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Title: The American Judiciary
Author: Baldwin, Simeon E. (Simeon Eben)
Language: English
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Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

*** Start of this Doctrine Publishing Corporation Digital Book "The American Judiciary" ***

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Kaelbling, Charles Franks and the Online Distributed


                          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,
  McIntire'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._,
  Wolcott, Diggs _v._,
  Woodward, Dartmouth College, _v._,
  Worcester v. Georgia,
  Worden, State _v._,
  Worrall, U. S. _v._


            Additional cases cited in Second edition.

  Janvrin v. Revere Water Co.,
  Revere Water Co., Janvrin, _v._,
  O'Brien's Petition,
  Seery v. Waterbury,
  Waterbury, Seery _v._

       *       *       *       *       *



                        PART I


              THE NATURE AND SCOPE OF THE
                 JUDICIAL POWER IN THE
                     UNITED STATES

       *       *       *       *       *



                       CHAPTER I


         ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE
                   AMERICAN JUDICIARY


No government can live and flourish without having as part of its
system of administration of civil affairs some permanent human
force, invested with acknowledged and supreme authority, and
always in a position to exercise it promptly and efficiently, in
case of need, on any proper call. It must be permanent in its
character. Only what is permanent will have the confidence of
the people. It must always be ready to act on the instant. The
unexpected is continually happening, and it is emergencies that
put governments to the test.

The judiciary holds this position in the United States. The
institutions which underlie and characterize it, both of the
United States and of each of the States, considered by
itself,[Footnote: I do not except Louisiana, for trial by jury
and other institutions derived from the common law have
profoundly affected her whole judicial system.] are the outgrowth
of those of the thirteen English colonies on the Atlantic coast,
which declared their independence in 1776.

The colonial charters, whether of the proprietary, provincial or
republican type, were all equally charters for Englishmen, based
on the common law of the English people. So far as they granted
legislative power, it was generally declared that it should be
exercised in conformity, so far as might be practicable, with the
laws of England. The proviso to this effect in the roving patent
given by Queen Elizabeth to Sir Walter Raleigh may be taken as a
type: "so always as the said statutes, lawes, and ordinances may
be, as neere as conveniently may be, agreeable to the forme of
the lawes, statutes, government, or pollicie of
England."[Footnote: Poore, "Charters and Constitutions," II,
1381.]

In the Southern New England colonies, when first settled, the
common law of England was disowned. They made the little law
which they needed for themselves, and as cases which this might
not provide for arose, they were to be decided by such rules as
the magistrates might think right and warranted by the precepts
found in the Bible. Connecticut continued to insist on this
view, with general consistency, until the days of the Stamp Act,
when it became the interest of her people to claim the benefit of
the principles of the English constitution and of the common law,
on which it was built up.[Footnote: Colonial Records of Conn.,
1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._
citations by D. Davenport, _arguendo,_ in Flynn _v._
Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State
archives.]

In early Massachusetts the written pleadings often referred to
the Bible, quoting a text from it as an authority, just as
citations now might be made in a lawyer's brief from a legal
treatise or reported case.[Footnote: Publications of the Colonial
Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the
first and everywhere that if the common law was to be applied to
the rough conditions of colonial life some modifications were
necessary. These the colonists were, in the main, left free to
make at their pleasure. Much of this work came to be done by
their legislative assemblies; more by their courts. The
assemblies sat but for a few days in the year: the courts were
always open to suitors, and sessions of the inferior ones were
frequent.

The assemblies, however, were themselves courts. At first they
kept in their own hands a large share of judicial power. They
acted as the early parliaments of England had acted, both as a
legislature and a judicial tribunal. In several colonies they
long kept to themselves the right of deciding private
controversies on equitable principles. They sat as a court of
review, to grant new trials or review judgments. They passed
acts of attainder. They settled insolvent estates.[Footnote:
Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing
to be tolerated only while the foundations of a government are
being laid. As the Roman plebeian, in the days before the Twelve
Tables, clamored for a known and certain law, so the common
people of the early colonies insisted that from a similar want
they held their rights too much at the will of their rulers. In
the colony of New Haven a code was early framed; but there they
built on a written law--the Bible.[Footnote: New Haven Colony
Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where
they were more anxious to avoid conflict with the common law, the
problem was a serious one.

Winthrop, writing in 1639, describes it with his usual clearness
and discrimination thus:

  "The people had long desired a body of laws, and thought their
  condition very unsafe while so much power rested in the
  discretion of magistrates.... Two great reasons there were,
  which caused most of the magistrates and some of the elders not
  to be very forward in this matter. One was want of sufficient
  experience of the nature and disposition of the people,
  considered with the condition of the country and other
  circumstances, which made them conceive that such laws would be
  fittest for us which should arise _pro re nata_ upon
  occasions, etc., and so the laws of England and other states
  grew, and therefore the fundamental laws of England are called
  customs, consuetudines. 2. For that it would professedly
  transgress the limits of our charter, which provide we shall
  make no laws repugnant to the laws of England, and that we were
  assured we must do. But to raise up laws by practice and
  custom had been no transgression."[Footnote: Winthrop, "History
  of New England," I, 322.]

The tendency toward partial codification proved too strong to be
resisted, and all the colonies soon had a substantial body of
written law published in official form.

The exercise of judicial power by colonial legislatures was
steadily contracting throughout the century preceding the
Revolution. Where there were Governors appointed by the crown,
they discouraged it. The courts were correspondingly
strengthened. Law became better understood and more wisely
applied. A large body of local statute law had grown up by 1750,
much of it already venerable by antiquity, and intimately
interwoven with the life of the people. Its form and color
differed in different colonies. Religious views and preferences
had had a large effect in shaping it. So had influences
proceeding from the civil war, the Commonwealth, and the
Restoration. Yet at bottom there was the same substructure in
Virginia as in Massachusetts, in Pennsylvania as in New York. It
was the common law of England as it existed in the days of the
last of the Tudor and first of the Stuart reigns.

This had been built into the foundations of American institutions
and kept firm in place, not only because the colonists were
habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's
(Conn.) Reports, 163, 189.] and themselves both English subjects
and the descendants of Englishmen of those days, but largely by
force of the British system of colonial government through the
Lords of Trade and Plantations. The ancient _aula regis_,
in which the king dispensed justice at first hand, had survived
in another form in the tribunal known as the King in Council.
This, so far as the colonies were concerned, was represented by a
standing committee of the Privy Council. It was substantially
the same thing as the Court of Star Chamber, but since 1640
without the extraordinary penal jurisdiction which gave that so
evil a reputation for Americans.[Footnote: Maitland, "Justice and
Police," 5.] This committee was after this restriction of its
powers known as the Lords of Trade and Plantations,[Footnote: It
was afterward and is now called the Judicial Committee of the
Privy Council.] and by its authority from the time when England
first had colonies of any commercial importance (and those in
America were the first) their statutes could be set aside and the
judgments of their courts, when of any considerable magnitude and
importance, reversed.[Footnote: See Paper on Appeals to the Lords
of Trade from Colonial Courts, by Harold D. Hazeltine, Report of
the American Historical Association for 1894, 299.] This
revisory jurisdiction, though questioned and occasionally evaded
or thwarted by the colonial governments, became solidly
established long before the Revolution.[Footnote: "Two Centuries'
Growth of American Law," 12, 18, 264.] In but one case did a
colonial court formally ignore a judgment of reversal. This was
in 1738, when the Superior Court of Judicature of Massachusetts,
at its sittings in York County, in what is now the State of
Maine, disobeyed an order of the King in Council made on appeal
from one of its judgments, and when it was repeated a year later,
adhered to its original position.[Footnote: Frost
_v._ Leighton, Publications of the Colonial Society of
Massachusetts, III, 246.] The amount involved was trifling, and
the Lords of Trade and Plantations made no further effort to
enforce their order.

The natural effect of this court of appeal at London was to keep
the public proceedings of the colonies in line with the common
law of England, so far as related to its fundamental principles.

A certain uniformity of result was thus secured. American law,
in its substantial framework, was not allowed to vary from
English law in any case where agreement was reasonably
practicable. There was a central power at London ever ready to
enforce the charter rule. The colonial courts, if their
judgments were to stand, must proceed in conformity to the
British constitution. Justice must be administered by due course
of law, and to find out what that due course was the judges were
forced to study the English law-books. When Blackstone's
Commentaries were first published, more copies were sold in
America than in England.[Footnote: "Two Centuries' Growth of
American Law," 20.]

The colonial bench was weaker than the colonial bar. Judicial
station was at first always, and later often, a mere incident of
political office. When judges were appointed whose functions
were wholly judicial, their selection was largely dictated by
political considerations or executive favor. Few of them were
really learned in the law. Of the bar many were. That of
Massachusetts did not conceal its disapprobation when
Lieutenant-Governor Hutchinson, although he had never been a
member of it, was appointed Chief Justice in 1760. None of the
judges of the first Superior Court in that colony were
lawyers.[Footnote: Winsor, "Narrative and Critical History of
America," V, 166.] In some of the others the Governor was the
Chancellor, and in Maryland he was at one time the Chief Justice
also.[Footnote: Steiner, "Maryland's First Courts," Reports of
American Historical Association for 1901, 211; Osgood, "The
American Colonies in the Seventeenth Century," I, Chap. II; II,
Chap. XII.] In several the judges were appointed during the
king's pleasure, and the Governor removed them at his discretion,
without any notice or hearing.[Footnote: Bancroft, "History of
the United States," II, 279. A notable instance of a removal in
consequence in part, at least, of a decision as to the royal
prerogative, not relished by the Governor, was the case of Chief
Justice Lewis Morris of New York, in 1733. Documents relating to
the Colonial History of New York, V, 948; VI, 4, 8, 951.]

In those colonies which were provided by charter with a Court of
Assistants, this body soon came to act as a judicial court. This
took place in the colony of Massachusetts Bay as soon as the seat
of the company's government was transferred from England to
America, and took place as a matter of course. Divisional courts
were frequently held by part of the assistants, with original
jurisdiction of minor causes, and all sat semi-annually, or
oftener, to try larger ones and hear appeals.[Footnote: Noble,
"Records of the Court of Assistants of Massachusetts Bay," I,
Preface; Publications of the Colonial Society of Massachusetts,
III, 317.]

In Connecticut, appellate jurisdiction was originally retained by
the General Assembly, but when the docket became too crowded,
resort was occasionally had to the appointment of a special and
temporary commission of appeals to clear it off. As early as
1719, one was constituted for this purpose to hold office for two
years.

No colony set up a permanent supreme court with full appellate
jurisdiction. None probably cared to do this, and none probably
thought that it could. The Lords of Trade and Plantations would
have rightly thought such a step hardly consistent with the
maintenance of their revisory and controlling powers. It would
have been too costly to allow two appeals; and for them to
reverse a judgment of a colonial supreme court would have been
more distasteful to Americans than the exercise of a similar
power as to a court professedly of superior, not supreme,
jurisdiction.

New York had a court named Supreme, but its business was largely
the trial of original causes, and the Governor and Council
claimed the right of reviewing its judgments. The judges in 1765
denied the existence of such a right, but the King in Council
decided against them.[Footnote: Hunt, "Life of Edward
Livingston," 26.]

As soon as regular judges, not members of other departments of
the government, were appointed for the highest court, they were
generally required to perform circuit duty in the various
counties during part of each year.[Footnote: See
"Am. Hist. Review," III, 44.] This was a leading feature of the
judicial establishment set up in 1686 under Sir Edmund Andros for
the "Dominion of New England."[Footnote: Col. Rec. of Conn., III,
402, 411.]

South Carolina, for a hundred years, centered all her judicial
business at Charleston. No courts sat anywhere else and all the
lawyers in the State resided in the city. In the latter part of
the eighteenth century she followed the other colonies in
establishing a circuit system and county courts.[Footnote: Morse,
"American Universal Geography," ed. 1796, 690; Osgood, "The
American Colonies in the Seventeenth Century," II, 279, 300.]

There was occasionally some little approach to English form when
the colonial judges went on the circuit. In Massachusetts the
sheriff or his deputy was accustomed to come out from the court
town to meet the judges as they approached it, to open a term of
court.[Footnote: "Life and Works of John Adams," II, 280. See
Chap. XIII.]

Acts of Parliament directly affecting procedure in American
courts, and unifying its methods in some particulars, were
occasionally passed during the colonial era. Such was the Act of
1732 (V, Geo. II, Chap. VII), making affidavits taken in England
admissible in any suit in an American colony to which an
Englishman might be a party, and providing that all American real
estate (including negro slaves employed upon it) should be
subject to be levied on for any debts of the owner, although real
estate in England could only be taken for debts of a particular
kind.[Footnote: Connecticut promptly passed a statute extending
the new remedy thus given, so as to authorize the sale of land
belonging to the estate of a deceased person, to pay his debts,
if he did not leave sufficient personal estate for that purpose.
Col. Rec. of Conn., VII, 444.] Other English statutes, passed
after the settlement of the colonies, and not in terms applying
to them, were often adopted here, either by the enactment of
colonial statutes to the same effect or by incorporation into our
common law by tacit consent, as interpreted by the
courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
489, 494.]

The benefit of the writ of _habeas corpus_, which, though
issuable at common law, really first took its present shape in
1679, by the Act of 31 Charles II, Chap. II, was thought in this
country, though not by the Lords of Trade and Plantations, to be
a privilege of Americans, as British subjects. In some colonies
this statute was re-enacted, or, as in Virginia, rights under it
conceded under the royal prerogative. In others, as in Maryland,
it was treated as being, by tacit adoption, the birthright of the
inhabitants. In the "Declaration and Resolves" of the first
Continental Congress, they assert "that the respective colonies
are entitled to the Common Law of England," and in the address to
the people of Great Britain they complain that the English
settlers in Canada "are now the subjects of an arbitrary
Government, deprived of Trial by Jury, and when imprisoned cannot
claim the Benefit of the _Habeas Corpus_ Act, that great
Bulwark and Palladium of English Liberty."[Footnote: Journals of
Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
Colonies," American Historical Review, VIII, 18.]

The same sentiments dictated the terms of the Ordinance of 1787,
under which our first Territories were to be organized. One of
its leading provisions was this:

  ART. 2. The inhabitants of the said territory shall always be
  entitled to the benefits of the writ of _habeas corpus_,
  and of the trial by jury; of a proportionate representation of
  the people in the legislature, and of judicial proceedings
  according to the course of the common law.

A recognized system of jurisprudence had, under the circumstances
and from the causes which had been stated, begun to grow up
before the Revolution. It might fairly be called American, but
it was thoroughly English by heredity, and had been shaped by a
long succession of English influences, and steadied by the firm
hand of English power.

The Revolutionary War made everything connected with the law of
England distasteful to the people at large. The lawyers knew its
value: the community did not. Public sentiment favored an
American law for America. It was quickened by the unfriendly
feeling toward the mother country which became pronounced toward
the close of the eighteenth century and culminated in the War of
1812. Several of the States, New Jersey leading off, passed
statutes forbidding the citation, in the argument of causes, of
any decisions of the English courts made since the Declaration of
Independence. Under one of these Henry Clay, in 1808, was
stopped by the Supreme Court of Kentucky when reading in argument
from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
Boffman, Hardin's Rep., 348, 364.] but after a few years,
legislation of this kind, while it might remain formally
unrepealed, was treated as obsolete both by court and
bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
I, 613 (1807).]

In courts held by unlearned judges, also, English law-books were
lightly considered. One of this kind was Chief Justice
Livermore, of New Hampshire. Shortly after the close of the
Revolution, while presiding on the bench, he stopped a lawyer who
was reading from one with the inquiry whether he thought that the
members of the court did not "understand the principles of
justice as well as the old wigged lawyers of the dark ages
did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]

But whether cited or not from their original sources, the settled
doctrines of English law were sure in the end to permeate both
bar and bench in every State.

The Roman law and the law of nations were studied in preparation
for admission to the American bar more generally and more
thoroughly in the years immediately preceding and following the
Revolutionary era than they have been since.[Footnote: See
Chap. XXIII.] The law student was also set then to reading more
books on English law than he is now.[Footnote: See Report of the
American Bar Association for 1903, p. 675.] He learned his
profession by the eye and not by the ear. His only lectures were
the occasional arguments on a demurrer or writ of error which he
might hear in the court room, and these were a reiteration of
rules laid down in English law-books.

The reason why he read more of Roman law than is now required in
legal education was mainly that there was more time for it, since
of English law reports there were then few, and of American none.

When the Revolution broke out it also became important in helping
to explain the practice in prize courts. These were set up (or
existing common law courts invested with admiralty jurisdiction)
in all the States, and American privateers gave them not a little
business. In order to secure uniformity of decision in matters
so directly affecting our foreign relations, the Continental
Congress claimed the right to exercise appellate functions,
through a standing committee of its members, and in 1780
organized a formal court for the purpose, styled "The Court of
Appeals in Cases of Capture." Three judges were appointed and
provided with a register and seal. They held terms at Hartford,
New York, Philadelphia and Richmond during the next six years.
On an average about ten cases were disposed of annually, and the
decisions were generally conceded to have been fair and well
supported by the rules of admiralty and the law of
nations.[Footnote: See Jameson, "Essays on the Constitutional
History of the United States," I; J. C. Bancroft Davis, "Federal
Courts Prior to the Adoption of the Constitution," 131 United
States Reports, Appendix, XIX.]

The influence of French ideas was strong in shaping constructive
work in American politics, as the colonies passed into States;
but aside from the separation of the judicial department from the
executive and legislative it had little effect upon the courts
until the opening of the nineteenth century. Then the principles
of the Roman law, particularly as presented and illustrated by
the French jurists, were seized upon by Kent and Story, and
served greatly to expand and enrich our jurisprudence.[Footnote:
"Memoirs and Letters of James Kent," 117.]

The course of events which has been sketched left certain ideas
in regard to the position and powers of the judiciary with
respect to the other branches of the government firmly imbedded
in the American mind. These may be thus summarized:

Judges were to proceed according to established rules, so far as
established rules might exist.

They were to proceed in analogy to established rules as to points
which no established rule might cover.

They were to look to the common law and political institutions of
England to determine what rules were established, as to points
not covered by local usage or legislation.

Local usage or legislation might, within certain limits, depart
from the common law and even from the political institutions of
England.

There were limits to such departure, and a colonial statute or
judgment which transgressed them could be annulled or set aside
by a higher authority.

This higher authority might be judicial or political, or one
which shared both judicial and political functions.

            *       *       *       *       *



                     CHAPTER II


        THE SEPARATION OF THE JUDICIAL POWER FROM THE
            LEGISLATIVE AND EXECUTIVE IN AMERICAN
                    CONSTITUTIONS


From the colonial system of legislatures by which all the powers
of government were at times exercised to the modern American
State, with its professed division of them into three parts, and
assignment of each to a distinct department, was a long step.

So far as the United States were concerned, the weakness of the
government under the Articles of Confederation had been
universally acknowledged and was generally thought to come in
part from throwing whatever powers the States had granted, in a
mass, into the hands of the Continental Congress. Nevertheless,
the Constitution of the United States is not framed upon the
principles of a strict tripartite division. It places the
executive power in the hands of the President, all the
legislative powers which were granted by it in Congress, and the
judicial power in certain courts; but it does not follow the
earlier State Constitutions in declaring that whatever was vested
in either of these three depositaries was and must always be
different in kind from that vested in any other of them.

On this point Virginia set the fashion, but the sonorous phrase
of the Massachusetts Constitution of 1780 is the most familiar,
in its declaration (Part the First, Art. XXX) that "in the
government of this commonwealth, the legislative department shall
never exercise the executive and judicial powers, or either of
them; the executive shall never exercise the legislative and
judicial powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or either of them;
to the end it may be a government of laws, and not of
men."[Footnote: The last declaration of purpose was taken from
Harrington's _Oceana_, in which it is said that while a
monarchy is an empire of men, "a commonwealth is an empire of
laws and not of men." Works, London ed., 35, 42, 224.]

It was from an unwillingness to commit themselves to such a
principle that the people of Connecticut and Rhode Island
preferred for many years to be governed in the old way by their
legislatures, without a written constitution. During this
period, the General Assembly of Connecticut repeatedly exercised
the power of setting aside judgments of courts, and its right to
do so was sustained by the Supreme Court of the United
States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3
Dallas' Reports, 386.]

The courts of the United States were called upon at an early day
to determine how far Congress could invest them with functions
that were not judicial or not to be performed in a judicial
manner. An act was passed requiring the Circuit Courts to pass
upon claims for invalid pensions, their decisions to be subject
to review by Congress. The performance of this duty was
declined, and the attempt to put a judgment of a court under the
control of the legislature made the refusal so plainly proper
that the act was repealed at the next session.[Footnote:
Hayburn's Case, 2 Dallas' Reports, 409.]

It was easier for the United States to maintain from the first
this general scheme for the division of power than for the early
States. Their people had grown up under too different a plan of
government. It had become so familiar to them that they could
hardly believe that it had been abolished. Tradition for them
interpreted their new Constitutions and overmastered them. The
State legislatures therefore continued for a time to claim some
control over the judiciary, or at least a right to criticise and
censure its doings.[Footnote: See Chap. VII.]

In many of our State Constitutions, after providing for a
distribution of powers between three separate departments,
instead of absolutely prohibiting any of them from exercising any
power properly belonging to either of the others, it is declared
that this shall not be done, except as may be expressly allowed
in subsequent articles.

Such a declaration was proposed in the draft of the Constitution
of Connecticut, reported to the convention which framed it in
1818; but on objection it was struck out.[Footnote: Journal of
the Constitutional Convention of Connecticut, pp. 78, 55.] It
was thought better to leave the relations of the departments to
each other to be worked out in practice, and for nearly eighty
years afterward the legislature continued to exercise some
judicial power. It sometimes gave equitable relief to carry out
a charitable purpose in a will, which would otherwise fail. It
interfered repeatedly in probate proceedings. It released
sureties in judicial recognizances. It set aside judgments.
[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315;
Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of
the Supreme Court of Errors sanctioned the practice;[Footnote:
Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898
the court overruled its former opinion, and held that as the
three departments were made separate and distinct, it needed no
express constitutional declaration to prevent either from
invading the province of the other, and so that no power not
judicial in its nature could be conferred upon the
courts.[Footnote: Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080.]

But may not a power be judicial in its nature and yet not wholly
so?

It is practically impossible to establish in every instance a
plain line of demarcation between legislative, executive and
judicial functions.

Courts, for instance, make rules of practice. In one sense this
is a judicial act, because it is one appropriate for the
judiciary. In another point of view it is an act of legislation.
In nothing does it resemble the act of judging a litigated cause.

Impeachments are both political and judicial proceedings, but
American constitutions leave them wholly to the legislative
department.

Franchises to exist as an artificial person are the proper
subjects of legislative grant, but with the growing insistence in
our Constitutions on absolute equality of right, they are now
almost everywhere given only by general laws. Such a law will
offer incorporation for certain purposes to any who choose to
avail themselves of the privilege by fulfilling certain
conditions and filing certain papers in a public office. But
what shall be the nature of this office, and who shall decide
whether these conditions have been fulfilled and these papers
filed?  The legislature may select an executive, a legislative,
or a judicial office. It may entrust this power of decision to
an executive, a legislative, or a judicial officer. It has, in
fact, in some States, entrusted it to a court, and authorized it,
if it decided in favor of those claiming incorporation, not only
to record the decision, but to issue the paper which shows that
they are entitled to possess and enjoy the franchise.

It is safe to assert that in no State are the functions of the
courts purely judicial. Many belonging to the administration of
the methods of political government are in all intrusted to
judicial officers either originally or by way of review. Some of
these concern such matters of internal police, as the enforcement
of laws to preserve the public health or to regulate the sale of
intoxicating liquors, and the establishment and repair of
highways.[Footnote: Application of Cooper, 22 New York Reports,
67, 82, 84; Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._
New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter,
960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477;
Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North
Eastern Rep. 381.] Instead of creating a system of bureaus and
prefects, we have adhered to the English plan of administering
local and county concerns through justices of the peace, courts
of quarter-sessions, and county or parish courts.[Footnote: See
Maitland, "Justice and Police," 85.] Of the affairs committed to
such authorities some pertain to the conduct of elections, and
courts are frequently empowered to appoint election officers or
clerks, because it is felt that thus a wise impartiality in
selection can best be attained.[Footnote: People _v._
Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596;
56 American Reports, 793; _Ex parte_ Siebold, 100
U. S. Reports, 371, 397.]

It is vital to the proper working of government under a written
constitution that these constitutional restrictions on the powers
of the courts should not be too strictly interpreted. Every step
in the progress of civilization makes this the more obvious. No
absolute trinity of governmental form can be maintained in human
society, as the relations of each individual to his fellows, and
of the State to all, become, and necessarily become, more
numerous and complicated. In every State that department which
in practice proves the strongest will push its jurisdiction
furthest.

It may be said, in view of its now established power to decide
between higher and lower forms of law,[Footnote: See Chap. VII.]
that the judiciary has proved the strongest. The legislature, as
has been stated, have found it a convenient depositary of many
quasi-legislative and quasi-executive functions, and this also
has largely increased its power.

The theory of the French philosophers that all the powers of
government could be divided into three parts, each bearing a name
descriptive only of itself, is not supported by the practical
experience of Americans. There are functions that might as well
be assigned to one of these parts as to another, or made into a
fourth and called administrative.[Footnote: Under authority of
her present Constitution, Virginia in 1904 organized a State
Commission for the Supervision of Corporations, which has both
judicial and administrative functions.]

The Constitution of the United States recognizes this in effect.
It makes the Senate an executive council, as well as a
legislative chamber. It allows Congress to vest the appointment
of any inferior officers in the courts (Art. II, Sec. 3). In
practice this power has been freely used.

The Supreme Court of the United States has had occasion to
consider this question in connection with the statutes defining
the jurisdiction of the Circuit Courts. It extends to certain
"suits." But what is a suit?  It is not necessarily a proceeding
at common law or in equity or admiralty. It may be a statutory
process. "Even," they say, "an appeal from an assessment, if
referred to a court and jury, or merely to a court, to be
proceeded in according to judicial methods, may become a suit
within the act of Congress."[Footnote: Upshur County _v._
Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding
by the government to take land for public use on payment of due
compensation, they observe that "the general rule with regard to
cases of this sort is, that the initial proceeding of
appraisement by commissioners is an administrative proceeding,
and not a suit; but that if an appeal is taken to a court, and a
litigation is there instituted between parties, then it becomes a
suit within the meaning of this act of Congress."[Footnote:
_Ibid_., 475.]

In one point of considerable importance express constitutional
provisions generally narrow the jurisdiction of American, as
compared with English courts. Each house of the legislature is
made the final judge of the returns and qualifications of its
members. In England, election contests as to a seat in the House
of Commons has been made by Act of Parliament the subject of
judicial determination. This avoids partizan decisions and is so
far good. It diminishes, however, the independence of the
legislative house in which the seat is contested. This is
jealously guarded by our traditions as well as our Constitutions.
The practice of wearing hats during the sessions of the House of
Commons was an expression of the early feeling of the English
Commons on this subject. They would not uncover before speaker
or king. In some of the early American legislatures the same
thing was done. Hats were occasionally worn in the House of
Representatives at Washington as late as the second quarter of
the nineteenth century.[Footnote: Hunt, "Life of Edward
Livingston," 301. They were worn in the Continental Congress on
occasions of ceremony. McMaster, "History of the People of the
United States," I, 105.]

On the other hand, American courts interfere more readily than
the English to protect a citizen from arrest by legislative
authority. Each house of the British parliament has large
inherited powers over those who may treat it with contempt. Each
house of an American legislature has some powers of this
description, but they are far narrower ones.[Footnote: Kilbourn
_v._ Thompson, 103 U. S. Reports, 168.]

            *       *       *       *       *



                     CHAPTER III


       THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
                DEPARTMENTS OF GOVERNMENT


Courts of Claims are the only permanent special courts for the
disposition of causes arising from the acts of public
officials.[Footnote: One exists for the United States; and one
for New York.] The system of administrative law prevailing on
the Continent of Europe, by which all such matters are withheld
from the ordinary tribunals, is totally unknown here. If the
Secretary of War of the United States should do some act to a
private citizen, which may be justified by his official powers,
but otherwise would not be, he may be summoned to answer for it
before any civil court having jurisdiction of the parties. So
may even the President of the United States be sued after the
expiration of his term.

The President, while President, however, cannot be compelled to
obey a summons to appear in court. The country cannot spare him
to go here and there in obedience to a writ. Chief Justice
Marshall issued one against President Jefferson, directing him to
appear at the trial of Aaron Burr and bring with him a certain
paper. Jefferson declined to obey, and there was no attempt to
enforce the subpoena. Had there been, it would have been found
that he had taken measures for his protection.[Footnote: Thayer,
"John Marshall," 79.] Marshall's action was based on an
admission by the counsel for the government that a summons to
testify could lawfully issue, though they denied that it could be
accompanied by a direction to produce documents. This admission
is now generally thought by the legal profession to have been
ill-advised. If the President could be summoned at all, he could
be compelled to obey the summons, and nothing could be more
unseemly or inadmissible than an attempt of that nature by the
judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the
disposition of causes against individuals in the United States,
considered as a collection of States or of people within those
States, more freedom has been used by Congress in providing for
the Territories. This has been conspicuously the case in regard
to the Philippines. By the Act of Congress of July 1, 1902, they
were left under the supervision of the War Department, in which
there was constituted a "Bureau of Insular Affairs," the business
assigned to which "shall embrace all matters pertaining to civil
government in the island possessions of the United States subject
to the jurisdiction of the War Department; and the Secretary of
War is hereby authorized to detail an officer of the army whom he
may consider especially well qualified to act under the authority
of the Secretary of War as the Chief of said Bureau." The
officer filling the position of chief published in 1904 this
account of the practical working of the provisions made for the
disposition of matters of legal controversy occurring on the
islands: "The establishment of a judicial system in the
Philippines affords a means for the adjudication of litigated
questions between the inhabitants and of many questions
respecting the jurisdiction and authority of officials of that
government. Whenever possible, controversies are referred to
those tribunals. In some instances questions have arisen
affecting the action or authority of officers of the executive
department of that government in matters controlled by the
discretion of the administrative branch and affecting the
administration of civil affairs. These questions are considered
and determined by the War Department, upon investigation and
report by the law officer."[Footnote: _National Geographic
Magazine_ for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an
administrative or political nature for calling public officers
directly to account for a breach of public duty are our courts of
impeachment. These act only occasionally, and when specially
convened for the purpose of hearing charges against a particular
individual. They do not grant relief to any party injured by the
wrongful acts which are the subject of the accusation. They sit
only to punish the public wrong.

In constituting courts of impeachment, the control of the cause
is generally given to officers of the legislative department, but
judicial officers are often joined with them. Such a tribunal
was long maintained in New York, of which the senators formed the
majority, but in which the chancellor and judges of the Supreme
Court also sat. The first Constitution of South Carolina,
adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying
impeachments, but should the Governor be thus brought before
them, the Chief Justice is added to it, and presides. A similar
provision is contained in the Constitution of the United States
as respects the President. The main reason for putting such a
proceeding under judicial direction is to avoid giving the second
in rank of the executive magistracy, whose function it generally
is to preside over the Senate, a position of authority over his
chief, in a proceeding which, if successful, would put him in his
place. It also, of course, tends to promote a trial in
accordance with all the rules of law. The court in such a
proceeding cannot be regarded as fully organized until the Chief
Justice is present. It is then first competent to prescribe the
rules to govern it during the progress of the cause. This was
the ruling of Chief Justice Chase on the impeachment of President
Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in
judicial power, but her judges a share in that of legislation.
Her Constitution of 1777 provided for a council of revision,
consisting of the Governor, the Chancellor, and the judges of the
Supreme Court, to whom all bills which passed the Senate and
Assembly should be presented for consideration; and that if a
majority of them should deem it improper that any such bill
should become a law they should within ten days return it with
their objections to the house in which it originated, which
should enter the objections at large in its minutes, and proceed
to reconsider the bill; and that it should not become a law
unless re-passed by a vote of two-thirds of the members of each
house. For forty years this remained the law, and the Council of
Revision contained from time to time judges of great ability,
Chancellor Kent being one. During this period 6,590 bills in all
were passed. One hundred and twenty-eight of them were returned
by the Council with their objections, and only seventeen of these
received the two-thirds vote necessary to re-enact
them.[Footnote: Poore, "Charters and Constitutions," II, 1332,
1333, note.]

An obvious objection to this method of legislation is that the
judges who, as members of a council of revision, find nothing
objectionable in a bill presented for their scrutiny, must
naturally have a certain pride of opinion to conquer before,
should its constitutionality become afterward the subject of
litigation before them, they could be in a frame of mind to
render an unprejudiced judgment. One of the bills which came
under the eye of Chancellor Kent as a member of the Council was
afterward the source of controversy before him in court. He
adhered to his original views, but was overruled by the Supreme
Court of the United States. Chief Justice Marshall gave the
opinion, and half apologetically alluded to this circumstance in
these words:

  The State of New York maintains the constitutionality of these
  laws; and their legislature, their council of revision, and
  their judges, have repeatedly concurred in this opinion. It is
  supported by great names--by names which have all the titles to
  consideration that virtue, intelligence, and office can bestow.
  No tribunal can approach the decision of this question without
  feeling a just and real respect for that opinion which is
  sustained by such authority; but it is the province of this
  court, while it respects, not to bow to it implicitly; and the
  judges must exercise, in the examination of the subject, that
  understanding which Providence has bestowed upon them, with
  that independence which the people of the United States expect
  from this department of the government.[Footnote: Gibbons
  _v._ Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end--the views of the judges in
advance of the enactment of a law--in a different way, has been
from the first quite common. This is for the legislature to ask
them specially for their opinion as to the constitutionality of a
bill before it is put upon its passage. An analogous practice
has always obtained in England, and was followed in several of
the colonies.

Some of our State Constitutions expressly authorize such
proceedings. In the absence of such authority, the judges can
properly decline to comply with the request. It always asks them
to prejudge a question which may later come before them in court,
and to prejudge it without hearing any of the parties whom it may
affect injuriously.[Footnote: See the Reply of the Judges of the
Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind
before the justices of the Supreme Court of the United States.
It was during the controversy with M. Genet, the French minister,
as to his right to refit a captured English merchantman as a
privateer at an American port, and then send her out for a
cruise. By the advice of his Cabinet, the President asked the
justices a series of questions comprehending all the subjects of
difference as to the proper exposition of the provisions of our
treaties with France under which her minister made claim. They
replied that they deemed it improper to enter the field of
politics by declaring their opinions on questions not growing out
of some case actually before them.[Footnote: Marshall, "Life of
Washington," V, 433, 441.] No further request of this kind has
since been made by any of the political departments to a court of
the United States, except such as have been addressed to the
Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give
the legislature the benefit of judicial advice at the opening of
each session as to what laws it might be desirable to enact. The
judges of her trial courts are annually to report to those of her
Supreme Court such defects and omissions in the laws as their
knowledge and experience may suggest, and the latter, after
considering these suggestions, are then, within the next five
months, to report to the Governor such defects and omissions,
both in the Constitution and in the laws, as they may find to
exist.

The duty of the judiciary, in the course of lawsuits, to compare
a statute, the validity of which is called in question, with the
Constitution, and by the decision indirectly to affect
legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving
matters affecting the foreign relations of the general
government, acknowledge in a certain degree a dependence upon the
executive department. If they have a treaty to construe, any
construction of it as to the point in question already given by
the State Department will be followed, unless plainly wrong. If
it becomes material to determine whether a certain country is
subject to a certain power, and the President of the United
States has dealt with that question (as by recognizing or
refusing to recognize a minister accredited to the United
States), his action will be accepted as conclusive. His
proceedings would have like weight if taken within the limits of
his authority with respect to the government of one of the United
States.[Footnote: Luther _v._ Borden, 7 Howard's Reports,
1.]

When questions of this nature arise in a lawsuit between private
parties, the courts can, without notice to them, seek information
by communicating directly with the Department of State. It will
be given by a letter or certificate, and this will be received as
a conclusive mode of proof or as aiding the court in taking
judicial notice of historical facts.

So an official letter or certificate from the minister or consul
of a foreign power can be received and used as evidence as to
facts in controversy peculiarly within the knowledge of that
government.[Footnote: Gernon _v._ Cochran, Bee's Reports,
209.]

In prize cases, which must all be brought before the District
Court, an appeal is allowed directly to the Supreme Court of the
United States, although the judgments of the District Court
generally are reviewable only in an intermediate court. This
secures a prompt decision by the highest judicial authority of a
question which necessarily affects, in some degree, the foreign
relations of the United States.

But there may be cases affecting a vessel claimed as a prize
which are not brought to secure her forfeiture and so are not
prize cases. They may even to a greater extent affect our
relations to foreign governments. How far can the courts, in
dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of
the Constitution. Great Britain and Spain were at war. A
British man-of-war brought a Spanish felucca into Charleston,
claiming her as a prize, and she was advertised for sale. No
proceedings to have her adjudicated a lawful prize had been taken
before any court. The Spanish consul applied to the Circuit
Court for an injunction against the sale, claiming that for the
United States to permit it would be a breach of neutrality and
contrary to the law of nations. The British consul resisted the
application on the ground that a sale could not be forbidden in
the absence of any act of Congress on the subject, except by the
President. The Chief Justice, who sat in the case, gave the
opinion, which was that there could be no lawful sale without the
permission of the United States; that it was a matter proper to
be dealt with by the President; that the court would not say how
he should deal with it; but that an injunction might issue to
stop the sale until further order, unless permission should be
sooner obtained from the President.[Footnote: Consul of Spain
_v._ Consul of Great Britain, Bee's Reports, 263.] Here,
therefore, an act which might have been a _casus belli_ was
stayed by a court until and unless the Executive should intervene
and permit it.

The extradition of criminals under a treaty on the demand of a
foreign government presents a debatable ground in respect to the
subject now under consideration. The surrender is an executive
proceeding and a political act. But the laws may provide for a
preliminary inquiry before a court into the propriety of
complying with the demand. They certainly provide for a judicial
proceeding by writ of _habeas corpus_ to release any one
arrested in such a proceeding if held without due cause. Is the
court before which either of these proceedings may be had at
liberty to receive advice or submit to instructions from the
President of the United States?

This question stirred the country to its depths in 1799. Great
Britain applied to our government for the extradition of a seaman
who claimed to be an American citizen and was charged with
committing murder on a British man-of-war. He was arrested in
South Carolina, under a warrant from the District Judge, and
lodged in jail. There was a treaty of extradition between the
two powers covering cases of murder, but no particular machinery
had been provided for regulating the surrender. The British
consul asked the judge who had made the commitment to order his
delivery to him. The judge doubted his power to do so.
Thereupon the Secretary of State, by authority of the President,
wrote him that the President advised and requested him to make
the surrender, if satisfied with the proofs of criminality, as he
(the President) was of opinion that any crime committed on a
man-of-war was committed within the territory of the power to
which it belonged. The judge complied with this request, after a
public hearing on a writ of _habeas corpus_, under which he
ordered the man in question to be brought before him, and in the
course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in
Congress, but the President's course was ably and conclusively
defended by Marshall on the floor of the House,[Footnote: United
States _v._ Nash _alias_ Robins, Bee's Reports, 266;
Robbins' Case, Wharton's State Trials, 392.] and the course
pursued has since been followed in substance by our extradition
statutes.[Footnote: United States Revised Statutes, Secs. 5270,
5272.] These provide for a hearing of a judicial character, and
then, if that results in a determination that a surrender should
be made, it may be ordered on a warrant from the State
Department.

On the other hand, the peculiar provision of the Constitution of
the United States which makes treaties the supreme law of the
land calls upon the courts to enforce them according to whatever
interpretation they may conclude to give them, even if it should
differ from that adopted by the President or the State
Department. If a treaty prescribes a rule by which the rights of
private individuals are to be determined, and those rights are
such as can be appropriately made the subject of a lawsuit, the
court before which it may be brought has as full authority to
construe the treaty as it would have to construe an act of
Congress, were the matter in controversy one of a statutory
nature. They cannot be appropriately made the subject of a
lawsuit so long as the questions involved are under active
consideration in the course of diplomatic negotiation and pending
for decision before the President. Let him, however, once make
his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our
controversy with Great Britain over the seal fisheries in Behring
Sea. There was a serious dispute between the two governments as
to the limits of our jurisdiction over the waters adjacent to
Alaska. We maintained that it ran to the middle of Behring's
Straits and from the meridian of 172° to that of 193° west
longitude. Great Britain contended for the three-mile limit.
Pending diplomatic negotiations as to this point, one of our
revenue cruisers seized a Canadian vessel which was engaged in
seal fishing nearly sixty miles from the Alaskan coast, and she
was condemned, on a libel by the United States, by an admiralty
court in Alaska.

The owner in 1891 applied to the Supreme Court of the United
States for a writ to prohibit the enforcement of this decree of
confiscation. The Attorney-General of Canada filed in this suit
papers in aid of the application, stating that he did so with the
knowledge and approval of the imperial government, and that he
would be represented by counsel employed by the British minister
resident. The writ was refused on technical grounds, but the
court, through Chief Justice Fuller, made these observations as
to the merits of the cause:

  In this case, Her Britannic Majesty's Attorney-General of
  Canada has presented, with the knowledge and approval of the
  Imperial government of Great Britain, a suggestion on behalf of
  the claimant. He represents no property interest in the
  vessel, as is sometimes done by consuls, but only a public
  political interest. We are not insensible to the courtesy
  implied in the willingness thus manifested that this court
  should proceed to a decision on the main question argued for
  the petitioner; nor do we permit ourselves to doubt that under
  such circumstances the decision would receive all the
  consideration that the utmost good faith would require; but it
  is very clear that, presented as a political question merely,
  it would not fall within our province to determine it.... We
  are not to be understood, however, as underrating the weight of
  the argument that in a case involving private rights, the court
  may be obliged, if those rights are dependent upon the
  construction of acts of Congress or of a treaty, and the case
  turns upon a question, public in its nature, which has not been
  determined by the political departments in the form of a law
  specifically settling it, or authorizing the executive to do
  so, to render judgment, "since we have no more right to decline
  the jurisdiction which is given than to usurp that which is not
  given."[Footnote: _In re_ Cooper, 143 United States
  Reports, 472, 503.]

In the following year a convention was concluded between the
United States and Great Britain for the submission of the
question of our jurisdiction over Behring's Sea to arbitration.
The arbitration took place and the award supported the British
contention. Congress passed an act to give it full effect. The
convention provided in terms that "the high contracting parties
engage to consider the result of the proceedings of the tribunal
of arbitration as a full, perfect and final settlement of all the
questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel
engaged in the seal fishery outside the three-mile limit was
seized by one of our revenue cutters. A libel was filed by the
United States in the admiralty court for Alaska and she was
condemned. Her owners appealed to the Circuit Court of Appeals,
on the ground that the seizure was made outside of the
jurisdiction of the United States. If so, they were entitled to
her release. The court held that the limits of this jurisdiction
were conclusively settled by the award, and thus adverted to the
claim that they should treat the case as the Supreme Court of the
United States had dealt with that which followed the seizure of
the year before:

  This question has been settled by the award of the arbitrators,
  and this settlement must be accepted "as final." It follows
  therefrom that the words "in the waters thereof," as used in
  section 1956, and the words "dominion of the United States in
  the waters of Behring Sea," in the amendment thereto, must be
  construed to mean the waters within three miles from the shores
  of Alaska. In coming to this conclusion, this court does not
  decide the question adversely to the political department of
  the government. It is undoubtedly true, as has been decided by
  the Supreme Court, that, in pending controversies, doubtful
  questions which are undecided must be met by the political
  department of the government. "They are beyond the sphere of
  judicial cognizance," and "if a wrong has been done, the power
  of redress is with Congress, not with the judiciary." The
  Cherokee Tobacco, 11 Wall., 616-621. But in the present case
  there is no pending question left undetermined for the
  political department to decide. It has been settled. The
  award is to be construed as a treaty which has become final. A
  treaty when accepted and agreed to becomes the supreme law of
  the land. ... The duty of courts is to construe and give
  effect to the latest expression of the sovereign will; hence it
  follows that, whatever may have been the contention of the
  government at the time _in re_ Cooper was decided, it has
  receded therefrom since the award was rendered, by an agreement
  to accept the same "as a full, complete, and final settlement
  of all questions referred to by the arbitrators," and from the
  further fact that the government since the rendition of the
  award has passed "an act to give effect to the award rendered
  by the tribunal of arbitration."[Footnote: The La Ninfa, 75
  Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be
noticed that this result was reached in a suit by the United
States in one of their own courts, in which the claim of the
government was one of territorial boundary, and yet that the
court overruled the claim and threw out the suit on the strength
of an award made in pursuance of the law of the land. The treaty
was the law. This law provided for the award and made it,
whichever view should be adopted, final. It was therefore for
the court to accept it as final, even against the resistance of
the political department of the government, and do justice
accordingly.

The courts before the Revolution, and in some States for half a
century after it, served as a kind of political mouthpiece. The
institution of the grand jury[Footnote: See Chap. XVII.] afforded
the means. Those composing it are personally selected by the
sheriff from the principal men in the county. It is the duty of
the court to instruct them at the opening of the term which they
are summoned to attend as to the law and practice governing the
exercise of their functions. Frequently this charge was prefaced
by an harangue from the judge on the social, moral, religious or
political questions of the day.[Footnote: "Life and Works of John
Adams," II, 169.] To this the grand jury were not backward in
responding with compliments and perhaps presentments.

In Massachusetts they went even further in 1774. The House of
Representatives of the Provincial Assembly impeached the Chief
Justice for accepting a salary from the Crown instead of relying
on legislative grants, as had been the practice. The Council
before which the articles were exhibited declined to entertain
them. The people, however, felt that the House was right, and
this sentiment was manifested at the next sessions of the courts
by the grand and petit juries in every county. They refused to
take the oaths and stated that they could not take part in
proceedings presided over by a judge who was under impeachment.
No business was done in court until the following year, when,
after the battle of Lexington, new judges were appointed by the
Council.[Footnote: "Life and Works of John Adams," II, 332; X,
240; "Principles and Acts of the Revolution," 100.]

Sometimes the laws of the State were criticised in this way by
judge and jury.

In December, 1788, a grand jury in South Carolina made this
presentment:

  We present as a grievance of the greatest magnitude the many
  late interferences of the legislature of the State in private
  contracts between debtor and creditor. We should be wanting in
  our duty to our country and regardless of the obligation of our
  solemn oath and the high trust at this time devolving upon us
  by operation of the laws of the land, did we omit this occasion
  between the expiration of one legislature and the meeting of a
  new representative body, to express our utter abhorrence of
  such interferences.[Footnote: "American Museum," VII, Appendix
  II, 10. _Cf. ibid._, 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History
of the People of the United States," II, 229.] or acts of
Congress were formerly attacked. In 1819, the action of the
House of Representatives as to the introduction of slavery in
Missouri was the subject of a warm protest from a grand jury in
that territory, which closed thus:

  They hope those restrictions will never more be attempted; and,
  if they should, they hope by the assistance of the genius of
  '76 and the interposition of Divine Providence to find means to
  protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently
presented as grievances in the South during the years preceding
the nullification movement in South Carolina.[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of the
American Historical Association for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance
the suspension of Commodore Porter from duty for six months under
sentence of a naval court martial, approved by the Secretary of
the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
grand jury in Tennessee presented a "protest against the bold and
daring usurpations of power by the present Executive of the
United States" (John Quincy Adams), and stated that "being
decidedly opposed to the present administration, we have for
ourselves resolved to oppose all those we have just reason to
suspect to be friendly thereto, and recommend the same course to
all our fellow-citizens of Blount County."[Footnote: Niles'
Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to
a grand jury with a long statement of the justice of the
Revolution, its military successes, and the duties of patriotism.
The court thereupon ordered "That the political part of the Chief
Justice's charge" be forthwith printed.[Footnote: Principles and
Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a
similar occasion to comment with severity on those who had
opposed the ratification of the Constitution of the United
States. Jealousy had done much to poison their minds, he said,
"for it is observable that throughout the whole of the United
States a majority of the leaders of the opposition to our newly
adopted government are not natives of our soil; hence this
pernicious quality of the mind displays itself more widely in
America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for
Governor of Massachusetts, a Federalist newspaper reported
approvingly a charge of Chief Justice Dana of that State. He had
been an ardent politician before going on the bench and had
declined a nomination as minister to France during the preceding
year. "The learned judge," said the Boston _Centinel_, "in
a forcible manner proved the existence of a French faction in the
bosom of our country and exposed the French system among us from
the quintumvirate of Paris to the Vice-President and minority of
Congress as apostles of atheism and anarchy, bloodshed and
plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
"Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States
made several charges in Maryland hardly less objectionable, one
of which was afterward unsuccessfully set up by the House of
Representatives as a ground of his impeachment. The article
stating it described the charge as "an intemperate and
inflammatory political harangue with intent to excite the fears
and resentment of the said grand jury and of the good people of
Maryland against their state government and Constitution." He
had, indeed, used this language:

  You know, gentlemen, that our State and national institutions
  were framed to secure to every member of the society, equal
  liberty and equal rights; but the late alteration of the
  federal judiciary by the abolition of the office of the sixteen
  circuit judges, and the recent change in our State
  constitution, by the establishment of universal suffrage, and
  the further alteration that is contemplated in our State
  judiciary (if adopted) will, in my judgment, take away all
  security for property and personal liberty. The independence
  of the national judiciary is already shaken to its foundation,
  and the virtue of the people alone can restore it. The
  independence of the judges of this State will be entirely
  destroyed if the bill for the abolition of the two supreme
  courts should be ratified by the next general assembly. The
  change of the State constitution, by allowing universal
  suffrage, will, in my opinion, certainly and rapidly destroy
  all protection to property, and all security to personal
  liberty; and our republican constitution will sink into a
  mobocracy, the worst of all possible governments. I can only
  lament that the main pillar of our State constitution has
  already been thrown down by the establishment of universal
  suffrage. By this shock alone the whole building totters to
  its base and will crumble into ruins before many years elapse,
  unless it be restored to its original state.

All this was less indefensible under the judicial practice of a
century ago than it would be now, and there were not enough votes
of Guilty on the article of impeachment founded upon it to secure
a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of
Pennsylvania was charging a Pennsylvania grand jury that the
Jeffersonians had assumed a name that did not belong to them.
"Such men," he said, "disgrace the name of Republicans by
exclusively assuming it. In their sheep's clothing they are
ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
For this, among other things, he was very properly impeached and
removed in 1803, after the Republicans came into power in that
State.[Footnote: McMaster, "History of the People of the United
States," III, 154.]

It is difficult for the American of the twentieth century to
conceive how honorable men could so have abused official
position.[Footnote: Wharton's State Trials, 376. Justice
Washington made it a rule not to enter into any political
questions in his charges unless necessary for the guidance of the
grand jury in the work before them, and until 1817, when party
feeling had moderated, not to give out copies of any charges for
publication. Niles' Register, XIII, 169.] The cause lies in the
extreme rancor which then embittered politics and debased
society. Federalists and Republicans were hardly on speaking
terms. Many who were actively engaged in politics felt compelled
to carry a sword cane for defence if attacked. Judge Addison's
charge brought out an open letter to him in a Pittsburgh
newspaper, signed by a Republican who was on the Supreme bench of
the State, expressing his astonishment that the people who heard
him "were not fired with sudden indignation and did not drag you
from your seat and tread you under foot."[Footnote: Wharton's
State Trials, 47, note.] On the other hand, at a political
banquet of the Boston Federalists, at about the same time, their
approval of Judge Dana's charges to grand juries was manifested
by this toast: "The Honorable Francis Dana, Chief Justice of the
learned Associate Judges of our Supreme Judicial Court. While
the political opinions delivered from the bench are dictated by
intelligence, integrity and patriotism, may they be as highly
respected as have ever been its judicial decisions."[Footnote:
Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior
executive officers to do specific official acts which it is their
plain duty to perform, or issue an injunction to prevent their
doing an official act which is plainly beyond their powers.
Heads of Departments of the State or the United States are
subject to this power.[Footnote: Noble _v._ Union River
Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
U. S. Reports, 466.] So in the Federal Courts are Governors of
States acting under a law repugnant to the Constitution of the
United States.[Footnote: Pennoyer _v._ McConnaughy, 140
U. S. Reports, 1.] No such writ will be issued, however, when
the case is of a political nature and involves the exercise of
any official discretion,[Footnote: Georgia _v._ Stanton, 6
Wallace's Reports, 50.] nor under any circumstances against the
President of the United States.[Footnote: Mississippi _v._
Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
cases be granted by a State court against the Governor there is a
conflict of authority.

The development of party government in the United States has led
of recent years to much legislation for the regulation of party
conventions and party organization in the interest of fair
dealing and public order. Statutes of this nature relating to
the form and heading of ballots for use at popular elections are
common. If conflicting factions contend for the right of issuing
ballots in the name of the same party, the courts may be called
upon to decide between them on an application for an injunction
or writ of mandamus. The legislature, however, may provide that
some standing agency or committee of a party shall decide finally
upon any such conflicting claims, and in such case their decision
will be conclusive upon the courts.[Footnote: State _v._
Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When title to a political office is contested, the courts, unless
there is some constitutional provision to the contrary, may be
appealed to for a decision. This is true even in respect to the
office of Governor.[Footnote: Boyd _v._ Thayer, 143
U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
is a remedy which has been, though in rare instances, abused for
party purposes.[Footnote: Such a case was the issue by a District
Judge of the United States in 1872 of an injunction-order under
which the Marshal took possession of the Louisiana State-house,
and excluded those claiming to be the legislature of the State.
Gibson, "A Political Crime," 347 _et seq._; Senate Report,
457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Constitutions
of several States, to ask the judges of the Supreme Court for
their opinion on any question of law, may throw upon them the
delicate task of deciding in a collateral proceeding who is
Governor, if the title to the office is claimed by two. This was
the case in Florida in 1869. The House of Representatives had
commenced proceedings of impeachment against the Governor. It
was on the first day of a special session of the Assembly. There
could be no such session unless a quorum was present in each
house. There were but twelve Senators in attendance. The
Lieutenant-Governor regarded the proceedings as regular, and
assumed to exercise the office of Governor pending the trial.
The Governor claimed that twelve Senators were not a quorum, and
that the proceedings were void. On these points he requested the
opinion of the Justices of the Supreme Court, and they gave one
supporting his contentions.[Footnote: 12 Florida Reports, 653.]
A few weeks later a regular session was held, at which a quorum
was present in each house, and the proceedings of the special
session were treated as void.[Footnote: S. S. Cox, "Three Decades
of Federal Legislation," 518, 520.]

In the early days of the United States, under the present
Constitution, the Chief Justices of the Supreme Court of the
United States at times filled also a political office, and so
were invested at the same time with political and judicial
functions. John Jay, the first Chief Justice, while holding that
office, was made our Envoy Extraordinary to Great Britain, and
spent a year abroad in that capacity. His acceptance of the
position, however, occasioned general and unfavorable comment.
John Marshall was both Chief Justice and Secretary of State for
five weeks, during which he held one term of the Supreme Court.
Oliver Ellsworth was both Chief Justice and minister to France at
the same time, and for a period of over a year, during which he
held one term of court.

Nothing of this kind has since occurred, nor would it now be
thought consistent with the proprieties of judicial office.

When the result of the election of the President and
Vice-President of the United States was contested in 1877,
Congress, as a temporary makeshift, bridged over the difficulty
by creating a commission of fifteen, five from each house and
five from the Supreme Court, to decide upon the returns. Four of
the justices were especially selected by the act passed for this
purpose, two of them being Republicans and two Democrats, and
they were directed to choose the fifth.[Footnote: 19 United
States Statutes at Large, 228.] They agreed on Justice Bradley,
a Republican. The Congressional members were equally divided
politically. The result proved to be that on every important
question in controversy every Republican voted for the view
favorable to the Republican candidates and every Democrat voted
for the other. The country could not fail to see that judges, as
well as other public men, may be insensibly influenced by their
political affiliations, and regarded the whole matter as a new
proof of the wisdom of separating the judiciary from any
unjudicial participation in the decision of political
issues.[Footnote: See Wilson, "Division and Reunion," 286;
S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
"Some Account of the Work of Stephen J. Field," 440.]

Justices of the Supreme Court have since sat on international
tribunals of arbitration, but this is, or should be, a strictly
judicial proceeding.

In the State Constitutions, the judges of the highest courts are
now often expressly forbidden to accept other office,[Footnote:
See Chap XXII.] but in the absence of such a prohibition it would
be considered as unbecoming. Formerly and during the first third
of the nineteenth century this was in many States not so. Some
were then judges because they held legislative office and as an
incident of it. Others did not hesitate to accept political
positions. Of the six Federalist electors chosen in New
Hampshire at the presidential election of 1800, three were judges
of her Supreme Court.[Footnote: Wharton's State Trials, 47.]

Judges have frequently taken part in constitutional conventions
of their States. In Virginia, Chief Justice Marshall was a
member of that of 1829, and Judge Underwood of the District Court
presided over that of 1867. Chancellor Kent and Chief Justice
Spencer were members of that of 1821 in New York.

It may well be doubted if the advantages to be gained by their
counsel in such a position are not outweighed by the evil of
exposing it to criticism as dictated by selfish considerations.
A member of the New York convention thus alluded upon the floor
to the measures supported by the Chief Justice and Chancellor:

  He regretted that such an opinion and plan had been proposed by
  the Chief Justice. It must have arisen from the politics of
  the Supreme Court. The judges of that court had been occupied
  so much in politics that they had been compelled to press upon
  the public a system that had nothing else to recommend it than
  such a relief to themselves from the burthen of official duties
  as would leave them to the free exercise of their
  electioneering qualifications. But for this, the Chief Justice
  might have shown a Holt, or a Mansfield. The elevated
  character of the Chancellor had been often asserted and alluded
  to. He meant no disrespect to that honorable gentleman. He
  respected him as highly as any man when he confined himself to
  the discharge of the official duties of his office; but when he
  stepped beyond that line; when he became a politician, instead
  of being his fancied oak, which, planted deeply in our soil,
  extended its branches from Maine to Mexico, he rather resembled
  the Bohon Upas of Java, that destroyed whatever sought for
  shelter or protection in its shade.[Footnote: Reports of the
  Proceedings and Debates of the Convention of 1821, 615.]

The pardoning power is essentially of a political nature.
Judicial officers are to do justice. Mercy is an act of policy
or grace. A pardon after conviction presupposes guilt.
Nevertheless, in a few States this royal prerogative of pardoning
has been committed to a board of officers, headed by the
Governor, of which some of the judiciary are members. There is
this advantage in it, that judges know best how fully
circumstances of extenuation are always taken into account by the
court before pronouncing sentence, and therefore cannot but
exercise a restraining power against the influences of mere
sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the
judiciary apart from any active connection with the executive
department has steadily increased since the first quarter of the
nineteenth century.

When our position as a neutral power, in 1793, involved us in
serious questions affecting the rights of Great Britain and
France, Washington's cabinet advised him that the ministers of
those countries be informed that the points involved would be
referred to persons learned in the law, and that with this in
view the Justices of the Supreme Court of the United States be
invited to come to the capitol, six days later, "to give their
advice on certain matters of public concern, which will be
referred to them by the President."[Footnote: Jefferson's
Writings, Library Ed., I, 370.] Nothing of this nature would now
be dreamed of, under any conditions.

            *       *       *       *       *



                     CHAPTER IV


            THE FORCE OF JUDICIAL PRECEDENTS


The antipathy to legal codification, which, until recent years,
was a characteristic both of the English and American bar, and
still prevails, though with diminishing force, has given, and
necessarily given, great force to judicial precedents. It is
mainly through them that with us unwritten law passes into
written law. Precedent is a fruit of reason ripened by time.
Time, it has been said, is the daughter of Antiquity and takes
place after Reason, which is the daughter of Eternity. Precedent
rests on both. A legal code framed in any American State is
little more than the orderly statement of what American courts
have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing
out of the affairs of daily life, it often happens that two minds
will pursue different paths and perhaps come to different
results. Not infrequently neither result can fairly be
pronounced untenable. An English judge has said that nine-tenths
of the cases which had ever gone to judgment in the highest
courts of England might have been decided the other way without
any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to
end it justly; and in the administration of human government the
first is almost as important as the last.[Footnote: Hoyt
_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
the essence of justice; but among men and as administered by
their governments it can only be such certainty as may be
attained by an impartial, intelligent, and well-trained judge.
If such a judge has, after a proper hearing, declared what, under
a particular set of circumstances, the law is which determines
the rights of the parties interested, this declaration makes it
certain, once and forever, as far as they are concerned, and
helps to make it certain as to any others in the future between
whom there is a controversy under circumstances that are similar.
If it is the declaration of a court of supreme authority it is
ordinarily accepted as of binding force by any inferior courts of
the same government, and treated with great respect and as high
evidence of the law by any other of its superior courts, as well
as by courts of other States before which a similar question may
be presented.

A decision on a point of law by the highest court in a State does
not, however, bind its lower courts as absolutely as would a
statute. An inferior court may disregard it and decide the same
point another way if it be fully satisfied that the action taken
by the court above was ill-considered and erroneous. It is
possible that in such event, on reconsideration, the court of
last resort may reverse its original position.[Footnote: A good
instance of this is furnished by the case of Johnson _v._
People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
In McFarland _v._ People, 72 Illinois Reports, 368, the
Supreme Court had stated in its opinion, that if two unimpeached
witnesses gave the only testimony as to a certain point material
to the plaintiff's case, and testified in contradiction of each
other, the case failed for want of proof. Many years later a
charge to the jury to this effect was asked and refused in an
inferior court. An appeal was taken to the Supreme Court, and
there Mr. Justice Schofield, the author of the original opinion,
thus disposed of it: "Although in McFarland _v._ People, 72
III., 368, the writer of this opinion expressed the belief that a
similar instruction was free of legal objection, his remarks in
that respect were unnecessary to a determination of the case then
before the court, and they were made without sufficient
consideration, and are manifestly inaccurate. They are now
overruled. The question of competency is one of law, and
therefore for the court; but the question of credibility,--that
is, of worthiness of belief,--and therefore the effect of the
competent evidence of each witness, is one of fact, and for the
jury."] If not, that acquires by this attack a double force.

Chief Justice Bleckley of Georgia once remarked that courts of
last resort lived by correcting the errors of others and adhering
to their own. Nevertheless, they have often, years after
formally announcing a certain legal doctrine in one of their
opinions, declared it to be unsound, and overruled the case in
which it was laid down. They do this, however, with natural and
proper reluctance, and never if this doctrine is one affecting
private rights of property and has been followed for so long a
course of time that it may be considered as a rule on which the
people have relied in exchanging values and transferring titles.

The public, however, have rights to be regarded as fully as
individuals, and if a right of private ownership has been
adjudged to exist, which involves a public loss, the precedent
thus created might be overruled with less hesitation than one
would be determining rights and correlative obligations that were
purely private. Thus the North Carolina courts for seventy years
held that a public office was the private property of the
incumbent. No other courts in the United States took that view,
and it has, by a recent decision, been repudiated in North
Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
Annotated, 697.]

Still more are public interests to be regarded when a question
arises as to reversing a decision as to the proper construction
of a constitutional provision. If a judicial mistake be made in
construing a statute it is easily remedied. The next legislature
can amend the law. But a Constitution can only be amended with
extreme difficulty and by a slow process. If the court falls
into error as to its meaning, the correction must ordinarily come
from its own action or not at all. Hence an opinion on a matter
of constitutional construction is less to be regarded as a final
and conclusive precedent than one rendered on a matter of mere
private right.

It has been the position of some American statesmen and jurists
that judicial decisions on points of constitutional construction
were not binding upon the executive or legislative department of
the government. President Jackson asserted this with great force
in his message to the Senate of July 10, 1832, disapproving the
re-charter of the Bank of the United States. He conceded,
however, that a judicial precedent may be conclusive when it has
received the settled acquiescence of the people and the States.
But while such acquiescence may strengthen the authority of a
decision, it can hardly be regarded as that which gives it
authority. That comes from the fact that it is an exercise of
the judicial power of the government in a case for the disposal
of which this judicial power has been properly invoked.

The decision of the court in McCulloch _v._
Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
"The American Constitutional System," 44, 123.] unquestionably
settled forever, as between the cashier of the bank and the State
of Maryland, that the bank was a lawful institution. That in
Osborn _v._ The Bank of the United States[Footnote: 9
Wheaton's Reports, 738.] reaffirmed it as between the bank and
the Treasurer of the State of Ohio. It would be intolerable if
such judgments were not in effect equally conclusive for the
determination of all controversies between all men and all States
growing out of the creation of such a corporation. Practically,
then, the opinion of the executive department to the contrary
could only be of importance in such a case as Jackson had in
hand; that is, in its influencing executive action in approving
or disapproving some proposed measure of legislation. It could
not disturb the past.

The authority of a judicial precedent is weakened if it comes
from a divided court, and especially if a dissenting opinion is
filed in behalf of the minority. A silent dissent indicates that
the judge from whom it proceeds is not so impressed by the fact,
or the importance to the public, of what he deems the error of
the majority that he thinks it worth while to express the reasons
which lead him to differ from them.

No departure from precedent in any American court has ever
awakened so much feeling as that by the Supreme Court of the
United States in 1872, when it decided that Congress could make
government notes a legal tender for debts contracted before the
law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
Reports, 457, 529.] It had held precisely the contrary two years
before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
Reports, 603.] but it was by a bare majority and in the face of a
strong dissenting opinion. In the opinions filed in the second
case stress was laid upon this division of the court.[Footnote:
12 Wallace's Reports, 553, 569. See George F. Hoar,
"Autobiography," I, 286.]

The word "established" is often used to describe the kind of
precedent to which courts are bound to adhere. What serves to
establish one?  Long popular usage, repeated judicial
affirmations, and general recognition by approved writers on
legal topics. Of these, in fact, the last is probably the most
powerful. Lawyers and courts, in countries without codes, get
their law mainly from the standard text-books. Such authors as
Coke, Blackstone, Kent and Cooley are freely cited and relied on
as authorities by the highest tribunals.[Footnote: See, for
instance, Western Union Telegraph Co. _v._ Call Publishing
Co., 181 United States Reports, 101; Louisville Ferry
Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
is by the writings of such men that judicial precedents are
sifted and legal doctrines finally clothed in appropriate terms
and arranged in scientific order.

The English courts long ago declared it to be a rule of law to
prevent perpetuities that no estate in lands could be created
which was not to commence within the compass of a life or lives
of persons then existing, with an exception intended to favor a
minor heir. American courts accepted this rule, but some of them
construed it as meaning that no estate in lands could be created
which was to continue after the expiration of such a period.
This construction was shown by Professor John C. Gray, in a work
on "Perpetuities," to be unwarranted, and since its publication
the cases which had proceeded on that basis have been generally
treated as erroneous.

The nature of a legal presumption, also, had been misconceived by
several American courts. It had been treated as evidence of
facts.[Footnote: Coffin _v._ United States, 156 United
States Reports, 432.] Professor J. B. Thayer, in his
"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-575.]
argued so forcibly against this view that in at least one
State a decision in which it had been taken has been formally
overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
Reporter, 963.]

The Court of Appeals of New York once held in a carefully
prepared opinion that a railroad might be built along the shore
of a navigable river, under authority from the State, without
first making compensation to the riparian proprietors, whose
access to the waters might thus be obstructed.[Footnote: Gould
_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
In a text-book written by Chief Justice Cooley, this decision was
justly criticised,[Footnote: Cooley on Constitutional
Limitations, 670.] and not long after the publication of that
work it was formally overruled.[Footnote: Rumsey _v._ New
York and New England Railroad Co., 133 New York Reports, 79; 30
Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
It is safe to say that its fate was largely the result of the
comments thus made by a distinguished jurist, whose only motive
could be to maintain the integrity and consistency of legal
science.

The general doctrine of the courts, which is commonly expressed
by the rule "_stare decisis_," was never better stated than
by Chief Justice Black of Pennsylvania, in these words:

  When a point has been solemnly ruled by the tribunal of the
  last resort, after full argument and with the assent of all the
  judges, we have the highest evidence which can be procured in
  favor of the unwritten law. It is sometimes said that this
  adherence to precedent is slavish; that it fetters the mind of
  the judge, and compels him to decide without reference to
  principle. But let it be remembered that _stare decisis_
  is itself a principle of great magnitude and importance....

  A palpable mistake, violating justice, reason and law, must be
  corrected, no matter by whom it may have been made. There are
  cases in our books which bear such marks of haste and
  inattention, that they demand reconsideration. There are some
  which must be disregarded, because they cannot be reconciled
  with others. There are old decisions of which the authority
  has become obsolete, by a total alteration in the circumstances
  of the country and the progress of opinion. _Tempora
  mutantur_. We change with the change of the times, as
  necessarily as we move with the motion of the earth. But in
  ordinary cases, to set up our mere notions above the principles
  which the country has been acting upon as settled and
  established, is to make ourselves not the ministers and agents
  of the law, but the masters of the law and the tyrants of the
  people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,
  423.]

Generally, overruling a former decision is due to a change of
circumstances, which has given the court a new view-point. A
marked instance of this occurred in 1851, in proceedings before
the Supreme Court of the United States. More than a quarter of a
century before, a suit in admiralty for seamen's wages on an
inland river had been dismissed by the District Court of Kentucky
for want of jurisdiction, and on appeal this action had been
affirmed. Mr. Justice Story gave the opinion of the court, and
said that a court of admiralty could only take cognizance of such
a claim when the services were rendered at sea or upon waters
within the ebb and flow of the tide.[Footnote: The Thomas
Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
true statement of what had always been the doctrine of both
English and American courts. But out of what did this doctrine
spring?  From the fact that in England there were no navigable
waters except those in which the tide ebbed and flowed, and that
in the United States, up to that time, there were none of a
different kind which had been largely used for commercial
purposes. Twenty years passed. Steam navigation had opened the
great lakes and the great rivers of the country to a profitable
carrying trade. The day was dawning when the bulk of American
shipping was to be employed upon them. A suit in admiralty was
brought against a ship for sinking another on Lake Ontario. The
defendants put in an answer relying on the doctrine laid down by
Story. The District Court overruled it. The case came by appeal
to the Supreme Court, and in an opinion by Chief Justice Taney
the appeal was dismissed. "The conviction," he said, referring
to the opinion of Mr. Justice Story, "that this definition of
admiralty powers was narrower than the Constitution contemplated,
has been growing stronger every day with the growing commerce on
the lakes and navigable rivers of the western States.... These
lakes are in truth inland seas. Different States border on them
on one side and a foreign nation on the other. A great and
growing commerce is carried on upon them between different States
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered on them and prizes been made, and every reason which
existed for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international
law, and if the one cannot be established neither can the
other.... The case of the _Thomas Jefferson_ did not decide
any question of property or lay down any rule by which the right
of property should be determined.... The rights of property and
of parties will be the same by whatever court the law is
administered. And as we are convinced that the former decision
was founded in error, and that the error, if not corrected, must
produce serious public as well as private inconvenience and loss,
it becomes our duty not to perpetuate it."[Footnote: The Genesee
Chief, 12 Howard's Reports, 443, 451.]

But without any change of circumstances, the proper desire of all
American courts to keep their common law in harmony with that of
the other States is often sufficient to induce the abandonment of
a doctrine once distinctly asserted.[Footnote: City of South Bend
_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
Reporter, 271.] The consistency of American law as a whole is
immeasurably more important than the consistency of the law of
any single State.

Sometimes a court of last resort treats a doctrine which it had
formerly asserted as manifestly unsound and abandons it without
stopping to give a reason or even to overrule the decision which
first announced it.

Illinois for a long generation adopted the rule that if an injury
occurred to one man through the concurring negligence of himself
and another, but his negligence was slighter than that of the
other, he might hold the latter responsible for the damages
suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
not a doctrine justified by the common law nor generally held in
this country, and in 1894 the Supreme Court of the State refused
to recognize it, with little or nothing more than this brief
_ipse dixit_: "The doctrine of comparative negligence is no
longer the law of this court."[Footnote: Lanark _v._
Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,
892.]

Occasionally a case is overruled because it has been forgotten.

An early decision in Massachusetts (Loomis _v._
Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
position that if a statute required contracts of a certain kind
to be put in writing, and a contract of that kind, but embracing
also a different and distinct matter not touched by the statute,
was made orally, it was wholly void. Such a rule was illogical
and unsound, and in a later decision the same court, forgetting
that it had indorsed it, said so, and said so when it was not
necessary to the decision.[Footnote: Irvine _v._ Stone, 6
Cushing's Reports, 508, 510.] Subsequently, both these cases
having been brought to its attention, it affirmed the latter,
though remarking that "what was there said on this point was not
essential to the decision of that case, and would have been
omitted or modified if Loomis _v._ Newhall had been then
remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
Reports, 1, 5.]

The authority of an opinion as a precedent on any point is always
proportioned to the necessity of determining that point in order
to support the judgment which was rendered. Some judges write
treatises instead of decisions or in addition to decisions.
Whatever goes beyond that which is required to show that the
judgment is the legal conclusion from the ascertained facts is
styled in law language _obiter dictum_. It may be
interesting and even persuasive, but it is not an authoritative
statement of law.

It may grow to be such by adoption in subsequent cases. The
Court of King's Bench in England was called on, at the beginning
of the eighteenth century, to say whether if a man undertook as a
friendly act, and not for pay, to cart another's goods, and did
it carelessly, he was bound to answer for any damage that might
result. There were four judges who heard the case, of whom three
gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
Raymond's Reports, 909.] Two of these opinions were confined to
the precise point of law on which the case turned. In the third,
Chief Justice Holt seized the opportunity to lay down the law of
England as to all sorts of contracts arising out of the reception
by one man of the goods of another. This he did mainly by
setting forth what were the rules of the Roman law on the
subject, but not referring to their Roman origin, and quoting
them, so far as he could, from Bracton, an English legal writer
of the thirteenth century, who had also stated them as English
law.

For four or five centuries these rules had been laid down in an
unofficial treatise, but the courts had not fully recognized
them. Now the Chief Justice of England had given such
recognition in the amplest manner. Meanwhile the trade of
England had reached a point at which some definite rules on all
these matters had become of the utmost importance. The bar were
only too glad to advise their clients in accordance with Lord
Holt's opinion. It was not long before it was universally
practiced upon, and no case in the English language touching
contract relations of that nature is of greater importance as a
precedent. Yet it became such not because of its intrinsic
authority as a judgment, so much as on account of its orderly and
scientific statement of a whole body of law of a kind that the
people needed and for the origin of which--whether at Rome or
London--they cared little, so long as it had been accepted by the
highest judicial authority in the realm.

On the other hand, the greatest judges have often, in delivering
the opinion of the court, asserted doctrines the consideration of
which was not essential to the decision, and later retracted the
assertion on fuller consideration or seen the court in a later
case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury
_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
first the court held that it had no jurisdiction to command the
Secretary of State to deliver a commission executed under the
preceding administration, because, although Congress had assumed
to confer it, Congress had no power to do so; and in defending
this position Marshall observed that the Constitution defined the
jurisdiction of the Supreme Court over cases brought there in the
first instance, and that in this clause of the Constitution
affirmative words had the force of negative words so far as to
exclude jurisdiction over any other cases than those specifically
mentioned. In the second case this observation was relied on by
Virginia to defeat the power of the court to review a State
judgment. But, said the Chief Justice, "it is a maxim not to be
disregarded that general expressions in every opinion are to be
taken in connection with the case in which those expressions are
used. If they go beyond the case they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.... In the case of Marbury
_v._ Madison, the single question before the court, so far
as that case can be applied to this, was whether the legislature
could give this court original jurisdiction in a case in which
the Constitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be
raised. The court decided, and we think very properly, that the
legislature could not give original jurisdiction in such a case.
But in the reasoning of the court in support of this decision
some expressions are used which go far beyond it.... The general
expressions in the case of Marbury _v._ Madison must be
understood with the limitations which are given to them in this
opinion; limitations which in no degree affect the decision in
that case or the tenor of its reasoning." He then proceeded to
dispose of the case in hand by saying that Virginia having
obtained an erroneous judgment against Cohens, Cohens had a right
to appeal, and the suit still remained a suit by a State against
him and not by him against a State. Unfortunately, here again
came in next an _obiter dictum_. If, he said, this were not
so, there was another principle equally decisive in support of
the jurisdiction, namely, that the Constitution gave the United
States judicial power over all cases arising under the
Constitution or laws of the United States without respect to
parties. Nearly a hundred years later a State was sued in the
courts of the United States on a cause of action arising under
the Constitution, and Cohens _v._ Virginia was relied on as
a precedent. "It must be conceded," was the reply of the Supreme
Court, "that the last observation of the Chief Justice does favor
the argument of the plaintiff. But the observation was
unnecessary to the decision, and in that sense extra-judicial,
and though made by one who seldom used words without due
reflection, ought not to outweigh the important considerations
referred to which lead to a different conclusion."[Footnote: Hans
_v._ Louisiana, 134 United States Reports, 1, 20.]

It may be added that decisions on a point not material to the
cause are generally made without the benefit of previous argument
by counsel. The lawyers will naturally address themselves to the
controlling questions, and if well trained will see what these
are quite as clearly as the court. It is the argument at the
bar, in which different views of law are presented and each
defended by men of learning and ability, which enables the judge,
after hearing both sides and weighing all that is said in behalf
of one against all that is said in behalf of the other, to come
to the true conclusion. The Romans recognized this in their rule
as to the force of precedent in a matter of customary law. The
first thing to ask was whether "_contradicto aliquando judicio
consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
legibus_, etc., 34.]

The retrospective effect which a refusal to follow a former
decision may have in disturbing vested rights being one of the
most cogent reasons for adhering to precedent, there is less
objection to departing from it when the decision can be so
limited as to have only a future operation. This is occasionally
feasible. Thus the High Court of Errors and Appeals of
Mississippi by an early decision held that on the dissolution of
a bank all its rights and liabilities were extinguished. Thirty
years later the Supreme Court of the same State overruled that
decision, declaring it "condemned by reason and the principles of
modern and enlightened jurisprudence," but nevertheless applied
it as a controlling precedent to a case arising out of the
dissolution of a bank which had been incorporated previously to
the time when the original decision was made.[Footnote: 1 Bank of
Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by
the dual character of our government.

The courts of the United States follow the decisions of the State
courts in the determination of matters of State law. If a State
law is held by the courts of the State to have a particular
meaning and effect it will be accorded the same in the federal
courts. But if a federal judgment is for that reason rendered in
a certain form, and there is no appeal, it settles the rights of
the parties to the suit forever, even should the State courts
afterward reverse their former rulings as being
erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3
"Democracy in America," II, Chap. XVI.] speaks of it as devoted
to investigating what has been done rather than what ought to be
done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting,
former judicial decisions must serve in their place. But it
would be a mistake to suppose that it is a large part of the
business of American lawyers to search out precedents for the
guidance of the courts. Most cases, after any facts in dispute
are once settled, depend on the application of the simplest
processes of ordinary reasoning. No aid from the past is needed
for this and none is to be had. It has been well said by an
English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
Chancery Appeal Cases, 526.] that the clearer a thing is the more
difficult it is to find any express authority or any
_dictum_ exactly to the point. Nor, if there be one, is it
to be accepted without regard to the circumstances out of which
it arose or the end to be effected by the judgment. A precedent
may indeed be used slavishly, but so it may be used in the free
spirit in which it was conceived. Many an argument at the bar,
however, is ruined by an excessive anxiety to repeat the
_ipsissima verba_ of some ancient opinion, when the soul of
it is the only thing of value. And occasionally courts are
chargeable with pursuing the letter of some of their former
deliverances rather than the spirit which called them forth and
gave them all their vitality.

            *       *       *       *       *



                      CHAPTER V


       THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW


The English common law was and is an unwritten law. To find it
one has to look in legal treatises and reports of judicial
decisions. Its historical development has been not unlike that
of Rome. In Rome, as in England, there were in early times
written enactments or governmental declarations of standing rules
on but few points. Some of these writings were of special
importance, such as the twelve tables of Rome and the _Magna
Charta_ of England. These were regarded as so bound up with
the very life of the people as to have a place by themselves, and
a superior force to anything to the contrary to which the free
consent of the people was not formally given. But in general
Romans and Englishmen preferred to make custom their law, and to
let this law grow "not with observation," but insensibly from day
to day as the needs of their social organization might be found
to require. It was a wise preference, and founded on a better
philosophy than they knew--than the world knew, until the theory
of evolution was demonstrated by Darwin and applied to
governmental science by Spencer.

A customary law for a people of advancing civilization and power
must expand with corresponding rapidity. There will soon be
disputes as to what it is on certain points and a demand for some
authoritative information as to this. In Rome, the priests gave
it at first, and then the lawyers. In England, the priests never
gave it, as priests. There was no sacred college of law.
Priests took part in legislation. A priest, at the king's right
hand, was his spokesman in doing equity. But it was from the
first the king as a judge, or the king's judges deputed by him
and sitting for him, who settled controverted questions of common
law. For the Roman and for the Englishman the first
representatives of government who could be called judges were
primarily and principally executive officers. The Roman
_prætor_ was not given judicial functions because he had
legal attainments. The _aula regis_ of early England was
composed of the great officers of state. The chief justiciar,
however, soon ceased to be prime minister. His associates on the
bench, as law became a recognized profession, came to be chosen
largely for their fitness for judicial work and to be kept at it
during the king's pleasure. At Rome, on the contrary, the
prætorship remained a political place, held for a fixed term, and
a brief one. Information as to the unwritten law applicable to
any controversy between parties had therefore to be sought from
others. The lawyers could give it; and it was to them, not to
the judges, that resort was had. The opinion of a great jurist
was for Rome what the opinion of a judge was for England. It was
commonly accepted as conclusive not only by the people but by the
courts.

Such opinions profess to state what the law was by which rights
accrued out of a past transaction. In fact, they often do much
more. By declaring that to be the law, and declaring it with
authority, they are the first to make it certain that it is the
law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions
(_responsa_) of lawyers only because of the standing and
reputation of those who gave them. Later the emperors gave an
official character and weight to the opinions of certain lawyers
of the past. The English always accorded authority to the
opinions of their judges, because they spoke for the state.
Americans from the first have done the same.

American judges have exercised these powers of ascertaining and
developing unwritten law even more freely than English judges.
They were forced to it as a result of applying the common law of
one people to another people inhabiting another part of the world
and living under very different social conditions. In doing this
it was necessary to reject not a little of what for England had
already been definitely settled and universally accepted. The
legislatures of the colonies and States rejected much, but the
courts rejected more. The legislatures also added much, but the
courts added yet more.

Usages grow up rapidly in new settlements and along frontiers
bounded by territory held by savages. Of such usages, under the
rulings of the courts, many were soon crystallized into law.

New inventions and new political conceptions in the eighteenth
century began to change the face of the civilized world. The
common law as to agency had to be adapted to the operations of
business corporations; that as to highways to railroads; that as
to contracts by mail to contracts by telegram, and later to
contracts by telephone. The whole law of master and servant,
which for the English people was bottomed on the relation of
land-owner and serf, was to be recast. Public assemblies were to
be regulated and their proceedings published with greater regard
to public and less to private interest.[Footnote: Barrows
_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
479.] Along all these lines and many others the American courts
have now for nearly three hundred years been quarrying out
American law from the mine of the unwritten law of the people
within their jurisdiction. It has been their natural endeavor to
make each part of the new system of jurisprudence which they were
gradually building up harmonious with every other and to give a
certain symmetry to the whole. This has forced them to deduce
rule from rule and principle from principle with a freedom for
which in older countries of settled institutions there is less
occasion. The process has gone on during the last fifty years
with ever-increasing rapidity, and for two reasons. There have
been more novel questions to meet and there has been a greater
wealth of suggestion and precedent at command.

Not a little, however, of the development of our unwritten law
has been and remains of a local character. This is particularly
true of that of the Pacific States, both on account of climatic
conditions and historical antecedents.[Footnote: Katz _v._
Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
the Supreme Court of California, afterward so long a member of
the Supreme Court of the United States, did both a constructive
and a destructive work in shaping the jurisprudence of that
State. He found it seated in a land on which certain
institutions of civil law origin had been impressed for centuries
and into which other institutions of common law origin had been
introduced in recent years. His judicial opinions molded these
into one mass, rejecting something from each and retaining
something from each.[Footnote: Pomeroy, "Some Account of the Work
of Stephen J. Field," 38, 45.] Some of the results of his
creative touch have been the foundation of decisions in distant
States, but most were so dependent on local circumstances and
conditions as to be incapable of transplantation.

But as to all questions of general concern which can be answered
from analogies drawn from the common law, the judges of each
State--and it is the State judiciary on which the burden of
developing unwritten law mainly rests--now find in the reported
decisions of the courts of last resort in all the other States a
fertile source of supply when they are looking for a rule to fit
a case for which the ancient law made no direct provision. Keen
intellects from the bench, aided perhaps by keener ones from the
bar in forty-five different jurisdictions, are discussing the
problems of the day as they appear mirrored in litigated causes.
What is a new question in one State was set at rest ten years or
ten days ago by a judicial decision in another. If the decision
was a just and logical deduction from accepted principles of the
older law it will probably be followed everywhere. If unjust and
illogical, its very faults will serve to guard other courts to
better conclusions.

How far judges advance along these paths depends greatly on the
character of the bar. A judge rarely initiates anything. He is
apt to fall into a mistake if he does. The business which he has
to do is brought before him by others. It is brought before him
in the best way to throw all possible light upon it, because it
is set before him from two opposite points of view by two
antagonists, each strenuously endeavoring to detect a flaw in the
reasoning of the other. These two men have previously given the
subject in controversy much careful thought. What views neither
presents are generally not worth presenting. As was said in the
preceding chapter, it is only in the plainest case that a judge
can properly or safely base his decision on a position not
suggested at the bar or as to the soundness of which he has not
asked the opinion of the counsel at the hearing.

The development of law, therefore, whether unwritten or written,
is primarily the work of the lawyer. It is the adoption by the
judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]

There are obvious limits to this power of developing unwritten
law. The courts are not to push forward into a place more
appropriate for the legislature to occupy.

Mr. Justice Holmes of the Supreme Court of the United States,
when Chief Justice of Massachusetts, stated with his usual
elegance and force the bounds within which, as it seemed to him,
judicial authority should be kept. In a common law suit against
a railroad company for damages suffered by an accident on its
road, the defendant had asked the trial court to order the
plaintiff to submit to an examination of his person by a
physician whom it named, for the purpose of determining what
injuries he had really suffered. "We agree," said the Chief
Justice, "that in view of the great increase of actions for
personal injuries it may be desirable that the courts should have
the power in dispute. We appreciate the ease with which, if we
were careless or ignorant of precedent, we might deem it
enlightened to assume that power. We do not forget the
continuous process of developing the law that goes on through the
courts in the form of deduction or deny that in a clear case it
might be possible even to break away from a line of decisions in
favor of some rule generally admitted to be based upon a deeper
insight into the present wants of society. But the improvements
made by the courts are made, almost invariably, by very slow
degrees and by very short steps. Their general duty is not to
change, but to work out, the principles already sanctioned by the
practice of the past. No one supposes that a judge is at liberty
to decide with sole reference even to his strongest convictions
of policy and right. His duty in general is to develop the
principles which he finds with such consistency as he may be able
to attain.... In the present case we perceive no such pressing
need of our anticipating the legislature as to justify our
departure from what we cannot doubt is the settled tradition of
the common law to a point beyond that which we believe to have
been reached by equity, and beyond any to which our statutes
dealing with kindred subjects ever have seen fit to go. It will
be seen that we put our decision, not upon the impolicy of
admitting such a power, but on the ground that it would be too
great a step of judicial legislation to be justified by the
necessities of the case."[Footnote: Stack _v._ New York, New
Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications
that would not be universally accepted. It is intimated that if
the necessity had seemed strong enough to call for the order
asked for in the trial court it ought to have been granted,
although not justified by any settled rule or authoritative
precedent, nor by any clear analogy from such a rule or
precedent. This is a view taken, though with less caution and
qualification, in a work written by the same hand many years
before, which is recognized as a legal classic on both sides of
the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
discussing some of the reasons which actuate judges in assuming
to unfold the unwritten law, it is stated thus:

  The very considerations which judges most rarely mention, and
  always with an apology, are the secret root from which the law
  draws all the juices of life. I mean, of course,
  considerations of what is expedient for the community
  concerned. Every important principle which is developed by
  litigation is in fact and at bottom the result of more or less
  definitely understood views of public policy: most generally,
  to be sure, under our practice and traditions the unconscious
  result of instinctive preferences and inarticulate convictions,
  but none the less traceable to views of public policy in the
  last analysis.... The truth is that the law is always
  approaching and never reaching consistency. It is forever
  adopting new principles from life at one end, and it always
  retains old ones from history at the other, which have not yet
  been absorbed or sloughed off. It will become entirely
  consistent only when it ceases to grow.

Courts enter on a dangerous ground when, to justify their action,
they rely on any rule of public policy not stated in Constitution
or statute and unknown to the common law. If such was once the
habit of the English courts, it was because of social conditions
with which they had to deal which no longer exist either in their
country or in ours. It is for the judge to adapt old principles
rather than adopt new ones. What one man thinks is public policy
another, equally clear-headed and well-informed, may not. The
safe course for the judiciary is to rely on the legislature to
declare it, so far as the common law does not. If, however, the
courts of a State are called upon for the first time to declare
what any rule of the common law, governing a past transaction,
is, or at a given time was, in that State, and this be a doubtful
question, the decision virtually calls for the making of a new
rule, though under the form of applying an old one, and that will
be adopted which may be deemed best calculated to do justice in
cases of that particular character.[Footnote: Seery _v._
Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

            *       *       *       *       *



                     CHAPTER VI


      THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING
                     WRITTEN LAW


As governments must provide some authority to declare what the
unwritten law governing any transaction was, so they must provide
some authority to declare what the written law governing any
transaction means. Few statements of any rule or principle can
be written out in such a way as to convey exactly the same
impression to every mind. Thought is subtler than its
expression. The meaning of written laws will therefore often be
questioned.

An answer is sometimes attempted by the authority from which the
law proceeded. A king declares what he intended by the terms of
an ambiguous edict. A legislature passes an act to declare the
meaning of a previous one. But meanwhile rights have accrued.
Something has been done in reliance upon a certain construction
of the law. If it was a right construction, then what was done
was lawful, and no subsequent explanation of his intentions by
the lawgiver can change this fact. Laws are addressed to the
community at large, and their meaning must be determined once for
all from the language used, however inadequate it may have been
to express the real design of those who enacted them, unless that
design so clearly appears, notwithstanding an unfortunate choice
of words, as to compel an interpretation against the letter but
in obedience to the spirit of the enactment. A "declaratory
statute"--one declaring what a previous statute meant--is
therefore, if it gives it a meaning unwarranted by its terms when
so interpreted, only effectual as respects future transactions.
As to the past, the meaning is for the courts, and while such a
statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the
judges decide them?  The answer must be determined by
considerations applicable to every sort of written paper. If the
true construction of an ambiguous document be left to juries, it
is evident that there would be no certainty that different
results would not be reached in different cases, and probable
that unanimity would seldom be attainable. If left to judges, a
decision will certainly be reached and, it may be presumed, be
reasoned out with care, while if the matter be one of public
importance the grounds on which they proceed will be so expressed
as to furnish a guide to others toward the same conclusion. The
construction of all writings is therefore, by the Anglo-American
common law, as by the judicial system of most countries, deemed,
in case of a question affecting litigated rights, to belong of
right to the judges. Their possession of this power in the
United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with
supreme authority. It may be that of one man or of many men.
The essential thing is that it should be a personal utterance,
proceeding from persons to whom, by acknowledged law or custom,
submission is due, and one that, if need be, can be enforced by
the whole power of the State.

The fundamental principle of American government, as laid down in
the words of Harrington in the oldest of our State Constitutions,
after which many of the rest, and that of the United States as
well, have been largely patterned, is that it is one of "laws and
not of men."[Footnote: Constitution of Massachusetts, Part the
First, Art. XXX, quoted more fully in Chapter II.] Laws,
however, must be administered by men. Their meaning, if it be
uncertain, must be determined by men. It must be the subject, as
the same Constitution twice affirms, of "impartial
interpretation."[Footnote: _Id_., Preamble, and Part the
First, Art. XXIX.] This interpretation is really what gives them
force. It is the personal utterance of one speaking for the
State, and who speaks the last word. It was simply following
English precedent to give this power to the courts as respects
legislative enactments. But the principle which required it
inevitably extended with equal force to constitutional
provisions. The people who adopt written constitutions for their
government put their work in a form which must often give rise to
questions as to what they intended to express. They rely on the
judiciary to secure their enforcement, and the judiciary must
enforce them according to what it understands their meaning to
be.

There is but a step from interpretation to enlargement. Every
statute is passed to accomplish something. If the object is
clear, the rules of Anglo-American law allow the court that may
be called on to apply it to extend its operation to cases within
the purpose evidently intended, although the language used is
inadequate fully to express it. This is styled giving effect to
"the equity of the statute." Even violence can be done to the
words, if so only can this judge-discovered intent be made
effectual. The rules governing judicial interpretation of
statute law fill a good-sized volume.

As the Roman lawyers worked out by force of logic and analogy an
extensive system of private law from the meagre fabric of the
Twelve Tables, so under the lead of American lawyers American
judges have applied the processes familiar in the development of
unwritten law to the development of our written law, both
statutory and constitutional.

Carlyle said that the Roman republic was allowed so long a day
because on emergencies the constitution was suspended by a
dictatorship. The American republics have a right, upon this
theory, to a still longer one. With them the Constitution need
not be temporarily set aside on an emergency. It may simply be
permanently enlarged or limited by judicial construction. A
Constitution is the garment which a nation wears. Whether
written or unwritten, it must grow with its growth. As Mr. Bryce
has put it: "Human affairs being what they are, there must be a
loophole for expansion or extension in some part of every scheme
of government; and if the Constitution is Rigid, Flexibility must
be supplied from the minds of the Judges."[Footnote: "Studies in
History and Jurisprudence," 197.]

The Constitution of the United States declares that no State
shall pass any law impairing the obligation of contracts. This
proposition being the major premise, Chief Justice Marshall added
the minor premise that every charter of a private corporation is
a contract, and completed the syllogism by the conclusion that no
State can pass any law impairing the obligation of such charters.
The counsel who opposed this doctrine urged that every one must
acknowledge that neither the men who framed the Constitution nor
the people who adopted it ever thought that the word "contracts,"
as so used, embraced "charters." Be it so, was Marshall's
answer, that proves nothing unless you can go farther and satisfy
the court that if they had contemplated the construction we put
upon it they would have used words to exclude it.[Footnote:
Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]

The acquisition of foreign territory is a matter not especially
provided for in the Constitution of the United States. Jefferson
hesitated to make the Louisiana purchase on this account, and was
quite inclined to think, when he did make it, that he had
transcended the bounds of his authority. The courts gave the
Constitution a different interpretation, and stamped this upon it
as permanently as if it had been a birthmark. It was done by
Marshall in a single sentence. "The Constitution," he observed,
"confers absolutely on the government of the Union the powers of
making war and of making treaties: consequently that government
possesses the power of acquiring territory either by conquest or
by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511, 542.]

In the course of the same opinion, the great Chief Justice led
the way toward the doctrine, to be developed later, that the
manner in which such territory was to be held and its inhabitants
governed need not be such as the Constitution prescribed for the
territory within one of the United States. It was to be
prescribed by Congress under its power "to make all needful rules
and regulations respecting the territory or other property
belonging to the United States." Congress had set up a
Legislative Council in the Territory of Florida, and the
Legislative Council had established a court of admiralty, with
judges holding office for four years. The case in hand turned
upon the effect of a judgment of that court. It was contended at
the bar that it had no effect, because by the express terms of
the Constitution the judicial power of the United States extended
to all cases of admiralty jurisdiction, and must be vested in one
Supreme Court and such inferior courts as Congress might ordain.
"We have only," was Marshall's reply, "to pursue this subject one
step further to perceive that this provision of the Constitution
does not apply to it. The next sentence declares that 'the
judges both of the Supreme and inferior courts shall hold their
offices during good behaviour.' The Judges of the Superior Courts
of Florida hold their offices for four years. These Courts,
then, are not constitutional Courts in which the judicial power
conferred by the Constitution on the general government can be
deposited. They are incapable of receiving it. They are
legislative Courts, created in virtue of the general right of
sovereignty which exists in the government, or in virtue of that
clause which enables Congress to make all needful rules and
regulations respecting the territory belonging to the United
States. The jurisdiction with which they are invested is not a
part of that judicial power which is defined in the third article
of the Constitution, but is conferred by Congress in the
execution of those general powers which that body possesses over
the territories of the United States. Although admiralty
jurisdiction can be exercised in the States in those Courts only
which are established in pursuance of the third article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises the
combined powers of the general and of a State
government."[Footnote: 'American Insurance Co. _v._ Canter,
1 Peters' Reports, 511, 546.]

It will be perceived that the argument here was that the Florida
court did not exercise any of the judicial power of the United
States because it could not, and that it could not because the
judges were not commissioned for life. This left unanswered the
deeper question whether any act of Congress could serve to
support a court existing under authority of the United States,
the judges of which were to hold office only for a term of years.
It was assumed that the provision for a life tenure did not apply
to the Florida judges, because if it did the court would be
illegally constituted. Whether it was legally or illegally
constituted was not discussed, except for the general reference
to the power of Congress to legislate for the territories and
exercise the rights of sovereignty over territory newly acquired
by contest or treaty.

On this decision has been built up our present system of
governing territorial dependencies at the will of
Congress.[Footnote: Mormon Church _v._ United States, 136
United States Reports, 1, 43; Dorr _vs._ United States, 195
United States Reports, 138, 141.]

Marshall's was the last appointment made to the Supreme bench
from the Federalist party. It was not many years before that
party disappeared from the face of the earth. Jefferson put
three men there representing the other school of political
doctrine,[Footnote: Among Jefferson's papers is a description of
five men whom he especially considered with reference to filling
the first vacancy which occurred during his administration.
Politics figures largely in the sketch of each. As to William
Johnson, whom he selected, it is noted that he is of "republican
convictions and of good nerves in his political principles."
American Historical Review, III, 282.] and his appointments were
followed by others of a similar nature, until in 1830, after
Mr. Justice Baldwin had taken his seat, it became evident that
the nationalizing tendencies which the great Chief Justice from
the beginning of the century had impressed upon its opinions were
likely soon to cease. He apprehended himself that the court
would come to decline jurisdiction in the cases ordinarily
presented over writs of error to reverse the judgments of State
courts.[Footnote: Proceedings: Massachusetts Historical Society,
2d Series, XIV, 342.] In the following year he thought seriously
of resigning. He disliked, he wrote to Mr. Justice Story, to
leave him almost alone to represent the old school of thought,
but he adds, "the solemn convictions of my judgment, sustained by
some pride of character, admonish me not to hazard the disgrace
of continuing in office a mere inefficient pageant."[Footnote:
Proceedings Massachusetts Historical Society, 2d Series, XIV,
347.]

The next Chief Justice, while far from being of Marshall's
school, was not one to attempt to overthrow what he had done. In
Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
insisted on the supremacy of the courts of the United States over
those of the States with the utmost firmness, and defended the
doctrine on principle with force and ability. The Supreme Court,
however, under Taney, was not looked on with much favor by the
survivors of the old Federalists. "I do not," wrote Chancellor
Kent in 1845 to Justice Story, "regard their decisions (yours
always excepted) with much reverence, and for a number of the
associates I feel habitual scorn and contempt."[Footnote:
Proceedings of the Massachusetts Historical Society, 2d Series,
XIV, 420.]

Our State constitutions generally guarantee the citizen against
deprivation of his rights without "due process of law" or "due
course of law." A similar provision was made for the United
States by the fifth amendment to their Constitution, and since
1868 the fourteenth amendment has established the same rule
inflexibly for every State. What is due process of law?  It is
for the courts to say, and while they have cautiously refrained
from assuming to give any precise and exhaustive definition, they
have, in many instances, enforced the guaranty at the cost of
declaring some statute which they held incompatible with it to be
no law. They have also, and much more frequently, supported some
act of government claimed to contravene it, and which, according
to the ancient common law of England, would contravene it,
because in their opinion this ancient law had been outgrown.

Sir Edward Coke, whom no expounder of the English common law
outranks in authority, in his "Institutes," in treating of
_Magna Charta_, referred to the phrase _per legem
terrae_, as equivalent to "by the law of the land (that is, to
speak it once for all) by the due course and process of law." It
is incontestable that due course and process of law in England at
the time when the American colonies were planted was understood
to require the action of a grand jury before any one could be put
on trial for a felony. Some of our States have abolished grand
juries in whole or part. To review a capital sentence for murder
in one of these States, a writ of error was prayed out from the
Supreme Court of the United States in 1883. The
constitutionality of the State law was sustained. In disposing
of the case the court did not controvert the position that by the
English common law no man could be tried for murder unless on a
presentment or indictment proceeding from a grand jury. But,
said the opinion, while that is due process of law which had the
sanction of settled usage, both in England and in this country,
at the time when our early American constitutions were adopted in
the eighteenth century, it by no means follows that nothing else
can be. To hold that every feature of such procedure "is
essential to due process of law would be to deny every quality of
the law but its age, and to render it incapable of progress or
improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and
Persians.... It is most consonant to the true philosophy of our
historical legal institutions to say that the spirit of personal
liberty and individual right, which they embodied, was preserved
and developed by a progressive growth and wise adaptation to new
circumstances and situations of the forms and processes found fit
to give, from time to time, new expression and greater effect to
modern ideas of self-government.... It follows that any legal
proceeding enforced by public authority, whether sanctioned by
age and custom or newly devised in the discretion of the
legislative power in furtherance of the general public good,
which regards and preserves these principles of liberty and
justice, must be held to be due process of law."[Footnote:
Hurtado _v._ California, 110 United States Reports, 513,
528, 529, 530, 537.]

Many of our State Constitutions specify certain rights as
inherent and indefeasible, and among them that "of acquiring,
possessing, and protecting property." What is property?
American courts have said that it includes the right of every one
to work for others at such wages as he may choose to accept. One
of them, in supporting a decree for an injunction against
combined action by a labor union to deprive non-union men of a
chance to work, by force or intimidation, notwithstanding a
statute abrogating the common law rule making such acts a
criminal conspiracy, has put it thus:

  The right to the free use of his hands is the workman's
  property, as much as the rich man's right to the undisturbed
  income from his factory, houses, and lands. By his work he
  earns present subsistence for himself and family. His savings
  may result in accumulations which will make him as rich in
  houses and lands as his employer. This right of acquiring
  property is an inherent, indefeasible right of the workman. To
  exercise it, he must have the unrestricted privilege of working
  for such employer as he chooses, at such wages as he chooses to
  accept. This is one of the rights guaranteed to him by our
  Declaration of Rights. It is a right of which the legislature
  cannot deprive him, one which the law of no trades union can
  take from him, and one which it is the bounden duty of the
  courts to protect. The one most concerned in jealously
  maintaining this freedom is the workman himself.[Footnote:
  Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
  56 Atlantic Reporter, 331.]

But, as already suggested in the preceding chapter, the judges
whose opinions have vitalized and enlarged our written law by
reading into it some new meaning or application have but echoed
the voice of the bar.

The greatest achievements of Marshall in this direction were
really but a statement of his approbation of positions laid down
before him by Daniel Webster. In the early stages of the
Dartmouth College case, when it was before the State courts in
New Hampshire, it was Webster and his associates, Jeremiah Mason
and Jeremiah Smith, both lawyers of the highest rank, who first
put forward the doctrine that the charter of a private
corporation was a contract; and when the cause came before the
Supreme Court of the United States it fell to the lot of Webster
to bring it to the attention of the great Chief
Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
Florida case it was he, in supporting the cause of the prevailing
party, who suggested that the Territory of Florida, though owned
by the United States, was no part of them. "By the law of
England," he went on to say, "when possession is taken of
territories, the king, _Jure Corona_, has the power of
legislation until parliament shall interfere. Congress have the
_Jus Corona_ in this case, and Florida was to be governed by
Congress as she thought proper."[Footnote: American Insurance
Co. _v._ Canter, 1 Peters' Reports, 611, 538.]

This argument did not spend its force in its effect on Marshall.
When, after the lapse of two generations, greater problems of the
relations of the United States to territory newly acquired from
Spain arose, it was, as has been said above, made one of the
cornerstones of the opinion of the same court which determined
what they were.[Footnote: Downes _v._ Bidwell, 182 United
States Reports, 244, 265.]

So in the Hurtado case, which has been described at length, no
description of due process of law was found better and none is
better than that given by Webster so many years before in the
Dartmouth College case. The Supreme Court of New Hampshire, from
whose judgment that cause came up by writ of error, had held--and
on that point its decision was final--that the change in the
college charter was no violation of the bill of rights embodied
in the Constitution of that state. This, following _Magna
Charta_, provided (Part I, Art. 15) that no subject should be
"despoiled or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or
deprived of his life, liberty or estate, but by the judgment of
his peers or the law of the land." _Magna Charta_ was wrung
from a tyrant king. So, said the State court, this article was
inserted to protect the citizens against the abuse of the
executive power. When it speaks of the law of the land it means
the law of New Hampshire, and that is whatever the legislature of
New Hampshire chooses to enact, so long as it contravenes no
other constitutional provision.

Webster, in paving the way toward his claim that the charter was
a contract, and, as a vested right of property, inviolable by a
State, alluded to the sacredness of all rights under the
guaranties to be found in our American system of constitutional
government. It was not surprising that the Constitution of the
United States should protect them in the way he asserted. All
the States, and New Hampshire among them, had done the same in
placing the great features of _Magna Charta_ in their bills
of rights. What, he asked, was this law of the land by which all
things were to be tried and judged?  This was his answer: "By the
law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The meaning is that every
citizen shall hold his life, liberty, property and immunities
under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not
therefore to be considered the law of the land. If this were so,
acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees and forfeitures in all possible forms, would be the law
of the land."[Footnote: "Works of Daniel Webster," V, 486.]

In the opinion by Mr. Justice Mathews in Hurtado _v._
California he observes: "It is not every act, legislative in
form, that is law. Law is something more than mere will exerted
as an act of power. It must be not a special rule for a
particular person or a particular case, but, in the language of
Mr. Webster, in his familiar definition, 'the general law, a law
which hears before it condemns, which proceeds upon inquiry, and
renders judgment only after trial,' so 'that every citizen shall
hold his life, liberty, property and immunities under the
protection of the general rules which govern society.'"
[Footnote: Hurtado _v._ California, 110 United States
Reports, 516, 535.]

Other instances might be mentioned, equally conspicuous, which
will entitle Webster to the name given him by his contemporaries
of "the expounder of the Constitution."[Footnote: See Article by
Everett P. Wheeler on Constitutional Law of the United States as
Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
p. 366, and in the 27th Annual Report of the New York State Bar
Association.] No one American lawyer has done as much in that
direction, but there are few of the greater ones who have not
done something. As, however, the glory of a battle won is for
the commander of the victorious forces, so the glory of adding a
new meaning to a constitution at a vital point is, with the
public, always for the judge whose opinion is the first to
announce it. Who announced it to him they never know or soon
forget.

The acknowledged possession by the judiciary of the power to
interpret written law, and thus to delimit its effect, has led to
a serious abuse in our methods of legislation. Statutes are
often favorably reported and enacted, both in Congress and the
State legislatures, which are admitted to be either of doubtful
constitutionality or to contain expressions of doubtful meaning,
on the plea that those are questions for the courts to settle.
This has been aptly termed the method of the "_referendum_
to the courts in legislation."[Footnote: Thomas Thacher, Address
before the State Bar Association of New Jersey, 1903.] It is
unfair to them, so far as any question of the Constitution is
concerned, since as soon as the measure is enacted a presumption
arises that it is not unconstitutional. The courts will not hold
otherwise without strong grounds. It comes to them with the
benefit of a full legislative endorsement. It is unfair to the
people, both as to questions of constitutionality and of
interpretation. A statute can be so drawn as to need no
interpretation, or none the outcome of which can be a matter of
doubt to any competent lawyer. A legislature abandons its
function when it enacts what it does not understand.

The Sherman Anti-Trust Act is an instance of legislation of this
character. It forbids contracts "in restraint of trade or
commerce" between the States. When the bill was reported it was
objected in the House of Representatives that these terms were
vague and uncertain. The chairman of the committee himself
stated that just what contracts will be in restraint of such
commerce would not and could not be known until the courts had
construed and interpreted the phrase.

The real intent of those who inserted it was that it should not
embrace contracts which were reasonable and not contrary to
public policy. A similar term in the English Railway and Canals
Traffic Act had received that interpretation in the English
courts, and they supposed that our courts would follow those
precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
The Supreme Court of the United States did construe it as
embracing all contracts in restraint of inter-State trade,
whether reasonable or unreasonable, fair or unfair.[Footnote:
United States _v._ Joint Traffic Association, 171 United
States Reports, 505, 570.] One of the justices who concurred in
that opinion, in a subsequent case arising under the same statute
intimated that on reconsideration he thought the view that had
been thus adopted was wrong.[Footnote: Northern Securities
Co. _v._ United States, 193 United States Reports, 197,
361.] The addition by those who drafted the bill of three or
four words to make their intended meaning clear would have
avoided a result unexpected by them and probably undesired, and
relieved the court from deciding questions of doubtful
construction involving important political considerations and
immense pecuniary interests.

            *       *       *       *       *



                     CHAPTER VII


        THE JUDICIAL POWER OF DECLARING WHAT HAS THE
                FORM OF LAW NOT TO BE LAW


Government is a device for applying the power of all to secure
the rights of each. Any government is good in which they are
thus effectually secured. That government is best in which they
are so secured with the least show of force. It is not too much
to say that this result has been worked out in practice most
effectually by the American judiciary through its mode of
enforcing written constitutions. How far it has gone in
developing their meaning and building upon the foundations which
they furnish has been made the subject of discussion in the
preceding chapter. It remains to consider its office of
adjudging statutes which come in conflict with their meaning, as
thus determined, to be void.

The idea of a supreme authority exercising the function of
setting aside acts of legislative bodies which it deemed
inconsistent with a higher law was familiar to Americans from an
early period of our colonial history.[Footnote: See Chap. I;
Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
American Law," 12, 19.] The charter of each colony served the
office of a constitution. The Lords of Trade and Plantations
exercised the power of enforcing its observance. They did in
effect what, as the colonies passed into independent States with
written Constitutions, naturally became the function of their own
courts of last resort. The Constitution, like the charter, was
the supreme law of the land. Whatever statutes the legislature
of a State might pass, it passed as the constitutional
representative of the people of that State. It was not made
their plenary representative. Every Constitution contained some
provisions restricting the legislative power. If any particular
legislative action transgressed these restrictions, it
necessarily went beyond the authority of the body from which it
emanated.

The Judicial Committee of the Privy Council, which now exercises
the functions formerly belonging to the Lords of Trade and
Plantations, and is in fact the same body, deals in a similar way
today with questions of a constitutional character. If one of
the provinces included in the Dominion of Canada should in its
local legislation infringe upon a field belonging to the Dominion
Parliament, this committee can "humbly advise the king" that the
act in question is for that reason void.[Footnote: In July, 1903,
for instance, an Act of the Province of Ontario, entitled the
"Lord's Day Profanation Act," was thus declared _ultra
vires_.]

The Revolution found the new-made States of the Union without
this safeguard against a statute repugnant to a higher law. They
had enjoyed as colonies the advantage which Burke declared was an
ideal in government. "The supreme authority," he said, "ought to
make its judicature, as it were, something exterior to the
State." The supreme judicature for America had been in England.
There was now no King in Council with power to set a statute
aside forthwith by an executive order. But the other function of
the King in Council, that of acting as a court of appeal from
colonial judgments, had been simply transferred to new hands.
The State into which the colony had been converted now exercised
it for itself and through her judiciary.

The judgment of a court is the legal conclusion from certain
facts. Unless it is a legal conclusion from the facts on which
it purports to rest it is erroneous, and, if there is any higher
court of appeal, can be reversed. If such a judgment depends
upon a statute which justifies or forbids the act or omission
which constituted the cause of action, it is legal or illegal
according as this statute is or is not law. It cannot be law if
its provisions contravene rules laid down by the Constitution of
the State to restrict the legislative power. The court which
tries the cause must meet this question whenever it arises like
any other and decide it. A court of law must be governed by law.
What has the form of law is not law, in a country governed by a
written constitution, unless it is consistent with all which that
instrument provides.

The first decision of an American court bottomed on these
principles was probably rendered as early as 1780, and in New
Jersey.[Footnote: Holmes _v._ Walton, IV _American
Historical Review_, 456.] One of her greatest statesmen, who
after taking a distinguished part in framing the federal
Constitution became a justice of the Supreme Court of the United
States, vigorously enforced the same doctrine on the circuit
fifteen years later in trying a cause turning on the
unconstitutionally of a confirming act passed by the legislature
of Pennsylvania. "I take it," Justice Patterson said in charging
the jury, "to be a clear position that if a legislative act
oppugns a constitutional principle the former must give way and
be rejected on the score of repugnance. I hold it to be a
position equally clear and sound that in such case it will be the
duty of the court to adhere to the Constitution, and to declare
the act null and void."[Footnote: Vanhorne's Lessee _v._
Dorrance, 2 Dallas' Reports, 304, 309, 316.]

The accession of the Republicans to power in 1801, only to find
the courts of the country controlled by judges appointed from the
ranks of the Federalists, was the occasion of new attacks upon
the doctrine thus laid down. It was vigorously denied by Senator
Breckenridge of Kentucky, afterward Attorney-General of the
United States, in the debates preceding the repeal of the
Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
year later (in 1803) the question came for the first time before
the Supreme Court of the United States, and the same positions
advanced by Patterson were taken in what is known as the leading
case upon this subject by Chief Justice Marshall.[Footnote:
Marbury _v._ Madison, I Cranch's Reports, 137. See
Willoughby, "The American Constitutional System," 39.] It was
unfortunate that the action was one involving a matter of
practical politics, in which the plaintiff sought the benefit of
a commission the issue of which had been directed by President
Adams at the close of his term, but which was withheld by the
Secretary of State under President Jefferson. Party feeling ran
high at this time. The views of Breckenridge were shared by
many, and the supremacy of the judicial department, which this
prerogative, if it possessed it, seemed to imply, was distasteful
to a large part of the people.

An eminent judge of a State court, Chief Justice Gibson of
Pennsylvania, as late as 1825, in a dissenting opinion, combated
at length the reasoning of Marshall as weak and inconclusive.
If, he said, the judiciary had the power claimed, it would be a
political power. Our judicial system was patterned after that of
England. Our judges had, as such, no power not given by the
common law. It was conceded that English judges could not hold
an act of Parliament void because it departed from the British
constitution. No more could American judges hold an act of a
State legislature void because it departed from the State
Constitution, unless that Constitution in plain terms gave them
such a power. The Constitution of the United States did give it,
political though it was, to all judges (Art. XI, Sec. 2), and a
State statute which was contrary to that Constitution might
therefore properly be declared void by the courts.[Footnote:
Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
Later in his judicial career Gibson abandoned this position,
[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
281.] and the ground taken by Marshall has been since 1845
universally accepted.

The last official attack upon it was made in 1831, at the time
when the feeling against protective tariffs was strong in the
South, and South Carolina was known to be meditating opposition
to their enforcement. The judiciary committee of the House of
Representatives reported a bill to repeal the section of the
Judiciary Act which gave the Supreme Court of the United States
the right to reverse judgments of State courts that it might deem
contrary to the Constitution of the United States. The report
said that such a grant was unwarranted by the Constitution and "a
much greater outrage upon the fundamental principles of
theoretical and practical liberty as established here than the
odious writ of _quo warranto_ as it was used in England by a
tyrannical king to destroy the right of corporations." The
House, however, rejected the bill by a very large majority.

A proper regard for the coordination of the departments of
government forbids courts to declare that a statute is
inconsistent with the Constitution unless the inconsistency is
plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.

This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des républicans d'Europe, fort
chatouilleux sur le chapitre de la puissance législative. C'est
que la notion de l'État diffère d'une façon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de République aux
États-Unis, II, 145.]

Our people have been satisfied with the interposition of the
courts to defend their Constitutions from executive or
legislative attack, because these Constitutions stand for
something in which they thoroughly believe. President Hadley has
well said that "a written Constitution serves much the same
purpose in public law which a fence serves in the definition and
protection of private rights to real estate. A fence does not
make a boundary; it marks one. If it is set where a boundary
line has previously existed by tradition and agreement, it forms
an exceedingly convenient means of defending it against
encroachments. If it is set near the boundary and allowed to
stay there unchallenged, it may in time become itself the
accepted boundary. But if the attempt is made to establish a
factitious boundary by the mere act of setting up a fence the
effort fails."[Footnote: Freedom and Responsibility, 30.]
Americans took principles and institutions with which they had
become familiar in colonial days and made their Constitutions out
of them. Their attachment to what the Constitution provides goes
behind the Constitution to the rock of ancient custom and
precedent on which it rests, the common heritage of all the
States.

There is an obvious reason for the unwillingness of the judiciary
to exercise the power under consideration unless in case of
necessity. The legislature presumably does only what the public
sentiment of the day justifies or demands. One branch of it, at
least, is the direct representative of the people. To defeat the
operation of a statute is therefore always presumably an
unpopular thing to do, and if in any case there is known to be
truth behind the presumption, it requires, as the Federalist
[Footnote: No. LXXVIII.] put it, "an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the constitution."

It is seldom that an inferior court declares a statute void. The
mere fact that it was enacted by the legislature imports the
opinion of that body that it was within its powers; and such an
opinion of a department of government is entitled to great
respect. If a different, opinion is to prevail, it should
ordinarily be first pronounced by the highest authority that can
speak for the judicial department. So far, however, as the
question of power or jurisdiction is concerned, a justice of the
peace, in trying a five-dollar case, has the same authority to
disregard a statute, whether it be one enacted by the State
legislature or by Congress, if he deems it unconstitutional,
which belongs to the full bench of the Supreme Court of the
United States. If he is wrong, the only remedy is by appeal.

The number of statutes which have been judicially pronounced in
whole or part invalid in the United States is very large. Among
the Acts of Congress which have fallen in this manner and have
been made the subject of elaborate opinions may be mentioned the
provision in the original Judiciary Act giving the Supreme Court
of the United States greater original jurisdiction than the
Constitution provided;[Footnote: Marbury _v._ Madison, I
Cranch's Reports, 137.] the Act of 1865, excluding from practice
in the United States courts attorneys who could not take the
"iron-clad oath" that they had not supported the South in the
Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
to protect the colored voter;[Footnote: United States _v._
Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
1875;[Footnote: United States _v._ Stanley, 109
U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
157 U. S. Reports, 429.] Fifteen others of less importance have
fallen by the same sword. The Supreme Court of the United States
has also set aside in the same manner, as inconsistent with the
Constitution of the United States, over two hundred statutes
passed by States. Of the twenty-one acts of Congress thus
declared unconstitutional, the decisions as to all but two were
rendered after 1830; of the State statutes all but
twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
fourteenth amendment has added largely to the list of the latter
since its adoption in 1868.

State statutes set aside by the State courts since 1780 as in
violation of their respective State constitutions number
thousands. In the year from October 1, 1902, to October 1, 1903,
the legislatures of forty-four States and fully organized
Territories of the United States were in session and nearly
14,400 new statutes were enacted. During the same year fifty
State statutes were declared in whole or part unconstitutional by
courts of last resort. Three of these decisions were rendered by
the Supreme Court of the United States. Five statutes of
Missouri and as many of Indiana were thus set aside; three each
of California, Kansas and Ohio; two each of Florida, Illinois,
Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
and one each of those of Kentucky, Maine, Michigan, Minnesota,
New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
No. 86, New York State Library, "Comparative Summary and Index of
Legislation, 1903," 273, 281.] On the average probably as many
as one statute out of every three hundred that are enacted from
year to year are thus judicially annulled.

The declaration by a court that a statute is unconstitutional and
void is only a step in a cause. In the judgment it may not be
found necessary or proper even to allude to it. But the order of
the court which the judgment contains must be executed precisely
as if no such statute had ever been enacted. It may, in effect,
be directed against the State whose statute is pronounced void if
the plaintiff complains of action taken under it which has
deprived him of property and put it in the hands of public
officers, or seeks a remedy to prevent a threatened wrong.

The State of Ohio in 1819 passed a statute reciting that a branch
of the United States Bank was transacting business there contrary
to the law of the State, and imposing a tax upon it, in case it
continued to do so, of $50,000 a year, to be collected by the
auditor and paid over to the treasurer. The auditor subsequently
sent a man to the bank who forcibly seized and carried off
$98,000 in specie. This was given to the State treasurer, who
kept it in the treasury in a trunk by itself. The bank sued all
three for the money in the Circuit Court, setting forth all these
proceedings at length. Judgment went against them and, with a
slight modification, was affirmed by the Supreme Court of the
United States. It was held by Marshall in giving the opinion
that the statute was void; that the money had never become
mingled with the funds of the State; and that they were liable
for it precisely as if they were private individuals who had
wrongfully seized it.[Footnote: Osborn _v._ Bank of the
United States, 9 Wheaton's Reports, 738.]

These proceedings awakened great feeling in Ohio, and became the
subject of much criticism throughout the country by those
adhering to the Democratic party. The legislature of Ohio
adopted resolutions denouncing them as unauthorized by the
Constitution of the United States, and directed the Governor to
forward a copy to the legislature of every other State with a
request for its opinion on the subject. The replies varied in
tone according to the political predilections of the party then
in control of the State addressed.

Still closer does a court come to collision with the political
sovereignty of the State when it commands a public officer to do
something in violation of a statute which it pronounces void, or
not to do something which such a statute requires. A striking
instance of this is furnished by the power to nullify legislative
gerrymanders. The Constitutions of almost every State provide
that it shall be districted from time to time by the legislature
for the purpose of electing certain officers or local
representatives, and that this shall be so done as to make the
districts as nearly equal in population as conveniently may be,
and composed of contiguous territory. If a legislature
undertakes to construct districts by any other rule, the courts
can compel those charged with the conduct of elections to
disregard it and to hold them according to the districts
previously established under the former law.[Footnote: State
_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
17 Lawyers' Reports Annotated, 145; 35 American State Reports,
29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
Northeastern Reporter, 980.] But however necessary may be the
conclusion from the premises, it can hardly be agreeable to the
authors of a law which it serves to destroy. In effect, though
not in theory, it subordinates one department of government to
another. The practical result is to give the judiciary a
superior power to the legislature in determining what laws the
latter can enact. It is not a right of veto, but in a case which
calls for its exercise it is an equal right exercised in a
different way.

In the first instance of a resort to it[Footnote: See p. 100.]
the section of the New Jersey Constitution of 1776 confirming the
right of trial by jury was held by the full bench of the Supreme
Court to render a statute void which authorized a trial without
appeal before a jury of six, on a proceeding for the forfeiture
of goods brought in from British territory or the British
military lines. This was an unwelcome decision to many who were
interested in such seizures, and they sent in several petitions
to the legislature for redress. No action criticising the
judges, however, was taken by that body.

Four years later the Mayor's Court of New York, in the case of
Rutgers _v._ Waddington, held that an act of the legislature
of that State, if given the effect which it was plainly intended
to secure, would be contrary to the Constitution of the State,
and therefore allowed it so limited an operation as virtually to
annul it. The legislature retorted by resolutions of
censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]

What was probably the second instance of the actual use of the
power in question arose in 1786, out of a statute of Rhode Island
passed to support the credit of her paper money of that year's
issue. Any one declining to receive it in payment for goods sold
at par was to be liable to a _qui tum_ action, to be tried
without a jury. Counsel for a man sued in such a proceeding put
in a plea that the act was unconstitutional and so
void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
Power and Unconstitutional Legislation," 234, 237.] The court,
which was composed of five judges, threw out the action on this
ground, treating the charter from Charles II and the long usage
under it as having established trial by jury as a fundamental and
indefeasible right. The General Assembly shortly afterward
summoned the judges before it to account for this judgment. They
appeared and stated their reasons for their conclusion,
protesting also against the adoption of any resolution for their
removal from office (which had been suggested) until after a
formal trial. They were not impeached, but at the ensuing
session, their terms of office having expired, the Assembly chose
others in their place.

Not far from the same time the Supreme Judicial Court of
Massachusetts pronounced a statute unconstitutional, but there
the legislature displayed no feeling, and at the next session
unanimously repealed it.[Footnote: This, no doubt, was one of the
instances of the exercise of this power referred to by Elbridge
Gerry in the Federal Convention of 1787. Elliot's Debates, V,
151. It is described in Proceedings Massachusetts Historical
Society, XVII, 507.]

In 1808, Judge Calvin Pease of the Ohio Circuit Court was
impeached for holding a law of Ohio unconstitutional. He avowed
the act, and insisted that as it was a judicial one the soundness
or unsoundness of his conclusions could not be inquired into as a
ground of impeachment. The result was an acquittal.[Footnote:
Foster, "Commentaries on the Constitution of the United States,"
I, 691.]

Georgia was the only one of the original States which set up no
Supreme Court at the beginning of its statehood. Her
Constitution established (Art. III, Sec. 1) a Superior Court, and
left it to the General Assembly to give it, if they thought best,
appellate jurisdiction. The judges were subsequently by statute
authorized to sit _in banc_ and hear appeals. In 1815,
while so sitting, they declared a certain statute of the State
unconstitutional and void. The legislature showed its resentment
by a set of resolutions, of which the parts material in this
connection read thus:

  Whereas, John McPherson Berrien, Robert Walker, Young Gresham
  and Stephen W. Harris, judges of the Superior Court, did, on
  the 13th day of January, 1815, assemble themselves together in
  the city of Augusta, pretending to be in legal convention, and
  assuming to themselves ... the power to determine on the
  constitutionality of laws passed by the general assembly, and
  did declare certain acts of the legislature to be
  unconstitutional and void; and ... the extraordinary power of
  determining upon the constitutionality of acts of the state
  legislature, if yielded by the general assembly whilst it is
  not given by the constitution or laws of the state, would be an
  abandonment of the dearest rights and liberties of the people,
  which we, their representatives, are bound to guard and protect
  inviolate;

  Be it therefore resolved, That the members of this general
  assembly view, with deep concern and regret, the aforesaid
  conduct of the said judges ... and they can not refrain from an
  expression of their entire disapprobation of the power assumed
  by them of determining upon the constitutionality of laws
  regularly passed by the general assembly, as prescribed by the
  constitution of this state; we do, therefore, solemnly declare
  and protest against the aforesaid assumption of powers, as
  exercised by the said judges, and we do, with heartfelt
  sensibility, deprecate the serious and distressing consequences
  which followed such decision; yet we forbear to look with
  severity on the past, in consequence of judicial precedents,
  calculated in some measure to extenuate the conduct of the
  judges, and hope that for the future this explicit expression
  of public opinion will be obeyed.

In 1821 a case was argued before the Supreme Court of the United
States involving the validity of a Kentucky statute passed to
protect occupants of land who had made valuable improvements upon
it in good faith, in case it should be subsequently proved to
belong to some one else. The occupant had employed no lawyer,
and it was surmised that the court would decide against him. The
Governor of Kentucky called the attention of the legislature to
this, and advised the employment of counsel to defend the law.
The legislature responded by resolving "that they consider an
adjudication, that the laws in question are void, incompatible
with the constitutional powers of this state, and highly
injurious to the best interests of the people; and therefore do,
in the name of the commonwealth of Kentucky, and the good people
thereof, solemnly remonstrate and protest against any such
adjudication," but that two commissioners should be appointed "to
attend the Supreme Court of the United States at the next term
and oppose any decision that may be attempted to be procured from
the Supreme Court, that those laws are void in such manner as
they may deem most respectful to the court and most consistent
with the dignity of this state."[Footnote: Niles' Register, XXI,
190, 404, 405.] The case had already been heard _ex parte_,
and the court soon proceeded to give judgment that the statute in
question was void. The Kentucky commissioners employed counsel,
who moved for a reargument, and obtained one, but with the same
result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
1.] The legislature at its next session discussed the opinion in
the case and resolved "that they do most solemnly protest against
the doctrines promulgated in that decision as ruinous in their
practical effects to the good people of this commonwealth and
subversive of their dearest and most valuable political
rights."[Footnote: Niles' Register, XXV, 275.]

They then took up two decisions of their own Court of Appeals,
declaring other statutes of the State unconstitutional and void,
and resolved "that in the opinion of this legislature the
decision of the Court of Appeals of Kentucky in the cases of
Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
are erroneous, and the laws declared therein to be
unconstitutional are, in the opinion of this present General
Assembly, constitutional and valid acts."[Footnote: Niles'
Register, XXV, 275.] The next step was to endeavor to remove the
judges, but the two-thirds vote required by the Constitution to
support an address to the Governor for that purpose could not be
secured. At the next session, in 1824, the judges were summoned
to show cause why they should not be removed. They defended
their conclusions so well that the two-thirds vote of each house
required by the Constitution could not be obtained. By a
majority vote the court was then abolished, a new one set up by
the same name, and four new judges appointed. The old court
refused to recognize the validity of their proceedings. The new
one assumed to organize and to do business. At the next election
the question which court ought to be recognized was the dominant
one. The result was that the friends of the old court gained
control of the House and those of the new court that of the
Senate, one of them being also chosen as the Governor. The new
court now got possession of most of the papers of the old court.
The latter ordered their sergeant to bring them back. The
Governor made preparations to use military force to resist the
execution of this order. At last, in 1826, an act was passed
(Session Laws, p. 13) over the Governor's veto, declaring the
acts abolishing the old court unconstitutional and void. The
Governor thereupon appointed a warm champion of the new court
chief justice of the old one to fill a vacancy which had occurred
on that bench, and for the first time for two years the judicial
establishment of the State was on a proper footing.[Footnote:
Niles' Register, XXXI, 324; McMaster "History of the People of
the United States," V, 162-166; "The Old and the New Court, in
The Green Bag," XVI, 520.]

Meanwhile both courts had been sitting and disposing of cases.
New appeals from the inferior courts had been entered in the one
which the appellant's counsel thought most likely to stand as the
rightful authority. The judges of the inferior courts were in
despair when the mandates of the Court of Appeals came down, and
they were called upon to determine whether to obey them. Some
held that the new court was a _de facto court_, and to be
respected accordingly. The ultimate decision fell to the old
court, which, after the repealing Act of 1826, held that there
could be no such thing as a _de facto_ Court of Appeals so
long as civil government was maintained and the _de jure_
court was in the exercise of its functions.[Footnote: Hildreth's
Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
Reports, 206.]

The same spirit of jealousy still occasionally manifests itself
in a less outspoken but more effective fashion. If a question of
political importance is likely to come before a court, it may be
within the power of the legislature to prevent it by a change in
its statutory jurisdiction.

In this way the Supreme Court of the United States was kept from
passing on the validity of the Reconstruction Acts enacted by
Congress at the close of the Civil War, in a case which was
actually pending. Under these Acts a Mississippi newspaper
editor was arrested in 1867 by military order on account of an
article which he had published reflecting on the policy of the
government, and held for trial before a military commission. He
appealed to the Circuit Court of the United States for the
District of Mississippi for discharge on a writ of _habeas
corpus_. Judgment went against him, and he appealed to the
Supreme Court of the United States. The court, on August 1, held
that it had jurisdiction to review the decision and to decide
whether he could be tried before such a commission.[Footnote:
_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
cause was then heard on its merits and all the questions involved
discussed at length, four days being devoted to it. Congress
apprehended a decision that the Reconstruction Acts were
unconstitutional, and before one was arrived at, during the same
month, passed an act repealing the right of appeal in such cases
from the Circuit Court. The purpose of this was obvious, but it
was none the less effective, and the court, without deciding the
case, dismissed it for want of jurisdiction.[Footnote: _Ex
parte_ McCardle, 7 Wallace's Reports, 506.]

A legislature whose work has been set aside by the courts as
unconstitutional sometimes asks, in effect, for a reconsideration
of the question by passing another law substantially of the same
nature, although expressed in somewhat different terms. This is
oftenest done when the decision was made by a divided court or is
contrary to the weight of judicial opinion in other States.
Early in the history of California, for instance, a statute was
passed making it a misdemeanor to keep open any store, shop or
factory, or to sell goods, on Sunday. The Supreme Court of the
State held this to be contrary to the provisions in her
Constitution that all men had the inalienable right of acquiring
property, and that the free exercise of religious profession
should be allowed without discrimination or preference. Most of
the other States had similar statutes, and their courts had
supported their validity. Judge Stephen J. Field, then on the
California bench, dissented in a vigorous opinion.[Footnote:
_Ex parte_ Newman, 9 California Reports, 502.] Three years
later the legislature, unconvinced by the reasoning of the
majority of his associates, passed a new Sunday law, which did
not differ materially from the other, and after a few months the
court overruled their former decision, on the very ground taken
by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
Reports, 679.]

Any dissent from a judgment setting aside a statute greatly
weakens its force. It has also much less claim to public
confidence if all the judges on the bench did not participate in
it. In 1825, the Court of Appeals of Kentucky declined to follow
a decision of the Supreme Court of the United States, which held
certain statutes of Kentucky to be contrary to the Constitution
of the United States.[Footnote: Green _v._ Biddle, 8
Wheaton's Reports, 1.] The reason stated for this was that the
decision was not concurred in by a majority of the court. It had
been made by a majority of a quorum, but not by a majority of the
whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
Kentucky Reports, 57.] After this it became the practice of the
Supreme Court under Chief Justice Marshall not to give judgment
in any case involving constitutional questions, unless a majority
of the court concurred in opinion in regard to these.[Footnote:
New York _v._ Miln, 8 Peters' Reports, 118, 122.]

Several American courts have asserted the doctrine that the
judiciary can disregard a statute which plainly violates the
fundamental principles of natural justice, although it may not
contravene any particular constitutional provisions. The English
courts now claim no such power, although Sir Edward Coke, in one
of his discursive opinions, very little of which was necessary
for the determination of the cause, asserted that an act of
Parliament "against common right and reason" could be adjudged
void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
Reports, 114, 118.] So far as there was any previous judicial
authority for this position, however, it is believed that it can
only be found in decisions made before the Reformation, on
questions arising from interference by Parliament with rights
claimed under the Church of Rome. Such questions were of the
nature of those arising under a written Constitution. The law of
the church within its province was then accepted as a supreme
law.[Footnote: Coxe, "Judicial Power and Unconstitutional
Legislation,"' 147, _et seq_.]

The rule laid down by Sir Edward Coke was accepted by the Supreme
Court of South Carolina in two early cases,[Footnote: Ham
_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
Middleton, _Ibid_., 252.] and has been substantially
repeated in some judicial opinions in other States.[Footnote: See
Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
American Decisions, 72.] In the Supreme Court of the United
States its authority was emphatically denied by Mr. Justice
Iredell, near the close of the eighteenth century,[Footnote:
Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
the full court only one member dissenting, held a State statute
void which authorized cities to issue bonds in aid of private
manufacturing enterprises, because they could only be discharged
by taxation, and to tax for such a purpose would be taking
property from all for the good of one. That, said Mr. Justice
Miller in delivering the opinion, "is none the less a robbery
because it is done under the forms of law and is called taxation.
This is not legislation. It is a decree under legislative
form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
U. S. Reports, 487, 501.]

This view of the law had been forcibly, though tentatively, put
shortly after he came to the bench by Chief Justice Marshall in a
leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
Reports, 87.] but one in which it was not necessary to decide
whether the doctrine was sound. "It may well be doubted," he
observed, "whether the nature of society and of government does
not prescribe some limits to the legislative power; and, if any
be prescribed, where are they to be found, if the property of an
individual, fairly and honestly acquired, may be seized without
compensation?  To the legislature all legislative power is
granted; but the question whether the act of transferring the
property of an individual to the public be in the nature of the
legislative power is well worthy of serious reflection."

The weight of American authority is in favor of the position
taken by Iredell.[Footnote: Cooley's "Constitutional
Limitations," Chap, VII; State _v._ Travelers' Insurance
Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
57 Lawyers' Reports Annotated, 481.] Time has made it safer to
stand upon it, for since he spoke not only have our State
constitutions been generally expanded by adding important
restrictions on the legislative power, but the fourteenth
amendment has added to the Constitution of the United States a
prohibition of State laws depriving any person of life, liberty,
or property without due process of law. "Due process of law" is
an elastic term. Requiring it certainly imports that no one is
to be made to suffer in person or property unless he has had an
opportunity to claim before an impartial tribunal the protection
of his rights by the settled law of the land.

The principle of Roman law that, as custom can make law, so
disuse can destroy it has never been adopted in the United
States. No court, therefore, will pronounce a statute not to
have the force of law on the ground that it is
obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
undertook to import the doctrine into American jurisprudence, but
without effect. Hill _v._ Smith, Morris' Reports, 70;
explained and limited in Pearson _v._ International
Distillery, 72 Iowa Reports, 357.]

            *       *       *       *       *



PART II



THE ORGANIZATION AND PRACTICAL
WORKING OF AMERICAN COURTS



            *       *       *       *       *



                    CHAPTER VIII


        THE ORGANIZATION OF THE COURTS OF THE STATES


The State Constitutions differ fundamentally from that of the
United States in respect to the nature of the judicial
establishment. Each of the States possesses all judicial powers
belonging to any sovereignty, except so far as the people of the
United States may have provided otherwise in the Constitution of
the United States. The State Constitutions do not define those
powers. They simply commit them to certain courts and officers.
Their general language is that the judicial power is vested in a
Supreme Court and such other inferior courts as may be created by
law. On the other hand, the Constitution of the United States
defines the judicial powers of the United States exactly and
within a somewhat narrow range, investing the courts of the
United States with those powers and no others. Hence the States
require a much more complicated and extensive judicial
establishment than do the United States, for not only is the
great mass of litigated cases throughout the country to be
disposed of by State courts, but they must also pass upon by far
the greatest variety of legal questions.

In each State there is one appellate court of last
resort[Footnote: See Chap. XIX.] and several courts for the trial
of original causes. Local justices of the peace are commonly
given jurisdiction over prosecutions for petty misdemeanors, and
civil cases involving small amounts (seldom over $50 or $100),
which do not affect title to land. Then come County Courts
(often styled Courts of Common Pleas or District Courts), having
cognizance of actions involving greater sums, and to which
appeals from judgments of justices of the peace can be taken.
These generally have both civil and criminal jurisdiction.

A higher court, which may be styled a Superior Court, or Circuit
Court, often exists, with unlimited jurisdiction as respects
values in controversy, and also as to crimes, the County Courts
in such case having a limited jurisdiction in these respects.

Municipal courts are to be found in all considerable cities and
in many of the lesser municipalities, such as towns and boroughs.
City Courts often have jurisdiction over civil causes to which
one residing in the city is a party, or growing out of a
transaction occurring within the city, irrespective of the amount
of the matter in demand. They frequently have a criminal side,
before which convictions may be had for petty misdemeanors, and
those charged with higher offenses bound over for trial in some
court of general criminal jurisdiction.[Footnote: See Goodnow,
"City Government in the United States," Chap. IX.]

For the settlement of the estates of deceased persons and the
appointment and superintendence of guardians and similar agents
of the law, and proceedings in insolvency, there are in many
States special courts, known as Courts of Probate, Surrogate's
Courts, or Orphans' Courts, and Courts of Insolvency. In others
these functions belong to the County Courts.

The early practice in this country favored having several judges
hold all trial courts, whether a jury was or was not to be called
in. It was a method wasteful of time and money. In
Massachusetts it survived for their highest _nisi prius_
court until 1804. In many States it endured much longer for
County Courts.

County Courts in some States are courts only in name, except,
perhaps, for some very limited purposes. Their real functions
are administrative. Some or all of those who hold them are often
styled commissioners, and their principal duties are to manage
the general business affairs of the county.[Footnote: See
Constitution of West Virginia, Amendment of 1880; Constitution of
Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
indicates that those in that State are not fountains of law, for
it requires the district attorneys in each county, or their
deputies, to advise the County Courts "on all legal questions
that may arise." In Virginia, County Courts for a long period
were held by all the justices of the peace in the county, or such
of them as might attend. These magistrates nominated their own
successors to the Governor, who almost never refused to
commission the person so recommended. The court also nominated
the officers of militia below the rank of General, and managed
all the county affairs, besides having an extensive civil and
criminal jurisdiction, including the power of acquittal in cases
of felony. However clumsy and ill-ordered such a scheme appears,
it gave general satisfaction for a long course of years, partly
from a usage on the part of the older members of the bar who
might be in attendance to volunteer advice as _"amci
curiae"_ whenever any doubtful question of law chanced to
arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
County Courts have jurisdiction of ordinary lawsuits the judges,
or a majority of them, are sometimes without any legal training,
though this is now less common than it once was.[Footnote:
McMaster, "History of the People of the United States," III,
154.]

The Constitutions of the States generally require the existence
of a Supreme Court of last resort, and often specify also by name
one or more of inferior jurisdiction. Such courts stand on a
firmer footing than those created by the legislature under a
general power to establish inferior courts. The power to
establish implies a power to limit and to destroy. A tribunal
created by a Constitution, with functions defined in the
Constitution, is, as to these and as to its independence of
existence and action, beyond legislative control.

The Republicans in Congress were within their rights when, in
1802, they repealed the act passed by the Federalists the year
before to create a system of Circuit Courts. Those of
Massachusetts were within theirs when, in 1811, they abolished
the ancient Court of Common Pleas of that State and created a new
"Circuit Court," with fifteen judges, to take its place. Both
would have been glad to go farther and reconstitute in some way
the court of last resort, which was filled with old Federalists.
Why they did not has been frankly stated by one of them in his
account of Governor Gerry's administration:

  With the Supreme Judicial Court the party did not interfere.
  In respect for the authority of the Constitution this
  forbearance was observed; it having been conceded after due
  deliberation by men having the confidence of the dominant party
  that neither the court nor the judges were within the power of
  the legislature. The result was very reluctantly acceded to,
  for the imposing influence of that court had been felt in the
  political agitation of the times, and some of the judges, like
  some ministers of the gospel, had been unwise enough to give to
  the extension of their political feelings the aid directly
  derived from their official authority.[Footnote: Austin, "Life
  of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the
vesting of jurisdiction of small civil causes in justices of the
peace. Of these there are generally several in each town, having
jurisdiction over the whole county. Some may be lawyers. None
need be, and few are. Any one of them can try cases. Which of
them shall try any particular case is left to be determined by
the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal
prosecutions and to conduct preliminary examinations into charges
of any offence for the purpose of determining whether there is
ground for holding the accused for trial before a jury, although
even here mischief often results from their ignorance of law, and
the sufferers have little means of redress.[Footnote: See McVeigh
_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
Reporter, 701.] Such prosecutions are brought by a public
officer, who will not be apt to select an incompetent magistrate,
and has no strong motive for choosing one specially likely to
give judgment against the defendant. But in civil cases, for the
lawyer who institutes them to pick out his judge at will from a
number who are equally competent to assume jurisdiction, and at
the same time (as is generally the law) are left wholly without
salaries, receiving nothing except fees for cases actually
brought before them, is to place the defendant in a much less
favorable position than the plaintiff. If the justice decides in
favor of the latter, he is obviously more likely to get the
subsequent patronage of his lawyer. In most justice suits
judgment does go for the plaintiff, and not infrequently it is to
be feared that he gets it from that consideration. Some justices
rarely give any other judgment. Many lawyers bring all their
cases before one justice, and seldom fail of success.

In 1903, a justice of the peace in one of our largest cities
resigned his office and made his reasons public. They were that
no one could afford to hold it who was not willing to stoop to
unworthy practices. Lawyers having a large collection practice,
who were the best customers at such a shop of justice, threw
their business where they could get it done most cheaply. They
expected the justice of the peace whom they favored to favor
them. One way was by making them a discount on his legal fees.
There was a competition among the justices for business on these
terms, and the lowest bidder generally got it. Blank writs of
summons, even, signed by the justice would be sold at so much a
dozen, to be filled in to suit the attorneys.

A system in which such things are possible is inherently vicious,
and only endurable because the defeated party can always appeal
and have a new trial before a higher court. That relief,
however, is expensive. Judgments ought to be just in the first
instance, and it is the business of governments to ensure this,
so far as they reasonably can.

The natural remedy would seem to be to have fewer justices of the
peace who are authorized to try cases and to pay them a fixed
salary. Better men could thus be had and independence of action
promoted. That this is not done comes mainly from the feeling
that small controversies ought to be settled by a neighborhood
court; that any man of good common sense can generally deal with
them as well as a lawyer; and that to salary every justice would
be an unreasonable burden to impose on the taxpayer. The system
is also an ancient one; it works well with honest men; and the
people have an inherited attachment for it.

In a few States a sharp line of division is drawn between courts
of law and courts of equity. This distinction was inherited from
England, though it has been for most purposes abolished there by
the Judicature Acts of 1873 and 1875. It originated in the royal
prerogative of interposing to do justice between private
individuals in cases of an extraordinary character when the
regular courts had no power to grant the necessary relief. The
King was accustomed to refer requests for such action on his part
to his principal secretary and councillor. The next step was to
address the request directly to this officer, who was styled the
Chancellor. If a man were acting toward another in a way that
was against good conscience, though without absolutely
transgressing any settled rule of law, the Chancellor could
compel him to desist. If the legal title to land had been
conveyed to one for the use of another, and the holder of this
title refused to recognize the beneficial interest to serve which
he had been invested with it, the Chancellor could bring him to
account, although the common law would give no remedy. Soon,
whenever a man seemed to have justice on his side, but not law,
it was deemed a case for the Chancellor, or a case in chancery.
Relief was given because it was equitable to give it, and so it
was called relief in equity. The jurisdiction expanded.
Wherever there was a right, but no adequate remedy at law, the
Court of Chancery, or, as it was oftener called, of equity, was
recognized as competent to step in and do justice.

The Chancellor had often been an ecclesiastic. He was apt to be
more familiar with canon law and civil law than with the common
law. The justice which he administered came from the Crown, not
from the people. The people spoke through a jury, called in law
language "the country." The Chancellor spoke for himself. If he
called in the aid of a jury, it was to advise him, not, as in a
common law court, to make a final decision as to the question
submitted to it.

The result came to be that for several hundred years, embracing
the whole colonial period, England had two distinct sets of
courts, acting under different rules, and each trying a different
kind of cases. Those involving questions of trust, account,
fraud, mistake or accident, were the principal subjects of
equitable jurisdiction. Equity also could prevent wrongs, while
law could only punish them.[Footnote: See Chap. XX.] It was not,
however, always easy to mark the line between cases, and say
which belonged in the common law tribunals and which in those of
chancery. Many an action failed, not because there was no just
cause of action, but because it had been brought in the wrong
court.

In the American colonies, and for many years in the States which
succeeded them, these distinctions of procedure were generally
observed.[Footnote: In Pennsylvania the courts largely
disregarded them and asserted that equity was a part of its
common law. See Myers _v._ South Bethlehem, 149
Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
some there were, in some there still are, separate courts of
equity held by a Chancellor, aided, if necessary, by
Vice-Chancellors. In others two dockets or lists of cases were
(and in a number of them still are) kept in the same court, and
the same judge disposed of those on one docket as a court of
equity and of those on the other as a court of law.

Such a system is intrinsically absurd. It has been maintained by
whatever States yet tolerate it for two reasons: because the
lawyers and the community are used to it, and because it
furnishes a convenient test of any claim of right to a jury
trial. All our State Constitutions have some provision for
maintaining such rights, but they do not define the cases in
which the right exists. That is left to the courts, and their
rule is that it cannot be claimed in cases that call for
equitable as distinguished from legal relief.

In most of our States and Territories legal and equitable causes
of action or defenses may now be joined, and legal and equitable
relief given in one suit. This reform in procedure was largely
due to the labors of David Dudley Field, and became general
throughout the country during the last half of the nineteenth
century. The result has been that separate courts of equity are
now to be found only in a few States.

Congress has made use of the State courts in certain cases as
part of the machinery of the federal government. While by the
Constitution "the judicial power of the United States" can only
be vested in the courts of the United States, the phrase as thus
used refers only to the power of judging causes in courts of
record. State courts and magistrates can therefore be given
jurisdiction by Congress over any acts in aid of the functions of
the United States, the supervision of which may be regarded as
ministerial, or as incidental to judicial power rather than a
part of it. They have received it in this way with respect to
such matters as seizure of deserters from a merchantman, the
arrest and commitment or bail of offenders against the criminal
laws of the United States, the taking of affidavits and
depositions for use in proceedings before federal authorities,
and the naturalization of aliens.[Footnote: Robertson _v._
Baldwin, 165 U. S. Reports, 275.]

State courts also have jurisdiction over any civil action to
enforce a right given by the laws of the United States, unless
Congress has otherwise provided. They constitute together with
the federal courts one general judicial system for the whole
country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
Northeastern Reporter, 435.]

Almost all American courts are known as "courts of record." A
court of record, in modern parlance, is one which tries causes
between parties and is required to keep a full official and
permanent record of its disposition of them. For this purpose
most courts are furnished with a recording officer, called the
clerk. His record is the only evidence of their judgments and
cannot be contradicted or impeached in any collateral proceeding.
If there is any error in it, it can only be shown on a direct
proceeding brought to correct it.

Justices of the peace, when authorized to try causes, act only in
small matters and in a summary way. In most States they are not,
when exercising this function, deemed to constitute a court of
record. Nor is any court, even though furnished with a clerk, if
its proceedings are not recorded in full, but simply made the
subject of brief notes or minutes,[Footnote: Hutkoff _v._
Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
unless there is a statute or local practice giving such notes or
minutes the effect of a record.

A court of record has inherent power to preserve order in
proceedings before it[Footnote: See Chap. XX.] and, unless other
provision be made by law, to appoint a crier or other officer to
attend upon its sessions. By statute it is commonly made the
duty of the sheriff of the county to attend all courts of record,
either personally or by deputy. He also executes such processes
as under the practice of the court may be directed to him.
Witnesses and jurors are thus summoned by him to appear before
the court; arrests and attachments of property are made; and
executions are levied to enforce final judgments.

            *       *       *       *       *



                     CHAPTER IX


       THE ORGANIZATION OF THE COURTS OF THE UNITED STATES


The Constitution of the United States (Art. III) provides that
there must always be one Supreme Court of the United States. The
establishment of such inferior courts as may be deemed proper
from time to time is left to Congress.

The judicial power of the United States is limited to cases of
certain kinds or between certain kinds of parties. Either (1)
the subject-matter of the action must be of a kind that concerns
the whole nation, or (2) some party to it must be or claim under
a political sovereign, or (3) it must be between a citizen of a
State of the Union and one of another of the States or of a
foreign country.

In a few of the second class the Supreme Court is given original
jurisdiction: in all others of both classes it has appellate
jurisdiction, with such exceptions as Congress may think fit to
make, save only that no fact tried by a jury can be thus
re-examined, except so far as the rules of the common law would
have permitted. Its original jurisdiction is confined to cases
affecting ambassadors, ministers, and consuls and those to which
a State shall be a party. It is not necessarily exclusive as
respects any of them,[Footnote: Ames _v._ Kansas, 111
U. S. Reports, 449, 469.] and by the eleventh amendment to the
Constitution is so limited as not to include suits against a
State by citizens of any other State or foreign government. In
point of fact, few original suits have ever been brought before
the court, and almost all of these have been instituted by or
against States.

The Supreme Court is held at Washington. There is a Chief
Justice with eight associate justices, and each is also assigned
for circuit duty as a judge of the Circuit Court of the United
States in one of nine judicial circuits into which the country is
divided. Originally there were but six judges, and each was
required to hold two circuits a year in each district in his
circuit. They were assigned to the circuits in pairs, and both
sat together with the District Judge. The consequence was that
three-fourths of their time was spent in traveling from one court
town to another. They complained of this to Congress through the
President in 1792, and the next year it was provided that Circuit
Courts might be held by one justice, alone or with the District
Judge. In 1801, an ultimate reduction of the number to five was
provided for. They were to devote their time entirely to the
Supreme Court, while the Circuit Courts were to be held by a new
set of eighteen Circuit Judges. In 1802, they had only ten cases
pending before them, and the average for some years had not
exceeded that number. For this and other reasons mentioned
elsewhere the Act of 1801 was repealed by the next Congress. In
1807, another Justice of the Supreme Court was added and two more
in 1837.

Each circuit has a judicial establishment of its own, and is
composed of a certain number of judicial districts. Of these
there are in the whole United States about eighty. The smaller
States constitute one district. In the larger ones there are
several.

Each district generally has its own judge, called the District
Judge, and always its own court, called the District Court of
that district. Each circuit has several Circuit Judges, whose
main work is to sit in a court held in each circuit, styled the
Circuit Court of Appeals. They can also hold a District Court.

Until 1911, the District Courts had a narrow jurisdiction, and
there were Circuit Courts having a wider one. In 1911, the
Circuit Court was abolished, and the District Court now is the
general trial court of the United States in the first instance.
Anyone can sue there to enforce a right arising under the laws of
the United States when the amount in dispute is more than $3,000.
Rights arising under certain of these laws can only be enforced
there, and as to them the pecuniary limitation does not apply.
Such are patent-rights and copyrights. Any suit involving an
amount exceeding $3,000 may be brought there when the controversy
is between citizens of different States or citizens of a State
and citizens of a foreign country. So may a suit by citizens of
the same State claiming land under grants from different States,
without respect to the value of the subject of controversy.
Suits of any of these kinds which are brought in a State court
may, at the option of the defendant, be transferred for trial
into the District Court. On filing proper papers the case is
transferred automatically. The District Court has jurisdiction
also over bankruptcy and admiralty matters, a few other kinds of
civil cases of minor importance, and of all offenses against the
United States.[Footnote: The Judicial Code of the United States,
Chapter II.]

The pecuniary limit of jurisdiction was for a hundred years fixed
at $500. The increase to $3,000 was due partly to the fact that
the Supreme Court was overburdened by appeals from the trial
courts, many of which involved small amounts, and more to a
desire to keep judicial power over ordinary controversies between
man and man, as far as practicable, in the hands of the State
courts.

Early in the nineteenth century a practice began of bringing
suits in the Circuit Court of the United States, which purported
to be between citizens of different States, but in which the
plaintiff had either changed his residence for the purpose of
giving the court jurisdiction or was really suing for the benefit
of a citizen of the same State with the defendant. This was due
to the high opinion entertained of the federal
judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
bring the cause before a federal, rather than a State tribunal.
Such a mode of proceeding, while within the letter of the
governing statute, was contrary to its spirit, and little better
than a fraud. It was also an evident perversion of the intent of
the Constitution, and became at last so far-spreading that both
Congress and the courts used their best endeavors to put an end
to it, and with success.[Footnote: U. S. Statutes at Large,
XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]

Another cause is also effective in lessening the docket of the
District Courts. The ordinary lawyer prefers to sue in a State
court, when he has the choice, on account of his greater
familiarity with the practice there. Many American lawyers have
never brought an action in a federal court. Most cases which
could be so brought can also be and are brought in a State court.

Congress has thus far maintained for the federal courts the
ancient distinction between procedure in law and in equity
explained in the preceding chapter. There are those who claim
that the reference in Art. III, Sec. 2, of the Constitution of
the United States to "cases in law and equity" requires its
preservation; but this seems a strained construction of the
phrase. Separate dockets are kept in the District Court of legal
and of equitable actions. They are brought in different form,
tried in a different way, and disposed of by different rules,
though by the same judges and at the same term of court. As to
equity cases, the rules of the old English chancery practice are
substantially followed. In cases of a common law nature, the
practice existing at the time in regard to those of a similar
kind in the courts of the State within which the federal court
may be held is to be followed, as nearly as may be.[Footnote:
U. S. Revised Statutes, § 914.] In fact, there is a departure
from it in many points in most States,[Footnote: See Nudd
_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
those which have reformed their procedure in civil actions by
fusing remedies at law with those in equity. If an action framed
in this method be removed from a State court to a federal court,
the plaintiff must thereupon split it in two, and present his
case at law on one set of papers and his case in equity on
another.

The Supreme Court, under power derived from acts of Congress, has
framed rules of procedure for the inferior trial courts of the
United States in equity and admiralty cases, and the latter
courts have supplemented them by further rules of their own
making. The Equity Rules promulgated by the Supreme Court were
revised in 1912, and took effect as changed in 1913.[Footnote:
They are printed in Volume 226 of the United States Reports.]
They greatly simplify the former procedure. Suits are now tried
generally on oral testimony taken stenographically in open court.
Formerly the evidence was usually given before officials known as
examiners or masters in chancery. The former reported the
testimony at length to the trial court. The latter reported
their conclusions from it.

The new rules have abolished demurrers in equity causes in favor
of what is substantially the present English practice.[Footnote:
See _infra,_ page 203.]

In common law causes in the District Court, the State remedies by
way of attaching the property of a defendant to respond to a
judgment, or seizing it on execution, or imposing a lien upon it
by a judgment, are adopted and enforced.[Footnote:
U. S. Rev. Stat., §§ 915, 916, 967, 988.]

The field of national legislation being narrow, the offenses
against the nation are correspondingly few. Any acts done on
lands ceded by a State, which would have been crimes under its
law in 1873, may be punished as such in the federal courts in the
same manner which that law provided.[Footnote: _Ibid_., §
5391.]

In the Circuit Courts, before 1866 it was customary to defer the
trial of important causes until the Justice of the Supreme Court
assigned to the circuit could be present. If he differed on any
material point from the District Judge, this point could be
certified up to the full Supreme Court for argument and decision
there. During this period the published reports of the decisions
of the Circuit Court contain many opinions of the highest value.
Several of the best which Story and Bushrod Washington wrote are
to be found among them.

The Act of 1866, by which a resident Circuit Judge was appointed
for each circuit, provided notwithstanding that each member of
the Supreme Court should attend at least one term of the Circuit
Court in each district as often as once in two years. The press
of business at Washington, however, soon became such as to make
it practically impossible for the Supreme Court Justices to do
any substantial circuit work. When some case of national
importance was to be heard in any district, the Justice in whose
circuit it was included would make a special effort to go down.
In this way Chief Justice Chase heard and sustained the plea with
which Jefferson Davis met the indictment against him for treason.
But ordinarily the Circuit Judge took the place of the Supreme
Court Justice, and the latter, if he appeared at all during the
term, remained hardly for a day.

The Supreme Court, therefore, during over a hundred years
remained the only court of the United States existing mainly for
appellate purposes. The work which it had before it at the last
term during which it occupied this position (October Term, 1890)
will show how much it was then overburdened.

Its docket contained 1,177 appeals brought forward by continuance
because they could not be disposed of at the preceding term, 623
new cases of the same kind, and 16 cases of original
jurisdiction, making a total of 1,816 actions. Of these,
although the term lasted nearly eight months, it was only able to
dispose of 617, thus leaving 1,199 for continuance to the
following term.[Footnote: 140 U. S. Reports, Appendix.] It will
be observed that the court was no longer able to cope with its
new business, not to mention that left over from previous years.

Appeals now lie in most civil cases from the final judgments of
the District and Circuit Courts, and from convictions for
infamous crimes, not capital, to the Circuit Court of Appeals.
They also extend to judgments granting a temporary injunction.
There is a court of this name for each of the nine circuits,
which was established in 1891 for the further relief of the
Supreme Court and the speedier termination of litigation. This
measure originated in the American Bar Association, by which it
was pressed upon the attention of Congress. It had become an
absolute necessity to devise some plan of expediting the
disposition of appeals from the trial courts of the United
States. There was more than enough of such business by the close
of the Civil War (the events attending which brought up for
decision many novel questions of the highest importance) to
require the entire attention of the Supreme Court. It soon took
three years after an appeal was docketed before it could be
reached for argument. This was intolerable, and it was obviously
necessary either to restrict the liberty of appeal; to constitute
divisions of the court, one to hear appeals of a certain class
and another those of another class; or to set up an intermediate
court. The last method was preferred. The practice in the
Circuit Court of Appeals is governed by rules of its own making,
but in general conforms to that of the Supreme Court of the
United States in appealed cases.

The commission appointed some years since to prepare a revision
of the laws of the United States have reported in favor of
abolishing all jurisdiction of the Circuit Court over original
cases and turning it into an appellate court.[Footnote: Senate
Doc. 68, 57th Congress, 1st Session.] Should this recommendation
be adopted, the District Court would acquire the jurisdiction now
vested in the Circuit Court, the District Judges would sit in the
District Court only, and the Circuit Court Judges in the Circuit
Court only, while the Circuit Court of Appeals would come to an
end.

The American Bar Association voted in 1903 that it was desirable
to establish a new appellate court to sit at Washington and take
cognizance of patent and copyright cases. Such a measure would
tend to relieve the Supreme Court of the United States of any
undue pressure of business, and promote both uniformity and
promptitude of decision in a class of actions in which
promptitude and uniformity are of special importance. As things
stand now, a patent may be pronounced invalid in one circuit and
upheld in another by courts of equal authority; and while in such
event the Supreme Court would probably, on a special application,
call both these judgments up before it for review, this remedy
cannot be claimed as a matter of absolute right, and is at best a
slow one.

The Circuit Court of Appeals is held by three judges, two
constituting a quorum. Those generally sitting are the Circuit
Judges belonging to the circuit. The Justice of the Supreme
Court assigned to the circuit may also sit, and any of the
District Judges in the circuit can be called in.

Except in a very limited class of cases, the decision of this
court is final, unless the Supreme Court, on special application,
should think the questions involved to be of sufficient
importance to require a review, when it can order the record sent
up to Washington for that purpose. The Circuit Court of Appeals
can also of its own motion certify up any questions in a cause to
the Supreme Court for its instructions before making a final
disposition of it.

The Supreme Court has direct appellate jurisdiction over the
District and Circuit Courts in cases turning on the limits of
their jurisdiction, in prize causes, in equity suits by the
United States under the statutes regulating inter-State commerce,
and in all cases involving the construction or application of the
Constitution of the United States, or of a treaty. Appeals also
lie to it from judgments of conviction in the Circuit Court for
capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32
_ib_. 823.]

The consequence of the Circuit Courts, which had been impaired by
the practical withdrawal of the justices of the Supreme Court,
was further lessened by the creation of the Circuit Court of
Appeals. Before that their judgments in most cases were final.
In criminal causes there was no appeal, and in ordinary civil
causes none after 1875, unless the matter in controversy exceeded
$5,000 in value. This left the life, liberty and property of the
citizen top much in the hands of one man; and the people, led by
the bar, insisted on stripping him of powers so liable to
abuse.[Footnote: See an attack on a similar state of things
existing in Louisiana at one time in the District Court, by
Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"
302, 303.] No sovereign can be sued in his own courts without
his consent. The United States consent to be sued on most claims
against them of a contractual nature, which they may dispute.
For this purpose a Court of Claims has been established at
Washington, consisting of a Chief Justice and four associates.
Originally it was little more than an administrative bureau; but
by successive amendments of the law it has come to have fully a
judicial character,[Footnote: United States _v._ Klein, 13
Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]
except in one particular. It is a general principle that a court
will make no decree that it cannot enforce. The Court of Claims
cannot issue an execution to enforce its judgments. Money can be
drawn from the treasury of the United States only to meet
appropriations made by Congress. An appropriation is made by
each Congress of a gross sum to satisfy any judgments that have
been or may be rendered by the Court of Claims; but should this
provision be omitted in any appropriation bill the judgments of
the Court of Claims could not be collected.

Concurrent jurisdiction in these respects is given to the
District Court of claims not exceeding $1,000 in amount, and to
the Circuit Court of those exceeding $1,000 and not exceeding
$10,000.

Aliens can sue in the Court of Claims when their own country
accords a similar privilege in its courts to citizens of the
United States.[Footnote: U. S. Revised Statutes, § 1068.]

This court has also a peculiar kind of advisory jurisdiction.
Congress, or any committee of either house, can refer to it any
questions of fact which may have come before them. The judges
must then ascertain the facts and report them back. The head of
any of the great executive departments may, in like manner, in
dealing with any claim against the government, if the claimant
consents, refer any uncontroverted questions, either of fact or
law, to the court, which must then report back to him its
findings and opinion. This does not take the form of a judgment,
for there is no case and no parties are before it. It is a mere
expression of opinion, and stands on much the footing of the
report of a committee of inquiry to a superior
authority.[Footnote: 22 U. S. Statutes at Large, 485; 24
_id._, 507.]

A temporary court is also in existence called the Court of
Private Land Claims. This is composed of a Chief Justice and
four associate justices, and has jurisdiction to hear and
determine claims of title to land as against the United States,
founded on Spanish or Mexican grants in New Mexico, Arizona,
Utah, Nevada, Colorado or Wyoming. An appeal from the final
judgment is given to the Supreme Court of the United
States.[Footnote: 26 U. S. Statutes at Large, 854.]

The District of Columbia has a special judicial establishment.
There is a court of general jurisdiction known as the Supreme
Court of the District of, Columbia, and appeals from its
judgments lie to the Court of Appeals of the District of
Columbia. This is composed of a Chief Justice and two associate
justices, and its judgments are reviewable by the Supreme Court
of the United States, if $5,000 is involved, or the validity of
an authority exercised under the United States or a treaty or Act
of Congress is in question. An appeal also lies to it from
decisions of the Commissioner of Patents as to claims of a right
to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]

When new territory comes by conquest or cession permanently under
the jurisdiction of the United States, it belongs to the
President, in the exercise of his executive power, to see to its
proper government until Congress makes other provision. He can
institute courts there for that purpose, or if he finds courts
created by the former sovereign in existence, can expressly or
impliedly permit them to continue in the exercise of judicial
functions.

Each fully organized Territory has a set of local courts and one
Supreme Court to which appeals can be taken and the judgments of
which, in cases of large pecuniary magnitude or great legal
importance, can be reviewed by the Supreme Court of the United
States. These territorial courts do not exercise what is known
in the strict sense and designated in the Constitution as "the
judicial power of the United States." They are created to meet
temporary conditions, and with judges whose commissions run only
for a few years. Such courts are instruments through which
Congress exercises its power of regulating the territory of the
United States. They act judicially. They have judicial power.
But the source of this power is not the clause in the
Constitution under which the judicial power of the United States
is defined.[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511.] It is therefore not necessary to confine
such courts strictly to the consideration of judicial business.
In the organization of our earliest Territories the judges were
given legislative functions, and while this was originally due to
the terms of the Ordinance of 1787, it was confirmed by various
Acts of Congress after the adoption of the Constitution of the
United States.

The Philippines are governed under an Act of Congress by a
commission acting under the supervision of the Secretary of War.

The organization of courts established by Spain has been in
substance preserved. The Spanish law which was in force there
was expressed in codes mainly founded on those framed for France
under Napoleon I. In 1901, the Spanish code of civil procedure
was supplanted by one prepared by a member of the Philippine
Commission, and which is now familiarly known by his name as the
Ide Code. In substance, it establishes the mode of proceeding in
civil cases which is known in the United States as code pleading.
Trial by jury has not been introduced into the Philippines either
in civil or criminal causes, and need not be.[Footnote: Dorr
_v._ United States, 195 U. S. Reports, 138.]

In criminal causes, the Spanish system was originally retained,
allowing either party, the United States or the defendant, to
appeal from the judgment of the court of first instance to the
Supreme Court of the islands and have there a new hearing both as
to fact and law. This, however, so far as concerns an appeal by
the government, was held to be contrary to the Act of Congress
under which it was constituted.[Footnote: Kepner _v._ United
States, 195 U. S. Reports, 100.]

The courts of the United States are generally provided with an
officer styled a marshal. He executes their process, attends
their sessions, and exercises in general the functions which
belong to a sheriff as respects State courts.

Each District Court appoints a convenient number of District
Court Commissioners, who issue warrants of arrest on criminal
proceedings, take bail, inquire whether there is probable cause
to hold the accused to answer to the charge in court, and
discharge in such respects substantially the functions generally
belonging to justices of the peace in the States.

            *       *       *       *       *



                      CHAPTER X


       RELATIONS OF THE STATE JUDICIARY TO THE UNITED
          STATES AND OF THE UNITED STATES JUDICIARY
                    TO THE STATES


Every judicial officer of a State is required by the Constitution
of the United States to bind himself by oath or affirmation to
support it, and this obligation compels him to respect every Act
of Congress made in pursuance of the Constitution, and every
treaty made under the authority of the United States, as, in case
of conflict, superior to anything in his State Constitution or
laws.

The courts of the national government are complementary to those
of the States. Both belong to one judicial system. Rights
arising under the laws of the United States may be enforced by a
State court as well as by a federal court, and rights arising
under a State law by a federal as well as by the State court,
unless in cases where there is some special restriction upon its
jurisdiction. Such a restriction may be imposed by either
government, as respects any right which it creates.

The judicial power of the United States extends only to certain
classes of cases. As to some of these it is necessarily
exclusive: as to any of the rest Congress can make it
such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411,
429.] On the other hand Congress may assume to invest a State
court with power to dispose of a certain matter of federal right,
and the State may decline to permit the exercise of such a power.
The United States cannot in that manner compel the courts of
another government to do their bidding. It would tend to throw
on the States a greater burden than they might deem necessary or
proper. They provide courts to meet the wants of those looking
to their own sovereignties for justice. Thus, although nothing
could seem more anomalous than for one sovereignty to confer
citizenship in another, the laws of the United States allow
naturalization to be obtained by proceedings in State courts.
Most aliens who become citizens of the United States do so in
that way, because the State courts are more easy of access. But
a State can at any time restrict or forbid the use of its courts
for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's
(Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law
Reports, 97; 32 Atlantic Reporter, 743.]

The federal courts can lend their aid to carry into effect a
right arising wholly from the statute of a State, even if it
affect maritime interests and must be enforced, if at all,
through an admiralty court. Admiralty suits, it is true, can
only be brought in the courts of the United States, but that is
the very reason why, if such a suit gives the only remedy,
jurisdiction of it should be entertained in the only sovereignty
competent to give relief.[Footnote: The Lottawanna, 21 Wallace's
Reports, 558, 580.]

There are many civil cases which can be brought, at the option of
the plaintiff, either in a court of the United States or in a
State court. Some of these, if brought in a State court, the
defendant can, at his option, allow to remain there or remove for
trial into the Circuit Court of the United States. Criminal
prosecutions by a State may also be removed, under certain
conditions, to the Circuit Court of the United States, when the
defense is one arising under the laws of the United States.

In any cause tried in a State court, if the decision turns on a
claim of right, set up under the Constitution, laws or treaties
of the United States, and is against its validity, the losing
party, if unable to secure its reversal by appeal to a higher
court of the State, can ask such relief from the Supreme Court of
the United States.

It will be observed that it is the losing party only who has this
remedy. If the State court decides, however erroneously, that
the claim of a federal right is well grounded, this is conclusive
as respects the controversy in that suit. If all State courts in
which the validity of an unconstitutional Act of Congress was
contested should uphold it, the courts of the United States would
be powerless to right the wrong, unless they were called upon to
enforce the statute in some suit brought before them for original
trial.

The obvious object of the limitation is to preserve so far as is
possible the sovereignty of the States. The courts of the nation
are to set aside acts or judgments flowing from that only in case
of necessity and to preserve rights flowing from the sovereignty
of the nation. For the same reasons, resort can be had to the
Supreme Court of the United States only after every right of
review given by the laws of the State has been exhausted.
Usually this requires one who loses his cause in a trial court to
take it up to the State court of last resort. Where, however,
this is not permitted by the State law, he may ask for a writ of
error from the Supreme Court of the United States to whatever
court was the highest to which he was able to remove it; and if,
by the State law, he was unable to appeal at all, then the writ
will go to the trial court. One of the greatest of Chief Justice
Marshall's great opinions was rendered on a writ of error to the
quarterly session court for the borough of Norfolk in Virginia,
held by the mayor, recorder, and aldermen of the
borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's
Reports, 264.]

It was the opinion of Hamilton that an appeal might be given from
the State courts to the inferior federal courts, in case of a
decision turning on a right claimed under the Constitution or
laws of the United States.[Footnote: _Federalist_,
No. LXXXII.] This is probably true, but Congress has wisely
forborne to make any such provision. It imposes a strain
sufficiently great on the sovereignty of a State to subject the
judgments of its court of last resort to reversal by the Supreme
Court of the nation.

The power to declare a statute void because inconsistent with
constitutional provisions belongs to every court in every case in
which such a statute is relied on either to support the action or
in defense.[Footnote: See Chap. VII.] It therefore belongs, as
respects a State statute which may be attacked as inconsistent
with the Constitution of the United States, to the trial courts
of the United States as well as to the Supreme Court. This makes
it possible for a District or Circuit Court of the United States
to adjudge the statute of a State in which it sits to be
unconstitutional and void, although it may have been declared
valid by a judgment of the highest court of the State, from which
no appeal to the Supreme Court of the United States was ever
taken.

However derogatory to the sovereignty of the States the
possession of such authority may seem and be, it is evidently a
necessary feature of our dual system of government. In some way
it was indispensable to provide for maintaining the full powers
of the United States against encroachments by State legislation,
and also for enforcing all the special limitations on the powers
of State legislation which the Constitution of the United States
lays down. This could have been done effectually in but two
ways: either by giving to Congress or to the President a veto
upon State laws; or by leaving the right of control to lie
dormant until a necessity for exercising it should arise, and
then putting it in the hands of the judiciary. The latter method
was clearly open to the least objection.[Footnote: See Hamilton's
discussion on this point in the _Federalist_, No. LXXX.]

Jefferson maintained that there was a third, and one which the
Constitution expressly provided. This was the calling of a
convention of all the States for proposing amendments to it. If,
he said, a State on the one hand by her highest authorities
asserts a certain line of action to be within her powers, and the
United States by their highest authorities deny it, "the ultimate
arbiter is the people of the Union, assembled by their deputies
in convention, at the call of Congress, or of two-thirds of the
States. Let them decide to which they mean to give an authority
claimed by two of their organs."[Footnote: Letter to Mr. Justice
Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There
seems a plain fallacy in this proposition. The question to be
decided, in case of a conflict of judicial authority, is not
which doctrine ought to be adopted, but which was adopted when
the Constitution was framed. To amend that instrument and make
it something else could not justly be allowed to alter the effect
of acts previously done.

But one serious proposition has ever been made to call a national
constitutional convention for any such purpose. That was by
Kentucky in January, 1861, when civil war was threatened; and it
was not pressed. The very delays which would be inevitable in
assembling such a body were then a reason for the call, for they
would give time for the "sober second thought." The plan,
however, seemed and probably was impracticable. The movement
toward secession had gone too far.[Footnote: Debates and
Proceedings of the National Peace Convention, 45, 61, 67.]

There were many, at the time when the Constitution of the United
States was before the people for ratification, who feared that
the jurisdiction of their courts would be extended by judicial
construction beyond the limits of the grant. New York in her
vote of ratification incorporated a declaration that she
understood it to be impossible that the jurisdiction of any court
of the United States could ever be enlarged "by any fiction." In
the Maryland Convention, this sentiment took shape in a proposed
amendment to the Constitution adopted by a committee appointed
for the purpose, but never reported, "that the Federal courts
shall not be entitled to jurisdiction by fictions or
collusion."[Footnote: Elliot's Debates, 550; Proceedings
Massachusetts Historical Society, XVII, 504-7.] Had such an
amendment been proposed and adopted, it would have cut off a
large share of the most important cases now brought before the
Circuit Courts. In 1787, there were only twenty-seven business
corporations in the United States.[Footnote: Report of the
American Historical Association for 1902, 267; _American
Historical Review_, VIII, 449.] It was not long before they
became countless and the large affairs of the country were in
their hands. Could they sue and be sued in the courts of the
United States?  The decision on this point was that, by force of
a pure legal fiction, invented for the purpose, they might be.
They were, indeed, not citizens of any State;[Footnote: Paul
_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
composed them probably were. Therefore, it must be assumed that
they certainly were, and also that they were all citizens of the
same State and that the State from which incorporation was
obtained.[Footnote: Louisville, Cincinnati and Charleston
R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,
286.]

Sir Henry Maine maintained that legal fictions were the rude
device of early stages in government, and to add to them
disturbed the symmetry of a legal system and was unworthy the
approval of modern courts.[Footnote: Ancient Law, 26.] But while
they are among the things that it is hard to justify on
principle, it is harder to dispense with them in actual practice,
as the instance given conspicuously illustrates.

Although the United States are the only depositary of the power
of ordering foreign relations, foreign governments are often
aggrieved by acts of the courts of a State which the United
States have but imperfect means of preventing or rectifying.

In 1841, we were brought to the verge of war with Great Britain
by an incident of this nature.

An insurrection broke out in Canada in 1837, and a New York
steamboat was chartered to bring supplies across the Niagara
River to those engaged in it. One night when she was moored on
the New York side of the river a party of loyal Canadians seized
and burned her. During the accompanying affray an American was
killed. A Canadian named McLeod, who was charged with having
fired the fatal shot, was afterwards arrested in New York and
indicted for murder. The British government then informed ours
that it had ordered the burning of the steamer, and thereupon
demanded McLeod's release. Our Secretary of State replied that
the prosecution was in the hands of the State of New York, and
the United States had no control over it. Lord Palmerston made
the affair the subject of a dispatch, in which he stated that
McLeod's execution would produce "a war of retaliation and
vengeance." The President at once requested the Governor of New
York to order a discontinuance of the prosecution. This was
declined, but with a promise to grant a pardon in case of
conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]
The State courts refused to discharge the prisoner. He was tried
on the original charge, but acquitted.

Congress in 1842 did what it could to prevent the recurrence of
such a conflict of authority by passing an Act giving the Circuit
and District Courts of the United States jurisdiction on
_habeas corpus_ proceedings in favor of foreigners held by
State authority, who might claim a right of release under the
principles of international law.[Footnote: U. S. Revised
Statutes, § 762.]

The Circuit Court has since 1875 been given power to entertain
original jurisdiction of any causes arising under the
Constitution, laws or treaties of the United States, regardless
of the citizenship of the parties, if a value of $2,000 is
involved. In all cases, also, of imprisonment by State
authority, whether under arrest before trial or after a sentence
of conviction, in violation of rights claimed under the
Constitution, laws or treaties of the United States, the prisoner
may now be summarily discharged on a writ of _habeas corpus_
by a court or judge of the United States. Ordinarily, however,
as a matter of comity, he will be left to seek his remedy in the
State courts, and if without success there, on a writ of error
from the Supreme Court of the United States.[Footnote: _In
re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117
U. S. Reports, 241.]

The State courts have no power to release on _habeas corpus_
one who is held under the authority of the United States. If
that authority has been illegally exerted, his remedy is in the
federal courts alone.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]

The cases in which a State can be sued in an original suit in the
Supreme Court of the United States are defined in the
Constitution and, as limited by the eleventh amendment to it, are
quite few.

Several such actions have been brought. In the earlier ones, the
State declined to recognize the jurisdiction of the court and did
not enter an appearance. The court thereupon decided to proceed
_ex parte_ on hearing the plaintiff;[Footnote: See New
Jersey _v._ New York, 5 Peters' Reports, 283;
U. B. Phillips, "Georgia and State Rights;" Report of American
Historical Association for 1901, II, 83.] and in the later cases
the States have appeared and made defense.

The court, in one of these suits, was asked to issue an
injunction in favor of the Cherokee Indians against the State of
Georgia to prevent her and her Governor, judges and other
officers whatsoever from enforcing certain of her statutes which
were alleged to be unconstitutional. The case went off on
another point, but the majority of the court intimated it to be
their opinion that no such injunction could properly issue
against a sovereign State. Marshall thought it savored "too much
of the exercise of political power to be within the proper
province of the judicial department." Mr. Justice Johnson said
that it was an attempt to compel the President of the United
States, and by indirection, to do what he had declined to do on
the plaintiff's application to him; namely, "to declare war
against a State or to use the public force to repel the force and
resist the laws of a State."[Footnote: Cherokee Nation _v._
Georgia, 5 Peters' Reports, 1, 19, 29.]

It would be no easy thing to enforce a judgment against a State
should it resist. Hence the Supreme Court has been justly
reluctant ever to make any order which would take money out of a
State treasury, unless in cases where the Treasurer was
individually sued, and the money in dispute was not mingled with
other public funds. In 1794, four years before the adoption of
the eleventh amendment, a judgment against the State of Georgia,
authorizing an assessment of general money damages against her,
had been entered in the Supreme Court in favor of one Chisholm,
to whom she owed a debt. Georgia had refused to enter an
appearance in the suit, and in anticipation of this result her
House of Representatives had resolved, in 1793, that if any
Federal marshal should attempt to levy an execution on such a
judgment against the State, it should be a felony, and on
conviction he should be hanged. The Senate had not concurred in
this measure, but it reflected pretty closely the general state
of public feeling in a State largely indebted for what her people
thought it belonged to the United States to pay. The eleventh
amendment was proposed by Congress during the term of court at
which judgment was entered, but not adopted until 1798.
Meanwhile, the court had thought best to defer further
proceedings, and none were ever taken afterwards. The plaintiff
therefore won a barren victory.[Footnote: U. B. Phillips,
"Georgia and State Rights," Report of American Historical
Association for 1901, II, 25.]

The appellate jurisdiction of the Supreme Court of the United
States over States is large, for the State is the party in whose
name all criminal prosecutions in its courts are brought, and in
many of these the defendant sets up some claim under the laws of
the United States which is overruled.

Here again, in case of resistance, it would be difficult to
enforce a judgment of reversal.

Shortly before the action of the Cherokee Nation for an
injunction, the Georgia courts had sentenced Corn Tassel, one of
the tribe, to death for murdering another of them. Tassel had
claimed that by the laws of the United States and their treaty
with his nation he could only be prosecuted before one of his
tribal courts. He obtained a writ of error from the Supreme
Court to review his case on this ground. It was served, but
before it could be heard the day set for his execution had
arrived. By the laws of the United States the allowance of the
writ of error superseded the sentence until the appeal should be
decided. The Governor laid the matter before the legislature,
saying that he did not propose to regard any orders from the
Supreme Court interfering with those of Georgia courts, and
should resist any attempt to enforce them with all the forces at
his command. The legislature approved his position,[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of American
Historical Association for 1901, II, 77.] and Tassel was hanged
on the day originally set.[Footnote: "Memoirs of William Wirt,"
II, 291.] There had been no time to resort again to the Supreme
Court for relief, and as soon as he was dead his writ of error
fell with him, for such a proceeding is legally terminated if the
plaintiff in error dies.

Two years later, Rev. Mr. Worcester, a missionary who had gone to
teach the Christian religion to the Cherokees, was convicted in
the Superior Court of Gwinnet County on an indictment for
residing among them without a license from the State, and sent to
the State prison. He appealed to the Supreme Court of the United
States, which decided that Georgia had no jurisdiction over the
Cherokee reservation, and could not require such licenses. The
judgment against him was therefore reversed, and an order made
"that all proceedings on the said indictment do forever surcease;
and that the said Samuel A. Worcester be and hereby is henceforth
dismissed therefrom, and that he go thereof quit without day, and
that a special mandate do go from this court to the said Superior
Court to carry the judgment into execution."[Footnote: Worcester
_v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior
Court of Gwinnet County paid no respect to this mandate; the
Governor of Georgia characterized it as an attempt at usurpation
which he should meet in a spirit of determined resistance; and
Worcester remained in prison until, on expressing his willingness
to abandon any further efforts for his discharge by authority of
the judgment on his writ of error, the Governor gave him a pardon
on condition of his leaving the State.

A year later, James Grady, who lay under a sentence of death
under proceedings similar to those in Tassel's case, like him
obtained a writ of error from the Supreme Court of the United
States and had it served on the Georgia court, only to find it
disregarded. His execution, in spite of the _"supersedeas"_
which goes by law with every such suit, was the last of this
series of judicial outrages.[Footnote: "Georgia and State
Rights," 83.]

It was unfortunate for the sufferers in these proceedings that
they took place at a time when the cry of "State Rights" was
particularly loud and general in the South. South Carolina had
been quieted with difficulty by Jackson's action in regard to her
nullification ordinance, and he did not wish to go farther than
he thought it necessary in insisting on the supremacy of the
United States.

Since the Civil War, such defiance by a State of the authority of
the Supreme Court of the United States has been unknown and would
be almost inconceivable. The absolute right of the Supreme Court
of the United States to pronounce finally, so far as the States
are concerned, upon every question brought before it as to the
meaning and effect of the national Constitution, has come to be
universally acknowledged.

The courts of a State have the same right, except that it is not
final. This the original Judiciary Act of 1789 (Sec. 25) fully
recognized. Something like it may belong to a Convention of the
whole people of a State, called to act upon its fundamental
concerns; for that would represent the sovereignty of the State
as a whole in the fullest manner. It was from such a convention
that the nullifying ordinance of 1832 proceeded, but the vice of
its action was, not so much that it pronounced the protective
tariff Acts unconstitutional and void, but that it assumed to
deny any right of appeal in litigation growing out of these Acts
and the Ordinance of Nullification, from the courts of South
Carolina to the courts of the United States. This liberty of
appeal in the regular course of judicial procedure is the one
thing which keeps the United States in existence.

The law governing the ordinary transactions of life is that of
the State where they may have their seat. This was affirmed in
the original Judiciary Act,[Footnote: U. S. Revised Statutes, §
721. As "equity follows the law," State legislation creating new
equitable rights or varying those formerly established also
affects causes in equity in the Federal courts. Brine _v._
Insurance Co., 96 U. S. Reports, 627; but see James _v._
Gray, 131 Federal Reporter, 401.] as a general rule for the
courts of the United States in trials at common law. By another
Act of Congress,[Footnote: _Ibid_., § 914.] the practice,
pleadings, and form and mode of proceeding in civil causes, other
than those of equity and admiralty jurisdiction, in the Circuit
and District Courts are to conform as nearly as may be to that
followed in the State within which these courts may be held.

The State laws which are thus made a rule for the United States
courts are the law of the State as it is understood and applied
in its own courts. Hence the construction of a State statute, or
the doctrines of the common law in a particular State, if
definitely settled by the courts of that State, must be followed
in subsequent litigation in the federal courts. Where, however,
a State court has taken a certain position as to what the law is,
and afterwards changes its position, the federal courts are not
compelled to change with it, if this would do injustice to one
who has meanwhile acted on the faith of the original
ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports,
20, and see argument of Daniel Webster in Groves _v._
Slaughter, 15 Peters' Reports, 449, 489.]

Nor are the federal courts, in large questions of a commercial
nature, bound always to accept the opinion of a State court as to
what the common law of the State may be. The manner in which
this doctrine has been evolved is an interesting example of the
manner in which law develops by litigation, and new points are
struck out in a single case as the joint product of lawyer and
judge.[Footnote: See Chaps, XVII, XVIII.]

A bill of exchange drawn in Maine on one Tyson, a merchant in New
York, and bearing his acceptance, was indorsed over to one Swift,
who took it in good faith before it fell due, in payment of a
pre-existing debt. He sued Tyson upon it in the Circuit Court of
the United States in Maine. If his rights were as good as if he
had paid value for it at the time he received it, he was entitled
to recover. If not, his action failed; for the acceptance had
been obtained by fraud. It was made in New York. The judicial
decisions of that State, contrary to the prevailing opinion as to
what was the general common law rule, seemed to favor the view
that a pre-existing debt did not stand on as good a footing as a
present payment, in support of a claim upon negotiable paper.
Samuel Fessenden of Portland, a lawyer of great ability, was his
counsel. The cause was submitted on briefs, without oral
argument. Mr. Fessenden, admitting that the law of the place
where acceptance was made must govern the obligations of Tyson,
insisted that the New York decisions were wrong in principle and
ought not to be regarded.

  "If," said his brief, "there is any question of law, not local,
  but widely general in its nature and effects, it is the present
  question. It is one in which foreigners, the citizens of
  different States in their contests with each other, nay, every
  nation of the civilized commercial world, are deeply
  interested. By all without the United States this Court is
  looked to as the judiciary of the whole nation, known as the
  United States, whose commerce and transactions are as widely
  diffused as is the use of bills of exchange.... How can this
  Court preserve its control over the reason and affections of
  the people of the United States; that control in which its
  usefulness consists, and which its own untrammeled learning and
  judgment would enable it naturally to maintain; if its records
  show that it has decided-as it may be compelled to decide if
  the construction referred to, advocated on the part of the
  defendant, is established-the same identical question, arising
  on a bill of exchange, first one way, and then the other, with
  vacillating inconsistency?"

Mr. Dana, for Tyson, maintained the opposite view with equal
ability. "In coming together," he said, "from the respective
States, the framers of the Constitution, and our representatives
in Congress after them, must be regarded as having had in view
the language, laws, and institutions of the States which they
represented."

Mr. Justice Story gave the opinion of the court. Referring to
the provision in the Judiciary Act (now U. S. Revised Statutes,
Sec. 721) above mentioned, on the construction of which the case
must turn, "It never," he remarked, "has been supposed by us that
the section did apply, or was designed to apply, to questions of
a more general nature, not at all dependent upon local statutes
or local usages of a fixed and permanent operation, as, for
example, to the construction of ordinary contracts or other
written instruments, and especially to questions of general
commercial law, where the State tribunals are called upon to
perform the like functions as ourselves, that is, to ascertain
upon general reasoning and legal analogies, what is the true
exposition of the contract or instrument, or what is the just
rule furnished by the principles of commercial law to govern the
case.... The law respecting negotiable instruments may be truly
declared in the language of Cicero, adopted by Lord Mansfield in
Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great
measure, not the law of a single country only, but of the
commercial world. _Non erit alia lex Romæ, alia Athenis, alia
nunc, alia posthac, sed et apud omnes gentes, et omni tempore,
una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson,
16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.]

This opinion had been submitted to the court for the first time
during the evening before it was delivered.[Footnote:
_Ibid_., 23.] It could not have received any very close
scrutiny. It relied on no authority except that of Cicero, for
Lord Mansfield, in the case of Luke _v._ Lyde, was speaking
of the law of the sea, which in the nature of things no one
nation can prescribe or change. It was not easy to reconcile it
with precedents cited by Mr. Dana, in one of which Mr. Justice
Chase of the same court had held on the circuit as early as 1798
that the United States had no common law of their own, and that
the "common law, therefore, of one State is not the common law of
another; but the common law of England is the law of each State,
so far as each State has adopted it; and it results from that
position, connected with the judicial act, that the common law
will always apply to suits between citizen and citizen, whether
they are instituted in a Federal, or State, Court."[Footnote:
United States _v._ Worrall, 2 Dallas' Reports, 384, 394.]
So the Supreme Court itself had said, in 1834, in a famous
judgment, concurred in by Mr. Justice Story himself, that "it is
clear, there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent States; each of which may have its local usages,
customs and common law. There is no principle which pervades the
union and has the authority of law that is not embodied in the
constitution or laws of the union. The common law could be made
a part of our federal system only by legislative adoption. When,
therefore, a common law right is asserted, we must look to the
State in which the controversy originated."[Footnote: Wheaton
_v._ Peters, 8 Peters' Reports, 658.]

The State courts have looked upon the doctrine announced in Swift
_v._ Tyson with an unfriendly eye. In some, its authority
is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna
and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18
Atlantic Reporter, 503.] In none will it affect the disposition
of a cause turning upon its own law, and not pending in the
federal courts. It has, however, been repeatedly reaffirmed by
the Supreme Court of the United States, though the later
decisions appear to limit its effect to questions growing out of
commercial transactions not wholly confined to a single
State.[Footnote: Western Union Telegraph Co. _v._ Call
Publishing Co., 181 United States Reports, 92. See Article on
the Common Law of the Federal Courts, by Edward C. Eliot,
_American Law Review_, XXXVI, 498.]

The right of recovery on a cause of action of a commercial nature
will therefore often depend on the court which the plaintiff
selects. If he sues in a State court, the common law of the
State, as the judicial authorities of that State declare it to
be, will be applied; if he sues in a court of the United States,
the common law of the State as the judicial authorities of the
United States declare it to be. Each tribunal will profess to
decide by the same rule--the law of the State; but the federal
court will really apply the common law of England, as it is
generally understood to be, instead of the common law of that
State as it is locally understood to be.

The relations between the federal and State courts which have
been described obviously present many occasions for conflicts of
authority. That such conflicts are so infrequent is mainly due
to a spirit of comity, which the judges of each sovereignty
should and generally do show to those of the other. The federal
courts are also prohibited by Act of Congress from issuing any
injunction to stay proceedings in a State court, except in
certain cases arising under the bankruptcy laws. Independent of
any statute, however, the general principles of jurisprudence
forbid any direct attempt either by a court of the State to
control the action of a court of the United States or by a court
of the United States to control the action of a State court,
except to the limited extent for which provision is made in the
national Constitution.[Footnote: Diggs _v._ Wolcott, 4
Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's
Reports, 279.] Each court, this exception aside, exercises
powers belonging to an independent sovereign, and therefore
subject to control by that sovereign only.

The equitable jurisdiction of the courts of the United States
enables them to interfere in disputes arising out of State
elections in certain cases in which the claim is set up that
rights held under the Constitution or laws of the United States
have been violated. Actions for such relief are rare, and
instances have occurred in which the remedy has been abused for
political purposes.[Footnote: See the proceedings in the case of
Kellogg _v._ Warmoth in the United States Circuit Court in
Louisiana in 1872. McPherson's "History of Reconstruction,"
100-108.]

The centralizing and nationalizing tendencies which set in early
in the nineteenth century and were so greatly strengthened by the
course of events during and following soon after the Civil War
have greatly weakened the position and influence of the State
courts. They have thus rendered the State bench less attractive.
In 1791, John Rutledge, an associate justice of the Supreme Court
of the United States, resigned that office for the Chief
Justiceship of South Carolina. During the last half century,
several Chief Justices of States have resigned to become
Associate Justices of the Supreme Court of the United States.
Associate Justices of Supreme Courts in the smaller States have
also frequently resigned to accept the position of District
Judge, attracted by the life tenure, larger salary, and retiring
pension.

            *       *       *       *       *



                     CHAPTER XI


      RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES


Every State has all the rights of an independent sovereign,
except so far as its sovereignty is limited by the Constitution
of the United States. As respects each other the States are for
most purposes in the position of foreign governments. The courts
of one are regarded by those of any other as foreign courts,
except so far as the Constitution may have prescribed a different
rule.

No legal process from a court can have any inherent force outside
of the territorial boundaries of the government in which it is
issued. The law of that government may attach certain
consequences to the fact of its service in a foreign country, but
it can do so only with reference to the effect of the proceeding
on persons or property subject to its own jurisdiction. Courts,
as a general rule, can act only when they have jurisdiction over
the person, the subject-matter, and the cause.

In rare cases, jurisdiction over the subject-matter may be
regarded as giving jurisdiction over the person, so far as may be
necessary to uphold a judgment settling the possession or title
to property. Such a proceeding is, either in form or substance,
one not _in personam_ but _in rem_. The commonest
instance is a suit in admiralty to enforce a maritime lien, such
as that given by the universal law of the sea for seamen's wages.
Wherever the vessel is found, this lien is recognized and will be
enforced by seizing and selling her, but only after some kind of
public notice has been given to all who have any pecuniary
interest in her to appear and be heard. In such a suit, personal
notice to her owners, served within the jurisdiction of the
government to the courts of which the seamen may resort, is not
indispensable. The presence of the ship within the power of the
court is enough.

While State courts have no admiralty jurisdiction, they can
adjudicate upon a claim of title or right of possession to fixed
property within the territorial limits of their State, although
the parties adversely interested are not and have not been
personally served with process there or anywhere. Here again
their power over the property necessarily implies such power of
control over those who might lay claim to it as will suffice to
settle any dispute over its ownership or possession. But in all
ordinary cases they are not only powerless to subject any one to
obedience to their judgments who is not personally within the
State in which they exist, but powerless so to subject one who is
personally within it, but who did not belong there and was not
there served with process in the original proceeding leading up
to the judgment, unless he voluntarily took part in the
proceeding.

In most civilized nations there is a recognized form of
proceeding by which a judgment of a foreign court, fairly
rendered after giving a proper opportunity to the defendant for a
hearing, can be enforced by process from a domestic tribunal.
This is styled making the foreign judgment executory. The
English common law did not recognize such a right, and gave no
remedy to one desiring to enforce a foreign judgment, except that
of bringing a fresh suit. In like manner, whoever has recovered
a judgment against an inhabitant of any State, in a court held
outside of that State, can enforce it against him in his own
State only by bringing a new action. This either is, or is in
the nature of, the common law action of "debt on judgment"; and
only two defenses are available. These are, first, that no such
judgment exists or is in force; and, second, that if it exists,
it was rendered by a court having no jurisdiction over the
subject-matter or the defendant.[Footnote: Pennoyer _v._
Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine
Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was
jurisdiction, it is of no consequence that it was erroneously or
unfairly exercised. The remedy for that must be sought in the
State where the judgment was pronounced. Even fraud on the part
of the plaintiff in procuring it, though a defense against a
judgment of a foreign country is not one against a judgment of
another State.[Footnote: Christmas _v._ Russell, 5 Wallace's
Reports, 290.] These rules are established by Art. IV, Sec. I of
the Constitution of the United States and by Acts of Congress
passed to enforce it.[Footnote: U. S. Revised Statutes,
Sec. 905.]

Commercial intercourse between the different States is so great
and so constant that questions in the courts of one often arise
which turn on the law of another. Those who do any act do it
with implied reference to the law of the place where it is done,
so far as respects its legal consequences. If it is a wrongful
act there, it will in most instances be deemed a wrongful act
everywhere. If it leads to a certain result as regards property
rights there, it will ordinarily give a right of action anywhere,
to secure the benefit of that result.

The law of each State is largely an unwritten common law. Even
in those where they have full codes defining civil rights, these
codes are expressed in terms for the definitions of many of which
the common law gives the rule. But this common law is not
precisely the same in any two States. In minor points certainly,
and perhaps in capital ones, there will be a divergence. In
England there is one uniform common law. Here, divided as we are
for most business purposes into forty-five different
sovereignties, it is multiform.

If, then, the court of one State in determining the legal effect
of a transaction having its seat in another must be governed by
the common law of that State, where is it to be found?  If there
have been decisions of its highest courts in regard to what it is
with reference to the point in question, they will ordinarily be
accepted as conclusive.

This is not by virtue of the provision in the Constitution of the
United States that full faith and credit is to be given in each
State to the public records and proceedings of the others. That
refers to the effect of public records and proceedings upon the
rights of those who are or claim under parties to them. Such
decisions as those which have been described are accepted as
conclusive as to the rights of those who were not parties to
them, and simply because they are considered the best evidence
attainable of a rule of unwritten law of general application.
But they are not universally so considered. The rule that
transactions are governed by the law of the place where they have
their seat is one founded on the presumed intent of the parties
to them. But in fact the parties to a business transaction act
on their general notions of what the law is or must be, rather
than on any particular knowledge of what courts have declared
that it is. The rule that one country will accept the opinion of
the judicial authorities of another as to what its law is, is one
not to be pressed so far as to sacrifice essential justice. In
this point of view, some courts hold that it is permissible to
disregard decisions of other States which are based on a
departure from what is generally considered a settled doctrine of
the common law as to a commercial question. This is
substantially the same position taken by the Supreme Court of the
United States, and elsewhere described,[Footnote: See Chap. X.]
concerning the right of a federal court to refuse to be bound by
State decisions as to the unwritten law affecting foreign trade
or trade between the States.[Footnote: Faulkner _v._ Hart,
82 N. Y. Reports, 413, 423.]

Another rule of practice of great importance is that in the
absence of proof to the contrary the courts will presume, in a
State basing its jurisprudence on the English common law, that
the unwritten law of any other American State is the same as its
own. As the reason of this rule fails in the case of Louisiana,
Florida and Texas, which were subject to organized governments
not derived from Great Britain at the time when they were
incorporated into the United States, it is not applied to
them.[Footnote: Norris _v._ Harris, 15 California Reports,
253.]

Decisions of a court constitute a precedent of binding obligation
only within the particular territorial jurisdiction which is
subject to its process. In the tribunals of one State decisions
rendered in another on legal points are, so far as respects
transactions not governed by its local law, without any
authoritative force. They may be read, just as the opinions of
an author expressed in a legal treatise, or as the decisions of
an English or German court might be, for what they appear to be
worth. No formal proof that they were really the deliverances of
the court from which they purport to emanate is necessary to
support their use for this purpose.

The reported decisions of courts of other States, whether
published officially or unofficially, may be cited in argument in
any cause, to fortify the claims of counsel as to the proper
rules to be followed in reaching a decision. For this use they
are introduced simply for the intrinsic value of the reasoning
and conclusions.

If it is claimed that they prove the law of the State from which
they come to be of a certain nature (and that is a material point
in the case), they should be made the subject of proof before
argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports,
1.] In many States this is dispensed with by statutes allowing
courts to take judicial notice of all reported decisions in other
States; that is, in effect, to take any means which they think
proper to learn what they are. It is also the general practice
of the bar where no such statutes exist to allow the reports of
other States to be read for any purpose without objection.

Most States have statutes to facilitate the proof in court of the
statute laws of other States. The mode prescribed by Act of
Congress (Revised Statutes, Sec. 905) under the constitutional
provision, to which reference has been made, involves
considerable expense for the proper certification of copies.
Common provisions of State legislation are that all courts may
take judicial notice of the laws of other States (that is, take
them into account without any formal proof at all), or that a
copy of the official publications containing them shall be
competent evidence of what they are.

There is a certain spirit of comity to which courts often give
expression in rendering assistance to courts of other countries.
This judicial comity has been defined as "the deference commonly
paid by the courts of one jurisdiction to the laws or proceedings
of another, in causes affecting rights claimed under such laws or
proceedings."[Footnote: "Dict. of Philosophy and Psychology,"
_Comity_.] As between courts of the different States in the
United States this sentiment naturally is particularly strong.
In pursuance of it, it is usual, if there has been a judicial
appointment in one State of a representative of the law to
administer an estate of any kind, part of which is in another
State, for the courts of the latter to give him such further
powers or appointment as may be necessary to put in his
possession or control whatever is within their jurisdiction. An
administrator of the estate of a deceased person would thus be
appointed, almost as a matter of course, administrator of such
estate in whatever State property or rights of action belonging
to it might be found. A receiver appointed by a court of equity
to take possession of property would ordinarily, in like manner,
be appointed to the same office wherever any part of such
property might be situated; and in some States such an officer
has been permitted to sue for it under his original appointment.
The general doctrine, however, is that a receiver in chancery
(that is, a receiver appointed by a court of equity) is simply an
arm of the court which appoints him, and has no authority to act
outside of the territorial jurisdiction of that court.[Footnote:
Hale _v._ Allinson, 188 U. S. Reports, 56.]

A receiver of an insolvent corporation often finds that it has
shareholders living in several different States, who have not
fully paid in their subscriptions to its capital stock. In such
case, if the statute of the State under the laws of which it was
incorporated provided for the appointment of a receiver for
insolvent corporations of that character, he may be regarded in
other States as one to whom each shareholder, in legal effect,
promised to pay such part of his subscription as had not been
previously paid to the corporation itself. On this theory of
liability, a foreign receiver has a right of action by virtue of
his official position, indeed, but not because of authority from
a foreign court to use that position for such a purpose. He sues
as one to whom the shareholder promised to make a payment, and on
a direct contract between the two, which is implied by
law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47
Atlantic Reporter, 711; 84 American State Reports, 161.]

The sentiment or rule (for from being a sentiment it has risen to
be a rule) of comity between States both aids in the enforcement
in one of rights acquired under the other,[Footnote: Finney
_v._ Guy, 189 U. S. Reports, 335, 346.] and in the
prevention by one of acts which would infringe on prohibitions
created by the other. Thus, if a corporation of one State has
been organized to do business in another, it may be enjoined in
its home State from amalgamating with a corporation of the other,
contrary to the public policy of the other as declared by its
courts.[Footnote: Coler _v._ Tacoma Railway and Power Co.,
70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]

As no legal process can be effective outside the limits of the
sovereignty by authority of which it is issued, no court of a
State can summon before it witnesses not found within its
jurisdiction, who live in another State. This, in view of the
free intercourse and trade between all parts of the United
States, would work intolerable hardship had not statutes been
passed by every State permitting testimony to be taken outside of
its limits by written deposition for use in civil cases.

So far as criminal causes are concerned, this mode of relief
generally cannot be pursued, owing to the common provision in our
State Constitutions that the accused must be confronted by the
witnesses against him. Most of the Northeastern States, to meet
this difficulty, have passed statutes requiring their citizens
when summoned by a local magistrate at the request of a court of
another State to appear and testify before it in such a
prosecution, to do so upon receiving payment for their time and
expenses, on pain of a considerable pecuniary
forfeiture.[Footnote: New Hampshire inaugurated this legislation
more than sixty years ago. Public Stat., ed. 1842, 382. Most of
the statutes apply only to adjoining or neighboring States, and
some require reciprocity on their part.]

            *       *       *       *       *

Lawyers of one State have no right to practice in any other. By
courtesy and on motion of a member of the bar, it is customary
for the courts of other States to allow them to participate in
the conduct of any particular cause. In some States, lawyers who
have removed their residence into them from another may in the
same manner be admitted to their bar; in most there is a standing
rule on the subject which requires proof of their having
practiced in the courts of their original State for a certain
number of years, and otherwise provides for an examination into
their legal attainments.

            *       *       *       *       *



                     CHAPTER XII


                    TRIAL BY JURY


To have a trial by jury is, as a general rule, the right of every
man who sues or is sued in court on a cause of action not of a
kind to be disposed of in a court of equity or admiralty. The
American colonies did not all adopt this mode of procedure at
first, and few of them ever practiced it precisely on the English
plan. In the colony of New Haven there were no juries. In all
the New England colonies, later, there were juries, but verdicts
in civil causes had not the conclusive force given them by the
common law. The defeated party had what was styled the privilege
of a review. This was a new trial before another jury, either in
the same court or a higher one. If he lost his case again, it
was the end of the litigation. If he gained it on the second
trial, the other party could demand a third, and the event of
that decided the cause forever.[Footnote: Bissell _v._
Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]
In criminal prosecutions a similar right was sometimes conceded
to the defendant in case of conviction.[Footnote: Statutes of
Connecticut, ed. 1715, p. 131.] South of New England there was
no such radical departure from the common law, but there were
before the Revolution variations of considerable
importance.[Footnote: The _Federalist_, No. LXXXIII.]

Instead of sending a case before an ordinary jury, the court has
power, at the request of the parties, to direct a special jury to
be summoned to hear it. This is seldom asked or granted unless
the matter in controversy is of peculiar importance and
difficulty. Such a jury is more carefully selected, with the
assistance of the parties, so as to make it sure that it will be
composed of men exceptionally competent to decide a cause and
such a cause. They are generally paid a larger compensation than
ordinary jurors receive, the parties furnishing the additional
sum required. Prepayment of these sums may be and often is made
a condition of granting a trial before such a jury.[Footnote:
Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports,
621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports
Annotated, 911.]

The requirement of unanimity on the part of the jury in civil
causes, which we have inherited from England, is indefensible in
principle. In practice, it has saved the institution from
destruction. No one would feel himself safe if a majority of
twelve men, of no special training in the study of legal rights,
could strip him of his property. But among that number of
persons there can hardly fail to be one or two of superior
character and intelligence. These, with the aid of the judge, if
he be one who fulfills properly his part of the proceeding, can
generally lead the rest to a just conclusion. If the verdict is
for the plaintiff, they may have to yield to some compromise as
to the amount of damages. Not infrequently this has been arrived
at by calling for the separate estimates of each juror, adding
them together and dividing them by twelve. It is a rough way,
and not the fairest, but the wiser heads may consent to it to
secure the concurrence of the weaker.

In criminal cases, the importance of a verdict to the defendant
is so great that unanimity may well be required. While there is
a legal presumption that he is innocent until found guilty, this
in practice is of little avail to him with the jury. They know
from their every-day observation of affairs that there are few
prosecutions which reach the final stage of a trial on the
merits, under which there ought not to be a conviction.

In several States verdicts in civil causes by a three-fourths
vote are permitted. This radical change is not likely to become
general.

Its best defense is that temptations to corruption are thus
removed. So long as one juror, by refusing to concur with the
rest, whether with or without reason, can prevent a verdict,
there will be defendants seeking to prevent the recovery of what
they know to be a just demand, who will be ready to buy a vote.
In 1899, seven of the bailiffs in attendance on the Chicago
courts were accused of lending themselves to such negotiations,
and twenty men who had been jurors confessed that they had either
taken or been offered bribes.[Footnote: Report of the New York
State Bar Association for 1904, 51.]

The Anglo-American jury is unique because it is nothing unless
unanimous, and because it may render a general verdict, stating
no reasons for the decision, on which a general judgment, save in
exceptional cases, is entered as of course.

In the early judicial history of the American colonies juries
were less under the control of the judge than they are
now.[Footnote: See Chap. XIV.] In some colonies they received no
instructions as to the law, the chance of an unjust decision
being guarded against in civil cases, as previously stated, by an
absolute right in the losing party to claim a new trial before
another jury.

The general tendency of judicial practice in later years has been
to emphasize the influence of the judge upon verdicts. This
often extends to directing a verdict, peremptorily, for one party
or the other, when the law is clear upon the facts claimed or
admitted. Still more often it takes the shape of a caution as to
the weight that can properly be given to certain testimony, or an
opinion as to what really are the controlling sources of
evidence. Without the guidance of an intelligent judge, a jury
would frequently come to unfortunate and even unjust conclusions.
That there should be such guidance is an essential part of the
jury system, and it is generally given most effectually where the
judges are the ablest and the most independent.

The judge has at common law and by practice in most American
States a right in his charge to comment on the evidence and
intimate his opinion as to the weight which should or should not
be given to any particular testimony. It is a right to be
cautiously exercised, for juries are greatly influenced in their
conclusions by remarks of that character. They feel that he is
the head of the court, and there is a certain sentiment of
loyalty to him as well as of respect for any one occupying the
position in which they find him placed by the authority of the
State. Sometimes this power is abused. The judge desires to
indicate a decided opinion. He fears that if he put it in plain
words it might seem so strong as to indicate partiality, and
furnish ground of appeal. He therefore uses language, perhaps in
reference to the credibility of a witness, which looks fair and
even colorless on paper, but by the tone or emphasis in which
some vital word is uttered, or with the aid of a shrug or glance,
carries to those whom he is addressing an unmistakable conviction
that he means it to be taken in a certain sense. Any such
judicial action, however, is rare, and would be looked upon with
disapprobation by the bar.[Footnote: See Metropolitan Life
Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68
Northeastern Reporter, 4.]

If the case is one which has been pressed by counsel especially
upon the sympathies of the jury, such as a suit arising out of a
labor strike, or by a widow to recover for an injury resulting in
her husband's death, it is customary for the court to caution
them in their charge that justice and not sympathy is their rule
of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation
Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter,
765.]

The American colonies were settled at a time when the English
criminal code was extremely harsh, and the English judges were
disposed to administer it in such a way as to favor the crown.
If the government promoted a prosecution, there was little hope
for the defendant, except from the jury. The courts held that on
criminal proceedings for publishing a libel it was for them to
say whether the paper was libellous, and for the jury to decide
only as to its publication by the accused. This was the occasion
of the Charles James Fox Libel Act of 1792, and of many
constitutional provisions to the same effect in this country,
under which juries, even in libel cases, can render a general
verdict of Not Guilty.

It was under the influence of these ideas, and in view of the
fact that the colonial judge often knew no more law than the
jury, that it became common in this country either to give a jury
in a criminal cause no instruction as to the law at all or to
charge them that they were judges both of the law and
fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
258, 401.] In some of the States, a charge to the effect last
stated is now sometimes required by statute.

A jury trial is a poor mode of doing justice, if there is a rule
of law which, as applied to certain facts, should control the
verdict, unless that rule of law be both stated by the judge, and
so stated as to impress upon the jury that it is their sworn duty
to apply it, if the facts which they may find to exist are such
as to come under its operation. That they should be so
instructed, even if declared by express statute to be the judges
both of the law and the facts, is the prevailing opinion of
American courts and jurists.[Footnote: Commonwealth _v._
Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
U. S. Reports, 51, 71.]

It is of especial importance that the duty of juries to take the
law from the court should be clearly stated to them in a country
of written Constitutions. Most crimes are defined by statute.
It is easy for the defendant's counsel to claim that the statute
on which the prosecution is based is unconstitutional. If it be,
the accused is entitled to an acquittal; but if the jury acquit
him on that ground, and the ground is false, injustice is done.
Any such claim must be disposed of by the court, in order to give
the Constitution its due supremacy.[Footnote: State _v._
Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
American State Reports, 30.]

Mr. Justice Baldwin of the Supreme Court of the United States
came to the bench, in 1829, strongly inclined to minimize the
power of the federal judiciary. In one of his first cases on the
circuit, he charged the jury in a capital case that they were
judges of both law and fact, and if they were prepared to say
that the law was different from what he had stated it to be, were
not bound by the opinion of the court.[Footnote: United States
_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
before he found himself compelled to retreat from his position.
A man was being tried before him for forging notes of the United
States Bank, and his counsel claimed an acquittal because the law
incorporating the bank was unconstitutional, reading to prove it
the veto message of President Jackson, with the accompanying
documents. To the Jackson Democrats on the panel this was quite
an imposing argument, and Mr. Justice Baldwin was obliged in his
charge to sound the warning that for a jury to exercise the power
of treating an Act of Congress as invalid was virtually to give
us a country without a Constitution and without laws.[Footnote:
United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
Pennsylvania Law Journal for November, 1846, p. 9.]

In one of the Southern States where it is a statutory right to
demand instructions that the jury are the judges of the law, it
was the custom of a certain trial judge of commanding presence,
when called upon to give them, to say to the jury after he had
done so, rising to his full height, "But, gentlemen, you must
recollect that I have told you what the law that governs this
case is, and to this I am the only witness who has appeared or
could appear."

It was one of the acute observations of Alexander Hamilton that
under our American Constitutions judges are less to be relied on
by one who is attacked by the government, because those who
direct the government are the choice of the people, and whatever
they do is presumably popular. The judiciary, he said, was less
independent here than in England, and therefore we had the more
reason to cling to the trial by Jury and their power to render
general verdicts as our greatest safety.[Footnote: People
_v._ Croswell, 3 Johnson's Cases, 337, 353.]

The States which guard these most closely are those in which
there is the most jealousy of anything like a standing order, and
the widest scope of popular election. Georgia was the State,
among the old thirteen, in which these characteristics were most
marked. Her first Constitution of 1777 expressly threw the power
of determining the law into the hands of the jury in every case,
though they were allowed to ask the judges holding the court for
their opinion, in which case each judge gave his in rotation.
The party who lost his case could demand a new trial before a
special jury. The ordinary jury were to be sworn to bring in a
verdict according to law and the evidence, provided it be not
repugnant to the Constitution. The special jury were to be sworn
to bring one in according to law and the evidence, "provided it
be not repugnant to justice, equity, and conscience, and the
rules and regulations contained in this Constitution, of which
they shall judge." Apparently the meaning of this was that while
the decision of the first jury as to the law could be revised by
a second, that of the second, however contrary to the highest
law, could not be.

            *       *       *       *       *

Resort is occasionally had to the assistance of a jury by a court
of chancery for the better disposition of some disputed question
of fact on which the equities of the parties depend. This cannot
(except by force of some express statute) be claimed as a matter
of right. The judge sends the issue to a jury for trial only if
he thinks it would be helpful to him, but their verdict has no
conclusive effect. He can adopt it or ignore it, at his
pleasure.

            *       *       *       *       *

The selection of jurors is a long process. The general plan is
to commit to some local authorities in each city, town, or county
the choice of a considerable number out of the inhabitants whom
they may think suitable to serve in that capacity; then to have
that list revised by some higher officials or persons specially
appointed by the courts for the purpose, who must strike out a
large part of the names; and finally to have those who are to be
summoned to attend any particular term of court for jury duty
chosen by drawing from the remaining names by lot. In many
States special qualifications as to age, education, and
intelligence are required. Out of the jurors thus summoned to
attend the court, there is a further choice by lot of those to
try each particular case, subject to objections made by either
party to any thus drawn, for proper cause.

The statutes of the United States provide that jurors in the
Circuit and District Courts shall be selected in each State from
those qualified to serve in its highest trial courts, and in
substantially the same manner.

            *       *       *       *       *

The right to a jury trial is in civil actions often waived by
both parties, in which case the facts as well as the law are
determined by the judge. If not expressly claimed, it is by the
rules of practice in some States treated as waived. The number
of civil causes tried to the jury, taking the country as a whole,
is declining. The decline is generally found to be quite
accurately proportioned to the confidence felt by the bar in the
ability and independence of the judge,[Footnote: See Paper by
Justice Henry B. Brown, in the American Bar Association Report
for 1889, p. 265, on "Judicial Independence."] or perhaps to that
confidence in the case of a former generation. Tradition and
custom have a large influence on whatever pertains to the
practice of law. In several of the States a majority of the
civil causes which might be tried to the jury are not: in
Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
in England is also toward dispensing with the jury in ordinary
civil trials. Over a million cases are brought every year in the
English county courts, and in not one in a thousand of them is
there a jury trial, although if the matter in demand is over £5
in value either party may claim it.[Footnote: Maitland, "Justice
and Police," 28, 29, 54. For small cases the jury is one of
five, but their verdict must be unanimous.]

Criminal trials, except in case of trivial offenses, it is
generally necessary to hold before a jury, by express provisions
of the Constitution.[Footnote: See Cooley, "Constitutional
Limitations," 389.] During the colonial era the defendant was
allowed in Massachusetts to waive a jury, even in capital
cases.[Footnote: Proceedings of the Colonial Society of
Massachusetts, VI, 95.] Statutory permission to the same effect
has since been given in some States where there is no
constitutional provision to the contrary.[Footnote: State
_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
the right to demand a jury in petty cases has been restricted in
a number of States.[Footnote: In New Hampshire, for instance, a
constitutional amendment was passed in 1877 denying it in cases
involving less than $100, unless title to land is involved.]

At common law the judges were accustomed and allowed to put great
pressure upon juries, if necessary, to force them to unite in
rendering a verdict. They could be kept together without food or
beds all night, and even carted about from one court town to
another until they were ready to report an agreement. Very
little of this practice remains in the United States. In some
States they are allowed to separate and go to their homes at
night during the trial even of a capital case, and while
deliberating over their verdict they are generally supplied with
food and other comforts.

The right of trial by jury was limited at common law to trials of
what are called "issues of fact;" that is, of the truth of a
statement of material facts made by one party and denied by the
other. If, therefore, in a civil cause a judgment has been
ordered for the plaintiff without a verdict, as where the
defendant has failed to appear and answer, it is for the court to
say for the recovery of what amount of damages the judgment shall
be rendered. It may inquire into this by the aid of a jury, but
such a jury need not consist of twelve. The inquiry may also be
conducted by the judge alone.[Footnote: Dyson _v._ Rhode
Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,
771.]

In most of our States this common law practice has been
abandoned, and damages, in cases of the kind above described,
would be assessed by a jury of twelve. This is because otherwise
a defendant who did not dispute his liability for the act
complained of and only wished to reduce the amount of damages
claimed in the writ might, after declining to appear and plead,
come forward with a motion to be heard by the court on the
question of damages. A motion of that kind would naturally be
granted, and the effect would be to transfer the decision of the
only actual controversy between the parties from a jury to a
judge. In Connecticut the old practice was maintained until
1907, and the courts held that on the hearing as to the damages,
in actions where there had been no contract between the parties
to fix the rule of assessment, the defendant might show, if he
could, that only nominal damages should be given, because really
the plaintiff had no cause of action at all.[Footnote: Lennon
_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
334.] The result was that many suits arising out of railway
accidents in that State were brought against the company in fault
in other States in which process could be served to compel its
appearance, and where a full jury trial could be secured. The
legislature finally interposed and gave the plaintiff a right to
claim a trial by jury, notwithstanding a default.[Footnote:
Public Acts of 1907, 665.]

            *       *       *       *       *



                    CHAPTER XIII


            FORMALITIES IN JUDICIAL PROCEDURE


The sessions of a court of record of general jurisdiction are
daily opened by a formal proclamation made, at the command of the
judge, by the crier or sheriff's officer in attendance. In many
States the ancient English style of expression has been
preserved, which dates back to the Norman conquest, and begins
with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
often closed with such words as (for instance) "God save the
Commonwealth of Rhode Island and Providence Plantations." The
adjournment from day to day is announced in a similar but less
elaborate manner.

Many courts hold a certain number of stated "terms" annually, the
first day of which is fixed by statute, and each of which is
adjourned whenever the business that may come before it is
finished, lasting sometimes but a few days and sometimes months.
In a number of States such terms are opened by prayer offered by
a minister of religion, invited in for the purpose by the sheriff
or court attendant. No regular chaplain is employed, and one
term may be opened by a Presbyterian minister and the next by a
Roman Catholic priest.

In some of the smaller counties in Massachusetts the sheriff or
his deputy daily escorts the judge to and from the court house,
in accordance with what has been the usage from colonial times.

Formerly it was the practice in New England to ring the bell of
the principal church in the town daily at the hour when court
opened.[Footnote: This was continued in Connecticut until the
last quarter of the nineteenth century.]

In many courts it is the custom for all present to rise on a
signal from the sheriff or marshal when the judge enters the
court room to take his seat on the bench. This is the general
usage in the federal courts and in the appellate courts of
States. In the latter a formal proclamation is often made by the
sheriff to announce the coming of the judicial procession,
concluding with a "God save the Commonwealth." In some States
formal bows are interchanged between bench and bar as the judges
take their places, after which the court is opened by the
customary proclamation and the bar then requested by the judges
to resume their seats.

The rules of official precedence are strictly observed in
appellate courts. In entering the court room the chief justice
advances first, and his associates follow in the order of the
dates of their commissions, the senior associate justice taking
his seat on his right, the second in seniority on his left, the
third in seniority on the right of the senior associate justice,
and so on; the junior in commission occupying the end seat on the
left of the bench.

The members of the Supreme Court and of the Circuit Court of
Appeals of the United States have always worn black silk gowns.
The members of the Supreme Court of South Carolina have worn them
from a time antedating the Revolution. The New York Court of
Appeals in 1877, at the request of the bar, preferred through
David Dudley Field, adopted the practice,[Footnote: In 1903 it
was extended to _nisi prius_ courts held by justices of the
Supreme Court.] and the same thing has since been done by
appellate courts in several other States. In one of these,
Massachusetts, they had been worn in the colonial era. About
1760, Chief Justice Hutchinson introduced gowns and cassocks
there on the Supreme bench, and also gowns, bands, and tie-wigs
for lawyers who were admitted as barristers of the Superior
Court.[Footnote: "Life and Works of John Adams," II, 133, note,
197.] The latter soon abandoned these, but gowns were retained
by the judges until 1793.[Footnote: Publications of the Colonial
Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
I, 261, note.] In North Carolina gowns and bands were worn by
the members of the Supreme Court in 1767.[Footnote: Proceedings
of the Colonial Society of Massachusetts, VI, 389.] In New
Jersey, the bar were at one time required to assume them by a
rule of the Supreme Court, but the rule was vacated in 1791.

At the first opening of the Supreme Court of the United States,
in 1790, Chief Justice Jay wore a gown with salmon-colored
facings on the front and sleeves, of the style then used by
Doctors of Laws created by the University of Dublin, from which
he had received that degree.[Footnote: 134 U. S. Reports,
Appendix.] It has not since, in that or any other American
court, been the practice for judges to wear academic hoods or
other decorations on the bench.

            *       *       *       *       *

Counsel, in addressing the court, rise and begin with "May it
please the Court," "May it please your honor," or, before a court
in bane, "May it please your honors." The term "you" would never
be used to a judge on the bench; but that of "your Honor" would
be employed.

Great pains is taken by the officers in attendance to prevent
anything on the part of the audience that could in any way
disturb the proceedings, such as loud conversation or unnecessary
moving from place to place.

There is a good deal of antique form in the manner in which,
under the direction of the clerk, prisoners are arraigned and
juries are made up or "impanelled" for the trial of a cause.

In charging a jury, the judge commonly rises and the jury do the
same.

When sentence is pronounced on a conviction for crime the
prisoner is required to rise. In cases of capital offenses, he
is asked by the judge if he has anything to say why judgment of
death should not be pronounced against him. It is highly
improbable at that stage of the cause that he should have
anything to urge which has not been already considered, but the
ancient English practice in this respect is still followed, for
it is not absolutely impossible that something may have occurred
since the verdict that would affect the judgment.

            *       *       *       *       *



                     CHAPTER XIV


              TRIAL COURTS FOR CIVIL CAUSES


The great bulk of litigation is confined to the civil trial
courts, that is, to courts for the trial of ordinary causes
between man and man. It also has its seat in the trial courts of
the States, for not only is the judicial power of the United
States confined by the Constitution within narrow limits, but
these have been made still narrower by the action of Congress
from time to time.

Most lawsuits never get to trial. The defendant generally has no
defense, and is well aware of it. The suit is brought to obtain
security or force a settlement. He employs no lawyer and lets
things take their course. The result is a judgment against him
for default of appearance; for if one who has been duly summoned
to court to answer to a demand fails to attend and answer, the
court assumes that there is no answer that he could make, and
disposes of the cause on such evidence as the plaintiff may
produce. On the other hand, the plaintiff often does not care
for a judgment. He has become satisfied that, if he got one, he
could not collect it, or he has availed himself of the suit to
secure a compromise of the matter in demand on satisfactory
terms. In such case, or if, after bringing an action, he becomes
convinced that he cannot maintain it, he withdraws it, or if the
defendant insists, suffers a judgment to go against him, called a
nonsuit.

In some States the writ or process by which the action is begun
must be accompanied by a full statement of the particular nature
of the plaintiff's claim. In others this is not required, and
such a statement is only furnished when specially ordered by the
court. If the case goes to trial on the merits, it will be on
such a statement furnished by the plaintiff, and on some paper
filed by the defendant by way of answer. Occasionally these
pleadings, as they are called, are such as to call out further
statements or claims by way of reply and rejoinder. Their form
is now generally regulated by statutes, and is much the same in
most of the States, being based upon a system known as "Code
Pleading," which originated in New York about the middle of the
nineteenth century. It is simpler and less technical than the
system under the common law which it replaced.

If the defendant has any objections to the maintenance of the
suit, on such a ground as that it is brought in a wrong court, or
a wrong way, these are first disposed of. Then, if he asserts
that the plaintiff on his own showing has no case, or if the
plaintiff asserts that the defense set up is insufficient on its
face, this being a question of law, the judge decides it without
the aid of a jury. When, however, the facts are in dispute, a
jury must be called in, if either party claims it, in an action
not of an equitable nature, when the matter in controversy is one
of any considerable amount.

In this country we adhere to the old common law mode of taking
exceptions to the legal sufficiency of written pleadings. This
was by filing a paper called a "demurrer," in which the
particular objections were set out, unless, as was frequently the
case, they were so fundamental as to be apparent at the first
glance. In many States, however, the objections must always be
particularized. In England demurrers are no longer used. Her
Judicature Act of 1873 put an end to the common law system of
pleading, reconstituted her whole method of judicial procedure,
and authorized the judges to make rules and orders from time to
time to adopt the new scheme to convenience in practice. One of
their orders, passed in 1883, abolished demurrers. In place of
them, the party desiring to have the benefit of points of law
arising on the face of the pleadings may state his point to the
court and ask to have it set down for separate argument before
proceeding to a trial of the cause on the facts. American
lawyers are not satisfied with the reasons which led to this
change. They were that the old practice made it a matter of
right to claim a special hearing on a law point, while the new
order would leave it to the discretion of the judge. The English
judges are few and able. Such a plan may work satisfactorily
under their administration, but it might often lead to useless
delays and expense if introduced in a country where judges are so
numerous and of such different qualifications as is the case in
the United States.

Our trial courts are now generally held by a single judge. Until
the latter half of the nineteenth century it was not uncommon to
have three judges sit together in county or city courts. One of
them would be a lawyer and the others not.[See Chap. VIII.] In
cities the two side judges were generally aldermen. A tribunal
thus constituted is better adapted in some respects to trying
questions of fact than a single judge. It is a jury of three
acting by a majority. But for the conduct of a jury trial it is
unwieldy, slow-moving and uncertain. In most cases any question
of law or legal practice will be virtually decided by the
presiding judge, but he will usually pause to go through the form
of consulting his associates. Occasionally they will overrule
him, and in such case it will be apt to be by a misunderstanding
or misapplication of law. The expense of three judges, however
moderate the compensation, has also weighed in favor of an
abandonment of the system. It naturally results in paying too
little to the chief judge, and too much to the others; and always
costs more than it would to pay one man a sufficient salary.

We have not the need of several judges to hold a trial court,
which is felt in many countries. They use them for a purpose
which our juries supply. For similar reasons Americans have not
seen any occasion for organizing special courts, such as are the
German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
try special classes of causes. A jury of twelve will be apt to
contain some men who will adequately represent those interested
in any ordinary industrial or commercial controversy.

Petty suits not of an equitable nature must generally be brought
before a justice of the peace, who disposes of them himself, both
as to matters of evidence and fact, but subject to an appeal to a
higher court in which a jury trial can be had. In some States he
can summon in a jury of six and leave the facts to their
determination. The pleadings before him are usually in the same
form as in the higher courts.

In jury trials of civil causes the judicial function is, so far
as possible, divided into two distinct parts. All questions of
pure law are decided by the judge alone. All questions of pure
fact are decided by the jury alone. All questions turning on the
application of the law to the facts are decided by the jury under
instructions from the judge as to what applications of the law it
would be competent for them to make under the particular
circumstances which they may find to have existed. The judge
also has a large discretionary power in minor matters arising in
the course of the suit. It is for him to say when it shall be
tried; whether the written pleadings are in proper shape, and if
not whether they may be amended; and in what order and within
what limits the evidence may be introduced.

No countries in the world have so artificial a set of rules of
evidence as England and the United States. This is because in no
other country is the right to a jury trial so extensive. Many of
these rules date back to the early history of the English common
law. It was a time of general illiteracy. The ordinary juror
could not read or write. His powers of reasoning and
discrimination had had little or no cultivation. It was thought
dangerous to allow him to listen to any evidence that was not of
the clearest and best kind. It was thought necessary to bring
all witnesses in person before him and let him hear their voice
and look into their faces in order to give him the fullest
possible opportunity to determine whether their testimony was
worthy of credit. But while our rules of evidence were devised
for jury trials, they are applied with equal rigidity in all
trials. A jury may be waived; a single judge may hear the cause;
and yet he must rule out of consideration whatever would have
been inadmissible if it had been made the subject of a jury
trial.

Much that in other countries is helpful in reaching a just
conclusion is in this manner shut out in American courts. A man
of the highest character, for instance, may say before twenty
listeners that he saw a certain person shoot and kill another,
and state how the whole thing happened. The person thus accused
is sued for damages under a statute permitting such a remedy by
the representatives of the man shot. Before the trial the
witness of the act dies. He was the sole witness. There is no
other testimony to be had. Under our system of practice, those
to whom the statement was made cannot be allowed to testify to
it. Such testimony would be "hearsay." It would put before the
jury two questions, first whether such a statement was really
made, and then whether, if made, it was true. The law of
evidence says that they ought not to be perplexed by questions
upon questions.

The tendency of American legislation of late years has been
strongly toward removing some of these artificial bars to getting
at the truth. The common law thought it dangerous to allow a
jury to hear any witness not under oath, nor under such an oath
as implied his belief in the existence of a God, or any witness
having a pecuniary interest, in the event of the cause. An
atheist or an agnostic could not testify. The plaintiff and the
defendant could not. These restrictions have been almost
everywhere repealed.

The trial judge has also, and necessarily, a large discretionary
power in excluding testimony which has only a remote bearing on
the case, and in limiting or extending the examination of a
witness so as on the one hand to prevent needless repetition, and
on the other to get out the truth and nothing but the truth. He
has similar authority to restrain the arguments of counsel within
reasonable limits.

A trial judge suddenly called upon to make a ruling on some point
of law in the progress of a trial may make a wrong one. If so,
he may have an opportunity to correct it at a later stage of the
proceeding. He has admitted evidence which should have been
excluded. In his charge to the jury he may instruct them to
disregard it, and his error will thus be cured. He has excluded
evidence which should have been admitted. Before the case is
closed he can change his ruling and allow it to come in. But so
long as any ruling stands unchanged, whether it is in accordance
with law or not, it is the law of the case for the purposes of
the trial. Counsel may endeavor to procure a reconsideration of
the question, but they cannot ask the jury to adopt a different
view from that taken by the judge. Their only remedy is by a
motion for a new trial, after the verdict, or proceedings in
error before a higher court.

            *       *       *       *       *

Trial courts generally sit during a greater number of hours in
the day than appellate courts. This is particularly true when
they are held for short terms in a country shire town. In the
larger cities where they sit during a large part of the year they
generally have established hours from which they rarely depart,
such as from ten in the morning to five in the afternoon, with a
recess of an hour for lunch or dinner. Formerly nine o'clock was
a more common hour for opening court. In New York in 1829 the
sittings were from eight to three, when there was a recess of two
hours for dinner, and then from five till some time in the
evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs
of William Wirt," II, 231.]

The modern tendency everywhere is toward a shortening of the
hours of daily session, especially when an official stenographer
is employed.

The clerk keeps a docket-book in which each case returned to
court is entered and numbered. The entry reads thus:

  John Doe
      Smith

    vs.

  Richard Roe
      Jones.

Doe is here the plaintiff and Smith is the attorney who brought
the suit for him. Roe is the defendant and Jones is the attorney
who appears in his behalf. If there be more than one party on
either side the words _et al._ will be added, signifying as
the case may be, _et alius, et alii_ or et alium,_ or
should there be three or more defendants, _et als_,
signifying _et alios_.[Footnote: Another book is kept for
criminal cases, which are docketed as "The State _v._ John
Doe," in others as "The People _v._ John Doe," and in the
federal courts as "The United States _v._ John Doe."] From
this docket trial lists are made up for each term or session of
court. Assignments for trial are sometimes made by the court and
sometimes arranged by the bar subject to the approval of the
court. Several cases are commonly set down for each day, so that
if one falls out another may be ready, and in every case so
assigned the parties must be prepared at their peril to appear
and proceed at any minute when called upon.

In courts having a large docket of cases it is customary to set
apart one day in the week for the disposition of incidental
motions and for arguments on points of law.

When a case is called for trial the plaintiff's counsel opens by
stating its nature and the main facts as set out in the
declaration or complaint which he expects to prove. Sometimes
the pleadings on both sides are read at length. The plaintiff's
witnesses are then examined orally, after the examination of each
an opportunity being given for his cross-examination by the other
party. The testimony of witnesses whose attendance cannot be
had, which may include any living out of the State (or, in the
federal courts, over one hundred miles from the place of trial),
or who are infirm or sick, may be secured by previously taking it
down out of court in the form of a written deposition, under
oath, before a magistrate. In such case the adverse party must
have such notice as to enable him to be present and cross-examine
the deponent, or to file written cross-interrogatories.
Depositions are received in the same manner and subject to the
same objections as oral testimony. In cases in equity a
considerable part of the testimony is generally presented in
written form, either by depositions of the kind described or
certified by a special officer appointed by the court for the
purpose, who may be called an "examiner."

When the plaintiff's case has been thus presented, his attorney
announces that he "rests." The defendant's attorney then states
what he proposes to prove, and produces his evidence, at the
close of which the plaintiff has the opportunity to meet any
testimony so produced as to points not covered by the plaintiff's
case as presented "in chief," by rebutting testimony. Should
there be any new point brought out in the latter which the
defendant had not anticipated in presenting his case (which
rarely happens), he may now be allowed to introduce further
testimony as to that.

At the close of the evidence the plaintiff's counsel argues for
his client; the defendant's counsel replies; and the plaintiff's
counsel is then heard in answer to anything which has been said
in behalf of the other side.

If the trial has been had before a judge without a jury he then
commonly takes the written pleadings and makes up his decision at
his leisure; but if the case is plain may give final judgment on
the spot.

If the trial has been before a jury the parties argue as to facts
in dispute to them, but as to the law upon these facts to the
court.[Footnote: See Chap. XII.]

In some States the arguments on the latter question are made
before those on the former, and written requests or "prayers" for
instructions to the jury as to the law are submitted to the
court, upon which it passes before the jury are addressed. In
most States there is no such division of argument; judge and jury
are addressed in turn during the same speech, and counsel first
know what view of the law is taken by the court when the judge
gives his final charge.

In every jury trial, after all the evidence is in and the
arguments concluded, it is the duty of the court to instruct the
jury as to what the precise controversy is and what disposition
of the cause it would be permissible for them to make. If in
view of facts which are undisputed by either party there can be
in law but one conclusion, the judge should direct them to render
a verdict accordingly. But if the facts might fairly be found as
they are claimed to be by either party, he instructs them as to
the law applicable to the facts so claimed by each. He can, at
common law and by the practice in most States, give his own
opinion as to the weight of evidence on any point in controversy.

The common law requires unanimity on the part of the jury before
they can return a verdict. If it cannot be had they report a
disagreement, and the case stands over for another trial.

If they agree upon a verdict, it must, to be effective, be
accepted by the court. This acceptance is ordinarily a matter of
course, but if the verdict is plainly contrary to the evidence or
to the law as laid down in the charge, it may be set aside and a
new trial ordered. If it gives damages which are plainly
excessive, the judge may set it aside, unless the prevailing
party enters a _remittitur_ of a certain amount, that is,
formally stipulates on the record that the verdict shall stand
only for such sum as the judge may have thus indicated to be what
seems to him to be the utmost limit that ought to be allowed. In
some States, if the verdict is unsatisfactory to the judge,
though not so manifestly against the evidence that he would be
justified in setting it aside, he may return the jury to a second
consideration of the cause.

When a verdict is accepted judgment is rendered in accordance
with it. To this rule there are, however, certain exceptions.
It sometimes happens that a verdict is returned for a plaintiff
whose case as stated in his pleadings is one which in law is no
case; the defendant having failed to take this objection and made
his contest only on the facts. He then can ask the court not to
render any judgment upon it. This is technically called a motion
in arrest of judgment. Again, the verdict may be rendered, by
reason of the state of the written pleadings, on some immaterial
point, in favor of one party, when there are other points of
controlling importance in favor of the other, on which it has
been admitted that he is in the right. In such case the party
against whom the verdict is rendered may ask for judgment in his
own favor notwithstanding the verdict.

Verdicts are ordinarily given directly for the plaintiff or the
defendant. Printed blanks for such verdicts, one headed
"plaintiff's verdict," and the other "defendant's verdict," are
often handed to the jury when they retire, to choose from
according as they may find the facts. Such a verdict is called a
general verdict. Occasionally one of a different form is
returned at the request of counsel and by the permission of the
court. This is termed a "special verdict," and sets forth the
particular facts as found by the jury in detail, without finding
the ultimate issue for either party. This is only proper when
such a finding would have been simply a legal conclusion from
these facts. A special verdict leaves it to the court to apply
the law and render judgment as that requires.

In many causes the testimony is all taken out of court, before
some officer or arm of the court, who only reports his
conclusions from it as to the matters in controversy. This is a
common practice in equity, the case being sent to a "master in
chancery" for this purpose. In cases of a common law nature the
consent of both parties is generally required; but with that any
cause may be disposed of before an arm of the court commonly
termed an "auditor," "referee" or "committee."

The report of such a hearing sometimes is confined to the facts
which are found to have been established. In other cases it may
extend to a provisional decision of questions of law arising on
those facts. The ultimate decision of any question of law is
always for the court, and if it accepts the report it is its duty
to draw the proper legal conclusions from the facts established.
As to whether the report shall be accepted, and as to the legal
questions arising upon it, the parties have a right to be heard
in court. Improper or irregular conduct on the part of the
officer making the report may be shown as a cause for rejecting
it. If it is accepted the facts found generally stand as
conclusively established.

Equity causes are generally tried before a single judge, who
decides all questions both of fact and law, proceeding in the
same manner as in a common law cause in which a jury has been
waived.

            *       *       *       *       *



                     CHAPTER XV


                   PROBATE COURTS


The English common law regarded wills of lands as in the nature
of conveyances, the due execution of which, if ever called in
question in a lawsuit, was to be established then and there; but
if never so called in question, need never be established at all
by any judicial proceeding. Wills of personal property, on the
other hand, were to be proved as soon as might be before an
ecclesiastical court, and unless so established were ineffectual.

This difference in the treatment of the two kinds of wills was
due to the legal principle that so far as personal rights and
obligations were concerned the personality of the dead was, after
a certain fashion, continued in existence by attributing
personality to their estates. These were to be administered by
some one as the "personal representative" of the former owner.
This personal representative discharged his personal obligations
so, far as there might be personal estate or rights of property
sufficient for the purpose. He was styled an executor if
designated by will; an administrator if there were no
testamentary appointment. A man's lands, however, went upon his
death straight to his heirs unless he had by will conveyed them
to some one else. That when he died they were part of his estate
did not charge them with the fulfillment of his personal
obligations. For the discharge of these the creditor must resort
to his personal representative. His heirs occupied no such
position.

The administrator was always appointed by an ecclesiastical court
and rendered his accounts to it. Long use and the existence of a
State church with a regular judicial establishment, made such a
system tolerable to the English people; but the new conditions
under which those of them came who planted the American colonies
made it both intolerable and impossible here.

While most of the colonies had an established church, none had
bishops or bishops' courts. The bishop of London claimed a
certain jurisdiction over all, but in none was it recognized as
extending over the estates of the dead. In the Crown colonies
the instructions to the Governors generally referred to it as
sanctioned by the government but not as extending to the probate
of wills. Some of the Governors were given _ex-officio_
full probate powers.[Footnote: "The American Jurisdiction of the
Bishop of London," Transactions of the American Antiquarian
Society, Vol. XIII, 188, 194, 197.]

The same considerations which early led to the general adoption
of a recording system for deeds of land in all the colonies
extended to wills, since they also might convey it. Such
records, to attain their purpose, had to be public in the fullest
sense. Nothing was allowed to go upon them which had not some
kind of authoritative sanction proceeding from the State. Deeds
were first to be acknowledged before a magistrate. As to wills,
the practice finally came to be to require them to be established
once for all as the act of the testator by a court invested with
special jurisdiction for that purpose, and also over all estates
of those who die leaving no will. This, if organized for that
special function particularly, is ordinarily styled a Court of
Probate, occasionally a Surrogate's Court or Orphans' Court. It
is sometimes given, and sometimes not given, a certain authority
over the real property within the State while the estate is in
settlement.

All real estate left by a decedent is ordinarily made, by
statute, liable for his debts in case of a deficiency of personal
property, except so far as it may be charged with a right of
dower. Even if it has gone into the possession of an heir or
devisee, the proper Probate Court can order its sale for this
purpose, if it should appear on the allowance of the
administration account to be necessary.

The formal establishment or "probate" of a will does not affirm
the validity of its provisions. It simply adjudges the
instrument to be a will legally executed by one competent to make
it and who had a home or property within the territorial
jurisdiction of the court. Commonly, if not universally, an
opportunity is given, either in the first instance or by appeal
to a higher court, to have these questions tried before a jury.

The succession of particular persons to the property of the dead
is not a matter of natural right. It rests upon positive law and
is regulated by the authority of the government at its
pleasure.[Footnote: United States _v._ Perkins, 163
U. S. Reports, 625.] Probate procedure is therefore wholly
determined by local legislation and practice.

In many States, probate jurisdiction belongs to the county
courts. In others it is invested in local courts for lesser
subdivisions of territory with the purpose of cheapening the
settlement of estates. In a few these local courts are very
numerous, all the towns of the State being distributed into small
groups and each furnished with its Probate Court, the judge of
which, in many instances, has had no legal training, and receives
no compensation except stated fees for such business as may
actually come before him. An appeal is given from his orders to
a higher court of general jurisdiction. In practice such a
system works fairly well. If there are suitable lawyers in the
group of towns forming a probate district, one of them who
belongs to the prevailing party is generally made the judge if he
will accept the office, and if he fills it well is apt to be
re-elected, whichever party may then be uppermost. If a lawyer
is not appointed and a case of any difficulty presents itself,
the judge will probably consult some counsel in whom he feels
confidence, and who will be sufficiently flattered by the request
to advise him without making any charge for it.

The proper seat of administration is in the State and the local
subdivision of the State where the dead man belonged.
Proceedings there affect all his personal property wherever it
may be found, and generally his real estate situated anywhere in
the State. Real estate in another State can be affected by
probate proceedings only if they take place there, by its
authority. For that purpose "ancillary" administration is often
taken out, that is, one designed to serve the interests of the
general succession as administered in the seat of the principal
administration.

Since the right of a personal representative to act for the
estate of the dead comes from the positive law of the particular
sovereign having the proper jurisdiction, and since no law of a
particular sovereign can be enforced, by virtue of his power or
anything dependent on it, outside of his territorial
jurisdiction, it follows that no executor or administrator can of
right maintain a suit, as such, out of the State from the laws of
which he derives his authority. He may take possession of the
goods of the estate found in another State, or collect debts due
from its citizens if no objection be made, but if forced to claim
the aid of judicial process he must first prove his title there
before the appropriate Probate Court by taking out ancillary
administration, in which case he will probably be compelled to
give security for the proper discharge of his duties under such
appointment.

            *       *       *       *       *



                     CHAPTER XVI


            BANKRUPTCY AND INSOLVENCY COURTS


It is within the power of Congress to assume the exclusive
regulation of bankruptcy proceedings throughout the United
States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is
in this country no real difference in meaning between the terms
bankruptcy and insolvency. Each denotes a _status_ into
which one unable to pay his debts, as and when they fall due, may
put himself, or be put by his creditors. The remedy is not
confined to any particular classes of persons, and no more fault
is implied on the part of one who is adjudged a bankrupt than on
the part of one who is adjudged an insolvent.

During most of the history of the United States there has been no
uniform law on the subject of bankruptcy for the whole country.
Three bankrupt Acts were enacted by Congress from time to time
during the first century after the adoption of the Constitution.
Each followed some serious financial crisis, and was repealed not
long after the immediate effects of the crisis had passed away.
They were adopted as a kind of [Greek: seisachtheia] to help
insolvent debtors to get on their feet again. A later Act passed
in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large,
544; 32 _id._, 797.] and as it contains many provisions
which have been found useful by creditors as well as by debtors,
it is not unlikely to remain permanently upon the statute-books.

The prosperity of the United States rests mainly on the absolute
free trade which exists between the several States. That
necessarily results in innumerable credits extended by citizens
of one State to those of others, and in immense property
interests in each State belonging to non-residents. In case of
insolvency full justice can not be worked out except through the
legislative powers vested in the United States.

The Act of 1898 allows any one except a corporation to become a
voluntary bankrupt. Practically any insolvent debtor can be
thrown into involuntary bankruptcy, except wage earners, farmers,
incorporated banks, or business corporations owing less than
$1,000. This is so even if a State court of insolvency has
already taken charge of his affairs; and if that has occurred it
is of itself a sufficient reason for bankruptcy proceedings.

Petitions in bankruptcy are preferred to a District Court of the
United States. Each bankrupt estate is put in charge of one or
more trustees. They can maintain actions to recover or protect
it, as a general rule, in the courts of any State as well as in
those of the United States.[Footnote: See Bardes _v._ Bank,
178 U. S. Reports, 524.]

Their title does not extend to anything which by the laws of the
State where the bankrupt belongs is exempt from his creditors.
Such exemptions differ greatly in different parts of the country.
In some States certain property of the value of $5,000 may be
exempt; in others the amount which the debtor can retain is
comparatively trifling. There is, therefore, no uniformity in
the result; but there is, nevertheless, uniformity in the rule
under which the results are reached, and this is enough to
support the validity of this provision of the statute.[Footnote:
Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]

The bankrupt may propose a composition to his creditors, and it
may be accepted by a majority of them in number if they also hold
the major part of the indebtedness. If such an acceptance is
confirmed by the court the entire indebtedness is discharged when
the total amount to be paid (including whatever is necessary to
discharge all preferred claims) is deposited in court.

A discharge may be granted to every honest bankrupt (whether his
estate pays anything to his creditors or not), which clears him
forever of all his ordinary debts. It does not apply to taxes
nor to liabilities for certain wrongs of an aggravated character;
nor can two successive discharges in bankruptcy be procured
within six years unless the first was the result of involuntary
proceedings.

Whenever there has been no national bankruptcy law in existence,
the States have been held to be free to pass such insolvent laws
as they might think proper. During the existence of a national
bankruptcy law no State insolvent law can be of any force which
covers the same field.[Footnote: Ogden _v._ Saunders, 12
Wheaton's Reports, 213; Tua _v._ Carriere, 117
U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports,
709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded
or suspended as a necessary effect of the enactment of the Act of
Congress, although that contains no express provision to that
effect.

Most of the States have on their statute-books provisions for a
permanent system of insolvency proceedings. In some they are as
favorable to the debtor as the United States bankrupt law of
1898: in more they are less favorable. Generally such
proceedings are brought before a court of special jurisdiction,
constituted both for this purpose and for the settlement of the
estates of deceased persons and of those who are incapable of
managing their own affairs. In the older States it is often made
a condition of a discharge that the creditors shall have received
a certain percentage of their claims.

The relief which the States are competent to give either to
debtor or to creditor is very inadequate. The discharge of the
debtor is of no avail except as against those creditors who were
subject to the jurisdiction of the court. None are so subject
except those belonging in the State, or actually taking part in
the proceedings.

Every bankruptcy or insolvency proceeding is a great lawsuit.
The discharge is the final judgment in it. It can bind none who
are not parties to the action. Only those are parties who were
bound to appear, or who did appear. No one belonging to any
other State or country can be bound to appear, unless in the rare
case of a personal service of proper process upon him, made while
he was within the territorial jurisdiction. Any creditor,
wherever he may reside, who files a claim against the insolvent
estate, or receives a dividend from it, makes himself a voluntary
party. But as against a non-resident who keeps aloof and takes
no part in the proceedings the discharge is worthless, even in
the courts of the very State by authority of which it was
granted.

On the other hand, the creditor gets less aid from the State
courts than a trustee in bankruptcy. The trustee in bankruptcy
can sue in any court in the country in which the debtor could
have sued for the same cause of action. The trustee or assignee
in insolvency, acting under the appointment of a State court, can
only sue within that State, unless his title has been fortified
by a conveyance from the insolvent which would be good at common
law. So far as his title rests on a law, by which it was taken
away from the bankrupt and vested in him, it is ineffectual
wherever that law is ineffectual; and the law of no sovereign is
effectual of its own force outside of his territorial
jurisdiction.

*[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337;
 Hale _v._ Allinson, 188 U. S. Reports, 56.]*

If, therefore, as is commonly true in estates of any magnitude,
part of the assets can only be recovered by suit in other States,
there must be ancillary insolvency proceedings there, to clothe
the principal assignee with the right of action. Should the
insolvent be the owner of land in another State, the title to
this can only be transferred in accordance with its law, and a
foreign assignment in insolvency will be wholly ineffectual. Nor
will ancillary proceedings in insolvency be allowed to prejudice
the rights of citizens of the State in which they are instituted
to any security which they might otherwise have for debts due
them from the insolvent.[Footnote: Ward _v._ Conn. Pipe
Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers'
Reports Annotated, 706; 71 Am. State Reports, 207.] The right,
however, of every sovereignty to postpone claims under a foreign
bankruptcy or insolvency to the interests of its own people is
modified in the United States by the constitutional provision
that the citizens of each State are entitled to all privileges of
citizens in the other States.[Footnote: Blake _v._ McClung,
172 U. S. Reports, 239.]

            *       *       *       *       *



                    CHAPTER XVII


                   CRIMINAL PROCEDURE


The American system of criminal procedure rests on the principle
that the government should decide on the propriety of beginning
all prosecutions, and then should bring and maintain, at its own
expense, such as it may deem proper.

The first step ordinarily is the filing by an informing officer
of a written complaint in the office of some court or with some
magistrate, upon which a warrant of arrest issues as of course.
In some jurisdictions original informations in a trial court, as
distinguished from indictments, can only be filed by leave of
court first obtained. Such is the rule in the courts of the
United States.[Footnote: United States _v._ Smith, 40
Federal Reporter, 755.]

There is no such preliminary consultation with judicial officers
as characterizes European criminal procedure. The prosecuting
officer assumes the entire responsibility of initiating the
prosecution and of giving it the particular form that it may
assume. He commonly acts only on such matters as are officially
brought to his attention by constables or other officers of
police. It is rare that the party injured by an offense
complains to him personally. Hence many of the lesser offences
go unpunished, particularly in large cities, because the police
fail to report them, on account of favoritism or corruption.

The warrant refers to the complaint for its support. Between
them, the offense charged, the person accused, and the thing to
be done by the officer who is to make service must be
particularly stated. "General warrants," that is, warrants of
arrest or seizure, not specifying the person who is to be
arrested, nor the particular place where the seizure is to be
made, are expressly forbidden by the fourth amendment of the
Constitution of the United States as respects federal courts, and
as respects those of the States, are generally prohibited by
their Constitutions.

Any private individual may, by night or day, arrest without
warrant one whom he sees committing a felony or a breach of the
peace or running off with goods which he has stolen. If he knows
that a felony has been committed and has reasonable grounds for
suspecting that it was the act of a certain person, he may arrest
the latter, although without personal knowledge of his guilt.

A sheriff, constable, or other peace officer may arrest without
warrant any one whom he has reasonable ground for suspecting to
be guilty of a felony, although it may turn out that no such
felony was ever committed. For any ordinary misdemeanor he could
not, at common law, arrest without a warrant, unless he
personally witnessed the wrongful act or was near enough to hear
sounds indicating what was being done.

In practice, officers of local police arrest freely on mere
suspicion and with no personal knowledge either that any offense
has been committed or that, if any, the person taken in charge
was connected with it. The only risk which they run is of an
action for damages, and that is slight. If one were brought and
they showed that they acted in good faith and not wholly without
cause, the amount recovered would probably be very small, and in
any case it would be difficult to collect a judgment against one
of them, as they are generally men of small means.

In some of the original States a justice of the peace or higher
magistrate, in whose actual presence certain misdemeanors were
committed, could deal with the offender summarily and sentence
him to a fine without any written complaint or warrant. This was
a survival of colonial conceptions of the majesty of official
station, and the statutes justifying the practice soon became
practically obsolete.

It is one of the distinguishing features of the English system of
criminal procedure that any private individual can initiate a
criminal prosecution, and that prosecutions are generally
instituted in that manner. In doing so, he exercises a right
belonging to every member of the general public, and the
proceeding is, in that point of view, a public one.[Footnote: See
Maitland, "Justice and Police," 141.] At common law there were
but two guaranties against thus bringing forward frivolous or
malicious accusations. The complainant was obliged to verify his
charge by oath, and he was liable to a civil action if the
defendant was acquitted and it appeared that there was no
reasonable ground for the prosecution.

In some of our States, also, if any private individual files a
complaint under oath before a proper magistrate accusing another
of a properly specified offense, a warrant of arrest may issue.
In many there are statutes authorizing _qui tam_ actions to
be brought by any one. These are actions to recover a statutory
penalty prescribed for some wrongful act in the nature of a
misdemeanor. The term _qui tam_ comes from the Latin terms
of the old English writ used for such proceedings, in which the
plaintiff describes himself as one _qui tam pro domino rege
quam pro seipso in hoc parte sequitur_. The plaintiff is
styled "a common informer," and his action is for the joint
benefit of himself and of the State, or of some other public
corporation or officers designated by the statute. He is
sometimes given an option to sue in the form of a civil action,
or by an information and the use of criminal process. In
proceedings of the latter description a warrant issues upon which
the defendant is liable to arrest.[Footnote: Canfield _v._
Mitchell, 43 Conn. Reports, 169.] The action may, under some
statutes, be brought in the name of the government, though by and
at the cost of the informer. In such case, unless it is
otherwise provided, he retains the exclusive management of the
cause as fully as if he appeared as the sole plaintiff on the
face of the record. If the plaintiff obtains judgment, and
collects the penalty, he must pay half of it over to the
government. If he fails, he is personally liable to the
defendant for the taxable costs of the action. Under such a
statute, a public prosecuting officer can sue for the entire
penalty, whenever no action has been brought by a private
individual.

The tendency of modern American legislation is toward placing the
collection of penalties for misdemeanors wholly in the hands of
public officers. The _qui tam_ action is certainly a cheap
mode of enforcing laws, and one likely to be pressed to a prompt
issue. As observed by the late Judge Deady, "prosecutions
conducted by such means compare with the ordinary methods as the
enterprising privateer does to the slow-going public
vessel."[Footnote: United States _v._ Griswold, 24 Federal
Reporter, 361; 30 _id_., 762.] But they appeal to sordid
motives and are liable to abuse. One who is exposed to such a
suit often gets a friend to bring it, in order to forestall
proceedings by others or by the State, and with a view to
delaying or defeating the collection of the penalty. These
considerations induced Parliament to restrict the remedy in
England as early as the reign of Henry VII, and have proved of
equal force in course of time in the United States.

Justices of the peace and local municipal courts of criminal
jurisdiction are generally given power to deal finally with a few
petty offenses, subject to a right of appeal to a court where a
jury trial can be had. As to all others, their function is, when
the warrant of arrest has been executed, to inquire whether there
is probable cause for holding the defendant to answer to the
charge which has been made against him in a higher court, and if
they find that such cause exists, to order him to give sufficient
security that he will appear before it for trial. The question
is not whether the evidence satisfies them of his guilt, but
simply whether it is sufficient, in their judgment, to make it
proper to send him where the charge can be more thoroughly
investigated by those who have the right to condemn or to acquit.
In making this inquiry, they hear both sides, if the defendant
has any testimony to offer. In most States he is now a competent
witness in his own behalf, provided he desires to testify.

He cannot be interrogated in any court or before any magistrate
without his consent. This is a weakness in the American system
of criminal procedure. Under the English system of prosecutions
by private persons, there are greater objections to subjecting an
accused person to an examination, and it can now only be had by
his consent.[Footnote: Maitland, "Justice and Police," 129.] The
certainty in England also that criminal prosecutions may in any
case be subjected to the power of a public officer by the
interposition of the Attorney-General or the Director of Public
Prosecutions makes it more important to safeguard a defendant who
may be arraigned for a political offense, and whose prosecution
may be inspired by reasons of a partisan nature. The magistrates
upon whom the task of conducting or superintending the
examination would naturally fall are also largely both
representative of class interests and unlearned in the law.

In the United States local prosecutors are often of a different
party from that which controls the State or the United States.
They have no close connection with those administering the
general affairs of the government. They hold office for fixed
terms, not dependent on any shifting of parliamentary majorities
or change of ministry. Committing magistrates are in a similar
position. They are also in many cases trained lawyers. If our
Constitutions could be so modified or so construed as to allow
them to ask the accused the questions that the sheriff who makes
the arrest or the reporter who hurries after him to the jail is
sure to ask, there are many reasons for believing that it would
oftener prove a safeguard to innocence than an occasion for
extorted and perhaps inconsiderate or misunderstood admissions.
And be that as it may, it would certainly lead up to important
clues, and frequently bring out admissions that were both
unquestionably true and necessary to establish guilt.

The fifth amendment to the Constitution of the United States, and
similar provisions in the various State Constitutions, preclude,
so long as they stand, any radical reform in this direction.
They speak for a policy that was necessary under the political
conditions preceding the American Revolution, but which is out of
harmony with those now existing in the United States. The
interests of society are greater than those of any individual,
and yet it is with us the State that is deprived in public
prosecutions of an equal chance with the accused. While burdened
with the necessity of proving his guilt beyond a reasonable
doubt, it cannot, according to the prevailing judicial opinion in
this country, so much as ask him at any stage of the prosecution
where he was at the time when the crime charged was committed.

The terms of our Constitutions are not such as necessarily to
demand the construction which has been generally given them by
the courts. They have been commonly interpreted with a view to
making them as helpful as possible to the accused.[Footnote: Boyd
_v._ United States, 116 U. S. Reports, 616.] Provisions
against compelling him to testify have been treated as if they
forbade requesting him to testify. They would seem, on
principle, quite compatible with a procedure under which the
committing magistrates should in every case ask the defendant
when first brought before them whether he desires to make a
statement, telling him at the same time that he can decline if he
chooses. Should he then make one, it should be written down at
length in his own words, read over to him for his assent or
correction, and properly attested. Many a guilty man is now
acquitted whose conviction could have been secured on what such a
paper would have disclosed or have given a clue to ascertaining.
Such an inquiry has long been the English practice.

The hearing before the committing magistrate, if any contest is
made, generally does not take place until some time after the
arrest. Each party is apt to wish time to prepare for it.
Meanwhile, the defendant can generally claim the privilege of
release on bail, unless the crime be capital and the
circumstances strongly point to his guilt. Here our practice
differs from that of an English court of inquiry. While there
bail must be allowed in case of misdemeanors and may be in case
of felonies; the amount required is frequently so large as to be
prohibitory.[Footnote: Maitland, "Justice and Police," 131.]

The essence of bail is that the prisoner should enter into an
obligation, together with one or more others of pecuniary
responsibility as his sureties, to appear whenever he may be
called for in the course of the pending proceeding, on pain of
forfeiting a certain sum of money. All our Constitutions forbid
the taking of excessive bail. The sum should be large enough to
give a reasonable assurance that he will not allow it to be
forfeited. In fixing the amount, which in each case is left to
the good judgment of the officer before whom it is taken, special
regard should be had to the gravity of the offense, the nature of
the punishment in case of conviction, and the means of the
defendant or his friends. If too large an amount is demanded,
the defendant can get relief on a writ of _habeas corpus_
issued by some superior judge.

This privilege of bail in most States extends to, or at the
discretion of the court may be allowed at, any stage of a cause,
not capital, even after a final judgment and sentence, provided
an appeal has been allowed with a stay of execution.

Bail is given orally or in writing, according to the practice of
the particular State. When given orally, it is termed a
recognizance. This is entered into by the personal appearance of
those who are to assume the obligation before a proper magistrate
or clerk of court, and their due acknowledgment before him that
they do assume it. He makes a brief minute of the fact at the
time, from which at any subsequent time he can make up a full
record in due form. When bail is given in writing, the
obligation is prepared in behalf of the government and executed
by the parties to it.

Whoever gives bail as surety for another is by that very fact
given a kind of legal control over him. He can take him into
actual manual custody without any warrant, and against his will,
for the purpose of returning him to court and surrendering him to
the sheriff. This right is a common law right, arising from the
contract of suretyship, and is not bounded by State lines. If
the principal absconds from the State, the surety can have him
followed and brought back without any warrant of arrest.

The amount of the bail, should it be forfeited, is payable either
to the government or to some other representative of the public
interests, as may be prescribed by statute. If the sureties have
any equitable claim to relief by a reduction of the amount, there
is often given by statute or judicial practice a right to the
court in which the obligation was given or before which its
enforcement is sought to grant a reduction from the sum which
would otherwise be due upon it.

When a committing magistrate requires the defendant to give bail
to appear in a higher court, and he does not give it, he will be
committed to jail to await his trial there. In this court he is
sometimes tried on the complaint upon which he was originally
arrested: oftener a new accusation is prepared. This may be
either an information or an indictment.

At common law, no one could be tried for a felony unless a grand
jury were first satisfied that there was good ground for it. The
grand jury consisted of not more than twenty-four inhabitants of
the county, and in practice never of more than twenty-three,
summoned for that purpose to attend at the opening of a term of
court. To authorize a prosecution the assent of twelve of them
was required. They heard only the case for the prosecution, and
heard it in secret, after having been publicly charged by the
court as to the nature of the business which would be brought
before them. The court appointed one of them to act as their
foreman, and he reported back their conclusions in writing, and
in one or the other of two forms--by presentment or indictment.

A presentment was a presentation, on their own motion, of an
accusation against one or more persons. They were the official
representatives of the public before the court, and it might well
be that offenses had occurred, and become matters of common
notoriety, prosecutions for which no one cared or dared to bring.
Such a proceeding was comparatively rare.

The common course was to pass only on such written accusations as
others might submit to their consideration. These were called
bills of indictment. If the grand jury believed that there were
sufficient grounds for upholding any of them, their foreman
endorsed it as "A true bill," and it then became an indictment.
If, on the other hand, they rejected a bill of indictment as
unfounded, the foreman indorsed it as "Not a true bill," or with
the Latin term "_Ignoramus_," and this was the end of it.

The organization and functions of the American grand jury are
similar, except that here we have prosecuting attorneys to
procure the presence of the necessary witnesses and direct the
course of their examination. In the Federal courts almost all
criminal accusations, great or small, are, and by the fifth
amendment to the Constitution of the United States all charges of
infamous crimes must be, prosecuted by presentment or indictment.
In most of the States the intervention of a grand jury is
requisite only in case of serious offenses; in some only in
capital cases. It is obvious that it is less needed here than in
England, since here it is not within the power of any private
individual to institute criminal proceedings against another at
his own will, but they are brought by a public officer
commissioned for that very purpose and acting under the grave
sense of responsibility which such authority is quite sure to
carry with it. The grand jury, however, has its plain uses
wherever political feeling leads to public disorder. It has
also, since the Civil War, been found an effective restraint in
some of the Southern States, whether for good or ill, upon
prosecutions for violations of certain laws of the United States,
brought against members of a community in which those laws were
regarded with general disfavor.

Prosecutions by information are those not founded on a
presentment or indictment. The information is a written
accusation filed in court by the prosecuting officer. In certain
classes of cases, the leave of the court must be first asked in
some jurisdictions. It is not necessary that it be supported by
any previous statement or complaint under oath. The officer who
prepares it acts under an oath of office, and that is deemed
sufficient to give probability to whatever charges he may make.

If the defendant has already been bound over by a committing
magistrate, such an information may take the place of the
original complaint on which the arrest was made. If he has not
yet been arrested, or if he was arrested and discharged by such a
magistrate, the filing of an information is accompanied by a
request for the issue of a warrant for his arrest from the court.
Such a paper is called a bench warrant, and is granted whenever
necessary, whether upon a presentment, indictment, or
information.

An information may be amended by leave of the court at any time.
A presentment or indictment cannot be. They, when returned to
court, are the work of the grand jury, and they end its work. An
amendment of a legal process can logically be made only by the
hand which originally prepared it. This rule leads to the escape
of many a criminal. If prosecuted by indictment, the case
against him must be substantially proved--in whole or part--as
there stated, or he goes free. Prosecuting officers therefore
naturally prefer to proceed upon information whenever the law
permits it.

The intervention of a grand jury is also often the necessary
cause of a delay alike prejudicial to the State and to the
prisoner. It can only be called in when a court is in session,
by which it can be instructed as to its duties and to which it is
to report its doings. Months often elapse in every year when no
such court is in session. For this reason, in case of a poor man
under arrest on a charge of crime, who cannot furnish bail, it
would often be much better for him were his liability to be
brought to trial to be settled promptly by a single examining
magistrate. At the hearing in that case also he has a right to
be present and to be heard. Before a grand jury he has no such
right.

In most States, the great majority of indictments are against
those who have already been committed on a magistrate's warrant
to answer to the charge, should an indictment be found. The
accused thus has two chances of escape before he can be put on
trial for the charge against him: one by a discharge ordered by
the committing magistrate, and one by the refusal of the grand
jury to return "a true bill." A grand jury is more apt to throw
out a charge as groundless than a single magistrate. He feels
the full weight of undivided responsibility. If he err by
discharging the prisoner, he knows that it may let a guilty man
go free, untried. If he err by committing him for trial, he
knows that, if innocent, the jury are quite sure to acquit him.
He acts also in public. The whole community knows or may know
the proofs before him, and will hold him to account accordingly.
On the other hand, in the grand jury room all is secret. The
prosecuting attorney, if admitted, does not remain while the
jurors are deliberating over their decision. No one outside
knows who may vote for and who against the return of an
indictment. Every opportunity is thus afforded for personal
friendship for the accused or business connection with him to
have its influence. Judges know this, and in their charge often
emphasize the importance and gravity of the duty to be performed.
In 1903, the prosecuting officer in one of the small counties in
Kentucky had prepared indictments against several men of some
local prominence for arson and bribery. A special grand jury was
summoned to act upon them. There was reason to expect some
reluctance on the part of several. Of the witnesses for the
State some were no less reluctant. There was great public
excitement in the court town. One witness came there over ninety
miles by rail hidden, for fear of his life, in a closed chest in
the car of an express company. The grand jury were told by the
court that they must make their inquiry a thorough one and indict
without fear or favor every person in the county who ought to be
indicted. "If," the judge added, "the evidence calls for
indictments and you don't make them, they will be made anyway.
If you do not do your full duty, I will do mine by assembling
another grand jury." They did theirs under these stirring
injunctions, and the indictments were promptly found.

After the indictment or information comes the arraignment. This
is bringing the defendant before the court and, after the charge
made against him has been read, directing him to plead to it.
Before the plea is entered, if he has no counsel, he is asked if
he desires the aid of one, and if he responds that he does (or
should he not, if the court thinks he ought to have counsel),
some lawyer will be assigned to that duty. Some of the younger
members of the bar who are present are generally desirous of
being so assigned to defend those who have no means to employ
such assistance. The court ordinarily makes the assignment from
among their number, but in grave cases often appoints lawyers of
greater experience and reputation. No one who is so assigned is
at liberty to decline without showing good cause for excuse. A
small fee is often allowed by statute in such cases from the
public treasury. Statutes are also common providing that
witnesses for the defense may be summoned at the cost of the
government, if the defendant satisfies the court that their
testimony will be material, and that he is unable to meet this
expense.

In the federal courts, in capital cases, the defendant must be
furnished with a copy of the indictment and a list of the jurors
summoned to court and of the government witnesses, at least two
days before the trial.

Whether impanelling the jury for the trial of a case is a long or
short process will depend largely on the intelligence and
firmness of the judge who holds the court. Each side can
challenge a certain number of the jurors in attendance without
stating any reasons for it, as well as any and every one of them
for cause shown. If a juror has formed an opinion as to the
guilt of the accused so definite as to amount to a settled
prejudice against him, he is incompetent. In grave cases the
prisoner's counsel will often seek to examine every juror whose
name is drawn at great length as to whether he has such an
opinion. A capable judge will keep such an inquiry within close
limits.

In 1824, an indictment for murder was found in Kentucky against a
son of the Governor. The case was one which excited great public
interest, and was talked over from one end of the State to the
other. The result was that when the trial came on it was found
impossible, term after term, to make up a jury of men who, from
what they had heard or read, had not formed what the defense
claimed and the court thought to be a sufficiently firm opinion
as to the guilt or innocence of the accused to justify their
exclusion. The legislature was finally appealed to for relief
and passed a statute that an opinion formed from mere rumor
should not be a ground of challenge. The case was then, in 1827,
taken up for the ninth time, but with the same result, whereupon
the defendant's father gave him a pardon, on the ground that "the
prospect of obtaining a jury is entirely hopeless," and that he
had "no doubt of his being innocent of the foul
charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,
336.]

When a capital case is coming on, great pains will often be taken
by the prisoner's counsel to ascertain the characteristics and
disposition toward his client of each of the jurors who have been
summoned to court. This has sometimes been carried to the extent
of trickery, particularly in some of the Southern States. Agents
have been sent over the county to see every man capable of jury
service. There is some ostensible reason given for the call. He
is perhaps asked to buy a photograph of the accused; perhaps to
contribute to a fund to provide him with counsel. This naturally
leads to some expression of opinion in regards to the charge made
against him, and if the man thus "interviewed" should be
afterwards offered as a juror, he is challenged or not challenged
according to the information so obtained.

In every criminal case the defendant's guilt must be proved
beyond a reasonable doubt. A mere preponderance of evidence is
not enough. In other respects the rules of evidence are
applicable which obtain in civil cases.

If a verdict of Not Guilty is returned, the court orders the
discharge of the prisoner, as a matter of course, unless
provision has been made by statute for an appeal by the State for
errors of law committed on the trial. No such appeal can be
allowed for the purpose of obtaining a new trial on the ground
that the jury came to a wrong conclusion on the facts. This
would be to put the defendant twice in jeopardy, which our
Constitutions generally forbid. Even under the practice
prevailing in the Philippine Islands, where they have no juries,
and an appeal to a higher court for a new trial on the merits has
always been allowed to either party in a criminal case, as a
matter of right, this rule is held to apply.[Footnote: Kepner
_v._ United States, 195 U. S. Reports, 100.]

If the verdict is one of Guilty, the sentence is pronounced by
the judge. He generally has a broad discretion as to the extent
and nature of the punishment. For many offenses, either fine or
imprisonment or both may be imposed, according to his best
judgment. For most, when imprisonment is ordered, it may be for
a term such as he may prescribe within certain limits, as, for
instance, from one to five years. In a number of States of late
years the judge is permitted in such a case to sentence for not
less than one year, and it is left to some administrative board
to determine later how much, if any, longer the confinement shall
last, in view of the circumstances of the offense, the character
of the prisoner, and his conduct since his sentence.

A considerable and increasing group of penologists is pressing
upon our legislatures the extension of the principle of the
"indeterminate sentence" by removing the limit of a
_minimum_ term. It is doubtful if such a change would
satisfy the constitutional requirement of a trial by jury. That
in its nature involves a trial before a judge and a sentence
imposed by the court upon the verdict. Can that be deemed a
judicial sentence to imprisonment which is a sentence to
imprisonment during the pleasure of certain administrative
officials?  Judgments are to ascertain justice. To do this they
must be themselves certain. In a purely indeterminate sentence
there is no certainty until it has been made certain by the
subsequent action of the administrative authorities. It may turn
out to be imprisonment for life, and the advocates of this mode
of action frankly say that such ought to be the disposition of
all incorrigible and habitual criminals. If so, ought not the
fate to be meted out to them by judicial authority?  Can anything
less than that be considered as due process of law?

An experienced and able judge seldom makes any serious error in
grading the punishment of offenders who have been tried before
him. The sentence is not pronounced until they have been fully
heard as to all circumstances of extenuation, nor until the
government has been heard both as to these and as to any
circumstances of aggravation. The sentence, if the offense be a
grave one, cannot be pronounced except in the presence of the
convicted man. He has an opportunity for the last word.

Judges who are neither able nor experienced frequently impose
sentences too light or too severe. We have too many such judges
in the United States. The real remedy for the evil is to choose
better ones. As between judges and boards of prison officers or
of public charities, the judge always has the great advantage of
having tried the case and heard the witnesses. He ought
therefore to be best able to fix the term of punishment.

The punishment to which one can be sentenced on a conviction of
crime is now generally limited to fine or imprisonment. For
graver offenses both may be inflicted: for murder, and in some
States for a very few other crimes the penalty is death. The
policy of the older States long was to require those whose
offenses were directed against property to make good the loss of
the injured party. Whipping was also often added, and it was
formerly a common mode of punishment throughout the country for
all minor offenses. Every colony used it. It was authorized by
the original Act of Congress in 1790 on the subject of crimes,
and was not abolished for the courts of the United States until
1839. It was provided for in the early statutes of most of the
States, and in some still is. Until 1830, it was the only mode
of corporal punishment allowed in Connecticut for the general
crime of theft. For boys it is often the only punishment that
can properly be administered. To fine them is to punish others.
To imprison them is, in nine cases out of ten, to degrade them
beyond recall. Virginia, in 1898, reverted to it as an
alternative to fine or imprisonment in the case of boys under
sixteen, provided the consent of his father or guardian be first
given. Such a statute seems absolutely unobjectionable from any
standpoint. It is often asserted that whipping is a degrading
and inhuman invasion of the sanctity of the person. To shut a
man up in jail against his will is a worse invasion. But as
against neither is the person of a criminal convict sacred. He
has justly forfeited his right to be treated like a good citizen.
Whether whipping is a degradation or not must depend much on the
place of its infliction. The old way in this country, as in
England, was to inflict it in public. This puts the convict to
unnecessary shame. Let him be whipped in private, and his only
real degradation will be from his crime. So inhumanity is
needless. A moderate whipping only should be allowed. That is
far more humane to most men than a term of jail; that is, it
detracts less from their manhood than the long slavery of
confinement.

Of late years there has been a decided movement in the United
States toward a return to the penalty of whipping for atrocious
cases of assault or offenses by boys.[Footnote: See Paper on
"Whipping and Castration as Punishments for Crime," _Yale Law
Journal_, Vol. VIII, 371, and President Roosevelt's Message to
Congress in December, 1904.] It is probable that it will find
more favor hereafter in the South as a punishment for negroes.
Most of their criminals are of that race. The jails have no
great terrors for them. They find them the only ground where
they can mingle with their white fellow-citizens on terms of
social equality. But they are sensitive to physical pain. A
flogging they dread just as a boy dreads a whipping from his
father, because it hurts. The South may have been held back from
applying this remedy in part from the apprehension that it might
be considered as reinstating the methods of slavery. No such
criticism could fairly be made. Confinement in jail is
involuntary servitude, and involuntary servitude is slavery.
Whipping is a substitute for it: it saves from slavery.

In several of the Southern States, instead of imprisonment,
ordinary offenders are set at work in the open air, either on
convict farms, or in chain gangs on the highway, or in the
construction of railroads or similar works. This plan prevails
in Georgia and Arkansas to such an extent that very few are
confined in the penitentiary. The convicts in these States are
mainly negroes. When, as has been at times permitted, they have
been turned over to private employers to work in this manner for
wages paid to the State, many of the abuses of slavery have
reappeared, and public sentiment is becoming decidedly adverse to
the allowance of such contracts for convict labor. Similar
objections do not lie in their employment on State farms, and in
North Carolina and Texas this has been tried with considerable
success.[Footnote: See "Bulletin de la Commission Pénétentiaire
Internationale," 5th series, II, 179.]

Special courts have been organized, or special sessions of
existing courts directed, for the disposition of prosecutions
against children in several of the States and in the District of
Columbia during the past few years. The judge holding such a
"Juvenile Court" or "Children's Court" is expected to deal with
those brought before him rather in a paternal fashion. An
officer is generally provided, known as a Probation Officer, to
whom the custody of the accused is largely committed both before
and after trial. He is to inquire into each case and represent
the defense at the hearing. In case of conviction, the child
can, on his advice, be released on probation, or the sentence can
be suspended.

For errors of law committed by the judge in the course of the
trial the defendant commonly has a right of appeal. Until 1891
this was not true in the federal courts, and a man convicted and
sentenced there under an erroneous view of the law and in
disregard of any of his rights had no remedy, even in a capital
case. It was so in Delaware until 1897.

In some States there is a right of appeal in favor of the
government as well as of the defendant for errors of law, and
this even after a jury trial ending in a verdict of acquittal.
It is there held that the common constitutional provision that no
man shall be put twice in jeopardy of life or limb is not
contravened by the allowance of such a remedy. The writ of error
is a stage in the original prosecution. One acquitted of crime
is deemed not to be put out of jeopardy unless he has been
acquitted according to the forms of law, and after a trial
conducted according to the rules of law. What these rules are,
in case of dispute between the government and the accused, must
be determined by such proceedings in the cause as the legislature
may deem best adapted to ascertain them in an authoritative
manner. Such a mode may properly be furnished by allowing a
resort to a higher court, and a resort in favor of either
party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
_J_., in People _v._ Olcott, 2 Day's Reports, 507,
note.] In other States such a review, in favor of the
government, of the conduct of the cause is only supported when
the exceptions taken are founded on what may have preceded the
trial.[Footnote: People _v._ Webb, 38 California Reports,
467.] This distinction is approved by the Supreme Court of the
United States.[Footnote: Kepner _v._ United States, 195
United States Reports, 100, 130.]

For errors in conclusions of fact the defendant, in certain
cases, has a remedy on a petition for a new trial, but in no case
can the State ask for one. This is true even though the trial
was not had to a jury.

There is no doubt that new trials are too often granted in the
United States in favor of those who have been convicted of crime.
Particularly is this true when they are ordered because of some
irregularity of procedure or slip in the admission or exclusion
of evidence. A verdict, whether in a civil or criminal case,
should stand, notwithstanding it was preceded by erroneous
rulings or omissions of due form, unless the court of review can
see that substantial injustice may on that account have been
done.[Footnote: See Paper on "New Trials for Erroneous Rulings
upon Evidence," by Professor J. H. Wigmore, in the _Columbia
Law Review_ for November, 1903.] To release a convicted
criminal for error in mere technicalities not really affecting
the question of his guilt tends to make the people lose faith in
their courts and resort to lynch law as a surer and swifter mode
of punishment.

Appeals in criminal causes are, however, much rarer and also much
less often successful than is generally supposed. About eleven
thousand persons were convicted of felonies in the County Courts
of New York during the five years from 1898 to 1902, inclusive of
each, and of these less than nine in a thousand pursued an
appeal, not a third of whom secured a judgment of
reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
for March, 1904.] In Massachusetts, about a hundred thousand
criminal prosecutions are annually brought, and the appeals to
the Supreme Judicial Court from sentences of conviction rarely
exceed twenty to twenty-five in number, and upon these in each of
the years 1902 and 1903 only two new trials were
granted.[Footnote: _Law Notes_ for December, 1904.]

A comparison of the number of those put to death in the United
States for crime by the courts, and on a charge of crime by a
mob, for the past three years shows these results:

             Executed by
          Judicial Sentence.   Lynched.   Total.

  1901          118              125       243
  1902          144               96       240
  1903          123              125       248

A large majority of those lynched were negroes, and met their
fate in the South. It is extremely difficult to secure a
conviction of those who take part in such acts of violence. They
commit the crime of murder, and the penalty is so heavy that
their fellow-citizens are unwilling to subject them to it. The
offenses with which the men whom they kill are charged are also
generally of a nature which make them peculiarly offensive to the
community. Many are negroes charged with the rape of a white
woman, to whom it would be intensely disagreeable to testify
against them. Not a few are men under sentence of death, who it
is feared may escape or delay punishment by an appeal.

Such considerations cannot excuse, but present some slight
palliation for those acts of mob violence by which the people of
the United States are so often disgraced. It may be added that
out of the Southern States they are quite rare, and in the
Northeastern States substantially unknown. Of the one hundred
and four lynchings in 1903, only twelve occurred in the North or
West.

            *       *       *       *       *



                    CHAPTER XVIII


       THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT


A public officer, whose duties are mainly other than judicial,
may be invested with judicial power to be exercised only in
certain causes which may be brought before him, in disposing of
which he acts as a court. Such an one is a judge only when he is
holding court. When it is adjourned, no court exists of which he
could be a judge. Justices of the peace and parish judges are
officers of this description. But ordinarily judges are
appointed to hold some regular court, with stated sessions, which
is always in existence. To such a judge considerable powers of a
judicial nature are usually given for exercise when his court is
not in session.

The writ of _habeas corpus_, for instance, may be issued
either by a court of record or by a judge of such a court, if
applied for when the court is not in actual session. In the
latter case, the return of the writ is made to him, the trial had
before him, and judgment rendered out of court, or, as it is
styled, "at chambers." While sitting for such a purpose, he may
be regarded as exercising functions which really belong to the
court and acting as a part of it.

Statutes often, in case of a court having but a single judge,
give him power to hold special courts whenever he may think
proper. In such a case no very definite line is drawn between
what judicial business the judge does and what the court does.
While the proper and normal constitution of a court of record
requires the attendance not only of a judge, but of a clerk and a
crier or sheriff's officer, the only one whose presence is
indispensable is the judge. A District Judge of the United
States has this power of holding special courts, and is a court
wherever and whenever he pleases to transact judicial business,
whether he describes himself in such papers or process as he may
issue, as court or judge.[Footnote: The U. S. _v._ The
Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]

The judges of courts having equitable jurisdiction act often out
of court in the issue of temporary injunctions. These are writs
directing some one to refrain from doing a certain act. They
generally direct it under pain of a specified pecuniary
forfeiture; but whether they do so or not, disobedience is
punishable also by arrest and imprisonment, being treated as a
contempt of court. The need of an injunction is often immediate.
It would be worthless unless promptly granted. When, therefore,
no court having power to issue one is in actual session, there
would be a failure of justice if the judge could not act to the
extent of granting temporary relief. Whether the injunction
should be made permanent is a subsequent question, to be
determined after a full hearing by the court. It may, in urgent
cases admitting of no delay, be issued _ex parte_, but
ordinarily the defendant is notified and has an opportunity for a
summary hearing, either orally or on affidavits, before action is
taken.

A similar power often vested in judges at chambers is that of
appointing a temporary receiver; that is, of some one to take
temporary charge of property in behalf of and as agent of the
court, when this seems necessary in order to preserve it. If the
affairs of a commercial partnership get into such a condition
that the partners cannot agree on the mode of conducting it, such
an appointment can be made to tide matters along for the time
being. So in case of an insolvent debtor his estate may, under
certain circumstances, be placed in a receiver's hands by a
summary order, issued out of court.

It may be added that by the statutes both of the United States
and of all the States many powers of a _quasi_-judicial
character are conferred on judges to be exercised out of court,
such as those of ordering the arrest of one suspected of criminal
conduct, examining into the charges against him on his arrest,
and admitting him to bail or sending him to jail for want of it.

            *       *       *       *       *



                     CHAPTER XIX


                  APPELLATE COURTS


For each of the States and Territories as well as for the United
States there is one supreme court of appellate jurisdiction.

The Supreme Court of the United States can entertain original
actions of certain kinds.[Footnote: See Chap. IX.] A few also of
the State supreme courts of appeal have a limited original
jurisdiction. This is generally confined to equity causes,
election contests and certain actions for extraordinary relief
known as prerogative writs, such as informations in the nature of
_quo warranto_ and writs of mandamus.

The term "appeal" in its strictest signification is confined to a
removal of a cause after trial to a higher court for a new trial
on the merits.

It is also and now more commonly used to denote such a removal
for the purpose only of inquiring whether any legal errors were
committed on the trial or are to be found in the judgment. In
this sense it covers proceedings by a writ of error, and any
other mode of reviewing questions of law.[Footnote: See the
_Federalist_, No. LXXXI.] If it does not appear from the
record of the lower court that any of the errors that may be
claimed (or "assigned," as the phrase is) exist, the judgment is
affirmed; otherwise the cause is sent back for a new trial or, if
the objections are fundamental and fatal to its maintenance, is
dismissed.

Appellate courts are of many kinds. Some are such exclusively;
some mainly. In others the functions of entertaining appeals is
a minor one, most of their time being occupied in trying original
causes. An appeal from judgments of a justice of the peace, for
instance, is generally given on the merits to county courts, but
the greater part of the litigation before them comes there in the
first instance. So the judgments of county or other minor courts
are often reviewable on appeal for errors in law in some superior
court which, like them, is principally occupied in the exercise
of an original jurisdiction.

When the American colonies passed into States, as has been seen,
they were habituated to the thought of a supreme controlling
authority exercised by one tribunal of a judicial character of
last resort. The judicial committee of the Privy Council had
administered this sovereign power for them, and for a long period
of years, with general acquiescence.[Footnote: See Chap. I.] The
uniformity of result thus obtained was acknowledged to be
advantageous. It was now necessary to replace them by American
courts of last resort, and it was not difficult in doing so to
improve upon the English model. The time had come for
separating, as far as it could conveniently be accomplished,
judicial from political power.

Virginia was the first to act. A few days before the Declaration
of Independence she adopted a Constitution (under which the
government, was carried on until 1830, though it was never
formally submitted to or ratified by the people) providing for a
separate judiciary headed by a Supreme Court of Appeals whose
judges should hold office during good behavior, and be ineligible
to the Privy Council or General Assembly.

This divorce of judiciary and legislature was not the plan
universally followed.

New Jersey, in which as a colony the Governor and Council had
possessed an appellate power like that vested in the English
House of Lords, was so well satisfied with this arrangement as to
continue it in her Constitution of July 3, 1776, and up to the
present time puts upon her Supreme Court a certain number of
judges who give but a part of their time to this work, and are
not necessarily (though in practice of late years they generally
have been) lawyers.

New York, in her Constitution of 1777, pursued a somewhat similar
plan. Her highest court was one "for the trials of impeachments
and the correction of errors." Its members were the Senate with
the Chancellor and judges of the Supreme Court. When a judgment
of that court was brought up for review the judges were to state
their reasons for giving it, but had no vote. This scheme was
adhered to with little modification until 1846. What made it
tolerable was that many of those elected Senators were naturally
lawyers, and that to be in the Senate soon became the ambition of
a lawyer with any desire to know how it would feel to be a judge.
Able and learned opinions were pronounced by such men in
exercising their judicial functions, and some of them in the New
York reports are still frequently the subject of reference as
clear and satisfactory statements of legal principles.

Connecticut, in 1784, when she instituted for the first time a
court of last resort, made it up of the Lieutenant Governor and
the twelve Assistants, and soon added to it the Governor himself.
A plan of this kind was likely to work in that State, as in New
York, better than it looked. Lawyers by this time had come to
fill most of the higher offices of state. Although the
Assistants were elected annually it was under a complicated
scheme of nomination, which, unless in case of a political
revolution, ensured re-election in every case. A majority of the
Assistants were always members of the bar. They were also
Federalists from the beginning of party divisions in the country.
Naturally, the Republicans found such a state of things
intolerable. All the power of government in Connecticut, said
one of those who were celebrating Jefferson's second election to
the Presidency in 1804, "together with a complete control of
elections, are in the hands of seven lawyers who have gained a
seat at the council board. These seven men virtually make and
repeal laws as they please, appoint all the Judges, plead before
those Judges, and constitute themselves a Supreme Court of Errors
to decide in the last resort on the laws of their own making. To
crown this absurdity, they have repealed a law which prohibited
them to plead before the very court of which they are Judges."
Attacks like this were too just to be resisted, and two years
later the Governor, Lieutenant-Governor and Assistants were
replaced by the Judges of the Superior Court.

Constitutional provisions that the right of trial by jury shall
be preserved inviolate preclude, as a general rule, the
establishment of courts in which the judges can make a final
disposition of petty causes which turn on disputed facts. An
appeal from their decision must be allowed, and a new hearing
given on the merits in a court furnished with a jury. Under the
Constitution of the United States a trial by jury cannot be
claimed in civil cases at common law involving a demand of not
over twenty dollars, and in most of the older States it cannot be
in cases where it was not a matter of right prior to the adoption
of their Constitutions.

The verdict of a jury can only be reviewed on its merits by a
court of last resort where it was clearly and palpably against
the weight of evidence, and in order to do this the whole
evidence given in the trial court must be certified up.

Where a judgment has been rendered on a finding of facts made by
a judge in a cause of an equitable nature, this finding can, in
the courts of the United States and in many of the States, be
reversed on any point on appeal. For this purpose also all the
evidence that was before him, or all that is pertinent to
questions involved, must be reported to the court above.

Except so far as the right of trial by jury may require it, it is
a matter of legislative discretion whether to give any remedy in
a higher court for the errors of a lower one.

In some States an appeal is given from a judgment of an inferior
court even though rendered on the verdict of a jury, to a higher
one where another trial may be had before a judge of presumably
greater ability. In many States errors in law of petty courts
may be reviewed in higher trial courts. In a few of the larger
ones, as in the United States,[Footnote: See Chap. IX.] errors
in law of the higher trial courts, in a considerable class of
cases, are finally disposed of in an intermediate appellate
court, constituted to relieve the court of last resort from an
overweight of business.

       *       *       *       *       *

Ordinarily it is the statutory right of a defeated litigant to
take an appeal, provided he can state any colorable ground of
exception. In some jurisdictions he is required to obtain the
approval of the trial court or else of some member of the
appellate court. There are many judges who think that such a
practice should be universally adopted. It would certainly tend
to relieve the dockets of appellate tribunals, and to bring
lawsuits to a speedier end. If one were sure that the judge to
whom application was made for an approval of the appeal would
always act intelligently and impartially, such a precaution
against useless litigation would be admirable. But the trial
judge is not in a position that naturally leads to an
unprejudiced judgment. The appeal is asked on account of
mistakes of his, and he will not be apt to think that he has made
any. The judge of the appellate court will be impartial and
unprejudiced, but he will have a very imperfect knowledge of the
case. He could only be asked to make a hasty examination of the
points involved, and it would be quite possible for him to reject
as frivolous grounds which, on a lengthy investigation after a
full argument, might have seemed to him substantial. In view of
these objections, and of the unequal attainments and experience
of the different judges of our courts, the bar are generally in
favor of making appeals a matter of right; and what the bar
favors in such a matter the legislature usually enacts.

       *       *       *       *       *

The opinions and judgments of all American courts of last resort
are officially reported for publication. At first they were not
so reported. The earliest volume of American judicial decisions
(Kirby's) was published in 1789 as a private venture. A few
years later the States began to provide official reporters for
their highest courts and soon assumed the expense of publication.
There are now more than fifty current sets of federal and State
reports, the annual output being about four hundred volumes,
containing 25,000 cases. The mere indexing and digesting of
these reports for the use of the bench and bar has become a
science. While consulted by comparatively few who are not
connected with the legal profession, they constitute a set of
public records of the highest value to every student of history
and sociology.[Footnote: See "Two Centuries' Growth of American
Law," 6.]

It is the custom to prefix to the report of each case a head-note
stating briefly the points decided. Ordinarily this is the work
of the reporter. In a few States the judges are required to
prepare it; and to do so then naturally falls to the lot of that
one of them who wrote the opinion. Occasionally the head-note
contains statements not supported by the opinion. In such case
the opinion controls unless it is otherwise provided by statute.

It has not been the usual custom of English judges of courts of
last resort to write out their opinions. They have commonly
pronounced them orally and left it to the reporters to put them
in shape. The consequence has been that English reports have a
conversational tone, and are not free from useless repetition.
This has been not only a matter of tradition but of necessity.
The English judges have always been few in number. Their time
has been largely occupied in the trial of cases on the facts. It
is only in recent years that certain judges have been set apart
especially for appellate work.

American judges, on the other hand, are numerous. There is the
waste of energy in our judicial system which is the necessary
concomitant of the independent sphere belonging to each separate
State. Combination of all of them into one empire would make it
easy to reduce the judiciary to a tithe of its present numbers.
Their salaries are part of the price we pay--and can well afford
to pay--for our peculiar system of political government, under
which every State is an _imperium in imperio_.

The ever-increasing number of our States, each with a body of law
not exactly like that of any other, and each with a written
Constitution which is its supreme law, requires a court of last
resort in each. Experience tends to show that it ought not to be
composed of less than five. There should certainly be an uneven
number to facilitate decisions by a majority; and unless a
minority consists of as many as two, its dissent is apt to carry
little weight in public opinion.

In most of the States the court of last resort is not overworked.
In some the judges find time to do considerable circuit duty in
the trial of original causes. This keeps them in touch with the
daily life of the community, and is so far good. On the other
hand it disqualifies them from sitting on an appeal from their
own decisions, and so either reduces the number of the appellate
court occasionally below that which is normal and presumably
necessary, or involves calling in some one to act temporarily,
which imperils the continuity of thought and uniformity of
doctrine which should characterize every such tribunal. There is
also a certain natural bias, insensible perhaps to themselves,
which tends to make appellate courts stand by one of their
members whose rulings while holding a trial court are brought in
question. For these reasons it has now become common for the
States to confine their appellate judges exclusively to appellate
work. The time, therefore, which the English judge gives to
circuit duty the American judge can give to writing out his
opinions with all the art and care which he can command.

He speaks in most instances to a small audience--the bar alone.
But it is the bar of this year and the next year and the next
century. Every volume of reports is part of the history of
American jurisprudence and of American jurisprudence itself.
Occasionally some case arises which involves large political
questions, or one of especial local interest. The opinion is
then read more widely. The newspapers seize it: reviews take it
up. It is not always easy to anticipate what decision will
become a matter of public notoriety; what opinion will be quoted
as an authority in other States; and what drop unnoticed except
by the lawyers in the cause. A judge, therefore, though he have
no better motive than personal ambition, is apt to do his best in
every case to state the grounds of his conclusions clearly and in
order. A certain style of American judicial opinion has thus
grown up. It is dogmatic. It offers no apologies. There is
neither time nor need for them. The writer speaks "as one having
authority." He does not argue out conclusions previously settled
by former precedents, but contents himself with a reference to
the case in the reports in which the precedent is to be found.
He is as brief as he dares to be without risking obscurity.

It is undoubtedly true that many reported opinions are of a very
different type. Some of Marshall's assume a tone of apology; but
in his day it was needed. He struck at cherished rights of
States, upheld by their highest courts, and struck them down, at
a time when the country was unfamiliar with the conception of the
United States as a national force. Many of those of judges of
inferior ability do not rise above their source. They are
verbose, repetitious, slovenly, inaccurate in statement, loose in
form; perhaps sinking into a humor or sarcasm always out of place
in the reports;[Footnote: See, for instance, Mincey _v._
Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
_id_., 582.] possibly unfair in describing the claims that
are overruled. But, as a whole, Americans need not fear to
compare the reports of their courts with those of foreign
tribunals. No judicial opinions, viewed from the point of style
and argument, rank higher than some of those written by American
judges.

Those of appellate courts are generally composed and delivered by
a single one of their members, but he speaks not only for the
court but for every other member of it who does not expressly
dissent. Nevertheless, as their conclusions depend on one man
for their proper expression, the responsibility for the
particular manner in which the opinion may set them forth is
properly deemed in a peculiar sense to rest upon him.

Nor, if the opinion is afterwards relied on as establishing a
precedent, is the court bound by anything except the statement of
the conclusions necessary to support the judgment. If unsound
reasons for those conclusions are given, defective illustrations
used, or unguarded assertions made, it is chargeable with no
inconsistency in subsequently treating them as merely the
individual expressions of the judge who wrote the
opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
Mass. Reports, 37, 41. This position is not, universally
accepted. See Merriman _v._ Social Manufacturing Co., 12
R. I. Reports, 175, 184.]

When Marshall became Chief Justice of the United States he
introduced the practice of writing all the opinions himself, and
with a few exceptions maintained it for ten years, and until, by
successive changes in the court, a majority were Republicans.
This, as has been well said, "seemed all of a sudden to give to
the judicial department a unity like that of the executive, to
concentrate the whole force of that department in its chief, and
to reduce the side justices to a sort of cabinet
advisers."[Footnote: Thayer, "John Marshall," 54.]

In some of the State Supreme Courts in early days, it was the
practice for the Chief Justice to deliver an opinion in every
case, but his associates frequently added concurring or
dissenting ones.

Of late years the business of appellate courts in the United
States and in most of the States is so considerable that it is
necessary to divide the labor, and the cases are generally
distributed equally for the preparation of opinions.

It is the prevailing practice to have the opinion, when drafted
by the judge to whom that duty is assigned, typewritten or
printed, and a copy sent to each of the other judges for their
consideration separately. At a subsequent conference each judge
is called upon by the Chief Justice to state whether he concurs
in it, and if alterations are proposed there is opportunity for
their discussion. This practice did not become general until the
latter part of the nineteenth century, when the typewriter had
come into common use. Prior to that time the draft opinion was
ordinarily first made known by its author to the other judges
either by reading it aloud at the final consultation or by
sending one manuscript copy around to each in succession for his
endorsement of approval or disapproval. In some courts it was
never thus submitted at all, and so they were occasionally
committed to positions which they had never intended to adopt and
afterwards found it necessary to repudiate.[Footnote: See for an
example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,
198.]

Our courts of last resort generally have before them a printed
statement of the doings in the lower court which they are asked
to review, and a printed argument from each party to the appeal.
Oral arguments are also usually heard, except in a few States
where the press of business renders it practically impossible
except in cases of special importance. Such a press occurs
mainly in the largest States, but exists also in some whose
Constitutions make it easy and over-cheap for every defeated
litigant to carry his case up to the highest court.

In the Supreme Court of Georgia no costs exceeding $10 can be
taxed against the unsuccessful party; and it has had eight
hundred cases in one year upon its docket. In most States he has
substantial costs to pay. These mainly are to meet the expense
of printing the record sent up from the court below. A single
case will sometimes fill a volume or even a set of volumes,
particularly in equity causes in the federal courts, in which all
the testimony is generally written out at length. The appellant
has to pay for the printing in the first instance, but
ordinarily, if he succeeds, the other party will be obliged to
reimburse him. The cost involved is occasionally several
thousand dollars.

The party taking the appeal must file a paper stating his grounds
for it separately, distinctly, clearly and concisely. There is a
temptation to include all that can be thought of, good, bad and
indifferent; and whether this is done or not will depend largely
on the opinion which the lawyers have of the ability of the
court.

In the smaller States the judges have time to enable all to study
each case with care. In the largest ones it is not uncommon to
assign every case on the docket, in advance of the argument, to a
particular judge. He is expected to give it special attention
with a view to reporting his conclusions upon it to the court,
and, should they be approved in consultation, to writing out its
opinion subsequently. The assignment for a term of court is not
infrequently made in the order in which the docket (or printed
list of cases to be heard) is made out, the chief justice taking
the first case, the senior associate justice the second, and so
on. At the next term the same practice will be pursued, except
that the justice next in seniority to the one who had the last
case under the previous assignments will now take the first case
on the new list, and the next junior justice the second.

Appellate courts generally sit not over four or five hours a day;
this time being either preceded or followed by a consultation.
They are seldom in session more than five days in the week. The
cases before them are not usually assigned for argument on
particular days. A list is made up of all which are ready to be
heard, numbered in order, the oldest first. They are then taken
up successively as reached, and the counsel concerned in each
must be ready at their peril. Often a limit is fixed by rule as
to the number of cases that can be called for argument in any one
day. In the Supreme Court of the United States this is the
practice, and the number is ten. In some of the States it rises
as high as twenty.

At the first consultation over a case which has been argued, the
Chief Justice (unless a special assignment has been previously
made of it to some particular member of the court) asks the
junior justice his opinion as to the proper disposition to be
made of it, and each justice in turn then gives his, in the
reverse order of seniority. If there is any serious disagreement
the matter is generally allowed to stand over for further
discussion later. At some convenient time after the views of the
various justices have been ascertained the cases are distributed
and, as a rule, equally for the purpose of preparing the
opinions. This distribution is sometimes made by the Chief
Justice and sometimes by agreement, or according to the
arrangement of the docket.

Until the opinion has been finally adopted it is not usual to
announce the decision. Not infrequently the ultimate decision is
made the other way, and a new opinion prepared by the same, or,
if he remains unconvinced that his first one was wrong, by
another judge. Still more often the draft opinion is altered in
material points to meet criticisms and avoid dissent.

Dissenting opinions are comparatively rare, particularly in
courts where there is a Chief Justice with the qualities of a
leader; that is, with ability, learning and tact, each in full
measure.[Footnote: Perhaps tact counts the most, for the Chief
Justice has the advantage of hearing the opinions of all his
associates at all consultations before he gives his own. Senator
Hoar makes a pungent comment on Chief Justice Shaw's want of it,
in his Autobiography, II, 413.] Every instance of dissent has a
certain tendency to weaken the authority of the decision and even
of the court. Law should be certain, and the community in which
those charged with its judicial administration differ
irreconcilably as to what its rules really are, as applied to the
transaction of the daily business of life, will have some cause
to think that either their laws or their courts are defective and
inadequate. For these reasons judges of appellate courts often
concur in opinions, of the soundness of which they are only
convinced because of the respect they entertain for the good
judgment of their associates. They are willing to distrust
themselves rather than them.

Not seldom, however, dissent and the preparation of a dissenting
opinion has in the course of time, aided, perhaps, by some change
of membership, converted the court and led to overruling a
position incautiously taken which was inconsistent with settled
law.[Footnote: A striking instance of this is the case of
Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
_id_., 126; 6 Atlantic Reporter, 453.]

More than eighty out of every hundred of the opinions delivered
in the courts of last resort of each State of the United States,
excepting one (New Jersey), and contained in the last volume of
the reports of each published prior to June, 1904, were
unanimous. In New Jersey seventy-three out of every hundred
were. In two States, Maryland and Vermont, there was dissent in
but two out of every hundred cases, and in all the States taken
together, out of nearly 5,000 cases decided a dissent is stated
in 284 only. This made the proportion of unanimous decisions of
State courts, in the country at large, to those in which there
was dissent nineteen to one.[Footnote: _Law Notes_ for June,
1904, p. 285.]

A dissenting judge sometimes files an opinion which is then
printed in full in the reports. More often the fact of his
dissent is simply noted. In cases involving constitutional
questions it is rare for a dissenting judge not to state his
reasons. The importance of the subject justifies if it does not
demand it. As Mr. Justice Story once observed, "Upon
constitutional questions the public have a right to know the
opinion of every judge who dissents from the opinion of the
court, and the reasons of his dissent."[Footnote: Briscoe
_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]

The official reports of the courts have some of the faults of
officialism. They often do not appear until long after the
decisions which they chronicle have been made and their general
make-up is sometimes unworkmanlike and unscientific. It requires
rare gifts to make a good reporter of judicial opinions. He must
have the art of clear and concise statement; the power to select
what is material and drop the rest; and the faculty of close
analysis of abstract reasoning.[Footnote: Four of the reporters
of the Supreme Judicial Court of Massachusetts have been
appointed justices of that court, largely in consequence of their
good work in reporting. A good reporter always has the making of
a good judge.] Many of our reporters also are practicing lawyers
of no special training for the work, and who give to it but a
portion of the year.

The modern sense of the value of time, of scientific treatment of
whatever can be treated scientifically, and of uniformity in
scientific methods led toward the close of the nineteenth century
to competition in reporting. Private publishing houses undertook
the prompt publication, in scientific arrangement upon a uniform
plan, of the opinions of the courts. This work began in 1879.
The result has been that the series of official reports of the
Circuit Court of Appeals of the United States has been
discontinued, and that the decisions of all our other appellate
courts are now twice reported. One publishing house has grouped
the States into clusters, issuing for each cluster its own series
of reports, known, respectively, as the Atlantic, the
Northeastern, the Northwestern, the Southeastern, the Southern,
the Southwestern and the Pacific Reporters. The States forming
each group have been selected mainly because they were neighbors
geographically, but partly from commercial reasons. Thus
Massachusetts, which would naturally be assigned to the Atlantic
Reporter, has been put into the Northeastern; and such inland
States as Kansas and Colorado find their place in the Pacific
Reporter. All the reported decisions of all the States in each
group are printed in pamphlet form weekly, as they may be handed
down, in chronological order; and every few months the whole
issued as a bound volume. In this way, for a trifling sum a copy
of any opinion of any American court of last resort can be had in
a few days or weeks after its announcement, and a lawyer's
library can, at slight expense, be furnished with the decisions
not only of his own State but of several others having not unlike
laws and institutions.

The multiplication of American reports makes judicial precedents
of decreasing value to the American lawyer. English cases are
cited as authority far less frequently than they were before the
middle of the nineteenth century. The omnipotence of Parliament
and the free hand with which that has been exerted to change the
common law have tended to separate English from American
jurisprudence. Our written Constitutions have perpetuated here
ideas of government and property which England does not
recognize. Hence American precedents are of more use than
English. But American precedents are becoming so numerous that
the advocate who seeks to avail himself of them is tempted to
cite too many and to examine them with too little care. In each
State its own reports are the expression of its ultimate law.
With these every member of its bar must be familiar. But the
courts before which he argues listen to him with more
satisfaction and greater benefit if he deals with the principles
of law rather than with foreign precedents which may or may not
correctly apply them.[Footnote: See a valuable statistical
article on "Reports and Citations" in _Law Notes_ for
August, 1904.]

Not every opinion which is delivered is officially reported. In
most States the court has and exercises the power of directing
that such as they may deem of no substantial value to the
profession at large shall not be. Many are simply applications
of familiar rules which obviously control. Opinions of that kind
interest only the lawyers in the cause. In the unofficial
reports, however, such cases are sure to appear and the bar is
divided in opinion as to whether they should not also be given a
place in the official ones.

It is not always easy for the court or the reporter to determine
what decision may thereafter be relied on as a precedent.
Repeated instances have occurred in which such a use has in fact
been made and properly made of some not noted in the regular
reports, and not infrequently they have subsequently been
inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
of those of the Supreme Court of the United States, one hundred
and twelve opinions are printed, the first delivered over fifty
years before, which previous reporters had thought best to omit,
and two hundred and twenty-one more such are published in
Vol. CLIV. Whoever runs them over will be apt to think that the
previous reporters were right.] There is also in case of an
opinion not to be officially reported a loss of a valuable
safeguard against unsound decisions. A judge writes with more
care and examines the points of law which may be presented more
closely if he writes for the public and for posterity.

On the whole the prevailing sentiment is that the reasons for
repressing some are stronger than those for publishing all
judicial opinions. It will be few only that, under any
circumstances, will be omitted. The leading lawyers in every
State are expected to run over, if they do not read, every case
in every new volume of its reports. Every case dropped lightens
this task. It helps to keep indexes of reports and digests of
reports and legal treatises within reasonable limits. It cuts
into an accumulating mass of material, most of which must, in any
event, so far as points of law are concerned, be a mere
repetition of twice-told tales, that is becoming so vast in the
United States as to becloud rather than illuminate whoever seeks
to know what American law really is.

If reporters will not select and discriminate between adjudged
cases publishers can and will. Many sets have been prepared and
issued in recent years of selected cases on all subjects taken
from the official reports of all the States. Their professed aim
has been to include all worth preserving. In fact, they have
naturally been guided to a considerable extent by commercial
considerations. To every lawyer the leading cases in his own
State are of the first importance. He is not likely to buy any
compilation in which a number of these do not appear, even if
intrinsically, as statements of law, they may be of no great
value. Hence in the collections in question the rule of
selection is often the rule of three, and they are apt to contain
a certain proportion of the decisions of every State.

The leading sets are the "American Decisions," running from
1760[Footnote: Long after the publication of Kirby's Reports in
1784, some unofficial reports were published of cases decided in
colonial courts prior to any which he included.] to 1869; the
"American Reports," from 1869 to 1886; the "American State
Reports," from 1886 to the present time, which three sets include
over two hundred and fifty volumes and nearly 40,000 opinions;
and the "Lawyers' Reports Annotated," now extending over more
than sixty volumes, the first of which was published in 1888, and
contains no cases reported prior to the preceding year.

Spencer's rule of social evolution that all progress is from the
homogeneous to the heterogeneous tends steadily and inexorably in
the United States to lessen the value of judicial reports out of
the State in which the cases were decided. Each of forty-five
different commonwealths is building upon legal foundations that
are not dissimilar, but some of them are advancing far faster
than others, and none proceed at exactly the same rate or on
exactly the same lines. They are building by statute, by popular
usage and by judicial decision. Heterogeneity is most marked in
legislation and it tells most there. Whoever looks over a volume
of reports will find a large proportion of the cases turning upon
some local statute. An important index title is that of
"Statutes Cited and Expounded." In Vol. 138, for instance, of
the Massachusetts Reports (a volume selected at random for this
purpose), 223 statutes or sections of statutes are noted as
having been made the subject of remark in the 170 cases which it
contains. Almost all are Massachusetts statutes, a very small
proportion of which have been re-enacted elsewhere.

Appellate courts thus forced at every turn to study with care
into the effect of local legislation, much of which, to get at
its meaning, must be traced back historically through various
changes during a long course of years, and in the older States
sometimes for centuries, listen unwillingly to citations from
decisions of other States which are even remotely affected by the
statutes that may be there in force.

The newer States and those with a small population are naturally
the ones that rely most on foreign authority. In the last volume
(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
cited in the opinions of the court are of that kind. In the last
volume (Vol. 178) of the New York Reports, the percentage is but
thirty, and in the last of the Massachusetts Reports (Vol. 185)
it is only twenty-five.[Footnote: _Law Notes_ for April,
1905, 8.]

       *       *       *       *       *

In the Supreme Court of the United States and in several of the
appellate courts of the larger States each judge is provided with
a clerk at public expense. While this is a means of relief from
much which is in the nature of drudgery, it sometimes leads to a
deterioration in the quality of the judicial opinions. A
dictated opinion is apt to be unnecessarily long, and when a
clerk is set to looking up authorities, although he can hardly be
expected always to select the most apposite, it is easier to
accept his work and use what he has gathered than to institute an
independent search.

Some of the appellate courts which are most fully employed, both
State and federal, are provided with special libraries of
considerable extent, and each of the individual judges is also
often furnished with an official library, sometimes containing
several thousand volumes, for his personal use, to be handed over
to his successor when he retires from office.[Footnote: In New
York, the private library of the Court of Appeals contains over
6,000 volumes, comprehending all the reports of all the States,
and the personal libraries provided for each judge have come to
comprise 3,500 volumes.]

In some States counsel have the right to demand to be heard
before a full court, and those who have taken the appeal
generally exercise it. As decisions go by majorities, the chance
of reversing a judgment before, for instance, a court of five,
which is a common number, is obviously greater when all its
members sit than when four do. In either case it must be the act
of three judges, and one is more likely to convince three out of
five than three out of four.

In the Supreme Court of the United States there is no means of
supplying the place of a judge who is absent or disqualified.
The remaining members, provided they constitute a quorum (that
is, a majority), proceed without him. In most of the States
there is some provision for filling the vacancy in such a
contingency. Sometimes it is by calling in a judge of an
inferior court; sometimes by application to the Governor for the
temporary appointment of some member of the bar as a special
associate justice to sit in a particular case.

In several of the larger States all the members of the court of
last resort do not and need not sit in every case. In some two
permanent divisions are constituted, to each of which certain
judges are assigned, and both divisions may be in session at the
same time. In other States certain judges are detached for a
certain time, during which they study causes which have been
argued and prepare opinions. This done, they resume their seats,
and others are released for similar duties.

In Ohio, for instance, the Supreme Court consists of six judges
and commonly sits in two divisions of three each, having equal
authority. The whole court sits to hear any cause involving a
point of constitutional law. It also decides those which have
been heard in one of its divisions and in which the divisional
court is in favor of reversing the judgment appealed from. An
affirmance by the divisional court is final, but if it inclines
to a reversal the judges communicate their opinions to the full
court, which also reads the printed briefs submitted on the
original argument, and then without any further oral hearing
pronounces final judgment. Four judges, therefore, at least,
must concur to accomplish a reversal. Should the full court in
any case be equally divided, the judgment appealed from stands.

Under the Constitution of California (Art. VI, Sec. 2) the
Supreme Court, which consists of seven judges, ordinarily sits in
two departments. Three judges can render a decision, but the
judgment does not go into full effect for thirty days unless
three, including the Chief Justice, have given it their approval.
The Chief Justice also, with the concurrence of two of his
associates, or four of these without his concurrence, can direct
that any cause be heard before a full court within thirty days
after judgment by a department court. He can also order the
removal into the full court of any cause before judgment.

In Michigan only five out of the eight judges sit to hear a case,
and if one of them files an opinion dissenting from that of his
associates, the losing party can demand a rehearing before the
full court.

Neither the bar nor the bench are quite satisfied with such
methods of appellate procedure. The Ohio scheme is excellently
adapted for the dispatch of business, but may prevent an oral
argument before those who are ultimately to decide the cause.
That of California often protracts litigation. Any such plan of
division also must increase the risk of the court's taking a
position inconsistent with one which it had previously assumed.
The judges in one division may come to conclusions different from
those reached in the other division; or where the court does not
sit in divisions, a point may be determined by a narrow majority
in one case which in a later one, through the substitution of one
or two judges for those who heard the former, may be ruled the
other way.

The freedom of appeal which is generally conceded to defeated
litigants in this country has been made the subject of severe
criticism. It seems, however, a necessary incident of our
political institutions. They are built upon the foundation of a
profound reverence for the rights of the individual and of the
equality of all before the law. Our Constitutions guaranty every
man against deprivation of life, liberty or property without due
process of law. If we could count on having as judges of our
trial courts none but men of ability, learning and independence,
it might be safe to leave it to them to say what this due process
was. But the tenure of judicial office in most States is too
brief, the pay too meagre, and the mode of appointment too
subject to political influence to give always that assurance that
could be wished either of the independence of the judiciary or of
its representing only what is best in the legal profession.

In England, until recently, there was little or no right of
review in favor of one convicted of crime. But the judges are
appointed for life on ample salaries, and tradition requires that
they be selected only from among the leaders at the bar. Nor is
the right of the individual against the State deemed so sacred
under English as under American institutions. It cannot be in
any country where an hereditary aristocracy has from ancient
times had a share in government. As has been seen, the English
practice in this respect for nearly a hundred years was adopted
in the courts of the United States, but public sentiment finally
pronounced against it. Much less could it be safely followed in
the States, where criminal courts are often held by judges of
little ability, less learning, and inferior standing at the bar,
to which, after the expiration of a brief term, perhaps of but a
year, they will return should they fail to secure a party
renomination.

The same reasons, if in less degree, support a liberal right of
appeal in cases involving property only, and oppose restrictions
based only on the amount in controversy. Americans could never
tolerate keeping their appellate courts for the trial of large
causes only. There must be no rich men's courts. There
certainly must be none to which a claim of right founded on a
constitutional provision cannot be carried up, however trifling
in pecuniary value may be the matter in demand.

Most appeals fail. There are few in which the counsel who takes
them are fully confident of success. Every lawyer of large
experience knows that he has often won when he expected to lose,
and lost when he expected to prevail. There are not many cases
involving large pecuniary interests or strong personal feeling
that are not appealed if there is any color for it. The
proportion of appeals which are successful will generally be not
far from a third of the whole number taken. Of course, however,
this must depend largely on the competency of the trial judges in
the court where it is claimed that errors have occurred. The
abler and more experienced those who do circuit duty may be, the
oftener will their doings be supported in the court of last
resort.

Short terms of office and consequent lack of practical
acquaintance with the business of a trial judge is the real cause
why so many appeals are taken, and are allowed to be taken in our
American States. As for the federal courts of appeal, there is
another and unavoidable occasion for large dockets. They have
the last word to pronounce on constitutional questions, and there
has probably never been a year since the United States came into
existence when the legitimate powers of the general government
have not been repeatedly infringed upon by State legislation.

In the Supreme Court of the United States, the reporter began its
second century with a plan of stating the number of cases
affirmed or reversed at each term, but dropped it after two
years. The record of these years was as follows:

                              Affirmed          Reversed
  October Term, 1890            248               104
  October Term, 1891            185               103

A tabulation of the decisions reported in the various States in
their last volumes published prior to June, 1904, shows that on a
general average, in sixty-three out of every hundred appeals the
judgment of the inferior court was affirmed. In Massachusetts
the percentage was eighty-seven per cent. In Texas it was only
thirty-four per cent., and in Arkansas and Kentucky not much over
forty per cent.[Footnote: _Law Notes_ for June 1904,
p. 285.]

Many more appeals are taken by convicted persons in criminal
cases at the South than in the North. Many more criminal
prosecutions are brought there, in proportion to the population.
This is due largely to the presence of so large a body of colored
people, most of whom have had a very inferior education and
training. Many more such appeals are successful also in the
South than in the North. In the reports of the courts of last
resort of Alabama, Florida, Louisiana and Mississippi between
December 20, 1902, and April 25, 1903,[Footnote: As given in
Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
appear, in forty-six of which the judgment of conviction was set
aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
New Jersey, Pennsylvania, Rhode Island and Vermont between March
12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
Atlantic Reporter.] the reports show only twenty such cases, of
which seven were set aside.[Footnote: _Law Notes_ for
September, 1903, 105.] This would seem to indicate either that
the trial judges of criminal courts in the Gulf States are
careless or that the appellate courts there (under the pressure,
perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
Independence," by Justice Henry B. Brown in the Reports of the
Am. Bar Association for 1889, 265.] are inclined to be too
technical. If either is true it is a just cause for public
dissatisfaction with the administration of criminal justice, and
some palliation for the frequent resorts to Lynch law by the
Southern people.

The American plan of written opinions, at least in all cases of
novelty or general interest, works better in small States than in
large ones. No judge can find time to prepare more than a
certain and quite moderate number in a year, if they are such as
they should be. The shorter they are, the more time generally
has been spent in condensing them. In a great State there must,
therefore, either be a larger number of judges, or every few
years there must be a temporary addition to the judicial force to
clear off an accumulation of cases. The latter expedient is
generally preferred. Sometimes a small number of lawyers are
selected to serve as a special commission of appeals. They sit
by themselves, but there may be a provision for their submitting
their opinions to review by the regular court. Some of the
leading cases in our reports have been decided by such
commissioners. In California, where such a body now exists, its
members are appointed by the court, and removable at its
pleasure; but ordinarily they are chosen by the executive or
legislative departments.

Sometimes when the cases on the docket of the court of last
resort reach a certain number (in New York this is put at 200)
the Governor may call in judges of the next court in rank to sit
with the regular judges until the accumulation is cleared off.

Fewer causes can be heard and disposed of in American appellate
courts than in those of other countries by reason of two things,
our practice of delivering written opinions and the fulness of
treatment thought necessary in such opinions, especially when
they deal with questions of constitutional law. In France, the
Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
219 were sustained and 597 rejected.] Nothing approaching this
number could be properly disposed of on the merits in any
American Court of last resort. Many appeals, however, are here,
as everywhere, abandoned or dismissed for some failure to comply
with the rules of practice or because manifestly frivolous, and
in these no opinions are ordinarily given. During the court year
closing with the Summer of 1903, the Court of Appeals of New York
filed only 221 opinions, although it disposed, in one way or
another, of 640 cases; and the Supreme Court of the United States
filed 212 opinions and disposed of 420 cases.[Footnote: See
Chap. XXIV.]

In the calendar year 1904, the Court of Appeals of New York filed
327 opinions, and the Supreme Court of Illinois over 500.

            *       *       *       *       *



                     CHAPTER XX


       THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF
                   CONTEMPTS OF COURT


No court can with propriety pass a decree which it cannot
enforce.[Footnote: Clarke's Appeal from Probate, 70
Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
U. S. Reports, 186.] After the judgment comes the issue of
appropriate process to compel obedience to it, unless such
obedience (as is generally the case) is voluntarily rendered.
The whole power of government is at the command of the court for
this purpose. A sheriff with a judicial process to serve who
meets with resistance can summon to his aid the _posse
comitatus_. By this term is meant the whole power of his
county; that is, any or all of its able-bodied inhabitants on
whom he may choose to call. Not to respond to such a call is a
legal offense. The marshals have similar powers in serving
process from the Federal courts.

The fact that there is this force behind a writ is so well
understood by the community that occasions for resorting to its
use, or indeed to the use of any actual force, are extremely
rare. If the process was lawfully issued, it would be useless to
resist. If unlawfully, it is easier and safer to seek relief by
an injunction, or in case of an arrest, by a writ of _habeas
corpus_. But there have been occasions in the judicial
history of the United States when, under the influence of a
general popular ferment, the service of process from the courts,
and even the holding of courts, have been forcibly prevented.

Shay's Rebellion in Massachusetts (in 1786) was the first of
these after the Revolution. Similar uprisings of less importance
took place at about the same time in New Hampshire and Vermont.
A few years later, the service of process from the New York
courts was interrupted in Columbia County. There was a strip of
territory adjoining the Hudson River, title to which was claimed
both by New York and Massachusetts. Conflicting claims, awaking
much bitter feeling, arose under grants from each government. In
1791, the sheriff of Columbia County was ordered by the courts,
in the course of a lawsuit, to sell a tract of this land.
Seventeen persons disguised as Indians appeared at the time of
sale to resist it, and he was killed by a shot from one of
them.[Footnote: Report Am. Historical Association for 1896, I,
152, note.]

Then came the Whiskey Rebellion in Pennsylvania. The statutes of
the United States[Footnote: United States Revised Statues, 5299.]
provide that if their courts meet with opposition of a serious
nature, the President may use the army or call out the militia of
one or more States to restore order. Opposition to the
enforcement of the revenue tax on whiskey in 1794 called for the
first exercise of this power. Marshals were resisted in serving
process, and several counties were in a state of insurrection.
Washington sent so large a force of troops to suppress it that
the rioters vanished on their approach, and there was no further
obstruction of the ordinary course of justice. The total expense
to the government in this affair was nearly $1,000,000.[Footnote:
Wharton's "State Trials," 102.] In 1799, somewhat similar
opposition arose in the same State against the enforcement of the
house taxes laid by Congress. President Adams here also sent a
sufficient force of militia to suppress it.[Footnote:
_Ibid_., 48, 459.]

In 1839, a general combination was formed among the tenant
farmers in New York holding long or perpetual leases from
manorial proprietors to resist the payment of the stipulated
rents. In several counties the greater part of the land was
occupied under such a tenure. The design was to compel the
landlords to sell to the existing tenants at a price fixed by
public appraisal, or else that the State should take the lands by
eminent domain and dispose of them to the same persons on
reasonable terms. Sheriffs were forcibly prevented from serving
writs in dispossession proceedings. One who took with him a
_posse comitatus_ of five hundred armed men, a hundred of
whom were mounted, was met and turned back by a larger band, who
were all mounted. The Governor was finally compelled to issue a
proclamation against the "up-renters," as they were called, and
to protect the sheriff by a large body of militia. Put down in
one county, the movement soon reappeared in others. Disguises
were assumed, the rioters figuring under Indian names and wearing
more or less of the Indian garb. Three hundred of them, with
twice that number not in disguise, prevented a sheriff from
levying an execution for rent on tenants upon the Livingston
manor. For six years the contest went on in several counties.
Several lives were lost on both sides. Sheriff's officers were
tarred and feathered and their writs destroyed. Of the rioters
many were arrested and prosecuted from time to time and some
convicted. Five were sent to the State's prison for life. Two
were sentenced to be hanged. The State used its militia freely
to defend the sheriffs, at a cost in one county of over $60,000,
and in 1845 a series of prosecutions and convictions, resulting
in over eighty sentences at one term of court, broke the back of
the insurrection. It died half-victorious, however, for an
"anti-rent" Governor and Lieutenant-Governor were elected the
next year, and several statutory changes in the law of leases
which the malcontents had desired were soon afterwards
enacted.[Footnote: See Paper by David Murray on the "Anti-rent
Episode in New York," Report of the American Historical
Association for 1896, I, 139.]

During the period of reconstruction in the Southern States,
following the civil war, the courts were repeatedly broken up by
violence and the service of legal process resisted, in some
instances by authority of the military Governor.[Footnote:
S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495,
496, 509, 544, 565.]

The writ to enforce the judgment of a court of law is called an
execution. It is directed to the sheriff or other proper
executive officer, and requires him to seize and sell the
defendant's property or, as the case may be, to arrest and
imprison him, to turn him out of possession of certain lands, or
to take some other active step against one who has been adjudged
in the wrong, in order to right the wrong, as the judgment may
command.

A judgment for equitable relief is not ordinarily the subject of
an execution.[Footnote: See Chap. VIII.]

A judgment at law is generally to the effect that one of the
parties shall recover certain money or goods or land from the
other. On the prevailing party lies the burden of moving to get
possession of what has thus been adjudged to be due. This he
does by taking out an execution. A judgment in equity is an
order on the defendant to do or not to do some particular act.
It is now an affair between him and the court. He must obey this
mandate or he will be treating the court with disrespect.

To treat a court with disrespect, or, in legal parlance, to be in
contempt of court, is to incur very serious responsibilities. It
is in the nature of a criminal wrong, for it is a direct
opposition to the expressed will of the State. Whoever is guilty
of it makes himself liable to arrest and to be subjected to fine
or imprisonment. If, for instance, an injunction is obtained in
a suit for the infringement of a patent right, it becomes at once
the duty of the defendant to desist from making or selling what
the plaintiff has proved that he only can lawfully make and sell.
If he does not desist, the plaintiff can complain to the court,
and if after a preliminary hearing it appears that his complaint
is well founded, can obtain a warrant of arrest, styled a
"process of attachment." On this, the proper officer takes the
defendant into custody, and brings him before the court to answer
for violating the injunction order. If the case is an aggravated
one, he will be both fined and imprisoned, and the imprisonment
will be in the common jail for such time as the court may order.

It is the sting in the tail of an injunction that makes it
especially formidable. The debtor who fails to pay to the
sheriff, when demand is made upon an execution, a judgment for
money damages commits no contempt of court. The man who keeps on
doing what a court of equity has forbidden him to do does commit
one.

A conspicuous instance of the efficacy of an injunction was
furnished by the great Chicago railroad strike and boycott of
1894, initiated by the American Railway Union. Mob violence
followed. More than a thousand freight cars were burned. Trains
were derailed, passengers fired at, and lives lost. The officers
of the union, after two or three weeks, wrote to the managers of
the railroads principally affected, describing the strike as
threatening "not only every public interest, but the peace,
security and prosperity of our common country."[Footnote: United
States _v._ Debs, 64 Federal Reporter, 724, 729.] A
temporary injunction was issued against these officers and others
by the Circuit Court of the United States in an equitable action
brought by the United States under the direction of the
Attorney-General. They disobeyed the injunction. Their arrest
for this contempt of court promptly followed. This stopped the
flood at its source. To quote from testimony given a few weeks
later by Mr. Debs, the President of the Union, "As soon as the
employees found that we were arrested and taken from the scene of
action, they became demoralized and that ended the strike....
The men went back to work and the ranks were broken and the
strike was broken up,... not by the army, and not by any other
power, but simply and solely by the action of the United States
court in restraining us from discharging our duties as officers
and representatives of our employees."[Footnote: United States
_v._ Debs, 64 Federal Reporter, 724, 759.] The defendants
in the contempt proceedings having been found guilty and
sentenced to jail for terms varying from three to six months,
appealed to the Supreme Court of the United States, but without
avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564,
600.]

Injunctions not infrequently are granted as an equitable relief
against a legal judgment. _Summum jus, summa injuria_ is an
ancient maxim of the courts. The foundation of equitable
jurisdiction is that courts of law cannot always do justice. One
may, for instance, be invited to build a house on another's land,
and promised a deed of the site. He builds the house and then is
refused a deed. The invitation and promise were by word of
mouth. The rules of law make such a house the legal property of
the landowner. The rules of equity make it the equitable
property of the man who built it on the faith of the landowner's
invitation and promise. If the latter sue at law for the
possession of the house, he may get judgment, but equity will
prevent his enforcing the judgment, not because it is not a legal
judgment, but because he is endeavoring to make an inequitable
use of a legal right.

A court of equity sometimes makes a decree establishing a title.
To enforce such a judgment, a writ may be issued, called a writ
of assistance. It is directed to the sheriff and requires him to
do some specific act, such as putting the defendant out of
possession of certain lands and turning it over to the plaintiff.

It is, as appears from instances which have been given, possible
that the execution of process from the courts may be defeated by
violence which they cannot overcome. It is possible in fact
though impossible in theory. As the sheriff can employ the
_posse comitatus_, he ought always to have an overwhelming
force at his command. But it is easier to "call spirits from the
vasty deep" than to make them respond. Public feeling may be so
strong in opposition to the service of the process that mob
violence will be tolerated and even openly supported. An armed
mob can only be effectually met by an armed force which is not a
mob--that is, by disciplined soldiers.

The sheriff, if so opposed, may call upon the Governor of the
State for military assistance. How efficient it will prove will,
of course, depend on the discipline of the militia and the
firmness of its commanding officers. It is seldom that it fails
to restore order, if the men carry loaded guns and are directed
to fire at the first outbreak of forcible resistance.

But the Governor may refuse to comply with the sheriff's request.
In such case, the execution of the process of the court fails
because of want, not of power, but of the will to exercise it on
the part of those on whom that duty rests. In every government
constituted by a distribution of the supreme authority between
different departments, each of them must do its part loyally with
respect to the others, or the whole scheme, for the time being,
breaks down.

In the United States this danger is doubly great because of the
interdependence of the general government and the particular
States. Judicial process may issue from a State court against
those who oppose its execution under claim of authority from the
United States; or from a federal Court against those who oppose
its execution under claim of authority from a State. Some
instances of such conflicts of jurisdiction have been already
mentioned.[Footnote: Chap. X.]

When the Supreme Court of the United States reverses a judgment
of a State court, it can either[Footnote: U. S. Revised Statutes,
Sec. 709.] itself render the judgment which the State court ought
to have rendered, and issue execution, or remand the cause to it
with directions that this be done. If the latter course be
taken, the directions may be disobeyed. A Georgia court was
guilty of this contumacy in the case of Worcester _v._
Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former
course be taken, the service of the execution may be resisted by
the power of the State.

Worcester was illegally confined in the Georgia penitentiary.
The sentence against him had been set aside and the indictment
adjudged to furnish no ground of prosecution. But if the Supreme
Court had rendered a judgment dismissing the prosecution, and
given a writ to the marshal directing him to set Worcester at
liberty, the officer would have found the prison doors shut in
his face. Every prison is a fortress, so built as to prevent
rescue from without as well as escape from within. To lay siege
to one would be too great an enterprise for the marshal to
undertake without military assistance. For this the President
could have been called upon. But he might have refused it. If
so, the judgment of the judicial department would have proved
inoperative, simply because the officer charged with the duty of
rendering it operative had declined to fulfil that duty.

The Supreme Court, in the Worcester case, probably had reason to
believe that if it had directed a call on President Jackson for a
military force it would have been refused. It is reported that
the President, in private conversation, intimated as much.
Possibly he might have been justified in the refusal. South
Carolina was on the brink of war with the United States. Georgia
was her next neighbor, and might have been induced to make common
cause with her, if Jackson had battered down the doors of her
penitentiary to release a man who, her courts insisted, had been
properly convicted of a serious crime. A court can do nothing
short of justice. The executive power, perhaps, may sometimes
rightly act or decline to act from motives of national policy.

In one instance the armed forces of a State were actually
engaged, under the authority of the legislature, in forcibly
resisting the service of process from the federal courts. It was
in 1809, when the marshal in Pennsylvania was opposed by a large
body of the militia called out by order of the Governor for the
purpose. Their commanding officer was subsequently arrested and
convicted for the offense in the Circuit Court of the United
States.[Footnote: Wharton's State Trials, 48; McMaster, "History
of the People of the U. S.," V, 405; Willoughby, "The American
Constitutional System," 41, 43.]

In 1859, the Governor of Ohio refused to honor a requisition from
the Governor of Kentucky for the surrender of a fugitive from
justice. The act charged was assisting a slave to escape. This
was a crime in the State from which the man had fled, but not in
the State where he had found refuge. The Supreme Court of the
United States was asked by Kentucky to compel the surrender. It
held that the Governor had violated his duty, but that the
Constitution of the United States furnished no means for
enforcing its performance by him.[Footnote: Kentucky _v._
Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of
this doctrine, a man indicted for murder in Kentucky has been for
several recent years residing in safety in Indiana, because the
Governor of that State has refused to comply with repeated
requisitions for his surrender.

       *       *       *       *       *

Every court of record while in session has inherent power to
compel all who appear before it to preserve order, to obey its
lawful commands issued in due course of judicial procedure, and
to refrain from any expressions of disrespect to its authority,
under pain of fine or imprisonment, or both. This power, unless
withdrawn by statute, belongs to any justice of the peace who has
authority to hold a court of record, while he is holding one.
Commonly it is, in his case, regulated by statute.[Footnote:
Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic
Reporter, 955.]

At common law, superior courts of record also have power during
the progress of a cause to repress or punish any disrespectful
acts or words done or uttered, not in its presence, but so near
to it as to constitute a breach of order or tend directly to
lessen its efficiency. These are deemed powers inherent in such
a court, because necessary to support its proper dignity and
independence. Statutes are common to define or restrict them,
but they cannot take them away altogether. To do so would be to
take away an essential incident of the judicial power. Nor can
they so far reduce the penalty that may be inflicted as to
deprive the court of a reasonable measure of the right of
self-protection.[Footnote: Batchelder _v._ Moore, 42
California Reports, 412.] It is, to say the least, doubtful if
they can even restrict its exercise by any court created by the
Constitution itself.[Footnote: State _v._ Morrill, 16
Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri
Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_
Robinson, 19 Wallace's Reports, 505, 510.]

The accused is not entitled as of right to a trial by jury. The
judge is the best guardian of the dignity of the court.[Footnote:
_In re_ Debs, 158 U. S. Reports, 564, 595.]

The rule of criminal law that to convict a man of crime requires
proof of guilt beyond a reasonable doubt applies to all
proceedings of contempt. The accused is also allowed to go free
on giving bail until final sentence, if that is to be preceded by
any preliminary inquiry involving adjournments from day to day.
No such inquiry is necessary when the contempt is plain and was
committed in the presence of the court.

In the courts of the United States and in most of the States no
appeal is allowed for errors in law from a summary sentence of
punishment for a contempt of court. Appeals lie only from final
judgments in a cause, and such a sentence for contempt is not so
regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports,
364, 376.] If the contempt be (as it may be) made the subject of
a formal criminal prosecution and a jury trial, an appeal is
allowed.

A punishment inflicted for contempt, even though it goes beyond
the rightful jurisdiction of the court in such a matter, is a
judicial act, and does not expose the judge passing the sentence
to an action for damages.[Footnote: Bradley _v._ Fisher, 13
Wallace's Reports, 335.]

            *       *       *       *       *



                     CHAPTER XXI


        JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO
                     MARTIAL LAW


Martial law is the exercise of military power. It is martial
rule at the will of the commanding military officer.

In time of war and at the seat of war martial rule is a
necessity, and under such conditions martial law may rightfully
be enforced by any sovereign as an incident of the war, whether
that is being waged with foreign or domestic enemies. The case
is different when, though war exists, an attempt is made to
enforce martial law at a place which is not the seat of war, nor
so near it as to make military rule necessary for military
success. Constitutional provisions may also affect the question.
Those affecting the United States contain limitations stricter
than those found in some of the State Constitutions. Ordinarily
no military officer can rightfully enforce martial law in a place
where the regular courts of his sovereign are open and in the
proper and unobstructed exercise of their jurisdiction.[Footnote:
_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]

The first serious contest between the judiciary and the military
power in this country as to the questions thus involved took
place during the war of 1812. General Jackson, in 1814, was at
New Orleans in command of the military Department of the South.
The city was threatened with invasion. He declared martial law,
and not long afterwards arrested a Mr. Louaillier, a member of
the State legislature, for writing a newspaper article in which
he objected to the continuance of this kind of military
government. Louaillier obtained a writ of _habeas corpus_
from the District Judge of the United States (Judge Hall),
directed to Jackson. The General, instead of obeying it,
forthwith took possession of the original writ, arrested the
Judge, and deported him from the city. Two days later despatches
were received from the War Department officially announcing the
conclusion of a treaty of peace. Judge Hall now returned, and a
rule to show cause why Jackson should not be attached for
contempt of court was issued. Jackson appeared and filed a long
answer, first stating various objections to the jurisdiction, and
then setting up the circumstances calling for his proclamation of
martial law. He had been told, he said, that the legislature was
"politically rotten." The Governor had warned him that the State
was "filled with spies and traitors," and advised, in the
presence of Judge Hall, and with no dissent from him, that
martial law be proclaimed. It seemed a time when "constitutional
forms must be suspended for the permanent preservation of
constitutional rights." The lengthy paper, which was evidently
written by a skilful lawyer, closed thus: "The powers which the
exigency of the times forced him to assume have been exercised
exclusively for the public good; and, by the blessing of God,
they have been attended with unparalleled success. They have
saved the country; and whatever may be the opinion of that
country, or the decrees of its courts in relation to the means he
has used, he can never regret that he employed them."[Footnote:
Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court,
not particularly impressed with these arguments, ordered the
proceedings to go forward and required the General to answer
certain interrogatories respecting his course of conduct, by a
day appointed. He appeared on that day and declined to answer
them, with this concluding shot:

"Your honour will not understand me as intending any disrespect
to the court; but as no opportunity has been afforded me of
explaining the reasons and motives by which I was influenced, so
it is expected that censure will constitute no part of that
sentence, which you imagine it your duty to pronounce."[Footnote:
_Ibid_., 387.]

The sentence was a fine of $1,000, which was at once paid.

The sympathy of the country was with "the hero of New Orleans" in
this affair, whose gallant defense of that city had cast a gleam
of glory upon the close of a long and apparently fruitless war.
Some of her people subscribed the money to reimburse to him the
amount of the penalty, but he declined to accept it. Nearly
thirty years afterwards Congress made an appropriation for the
purpose, and he received the full amount with interest (in all
$2,700) from the treasury, as a legislative compensation for a
judicial wrong. It would seem, however, that Judge Hall acted
within the limits of his authority. When he signed the writ of
_habeas corpus_ the State was at peace, and it was generally
known, though not officially proclaimed, that a formal treaty of
peace had been signed between the United States and Great
Britain. The courts were open; his court was open; and the
General should have respected the process which issued from
it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports,
O. S., 530. See opinion of Mr. Justice Miller in Dow _v._
Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4
Wallace's Reports, 2, 127.]

During the Civil War, President Lincoln was responsible for many
arrests by military officers of citizens of States remote from
the seat of actual hostilities, and in which the courts were
open. At its first outbreak he entirely suspended the privilege
of the writ of _habeas corpus_, and one issued by the Chief
Justice of the United States was disobeyed.[Footnote: _Ex
parte_ Merryman, Taney's Decisions, 246.] Congress in 1863
enacted that any order of the President, or under his authority,
in the course of the war, should be a defense to any action in
any court for what was done by virtue of it. The State courts
disregarded the statute. If, they said, either the common law or
martial law justified the order, it justified the act; if neither
did, the fiat of Congress cannot make the act a lawful
one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports,
370.] The Supreme Court of the United States had this question
before them, but did not find it necessary to decide
it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510;
Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the
dissenting opinion of two justices in the last report, p. 292.)]
Had they done so, it would probably have been answered in the
same way.

Missouri inserted in her Constitution of 1865 a provision similar
to the Act of Congress. This, of course, so far as that State
could do it, abrogated any rule of law to the contrary, and it
was held not to contravene any provision of the Federal
Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's
Reports, 595.] The transaction in controversy, however, was
before the adoption of the fourteenth amendment, and had the
prohibition in that been then in existence, a different result
would probably have been reached.

The Governor of North Carolina (William W. Holden) in 1870
declared two counties in a state of insurrection. The militia
were called out and a number of citizens arrested. Writs of
_habeas corpus_ in their favor were issued by Chief Justice
Pearson of the Supreme Court of the State against the military
officers.[Footnote: _Ex parte_ Moore, 64 North Carolina
Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at
first refused, by the Governor's authority, to obey them.
Similar writs were then obtained from the District Judge of the
United States, upon which the petitioners were, by the Governor's
orders, produced before the State judge. The result was the
impeachment of Governor Holden and his removal from
office.[Footnote: S. S. Cox, "Three Decades of Federal
Legislation," 458.]

While martial law is the will of the commanding officer, it may
be his will to have it applied, so far as ordinary matters of
litigation are concerned, by courts. For that purpose, when in
occupation of enemy's territory, he may allow the courts
previously existing under the government of the enemy to continue
in the exercise of their functions as his temporary
representatives; or he can institute new tribunals of local
jurisdiction having the name and form of civil courts, and
proceeding according to the ordinary rules of administrative
justice. All such courts act really as his agents and subject to
his control, but in practice he seldom interferes with their
judgments. He cannot, however, in establishing such a temporary
tribunal, give it the powers of an admiralty court over prize
cases. The judgment _in rem_ of an admiralty court,
condemning a captured ship as a lawful prize of war, is treated
as conclusive all over the world; but this is because it is a
decree of a competent court, properly established to administer a
branch of maritime law which, in its main principles, is part of
the law of nations and common to the world. No mere military
court on enemy's territory occupies that position.[Footnote:
Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]

This right of the military commander exists equally on foreign
territory in military occupation and on domestic territory, when
the ordinary courts of his country are not open. During our
Civil War, in 1864, President Lincoln, as commander in chief of
the army and navy, set up a "Provisional Court for the State of
Louisiana," after the Southern portion of that State had been
occupied by the national forces and martial law declared. Judge
Charles A. Peabody of New York, who had been a justice of the
Supreme Court of that State, was commissioned to hold it and to
dispose of both civil and criminal causes. Its docket became at
once a full one, and important litigation was transacted there
with general acceptance until the close of the war.[Footnote: The
Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
Association for 1892, 199.]

In the original proclamation of martial law in Louisiana the
commanding officer announced that civil causes between parties
would be referred to the ordinary tribunals. One of the State
courts, known as a District Court of the City and Parish of New
Orleans, the judge of which took the oath of allegiance to the
United States, continued to sit and dispose of business in the
usual course. A few months later a citizen of New York sued a
military officer before it for ravaging a plantation which he
owned in Louisiana, and recovered judgment. A suit upon it was
afterwards brought in Maine, where the defendant resided. He
pleaded that the property of the plaintiff had been taken to
furnish his troops with necessary supplies. The case ultimately
came before the Supreme Court of the United States. Here it was
thrown out, the court saying that the District Court of New
Orleans had no jurisdiction to call military officers to account
for acts done under claim of military right.[Footnote: Dow
_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
litigation between private parties unconnected with military
operations is concerned, a court of this character, established
by law, and suffered by the military authorities to continue its
sessions, has competent jurisdiction, and its judgments will be
enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
45 New York Reports, 27.] They have no power to entertain
criminal charges against those in the military service, who would
be punishable by court martial.[Footnote: Coleman _v._
Tennessee, 97 U. S. Reports, 509, 519.]

In 1864, during the war, but in Indiana, a State
distant from the seat of hostilities, the military commandant
of the district ordered the arrest of a private
citizen and his trial before a military commission on
charges of conspiracy against the United States, as a
member of a secret organization known as the Order
of American Knights or Sons of Liberty. The trial
resulted in his conviction, and a sentence to death, which
was approved by the President of the United States.
Before it could be executed, he applied to the Circuit
Court of the United States for the District of Indiana
for a writ of _habeas corpus_. The judges of that court
were divided in opinion in regard to the case, but it
was decided in his favor when it came before the
Supreme Court of the United States.[Footnote: _Ex parte_
Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
was unanimous, but in stating the reasons for it the
court was divided in a manner which has not been
uncommon since the death of Chief Justice Marshall
when any great question of a political nature has
been involved. Five justices held that the trial of
a civilian by a military commission can never be vindicated
in a peaceful State where the courts are open
and their process unobstructed. Four justices dissented,
and Chief Justice Chase thus summarized their
conclusions:

  There are under the Constitution three kinds of military
  jurisdiction: one to be exercised both in peace and war;
  another to be exercised in time of foreign war without the
  boundaries of the United States, or in time of rebellion and
  civil war within States or districts occupied by rebels treated
  as belligerents; and a third to be exercised in time of
  invasion or insurrection within the limits of the United
  States, or during rebellion within the limits of States
  maintaining adhesion to the National Government, when the
  public danger requires its exercise. The first of these may be
  called jurisdiction under military law, and is found in acts of
  Congress prescribing rules and articles of war, or otherwise
  providing for the government of the national forces; the second
  may be distinguished as military government, superseding, as
  far as may be deemed expedient, the local law, and exercised by
  the military commander under the direction of the President,
  with the express or implied sanction of Congress, while the
  third may be denominated martial law proper, and is called into
  action by Congress, or temporarily, when the action of Congress
  cannot be invited, and in the case of justifying or excusing
  peril, by the President, in times of insurrection or invasion,
  or of civil or foreign war within districts or localities where
  ordinary law no longer adequately secures public safety and
  private rights.

  We think that the power of Congress in such times and in such
  localities to authorize trials for crimes against the security
  and safety of the national forces may be derived from its
  constitutional authority to raise and support armies and to
  declare war, if not from its constitutional authority to
  provide for governing the national forces.[Footnote: _Ex
  parte_ Milligan, 4 Wallace's Reports, 141.]

The Constitution of the United States contains some provisions
restricting the jurisdiction of military authorities and
tribunals over controversies, which are not found in the
Constitutions of the States. It may well be that martial law has
for the United States a narrower meaning than it may possess in a
particular State.

The legislature of Rhode Island in 1842, during "Dorr's
Rebellion," by a Public Act put that State under martial law
until further order, or until its termination should be
proclaimed by the Governor. A squad of militia broke into the
house of a private citizen to arrest him as an abettor of Dorr,
and were afterwards sued in trespass before the civil courts.
The cause finally came before the Supreme Court of the United
States, where (one justice only dissenting) it was held that the
Act could not be pronounced an unjustifiable exercise of
legislative power under any provision of the federal
Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
Reports, 1, 45.] Whether the courts of Rhode Island could have
taken a different view, under the fundamental laws of the State,
was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
Reports, 2, 129.]

On the other hand, there are States in which the Constitution
explicitly provides that "the military power shall always be held
in an exact subordination to the civil authority and be governed
by it."[Footnote: Constitution of Massachusetts, Declaration of
Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
Sec, 22.] It is a serious question whether, under such
provisions, a legislative or executive declaration of martial law
in time of peace, in order the better to cope with some local
disturbance, is to be regarded as an expression of the will of
the civil authority, by virtue of which the civil courts lose the
power of discharging on _habeas corpus_ one restrained of
his liberty by military command. That it is such an expression
was held in Colorado in 1904, but by a court composed of only
three judges, of whom one, in a dissenting opinion, observed that
the decision of his associates "is so repugnant to my notions of
civil liberty, so antagonistic to my ideas of a republican form
of government, and so shocking to my sense of propriety and
justice that I cannot properly characterize it." A similar
question arose, but was not judicially determined, in Arkansas in
1874. There was a contest over the election of Governor. The
Constitution provided that such contests should be decided by the
joint vote of both houses of the legislature. Baxter, the
candidate who was elected on the face of the returns, was
declared elected by the President of the Senate and took the oath
of office. Brooks, the other candidate, presented a petition for
a contest to the lower house, which refused to grant it. He then
applied to the Supreme Court on _quo warranto_ proceedings,
which threw out the case for want of jurisdiction.[Footnote:
State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
suit was then brought in a _nisi prius_ court, on which
judgment was rendered in his favor,[Footnote: This judgment was
reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
173.] and he was put in possession of the executive chambers by
an armed force which he assembled. Baxter then declared martial
law in the county in which the capital was situated, and arrested
two of the judges of the Supreme Court on their way to attend a
special session called to take action in _mandamus_
proceedings brought in behalf of Brooks. They were rescued after
a day or two by United States troops and proceeded to join their
associates. The court then gave judgment for Brooks in his third
suit, directing the State Treasurer to pay his warrants. At this
point the legislature applied to the President of the United
States for protection against domestic violence, under Art. IV of
the Constitution of the United States, and his compliance by a
proclamation officially recognizing Governor Baxter and ordering
the Federal troops to support him closed the history of this
disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
for 1874," 87-100.]

            *       *       *       *       *



                    CHAPTER XXII


       APPOINTMENT, TENURE OF OFFICE AND COMPENSATION
                      OF JUDGES


The oldest which survives of our American Constitution, that
adopted by Massachusetts in 1780, requires the appointment of
judges to be made by the Governor of the State, with the advice
of the Council, and for good behavior.[Footnote: Constitution of
Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]

This plan was substantially followed in framing the Constitution
of the United States. That was planned for a small number of
States, perhaps only nine, certainly at first not over thirteen.
The Senate, therefore, would be a body small enough to serve as
an executive council. Its necessary enlargement by the admission
of new States has long made it but ill-suited for this purpose,
and has thrown the power of confirming or rejecting an executive
nomination for judicial office largely under the control of the
Senators from the State to which the person named belongs,
although this control is much weakened if they do not belong to
the party of the administration. The principle that the greater
the concentration of the appointing power, the greater will be
the sense of individual responsibility for every appointment
made, makes this result of a Senate of ninety members not wholly
unfortunate. The President now consults a council of two.

Thirteen States in all originally gave to the Governor the power
either of appointing or of nominating the judges of the higher
courts; fourteen gave their election to the legislature; the rest
preferred an election by the people.[Footnote: 'Baldwin, "Modern
Political Institutions," 58, 59.] If we compare the original
practice in each State with its present practice, we find that
there are now fewer in which the Governor appoints or nominates;
fewer in which the legislature elects; more in which the people
do. Legislative elections have been found to imply a system of
caucus nominations, and have often led to a parcelling out of
places among the different counties in which geographical
considerations told for more than did fitness for office. In one
State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
since 1880, the legislature has elected on the Governor's
nomination. In practice they have never failed to act favorably
upon it.

Mississippi, which, in 1832, became a leader in the movement
toward the choice of the judges by popular election, in her
latest Constitution (of 1890) follows the plan of the United
States, the Governor nominating and the Senate confirming.

The action of the confirming or electing body when unfavorable in
any State has generally been unfortunate. It is apt to be
affected by local or personal political influence to which the
chief executive would be insensible. A large number of able men
have thus, from time to time, been deprived of a seat on the
Supreme Court of the United States who would have added to its
luster. In 1867 Massachusetts lost a Chief Justice of the first
rank in this way by the defeat of Benjamin F. Thomas. The
council refused, by a majority of one, to confirm his nomination
because, though of the same party with them, he was of a
different wing.[Footnote: Proceedings Mass. Historical Society,
2d Series, XIV, 301.]

In most of the States the judges are now elected by the
people.[Footnote: In thirty-three. In one other (Florida) the
people elect the judges of the Supreme Court, and the Governor,
with the advice and consent of the Senate, appoints those of the
superior courts. The Governor nominates in Delaware, Mississippi
and New Jersey, and in the four largest New England States. In
Rhode Island and Vermont, South Carolina and Virginia, the
legislature elects.] This makes the choice more a political
affair. The nominations are made by party conventions, and
generally in connection with others of a purely political
character. It also, in case of a nomination for re-election,
places a judge on the bench in the disagreeable position of being
a candidate for popular favor at the polls and an object of
public criticism by the political press.

In 1902 a justice of the Supreme Court of Michigan was nominated
for re-election. There was an opposing candidate, some of whose
friends published a statement that in the nine years during which
the justice had already served he had written opinions in 68
railroad and street railway cases of which 51 were in favor of
the companies. He was re-elected, but some time afterwards this
fact was reprinted in a local periodical accompanied by the
remark that "we must conclude that either the railroad and
railway companies--4 to 1--had exceptionally good cases from the
standpoint of law and justice or his Honor's mind was somewhat
warped in their favor.... You can't expurge mental prejudice
from judicial opinions any more than you can from the reasonings
of theologians and atheists.... To imagine a justice deciding a
case against his personal interests is too great a stretch of
imagination for us to appreciate."

A less brutal but more dangerous attack, made in 1903 by a
religious newspaper, illustrates the same evil. The Supreme
Court of Nebraska has decided that under their Constitution the
Bible cannot be used in the public schools. It was, of course, a
pure question of the construction of a law, for the policy of
which the court had no responsibility. The newspaper in
question[Footnote: The Boston _Congregationalist_ of Oct. 3,
1903.] which, though published in the East, had some circulation
in that State, printed this paragraph:

"The Supreme Court judge of Nebraska who wrote the decision that
the State constitution prohibits the use of the Bible in the
public schools is standing for re-election, and the fact that he
made such a decision is not forgotten by the Christian voters."

In States the control of which by one of the great political
parties is assured, the real contest is for the nomination, and
here there is even more license for unfavorable comment on the
judicial record of one who seeks it. In a Southern State there
was such a struggle in 1903 for the nomination of the prevailing
party for Governor. The person who then held that place desired
it. So did one of the justices of the Supreme Court. It is said
that the friends of the former circulated a cartoon representing
the five justices together as five jackasses, and another in
which the justice whom they were trying to run off the field was
caricatured in the act of setting aside a verdict in favor of a
child injured by a railway accident. The two candidates
subsequently met upon the platform for a joint discussion of the
issues before the people. The Governor sharply criticised the
character of the Supreme Court. The judge caught him by the
collar and was about to strike him when friends intervened, and
an explanation of the remarks was made which was accepted as
satisfactory.

In the heat of a political campaign men do not always stop to
measure words or weigh questions of propriety. The personal
character and public acts of an opponent are a legitimate subject
of description and comment. Sharp attacks must be expected as a
natural incident of such a contest, and by candidates for
judicial office as well as others. The public record of all for
whom votes are asked at a public election must be the subject of
open criticism, or there would be danger that unworthy men would
succeed. To treat such observations as have been quoted upon
opinions previously written by a candidate for re-election,
however unseemly or unjust, as a contempt of court would be
indirectly to impair the right of free suffrage.

If assertions published as to acts done or words said are false,
it does not follow that they are libellous. An honest mistake
may be a defense for such a misstatement.[Footnote: Briggs
_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
Reporter, 513.]

Judges of trial courts, when candidates for re-election, may
expect the publication of similar attacks on rulings which they
have made. The following dispatches, which appeared in the same
issue of a local newspaper in Pennsylvania in 1903, when a county
election was soon to occur, will sufficiently illustrate this:

           HOT JUDICIAL FIGHT PROMISED FOR MERCER.
           COUNTY WILL BE SCENE OF AN INTERESTING
                STRUGGLE FOR SEATS IN THE
                    LEGISLATURE.

  Sharon, Pa., Dec. 25.--From present indications the coming
  judicial fight in Mercer County will be a bitter one. Public
  interest centers in the efforts of Judge S. H. Miller and his
  friends to secure a re-election, and the attempts of his
  opponents to place A. W. Williams of Sharon on the bench
  instead. While the sole topic politically is on the judgeship,
  the twenty or more candidates for Assembly are not losing the
  opportunity of fixing their fences. They, too, have assumed a
  reticence in regard to the matter of the judgeship. It is
  expected that on the last lap of the race Williams and Miller
  will be the only two men remaining. There are three other
  candidates for the Republican nomination who have thus far
  announced themselves. They are: W. J. Whieldon of Mercer;
  W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
  Judge Miller and A. W. Williams are the closest of friends.

        JUDGE MILLER ASKS FOR MODERATION. BARS PURE
            FOOD PROSECUTIONS BY REFUSING TO
                SENTENCE THOSE CONVICTED.

  Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
  Warren has been confronted with a new proposition in his
  crusade in Western Pennsylvania against violators of the pure
  food laws. Judge S. H. Miller of Mercer County, before whom
  several oleomargarine dealers were recently convicted for the
  illegal sale of "oleo," has refused to sentence them on the
  ground that the procedure of the State Pure Food Bureau is
  persecution and lacking in equity. He takes the position that
  grocers and saloon keepers, not being expert chemists, should
  at least be warned previous to arrest, and be given a chance to
  determine whether the foods they are handling are pure or
  adulterated. Judge Miller's position is a serious impediment
  in the way of the enforcement of the law, and Commissioner
  Warren is preparing to take action that may compel him to
  punish offenders convicted before him.

Not infrequently in the judicial history of the United States
there has been presented to a judge the choice between rendering
a decision according to his opinion of the law and the facts and
losing his seat, and rendering one according to public opinion,
or the public opinion of his party friends, and keeping it.

A judge of the High Court of Errors and Appeals in Mississippi
was one of the earlier martyrs in the cause of judicial
independence. The State had incurred a heavy bonded debt, which
she found it inconvenient to pay. The Governor, who had approved
the bills under which over $15,000,000 of the bonds had been
issued, concluded in 1841, after the issue, that it was forbidden
by the Constitution of the State, and issued a proclamation
declaring them void. In a suit in chancery this question came up
for decision in 1852. Meanwhile the policy of "Repudiation" had
been made a political issue and the people had given it their
approval by electing its advocates year after year to the highest
offices. The chancellor upheld the validity of the bonds, and on
appeal his decision was unanimously affirmed.[Footnote: State
_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
Sergeant S. Prentiss, II, 268.] A few months later the term of
office of one of the judges who had concurred in this opinion
expired, and the people put a successor in his place who held
doctrines better suited to the public sentiment of the hour.

In the days preceding the Civil War, the validity of the laws
enacted by Congress to secure the recapture of slaves who had
fled to the free States was frequently attacked in the press and
on the platform. The Constitution expressly provided for such
proceedings, and the Supreme Court of the United States in 1842
had pronounced the "Fugitive Slave law" of 1793 to be valid in
all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
Reports, 539.] The principle of this decision plainly covered
the later Act of 1850, but as public sentiment in the North
became more and more uncompromising in its hostility to the
existence of slavery under the flag of the United States, the
State courts were not always strong enough to withstand the
pressure to disregard precedents and let the Constitution give
place to what the phrase of the time called a "higher law."

In 1859, a citizen of Ohio was convicted in the District Court of
the United States and sentenced to jail for rescuing a fugitive
slave who had been recaptured in Ohio by an agent of his master,
to whom he had been committed in proceedings under the Act of
Congress. He was imprisoned in an Ohio jail, the United States
then having none of their own, but placing all their convicts in
State jails or prisons under a contract with the State to keep
them for a certain price. His counsel applied to the judges of
the Supreme Court at chambers for a writ of _habeas corpus_
against the Ohio jailer. He produced his prisoner and submitted
a copy of the warrant of commitment from the District Court. The
public were extremely interested in the outcome of the
proceedings. The Attorney-General of the State assisted in
presenting the petitioner's case. The Governor was one of the
multitude present in the crowded court room. The
Attorney-General declared that the position that the Supreme
Court of the United States had the power to decide conclusively
as to the constitutionality of the laws of the United States and
so tie the hands of the State authority was untenable and
monstrous. "Georgia," he said, "hung Graves and Tassel over the
writ of error of this same Supreme Court. God bless Georgia for
that valiant and beneficent example."[Footnote: _Ex parte_
Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
sectional court composed of sectional men, judging sectional
questions upon sectional influences."[Footnote: _Ibid._,
161.]

Of the five judges, three held that the constitutionality of the
Fugitive Slave law was settled conclusively by repeated decisions
of the Supreme Court of the United States, and that the State
courts could not release the prisoner. Chief Justice Swan gave
the leading opinion. Its positions were thoroughly distasteful
to the people of Ohio. He knew they would be. His term, which
was one of five years, expired in the following February, and the
vacancy was to be filled at the State election in October. On
the day before the judgment was announced he told his wife that
this would be fatal to his re-election. "If the law makes it
your duty to give such an opinion," said she, "do it, whatever
happens." He gave it, and what they anticipated occurred. The
convention of his party declined to renominate him. He resigned
his office immediately after the election and retired to private
life at an age and under circumstances which made it
impracticable for him to re-enter the bar with success, but with
the consolation of knowing that he had acted right.

Chief Justice Day of Iowa, one of the ablest men who ever sat on
her Supreme bench, in the same way lost a re-election by writing
an opinion of the court, which announced a doctrine that was
legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
Reports, 543, 603.] His term was soon to expire. He, too, knew
that this decision would prevent his renomination, and it did.

In 1885, Chief Justice Cooley of Michigan, one of the great
jurists and judges of the country, failed to secure a re-election
to its Supreme Court, which he had adorned for twenty-one years,
largely on account of an opinion which he had written supporting
a large verdict against a Detroit newspaper for libel. The
newspaper, upon his renomination, described him as a railroad
judge, and kept up a running fire through the campaign, which
contributed materially to his defeat.

Political contests cost money, and if judges appear as candidates
for popular suffrage they are naturally expected to contribute to
the expense. The other candidates on the same ticket do this,
and if those nominated for the bench did not, somebody would have
to do it for them, thus bringing them under obligations that
might have an unfortunate appearance, if not an unfortunate
effect. In New York, where some of the judicial salaries are
higher than anywhere else in the country, and the terms for the
highest places are long (fourteen years), it has been customary
for those placed in nomination to contribute a large sum to the
campaign expenses of their party. This is tacitly understood to
be a condition of their accepting the nomination, and the amount
to be paid is fixed by party practice. For an original
nomination by the party in power, it is said to be about equal to
a year's salary; for a renomination half that sum may suffice.

But a judge holding office by popular election must
in any case owe something to somebody for supporting
his candidacy. He is therefore under a natural inclination
to use his power, so far as he properly can, in
such a way as to show that he has not forgotten what
his friends have done for him. There is always a
certain amount of judicial patronage to be bestowed.
There are clerks and messengers, trustees and receivers,
referees and committees, perhaps public prosecuting
attorneys and their assistants, to appoint. Other
things being equal, no one would blame a judge for
naming a political friend for such a position. But as
to whether other things are equal he is to decide. To
the most upright and fearless man the danger of this is
great; to a weak or bad man the feeling of personal
obligation will be controlling. Justice Barnard of the
Supreme Court of New York once observed on the
bench that judges had considerable patronage to be
disposed of at their discretion, and that for his part
he had always succeeded in life by helping his friends
and not his enemies. For this practice, among other
things, he was impeached and removed from office; but
how many judges are there who yield to this temptation
without avowing it?  A French critic of the
elective judiciary has thus referred to these remarks
of Justice Barnard:

  Le Juge Barnard, qui formulait en plein tribunal cette
  déclaration de principes, fut décrété d'accusation et condamné,
  non sans justes motifs. Mais son crime impardonable était de
  proclamer trop franchement les doctrines de la magistrature
  élective: il trahissait le secret professionnel.[Footnote: Duc
  De Noailles, _Cent Ans de République aux Etats-Unis_, II,
  232.]

Most of the old thirteen States in their first Constitutions
provided that the judges of their highest courts should hold
office during good behavior, or until seventy years of age. New
York at first put the age of superannuation at sixty, but after
losing by this the services of Chancellor Kent for some of his
best and most fruitful years, postponed it to seventy. Georgia
was the first to set the fashion of short terms. Her
Constitution of 1798 provided that the judges of her highest
court should be "elected" for three years, but that those of her
inferior courts should be "appointed" by the legislature and hold
during good behavior. The legislature construed this as allowing
it to frame such a scheme of election as it thought best, and
that adopted was for the House to nominate three, from whom the
Senate elected one.[Footnote: Schouler, "Constitutional Studies,"
65.]

In all but three States (Massachusetts, New Hampshire and Rhode
Island) at the present time all judges hold for a term of years,
and as a general rule those of the higher courts have longer
terms than those of the inferior ones. The change from life
tenure to that for a term of years was partly due to several
instances which occurred early in the nineteenth century, in
which it was evident that judges had outlived their usefulness.
Judge Pickering of the District Court of New Hampshire lost his
reason, and to get rid of him it became necessary to go through
the form of impeachment. In 1803, Judge Bradbury of the Supreme
Judicial Court of Massachusetts, who had been incapacitated by
paralysis, was displaced in the same way, though only a few
months before his death. In 1822, an old man who was the chief
judge of one of the judicial districts of Maryland was presented
by the grand jury as a "serious grievance," on account of his
habitual absence from court. His physician certified that his
life would be hazarded if he undertook to attend, but the natural
answer was that then he should resign.

At present, for judges of the State courts of last resort, the
term in Pennsylvania is twenty-one years (but with a prohibition
of re-election); in Maryland, fifteen; in New York, fourteen; in
California, Delaware, Louisiana, Virginia, and West Virginia,
twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
Illinois, and Mississippi, nine. The general average is eight,
although that particular number obtains in but seven States. In
eighteen it is six. The shortest term is two, and is found in
Vermont. It may be noted that the original rule in Vermont was
to elect judges annually. As compared with the terms of office
prescribed at the middle of the nineteenth century, those at the
opening of the twentieth are on the average decidedly longer.

            *       *       *       *       *

The compensation of most American judges is a fixed salary.

In some States, courts of probate and insolvency, and in all
justices of the peace when holding court, are paid by such fees
as they may receive, at statutory rates, for business done. As
in the case of sheriffs and clerks, judges under such a system
sometimes receive a much larger official income than any one
would venture to propose to give them were they to be paid for
their services from the public treasury. A clerk of court often
receives more than the judge, and some judges of probate and
insolvency more than the Chief Justice of their State.

In colonial times, judges were sometimes paid in part by fees, in
part by occasional grants by the legislature, and in part by a
regular stipend. This practice of legislative grants from time
to time in addition to their salaries was continued in
Massachusetts in favor of the justices of the Supreme Judicial
Court for a quarter of a century, in the face of a Constitution
which provided that they "should have honourable salaries
ascertained and established by standing laws."[Footnote: Memoir
of Chief Justice Parsons, 228.] It was evidently indefensible in
principle, and to remove judges, as far as possible, from
temptation either to court the favor or dread the displeasure of
the legislature it is now generally provided in our American
Constitutions that their salaries shall be neither increased nor
decreased during the term for which they may have been elected by
any subsequent change of the law. In a few States it is thought
sufficient to guard against the consequences of legislative
disfavor, and the Constitutions forbid only such a decrease of
salary.

The Chief Justice of the Supreme Court of the United States
receives $13,000 a year and his associates $12,500. Circuit
Judges have $7,000, and District Judges $6,000.

In the States, the Chief Judge of the New York Court of Appeals
receives $10,500 and his associates $10,000. The same salaries
are given in Pennsylvania. In New Jersey, the Chancellor and the
Chief Justice each receive $10,000 and the associate judges
$9,000. In Massachusetts, the Chief Justice receives $8,500 and
his associates $8,000. In the other States less is paid, the
average for associate judges in the highest courts being about
$4,350. Only nine States pay over $5,000. The Chief Justice in
many receives $500 more. These salaries are, however, generally
supplemented by a liberal allowance for expenses, and in some
States each judge is provided with a clerk. In New York, this
addition amounts to $3,700; in Connecticut, to $1,500; in
Vermont, to $300.

The salaries for the highest trial court generally closely
approximate those paid to the judges of the Supreme Court, and in
case of trial courts held in large cities are often greater.
Those for the inferior courts are much lower.

The judges of the principal _nisi prius_ court (which is
misnamed the Supreme Court) in New York City are allowed by law
to accept additional compensation from the county, and receive
from that source more than from the State, their total official
income being $17,500. The trial judges in Chicago also receive
$10,000, although the highest appellate judges in the State have
a salary of only $7,000.

It is not surprising that American judicial salaries are no
greater, but rather that they are so large. They are fixed by a
legislature, the majority of the members of which are men of very
moderate income, and when originally fixed in the older States it
was often by men not altogether friendly to the judiciary. It
was a saying of Aaron Burr, which was not wholly untrue in his
day, that "every legislature in their treatment of the judiciary
is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
186.] Only the influence of the bar has carried through the
successive increases which have been everywhere made.

The first pension to a retired judge ever granted in the United
States was one of $300 voted in Kentucky in 1803. It was offered
to one of the members of the Court of Appeals to induce him to
resign, but the year after his resignation the statute was
repealed on the ground that it was unconstitutional.[Footnote:
Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
States have allowed their judges who have reached the age of
seventy, after not less than ten years' service, to retire, at
their option, receiving the full official salary during the
remainder of their lives. Rhode Island gives hers the same
privilege after twenty-five years' service, and Massachusetts and
Maryland have somewhat similar provisions, except that the judges
on retirement receive but part of what they formerly did. The
Connecticut legislature is in the habit of appointing her judges,
both of the Supreme and Superior Court, when retired at the age
of seventy, State referees for life, with an allowance of $2,500
for salary and expenses, their duties being to try such questions
of fact as the courts may refer to them and to report their
conclusions.

Our State Constitutions now generally provide that judges shall
hold no other public office. Some also provide that all votes
for any of them for any other than a judicial office shall be
void.

            *       *       *       *       *

Occasionally a judge, in order to eke out his official income,
accepts a salaried position, calling for but little of his time,
in a matter of private business employment. This, however, is
rarely done and there are obvious objections to it when the
employer is one likely to have business before the court. Many
of the judges of the higher courts, including several of the
justices of the Supreme Court of the United States, are
professors or lecturers in law schools.

The best mode of appointing judges is that which secures the best
men. Such men are unlikely to accept a place on the bench of one
of the higher courts, unless it carries with it some prospect of
permanence. It does, if it comes to them by way of promotion
after they have served acceptably for a length of time in an
inferior court. But most judges must be taken from the bar and,
save in very unusual cases, will be in large and active practice.
This must be totally abandoned if they take one of the higher
judicial positions; and if they take the lowest, must be made
secondary to it. A lawyer's practice is more easily lost than
gathered. If it is a solid one, it is of slow growth. For one
who has turned from the bar to the bench to expect on retirement
from office to resume his old practice would be to expect the
impossible. He may have achieved a position by his judicial work
which will enable him to take a better position at the bar; but
in that case his clients will be mainly new ones. He is more
likely, particularly if no longer young, to sink into a meagre
office practice and feel the pinch of narrow means, always doubly
sharp to one who by force of circumstances has a certain social
standing to maintain. The leaders at the bar therefore seldom
consent to go upon the bench unless they have property enough to
ensure their comfortable support after they leave it, without
returning to the labors of the bar.

This is one of those evils which carry in some sort their own
antidote. The lawyers, as a body, are always anxious for their
own sake to have an able and independent bench. They do not wish
to trust their causes, when they come before a court of last
resort for final disposition, to men of inferior capacity and
standing. They therefore can generally be relied on to urge on
the nominating or appointing power the selection of competent
men. Their influence in this respect is little short of
controlling. If competent men will not ordinarily go on the
bench of an appellate court, unless by way of promotion, until
they have accumulated a sufficient fortune to make them
comfortable in old age, then as competent men will usually, in
one way or another, be selected, and as few of these are men who
from their youth have been occupying judicial positions, the
judges will usually be possessed of some independent means. A
property qualification almost is thus imposed by circumstances on
those forming the American judiciary in its highest places. The
same thing is true of our higher diplomatic positions. As Goethe
has said, there is a dignity in gold. It is a poor kind of
dignity when unsupported by merit, but if to gold merit be
joined, each lends to the other solidity and power.

Among the men of the first eminence at the bar whom the
meagerness of the salary has kept off the bench may be mentioned
Jeremiah Mason, who declined the position of Chief Justice of New
Hampshire on this account, and William Wirt. Wirt in 1802 was
made one of the Chancellors of Virginia at the age of
twenty-nine. The salary and fees amounted to about five hundred
pounds a year. He married on the strength of it, but in a few
months found that his income was insufficient to maintain his
family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
99.]

Dignity and power, however, are strong attractions. Theophilus
Parsons in 1806 left a practice worth $10,000 a year--the largest
in New England in his day--to take the place of Chief Justice of
Massachusetts on a salary of $2,500. After three years he sent
in his resignation, saying that he found that this sum was
insufficient for his support, even with the addition of the
income from such property as he possessed. The legislature
thereupon raised the salary to $3,500, and he remained on the
bench through a long life.[Footnote: "Memoir of Chief Justice
Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
Island, who then had a practice of $8,000 a year, gave it up for
the Chief Justiceship of the State, though the salary was then
but $750, supplemented by some trifling fees. In a few years,
however, he resigned the office on account of the inadequacy of
the compensation.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 75.]

The qualities of a judge are by no means the qualities of a
politician. The faculty of looking at both sides of a question
and the power of forming deliberate and well-considered judgments
do not tell for much in a campaign speech. The politician's
title to support is standing by his friends. The judge's duty
may be to decide a cause against his friends. Many a lawyer of
eminence might accept a nomination from a President or Governor
involving no participation in a political election contest who
would refuse one from a party convention.

The general sentiment of thinking men in the United States is
that judges should never be chosen by popular vote. It is,
however, an unpopular sentiment. The people in general do not
appreciate the difference between their fitness to select
political rulers and to select judicial rulers--to choose out
good men and to choose out good lawyers. And the people make and
ought to make our Constitutions. Rufus Choate once said that the
question at bottom was, Are you afraid to trust the people?  If
you answer Yes, then they cry out that "he blasphemeth." If you
answer No, they naturally reply, Then let them elect their
judges.

Jefferson was the first to suggest an elective judiciary, basing
his opinion on a misconception of the usage in Connecticut.
There, he wrote, the judges had been chosen by the people every
six months for nearly two centuries, yet with few changes on the
bench, "so powerful is the curb of incessant
responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
July 12, 1816, regarding a new Constitution for Virginia.] In
fact, the Connecticut judges were chosen annually, and those not
holding judicial powers as an incident of political ones were
appointed by the legislature. The experiment of resorting to
popular election was first fully tried in Mississippi in 1832,
under the influence of Governor Henry T. Foote, but in later life
he expressed his regret at the course which he had taken, and the
belief that it had weakened the character of the bench.[Footnote:
"Casket of Reminiscenses," 348.]

The scheme of popular election may be pursued with reasonable
success if the bar use all the influence at their command to
secure both good nominations originally and the re-election of
all who have served well.[Footnote: It is not uncommon for local
bar associations after the party nominations for the bench have
been made to refer them to a committee, on the report of which
those deemed the best are commended for popular approval. In two
judicial districts in Iowa, the lawyers nominate judges for the
district in a convention of delegates from the bar, and then see
to it that the nominations are ratified by the party conventions.
Simon Fleischmann, "The Influence of the Bar in the Selection of
Judges," Report of 28th annual meeting of the New York State Bar
Association (1905).] A conspicuous instance of its success under
such conditions is shown by the repeated re-election of Judge
Joseph E. Gary of the criminal court of the city of Chicago.
Originally elected in 1863, when it was called the Recorder's
Court, he has been re-elected for successive terms of six years
without a break, and in 1903, when he was 82 years old and still
in active service on the bench, received well-merited addresses
of congratulation from the Chicago Law Institute and the Chicago
Bar Association. Judges of Probate, whose functions are largely
of a business character, and who are brought into close contact
with the people at first hand, are frequently re-elected for a
long period of years with little regard to their party
affiliations.[Footnote: In the Probate District of Hartford in
Connecticut there have been but two judges during the last forty
years, though the elections have been annual or biennial.]

In case of those having long terms of office, a re-election comes
more easily and commonly. A man who has been ten or twenty years
upon the bench has become set apart from the community. The
people have ceased to think of him as one of themselves, so far
as the active political and business life of the day is
concerned. His position and his work, if it has been good, have
given him a certain elevation of station. Men have learned to
trust him, and to feel that his presence on the court helps to
make liberty and property more secure. If he receives his party
nomination, he is apt to secure a majority of votes, whether the
others on the ticket are or are not elected. The opposing party
often nominates him also, and sometimes, if his own gives the
nomination to another, nominates him itself, and with success.

In New York it has been generally the case that a good judge of
the Court of Appeals or Supreme Court is re-elected until he
reaches the age limit set by the Constitution. To accomplish
this, however, it has been necessary for the bar to use constant
efforts to bring the nominating conventions of both parties to
the support of the same man or men, and personal ambition and
party feeling have on a number of occasions set up an effectual
bar. Before a recent election of two judges in that State, in
preparation for which a scheme had been suggested by which one of
the outgoing judges of each party should be re-elected, a third
candidate for the succession, himself a prominent member of the
bar and an officer of the State, published a lengthy statement of
his claims, which concluded thus:

"I am a candidate for nomination to the office of Associate Judge
of the Court of Appeals at the coming Democratic State
Convention. I appeal to my fellow-citizens for their support.
While I do not believe that support for judicial candidacy should
be unduly importuned, I feel that the present circumstances
justify me in making this announcement. I have always stood by
my party in its dark days, when others voted the Republican
ticket in the interest of their business. I have assisted in
endeavors to so shape its policies as to make success possible.
Now that this has been accomplished, I do not think that my
fellow-Democrats will thrust me aside to make way for those who
neither affiliate with the party nor vote its ticket."

As a general rule, in the country at large political
considerations are decisive, both in cases of popular election
and of executive nomination, but as to the latter exceptions are
more frequent. One instance has occurred in which a President of
the United States nominated to the Supreme Court a member of the
party in opposition to the administration,[Footnote: Howell
E. Jackson, a Democrat, was thus appointed by President Harrison,
a Republican, in 1893. President Taft, a Republican, has since
appointed two Democrats, justices Lurton and Lamar, and made a
third Chief Justice.] and the same President, upon the creation
of the Circuit Court of Appeals, when there were a number of new
judges to be appointed, gave several of the places to those not
of his political faith. It is, however, to be expected that the
Presidents of the United States, as a general rule, will place
upon the Supreme Court none whose political opinions are not
similar to their own. It is a court wielding too great a
political power to allow this ground of qualification to be
lightly passed over.

Precisely because of this, the political antecedents of the
justices of the Supreme Court are more apt to be discoverable in
their opinions than is the case in State courts. Professor
William G. Sumner, in referring to the change of character of the
Supreme Court by reason of Jackson's appointments to it, remarks
with some truth that "the effect of political appointments to the
bench is always traceable after two or three years in the
reports, which come to read like a collection of old stump
speeches."[Footnote: "Life of Andrew Jackson," 363.]

In States where the judges are only appointed for a certain term
of years, it is not unusual for the Governor, if he has the power
of nomination, to exercise it in favor of outgoing judges who are
his political opponents. So, also, if there happen to be several
original vacancies to fill, it is the traditional method in a few
States to give one of the places to a member of the opposition
party. If the election belongs to the legislature, a similar
practice prevails in some of the older States. In Connecticut
but six instances of refusing a re-election to judges of the
higher courts for mere party reasons have occurred for more than
a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
Trumbull were dropped in 1818 and 1819 as an incident of the
political revolution which destroyed the Federalist party in
Connecticut and brought about the adoption of a Constitution,
under which the judges were to hold for life, to replace the
royal charter. Judges Seymour and Waldo were dropped in 1863
during the Civil War, because they were classed with the "Peace
Democrats." Their successors, however, were appointed from the
"War Democrats," though the legislature was Republican.] In
Vermont, where elections to the Supreme Court were annual, Judge
Redfield was placed on the Supreme bench and then re-elected year
after year for twenty-three successive years by legislatures
controlled by the party politically opposed to him.[Footnote:
Edward J. Phelps, "Orations and Essays," 220.]

In a few States it is not customary for his party to renominate a
judge more than once. Two terms are considered enough for one
man, and when he has served them he should make room for some one
else. Many a judge has thus been taken from the bench at a time
when, with the aid of experience, he was doing his best work.

Appointments to appellate courts are generally provided for by a
scheme calculated to prevent any sudden and general changes of
membership. Not more than one or two receive an appointment in
any one year, so that the terms of not more than one or two can
expire at the same time. Where judges hold for life or--as is
frequently the case--if there is a constitutional provision that
no judge shall hold office after reaching the age of seventy, the
vacancies will, of course, occur and be filled at irregular
intervals. All this, in connection with the natural tendency to
reappoint judges who have earned the public confidence, secures
to the court a certain continuity of existence and consistency of
view. In every court of last resort in the older States there
will be apt to be found some who have served ten or twenty years
and were at first associated with those who had themselves then
served as long. It is not easy to "pack" a court thus
constituted. If, however, some question of supreme political
importance is looming up, likely soon to become the subject of
litigation, the nominating or appointing power is not likely to
be insensible of the party advantages that may result from its
decision in a particular way by the highest judicial authority,
nor of the importance of the vote to be cast by each who may
share in its administration.

During the Civil War Congress passed a conscription law. The
Supreme Court of Pennsylvania pronounced it unconstitutional, and
advised the issue of a temporary injunction to prevent its
enforcement by the officials charged with that function. The
term of the Chief Justice was about to expire. The decision had
been made by three judges, of whom he was one, against two who
dissented. The political party to which he belonged renominated
him, but he was defeated at the polls. A motion was soon
afterwards made to dissolve the injunction. His successor joined
with the former minority in advising that the motion be granted,
and on the ground that the Act of Congress was not
unconstitutional. The two remaining members of the court adhered
to their former opinion.[Footnote: Kneedler _v._ Lane, 45
Penn. State Reports, 238. See this case reviewed in Pomeroy,
"Introduction to the Constitutional Law of the United States,"
Sec. 479.]

In some States the justices of the Supreme Court select one of
their number annually to be Chief Justice for the year ensuing.
In several, whenever there is a vacancy, the office falls, as of
course, to the justice who has the shortest time to serve. This
is a ready way to pass a title about and attach it to as many men
as possible in quick succession. Its ostensible defense is that
there can be no unfair discrimination and favoritism in such an
appointment, and that as the judge whose term has most nearly
elapsed will naturally be the one who has served the longest, he
will certainly have the advantages of experience. These
considerations deserve little weight in view of the sacrifices
that such a scheme entails. Unfair discrimination is indeed
prevented, but so is a just and proper discrimination. The plan
of promoting the senior associate justice when a vacancy occurs
is liable to similar objections, though in less degree. He is at
least not unlikely to serve for a considerable time.

To be a good Chief Justice requires special gifts. Whoever holds
that office should have not only learning and ability, but
patience and courtesy in a high degree. He must be methodical in
the transaction of business, if the docket of the court is a
large one. He should have the art of presiding over its public
sessions and disposing of the minor motions which may be made
from the bar with dignity and tact. He should be a man who
commonly carries his associates with him at its private
consultations in support of any doctrine which he is firmly
convinced to be the law applicable to the case in hand. He
should have the faculty of conciliation. He should know when to
yield as well as to insist, in order to secure the best results
for his court and for his State. He should be able to write a
clear and forcible opinion. The best lawyer in the jurisdiction
who may be supposed to have these qualities and will accept the
position ought to be at the head of its judiciary. Many have
been tempted from the bar by an offer of that place who would
have refused the appointment of associate justice. John Marshall
was one of these. Chief Justice Parsons of Massachusetts was
another. In the Supreme Court of the United States no Chief
Justice has ever been appointed from among the associate
justices, although a nomination was offered to and declined by
Mr. Justice Cushing in 1796. In the State courts the general
practice is to the contrary, and it is common to fill a vacancy
by appointing one of the associate justices.

Popular election and life tenure cannot well go together. The
chance of an irremediable mistake is too great. Judicial
nominations are often the mere incident of the prevalence in a
party convention of one faction of the delegates, whose main
object is to control the nominations for other positions.
American experience seems to indicate life tenure and executive
nomination, with some suitable provision for securing retirement
at a certain age, as likely to secure the best judges of the
higher courts. This has worked well for the United States, and
no State courts have stood higher in the general opinion of the
bar than those thus organized. For the lower courts there is
less necessity and less chance for getting men of the first rank
in attainments and character. Shorter terms of office can
therefore reasonably be prescribed, and the objections to popular
election are correspondingly less. Even as to them, however, the
plan of executive nomination is safer than that of party
nomination. A man acts carefully when he is the only one whom
the public can hold responsible for what is done.

It is customary to provide that vacancies in judicial offices can
be temporarily filled by the Executive until there is an
opportunity for a new appointment or election by the proper
authority.

The place of a judge who is absent or disqualified is in some
States, by authority of a statute or agreement of the parties,
occasionally taken by a member of the bar called in to try a
particular cause or hold a particular term of court.[Footnote:
See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
_v._ Brown, 32 Connecticut Reports, 112.] So the English
assize judges are constituted by special commissions for each
circuit, which include also the barristers on the circuit who are
sergeants at law, king's counsel, or holders of patents of
precedence.

It is hard to dislodge a judge for misconduct or inefficiency.
Our Constitutions give remedies by impeachment or by removal by
the Governor on address of the legislature, but lengthy
proceedings are generally necessary to obtain the benefit of
them, and the decision is often in favor of the judge. Party
feeling is apt to have its influence in such matters. Whether it
does or does not, it is an unpleasant task to assume the
initiative. Those who best know the facts are the lawyers, and
if some of them are the ones to move, it is at the risk, should
they fail, of having afterwards to conduct causes in a court
presided over by one who is not likely to regard them with a
friendly eye.

The number of judicial impeachments in the history of the country
has been comparatively small, and few of these have resulted in
convictions.[Footnote: See Chap. III.] Of the cases which were
successful, the most noteworthy is that of Justice George
G. Barnard of the Supreme Court of New York, who was convicted of
having abused his right to issue _ex parte_ orders and of
other measures of improper favoritism. The Bar Association of
the City of New York brought the charges, and were influential in
carrying the whole proceeding through to a favorable result. In
another instance, occurring in 1854 in Massachusetts, the right
of impeachment was stretched to its limit by removing a Judge of
Probate, Edward G. Loring, the only real ground being that as a
United States Commissioner he had ordered the return of a
fugitive slave under the laws of the United States--laws the
constitutionality of which the highest court of the State had
recently declared to be fully settled.[Footnote: Sims' Case, 7
Cushing's Reports, 285.]

Judges of inferior courts are sometimes removable by the higher
ones for cause, on complaint of a public prosecutor. In such
case, the proceeding being strictly a judicial one, there is more
assurance of success if the charges are well founded. Here also,
however, it will be known from whom they come, and the hearings
are likely to be so protracted and expensive to the State that
only a flagrant case will usually be taken up. The hearings on
such a complaint, brought in New York in 1903, extended over
thirty-six days; the stenographic minutes of the testimony
covered over 3,300 pages; there were over four hundred exhibits
introduced; and the items of cost presented for taxation amounted
to over $20,000.

Removals by the Governor on the address of the legislature have
been more frequent, and occasionally have been dictated largely
by party managers who desired to make places for those of their
own political faith.[Footnote: Schouler, "Constitutional
Studies," 288, note.] In one instance it was attempted, but
unsuccessfully, in Kentucky as a punishment for giving a judicial
opinion that a stay-law recently passed by the legislature was
unconstitutional. A two-thirds vote of each house was required,
and as in the lower house, though it voted for an address by a
large majority, this could not be obtained, the proceeding was
allowed to drop.[Footnote: Niles' Register, XXII, 266. See
_ante_ p. 114.] In all there have been in the whole country
since 1776 not over thirty removals, whether on impeachment and
conviction or on address of the two houses, of judges of a higher
grade than justices of the peace.[Footnote: See Foster,
"Commentaries on the Constitution of the United States,"
Appendix, 633.]

Wholesale removals have also, in rare instances, been effected
for similar purposes by abolishing courts, the judges of which
held during good behavior.[Footnote: See Chap. VII.] Maryland
was the first to do this, abolishing a court and re-establishing
it at the same session, almost in the words of the former law.
Congress followed in 1802 by repealing the statute of the year
before by which a new scheme of Circuit Courts was arranged and
under which sixteen Federalists had been appointed to the bench.
Massachusetts did the same thing in 1811 with respect to her
Courts of Common Pleas.[Footnote: See Chap. VIII.]

The occurrence of vacancies has sometimes been prevented in a
similar manner when the nominating or appointing authority was
politically opposed to the legislature. The existence of a
supreme court is required by all our Constitutions, but the
number of the judges is frequently left to be fixed from time to
time by statute. The Federalists, when they were about to go out
of power, provided that the Supreme Court of the United States
should on the next vacancy be reduced from six to five, thus
seeking to prevent Jefferson from filling such vacancy. By 1863
the number had been raised to ten, but three years later, when a
Democratic President was contending with a Republican Congress,
it was enacted that as vacancies might occur it should be reduced
to seven. In 1869, when a Republican President had come in, the
number was restored to nine, and the new justice for whom a place
was thus made shortly joined in reversing a decision made by the
court not long before and quite unsatisfactory to the majority in
Congress on an important constitutional point. Similar
legislation, for like reasons, has been had in many of the
States.

            *       *       *       *       *



                    CHAPTER XXIII


      THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
                        BENCH


Every lawyer is an officer of the court as fully as is the judge
or the clerk. He has, indeed, a longer term of office than is
generally accorded to them, for he holds his position for life,
or during good behavior.

Courts could not exist under the American system without lawyers
to stand between litigants and the judge or jury. It is a system
that requires written pleadings, originally very artificial in
form and still somewhat so. It imposes many limitations on the
introduction of evidence, which often seem to shut out what ought
to be admitted, and rest on reasons not apparent to any who have
not been specially instructed in legal history. It divides the
decision of a cause between judge and jury in a manner only to be
understood after a long and close study. It gives a defeated
party a right of review dependent on a number of technical rules,
and to be availed of only by those who are skilled in the
preparation of law papers of a peculiar kind.

A class of men has therefore been set apart to keep the people
from direct approach to the bench, except when they may desire to
argue their own cases, which rarely occurs.

In England there are two such barriers, the class of barristers
and the class of attorneys. The attorneys keep the people from
access to the barristers; the barristers keep the attorneys from
access to the court. The attorney prepares the case, represents
his client in the proceedings preliminary to the trial, and
assists the barrister whom he may retain at the trial, but cannot
examine a witness or argue the cause.

In America we do not thus divide lawyers into two classes. There
are many of them who never in fact address the court, but it is
not because they have not a legal right to do so. Every member
of the bar of any court has all the legal rights of any other
member of it.

The qualifications for admission to the bar are generally left to
be regulated by the courts. In a few States they are fixed by
constitutional or statutory provisions. In all, when the
Constitutions do not regulate it, the legislature can. It has
indeed been asserted that the admission of attorneys is in its
nature a matter for the courts only.[Footnote: See _American
Law School Review_, I, 211.] English history does not support
this contention.[Footnote: Pollock & Maitland, "History of
English Law," I, 211-217; II, 226. O'Brien's Petition, 79
Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
Court, which are mere voluntary associations of lawyers, have
from time immemorial exercised the function of calling to the
bar, so far as barristers are concerned, and the admission of
attorneys has always been regulated by Acts of
Parliament.[Footnote: See In the Matter of Cooper, 22
N. Y. Reports, 67, 90.] By our American legislatures the same
course has been generally pursued.

The duty of ascertaining whether candidates for admission have
the prescribed qualifications is occasionally performed by the
judges in person; more often by a committee of the bar appointed
by the court for that purpose; in some States by a standing board
of State examiners, receiving compensation for their
services.[Footnote: This comes from fees paid by those examined.]
The latter method was introduced in the latter part of the
nineteenth century and is steadily gaining in favor. A committee
of a local bar is unavoidably subject to some local influences or
prepossessions. A State board can act with greater independence
and maintain with more ease a high standard of admission.

In early colonial days the legislature sometimes set a limit to
the number of attorneys who could be allowed to practice before
the courts. In some colonies the number at the bar of a
particular court was fixed; in others the number of lawyers in
each county.[Footnote: Acts and Laws of the Colony of Conn., May
session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
No such limitation now exists in any State, and the matter is
left to be regulated by the law of supply and demand. This by
the census of 1900 required over 114,000.

The freer a country is, and the quicker its step in the march of
civilization, the more lawyers it will naturally have. The
growth and importance of the bar are stunted wherever it is
overshadowed by an hereditary aristocracy. A land of absolutism
and stagnation has no use for lawyers. The institutions of China
would not be safe if she had a bar. Lawyers are a conservative
force in a free country; an upheaving force under a despotic
government. In Russia one is found enough to serve over thirty
thousand; in the United States there is about one to every six
hundred and sixty of the population,[Footnote: In 1870, there was
one to every 946; in 1880, one to every 782.] and in England one
to every eleven hundred.

The colonial lawyers of the seventeenth and eighteenth centuries
occupied an inferior place in the community as compared with that
now held by the legal profession. There was comparatively little
opportunity to rise to eminence. The positions on the bench, as
has been seen, were largely held by those not trained as lawyers.
Before such judges it was a waste of words to make elaborate
arguments on points of law.

Among the first settlers were a few who had been educated for the
English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
drafted the _Magna Charta_ or "Body of Liberties" of that
colony, adopted in 1641. His opinion of the need of lawyers may
be inferred from the fact that it provided expressly that those
who pleaded causes for others should receive no compensation for
it. Virginia adopted the same policy from 1645 to 1662. Later,
lawyers practicing in Massachusetts were excluded from the
General Court. As that had large judicial powers, it was thought
fitting to give no opportunity to any to sit there to-day to
judge and to appear to-morrow before an inferior court to argue
as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
III, 104.]

As time went on, an American was occasionally sent to London to
read law. He was apt to be a young man of fortune, who entered
the Temple or the Inns of Court more as a means of gaining
pleasant acquaintances than for any serious purpose of education.
Most of them came from Pennsylvania and the Southern colonies.
Two Presidents of the Continental Congress, Randolph and McKean,
four signers of the Declaration of Independence, Heyward, Lynch,
Middleton, Edward Rutledge, and John Rutledge, one of the first
associate justices of the Supreme Court of the United States,
were of the number.

Not infrequently there were legal proceedings in London which
concerned colonial interests. Their charters were attacked or
colony laws and judgments put in question before the Lords of
Trade and Plantations. In such proceedings, if counsel were
needed, English barristers were generally employed. An American
lawyer now and then went over to consult with them and perhaps to
join in the argument, but the leading part was theirs.

It was not until the quickening and deepening of American life
which preceded and portended the Revolution that anything like a
colonial bar, led by a man of learning and position, really came
into existence.[Footnote: "Two Centuries' Growth of American
Law," 16.] From the middle of the eighteenth century to its
close there was a steady and rapid progress in this direction.
Legal education was taken seriously. In the case of many it
began with the fundamental notions of justice and right. The
Greek and Latin classics on those heads were read.[Footnote:
"Life of Peter Van Schaick," 9.] The private law of the Romans
was studied to a greater extent relatively than it is now. The
first chair of law in the United States was established at
William and Mary College in 1779, and there, under Chancellor
Wythe, John Marshall was a student. President Stiles of Yale, in
his "Literary Diary," so full of that kind of historical incident
which after a few years have passed it is most difficult to
trace, enumerates the books read by his son, Ezra Stiles, Jr.,
between 1778 and 1781, in preparation for the Connecticut bar,
under the advice and in the offices of Judge Parker of Portsmouth
and Charles Chauncey of New Haven. They comprehended, besides
much in English and Scotch law, Burlamaqui's _Principes de
Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
Institutes of Justinian, certain titles of the Pandects, and
Puffendorf _de Officio Hominis et Civis juxta Legem
Naturalem_. James Kent at about the same time was reading
Grotius and Puffendorf in the office of the Attorney-General of
New York, and Edward Livingston, under Chancellor Lansing,
explored all parts of the _Corpus Juris Civilis_.[Footnote:
Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
years later, under the instruction of Chief Justice Parsons of
Massachusetts, took up Vattel and the Institutes of
Justinian.[Footnote: Report of the American Bar Association for
1903, 675, note.] The latter, as well as Van Muyden's
_Compendiosa Tractatio_ of them, his father had studied in
his preparation for the bar thirty years before.[Footnote: "Life
and Works of John Adams," I, 46.]

The lectures of Chancellor Wythe at William and Mary, like those
of Mr. Justice Wilson in 1790 at the University of Pennsylvania
and of Chancellor Kent in 1794 at Columbia, were designed, as
were Blackstone's at Oxford, to give such information as to the
nature and principles of law as might be of service to any one
desirous of acquiring a liberal education. Such instruction
could not be considered as anything approaching a proper
preparation for entering on the practice of the legal profession.

The United States preceded England in the endeavor to provide
such a preparation by a systematic course of study pursued under
competent teachers at a seat of learning established for that
sole purpose.

The need of something of the kind was felt to be pressing after
the independence of the United States had been fully established.
An unusual number of young men of promise were turning from the
army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
the number of attorneys in the State of New York had risen to
120. Morse's "American Geography," ed. 1796, 506. Thirty years
later it was 1,200. Miles' "Register," XIV, 311.] Those already
members of it had educated themselves as best they could, with
slight assistance from the lawyers in whose offices they had
studied. They in turn were indisposed to do more for such as
might desire to read law in their offices. Few of them were
competent to do much.[Footnote: See "Life of Peter Van Schaick,"
9, 13.]

There was a demand for a professed school of law, and in 1784 the
first in any English-speaking country was opened at Litchfield,
Connecticut. There are now 104 of them,[Footnote: Report of the
American Bar Association for 1903, p. 398.] with a total
attendance of over fourteen thousand students. The course of
study in a few may be completed in one year; in most two are
required; in the rest three, with perhaps an offer of a fourth
for advanced instruction leading to the degree of master or
doctor of laws. The ordinary degree is that of bachelor of laws
(LL.B.).

The American Bar Association has had an important influence from
its first organization, in 1877, in prolonging the period and
raising the standards of legal education. In affiliation with it
there is an "Association of American Law Schools," representing a
large majority of the teachers and students engaged in law school
work. This admits no institution into its ranks at which
students are received without a preliminary education at least
equal to that given by the ordinary high school. A few of the
schools so associated receive no student, save in exceptional
cases, unless he already holds a degree in arts, science,
philosophy, or letters from some collegiate institution.

In several of the States having boards of State examiners no one
is admitted to the final examination before them who did not
prior to the beginning of his education receive one of the
degrees above indicated or else pass a special examination before
the same board on certain prescribed studies, corresponding
substantially with those ordinarily pursued in a high school.

Some proof is everywhere required that an applicant for admission
to the bar possesses a good moral character. It is necessarily
largely a matter of form. Certificates are sometimes required
from those familiar with his previous life, and sometimes the
mere motion for his admission by a member of the bar representing
the examining committee is accepted as sufficiently implying that
no unworthy person would be thus presented.

In a few States a distinction is made between attorneys with
reference to the courts in which they may practice. When first
admitted it is to the bar of the trial courts. Later, after a
few years of experience, they can be admitted on further
examination to practice also in the highest courts of the State.

This distinction reaches back, in New Jersey, to the colonial
era. Attorneys were there a different class from "counsellors,"
and, following the English practice, the style of "sergeant" was
also formerly bestowed on leaders at the bar. The last lawyer
bearing the title survived until nearly the middle of the
nineteenth century. In this State the Governor has always issued
the licenses or commissions to attorneys and solicitors in
chancery, but for more than a hundred and fifty years only on the
recommendation of the Supreme Court.[Footnote: _In re_
Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]

The admission of attorneys in the several courts of the United
States is determined by rules which they respectively establish
from time to time. These rules make the only qualification
membership in regular standing for a certain period of time in
the bar of a State and good moral character.

There is no doubt that the United States have been in advance of
England both in providing means of legal education and in
requiring their use. The length of the course of study now
established at our older Law Schools--three years--seems all that
can reasonably be exacted, if a proper foundation of general
discipline and knowledge has been previously laid. The first
provision for one or more years of graduate study for those who
may desire it was made at Yale University in 1876, and a similar
opportunity has since been offered at several others; but it has
been availed of by few, and of these a considerable part had in
view the teaching of law as their ultimate vocation rather than
its practice.

Unquestionably the American bar is now, as a whole, a far better
trained class of men than it was twenty or thirty years ago, and
the efficiency of the courts has been correspondingly increased.

            *       *       *       *       *

Members of the bar are always subject to punishment by the court
for official misconduct. This may be by censure, temporary
suspension from practice, or disbarment. If guilty of contempt
of court, they can also be sentenced to fine or
imprisonment.[Footnote: See Chap. XX.] As suspension or
disbarment means a loss, temporary or permanent, of a livelihood,
it is only ordered in aggravated cases and after an opportunity
for a formal hearing.

Disbarment cannot be decreed by the legislative department. That
would be virtually an act of attainder. It must come from a
judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333, 378.]

In some States the principal trial court, which is the one by
order of which attorneys generally are admitted to the bar,
appoints a standing committee on grievances. In others such
committees are created by Bar Associations, of which almost every
State has one for the whole State, while several have also one or
more local associations. It is the duty of such a committee to
inquire into any instances of professional misconduct that may be
brought to their notice and either institute proceedings for a
hearing before themselves or bring the matter to the attention of
the court, so that they may be instituted there by its order and
conducted by the public prosecutor. In the larger States,
several inquiries of this nature are ordinarily set on foot every
year, which result in suspension or disbarment. In the smaller
States they are rare, both because they have smaller bars and
because the smaller a bar is the more difficult is it for any one
of its number to hide any misdoing from the rest.

The Bar Associations, which first began to start up soon after
the Civil War, have been of great service in upholding the honor
of the profession. Their Constitutions generally name this
particularly as among their professed objects. One
State[Footnote: Alabama] has recently under such influences,
passed a statute making it a misdemeanor for an attorney to send
out "runners" to solicit practice, and requiring the public
prosecuting officer to institute proceedings for any violation of
the law, upon the complaint of the council of the State Bar
Association.

The steadily and rapidly increasing proportion of lawyers to the
population in the United States necessarily tends to a lowering
of their average professional income, and this tendency is not
fully overcome by the increase of the wealth and business of the
country. The principle of the concentration of industry also
works against the great majority of them. Searching titles to
real estate, for instance, was until the last half of the
nineteenth century part of the business of every lawyer. It is
now in the larger cities monopolized by certain firms or
corporations, who own copies or abstracts of the public records,
laboriously prepared, which give them special facilities for
doing the work rapidly and well. So collecting uncontested debts
was formerly the staple of many a lawyer's practice. The general
abolition of imprisonment for debt about the middle of the
nineteenth century rendered the process much more difficult and
the fees less, and of late years great collection agencies,
generally corporations, have sprung up, with an extensive system
of correspondents among members of the bar, by whom most suits of
such a nature are now brought under an agreement to divide their
fees with the central bureau.

Until the last half of the nineteenth century there were probably
no lawyers in this country whose average net income from year to
year was equal to that of the leaders of the English bar. In
1806 there was but one lawyer in New England with an annual
professional income of $10,000: until about 1860 there was none
in Connecticut, and probably not over a hundred in the entire
country.[Footnote: Parton, "Life of Aaron Burr." 153; Great
American Lawyers, III, 55.] In 1827, William Wirt was informed
by Justice Thompson of the Supreme Court of the United States
that "six, eight, and ten thousand dollars is considered great
practice in New York and ten thousand dollars the
_maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"
II, 209.] Thirty years later the same was true, except that
twenty thousand dollars had then become the highest annual
average, and that but of a very few.[Footnote: Parton, "Life of
Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000
when at the height of his career.[Footnote: Harvey,
"Reminiscences of Daniel Webster," 84.]

The Civil War was the occasion of many important business
enterprises, and gave rise to much litigation. It brought also a
great increase of wealth to the North and West, and new and
greater investments of Northern capital in the South. From that
time the business of the leading lawyers in every State became
more remunerative. Incomes of $20,000 and $25,000 were
occasionally earned in the smaller States, and of four or five
times as much in the larger ones.

The American lawyer of the eighteenth century was apt to have his
office in his house. During the nineteenth century this became
less and less common and is now comparatively rare. In cities
certain streets, generally near the court-house, are crowded with
lawyers' offices. These are generally over business stores, but
in some places residential streets have been converted to this
use, and what was formerly a handsome mansion will have the
chambers of counsel on every floor.

In many of the counties in Virginia chambers for the
accommodation of the lawyers are built in the rear of the
court-house on public ground. A small rent is paid by the
occupants to the county. When court is about to open each day
the crier calls out from one of the court-house windows the name
of each lawyer to notify him of the fact.

The relations of the bar to the bench assume a peculiar character
under the conditions of American society. The judges stand
closer to the lawyers in this country than in any other. All of
them, unlike those of continental Europe, have been themselves
practicing lawyers. The majority, unlike those of England, are
young men, sitting in minor courts, who have generally left the
bar for but a brief period, expecting, if not desiring, soon to
return to it. Not a few hold court but one or two days in the
week or one or two hours in the day, and for the rest of the time
are actively engaged in professional practice before other
courts. Those of the latter description always occupy a somewhat
unfortunate position. The State does not expect them to devote
themselves entirely to its service. It does not provide for
their compensation on that basis. It expects them to continue
the general practice of their profession, except so far as their
judicial duties may necessarily prevent. They certainly cannot
practice in their own court with propriety. Statutes to prevent
it are not uncommon. For the same man to charge the jury one day
as judge and address them the next in argument as counsel must
tend to confuse their notions as to the weight they should give
to what he says, and to lend it often a weight which it may not
deserve. So, too, his relations to the clerk and other court
officers are such officially as to give him opportunities for
influencing them when he is engaged at the bar, not shared by his
brother lawyers.[Footnote: French _v._ Waterbury, 72
Conn. Reports, 435; 44 Atlantic Reporter, 740.]

There are, however, in every State quite a number of judges of
higher courts who receive a salary deemed sufficient for their
support and who are expected to devote their entire time to
judicial duties. As respects those of the United States courts
there is a statute (U. S. Revised Statutes, Sec. 713) making it
criminal for them to practice law. Similar legislation exists in
some of the States with regard to the judges of their higher
courts, but without it a sense of propriety dictates their
abstaining from it, and it has even been held that the right of
any judge of a superior trial court of general jurisdiction over
important causes to act as an attorney or counsellor, except in
his own cause, is suspended by implication of law so long as he
retains his seat on the bench.[Footnote: Perry _v._ Bush, 45
Florida Reports; 35 Southern Reporter, 225.]

The demeanor of the judges to the bar is inevitably affected to
some extent by their tenure of office. If they hold their places
for life, they naturally are less sedulous to avoid giving
offense and less ready to tolerate a poor or tedious argument. A
greater distance is maintained for this cause between bench and
bar in the federal courts than is usual in most of the State
courts.

No judge, however, desires to have the reputation of being
overbearing, rough or impatient, and few are. Chief Justice
Parsons of Massachusetts at one time fell into an inveterate
habit on the circuit of checking counsel in argument rather
curtly when they seemed to him to wander from the vital point.
The leaders of the bar of Boston finally determined to stop it,
and arranged at the next term at which he was to preside that
whoever of them was thus treated should leave the court room.
The first to address the court was checked in the usual manner,
and observing that he regretted his argument seemed not worthy of
the court's attention, took his papers and went out. The next
met the same kind of interruption in the same way, and so on
until the court room was cleared. The Chief Justice afterwards
sought an explanation, received it in good part, and was forever
cured of what had been a serious impediment to his usefulness on
the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.]
Occasionally a trial judge will have a similar lesson taught him
by finding no business to be disposed of when he opens court, and
learning later that the bar agreed to the continuance of all
pending cases, because they did not care to trust him with them,
or were disinclined to submit to his manner of conducting a
hearing.

Judges are universally desirous of securing the good opinion of
the bar as respects their knowledge of law and powers of
discrimination and analysis. The bar is their little world. It
is a critical world, for in every case that is tried there will
be one lawyer who is dissatisfied with the result, and likely to
think the judge wrong rather than himself, if every proposition
of law which he has asserted has not been conceded.

It is much more common for American judges to be too tolerant of
a waste of time by counsel than to be too impatient at
it.[Footnote: See a striking instance of this tendency given in
Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau,
69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They
dislike even to seem harsh. Most of them also hold office only
for a term of years and do not forget that undue severity may
jeopardize their re-election. This is one reason for the fact
that at all points the bar are subject to fewer restrictions upon
their conduct in the trial of causes in American courts than in
those of most other countries. Another, and a more fundamental
one, is that the judges and lawyers stand more nearly on the same
level both in public regard and official position. The lawyer
holds a more permanent office in the court than the judge. He is
quite likely to be his superior in learning and ability. He
belongs to a class that is influential in the community, and
whose members usually share quite actively in the direction of
party politics. The judge in most instances holds but a brief
authority. He does not wish to parade it in such a manner as
might seem offensive. He is in danger of seeming to parade it if
he goes beyond what is necessary in regulating the conduct of the
lawyers who may appear before him. The judge who keeps a rigid
watch on the examination of witnesses to exclude all improper
testimony, whether objection be made to it or not, declines to
hear argument on matters that may appear to him too clear to
justify it, and is impatient when argument on doubtful points is
continued longer than he thinks worth while, may be respected,
but he will never be popular. Trials for these reasons are
longer in the United States than in England. Fewer summary
rulings are made. More questionable evidence is admitted. More
time is allowed to counsel in the argument of the cause, and more
freedom in arguing points that may seem immaterial to the court.

The broad liberty of appeal generally allowed is another reason
for hesitation on the part of trial judges to interfere more than
seems absolutely necessary with the management of a cause by
counsel. It is not merely the legal right of appeal but the
practice under it which is a peculiar feature of our judicial
system. A foreign lawyer often hesitates to cross swords with
the judge. He distrusts his own judgment if it differs from that
of the court. He defers to the opinion of the bench, not only as
stating the law of the case, but as probably stating the law of
the land. He therefore seldom appeals on minor points of
procedure, even if he could. In the United States probably one
case in ten of all that go to trial is carried up for review on
points of law; many of them mere matters of practice not
affecting the merits of the cause.

The American lawyer can also safely speak with freedom of the
conduct of the government or of high officials should it come in
question.

Those in any court, high or low, who hope for a reappointment
know that the best way to obtain it is to secure the good will of
the bar. The reputation of a judge depends on the opinion which
the lawyers have of him. The general public may be deceived as
to his character, ability and attainments; the bar cannot be.

In the public sessions of court there are few judges who are not
impressed with the necessity of maintaining the dignity of their
position as representing the power of the State. The lawyers
recognize this feeling as just. It is common for them to rise as
a body when the judge enters the bench. They find no difficulty
in using the conventional style of address of "May it please the
Court," or "May it please your Honor." When a ruling is made in
the course of a trial the lawyer, whose client is adversely
affected by it, accepts it without further discussion, simply
reserving his exception, if he have one, for purposes of review
in a higher court. If, in addressing the jury, counsel exceed
the bounds of professional license in commenting on testimony or
alluding to the character of the parties, the court will check
them without hesitation.

Less outward respect was shown toward the courts by the bar in
former times than now, and it often received less courtesy of
treatment from the bench. An incident occurring in Massachusetts
about the beginning of the nineteenth century may serve as an
illustration. Robert Treat Paine, a signer of the Declaration of
Independence, resigned his seat on the bench of the Supreme
Judicial Court in 1804, at the age of seventy, largely on account
of deafness. Naturally somewhat imperious in temperament, his
bearing toward the bar had seemed harsher from this infirmity.
Fisher Ames used to refer to him as _Ursa Major_, and once
told a friend that he should not go into court again, when Judge
Paine held it, without a club in one hand and a speaking trumpet
in the other. Theophilus Parsons, not long afterwards made Chief
Justice of the State, was arguing before him one day when the
judge, under the misconception into which a deaf old person so
easily falls, that the younger generation all speak hurriedly and
indistinctly, cried out, "Mr. Parsons, I tell you once for all,
take that glove off your tongue." "Certainly, Sir," was the
quick retort, "and may I beg your honor to take the wool out of
your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]

Some twenty years later Roger Minott Sherman, the leader of the
Connecticut bar, in trying a cause before an empty-headed judge
who had been put on the bench for no other apparent reason than
that his father was a man of distinction, quoted several English
authorities and was about to read from another when the judge
remarked that he need not take the trouble to read anything more
of that sort to him. "Then," said Mr. Sherman, "with your
Honor's permission I will read from it to the jury, and let me
say that it is an opinion of Lord Ellenborough, a Chief Justice
of England who rose to the bench by his own merits, and shone by
no reflected light."

One of the anecdotes of the Boston bar is that while Samuel
Dexter, one of the great lawyers of his day, was arguing a cause
in the Circuit Court of the United States before Justice Story,
soon after his accession to the bench, the court suddenly
interposed, as a certain principle was asserted, with "That
proposition is not law, Sir," to which Mr. Dexter retorted, "It
is the law, if your Honor please, and will finally be declared to
be the law by this court," as indeed it was later by Justice
Story himself.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 241.]

Such a passage at arms between court and counsel as took place in
either of these instances could now hardly occur.

Out of court there is no longer this distance between judge and
lawyer. While they will not talk over an unfinished case, one
that is finally disposed of is often the subject of free comment
by each. They are now entirely upon the same level in the
community. Officialism is put off when the court room is closed.

Socially they meet in the same circles and on the same footing.
It is considered not improper for a judge to accept the
hospitality of a lawyer concerned in a case before him, and even
a case on trial. The American rule in this respect is much less
strict than the English.[Footnote: See "Memoir of Chief Justice
Parsons," 208-211.]

            *       *       *       *       *



                    CHAPTER XXIV


                  THE LAW'S DELAYS


The right to be heard before judgment, the right to have judgment
rendered only on due process of law, and the right in most cases
to a jury trial, necessarily make the course of justice slower in
this country than it need be in one where there are no such
guaranties in favor of those against whom the aid of a court is
invoked. The plaintiff, too, has corresponding rights. It was
found not so easy by Frederick the Great to enforce his famous
decree that every lawsuit in his dominions must be finished in a
year. In a freer land no such result is possible.

The power of the judge to expedite trials is also much less in
the United States than in most countries. They must be had
mainly on oral testimony. The testimony must be so given that
thirteen different men may each understand it. What the
witnesses may be allowed to tell, and what they cannot be,
depends on the application of numerous and artificial rules of
evidence. If there is a question as to whether this rule or that
applies, the judges sometimes invite and generally allow a
discussion by counsel. Appeals are liberally conceded. If
exceptions to any ruling of the court are to be made the basis of
proceedings in error, they must be carefully noted at the time,
and afterwards made the subject of a lengthy set of papers.

Many trial judges are young men of little experience either on
the bench or at the bar. They are learning the law by
administering it. Such men cannot decide controverted points in
a moment, and shut off all unnecessary discussion in the manner
that might be expected and tolerated from judges of the first
rank. It is hardly probable that they will always come to the
right decision at last. Hence it is that so great a liberty of
appeal is granted in every American State.

Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate
whose appeal is heard within three months and decided within six.
Oftener he must expect to wait a year or two. During a long
course of years an appeal to the Supreme Court of the United
States could not be reached for argument in regular order in less
than three years after it was taken. In Nebraska, for some time
prior to 1901 the Supreme Court was so overwhelmed with business
that it could not hear a cause until five years after it was
docketed.

In 1882 a brakeman was injured on a New York railroad. He
brought suit against the company, and in 1884 recovered $4,000
damages. The judgment in 1886 was reversed on appeal. On a new
trial he got a verdict for $4,900. This was appealed to two
courts successively. The first affirmed and the second reversed
the judgment. In 1889, there was a third trial, at which the
company won. Two appeals by the brakeman followed. On the first
the intermediate appellate court, in 1894, decided against him.
On the second, in 1897, the court of last resort decided for him.
For the fourth time the case came on in the trial court, and a
verdict for $4,500 was recovered. The company appealed and with
success. A fifth trial gave him a verdict for $4,900. This,
too, was set aside on appeal. A sixth trial followed with
exactly the same results. In 1902, the seventh and final trial
took place. The verdict this time was for $4,500. The company
appealed again, but was defeated.[Footnote: Case and Comment, X,
50.] A lawsuit that embraces seven appeals and lasts for twenty
years is, of course, a rarity, but the system of administrative
justice under which such things are possible is faulty somewhere.
The right of trial by jury is one cause of such delays. The
broad right of appeal is another. The want of skill and
experience on the part of trial judges and trial lawyers may be a
third. The twenty-three English judges of the High Court of
Justice (with the aid of masters in chancery and referees)
actually try and determine about fifty-six hundred cases a
year.[Footnote: This was the average number for each of the years
1900 and 1901.] Each judge, therefore, on the average,
dispatches over two hundred and forty. No American judges under
our American system of practice could do as much and do it well.
We tolerate a succession of motions and objections and arguments
from the bar which English courts would not. We often take more
time in impanelling a jury than they would in trying the case.

The American bar, unlike the English, is not so constituted that
a certain number of its members are professedly devoted in a
special way to the trial of cases. The English barrister in
active practice may almost be said to do nothing else. His
standing and his income depend on his ability to try case after
case in rapid succession. Others are responsible for their slow
and careful preparation. He is responsible for their quick and
effective dispatch when the preparation is ended. He becomes
necessarily familiar with the _technique_ of a trial at
every point. In examining a witness, he strikes directly at what
is material, and would be ashamed to appear ignorant of what that
is. In argument he stops when he is through. The ordinary
American lawyer who tries a case to-day, draws papers
constituting a partnership or a corporation the next, and
prepares an opinion on the construction of a will the day after,
has not that concentration of knowledge which comes from
concentration of occupation.

The art of making a clear and definite statement of the points in
controversy on paper is also one not sufficiently cultivated by
the American bar. Without it the system of "code pleading,"
which has in most States supplanted the rigid and often
meaningless forms of the common law, leads to confusion and
obscurity. The claims of each party ought to be, but seldom are,
so presented that matters of law are, so far as possible, kept
distinct from matters of fact, and what he means to prove is set
forth, but not the evidence by which he hopes to establish it.
This looseness of pleading leads to endless motions to expunge
this and correct that, and time of the court is taken up by the
preliminaries of trials which, if the lawyers used more care or
had more skill, would be devoted to the trials themselves. Still
worse is it when such motions are postponed until the case comes
on for final hearing, and witnesses and juries are compelled to
wait during tedious arguments over questions of mere form.

In our great centers of population business under these
circumstances almost necessarily accumulates too fast for the
courts to handle it.

In bringing on criminal trials there is little delay, unless at
the request of the accused, and for what seems good reason. Our
Constitutions generally provide that whoever is to be tried on a
criminal charge shall be tried promptly, and the practice of the
courts conforms to this rule. The broad right of appeal,
however, for errors of law on the part of the court may serve to
postpone the execution of a sentence, and too many new trials are
granted by the courts for steps in procedure in matters of a
purely technical character. Delays from this cause are, however,
comparatively infrequent. Most convicts are too poor to take
advantage of it. Most also know that their sentence is just, and
are anxious only to have it executed and through with as soon as
possible. In hardly one case in a hundred is an appeal taken or,
if taken, pursued to the end.[Footnote: See Chap. XVII.]

In our largest cities the disposition of criminal business
occupies the time of several judges, and the prosecuting officer
has a staff of professional assistants. In cases of such
importance as to call for his personal management a postponement
is occasionally inevitable. In Chicago, in December, 1903, over
a thousand cases were awaiting trial in the Criminal Court.

It tends to expedition in the trial of any cause if it is heard
before a judge especially familiar with the class of questions
which it involves. Criminal courts, particularly in cities, are
largely held by judges whose work is either wholly or mainly
confined to them. This helps greatly to prevent delays in such
tribunals. For a similar cause admiralty business is dispatched
with great rapidity by the District Judges at our principal
ports, and patent causes by the Circuit Courts.

In the criminal courts of New York City in 1903, there were about
3,000 prosecutions on which indictments were found, and the
defendant committed for want of bail. In most of these cases
there was a plea of guilty, but counting them with the others,
the average time as to all which elapsed between the original
arrest and the final judgment was only eight days. During the
same time those who gave bail were generally tried within three
months from their arrest.[Footnote: Nathan A. Smyth in the
Harvard Law Review for March, 1904.]

An insufficiency of judges was formerly one great cause of delay,
but the modern tendency has been to have too many, rather than
too few. In the Court of Chancery in Virginia (which was held by
a single Chancellor, then a man seventy-six years old) there were
in 1802, 2,627 causes pending at one term.

In the city of New York a jury trial in civil causes cannot
ordinarily be reached until two years after they are brought. In
its principal trial court between four and five thousand cases
are annually disposed of, and in 1903, there were nearly ten
thousand on its docket. When the criminal courts in the borough
of Manhattan--the greatest division of the city--were opened in
October of that year, there were nearly five hundred different
prosecutions to be disposed of, and a hundred and sixty-seven
prisoners awaiting trial who had been unable to procure bail.

In the county containing the city of Chicago (and which contains
little else), there were in 1903 twenty thousand civil cases on
the dockets of the courts. This mass of business it would
require more than two years and a half to dispose of with the
number of judges then provided, were no new suits instituted to
divide their attention.

A very large part of the cases tried to the jury are claims for
damages for accidental injuries received by employees in the
course of their service. In the county in Missouri including
Kansas City there were, in December, 1903, over fifty-one hundred
civil causes on the dockets of the various courts. The
population of the county was less than two hundred thousand.
About three-fourths of the cases were against corporations for
injuries received by their employees. The defendant in such an
action is generally in no hurry to bring it to trial. The
plaintiff often is not. He may have a weak case, brought in the
hope of forcing a settlement. He has probably no money to pay
his lawyer for trying it, and finds it hard to get together what
is necessary to summon his witnesses and provide expert testimony
as to the nature of his injuries.

Whenever it is tried, however, he is sure to want a jury, for if
the case is a good one a jury is apt to give larger damages than
a judge, and if a bad one a jury is less likely to appreciate its
weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156
Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A
jury trial is much slower than a trial before a judge, although
the decision is apt to come more quickly. It also facilitates
appeals by necessarily presenting more occasions for error. A
judge in trying a cause, if evidence of doubtful competency is
offered, can admit it provisionally and exclude it afterwards if,
on deliberation, he thinks that it should not be considered.
With a jury this is impossible. There must be an immediate
ruling one way or the other. In the charge to a jury, also,
opportunities are offered for exceptions which do not exist if
the cause is to be decided by the judge alone. He does not have
to instruct himself in public. He can study the case in private
at his leisure.

A cause of delay formerly existed in several States which arose
from the method of computing the costs taxable against the losing
party. They included, by statute, a certain sum, say twenty-five
or thirty-three cents a day for each day's attendance at court by
the prevailing party. This was construed to mean each day during
which the action lay in court, since upon any of them it might by
possibility be called up, and the client was always represented
by his attorney of record, a notice to whom was a notice to him.
Christian Roselius, one of the leaders of the New Orleans bar in
the nineteenth century, once said that he had spent a fourth of
his life in the court house waiting for his cases to be called.
The lawyers, as the duty of attendance fell on them, generally
considered this allowance as their perquisite. An attorney with
a large docket received, therefore, a number of dollars for every
day the court sat, and the longer the term lasted or the more
terms to which a cause was carried over, the larger was his gain
if his client ultimately obtained judgment, and the defendant was
of financial responsibility. This system was not universally
discontinued until the last quarter of the nineteenth century.

A few States, by statute or constitutional provision, set a
certain time within which a decision must be rendered after the
trial. California gives ninety days; Idaho (Const., Art. V.,
Sec. 17) thirty. A sanction for the law sometimes provided is
that the judge cannot draw his salary until he has made oath that
he is in no default.

            *       *       *       *       *



                     CHAPTER XXV


       THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY


Americans are proud of their country and of their State. They
are proud of their scheme of government, by which an imperial
world-power has been created for certain national and
international purposes, resting on a collection of States, each
of which is an independent sovereignty, absolutely as respects
the others, and for the most part as respects the United States.
They are in the mass an educated and intelligent people. The
public schools have thus far been found adequate to Americanizing
the children of foreign immigrants. The colored population of
the South stands largely by itself, and constitutes no active and
self-moving force in matters of political concern. An educated
and intelligent people living under a government of written law
of their own making cannot but know how vital it is that this law
should be fully guarded and fairly administered. Americans have
become distrustful of their legislatures. They believe that much
of their work is ill-considered, and that some of it has its
source in corruption. They are far removed from the chief
executive magistrates, and from the sphere in which they move.
The President comes nearer to them than the Governor of their
State because he stands for more, and personifies their country,
but it is not from him that they look for peace and safety in the
ordinary affairs of life and home. They look for these to the
courts, and they know that they will seldom look in vain.

Only an educated and intelligent people can live under a written
Constitution. It requires of those whom it governs a certain
spirit of conservatism, a certain sentiment of reverence for
ancient institutions. Our Constitutions are mainly the work of
former generations. We may amend or recast them, but the
substantial framework will remain the same. Our Declarations of
Rights speak the language and the lessons of the eighteenth
century. Their provisions are almost wholly aimed at our
executives and legislators. They give guarantees which the
judiciary only can enforce. No people can steadily prosper
unless a just mean be preserved between reform and conservatism
in the administration of the government. The courts stand for
conservatism, but by their recognition of custom as law, and
their free use of logic and analogy to develop law, they also
keep a door open for the entrance of reform.

The courts also come very close to the people. They are to be
found in every county and almost every township. They settle the
estates of the dead. They protect the living. They act largely
through juries made up of the people and returning to them after
a brief term of public service.

All these considerations put Americans in a friendly attitude
toward the judiciary. It makes less show of authority than the
policeman or the militiaman. But the people feel that it has
authority and is ready to exercise it always to secure that right
be done. When a plain man who thinks that he has been wronged by
another declares that he "will have the law on him," it expresses
his conviction that he can get justice from the courts.

The creation of the judiciary of the United States was welcomed
at the outset by all.[Footnote: See "Life of Peter Van Schaick,"
435.] It was not until party feeling had become intense that
Republicans found it difficult to look with approval on a force
evidently becoming stronger every day, and that Jefferson could
describe the Supreme Court as the sappers and miners who were
gradually undermining the foundations of American
liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.
"Works of Thomas Jefferson," VII, 192.]

Of the political questions which engaged attention over the whole
country from time to time from the adoption of the Constitution
to the close of the Civil War, almost all bore some relation to
the institution of slavery and derived their real vitality from
that connection. Slavery depended on State laws. Unless the
authority of each State to allow and regulate it were preserved,
its countenance would be endangered. This was largely the source
of the "State Rights" cry.

Almost all the powers which the United States possessed the
States had lost. For thirteen years each had been in the
position of a full sovereign. Its courts had exercised
jurisdiction over all kinds of actions. Now a new set of courts
had risen up having over many actions an equal jurisdiction, over
some a superior one.[Footnote: See Chap. X.]

The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'
Reports, 419.] in 1793, and the institution of similar suits
against other States of the South showed that the Supreme Court
of the United States claimed authority to render a money judgment
against a State, which meant that it could then issue an
execution to collect it by levying on the property of the State.

In 1798, the Alien and Sedition Laws were passed, and a crime
previously cognizable exclusively in the State courts was made a
subject of prosecution in those of the United States if it
affected an officer of the United States. A member of Congress,
Matthew Lyon, of Vermont, who was sentenced in the Fall of that
year to a fine of $1,000 and four months in jail for writing of
the President and Senate, that his message to Congress in 1797
was a bullying speech, which the Senate in a stupid answer had
echoed with more servility than ever Geo. III. experienced from
either house of parliament, served his time and paid the fine,
but for the amount of the latter he was reimbursed by Congress in
1840.

The case of Jonathan Robbins[Footnote: See Chap. III.] in South
Carolina in 1799, showed that the Circuit Court at the request of
the President could surrender an American citizen to a foreign
government to be carried off and tried for murder. This and the
sentence of Lyon became immediately the subject of hot discussion
in Congress, and both contributed to the political revolution
which put Jefferson in the seat of Adams in 1801.

The creation by the outgoing party of places for eighteen new
Circuit Judges appointed by Adams in the last month of his
administration strengthened the popular feeling that the courts
of the United States were too powerful. That Act was at once
repealed,[Footnote: See Chaps. IX, XXII.] and also the provision
for the next regular term of the Supreme Court. The latter
measure was taken to prevent any legal proceedings in the Supreme
Court to secure its intervention in behalf of the displaced
judges.

The new circuit system had been swept away, but the full bench at
Washington, headed by Marshall, remained. The unsuccessful
impeachment of one of them followed in 1804.[Footnote: See
Chap. III.]

His acquittal the next year, and that of a majority of the
Supreme Court of Pennsylvania,[Footnote: McMaster, "History of
the United States," III, 159.] who were impeached there at the
same time for punishing a libel on certain proceedings before
that court by a sentence of imprisonment, satisfied all that it
was practically impossible to secure the removal of a judge
except for the gravest cause. Judicial independence had been
secured by the very struggle to defeat it. What has won in any
contest finds favor with the multitude. They admire a victor.
From this time on the courts both of the United States and the
States grew in public esteem. When those of the former seemed to
trench on the fields of State sovereignty, particularly in the
South, the inroad was resented.[Footnote: See letters of Marshall
alluding to this, in "Proceedings of the Massachusetts Historical
Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern
State it was even opposed by force.[Footnote: See Chap. X.] As
late as 1854 the supremacy of the Supreme Court of the United
States in expounding the federal Constitution was contested by
the courts of a Northern State; there also in a case growing out
of the system of slavery.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]

Another decision by the same tribunal of a similar nature--that
in the Dred Scott case[Footnote: Dred Scott _v._ Sandford,
19 Howard's Reports, 393.]--greatly strengthened the confidence
of the Southern people in the federal courts, and weakened that
of the North.

It did much to bring on the Civil War, but the result of that
struggle was to confirm the authority not only of the Supreme
Court but of the Supreme Court as it was under Marshall and his
original associates. In 1901, the centenary of his appointment
was celebrated all over the country, North and South. Such a
tribute was never paid before in any country to the memory of a
judge. His services were commemorated for the very reason that
led Jefferson to depreciate them--because they led to the
establishment of a strong national government with a controlling
judicial authority adequate to protect it within its sphere from
interference or obstruction in any way by any State.

Confidence in the State courts has also been strengthened during
the last century. It was greatly shaken at the time of the fall
of the Federalists. They had lost the executive and legislative
power, but they retained the judicial, and the Republicans found
it hard to tolerate courts that represented the political ideas
of a former generation. This continued long after the extinction
of the Federalist party, and often extended to distrust of judges
elected by the Republicans who were thought to have become
affected by the influence of their senior associates.

In the New York constitutional convention of 1821, Peter
R. Livingston appealed to the lawyers present to say "whether it
has not been the case that when a man in the country of any
political standing has had a suit depending at a circuit court,
he has not consulted with his counsel to know what judge was to
preside at the circuit; and whether he has not been frequently
told that a political judge was to preside and it would not do to
let the cause come on."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 618.] Who, he asked, were the
present judges of their Supreme Court?  "Judge Spencer came into
office under a republican administration; Judge Van Ness was
appointed by a mongrel council; and the elevation to the bench of
Judge Platt was occasioned by the defection from the Republican
ranks of a man elected to the Senate from the county of Dutchess,
who acted the part of a political Judas, and sold his party. We
have been bought and sold--there is not one of these men who
would have been on the bench if our administration had been truly
republican.... There is not a man in this Convention who is a
republican of any standing or character who would like to have
his liberty or property placed in the hands of a political judge
of a different party."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 620.]

The judiciary may also have suffered somewhat in the esteem of
dispassionate observers on account of its attitude in many of the
States toward the financial enterprises in corporate form, in
which so much money was made and lost in the first third of the
nineteenth century. In commenting on a judicial opinion in a
Southern bank case, the author of one of our leading American
legal treatises, himself once a judge, has referred to this
period in these plain words:

  Decisions of this kind, which were not infrequent in the era of
  State banks of issue, can only be "reconciled" with modern
  holdings in view of the well-known fact that nearly all the
  politicians were creditors of those political banks, by notes
  often renewed, at the time when they finally suspended, and
  that all the judges were politicians. It can hardly be doubted
  that in many of those semi-barbarous decisions the judges were
  either rendering decisions to exonerate themselves from their
  liabilities to the insolvent banks or to exonerate powerful and
  influential politicians upon whom they depended for the tenure
  of their offices.[Footnote: Thompson on "Private Corporations,"
  V, p. 5306.]

It is quite probable that an insensible bias in favor of friends
and neighbors may have had its share in producing the judgments
to which reference was thus made, but quite improbable that they
were the fruit of baser motives. Independently of other
considerations, every judge is watched by sharp eyes in every
step which he may take in the progress of a cause. He acts in
view of the bar at large, and of two of their number in
particular, one of whom probably will be disappointed by his
decision, and solicitous to ascertain and employ every reasonable
ground for overturning it.

The Bar Association of the country have exercised a large
influence during the past thirty years in maintaining public
confidence in the purity of the bench.

It is extremely rare that suspicion of corruption attaches to a
judge; and rarer still that it attaches justly. Jurors are
occasionally found who are guilty of it, and more who, without
being chargeable with so black a crime, are more interested in
serving a friend than in doing justice. As a whole, however,
American courts are clean-handed throughout, and the people know
it.

The judiciary has been popularized in most States by
constitutional provisions replacing tenure during good behavior
by stated terms of years, and appointment by the Governor or
legislature by election by the people.

The powers of judges have been on the whole increased. The only
matter in which they have been substantially cut down is that of
punishment for contempt. Serious attempts have been made to
abridge their jurisdiction over injunctions, but without success.
These attacks have come from those representing certain labor
unions. The more thorough organization of working-men in all
trades and callings during the last half century, and the
development of collectivism as a working theory, have produced a
class of leaders among them who regard the courts as manned by
representatives of capital and controlled in the interests of
capital.[Footnote: The number of the _Pennsylvania Grange
News_ for Sept., 1904, states this view at length.] As a
judicial office can only be properly filled by one who has had a
legal education and as, aside from a few petty magistrates and
local tribunals, practically all our judges are trained lawyers,
it necessarily follows that they cannot belong to the class of
working-men in the general acceptation of that term. Their
education has cost money and is generally the fruit of capital.
The judges of the higher courts are usually men of some means.
If they were not, they could not have afforded to accept their
places. But the people at large do not believe that only the
poor man can be relied on to deal justly on the bench. The mass
of working-men do not believe it. They do believe that courts
have too much power over them in their associated relations.
They are in favor of cutting off the right of issuing injunctions
to suppress boycotts or "picketing" in case of strikes. But they
know that it is from the legislatures and not from the courts
that this must be sought.

The federal judges stand higher in public estimation than the
State judges of corresponding rank. This is partly on account of
the paramount authority of the government which they represent.
It is partly also because there are none of them who occupy the
lower grades of judicial station with a petty jurisdiction over
petty controversies. It is more because of their permanence of
tenure. This removes them from that field of criticism which
surrounds every public officer who holds for a term limited in
duration, and is always in the position of a candidate for
re-appointment.

Our methods of judicial appointment are not such as always to
exclude political feeling from the bench either of the States or
of the United States, but the people know that there is less of
it there than in any other department of governmental action.

President Hadley of Yale University has thus expressed what is
the general view of the work of the courts held by thoughtful men
in the United States; and it is they who in the long run form and
lead public opinion.

"On the whole, federal and State courts alike have been not only
a protection, but the one really efficient protection of minority
interests against oppression by the majority.... It has more
than once happened that an impatient majority has denounced these
courts as instruments of partisanship. The anti-slavery leaders,
the soft money leaders, and the labor leaders have in turn taken
exception to their utterances, and even ventured to impugn their
motives. But I think that most intelligent men who know the
history of the country will say that our courts have been the
real bulwarks of American liberty; and that while Hamilton and
his associates would be somewhat disappointed in the working of
the machinery of legislation and administration if they could see
it in its present shape, they would be filled with admiration at
the work which has been accomplished by the judiciary. I believe
it to be the judgment of sober-minded men that the courts have
furnished the agency which has guarded us against excesses, and
have saved the American republic from the necessity of repeating
the successive revolutionary experiences which France underwent
before she could attain to a stable democracy."[Footnote:
"Freedom and Responsibility," 23, 24.]

This confidence in and respect for the judiciary as a whole has
increased with the general advance of the country in population
and wealth. There have been larger questions with which to deal,
and the courts have been found adequate to the task. But at the
same time the personal consequence and reputation of every
individual American judge has been steadily decreasing. As
States multiply and the range of litigation widens, the work of
judicial exposition of legal principles comes to be shared by so
many hands that what any one man does is of comparatively small
account. There is no room for star players upon the stage.
Broad as it is, it is too crowded for one to make a conspicuous
place for himself and stand as Marshall or Story, Kent or
Parsons, did, apart from his fellows. Popular confidence is now
not placed in courts because this or that man is the ruling
spirit in them. It is impersonal and attaches itself to the
institution of the judiciary as, all things considered, the best
guaranty of good government in the United States.

This spirit of confidence is, of course, not universal and
unqualified. It is often not found in bodies of working men,
associated as Labor Unions. They have repeatedly found a court
enforcing public order in a way that interfered with their manner
of conducting a strike. They have been met by injunctions, and
more often by criminal prosecutions. The membership of a Labor
Union, in many parts of the country, is apt to be largely of
foreign birth. The leaders not infrequently know little of the
English language and less of American institutions. They have
been led, in their native land, to regard the law and its
officers as their enemies, and they look at them in the same way
here. It is believed, however, that a large majority of the
Unions regard them with respect, and it is certain that such is
the prevailing feeling of non-union men.

But that the public trust in our judges is less than it was when
the first edition of this work was published,[Footnote: See
_supra_, page 340.] is indicated by the favor with which, in
many quarters, the doctrine of the "judicial recall" has been
received. The dangers incident to its practice are obvious, and
seem far to outweigh any attending advantages.

In the United States, of all lands on the face of the earth, it
is important that the judges should act with resolution and
without thought of the consequences personal to themselves.
Elsewhere in form, but here only in fact, are judges armed with
the power of declaring legislative action void which is in
conflict with a higher form of law, that proceeded directly from
the people, and mainly from the people of a former generation.
To expose one who exercises this power to immediate displacement,
by a popular vote--largely, perhaps, composed of his political
opponents--is to invite the enactment of questionable statutes,
and still worse--to weaken the attractions of the bench for able
and honest men. Our judicial terms, in most of the States, are
already too brief for the public good. To make them determinable
at the will of the electoral constituency tends powerfully to
keep good lawyers at the bar, who might otherwise have done honor
to a judicial station.





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