delegate were to be called morally upright who surveys every question
from the point of view of the welfare of the entire nation; for then
indeed the purity of Congress will be by no means free from doubt. Few
Americans, however, would recognize such a political standard. When
great national questions come up for discussion Congress has always
shown itself equal to the occasion, and when the national honour is at
stake, as it was during the Spanish War, party lines no longer exist;
but when the daily drift of work has to be put through it is the duty of
every man to uphold as obstinately as possible the interests of his
constituency. Especially the political interests of his party then
become predominant, and, seen from a higher point of view, there are no
doubt many sins committed in this direction. Many a measure is given its
quietus by one party, not because of any real inexpediency, but simply
in order to embarrass the other party, to tie up the Administration, and
thus to weaken the hopes of that party at the next election. In recent
years such party tactics on both sides have prevailed time after time.
Most frequently it is the present minority, under its leader, Senator
Gorman, which has resorted to this policy and held out against the most
reasonable propositions of the Republicans, simply because these
measures would have increased the Republican respect before the nation.
On the other hand, party lines are all the time being broken through by
these or those local interests, and any one observing the distribution
of votes cast in the House will see clearly how, oftentimes, the parties
mingle while the issue lies perhaps between two different geographical
sections. When oleomargarine is the order of the day the representatives
of the farming districts are lined up against those from industrial
sections. If it is a question of getting Congress to approve the great
irrigation measures, whole troops of Democrats hasten to forget that,
according to their fundamental principles, such an undertaking belongs
to the state, and not to the federal, government; the representatives
from all the Democratic states which are to be benefited by such
irrigation, fall into sweet accord with the Republicans. Thus the party
divisions are all the time being forgotten for the moment, and it looks
as if this weakening of party bonds were on the increase. By supporting
his party principles each Congressman assists toward the next victory of
his party, but by working for the interests of his locality he is surer
of his own renomination. The requirement that a candidate must reside in
the district that elects him naturally strengthens his consideration for
the selfish claims of his constituency. Thus it is only at notable
moments that the popular representative stands above all parties; he
generally stands pat with his own party, and if the voters begin to nod
he may take his stand somewhat below the parties.
Yet, on looking at Congress as a whole, one has the impression that it
accomplishes a tremendous amount of work, and in a more sober,
business-like, and efficient way than does any other parliament in the
world. There is less talking against time; in fact, there is less
talking of any kind, and because the Administration is not represented
at all there is less fighting. The transactions as a whole are therefore
somewhat less exciting; a single Congressman has less opportunity to
become personally famous. Yet no American would desire to introduce a
ministerial bench at the Capitol, or to have the next Congress adopt
Austrian, French, German, or English methods.
CHAPTER FIVE
_Justice_
Going from the hall beneath the central dome of the Capitol toward the
Senate, in the left wing one passes by an extraordinary room, in which
there is generally a crowd of people. The nine judges of the federal
court, the Supreme Court of the United States, are sitting there in
their black gowns, between Greek columns. The President and his Cabinet,
the Senate, and the House of Representatives fill the American with a
pride which is tempered by some critical judgment on this or that
feature, or perhaps by a lively party dissatisfaction. But every
American who is competent to judge looks on the Supreme Court with
unqualified admiration. He knows very well that no force in the country
has done more for the peace, prosperity, and dignity of the United
States. In the constitutional make-up of the Federal Government, the
Supreme Court is the third division, and co-ordinate with the
Legislative and the Executive departments.
The jurisprudence of a nation forms a totality; and therefore it will
not do to discuss the work of the nine men sitting at the Capitol,
without throwing at least a hasty glance at the administration of
justice throughout this enormous country. There is hardly anything more
confusing to a European; and while the Englishman finds many features
which are reminiscent of English law, the German stands helpless before
the complicated situation. It is, most of all, the extreme diversity of
methods which disquiets him. It will be quite impossible to give here
even a superficial picture of the machinery of justice. A few hints must
suffice at this point, while we shall consider many features in other
connections, especially in discussing social problems.
The jurisprudence adopted by the United States comes from three sources.
The average American, on being asked what the law of his country is,
would say that it is “common law.” If we except the State of Louisiana,
which by a peculiarity has the Napoleonic Code, this reply suffices for
a rough idea. But if a German, having in mind perhaps the two German law
books, the penal and the civil codes, both of which he can put so easily
into his pocket, were to ask after some formulation of the common law,
he would be shown a couple of huge bookcases with several hundred stout
volumes. Common law is not a law book, nor is it a system of abstract
formulations, nor yet a codification of the prevailing ideas of justice.
It is, in fact, the sum total of judicial decisions. The establishment
of common law signifies that every new case as it comes up is decided in
conformity with previous decisions. The earlier decision may be a bad
one, and very much offend one’s sense of justice; but if no superior
authority has annulled it, it becomes historic law and determines the
future course of things. American law came originally from the English.
The early English colonists brought with them across the ocean the ideas
of the English judges, and the states which have sprung up lately have
taken their law from the thirteen original states. If to-day, in Boston
or San Francisco, any one finds a piece of jewelry on the street and
another snatches it from him, he can have the thief arrested, although
the object found is not his property. The judge will decide that he has
a right to the object which he has found until the original owner
appears, and the judge will so decide because in the year 1722 a London
chimney-sweep found a valuable ornament, out of which a jeweler later
stole a precious stone; and the English judge decided in favour of the
chimney-sweep.
The disadvantages of such a system are obvious. Instead of a single book
of law embodying the will of the nation, the decisions handed down by
single insignificant judges in different parts of the world, decisions
which originated under wholly other states of civilization and from
other traditions, still have final authority. Again and again the judge
has to adapt himself to old decisions, against which his sense of right
morally rebels. Yet the deep, ethical motive behind this legal system is
certainly plainly evident. The Anglo-Saxon would say that a national
code cannot be constructed arbitrarily and artificially. Its only source
is in the careful, responsible decisions given down by the accredited
representatives of the public will in actual disputes which have arisen.
There is no right or wrong, he would say, until two persons disagree and
make a settlement necessary, and the judge who decides the case creates
the right with the help of his own conscience; but as soon as he has
given his decision, and it is set aside by no higher authority, the
principle of the decision becomes justice for all times. Every day sees
new formulations of justice, because new conflicts between human wills
are always arising and require new settlements; but up to the moment
when a decision is made there exist only two conflicting desires
existing in the matter, but nothing which could be called justice.
Although it seems at first sight as if a legal system, which is composed
of previous decisions, would soon become antiquated and petrified, the
Anglo-Saxon would say with firm conviction that just such justice is the
only one which can be living, because it springs not out of
rationalistic preconceptions, but from actual experience. The
Anglo-Saxon jurisprudence is full of historical reality and of
picturesque individuality. It has grown as organically as language, and
is, in the estimation of the Anglo-Saxon, as much superior to a mere
code as the ordinary speech of a people, in spite of all its historical
inconsistencies, is superior to an artificially constructed speech like
Volapük. And he would find many other points of superiority. He would
say, for instance, that this is the only system which gives to every man
on the judge’s bench the serious sense of his responsibility; for the
judge knows that in every case which he decides, he settles not only the
fortunes of James and John there present, but he influences for all
times the conception of justice of the entire nation. He feels
especially that the binding force of previous decisions reassures the
public sense of right, and lends a continuity which could never be
afforded by the theoretical formulations of an abstract code.
Another factor must be taken into account. A judicial decision which is
forgotten as quickly as the voice of the judge who speaks it, can never
have so considerable an influence on the public mind as one which itself
creates law. In one sense, to be sure, the German judge creates law too;
the penal code sets wide limits to the punishment of a criminal, and
within these limits the judge assigns a certain penalty. He does in a
sense create the right for this particular case; but the characteristic
difference is, that in the German Empire no subsequent decision is in
the least affected by such preceding decision. The German judge finds
justice prescribed for him and he is its servant, while the American
makes it and is its master. This gives to the judicial utterance an
historical weight and enduring significance, which contribute vastly
toward keeping judicial doings in the focus of the public consciousness.
The same is brought about in still another way. Since the decision of
the judge is largely dependent on previous cases, the fate of the
parties contending may depend on whether they are able to point to
previous decisions which are favourable to their side. The layman cannot
do this, and it falls to the counsel. In this wise a sphere of action is
open to the American lawyer which is incomparably greater than that of
any German Anwalt. The former has to concern himself not only with the
case in hand, but he has to connect this concrete instance with the
whole historic past. Thus the profession of the lawyer comes to have an
inner importance which is unknown to the European, and which in many
cases necessarily exceeds the importance of the judge, since he is bound
to comply with the decisions adduced by the counsels for both sides. The
judges are selected from the ranks of lawyers, and are, therefore,
brought up in the idea that law is composed of former decisions, and
that the decisions of the bench are admirable only so far as they are
consistent enough with the earlier ones to force the conviction and
respect of the lawyers. Thus barristers and judges are entirely at one,
and are together entrusted with the public sense of right, as it has
developed itself historically, and as it is day by day added to and
perpetuated, so that it shall be a never-failing source of quickening to
the conscience of the masses.
In the masses of the people, on the other hand, the natural tendencies
are favourable anyhow for developing a lively sense of justice. It is a
necessity devolving naturally on the individualistic view of things. The
protection of individual rights and the inviolability of the individual
person, with all that belongs to it, are the individualist’s most vital
concern. Many outward features of American life may seem, indeed, to
contradict this, but any one who looks more deeply will see that
everywhere the desire for justice is the essential trait of both the
individual and the nation; and the public consciousness would rather
endure the crassest absurdities and misunderstandings in public affairs
than the least conscious violation in the administration of justice.
Again and again important trials go to pieces on small technical errors,
from which the severe sense of justice of the American is not able to
free itself. The public is always willing to endure any hardship rather
than to tolerate any maladministration of justice.
On the finest square in Boston stands a large and magnificent hotel,
erected by rich capitalists. The building laws provide that structures
facing that square shall not exceed a height of ninety feet; but in
violation of the law certain cornices and balustrades were added to this
building above the ninety-foot line, in order to give an artistic finish
to the structure, and still to turn practically every inch allowed by
law to account for rentals, which are high in so palatial a building.
Every one agreed that this ornamental finish was highly decorative and
satisfactory in the æsthetic sense, but that it must, nevertheless, be
taken down, because it violated the law by some seven feet. The cornice
and balustrades have, therefore, been demolished at great expense, and a
handsome structure has been made absolutely hideous—a veritable
monstrosity. The best square in the city is disfigured, but every
Bostonian looks on this building with gratification. Beautiful
architectural detail may indeed have been sacrificed; but the public
conscience has won, and it is on this that the nation rests.
It is merely incidental that very much, and indeed much too much, of
that which the Germans account matters of justice, is relegated by the
American point of view to other tribunals; some, for instance, are held
to be political questions, and thus it often appears to the foreigner as
if there had been a violation of justice where really there has been
only some political abuse. But matters of that sort loom up whenever any
nation tries to form an opinion about another. In Germany, indeed, the
American seems to see many violations of justice, where the German would
find only an historically established social or political abuse.
As we have said, American justice is based on the decisions handed down
in earlier cases. But this is, after all, only one of the three sources
of law. That form of law-making is also here recognized which in Europe
is the only form; the law-making by the majority of the people’s
representatives. We have seen how Congress passes every year hundreds of
laws. Many of these are indeed special measures, with no universal
application; not a few, however, are of very broad application and
involve an unlimited number of possible instances. And just as the
Congress of the United States, so also can the legislature of each state
prescribe general regulations, applicable within the state. Such laws
made by the legislature are technically called statutes. These are
engrossed in the statute-books of the state, and supersede all opposed
decisions which may then exist. The federal judge, like the judge in a
special state, is therefore bound to earlier decisions only so far as
these are not expressly annulled by statutes.
Here we find one of the main reasons for the extraordinary complexities
of the American law; forty-five legislatures are making laws for their
several states, and in this way they of course give expression to the
diversity of local needs and the varying grades of culture. At the same
time, the principle of law, based on earlier decisions, is always
combined with the principle of the statute-book. In the cases, both of
the laws of Congress and those of the separate states, the judges who
first come to apply the statutes in practice, are privileged to make
their own interpretation; and here, too, the interpretation handed down
in the judge’s decision is valid for all future cases.
In both the federal and state courts a legal action may be carried from
the lower to the higher courts, and the decision of the highest tribunal
becomes definitely law. The forty-five-fold diversity refers thus not
merely to the statutes of the separate states, but also to the
interpretations of those statutes which have been given by the upper
courts of those states.
The third source of law is the only one that prescribes absolute
uniformity for all parts of the country. This is the Constitution of the
United States. The Constitution must not be conceived as the creation of
Congress; Congress was created by the Constitution. Therefore every
provision of the Constitution is a higher law than any bill which
Congress can pass, just as the law made by Congress is higher than the
decision of any judge. No Congress can modify a clause of the
Constitution. The assent of the entire people is necessary for such a
revision. Congress can, however, propose an amendment to the
Constitution, and a two-thirds majority in the Senate and the House
suffice to bring the proposed change before the nation, to be voted on.
It has then to be passed on by the forty-five state legislatures, and
will become a law with the approval of three-quarters of the states.
At first glance it seems as if this were a judicial machinery which
would be far too complicated to work smoothly; it seems as if sources of
friction had been arbitrarily devised, and as if continual collisions
between the authorities of the several systems would be inevitable. This
is true in two instances especially; firstly, the judicial machinery,
which carries out the federal laws, sometimes collides with that of the
separate states. Then, secondly, the complicated system of
Constitutional provisions, devised a hundred years since, may interfere
with the progressive measures of Congress or the separate states; and
this must be a source of much uncertainty in law. These are the actual
difficulties of a legal sort. Everything else, as for instance the
enormous diversity of the laws in the separate states, is of course very
inconvenient, but gives rise to no conflicts of principle.
Neither of these two difficulties finds its counterpart in Germany. In
no Prussian city is there a German tribunal side by side with the
Prussian, no imperial judge beside the local judge; nor can one conceive
of a conflict in the German Empire between the creators of the legal
code and the law-givers who frame the provisions of the Constitution.
This doubleness of the judicial officials is in every part of the Union,
however, characteristic of the American system and necessary to it. The
wonderful equilibrium between centripetal and centrifugal forces which
characterizes the whole American scheme of things makes it impossible
from the outset for either the whole Federation to become the sole
administrator of justice, or for such administration, on the basis of
federal law, to be left entirely to the separate states. As a matter of
course, a clear separation of jurisdiction has been necessary. The
Constitution provides for this in a way clearly made necessary by the
conditions under which the Federation was formed. Justice in the army
and navy, commercial policies, and political relations with other
countries; weights and measures, coinage, provisions, interstate
commerce, and the postal system, the laws of patents and copyrights, of
bankruptcy, and of naturalization, the laws of river and harbour, cases
of treason, and much else are left to the Federation as a whole. While
all these matters fall naturally within the scope of federal law, there
are, on the other hand, obvious reasons whereby certain classes of
persons should be under the jurisdiction of the federal courts. These
are, firstly, diplomatic ministers and consuls; secondly, either actual
or legal parties when they belong in different states; thirdly, and most
important, the states themselves. Wherever a state is party to an
action, the Supreme Federal Court must hear the case and give the
decision. On the other hand, the Constitution declares expressly that,
wherever jurisdiction is not explicitly conferred on the federal courts,
it pertains to the individual states; therefore, much the larger part of
criminal law belongs to the states, and so the laws of marriage and
inheritance, of contract, property ownership, and much else.
For the administration of cases within its jurisdiction, the Federation
has divided the whole country into twenty-seven districts, whose
boundaries coincide partly with state lines, and of which each has a
district court. Groups of such districts form a circuit, of which each
has a circuit court, which sits on the more important cases, especially
civil cases involving large interests. And, finally, there is a court of
appeals. These districts and circuits are now coincident with the
regions lying in the jurisdiction of the several states. In their method
of procedure the federal and the state courts resemble each other,
especially in the general conduct of criminal cases, which is everywhere
the same, because the Constitution itself has fixed the main features.
Both state and federal courts are alike bound by the extraordinarily
rigid rules framed by the Constitution in order to protect the innocent
man against the severity of the law.
No criminal can be condemned except by a jury which has been sworn to
perform its duty, and before he comes before this jury a provisional
jury has to make the accusation against him. Thus one sworn jury must be
convinced of the justice of the suspicion before a second jury can give
its verdict. A person cannot be brought up for trial twice for the same
crime; no one can be compelled to testify against himself; every one has
the right to be brought before a jury in the district where the crime
was committed, to hear all the testimony against him, to have counsel
for his own defence, and to avail himself of the strong arm of the law
in bringing to court such witnesses as would speak in his favour; cruel
or excessive penalties may not be fixed, nor a man’s freedom or property
interfered with except after due process of law. The Constitution
provides this, and a good deal else, and thus makes the conduct of
trials uniform. In other respects, however, there are not a few
differences which are not so obvious in the courts. Among these is the
circumstance that federal judges are appointed for life, while the
judges of the separate states are elected for short periods of from four
to seven years.
The relations between constitutional laws and legislative laws seem even
more complicated. Here, too, in a way, the same province is covered by a
two-fold system of laws. The fixed letter of the Constitution and the
living decisions by a majority in Congress or in a state legislature,
stand in opposition to each other. It is established that no legislature
can ride over the Constitution; and if the interpretation of a court
brings out a contradiction between the two systems, a conflict arises
which in principle makes justice uncertain. If we now ask how it is
possible that all such conflicts have disappeared without the least
prejudice to the national sense of justice, how in spite of all these
possibilities of friction no disturbance is seen, or how in a land which
has been overrun with serious political conflicts, a jurisprudence so
lacking in uniformity has always been the north star of the nation—the
reply will be that the Supreme Court has done all this. The upper
federal court has been the great reconciling factor in the history of
the United States, and has left behind it a succession of honourable
memorials. Its most distinguished chief justice has been John Marshall,
who presided over it from 1801 to 1835. He was America’s greatest
jurist, and contributed more than any one else toward impressing the
spirit of the Constitution on the country.