parties. Nearly a hundred years later a State was sued in the
+courts of the United States on a cause of action arising under
+the Constitution, and Cohens _v._ Virginia was relied on as
+a precedent. "It must be conceded," was the reply of the Supreme
+Court, "that the last observation of the Chief Justice does favor
+the argument of the plaintiff. But the observation was
+unnecessary to the decision, and in that sense extra-judicial,
+and though made by one who seldom used words without due
+reflection, ought not to outweigh the important considerations
+referred to which lead to a different conclusion."[Footnote: Hans
+_v._ Louisiana, 134 United States Reports, 1, 20.]
+
+It may be added that decisions on a point not material to the
+cause are generally made without the benefit of previous argument
+by counsel. The lawyers will naturally address themselves to the
+controlling questions, and if well trained will see what these
+are quite as clearly as the court. It is the argument at the
+bar, in which different views of law are presented and each
+defended by men of learning and ability, which enables the judge,
+after hearing both sides and weighing all that is said in behalf
+of one against all that is said in behalf of the other, to come
+to the true conclusion. The Romans recognized this in their rule
+as to the force of precedent in a matter of customary law. The
+first thing to ask was whether "_contradicto aliquando judicio
+consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
+legibus_, etc., 34.]
+
+The retrospective effect which a refusal to follow a former
+decision may have in disturbing vested rights being one of the
+most cogent reasons for adhering to precedent, there is less
+objection to departing from it when the decision can be so
+limited as to have only a future operation. This is occasionally
+feasible. Thus the High Court of Errors and Appeals of
+Mississippi by an early decision held that on the dissolution of
+a bank all its rights and liabilities were extinguished. Thirty
+years later the Supreme Court of the same State overruled that
+decision, declaring it "condemned by reason and the principles of
+modern and enlightened jurisprudence," but nevertheless applied
+it as a controlling precedent to a case arising out of the
+dissolution of a bank which had been incorporated previously to
+the time when the original decision was made.[Footnote: 1 Bank of
+Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]
+
+The effect of overruling a former opinion may also be limited by
+the dual character of our government.
+
+The courts of the United States follow the decisions of the State
+courts in the determination of matters of State law. If a State
+law is held by the courts of the State to have a particular
+meaning and effect it will be accorded the same in the federal
+courts. But if a federal judgment is for that reason rendered in
+a certain form, and there is no appeal, it settles the rights of
+the parties to the suit forever, even should the State courts
+afterward reverse their former rulings as being
+erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
+United States Reports, 499.]
+
+De Tocqueville, in his estimate of the American bar,[Footnote: 3
+"Democracy in America," II, Chap. XVI.] speaks of it as devoted
+to investigating what has been done rather than what ought to be
+done; to the pursuit of precedent rather than of reason.
+
+In a very limited sense this is true. Where codes are wanting,
+former judicial decisions must serve in their place. But it
+would be a mistake to suppose that it is a large part of the
+business of American lawyers to search out precedents for the
+guidance of the courts. Most cases, after any facts in dispute
+are once settled, depend on the application of the simplest
+processes of ordinary reasoning. No aid from the past is needed
+for this and none is to be had. It has been well said by an
+English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
+Chancery Appeal Cases, 526.] that the clearer a thing is the more
+difficult it is to find any express authority or any
+_dictum_ exactly to the point. Nor, if there be one, is it
+to be accepted without regard to the circumstances out of which
+it arose or the end to be effected by the judgment. A precedent
+may indeed be used slavishly, but so it may be used in the free
+spirit in which it was conceived. Many an argument at the bar,
+however, is ruined by an excessive anxiety to repeat the
+_ipsissima verba_ of some ancient opinion, when the soul of
+it is the only thing of value. And occasionally courts are
+chargeable with pursuing the letter of some of their former
+deliverances rather than the spirit which called them forth and
+gave them all their vitality.
+
+            *       *       *       *       *
+
+
+
+                      CHAPTER V
+
+
+       THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW
+
+
+The English common law was and is an unwritten law. To find it
+one has to look in legal treatises and reports of judicial
+decisions. Its historical development has been not unlike that
+of Rome. In Rome, as in England, there were in early times
+written enactments or governmental declarations of standing rules
+on but few points. Some of these writings were of special
+importance, such as the twelve tables of Rome and the _Magna
+Charta_ of England. These were regarded as so bound up with
+the very life of the people as to have a place by themselves, and
+a superior force to anything to the contrary to which the free
+consent of the people was not formally given. But in general
+Romans and Englishmen preferred to make custom their law, and to
+let this law grow "not with observation," but insensibly from day
+to day as the needs of their social organization might be found
+to require. It was a wise preference, and founded on a better
+philosophy than they knew--than the world knew, until the theory
+of evolution was demonstrated by Darwin and applied to
+governmental science by Spencer.
+
+A customary law for a people of advancing civilization and power
+must expand with corresponding rapidity. There will soon be
+disputes as to what it is on certain points and a demand for some
+authoritative information as to this. In Rome, the priests gave
+it at first, and then the lawyers. In England, the priests never
+gave it, as priests. There was no sacred college of law.
+Priests took part in legislation. A priest, at the king's right
+hand, was his spokesman in doing equity. But it was from the
+first the king as a judge, or the king's judges deputed by him
+and sitting for him, who settled controverted questions of common
+law. For the Roman and for the Englishman the first
+representatives of government who could be called judges were
+primarily and principally executive officers. The Roman
+_prætor_ was not given judicial functions because he had
+legal attainments. The _aula regis_ of early England was
+composed of the great officers of state. The chief justiciar,
+however, soon ceased to be prime minister. His associates on the
+bench, as law became a recognized profession, came to be chosen
+largely for their fitness for judicial work and to be kept at it
+during the king's pleasure. At Rome, on the contrary, the
+prætorship remained a political place, held for a fixed term, and
+a brief one. Information as to the unwritten law applicable to
+any controversy between parties had therefore to be sought from
+others. The lawyers could give it; and it was to them, not to
+the judges, that resort was had. The opinion of a great jurist
+was for Rome what the opinion of a judge was for England. It was
+commonly accepted as conclusive not only by the people but by the
+courts.
+
+Such opinions profess to state what the law was by which rights
+accrued out of a past transaction. In fact, they often do much
+more. By declaring that to be the law, and declaring it with
+authority, they are the first to make it certain that it is the
+law. The difference between this and making law is not great.
+
+The Romans at first accorded authority to the opinions
+(_responsa_) of lawyers only because of the standing and
+reputation of those who gave them. Later the emperors gave an
+official character and weight to the opinions of certain lawyers
+of the past. The English always accorded authority to the
+opinions of their judges, because they spoke for the state.
+Americans from the first have done the same.
+
+American judges have exercised these powers of ascertaining and
+developing unwritten law even more freely than English judges.
+They were forced to it as a result of applying the common law of
+one people to another people inhabiting another part of the world
+and living under very different social conditions. In doing this
+it was necessary to reject not a little of what for England had
+already been definitely settled and universally accepted. The
+legislatures of the colonies and States rejected much, but the
+courts rejected more. The legislatures also added much, but the
+courts added yet more.
+
+Usages grow up rapidly in new settlements and along frontiers
+bounded by territory held by savages. Of such usages, under the
+rulings of the courts, many were soon crystallized into law.
+
+New inventions and new political conceptions in the eighteenth
+century began to change the face of the civilized world. The
+common law as to agency had to be adapted to the operations of
+business corporations; that as to highways to railroads; that as
+to contracts by mail to contracts by telegram, and later to
+contracts by telephone. The whole law of master and servant,
+which for the English people was bottomed on the relation of
+land-owner and serf, was to be recast. Public assemblies were to
+be regulated and their proceedings published with greater regard
+to public and less to private interest.[Footnote: Barrows
+_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
+479.] Along all these lines and many others the American courts
+have now for nearly three hundred years been quarrying out
+American law from the mine of the unwritten law of the people
+within their jurisdiction. It has been their natural endeavor to
+make each part of the new system of jurisprudence which they were
+gradually building up harmonious with every other and to give a
+certain symmetry to the whole. This has forced them to deduce
+rule from rule and principle from principle with a freedom for
+which in older countries of settled institutions there is less
+occasion. The process has gone on during the last fifty years
+with ever-increasing rapidity, and for two reasons. There have
+been more novel questions to meet and there has been a greater
+wealth of suggestion and precedent at command.
+
+Not a little, however, of the development of our unwritten law
+has been and remains of a local character. This is particularly
+true of that of the Pacific States, both on account of climatic
+conditions and historical antecedents.[Footnote: Katz _v._
+Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
+the Supreme Court of California, afterward so long a member of
+the Supreme Court of the United States, did both a constructive
+and a destructive work in shaping the jurisprudence of that
+State. He found it seated in a land on which certain
+institutions of civil law origin had been impressed for centuries
+and into which other institutions of common law origin had been
+introduced in recent years. His judicial opinions molded these
+into one mass, rejecting something from each and retaining
+something from each.[Footnote: Pomeroy, "Some Account of the Work
+of Stephen J. Field," 38, 45.] Some of the results of his
+creative touch have been the foundation of decisions in distant
+States, but most were so dependent on local circumstances and
+conditions as to be incapable of transplantation.
+
+But as to all questions of general concern which can be answered
+from analogies drawn from the common law, the judges of each
+State--and it is the State judiciary on which the burden of
+developing unwritten law mainly rests--now find in the reported
+decisions of the courts of last resort in all the other States a
+fertile source of supply when they are looking for a rule to fit
+a case for which the ancient law made no direct provision. Keen
+intellects from the bench, aided perhaps by keener ones from the
+bar in forty-five different jurisdictions, are discussing the
+problems of the day as they appear mirrored in litigated causes.
+What is a new question in one State was set at rest ten years or
+ten days ago by a judicial decision in another. If the decision
+was a just and logical deduction from accepted principles of the
+older law it will probably be followed everywhere. If unjust and
+illogical, its very faults will serve to guard other courts to
+better conclusions.
+
+How far judges advance along these paths depends greatly on the
+character of the bar. A judge rarely initiates anything. He is
+apt to fall into a mistake if he does. The business which he has
+to do is brought before him by others. It is brought before him
+in the best way to throw all possible light upon it, because it
+is set before him from two opposite points of view by two
+antagonists, each strenuously endeavoring to detect a flaw in the
+reasoning of the other. These two men have previously given the
+subject in controversy much careful thought. What views neither
+presents are generally not worth presenting. As was said in the
+preceding chapter, it is only in the plainest case that a judge
+can properly or safely base his decision on a position not
+suggested at the bar or as to the soundness of which he has not
+asked the opinion of the counsel at the hearing.
+
+The development of law, therefore, whether unwritten or written,
+is primarily the work of the lawyer. It is the adoption by the
+judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]
+
+There are obvious limits to this power of developing unwritten
+law. The courts are not to push forward into a place more
+appropriate for the legislature to occupy.
+
+Mr. Justice Holmes of the Supreme Court of the United States,
+when Chief Justice of Massachusetts, stated with his usual
+elegance and force the bounds within which, as it seemed to him,
+judicial authority should be kept. In a common law suit against
+a railroad company for damages suffered by an accident on its
+road, the defendant had asked the trial court to order the
+plaintiff to submit to an examination of his person by a
+physician whom it named, for the purpose of determining what
+injuries he had really suffered. "We agree," said the Chief
+Justice, "that in view of the great increase of actions for
+personal injuries it may be desirable that the courts should have
+the power in dispute. We appreciate the ease with which, if we
+were careless or ignorant of precedent, we might deem it
+enlightened to assume that power. We do not forget the
+continuous process of developing the law that goes on through the
+courts in the form of deduction or deny that in a clear case it
+might be possible even to break away from a line of decisions in
+favor of some rule generally admitted to be based upon a deeper
+insight into the present wants of society. But the improvements
+made by the courts are made, almost invariably, by very slow
+degrees and by very short steps. Their general duty is not to
+change, but to work out, the principles already sanctioned by the
+practice of the past. No one supposes that a judge is at liberty
+to decide with sole reference even to his strongest convictions
+of policy and right. His duty in general is to develop the
+principles which he finds with such consistency as he may be able
+to attain.... In the present case we perceive no such pressing
+need of our anticipating the legislature as to justify our
+departure from what we cannot doubt is the settled tradition of
+the common law to a point beyond that which we believe to have
+been reached by equity, and beyond any to which our statutes
+dealing with kindred subjects ever have seen fit to go. It will
+be seen that we put our decision, not upon the impolicy of
+admitting such a power, but on the ground that it would be too
+great a step of judicial legislation to be justified by the
+necessities of the case."[Footnote: Stack _v._ New York, New
+Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
+58 Northeastern Reporter, 686.]
+
+The theory of judicial power thus stated carries implications
+that would not be universally accepted. It is intimated that if
+the necessity had seemed strong enough to call for the order
+asked for in the trial court it ought to have been granted,
+although not justified by any settled rule or authoritative
+precedent, nor by any clear analogy from such a rule or
+precedent. This is a view taken, though with less caution and
+qualification, in a work written by the same hand many years
+before, which is recognized as a legal classic on both sides of
+the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
+discussing some of the reasons which actuate judges in assuming
+to unfold the unwritten law, it is stated thus:
+
+  The very considerations which judges most rarely mention, and
+  always with an apology, are the secret root from which the law
+  draws all the juices of life. I mean, of course,
+  considerations of what is expedient for the community
+  concerned. Every important principle which is developed by
+  litigation is in fact and at bottom the result of more or less
+  definitely understood views of public policy: most generally,
+  to be sure, under our practice and traditions the unconscious
+  result of instinctive preferences and inarticulate convictions,
+  but none the less traceable to views of public policy in the
+  last analysis.... The truth is that the law is always
+  approaching and never reaching consistency. It is forever
+  adopting new principles from life at one end, and it always
+  retains old ones from history at the other, which have not yet
+  been absorbed or sloughed off. It will become entirely
+  consistent only when it ceases to grow.
+
+Courts enter on a dangerous ground when, to justify their action,
+they rely on any rule of public policy not stated in Constitution
+or statute and unknown to the common law. If such was once the
+habit of the English courts, it was because of social conditions
+with which they had to deal which no longer exist either in their
+country or in ours. It is for the judge to adapt old principles
+rather than adopt new ones. What one man thinks is public policy
+another, equally clear-headed and well-informed, may not. The
+safe course for the judiciary is to rely on the legislature to
+declare it, so far as the common law does not. If, however, the
+courts of a State are called upon for the first time to declare
+what any rule of the common law, governing a past transaction,
+is, or at a given time was, in that State, and this be a doubtful
+question, the decision virtually calls for the making of a new
+rule, though under the form of applying an old one, and that will
+be adopted which may be deemed best calculated to do justice in
+cases of that particular character.[Footnote: Seery _v._
+Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER VI
+
+
+      THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING
+                     WRITTEN LAW
+
+
+As governments must provide some authority to declare what the
+unwritten law governing any transaction was, so they must provide
+some authority to declare what the written law governing any
+transaction means. Few statements of any rule or principle can
+be written out in such a way as to convey exactly the same
+impression to every mind. Thought is subtler than its
+expression. The meaning of written laws will therefore often be
+questioned.
+
+An answer is sometimes attempted by the authority from which the
+law proceeded. A king declares what he intended by the terms of
+an ambiguous edict. A legislature passes an act to declare the
+meaning of a previous one. But meanwhile rights have accrued.
+Something has been done in reliance upon a certain construction
+of the law. If it was a right construction, then what was done
+was lawful, and no subsequent explanation of his intentions by
+the lawgiver can change this fact. Laws are addressed to the
+community at large, and their meaning must be determined once for
+all from the language used, however inadequate it may have been
+to express the real design of those who enacted them, unless that
+design so clearly appears, notwithstanding an unfortunate choice
+of words, as to compel an interpretation against the letter but
+in obedience to the spirit of the enactment. A "declaratory
+statute"--one declaring what a previous statute meant--is
+therefore, if it gives it a meaning unwarranted by its terms when
+so interpreted, only effectual as respects future transactions.
+As to the past, the meaning is for the courts, and while such a
+statute may aid, it cannot control them.
+
+Are the courts to send such questions to a jury or shall the
+judges decide them?  The answer must be determined by
+considerations applicable to every sort of written paper. If the
+true construction of an ambiguous document be left to juries, it
+is evident that there would be no certainty that different
+results would not be reached in different cases, and probable
+that unanimity would seldom be attainable. If left to judges, a
+decision will certainly be reached and, it may be presumed, be
+reasoned out with care, while if the matter be one of public
+importance the grounds on which they proceed will be so expressed
+as to furnish a guide to others toward the same conclusion. The
+construction of all writings is therefore, by the Anglo-American
+common law, as by the judicial system of most countries, deemed,
+in case of a question affecting litigated rights, to belong of
+right to the judges. Their possession of this power in the
+United States is especially necessary in respect to written law.
+
+In every government there must be some human voice speaking with
+supreme authority. It may be that of one man or of many men.
+The essential thing is that it should be a personal utterance,
+proceeding from persons to whom, by acknowledged law or custom,
+submission is due, and one that, if need be, can be enforced by
+the whole power of the State.
+
+The fundamental principle of American government, as laid down in
+the words of Harrington in the oldest of our State Constitutions,
+after which many of the rest, and that of the United States as
+well, have been largely patterned, is that it is one of "laws and
+not of men."[Footnote: Constitution of Massachusetts, Part the
+First, Art. XXX, quoted more fully in Chapter II.] Laws,
+however, must be administered by men. Their meaning, if it be
+uncertain, must be determined by men. It must be the subject, as
+the same Constitution twice affirms, of "impartial
+interpretation."[Footnote: _Id_., Preamble, and Part the
+First, Art. XXIX.] This interpretation is really what gives them
+force. It is the personal utterance of one speaking for the
+State, and who speaks the last word. It was simply following
+English precedent to give this power to the courts as respects
+legislative enactments. But the principle which required it
+inevitably extended with equal force to constitutional
+provisions. The people who adopt written constitutions for their
+government put their work in a form which must often give rise to
+questions as to what they intended to express. They rely on the
+judiciary to secure their enforcement, and the judiciary must
+enforce them according to what it understands their meaning to
+be.
+
+There is but a step from interpretation to enlargement. Every
+statute is passed to accomplish something. If the object is
+clear, the rules of Anglo-American law allow the court that may
+be called on to apply it to extend its operation to cases within
+the purpose evidently intended, although the language used is
+inadequate fully to express it. This is styled giving effect to
+"the equity of the statute." Even violence can be done to the
+words, if so only can this judge-discovered intent be made
+effectual. The rules governing judicial interpretation of
+statute law fill a good-sized volume.
+
+As the Roman lawyers worked out by force of logic and analogy an
+extensive system of private law from the meagre fabric of the
+Twelve Tables, so under the lead of American lawyers American
+judges have applied the processes familiar in the development of
+unwritten law to the development of our written law, both
+statutory and constitutional.
+
+Carlyle said that the Roman republic was allowed so long a day
+because on emergencies the constitution was suspended by a
+dictatorship. The American republics have a right, upon this
+theory, to a still longer one. With them the Constitution need
+not be temporarily set aside on an emergency. It may simply be
+permanently enlarged or limited by judicial construction. A
+Constitution is the garment which a nation wears. Whether
+written or unwritten, it must grow with its growth. As Mr. Bryce
+has put it: "Human affairs being what they are, there must be a
+loophole for expansion or extension in some part of every scheme
+of government; and if the Constitution is Rigid, Flexibility must
+be supplied from the minds of the Judges."[Footnote: "Studies in
+History and Jurisprudence," 197.]
+
+The Constitution of the United States declares that no State
+shall pass any law impairing the obligation of contracts. This
+proposition being the major premise, Chief Justice Marshall added
+the minor premise that every charter of a private corporation is
+a contract, and completed the syllogism by the conclusion that no
+State can pass any law impairing the obligation of such charters.
+The counsel who opposed this doctrine urged that every one must
+acknowledge that neither the men who framed the Constitution nor
+the people who adopted it ever thought that the word "contracts,"
+as so used, embraced "charters." Be it so, was Marshall's
+answer, that proves nothing unless you can go farther and satisfy
+the court that if they had contemplated the construction we put
+upon it they would have used words to exclude it.[Footnote:
+Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]
+
+The acquisition of foreign territory is a matter not especially
+provided for in the Constitution of the United States. Jefferson
+hesitated to make the Louisiana purchase on this account, and was
+quite inclined to think, when he did make it, that he had
+transcended the bounds of his authority. The courts gave the
+Constitution a different interpretation, and stamped this upon it
+as permanently as if it had been a birthmark. It was done by
+Marshall in a single sentence. "The Constitution," he observed,
+"confers absolutely on the government of the Union the powers of
+making war and of making treaties: consequently that government
+possesses the power of acquiring territory either by conquest or
+by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
+Peters' Reports, 511, 542.]
+
+In the course of the same opinion, the great Chief Justice led
+the way toward the doctrine, to be developed later, that the
+manner in which such territory was to be held and its inhabitants
+governed need not be such as the Constitution prescribed for the
+territory within one of the United States. It was to be
+prescribed by Congress under its power "to make all needful rules
+and regulations respecting the territory or other property
+belonging to the United States." Congress had set up a
+Legislative Council in the Territory of Florida, and the
+Legislative Council had established a court of admiralty, with
+judges holding office for four years. The case in hand turned
+upon the effect of a judgment of that court. It was contended at
+the bar that it had no effect, because by the express terms of
+the Constitution the judicial power of the United States extended
+to all cases of admiralty jurisdiction, and must be vested in one
+Supreme Court and such inferior courts as Congress might ordain.
+"We have only," was Marshall's reply, "to pursue this subject one
+step further to perceive that this provision of the Constitution
+does not apply to it. The next sentence declares that 'the
+judges both of the Supreme and inferior courts shall hold their
+offices during good behaviour.' The Judges of the Superior Courts
+of Florida hold their offices for four years. These Courts,
+then, are not constitutional Courts in which the judicial power
+conferred by the Constitution on the general government can be
+deposited. They are incapable of receiving it. They are
+legislative Courts, created in virtue of the general right of
+sovereignty which exists in the government, or in virtue of that
+clause which enables Congress to make all needful rules and
+regulations respecting the territory belonging to the United
+States. The jurisdiction with which they are invested is not a
+part of that judicial power which is defined in the third article
+of the Constitution, but is conferred by Congress in the
+execution of those general powers which that body possesses over
+the territories of the United States. Although admiralty
+jurisdiction can be exercised in the States in those Courts only
+which are established in pursuance of the third article of the
+Constitution, the same limitation does not extend to the
+territories. In legislating for them, Congress exercises the
+combined powers of the general and of a State
+government."[Footnote: 'American Insurance Co. _v._ Canter,
+1 Peters' Reports, 511, 546.]
+
+It will be perceived that the argument here was that the Florida
+court did not exercise any of the judicial power of the United
+States because it could not, and that it could not because the
+judges were not commissioned for life. This left unanswered the
+deeper question whether any act of Congress could serve to
+support a court existing under authority of the United States,
+the judges of which were to hold office only for a term of years.
+It was assumed that the provision for a life tenure did not apply
+to the Florida judges, because if it did the court would be
+illegally constituted. Whether it was legally or illegally
+constituted was not discussed, except for the general reference
+to the power of Congress to legislate for the territories and
+exercise the rights of sovereignty over territory newly acquired
+by contest or treaty.
+
+On this decision has been built up our present system of
+governing territorial dependencies at the will of
+Congress.[Footnote: Mormon Church _v._ United States, 136
+United States Reports, 1, 43; Dorr _vs._ United States, 195
+United States Reports, 138, 141.]
+
+Marshall's was the last appointment made to the Supreme bench
+from the Federalist party. It was not many years before that
+party disappeared from the face of the earth. Jefferson put
+three men there representing the other school of political
+doctrine,[Footnote: Among Jefferson's papers is a description of
+five men whom he especially considered with reference to filling
+the first vacancy which occurred during his administration.
+Politics figures largely in the sketch of each. As to William
+Johnson, whom he selected, it is noted that he is of "republican
+convictions and of good nerves in his political principles."
+American Historical Review, III, 282.] and his appointments were
+followed by others of a similar nature, until in 1830, after
+Mr. Justice Baldwin had taken his seat, it became evident that
+the nationalizing tendencies which the great Chief Justice from
+the beginning of the century had impressed upon its opinions were
+likely soon to cease. He apprehended himself that the court
+would come to decline jurisdiction in the cases ordinarily
+presented over writs of error to reverse the judgments of State
+courts.[Footnote: Proceedings: Massachusetts Historical Society,
+2d Series, XIV, 342.] In the following year he thought seriously
+of resigning. He disliked, he wrote to Mr. Justice Story, to
+leave him almost alone to represent the old school of thought,
+but he adds, "the solemn convictions of my judgment, sustained by
+some pride of character, admonish me not to hazard the disgrace
+of continuing in office a mere inefficient pageant."[Footnote:
+Proceedings Massachusetts Historical Society, 2d Series, XIV,
+347.]
+
+The next Chief Justice, while far from being of Marshall's
+school, was not one to attempt to overthrow what he had done. In
+Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
+insisted on the supremacy of the courts of the United States over
+those of the States with the utmost firmness, and defended the
+doctrine on principle with force and ability. The Supreme Court,
+however, under Taney, was not looked on with much favor by the
+survivors of the old Federalists. "I do not," wrote Chancellor
+Kent in 1845 to Justice Story, "regard their decisions (yours
+always excepted) with much reverence, and for a number of the
+associates I feel habitual scorn and contempt."[Footnote:
+Proceedings of the Massachusetts Historical Society, 2d Series,
+XIV, 420.]
+
+Our State constitutions generally guarantee the citizen against
+deprivation of his rights without "due process of law" or "due
+course of law." A similar provision was made for the United
+States by the fifth amendment to their Constitution, and since
+1868 the fourteenth amendment has established the same rule
+inflexibly for every State. What is due process of law?  It is
+for the courts to say, and while they have cautiously refrained
+from assuming to give any precise and exhaustive definition, they
+have, in many instances, enforced the guaranty at the cost of
+declaring some statute which they held incompatible with it to be
+no law. They have also, and much more frequently, supported some
+act of government claimed to contravene it, and which, according
+to the ancient common law of England, would contravene it,
+because in their opinion this ancient law had been outgrown.
+
+Sir Edward Coke, whom no expounder of the English common law
+outranks in authority, in his "Institutes," in treating of
+_Magna Charta_, referred to the phrase _per legem
+terrae_, as equivalent to "by the law of the land (that is, to
+speak it once for all) by the due course and process of law." It
+is incontestable that due course and process of law in England at
+the time when the American colonies were planted was understood
+to require the action of a grand jury before any one could be put
+on trial for a felony. Some of our States have abolished grand
+juries in whole or part. To review a capital sentence for murder
+in one of these States, a writ of error was prayed out from the
+Supreme Court of the United States in 1883. The
+constitutionality of the State law was sustained. In disposing
+of the case the court did not controvert the position that by the
+English common law no man could be tried for murder unless on a
+presentment or indictment proceeding from a grand jury. But,
+said the opinion, while that is due process of law which had the
+sanction of settled usage, both in England and in this country,
+at the time when our early American constitutions were adopted in
+the eighteenth century, it by no means follows that nothing else
+can be. To hold that every feature of such procedure "is
+essential to due process of law would be to deny every quality of
+the law but its age, and to render it incapable of progress or
+improvement. It would be to stamp upon our jurisprudence the
+unchangeableness attributed to the laws of the Medes and
+Persians.... It is most consonant to the true philosophy of our
+historical legal institutions to say that the spirit of personal
+liberty and individual right, which they embodied, was preserved
+and developed by a progressive growth and wise adaptation to new
+circumstances and situations of the forms and processes found fit
+to give, from time to time, new expression and greater effect to
+modern ideas of self-government.... It follows that any legal
+proceeding enforced by public authority, whether sanctioned by
+age and custom or newly devised in the discretion of the
+legislative power in furtherance of the general public good,
+which regards and preserves these principles of liberty and
+justice, must be held to be due process of law."[Footnote:
+Hurtado _v._ California, 110 United States Reports, 513,
+528, 529, 530, 537.]
+
+Many of our State Constitutions specify certain rights as
+inherent and indefeasible, and among them that "of acquiring,
+possessing, and protecting property." What is property?
+American courts have said that it includes the right of every one
+to work for others at such wages as he may choose to accept. One
+of them, in supporting a decree for an injunction against
+combined action by a labor union to deprive non-union men of a
+chance to work, by force or intimidation, notwithstanding a
+statute abrogating the common law rule making such acts a
+criminal conspiracy, has put it thus:
+
+  The right to the free use of his hands is the workman's
+  property, as much as the rich man's right to the undisturbed
+  income from his factory, houses, and lands. By his work he
+  earns present subsistence for himself and family. His savings
+  may result in accumulations which will make him as rich in
+  houses and lands as his employer. This right of acquiring
+  property is an inherent, indefeasible right of the workman. To
+  exercise it, he must have the unrestricted privilege of working
+  for such employer as he chooses, at such wages as he chooses to
+  accept. This is one of the rights guaranteed to him by our
+  Declaration of Rights. It is a right of which the legislature
+  cannot deprive him, one which the law of no trades union can
+  take from him, and one which it is the bounden duty of the
+  courts to protect. The one most concerned in jealously
+  maintaining this freedom is the workman himself.[Footnote:
+  Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
+  56 Atlantic Reporter, 331.]
+
+But, as already suggested in the preceding chapter, the judges
+whose opinions have vitalized and enlarged our written law by
+reading into it some new meaning or application have but echoed
+the voice of the bar.
+
+The greatest achievements of Marshall in this direction were
+really but a statement of his approbation of positions laid down
+before him by Daniel Webster. In the early stages of the
+Dartmouth College case, when it was before the State courts in
+New Hampshire, it was Webster and his associates, Jeremiah Mason
+and Jeremiah Smith, both lawyers of the highest rank, who first
+put forward the doctrine that the charter of a private
+corporation was a contract; and when the cause came before the
+Supreme Court of the United States it fell to the lot of Webster
+to bring it to the attention of the great Chief
+Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
+Florida case it was he, in supporting the cause of the prevailing
+party, who suggested that the Territory of Florida, though owned
+by the United States, was no part of them. "By the law of
+England," he went on to say, "when possession is taken of
+territories, the king, _Jure Corona_, has the power of
+legislation until parliament shall interfere. Congress have the
+_Jus Corona_ in this case, and Florida was to be governed by
+Congress as she thought proper."[Footnote: American Insurance
+Co. _v._ Canter, 1 Peters' Reports, 611, 538.]
+
+This argument did not spend its force in its effect on Marshall.
+When, after the lapse of two generations, greater problems of the
+relations of the United States to territory newly acquired from
+Spain arose, it was, as has been said above, made one of the
+cornerstones of the opinion of the same court which determined
+what they were.[Footnote: Downes _v._ Bidwell, 182 United
+States Reports, 244, 265.]
+
+So in the Hurtado case, which has been described at length, no
+description of due process of law was found better and none is
+better than that given by Webster so many years before in the
+Dartmouth College case. The Supreme Court of New Hampshire, from
+whose judgment that cause came up by writ of error, had held--and
+on that point its decision was final--that the change in the
+college charter was no violation of the bill of rights embodied
+in the Constitution of that state. This, following _Magna
+Charta_, provided (Part I, Art. 15) that no subject should be
+"despoiled or deprived of his property, immunities, or
+privileges, put out of the protection of the law, exiled, or
+deprived of his life, liberty or estate, but by the judgment of
+his peers or the law of the land." _Magna Charta_ was wrung
+from a tyrant king. So, said the State court, this article was
+inserted to protect the citizens against the abuse of the
+executive power. When it speaks of the law of the land it means
+the law of New Hampshire, and that is whatever the legislature of
+New Hampshire chooses to enact, so long as it contravenes no
+other constitutional provision.
+
+Webster, in paving the way toward his claim that the charter was
+a contract, and, as a vested right of property, inviolable by a
+State, alluded to the sacredness of all rights under the
+guaranties to be found in our American system of constitutional
+government. It was not surprising that the Constitution of the
+United States should protect them in the way he asserted. All
+the States, and New Hampshire among them, had done the same in
+placing the great features of _Magna Charta_ in their bills
+of rights. What, he asked, was this law of the land by which all
+things were to be tried and judged?  This was his answer: "By the
+law of the land is most clearly intended the general law; a law
+which hears before it condemns; which proceeds upon inquiry, and
+renders judgment only after trial. The meaning is that every
+citizen shall hold his life, liberty, property and immunities
+under the protection of the general rules which govern society.
+Everything which may pass under the form of an enactment is not
+therefore to be considered the law of the land. If this were so,
+acts of attainder, bills of pains and penalties, acts of
+confiscation, acts reversing judgments, and acts directly
+transferring one man's estate to another, legislative judgments,
+decrees and forfeitures in all possible forms, would be the law
+of the land."[Footnote: "Works of Daniel Webster," V, 486.]
+
+In the opinion by Mr. Justice Mathews in Hurtado _v._
+California he observes: "It is not every act, legislative in
+form, that is law. Law is something more than mere will exerted
+as an act of power. It must be not a special rule for a
+particular person or a particular case, but, in the language of
+Mr. Webster, in his familiar definition, 'the general law, a law
+which hears before it condemns, which proceeds upon inquiry, and
+renders judgment only after trial,' so 'that every citizen shall
+hold his life, liberty, property and immunities under the
+protection of the general rules which govern society.'"
+[Footnote: Hurtado _v._ California, 110 United States
+Reports, 516, 535.]
+
+Other instances might be mentioned, equally conspicuous, which
+will entitle Webster to the name given him by his contemporaries
+of "the expounder of the Constitution."[Footnote: See Article by
+Everett P. Wheeler on Constitutional Law of the United States as
+Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
+p. 366, and in the 27th Annual Report of the New York State Bar
+Association.] No one American lawyer has done as much in that
+direction, but there are few of the greater ones who have not
+done something. As, however, the glory of a battle won is for
+the commander of the victorious forces, so the glory of adding a
+new meaning to a constitution at a vital point is, with the
+public, always for the judge whose opinion is the first to
+announce it. Who announced it to him they never know or soon
+forget.
+
+The acknowledged possession by the judiciary of the power to
+interpret written law, and thus to delimit its effect, has led to
+a serious abuse in our methods of legislation. Statutes are
+often favorably reported and enacted, both in Congress and the
+State legislatures, which are admitted to be either of doubtful
+constitutionality or to contain expressions of doubtful meaning,
+on the plea that those are questions for the courts to settle.
+This has been aptly termed the method of the "_referendum_
+to the courts in legislation."[Footnote: Thomas Thacher, Address
+before the State Bar Association of New Jersey, 1903.] It is
+unfair to them, so far as any question of the Constitution is
+concerned, since as soon as the measure is enacted a presumption
+arises that it is not unconstitutional. The courts will not hold
+otherwise without strong grounds. It comes to them with the
+benefit of a full legislative endorsement. It is unfair to the
+people, both as to questions of constitutionality and of
+interpretation. A statute can be so drawn as to need no
+interpretation, or none the outcome of which can be a matter of
+doubt to any competent lawyer. A legislature abandons its
+function when it enacts what it does not understand.
+
+The Sherman Anti-Trust Act is an instance of legislation of this
+character. It forbids contracts "in restraint of trade or
+commerce" between the States. When the bill was reported it was
+objected in the House of Representatives that these terms were
+vague and uncertain. The chairman of the committee himself
+stated that just what contracts will be in restraint of such
+commerce would not and could not be known until the courts had
+construed and interpreted the phrase.
+
+The real intent of those who inserted it was that it should not
+embrace contracts which were reasonable and not contrary to
+public policy. A similar term in the English Railway and Canals
+Traffic Act had received that interpretation in the English
+courts, and they supposed that our courts would follow those
+precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
+The Supreme Court of the United States did construe it as
+embracing all contracts in restraint of inter-State trade,
+whether reasonable or unreasonable, fair or unfair.[Footnote:
+United States _v._ Joint Traffic Association, 171 United
+States Reports, 505, 570.] One of the justices who concurred in
+that opinion, in a subsequent case arising under the same statute
+intimated that on reconsideration he thought the view that had
+been thus adopted was wrong.[Footnote: Northern Securities
+Co. _v._ United States, 193 United States Reports, 197,
+361.] The addition by those who drafted the bill of three or
+four words to make their intended meaning clear would have
+avoided a result unexpected by them and probably undesired, and
+relieved the court from deciding questions of doubtful
+construction involving important political considerations and
+immense pecuniary interests.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER VII
+
+
+        THE JUDICIAL POWER OF DECLARING WHAT HAS THE
+                FORM OF LAW NOT TO BE LAW
+
+
+Government is a device for applying the power of all to secure
+the rights of each. Any government is good in which they are
+thus effectually secured. That government is best in which they
+are so secured with the least show of force. It is not too much
+to say that this result has been worked out in practice most
+effectually by the American judiciary through its mode of
+enforcing written constitutions. How far it has gone in
+developing their meaning and building upon the foundations which
+they furnish has been made the subject of discussion in the
+preceding chapter. It remains to consider its office of
+adjudging statutes which come in conflict with their meaning, as
+thus determined, to be void.
+
+The idea of a supreme authority exercising the function of
+setting aside acts of legislative bodies which it deemed
+inconsistent with a higher law was familiar to Americans from an
+early period of our colonial history.[Footnote: See Chap. I;
+Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
+American Law," 12, 19.] The charter of each colony served the
+office of a constitution. The Lords of Trade and Plantations
+exercised the power of enforcing its observance. They did in
+effect what, as the colonies passed into independent States with
+written Constitutions, naturally became the function of their own
+courts of last resort. The Constitution, like the charter, was
+the supreme law of the land. Whatever statutes the legislature
+of a State might pass, it passed as the constitutional
+representative of the people of that State. It was not made
+their plenary representative. Every Constitution contained some
+provisions restricting the legislative power. If any particular
+legislative action transgressed these restrictions, it
+necessarily went beyond the authority of the body from which it
+emanated.
+
+The Judicial Committee of the Privy Council, which now exercises
+the functions formerly belonging to the Lords of Trade and
+Plantations, and is in fact the same body, deals in a similar way
+today with questions of a constitutional character. If one of
+the provinces included in the Dominion of Canada should in its
+local legislation infringe upon a field belonging to the Dominion
+Parliament, this committee can "humbly advise the king" that the
+act in question is for that reason void.[Footnote: In July, 1903,
+for instance, an Act of the Province of Ontario, entitled the
+"Lord's Day Profanation Act," was thus declared _ultra
+vires_.]
+
+The Revolution found the new-made States of the Union without
+this safeguard against a statute repugnant to a higher law. They
+had enjoyed as colonies the advantage which Burke declared was an
+ideal in government. "The supreme authority," he said, "ought to
+make its judicature, as it were, something exterior to the
+State." The supreme judicature for America had been in England.
+There was now no King in Council with power to set a statute
+aside forthwith by an executive order. But the other function of
+the King in Council, that of acting as a court of appeal from
+colonial judgments, had been simply transferred to new hands.
+The State into which the colony had been converted now exercised
+it for itself and through her judiciary.
+
+The judgment of a court is the legal conclusion from certain
+facts. Unless it is a legal conclusion from the facts on which
+it purports to rest it is erroneous, and, if there is any higher
+court of appeal, can be reversed. If such a judgment depends
+upon a statute which justifies or forbids the act or omission
+which constituted the cause of action, it is legal or illegal
+according as this statute is or is not law. It cannot be law if
+its provisions contravene rules laid down by the Constitution of
+the State to restrict the legislative power. The court which
+tries the cause must meet this question whenever it arises like
+any other and decide it. A court of law must be governed by law.
+What has the form of law is not law, in a country governed by a
+written constitution, unless it is consistent with all which that
+instrument provides.
+
+The first decision of an American court bottomed on these
+principles was probably rendered as early as 1780, and in New
+Jersey.[Footnote: Holmes _v._ Walton, IV _American
+Historical Review_, 456.] One of her greatest statesmen, who
+after taking a distinguished part in framing the federal
+Constitution became a justice of the Supreme Court of the United
+States, vigorously enforced the same doctrine on the circuit
+fifteen years later in trying a cause turning on the
+unconstitutionally of a confirming act passed by the legislature
+of Pennsylvania. "I take it," Justice Patterson said in charging
+the jury, "to be a clear position that if a legislative act
+oppugns a constitutional principle the former must give way and
+be rejected on the score of repugnance. I hold it to be a
+position equally clear and sound that in such case it will be the
+duty of the court to adhere to the Constitution, and to declare
+the act null and void."[Footnote: Vanhorne's Lessee _v._
+Dorrance, 2 Dallas' Reports, 304, 309, 316.]
+
+The accession of the Republicans to power in 1801, only to find
+the courts of the country controlled by judges appointed from the
+ranks of the Federalists, was the occasion of new attacks upon
+the doctrine thus laid down. It was vigorously denied by Senator
+Breckenridge of Kentucky, afterward Attorney-General of the
+United States, in the debates preceding the repeal of the
+Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
+year later (in 1803) the question came for the first time before
+the Supreme Court of the United States, and the same positions
+advanced by Patterson were taken in what is known as the leading
+case upon this subject by Chief Justice Marshall.[Footnote:
+Marbury _v._ Madison, I Cranch's Reports, 137. See
+Willoughby, "The American Constitutional System," 39.] It was
+unfortunate that the action was one involving a matter of
+practical politics, in which the plaintiff sought the benefit of
+a commission the issue of which had been directed by President
+Adams at the close of his term, but which was withheld by the
+Secretary of State under President Jefferson. Party feeling ran
+high at this time. The views of Breckenridge were shared by
+many, and the supremacy of the judicial department, which this
+prerogative, if it possessed it, seemed to imply, was distasteful
+to a large part of the people.
+
+An eminent judge of a State court, Chief Justice Gibson of
+Pennsylvania, as late as 1825, in a dissenting opinion, combated
+at length the reasoning of Marshall as weak and inconclusive.
+If, he said, the judiciary had the power claimed, it would be a
+political power. Our judicial system was patterned after that of
+England. Our judges had, as such, no power not given by the
+common law. It was conceded that English judges could not hold
+an act of Parliament void because it departed from the British
+constitution. No more could American judges hold an act of a
+State legislature void because it departed from the State
+Constitution, unless that Constitution in plain terms gave them
+such a power. The Constitution of the United States did give it,
+political though it was, to all judges (Art. XI, Sec. 2), and a
+State statute which was contrary to that Constitution might
+therefore properly be declared void by the courts.[Footnote:
+Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
+Later in his judicial career Gibson abandoned this position,
+[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
+281.] and the ground taken by Marshall has been since 1845
+universally accepted.
+
+The last official attack upon it was made in 1831, at the time
+when the feeling against protective tariffs was strong in the
+South, and South Carolina was known to be meditating opposition
+to their enforcement. The judiciary committee of the House of
+Representatives reported a bill to repeal the section of the
+Judiciary Act which gave the Supreme Court of the United States
+the right to reverse judgments of State courts that it might deem
+contrary to the Constitution of the United States. The report
+said that such a grant was unwarranted by the Constitution and "a
+much greater outrage upon the fundamental principles of
+theoretical and practical liberty as established here than the
+odious writ of _quo warranto_ as it was used in England by a
+tyrannical king to destroy the right of corporations." The
+House, however, rejected the bill by a very large majority.
+
+A proper regard for the coordination of the departments of
+government forbids courts to declare that a statute is
+inconsistent with the Constitution unless the inconsistency is
+plain. It has been judicially asserted that it must be plain
+beyond a reasonable doubt, thus applying a rule of evidence which
+governs the disposition of a criminal cause. As judgments
+declaring a statute inconsistent are often rendered by a divided
+court, this position seems practically untenable. The majority
+must concede that there is a reasonable doubt whether the statute
+may not be consistent with the Constitution, since some of their
+associates either must have such a doubt, or go further and hold
+that there is no inconsistency between the two documents.
+
+This right of a court to set itself up against a legislature, and
+of a court of one sovereign to set itself up against the
+legislature of another sovereign, is something which no other
+country in the world would tolerate. It rests on solid reason,
+but as the Due de Noailles has said, "Un semblable raisonnement
+ne ferait pas fortune aupres des républicans d'Europe, fort
+chatouilleux sur le chapitre de la puissance législative. C'est
+que la notion de l'État diffère d'une façon essentielle sur les
+deux rives de l'Atlantique."[Footnote: Cent Ans de République aux
+États-Unis, II, 145.]
+
+Our people have been satisfied with the interposition of the
+courts to defend their Constitutions from executive or
+legislative attack, because these Constitutions stand for
+something in which they thoroughly believe. President Hadley has
+well said that "a written Constitution serves much the same
+purpose in public law which a fence serves in the definition and
+protection of private rights to real estate. A fence does not
+make a boundary; it marks one. If it is set where a boundary
+line has previously existed by tradition and agreement, it forms
+an exceedingly convenient means of defending it against
+encroachments. If it is set near the boundary and allowed to
+stay there unchallenged, it may in time become itself the
+accepted boundary. But if the attempt is made to establish a
+factitious boundary by the mere act of setting up a fence the
+effort fails."[Footnote: Freedom and Responsibility, 30.]
+Americans took principles and institutions with which they had
+become familiar in colonial days and made their Constitutions out
+of them. Their attachment to what the Constitution provides goes
+behind the Constitution to the rock of ancient custom and
+precedent on which it rests, the common heritage of all the
+States.
+
+There is an obvious reason for the unwillingness of the judiciary
+to exercise the power under consideration unless in case of
+necessity. The legislature presumably does only what the public
+sentiment of the day justifies or demands. One branch of it, at
+least, is the direct representative of the people. To defeat the
+operation of a statute is therefore always presumably an
+unpopular thing to do, and if in any case there is known to be
+truth behind the presumption, it requires, as the Federalist
+[Footnote: No. LXXVIII.] put it, "an uncommon portion of
+fortitude in the judges to do their duty as faithful guardians of
+the constitution."
+
+It is seldom that an inferior court declares a statute void. The
+mere fact that it was enacted by the legislature imports the
+opinion of that body that it was within its powers; and such an
+opinion of a department of government is entitled to great
+respect. If a different, opinion is to prevail, it should
+ordinarily be first pronounced by the highest authority that can
+speak for the judicial department. So far, however, as the
+question of power or jurisdiction is concerned, a justice of the
+peace, in trying a five-dollar case, has the same authority to
+disregard a statute, whether it be one enacted by the State
+legislature or by Congress, if he deems it unconstitutional,
+which belongs to the full bench of the Supreme Court of the
+United States. If he is wrong, the only remedy is by appeal.
+
+The number of statutes which have been judicially pronounced in
+whole or part invalid in the United States is very large. Among
+the Acts of Congress which have fallen in this manner and have
+been made the subject of elaborate opinions may be mentioned the
+provision in the original Judiciary Act giving the Supreme Court
+of the United States greater original jurisdiction than the
+Constitution provided;[Footnote: Marbury _v._ Madison, I
+Cranch's Reports, 137.] the Act of 1865, excluding from practice
+in the United States courts attorneys who could not take the
+"iron-clad oath" that they had not supported the South in the
+Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
+Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
+_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
+Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
+to protect the colored voter;[Footnote: United States _v._
+Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
+1875;[Footnote: United States _v._ Stanley, 109
+U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
+Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
+of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
+157 U. S. Reports, 429.] Fifteen others of less importance have
+fallen by the same sword. The Supreme Court of the United States
+has also set aside in the same manner, as inconsistent with the
+Constitution of the United States, over two hundred statutes
+passed by States. Of the twenty-one acts of Congress thus
+declared unconstitutional, the decisions as to all but two were
+rendered after 1830; of the State statutes all but
+twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
+Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
+fourteenth amendment has added largely to the list of the latter
+since its adoption in 1868.
+
+State statutes set aside by the State courts since 1780 as in
+violation of their respective State constitutions number
+thousands. In the year from October 1, 1902, to October 1, 1903,
+the legislatures of forty-four States and fully organized
+Territories of the United States were in session and nearly
+14,400 new statutes were enacted. During the same year fifty
+State statutes were declared in whole or part unconstitutional by
+courts of last resort. Three of these decisions were rendered by
+the Supreme Court of the United States. Five statutes of
+Missouri and as many of Indiana were thus set aside; three each
+of California, Kansas and Ohio; two each of Florida, Illinois,
+Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
+and one each of those of Kentucky, Maine, Michigan, Minnesota,
+New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
+Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
+No. 86, New York State Library, "Comparative Summary and Index of
+Legislation, 1903," 273, 281.] On the average probably as many
+as one statute out of every three hundred that are enacted from
+year to year are thus judicially annulled.
+
+The declaration by a court that a statute is unconstitutional and
+void is only a step in a cause. In the judgment it may not be
+found necessary or proper even to allude to it. But the order of
+the court which the judgment contains must be executed precisely
+as if no such statute had ever been enacted. It may, in effect,
+be directed against the State whose statute is pronounced void if
+the plaintiff complains of action taken under it which has
+deprived him of property and put it in the hands of public
+officers, or seeks a remedy to prevent a threatened wrong.
+
+The State of Ohio in 1819 passed a statute reciting that a branch
+of the United States Bank was transacting business there contrary
+to the law of the State, and imposing a tax upon it, in case it
+continued to do so, of $50,000 a year, to be collected by the
+auditor and paid over to the treasurer. The auditor subsequently
+sent a man to the bank who forcibly seized and carried off
+$98,000 in specie. This was given to the State treasurer, who
+kept it in the treasury in a trunk by itself. The bank sued all
+three for the money in the Circuit Court, setting forth all these
+proceedings at length. Judgment went against them and, with a
+slight modification, was affirmed by the Supreme Court of the
+United States. It was held by Marshall in giving the opinion
+that the statute was void; that the money had never become
+mingled with the funds of the State; and that they were liable
+for it precisely as if they were private individuals who had
+wrongfully seized it.[Footnote: Osborn _v._ Bank of the
+United States, 9 Wheaton's Reports, 738.]
+
+These proceedings awakened great feeling in Ohio, and became the
+subject of much criticism throughout the country by those
+adhering to the Democratic party. The legislature of Ohio
+adopted resolutions denouncing them as unauthorized by the
+Constitution of the United States, and directed the Governor to
+forward a copy to the legislature of every other State with a
+request for its opinion on the subject. The replies varied in
+tone according to the political predilections of the party then
+in control of the State addressed.
+
+Still closer does a court come to collision with the political
+sovereignty of the State when it commands a public officer to do
+something in violation of a statute which it pronounces void, or
+not to do something which such a statute requires. A striking
+instance of this is furnished by the power to nullify legislative
+gerrymanders. The Constitutions of almost every State provide
+that it shall be districted from time to time by the legislature
+for the purpose of electing certain officers or local
+representatives, and that this shall be so done as to make the
+districts as nearly equal in population as conveniently may be,
+and composed of contiguous territory. If a legislature
+undertakes to construct districts by any other rule, the courts
+can compel those charged with the conduct of elections to
+disregard it and to hold them according to the districts
+previously established under the former law.[Footnote: State
+_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
+17 Lawyers' Reports Annotated, 145; 35 American State Reports,
+29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
+638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
+Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
+Northeastern Reporter, 980.] But however necessary may be the
+conclusion from the premises, it can hardly be agreeable to the
+authors of a law which it serves to destroy. In effect, though
+not in theory, it subordinates one department of government to
+another. The practical result is to give the judiciary a
+superior power to the legislature in determining what laws the
+latter can enact. It is not a right of veto, but in a case which
+calls for its exercise it is an equal right exercised in a
+different way.
+
+In the first instance of a resort to it[Footnote: See p. 100.]
+the section of the New Jersey Constitution of 1776 confirming the
+right of trial by jury was held by the full bench of the Supreme
+Court to render a statute void which authorized a trial without
+appeal before a jury of six, on a proceeding for the forfeiture
+of goods brought in from British territory or the British
+military lines. This was an unwelcome decision to many who were
+interested in such seizures, and they sent in several petitions
+to the legislature for redress. No action criticising the
+judges, however, was taken by that body.
+
+Four years later the Mayor's Court of New York, in the case of
+Rutgers _v._ Waddington, held that an act of the legislature
+of that State, if given the effect which it was plainly intended
+to secure, would be contrary to the Constitution of the State,
+and therefore allowed it so limited an operation as virtually to
+annul it. The legislature retorted by resolutions of
+censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]
+
+What was probably the second instance of the actual use of the
+power in question arose in 1786, out of a statute of Rhode Island
+passed to support the credit of her paper money of that year's
+issue. Any one declining to receive it in payment for goods sold
+at par was to be liable to a _qui tum_ action, to be tried
+without a jury. Counsel for a man sued in such a proceeding put
+in a plea that the act was unconstitutional and so
+void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
+Power and Unconstitutional Legislation," 234, 237.] The court,
+which was composed of five judges, threw out the action on this
+ground, treating the charter from Charles II and the long usage
+under it as having established trial by jury as a fundamental and
+indefeasible right. The General Assembly shortly afterward
+summoned the judges before it to account for this judgment. They
+appeared and stated their reasons for their conclusion,
+protesting also against the adoption of any resolution for their
+removal from office (which had been suggested) until after a
+formal trial. They were not impeached, but at the ensuing
+session, their terms of office having expired, the Assembly chose
+others in their place.
+
+Not far from the same time the Supreme Judicial Court of
+Massachusetts pronounced a statute unconstitutional, but there
+the legislature displayed no feeling, and at the next session
+unanimously repealed it.[Footnote: This, no doubt, was one of the
+instances of the exercise of this power referred to by Elbridge
+Gerry in the Federal Convention of 1787. Elliot's Debates, V,
+151. It is described in Proceedings Massachusetts Historical
+Society, XVII, 507.]
+
+In 1808, Judge Calvin Pease of the Ohio Circuit Court was
+impeached for holding a law of Ohio unconstitutional. He avowed
+the act, and insisted that as it was a judicial one the soundness
+or unsoundness of his conclusions could not be inquired into as a
+ground of impeachment. The result was an acquittal.[Footnote:
+Foster, "Commentaries on the Constitution of the United States,"
+I, 691.]
+
+Georgia was the only one of the original States which set up no
+Supreme Court at the beginning of its statehood. Her
+Constitution established (Art. III, Sec. 1) a Superior Court, and
+left it to the General Assembly to give it, if they thought best,
+appellate jurisdiction. The judges were subsequently by statute
+authorized to sit _in banc_ and hear appeals. In 1815,
+while so sitting, they declared a certain statute of the State
+unconstitutional and void. The legislature showed its resentment
+by a set of resolutions, of which the parts material in this
+connection read thus:
+
+  Whereas, John McPherson Berrien, Robert Walker, Young Gresham
+  and Stephen W. Harris, judges of the Superior Court, did, on
+  the 13th day of January, 1815, assemble themselves together in
+  the city of Augusta, pretending to be in legal convention, and
+  assuming to themselves ... the power to determine on the
+  constitutionality of laws passed by the general assembly, and
+  did declare certain acts of the legislature to be
+  unconstitutional and void; and ... the extraordinary power of
+  determining upon the constitutionality of acts of the state
+  legislature, if yielded by the general assembly whilst it is
+  not given by the constitution or laws of the state, would be an
+  abandonment of the dearest rights and liberties of the people,
+  which we, their representatives, are bound to guard and protect
+  inviolate;
+
+  Be it therefore resolved, That the members of this general
+  assembly view, with deep concern and regret, the aforesaid
+  conduct of the said judges ... and they can not refrain from an
+  expression of their entire disapprobation of the power assumed
+  by them of determining upon the constitutionality of laws
+  regularly passed by the general assembly, as prescribed by the
+  constitution of this state; we do, therefore, solemnly declare
+  and protest against the aforesaid assumption of powers, as
+  exercised by the said judges, and we do, with heartfelt
+  sensibility, deprecate the serious and distressing consequences
+  which followed such decision; yet we forbear to look with
+  severity on the past, in consequence of judicial precedents,
+  calculated in some measure to extenuate the conduct of the
+  judges, and hope that for the future this explicit expression
+  of public opinion will be obeyed.
+
+In 1821 a case was argued before the Supreme Court of the United
+States involving the validity of a Kentucky statute passed to
+protect occupants of land who had made valuable improvements upon
+it in good faith, in case it should be subsequently proved to
+belong to some one else. The occupant had employed no lawyer,
+and it was surmised that the court would decide against him. The
+Governor of Kentucky called the attention of the legislature to
+this, and advised the employment of counsel to defend the law.
+The legislature responded by resolving "that they consider an
+adjudication, that the laws in question are void, incompatible
+with the constitutional powers of this state, and highly
+injurious to the best interests of the people; and therefore do,
+in the name of the commonwealth of Kentucky, and the good people
+thereof, solemnly remonstrate and protest against any such
+adjudication," but that two commissioners should be appointed "to
+attend the Supreme Court of the United States at the next term
+and oppose any decision that may be attempted to be procured from
+the Supreme Court, that those laws are void in such manner as
+they may deem most respectful to the court and most consistent
+with the dignity of this state."[Footnote: Niles' Register, XXI,
+190, 404, 405.] The case had already been heard _ex parte_,
+and the court soon proceeded to give judgment that the statute in
+question was void. The Kentucky commissioners employed counsel,
+who moved for a reargument, and obtained one, but with the same
+result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
+1.] The legislature at its next session discussed the opinion in
+the case and resolved "that they do most solemnly protest against
+the doctrines promulgated in that decision as ruinous in their
+practical effects to the good people of this commonwealth and
+subversive of their dearest and most valuable political
+rights."[Footnote: Niles' Register, XXV, 275.]
+
+They then took up two decisions of their own Court of Appeals,
+declaring other statutes of the State unconstitutional and void,
+and resolved "that in the opinion of this legislature the
+decision of the Court of Appeals of Kentucky in the cases of
+Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
+34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
+are erroneous, and the laws declared therein to be
+unconstitutional are, in the opinion of this present General
+Assembly, constitutional and valid acts."[Footnote: Niles'
+Register, XXV, 275.] The next step was to endeavor to remove the
+judges, but the two-thirds vote required by the Constitution to
+support an address to the Governor for that purpose could not be
+secured. At the next session, in 1824, the judges were summoned
+to show cause why they should not be removed. They defended
+their conclusions so well that the two-thirds vote of each house
+required by the Constitution could not be obtained. By a
+majority vote the court was then abolished, a new one set up by
+the same name, and four new judges appointed. The old court
+refused to recognize the validity of their proceedings. The new
+one assumed to organize and to do business. At the next election
+the question which court ought to be recognized was the dominant
+one. The result was that the friends of the old court gained
+control of the House and those of the new court that of the
+Senate, one of them being also chosen as the Governor. The new
+court now got possession of most of the papers of the old court.
+The latter ordered their sergeant to bring them back. The
+Governor made preparations to use military force to resist the
+execution of this order. At last, in 1826, an act was passed
+(Session Laws, p. 13) over the Governor's veto, declaring the
+acts abolishing the old court unconstitutional and void. The
+Governor thereupon appointed a warm champion of the new court
+chief justice of the old one to fill a vacancy which had occurred
+on that bench, and for the first time for two years the judicial
+establishment of the State was on a proper footing.[Footnote:
+Niles' Register, XXXI, 324; McMaster "History of the People of
+the United States," V, 162-166; "The Old and the New Court, in
+The Green Bag," XVI, 520.]
+
+Meanwhile both courts had been sitting and disposing of cases.
+New appeals from the inferior courts had been entered in the one
+which the appellant's counsel thought most likely to stand as the
+rightful authority. The judges of the inferior courts were in
+despair when the mandates of the Court of Appeals came down, and
+they were called upon to determine whether to obey them. Some
+held that the new court was a _de facto court_, and to be
+respected accordingly. The ultimate decision fell to the old
+court, which, after the repealing Act of 1826, held that there
+could be no such thing as a _de facto_ Court of Appeals so
+long as civil government was maintained and the _de jure_
+court was in the exercise of its functions.[Footnote: Hildreth's
+Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
+Reports, 206.]
+
+The same spirit of jealousy still occasionally manifests itself
+in a less outspoken but more effective fashion. If a question of
+political importance is likely to come before a court, it may be
+within the power of the legislature to prevent it by a change in
+its statutory jurisdiction.
+
+In this way the Supreme Court of the United States was kept from
+passing on the validity of the Reconstruction Acts enacted by
+Congress at the close of the Civil War, in a case which was
+actually pending. Under these Acts a Mississippi newspaper
+editor was arrested in 1867 by military order on account of an
+article which he had published reflecting on the policy of the
+government, and held for trial before a military commission. He
+appealed to the Circuit Court of the United States for the
+District of Mississippi for discharge on a writ of _habeas
+corpus_. Judgment went against him, and he appealed to the
+Supreme Court of the United States. The court, on August 1, held
+that it had jurisdiction to review the decision and to decide
+whether he could be tried before such a commission.[Footnote:
+_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
+cause was then heard on its merits and all the questions involved
+discussed at length, four days being devoted to it. Congress
+apprehended a decision that the Reconstruction Acts were
+unconstitutional, and before one was arrived at, during the same
+month, passed an act repealing the right of appeal in such cases
+from the Circuit Court. The purpose of this was obvious, but it
+was none the less effective, and the court, without deciding the
+case, dismissed it for want of jurisdiction.[Footnote: _Ex
+parte_ McCardle, 7 Wallace's Reports, 506.]
+
+A legislature whose work has been set aside by the courts as
+unconstitutional sometimes asks, in effect, for a reconsideration
+of the question by passing another law substantially of the same
+nature, although expressed in somewhat different terms. This is
+oftenest done when the decision was made by a divided court or is
+contrary to the weight of judicial opinion in other States.
+Early in the history of California, for instance, a statute was
+passed making it a misdemeanor to keep open any store, shop or
+factory, or to sell goods, on Sunday. The Supreme Court of the
+State held this to be contrary to the provisions in her
+Constitution that all men had the inalienable right of acquiring
+property, and that the free exercise of religious profession
+should be allowed without discrimination or preference. Most of
+the other States had similar statutes, and their courts had
+supported their validity. Judge Stephen J. Field, then on the
+California bench, dissented in a vigorous opinion.[Footnote:
+_Ex parte_ Newman, 9 California Reports, 502.] Three years
+later the legislature, unconvinced by the reasoning of the
+majority of his associates, passed a new Sunday law, which did
+not differ materially from the other, and after a few months the
+court overruled their former decision, on the very ground taken
+by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
+Reports, 679.]
+
+Any dissent from a judgment setting aside a statute greatly
+weakens its force. It has also much less claim to public
+confidence if all the judges on the bench did not participate in
+it. In 1825, the Court of Appeals of Kentucky declined to follow
+a decision of the Supreme Court of the United States, which held
+certain statutes of Kentucky to be contrary to the Constitution
+of the United States.[Footnote: Green _v._ Biddle, 8
+Wheaton's Reports, 1.] The reason stated for this was that the
+decision was not concurred in by a majority of the court. It had
+been made by a majority of a quorum, but not by a majority of the
+whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
+Kentucky Reports, 57.] After this it became the practice of the
+Supreme Court under Chief Justice Marshall not to give judgment
+in any case involving constitutional questions, unless a majority
+of the court concurred in opinion in regard to these.[Footnote:
+New York _v._ Miln, 8 Peters' Reports, 118, 122.]
+
+Several American courts have asserted the doctrine that the
+judiciary can disregard a statute which plainly violates the
+fundamental principles of natural justice, although it may not
+contravene any particular constitutional provisions. The English
+courts now claim no such power, although Sir Edward Coke, in one
+of his discursive opinions, very little of which was necessary
+for the determination of the cause, asserted that an act of
+Parliament "against common right and reason" could be adjudged
+void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
+Reports, 114, 118.] So far as there was any previous judicial
+authority for this position, however, it is believed that it can
+only be found in decisions made before the Reformation, on
+questions arising from interference by Parliament with rights
+claimed under the Church of Rome. Such questions were of the
+nature of those arising under a written Constitution. The law of
+the church within its province was then accepted as a supreme
+law.[Footnote: Coxe, "Judicial Power and Unconstitutional
+Legislation,"' 147, _et seq_.]
+
+The rule laid down by Sir Edward Coke was accepted by the Supreme
+Court of South Carolina in two early cases,[Footnote: Ham
+_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
+Middleton, _Ibid_., 252.] and has been substantially
+repeated in some judicial opinions in other States.[Footnote: See
+Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
+Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
+American Decisions, 72.] In the Supreme Court of the United
+States its authority was emphatically denied by Mr. Justice
+Iredell, near the close of the eighteenth century,[Footnote:
+Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
+the full court only one member dissenting, held a State statute
+void which authorized cities to issue bonds in aid of private
+manufacturing enterprises, because they could only be discharged
+by taxation, and to tax for such a purpose would be taking
+property from all for the good of one. That, said Mr. Justice
+Miller in delivering the opinion, "is none the less a robbery
+because it is done under the forms of law and is called taxation.
+This is not legislation. It is a decree under legislative
+form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
+Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
+U. S. Reports, 487, 501.]
+
+This view of the law had been forcibly, though tentatively, put
+shortly after he came to the bench by Chief Justice Marshall in a
+leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
+Reports, 87.] but one in which it was not necessary to decide
+whether the doctrine was sound. "It may well be doubted," he
+observed, "whether the nature of society and of government does
+not prescribe some limits to the legislative power; and, if any
+be prescribed, where are they to be found, if the property of an
+individual, fairly and honestly acquired, may be seized without
+compensation?  To the legislature all legislative power is
+granted; but the question whether the act of transferring the
+property of an individual to the public be in the nature of the
+legislative power is well worthy of serious reflection."
+
+The weight of American authority is in favor of the position
+taken by Iredell.[Footnote: Cooley's "Constitutional
+Limitations," Chap, VII; State _v._ Travelers' Insurance
+Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
+57 Lawyers' Reports Annotated, 481.] Time has made it safer to
+stand upon it, for since he spoke not only have our State
+constitutions been generally expanded by adding important
+restrictions on the legislative power, but the fourteenth
+amendment has added to the Constitution of the United States a
+prohibition of State laws depriving any person of life, liberty,
+or property without due process of law. "Due process of law" is
+an elastic term. Requiring it certainly imports that no one is
+to be made to suffer in person or property unless he has had an
+opportunity to claim before an impartial tribunal the protection
+of his rights by the settled law of the land.
+
+The principle of Roman law that, as custom can make law, so
+disuse can destroy it has never been adopted in the United
+States. No court, therefore, will pronounce a statute not to
+have the force of law on the ground that it is
+obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
+undertook to import the doctrine into American jurisprudence, but
+without effect. Hill _v._ Smith, Morris' Reports, 70;
+explained and limited in Pearson _v._ International
+Distillery, 72 Iowa Reports, 357.]
+
+            *       *       *       *       *
+
+
+
+
+PART II
+
+
+
+
+
+THE ORGANIZATION AND PRACTICAL
+WORKING OF AMERICAN COURTS
+
+
+
+
+            *       *       *       *       *
+
+
+
+
+                    CHAPTER VIII
+
+
+        THE ORGANIZATION OF THE COURTS OF THE STATES
+
+
+The State Constitutions differ fundamentally from that of the
+United States in respect to the nature of the judicial
+establishment. Each of the States possesses all judicial powers
+belonging to any sovereignty, except so far as the people of the
+United States may have provided otherwise in the Constitution of
+the United States. The State Constitutions do not define those
+powers. They simply commit them to certain courts and officers.
+Their general language is that the judicial power is vested in a
+Supreme Court and such other inferior courts as may be created by
+law. On the other hand, the Constitution of the United States
+defines the judicial powers of the United States exactly and
+within a somewhat narrow range, investing the courts of the
+United States with those powers and no others. Hence the States
+require a much more complicated and extensive judicial
+establishment than do the United States, for not only is the
+great mass of litigated cases throughout the country to be
+disposed of by State courts, but they must also pass upon by far
+the greatest variety of legal questions.
+
+In each State there is one appellate court of last
+resort[Footnote: See Chap. XIX.] and several courts for the trial
+of original causes. Local justices of the peace are commonly
+given jurisdiction over prosecutions for petty misdemeanors, and
+civil cases involving small amounts (seldom over $50 or $100),
+which do not affect title to land. Then come County Courts
+(often styled Courts of Common Pleas or District Courts), having
+cognizance of actions involving greater sums, and to which
+appeals from judgments of justices of the peace can be taken.
+These generally have both civil and criminal jurisdiction.
+
+A higher court, which may be styled a Superior Court, or Circuit
+Court, often exists, with unlimited jurisdiction as respects
+values in controversy, and also as to crimes, the County Courts
+in such case having a limited jurisdiction in these respects.
+
+Municipal courts are to be found in all considerable cities and
+in many of the lesser municipalities, such as towns and boroughs.
+City Courts often have jurisdiction over civil causes to which
+one residing in the city is a party, or growing out of a
+transaction occurring within the city, irrespective of the amount
+of the matter in demand. They frequently have a criminal side,
+before which convictions may be had for petty misdemeanors, and
+those charged with higher offenses bound over for trial in some
+court of general criminal jurisdiction.[Footnote: See Goodnow,
+"City Government in the United States," Chap. IX.]
+
+For the settlement of the estates of deceased persons and the
+appointment and superintendence of guardians and similar agents
+of the law, and proceedings in insolvency, there are in many
+States special courts, known as Courts of Probate, Surrogate's
+Courts, or Orphans' Courts, and Courts of Insolvency. In others
+these functions belong to the County Courts.
+
+The early practice in this country favored having several judges
+hold all trial courts, whether a jury was or was not to be called
+in. It was a method wasteful of time and money. In
+Massachusetts it survived for their highest _nisi prius_
+court until 1804. In many States it endured much longer for
+County Courts.
+
+County Courts in some States are courts only in name, except,
+perhaps, for some very limited purposes. Their real functions
+are administrative. Some or all of those who hold them are often
+styled commissioners, and their principal duties are to manage
+the general business affairs of the county.[Footnote: See
+Constitution of West Virginia, Amendment of 1880; Constitution of
+Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
+indicates that those in that State are not fountains of law, for
+it requires the district attorneys in each county, or their
+deputies, to advise the County Courts "on all legal questions
+that may arise." In Virginia, County Courts for a long period
+were held by all the justices of the peace in the county, or such
+of them as might attend. These magistrates nominated their own
+successors to the Governor, who almost never refused to
+commission the person so recommended. The court also nominated
+the officers of militia below the rank of General, and managed
+all the county affairs, besides having an extensive civil and
+criminal jurisdiction, including the power of acquittal in cases
+of felony. However clumsy and ill-ordered such a scheme appears,
+it gave general satisfaction for a long course of years, partly
+from a usage on the part of the older members of the bar who
+might be in attendance to volunteer advice as _"amci
+curiae"_ whenever any doubtful question of law chanced to
+arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
+Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
+County Courts have jurisdiction of ordinary lawsuits the judges,
+or a majority of them, are sometimes without any legal training,
+though this is now less common than it once was.[Footnote:
+McMaster, "History of the People of the United States," III,
+154.]
+
+The Constitutions of the States generally require the existence
+of a Supreme Court of last resort, and often specify also by name
+one or more of inferior jurisdiction. Such courts stand on a
+firmer footing than those created by the legislature under a
+general power to establish inferior courts. The power to
+establish implies a power to limit and to destroy. A tribunal
+created by a Constitution, with functions defined in the
+Constitution, is, as to these and as to its independence of
+existence and action, beyond legislative control.
+
+The Republicans in Congress were within their rights when, in
+1802, they repealed the act passed by the Federalists the year
+before to create a system of Circuit Courts. Those of
+Massachusetts were within theirs when, in 1811, they abolished
+the ancient Court of Common Pleas of that State and created a new
+"Circuit Court," with fifteen judges, to take its place. Both
+would have been glad to go farther and reconstitute in some way
+the court of last resort, which was filled with old Federalists.
+Why they did not has been frankly stated by one of them in his
+account of Governor Gerry's administration:
+
+  With the Supreme Judicial Court the party did not interfere.
+  In respect for the authority of the Constitution this
+  forbearance was observed; it having been conceded after due
+  deliberation by men having the confidence of the dominant party
+  that neither the court nor the judges were within the power of
+  the legislature. The result was very reluctantly acceded to,
+  for the imposing influence of that court had been felt in the
+  political agitation of the times, and some of the judges, like
+  some ministers of the gospel, had been unwise enough to give to
+  the extension of their political feelings the aid directly
+  derived from their official authority.[Footnote: Austin, "Life
+  of Elbridge Gerry," II, 339. See Chap. XXII.]
+
+The weakest point in this system of judicial organization is the
+vesting of jurisdiction of small civil causes in justices of the
+peace. Of these there are generally several in each town, having
+jurisdiction over the whole county. Some may be lawyers. None
+need be, and few are. Any one of them can try cases. Which of
+them shall try any particular case is left to be determined by
+the lawyer who brings it.
+
+Justices of the peace can be trusted to dispose of petty criminal
+prosecutions and to conduct preliminary examinations into charges
+of any offence for the purpose of determining whether there is
+ground for holding the accused for trial before a jury, although
+even here mischief often results from their ignorance of law, and
+the sufferers have little means of redress.[Footnote: See McVeigh
+_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
+Reporter, 701.] Such prosecutions are brought by a public
+officer, who will not be apt to select an incompetent magistrate,
+and has no strong motive for choosing one specially likely to
+give judgment against the defendant. But in civil cases, for the
+lawyer who institutes them to pick out his judge at will from a
+number who are equally competent to assume jurisdiction, and at
+the same time (as is generally the law) are left wholly without
+salaries, receiving nothing except fees for cases actually
+brought before them, is to place the defendant in a much less
+favorable position than the plaintiff. If the justice decides in
+favor of the latter, he is obviously more likely to get the
+subsequent patronage of his lawyer. In most justice suits
+judgment does go for the plaintiff, and not infrequently it is to
+be feared that he gets it from that consideration. Some justices
+rarely give any other judgment. Many lawyers bring all their
+cases before one justice, and seldom fail of success.
+
+In 1903, a justice of the peace in one of our largest cities
+resigned his office and made his reasons public. They were that
+no one could afford to hold it who was not willing to stoop to
+unworthy practices. Lawyers having a large collection practice,
+who were the best customers at such a shop of justice, threw
+their business where they could get it done most cheaply. They
+expected the justice of the peace whom they favored to favor
+them. One way was by making them a discount on his legal fees.
+There was a competition among the justices for business on these
+terms, and the lowest bidder generally got it. Blank writs of
+summons, even, signed by the justice would be sold at so much a
+dozen, to be filled in to suit the attorneys.
+
+A system in which such things are possible is inherently vicious,
+and only endurable because the defeated party can always appeal
+and have a new trial before a higher court. That relief,
+however, is expensive. Judgments ought to be just in the first
+instance, and it is the business of governments to ensure this,
+so far as they reasonably can.
+
+The natural remedy would seem to be to have fewer justices of the
+peace who are authorized to try cases and to pay them a fixed
+salary. Better men could thus be had and independence of action
+promoted. That this is not done comes mainly from the feeling
+that small controversies ought to be settled by a neighborhood
+court; that any man of good common sense can generally deal with
+them as well as a lawyer; and that to salary every justice would
+be an unreasonable burden to impose on the taxpayer. The system
+is also an ancient one; it works well with honest men; and the
+people have an inherited attachment for it.
+
+In a few States a sharp line of division is drawn between courts
+of law and courts of equity. This distinction was inherited from
+England, though it has been for most purposes abolished there by
+the Judicature Acts of 1873 and 1875. It originated in the royal
+prerogative of interposing to do justice between private
+individuals in cases of an extraordinary character when the
+regular courts had no power to grant the necessary relief. The
+King was accustomed to refer requests for such action on his part
+to his principal secretary and councillor. The next step was to
+address the request directly to this officer, who was styled the
+Chancellor. If a man were acting toward another in a way that
+was against good conscience, though without absolutely
+transgressing any settled rule of law, the Chancellor could
+compel him to desist. If the legal title to land had been
+conveyed to one for the use of another, and the holder of this
+title refused to recognize the beneficial interest to serve which
+he had been invested with it, the Chancellor could bring him to
+account, although the common law would give no remedy. Soon,
+whenever a man seemed to have justice on his side, but not law,
+it was deemed a case for the Chancellor, or a case in chancery.
+Relief was given because it was equitable to give it, and so it
+was called relief in equity. The jurisdiction expanded.
+Wherever there was a right, but no adequate remedy at law, the
+Court of Chancery, or, as it was oftener called, of equity, was
+recognized as competent to step in and do justice.
+
+The Chancellor had often been an ecclesiastic. He was apt to be
+more familiar with canon law and civil law than with the common
+law. The justice which he administered came from the Crown, not
+from the people. The people spoke through a jury, called in law
+language "the country." The Chancellor spoke for himself. If he
+called in the aid of a jury, it was to advise him, not, as in a
+common law court, to make a final decision as to the question
+submitted to it.
+
+The result came to be that for several hundred years, embracing
+the whole colonial period, England had two distinct sets of
+courts, acting under different rules, and each trying a different
+kind of cases. Those involving questions of trust, account,
+fraud, mistake or accident, were the principal subjects of
+equitable jurisdiction. Equity also could prevent wrongs, while
+law could only punish them.[Footnote: See Chap. XX.] It was not,
+however, always easy to mark the line between cases, and say
+which belonged in the common law tribunals and which in those of
+chancery. Many an action failed, not because there was no just
+cause of action, but because it had been brought in the wrong
+court.
+
+In the American colonies, and for many years in the States which
+succeeded them, these distinctions of procedure were generally
+observed.[Footnote: In Pennsylvania the courts largely
+disregarded them and asserted that equity was a part of its
+common law. See Myers _v._ South Bethlehem, 149
+Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
+some there were, in some there still are, separate courts of
+equity held by a Chancellor, aided, if necessary, by
+Vice-Chancellors. In others two dockets or lists of cases were
+(and in a number of them still are) kept in the same court, and
+the same judge disposed of those on one docket as a court of
+equity and of those on the other as a court of law.
+
+Such a system is intrinsically absurd. It has been maintained by
+whatever States yet tolerate it for two reasons: because the
+lawyers and the community are used to it, and because it
+furnishes a convenient test of any claim of right to a jury
+trial. All our State Constitutions have some provision for
+maintaining such rights, but they do not define the cases in
+which the right exists. That is left to the courts, and their
+rule is that it cannot be claimed in cases that call for
+equitable as distinguished from legal relief.
+
+In most of our States and Territories legal and equitable causes
+of action or defenses may now be joined, and legal and equitable
+relief given in one suit. This reform in procedure was largely
+due to the labors of David Dudley Field, and became general
+throughout the country during the last half of the nineteenth
+century. The result has been that separate courts of equity are
+now to be found only in a few States.
+
+Congress has made use of the State courts in certain cases as
+part of the machinery of the federal government. While by the
+Constitution "the judicial power of the United States" can only
+be vested in the courts of the United States, the phrase as thus
+used refers only to the power of judging causes in courts of
+record. State courts and magistrates can therefore be given
+jurisdiction by Congress over any acts in aid of the functions of
+the United States, the supervision of which may be regarded as
+ministerial, or as incidental to judicial power rather than a
+part of it. They have received it in this way with respect to
+such matters as seizure of deserters from a merchantman, the
+arrest and commitment or bail of offenders against the criminal
+laws of the United States, the taking of affidavits and
+depositions for use in proceedings before federal authorities,
+and the naturalization of aliens.[Footnote: Robertson _v._
+Baldwin, 165 U. S. Reports, 275.]
+
+State courts also have jurisdiction over any civil action to
+enforce a right given by the laws of the United States, unless
+Congress has otherwise provided. They constitute together with
+the federal courts one general judicial system for the whole
+country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
+130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
+Northeastern Reporter, 435.]
+
+Almost all American courts are known as "courts of record." A
+court of record, in modern parlance, is one which tries causes
+between parties and is required to keep a full official and
+permanent record of its disposition of them. For this purpose
+most courts are furnished with a recording officer, called the
+clerk. His record is the only evidence of their judgments and
+cannot be contradicted or impeached in any collateral proceeding.
+If there is any error in it, it can only be shown on a direct
+proceeding brought to correct it.
+
+Justices of the peace, when authorized to try causes, act only in
+small matters and in a summary way. In most States they are not,
+when exercising this function, deemed to constitute a court of
+record. Nor is any court, even though furnished with a clerk, if
+its proceedings are not recorded in full, but simply made the
+subject of brief notes or minutes,[Footnote: Hutkoff _v._
+Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
+unless there is a statute or local practice giving such notes or
+minutes the effect of a record.
+
+A court of record has inherent power to preserve order in
+proceedings before it[Footnote: See Chap. XX.] and, unless other
+provision be made by law, to appoint a crier or other officer to
+attend upon its sessions. By statute it is commonly made the
+duty of the sheriff of the county to attend all courts of record,
+either personally or by deputy. He also executes such processes
+as under the practice of the court may be directed to him.
+Witnesses and jurors are thus summoned by him to appear before
+the court; arrests and attachments of property are made; and
+executions are levied to enforce final judgments.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER IX
+
+
+       THE ORGANIZATION OF THE COURTS OF THE UNITED STATES
+
+
+The Constitution of the United States (Art. III) provides that
+there must always be one Supreme Court of the United States. The
+establishment of such inferior courts as may be deemed proper
+from time to time is left to Congress.
+
+The judicial power of the United States is limited to cases of
+certain kinds or between certain kinds of parties. Either (1)
+the subject-matter of the action must be of a kind that concerns
+the whole nation, or (2) some party to it must be or claim under
+a political sovereign, or (3) it must be between a citizen of a
+State of the Union and one of another of the States or of a
+foreign country.
+
+In a few of the second class the Supreme Court is given original
+jurisdiction: in all others of both classes it has appellate
+jurisdiction, with such exceptions as Congress may think fit to
+make, save only that no fact tried by a jury can be thus
+re-examined, except so far as the rules of the common law would
+have permitted. Its original jurisdiction is confined to cases
+affecting ambassadors, ministers, and consuls and those to which
+a State shall be a party. It is not necessarily exclusive as
+respects any of them,[Footnote: Ames _v._ Kansas, 111
+U. S. Reports, 449, 469.] and by the eleventh amendment to the
+Constitution is so limited as not to include suits against a
+State by citizens of any other State or foreign government. In
+point of fact, few original suits have ever been brought before
+the court, and almost all of these have been instituted by or
+against States.
+
+The Supreme Court is held at Washington. There is a Chief
+Justice with eight associate justices, and each is also assigned
+for circuit duty as a judge of the Circuit Court of the United
+States in one of nine judicial circuits into which the country is
+divided. Originally there were but six judges, and each was
+required to hold two circuits a year in each district in his
+circuit. They were assigned to the circuits in pairs, and both
+sat together with the District Judge. The consequence was that
+three-fourths of their time was spent in traveling from one court
+town to another. They complained of this to Congress through the
+President in 1792, and the next year it was provided that Circuit
+Courts might be held by one justice, alone or with the District
+Judge. In 1801, an ultimate reduction of the number to five was
+provided for. They were to devote their time entirely to the
+Supreme Court, while the Circuit Courts were to be held by a new
+set of eighteen Circuit Judges. In 1802, they had only ten cases
+pending before them, and the average for some years had not
+exceeded that number. For this and other reasons mentioned
+elsewhere the Act of 1801 was repealed by the next Congress. In
+1807, another Justice of the Supreme Court was added and two more
+in 1837.
+
+Each circuit has a judicial establishment of its own, and is
+composed of a certain number of judicial districts. Of these
+there are in the whole United States about eighty. The smaller
+States constitute one district. In the larger ones there are
+several.
+
+Each district generally has its own judge, called the District
+Judge, and always its own court, called the District Court of
+that district. Each circuit has several Circuit Judges, whose
+main work is to sit in a court held in each circuit, styled the
+Circuit Court of Appeals. They can also hold a District Court.
+
+Until 1911, the District Courts had a narrow jurisdiction, and
+there were Circuit Courts having a wider one. In 1911, the
+Circuit Court was abolished, and the District Court now is the
+general trial court of the United States in the first instance.
+Anyone can sue there to enforce a right arising under the laws of
+the United States when the amount in dispute is more than $3,000.
+Rights arising under certain of these laws can only be enforced
+there, and as to them the pecuniary limitation does not apply.
+Such are patent-rights and copyrights. Any suit involving an
+amount exceeding $3,000 may be brought there when the controversy
+is between citizens of different States or citizens of a State
+and citizens of a foreign country. So may a suit by citizens of
+the same State claiming land under grants from different States,
+without respect to the value of the subject of controversy.
+Suits of any of these kinds which are brought in a State court
+may, at the option of the defendant, be transferred for trial
+into the District Court. On filing proper papers the case is
+transferred automatically. The District Court has jurisdiction
+also over bankruptcy and admiralty matters, a few other kinds of
+civil cases of minor importance, and of all offenses against the
+United States.[Footnote: The Judicial Code of the United States,
+Chapter II.]
+
+The pecuniary limit of jurisdiction was for a hundred years fixed
+at $500. The increase to $3,000 was due partly to the fact that
+the Supreme Court was overburdened by appeals from the trial
+courts, many of which involved small amounts, and more to a
+desire to keep judicial power over ordinary controversies between
+man and man, as far as practicable, in the hands of the State
+courts.
+
+Early in the nineteenth century a practice began of bringing
+suits in the Circuit Court of the United States, which purported
+to be between citizens of different States, but in which the
+plaintiff had either changed his residence for the purpose of
+giving the court jurisdiction or was really suing for the benefit
+of a citizen of the same State with the defendant. This was due
+to the high opinion entertained of the federal
+judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
+bring the cause before a federal, rather than a State tribunal.
+Such a mode of proceeding, while within the letter of the
+governing statute, was contrary to its spirit, and little better
+than a fraud. It was also an evident perversion of the intent of
+the Constitution, and became at last so far-spreading that both
+Congress and the courts used their best endeavors to put an end
+to it, and with success.[Footnote: U. S. Statutes at Large,
+XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]
+
+Another cause is also effective in lessening the docket of the
+District Courts. The ordinary lawyer prefers to sue in a State
+court, when he has the choice, on account of his greater
+familiarity with the practice there. Many American lawyers have
+never brought an action in a federal court. Most cases which
+could be so brought can also be and are brought in a State court.
+
+Congress has thus far maintained for the federal courts the
+ancient distinction between procedure in law and in equity
+explained in the preceding chapter. There are those who claim
+that the reference in Art. III, Sec. 2, of the Constitution of
+the United States to "cases in law and equity" requires its
+preservation; but this seems a strained construction of the
+phrase. Separate dockets are kept in the District Court of legal
+and of equitable actions. They are brought in different form,
+tried in a different way, and disposed of by different rules,
+though by the same judges and at the same term of court. As to
+equity cases, the rules of the old English chancery practice are
+substantially followed. In cases of a common law nature, the
+practice existing at the time in regard to those of a similar
+kind in the courts of the State within which the federal court
+may be held is to be followed, as nearly as may be.[Footnote:
+U. S. Revised Statutes, § 914.] In fact, there is a departure
+from it in many points in most States,[Footnote: See Nudd
+_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
+those which have reformed their procedure in civil actions by
+fusing remedies at law with those in equity. If an action framed
+in this method be removed from a State court to a federal court,
+the plaintiff must thereupon split it in two, and present his
+case at law on one set of papers and his case in equity on
+another.
+
+The Supreme Court, under power derived from acts of Congress, has
+framed rules of procedure for the inferior trial courts of the
+United States in equity and admiralty cases, and the latter
+courts have supplemented them by further rules of their own
+making. The Equity Rules promulgated by the Supreme Court were
+revised in 1912, and took effect as changed in 1913.[Footnote:
+They are printed in Volume 226 of the United States Reports.]
+They greatly simplify the former procedure. Suits are now tried
+generally on oral testimony taken stenographically in open court.
+Formerly the evidence was usually given before officials known as
+examiners or masters in chancery. The former reported the
+testimony at length to the trial court. The latter reported
+their conclusions from it.
+
+The new rules have abolished demurrers in equity causes in favor
+of what is substantially the present English practice.[Footnote:
+See _infra,_ page 203.]
+
+In common law causes in the District Court, the State remedies by
+way of attaching the property of a defendant to respond to a
+judgment, or seizing it on execution, or imposing a lien upon it
+by a judgment, are adopted and enforced.[Footnote:
+U. S. Rev. Stat., §§ 915, 916, 967, 988.]
+
+The field of national legislation being narrow, the offenses
+against the nation are correspondingly few. Any acts done on
+lands ceded by a State, which would have been crimes under its
+law in 1873, may be punished as such in the federal courts in the
+same manner which that law provided.[Footnote: _Ibid_., §
+5391.]
+
+In the Circuit Courts, before 1866 it was customary to defer the
+trial of important causes until the Justice of the Supreme Court
+assigned to the circuit could be present. If he differed on any
+material point from the District Judge, this point could be
+certified up to the full Supreme Court for argument and decision
+there. During this period the published reports of the decisions
+of the Circuit Court contain many opinions of the highest value.
+Several of the best which Story and Bushrod Washington wrote are
+to be found among them.
+
+The Act of 1866, by which a resident Circuit Judge was appointed
+for each circuit, provided notwithstanding that each member of
+the Supreme Court should attend at least one term of the Circuit
+Court in each district as often as once in two years. The press
+of business at Washington, however, soon became such as to make
+it practically impossible for the Supreme Court Justices to do
+any substantial circuit work. When some case of national
+importance was to be heard in any district, the Justice in whose
+circuit it was included would make a special effort to go down.
+In this way Chief Justice Chase heard and sustained the plea with
+which Jefferson Davis met the indictment against him for treason.
+But ordinarily the Circuit Judge took the place of the Supreme
+Court Justice, and the latter, if he appeared at all during the
+term, remained hardly for a day.
+
+The Supreme Court, therefore, during over a hundred years
+remained the only court of the United States existing mainly for
+appellate purposes. The work which it had before it at the last
+term during which it occupied this position (October Term, 1890)
+will show how much it was then overburdened.
+
+Its docket contained 1,177 appeals brought forward by continuance
+because they could not be disposed of at the preceding term, 623
+new cases of the same kind, and 16 cases of original
+jurisdiction, making a total of 1,816 actions. Of these,
+although the term lasted nearly eight months, it was only able to
+dispose of 617, thus leaving 1,199 for continuance to the
+following term.[Footnote: 140 U. S. Reports, Appendix.] It will
+be observed that the court was no longer able to cope with its
+new business, not to mention that left over from previous years.
+
+Appeals now lie in most civil cases from the final judgments of
+the District and Circuit Courts, and from convictions for
+infamous crimes, not capital, to the Circuit Court of Appeals.
+They also extend to judgments granting a temporary injunction.
+There is a court of this name for each of the nine circuits,
+which was established in 1891 for the further relief of the
+Supreme Court and the speedier termination of litigation. This
+measure originated in the American Bar Association, by which it
+was pressed upon the attention of Congress. It had become an
+absolute necessity to devise some plan of expediting the
+disposition of appeals from the trial courts of the United
+States. There was more than enough of such business by the close
+of the Civil War (the events attending which brought up for
+decision many novel questions of the highest importance) to
+require the entire attention of the Supreme Court. It soon took
+three years after an appeal was docketed before it could be
+reached for argument. This was intolerable, and it was obviously
+necessary either to restrict the liberty of appeal; to constitute
+divisions of the court, one to hear appeals of a certain class
+and another those of another class; or to set up an intermediate
+court. The last method was preferred. The practice in the
+Circuit Court of Appeals is governed by rules of its own making,
+but in general conforms to that of the Supreme Court of the
+United States in appealed cases.
+
+The commission appointed some years since to prepare a revision
+of the laws of the United States have reported in favor of
+abolishing all jurisdiction of the Circuit Court over original
+cases and turning it into an appellate court.[Footnote: Senate
+Doc. 68, 57th Congress, 1st Session.] Should this recommendation
+be adopted, the District Court would acquire the jurisdiction now
+vested in the Circuit Court, the District Judges would sit in the
+District Court only, and the Circuit Court Judges in the Circuit
+Court only, while the Circuit Court of Appeals would come to an
+end.
+
+The American Bar Association voted in 1903 that it was desirable
+to establish a new appellate court to sit at Washington and take
+cognizance of patent and copyright cases. Such a measure would
+tend to relieve the Supreme Court of the United States of any
+undue pressure of business, and promote both uniformity and
+promptitude of decision in a class of actions in which
+promptitude and uniformity are of special importance. As things
+stand now, a patent may be pronounced invalid in one circuit and
+upheld in another by courts of equal authority; and while in such
+event the Supreme Court would probably, on a special application,
+call both these judgments up before it for review, this remedy
+cannot be claimed as a matter of absolute right, and is at best a
+slow one.
+
+The Circuit Court of Appeals is held by three judges, two
+constituting a quorum. Those generally sitting are the Circuit
+Judges belonging to the circuit. The Justice of the Supreme
+Court assigned to the circuit may also sit, and any of the
+District Judges in the circuit can be called in.
+
+Except in a very limited class of cases, the decision of this
+court is final, unless the Supreme Court, on special application,
+should think the questions involved to be of sufficient
+importance to require a review, when it can order the record sent
+up to Washington for that purpose. The Circuit Court of Appeals
+can also of its own motion certify up any questions in a cause to
+the Supreme Court for its instructions before making a final
+disposition of it.
+
+The Supreme Court has direct appellate jurisdiction over the
+District and Circuit Courts in cases turning on the limits of
+their jurisdiction, in prize causes, in equity suits by the
+United States under the statutes regulating inter-State commerce,
+and in all cases involving the construction or application of the
+Constitution of the United States, or of a treaty. Appeals also
+lie to it from judgments of conviction in the Circuit Court for
+capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32
+_ib_. 823.]
+
+The consequence of the Circuit Courts, which had been impaired by
+the practical withdrawal of the justices of the Supreme Court,
+was further lessened by the creation of the Circuit Court of
+Appeals. Before that their judgments in most cases were final.
+In criminal causes there was no appeal, and in ordinary civil
+causes none after 1875, unless the matter in controversy exceeded
+$5,000 in value. This left the life, liberty and property of the
+citizen top much in the hands of one man; and the people, led by
+the bar, insisted on stripping him of powers so liable to
+abuse.[Footnote: See an attack on a similar state of things
+existing in Louisiana at one time in the District Court, by
+Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"
+302, 303.] No sovereign can be sued in his own courts without
+his consent. The United States consent to be sued on most claims
+against them of a contractual nature, which they may dispute.
+For this purpose a Court of Claims has been established at
+Washington, consisting of a Chief Justice and four associates.
+Originally it was little more than an administrative bureau; but
+by successive amendments of the law it has come to have fully a
+judicial character,[Footnote: United States _v._ Klein, 13
+Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]
+except in one particular. It is a general principle that a court
+will make no decree that it cannot enforce. The Court of Claims
+cannot issue an execution to enforce its judgments. Money can be
+drawn from the treasury of the United States only to meet
+appropriations made by Congress. An appropriation is made by
+each Congress of a gross sum to satisfy any judgments that have
+been or may be rendered by the Court of Claims; but should this
+provision be omitted in any appropriation bill the judgments of
+the Court of Claims could not be collected.
+
+Concurrent jurisdiction in these respects is given to the
+District Court of claims not exceeding $1,000 in amount, and to
+the Circuit Court of those exceeding $1,000 and not exceeding
+$10,000.
+
+Aliens can sue in the Court of Claims when their own country
+accords a similar privilege in its courts to citizens of the
+United States.[Footnote: U. S. Revised Statutes, § 1068.]
+
+This court has also a peculiar kind of advisory jurisdiction.
+Congress, or any committee of either house, can refer to it any
+questions of fact which may have come before them. The judges
+must then ascertain the facts and report them back. The head of
+any of the great executive departments may, in like manner, in
+dealing with any claim against the government, if the claimant
+consents, refer any uncontroverted questions, either of fact or
+law, to the court, which must then report back to him its
+findings and opinion. This does not take the form of a judgment,
+for there is no case and no parties are before it. It is a mere
+expression of opinion, and stands on much the footing of the
+report of a committee of inquiry to a superior
+authority.[Footnote: 22 U. S. Statutes at Large, 485; 24
+_id._, 507.]
+
+A temporary court is also in existence called the Court of
+Private Land Claims. This is composed of a Chief Justice and
+four associate justices, and has jurisdiction to hear and
+determine claims of title to land as against the United States,
+founded on Spanish or Mexican grants in New Mexico, Arizona,
+Utah, Nevada, Colorado or Wyoming. An appeal from the final
+judgment is given to the Supreme Court of the United
+States.[Footnote: 26 U. S. Statutes at Large, 854.]
+
+The District of Columbia has a special judicial establishment.
+There is a court of general jurisdiction known as the Supreme
+Court of the District of, Columbia, and appeals from its
+judgments lie to the Court of Appeals of the District of
+Columbia. This is composed of a Chief Justice and two associate
+justices, and its judgments are reviewable by the Supreme Court
+of the United States, if $5,000 is involved, or the validity of
+an authority exercised under the United States or a treaty or Act
+of Congress is in question. An appeal also lies to it from
+decisions of the Commissioner of Patents as to claims of a right
+to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]
+
+When new territory comes by conquest or cession permanently under
+the jurisdiction of the United States, it belongs to the
+President, in the exercise of his executive power, to see to its
+proper government until Congress makes other provision. He can
+institute courts there for that purpose, or if he finds courts
+created by the former sovereign in existence, can expressly or
+impliedly permit them to continue in the exercise of judicial
+functions.
+
+Each fully organized Territory has a set of local courts and one
+Supreme Court to which appeals can be taken and the judgments of
+which, in cases of large pecuniary magnitude or great legal
+importance, can be reviewed by the Supreme Court of the United
+States. These territorial courts do not exercise what is known
+in the strict sense and designated in the Constitution as "the
+judicial power of the United States." They are created to meet
+temporary conditions, and with judges whose commissions run only
+for a few years. Such courts are instruments through which
+Congress exercises its power of regulating the territory of the
+United States. They act judicially. They have judicial power.
+But the source of this power is not the clause in the
+Constitution under which the judicial power of the United States
+is defined.[Footnote: American Insurance Co. _v._ Canter, 1
+Peters' Reports, 511.] It is therefore not necessary to confine
+such courts strictly to the consideration of judicial business.
+In the organization of our earliest Territories the judges were
+given legislative functions, and while this was originally due to
+the terms of the Ordinance of 1787, it was confirmed by various
+Acts of Congress after the adoption of the Constitution of the
+United States.
+
+The Philippines are governed under an Act of Congress by a
+commission acting under the supervision of the Secretary of War.
+
+The organization of courts established by Spain has been in
+substance preserved. The Spanish law which was in force there
+was expressed in codes mainly founded on those framed for France
+under Napoleon I. In 1901, the Spanish code of civil procedure
+was supplanted by one prepared by a member of the Philippine
+Commission, and which is now familiarly known by his name as the
+Ide Code. In substance, it establishes the mode of proceeding in
+civil cases which is known in the United States as code pleading.
+Trial by jury has not been introduced into the Philippines either
+in civil or criminal causes, and need not be.[Footnote: Dorr
+_v._ United States, 195 U. S. Reports, 138.]
+
+In criminal causes, the Spanish system was originally retained,
+allowing either party, the United States or the defendant, to
+appeal from the judgment of the court of first instance to the
+Supreme Court of the islands and have there a new hearing both as
+to fact and law. This, however, so far as concerns an appeal by
+the government, was held to be contrary to the Act of Congress
+under which it was constituted.[Footnote: Kepner _v._ United
+States, 195 U. S. Reports, 100.]
+
+The courts of the United States are generally provided with an
+officer styled a marshal. He executes their process, attends
+their sessions, and exercises in general the functions which
+belong to a sheriff as respects State courts.
+
+Each District Court appoints a convenient number of District
+Court Commissioners, who issue warrants of arrest on criminal
+proceedings, take bail, inquire whether there is probable cause
+to hold the accused to answer to the charge in court, and
+discharge in such respects substantially the functions generally
+belonging to justices of the peace in the States.
+
+            *       *       *       *       *
+
+
+
+                      CHAPTER X
+
+
+       RELATIONS OF THE STATE JUDICIARY TO THE UNITED
+          STATES AND OF THE UNITED STATES JUDICIARY
+                    TO THE STATES
+
+
+Every judicial officer of a State is required by the Constitution
+of the United States to bind himself by oath or affirmation to
+support it, and this obligation compels him to respect every Act
+of Congress made in pursuance of the Constitution, and every
+treaty made under the authority of the United States, as, in case
+of conflict, superior to anything in his State Constitution or
+laws.
+
+The courts of the national government are complementary to those
+of the States. Both belong to one judicial system. Rights
+arising under the laws of the United States may be enforced by a
+State court as well as by a federal court, and rights arising
+under a State law by a federal as well as by the State court,
+unless in cases where there is some special restriction upon its
+jurisdiction. Such a restriction may be imposed by either
+government, as respects any right which it creates.
+
+The judicial power of the United States extends only to certain
+classes of cases. As to some of these it is necessarily
+exclusive: as to any of the rest Congress can make it
+such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411,
+429.] On the other hand Congress may assume to invest a State
+court with power to dispose of a certain matter of federal right,
+and the State may decline to permit the exercise of such a power.
+The United States cannot in that manner compel the courts of
+another government to do their bidding. It would tend to throw
+on the States a greater burden than they might deem necessary or
+proper. They provide courts to meet the wants of those looking
+to their own sovereignties for justice. Thus, although nothing
+could seem more anomalous than for one sovereignty to confer
+citizenship in another, the laws of the United States allow
+naturalization to be obtained by proceedings in State courts.
+Most aliens who become citizens of the United States do so in
+that way, because the State courts are more easy of access. But
+a State can at any time restrict or forbid the use of its courts
+for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's
+(Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law
+Reports, 97; 32 Atlantic Reporter, 743.]
+
+The federal courts can lend their aid to carry into effect a
+right arising wholly from the statute of a State, even if it
+affect maritime interests and must be enforced, if at all,
+through an admiralty court. Admiralty suits, it is true, can
+only be brought in the courts of the United States, but that is
+the very reason why, if such a suit gives the only remedy,
+jurisdiction of it should be entertained in the only sovereignty
+competent to give relief.[Footnote: The Lottawanna, 21 Wallace's
+Reports, 558, 580.]
+
+There are many civil cases which can be brought, at the option of
+the plaintiff, either in a court of the United States or in a
+State court. Some of these, if brought in a State court, the
+defendant can, at his option, allow to remain there or remove for
+trial into the Circuit Court of the United States. Criminal
+prosecutions by a State may also be removed, under certain
+conditions, to the Circuit Court of the United States, when the
+defense is one arising under the laws of the United States.
+
+In any cause tried in a State court, if the decision turns on a
+claim of right, set up under the Constitution, laws or treaties
+of the United States, and is against its validity, the losing
+party, if unable to secure its reversal by appeal to a higher
+court of the State, can ask such relief from the Supreme Court of
+the United States.
+
+It will be observed that it is the losing party only who has this
+remedy. If the State court decides, however erroneously, that
+the claim of a federal right is well grounded, this is conclusive
+as respects the controversy in that suit. If all State courts in
+which the validity of an unconstitutional Act of Congress was
+contested should uphold it, the courts of the United States would
+be powerless to right the wrong, unless they were called upon to
+enforce the statute in some suit brought before them for original
+trial.
+
+The obvious object of the limitation is to preserve so far as is
+possible the sovereignty of the States. The courts of the nation
+are to set aside acts or judgments flowing from that only in case
+of necessity and to preserve rights flowing from the sovereignty
+of the nation. For the same reasons, resort can be had to the
+Supreme Court of the United States only after every right of
+review given by the laws of the State has been exhausted.
+Usually this requires one who loses his cause in a trial court to
+take it up to the State court of last resort. Where, however,
+this is not permitted by the State law, he may ask for a writ of
+error from the Supreme Court of the United States to whatever
+court was the highest to which he was able to remove it; and if,
+by the State law, he was unable to appeal at all, then the writ
+will go to the trial court. One of the greatest of Chief Justice
+Marshall's great opinions was rendered on a writ of error to the
+quarterly session court for the borough of Norfolk in Virginia,
+held by the mayor, recorder, and aldermen of the
+borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's
+Reports, 264.]
+
+It was the opinion of Hamilton that an appeal might be given from
+the State courts to the inferior federal courts, in case of a
+decision turning on a right claimed under the Constitution or
+laws of the United States.[Footnote: _Federalist_,
+No. LXXXII.] This is probably true, but Congress has wisely
+forborne to make any such provision. It imposes a strain
+sufficiently great on the sovereignty of a State to subject the
+judgments of its court of last resort to reversal by the Supreme
+Court of the nation.
+
+The power to declare a statute void because inconsistent with
+constitutional provisions belongs to every court in every case in
+which such a statute is relied on either to support the action or
+in defense.[Footnote: See Chap. VII.] It therefore belongs, as
+respects a State statute which may be attacked as inconsistent
+with the Constitution of the United States, to the trial courts
+of the United States as well as to the Supreme Court. This makes
+it possible for a District or Circuit Court of the United States
+to adjudge the statute of a State in which it sits to be
+unconstitutional and void, although it may have been declared
+valid by a judgment of the highest court of the State, from which
+no appeal to the Supreme Court of the United States was ever
+taken.
+
+However derogatory to the sovereignty of the States the
+possession of such authority may seem and be, it is evidently a
+necessary feature of our dual system of government. In some way
+it was indispensable to provide for maintaining the full powers
+of the United States against encroachments by State legislation,
+and also for enforcing all the special limitations on the powers
+of State legislation which the Constitution of the United States
+lays down. This could have been done effectually in but two
+ways: either by giving to Congress or to the President a veto
+upon State laws; or by leaving the right of control to lie
+dormant until a necessity for exercising it should arise, and
+then putting it in the hands of the judiciary. The latter method
+was clearly open to the least objection.[Footnote: See Hamilton's
+discussion on this point in the _Federalist_, No. LXXX.]
+
+Jefferson maintained that there was a third, and one which the
+Constitution expressly provided. This was the calling of a
+convention of all the States for proposing amendments to it. If,
+he said, a State on the one hand by her highest authorities
+asserts a certain line of action to be within her powers, and the
+United States by their highest authorities deny it, "the ultimate
+arbiter is the people of the Union, assembled by their deputies
+in convention, at the call of Congress, or of two-thirds of the
+States. Let them decide to which they mean to give an authority
+claimed by two of their organs."[Footnote: Letter to Mr. Justice
+Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There
+seems a plain fallacy in this proposition. The question to be
+decided, in case of a conflict of judicial authority, is not
+which doctrine ought to be adopted, but which was adopted when
+the Constitution was framed. To amend that instrument and make
+it something else could not justly be allowed to alter the effect
+of acts previously done.
+
+But one serious proposition has ever been made to call a national
+constitutional convention for any such purpose. That was by
+Kentucky in January, 1861, when civil war was threatened; and it
+was not pressed. The very delays which would be inevitable in
+assembling such a body were then a reason for the call, for they
+would give time for the "sober second thought." The plan,
+however, seemed and probably was impracticable. The movement
+toward secession had gone too far.[Footnote: Debates and
+Proceedings of the National Peace Convention, 45, 61, 67.]
+
+There were many, at the time when the Constitution of the United
+States was before the people for ratification, who feared that
+the jurisdiction of their courts would be extended by judicial
+construction beyond the limits of the grant. New York in her
+vote of ratification incorporated a declaration that she
+understood it to be impossible that the jurisdiction of any court
+of the United States could ever be enlarged "by any fiction." In
+the Maryland Convention, this sentiment took shape in a proposed
+amendment to the Constitution adopted by a committee appointed
+for the purpose, but never reported, "that the Federal courts
+shall not be entitled to jurisdiction by fictions or
+collusion."[Footnote: Elliot's Debates, 550; Proceedings
+Massachusetts Historical Society, XVII, 504-7.] Had such an
+amendment been proposed and adopted, it would have cut off a
+large share of the most important cases now brought before the
+Circuit Courts. In 1787, there were only twenty-seven business
+corporations in the United States.[Footnote: Report of the
+American Historical Association for 1902, 267; _American
+Historical Review_, VIII, 449.] It was not long before they
+became countless and the large affairs of the country were in
+their hands. Could they sue and be sued in the courts of the
+United States?  The decision on this point was that, by force of
+a pure legal fiction, invented for the purpose, they might be.
+They were, indeed, not citizens of any State;[Footnote: Paul
+_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
+composed them probably were. Therefore, it must be assumed that
+they certainly were, and also that they were all citizens of the
+same State and that the State from which incorporation was
+obtained.[Footnote: Louisville, Cincinnati and Charleston
+R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
+and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,
+286.]
+
+Sir Henry Maine maintained that legal fictions were the rude
+device of early stages in government, and to add to them
+disturbed the symmetry of a legal system and was unworthy the
+approval of modern courts.[Footnote: Ancient Law, 26.] But while
+they are among the things that it is hard to justify on
+principle, it is harder to dispense with them in actual practice,
+as the instance given conspicuously illustrates.
+
+Although the United States are the only depositary of the power
+of ordering foreign relations, foreign governments are often
+aggrieved by acts of the courts of a State which the United
+States have but imperfect means of preventing or rectifying.
+
+In 1841, we were brought to the verge of war with Great Britain
+by an incident of this nature.
+
+An insurrection broke out in Canada in 1837, and a New York
+steamboat was chartered to bring supplies across the Niagara
+River to those engaged in it. One night when she was moored on
+the New York side of the river a party of loyal Canadians seized
+and burned her. During the accompanying affray an American was
+killed. A Canadian named McLeod, who was charged with having
+fired the fatal shot, was afterwards arrested in New York and
+indicted for murder. The British government then informed ours
+that it had ordered the burning of the steamer, and thereupon
+demanded McLeod's release. Our Secretary of State replied that
+the prosecution was in the hands of the State of New York, and
+the United States had no control over it. Lord Palmerston made
+the affair the subject of a dispatch, in which he stated that
+McLeod's execution would produce "a war of retaliation and
+vengeance." The President at once requested the Governor of New
+York to order a discontinuance of the prosecution. This was
+declined, but with a promise to grant a pardon in case of
+conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]
+The State courts refused to discharge the prisoner. He was tried
+on the original charge, but acquitted.
+
+Congress in 1842 did what it could to prevent the recurrence of
+such a conflict of authority by passing an Act giving the Circuit
+and District Courts of the United States jurisdiction on
+_habeas corpus_ proceedings in favor of foreigners held by
+State authority, who might claim a right of release under the
+principles of international law.[Footnote: U. S. Revised
+Statutes, § 762.]
+
+The Circuit Court has since 1875 been given power to entertain
+original jurisdiction of any causes arising under the
+Constitution, laws or treaties of the United States, regardless
+of the citizenship of the parties, if a value of $2,000 is
+involved. In all cases, also, of imprisonment by State
+authority, whether under arrest before trial or after a sentence
+of conviction, in violation of rights claimed under the
+Constitution, laws or treaties of the United States, the prisoner
+may now be summarily discharged on a writ of _habeas corpus_
+by a court or judge of the United States. Ordinarily, however,
+as a matter of comity, he will be left to seek his remedy in the
+State courts, and if without success there, on a writ of error
+from the Supreme Court of the United States.[Footnote: _In
+re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117
+U. S. Reports, 241.]
+
+The State courts have no power to release on _habeas corpus_
+one who is held under the authority of the United States. If
+that authority has been illegally exerted, his remedy is in the
+federal courts alone.[Footnote: Ableman _v._ Booth, 21
+Howard's Reports, 506.]
+
+The cases in which a State can be sued in an original suit in the
+Supreme Court of the United States are defined in the
+Constitution and, as limited by the eleventh amendment to it, are
+quite few.
+
+Several such actions have been brought. In the earlier ones, the
+State declined to recognize the jurisdiction of the court and did
+not enter an appearance. The court thereupon decided to proceed
+_ex parte_ on hearing the plaintiff;[Footnote: See New
+Jersey _v._ New York, 5 Peters' Reports, 283;
+U. B. Phillips, "Georgia and State Rights;" Report of American
+Historical Association for 1901, II, 83.] and in the later cases
+the States have appeared and made defense.
+
+The court, in one of these suits, was asked to issue an
+injunction in favor of the Cherokee Indians against the State of
+Georgia to prevent her and her Governor, judges and other
+officers whatsoever from enforcing certain of her statutes which
+were alleged to be unconstitutional. The case went off on
+another point, but the majority of the court intimated it to be
+their opinion that no such injunction could properly issue
+against a sovereign State. Marshall thought it savored "too much
+of the exercise of political power to be within the proper
+province of the judicial department." Mr. Justice Johnson said
+that it was an attempt to compel the President of the United
+States, and by indirection, to do what he had declined to do on
+the plaintiff's application to him; namely, "to declare war
+against a State or to use the public force to repel the force and
+resist the laws of a State."[Footnote: Cherokee Nation _v._
+Georgia, 5 Peters' Reports, 1, 19, 29.]
+
+It would be no easy thing to enforce a judgment against a State
+should it resist. Hence the Supreme Court has been justly
+reluctant ever to make any order which would take money out of a
+State treasury, unless in cases where the Treasurer was
+individually sued, and the money in dispute was not mingled with
+other public funds. In 1794, four years before the adoption of
+the eleventh amendment, a judgment against the State of Georgia,
+authorizing an assessment of general money damages against her,
+had been entered in the Supreme Court in favor of one Chisholm,
+to whom she owed a debt. Georgia had refused to enter an
+appearance in the suit, and in anticipation of this result her
+House of Representatives had resolved, in 1793, that if any
+Federal marshal should attempt to levy an execution on such a
+judgment against the State, it should be a felony, and on
+conviction he should be hanged. The Senate had not concurred in
+this measure, but it reflected pretty closely the general state
+of public feeling in a State largely indebted for what her people
+thought it belonged to the United States to pay. The eleventh
+amendment was proposed by Congress during the term of court at
+which judgment was entered, but not adopted until 1798.
+Meanwhile, the court had thought best to defer further
+proceedings, and none were ever taken afterwards. The plaintiff
+therefore won a barren victory.[Footnote: U. B. Phillips,
+"Georgia and State Rights," Report of American Historical
+Association for 1901, II, 25.]
+
+The appellate jurisdiction of the Supreme Court of the United
+States over States is large, for the State is the party in whose
+name all criminal prosecutions in its courts are brought, and in
+many of these the defendant sets up some claim under the laws of
+the United States which is overruled.
+
+Here again, in case of resistance, it would be difficult to
+enforce a judgment of reversal.
+
+Shortly before the action of the Cherokee Nation for an
+injunction, the Georgia courts had sentenced Corn Tassel, one of
+the tribe, to death for murdering another of them. Tassel had
+claimed that by the laws of the United States and their treaty
+with his nation he could only be prosecuted before one of his
+tribal courts. He obtained a writ of error from the Supreme
+Court to review his case on this ground. It was served, but
+before it could be heard the day set for his execution had
+arrived. By the laws of the United States the allowance of the
+writ of error superseded the sentence until the appeal should be
+decided. The Governor laid the matter before the legislature,
+saying that he did not propose to regard any orders from the
+Supreme Court interfering with those of Georgia courts, and
+should resist any attempt to enforce them with all the forces at
+his command. The legislature approved his position,[Footnote:
+U. B. Phillips, "Georgia and State Rights," Report of American
+Historical Association for 1901, II, 77.] and Tassel was hanged
+on the day originally set.[Footnote: "Memoirs of William Wirt,"
+II, 291.] There had been no time to resort again to the Supreme
+Court for relief, and as soon as he was dead his writ of error
+fell with him, for such a proceeding is legally terminated if the
+plaintiff in error dies.
+
+Two years later, Rev. Mr. Worcester, a missionary who had gone to
+teach the Christian religion to the Cherokees, was convicted in
+the Superior Court of Gwinnet County on an indictment for
+residing among them without a license from the State, and sent to
+the State prison. He appealed to the Supreme Court of the United
+States, which decided that Georgia had no jurisdiction over the
+Cherokee reservation, and could not require such licenses. The
+judgment against him was therefore reversed, and an order made
+"that all proceedings on the said indictment do forever surcease;
+and that the said Samuel A. Worcester be and hereby is henceforth
+dismissed therefrom, and that he go thereof quit without day, and
+that a special mandate do go from this court to the said Superior
+Court to carry the judgment into execution."[Footnote: Worcester
+_v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior
+Court of Gwinnet County paid no respect to this mandate; the
+Governor of Georgia characterized it as an attempt at usurpation
+which he should meet in a spirit of determined resistance; and
+Worcester remained in prison until, on expressing his willingness
+to abandon any further efforts for his discharge by authority of
+the judgment on his writ of error, the Governor gave him a pardon
+on condition of his leaving the State.
+
+A year later, James Grady, who lay under a sentence of death
+under proceedings similar to those in Tassel's case, like him
+obtained a writ of error from the Supreme Court of the United
+States and had it served on the Georgia court, only to find it
+disregarded. His execution, in spite of the _"supersedeas"_
+which goes by law with every such suit, was the last of this
+series of judicial outrages.[Footnote: "Georgia and State
+Rights," 83.]
+
+It was unfortunate for the sufferers in these proceedings that
+they took place at a time when the cry of "State Rights" was
+particularly loud and general in the South. South Carolina had
+been quieted with difficulty by Jackson's action in regard to her
+nullification ordinance, and he did not wish to go farther than
+he thought it necessary in insisting on the supremacy of the
+United States.
+
+Since the Civil War, such defiance by a State of the authority of
+the Supreme Court of the United States has been unknown and would
+be almost inconceivable. The absolute right of the Supreme Court
+of the United States to pronounce finally, so far as the States
+are concerned, upon every question brought before it as to the
+meaning and effect of the national Constitution, has come to be
+universally acknowledged.
+
+The courts of a State have the same right, except that it is not
+final. This the original Judiciary Act of 1789 (Sec. 25) fully
+recognized. Something like it may belong to a Convention of the
+whole people of a State, called to act upon its fundamental
+concerns; for that would represent the sovereignty of the State
+as a whole in the fullest manner. It was from such a convention
+that the nullifying ordinance of 1832 proceeded, but the vice of
+its action was, not so much that it pronounced the protective
+tariff Acts unconstitutional and void, but that it assumed to
+deny any right of appeal in litigation growing out of these Acts
+and the Ordinance of Nullification, from the courts of South
+Carolina to the courts of the United States. This liberty of
+appeal in the regular course of judicial procedure is the one
+thing which keeps the United States in existence.
+
+The law governing the ordinary transactions of life is that of
+the State where they may have their seat. This was affirmed in
+the original Judiciary Act,[Footnote: U. S. Revised Statutes, §
+721. As "equity follows the law," State legislation creating new
+equitable rights or varying those formerly established also
+affects causes in equity in the Federal courts. Brine _v._
+Insurance Co., 96 U. S. Reports, 627; but see James _v._
+Gray, 131 Federal Reporter, 401.] as a general rule for the
+courts of the United States in trials at common law. By another
+Act of Congress,[Footnote: _Ibid_., § 914.] the practice,
+pleadings, and form and mode of proceeding in civil causes, other
+than those of equity and admiralty jurisdiction, in the Circuit
+and District Courts are to conform as nearly as may be to that
+followed in the State within which these courts may be held.
+
+The State laws which are thus made a rule for the United States
+courts are the law of the State as it is understood and applied
+in its own courts. Hence the construction of a State statute, or
+the doctrines of the common law in a particular State, if
+definitely settled by the courts of that State, must be followed
+in subsequent litigation in the federal courts. Where, however,
+a State court has taken a certain position as to what the law is,
+and afterwards changes its position, the federal courts are not
+compelled to change with it, if this would do injustice to one
+who has meanwhile acted on the faith of the original
+ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports,
+20, and see argument of Daniel Webster in Groves _v._
+Slaughter, 15 Peters' Reports, 449, 489.]
+
+Nor are the federal courts, in large questions of a commercial
+nature, bound always to accept the opinion of a State court as to
+what the common law of the State may be. The manner in which
+this doctrine has been evolved is an interesting example of the
+manner in which law develops by litigation, and new points are
+struck out in a single case as the joint product of lawyer and
+judge.[Footnote: See Chaps, XVII, XVIII.]
+
+A bill of exchange drawn in Maine on one Tyson, a merchant in New
+York, and bearing his acceptance, was indorsed over to one Swift,
+who took it in good faith before it fell due, in payment of a
+pre-existing debt. He sued Tyson upon it in the Circuit Court of
+the United States in Maine. If his rights were as good as if he
+had paid value for it at the time he received it, he was entitled
+to recover. If not, his action failed; for the acceptance had
+been obtained by fraud. It was made in New York. The judicial
+decisions of that State, contrary to the prevailing opinion as to
+what was the general common law rule, seemed to favor the view
+that a pre-existing debt did not stand on as good a footing as a
+present payment, in support of a claim upon negotiable paper.
+Samuel Fessenden of Portland, a lawyer of great ability, was his
+counsel. The cause was submitted on briefs, without oral
+argument. Mr. Fessenden, admitting that the law of the place
+where acceptance was made must govern the obligations of Tyson,
+insisted that the New York decisions were wrong in principle and
+ought not to be regarded.
+
+  "If," said his brief, "there is any question of law, not local,
+  but widely general in its nature and effects, it is the present
+  question. It is one in which foreigners, the citizens of
+  different States in their contests with each other, nay, every
+  nation of the civilized commercial world, are deeply
+  interested. By all without the United States this Court is
+  looked to as the judiciary of the whole nation, known as the
+  United States, whose commerce and transactions are as widely
+  diffused as is the use of bills of exchange.... How can this
+  Court preserve its control over the reason and affections of
+  the people of the United States; that control in which its
+  usefulness consists, and which its own untrammeled learning and
+  judgment would enable it naturally to maintain; if its records
+  show that it has decided-as it may be compelled to decide if
+  the construction referred to, advocated on the part of the
+  defendant, is established-the same identical question, arising
+  on a bill of exchange, first one way, and then the other, with
+  vacillating inconsistency?"
+
+Mr. Dana, for Tyson, maintained the opposite view with equal
+ability. "In coming together," he said, "from the respective
+States, the framers of the Constitution, and our representatives
+in Congress after them, must be regarded as having had in view
+the language, laws, and institutions of the States which they
+represented."
+
+Mr. Justice Story gave the opinion of the court. Referring to
+the provision in the Judiciary Act (now U. S. Revised Statutes,
+Sec. 721) above mentioned, on the construction of which the case
+must turn, "It never," he remarked, "has been supposed by us that
+the section did apply, or was designed to apply, to questions of
+a more general nature, not at all dependent upon local statutes
+or local usages of a fixed and permanent operation, as, for
+example, to the construction of ordinary contracts or other
+written instruments, and especially to questions of general
+commercial law, where the State tribunals are called upon to
+perform the like functions as ourselves, that is, to ascertain
+upon general reasoning and legal analogies, what is the true
+exposition of the contract or instrument, or what is the just
+rule furnished by the principles of commercial law to govern the
+case.... The law respecting negotiable instruments may be truly
+declared in the language of Cicero, adopted by Lord Mansfield in
+Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great
+measure, not the law of a single country only, but of the
+commercial world. _Non erit alia lex Romæ, alia Athenis, alia
+nunc, alia posthac, sed et apud omnes gentes, et omni tempore,
+una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson,
+16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.]
+
+This opinion had been submitted to the court for the first time
+during the evening before it was delivered.[Footnote:
+_Ibid_., 23.] It could not have received any very close
+scrutiny. It relied on no authority except that of Cicero, for
+Lord Mansfield, in the case of Luke _v._ Lyde, was speaking
+of the law of the sea, which in the nature of things no one
+nation can prescribe or change. It was not easy to reconcile it
+with precedents cited by Mr. Dana, in one of which Mr. Justice
+Chase of the same court had held on the circuit as early as 1798
+that the United States had no common law of their own, and that
+the "common law, therefore, of one State is not the common law of
+another; but the common law of England is the law of each State,
+so far as each State has adopted it; and it results from that
+position, connected with the judicial act, that the common law
+will always apply to suits between citizen and citizen, whether
+they are instituted in a Federal, or State, Court."[Footnote:
+United States _v._ Worrall, 2 Dallas' Reports, 384, 394.]
+So the Supreme Court itself had said, in 1834, in a famous
+judgment, concurred in by Mr. Justice Story himself, that "it is
+clear, there can be no common law of the United States. The
+federal government is composed of twenty-four sovereign and
+independent States; each of which may have its local usages,
+customs and common law. There is no principle which pervades the
+union and has the authority of law that is not embodied in the
+constitution or laws of the union. The common law could be made
+a part of our federal system only by legislative adoption. When,
+therefore, a common law right is asserted, we must look to the
+State in which the controversy originated."[Footnote: Wheaton
+_v._ Peters, 8 Peters' Reports, 658.]
+
+The State courts have looked upon the doctrine announced in Swift
+_v._ Tyson with an unfriendly eye. In some, its authority
+is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna
+and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18
+Atlantic Reporter, 503.] In none will it affect the disposition
+of a cause turning upon its own law, and not pending in the
+federal courts. It has, however, been repeatedly reaffirmed by
+the Supreme Court of the United States, though the later
+decisions appear to limit its effect to questions growing out of
+commercial transactions not wholly confined to a single
+State.[Footnote: Western Union Telegraph Co. _v._ Call
+Publishing Co., 181 United States Reports, 92. See Article on
+the Common Law of the Federal Courts, by Edward C. Eliot,
+_American Law Review_, XXXVI, 498.]
+
+The right of recovery on a cause of action of a commercial nature
+will therefore often depend on the court which the plaintiff
+selects. If he sues in a State court, the common law of the
+State, as the judicial authorities of that State declare it to
+be, will be applied; if he sues in a court of the United States,
+the common law of the State as the judicial authorities of the
+United States declare it to be. Each tribunal will profess to
+decide by the same rule--the law of the State; but the federal
+court will really apply the common law of England, as it is
+generally understood to be, instead of the common law of that
+State as it is locally understood to be.
+
+The relations between the federal and State courts which have
+been described obviously present many occasions for conflicts of
+authority. That such conflicts are so infrequent is mainly due
+to a spirit of comity, which the judges of each sovereignty
+should and generally do show to those of the other. The federal
+courts are also prohibited by Act of Congress from issuing any
+injunction to stay proceedings in a State court, except in
+certain cases arising under the bankruptcy laws. Independent of
+any statute, however, the general principles of jurisprudence
+forbid any direct attempt either by a court of the State to
+control the action of a court of the United States or by a court
+of the United States to control the action of a State court,
+except to the limited extent for which provision is made in the
+national Constitution.[Footnote: Diggs _v._ Wolcott, 4
+Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's
+Reports, 279.] Each court, this exception aside, exercises
+powers belonging to an independent sovereign, and therefore
+subject to control by that sovereign only.
+
+The equitable jurisdiction of the courts of the United States
+enables them to interfere in disputes arising out of State
+elections in certain cases in which the claim is set up that
+rights held under the Constitution or laws of the United States
+have been violated. Actions for such relief are rare, and
+instances have occurred in which the remedy has been abused for
+political purposes.[Footnote: See the proceedings in the case of
+Kellogg _v._ Warmoth in the United States Circuit Court in
+Louisiana in 1872. McPherson's "History of Reconstruction,"
+100-108.]
+
+The centralizing and nationalizing tendencies which set in early
+in the nineteenth century and were so greatly strengthened by the
+course of events during and following soon after the Civil War
+have greatly weakened the position and influence of the State
+courts. They have thus rendered the State bench less attractive.
+In 1791, John Rutledge, an associate justice of the Supreme Court
+of the United States, resigned that office for the Chief
+Justiceship of South Carolina. During the last half century,
+several Chief Justices of States have resigned to become
+Associate Justices of the Supreme Court of the United States.
+Associate Justices of Supreme Courts in the smaller States have
+also frequently resigned to accept the position of District
+Judge, attracted by the life tenure, larger salary, and retiring
+pension.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XI
+
+
+      RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES
+
+
+Every State has all the rights of an independent sovereign,
+except so far as its sovereignty is limited by the Constitution
+of the United States. As respects each other the States are for
+most purposes in the position of foreign governments. The courts
+of one are regarded by those of any other as foreign courts,
+except so far as the Constitution may have prescribed a different
+rule.
+
+No legal process from a court can have any inherent force outside
+of the territorial boundaries of the government in which it is
+issued. The law of that government may attach certain
+consequences to the fact of its service in a foreign country, but
+it can do so only with reference to the effect of the proceeding
+on persons or property subject to its own jurisdiction. Courts,
+as a general rule, can act only when they have jurisdiction over
+the person, the subject-matter, and the cause.
+
+In rare cases, jurisdiction over the subject-matter may be
+regarded as giving jurisdiction over the person, so far as may be
+necessary to uphold a judgment settling the possession or title
+to property. Such a proceeding is, either in form or substance,
+one not _in personam_ but _in rem_. The commonest
+instance is a suit in admiralty to enforce a maritime lien, such
+as that given by the universal law of the sea for seamen's wages.
+Wherever the vessel is found, this lien is recognized and will be
+enforced by seizing and selling her, but only after some kind of
+public notice has been given to all who have any pecuniary
+interest in her to appear and be heard. In such a suit, personal
+notice to her owners, served within the jurisdiction of the
+government to the courts of which the seamen may resort, is not
+indispensable. The presence of the ship within the power of the
+court is enough.
+
+While State courts have no admiralty jurisdiction, they can
+adjudicate upon a claim of title or right of possession to fixed
+property within the territorial limits of their State, although
+the parties adversely interested are not and have not been
+personally served with process there or anywhere. Here again
+their power over the property necessarily implies such power of
+control over those who might lay claim to it as will suffice to
+settle any dispute over its ownership or possession. But in all
+ordinary cases they are not only powerless to subject any one to
+obedience to their judgments who is not personally within the
+State in which they exist, but powerless so to subject one who is
+personally within it, but who did not belong there and was not
+there served with process in the original proceeding leading up
+to the judgment, unless he voluntarily took part in the
+proceeding.
+
+In most civilized nations there is a recognized form of
+proceeding by which a judgment of a foreign court, fairly
+rendered after giving a proper opportunity to the defendant for a
+hearing, can be enforced by process from a domestic tribunal.
+This is styled making the foreign judgment executory. The
+English common law did not recognize such a right, and gave no
+remedy to one desiring to enforce a foreign judgment, except that
+of bringing a fresh suit. In like manner, whoever has recovered
+a judgment against an inhabitant of any State, in a court held
+outside of that State, can enforce it against him in his own
+State only by bringing a new action. This either is, or is in
+the nature of, the common law action of "debt on judgment"; and
+only two defenses are available. These are, first, that no such
+judgment exists or is in force; and, second, that if it exists,
+it was rendered by a court having no jurisdiction over the
+subject-matter or the defendant.[Footnote: Pennoyer _v._
+Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine
+Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was
+jurisdiction, it is of no consequence that it was erroneously or
+unfairly exercised. The remedy for that must be sought in the
+State where the judgment was pronounced. Even fraud on the part
+of the plaintiff in procuring it, though a defense against a
+judgment of a foreign country is not one against a judgment of
+another State.[Footnote: Christmas _v._ Russell, 5 Wallace's
+Reports, 290.] These rules are established by Art. IV, Sec. I of
+the Constitution of the United States and by Acts of Congress
+passed to enforce it.[Footnote: U. S. Revised Statutes,
+Sec. 905.]
+
+Commercial intercourse between the different States is so great
+and so constant that questions in the courts of one often arise
+which turn on the law of another. Those who do any act do it
+with implied reference to the law of the place where it is done,
+so far as respects its legal consequences. If it is a wrongful
+act there, it will in most instances be deemed a wrongful act
+everywhere. If it leads to a certain result as regards property
+rights there, it will ordinarily give a right of action anywhere,
+to secure the benefit of that result.
+
+The law of each State is largely an unwritten common law. Even
+in those where they have full codes defining civil rights, these
+codes are expressed in terms for the definitions of many of which
+the common law gives the rule. But this common law is not
+precisely the same in any two States. In minor points certainly,
+and perhaps in capital ones, there will be a divergence. In
+England there is one uniform common law. Here, divided as we are
+for most business purposes into forty-five different
+sovereignties, it is multiform.
+
+If, then, the court of one State in determining the legal effect
+of a transaction having its seat in another must be governed by
+the common law of that State, where is it to be found?  If there
+have been decisions of its highest courts in regard to what it is
+with reference to the point in question, they will ordinarily be
+accepted as conclusive.
+
+This is not by virtue of the provision in the Constitution of the
+United States that full faith and credit is to be given in each
+State to the public records and proceedings of the others. That
+refers to the effect of public records and proceedings upon the
+rights of those who are or claim under parties to them. Such
+decisions as those which have been described are accepted as
+conclusive as to the rights of those who were not parties to
+them, and simply because they are considered the best evidence
+attainable of a rule of unwritten law of general application.
+But they are not universally so considered. The rule that
+transactions are governed by the law of the place where they have
+their seat is one founded on the presumed intent of the parties
+to them. But in fact the parties to a business transaction act
+on their general notions of what the law is or must be, rather
+than on any particular knowledge of what courts have declared
+that it is. The rule that one country will accept the opinion of
+the judicial authorities of another as to what its law is, is one
+not to be pressed so far as to sacrifice essential justice. In
+this point of view, some courts hold that it is permissible to
+disregard decisions of other States which are based on a
+departure from what is generally considered a settled doctrine of
+the common law as to a commercial question. This is
+substantially the same position taken by the Supreme Court of the
+United States, and elsewhere described,[Footnote: See Chap. X.]
+concerning the right of a federal court to refuse to be bound by
+State decisions as to the unwritten law affecting foreign trade
+or trade between the States.[Footnote: Faulkner _v._ Hart,
+82 N. Y. Reports, 413, 423.]
+
+Another rule of practice of great importance is that in the
+absence of proof to the contrary the courts will presume, in a
+State basing its jurisprudence on the English common law, that
+the unwritten law of any other American State is the same as its
+own. As the reason of this rule fails in the case of Louisiana,
+Florida and Texas, which were subject to organized governments
+not derived from Great Britain at the time when they were
+incorporated into the United States, it is not applied to
+them.[Footnote: Norris _v._ Harris, 15 California Reports,
+253.]
+
+Decisions of a court constitute a precedent of binding obligation
+only within the particular territorial jurisdiction which is
+subject to its process. In the tribunals of one State decisions
+rendered in another on legal points are, so far as respects
+transactions not governed by its local law, without any
+authoritative force. They may be read, just as the opinions of
+an author expressed in a legal treatise, or as the decisions of
+an English or German court might be, for what they appear to be
+worth. No formal proof that they were really the deliverances of
+the court from which they purport to emanate is necessary to
+support their use for this purpose.
+
+The reported decisions of courts of other States, whether
+published officially or unofficially, may be cited in argument in
+any cause, to fortify the claims of counsel as to the proper
+rules to be followed in reaching a decision. For this use they
+are introduced simply for the intrinsic value of the reasoning
+and conclusions.
+
+If it is claimed that they prove the law of the State from which
+they come to be of a certain nature (and that is a material point
+in the case), they should be made the subject of proof before
+argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports,
+1.] In many States this is dispensed with by statutes allowing
+courts to take judicial notice of all reported decisions in other
+States; that is, in effect, to take any means which they think
+proper to learn what they are. It is also the general practice
+of the bar where no such statutes exist to allow the reports of
+other States to be read for any purpose without objection.
+
+Most States have statutes to facilitate the proof in court of the
+statute laws of other States. The mode prescribed by Act of
+Congress (Revised Statutes, Sec. 905) under the constitutional
+provision, to which reference has been made, involves
+considerable expense for the proper certification of copies.
+Common provisions of State legislation are that all courts may
+take judicial notice of the laws of other States (that is, take
+them into account without any formal proof at all), or that a
+copy of the official publications containing them shall be
+competent evidence of what they are.
+
+There is a certain spirit of comity to which courts often give
+expression in rendering assistance to courts of other countries.
+This judicial comity has been defined as "the deference commonly
+paid by the courts of one jurisdiction to the laws or proceedings
+of another, in causes affecting rights claimed under such laws or
+proceedings."[Footnote: "Dict. of Philosophy and Psychology,"
+_Comity_.] As between courts of the different States in the
+United States this sentiment naturally is particularly strong.
+In pursuance of it, it is usual, if there has been a judicial
+appointment in one State of a representative of the law to
+administer an estate of any kind, part of which is in another
+State, for the courts of the latter to give him such further
+powers or appointment as may be necessary to put in his
+possession or control whatever is within their jurisdiction. An
+administrator of the estate of a deceased person would thus be
+appointed, almost as a matter of course, administrator of such
+estate in whatever State property or rights of action belonging
+to it might be found. A receiver appointed by a court of equity
+to take possession of property would ordinarily, in like manner,
+be appointed to the same office wherever any part of such
+property might be situated; and in some States such an officer
+has been permitted to sue for it under his original appointment.
+The general doctrine, however, is that a receiver in chancery
+(that is, a receiver appointed by a court of equity) is simply an
+arm of the court which appoints him, and has no authority to act
+outside of the territorial jurisdiction of that court.[Footnote:
+Hale _v._ Allinson, 188 U. S. Reports, 56.]
+
+A receiver of an insolvent corporation often finds that it has
+shareholders living in several different States, who have not
+fully paid in their subscriptions to its capital stock. In such
+case, if the statute of the State under the laws of which it was
+incorporated provided for the appointment of a receiver for
+insolvent corporations of that character, he may be regarded in
+other States as one to whom each shareholder, in legal effect,
+promised to pay such part of his subscription as had not been
+previously paid to the corporation itself. On this theory of
+liability, a foreign receiver has a right of action by virtue of
+his official position, indeed, but not because of authority from
+a foreign court to use that position for such a purpose. He sues
+as one to whom the shareholder promised to make a payment, and on
+a direct contract between the two, which is implied by
+law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47
+Atlantic Reporter, 711; 84 American State Reports, 161.]
+
+The sentiment or rule (for from being a sentiment it has risen to
+be a rule) of comity between States both aids in the enforcement
+in one of rights acquired under the other,[Footnote: Finney
+_v._ Guy, 189 U. S. Reports, 335, 346.] and in the
+prevention by one of acts which would infringe on prohibitions
+created by the other. Thus, if a corporation of one State has
+been organized to do business in another, it may be enjoined in
+its home State from amalgamating with a corporation of the other,
+contrary to the public policy of the other as declared by its
+courts.[Footnote: Coler _v._ Tacoma Railway and Power Co.,
+70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]
+
+As no legal process can be effective outside the limits of the
+sovereignty by authority of which it is issued, no court of a
+State can summon before it witnesses not found within its
+jurisdiction, who live in another State. This, in view of the
+free intercourse and trade between all parts of the United
+States, would work intolerable hardship had not statutes been
+passed by every State permitting testimony to be taken outside of
+its limits by written deposition for use in civil cases.
+
+So far as criminal causes are concerned, this mode of relief
+generally cannot be pursued, owing to the common provision in our
+State Constitutions that the accused must be confronted by the
+witnesses against him. Most of the Northeastern States, to meet
+this difficulty, have passed statutes requiring their citizens
+when summoned by a local magistrate at the request of a court of
+another State to appear and testify before it in such a
+prosecution, to do so upon receiving payment for their time and
+expenses, on pain of a considerable pecuniary
+forfeiture.[Footnote: New Hampshire inaugurated this legislation
+more than sixty years ago. Public Stat., ed. 1842, 382. Most of
+the statutes apply only to adjoining or neighboring States, and
+some require reciprocity on their part.]
+
+            *       *       *       *       *
+
+Lawyers of one State have no right to practice in any other. By
+courtesy and on motion of a member of the bar, it is customary
+for the courts of other States to allow them to participate in
+the conduct of any particular cause. In some States, lawyers who
+have removed their residence into them from another may in the
+same manner be admitted to their bar; in most there is a standing
+rule on the subject which requires proof of their having
+practiced in the courts of their original State for a certain
+number of years, and otherwise provides for an examination into
+their legal attainments.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XII
+
+
+                    TRIAL BY JURY
+
+
+To have a trial by jury is, as a general rule, the right of every
+man who sues or is sued in court on a cause of action not of a
+kind to be disposed of in a court of equity or admiralty. The
+American colonies did not all adopt this mode of procedure at
+first, and few of them ever practiced it precisely on the English
+plan. In the colony of New Haven there were no juries. In all
+the New England colonies, later, there were juries, but verdicts
+in civil causes had not the conclusive force given them by the
+common law. The defeated party had what was styled the privilege
+of a review. This was a new trial before another jury, either in
+the same court or a higher one. If he lost his case again, it
+was the end of the litigation. If he gained it on the second
+trial, the other party could demand a third, and the event of
+that decided the cause forever.[Footnote: Bissell _v._
+Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]
+In criminal prosecutions a similar right was sometimes conceded
+to the defendant in case of conviction.[Footnote: Statutes of
+Connecticut, ed. 1715, p. 131.] South of New England there was
+no such radical departure from the common law, but there were
+before the Revolution variations of considerable
+importance.[Footnote: The _Federalist_, No. LXXXIII.]
+
+Instead of sending a case before an ordinary jury, the court has
+power, at the request of the parties, to direct a special jury to
+be summoned to hear it. This is seldom asked or granted unless
+the matter in controversy is of peculiar importance and
+difficulty. Such a jury is more carefully selected, with the
+assistance of the parties, so as to make it sure that it will be
+composed of men exceptionally competent to decide a cause and
+such a cause. They are generally paid a larger compensation than
+ordinary jurors receive, the parties furnishing the additional
+sum required. Prepayment of these sums may be and often is made
+a condition of granting a trial before such a jury.[Footnote:
+Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports,
+621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports
+Annotated, 911.]
+
+The requirement of unanimity on the part of the jury in civil
+causes, which we have inherited from England, is indefensible in
+principle. In practice, it has saved the institution from
+destruction. No one would feel himself safe if a majority of
+twelve men, of no special training in the study of legal rights,
+could strip him of his property. But among that number of
+persons there can hardly fail to be one or two of superior
+character and intelligence. These, with the aid of the judge, if
+he be one who fulfills properly his part of the proceeding, can
+generally lead the rest to a just conclusion. If the verdict is
+for the plaintiff, they may have to yield to some compromise as
+to the amount of damages. Not infrequently this has been arrived
+at by calling for the separate estimates of each juror, adding
+them together and dividing them by twelve. It is a rough way,
+and not the fairest, but the wiser heads may consent to it to
+secure the concurrence of the weaker.
+
+In criminal cases, the importance of a verdict to the defendant
+is so great that unanimity may well be required. While there is
+a legal presumption that he is innocent until found guilty, this
+in practice is of little avail to him with the jury. They know
+from their every-day observation of affairs that there are few
+prosecutions which reach the final stage of a trial on the
+merits, under which there ought not to be a conviction.
+
+In several States verdicts in civil causes by a three-fourths
+vote are permitted. This radical change is not likely to become
+general.
+
+Its best defense is that temptations to corruption are thus
+removed. So long as one juror, by refusing to concur with the
+rest, whether with or without reason, can prevent a verdict,
+there will be defendants seeking to prevent the recovery of what
+they know to be a just demand, who will be ready to buy a vote.
+In 1899, seven of the bailiffs in attendance on the Chicago
+courts were accused of lending themselves to such negotiations,
+and twenty men who had been jurors confessed that they had either
+taken or been offered bribes.[Footnote: Report of the New York
+State Bar Association for 1904, 51.]
+
+The Anglo-American jury is unique because it is nothing unless
+unanimous, and because it may render a general verdict, stating
+no reasons for the decision, on which a general judgment, save in
+exceptional cases, is entered as of course.
+
+In the early judicial history of the American colonies juries
+were less under the control of the judge than they are
+now.[Footnote: See Chap. XIV.] In some colonies they received no
+instructions as to the law, the chance of an unjust decision
+being guarded against in civil cases, as previously stated, by an
+absolute right in the losing party to claim a new trial before
+another jury.
+
+The general tendency of judicial practice in later years has been
+to emphasize the influence of the judge upon verdicts. This
+often extends to directing a verdict, peremptorily, for one party
+or the other, when the law is clear upon the facts claimed or
+admitted. Still more often it takes the shape of a caution as to
+the weight that can properly be given to certain testimony, or an
+opinion as to what really are the controlling sources of
+evidence. Without the guidance of an intelligent judge, a jury
+would frequently come to unfortunate and even unjust conclusions.
+That there should be such guidance is an essential part of the
+jury system, and it is generally given most effectually where the
+judges are the ablest and the most independent.
+
+The judge has at common law and by practice in most American
+States a right in his charge to comment on the evidence and
+intimate his opinion as to the weight which should or should not
+be given to any particular testimony. It is a right to be
+cautiously exercised, for juries are greatly influenced in their
+conclusions by remarks of that character. They feel that he is
+the head of the court, and there is a certain sentiment of
+loyalty to him as well as of respect for any one occupying the
+position in which they find him placed by the authority of the
+State. Sometimes this power is abused. The judge desires to
+indicate a decided opinion. He fears that if he put it in plain
+words it might seem so strong as to indicate partiality, and
+furnish ground of appeal. He therefore uses language, perhaps in
+reference to the credibility of a witness, which looks fair and
+even colorless on paper, but by the tone or emphasis in which
+some vital word is uttered, or with the aid of a shrug or glance,
+carries to those whom he is addressing an unmistakable conviction
+that he means it to be taken in a certain sense. Any such
+judicial action, however, is rare, and would be looked upon with
+disapprobation by the bar.[Footnote: See Metropolitan Life
+Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68
+Northeastern Reporter, 4.]
+
+If the case is one which has been pressed by counsel especially
+upon the sympathies of the jury, such as a suit arising out of a
+labor strike, or by a widow to recover for an injury resulting in
+her husband's death, it is customary for the court to caution
+them in their charge that justice and not sympathy is their rule
+of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation
+Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter,
+765.]
+
+The American colonies were settled at a time when the English
+criminal code was extremely harsh, and the English judges were
+disposed to administer it in such a way as to favor the crown.
+If the government promoted a prosecution, there was little hope
+for the defendant, except from the jury. The courts held that on
+criminal proceedings for publishing a libel it was for them to
+say whether the paper was libellous, and for the jury to decide
+only as to its publication by the accused. This was the occasion
+of the Charles James Fox Libel Act of 1792, and of many
+constitutional provisions to the same effect in this country,
+under which juries, even in libel cases, can render a general
+verdict of Not Guilty.
+
+It was under the influence of these ideas, and in view of the
+fact that the colonial judge often knew no more law than the
+jury, that it became common in this country either to give a jury
+in a criminal cause no instruction as to the law at all or to
+charge them that they were judges both of the law and
+fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
+258, 401.] In some of the States, a charge to the effect last
+stated is now sometimes required by statute.
+
+A jury trial is a poor mode of doing justice, if there is a rule
+of law which, as applied to certain facts, should control the
+verdict, unless that rule of law be both stated by the judge, and
+so stated as to impress upon the jury that it is their sworn duty
+to apply it, if the facts which they may find to exist are such
+as to come under its operation. That they should be so
+instructed, even if declared by express statute to be the judges
+both of the law and the facts, is the prevailing opinion of
+American courts and jurists.[Footnote: Commonwealth _v._
+Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
+U. S. Reports, 51, 71.]
+
+It is of especial importance that the duty of juries to take the
+law from the court should be clearly stated to them in a country
+of written Constitutions. Most crimes are defined by statute.
+It is easy for the defendant's counsel to claim that the statute
+on which the prosecution is based is unconstitutional. If it be,
+the accused is entitled to an acquittal; but if the jury acquit
+him on that ground, and the ground is false, injustice is done.
+Any such claim must be disposed of by the court, in order to give
+the Constitution its due supremacy.[Footnote: State _v._
+Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
+American State Reports, 30.]
+
+Mr. Justice Baldwin of the Supreme Court of the United States
+came to the bench, in 1829, strongly inclined to minimize the
+power of the federal judiciary. In one of his first cases on the
+circuit, he charged the jury in a capital case that they were
+judges of both law and fact, and if they were prepared to say
+that the law was different from what he had stated it to be, were
+not bound by the opinion of the court.[Footnote: United States
+_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
+before he found himself compelled to retreat from his position.
+A man was being tried before him for forging notes of the United
+States Bank, and his counsel claimed an acquittal because the law
+incorporating the bank was unconstitutional, reading to prove it
+the veto message of President Jackson, with the accompanying
+documents. To the Jackson Democrats on the panel this was quite
+an imposing argument, and Mr. Justice Baldwin was obliged in his
+charge to sound the warning that for a jury to exercise the power
+of treating an Act of Congress as invalid was virtually to give
+us a country without a Constitution and without laws.[Footnote:
+United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
+Pennsylvania Law Journal for November, 1846, p. 9.]
+
+In one of the Southern States where it is a statutory right to
+demand instructions that the jury are the judges of the law, it
+was the custom of a certain trial judge of commanding presence,
+when called upon to give them, to say to the jury after he had
+done so, rising to his full height, "But, gentlemen, you must
+recollect that I have told you what the law that governs this
+case is, and to this I am the only witness who has appeared or
+could appear."
+
+It was one of the acute observations of Alexander Hamilton that
+under our American Constitutions judges are less to be relied on
+by one who is attacked by the government, because those who
+direct the government are the choice of the people, and whatever
+they do is presumably popular. The judiciary, he said, was less
+independent here than in England, and therefore we had the more
+reason to cling to the trial by Jury and their power to render
+general verdicts as our greatest safety.[Footnote: People
+_v._ Croswell, 3 Johnson's Cases, 337, 353.]
+
+The States which guard these most closely are those in which
+there is the most jealousy of anything like a standing order, and
+the widest scope of popular election. Georgia was the State,
+among the old thirteen, in which these characteristics were most
+marked. Her first Constitution of 1777 expressly threw the power
+of determining the law into the hands of the jury in every case,
+though they were allowed to ask the judges holding the court for
+their opinion, in which case each judge gave his in rotation.
+The party who lost his case could demand a new trial before a
+special jury. The ordinary jury were to be sworn to bring in a
+verdict according to law and the evidence, provided it be not
+repugnant to the Constitution. The special jury were to be sworn
+to bring one in according to law and the evidence, "provided it
+be not repugnant to justice, equity, and conscience, and the
+rules and regulations contained in this Constitution, of which
+they shall judge." Apparently the meaning of this was that while
+the decision of the first jury as to the law could be revised by
+a second, that of the second, however contrary to the highest
+law, could not be.
+
+            *       *       *       *       *
+
+Resort is occasionally had to the assistance of a jury by a court
+of chancery for the better disposition of some disputed question
+of fact on which the equities of the parties depend. This cannot
+(except by force of some express statute) be claimed as a matter
+of right. The judge sends the issue to a jury for trial only if
+he thinks it would be helpful to him, but their verdict has no
+conclusive effect. He can adopt it or ignore it, at his
+pleasure.
+
+            *       *       *       *       *
+
+The selection of jurors is a long process. The general plan is
+to commit to some local authorities in each city, town, or county
+the choice of a considerable number out of the inhabitants whom
+they may think suitable to serve in that capacity; then to have
+that list revised by some higher officials or persons specially
+appointed by the courts for the purpose, who must strike out a
+large part of the names; and finally to have those who are to be
+summoned to attend any particular term of court for jury duty
+chosen by drawing from the remaining names by lot. In many
+States special qualifications as to age, education, and
+intelligence are required. Out of the jurors thus summoned to
+attend the court, there is a further choice by lot of those to
+try each particular case, subject to objections made by either
+party to any thus drawn, for proper cause.
+
+The statutes of the United States provide that jurors in the
+Circuit and District Courts shall be selected in each State from
+those qualified to serve in its highest trial courts, and in
+substantially the same manner.
+
+            *       *       *       *       *
+
+The right to a jury trial is in civil actions often waived by
+both parties, in which case the facts as well as the law are
+determined by the judge. If not expressly claimed, it is by the
+rules of practice in some States treated as waived. The number
+of civil causes tried to the jury, taking the country as a whole,
+is declining. The decline is generally found to be quite
+accurately proportioned to the confidence felt by the bar in the
+ability and independence of the judge,[Footnote: See Paper by
+Justice Henry B. Brown, in the American Bar Association Report
+for 1889, p. 265, on "Judicial Independence."] or perhaps to that
+confidence in the case of a former generation. Tradition and
+custom have a large influence on whatever pertains to the
+practice of law. In several of the States a majority of the
+civil causes which might be tried to the jury are not: in
+Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
+in England is also toward dispensing with the jury in ordinary
+civil trials. Over a million cases are brought every year in the
+English county courts, and in not one in a thousand of them is
+there a jury trial, although if the matter in demand is over £5
+in value either party may claim it.[Footnote: Maitland, "Justice
+and Police," 28, 29, 54. For small cases the jury is one of
+five, but their verdict must be unanimous.]
+
+Criminal trials, except in case of trivial offenses, it is
+generally necessary to hold before a jury, by express provisions
+of the Constitution.[Footnote: See Cooley, "Constitutional
+Limitations," 389.] During the colonial era the defendant was
+allowed in Massachusetts to waive a jury, even in capital
+cases.[Footnote: Proceedings of the Colonial Society of
+Massachusetts, VI, 95.] Statutory permission to the same effect
+has since been given in some States where there is no
+constitutional provision to the contrary.[Footnote: State
+_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
+the right to demand a jury in petty cases has been restricted in
+a number of States.[Footnote: In New Hampshire, for instance, a
+constitutional amendment was passed in 1877 denying it in cases
+involving less than $100, unless title to land is involved.]
+
+At common law the judges were accustomed and allowed to put great
+pressure upon juries, if necessary, to force them to unite in
+rendering a verdict. They could be kept together without food or
+beds all night, and even carted about from one court town to
+another until they were ready to report an agreement. Very
+little of this practice remains in the United States. In some
+States they are allowed to separate and go to their homes at
+night during the trial even of a capital case, and while
+deliberating over their verdict they are generally supplied with
+food and other comforts.
+
+The right of trial by jury was limited at common law to trials of
+what are called "issues of fact;" that is, of the truth of a
+statement of material facts made by one party and denied by the
+other. If, therefore, in a civil cause a judgment has been
+ordered for the plaintiff without a verdict, as where the
+defendant has failed to appear and answer, it is for the court to
+say for the recovery of what amount of damages the judgment shall
+be rendered. It may inquire into this by the aid of a jury, but
+such a jury need not consist of twelve. The inquiry may also be
+conducted by the judge alone.[Footnote: Dyson _v._ Rhode
+Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,
+771.]
+
+In most of our States this common law practice has been
+abandoned, and damages, in cases of the kind above described,
+would be assessed by a jury of twelve. This is because otherwise
+a defendant who did not dispute his liability for the act
+complained of and only wished to reduce the amount of damages
+claimed in the writ might, after declining to appear and plead,
+come forward with a motion to be heard by the court on the
+question of damages. A motion of that kind would naturally be
+granted, and the effect would be to transfer the decision of the
+only actual controversy between the parties from a jury to a
+judge. In Connecticut the old practice was maintained until
+1907, and the courts held that on the hearing as to the damages,
+in actions where there had been no contract between the parties
+to fix the rule of assessment, the defendant might show, if he
+could, that only nominal damages should be given, because really
+the plaintiff had no cause of action at all.[Footnote: Lennon
+_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
+334.] The result was that many suits arising out of railway
+accidents in that State were brought against the company in fault
+in other States in which process could be served to compel its
+appearance, and where a full jury trial could be secured. The
+legislature finally interposed and gave the plaintiff a right to
+claim a trial by jury, notwithstanding a default.[Footnote:
+Public Acts of 1907, 665.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XIII
+
+
+            FORMALITIES IN JUDICIAL PROCEDURE
+
+
+The sessions of a court of record of general jurisdiction are
+daily opened by a formal proclamation made, at the command of the
+judge, by the crier or sheriff's officer in attendance. In many
+States the ancient English style of expression has been
+preserved, which dates back to the Norman conquest, and begins
+with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
+often closed with such words as (for instance) "God save the
+Commonwealth of Rhode Island and Providence Plantations." The
+adjournment from day to day is announced in a similar but less
+elaborate manner.
+
+Many courts hold a certain number of stated "terms" annually, the
+first day of which is fixed by statute, and each of which is
+adjourned whenever the business that may come before it is
+finished, lasting sometimes but a few days and sometimes months.
+In a number of States such terms are opened by prayer offered by
+a minister of religion, invited in for the purpose by the sheriff
+or court attendant. No regular chaplain is employed, and one
+term may be opened by a Presbyterian minister and the next by a
+Roman Catholic priest.
+
+In some of the smaller counties in Massachusetts the sheriff or
+his deputy daily escorts the judge to and from the court house,
+in accordance with what has been the usage from colonial times.
+
+Formerly it was the practice in New England to ring the bell of
+the principal church in the town daily at the hour when court
+opened.[Footnote: This was continued in Connecticut until the
+last quarter of the nineteenth century.]
+
+In many courts it is the custom for all present to rise on a
+signal from the sheriff or marshal when the judge enters the
+court room to take his seat on the bench. This is the general
+usage in the federal courts and in the appellate courts of
+States. In the latter a formal proclamation is often made by the
+sheriff to announce the coming of the judicial procession,
+concluding with a "God save the Commonwealth." In some States
+formal bows are interchanged between bench and bar as the judges
+take their places, after which the court is opened by the
+customary proclamation and the bar then requested by the judges
+to resume their seats.
+
+The rules of official precedence are strictly observed in
+appellate courts. In entering the court room the chief justice
+advances first, and his associates follow in the order of the
+dates of their commissions, the senior associate justice taking
+his seat on his right, the second in seniority on his left, the
+third in seniority on the right of the senior associate justice,
+and so on; the junior in commission occupying the end seat on the
+left of the bench.
+
+The members of the Supreme Court and of the Circuit Court of
+Appeals of the United States have always worn black silk gowns.
+The members of the Supreme Court of South Carolina have worn them
+from a time antedating the Revolution. The New York Court of
+Appeals in 1877, at the request of the bar, preferred through
+David Dudley Field, adopted the practice,[Footnote: In 1903 it
+was extended to _nisi prius_ courts held by justices of the
+Supreme Court.] and the same thing has since been done by
+appellate courts in several other States. In one of these,
+Massachusetts, they had been worn in the colonial era. About
+1760, Chief Justice Hutchinson introduced gowns and cassocks
+there on the Supreme bench, and also gowns, bands, and tie-wigs
+for lawyers who were admitted as barristers of the Superior
+Court.[Footnote: "Life and Works of John Adams," II, 133, note,
+197.] The latter soon abandoned these, but gowns were retained
+by the judges until 1793.[Footnote: Publications of the Colonial
+Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
+I, 261, note.] In North Carolina gowns and bands were worn by
+the members of the Supreme Court in 1767.[Footnote: Proceedings
+of the Colonial Society of Massachusetts, VI, 389.] In New
+Jersey, the bar were at one time required to assume them by a
+rule of the Supreme Court, but the rule was vacated in 1791.
+
+At the first opening of the Supreme Court of the United States,
+in 1790, Chief Justice Jay wore a gown with salmon-colored
+facings on the front and sleeves, of the style then used by
+Doctors of Laws created by the University of Dublin, from which
+he had received that degree.[Footnote: 134 U. S. Reports,
+Appendix.] It has not since, in that or any other American
+court, been the practice for judges to wear academic hoods or
+other decorations on the bench.
+
+            *       *       *       *       *
+
+Counsel, in addressing the court, rise and begin with "May it
+please the Court," "May it please your honor," or, before a court
+in bane, "May it please your honors." The term "you" would never
+be used to a judge on the bench; but that of "your Honor" would
+be employed.
+
+Great pains is taken by the officers in attendance to prevent
+anything on the part of the audience that could in any way
+disturb the proceedings, such as loud conversation or unnecessary
+moving from place to place.
+
+There is a good deal of antique form in the manner in which,
+under the direction of the clerk, prisoners are arraigned and
+juries are made up or "impanelled" for the trial of a cause.
+
+In charging a jury, the judge commonly rises and the jury do the
+same.
+
+When sentence is pronounced on a conviction for crime the
+prisoner is required to rise. In cases of capital offenses, he
+is asked by the judge if he has anything to say why judgment of
+death should not be pronounced against him. It is highly
+improbable at that stage of the cause that he should have
+anything to urge which has not been already considered, but the
+ancient English practice in this respect is still followed, for
+it is not absolutely impossible that something may have occurred
+since the verdict that would affect the judgment.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XIV
+
+
+              TRIAL COURTS FOR CIVIL CAUSES
+
+
+The great bulk of litigation is confined to the civil trial
+courts, that is, to courts for the trial of ordinary causes
+between man and man. It also has its seat in the trial courts of
+the States, for not only is the judicial power of the United
+States confined by the Constitution within narrow limits, but
+these have been made still narrower by the action of Congress
+from time to time.
+
+Most lawsuits never get to trial. The defendant generally has no
+defense, and is well aware of it. The suit is brought to obtain
+security or force a settlement. He employs no lawyer and lets
+things take their course. The result is a judgment against him
+for default of appearance; for if one who has been duly summoned
+to court to answer to a demand fails to attend and answer, the
+court assumes that there is no answer that he could make, and
+disposes of the cause on such evidence as the plaintiff may
+produce. On the other hand, the plaintiff often does not care
+for a judgment. He has become satisfied that, if he got one, he
+could not collect it, or he has availed himself of the suit to
+secure a compromise of the matter in demand on satisfactory
+terms. In such case, or if, after bringing an action, he becomes
+convinced that he cannot maintain it, he withdraws it, or if the
+defendant insists, suffers a judgment to go against him, called a
+nonsuit.
+
+In some States the writ or process by which the action is begun
+must be accompanied by a full statement of the particular nature
+of the plaintiff's claim. In others this is not required, and
+such a statement is only furnished when specially ordered by the
+court. If the case goes to trial on the merits, it will be on
+such a statement furnished by the plaintiff, and on some paper
+filed by the defendant by way of answer. Occasionally these
+pleadings, as they are called, are such as to call out further
+statements or claims by way of reply and rejoinder. Their form
+is now generally regulated by statutes, and is much the same in
+most of the States, being based upon a system known as "Code
+Pleading," which originated in New York about the middle of the
+nineteenth century. It is simpler and less technical than the
+system under the common law which it replaced.
+
+If the defendant has any objections to the maintenance of the
+suit, on such a ground as that it is brought in a wrong court, or
+a wrong way, these are first disposed of. Then, if he asserts
+that the plaintiff on his own showing has no case, or if the
+plaintiff asserts that the defense set up is insufficient on its
+face, this being a question of law, the judge decides it without
+the aid of a jury. When, however, the facts are in dispute, a
+jury must be called in, if either party claims it, in an action
+not of an equitable nature, when the matter in controversy is one
+of any considerable amount.
+
+In this country we adhere to the old common law mode of taking
+exceptions to the legal sufficiency of written pleadings. This
+was by filing a paper called a "demurrer," in which the
+particular objections were set out, unless, as was frequently the
+case, they were so fundamental as to be apparent at the first
+glance. In many States, however, the objections must always be
+particularized. In England demurrers are no longer used. Her
+Judicature Act of 1873 put an end to the common law system of
+pleading, reconstituted her whole method of judicial procedure,
+and authorized the judges to make rules and orders from time to
+time to adopt the new scheme to convenience in practice. One of
+their orders, passed in 1883, abolished demurrers. In place of
+them, the party desiring to have the benefit of points of law
+arising on the face of the pleadings may state his point to the
+court and ask to have it set down for separate argument before
+proceeding to a trial of the cause on the facts. American
+lawyers are not satisfied with the reasons which led to this
+change. They were that the old practice made it a matter of
+right to claim a special hearing on a law point, while the new
+order would leave it to the discretion of the judge. The English
+judges are few and able. Such a plan may work satisfactorily
+under their administration, but it might often lead to useless
+delays and expense if introduced in a country where judges are so
+numerous and of such different qualifications as is the case in
+the United States.
+
+Our trial courts are now generally held by a single judge. Until
+the latter half of the nineteenth century it was not uncommon to
+have three judges sit together in county or city courts. One of
+them would be a lawyer and the others not.[See Chap. VIII.] In
+cities the two side judges were generally aldermen. A tribunal
+thus constituted is better adapted in some respects to trying
+questions of fact than a single judge. It is a jury of three
+acting by a majority. But for the conduct of a jury trial it is
+unwieldy, slow-moving and uncertain. In most cases any question
+of law or legal practice will be virtually decided by the
+presiding judge, but he will usually pause to go through the form
+of consulting his associates. Occasionally they will overrule
+him, and in such case it will be apt to be by a misunderstanding
+or misapplication of law. The expense of three judges, however
+moderate the compensation, has also weighed in favor of an
+abandonment of the system. It naturally results in paying too
+little to the chief judge, and too much to the others; and always
+costs more than it would to pay one man a sufficient salary.
+
+We have not the need of several judges to hold a trial court,
+which is felt in many countries. They use them for a purpose
+which our juries supply. For similar reasons Americans have not
+seen any occasion for organizing special courts, such as are the
+German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
+try special classes of causes. A jury of twelve will be apt to
+contain some men who will adequately represent those interested
+in any ordinary industrial or commercial controversy.
+
+Petty suits not of an equitable nature must generally be brought
+before a justice of the peace, who disposes of them himself, both
+as to matters of evidence and fact, but subject to an appeal to a
+higher court in which a jury trial can be had. In some States he
+can summon in a jury of six and leave the facts to their
+determination. The pleadings before him are usually in the same
+form as in the higher courts.
+
+In jury trials of civil causes the judicial function is, so far
+as possible, divided into two distinct parts. All questions of
+pure law are decided by the judge alone. All questions of pure
+fact are decided by the jury alone. All questions turning on the
+application of the law to the facts are decided by the jury under
+instructions from the judge as to what applications of the law it
+would be competent for them to make under the particular
+circumstances which they may find to have existed. The judge
+also has a large discretionary power in minor matters arising in
+the course of the suit. It is for him to say when it shall be
+tried; whether the written pleadings are in proper shape, and if
+not whether they may be amended; and in what order and within
+what limits the evidence may be introduced.
+
+No countries in the world have so artificial a set of rules of
+evidence as England and the United States. This is because in no
+other country is the right to a jury trial so extensive. Many of
+these rules date back to the early history of the English common
+law. It was a time of general illiteracy. The ordinary juror
+could not read or write. His powers of reasoning and
+discrimination had had little or no cultivation. It was thought
+dangerous to allow him to listen to any evidence that was not of
+the clearest and best kind. It was thought necessary to bring
+all witnesses in person before him and let him hear their voice
+and look into their faces in order to give him the fullest
+possible opportunity to determine whether their testimony was
+worthy of credit. But while our rules of evidence were devised
+for jury trials, they are applied with equal rigidity in all
+trials. A jury may be waived; a single judge may hear the cause;
+and yet he must rule out of consideration whatever would have
+been inadmissible if it had been made the subject of a jury
+trial.
+
+Much that in other countries is helpful in reaching a just
+conclusion is in this manner shut out in American courts. A man
+of the highest character, for instance, may say before twenty
+listeners that he saw a certain person shoot and kill another,
+and state how the whole thing happened. The person thus accused
+is sued for damages under a statute permitting such a remedy by
+the representatives of the man shot. Before the trial the
+witness of the act dies. He was the sole witness. There is no
+other testimony to be had. Under our system of practice, those
+to whom the statement was made cannot be allowed to testify to
+it. Such testimony would be "hearsay." It would put before the
+jury two questions, first whether such a statement was really
+made, and then whether, if made, it was true. The law of
+evidence says that they ought not to be perplexed by questions
+upon questions.
+
+The tendency of American legislation of late years has been
+strongly toward removing some of these artificial bars to getting
+at the truth. The common law thought it dangerous to allow a
+jury to hear any witness not under oath, nor under such an oath
+as implied his belief in the existence of a God, or any witness
+having a pecuniary interest, in the event of the cause. An
+atheist or an agnostic could not testify. The plaintiff and the
+defendant could not. These restrictions have been almost
+everywhere repealed.
+
+The trial judge has also, and necessarily, a large discretionary
+power in excluding testimony which has only a remote bearing on
+the case, and in limiting or extending the examination of a
+witness so as on the one hand to prevent needless repetition, and
+on the other to get out the truth and nothing but the truth. He
+has similar authority to restrain the arguments of counsel within
+reasonable limits.
+
+A trial judge suddenly called upon to make a ruling on some point
+of law in the progress of a trial may make a wrong one. If so,
+he may have an opportunity to correct it at a later stage of the
+proceeding. He has admitted evidence which should have been
+excluded. In his charge to the jury he may instruct them to
+disregard it, and his error will thus be cured. He has excluded
+evidence which should have been admitted. Before the case is
+closed he can change his ruling and allow it to come in. But so
+long as any ruling stands unchanged, whether it is in accordance
+with law or not, it is the law of the case for the purposes of
+the trial. Counsel may endeavor to procure a reconsideration of
+the question, but they cannot ask the jury to adopt a different
+view from that taken by the judge. Their only remedy is by a
+motion for a new trial, after the verdict, or proceedings in
+error before a higher court.
+
+            *       *       *       *       *
+
+Trial courts generally sit during a greater number of hours in
+the day than appellate courts. This is particularly true when
+they are held for short terms in a country shire town. In the
+larger cities where they sit during a large part of the year they
+generally have established hours from which they rarely depart,
+such as from ten in the morning to five in the afternoon, with a
+recess of an hour for lunch or dinner. Formerly nine o'clock was
+a more common hour for opening court. In New York in 1829 the
+sittings were from eight to three, when there was a recess of two
+hours for dinner, and then from five till some time in the
+evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs
+of William Wirt," II, 231.]
+
+The modern tendency everywhere is toward a shortening of the
+hours of daily session, especially when an official stenographer
+is employed.
+
+The clerk keeps a docket-book in which each case returned to
+court is entered and numbered. The entry reads thus:
+
+  John Doe
+      Smith
+
+    vs.
+
+  Richard Roe
+      Jones.
+
+Doe is here the plaintiff and Smith is the attorney who brought
+the suit for him. Roe is the defendant and Jones is the attorney
+who appears in his behalf. If there be more than one party on
+either side the words _et al._ will be added, signifying as
+the case may be, _et alius, et alii_ or et alium,_ or
+should there be three or more defendants, _et als_,
+signifying _et alios_.[Footnote: Another book is kept for
+criminal cases, which are docketed as "The State _v._ John
+Doe," in others as "The People _v._ John Doe," and in the
+federal courts as "The United States _v._ John Doe."] From
+this docket trial lists are made up for each term or session of
+court. Assignments for trial are sometimes made by the court and
+sometimes arranged by the bar subject to the approval of the
+court. Several cases are commonly set down for each day, so that
+if one falls out another may be ready, and in every case so
+assigned the parties must be prepared at their peril to appear
+and proceed at any minute when called upon.
+
+In courts having a large docket of cases it is customary to set
+apart one day in the week for the disposition of incidental
+motions and for arguments on points of law.
+
+When a case is called for trial the plaintiff's counsel opens by
+stating its nature and the main facts as set out in the
+declaration or complaint which he expects to prove. Sometimes
+the pleadings on both sides are read at length. The plaintiff's
+witnesses are then examined orally, after the examination of each
+an opportunity being given for his cross-examination by the other
+party. The testimony of witnesses whose attendance cannot be
+had, which may include any living out of the State (or, in the
+federal courts, over one hundred miles from the place of trial),
+or who are infirm or sick, may be secured by previously taking it
+down out of court in the form of a written deposition, under
+oath, before a magistrate. In such case the adverse party must
+have such notice as to enable him to be present and cross-examine
+the deponent, or to file written cross-interrogatories.
+Depositions are received in the same manner and subject to the
+same objections as oral testimony. In cases in equity a
+considerable part of the testimony is generally presented in
+written form, either by depositions of the kind described or
+certified by a special officer appointed by the court for the
+purpose, who may be called an "examiner."
+
+When the plaintiff's case has been thus presented, his attorney
+announces that he "rests." The defendant's attorney then states
+what he proposes to prove, and produces his evidence, at the
+close of which the plaintiff has the opportunity to meet any
+testimony so produced as to points not covered by the plaintiff's
+case as presented "in chief," by rebutting testimony. Should
+there be any new point brought out in the latter which the
+defendant had not anticipated in presenting his case (which
+rarely happens), he may now be allowed to introduce further
+testimony as to that.
+
+At the close of the evidence the plaintiff's counsel argues for
+his client; the defendant's counsel replies; and the plaintiff's
+counsel is then heard in answer to anything which has been said
+in behalf of the other side.
+
+If the trial has been had before a judge without a jury he then
+commonly takes the written pleadings and makes up his decision at
+his leisure; but if the case is plain may give final judgment on
+the spot.
+
+If the trial has been before a jury the parties argue as to facts
+in dispute to them, but as to the law upon these facts to the
+court.[Footnote: See Chap. XII.]
+
+In some States the arguments on the latter question are made
+before those on the former, and written requests or "prayers" for
+instructions to the jury as to the law are submitted to the
+court, upon which it passes before the jury are addressed. In
+most States there is no such division of argument; judge and jury
+are addressed in turn during the same speech, and counsel first
+know what view of the law is taken by the court when the judge
+gives his final charge.
+
+In every jury trial, after all the evidence is in and the
+arguments concluded, it is the duty of the court to instruct the
+jury as to what the precise controversy is and what disposition
+of the cause it would be permissible for them to make. If in
+view of facts which are undisputed by either party there can be
+in law but one conclusion, the judge should direct them to render
+a verdict accordingly. But if the facts might fairly be found as
+they are claimed to be by either party, he instructs them as to
+the law applicable to the facts so claimed by each. He can, at
+common law and by the practice in most States, give his own
+opinion as to the weight of evidence on any point in controversy.
+
+The common law requires unanimity on the part of the jury before
+they can return a verdict. If it cannot be had they report a
+disagreement, and the case stands over for another trial.
+
+If they agree upon a verdict, it must, to be effective, be
+accepted by the court. This acceptance is ordinarily a matter of
+course, but if the verdict is plainly contrary to the evidence or
+to the law as laid down in the charge, it may be set aside and a
+new trial ordered. If it gives damages which are plainly
+excessive, the judge may set it aside, unless the prevailing
+party enters a _remittitur_ of a certain amount, that is,
+formally stipulates on the record that the verdict shall stand
+only for such sum as the judge may have thus indicated to be what
+seems to him to be the utmost limit that ought to be allowed. In
+some States, if the verdict is unsatisfactory to the judge,
+though not so manifestly against the evidence that he would be
+justified in setting it aside, he may return the jury to a second
+consideration of the cause.
+
+When a verdict is accepted judgment is rendered in accordance
+with it. To this rule there are, however, certain exceptions.
+It sometimes happens that a verdict is returned for a plaintiff
+whose case as stated in his pleadings is one which in law is no
+case; the defendant having failed to take this objection and made
+his contest only on the facts. He then can ask the court not to
+render any judgment upon it. This is technically called a motion
+in arrest of judgment. Again, the verdict may be rendered, by
+reason of the state of the written pleadings, on some immaterial
+point, in favor of one party, when there are other points of
+controlling importance in favor of the other, on which it has
+been admitted that he is in the right. In such case the party
+against whom the verdict is rendered may ask for judgment in his
+own favor notwithstanding the verdict.
+
+Verdicts are ordinarily given directly for the plaintiff or the
+defendant. Printed blanks for such verdicts, one headed
+"plaintiff's verdict," and the other "defendant's verdict," are
+often handed to the jury when they retire, to choose from
+according as they may find the facts. Such a verdict is called a
+general verdict. Occasionally one of a different form is
+returned at the request of counsel and by the permission of the
+court. This is termed a "special verdict," and sets forth the
+particular facts as found by the jury in detail, without finding
+the ultimate issue for either party. This is only proper when
+such a finding would have been simply a legal conclusion from
+these facts. A special verdict leaves it to the court to apply
+the law and render judgment as that requires.
+
+In many causes the testimony is all taken out of court, before
+some officer or arm of the court, who only reports his
+conclusions from it as to the matters in controversy. This is a
+common practice in equity, the case being sent to a "master in
+chancery" for this purpose. In cases of a common law nature the
+consent of both parties is generally required; but with that any
+cause may be disposed of before an arm of the court commonly
+termed an "auditor," "referee" or "committee."
+
+The report of such a hearing sometimes is confined to the facts
+which are found to have been established. In other cases it may
+extend to a provisional decision of questions of law arising on
+those facts. The ultimate decision of any question of law is
+always for the court, and if it accepts the report it is its duty
+to draw the proper legal conclusions from the facts established.
+As to whether the report shall be accepted, and as to the legal
+questions arising upon it, the parties have a right to be heard
+in court. Improper or irregular conduct on the part of the
+officer making the report may be shown as a cause for rejecting
+it. If it is accepted the facts found generally stand as
+conclusively established.
+
+Equity causes are generally tried before a single judge, who
+decides all questions both of fact and law, proceeding in the
+same manner as in a common law cause in which a jury has been
+waived.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XV
+
+
+                   PROBATE COURTS
+
+
+The English common law regarded wills of lands as in the nature
+of conveyances, the due execution of which, if ever called in
+question in a lawsuit, was to be established then and there; but
+if never so called in question, need never be established at all
+by any judicial proceeding. Wills of personal property, on the
+other hand, were to be proved as soon as might be before an
+ecclesiastical court, and unless so established were ineffectual.
+
+This difference in the treatment of the two kinds of wills was
+due to the legal principle that so far as personal rights and
+obligations were concerned the personality of the dead was, after
+a certain fashion, continued in existence by attributing
+personality to their estates. These were to be administered by
+some one as the "personal representative" of the former owner.
+This personal representative discharged his personal obligations
+so, far as there might be personal estate or rights of property
+sufficient for the purpose. He was styled an executor if
+designated by will; an administrator if there were no
+testamentary appointment. A man's lands, however, went upon his
+death straight to his heirs unless he had by will conveyed them
+to some one else. That when he died they were part of his estate
+did not charge them with the fulfillment of his personal
+obligations. For the discharge of these the creditor must resort
+to his personal representative. His heirs occupied no such
+position.
+
+The administrator was always appointed by an ecclesiastical court
+and rendered his accounts to it. Long use and the existence of a
+State church with a regular judicial establishment, made such a
+system tolerable to the English people; but the new conditions
+under which those of them came who planted the American colonies
+made it both intolerable and impossible here.
+
+While most of the colonies had an established church, none had
+bishops or bishops' courts. The bishop of London claimed a
+certain jurisdiction over all, but in none was it recognized as
+extending over the estates of the dead. In the Crown colonies
+the instructions to the Governors generally referred to it as
+sanctioned by the government but not as extending to the probate
+of wills. Some of the Governors were given _ex-officio_
+full probate powers.[Footnote: "The American Jurisdiction of the
+Bishop of London," Transactions of the American Antiquarian
+Society, Vol. XIII, 188, 194, 197.]
+
+The same considerations which early led to the general adoption
+of a recording system for deeds of land in all the colonies
+extended to wills, since they also might convey it. Such
+records, to attain their purpose, had to be public in the fullest
+sense. Nothing was allowed to go upon them which had not some
+kind of authoritative sanction proceeding from the State. Deeds
+were first to be acknowledged before a magistrate. As to wills,
+the practice finally came to be to require them to be established
+once for all as the act of the testator by a court invested with
+special jurisdiction for that purpose, and also over all estates
+of those who die leaving no will. This, if organized for that
+special function particularly, is ordinarily styled a Court of
+Probate, occasionally a Surrogate's Court or Orphans' Court. It
+is sometimes given, and sometimes not given, a certain authority
+over the real property within the State while the estate is in
+settlement.
+
+All real estate left by a decedent is ordinarily made, by
+statute, liable for his debts in case of a deficiency of personal
+property, except so far as it may be charged with a right of
+dower. Even if it has gone into the possession of an heir or
+devisee, the proper Probate Court can order its sale for this
+purpose, if it should appear on the allowance of the
+administration account to be necessary.
+
+The formal establishment or "probate" of a will does not affirm
+the validity of its provisions. It simply adjudges the
+instrument to be a will legally executed by one competent to make
+it and who had a home or property within the territorial
+jurisdiction of the court. Commonly, if not universally, an
+opportunity is given, either in the first instance or by appeal
+to a higher court, to have these questions tried before a jury.
+
+The succession of particular persons to the property of the dead
+is not a matter of natural right. It rests upon positive law and
+is regulated by the authority of the government at its
+pleasure.[Footnote: United States _v._ Perkins, 163
+U. S. Reports, 625.] Probate procedure is therefore wholly
+determined by local legislation and practice.
+
+In many States, probate jurisdiction belongs to the county
+courts. In others it is invested in local courts for lesser
+subdivisions of territory with the purpose of cheapening the
+settlement of estates. In a few these local courts are very
+numerous, all the towns of the State being distributed into small
+groups and each furnished with its Probate Court, the judge of
+which, in many instances, has had no legal training, and receives
+no compensation except stated fees for such business as may
+actually come before him. An appeal is given from his orders to
+a higher court of general jurisdiction. In practice such a
+system works fairly well. If there are suitable lawyers in the
+group of towns forming a probate district, one of them who
+belongs to the prevailing party is generally made the judge if he
+will accept the office, and if he fills it well is apt to be
+re-elected, whichever party may then be uppermost. If a lawyer
+is not appointed and a case of any difficulty presents itself,
+the judge will probably consult some counsel in whom he feels
+confidence, and who will be sufficiently flattered by the request
+to advise him without making any charge for it.
+
+The proper seat of administration is in the State and the local
+subdivision of the State where the dead man belonged.
+Proceedings there affect all his personal property wherever it
+may be found, and generally his real estate situated anywhere in
+the State. Real estate in another State can be affected by
+probate proceedings only if they take place there, by its
+authority. For that purpose "ancillary" administration is often
+taken out, that is, one designed to serve the interests of the
+general succession as administered in the seat of the principal
+administration.
+
+Since the right of a personal representative to act for the
+estate of the dead comes from the positive law of the particular
+sovereign having the proper jurisdiction, and since no law of a
+particular sovereign can be enforced, by virtue of his power or
+anything dependent on it, outside of his territorial
+jurisdiction, it follows that no executor or administrator can of
+right maintain a suit, as such, out of the State from the laws of
+which he derives his authority. He may take possession of the
+goods of the estate found in another State, or collect debts due
+from its citizens if no objection be made, but if forced to claim
+the aid of judicial process he must first prove his title there
+before the appropriate Probate Court by taking out ancillary
+administration, in which case he will probably be compelled to
+give security for the proper discharge of his duties under such
+appointment.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XVI
+
+
+            BANKRUPTCY AND INSOLVENCY COURTS
+
+
+It is within the power of Congress to assume the exclusive
+regulation of bankruptcy proceedings throughout the United
+States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is
+in this country no real difference in meaning between the terms
+bankruptcy and insolvency. Each denotes a _status_ into
+which one unable to pay his debts, as and when they fall due, may
+put himself, or be put by his creditors. The remedy is not
+confined to any particular classes of persons, and no more fault
+is implied on the part of one who is adjudged a bankrupt than on
+the part of one who is adjudged an insolvent.
+
+During most of the history of the United States there has been no
+uniform law on the subject of bankruptcy for the whole country.
+Three bankrupt Acts were enacted by Congress from time to time
+during the first century after the adoption of the Constitution.
+Each followed some serious financial crisis, and was repealed not
+long after the immediate effects of the crisis had passed away.
+They were adopted as a kind of [Greek: seisachtheia] to help
+insolvent debtors to get on their feet again. A later Act passed
+in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large,
+544; 32 _id._, 797.] and as it contains many provisions
+which have been found useful by creditors as well as by debtors,
+it is not unlikely to remain permanently upon the statute-books.
+
+The prosperity of the United States rests mainly on the absolute
+free trade which exists between the several States. That
+necessarily results in innumerable credits extended by citizens
+of one State to those of others, and in immense property
+interests in each State belonging to non-residents. In case of
+insolvency full justice can not be worked out except through the
+legislative powers vested in the United States.
+
+The Act of 1898 allows any one except a corporation to become a
+voluntary bankrupt. Practically any insolvent debtor can be
+thrown into involuntary bankruptcy, except wage earners, farmers,
+incorporated banks, or business corporations owing less than
+$1,000. This is so even if a State court of insolvency has
+already taken charge of his affairs; and if that has occurred it
+is of itself a sufficient reason for bankruptcy proceedings.
+
+Petitions in bankruptcy are preferred to a District Court of the
+United States. Each bankrupt estate is put in charge of one or
+more trustees. They can maintain actions to recover or protect
+it, as a general rule, in the courts of any State as well as in
+those of the United States.[Footnote: See Bardes _v._ Bank,
+178 U. S. Reports, 524.]
+
+Their title does not extend to anything which by the laws of the
+State where the bankrupt belongs is exempt from his creditors.
+Such exemptions differ greatly in different parts of the country.
+In some States certain property of the value of $5,000 may be
+exempt; in others the amount which the debtor can retain is
+comparatively trifling. There is, therefore, no uniformity in
+the result; but there is, nevertheless, uniformity in the rule
+under which the results are reached, and this is enough to
+support the validity of this provision of the statute.[Footnote:
+Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]
+
+The bankrupt may propose a composition to his creditors, and it
+may be accepted by a majority of them in number if they also hold
+the major part of the indebtedness. If such an acceptance is
+confirmed by the court the entire indebtedness is discharged when
+the total amount to be paid (including whatever is necessary to
+discharge all preferred claims) is deposited in court.
+
+A discharge may be granted to every honest bankrupt (whether his
+estate pays anything to his creditors or not), which clears him
+forever of all his ordinary debts. It does not apply to taxes
+nor to liabilities for certain wrongs of an aggravated character;
+nor can two successive discharges in bankruptcy be procured
+within six years unless the first was the result of involuntary
+proceedings.
+
+Whenever there has been no national bankruptcy law in existence,
+the States have been held to be free to pass such insolvent laws
+as they might think proper. During the existence of a national
+bankruptcy law no State insolvent law can be of any force which
+covers the same field.[Footnote: Ogden _v._ Saunders, 12
+Wheaton's Reports, 213; Tua _v._ Carriere, 117
+U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports,
+709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded
+or suspended as a necessary effect of the enactment of the Act of
+Congress, although that contains no express provision to that
+effect.
+
+Most of the States have on their statute-books provisions for a
+permanent system of insolvency proceedings. In some they are as
+favorable to the debtor as the United States bankrupt law of
+1898: in more they are less favorable. Generally such
+proceedings are brought before a court of special jurisdiction,
+constituted both for this purpose and for the settlement of the
+estates of deceased persons and of those who are incapable of
+managing their own affairs. In the older States it is often made
+a condition of a discharge that the creditors shall have received
+a certain percentage of their claims.
+
+The relief which the States are competent to give either to
+debtor or to creditor is very inadequate. The discharge of the
+debtor is of no avail except as against those creditors who were
+subject to the jurisdiction of the court. None are so subject
+except those belonging in the State, or actually taking part in
+the proceedings.
+
+Every bankruptcy or insolvency proceeding is a great lawsuit.
+The discharge is the final judgment in it. It can bind none who
+are not parties to the action. Only those are parties who were
+bound to appear, or who did appear. No one belonging to any
+other State or country can be bound to appear, unless in the rare
+case of a personal service of proper process upon him, made while
+he was within the territorial jurisdiction. Any creditor,
+wherever he may reside, who files a claim against the insolvent
+estate, or receives a dividend from it, makes himself a voluntary
+party. But as against a non-resident who keeps aloof and takes
+no part in the proceedings the discharge is worthless, even in
+the courts of the very State by authority of which it was
+granted.
+
+On the other hand, the creditor gets less aid from the State
+courts than a trustee in bankruptcy. The trustee in bankruptcy
+can sue in any court in the country in which the debtor could
+have sued for the same cause of action. The trustee or assignee
+in insolvency, acting under the appointment of a State court, can
+only sue within that State, unless his title has been fortified
+by a conveyance from the insolvent which would be good at common
+law. So far as his title rests on a law, by which it was taken
+away from the bankrupt and vested in him, it is ineffectual
+wherever that law is ineffectual; and the law of no sovereign is
+effectual of its own force outside of his territorial
+jurisdiction.
+
+*[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337;
+ Hale _v._ Allinson, 188 U. S. Reports, 56.]*
+
+If, therefore, as is commonly true in estates of any magnitude,
+part of the assets can only be recovered by suit in other States,
+there must be ancillary insolvency proceedings there, to clothe
+the principal assignee with the right of action. Should the
+insolvent be the owner of land in another State, the title to
+this can only be transferred in accordance with its law, and a
+foreign assignment in insolvency will be wholly ineffectual. Nor
+will ancillary proceedings in insolvency be allowed to prejudice
+the rights of citizens of the State in which they are instituted
+to any security which they might otherwise have for debts due
+them from the insolvent.[Footnote: Ward _v._ Conn. Pipe
+Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers'
+Reports Annotated, 706; 71 Am. State Reports, 207.] The right,
+however, of every sovereignty to postpone claims under a foreign
+bankruptcy or insolvency to the interests of its own people is
+modified in the United States by the constitutional provision
+that the citizens of each State are entitled to all privileges of
+citizens in the other States.[Footnote: Blake _v._ McClung,
+172 U. S. Reports, 239.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XVII
+
+
+                   CRIMINAL PROCEDURE
+
+
+The American system of criminal procedure rests on the principle
+that the government should decide on the propriety of beginning
+all prosecutions, and then should bring and maintain, at its own
+expense, such as it may deem proper.
+
+The first step ordinarily is the filing by an informing officer
+of a written complaint in the office of some court or with some
+magistrate, upon which a warrant of arrest issues as of course.
+In some jurisdictions original informations in a trial court, as
+distinguished from indictments, can only be filed by leave of
+court first obtained. Such is the rule in the courts of the
+United States.[Footnote: United States _v._ Smith, 40
+Federal Reporter, 755.]
+
+There is no such preliminary consultation with judicial officers
+as characterizes European criminal procedure. The prosecuting
+officer assumes the entire responsibility of initiating the
+prosecution and of giving it the particular form that it may
+assume. He commonly acts only on such matters as are officially
+brought to his attention by constables or other officers of
+police. It is rare that the party injured by an offense
+complains to him personally. Hence many of the lesser offences
+go unpunished, particularly in large cities, because the police
+fail to report them, on account of favoritism or corruption.
+
+The warrant refers to the complaint for its support. Between
+them, the offense charged, the person accused, and the thing to
+be done by the officer who is to make service must be
+particularly stated. "General warrants," that is, warrants of
+arrest or seizure, not specifying the person who is to be
+arrested, nor the particular place where the seizure is to be
+made, are expressly forbidden by the fourth amendment of the
+Constitution of the United States as respects federal courts, and
+as respects those of the States, are generally prohibited by
+their Constitutions.
+
+Any private individual may, by night or day, arrest without
+warrant one whom he sees committing a felony or a breach of the
+peace or running off with goods which he has stolen. If he knows
+that a felony has been committed and has reasonable grounds for
+suspecting that it was the act of a certain person, he may arrest
+the latter, although without personal knowledge of his guilt.
+
+A sheriff, constable, or other peace officer may arrest without
+warrant any one whom he has reasonable ground for suspecting to
+be guilty of a felony, although it may turn out that no such
+felony was ever committed. For any ordinary misdemeanor he could
+not, at common law, arrest without a warrant, unless he
+personally witnessed the wrongful act or was near enough to hear
+sounds indicating what was being done.
+
+In practice, officers of local police arrest freely on mere
+suspicion and with no personal knowledge either that any offense
+has been committed or that, if any, the person taken in charge
+was connected with it. The only risk which they run is of an
+action for damages, and that is slight. If one were brought and
+they showed that they acted in good faith and not wholly without
+cause, the amount recovered would probably be very small, and in
+any case it would be difficult to collect a judgment against one
+of them, as they are generally men of small means.
+
+In some of the original States a justice of the peace or higher
+magistrate, in whose actual presence certain misdemeanors were
+committed, could deal with the offender summarily and sentence
+him to a fine without any written complaint or warrant. This was
+a survival of colonial conceptions of the majesty of official
+station, and the statutes justifying the practice soon became
+practically obsolete.
+
+It is one of the distinguishing features of the English system of
+criminal procedure that any private individual can initiate a
+criminal prosecution, and that prosecutions are generally
+instituted in that manner. In doing so, he exercises a right
+belonging to every member of the general public, and the
+proceeding is, in that point of view, a public one.[Footnote: See
+Maitland, "Justice and Police," 141.] At common law there were
+but two guaranties against thus bringing forward frivolous or
+malicious accusations. The complainant was obliged to verify his
+charge by oath, and he was liable to a civil action if the
+defendant was acquitted and it appeared that there was no
+reasonable ground for the prosecution.
+
+In some of our States, also, if any private individual files a
+complaint under oath before a proper magistrate accusing another
+of a properly specified offense, a warrant of arrest may issue.
+In many there are statutes authorizing _qui tam_ actions to
+be brought by any one. These are actions to recover a statutory
+penalty prescribed for some wrongful act in the nature of a
+misdemeanor. The term _qui tam_ comes from the Latin terms
+of the old English writ used for such proceedings, in which the
+plaintiff describes himself as one _qui tam pro domino rege
+quam pro seipso in hoc parte sequitur_. The plaintiff is
+styled "a common informer," and his action is for the joint
+benefit of himself and of the State, or of some other public
+corporation or officers designated by the statute. He is
+sometimes given an option to sue in the form of a civil action,
+or by an information and the use of criminal process. In
+proceedings of the latter description a warrant issues upon which
+the defendant is liable to arrest.[Footnote: Canfield _v._
+Mitchell, 43 Conn. Reports, 169.] The action may, under some
+statutes, be brought in the name of the government, though by and
+at the cost of the informer. In such case, unless it is
+otherwise provided, he retains the exclusive management of the
+cause as fully as if he appeared as the sole plaintiff on the
+face of the record. If the plaintiff obtains judgment, and
+collects the penalty, he must pay half of it over to the
+government. If he fails, he is personally liable to the
+defendant for the taxable costs of the action. Under such a
+statute, a public prosecuting officer can sue for the entire
+penalty, whenever no action has been brought by a private
+individual.
+
+The tendency of modern American legislation is toward placing the
+collection of penalties for misdemeanors wholly in the hands of
+public officers. The _qui tam_ action is certainly a cheap
+mode of enforcing laws, and one likely to be pressed to a prompt
+issue. As observed by the late Judge Deady, "prosecutions
+conducted by such means compare with the ordinary methods as the
+enterprising privateer does to the slow-going public
+vessel."[Footnote: United States _v._ Griswold, 24 Federal
+Reporter, 361; 30 _id_., 762.] But they appeal to sordid
+motives and are liable to abuse. One who is exposed to such a
+suit often gets a friend to bring it, in order to forestall
+proceedings by others or by the State, and with a view to
+delaying or defeating the collection of the penalty. These
+considerations induced Parliament to restrict the remedy in
+England as early as the reign of Henry VII, and have proved of
+equal force in course of time in the United States.
+
+Justices of the peace and local municipal courts of criminal
+jurisdiction are generally given power to deal finally with a few
+petty offenses, subject to a right of appeal to a court where a
+jury trial can be had. As to all others, their function is, when
+the warrant of arrest has been executed, to inquire whether there
+is probable cause for holding the defendant to answer to the
+charge which has been made against him in a higher court, and if
+they find that such cause exists, to order him to give sufficient
+security that he will appear before it for trial. The question
+is not whether the evidence satisfies them of his guilt, but
+simply whether it is sufficient, in their judgment, to make it
+proper to send him where the charge can be more thoroughly
+investigated by those who have the right to condemn or to acquit.
+In making this inquiry, they hear both sides, if the defendant
+has any testimony to offer. In most States he is now a competent
+witness in his own behalf, provided he desires to testify.
+
+He cannot be interrogated in any court or before any magistrate
+without his consent. This is a weakness in the American system
+of criminal procedure. Under the English system of prosecutions
+by private persons, there are greater objections to subjecting an
+accused person to an examination, and it can now only be had by
+his consent.[Footnote: Maitland, "Justice and Police," 129.] The
+certainty in England also that criminal prosecutions may in any
+case be subjected to the power of a public officer by the
+interposition of the Attorney-General or the Director of Public
+Prosecutions makes it more important to safeguard a defendant who
+may be arraigned for a political offense, and whose prosecution
+may be inspired by reasons of a partisan nature. The magistrates
+upon whom the task of conducting or superintending the
+examination would naturally fall are also largely both
+representative of class interests and unlearned in the law.
+
+In the United States local prosecutors are often of a different
+party from that which controls the State or the United States.
+They have no close connection with those administering the
+general affairs of the government. They hold office for fixed
+terms, not dependent on any shifting of parliamentary majorities
+or change of ministry. Committing magistrates are in a similar
+position. They are also in many cases trained lawyers. If our
+Constitutions could be so modified or so construed as to allow
+them to ask the accused the questions that the sheriff who makes
+the arrest or the reporter who hurries after him to the jail is
+sure to ask, there are many reasons for believing that it would
+oftener prove a safeguard to innocence than an occasion for
+extorted and perhaps inconsiderate or misunderstood admissions.
+And be that as it may, it would certainly lead up to important
+clues, and frequently bring out admissions that were both
+unquestionably true and necessary to establish guilt.
+
+The fifth amendment to the Constitution of the United States, and
+similar provisions in the various State Constitutions, preclude,
+so long as they stand, any radical reform in this direction.
+They speak for a policy that was necessary under the political
+conditions preceding the American Revolution, but which is out of
+harmony with those now existing in the United States. The
+interests of society are greater than those of any individual,
+and yet it is with us the State that is deprived in public
+prosecutions of an equal chance with the accused. While burdened
+with the necessity of proving his guilt beyond a reasonable
+doubt, it cannot, according to the prevailing judicial opinion in
+this country, so much as ask him at any stage of the prosecution
+where he was at the time when the crime charged was committed.
+
+The terms of our Constitutions are not such as necessarily to
+demand the construction which has been generally given them by
+the courts. They have been commonly interpreted with a view to
+making them as helpful as possible to the accused.[Footnote: Boyd
+_v._ United States, 116 U. S. Reports, 616.] Provisions
+against compelling him to testify have been treated as if they
+forbade requesting him to testify. They would seem, on
+principle, quite compatible with a procedure under which the
+committing magistrates should in every case ask the defendant
+when first brought before them whether he desires to make a
+statement, telling him at the same time that he can decline if he
+chooses. Should he then make one, it should be written down at
+length in his own words, read over to him for his assent or
+correction, and properly attested. Many a guilty man is now
+acquitted whose conviction could have been secured on what such a
+paper would have disclosed or have given a clue to ascertaining.
+Such an inquiry has long been the English practice.
+
+The hearing before the committing magistrate, if any contest is
+made, generally does not take place until some time after the
+arrest. Each party is apt to wish time to prepare for it.
+Meanwhile, the defendant can generally claim the privilege of
+release on bail, unless the crime be capital and the
+circumstances strongly point to his guilt. Here our practice
+differs from that of an English court of inquiry. While there
+bail must be allowed in case of misdemeanors and may be in case
+of felonies; the amount required is frequently so large as to be
+prohibitory.[Footnote: Maitland, "Justice and Police," 131.]
+
+The essence of bail is that the prisoner should enter into an
+obligation, together with one or more others of pecuniary
+responsibility as his sureties, to appear whenever he may be
+called for in the course of the pending proceeding, on pain of
+forfeiting a certain sum of money. All our Constitutions forbid
+the taking of excessive bail. The sum should be large enough to
+give a reasonable assurance that he will not allow it to be
+forfeited. In fixing the amount, which in each case is left to
+the good judgment of the officer before whom it is taken, special
+regard should be had to the gravity of the offense, the nature of
+the punishment in case of conviction, and the means of the
+defendant or his friends. If too large an amount is demanded,
+the defendant can get relief on a writ of _habeas corpus_
+issued by some superior judge.
+
+This privilege of bail in most States extends to, or at the
+discretion of the court may be allowed at, any stage of a cause,
+not capital, even after a final judgment and sentence, provided
+an appeal has been allowed with a stay of execution.
+
+Bail is given orally or in writing, according to the practice of
+the particular State. When given orally, it is termed a
+recognizance. This is entered into by the personal appearance of
+those who are to assume the obligation before a proper magistrate
+or clerk of court, and their due acknowledgment before him that
+they do assume it. He makes a brief minute of the fact at the
+time, from which at any subsequent time he can make up a full
+record in due form. When bail is given in writing, the
+obligation is prepared in behalf of the government and executed
+by the parties to it.
+
+Whoever gives bail as surety for another is by that very fact
+given a kind of legal control over him. He can take him into
+actual manual custody without any warrant, and against his will,
+for the purpose of returning him to court and surrendering him to
+the sheriff. This right is a common law right, arising from the
+contract of suretyship, and is not bounded by State lines. If
+the principal absconds from the State, the surety can have him
+followed and brought back without any warrant of arrest.
+
+The amount of the bail, should it be forfeited, is payable either
+to the government or to some other representative of the public
+interests, as may be prescribed by statute. If the sureties have
+any equitable claim to relief by a reduction of the amount, there
+is often given by statute or judicial practice a right to the
+court in which the obligation was given or before which its
+enforcement is sought to grant a reduction from the sum which
+would otherwise be due upon it.
+
+When a committing magistrate requires the defendant to give bail
+to appear in a higher court, and he does not give it, he will be
+committed to jail to await his trial there. In this court he is
+sometimes tried on the complaint upon which he was originally
+arrested: oftener a new accusation is prepared. This may be
+either an information or an indictment.
+
+At common law, no one could be tried for a felony unless a grand
+jury were first satisfied that there was good ground for it. The
+grand jury consisted of not more than twenty-four inhabitants of
+the county, and in practice never of more than twenty-three,
+summoned for that purpose to attend at the opening of a term of
+court. To authorize a prosecution the assent of twelve of them
+was required. They heard only the case for the prosecution, and
+heard it in secret, after having been publicly charged by the
+court as to the nature of the business which would be brought
+before them. The court appointed one of them to act as their
+foreman, and he reported back their conclusions in writing, and
+in one or the other of two forms--by presentment or indictment.
+
+A presentment was a presentation, on their own motion, of an
+accusation against one or more persons. They were the official
+representatives of the public before the court, and it might well
+be that offenses had occurred, and become matters of common
+notoriety, prosecutions for which no one cared or dared to bring.
+Such a proceeding was comparatively rare.
+
+The common course was to pass only on such written accusations as
+others might submit to their consideration. These were called
+bills of indictment. If the grand jury believed that there were
+sufficient grounds for upholding any of them, their foreman
+endorsed it as "A true bill," and it then became an indictment.
+If, on the other hand, they rejected a bill of indictment as
+unfounded, the foreman indorsed it as "Not a true bill," or with
+the Latin term "_Ignoramus_," and this was the end of it.
+
+The organization and functions of the American grand jury are
+similar, except that here we have prosecuting attorneys to
+procure the presence of the necessary witnesses and direct the
+course of their examination. In the Federal courts almost all
+criminal accusations, great or small, are, and by the fifth
+amendment to the Constitution of the United States all charges of
+infamous crimes must be, prosecuted by presentment or indictment.
+In most of the States the intervention of a grand jury is
+requisite only in case of serious offenses; in some only in
+capital cases. It is obvious that it is less needed here than in
+England, since here it is not within the power of any private
+individual to institute criminal proceedings against another at
+his own will, but they are brought by a public officer
+commissioned for that very purpose and acting under the grave
+sense of responsibility which such authority is quite sure to
+carry with it. The grand jury, however, has its plain uses
+wherever political feeling leads to public disorder. It has
+also, since the Civil War, been found an effective restraint in
+some of the Southern States, whether for good or ill, upon
+prosecutions for violations of certain laws of the United States,
+brought against members of a community in which those laws were
+regarded with general disfavor.
+
+Prosecutions by information are those not founded on a
+presentment or indictment. The information is a written
+accusation filed in court by the prosecuting officer. In certain
+classes of cases, the leave of the court must be first asked in
+some jurisdictions. It is not necessary that it be supported by
+any previous statement or complaint under oath. The officer who
+prepares it acts under an oath of office, and that is deemed
+sufficient to give probability to whatever charges he may make.
+
+If the defendant has already been bound over by a committing
+magistrate, such an information may take the place of the
+original complaint on which the arrest was made. If he has not
+yet been arrested, or if he was arrested and discharged by such a
+magistrate, the filing of an information is accompanied by a
+request for the issue of a warrant for his arrest from the court.
+Such a paper is called a bench warrant, and is granted whenever
+necessary, whether upon a presentment, indictment, or
+information.
+
+An information may be amended by leave of the court at any time.
+A presentment or indictment cannot be. They, when returned to
+court, are the work of the grand jury, and they end its work. An
+amendment of a legal process can logically be made only by the
+hand which originally prepared it. This rule leads to the escape
+of many a criminal. If prosecuted by indictment, the case
+against him must be substantially proved--in whole or part--as
+there stated, or he goes free. Prosecuting officers therefore
+naturally prefer to proceed upon information whenever the law
+permits it.
+
+The intervention of a grand jury is also often the necessary
+cause of a delay alike prejudicial to the State and to the
+prisoner. It can only be called in when a court is in session,
+by which it can be instructed as to its duties and to which it is
+to report its doings. Months often elapse in every year when no
+such court is in session. For this reason, in case of a poor man
+under arrest on a charge of crime, who cannot furnish bail, it
+would often be much better for him were his liability to be
+brought to trial to be settled promptly by a single examining
+magistrate. At the hearing in that case also he has a right to
+be present and to be heard. Before a grand jury he has no such
+right.
+
+In most States, the great majority of indictments are against
+those who have already been committed on a magistrate's warrant
+to answer to the charge, should an indictment be found. The
+accused thus has two chances of escape before he can be put on
+trial for the charge against him: one by a discharge ordered by
+the committing magistrate, and one by the refusal of the grand
+jury to return "a true bill." A grand jury is more apt to throw
+out a charge as groundless than a single magistrate. He feels
+the full weight of undivided responsibility. If he err by
+discharging the prisoner, he knows that it may let a guilty man
+go free, untried. If he err by committing him for trial, he
+knows that, if innocent, the jury are quite sure to acquit him.
+He acts also in public. The whole community knows or may know
+the proofs before him, and will hold him to account accordingly.
+On the other hand, in the grand jury room all is secret. The
+prosecuting attorney, if admitted, does not remain while the
+jurors are deliberating over their decision. No one outside
+knows who may vote for and who against the return of an
+indictment. Every opportunity is thus afforded for personal
+friendship for the accused or business connection with him to
+have its influence. Judges know this, and in their charge often
+emphasize the importance and gravity of the duty to be performed.
+In 1903, the prosecuting officer in one of the small counties in
+Kentucky had prepared indictments against several men of some
+local prominence for arson and bribery. A special grand jury was
+summoned to act upon them. There was reason to expect some
+reluctance on the part of several. Of the witnesses for the
+State some were no less reluctant. There was great public
+excitement in the court town. One witness came there over ninety
+miles by rail hidden, for fear of his life, in a closed chest in
+the car of an express company. The grand jury were told by the
+court that they must make their inquiry a thorough one and indict
+without fear or favor every person in the county who ought to be
+indicted. "If," the judge added, "the evidence calls for
+indictments and you don't make them, they will be made anyway.
+If you do not do your full duty, I will do mine by assembling
+another grand jury." They did theirs under these stirring
+injunctions, and the indictments were promptly found.
+
+After the indictment or information comes the arraignment. This
+is bringing the defendant before the court and, after the charge
+made against him has been read, directing him to plead to it.
+Before the plea is entered, if he has no counsel, he is asked if
+he desires the aid of one, and if he responds that he does (or
+should he not, if the court thinks he ought to have counsel),
+some lawyer will be assigned to that duty. Some of the younger
+members of the bar who are present are generally desirous of
+being so assigned to defend those who have no means to employ
+such assistance. The court ordinarily makes the assignment from
+among their number, but in grave cases often appoints lawyers of
+greater experience and reputation. No one who is so assigned is
+at liberty to decline without showing good cause for excuse. A
+small fee is often allowed by statute in such cases from the
+public treasury. Statutes are also common providing that
+witnesses for the defense may be summoned at the cost of the
+government, if the defendant satisfies the court that their
+testimony will be material, and that he is unable to meet this
+expense.
+
+In the federal courts, in capital cases, the defendant must be
+furnished with a copy of the indictment and a list of the jurors
+summoned to court and of the government witnesses, at least two
+days before the trial.
+
+Whether impanelling the jury for the trial of a case is a long or
+short process will depend largely on the intelligence and
+firmness of the judge who holds the court. Each side can
+challenge a certain number of the jurors in attendance without
+stating any reasons for it, as well as any and every one of them
+for cause shown. If a juror has formed an opinion as to the
+guilt of the accused so definite as to amount to a settled
+prejudice against him, he is incompetent. In grave cases the
+prisoner's counsel will often seek to examine every juror whose
+name is drawn at great length as to whether he has such an
+opinion. A capable judge will keep such an inquiry within close
+limits.
+
+In 1824, an indictment for murder was found in Kentucky against a
+son of the Governor. The case was one which excited great public
+interest, and was talked over from one end of the State to the
+other. The result was that when the trial came on it was found
+impossible, term after term, to make up a jury of men who, from
+what they had heard or read, had not formed what the defense
+claimed and the court thought to be a sufficiently firm opinion
+as to the guilt or innocence of the accused to justify their
+exclusion. The legislature was finally appealed to for relief
+and passed a statute that an opinion formed from mere rumor
+should not be a ground of challenge. The case was then, in 1827,
+taken up for the ninth time, but with the same result, whereupon
+the defendant's father gave him a pardon, on the ground that "the
+prospect of obtaining a jury is entirely hopeless," and that he
+had "no doubt of his being innocent of the foul
+charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,
+336.]
+
+When a capital case is coming on, great pains will often be taken
+by the prisoner's counsel to ascertain the characteristics and
+disposition toward his client of each of the jurors who have been
+summoned to court. This has sometimes been carried to the extent
+of trickery, particularly in some of the Southern States. Agents
+have been sent over the county to see every man capable of jury
+service. There is some ostensible reason given for the call. He
+is perhaps asked to buy a photograph of the accused; perhaps to
+contribute to a fund to provide him with counsel. This naturally
+leads to some expression of opinion in regards to the charge made
+against him, and if the man thus "interviewed" should be
+afterwards offered as a juror, he is challenged or not challenged
+according to the information so obtained.
+
+In every criminal case the defendant's guilt must be proved
+beyond a reasonable doubt. A mere preponderance of evidence is
+not enough. In other respects the rules of evidence are
+applicable which obtain in civil cases.
+
+If a verdict of Not Guilty is returned, the court orders the
+discharge of the prisoner, as a matter of course, unless
+provision has been made by statute for an appeal by the State for
+errors of law committed on the trial. No such appeal can be
+allowed for the purpose of obtaining a new trial on the ground
+that the jury came to a wrong conclusion on the facts. This
+would be to put the defendant twice in jeopardy, which our
+Constitutions generally forbid. Even under the practice
+prevailing in the Philippine Islands, where they have no juries,
+and an appeal to a higher court for a new trial on the merits has
+always been allowed to either party in a criminal case, as a
+matter of right, this rule is held to apply.[Footnote: Kepner
+_v._ United States, 195 U. S. Reports, 100.]
+
+If the verdict is one of Guilty, the sentence is pronounced by
+the judge. He generally has a broad discretion as to the extent
+and nature of the punishment. For many offenses, either fine or
+imprisonment or both may be imposed, according to his best
+judgment. For most, when imprisonment is ordered, it may be for
+a term such as he may prescribe within certain limits, as, for
+instance, from one to five years. In a number of States of late
+years the judge is permitted in such a case to sentence for not
+less than one year, and it is left to some administrative board
+to determine later how much, if any, longer the confinement shall
+last, in view of the circumstances of the offense, the character
+of the prisoner, and his conduct since his sentence.
+
+A considerable and increasing group of penologists is pressing
+upon our legislatures the extension of the principle of the
+"indeterminate sentence" by removing the limit of a
+_minimum_ term. It is doubtful if such a change would
+satisfy the constitutional requirement of a trial by jury. That
+in its nature involves a trial before a judge and a sentence
+imposed by the court upon the verdict. Can that be deemed a
+judicial sentence to imprisonment which is a sentence to
+imprisonment during the pleasure of certain administrative
+officials?  Judgments are to ascertain justice. To do this they
+must be themselves certain. In a purely indeterminate sentence
+there is no certainty until it has been made certain by the
+subsequent action of the administrative authorities. It may turn
+out to be imprisonment for life, and the advocates of this mode
+of action frankly say that such ought to be the disposition of
+all incorrigible and habitual criminals. If so, ought not the
+fate to be meted out to them by judicial authority?  Can anything
+less than that be considered as due process of law?
+
+An experienced and able judge seldom makes any serious error in
+grading the punishment of offenders who have been tried before
+him. The sentence is not pronounced until they have been fully
+heard as to all circumstances of extenuation, nor until the
+government has been heard both as to these and as to any
+circumstances of aggravation. The sentence, if the offense be a
+grave one, cannot be pronounced except in the presence of the
+convicted man. He has an opportunity for the last word.
+
+Judges who are neither able nor experienced frequently impose
+sentences too light or too severe. We have too many such judges
+in the United States. The real remedy for the evil is to choose
+better ones. As between judges and boards of prison officers or
+of public charities, the judge always has the great advantage of
+having tried the case and heard the witnesses. He ought
+therefore to be best able to fix the term of punishment.
+
+The punishment to which one can be sentenced on a conviction of
+crime is now generally limited to fine or imprisonment. For
+graver offenses both may be inflicted: for murder, and in some
+States for a very few other crimes the penalty is death. The
+policy of the older States long was to require those whose
+offenses were directed against property to make good the loss of
+the injured party. Whipping was also often added, and it was
+formerly a common mode of punishment throughout the country for
+all minor offenses. Every colony used it. It was authorized by
+the original Act of Congress in 1790 on the subject of crimes,
+and was not abolished for the courts of the United States until
+1839. It was provided for in the early statutes of most of the
+States, and in some still is. Until 1830, it was the only mode
+of corporal punishment allowed in Connecticut for the general
+crime of theft. For boys it is often the only punishment that
+can properly be administered. To fine them is to punish others.
+To imprison them is, in nine cases out of ten, to degrade them
+beyond recall. Virginia, in 1898, reverted to it as an
+alternative to fine or imprisonment in the case of boys under
+sixteen, provided the consent of his father or guardian be first
+given. Such a statute seems absolutely unobjectionable from any
+standpoint. It is often asserted that whipping is a degrading
+and inhuman invasion of the sanctity of the person. To shut a
+man up in jail against his will is a worse invasion. But as
+against neither is the person of a criminal convict sacred. He
+has justly forfeited his right to be treated like a good citizen.
+Whether whipping is a degradation or not must depend much on the
+place of its infliction. The old way in this country, as in
+England, was to inflict it in public. This puts the convict to
+unnecessary shame. Let him be whipped in private, and his only
+real degradation will be from his crime. So inhumanity is
+needless. A moderate whipping only should be allowed. That is
+far more humane to most men than a term of jail; that is, it
+detracts less from their manhood than the long slavery of
+confinement.
+
+Of late years there has been a decided movement in the United
+States toward a return to the penalty of whipping for atrocious
+cases of assault or offenses by boys.[Footnote: See Paper on
+"Whipping and Castration as Punishments for Crime," _Yale Law
+Journal_, Vol. VIII, 371, and President Roosevelt's Message to
+Congress in December, 1904.] It is probable that it will find
+more favor hereafter in the South as a punishment for negroes.
+Most of their criminals are of that race. The jails have no
+great terrors for them. They find them the only ground where
+they can mingle with their white fellow-citizens on terms of
+social equality. But they are sensitive to physical pain. A
+flogging they dread just as a boy dreads a whipping from his
+father, because it hurts. The South may have been held back from
+applying this remedy in part from the apprehension that it might
+be considered as reinstating the methods of slavery. No such
+criticism could fairly be made. Confinement in jail is
+involuntary servitude, and involuntary servitude is slavery.
+Whipping is a substitute for it: it saves from slavery.
+
+In several of the Southern States, instead of imprisonment,
+ordinary offenders are set at work in the open air, either on
+convict farms, or in chain gangs on the highway, or in the
+construction of railroads or similar works. This plan prevails
+in Georgia and Arkansas to such an extent that very few are
+confined in the penitentiary. The convicts in these States are
+mainly negroes. When, as has been at times permitted, they have
+been turned over to private employers to work in this manner for
+wages paid to the State, many of the abuses of slavery have
+reappeared, and public sentiment is becoming decidedly adverse to
+the allowance of such contracts for convict labor. Similar
+objections do not lie in their employment on State farms, and in
+North Carolina and Texas this has been tried with considerable
+success.[Footnote: See "Bulletin de la Commission Pénétentiaire
+Internationale," 5th series, II, 179.]
+
+Special courts have been organized, or special sessions of
+existing courts directed, for the disposition of prosecutions
+against children in several of the States and in the District of
+Columbia during the past few years. The judge holding such a
+"Juvenile Court" or "Children's Court" is expected to deal with
+those brought before him rather in a paternal fashion. An
+officer is generally provided, known as a Probation Officer, to
+whom the custody of the accused is largely committed both before
+and after trial. He is to inquire into each case and represent
+the defense at the hearing. In case of conviction, the child
+can, on his advice, be released on probation, or the sentence can
+be suspended.
+
+For errors of law committed by the judge in the course of the
+trial the defendant commonly has a right of appeal. Until 1891
+this was not true in the federal courts, and a man convicted and
+sentenced there under an erroneous view of the law and in
+disregard of any of his rights had no remedy, even in a capital
+case. It was so in Delaware until 1897.
+
+In some States there is a right of appeal in favor of the
+government as well as of the defendant for errors of law, and
+this even after a jury trial ending in a verdict of acquittal.
+It is there held that the common constitutional provision that no
+man shall be put twice in jeopardy of life or limb is not
+contravened by the allowance of such a remedy. The writ of error
+is a stage in the original prosecution. One acquitted of crime
+is deemed not to be put out of jeopardy unless he has been
+acquitted according to the forms of law, and after a trial
+conducted according to the rules of law. What these rules are,
+in case of dispute between the government and the accused, must
+be determined by such proceedings in the cause as the legislature
+may deem best adapted to ascertain them in an authoritative
+manner. Such a mode may properly be furnished by allowing a
+resort to a higher court, and a resort in favor of either
+party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
+Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
+_J_., in People _v._ Olcott, 2 Day's Reports, 507,
+note.] In other States such a review, in favor of the
+government, of the conduct of the cause is only supported when
+the exceptions taken are founded on what may have preceded the
+trial.[Footnote: People _v._ Webb, 38 California Reports,
+467.] This distinction is approved by the Supreme Court of the
+United States.[Footnote: Kepner _v._ United States, 195
+United States Reports, 100, 130.]
+
+For errors in conclusions of fact the defendant, in certain
+cases, has a remedy on a petition for a new trial, but in no case
+can the State ask for one. This is true even though the trial
+was not had to a jury.
+
+There is no doubt that new trials are too often granted in the
+United States in favor of those who have been convicted of crime.
+Particularly is this true when they are ordered because of some
+irregularity of procedure or slip in the admission or exclusion
+of evidence. A verdict, whether in a civil or criminal case,
+should stand, notwithstanding it was preceded by erroneous
+rulings or omissions of due form, unless the court of review can
+see that substantial injustice may on that account have been
+done.[Footnote: See Paper on "New Trials for Erroneous Rulings
+upon Evidence," by Professor J. H. Wigmore, in the _Columbia
+Law Review_ for November, 1903.] To release a convicted
+criminal for error in mere technicalities not really affecting
+the question of his guilt tends to make the people lose faith in
+their courts and resort to lynch law as a surer and swifter mode
+of punishment.
+
+Appeals in criminal causes are, however, much rarer and also much
+less often successful than is generally supposed. About eleven
+thousand persons were convicted of felonies in the County Courts
+of New York during the five years from 1898 to 1902, inclusive of
+each, and of these less than nine in a thousand pursued an
+appeal, not a third of whom secured a judgment of
+reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
+for March, 1904.] In Massachusetts, about a hundred thousand
+criminal prosecutions are annually brought, and the appeals to
+the Supreme Judicial Court from sentences of conviction rarely
+exceed twenty to twenty-five in number, and upon these in each of
+the years 1902 and 1903 only two new trials were
+granted.[Footnote: _Law Notes_ for December, 1904.]
+
+A comparison of the number of those put to death in the United
+States for crime by the courts, and on a charge of crime by a
+mob, for the past three years shows these results:
+
+             Executed by
+          Judicial Sentence.   Lynched.   Total.
+
+  1901          118              125       243
+  1902          144               96       240
+  1903          123              125       248
+
+A large majority of those lynched were negroes, and met their
+fate in the South. It is extremely difficult to secure a
+conviction of those who take part in such acts of violence. They
+commit the crime of murder, and the penalty is so heavy that
+their fellow-citizens are unwilling to subject them to it. The
+offenses with which the men whom they kill are charged are also
+generally of a nature which make them peculiarly offensive to the
+community. Many are negroes charged with the rape of a white
+woman, to whom it would be intensely disagreeable to testify
+against them. Not a few are men under sentence of death, who it
+is feared may escape or delay punishment by an appeal.
+
+Such considerations cannot excuse, but present some slight
+palliation for those acts of mob violence by which the people of
+the United States are so often disgraced. It may be added that
+out of the Southern States they are quite rare, and in the
+Northeastern States substantially unknown. Of the one hundred
+and four lynchings in 1903, only twelve occurred in the North or
+West.
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XVIII
+
+
+       THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT
+
+
+A public officer, whose duties are mainly other than judicial,
+may be invested with judicial power to be exercised only in
+certain causes which may be brought before him, in disposing of
+which he acts as a court. Such an one is a judge only when he is
+holding court. When it is adjourned, no court exists of which he
+could be a judge. Justices of the peace and parish judges are
+officers of this description. But ordinarily judges are
+appointed to hold some regular court, with stated sessions, which
+is always in existence. To such a judge considerable powers of a
+judicial nature are usually given for exercise when his court is
+not in session.
+
+The writ of _habeas corpus_, for instance, may be issued
+either by a court of record or by a judge of such a court, if
+applied for when the court is not in actual session. In the
+latter case, the return of the writ is made to him, the trial had
+before him, and judgment rendered out of court, or, as it is
+styled, "at chambers." While sitting for such a purpose, he may
+be regarded as exercising functions which really belong to the
+court and acting as a part of it.
+
+Statutes often, in case of a court having but a single judge,
+give him power to hold special courts whenever he may think
+proper. In such a case no very definite line is drawn between
+what judicial business the judge does and what the court does.
+While the proper and normal constitution of a court of record
+requires the attendance not only of a judge, but of a clerk and a
+crier or sheriff's officer, the only one whose presence is
+indispensable is the judge. A District Judge of the United
+States has this power of holding special courts, and is a court
+wherever and whenever he pleases to transact judicial business,
+whether he describes himself in such papers or process as he may
+issue, as court or judge.[Footnote: The U. S. _v._ The
+Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]
+
+The judges of courts having equitable jurisdiction act often out
+of court in the issue of temporary injunctions. These are writs
+directing some one to refrain from doing a certain act. They
+generally direct it under pain of a specified pecuniary
+forfeiture; but whether they do so or not, disobedience is
+punishable also by arrest and imprisonment, being treated as a
+contempt of court. The need of an injunction is often immediate.
+It would be worthless unless promptly granted. When, therefore,
+no court having power to issue one is in actual session, there
+would be a failure of justice if the judge could not act to the
+extent of granting temporary relief. Whether the injunction
+should be made permanent is a subsequent question, to be
+determined after a full hearing by the court. It may, in urgent
+cases admitting of no delay, be issued _ex parte_, but
+ordinarily the defendant is notified and has an opportunity for a
+summary hearing, either orally or on affidavits, before action is
+taken.
+
+A similar power often vested in judges at chambers is that of
+appointing a temporary receiver; that is, of some one to take
+temporary charge of property in behalf of and as agent of the
+court, when this seems necessary in order to preserve it. If the
+affairs of a commercial partnership get into such a condition
+that the partners cannot agree on the mode of conducting it, such
+an appointment can be made to tide matters along for the time
+being. So in case of an insolvent debtor his estate may, under
+certain circumstances, be placed in a receiver's hands by a
+summary order, issued out of court.
+
+It may be added that by the statutes both of the United States
+and of all the States many powers of a _quasi_-judicial
+character are conferred on judges to be exercised out of court,
+such as those of ordering the arrest of one suspected of criminal
+conduct, examining into the charges against him on his arrest,
+and admitting him to bail or sending him to jail for want of it.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XIX
+
+
+                  APPELLATE COURTS
+
+
+For each of the States and Territories as well as for the United
+States there is one supreme court of appellate jurisdiction.
+
+The Supreme Court of the United States can entertain original
+actions of certain kinds.[Footnote: See Chap. IX.] A few also of
+the State supreme courts of appeal have a limited original
+jurisdiction. This is generally confined to equity causes,
+election contests and certain actions for extraordinary relief
+known as prerogative writs, such as informations in the nature of
+_quo warranto_ and writs of mandamus.
+
+The term "appeal" in its strictest signification is confined to a
+removal of a cause after trial to a higher court for a new trial
+on the merits.
+
+It is also and now more commonly used to denote such a removal
+for the purpose only of inquiring whether any legal errors were
+committed on the trial or are to be found in the judgment. In
+this sense it covers proceedings by a writ of error, and any
+other mode of reviewing questions of law.[Footnote: See the
+_Federalist_, No. LXXXI.] If it does not appear from the
+record of the lower court that any of the errors that may be
+claimed (or "assigned," as the phrase is) exist, the judgment is
+affirmed; otherwise the cause is sent back for a new trial or, if
+the objections are fundamental and fatal to its maintenance, is
+dismissed.
+
+Appellate courts are of many kinds. Some are such exclusively;
+some mainly. In others the functions of entertaining appeals is
+a minor one, most of their time being occupied in trying original
+causes. An appeal from judgments of a justice of the peace, for
+instance, is generally given on the merits to county courts, but
+the greater part of the litigation before them comes there in the
+first instance. So the judgments of county or other minor courts
+are often reviewable on appeal for errors in law in some superior
+court which, like them, is principally occupied in the exercise
+of an original jurisdiction.
+
+When the American colonies passed into States, as has been seen,
+they were habituated to the thought of a supreme controlling
+authority exercised by one tribunal of a judicial character of
+last resort. The judicial committee of the Privy Council had
+administered this sovereign power for them, and for a long period
+of years, with general acquiescence.[Footnote: See Chap. I.] The
+uniformity of result thus obtained was acknowledged to be
+advantageous. It was now necessary to replace them by American
+courts of last resort, and it was not difficult in doing so to
+improve upon the English model. The time had come for
+separating, as far as it could conveniently be accomplished,
+judicial from political power.
+
+Virginia was the first to act. A few days before the Declaration
+of Independence she adopted a Constitution (under which the
+government, was carried on until 1830, though it was never
+formally submitted to or ratified by the people) providing for a
+separate judiciary headed by a Supreme Court of Appeals whose
+judges should hold office during good behavior, and be ineligible
+to the Privy Council or General Assembly.
+
+This divorce of judiciary and legislature was not the plan
+universally followed.
+
+New Jersey, in which as a colony the Governor and Council had
+possessed an appellate power like that vested in the English
+House of Lords, was so well satisfied with this arrangement as to
+continue it in her Constitution of July 3, 1776, and up to the
+present time puts upon her Supreme Court a certain number of
+judges who give but a part of their time to this work, and are
+not necessarily (though in practice of late years they generally
+have been) lawyers.
+
+New York, in her Constitution of 1777, pursued a somewhat similar
+plan. Her highest court was one "for the trials of impeachments
+and the correction of errors." Its members were the Senate with
+the Chancellor and judges of the Supreme Court. When a judgment
+of that court was brought up for review the judges were to state
+their reasons for giving it, but had no vote. This scheme was
+adhered to with little modification until 1846. What made it
+tolerable was that many of those elected Senators were naturally
+lawyers, and that to be in the Senate soon became the ambition of
+a lawyer with any desire to know how it would feel to be a judge.
+Able and learned opinions were pronounced by such men in
+exercising their judicial functions, and some of them in the New
+York reports are still frequently the subject of reference as
+clear and satisfactory statements of legal principles.
+
+Connecticut, in 1784, when she instituted for the first time a
+court of last resort, made it up of the Lieutenant Governor and
+the twelve Assistants, and soon added to it the Governor himself.
+A plan of this kind was likely to work in that State, as in New
+York, better than it looked. Lawyers by this time had come to
+fill most of the higher offices of state. Although the
+Assistants were elected annually it was under a complicated
+scheme of nomination, which, unless in case of a political
+revolution, ensured re-election in every case. A majority of the
+Assistants were always members of the bar. They were also
+Federalists from the beginning of party divisions in the country.
+Naturally, the Republicans found such a state of things
+intolerable. All the power of government in Connecticut, said
+one of those who were celebrating Jefferson's second election to
+the Presidency in 1804, "together with a complete control of
+elections, are in the hands of seven lawyers who have gained a
+seat at the council board. These seven men virtually make and
+repeal laws as they please, appoint all the Judges, plead before
+those Judges, and constitute themselves a Supreme Court of Errors
+to decide in the last resort on the laws of their own making. To
+crown this absurdity, they have repealed a law which prohibited
+them to plead before the very court of which they are Judges."
+Attacks like this were too just to be resisted, and two years
+later the Governor, Lieutenant-Governor and Assistants were
+replaced by the Judges of the Superior Court.
+
+Constitutional provisions that the right of trial by jury shall
+be preserved inviolate preclude, as a general rule, the
+establishment of courts in which the judges can make a final
+disposition of petty causes which turn on disputed facts. An
+appeal from their decision must be allowed, and a new hearing
+given on the merits in a court furnished with a jury. Under the
+Constitution of the United States a trial by jury cannot be
+claimed in civil cases at common law involving a demand of not
+over twenty dollars, and in most of the older States it cannot be
+in cases where it was not a matter of right prior to the adoption
+of their Constitutions.
+
+The verdict of a jury can only be reviewed on its merits by a
+court of last resort where it was clearly and palpably against
+the weight of evidence, and in order to do this the whole
+evidence given in the trial court must be certified up.
+
+Where a judgment has been rendered on a finding of facts made by
+a judge in a cause of an equitable nature, this finding can, in
+the courts of the United States and in many of the States, be
+reversed on any point on appeal. For this purpose also all the
+evidence that was before him, or all that is pertinent to
+questions involved, must be reported to the court above.
+
+Except so far as the right of trial by jury may require it, it is
+a matter of legislative discretion whether to give any remedy in
+a higher court for the errors of a lower one.
+
+In some States an appeal is given from a judgment of an inferior
+court even though rendered on the verdict of a jury, to a higher
+one where another trial may be had before a judge of presumably
+greater ability. In many States errors in law of petty courts
+may be reviewed in higher trial courts. In a few of the larger
+ones, as in the United States,[Footnote: See Chap. IX.] errors
+in law of the higher trial courts, in a considerable class of
+cases, are finally disposed of in an intermediate appellate
+court, constituted to relieve the court of last resort from an
+overweight of business.
+
+       *       *       *       *       *
+
+Ordinarily it is the statutory right of a defeated litigant to
+take an appeal, provided he can state any colorable ground of
+exception. In some jurisdictions he is required to obtain the
+approval of the trial court or else of some member of the
+appellate court. There are many judges who think that such a
+practice should be universally adopted. It would certainly tend
+to relieve the dockets of appellate tribunals, and to bring
+lawsuits to a speedier end. If one were sure that the judge to
+whom application was made for an approval of the appeal would
+always act intelligently and impartially, such a precaution
+against useless litigation would be admirable. But the trial
+judge is not in a position that naturally leads to an
+unprejudiced judgment. The appeal is asked on account of
+mistakes of his, and he will not be apt to think that he has made
+any. The judge of the appellate court will be impartial and
+unprejudiced, but he will have a very imperfect knowledge of the
+case. He could only be asked to make a hasty examination of the
+points involved, and it would be quite possible for him to reject
+as frivolous grounds which, on a lengthy investigation after a
+full argument, might have seemed to him substantial. In view of
+these objections, and of the unequal attainments and experience
+of the different judges of our courts, the bar are generally in
+favor of making appeals a matter of right; and what the bar
+favors in such a matter the legislature usually enacts.
+
+       *       *       *       *       *
+
+The opinions and judgments of all American courts of last resort
+are officially reported for publication. At first they were not
+so reported. The earliest volume of American judicial decisions
+(Kirby's) was published in 1789 as a private venture. A few
+years later the States began to provide official reporters for
+their highest courts and soon assumed the expense of publication.
+There are now more than fifty current sets of federal and State
+reports, the annual output being about four hundred volumes,
+containing 25,000 cases. The mere indexing and digesting of
+these reports for the use of the bench and bar has become a
+science. While consulted by comparatively few who are not
+connected with the legal profession, they constitute a set of
+public records of the highest value to every student of history
+and sociology.[Footnote: See "Two Centuries' Growth of American
+Law," 6.]
+
+It is the custom to prefix to the report of each case a head-note
+stating briefly the points decided. Ordinarily this is the work
+of the reporter. In a few States the judges are required to
+prepare it; and to do so then naturally falls to the lot of that
+one of them who wrote the opinion. Occasionally the head-note
+contains statements not supported by the opinion. In such case
+the opinion controls unless it is otherwise provided by statute.
+
+It has not been the usual custom of English judges of courts of
+last resort to write out their opinions. They have commonly
+pronounced them orally and left it to the reporters to put them
+in shape. The consequence has been that English reports have a
+conversational tone, and are not free from useless repetition.
+This has been not only a matter of tradition but of necessity.
+The English judges have always been few in number. Their time
+has been largely occupied in the trial of cases on the facts. It
+is only in recent years that certain judges have been set apart
+especially for appellate work.
+
+American judges, on the other hand, are numerous. There is the
+waste of energy in our judicial system which is the necessary
+concomitant of the independent sphere belonging to each separate
+State. Combination of all of them into one empire would make it
+easy to reduce the judiciary to a tithe of its present numbers.
+Their salaries are part of the price we pay--and can well afford
+to pay--for our peculiar system of political government, under
+which every State is an _imperium in imperio_.
+
+The ever-increasing number of our States, each with a body of law
+not exactly like that of any other, and each with a written
+Constitution which is its supreme law, requires a court of last
+resort in each. Experience tends to show that it ought not to be
+composed of less than five. There should certainly be an uneven
+number to facilitate decisions by a majority; and unless a
+minority consists of as many as two, its dissent is apt to carry
+little weight in public opinion.
+
+In most of the States the court of last resort is not overworked.
+In some the judges find time to do considerable circuit duty in
+the trial of original causes. This keeps them in touch with the
+daily life of the community, and is so far good. On the other
+hand it disqualifies them from sitting on an appeal from their
+own decisions, and so either reduces the number of the appellate
+court occasionally below that which is normal and presumably
+necessary, or involves calling in some one to act temporarily,
+which imperils the continuity of thought and uniformity of
+doctrine which should characterize every such tribunal. There is
+also a certain natural bias, insensible perhaps to themselves,
+which tends to make appellate courts stand by one of their
+members whose rulings while holding a trial court are brought in
+question. For these reasons it has now become common for the
+States to confine their appellate judges exclusively to appellate
+work. The time, therefore, which the English judge gives to
+circuit duty the American judge can give to writing out his
+opinions with all the art and care which he can command.
+
+He speaks in most instances to a small audience--the bar alone.
+But it is the bar of this year and the next year and the next
+century. Every volume of reports is part of the history of
+American jurisprudence and of American jurisprudence itself.
+Occasionally some case arises which involves large political
+questions, or one of especial local interest. The opinion is
+then read more widely. The newspapers seize it: reviews take it
+up. It is not always easy to anticipate what decision will
+become a matter of public notoriety; what opinion will be quoted
+as an authority in other States; and what drop unnoticed except
+by the lawyers in the cause. A judge, therefore, though he have
+no better motive than personal ambition, is apt to do his best in
+every case to state the grounds of his conclusions clearly and in
+order. A certain style of American judicial opinion has thus
+grown up. It is dogmatic. It offers no apologies. There is
+neither time nor need for them. The writer speaks "as one having
+authority." He does not argue out conclusions previously settled
+by former precedents, but contents himself with a reference to
+the case in the reports in which the precedent is to be found.
+He is as brief as he dares to be without risking obscurity.
+
+It is undoubtedly true that many reported opinions are of a very
+different type. Some of Marshall's assume a tone of apology; but
+in his day it was needed. He struck at cherished rights of
+States, upheld by their highest courts, and struck them down, at
+a time when the country was unfamiliar with the conception of the
+United States as a national force. Many of those of judges of
+inferior ability do not rise above their source. They are
+verbose, repetitious, slovenly, inaccurate in statement, loose in
+form; perhaps sinking into a humor or sarcasm always out of place
+in the reports;[Footnote: See, for instance, Mincey _v._
+Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
+_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
+_id_., 582.] possibly unfair in describing the claims that
+are overruled. But, as a whole, Americans need not fear to
+compare the reports of their courts with those of foreign
+tribunals. No judicial opinions, viewed from the point of style
+and argument, rank higher than some of those written by American
+judges.
+
+Those of appellate courts are generally composed and delivered by
+a single one of their members, but he speaks not only for the
+court but for every other member of it who does not expressly
+dissent. Nevertheless, as their conclusions depend on one man
+for their proper expression, the responsibility for the
+particular manner in which the opinion may set them forth is
+properly deemed in a peculiar sense to rest upon him.
+
+Nor, if the opinion is afterwards relied on as establishing a
+precedent, is the court bound by anything except the statement of
+the conclusions necessary to support the judgment. If unsound
+reasons for those conclusions are given, defective illustrations
+used, or unguarded assertions made, it is chargeable with no
+inconsistency in subsequently treating them as merely the
+individual expressions of the judge who wrote the
+opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
+Mass. Reports, 37, 41. This position is not, universally
+accepted. See Merriman _v._ Social Manufacturing Co., 12
+R. I. Reports, 175, 184.]
+
+When Marshall became Chief Justice of the United States he
+introduced the practice of writing all the opinions himself, and
+with a few exceptions maintained it for ten years, and until, by
+successive changes in the court, a majority were Republicans.
+This, as has been well said, "seemed all of a sudden to give to
+the judicial department a unity like that of the executive, to
+concentrate the whole force of that department in its chief, and
+to reduce the side justices to a sort of cabinet
+advisers."[Footnote: Thayer, "John Marshall," 54.]
+
+In some of the State Supreme Courts in early days, it was the
+practice for the Chief Justice to deliver an opinion in every
+case, but his associates frequently added concurring or
+dissenting ones.
+
+Of late years the business of appellate courts in the United
+States and in most of the States is so considerable that it is
+necessary to divide the labor, and the cases are generally
+distributed equally for the preparation of opinions.
+
+It is the prevailing practice to have the opinion, when drafted
+by the judge to whom that duty is assigned, typewritten or
+printed, and a copy sent to each of the other judges for their
+consideration separately. At a subsequent conference each judge
+is called upon by the Chief Justice to state whether he concurs
+in it, and if alterations are proposed there is opportunity for
+their discussion. This practice did not become general until the
+latter part of the nineteenth century, when the typewriter had
+come into common use. Prior to that time the draft opinion was
+ordinarily first made known by its author to the other judges
+either by reading it aloud at the final consultation or by
+sending one manuscript copy around to each in succession for his
+endorsement of approval or disapproval. In some courts it was
+never thus submitted at all, and so they were occasionally
+committed to positions which they had never intended to adopt and
+afterwards found it necessary to repudiate.[Footnote: See for an
+example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,
+198.]
+
+Our courts of last resort generally have before them a printed
+statement of the doings in the lower court which they are asked
+to review, and a printed argument from each party to the appeal.
+Oral arguments are also usually heard, except in a few States
+where the press of business renders it practically impossible
+except in cases of special importance. Such a press occurs
+mainly in the largest States, but exists also in some whose
+Constitutions make it easy and over-cheap for every defeated
+litigant to carry his case up to the highest court.
+
+In the Supreme Court of Georgia no costs exceeding $10 can be
+taxed against the unsuccessful party; and it has had eight
+hundred cases in one year upon its docket. In most States he has
+substantial costs to pay. These mainly are to meet the expense
+of printing the record sent up from the court below. A single
+case will sometimes fill a volume or even a set of volumes,
+particularly in equity causes in the federal courts, in which all
+the testimony is generally written out at length. The appellant
+has to pay for the printing in the first instance, but
+ordinarily, if he succeeds, the other party will be obliged to
+reimburse him. The cost involved is occasionally several
+thousand dollars.
+
+The party taking the appeal must file a paper stating his grounds
+for it separately, distinctly, clearly and concisely. There is a
+temptation to include all that can be thought of, good, bad and
+indifferent; and whether this is done or not will depend largely
+on the opinion which the lawyers have of the ability of the
+court.
+
+In the smaller States the judges have time to enable all to study
+each case with care. In the largest ones it is not uncommon to
+assign every case on the docket, in advance of the argument, to a
+particular judge. He is expected to give it special attention
+with a view to reporting his conclusions upon it to the court,
+and, should they be approved in consultation, to writing out its
+opinion subsequently. The assignment for a term of court is not
+infrequently made in the order in which the docket (or printed
+list of cases to be heard) is made out, the chief justice taking
+the first case, the senior associate justice the second, and so
+on. At the next term the same practice will be pursued, except
+that the justice next in seniority to the one who had the last
+case under the previous assignments will now take the first case
+on the new list, and the next junior justice the second.
+
+Appellate courts generally sit not over four or five hours a day;
+this time being either preceded or followed by a consultation.
+They are seldom in session more than five days in the week. The
+cases before them are not usually assigned for argument on
+particular days. A list is made up of all which are ready to be
+heard, numbered in order, the oldest first. They are then taken
+up successively as reached, and the counsel concerned in each
+must be ready at their peril. Often a limit is fixed by rule as
+to the number of cases that can be called for argument in any one
+day. In the Supreme Court of the United States this is the
+practice, and the number is ten. In some of the States it rises
+as high as twenty.
+
+At the first consultation over a case which has been argued, the
+Chief Justice (unless a special assignment has been previously
+made of it to some particular member of the court) asks the
+junior justice his opinion as to the proper disposition to be
+made of it, and each justice in turn then gives his, in the
+reverse order of seniority. If there is any serious disagreement
+the matter is generally allowed to stand over for further
+discussion later. At some convenient time after the views of the
+various justices have been ascertained the cases are distributed
+and, as a rule, equally for the purpose of preparing the
+opinions. This distribution is sometimes made by the Chief
+Justice and sometimes by agreement, or according to the
+arrangement of the docket.
+
+Until the opinion has been finally adopted it is not usual to
+announce the decision. Not infrequently the ultimate decision is
+made the other way, and a new opinion prepared by the same, or,
+if he remains unconvinced that his first one was wrong, by
+another judge. Still more often the draft opinion is altered in
+material points to meet criticisms and avoid dissent.
+
+Dissenting opinions are comparatively rare, particularly in
+courts where there is a Chief Justice with the qualities of a
+leader; that is, with ability, learning and tact, each in full
+measure.[Footnote: Perhaps tact counts the most, for the Chief
+Justice has the advantage of hearing the opinions of all his
+associates at all consultations before he gives his own. Senator
+Hoar makes a pungent comment on Chief Justice Shaw's want of it,
+in his Autobiography, II, 413.] Every instance of dissent has a
+certain tendency to weaken the authority of the decision and even
+of the court. Law should be certain, and the community in which
+those charged with its judicial administration differ
+irreconcilably as to what its rules really are, as applied to the
+transaction of the daily business of life, will have some cause
+to think that either their laws or their courts are defective and
+inadequate. For these reasons judges of appellate courts often
+concur in opinions, of the soundness of which they are only
+convinced because of the respect they entertain for the good
+judgment of their associates. They are willing to distrust
+themselves rather than them.
+
+Not seldom, however, dissent and the preparation of a dissenting
+opinion has in the course of time, aided, perhaps, by some change
+of membership, converted the court and led to overruling a
+position incautiously taken which was inconsistent with settled
+law.[Footnote: A striking instance of this is the case of
+Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
+Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
+_id_., 126; 6 Atlantic Reporter, 453.]
+
+More than eighty out of every hundred of the opinions delivered
+in the courts of last resort of each State of the United States,
+excepting one (New Jersey), and contained in the last volume of
+the reports of each published prior to June, 1904, were
+unanimous. In New Jersey seventy-three out of every hundred
+were. In two States, Maryland and Vermont, there was dissent in
+but two out of every hundred cases, and in all the States taken
+together, out of nearly 5,000 cases decided a dissent is stated
+in 284 only. This made the proportion of unanimous decisions of
+State courts, in the country at large, to those in which there
+was dissent nineteen to one.[Footnote: _Law Notes_ for June,
+1904, p. 285.]
+
+A dissenting judge sometimes files an opinion which is then
+printed in full in the reports. More often the fact of his
+dissent is simply noted. In cases involving constitutional
+questions it is rare for a dissenting judge not to state his
+reasons. The importance of the subject justifies if it does not
+demand it. As Mr. Justice Story once observed, "Upon
+constitutional questions the public have a right to know the
+opinion of every judge who dissents from the opinion of the
+court, and the reasons of his dissent."[Footnote: Briscoe
+_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]
+
+The official reports of the courts have some of the faults of
+officialism. They often do not appear until long after the
+decisions which they chronicle have been made and their general
+make-up is sometimes unworkmanlike and unscientific. It requires
+rare gifts to make a good reporter of judicial opinions. He must
+have the art of clear and concise statement; the power to select
+what is material and drop the rest; and the faculty of close
+analysis of abstract reasoning.[Footnote: Four of the reporters
+of the Supreme Judicial Court of Massachusetts have been
+appointed justices of that court, largely in consequence of their
+good work in reporting. A good reporter always has the making of
+a good judge.] Many of our reporters also are practicing lawyers
+of no special training for the work, and who give to it but a
+portion of the year.
+
+The modern sense of the value of time, of scientific treatment of
+whatever can be treated scientifically, and of uniformity in
+scientific methods led toward the close of the nineteenth century
+to competition in reporting. Private publishing houses undertook
+the prompt publication, in scientific arrangement upon a uniform
+plan, of the opinions of the courts. This work began in 1879.
+The result has been that the series of official reports of the
+Circuit Court of Appeals of the United States has been
+discontinued, and that the decisions of all our other appellate
+courts are now twice reported. One publishing house has grouped
+the States into clusters, issuing for each cluster its own series
+of reports, known, respectively, as the Atlantic, the
+Northeastern, the Northwestern, the Southeastern, the Southern,
+the Southwestern and the Pacific Reporters. The States forming
+each group have been selected mainly because they were neighbors
+geographically, but partly from commercial reasons. Thus
+Massachusetts, which would naturally be assigned to the Atlantic
+Reporter, has been put into the Northeastern; and such inland
+States as Kansas and Colorado find their place in the Pacific
+Reporter. All the reported decisions of all the States in each
+group are printed in pamphlet form weekly, as they may be handed
+down, in chronological order; and every few months the whole
+issued as a bound volume. In this way, for a trifling sum a copy
+of any opinion of any American court of last resort can be had in
+a few days or weeks after its announcement, and a lawyer's
+library can, at slight expense, be furnished with the decisions
+not only of his own State but of several others having not unlike
+laws and institutions.
+
+The multiplication of American reports makes judicial precedents
+of decreasing value to the American lawyer. English cases are
+cited as authority far less frequently than they were before the
+middle of the nineteenth century. The omnipotence of Parliament
+and the free hand with which that has been exerted to change the
+common law have tended to separate English from American
+jurisprudence. Our written Constitutions have perpetuated here
+ideas of government and property which England does not
+recognize. Hence American precedents are of more use than
+English. But American precedents are becoming so numerous that
+the advocate who seeks to avail himself of them is tempted to
+cite too many and to examine them with too little care. In each
+State its own reports are the expression of its ultimate law.
+With these every member of its bar must be familiar. But the
+courts before which he argues listen to him with more
+satisfaction and greater benefit if he deals with the principles
+of law rather than with foreign precedents which may or may not
+correctly apply them.[Footnote: See a valuable statistical
+article on "Reports and Citations" in _Law Notes_ for
+August, 1904.]
+
+Not every opinion which is delivered is officially reported. In
+most States the court has and exercises the power of directing
+that such as they may deem of no substantial value to the
+profession at large shall not be. Many are simply applications
+of familiar rules which obviously control. Opinions of that kind
+interest only the lawyers in the cause. In the unofficial
+reports, however, such cases are sure to appear and the bar is
+divided in opinion as to whether they should not also be given a
+place in the official ones.
+
+It is not always easy for the court or the reporter to determine
+what decision may thereafter be relied on as a precedent.
+Repeated instances have occurred in which such a use has in fact
+been made and properly made of some not noted in the regular
+reports, and not infrequently they have subsequently been
+inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
+of those of the Supreme Court of the United States, one hundred
+and twelve opinions are printed, the first delivered over fifty
+years before, which previous reporters had thought best to omit,
+and two hundred and twenty-one more such are published in
+Vol. CLIV. Whoever runs them over will be apt to think that the
+previous reporters were right.] There is also in case of an
+opinion not to be officially reported a loss of a valuable
+safeguard against unsound decisions. A judge writes with more
+care and examines the points of law which may be presented more
+closely if he writes for the public and for posterity.
+
+On the whole the prevailing sentiment is that the reasons for
+repressing some are stronger than those for publishing all
+judicial opinions. It will be few only that, under any
+circumstances, will be omitted. The leading lawyers in every
+State are expected to run over, if they do not read, every case
+in every new volume of its reports. Every case dropped lightens
+this task. It helps to keep indexes of reports and digests of
+reports and legal treatises within reasonable limits. It cuts
+into an accumulating mass of material, most of which must, in any
+event, so far as points of law are concerned, be a mere
+repetition of twice-told tales, that is becoming so vast in the
+United States as to becloud rather than illuminate whoever seeks
+to know what American law really is.
+
+If reporters will not select and discriminate between adjudged
+cases publishers can and will. Many sets have been prepared and
+issued in recent years of selected cases on all subjects taken
+from the official reports of all the States. Their professed aim
+has been to include all worth preserving. In fact, they have
+naturally been guided to a considerable extent by commercial
+considerations. To every lawyer the leading cases in his own
+State are of the first importance. He is not likely to buy any
+compilation in which a number of these do not appear, even if
+intrinsically, as statements of law, they may be of no great
+value. Hence in the collections in question the rule of
+selection is often the rule of three, and they are apt to contain
+a certain proportion of the decisions of every State.
+
+The leading sets are the "American Decisions," running from
+1760[Footnote: Long after the publication of Kirby's Reports in
+1784, some unofficial reports were published of cases decided in
+colonial courts prior to any which he included.] to 1869; the
+"American Reports," from 1869 to 1886; the "American State
+Reports," from 1886 to the present time, which three sets include
+over two hundred and fifty volumes and nearly 40,000 opinions;
+and the "Lawyers' Reports Annotated," now extending over more
+than sixty volumes, the first of which was published in 1888, and
+contains no cases reported prior to the preceding year.
+
+Spencer's rule of social evolution that all progress is from the
+homogeneous to the heterogeneous tends steadily and inexorably in
+the United States to lessen the value of judicial reports out of
+the State in which the cases were decided. Each of forty-five
+different commonwealths is building upon legal foundations that
+are not dissimilar, but some of them are advancing far faster
+than others, and none proceed at exactly the same rate or on
+exactly the same lines. They are building by statute, by popular
+usage and by judicial decision. Heterogeneity is most marked in
+legislation and it tells most there. Whoever looks over a volume
+of reports will find a large proportion of the cases turning upon
+some local statute. An important index title is that of
+"Statutes Cited and Expounded." In Vol. 138, for instance, of
+the Massachusetts Reports (a volume selected at random for this
+purpose), 223 statutes or sections of statutes are noted as
+having been made the subject of remark in the 170 cases which it
+contains. Almost all are Massachusetts statutes, a very small
+proportion of which have been re-enacted elsewhere.
+
+Appellate courts thus forced at every turn to study with care
+into the effect of local legislation, much of which, to get at
+its meaning, must be traced back historically through various
+changes during a long course of years, and in the older States
+sometimes for centuries, listen unwillingly to citations from
+decisions of other States which are even remotely affected by the
+statutes that may be there in force.
+
+The newer States and those with a small population are naturally
+the ones that rely most on foreign authority. In the last volume
+(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
+cited in the opinions of the court are of that kind. In the last
+volume (Vol. 178) of the New York Reports, the percentage is but
+thirty, and in the last of the Massachusetts Reports (Vol. 185)
+it is only twenty-five.[Footnote: _Law Notes_ for April,
+1905, 8.]
+
+       *       *       *       *       *
+
+In the Supreme Court of the United States and in several of the
+appellate courts of the larger States each judge is provided with
+a clerk at public expense. While this is a means of relief from
+much which is in the nature of drudgery, it sometimes leads to a
+deterioration in the quality of the judicial opinions. A
+dictated opinion is apt to be unnecessarily long, and when a
+clerk is set to looking up authorities, although he can hardly be
+expected always to select the most apposite, it is easier to
+accept his work and use what he has gathered than to institute an
+independent search.
+
+Some of the appellate courts which are most fully employed, both
+State and federal, are provided with special libraries of
+considerable extent, and each of the individual judges is also
+often furnished with an official library, sometimes containing
+several thousand volumes, for his personal use, to be handed over
+to his successor when he retires from office.[Footnote: In New
+York, the private library of the Court of Appeals contains over
+6,000 volumes, comprehending all the reports of all the States,
+and the personal libraries provided for each judge have come to
+comprise 3,500 volumes.]
+
+In some States counsel have the right to demand to be heard
+before a full court, and those who have taken the appeal
+generally exercise it. As decisions go by majorities, the chance
+of reversing a judgment before, for instance, a court of five,
+which is a common number, is obviously greater when all its
+members sit than when four do. In either case it must be the act
+of three judges, and one is more likely to convince three out of
+five than three out of four.
+
+In the Supreme Court of the United States there is no means of
+supplying the place of a judge who is absent or disqualified.
+The remaining members, provided they constitute a quorum (that
+is, a majority), proceed without him. In most of the States
+there is some provision for filling the vacancy in such a
+contingency. Sometimes it is by calling in a judge of an
+inferior court; sometimes by application to the Governor for the
+temporary appointment of some member of the bar as a special
+associate justice to sit in a particular case.
+
+In several of the larger States all the members of the court of
+last resort do not and need not sit in every case. In some two
+permanent divisions are constituted, to each of which certain
+judges are assigned, and both divisions may be in session at the
+same time. In other States certain judges are detached for a
+certain time, during which they study causes which have been
+argued and prepare opinions. This done, they resume their seats,
+and others are released for similar duties.
+
+In Ohio, for instance, the Supreme Court consists of six judges
+and commonly sits in two divisions of three each, having equal
+authority. The whole court sits to hear any cause involving a
+point of constitutional law. It also decides those which have
+been heard in one of its divisions and in which the divisional
+court is in favor of reversing the judgment appealed from. An
+affirmance by the divisional court is final, but if it inclines
+to a reversal the judges communicate their opinions to the full
+court, which also reads the printed briefs submitted on the
+original argument, and then without any further oral hearing
+pronounces final judgment. Four judges, therefore, at least,
+must concur to accomplish a reversal. Should the full court in
+any case be equally divided, the judgment appealed from stands.
+
+Under the Constitution of California (Art. VI, Sec. 2) the
+Supreme Court, which consists of seven judges, ordinarily sits in
+two departments. Three judges can render a decision, but the
+judgment does not go into full effect for thirty days unless
+three, including the Chief Justice, have given it their approval.
+The Chief Justice also, with the concurrence of two of his
+associates, or four of these without his concurrence, can direct
+that any cause be heard before a full court within thirty days
+after judgment by a department court. He can also order the
+removal into the full court of any cause before judgment.
+
+In Michigan only five out of the eight judges sit to hear a case,
+and if one of them files an opinion dissenting from that of his
+associates, the losing party can demand a rehearing before the
+full court.
+
+Neither the bar nor the bench are quite satisfied with such
+methods of appellate procedure. The Ohio scheme is excellently
+adapted for the dispatch of business, but may prevent an oral
+argument before those who are ultimately to decide the cause.
+That of California often protracts litigation. Any such plan of
+division also must increase the risk of the court's taking a
+position inconsistent with one which it had previously assumed.
+The judges in one division may come to conclusions different from
+those reached in the other division; or where the court does not
+sit in divisions, a point may be determined by a narrow majority
+in one case which in a later one, through the substitution of one
+or two judges for those who heard the former, may be ruled the
+other way.
+
+The freedom of appeal which is generally conceded to defeated
+litigants in this country has been made the subject of severe
+criticism. It seems, however, a necessary incident of our
+political institutions. They are built upon the foundation of a
+profound reverence for the rights of the individual and of the
+equality of all before the law. Our Constitutions guaranty every
+man against deprivation of life, liberty or property without due
+process of law. If we could count on having as judges of our
+trial courts none but men of ability, learning and independence,
+it might be safe to leave it to them to say what this due process
+was. But the tenure of judicial office in most States is too
+brief, the pay too meagre, and the mode of appointment too
+subject to political influence to give always that assurance that
+could be wished either of the independence of the judiciary or of
+its representing only what is best in the legal profession.
+
+In England, until recently, there was little or no right of
+review in favor of one convicted of crime. But the judges are
+appointed for life on ample salaries, and tradition requires that
+they be selected only from among the leaders at the bar. Nor is
+the right of the individual against the State deemed so sacred
+under English as under American institutions. It cannot be in
+any country where an hereditary aristocracy has from ancient
+times had a share in government. As has been seen, the English
+practice in this respect for nearly a hundred years was adopted
+in the courts of the United States, but public sentiment finally
+pronounced against it. Much less could it be safely followed in
+the States, where criminal courts are often held by judges of
+little ability, less learning, and inferior standing at the bar,
+to which, after the expiration of a brief term, perhaps of but a
+year, they will return should they fail to secure a party
+renomination.
+
+The same reasons, if in less degree, support a liberal right of
+appeal in cases involving property only, and oppose restrictions
+based only on the amount in controversy. Americans could never
+tolerate keeping their appellate courts for the trial of large
+causes only. There must be no rich men's courts. There
+certainly must be none to which a claim of right founded on a
+constitutional provision cannot be carried up, however trifling
+in pecuniary value may be the matter in demand.
+
+Most appeals fail. There are few in which the counsel who takes
+them are fully confident of success. Every lawyer of large
+experience knows that he has often won when he expected to lose,
+and lost when he expected to prevail. There are not many cases
+involving large pecuniary interests or strong personal feeling
+that are not appealed if there is any color for it. The
+proportion of appeals which are successful will generally be not
+far from a third of the whole number taken. Of course, however,
+this must depend largely on the competency of the trial judges in
+the court where it is claimed that errors have occurred. The
+abler and more experienced those who do circuit duty may be, the
+oftener will their doings be supported in the court of last
+resort.
+
+Short terms of office and consequent lack of practical
+acquaintance with the business of a trial judge is the real cause
+why so many appeals are taken, and are allowed to be taken in our
+American States. As for the federal courts of appeal, there is
+another and unavoidable occasion for large dockets. They have
+the last word to pronounce on constitutional questions, and there
+has probably never been a year since the United States came into
+existence when the legitimate powers of the general government
+have not been repeatedly infringed upon by State legislation.
+
+In the Supreme Court of the United States, the reporter began its
+second century with a plan of stating the number of cases
+affirmed or reversed at each term, but dropped it after two
+years. The record of these years was as follows:
+
+                              Affirmed          Reversed
+  October Term, 1890            248               104
+  October Term, 1891            185               103
+
+A tabulation of the decisions reported in the various States in
+their last volumes published prior to June, 1904, shows that on a
+general average, in sixty-three out of every hundred appeals the
+judgment of the inferior court was affirmed. In Massachusetts
+the percentage was eighty-seven per cent. In Texas it was only
+thirty-four per cent., and in Arkansas and Kentucky not much over
+forty per cent.[Footnote: _Law Notes_ for June 1904,
+p. 285.]
+
+Many more appeals are taken by convicted persons in criminal
+cases at the South than in the North. Many more criminal
+prosecutions are brought there, in proportion to the population.
+This is due largely to the presence of so large a body of colored
+people, most of whom have had a very inferior education and
+training. Many more such appeals are successful also in the
+South than in the North. In the reports of the courts of last
+resort of Alabama, Florida, Louisiana and Mississippi between
+December 20, 1902, and April 25, 1903,[Footnote: As given in
+Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
+appear, in forty-six of which the judgment of conviction was set
+aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
+New Jersey, Pennsylvania, Rhode Island and Vermont between March
+12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
+Atlantic Reporter.] the reports show only twenty such cases, of
+which seven were set aside.[Footnote: _Law Notes_ for
+September, 1903, 105.] This would seem to indicate either that
+the trial judges of criminal courts in the Gulf States are
+careless or that the appellate courts there (under the pressure,
+perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
+Independence," by Justice Henry B. Brown in the Reports of the
+Am. Bar Association for 1889, 265.] are inclined to be too
+technical. If either is true it is a just cause for public
+dissatisfaction with the administration of criminal justice, and
+some palliation for the frequent resorts to Lynch law by the
+Southern people.
+
+The American plan of written opinions, at least in all cases of
+novelty or general interest, works better in small States than in
+large ones. No judge can find time to prepare more than a
+certain and quite moderate number in a year, if they are such as
+they should be. The shorter they are, the more time generally
+has been spent in condensing them. In a great State there must,
+therefore, either be a larger number of judges, or every few
+years there must be a temporary addition to the judicial force to
+clear off an accumulation of cases. The latter expedient is
+generally preferred. Sometimes a small number of lawyers are
+selected to serve as a special commission of appeals. They sit
+by themselves, but there may be a provision for their submitting
+their opinions to review by the regular court. Some of the
+leading cases in our reports have been decided by such
+commissioners. In California, where such a body now exists, its
+members are appointed by the court, and removable at its
+pleasure; but ordinarily they are chosen by the executive or
+legislative departments.
+
+Sometimes when the cases on the docket of the court of last
+resort reach a certain number (in New York this is put at 200)
+the Governor may call in judges of the next court in rank to sit
+with the regular judges until the accumulation is cleared off.
+
+Fewer causes can be heard and disposed of in American appellate
+courts than in those of other countries by reason of two things,
+our practice of delivering written opinions and the fulness of
+treatment thought necessary in such opinions, especially when
+they deal with questions of constitutional law. In France, the
+Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
+219 were sustained and 597 rejected.] Nothing approaching this
+number could be properly disposed of on the merits in any
+American Court of last resort. Many appeals, however, are here,
+as everywhere, abandoned or dismissed for some failure to comply
+with the rules of practice or because manifestly frivolous, and
+in these no opinions are ordinarily given. During the court year
+closing with the Summer of 1903, the Court of Appeals of New York
+filed only 221 opinions, although it disposed, in one way or
+another, of 640 cases; and the Supreme Court of the United States
+filed 212 opinions and disposed of 420 cases.[Footnote: See
+Chap. XXIV.]
+
+In the calendar year 1904, the Court of Appeals of New York filed
+327 opinions, and the Supreme Court of Illinois over 500.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XX
+
+
+       THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF
+                   CONTEMPTS OF COURT
+
+
+No court can with propriety pass a decree which it cannot
+enforce.[Footnote: Clarke's Appeal from Probate, 70
+Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
+U. S. Reports, 186.] After the judgment comes the issue of
+appropriate process to compel obedience to it, unless such
+obedience (as is generally the case) is voluntarily rendered.
+The whole power of government is at the command of the court for
+this purpose. A sheriff with a judicial process to serve who
+meets with resistance can summon to his aid the _posse
+comitatus_. By this term is meant the whole power of his
+county; that is, any or all of its able-bodied inhabitants on
+whom he may choose to call. Not to respond to such a call is a
+legal offense. The marshals have similar powers in serving
+process from the Federal courts.
+
+The fact that there is this force behind a writ is so well
+understood by the community that occasions for resorting to its
+use, or indeed to the use of any actual force, are extremely
+rare. If the process was lawfully issued, it would be useless to
+resist. If unlawfully, it is easier and safer to seek relief by
+an injunction, or in case of an arrest, by a writ of _habeas
+corpus_. But there have been occasions in the judicial
+history of the United States when, under the influence of a
+general popular ferment, the service of process from the courts,
+and even the holding of courts, have been forcibly prevented.
+
+Shay's Rebellion in Massachusetts (in 1786) was the first of
+these after the Revolution. Similar uprisings of less importance
+took place at about the same time in New Hampshire and Vermont.
+A few years later, the service of process from the New York
+courts was interrupted in Columbia County. There was a strip of
+territory adjoining the Hudson River, title to which was claimed
+both by New York and Massachusetts. Conflicting claims, awaking
+much bitter feeling, arose under grants from each government. In
+1791, the sheriff of Columbia County was ordered by the courts,
+in the course of a lawsuit, to sell a tract of this land.
+Seventeen persons disguised as Indians appeared at the time of
+sale to resist it, and he was killed by a shot from one of
+them.[Footnote: Report Am. Historical Association for 1896, I,
+152, note.]
+
+Then came the Whiskey Rebellion in Pennsylvania. The statutes of
+the United States[Footnote: United States Revised Statues, 5299.]
+provide that if their courts meet with opposition of a serious
+nature, the President may use the army or call out the militia of
+one or more States to restore order. Opposition to the
+enforcement of the revenue tax on whiskey in 1794 called for the
+first exercise of this power. Marshals were resisted in serving
+process, and several counties were in a state of insurrection.
+Washington sent so large a force of troops to suppress it that
+the rioters vanished on their approach, and there was no further
+obstruction of the ordinary course of justice. The total expense
+to the government in this affair was nearly $1,000,000.[Footnote:
+Wharton's "State Trials," 102.] In 1799, somewhat similar
+opposition arose in the same State against the enforcement of the
+house taxes laid by Congress. President Adams here also sent a
+sufficient force of militia to suppress it.[Footnote:
+_Ibid_., 48, 459.]
+
+In 1839, a general combination was formed among the tenant
+farmers in New York holding long or perpetual leases from
+manorial proprietors to resist the payment of the stipulated
+rents. In several counties the greater part of the land was
+occupied under such a tenure. The design was to compel the
+landlords to sell to the existing tenants at a price fixed by
+public appraisal, or else that the State should take the lands by
+eminent domain and dispose of them to the same persons on
+reasonable terms. Sheriffs were forcibly prevented from serving
+writs in dispossession proceedings. One who took with him a
+_posse comitatus_ of five hundred armed men, a hundred of
+whom were mounted, was met and turned back by a larger band, who
+were all mounted. The Governor was finally compelled to issue a
+proclamation against the "up-renters," as they were called, and
+to protect the sheriff by a large body of militia. Put down in
+one county, the movement soon reappeared in others. Disguises
+were assumed, the rioters figuring under Indian names and wearing
+more or less of the Indian garb. Three hundred of them, with
+twice that number not in disguise, prevented a sheriff from
+levying an execution for rent on tenants upon the Livingston
+manor. For six years the contest went on in several counties.
+Several lives were lost on both sides. Sheriff's officers were
+tarred and feathered and their writs destroyed. Of the rioters
+many were arrested and prosecuted from time to time and some
+convicted. Five were sent to the State's prison for life. Two
+were sentenced to be hanged. The State used its militia freely
+to defend the sheriffs, at a cost in one county of over $60,000,
+and in 1845 a series of prosecutions and convictions, resulting
+in over eighty sentences at one term of court, broke the back of
+the insurrection. It died half-victorious, however, for an
+"anti-rent" Governor and Lieutenant-Governor were elected the
+next year, and several statutory changes in the law of leases
+which the malcontents had desired were soon afterwards
+enacted.[Footnote: See Paper by David Murray on the "Anti-rent
+Episode in New York," Report of the American Historical
+Association for 1896, I, 139.]
+
+During the period of reconstruction in the Southern States,
+following the civil war, the courts were repeatedly broken up by
+violence and the service of legal process resisted, in some
+instances by authority of the military Governor.[Footnote:
+S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495,
+496, 509, 544, 565.]
+
+The writ to enforce the judgment of a court of law is called an
+execution. It is directed to the sheriff or other proper
+executive officer, and requires him to seize and sell the
+defendant's property or, as the case may be, to arrest and
+imprison him, to turn him out of possession of certain lands, or
+to take some other active step against one who has been adjudged
+in the wrong, in order to right the wrong, as the judgment may
+command.
+
+A judgment for equitable relief is not ordinarily the subject of
+an execution.[Footnote: See Chap. VIII.]
+
+A judgment at law is generally to the effect that one of the
+parties shall recover certain money or goods or land from the
+other. On the prevailing party lies the burden of moving to get
+possession of what has thus been adjudged to be due. This he
+does by taking out an execution. A judgment in equity is an
+order on the defendant to do or not to do some particular act.
+It is now an affair between him and the court. He must obey this
+mandate or he will be treating the court with disrespect.
+
+To treat a court with disrespect, or, in legal parlance, to be in
+contempt of court, is to incur very serious responsibilities. It
+is in the nature of a criminal wrong, for it is a direct
+opposition to the expressed will of the State. Whoever is guilty
+of it makes himself liable to arrest and to be subjected to fine
+or imprisonment. If, for instance, an injunction is obtained in
+a suit for the infringement of a patent right, it becomes at once
+the duty of the defendant to desist from making or selling what
+the plaintiff has proved that he only can lawfully make and sell.
+If he does not desist, the plaintiff can complain to the court,
+and if after a preliminary hearing it appears that his complaint
+is well founded, can obtain a warrant of arrest, styled a
+"process of attachment." On this, the proper officer takes the
+defendant into custody, and brings him before the court to answer
+for violating the injunction order. If the case is an aggravated
+one, he will be both fined and imprisoned, and the imprisonment
+will be in the common jail for such time as the court may order.
+
+It is the sting in the tail of an injunction that makes it
+especially formidable. The debtor who fails to pay to the
+sheriff, when demand is made upon an execution, a judgment for
+money damages commits no contempt of court. The man who keeps on
+doing what a court of equity has forbidden him to do does commit
+one.
+
+A conspicuous instance of the efficacy of an injunction was
+furnished by the great Chicago railroad strike and boycott of
+1894, initiated by the American Railway Union. Mob violence
+followed. More than a thousand freight cars were burned. Trains
+were derailed, passengers fired at, and lives lost. The officers
+of the union, after two or three weeks, wrote to the managers of
+the railroads principally affected, describing the strike as
+threatening "not only every public interest, but the peace,
+security and prosperity of our common country."[Footnote: United
+States _v._ Debs, 64 Federal Reporter, 724, 729.] A
+temporary injunction was issued against these officers and others
+by the Circuit Court of the United States in an equitable action
+brought by the United States under the direction of the
+Attorney-General. They disobeyed the injunction. Their arrest
+for this contempt of court promptly followed. This stopped the
+flood at its source. To quote from testimony given a few weeks
+later by Mr. Debs, the President of the Union, "As soon as the
+employees found that we were arrested and taken from the scene of
+action, they became demoralized and that ended the strike....
+The men went back to work and the ranks were broken and the
+strike was broken up,... not by the army, and not by any other
+power, but simply and solely by the action of the United States
+court in restraining us from discharging our duties as officers
+and representatives of our employees."[Footnote: United States
+_v._ Debs, 64 Federal Reporter, 724, 759.] The defendants
+in the contempt proceedings having been found guilty and
+sentenced to jail for terms varying from three to six months,
+appealed to the Supreme Court of the United States, but without
+avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564,
+600.]
+
+Injunctions not infrequently are granted as an equitable relief
+against a legal judgment. _Summum jus, summa injuria_ is an
+ancient maxim of the courts. The foundation of equitable
+jurisdiction is that courts of law cannot always do justice. One
+may, for instance, be invited to build a house on another's land,
+and promised a deed of the site. He builds the house and then is
+refused a deed. The invitation and promise were by word of
+mouth. The rules of law make such a house the legal property of
+the landowner. The rules of equity make it the equitable
+property of the man who built it on the faith of the landowner's
+invitation and promise. If the latter sue at law for the
+possession of the house, he may get judgment, but equity will
+prevent his enforcing the judgment, not because it is not a legal
+judgment, but because he is endeavoring to make an inequitable
+use of a legal right.
+
+A court of equity sometimes makes a decree establishing a title.
+To enforce such a judgment, a writ may be issued, called a writ
+of assistance. It is directed to the sheriff and requires him to
+do some specific act, such as putting the defendant out of
+possession of certain lands and turning it over to the plaintiff.
+
+It is, as appears from instances which have been given, possible
+that the execution of process from the courts may be defeated by
+violence which they cannot overcome. It is possible in fact
+though impossible in theory. As the sheriff can employ the
+_posse comitatus_, he ought always to have an overwhelming
+force at his command. But it is easier to "call spirits from the
+vasty deep" than to make them respond. Public feeling may be so
+strong in opposition to the service of the process that mob
+violence will be tolerated and even openly supported. An armed
+mob can only be effectually met by an armed force which is not a
+mob--that is, by disciplined soldiers.
+
+The sheriff, if so opposed, may call upon the Governor of the
+State for military assistance. How efficient it will prove will,
+of course, depend on the discipline of the militia and the
+firmness of its commanding officers. It is seldom that it fails
+to restore order, if the men carry loaded guns and are directed
+to fire at the first outbreak of forcible resistance.
+
+But the Governor may refuse to comply with the sheriff's request.
+In such case, the execution of the process of the court fails
+because of want, not of power, but of the will to exercise it on
+the part of those on whom that duty rests. In every government
+constituted by a distribution of the supreme authority between
+different departments, each of them must do its part loyally with
+respect to the others, or the whole scheme, for the time being,
+breaks down.
+
+In the United States this danger is doubly great because of the
+interdependence of the general government and the particular
+States. Judicial process may issue from a State court against
+those who oppose its execution under claim of authority from the
+United States; or from a federal Court against those who oppose
+its execution under claim of authority from a State. Some
+instances of such conflicts of jurisdiction have been already
+mentioned.[Footnote: Chap. X.]
+
+When the Supreme Court of the United States reverses a judgment
+of a State court, it can either[Footnote: U. S. Revised Statutes,
+Sec. 709.] itself render the judgment which the State court ought
+to have rendered, and issue execution, or remand the cause to it
+with directions that this be done. If the latter course be
+taken, the directions may be disobeyed. A Georgia court was
+guilty of this contumacy in the case of Worcester _v._
+Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former
+course be taken, the service of the execution may be resisted by
+the power of the State.
+
+Worcester was illegally confined in the Georgia penitentiary.
+The sentence against him had been set aside and the indictment
+adjudged to furnish no ground of prosecution. But if the Supreme
+Court had rendered a judgment dismissing the prosecution, and
+given a writ to the marshal directing him to set Worcester at
+liberty, the officer would have found the prison doors shut in
+his face. Every prison is a fortress, so built as to prevent
+rescue from without as well as escape from within. To lay siege
+to one would be too great an enterprise for the marshal to
+undertake without military assistance. For this the President
+could have been called upon. But he might have refused it. If
+so, the judgment of the judicial department would have proved
+inoperative, simply because the officer charged with the duty of
+rendering it operative had declined to fulfil that duty.
+
+The Supreme Court, in the Worcester case, probably had reason to
+believe that if it had directed a call on President Jackson for a
+military force it would have been refused. It is reported that
+the President, in private conversation, intimated as much.
+Possibly he might have been justified in the refusal. South
+Carolina was on the brink of war with the United States. Georgia
+was her next neighbor, and might have been induced to make common
+cause with her, if Jackson had battered down the doors of her
+penitentiary to release a man who, her courts insisted, had been
+properly convicted of a serious crime. A court can do nothing
+short of justice. The executive power, perhaps, may sometimes
+rightly act or decline to act from motives of national policy.
+
+In one instance the armed forces of a State were actually
+engaged, under the authority of the legislature, in forcibly
+resisting the service of process from the federal courts. It was
+in 1809, when the marshal in Pennsylvania was opposed by a large
+body of the militia called out by order of the Governor for the
+purpose. Their commanding officer was subsequently arrested and
+convicted for the offense in the Circuit Court of the United
+States.[Footnote: Wharton's State Trials, 48; McMaster, "History
+of the People of the U. S.," V, 405; Willoughby, "The American
+Constitutional System," 41, 43.]
+
+In 1859, the Governor of Ohio refused to honor a requisition from
+the Governor of Kentucky for the surrender of a fugitive from
+justice. The act charged was assisting a slave to escape. This
+was a crime in the State from which the man had fled, but not in
+the State where he had found refuge. The Supreme Court of the
+United States was asked by Kentucky to compel the surrender. It
+held that the Governor had violated his duty, but that the
+Constitution of the United States furnished no means for
+enforcing its performance by him.[Footnote: Kentucky _v._
+Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of
+this doctrine, a man indicted for murder in Kentucky has been for
+several recent years residing in safety in Indiana, because the
+Governor of that State has refused to comply with repeated
+requisitions for his surrender.
+
+       *       *       *       *       *
+
+Every court of record while in session has inherent power to
+compel all who appear before it to preserve order, to obey its
+lawful commands issued in due course of judicial procedure, and
+to refrain from any expressions of disrespect to its authority,
+under pain of fine or imprisonment, or both. This power, unless
+withdrawn by statute, belongs to any justice of the peace who has
+authority to hold a court of record, while he is holding one.
+Commonly it is, in his case, regulated by statute.[Footnote:
+Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic
+Reporter, 955.]
+
+At common law, superior courts of record also have power during
+the progress of a cause to repress or punish any disrespectful
+acts or words done or uttered, not in its presence, but so near
+to it as to constitute a breach of order or tend directly to
+lessen its efficiency. These are deemed powers inherent in such
+a court, because necessary to support its proper dignity and
+independence. Statutes are common to define or restrict them,
+but they cannot take them away altogether. To do so would be to
+take away an essential incident of the judicial power. Nor can
+they so far reduce the penalty that may be inflicted as to
+deprive the court of a reasonable measure of the right of
+self-protection.[Footnote: Batchelder _v._ Moore, 42
+California Reports, 412.] It is, to say the least, doubtful if
+they can even restrict its exercise by any court created by the
+Constitution itself.[Footnote: State _v._ Morrill, 16
+Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri
+Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_
+Robinson, 19 Wallace's Reports, 505, 510.]
+
+The accused is not entitled as of right to a trial by jury. The
+judge is the best guardian of the dignity of the court.[Footnote:
+_In re_ Debs, 158 U. S. Reports, 564, 595.]
+
+The rule of criminal law that to convict a man of crime requires
+proof of guilt beyond a reasonable doubt applies to all
+proceedings of contempt. The accused is also allowed to go free
+on giving bail until final sentence, if that is to be preceded by
+any preliminary inquiry involving adjournments from day to day.
+No such inquiry is necessary when the contempt is plain and was
+committed in the presence of the court.
+
+In the courts of the United States and in most of the States no
+appeal is allowed for errors in law from a summary sentence of
+punishment for a contempt of court. Appeals lie only from final
+judgments in a cause, and such a sentence for contempt is not so
+regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports,
+364, 376.] If the contempt be (as it may be) made the subject of
+a formal criminal prosecution and a jury trial, an appeal is
+allowed.
+
+A punishment inflicted for contempt, even though it goes beyond
+the rightful jurisdiction of the court in such a matter, is a
+judicial act, and does not expose the judge passing the sentence
+to an action for damages.[Footnote: Bradley _v._ Fisher, 13
+Wallace's Reports, 335.]
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XXI
+
+
+        JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO
+                     MARTIAL LAW
+
+
+Martial law is the exercise of military power. It is martial
+rule at the will of the commanding military officer.
+
+In time of war and at the seat of war martial rule is a
+necessity, and under such conditions martial law may rightfully
+be enforced by any sovereign as an incident of the war, whether
+that is being waged with foreign or domestic enemies. The case
+is different when, though war exists, an attempt is made to
+enforce martial law at a place which is not the seat of war, nor
+so near it as to make military rule necessary for military
+success. Constitutional provisions may also affect the question.
+Those affecting the United States contain limitations stricter
+than those found in some of the State Constitutions. Ordinarily
+no military officer can rightfully enforce martial law in a place
+where the regular courts of his sovereign are open and in the
+proper and unobstructed exercise of their jurisdiction.[Footnote:
+_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]
+
+The first serious contest between the judiciary and the military
+power in this country as to the questions thus involved took
+place during the war of 1812. General Jackson, in 1814, was at
+New Orleans in command of the military Department of the South.
+The city was threatened with invasion. He declared martial law,
+and not long afterwards arrested a Mr. Louaillier, a member of
+the State legislature, for writing a newspaper article in which
+he objected to the continuance of this kind of military
+government. Louaillier obtained a writ of _habeas corpus_
+from the District Judge of the United States (Judge Hall),
+directed to Jackson. The General, instead of obeying it,
+forthwith took possession of the original writ, arrested the
+Judge, and deported him from the city. Two days later despatches
+were received from the War Department officially announcing the
+conclusion of a treaty of peace. Judge Hall now returned, and a
+rule to show cause why Jackson should not be attached for
+contempt of court was issued. Jackson appeared and filed a long
+answer, first stating various objections to the jurisdiction, and
+then setting up the circumstances calling for his proclamation of
+martial law. He had been told, he said, that the legislature was
+"politically rotten." The Governor had warned him that the State
+was "filled with spies and traitors," and advised, in the
+presence of Judge Hall, and with no dissent from him, that
+martial law be proclaimed. It seemed a time when "constitutional
+forms must be suspended for the permanent preservation of
+constitutional rights." The lengthy paper, which was evidently
+written by a skilful lawyer, closed thus: "The powers which the
+exigency of the times forced him to assume have been exercised
+exclusively for the public good; and, by the blessing of God,
+they have been attended with unparalleled success. They have
+saved the country; and whatever may be the opinion of that
+country, or the decrees of its courts in relation to the means he
+has used, he can never regret that he employed them."[Footnote:
+Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court,
+not particularly impressed with these arguments, ordered the
+proceedings to go forward and required the General to answer
+certain interrogatories respecting his course of conduct, by a
+day appointed. He appeared on that day and declined to answer
+them, with this concluding shot:
+
+"Your honour will not understand me as intending any disrespect
+to the court; but as no opportunity has been afforded me of
+explaining the reasons and motives by which I was influenced, so
+it is expected that censure will constitute no part of that
+sentence, which you imagine it your duty to pronounce."[Footnote:
+_Ibid_., 387.]
+
+The sentence was a fine of $1,000, which was at once paid.
+
+The sympathy of the country was with "the hero of New Orleans" in
+this affair, whose gallant defense of that city had cast a gleam
+of glory upon the close of a long and apparently fruitless war.
+Some of her people subscribed the money to reimburse to him the
+amount of the penalty, but he declined to accept it. Nearly
+thirty years afterwards Congress made an appropriation for the
+purpose, and he received the full amount with interest (in all
+$2,700) from the treasury, as a legislative compensation for a
+judicial wrong. It would seem, however, that Judge Hall acted
+within the limits of his authority. When he signed the writ of
+_habeas corpus_ the State was at peace, and it was generally
+known, though not officially proclaimed, that a formal treaty of
+peace had been signed between the United States and Great
+Britain. The courts were open; his court was open; and the
+General should have respected the process which issued from
+it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports,
+O. S., 530. See opinion of Mr. Justice Miller in Dow _v._
+Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4
+Wallace's Reports, 2, 127.]
+
+During the Civil War, President Lincoln was responsible for many
+arrests by military officers of citizens of States remote from
+the seat of actual hostilities, and in which the courts were
+open. At its first outbreak he entirely suspended the privilege
+of the writ of _habeas corpus_, and one issued by the Chief
+Justice of the United States was disobeyed.[Footnote: _Ex
+parte_ Merryman, Taney's Decisions, 246.] Congress in 1863
+enacted that any order of the President, or under his authority,
+in the course of the war, should be a defense to any action in
+any court for what was done by virtue of it. The State courts
+disregarded the statute. If, they said, either the common law or
+martial law justified the order, it justified the act; if neither
+did, the fiat of Congress cannot make the act a lawful
+one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports,
+370.] The Supreme Court of the United States had this question
+before them, but did not find it necessary to decide
+it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510;
+Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the
+dissenting opinion of two justices in the last report, p. 292.)]
+Had they done so, it would probably have been answered in the
+same way.
+
+Missouri inserted in her Constitution of 1865 a provision similar
+to the Act of Congress. This, of course, so far as that State
+could do it, abrogated any rule of law to the contrary, and it
+was held not to contravene any provision of the Federal
+Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's
+Reports, 595.] The transaction in controversy, however, was
+before the adoption of the fourteenth amendment, and had the
+prohibition in that been then in existence, a different result
+would probably have been reached.
+
+The Governor of North Carolina (William W. Holden) in 1870
+declared two counties in a state of insurrection. The militia
+were called out and a number of citizens arrested. Writs of
+_habeas corpus_ in their favor were issued by Chief Justice
+Pearson of the Supreme Court of the State against the military
+officers.[Footnote: _Ex parte_ Moore, 64 North Carolina
+Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at
+first refused, by the Governor's authority, to obey them.
+Similar writs were then obtained from the District Judge of the
+United States, upon which the petitioners were, by the Governor's
+orders, produced before the State judge. The result was the
+impeachment of Governor Holden and his removal from
+office.[Footnote: S. S. Cox, "Three Decades of Federal
+Legislation," 458.]
+
+While martial law is the will of the commanding officer, it may
+be his will to have it applied, so far as ordinary matters of
+litigation are concerned, by courts. For that purpose, when in
+occupation of enemy's territory, he may allow the courts
+previously existing under the government of the enemy to continue
+in the exercise of their functions as his temporary
+representatives; or he can institute new tribunals of local
+jurisdiction having the name and form of civil courts, and
+proceeding according to the ordinary rules of administrative
+justice. All such courts act really as his agents and subject to
+his control, but in practice he seldom interferes with their
+judgments. He cannot, however, in establishing such a temporary
+tribunal, give it the powers of an admiralty court over prize
+cases. The judgment _in rem_ of an admiralty court,
+condemning a captured ship as a lawful prize of war, is treated
+as conclusive all over the world; but this is because it is a
+decree of a competent court, properly established to administer a
+branch of maritime law which, in its main principles, is part of
+the law of nations and common to the world. No mere military
+court on enemy's territory occupies that position.[Footnote:
+Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]
+
+This right of the military commander exists equally on foreign
+territory in military occupation and on domestic territory, when
+the ordinary courts of his country are not open. During our
+Civil War, in 1864, President Lincoln, as commander in chief of
+the army and navy, set up a "Provisional Court for the State of
+Louisiana," after the Southern portion of that State had been
+occupied by the national forces and martial law declared. Judge
+Charles A. Peabody of New York, who had been a justice of the
+Supreme Court of that State, was commissioned to hold it and to
+dispose of both civil and criminal causes. Its docket became at
+once a full one, and important litigation was transacted there
+with general acceptance until the close of the war.[Footnote: The
+Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
+Association for 1892, 199.]
+
+In the original proclamation of martial law in Louisiana the
+commanding officer announced that civil causes between parties
+would be referred to the ordinary tribunals. One of the State
+courts, known as a District Court of the City and Parish of New
+Orleans, the judge of which took the oath of allegiance to the
+United States, continued to sit and dispose of business in the
+usual course. A few months later a citizen of New York sued a
+military officer before it for ravaging a plantation which he
+owned in Louisiana, and recovered judgment. A suit upon it was
+afterwards brought in Maine, where the defendant resided. He
+pleaded that the property of the plaintiff had been taken to
+furnish his troops with necessary supplies. The case ultimately
+came before the Supreme Court of the United States. Here it was
+thrown out, the court saying that the District Court of New
+Orleans had no jurisdiction to call military officers to account
+for acts done under claim of military right.[Footnote: Dow
+_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
+litigation between private parties unconnected with military
+operations is concerned, a court of this character, established
+by law, and suffered by the military authorities to continue its
+sessions, has competent jurisdiction, and its judgments will be
+enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
+45 New York Reports, 27.] They have no power to entertain
+criminal charges against those in the military service, who would
+be punishable by court martial.[Footnote: Coleman _v._
+Tennessee, 97 U. S. Reports, 509, 519.]
+
+In 1864, during the war, but in Indiana, a State
+distant from the seat of hostilities, the military commandant
+of the district ordered the arrest of a private
+citizen and his trial before a military commission on
+charges of conspiracy against the United States, as a
+member of a secret organization known as the Order
+of American Knights or Sons of Liberty. The trial
+resulted in his conviction, and a sentence to death, which
+was approved by the President of the United States.
+Before it could be executed, he applied to the Circuit
+Court of the United States for the District of Indiana
+for a writ of _habeas corpus_. The judges of that court
+were divided in opinion in regard to the case, but it
+was decided in his favor when it came before the
+Supreme Court of the United States.[Footnote: _Ex parte_
+Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
+was unanimous, but in stating the reasons for it the
+court was divided in a manner which has not been
+uncommon since the death of Chief Justice Marshall
+when any great question of a political nature has
+been involved. Five justices held that the trial of
+a civilian by a military commission can never be vindicated
+in a peaceful State where the courts are open
+and their process unobstructed. Four justices dissented,
+and Chief Justice Chase thus summarized their
+conclusions:
+
+  There are under the Constitution three kinds of military
+  jurisdiction: one to be exercised both in peace and war;
+  another to be exercised in time of foreign war without the
+  boundaries of the United States, or in time of rebellion and
+  civil war within States or districts occupied by rebels treated
+  as belligerents; and a third to be exercised in time of
+  invasion or insurrection within the limits of the United
+  States, or during rebellion within the limits of States
+  maintaining adhesion to the National Government, when the
+  public danger requires its exercise. The first of these may be
+  called jurisdiction under military law, and is found in acts of
+  Congress prescribing rules and articles of war, or otherwise
+  providing for the government of the national forces; the second
+  may be distinguished as military government, superseding, as
+  far as may be deemed expedient, the local law, and exercised by
+  the military commander under the direction of the President,
+  with the express or implied sanction of Congress, while the
+  third may be denominated martial law proper, and is called into
+  action by Congress, or temporarily, when the action of Congress
+  cannot be invited, and in the case of justifying or excusing
+  peril, by the President, in times of insurrection or invasion,
+  or of civil or foreign war within districts or localities where
+  ordinary law no longer adequately secures public safety and
+  private rights.
+
+  We think that the power of Congress in such times and in such
+  localities to authorize trials for crimes against the security
+  and safety of the national forces may be derived from its
+  constitutional authority to raise and support armies and to
+  declare war, if not from its constitutional authority to
+  provide for governing the national forces.[Footnote: _Ex
+  parte_ Milligan, 4 Wallace's Reports, 141.]
+
+The Constitution of the United States contains some provisions
+restricting the jurisdiction of military authorities and
+tribunals over controversies, which are not found in the
+Constitutions of the States. It may well be that martial law has
+for the United States a narrower meaning than it may possess in a
+particular State.
+
+The legislature of Rhode Island in 1842, during "Dorr's
+Rebellion," by a Public Act put that State under martial law
+until further order, or until its termination should be
+proclaimed by the Governor. A squad of militia broke into the
+house of a private citizen to arrest him as an abettor of Dorr,
+and were afterwards sued in trespass before the civil courts.
+The cause finally came before the Supreme Court of the United
+States, where (one justice only dissenting) it was held that the
+Act could not be pronounced an unjustifiable exercise of
+legislative power under any provision of the federal
+Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
+Reports, 1, 45.] Whether the courts of Rhode Island could have
+taken a different view, under the fundamental laws of the State,
+was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
+Reports, 2, 129.]
+
+On the other hand, there are States in which the Constitution
+explicitly provides that "the military power shall always be held
+in an exact subordination to the civil authority and be governed
+by it."[Footnote: Constitution of Massachusetts, Declaration of
+Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
+Sec, 22.] It is a serious question whether, under such
+provisions, a legislative or executive declaration of martial law
+in time of peace, in order the better to cope with some local
+disturbance, is to be regarded as an expression of the will of
+the civil authority, by virtue of which the civil courts lose the
+power of discharging on _habeas corpus_ one restrained of
+his liberty by military command. That it is such an expression
+was held in Colorado in 1904, but by a court composed of only
+three judges, of whom one, in a dissenting opinion, observed that
+the decision of his associates "is so repugnant to my notions of
+civil liberty, so antagonistic to my ideas of a republican form
+of government, and so shocking to my sense of propriety and
+justice that I cannot properly characterize it." A similar
+question arose, but was not judicially determined, in Arkansas in
+1874. There was a contest over the election of Governor. The
+Constitution provided that such contests should be decided by the
+joint vote of both houses of the legislature. Baxter, the
+candidate who was elected on the face of the returns, was
+declared elected by the President of the Senate and took the oath
+of office. Brooks, the other candidate, presented a petition for
+a contest to the lower house, which refused to grant it. He then
+applied to the Supreme Court on _quo warranto_ proceedings,
+which threw out the case for want of jurisdiction.[Footnote:
+State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
+suit was then brought in a _nisi prius_ court, on which
+judgment was rendered in his favor,[Footnote: This judgment was
+reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
+173.] and he was put in possession of the executive chambers by
+an armed force which he assembled. Baxter then declared martial
+law in the county in which the capital was situated, and arrested
+two of the judges of the Supreme Court on their way to attend a
+special session called to take action in _mandamus_
+proceedings brought in behalf of Brooks. They were rescued after
+a day or two by United States troops and proceeded to join their
+associates. The court then gave judgment for Brooks in his third
+suit, directing the State Treasurer to pay his warrants. At this
+point the legislature applied to the President of the United
+States for protection against domestic violence, under Art. IV of
+the Constitution of the United States, and his compliance by a
+proclamation officially recognizing Governor Baxter and ordering
+the Federal troops to support him closed the history of this
+disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
+for 1874," 87-100.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXII
+
+
+       APPOINTMENT, TENURE OF OFFICE AND COMPENSATION
+                      OF JUDGES
+
+
+The oldest which survives of our American Constitution, that
+adopted by Massachusetts in 1780, requires the appointment of
+judges to be made by the Governor of the State, with the advice
+of the Council, and for good behavior.[Footnote: Constitution of
+Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]
+
+This plan was substantially followed in framing the Constitution
+of the United States. That was planned for a small number of
+States, perhaps only nine, certainly at first not over thirteen.
+The Senate, therefore, would be a body small enough to serve as
+an executive council. Its necessary enlargement by the admission
+of new States has long made it but ill-suited for this purpose,
+and has thrown the power of confirming or rejecting an executive
+nomination for judicial office largely under the control of the
+Senators from the State to which the person named belongs,
+although this control is much weakened if they do not belong to
+the party of the administration. The principle that the greater
+the concentration of the appointing power, the greater will be
+the sense of individual responsibility for every appointment
+made, makes this result of a Senate of ninety members not wholly
+unfortunate. The President now consults a council of two.
+
+Thirteen States in all originally gave to the Governor the power
+either of appointing or of nominating the judges of the higher
+courts; fourteen gave their election to the legislature; the rest
+preferred an election by the people.[Footnote: 'Baldwin, "Modern
+Political Institutions," 58, 59.] If we compare the original
+practice in each State with its present practice, we find that
+there are now fewer in which the Governor appoints or nominates;
+fewer in which the legislature elects; more in which the people
+do. Legislative elections have been found to imply a system of
+caucus nominations, and have often led to a parcelling out of
+places among the different counties in which geographical
+considerations told for more than did fitness for office. In one
+State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
+since 1880, the legislature has elected on the Governor's
+nomination. In practice they have never failed to act favorably
+upon it.
+
+Mississippi, which, in 1832, became a leader in the movement
+toward the choice of the judges by popular election, in her
+latest Constitution (of 1890) follows the plan of the United
+States, the Governor nominating and the Senate confirming.
+
+The action of the confirming or electing body when unfavorable in
+any State has generally been unfortunate. It is apt to be
+affected by local or personal political influence to which the
+chief executive would be insensible. A large number of able men
+have thus, from time to time, been deprived of a seat on the
+Supreme Court of the United States who would have added to its
+luster. In 1867 Massachusetts lost a Chief Justice of the first
+rank in this way by the defeat of Benjamin F. Thomas. The
+council refused, by a majority of one, to confirm his nomination
+because, though of the same party with them, he was of a
+different wing.[Footnote: Proceedings Mass. Historical Society,
+2d Series, XIV, 301.]
+
+In most of the States the judges are now elected by the
+people.[Footnote: In thirty-three. In one other (Florida) the
+people elect the judges of the Supreme Court, and the Governor,
+with the advice and consent of the Senate, appoints those of the
+superior courts. The Governor nominates in Delaware, Mississippi
+and New Jersey, and in the four largest New England States. In
+Rhode Island and Vermont, South Carolina and Virginia, the
+legislature elects.] This makes the choice more a political
+affair. The nominations are made by party conventions, and
+generally in connection with others of a purely political
+character. It also, in case of a nomination for re-election,
+places a judge on the bench in the disagreeable position of being
+a candidate for popular favor at the polls and an object of
+public criticism by the political press.
+
+In 1902 a justice of the Supreme Court of Michigan was nominated
+for re-election. There was an opposing candidate, some of whose
+friends published a statement that in the nine years during which
+the justice had already served he had written opinions in 68
+railroad and street railway cases of which 51 were in favor of
+the companies. He was re-elected, but some time afterwards this
+fact was reprinted in a local periodical accompanied by the
+remark that "we must conclude that either the railroad and
+railway companies--4 to 1--had exceptionally good cases from the
+standpoint of law and justice or his Honor's mind was somewhat
+warped in their favor.... You can't expurge mental prejudice
+from judicial opinions any more than you can from the reasonings
+of theologians and atheists.... To imagine a justice deciding a
+case against his personal interests is too great a stretch of
+imagination for us to appreciate."
+
+A less brutal but more dangerous attack, made in 1903 by a
+religious newspaper, illustrates the same evil. The Supreme
+Court of Nebraska has decided that under their Constitution the
+Bible cannot be used in the public schools. It was, of course, a
+pure question of the construction of a law, for the policy of
+which the court had no responsibility. The newspaper in
+question[Footnote: The Boston _Congregationalist_ of Oct. 3,
+1903.] which, though published in the East, had some circulation
+in that State, printed this paragraph:
+
+"The Supreme Court judge of Nebraska who wrote the decision that
+the State constitution prohibits the use of the Bible in the
+public schools is standing for re-election, and the fact that he
+made such a decision is not forgotten by the Christian voters."
+
+In States the control of which by one of the great political
+parties is assured, the real contest is for the nomination, and
+here there is even more license for unfavorable comment on the
+judicial record of one who seeks it. In a Southern State there
+was such a struggle in 1903 for the nomination of the prevailing
+party for Governor. The person who then held that place desired
+it. So did one of the justices of the Supreme Court. It is said
+that the friends of the former circulated a cartoon representing
+the five justices together as five jackasses, and another in
+which the justice whom they were trying to run off the field was
+caricatured in the act of setting aside a verdict in favor of a
+child injured by a railway accident. The two candidates
+subsequently met upon the platform for a joint discussion of the
+issues before the people. The Governor sharply criticised the
+character of the Supreme Court. The judge caught him by the
+collar and was about to strike him when friends intervened, and
+an explanation of the remarks was made which was accepted as
+satisfactory.
+
+In the heat of a political campaign men do not always stop to
+measure words or weigh questions of propriety. The personal
+character and public acts of an opponent are a legitimate subject
+of description and comment. Sharp attacks must be expected as a
+natural incident of such a contest, and by candidates for
+judicial office as well as others. The public record of all for
+whom votes are asked at a public election must be the subject of
+open criticism, or there would be danger that unworthy men would
+succeed. To treat such observations as have been quoted upon
+opinions previously written by a candidate for re-election,
+however unseemly or unjust, as a contempt of court would be
+indirectly to impair the right of free suffrage.
+
+If assertions published as to acts done or words said are false,
+it does not follow that they are libellous. An honest mistake
+may be a defense for such a misstatement.[Footnote: Briggs
+_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
+Reporter, 513.]
+
+Judges of trial courts, when candidates for re-election, may
+expect the publication of similar attacks on rulings which they
+have made. The following dispatches, which appeared in the same
+issue of a local newspaper in Pennsylvania in 1903, when a county
+election was soon to occur, will sufficiently illustrate this:
+
+           HOT JUDICIAL FIGHT PROMISED FOR MERCER.
+           COUNTY WILL BE SCENE OF AN INTERESTING
+                STRUGGLE FOR SEATS IN THE
+                    LEGISLATURE.
+
+  Sharon, Pa., Dec. 25.--From present indications the coming
+  judicial fight in Mercer County will be a bitter one. Public
+  interest centers in the efforts of Judge S. H. Miller and his
+  friends to secure a re-election, and the attempts of his
+  opponents to place A. W. Williams of Sharon on the bench
+  instead. While the sole topic politically is on the judgeship,
+  the twenty or more candidates for Assembly are not losing the
+  opportunity of fixing their fences. They, too, have assumed a
+  reticence in regard to the matter of the judgeship. It is
+  expected that on the last lap of the race Williams and Miller
+  will be the only two men remaining. There are three other
+  candidates for the Republican nomination who have thus far
+  announced themselves. They are: W. J. Whieldon of Mercer;
+  W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
+  Judge Miller and A. W. Williams are the closest of friends.
+
+        JUDGE MILLER ASKS FOR MODERATION. BARS PURE
+            FOOD PROSECUTIONS BY REFUSING TO
+                SENTENCE THOSE CONVICTED.
+
+  Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
+  Warren has been confronted with a new proposition in his
+  crusade in Western Pennsylvania against violators of the pure
+  food laws. Judge S. H. Miller of Mercer County, before whom
+  several oleomargarine dealers were recently convicted for the
+  illegal sale of "oleo," has refused to sentence them on the
+  ground that the procedure of the State Pure Food Bureau is
+  persecution and lacking in equity. He takes the position that
+  grocers and saloon keepers, not being expert chemists, should
+  at least be warned previous to arrest, and be given a chance to
+  determine whether the foods they are handling are pure or
+  adulterated. Judge Miller's position is a serious impediment
+  in the way of the enforcement of the law, and Commissioner
+  Warren is preparing to take action that may compel him to
+  punish offenders convicted before him.
+
+Not infrequently in the judicial history of the United States
+there has been presented to a judge the choice between rendering
+a decision according to his opinion of the law and the facts and
+losing his seat, and rendering one according to public opinion,
+or the public opinion of his party friends, and keeping it.
+
+A judge of the High Court of Errors and Appeals in Mississippi
+was one of the earlier martyrs in the cause of judicial
+independence. The State had incurred a heavy bonded debt, which
+she found it inconvenient to pay. The Governor, who had approved
+the bills under which over $15,000,000 of the bonds had been
+issued, concluded in 1841, after the issue, that it was forbidden
+by the Constitution of the State, and issued a proclamation
+declaring them void. In a suit in chancery this question came up
+for decision in 1852. Meanwhile the policy of "Repudiation" had
+been made a political issue and the people had given it their
+approval by electing its advocates year after year to the highest
+offices. The chancellor upheld the validity of the bonds, and on
+appeal his decision was unanimously affirmed.[Footnote: State
+_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
+Sergeant S. Prentiss, II, 268.] A few months later the term of
+office of one of the judges who had concurred in this opinion
+expired, and the people put a successor in his place who held
+doctrines better suited to the public sentiment of the hour.
+
+In the days preceding the Civil War, the validity of the laws
+enacted by Congress to secure the recapture of slaves who had
+fled to the free States was frequently attacked in the press and
+on the platform. The Constitution expressly provided for such
+proceedings, and the Supreme Court of the United States in 1842
+had pronounced the "Fugitive Slave law" of 1793 to be valid in
+all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
+Reports, 539.] The principle of this decision plainly covered
+the later Act of 1850, but as public sentiment in the North
+became more and more uncompromising in its hostility to the
+existence of slavery under the flag of the United States, the
+State courts were not always strong enough to withstand the
+pressure to disregard precedents and let the Constitution give
+place to what the phrase of the time called a "higher law."
+
+In 1859, a citizen of Ohio was convicted in the District Court of
+the United States and sentenced to jail for rescuing a fugitive
+slave who had been recaptured in Ohio by an agent of his master,
+to whom he had been committed in proceedings under the Act of
+Congress. He was imprisoned in an Ohio jail, the United States
+then having none of their own, but placing all their convicts in
+State jails or prisons under a contract with the State to keep
+them for a certain price. His counsel applied to the judges of
+the Supreme Court at chambers for a writ of _habeas corpus_
+against the Ohio jailer. He produced his prisoner and submitted
+a copy of the warrant of commitment from the District Court. The
+public were extremely interested in the outcome of the
+proceedings. The Attorney-General of the State assisted in
+presenting the petitioner's case. The Governor was one of the
+multitude present in the crowded court room. The
+Attorney-General declared that the position that the Supreme
+Court of the United States had the power to decide conclusively
+as to the constitutionality of the laws of the United States and
+so tie the hands of the State authority was untenable and
+monstrous. "Georgia," he said, "hung Graves and Tassel over the
+writ of error of this same Supreme Court. God bless Georgia for
+that valiant and beneficent example."[Footnote: _Ex parte_
+Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
+sectional court composed of sectional men, judging sectional
+questions upon sectional influences."[Footnote: _Ibid._,
+161.]
+
+Of the five judges, three held that the constitutionality of the
+Fugitive Slave law was settled conclusively by repeated decisions
+of the Supreme Court of the United States, and that the State
+courts could not release the prisoner. Chief Justice Swan gave
+the leading opinion. Its positions were thoroughly distasteful
+to the people of Ohio. He knew they would be. His term, which
+was one of five years, expired in the following February, and the
+vacancy was to be filled at the State election in October. On
+the day before the judgment was announced he told his wife that
+this would be fatal to his re-election. "If the law makes it
+your duty to give such an opinion," said she, "do it, whatever
+happens." He gave it, and what they anticipated occurred. The
+convention of his party declined to renominate him. He resigned
+his office immediately after the election and retired to private
+life at an age and under circumstances which made it
+impracticable for him to re-enter the bar with success, but with
+the consolation of knowing that he had acted right.
+
+Chief Justice Day of Iowa, one of the ablest men who ever sat on
+her Supreme bench, in the same way lost a re-election by writing
+an opinion of the court, which announced a doctrine that was
+legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
+Reports, 543, 603.] His term was soon to expire. He, too, knew
+that this decision would prevent his renomination, and it did.
+
+In 1885, Chief Justice Cooley of Michigan, one of the great
+jurists and judges of the country, failed to secure a re-election
+to its Supreme Court, which he had adorned for twenty-one years,
+largely on account of an opinion which he had written supporting
+a large verdict against a Detroit newspaper for libel. The
+newspaper, upon his renomination, described him as a railroad
+judge, and kept up a running fire through the campaign, which
+contributed materially to his defeat.
+
+Political contests cost money, and if judges appear as candidates
+for popular suffrage they are naturally expected to contribute to
+the expense. The other candidates on the same ticket do this,
+and if those nominated for the bench did not, somebody would have
+to do it for them, thus bringing them under obligations that
+might have an unfortunate appearance, if not an unfortunate
+effect. In New York, where some of the judicial salaries are
+higher than anywhere else in the country, and the terms for the
+highest places are long (fourteen years), it has been customary
+for those placed in nomination to contribute a large sum to the
+campaign expenses of their party. This is tacitly understood to
+be a condition of their accepting the nomination, and the amount
+to be paid is fixed by party practice. For an original
+nomination by the party in power, it is said to be about equal to
+a year's salary; for a renomination half that sum may suffice.
+
+But a judge holding office by popular election must
+in any case owe something to somebody for supporting
+his candidacy. He is therefore under a natural inclination
+to use his power, so far as he properly can, in
+such a way as to show that he has not forgotten what
+his friends have done for him. There is always a
+certain amount of judicial patronage to be bestowed.
+There are clerks and messengers, trustees and receivers,
+referees and committees, perhaps public prosecuting
+attorneys and their assistants, to appoint. Other
+things being equal, no one would blame a judge for
+naming a political friend for such a position. But as
+to whether other things are equal he is to decide. To
+the most upright and fearless man the danger of this is
+great; to a weak or bad man the feeling of personal
+obligation will be controlling. Justice Barnard of the
+Supreme Court of New York once observed on the
+bench that judges had considerable patronage to be
+disposed of at their discretion, and that for his part
+he had always succeeded in life by helping his friends
+and not his enemies. For this practice, among other
+things, he was impeached and removed from office; but
+how many judges are there who yield to this temptation
+without avowing it?  A French critic of the
+elective judiciary has thus referred to these remarks
+of Justice Barnard:
+
+  Le Juge Barnard, qui formulait en plein tribunal cette
+  déclaration de principes, fut décrété d'accusation et condamné,
+  non sans justes motifs. Mais son crime impardonable était de
+  proclamer trop franchement les doctrines de la magistrature
+  élective: il trahissait le secret professionnel.[Footnote: Duc
+  De Noailles, _Cent Ans de République aux Etats-Unis_, II,
+  232.]
+
+Most of the old thirteen States in their first Constitutions
+provided that the judges of their highest courts should hold
+office during good behavior, or until seventy years of age. New
+York at first put the age of superannuation at sixty, but after
+losing by this the services of Chancellor Kent for some of his
+best and most fruitful years, postponed it to seventy. Georgia
+was the first to set the fashion of short terms. Her
+Constitution of 1798 provided that the judges of her highest
+court should be "elected" for three years, but that those of her
+inferior courts should be "appointed" by the legislature and hold
+during good behavior. The legislature construed this as allowing
+it to frame such a scheme of election as it thought best, and
+that adopted was for the House to nominate three, from whom the
+Senate elected one.[Footnote: Schouler, "Constitutional Studies,"
+65.]
+
+In all but three States (Massachusetts, New Hampshire and Rhode
+Island) at the present time all judges hold for a term of years,
+and as a general rule those of the higher courts have longer
+terms than those of the inferior ones. The change from life
+tenure to that for a term of years was partly due to several
+instances which occurred early in the nineteenth century, in
+which it was evident that judges had outlived their usefulness.
+Judge Pickering of the District Court of New Hampshire lost his
+reason, and to get rid of him it became necessary to go through
+the form of impeachment. In 1803, Judge Bradbury of the Supreme
+Judicial Court of Massachusetts, who had been incapacitated by
+paralysis, was displaced in the same way, though only a few
+months before his death. In 1822, an old man who was the chief
+judge of one of the judicial districts of Maryland was presented
+by the grand jury as a "serious grievance," on account of his
+habitual absence from court. His physician certified that his
+life would be hazarded if he undertook to attend, but the natural
+answer was that then he should resign.
+
+At present, for judges of the State courts of last resort, the
+term in Pennsylvania is twenty-one years (but with a prohibition
+of re-election); in Maryland, fifteen; in New York, fourteen; in
+California, Delaware, Louisiana, Virginia, and West Virginia,
+twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
+Illinois, and Mississippi, nine. The general average is eight,
+although that particular number obtains in but seven States. In
+eighteen it is six. The shortest term is two, and is found in
+Vermont. It may be noted that the original rule in Vermont was
+to elect judges annually. As compared with the terms of office
+prescribed at the middle of the nineteenth century, those at the
+opening of the twentieth are on the average decidedly longer.
+
+            *       *       *       *       *
+
+The compensation of most American judges is a fixed salary.
+
+In some States, courts of probate and insolvency, and in all
+justices of the peace when holding court, are paid by such fees
+as they may receive, at statutory rates, for business done. As
+in the case of sheriffs and clerks, judges under such a system
+sometimes receive a much larger official income than any one
+would venture to propose to give them were they to be paid for
+their services from the public treasury. A clerk of court often
+receives more than the judge, and some judges of probate and
+insolvency more than the Chief Justice of their State.
+
+In colonial times, judges were sometimes paid in part by fees, in
+part by occasional grants by the legislature, and in part by a
+regular stipend. This practice of legislative grants from time
+to time in addition to their salaries was continued in
+Massachusetts in favor of the justices of the Supreme Judicial
+Court for a quarter of a century, in the face of a Constitution
+which provided that they "should have honourable salaries
+ascertained and established by standing laws."[Footnote: Memoir
+of Chief Justice Parsons, 228.] It was evidently indefensible in
+principle, and to remove judges, as far as possible, from
+temptation either to court the favor or dread the displeasure of
+the legislature it is now generally provided in our American
+Constitutions that their salaries shall be neither increased nor
+decreased during the term for which they may have been elected by
+any subsequent change of the law. In a few States it is thought
+sufficient to guard against the consequences of legislative
+disfavor, and the Constitutions forbid only such a decrease of
+salary.
+
+The Chief Justice of the Supreme Court of the United States
+receives $13,000 a year and his associates $12,500. Circuit
+Judges have $7,000, and District Judges $6,000.
+
+In the States, the Chief Judge of the New York Court of Appeals
+receives $10,500 and his associates $10,000. The same salaries
+are given in Pennsylvania. In New Jersey, the Chancellor and the
+Chief Justice each receive $10,000 and the associate judges
+$9,000. In Massachusetts, the Chief Justice receives $8,500 and
+his associates $8,000. In the other States less is paid, the
+average for associate judges in the highest courts being about
+$4,350. Only nine States pay over $5,000. The Chief Justice in
+many receives $500 more. These salaries are, however, generally
+supplemented by a liberal allowance for expenses, and in some
+States each judge is provided with a clerk. In New York, this
+addition amounts to $3,700; in Connecticut, to $1,500; in
+Vermont, to $300.
+
+The salaries for the highest trial court generally closely
+approximate those paid to the judges of the Supreme Court, and in
+case of trial courts held in large cities are often greater.
+Those for the inferior courts are much lower.
+
+The judges of the principal _nisi prius_ court (which is
+misnamed the Supreme Court) in New York City are allowed by law
+to accept additional compensation from the county, and receive
+from that source more than from the State, their total official
+income being $17,500. The trial judges in Chicago also receive
+$10,000, although the highest appellate judges in the State have
+a salary of only $7,000.
+
+It is not surprising that American judicial salaries are no
+greater, but rather that they are so large. They are fixed by a
+legislature, the majority of the members of which are men of very
+moderate income, and when originally fixed in the older States it
+was often by men not altogether friendly to the judiciary. It
+was a saying of Aaron Burr, which was not wholly untrue in his
+day, that "every legislature in their treatment of the judiciary
+is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
+186.] Only the influence of the bar has carried through the
+successive increases which have been everywhere made.
+
+The first pension to a retired judge ever granted in the United
+States was one of $300 voted in Kentucky in 1803. It was offered
+to one of the members of the Court of Appeals to induce him to
+resign, but the year after his resignation the statute was
+repealed on the ground that it was unconstitutional.[Footnote:
+Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
+States have allowed their judges who have reached the age of
+seventy, after not less than ten years' service, to retire, at
+their option, receiving the full official salary during the
+remainder of their lives. Rhode Island gives hers the same
+privilege after twenty-five years' service, and Massachusetts and
+Maryland have somewhat similar provisions, except that the judges
+on retirement receive but part of what they formerly did. The
+Connecticut legislature is in the habit of appointing her judges,
+both of the Supreme and Superior Court, when retired at the age
+of seventy, State referees for life, with an allowance of $2,500
+for salary and expenses, their duties being to try such questions
+of fact as the courts may refer to them and to report their
+conclusions.
+
+Our State Constitutions now generally provide that judges shall
+hold no other public office. Some also provide that all votes
+for any of them for any other than a judicial office shall be
+void.
+
+            *       *       *       *       *
+
+Occasionally a judge, in order to eke out his official income,
+accepts a salaried position, calling for but little of his time,
+in a matter of private business employment. This, however, is
+rarely done and there are obvious objections to it when the
+employer is one likely to have business before the court. Many
+of the judges of the higher courts, including several of the
+justices of the Supreme Court of the United States, are
+professors or lecturers in law schools.
+
+The best mode of appointing judges is that which secures the best
+men. Such men are unlikely to accept a place on the bench of one
+of the higher courts, unless it carries with it some prospect of
+permanence. It does, if it comes to them by way of promotion
+after they have served acceptably for a length of time in an
+inferior court. But most judges must be taken from the bar and,
+save in very unusual cases, will be in large and active practice.
+This must be totally abandoned if they take one of the higher
+judicial positions; and if they take the lowest, must be made
+secondary to it. A lawyer's practice is more easily lost than
+gathered. If it is a solid one, it is of slow growth. For one
+who has turned from the bar to the bench to expect on retirement
+from office to resume his old practice would be to expect the
+impossible. He may have achieved a position by his judicial work
+which will enable him to take a better position at the bar; but
+in that case his clients will be mainly new ones. He is more
+likely, particularly if no longer young, to sink into a meagre
+office practice and feel the pinch of narrow means, always doubly
+sharp to one who by force of circumstances has a certain social
+standing to maintain. The leaders at the bar therefore seldom
+consent to go upon the bench unless they have property enough to
+ensure their comfortable support after they leave it, without
+returning to the labors of the bar.
+
+This is one of those evils which carry in some sort their own
+antidote. The lawyers, as a body, are always anxious for their
+own sake to have an able and independent bench. They do not wish
+to trust their causes, when they come before a court of last
+resort for final disposition, to men of inferior capacity and
+standing. They therefore can generally be relied on to urge on
+the nominating or appointing power the selection of competent
+men. Their influence in this respect is little short of
+controlling. If competent men will not ordinarily go on the
+bench of an appellate court, unless by way of promotion, until
+they have accumulated a sufficient fortune to make them
+comfortable in old age, then as competent men will usually, in
+one way or another, be selected, and as few of these are men who
+from their youth have been occupying judicial positions, the
+judges will usually be possessed of some independent means. A
+property qualification almost is thus imposed by circumstances on
+those forming the American judiciary in its highest places. The
+same thing is true of our higher diplomatic positions. As Goethe
+has said, there is a dignity in gold. It is a poor kind of
+dignity when unsupported by merit, but if to gold merit be
+joined, each lends to the other solidity and power.
+
+Among the men of the first eminence at the bar whom the
+meagerness of the salary has kept off the bench may be mentioned
+Jeremiah Mason, who declined the position of Chief Justice of New
+Hampshire on this account, and William Wirt. Wirt in 1802 was
+made one of the Chancellors of Virginia at the age of
+twenty-nine. The salary and fees amounted to about five hundred
+pounds a year. He married on the strength of it, but in a few
+months found that his income was insufficient to maintain his
+family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
+99.]
+
+Dignity and power, however, are strong attractions. Theophilus
+Parsons in 1806 left a practice worth $10,000 a year--the largest
+in New England in his day--to take the place of Chief Justice of
+Massachusetts on a salary of $2,500. After three years he sent
+in his resignation, saying that he found that this sum was
+insufficient for his support, even with the addition of the
+income from such property as he possessed. The legislature
+thereupon raised the salary to $3,500, and he remained on the
+bench through a long life.[Footnote: "Memoir of Chief Justice
+Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
+Island, who then had a practice of $8,000 a year, gave it up for
+the Chief Justiceship of the State, though the salary was then
+but $750, supplemented by some trifling fees. In a few years,
+however, he resigned the office on account of the inadequacy of
+the compensation.[Footnote: Payne, "Reminiscences of the Rhode
+Island Bar," 75.]
+
+The qualities of a judge are by no means the qualities of a
+politician. The faculty of looking at both sides of a question
+and the power of forming deliberate and well-considered judgments
+do not tell for much in a campaign speech. The politician's
+title to support is standing by his friends. The judge's duty
+may be to decide a cause against his friends. Many a lawyer of
+eminence might accept a nomination from a President or Governor
+involving no participation in a political election contest who
+would refuse one from a party convention.
+
+The general sentiment of thinking men in the United States is
+that judges should never be chosen by popular vote. It is,
+however, an unpopular sentiment. The people in general do not
+appreciate the difference between their fitness to select
+political rulers and to select judicial rulers--to choose out
+good men and to choose out good lawyers. And the people make and
+ought to make our Constitutions. Rufus Choate once said that the
+question at bottom was, Are you afraid to trust the people?  If
+you answer Yes, then they cry out that "he blasphemeth." If you
+answer No, they naturally reply, Then let them elect their
+judges.
+
+Jefferson was the first to suggest an elective judiciary, basing
+his opinion on a misconception of the usage in Connecticut.
+There, he wrote, the judges had been chosen by the people every
+six months for nearly two centuries, yet with few changes on the
+bench, "so powerful is the curb of incessant
+responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
+July 12, 1816, regarding a new Constitution for Virginia.] In
+fact, the Connecticut judges were chosen annually, and those not
+holding judicial powers as an incident of political ones were
+appointed by the legislature. The experiment of resorting to
+popular election was first fully tried in Mississippi in 1832,
+under the influence of Governor Henry T. Foote, but in later life
+he expressed his regret at the course which he had taken, and the
+belief that it had weakened the character of the bench.[Footnote:
+"Casket of Reminiscenses," 348.]
+
+The scheme of popular election may be pursued with reasonable
+success if the bar use all the influence at their command to
+secure both good nominations originally and the re-election of
+all who have served well.[Footnote: It is not uncommon for local
+bar associations after the party nominations for the bench have
+been made to refer them to a committee, on the report of which
+those deemed the best are commended for popular approval. In two
+judicial districts in Iowa, the lawyers nominate judges for the
+district in a convention of delegates from the bar, and then see
+to it that the nominations are ratified by the party conventions.
+Simon Fleischmann, "The Influence of the Bar in the Selection of
+Judges," Report of 28th annual meeting of the New York State Bar
+Association (1905).] A conspicuous instance of its success under
+such conditions is shown by the repeated re-election of Judge
+Joseph E. Gary of the criminal court of the city of Chicago.
+Originally elected in 1863, when it was called the Recorder's
+Court, he has been re-elected for successive terms of six years
+without a break, and in 1903, when he was 82 years old and still
+in active service on the bench, received well-merited addresses
+of congratulation from the Chicago Law Institute and the Chicago
+Bar Association. Judges of Probate, whose functions are largely
+of a business character, and who are brought into close contact
+with the people at first hand, are frequently re-elected for a
+long period of years with little regard to their party
+affiliations.[Footnote: In the Probate District of Hartford in
+Connecticut there have been but two judges during the last forty
+years, though the elections have been annual or biennial.]
+
+In case of those having long terms of office, a re-election comes
+more easily and commonly. A man who has been ten or twenty years
+upon the bench has become set apart from the community. The
+people have ceased to think of him as one of themselves, so far
+as the active political and business life of the day is
+concerned. His position and his work, if it has been good, have
+given him a certain elevation of station. Men have learned to
+trust him, and to feel that his presence on the court helps to
+make liberty and property more secure. If he receives his party
+nomination, he is apt to secure a majority of votes, whether the
+others on the ticket are or are not elected. The opposing party
+often nominates him also, and sometimes, if his own gives the
+nomination to another, nominates him itself, and with success.
+
+In New York it has been generally the case that a good judge of
+the Court of Appeals or Supreme Court is re-elected until he
+reaches the age limit set by the Constitution. To accomplish
+this, however, it has been necessary for the bar to use constant
+efforts to bring the nominating conventions of both parties to
+the support of the same man or men, and personal ambition and
+party feeling have on a number of occasions set up an effectual
+bar. Before a recent election of two judges in that State, in
+preparation for which a scheme had been suggested by which one of
+the outgoing judges of each party should be re-elected, a third
+candidate for the succession, himself a prominent member of the
+bar and an officer of the State, published a lengthy statement of
+his claims, which concluded thus:
+
+"I am a candidate for nomination to the office of Associate Judge
+of the Court of Appeals at the coming Democratic State
+Convention. I appeal to my fellow-citizens for their support.
+While I do not believe that support for judicial candidacy should
+be unduly importuned, I feel that the present circumstances
+justify me in making this announcement. I have always stood by
+my party in its dark days, when others voted the Republican
+ticket in the interest of their business. I have assisted in
+endeavors to so shape its policies as to make success possible.
+Now that this has been accomplished, I do not think that my
+fellow-Democrats will thrust me aside to make way for those who
+neither affiliate with the party nor vote its ticket."
+
+As a general rule, in the country at large political
+considerations are decisive, both in cases of popular election
+and of executive nomination, but as to the latter exceptions are
+more frequent. One instance has occurred in which a President of
+the United States nominated to the Supreme Court a member of the
+party in opposition to the administration,[Footnote: Howell
+E. Jackson, a Democrat, was thus appointed by President Harrison,
+a Republican, in 1893. President Taft, a Republican, has since
+appointed two Democrats, justices Lurton and Lamar, and made a
+third Chief Justice.] and the same President, upon the creation
+of the Circuit Court of Appeals, when there were a number of new
+judges to be appointed, gave several of the places to those not
+of his political faith. It is, however, to be expected that the
+Presidents of the United States, as a general rule, will place
+upon the Supreme Court none whose political opinions are not
+similar to their own. It is a court wielding too great a
+political power to allow this ground of qualification to be
+lightly passed over.
+
+Precisely because of this, the political antecedents of the
+justices of the Supreme Court are more apt to be discoverable in
+their opinions than is the case in State courts. Professor
+William G. Sumner, in referring to the change of character of the
+Supreme Court by reason of Jackson's appointments to it, remarks
+with some truth that "the effect of political appointments to the
+bench is always traceable after two or three years in the
+reports, which come to read like a collection of old stump
+speeches."[Footnote: "Life of Andrew Jackson," 363.]
+
+In States where the judges are only appointed for a certain term
+of years, it is not unusual for the Governor, if he has the power
+of nomination, to exercise it in favor of outgoing judges who are
+his political opponents. So, also, if there happen to be several
+original vacancies to fill, it is the traditional method in a few
+States to give one of the places to a member of the opposition
+party. If the election belongs to the legislature, a similar
+practice prevails in some of the older States. In Connecticut
+but six instances of refusing a re-election to judges of the
+higher courts for mere party reasons have occurred for more than
+a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
+Trumbull were dropped in 1818 and 1819 as an incident of the
+political revolution which destroyed the Federalist party in
+Connecticut and brought about the adoption of a Constitution,
+under which the judges were to hold for life, to replace the
+royal charter. Judges Seymour and Waldo were dropped in 1863
+during the Civil War, because they were classed with the "Peace
+Democrats." Their successors, however, were appointed from the
+"War Democrats," though the legislature was Republican.] In
+Vermont, where elections to the Supreme Court were annual, Judge
+Redfield was placed on the Supreme bench and then re-elected year
+after year for twenty-three successive years by legislatures
+controlled by the party politically opposed to him.[Footnote:
+Edward J. Phelps, "Orations and Essays," 220.]
+
+In a few States it is not customary for his party to renominate a
+judge more than once. Two terms are considered enough for one
+man, and when he has served them he should make room for some one
+else. Many a judge has thus been taken from the bench at a time
+when, with the aid of experience, he was doing his best work.
+
+Appointments to appellate courts are generally provided for by a
+scheme calculated to prevent any sudden and general changes of
+membership. Not more than one or two receive an appointment in
+any one year, so that the terms of not more than one or two can
+expire at the same time. Where judges hold for life or--as is
+frequently the case--if there is a constitutional provision that
+no judge shall hold office after reaching the age of seventy, the
+vacancies will, of course, occur and be filled at irregular
+intervals. All this, in connection with the natural tendency to
+reappoint judges who have earned the public confidence, secures
+to the court a certain continuity of existence and consistency of
+view. In every court of last resort in the older States there
+will be apt to be found some who have served ten or twenty years
+and were at first associated with those who had themselves then
+served as long. It is not easy to "pack" a court thus
+constituted. If, however, some question of supreme political
+importance is looming up, likely soon to become the subject of
+litigation, the nominating or appointing power is not likely to
+be insensible of the party advantages that may result from its
+decision in a particular way by the highest judicial authority,
+nor of the importance of the vote to be cast by each who may
+share in its administration.
+
+During the Civil War Congress passed a conscription law. The
+Supreme Court of Pennsylvania pronounced it unconstitutional, and
+advised the issue of a temporary injunction to prevent its
+enforcement by the officials charged with that function. The
+term of the Chief Justice was about to expire. The decision had
+been made by three judges, of whom he was one, against two who
+dissented. The political party to which he belonged renominated
+him, but he was defeated at the polls. A motion was soon
+afterwards made to dissolve the injunction. His successor joined
+with the former minority in advising that the motion be granted,
+and on the ground that the Act of Congress was not
+unconstitutional. The two remaining members of the court adhered
+to their former opinion.[Footnote: Kneedler _v._ Lane, 45
+Penn. State Reports, 238. See this case reviewed in Pomeroy,
+"Introduction to the Constitutional Law of the United States,"
+Sec. 479.]
+
+In some States the justices of the Supreme Court select one of
+their number annually to be Chief Justice for the year ensuing.
+In several, whenever there is a vacancy, the office falls, as of
+course, to the justice who has the shortest time to serve. This
+is a ready way to pass a title about and attach it to as many men
+as possible in quick succession. Its ostensible defense is that
+there can be no unfair discrimination and favoritism in such an
+appointment, and that as the judge whose term has most nearly
+elapsed will naturally be the one who has served the longest, he
+will certainly have the advantages of experience. These
+considerations deserve little weight in view of the sacrifices
+that such a scheme entails. Unfair discrimination is indeed
+prevented, but so is a just and proper discrimination. The plan
+of promoting the senior associate justice when a vacancy occurs
+is liable to similar objections, though in less degree. He is at
+least not unlikely to serve for a considerable time.
+
+To be a good Chief Justice requires special gifts. Whoever holds
+that office should have not only learning and ability, but
+patience and courtesy in a high degree. He must be methodical in
+the transaction of business, if the docket of the court is a
+large one. He should have the art of presiding over its public
+sessions and disposing of the minor motions which may be made
+from the bar with dignity and tact. He should be a man who
+commonly carries his associates with him at its private
+consultations in support of any doctrine which he is firmly
+convinced to be the law applicable to the case in hand. He
+should have the faculty of conciliation. He should know when to
+yield as well as to insist, in order to secure the best results
+for his court and for his State. He should be able to write a
+clear and forcible opinion. The best lawyer in the jurisdiction
+who may be supposed to have these qualities and will accept the
+position ought to be at the head of its judiciary. Many have
+been tempted from the bar by an offer of that place who would
+have refused the appointment of associate justice. John Marshall
+was one of these. Chief Justice Parsons of Massachusetts was
+another. In the Supreme Court of the United States no Chief
+Justice has ever been appointed from among the associate
+justices, although a nomination was offered to and declined by
+Mr. Justice Cushing in 1796. In the State courts the general
+practice is to the contrary, and it is common to fill a vacancy
+by appointing one of the associate justices.
+
+Popular election and life tenure cannot well go together. The
+chance of an irremediable mistake is too great. Judicial
+nominations are often the mere incident of the prevalence in a
+party convention of one faction of the delegates, whose main
+object is to control the nominations for other positions.
+American experience seems to indicate life tenure and executive
+nomination, with some suitable provision for securing retirement
+at a certain age, as likely to secure the best judges of the
+higher courts. This has worked well for the United States, and
+no State courts have stood higher in the general opinion of the
+bar than those thus organized. For the lower courts there is
+less necessity and less chance for getting men of the first rank
+in attainments and character. Shorter terms of office can
+therefore reasonably be prescribed, and the objections to popular
+election are correspondingly less. Even as to them, however, the
+plan of executive nomination is safer than that of party
+nomination. A man acts carefully when he is the only one whom
+the public can hold responsible for what is done.
+
+It is customary to provide that vacancies in judicial offices can
+be temporarily filled by the Executive until there is an
+opportunity for a new appointment or election by the proper
+authority.
+
+The place of a judge who is absent or disqualified is in some
+States, by authority of a statute or agreement of the parties,
+occasionally taken by a member of the bar called in to try a
+particular cause or hold a particular term of court.[Footnote:
+See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
+_v._ Brown, 32 Connecticut Reports, 112.] So the English
+assize judges are constituted by special commissions for each
+circuit, which include also the barristers on the circuit who are
+sergeants at law, king's counsel, or holders of patents of
+precedence.
+
+It is hard to dislodge a judge for misconduct or inefficiency.
+Our Constitutions give remedies by impeachment or by removal by
+the Governor on address of the legislature, but lengthy
+proceedings are generally necessary to obtain the benefit of
+them, and the decision is often in favor of the judge. Party
+feeling is apt to have its influence in such matters. Whether it
+does or does not, it is an unpleasant task to assume the
+initiative. Those who best know the facts are the lawyers, and
+if some of them are the ones to move, it is at the risk, should
+they fail, of having afterwards to conduct causes in a court
+presided over by one who is not likely to regard them with a
+friendly eye.
+
+The number of judicial impeachments in the history of the country
+has been comparatively small, and few of these have resulted in
+convictions.[Footnote: See Chap. III.] Of the cases which were
+successful, the most noteworthy is that of Justice George
+G. Barnard of the Supreme Court of New York, who was convicted of
+having abused his right to issue _ex parte_ orders and of
+other measures of improper favoritism. The Bar Association of
+the City of New York brought the charges, and were influential in
+carrying the whole proceeding through to a favorable result. In
+another instance, occurring in 1854 in Massachusetts, the right
+of impeachment was stretched to its limit by removing a Judge of
+Probate, Edward G. Loring, the only real ground being that as a
+United States Commissioner he had ordered the return of a
+fugitive slave under the laws of the United States--laws the
+constitutionality of which the highest court of the State had
+recently declared to be fully settled.[Footnote: Sims' Case, 7
+Cushing's Reports, 285.]
+
+Judges of inferior courts are sometimes removable by the higher
+ones for cause, on complaint of a public prosecutor. In such
+case, the proceeding being strictly a judicial one, there is more
+assurance of success if the charges are well founded. Here also,
+however, it will be known from whom they come, and the hearings
+are likely to be so protracted and expensive to the State that
+only a flagrant case will usually be taken up. The hearings on
+such a complaint, brought in New York in 1903, extended over
+thirty-six days; the stenographic minutes of the testimony
+covered over 3,300 pages; there were over four hundred exhibits
+introduced; and the items of cost presented for taxation amounted
+to over $20,000.
+
+Removals by the Governor on the address of the legislature have
+been more frequent, and occasionally have been dictated largely
+by party managers who desired to make places for those of their
+own political faith.[Footnote: Schouler, "Constitutional
+Studies," 288, note.] In one instance it was attempted, but
+unsuccessfully, in Kentucky as a punishment for giving a judicial
+opinion that a stay-law recently passed by the legislature was
+unconstitutional. A two-thirds vote of each house was required,
+and as in the lower house, though it voted for an address by a
+large majority, this could not be obtained, the proceeding was
+allowed to drop.[Footnote: Niles' Register, XXII, 266. See
+_ante_ p. 114.] In all there have been in the whole country
+since 1776 not over thirty removals, whether on impeachment and
+conviction or on address of the two houses, of judges of a higher
+grade than justices of the peace.[Footnote: See Foster,
+"Commentaries on the Constitution of the United States,"
+Appendix, 633.]
+
+Wholesale removals have also, in rare instances, been effected
+for similar purposes by abolishing courts, the judges of which
+held during good behavior.[Footnote: See Chap. VII.] Maryland
+was the first to do this, abolishing a court and re-establishing
+it at the same session, almost in the words of the former law.
+Congress followed in 1802 by repealing the statute of the year
+before by which a new scheme of Circuit Courts was arranged and
+under which sixteen Federalists had been appointed to the bench.
+Massachusetts did the same thing in 1811 with respect to her
+Courts of Common Pleas.[Footnote: See Chap. VIII.]
+
+The occurrence of vacancies has sometimes been prevented in a
+similar manner when the nominating or appointing authority was
+politically opposed to the legislature. The existence of a
+supreme court is required by all our Constitutions, but the
+number of the judges is frequently left to be fixed from time to
+time by statute. The Federalists, when they were about to go out
+of power, provided that the Supreme Court of the United States
+should on the next vacancy be reduced from six to five, thus
+seeking to prevent Jefferson from filling such vacancy. By 1863
+the number had been raised to ten, but three years later, when a
+Democratic President was contending with a Republican Congress,
+it was enacted that as vacancies might occur it should be reduced
+to seven. In 1869, when a Republican President had come in, the
+number was restored to nine, and the new justice for whom a place
+was thus made shortly joined in reversing a decision made by the
+court not long before and quite unsatisfactory to the majority in
+Congress on an important constitutional point. Similar
+legislation, for like reasons, has been had in many of the
+States.
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXIII
+
+
+      THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
+                        BENCH
+
+
+Every lawyer is an officer of the court as fully as is the judge
+or the clerk. He has, indeed, a longer term of office than is
+generally accorded to them, for he holds his position for life,
+or during good behavior.
+
+Courts could not exist under the American system without lawyers
+to stand between litigants and the judge or jury. It is a system
+that requires written pleadings, originally very artificial in
+form and still somewhat so. It imposes many limitations on the
+introduction of evidence, which often seem to shut out what ought
+to be admitted, and rest on reasons not apparent to any who have
+not been specially instructed in legal history. It divides the
+decision of a cause between judge and jury in a manner only to be
+understood after a long and close study. It gives a defeated
+party a right of review dependent on a number of technical rules,
+and to be availed of only by those who are skilled in the
+preparation of law papers of a peculiar kind.
+
+A class of men has therefore been set apart to keep the people
+from direct approach to the bench, except when they may desire to
+argue their own cases, which rarely occurs.
+
+In England there are two such barriers, the class of barristers
+and the class of attorneys. The attorneys keep the people from
+access to the barristers; the barristers keep the attorneys from
+access to the court. The attorney prepares the case, represents
+his client in the proceedings preliminary to the trial, and
+assists the barrister whom he may retain at the trial, but cannot
+examine a witness or argue the cause.
+
+In America we do not thus divide lawyers into two classes. There
+are many of them who never in fact address the court, but it is
+not because they have not a legal right to do so. Every member
+of the bar of any court has all the legal rights of any other
+member of it.
+
+The qualifications for admission to the bar are generally left to
+be regulated by the courts. In a few States they are fixed by
+constitutional or statutory provisions. In all, when the
+Constitutions do not regulate it, the legislature can. It has
+indeed been asserted that the admission of attorneys is in its
+nature a matter for the courts only.[Footnote: See _American
+Law School Review_, I, 211.] English history does not support
+this contention.[Footnote: Pollock & Maitland, "History of
+English Law," I, 211-217; II, 226. O'Brien's Petition, 79
+Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
+Court, which are mere voluntary associations of lawyers, have
+from time immemorial exercised the function of calling to the
+bar, so far as barristers are concerned, and the admission of
+attorneys has always been regulated by Acts of
+Parliament.[Footnote: See In the Matter of Cooper, 22
+N. Y. Reports, 67, 90.] By our American legislatures the same
+course has been generally pursued.
+
+The duty of ascertaining whether candidates for admission have
+the prescribed qualifications is occasionally performed by the
+judges in person; more often by a committee of the bar appointed
+by the court for that purpose; in some States by a standing board
+of State examiners, receiving compensation for their
+services.[Footnote: This comes from fees paid by those examined.]
+The latter method was introduced in the latter part of the
+nineteenth century and is steadily gaining in favor. A committee
+of a local bar is unavoidably subject to some local influences or
+prepossessions. A State board can act with greater independence
+and maintain with more ease a high standard of admission.
+
+In early colonial days the legislature sometimes set a limit to
+the number of attorneys who could be allowed to practice before
+the courts. In some colonies the number at the bar of a
+particular court was fixed; in others the number of lawyers in
+each county.[Footnote: Acts and Laws of the Colony of Conn., May
+session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
+No such limitation now exists in any State, and the matter is
+left to be regulated by the law of supply and demand. This by
+the census of 1900 required over 114,000.
+
+The freer a country is, and the quicker its step in the march of
+civilization, the more lawyers it will naturally have. The
+growth and importance of the bar are stunted wherever it is
+overshadowed by an hereditary aristocracy. A land of absolutism
+and stagnation has no use for lawyers. The institutions of China
+would not be safe if she had a bar. Lawyers are a conservative
+force in a free country; an upheaving force under a despotic
+government. In Russia one is found enough to serve over thirty
+thousand; in the United States there is about one to every six
+hundred and sixty of the population,[Footnote: In 1870, there was
+one to every 946; in 1880, one to every 782.] and in England one
+to every eleven hundred.
+
+The colonial lawyers of the seventeenth and eighteenth centuries
+occupied an inferior place in the community as compared with that
+now held by the legal profession. There was comparatively little
+opportunity to rise to eminence. The positions on the bench, as
+has been seen, were largely held by those not trained as lawyers.
+Before such judges it was a waste of words to make elaborate
+arguments on points of law.
+
+Among the first settlers were a few who had been educated for the
+English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
+drafted the _Magna Charta_ or "Body of Liberties" of that
+colony, adopted in 1641. His opinion of the need of lawyers may
+be inferred from the fact that it provided expressly that those
+who pleaded causes for others should receive no compensation for
+it. Virginia adopted the same policy from 1645 to 1662. Later,
+lawyers practicing in Massachusetts were excluded from the
+General Court. As that had large judicial powers, it was thought
+fitting to give no opportunity to any to sit there to-day to
+judge and to appear to-morrow before an inferior court to argue
+as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
+III, 104.]
+
+As time went on, an American was occasionally sent to London to
+read law. He was apt to be a young man of fortune, who entered
+the Temple or the Inns of Court more as a means of gaining
+pleasant acquaintances than for any serious purpose of education.
+Most of them came from Pennsylvania and the Southern colonies.
+Two Presidents of the Continental Congress, Randolph and McKean,
+four signers of the Declaration of Independence, Heyward, Lynch,
+Middleton, Edward Rutledge, and John Rutledge, one of the first
+associate justices of the Supreme Court of the United States,
+were of the number.
+
+Not infrequently there were legal proceedings in London which
+concerned colonial interests. Their charters were attacked or
+colony laws and judgments put in question before the Lords of
+Trade and Plantations. In such proceedings, if counsel were
+needed, English barristers were generally employed. An American
+lawyer now and then went over to consult with them and perhaps to
+join in the argument, but the leading part was theirs.
+
+It was not until the quickening and deepening of American life
+which preceded and portended the Revolution that anything like a
+colonial bar, led by a man of learning and position, really came
+into existence.[Footnote: "Two Centuries' Growth of American
+Law," 16.] From the middle of the eighteenth century to its
+close there was a steady and rapid progress in this direction.
+Legal education was taken seriously. In the case of many it
+began with the fundamental notions of justice and right. The
+Greek and Latin classics on those heads were read.[Footnote:
+"Life of Peter Van Schaick," 9.] The private law of the Romans
+was studied to a greater extent relatively than it is now. The
+first chair of law in the United States was established at
+William and Mary College in 1779, and there, under Chancellor
+Wythe, John Marshall was a student. President Stiles of Yale, in
+his "Literary Diary," so full of that kind of historical incident
+which after a few years have passed it is most difficult to
+trace, enumerates the books read by his son, Ezra Stiles, Jr.,
+between 1778 and 1781, in preparation for the Connecticut bar,
+under the advice and in the offices of Judge Parker of Portsmouth
+and Charles Chauncey of New Haven. They comprehended, besides
+much in English and Scotch law, Burlamaqui's _Principes de
+Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
+Institutes of Justinian, certain titles of the Pandects, and
+Puffendorf _de Officio Hominis et Civis juxta Legem
+Naturalem_. James Kent at about the same time was reading
+Grotius and Puffendorf in the office of the Attorney-General of
+New York, and Edward Livingston, under Chancellor Lansing,
+explored all parts of the _Corpus Juris Civilis_.[Footnote:
+Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
+years later, under the instruction of Chief Justice Parsons of
+Massachusetts, took up Vattel and the Institutes of
+Justinian.[Footnote: Report of the American Bar Association for
+1903, 675, note.] The latter, as well as Van Muyden's
+_Compendiosa Tractatio_ of them, his father had studied in
+his preparation for the bar thirty years before.[Footnote: "Life
+and Works of John Adams," I, 46.]
+
+The lectures of Chancellor Wythe at William and Mary, like those
+of Mr. Justice Wilson in 1790 at the University of Pennsylvania
+and of Chancellor Kent in 1794 at Columbia, were designed, as
+were Blackstone's at Oxford, to give such information as to the
+nature and principles of law as might be of service to any one
+desirous of acquiring a liberal education. Such instruction
+could not be considered as anything approaching a proper
+preparation for entering on the practice of the legal profession.
+
+The United States preceded England in the endeavor to provide
+such a preparation by a systematic course of study pursued under
+competent teachers at a seat of learning established for that
+sole purpose.
+
+The need of something of the kind was felt to be pressing after
+the independence of the United States had been fully established.
+An unusual number of young men of promise were turning from the
+army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
+the number of attorneys in the State of New York had risen to
+120. Morse's "American Geography," ed. 1796, 506. Thirty years
+later it was 1,200. Miles' "Register," XIV, 311.] Those already
+members of it had educated themselves as best they could, with
+slight assistance from the lawyers in whose offices they had
+studied. They in turn were indisposed to do more for such as
+might desire to read law in their offices. Few of them were
+competent to do much.[Footnote: See "Life of Peter Van Schaick,"
+9, 13.]
+
+There was a demand for a professed school of law, and in 1784 the
+first in any English-speaking country was opened at Litchfield,
+Connecticut. There are now 104 of them,[Footnote: Report of the
+American Bar Association for 1903, p. 398.] with a total
+attendance of over fourteen thousand students. The course of
+study in a few may be completed in one year; in most two are
+required; in the rest three, with perhaps an offer of a fourth
+for advanced instruction leading to the degree of master or
+doctor of laws. The ordinary degree is that of bachelor of laws
+(LL.B.).
+
+The American Bar Association has had an important influence from
+its first organization, in 1877, in prolonging the period and
+raising the standards of legal education. In affiliation with it
+there is an "Association of American Law Schools," representing a
+large majority of the teachers and students engaged in law school
+work. This admits no institution into its ranks at which
+students are received without a preliminary education at least
+equal to that given by the ordinary high school. A few of the
+schools so associated receive no student, save in exceptional
+cases, unless he already holds a degree in arts, science,
+philosophy, or letters from some collegiate institution.
+
+In several of the States having boards of State examiners no one
+is admitted to the final examination before them who did not
+prior to the beginning of his education receive one of the
+degrees above indicated or else pass a special examination before
+the same board on certain prescribed studies, corresponding
+substantially with those ordinarily pursued in a high school.
+
+Some proof is everywhere required that an applicant for admission
+to the bar possesses a good moral character. It is necessarily
+largely a matter of form. Certificates are sometimes required
+from those familiar with his previous life, and sometimes the
+mere motion for his admission by a member of the bar representing
+the examining committee is accepted as sufficiently implying that
+no unworthy person would be thus presented.
+
+In a few States a distinction is made between attorneys with
+reference to the courts in which they may practice. When first
+admitted it is to the bar of the trial courts. Later, after a
+few years of experience, they can be admitted on further
+examination to practice also in the highest courts of the State.
+
+This distinction reaches back, in New Jersey, to the colonial
+era. Attorneys were there a different class from "counsellors,"
+and, following the English practice, the style of "sergeant" was
+also formerly bestowed on leaders at the bar. The last lawyer
+bearing the title survived until nearly the middle of the
+nineteenth century. In this State the Governor has always issued
+the licenses or commissions to attorneys and solicitors in
+chancery, but for more than a hundred and fifty years only on the
+recommendation of the Supreme Court.[Footnote: _In re_
+Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]
+
+The admission of attorneys in the several courts of the United
+States is determined by rules which they respectively establish
+from time to time. These rules make the only qualification
+membership in regular standing for a certain period of time in
+the bar of a State and good moral character.
+
+There is no doubt that the United States have been in advance of
+England both in providing means of legal education and in
+requiring their use. The length of the course of study now
+established at our older Law Schools--three years--seems all that
+can reasonably be exacted, if a proper foundation of general
+discipline and knowledge has been previously laid. The first
+provision for one or more years of graduate study for those who
+may desire it was made at Yale University in 1876, and a similar
+opportunity has since been offered at several others; but it has
+been availed of by few, and of these a considerable part had in
+view the teaching of law as their ultimate vocation rather than
+its practice.
+
+Unquestionably the American bar is now, as a whole, a far better
+trained class of men than it was twenty or thirty years ago, and
+the efficiency of the courts has been correspondingly increased.
+
+            *       *       *       *       *
+
+Members of the bar are always subject to punishment by the court
+for official misconduct. This may be by censure, temporary
+suspension from practice, or disbarment. If guilty of contempt
+of court, they can also be sentenced to fine or
+imprisonment.[Footnote: See Chap. XX.] As suspension or
+disbarment means a loss, temporary or permanent, of a livelihood,
+it is only ordered in aggravated cases and after an opportunity
+for a formal hearing.
+
+Disbarment cannot be decreed by the legislative department. That
+would be virtually an act of attainder. It must come from a
+judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's
+Reports, 333, 378.]
+
+In some States the principal trial court, which is the one by
+order of which attorneys generally are admitted to the bar,
+appoints a standing committee on grievances. In others such
+committees are created by Bar Associations, of which almost every
+State has one for the whole State, while several have also one or
+more local associations. It is the duty of such a committee to
+inquire into any instances of professional misconduct that may be
+brought to their notice and either institute proceedings for a
+hearing before themselves or bring the matter to the attention of
+the court, so that they may be instituted there by its order and
+conducted by the public prosecutor. In the larger States,
+several inquiries of this nature are ordinarily set on foot every
+year, which result in suspension or disbarment. In the smaller
+States they are rare, both because they have smaller bars and
+because the smaller a bar is the more difficult is it for any one
+of its number to hide any misdoing from the rest.
+
+The Bar Associations, which first began to start up soon after
+the Civil War, have been of great service in upholding the honor
+of the profession. Their Constitutions generally name this
+particularly as among their professed objects. One
+State[Footnote: Alabama] has recently under such influences,
+passed a statute making it a misdemeanor for an attorney to send
+out "runners" to solicit practice, and requiring the public
+prosecuting officer to institute proceedings for any violation of
+the law, upon the complaint of the council of the State Bar
+Association.
+
+The steadily and rapidly increasing proportion of lawyers to the
+population in the United States necessarily tends to a lowering
+of their average professional income, and this tendency is not
+fully overcome by the increase of the wealth and business of the
+country. The principle of the concentration of industry also
+works against the great majority of them. Searching titles to
+real estate, for instance, was until the last half of the
+nineteenth century part of the business of every lawyer. It is
+now in the larger cities monopolized by certain firms or
+corporations, who own copies or abstracts of the public records,
+laboriously prepared, which give them special facilities for
+doing the work rapidly and well. So collecting uncontested debts
+was formerly the staple of many a lawyer's practice. The general
+abolition of imprisonment for debt about the middle of the
+nineteenth century rendered the process much more difficult and
+the fees less, and of late years great collection agencies,
+generally corporations, have sprung up, with an extensive system
+of correspondents among members of the bar, by whom most suits of
+such a nature are now brought under an agreement to divide their
+fees with the central bureau.
+
+Until the last half of the nineteenth century there were probably
+no lawyers in this country whose average net income from year to
+year was equal to that of the leaders of the English bar. In
+1806 there was but one lawyer in New England with an annual
+professional income of $10,000: until about 1860 there was none
+in Connecticut, and probably not over a hundred in the entire
+country.[Footnote: Parton, "Life of Aaron Burr." 153; Great
+American Lawyers, III, 55.] In 1827, William Wirt was informed
+by Justice Thompson of the Supreme Court of the United States
+that "six, eight, and ten thousand dollars is considered great
+practice in New York and ten thousand dollars the
+_maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"
+II, 209.] Thirty years later the same was true, except that
+twenty thousand dollars had then become the highest annual
+average, and that but of a very few.[Footnote: Parton, "Life of
+Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000
+when at the height of his career.[Footnote: Harvey,
+"Reminiscences of Daniel Webster," 84.]
+
+The Civil War was the occasion of many important business
+enterprises, and gave rise to much litigation. It brought also a
+great increase of wealth to the North and West, and new and
+greater investments of Northern capital in the South. From that
+time the business of the leading lawyers in every State became
+more remunerative. Incomes of $20,000 and $25,000 were
+occasionally earned in the smaller States, and of four or five
+times as much in the larger ones.
+
+The American lawyer of the eighteenth century was apt to have his
+office in his house. During the nineteenth century this became
+less and less common and is now comparatively rare. In cities
+certain streets, generally near the court-house, are crowded with
+lawyers' offices. These are generally over business stores, but
+in some places residential streets have been converted to this
+use, and what was formerly a handsome mansion will have the
+chambers of counsel on every floor.
+
+In many of the counties in Virginia chambers for the
+accommodation of the lawyers are built in the rear of the
+court-house on public ground. A small rent is paid by the
+occupants to the county. When court is about to open each day
+the crier calls out from one of the court-house windows the name
+of each lawyer to notify him of the fact.
+
+The relations of the bar to the bench assume a peculiar character
+under the conditions of American society. The judges stand
+closer to the lawyers in this country than in any other. All of
+them, unlike those of continental Europe, have been themselves
+practicing lawyers. The majority, unlike those of England, are
+young men, sitting in minor courts, who have generally left the
+bar for but a brief period, expecting, if not desiring, soon to
+return to it. Not a few hold court but one or two days in the
+week or one or two hours in the day, and for the rest of the time
+are actively engaged in professional practice before other
+courts. Those of the latter description always occupy a somewhat
+unfortunate position. The State does not expect them to devote
+themselves entirely to its service. It does not provide for
+their compensation on that basis. It expects them to continue
+the general practice of their profession, except so far as their
+judicial duties may necessarily prevent. They certainly cannot
+practice in their own court with propriety. Statutes to prevent
+it are not uncommon. For the same man to charge the jury one day
+as judge and address them the next in argument as counsel must
+tend to confuse their notions as to the weight they should give
+to what he says, and to lend it often a weight which it may not
+deserve. So, too, his relations to the clerk and other court
+officers are such officially as to give him opportunities for
+influencing them when he is engaged at the bar, not shared by his
+brother lawyers.[Footnote: French _v._ Waterbury, 72
+Conn. Reports, 435; 44 Atlantic Reporter, 740.]
+
+There are, however, in every State quite a number of judges of
+higher courts who receive a salary deemed sufficient for their
+support and who are expected to devote their entire time to
+judicial duties. As respects those of the United States courts
+there is a statute (U. S. Revised Statutes, Sec. 713) making it
+criminal for them to practice law. Similar legislation exists in
+some of the States with regard to the judges of their higher
+courts, but without it a sense of propriety dictates their
+abstaining from it, and it has even been held that the right of
+any judge of a superior trial court of general jurisdiction over
+important causes to act as an attorney or counsellor, except in
+his own cause, is suspended by implication of law so long as he
+retains his seat on the bench.[Footnote: Perry _v._ Bush, 45
+Florida Reports; 35 Southern Reporter, 225.]
+
+The demeanor of the judges to the bar is inevitably affected to
+some extent by their tenure of office. If they hold their places
+for life, they naturally are less sedulous to avoid giving
+offense and less ready to tolerate a poor or tedious argument. A
+greater distance is maintained for this cause between bench and
+bar in the federal courts than is usual in most of the State
+courts.
+
+No judge, however, desires to have the reputation of being
+overbearing, rough or impatient, and few are. Chief Justice
+Parsons of Massachusetts at one time fell into an inveterate
+habit on the circuit of checking counsel in argument rather
+curtly when they seemed to him to wander from the vital point.
+The leaders of the bar of Boston finally determined to stop it,
+and arranged at the next term at which he was to preside that
+whoever of them was thus treated should leave the court room.
+The first to address the court was checked in the usual manner,
+and observing that he regretted his argument seemed not worthy of
+the court's attention, took his papers and went out. The next
+met the same kind of interruption in the same way, and so on
+until the court room was cleared. The Chief Justice afterwards
+sought an explanation, received it in good part, and was forever
+cured of what had been a serious impediment to his usefulness on
+the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.]
+Occasionally a trial judge will have a similar lesson taught him
+by finding no business to be disposed of when he opens court, and
+learning later that the bar agreed to the continuance of all
+pending cases, because they did not care to trust him with them,
+or were disinclined to submit to his manner of conducting a
+hearing.
+
+Judges are universally desirous of securing the good opinion of
+the bar as respects their knowledge of law and powers of
+discrimination and analysis. The bar is their little world. It
+is a critical world, for in every case that is tried there will
+be one lawyer who is dissatisfied with the result, and likely to
+think the judge wrong rather than himself, if every proposition
+of law which he has asserted has not been conceded.
+
+It is much more common for American judges to be too tolerant of
+a waste of time by counsel than to be too impatient at
+it.[Footnote: See a striking instance of this tendency given in
+Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau,
+69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They
+dislike even to seem harsh. Most of them also hold office only
+for a term of years and do not forget that undue severity may
+jeopardize their re-election. This is one reason for the fact
+that at all points the bar are subject to fewer restrictions upon
+their conduct in the trial of causes in American courts than in
+those of most other countries. Another, and a more fundamental
+one, is that the judges and lawyers stand more nearly on the same
+level both in public regard and official position. The lawyer
+holds a more permanent office in the court than the judge. He is
+quite likely to be his superior in learning and ability. He
+belongs to a class that is influential in the community, and
+whose members usually share quite actively in the direction of
+party politics. The judge in most instances holds but a brief
+authority. He does not wish to parade it in such a manner as
+might seem offensive. He is in danger of seeming to parade it if
+he goes beyond what is necessary in regulating the conduct of the
+lawyers who may appear before him. The judge who keeps a rigid
+watch on the examination of witnesses to exclude all improper
+testimony, whether objection be made to it or not, declines to
+hear argument on matters that may appear to him too clear to
+justify it, and is impatient when argument on doubtful points is
+continued longer than he thinks worth while, may be respected,
+but he will never be popular. Trials for these reasons are
+longer in the United States than in England. Fewer summary
+rulings are made. More questionable evidence is admitted. More
+time is allowed to counsel in the argument of the cause, and more
+freedom in arguing points that may seem immaterial to the court.
+
+The broad liberty of appeal generally allowed is another reason
+for hesitation on the part of trial judges to interfere more than
+seems absolutely necessary with the management of a cause by
+counsel. It is not merely the legal right of appeal but the
+practice under it which is a peculiar feature of our judicial
+system. A foreign lawyer often hesitates to cross swords with
+the judge. He distrusts his own judgment if it differs from that
+of the court. He defers to the opinion of the bench, not only as
+stating the law of the case, but as probably stating the law of
+the land. He therefore seldom appeals on minor points of
+procedure, even if he could. In the United States probably one
+case in ten of all that go to trial is carried up for review on
+points of law; many of them mere matters of practice not
+affecting the merits of the cause.
+
+The American lawyer can also safely speak with freedom of the
+conduct of the government or of high officials should it come in
+question.
+
+Those in any court, high or low, who hope for a reappointment
+know that the best way to obtain it is to secure the good will of
+the bar. The reputation of a judge depends on the opinion which
+the lawyers have of him. The general public may be deceived as
+to his character, ability and attainments; the bar cannot be.
+
+In the public sessions of court there are few judges who are not
+impressed with the necessity of maintaining the dignity of their
+position as representing the power of the State. The lawyers
+recognize this feeling as just. It is common for them to rise as
+a body when the judge enters the bench. They find no difficulty
+in using the conventional style of address of "May it please the
+Court," or "May it please your Honor." When a ruling is made in
+the course of a trial the lawyer, whose client is adversely
+affected by it, accepts it without further discussion, simply
+reserving his exception, if he have one, for purposes of review
+in a higher court. If, in addressing the jury, counsel exceed
+the bounds of professional license in commenting on testimony or
+alluding to the character of the parties, the court will check
+them without hesitation.
+
+Less outward respect was shown toward the courts by the bar in
+former times than now, and it often received less courtesy of
+treatment from the bench. An incident occurring in Massachusetts
+about the beginning of the nineteenth century may serve as an
+illustration. Robert Treat Paine, a signer of the Declaration of
+Independence, resigned his seat on the bench of the Supreme
+Judicial Court in 1804, at the age of seventy, largely on account
+of deafness. Naturally somewhat imperious in temperament, his
+bearing toward the bar had seemed harsher from this infirmity.
+Fisher Ames used to refer to him as _Ursa Major_, and once
+told a friend that he should not go into court again, when Judge
+Paine held it, without a club in one hand and a speaking trumpet
+in the other. Theophilus Parsons, not long afterwards made Chief
+Justice of the State, was arguing before him one day when the
+judge, under the misconception into which a deaf old person so
+easily falls, that the younger generation all speak hurriedly and
+indistinctly, cried out, "Mr. Parsons, I tell you once for all,
+take that glove off your tongue." "Certainly, Sir," was the
+quick retort, "and may I beg your honor to take the wool out of
+your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]
+
+Some twenty years later Roger Minott Sherman, the leader of the
+Connecticut bar, in trying a cause before an empty-headed judge
+who had been put on the bench for no other apparent reason than
+that his father was a man of distinction, quoted several English
+authorities and was about to read from another when the judge
+remarked that he need not take the trouble to read anything more
+of that sort to him. "Then," said Mr. Sherman, "with your
+Honor's permission I will read from it to the jury, and let me
+say that it is an opinion of Lord Ellenborough, a Chief Justice
+of England who rose to the bench by his own merits, and shone by
+no reflected light."
+
+One of the anecdotes of the Boston bar is that while Samuel
+Dexter, one of the great lawyers of his day, was arguing a cause
+in the Circuit Court of the United States before Justice Story,
+soon after his accession to the bench, the court suddenly
+interposed, as a certain principle was asserted, with "That
+proposition is not law, Sir," to which Mr. Dexter retorted, "It
+is the law, if your Honor please, and will finally be declared to
+be the law by this court," as indeed it was later by Justice
+Story himself.[Footnote: Payne, "Reminiscences of the Rhode
+Island Bar," 241.]
+
+Such a passage at arms between court and counsel as took place in
+either of these instances could now hardly occur.
+
+Out of court there is no longer this distance between judge and
+lawyer. While they will not talk over an unfinished case, one
+that is finally disposed of is often the subject of free comment
+by each. They are now entirely upon the same level in the
+community. Officialism is put off when the court room is closed.
+
+Socially they meet in the same circles and on the same footing.
+It is considered not improper for a judge to accept the
+hospitality of a lawyer concerned in a case before him, and even
+a case on trial. The American rule in this respect is much less
+strict than the English.[Footnote: See "Memoir of Chief Justice
+Parsons," 208-211.]
+
+            *       *       *       *       *
+
+
+
+                    CHAPTER XXIV
+
+
+                  THE LAW'S DELAYS
+
+
+The right to be heard before judgment, the right to have judgment
+rendered only on due process of law, and the right in most cases
+to a jury trial, necessarily make the course of justice slower in
+this country than it need be in one where there are no such
+guaranties in favor of those against whom the aid of a court is
+invoked. The plaintiff, too, has corresponding rights. It was
+found not so easy by Frederick the Great to enforce his famous
+decree that every lawsuit in his dominions must be finished in a
+year. In a freer land no such result is possible.
+
+The power of the judge to expedite trials is also much less in
+the United States than in most countries. They must be had
+mainly on oral testimony. The testimony must be so given that
+thirteen different men may each understand it. What the
+witnesses may be allowed to tell, and what they cannot be,
+depends on the application of numerous and artificial rules of
+evidence. If there is a question as to whether this rule or that
+applies, the judges sometimes invite and generally allow a
+discussion by counsel. Appeals are liberally conceded. If
+exceptions to any ruling of the court are to be made the basis of
+proceedings in error, they must be carefully noted at the time,
+and afterwards made the subject of a lengthy set of papers.
+
+Many trial judges are young men of little experience either on
+the bench or at the bar. They are learning the law by
+administering it. Such men cannot decide controverted points in
+a moment, and shut off all unnecessary discussion in the manner
+that might be expected and tolerated from judges of the first
+rank. It is hardly probable that they will always come to the
+right decision at last. Hence it is that so great a liberty of
+appeal is granted in every American State.
+
+Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate
+whose appeal is heard within three months and decided within six.
+Oftener he must expect to wait a year or two. During a long
+course of years an appeal to the Supreme Court of the United
+States could not be reached for argument in regular order in less
+than three years after it was taken. In Nebraska, for some time
+prior to 1901 the Supreme Court was so overwhelmed with business
+that it could not hear a cause until five years after it was
+docketed.
+
+In 1882 a brakeman was injured on a New York railroad. He
+brought suit against the company, and in 1884 recovered $4,000
+damages. The judgment in 1886 was reversed on appeal. On a new
+trial he got a verdict for $4,900. This was appealed to two
+courts successively. The first affirmed and the second reversed
+the judgment. In 1889, there was a third trial, at which the
+company won. Two appeals by the brakeman followed. On the first
+the intermediate appellate court, in 1894, decided against him.
+On the second, in 1897, the court of last resort decided for him.
+For the fourth time the case came on in the trial court, and a
+verdict for $4,500 was recovered. The company appealed and with
+success. A fifth trial gave him a verdict for $4,900. This,
+too, was set aside on appeal. A sixth trial followed with
+exactly the same results. In 1902, the seventh and final trial
+took place. The verdict this time was for $4,500. The company
+appealed again, but was defeated.[Footnote: Case and Comment, X,
+50.] A lawsuit that embraces seven appeals and lasts for twenty
+years is, of course, a rarity, but the system of administrative
+justice under which such things are possible is faulty somewhere.
+The right of trial by jury is one cause of such delays. The
+broad right of appeal is another. The want of skill and
+experience on the part of trial judges and trial lawyers may be a
+third. The twenty-three English judges of the High Court of
+Justice (with the aid of masters in chancery and referees)
+actually try and determine about fifty-six hundred cases a
+year.[Footnote: This was the average number for each of the years
+1900 and 1901.] Each judge, therefore, on the average,
+dispatches over two hundred and forty. No American judges under
+our American system of practice could do as much and do it well.
+We tolerate a succession of motions and objections and arguments
+from the bar which English courts would not. We often take more
+time in impanelling a jury than they would in trying the case.
+
+The American bar, unlike the English, is not so constituted that
+a certain number of its members are professedly devoted in a
+special way to the trial of cases. The English barrister in
+active practice may almost be said to do nothing else. His
+standing and his income depend on his ability to try case after
+case in rapid succession. Others are responsible for their slow
+and careful preparation. He is responsible for their quick and
+effective dispatch when the preparation is ended. He becomes
+necessarily familiar with the _technique_ of a trial at
+every point. In examining a witness, he strikes directly at what
+is material, and would be ashamed to appear ignorant of what that
+is. In argument he stops when he is through. The ordinary
+American lawyer who tries a case to-day, draws papers
+constituting a partnership or a corporation the next, and
+prepares an opinion on the construction of a will the day after,
+has not that concentration of knowledge which comes from
+concentration of occupation.
+
+The art of making a clear and definite statement of the points in
+controversy on paper is also one not sufficiently cultivated by
+the American bar. Without it the system of "code pleading,"
+which has in most States supplanted the rigid and often
+meaningless forms of the common law, leads to confusion and
+obscurity. The claims of each party ought to be, but seldom are,
+so presented that matters of law are, so far as possible, kept
+distinct from matters of fact, and what he means to prove is set
+forth, but not the evidence by which he hopes to establish it.
+This looseness of pleading leads to endless motions to expunge
+this and correct that, and time of the court is taken up by the
+preliminaries of trials which, if the lawyers used more care or
+had more skill, would be devoted to the trials themselves. Still
+worse is it when such motions are postponed until the case comes
+on for final hearing, and witnesses and juries are compelled to
+wait during tedious arguments over questions of mere form.
+
+In our great centers of population business under these
+circumstances almost necessarily accumulates too fast for the
+courts to handle it.
+
+In bringing on criminal trials there is little delay, unless at
+the request of the accused, and for what seems good reason. Our
+Constitutions generally provide that whoever is to be tried on a
+criminal charge shall be tried promptly, and the practice of the
+courts conforms to this rule. The broad right of appeal,
+however, for errors of law on the part of the court may serve to
+postpone the execution of a sentence, and too many new trials are
+granted by the courts for steps in procedure in matters of a
+purely technical character. Delays from this cause are, however,
+comparatively infrequent. Most convicts are too poor to take
+advantage of it. Most also know that their sentence is just, and
+are anxious only to have it executed and through with as soon as
+possible. In hardly one case in a hundred is an appeal taken or,
+if taken, pursued to the end.[Footnote: See Chap. XVII.]
+
+In our largest cities the disposition of criminal business
+occupies the time of several judges, and the prosecuting officer
+has a staff of professional assistants. In cases of such
+importance as to call for his personal management a postponement
+is occasionally inevitable. In Chicago, in December, 1903, over
+a thousand cases were awaiting trial in the Criminal Court.
+
+It tends to expedition in the trial of any cause if it is heard
+before a judge especially familiar with the class of questions
+which it involves. Criminal courts, particularly in cities, are
+largely held by judges whose work is either wholly or mainly
+confined to them. This helps greatly to prevent delays in such
+tribunals. For a similar cause admiralty business is dispatched
+with great rapidity by the District Judges at our principal
+ports, and patent causes by the Circuit Courts.
+
+In the criminal courts of New York City in 1903, there were about
+3,000 prosecutions on which indictments were found, and the
+defendant committed for want of bail. In most of these cases
+there was a plea of guilty, but counting them with the others,
+the average time as to all which elapsed between the original
+arrest and the final judgment was only eight days. During the
+same time those who gave bail were generally tried within three
+months from their arrest.[Footnote: Nathan A. Smyth in the
+Harvard Law Review for March, 1904.]
+
+An insufficiency of judges was formerly one great cause of delay,
+but the modern tendency has been to have too many, rather than
+too few. In the Court of Chancery in Virginia (which was held by
+a single Chancellor, then a man seventy-six years old) there were
+in 1802, 2,627 causes pending at one term.
+
+In the city of New York a jury trial in civil causes cannot
+ordinarily be reached until two years after they are brought. In
+its principal trial court between four and five thousand cases
+are annually disposed of, and in 1903, there were nearly ten
+thousand on its docket. When the criminal courts in the borough
+of Manhattan--the greatest division of the city--were opened in
+October of that year, there were nearly five hundred different
+prosecutions to be disposed of, and a hundred and sixty-seven
+prisoners awaiting trial who had been unable to procure bail.
+
+In the county containing the city of Chicago (and which contains
+little else), there were in 1903 twenty thousand civil cases on
+the dockets of the courts. This mass of business it would
+require more than two years and a half to dispose of with the
+number of judges then provided, were no new suits instituted to
+divide their attention.
+
+A very large part of the cases tried to the jury are claims for
+damages for accidental injuries received by employees in the
+course of their service. In the county in Missouri including
+Kansas City there were, in December, 1903, over fifty-one hundred
+civil causes on the dockets of the various courts. The
+population of the county was less than two hundred thousand.
+About three-fourths of the cases were against corporations for
+injuries received by their employees. The defendant in such an
+action is generally in no hurry to bring it to trial. The
+plaintiff often is not. He may have a weak case, brought in the
+hope of forcing a settlement. He has probably no money to pay
+his lawyer for trying it, and finds it hard to get together what
+is necessary to summon his witnesses and provide expert testimony
+as to the nature of his injuries.
+
+Whenever it is tried, however, he is sure to want a jury, for if
+the case is a good one a jury is apt to give larger damages than
+a judge, and if a bad one a jury is less likely to appreciate its
+weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156
+Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A
+jury trial is much slower than a trial before a judge, although
+the decision is apt to come more quickly. It also facilitates
+appeals by necessarily presenting more occasions for error. A
+judge in trying a cause, if evidence of doubtful competency is
+offered, can admit it provisionally and exclude it afterwards if,
+on deliberation, he thinks that it should not be considered.
+With a jury this is impossible. There must be an immediate
+ruling one way or the other. In the charge to a jury, also,
+opportunities are offered for exceptions which do not exist if
+the cause is to be decided by the judge alone. He does not have
+to instruct himself in public. He can study the case in private
+at his leisure.
+
+A cause of delay formerly existed in several States which arose
+from the method of computing the costs taxable against the losing
+party. They included, by statute, a certain sum, say twenty-five
+or thirty-three cents a day for each day's attendance at court by
+the prevailing party. This was construed to mean each day during
+which the action lay in court, since upon any of them it might by
+possibility be called up, and the client was always represented
+by his attorney of record, a notice to whom was a notice to him.
+Christian Roselius, one of the leaders of the New Orleans bar in
+the nineteenth century, once said that he had spent a fourth of
+his life in the court house waiting for his cases to be called.
+The lawyers, as the duty of attendance fell on them, generally
+considered this allowance as their perquisite. An attorney with
+a large docket received, therefore, a number of dollars for every
+day the court sat, and the longer the term lasted or the more
+terms to which a cause was carried over, the larger was his gain
+if his client ultimately obtained judgment, and the defendant was
+of financial responsibility. This system was not universally
+discontinued until the last quarter of the nineteenth century.
+
+A few States, by statute or constitutional provision, set a
+certain time within which a decision must be rendered after the
+trial. California gives ninety days; Idaho (Const., Art. V.,
+Sec. 17) thirty. A sanction for the law sometimes provided is
+that the judge cannot draw his salary until he has made oath that
+he is in no default.
+
+            *       *       *       *       *
+
+
+
+                     CHAPTER XXV
+
+
+       THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY
+
+
+Americans are proud of their country and of their State. They
+are proud of their scheme of government, by which an imperial
+world-power has been created for certain national and
+international purposes, resting on a collection of States, each
+of which is an independent sovereignty, absolutely as respects
+the others, and for the most part as respects the United States.
+They are in the mass an educated and intelligent people. The
+public schools have thus far been found adequate to Americanizing
+the children of foreign immigrants. The colored population of
+the South stands largely by itself, and constitutes no active and
+self-moving force in matters of political concern. An educated
+and intelligent people living under a government of written law
+of their own making cannot but know how vital it is that this law
+should be fully guarded and fairly administered. Americans have
+become distrustful of their legislatures. They believe that much
+of their work is ill-considered, and that some of it has its
+source in corruption. They are far removed from the chief
+executive magistrates, and from the sphere in which they move.
+The President comes nearer to them than the Governor of their
+State because he stands for more, and personifies their country,
+but it is not from him that they look for peace and safety in the
+ordinary affairs of life and home. They look for these to the
+courts, and they know that they will seldom look in vain.
+
+Only an educated and intelligent people can live under a written
+Constitution. It requires of those whom it governs a certain
+spirit of conservatism, a certain sentiment of reverence for
+ancient institutions. Our Constitutions are mainly the work of
+former generations. We may amend or recast them, but the
+substantial framework will remain the same. Our Declarations of
+Rights speak the language and the lessons of the eighteenth
+century. Their provisions are almost wholly aimed at our
+executives and legislators. They give guarantees which the
+judiciary only can enforce. No people can steadily prosper
+unless a just mean be preserved between reform and conservatism
+in the administration of the government. The courts stand for
+conservatism, but by their recognition of custom as law, and
+their free use of logic and analogy to develop law, they also
+keep a door open for the entrance of reform.
+
+The courts also come very close to the people. They are to be
+found in every county and almost every township. They settle the
+estates of the dead. They protect the living. They act largely
+through juries made up of the people and returning to them after
+a brief term of public service.
+
+All these considerations put Americans in a friendly attitude
+toward the judiciary. It makes less show of authority than the
+policeman or the militiaman. But the people feel that it has
+authority and is ready to exercise it always to secure that right
+be done. When a plain man who thinks that he has been wronged by
+another declares that he "will have the law on him," it expresses
+his conviction that he can get justice from the courts.
+
+The creation of the judiciary of the United States was welcomed
+at the outset by all.[Footnote: See "Life of Peter Van Schaick,"
+435.] It was not until party feeling had become intense that
+Republicans found it difficult to look with approval on a force
+evidently becoming stronger every day, and that Jefferson could
+describe the Supreme Court as the sappers and miners who were
+gradually undermining the foundations of American
+liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.
+"Works of Thomas Jefferson," VII, 192.]
+
+Of the political questions which engaged attention over the whole
+country from time to time from the adoption of the Constitution
+to the close of the Civil War, almost all bore some relation to
+the institution of slavery and derived their real vitality from
+that connection. Slavery depended on State laws. Unless the
+authority of each State to allow and regulate it were preserved,
+its countenance would be endangered. This was largely the source
+of the "State Rights" cry.
+
+Almost all the powers which the United States possessed the
+States had lost. For thirteen years each had been in the
+position of a full sovereign. Its courts had exercised
+jurisdiction over all kinds of actions. Now a new set of courts
+had risen up having over many actions an equal jurisdiction, over
+some a superior one.[Footnote: See Chap. X.]
+
+The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'
+Reports, 419.] in 1793, and the institution of similar suits
+against other States of the South showed that the Supreme Court
+of the United States claimed authority to render a money judgment
+against a State, which meant that it could then issue an
+execution to collect it by levying on the property of the State.
+
+In 1798, the Alien and Sedition Laws were passed, and a crime
+previously cognizable exclusively in the State courts was made a
+subject of prosecution in those of the United States if it
+affected an officer of the United States. A member of Congress,
+Matthew Lyon, of Vermont, who was sentenced in the Fall of that
+year to a fine of $1,000 and four months in jail for writing of
+the President and Senate, that his message to Congress in 1797
+was a bullying speech, which the Senate in a stupid answer had
+echoed with more servility than ever Geo. III. experienced from
+either house of parliament, served his time and paid the fine,
+but for the amount of the latter he was reimbursed by Congress in
+1840.
+
+The case of Jonathan Robbins[Footnote: See Chap. III.] in South
+Carolina in 1799, showed that the Circuit Court at the request of
+the President could surrender an American citizen to a foreign
+government to be carried off and tried for murder. This and the
+sentence of Lyon became immediately the subject of hot discussion
+in Congress, and both contributed to the political revolution
+which put Jefferson in the seat of Adams in 1801.
+
+The creation by the outgoing party of places for eighteen new
+Circuit Judges appointed by Adams in the last month of his
+administration strengthened the popular feeling that the courts
+of the United States were too powerful. That Act was at once
+repealed,[Footnote: See Chaps. IX, XXII.] and also the provision
+for the next regular term of the Supreme Court. The latter
+measure was taken to prevent any legal proceedings in the Supreme
+Court to secure its intervention in behalf of the displaced
+judges.
+
+The new circuit system had been swept away, but the full bench at
+Washington, headed by Marshall, remained. The unsuccessful
+impeachment of one of them followed in 1804.[Footnote: See
+Chap. III.]
+
+His acquittal the next year, and that of a majority of the
+Supreme Court of Pennsylvania,[Footnote: McMaster, "History of
+the United States," III, 159.] who were impeached there at the
+same time for punishing a libel on certain proceedings before
+that court by a sentence of imprisonment, satisfied all that it
+was practically impossible to secure the removal of a judge
+except for the gravest cause. Judicial independence had been
+secured by the very struggle to defeat it. What has won in any
+contest finds favor with the multitude. They admire a victor.
+From this time on the courts both of the United States and the
+States grew in public esteem. When those of the former seemed to
+trench on the fields of State sovereignty, particularly in the
+South, the inroad was resented.[Footnote: See letters of Marshall
+alluding to this, in "Proceedings of the Massachusetts Historical
+Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern
+State it was even opposed by force.[Footnote: See Chap. X.] As
+late as 1854 the supremacy of the Supreme Court of the United
+States in expounding the federal Constitution was contested by
+the courts of a Northern State; there also in a case growing out
+of the system of slavery.[Footnote: Ableman _v._ Booth, 21
+Howard's Reports, 506.]
+
+Another decision by the same tribunal of a similar nature--that
+in the Dred Scott case[Footnote: Dred Scott _v._ Sandford,
+19 Howard's Reports, 393.]--greatly strengthened the confidence
+of the Southern people in the federal courts, and weakened that
+of the North.
+
+It did much to bring on the Civil War, but the result of that
+struggle was to confirm the authority not only of the Supreme
+Court but of the Supreme Court as it was under Marshall and his
+original associates. In 1901, the centenary of his appointment
+was celebrated all over the country, North and South. Such a
+tribute was never paid before in any country to the memory of a
+judge. His services were commemorated for the very reason that
+led Jefferson to depreciate them--because they led to the
+establishment of a strong national government with a controlling
+judicial authority adequate to protect it within its sphere from
+interference or obstruction in any way by any State.
+
+Confidence in the State courts has also been strengthened during
+the last century. It was greatly shaken at the time of the fall
+of the Federalists. They had lost the executive and legislative
+power, but they retained the judicial, and the Republicans found
+it hard to tolerate courts that represented the political ideas
+of a former generation. This continued long after the extinction
+of the Federalist party, and often extended to distrust of judges
+elected by the Republicans who were thought to have become
+affected by the influence of their senior associates.
+
+In the New York constitutional convention of 1821, Peter
+R. Livingston appealed to the lawyers present to say "whether it
+has not been the case that when a man in the country of any
+political standing has had a suit depending at a circuit court,
+he has not consulted with his counsel to know what judge was to
+preside at the circuit; and whether he has not been frequently
+told that a political judge was to preside and it would not do to
+let the cause come on."[Footnote: Reports of the Proceedings and
+Debates of the Convention of 1821, 618.] Who, he asked, were the
+present judges of their Supreme Court?  "Judge Spencer came into
+office under a republican administration; Judge Van Ness was
+appointed by a mongrel council; and the elevation to the bench of
+Judge Platt was occasioned by the defection from the Republican
+ranks of a man elected to the Senate from the county of Dutchess,
+who acted the part of a political Judas, and sold his party. We
+have been bought and sold--there is not one of these men who
+would have been on the bench if our administration had been truly
+republican.... There is not a man in this Convention who is a
+republican of any standing or character who would like to have
+his liberty or property placed in the hands of a political judge
+of a different party."[Footnote: Reports of the Proceedings and
+Debates of the Convention of 1821, 620.]
+
+The judiciary may also have suffered somewhat in the esteem of
+dispassionate observers on account of its attitude in many of the
+States toward the financial enterprises in corporate form, in
+which so much money was made and lost in the first third of the
+nineteenth century. In commenting on a judicial opinion in a
+Southern bank case, the author of one of our leading American
+legal treatises, himself once a judge, has referred to this
+period in these plain words:
+
+  Decisions of this kind, which were not infrequent in the era of
+  State banks of issue, can only be "reconciled" with modern
+  holdings in view of the well-known fact that nearly all the
+  politicians were creditors of those political banks, by notes
+  often renewed, at the time when they finally suspended, and
+  that all the judges were politicians. It can hardly be doubted
+  that in many of those semi-barbarous decisions the judges were
+  either rendering decisions to exonerate themselves from their
+  liabilities to the insolvent banks or to exonerate powerful and
+  influential politicians upon whom they depended for the tenure
+  of their offices.[Footnote: Thompson on "Private Corporations,"
+  V, p. 5306.]
+
+It is quite probable that an insensible bias in favor of friends
+and neighbors may have had its share in producing the judgments
+to which reference was thus made, but quite improbable that they
+were the fruit of baser motives. Independently of other
+considerations, every judge is watched by sharp eyes in every
+step which he may take in the progress of a cause. He acts in
+view of the bar at large, and of two of their number in
+particular, one of whom probably will be disappointed by his
+decision, and solicitous to ascertain and employ every reasonable
+ground for overturning it.
+
+The Bar Association of the country have exercised a large
+influence during the past thirty years in maintaining public
+confidence in the purity of the bench.
+
+It is extremely rare that suspicion of corruption attaches to a
+judge; and rarer still that it attaches justly. Jurors are
+occasionally found who are guilty of it, and more who, without
+being chargeable with so black a crime, are more interested in
+serving a friend than in doing justice. As a whole, however,
+American courts are clean-handed throughout, and the people know
+it.
+
+The judiciary has been popularized in most States by
+constitutional provisions replacing tenure during good behavior
+by stated terms of years, and appointment by the Governor or
+legislature by election by the people.
+
+The powers of judges have been on the whole increased. The only
+matter in which they have been substantially cut down is that of
+punishment for contempt. Serious attempts have been made to
+abridge their jurisdiction over injunctions, but without success.
+These attacks have come from those representing certain labor
+unions. The more thorough organization of working-men in all
+trades and callings during the last half century, and the
+development of collectivism as a working theory, have produced a
+class of leaders among them who regard the courts as manned by
+representatives of capital and controlled in the interests of
+capital.[Footnote: The number of the _Pennsylvania Grange
+News_ for Sept., 1904, states this view at length.] As a
+judicial office can only be properly filled by one who has had a
+legal education and as, aside from a few petty magistrates and
+local tribunals, practically all our judges are trained lawyers,
+it necessarily follows that they cannot belong to the class of
+working-men in the general acceptation of that term. Their
+education has cost money and is generally the fruit of capital.
+The judges of the higher courts are usually men of some means.
+If they were not, they could not have afforded to accept their
+places. But the people at large do not believe that only the
+poor man can be relied on to deal justly on the bench. The mass
+of working-men do not believe it. They do believe that courts
+have too much power over them in their associated relations.
+They are in favor of cutting off the right of issuing injunctions
+to suppress boycotts or "picketing" in case of strikes. But they
+know that it is from the legislatures and not from the courts
+that this must be sought.
+
+The federal judges stand higher in public estimation than the
+State judges of corresponding rank. This is partly on account of
+the paramount authority of the government which they represent.
+It is partly also because there are none of them who occupy the
+lower grades of judicial station with a petty jurisdiction over
+petty controversies. It is more because of their permanence of
+tenure. This removes them from that field of criticism which
+surrounds every public officer who holds for a term limited in
+duration, and is always in the position of a candidate for
+re-appointment.
+
+Our methods of judicial appointment are not such as always to
+exclude political feeling from the bench either of the States or
+of the United States, but the people know that there is less of
+it there than in any other department of governmental action.
+
+President Hadley of Yale University has thus expressed what is
+the general view of the work of the courts held by thoughtful men
+in the United States; and it is they who in the long run form and
+lead public opinion.
+
+"On the whole, federal and State courts alike have been not only
+a protection, but the one really efficient protection of minority
+interests against oppression by the majority.... It has more
+than once happened that an impatient majority has denounced these
+courts as instruments of partisanship. The anti-slavery leaders,
+the soft money leaders, and the labor leaders have in turn taken
+exception to their utterances, and even ventured to impugn their
+motives. But I think that most intelligent men who know the
+history of the country will say that our courts have been the
+real bulwarks of American liberty; and that while Hamilton and
+his associates would be somewhat disappointed in the working of
+the machinery of legislation and administration if they could see
+it in its present shape, they would be filled with admiration at
+the work which has been accomplished by the judiciary. I believe
+it to be the judgment of sober-minded men that the courts have
+furnished the agency which has guarded us against excesses, and
+have saved the American republic from the necessity of repeating
+the successive revolutionary experiences which France underwent
+before she could attain to a stable democracy."[Footnote:
+"Freedom and Responsibility," 23, 24.]
+
+This confidence in and respect for the judiciary as a whole has
+increased with the general advance of the country in population
+and wealth. There have been larger questions with which to deal,
+and the courts have been found adequate to the task. But at the
+same time the personal consequence and reputation of every
+individual American judge has been steadily decreasing. As
+States multiply and the range of litigation widens, the work of
+judicial exposition of legal principles comes to be shared by so
+many hands that what any one man does is of comparatively small
+account. There is no room for star players upon the stage.
+Broad as it is, it is too crowded for one to make a conspicuous
+place for himself and stand as Marshall or Story, Kent or
+Parsons, did, apart from his fellows. Popular confidence is now
+not placed in courts because this or that man is the ruling
+spirit in them. It is impersonal and attaches itself to the
+institution of the judiciary as, all things considered, the best
+guaranty of good government in the United States.
+
+This spirit of confidence is, of course, not universal and
+unqualified. It is often not found in bodies of working men,
+associated as Labor Unions. They have repeatedly found a court
+enforcing public order in a way that interfered with their manner
+of conducting a strike. They have been met by injunctions, and
+more often by criminal prosecutions. The membership of a Labor
+Union, in many parts of the country, is apt to be largely of
+foreign birth. The leaders not infrequently know little of the
+English language and less of American institutions. They have
+been led, in their native land, to regard the law and its
+officers as their enemies, and they look at them in the same way
+here. It is believed, however, that a large majority of the
+Unions regard them with respect, and it is certain that such is
+the prevailing feeling of non-union men.
+
+But that the public trust in our judges is less than it was when
+the first edition of this work was published,[Footnote: See
+_supra_, page 340.] is indicated by the favor with which, in
+many quarters, the doctrine of the "judicial recall" has been
+received. The dangers incident to its practice are obvious, and
+seem far to outweigh any attending advantages.
+
+In the United States, of all lands on the face of the earth, it
+is important that the judges should act with resolution and
+without thought of the consequences personal to themselves.
+Elsewhere in form, but here only in fact, are judges armed with
+the power of declaring legislative action void which is in
+conflict with a higher form of law, that proceeded directly from
+the people, and mainly from the people of a former generation.
+To expose one who exercises this power to immediate displacement,
+by a popular vote--largely, perhaps, composed of his political
+opponents--is to invite the enactment of questionable statutes,
+and still worse--to weaken the attractions of the bench for able
+and honest men. Our judicial terms, in most of the States, are
+already too brief for the public good. To make them determinable
+at the will of the electoral constituency tends powerfully to
+keep good lawyers at the bar, who might otherwise have done honor
+to a judicial station.
+
+
+
+
+
+End of Project Gutenberg's The American Judiciary, by Simeon E. Baldwin, LLD
+
+*** END OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***
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