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diff --git a/old/7amjd10.txt b/old/7amjd10.txt new file mode 100644 index 0000000..c82a5f1 --- /dev/null +++ b/old/7amjd10.txt @@ -0,0 +1,12008 @@ +Project Gutenberg's The American Judiciary, by Simeon E. Baldwin, LLD + +Copyright laws are changing all over the world. Be sure to check the +copyright laws for your country before downloading or redistributing +this or any other Project Gutenberg eBook. + +This header should be the first thing seen when viewing this Project +Gutenberg file. Please do not remove it. Do not change or edit the +header without written permission. + +Please read the "legal small print," and other information about the +eBook and Project Gutenberg at the bottom of this file. Included is +important information about your specific rights and restrictions in +how the file may be used. You can also find out about how to make a +donation to Project Gutenberg, and how to get involved. + + +**Welcome To The World of Free Plain Vanilla Electronic Texts** + +**eBooks Readable By Both Humans and By Computers, Since 1971** + +*****These eBooks Were Prepared By Thousands of Volunteers!***** + + +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 + +*** END OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY *** + +This file should be named 7amjd10.txt or 7amjd10.zip +Corrected EDITIONS of our eBooks get a new NUMBER, 7amjd11.txt +VERSIONS based on separate sources get new LETTER, 7amjd10a.txt + +Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, +Charles Franks and the Online Distributed Proofreading Team + +Project Gutenberg eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the US +unless a copyright notice is included. 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