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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 deg. to that of 193 deg. west
longitude. Great Britain contended for the three-mile limit.
Pending diplomatic negotiations as to this point, one of our
revenue cruisers seized a Canadian vessel which was engaged in
seal fishing nearly sixty miles from the Alaskan coast, and she
was condemned, on a libel by the United States, by an admiralty
court in Alaska.
The owner in 1891 applied to the Supreme Court of the United
States for a writ to prohibit the enforcement of this decree of
confiscation. The Attorney-General of Canada filed in this suit
papers in aid of the application, stating that he did so with the
knowledge and approval of the imperial government, and that he
would be represented by counsel employed by the British minister
resident. The writ was refused on technical grounds, but the
court, through Chief Justice Fuller, made these observations as
to the merits of the cause:
In this case, Her Britannic Majesty's Attorney-General of
Canada has presented, with the knowledge and approval of the
Imperial government of Great Britain, a suggestion on behalf of
the claimant. He represents no property interest in the
vessel, as is sometimes done by consuls, but only a public
political interest. We are not insensible to the courtesy
implied in the willingness thus manifested that this court
should proceed to a decision on the main question argued for
the petitioner; nor do we permit ourselves to doubt that under
such circumstances the decision would receive all the
consideration that the utmost good faith would require; but it
is very clear that, presented as a political question merely,
it would not fall within our province to determine it.... We
are not to be understood, however, as underrating the weight of
the argument that in a case involving private rights, the court
may be obliged, if those rights are dependent upon the
construction of acts of Congress or of a treaty, and the case
turns upon a question, public in its nature, which has not been
determined by the political departments in the form of a law
specifically settling it, or authorizing the executive to do
so, to render judgment, "since we have no more right to decline
the jurisdiction which is given than to usurp that which is not
given."[Footnote: _In re_ Cooper, 143 United States
Reports, 472, 503.]
In the following year a convention was concluded between the
United States and Great Britain for the submission of the
question of our jurisdiction over Behring's Sea to arbitration.
The arbitration took place and the award supported the British
contention. Congress passed an act to give it full effect. The
convention provided in terms that "the high contracting parties
engage to consider the result of the proceedings of the tribunal
of arbitration as a full, perfect and final settlement of all the
questions referred to by the arbitrators."
In July, 1891, before the award was made, an American vessel
engaged in the seal fishery outside the three-mile limit was
seized by one of our revenue cutters. A libel was filed by the
United States in the admiralty court for Alaska and she was
condemned. Her owners appealed to the Circuit Court of Appeals,
on the ground that the seizure was made outside of the
jurisdiction of the United States. If so, they were entitled to
her release. The court held that the limits of this jurisdiction
were conclusively settled by the award, and thus adverted to the
claim that they should treat the case as the Supreme Court of the
United States had dealt with that which followed the seizure of
the year before:
This question has been settled by the award of the arbitrators,
and this settlement must be accepted "as final." It follows
therefrom that the words "in the waters thereof," as used in
section 1956, and the words "dominion of the United States in
the waters of Behring Sea," in the amendment thereto, must be
construed to mean the waters within three miles from the shores
of Alaska. In coming to this conclusion, this court does not
decide the question adversely to the political department of
the government. It is undoubtedly true, as has been decided by
the Supreme Court, that, in pending controversies, doubtful
questions which are undecided must be met by the political
department of the government. "They are beyond the sphere of
judicial cognizance," and "if a wrong has been done, the power
of redress is with Congress, not with the judiciary." The
Cherokee Tobacco, 11 Wall., 616-621. But in the present case
there is no pending question left undetermined for the
political department to decide. It has been settled. The
award is to be construed as a treaty which has become final. A
treaty when accepted and agreed to becomes the supreme law of
the land. ... The duty of courts is to construe and give
effect to the latest expression of the sovereign will; hence it
follows that, whatever may have been the contention of the
government at the time _in re_ Cooper was decided, it has
receded therefrom since the award was rendered, by an agreement
to accept the same "as a full, complete, and final settlement
of all questions referred to by the arbitrators," and from the
further fact that the government since the rendition of the
award has passed "an act to give effect to the award rendered
by the tribunal of arbitration."[Footnote: The La Ninfa, 75
Federal Reporter, 513, 517.]
The degree of confiscation was therefore reviewed. It will be
noticed that this result was reached in a suit by the United
States in one of their own courts, in which the claim of the
government was one of territorial boundary, and yet that the
court overruled the claim and threw out the suit on the strength
of an award made in pursuance of the law of the land. The treaty
was the law. This law provided for the award and made it,
whichever view should be adopted, final. It was therefore for
the court to accept it as final, even against the resistance of
the political department of the government, and do justice
accordingly.
The courts before the Revolution, and in some States for half a
century after it, served as a kind of political mouthpiece. The
institution of the grand jury[Footnote: See Chap. XVII.] afforded
the means. Those composing it are personally selected by the
sheriff from the principal men in the county. It is the duty of
the court to instruct them at the opening of the term which they
are summoned to attend as to the law and practice governing the
exercise of their functions. Frequently this charge was prefaced
by an harangue from the judge on the social, moral, religious or
political questions of the day.[Footnote: "Life and Works of John
Adams," II, 169.] To this the grand jury were not backward in
responding with compliments and perhaps presentments.
In Massachusetts they went even further in 1774. The House of
Representatives of the Provincial Assembly impeached the Chief
Justice for accepting a salary from the Crown instead of relying
on legislative grants, as had been the practice. The Council
before which the articles were exhibited declined to entertain
them. The people, however, felt that the House was right, and
this sentiment was manifested at the next sessions of the courts
by the grand and petit juries in every county. They refused to
take the oaths and stated that they could not take part in
proceedings presided over by a judge who was under impeachment.
No business was done in court until the following year, when,
after the battle of Lexington, new judges were appointed by the
Council.[Footnote: "Life and Works of John Adams," II, 332; X,
240; "Principles and Acts of the Revolution," 100.]
Sometimes the laws of the State were criticised in this way by
judge and jury.
In December, 1788, a grand jury in South Carolina made this
presentment:
We present as a grievance of the greatest magnitude the many
late interferences of the legislature of the State in private
contracts between debtor and creditor. We should be wanting in
our duty to our country and regardless of the obligation of our
solemn oath and the high trust at this time devolving upon us
by operation of the laws of the land, did we omit this occasion
between the expiration of one legislature and the meeting of a
new representative body, to express our utter abhorrence of
such interferences.[Footnote: "American Museum," VII, Appendix
II, 10. _Cf. ibid._, 19.]
In a similar way unpopular treaties[Footnote: McMaster, "History
of the People of the United States," II, 229.] or acts of
Congress were formerly attacked. In 1819, the action of the
House of Representatives as to the introduction of slavery in
Missouri was the subject of a warm protest from a grand jury in
that territory, which closed thus:
They hope those restrictions will never more be attempted; and,
if they should, they hope by the assistance of the genius of
'76 and the interposition of Divine Providence to find means to
protect their rights.[Footnote: Niles' Register, XVII, 71.]
The protective tariffs of the United States were frequently
presented as grievances in the South during the years preceding
the nullification movement in South Carolina.[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of the
American Historical Association for 1901, II, 117.]
In 1825, a grand jury in Pennsylvania presented as a grievance
the suspension of Commodore Porter from duty for six months under
sentence of a naval court martial, approved by the Secretary of
the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
grand jury in Tennessee presented a "protest against the bold and
daring usurpations of power by the present Executive of the
United States" (John Quincy Adams), and stated that "being
decidedly opposed to the present administration, we have for
ourselves resolved to oppose all those we have just reason to
suspect to be friendly thereto, and recommend the same course to
all our fellow-citizens of Blount County."[Footnote: Niles'
Register, XXXII, 366.]
In 1777, the Chief Justice of South Carolina began his charge to
a grand jury with a long statement of the justice of the
Revolution, its military successes, and the duties of patriotism.
The court thereupon ordered "That the political part of the Chief
Justice's charge" be forthwith printed.[Footnote: Principles and
Acts of the Revolution, 347.]
In 1790, Judge Grimke of the same State took advantage of a
similar occasion to comment with severity on those who had
opposed the ratification of the Constitution of the United
States. Jealousy had done much to poison their minds, he said,
"for it is observable that throughout the whole of the United
States a majority of the leaders of the opposition to our newly
adopted government are not natives of our soil; hence this
pernicious quality of the mind displays itself more widely in
America."[Footnote: "American Museum," VIII, Appendix II, 33.]
In 1798, when Elbridge Gerry was the Republican candidate for
Governor of Massachusetts, a Federalist newspaper reported
approvingly a charge of Chief Justice Dana of that State. He had
been an ardent politician before going on the bench and had
declined a nomination as minister to France during the preceding
year. "The learned judge," said the Boston _Centinel_, "in
a forcible manner proved the existence of a French faction in the
bosom of our country and exposed the French system among us from
the quintumvirate of Paris to the Vice-President and minority of
Congress as apostles of atheism and anarchy, bloodshed and
plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
"Memoirs of Elbridge Gerry," II, 296, note.]
In 1800, Justice Chase of the Supreme Court of the United States
made several charges in Maryland hardly less objectionable, one
of which was afterward unsuccessfully set up by the House of
Representatives as a ground of his impeachment. The article
stating it described the charge as "an intemperate and
inflammatory political harangue with intent to excite the fears
and resentment of the said grand jury and of the good people of
Maryland against their state government and Constitution." He
had, indeed, used this language:
You know, gentlemen, that our State and national institutions
were framed to secure to every member of the society, equal
liberty and equal rights; but the late alteration of the
federal judiciary by the abolition of the office of the sixteen
circuit judges, and the recent change in our State
constitution, by the establishment of universal suffrage, and
the further alteration that is contemplated in our State
judiciary (if adopted) will, in my judgment, take away all
security for property and personal liberty. The independence
of the national judiciary is already shaken to its foundation,
and the virtue of the people alone can restore it. The
independence of the judges of this State will be entirely
destroyed if the bill for the abolition of the two supreme
courts should be ratified by the next general assembly. The
change of the State constitution, by allowing universal
suffrage, will, in my opinion, certainly and rapidly destroy
all protection to property, and all security to personal
liberty; and our republican constitution will sink into a
mobocracy, the worst of all possible governments. I can only
lament that the main pillar of our State constitution has
already been thrown down by the establishment of universal
suffrage. By this shock alone the whole building totters to
its base and will crumble into ruins before many years elapse,
unless it be restored to its original state.
All this was less indefensible under the judicial practice of a
century ago than it would be now, and there were not enough votes
of Guilty on the article of impeachment founded upon it to secure
a conviction.
In the same year, Judge Alexander Addison of the Circuit Court of
Pennsylvania was charging a Pennsylvania grand jury that the
Jeffersonians had assumed a name that did not belong to them.
"Such men," he said, "disgrace the name of Republicans by
exclusively assuming it. In their sheep's clothing they are
ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
For this, among other things, he was very properly impeached and
removed in 1803, after the Republicans came into power in that
State.[Footnote: McMaster, "History of the People of the United
States," III, 154.]
It is difficult for the American of the twentieth century to
conceive how honorable men could so have abused official
position.[Footnote: Wharton's State Trials, 376. Justice
Washington made it a rule not to enter into any political
questions in his charges unless necessary for the guidance of the
grand jury in the work before them, and until 1817, when party
feeling had moderated, not to give out copies of any charges for
publication. Niles' Register, XIII, 169.] The cause lies in the
extreme rancor which then embittered politics and debased
society. Federalists and Republicans were hardly on speaking
terms. Many who were actively engaged in politics felt compelled
to carry a sword cane for defence if attacked. Judge Addison's
charge brought out an open letter to him in a Pittsburgh
newspaper, signed by a Republican who was on the Supreme bench of
the State, expressing his astonishment that the people who heard
him "were not fired with sudden indignation and did not drag you
from your seat and tread you under foot."[Footnote: Wharton's
State Trials, 47, note.] On the other hand, at a political
banquet of the Boston Federalists, at about the same time, their
approval of Judge Dana's charges to grand juries was manifested
by this toast: "The Honorable Francis Dana, Chief Justice of the
learned Associate Judges of our Supreme Judicial Court. While
the political opinions delivered from the bench are dictated by
intelligence, integrity and patriotism, may they be as highly
respected as have ever been its judicial decisions."[Footnote:
Austin, "Life of Elbridge Gerry," II, 297, note.]
The judiciary may, and often do, command and compel inferior
executive officers to do specific official acts which it is their
plain duty to perform, or issue an injunction to prevent their
doing an official act which is plainly beyond their powers.
Heads of Departments of the State or the United States are
subject to this power.[Footnote: Noble _v._ Union River
Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
U. S. Reports, 466.] So in the Federal Courts are Governors of
States acting under a law repugnant to the Constitution of the
United States.[Footnote: Pennoyer _v._ McConnaughy, 140
U. S. Reports, 1.] No such writ will be issued, however, when
the case is of a political nature and involves the exercise of
any official discretion,[Footnote: Georgia _v._ Stanton, 6
Wallace's Reports, 50.] nor under any circumstances against the
President of the United States.[Footnote: Mississippi _v._
Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
cases be granted by a State court against the Governor there is a
conflict of authority.
The development of party government in the United States has led
of recent years to much legislation for the regulation of party
conventions and party organization in the interest of fair
dealing and public order. Statutes of this nature relating to
the form and heading of ballots for use at popular elections are
common. If conflicting factions contend for the right of issuing
ballots in the name of the same party, the courts may be called
upon to decide between them on an application for an injunction
or writ of mandamus. The legislature, however, may provide that
some standing agency or committee of a party shall decide finally
upon any such conflicting claims, and in such case their decision
will be conclusive upon the courts.[Footnote: State _v._
Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]
When title to a political office is contested, the courts, unless
there is some constitutional provision to the contrary, may be
appealed to for a decision. This is true even in respect to the
office of Governor.[Footnote: Boyd _v._ Thayer, 143
U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
is a remedy which has been, though in rare instances, abused for
party purposes.[Footnote: Such a case was the issue by a District
Judge of the United States in 1872 of an injunction-order under
which the Marshal took possession of the Louisiana State-house,
and excluded those claiming to be the legislature of the State.
Gibson, "A Political Crime," 347 _et seq._; Senate Report,
457, Forty-second Congress, third session.]
The right of the Governors, which exists under the Constitutions
of several States, to ask the judges of the Supreme Court for
their opinion on any question of law, may throw upon them the
delicate task of deciding in a collateral proceeding who is
Governor, if the title to the office is claimed by two. This was
the case in Florida in 1869. The House of Representatives had
commenced proceedings of impeachment against the Governor. It
was on the first day of a special session of the Assembly. There
could be no such session unless a quorum was present in each
house. There were but twelve Senators in attendance. The
Lieutenant-Governor regarded the proceedings as regular, and
assumed to exercise the office of Governor pending the trial.
The Governor claimed that twelve Senators were not a quorum, and
that the proceedings were void. On these points he requested the
opinion of the Justices of the Supreme Court, and they gave one
supporting his contentions.[Footnote: 12 Florida Reports, 653.]
A few weeks later a regular session was held, at which a quorum
was present in each house, and the proceedings of the special
session were treated as void.[Footnote: S. S. Cox, "Three Decades
of Federal Legislation," 518, 520.]
In the early days of the United States, under the present
Constitution, the Chief Justices of the Supreme Court of the
United States at times filled also a political office, and so
were invested at the same time with political and judicial
functions. John Jay, the first Chief Justice, while holding that
office, was made our Envoy Extraordinary to Great Britain, and
spent a year abroad in that capacity. His acceptance of the
position, however, occasioned general and unfavorable comment.
John Marshall was both Chief Justice and Secretary of State for
five weeks, during which he held one term of the Supreme Court.
Oliver Ellsworth was both Chief Justice and minister to France at
the same time, and for a period of over a year, during which he
held one term of court.
Nothing of this kind has since occurred, nor would it now be
thought consistent with the proprieties of judicial office.
When the result of the election of the President and
Vice-President of the United States was contested in 1877,
Congress, as a temporary makeshift, bridged over the difficulty
by creating a commission of fifteen, five from each house and
five from the Supreme Court, to decide upon the returns. Four of
the justices were especially selected by the act passed for this
purpose, two of them being Republicans and two Democrats, and
they were directed to choose the fifth.[Footnote: 19 United
States Statutes at Large, 228.] They agreed on Justice Bradley,
a Republican. The Congressional members were equally divided
politically. The result proved to be that on every important
question in controversy every Republican voted for the view
favorable to the Republican candidates and every Democrat voted
for the other. The country could not fail to see that judges, as
well as other public men, may be insensibly influenced by their
political affiliations, and regarded the whole matter as a new
proof of the wisdom of separating the judiciary from any
unjudicial participation in the decision of political
issues.[Footnote: See Wilson, "Division and Reunion," 286;
S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
"Some Account of the Work of Stephen J. Field," 440.]
Justices of the Supreme Court have since sat on international
tribunals of arbitration, but this is, or should be, a strictly
judicial proceeding.
In the State Constitutions, the judges of the highest courts are
now often expressly forbidden to accept other office,[Footnote:
See Chap XXII.] but in the absence of such a prohibition it would
be considered as unbecoming. Formerly and during the first third
of the nineteenth century this was in many States not so. Some
were then judges because they held legislative office and as an
incident of it. Others did not hesitate to accept political
positions. Of the six Federalist electors chosen in New
Hampshire at the presidential election of 1800, three were judges
of her Supreme Court.[Footnote: Wharton's State Trials, 47.]
Judges have frequently taken part in constitutional conventions
of their States. In Virginia, Chief Justice Marshall was a
member of that of 1829, and Judge Underwood of the District Court
presided over that of 1867. Chancellor Kent and Chief Justice
Spencer were members of that of 1821 in New York.
It may well be doubted if the advantages to be gained by their
counsel in such a position are not outweighed by the evil of
exposing it to criticism as dictated by selfish considerations.
A member of the New York convention thus alluded upon the floor
to the measures supported by the Chief Justice and Chancellor:
He regretted that such an opinion and plan had been proposed by
the Chief Justice. It must have arisen from the politics of
the Supreme Court. The judges of that court had been occupied
so much in politics that they had been compelled to press upon
the public a system that had nothing else to recommend it than
such a relief to themselves from the burthen of official duties
as would leave them to the free exercise of their
electioneering qualifications. But for this, the Chief Justice
might have shown a Holt, or a Mansfield. The elevated
character of the Chancellor had been often asserted and alluded
to. He meant no disrespect to that honorable gentleman. He
respected him as highly as any man when he confined himself to
the discharge of the official duties of his office; but when he
stepped beyond that line; when he became a politician, instead
of being his fancied oak, which, planted deeply in our soil,
extended its branches from Maine to Mexico, he rather resembled
the Bohon Upas of Java, that destroyed whatever sought for
shelter or protection in its shade.[Footnote: Reports of the
Proceedings and Debates of the Convention of 1821, 615.]
The pardoning power is essentially of a political nature.
Judicial officers are to do justice. Mercy is an act of policy
or grace. A pardon after conviction presupposes guilt.
Nevertheless, in a few States this royal prerogative of pardoning
has been committed to a board of officers, headed by the
Governor, of which some of the judiciary are members. There is
this advantage in it, that judges know best how fully
circumstances of extenuation are always taken into account by the
court before pronouncing sentence, and therefore cannot but
exercise a restraining power against the influences of mere
sentimental promptings to inconsiderate clemency.
It may be said, in general, that the tendency towards keeping the
judiciary apart from any active connection with the executive
department has steadily increased since the first quarter of the
nineteenth century.
When our position as a neutral power, in 1793, involved us in
serious questions affecting the rights of Great Britain and
France, Washington's cabinet advised him that the ministers of
those countries be informed that the points involved would be
referred to persons learned in the law, and that with this in
view the Justices of the Supreme Court of the United States be
invited to come to the capitol, six days later, "to give their
advice on certain matters of public concern, which will be
referred to them by the President."[Footnote: Jefferson's
Writings, Library Ed., I, 370.] Nothing of this nature would now
be dreamed of, under any conditions.
* * * * *
CHAPTER IV
THE FORCE OF JUDICIAL PRECEDENTS
The antipathy to legal codification, which, until recent years,
was a characteristic both of the English and American bar, and
still prevails, though with diminishing force, has given, and
necessarily given, great force to judicial precedents. It is
mainly through them that with us unwritten law passes into
written law. Precedent is a fruit of reason ripened by time.
Time, it has been said, is the daughter of Antiquity and takes
place after Reason, which is the daughter of Eternity. Precedent
rests on both. A legal code framed in any American State is
little more than the orderly statement of what American courts
have decided the law to be on certain points.
When reason is set to work upon the solution of a problem growing
out of the affairs of daily life, it often happens that two minds
will pursue different paths and perhaps come to different
results. Not infrequently neither result can fairly be
pronounced untenable. An English judge has said that nine-tenths
of the cases which had ever gone to judgment in the highest
courts of England might have been decided the other way without
any violence to the principles of the common law.
Every lawsuit looks to two results: to end a controversy, and to
end it justly; and in the administration of human government the
first is almost as important as the last.[Footnote: Hoyt
_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
the essence of justice; but among men and as administered by
their governments it can only be such certainty as may be
attained by an impartial, intelligent, and well-trained judge.
If such a judge has, after a proper hearing, declared what, under
a particular set of circumstances, the law is which determines
the rights of the parties interested, this declaration makes it
certain, once and forever, as far as they are concerned, and
helps to make it certain as to any others in the future between
whom there is a controversy under circumstances that are similar.
If it is the declaration of a court of supreme authority it is
ordinarily accepted as of binding force by any inferior courts of
the same government, and treated with great respect and as high
evidence of the law by any other of its superior courts, as well
as by courts of other States before which a similar question may
be presented.
A decision on a point of law by the highest court in a State does
not, however, bind its lower courts as absolutely as would a
statute. An inferior court may disregard it and decide the same
point another way if it be fully satisfied that the action taken
by the court above was ill-considered and erroneous. It is
possible that in such event, on reconsideration, the court of
last resort may reverse its original position.[Footnote: A good
instance of this is furnished by the case of Johnson _v._
People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
In McFarland _v._ People, 72 Illinois Reports, 368, the
Supreme Court had stated in its opinion, that if two unimpeached
witnesses gave the only testimony as to a certain point material
to the plaintiff's case, and testified in contradiction of each
other, the case failed for want of proof. Many years later a
charge to the jury to this effect was asked and refused in an
inferior court. An appeal was taken to the Supreme Court, and
there Mr. Justice Schofield, the author of the original opinion,
thus disposed of it: "Although in McFarland _v._ People, 72
III., 368, the writer of this opinion expressed the belief that a
similar instruction was free of legal objection, his remarks in
that respect were unnecessary to a determination of the case then
before the court, and they were made without sufficient
consideration, and are manifestly inaccurate. They are now
overruled. The question of competency is one of law, and
therefore for the court; but the question of credibility,--that
is, of worthiness of belief,--and therefore the effect of the
competent evidence of each witness, is one of fact, and for the
jury."] If not, that acquires by this attack a double force.
Chief Justice Bleckley of Georgia once remarked that courts of
last resort lived by correcting the errors of others and adhering
to their own. Nevertheless, they have often, years after
formally announcing a certain legal doctrine in one of their
opinions, declared it to be unsound, and overruled the case in
which it was laid down. They do this, however, with natural and
proper reluctance, and never if this doctrine is one affecting
private rights of property and has been followed for so long a
course of time that it may be considered as a rule on which the
people have relied in exchanging values and transferring titles.
The public, however, have rights to be regarded as fully as
individuals, and if a right of private ownership has been
adjudged to exist, which involves a public loss, the precedent
thus created might be overruled with less hesitation than one
would be determining rights and correlative obligations that were
purely private. Thus the North Carolina courts for seventy years
held that a public office was the private property of the
incumbent. No other courts in the United States took that view,
and it has, by a recent decision, been repudiated in North
Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
Annotated, 697.]
Still more are public interests to be regarded when a question
arises as to reversing a decision as to the proper construction
of a constitutional provision. If a judicial mistake be made in
construing a statute it is easily remedied. The next legislature
can amend the law. But a Constitution can only be amended with
extreme difficulty and by a slow process. If the court falls
into error as to its meaning, the correction must ordinarily come
from its own action or not at all. Hence an opinion on a matter
of constitutional construction is less to be regarded as a final
and conclusive precedent than one rendered on a matter of mere
private right.
It has been the position of some American statesmen and jurists
that judicial decisions on points of constitutional construction
were not binding upon the executive or legislative department of
the government. President Jackson asserted this with great force
in his message to the Senate of July 10, 1832, disapproving the
re-charter of the Bank of the United States. He conceded,
however, that a judicial precedent may be conclusive when it has
received the settled acquiescence of the people and the States.
But while such acquiescence may strengthen the authority of a
decision, it can hardly be regarded as that which gives it
authority. That comes from the fact that it is an exercise of
the judicial power of the government in a case for the disposal
of which this judicial power has been properly invoked.
The decision of the court in McCulloch _v._
Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby,
"The American Constitutional System," 44, 123.] unquestionably
settled forever, as between the cashier of the bank and the State
of Maryland, that the bank was a lawful institution. That in
Osborn _v._ The Bank of the United States[Footnote: 9
Wheaton's Reports, 738.] reaffirmed it as between the bank and
the Treasurer of the State of Ohio. It would be intolerable if
such judgments were not in effect equally conclusive for the
determination of all controversies between all men and all States
growing out of the creation of such a corporation. Practically,
then, the opinion of the executive department to the contrary
could only be of importance in such a case as Jackson had in
hand; that is, in its influencing executive action in approving
or disapproving some proposed measure of legislation. It could
not disturb the past.
The authority of a judicial precedent is weakened if it comes
from a divided court, and especially if a dissenting opinion is
filed in behalf of the minority. A silent dissent indicates that
the judge from whom it proceeds is not so impressed by the fact,
or the importance to the public, of what he deems the error of
the majority that he thinks it worth while to express the reasons
which lead him to differ from them.
No departure from precedent in any American court has ever
awakened so much feeling as that by the Supreme Court of the
United States in 1872, when it decided that Congress could make
government notes a legal tender for debts contracted before the
law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's
Reports, 457, 529.] It had held precisely the contrary two years
before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's
Reports, 603.] but it was by a bare majority and in the face of a
strong dissenting opinion. In the opinions filed in the second
case stress was laid upon this division of the court.[Footnote:
12 Wallace's Reports, 553, 569. See George F. Hoar,
"Autobiography," I, 286.]
The word "established" is often used to describe the kind of
precedent to which courts are bound to adhere. What serves to
establish one? Long popular usage, repeated judicial
affirmations, and general recognition by approved writers on
legal topics. Of these, in fact, the last is probably the most
powerful. Lawyers and courts, in countries without codes, get
their law mainly from the standard text-books. Such authors as
Coke, Blackstone, Kent and Cooley are freely cited and relied on
as authorities by the highest tribunals.[Footnote: See, for
instance, Western Union Telegraph Co. _v._ Call Publishing
Co., 181 United States Reports, 101; Louisville Ferry
Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It
is by the writings of such men that judicial precedents are
sifted and legal doctrines finally clothed in appropriate terms
and arranged in scientific order.
The English courts long ago declared it to be a rule of law to
prevent perpetuities that no estate in lands could be created
which was not to commence within the compass of a life or lives
of persons then existing, with an exception intended to favor a
minor heir. American courts accepted this rule, but some of them
construed it as meaning that no estate in lands could be created
which was to continue after the expiration of such a period.
This construction was shown by Professor John C. Gray, in a work
on "Perpetuities," to be unwarranted, and since its publication
the cases which had proceeded on that basis have been generally
treated as erroneous.
The nature of a legal presumption, also, had been misconceived by
several American courts. It had been treated as evidence of
facts.[Footnote: Coffin _v._ United States, 156 United
States Reports, 432.] Professor J. B. Thayer, in his
"Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-575.]
argued so forcibly against this view that in at least one
State a decision in which it had been taken has been formally
overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life
Association, 77 Connecticut Reports, 281, 291; 58 Atlantic
Reporter, 963.]
The Court of Appeals of New York once held in a carefully
prepared opinion that a railroad might be built along the shore
of a navigable river, under authority from the State, without
first making compensation to the riparian proprietors, whose
access to the waters might thus be obstructed.[Footnote: Gould
_v._ Hudson River Railroad Co., 6 New York Reports, 522.]
In a text-book written by Chief Justice Cooley, this decision was
justly criticised,[Footnote: Cooley on Constitutional
Limitations, 670.] and not long after the publication of that
work it was formally overruled.[Footnote: Rumsey _v._ New
York and New England Railroad Co., 133 New York Reports, 79; 30
Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.]
It is safe to say that its fate was largely the result of the
comments thus made by a distinguished jurist, whose only motive
could be to maintain the integrity and consistency of legal
science.
The general doctrine of the courts, which is commonly expressed
by the rule "_stare decisis_," was never better stated than
by Chief Justice Black of Pennsylvania, in these words:
When a point has been solemnly ruled by the tribunal of the
last resort, after full argument and with the assent of all the
judges, we have the highest evidence which can be procured in
favor of the unwritten law. It is sometimes said that this
adherence to precedent is slavish; that it fetters the mind of
the judge, and compels him to decide without reference to
principle. But let it be remembered that _stare decisis_
is itself a principle of great magnitude and importance....
A palpable mistake, violating justice, reason and law, must be
corrected, no matter by whom it may have been made. There are
cases in our books which bear such marks of haste and
inattention, that they demand reconsideration. There are some
which must be disregarded, because they cannot be reconciled
with others. There are old decisions of which the authority
has become obsolete, by a total alteration in the circumstances
of the country and the progress of opinion. _Tempora
mutantur_. We change with the change of the times, as
necessarily as we move with the motion of the earth. But in
ordinary cases, to set up our mere notions above the principles
which the country has been acting upon as settled and
established, is to make ourselves not the ministers and agents
of the law, but the masters of the law and the tyrants of the
people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports,
423.]
Generally, overruling a former decision is due to a change of
circumstances, which has given the court a new view-point. A
marked instance of this occurred in 1851, in proceedings before
the Supreme Court of the United States. More than a quarter of a
century before, a suit in admiralty for seamen's wages on an
inland river had been dismissed by the District Court of Kentucky
for want of jurisdiction, and on appeal this action had been
affirmed. Mr. Justice Story gave the opinion of the court, and
said that a court of admiralty could only take cognizance of such
a claim when the services were rendered at sea or upon waters
within the ebb and flow of the tide.[Footnote: The Thomas
Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a
true statement of what had always been the doctrine of both
English and American courts. But out of what did this doctrine
spring? From the fact that in England there were no navigable
waters except those in which the tide ebbed and flowed, and that
in the United States, up to that time, there were none of a
different kind which had been largely used for commercial
purposes. Twenty years passed. Steam navigation had opened the
great lakes and the great rivers of the country to a profitable
carrying trade. The day was dawning when the bulk of American
shipping was to be employed upon them. A suit in admiralty was
brought against a ship for sinking another on Lake Ontario. The
defendants put in an answer relying on the doctrine laid down by
Story. The District Court overruled it. The case came by appeal
to the Supreme Court, and in an opinion by Chief Justice Taney
the appeal was dismissed. "The conviction," he said, referring
to the opinion of Mr. Justice Story, "that this definition of
admiralty powers was narrower than the Constitution contemplated,
has been growing stronger every day with the growing commerce on
the lakes and navigable rivers of the western States.... These
lakes are in truth inland seas. Different States border on them
on one side and a foreign nation on the other. A great and
growing commerce is carried on upon them between different States
and a foreign nation, which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have
encountered on them and prizes been made, and every reason which
existed for the grant of admiralty jurisdiction to the general
government on the Atlantic seas applies with equal force to the
lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international
law, and if the one cannot be established neither can the
other.... The case of the _Thomas Jefferson_ did not decide
any question of property or lay down any rule by which the right
of property should be determined.... The rights of property and
of parties will be the same by whatever court the law is
administered. And as we are convinced that the former decision
was founded in error, and that the error, if not corrected, must
produce serious public as well as private inconvenience and loss,
it becomes our duty not to perpetuate it."[Footnote: The Genesee
Chief, 12 Howard's Reports, 443, 451.]
But without any change of circumstances, the proper desire of all
American courts to keep their common law in harmony with that of
the other States is often sufficient to induce the abandonment of
a doctrine once distinctly asserted.[Footnote: City of South Bend
_v._ Turner, 156 Indiana Reports, 418; 60 Northeastern
Reporter, 271.] The consistency of American law as a whole is
immeasurably more important than the consistency of the law of
any single State.
Sometimes a court of last resort treats a doctrine which it had
formerly asserted as manifestly unsound and abandons it without
stopping to give a reason or even to overrule the decision which
first announced it.
Illinois for a long generation adopted the rule that if an injury
occurred to one man through the concurring negligence of himself
and another, but his negligence was slighter than that of the
other, he might hold the latter responsible for the damages
suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was
not a doctrine justified by the common law nor generally held in
this country, and in 1894 the Supreme Court of the State refused
to recognize it, with little or nothing more than this brief
_ipse dixit_: "The doctrine of comparative negligence is no
longer the law of this court."[Footnote: Lanark _v._
Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter,
892.]
Occasionally a case is overruled because it has been forgotten.
An early decision in Massachusetts (Loomis _v._
Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the
position that if a statute required contracts of a certain kind
to be put in writing, and a contract of that kind, but embracing
also a different and distinct matter not touched by the statute,
was made orally, it was wholly void. Such a rule was illogical
and unsound, and in a later decision the same court, forgetting
that it had indorsed it, said so, and said so when it was not
necessary to the decision.[Footnote: Irvine _v._ Stone, 6
Cushing's Reports, 508, 510.] Subsequently, both these cases
having been brought to its attention, it affirmed the latter,
though remarking that "what was there said on this point was not
essential to the decision of that case, and would have been
omitted or modified if Loomis _v._ Newhall had been then
remembered."[Footnote: Rand _v._ Mather, 11 Cushing's
Reports, 1, 5.]
The authority of an opinion as a precedent on any point is always
proportioned to the necessity of determining that point in order
to support the judgment which was rendered. Some judges write
treatises instead of decisions or in addition to decisions.
Whatever goes beyond that which is required to show that the
judgment is the legal conclusion from the ascertained facts is
styled in law language _obiter dictum_. It may be
interesting and even persuasive, but it is not an authoritative
statement of law.
It may grow to be such by adoption in subsequent cases. The
Court of King's Bench in England was called on, at the beginning
of the eighteenth century, to say whether if a man undertook as a
friendly act, and not for pay, to cart another's goods, and did
it carelessly, he was bound to answer for any damage that might
result. There were four judges who heard the case, of whom three
gave their opinions.[Footnote: Coggs _v._ Bernard, Lord
Raymond's Reports, 909.] Two of these opinions were confined to
the precise point of law on which the case turned. In the third,
Chief Justice Holt seized the opportunity to lay down the law of
England as to all sorts of contracts arising out of the reception
by one man of the goods of another. This he did mainly by
setting forth what were the rules of the Roman law on the
subject, but not referring to their Roman origin, and quoting
them, so far as he could, from Bracton, an English legal writer
of the thirteenth century, who had also stated them as English
law.
For four or five centuries these rules had been laid down in an
unofficial treatise, but the courts had not fully recognized
them. Now the Chief Justice of England had given such
recognition in the amplest manner. Meanwhile the trade of
England had reached a point at which some definite rules on all
these matters had become of the utmost importance. The bar were
only too glad to advise their clients in accordance with Lord
Holt's opinion. It was not long before it was universally
practiced upon, and no case in the English language touching
contract relations of that nature is of greater importance as a
precedent. Yet it became such not because of its intrinsic
authority as a judgment, so much as on account of its orderly and
scientific statement of a whole body of law of a kind that the
people needed and for the origin of which--whether at Rome or
London--they cared little, so long as it had been accepted by the
highest judicial authority in the realm.
On the other hand, the greatest judges have often, in delivering
the opinion of the court, asserted doctrines the consideration of
which was not essential to the decision, and later retracted the
assertion on fuller consideration or seen the court in a later
case retract it for them.
Two of the great opinions of Chief Justice Marshall are Marbury
_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
first the court held that it had no jurisdiction to command the
Secretary of State to deliver a commission executed under the
preceding administration, because, although Congress had assumed
to confer it, Congress had no power to do so; and in defending
this position Marshall observed that the Constitution defined the
jurisdiction of the Supreme Court over cases brought there in the
first instance, and that in this clause of the Constitution
affirmative words had the force of negative words so far as to
exclude jurisdiction over any other cases than those specifically
mentioned. In the second case this observation was relied on by
Virginia to defeat the power of the court to review a State
judgment. But, said the Chief Justice, "it is a maxim not to be
disregarded that general expressions in every opinion are to be
taken in connection with the case in which those expressions are
used. If they go beyond the case they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.... In the case of Marbury
_v._ Madison, the single question before the court, so far
as that case can be applied to this, was whether the legislature
could give this court original jurisdiction in a case in which
the Constitution had clearly not given it, and in which no doubt
respecting the construction of the article could possibly be
raised. The court decided, and we think very properly, that the
legislature could not give original jurisdiction in such a case.
But in the reasoning of the court in support of this decision
some expressions are used which go far beyond it.... The general
expressions in the case of Marbury _v._ Madison must be
understood with the limitations which are given to them in this
opinion; limitations which in no degree affect the decision in
that case or the tenor of its reasoning." He then proceeded to
dispose of the case in hand by saying that Virginia having
obtained an erroneous judgment against Cohens, Cohens had a right
to appeal, and the suit still remained a suit by a State against
him and not by him against a State. Unfortunately, here again
came in next an _obiter dictum_. If, he said, this were not
so, there was another principle equally decisive in support of
the jurisdiction, namely, that the Constitution gave the United
States judicial power over all cases arising under the
Constitution or laws of the United States without respect to
parties. Nearly a hundred years later a State was sued in the
courts of the United States on a cause of action arising under
the Constitution, and Cohens _v._ Virginia was relied on as
a precedent. "It must be conceded," was the reply of the Supreme
Court, "that the last observation of the Chief Justice does favor
the argument of the plaintiff. But the observation was
unnecessary to the decision, and in that sense extra-judicial,
and though made by one who seldom used words without due
reflection, ought not to outweigh the important considerations
referred to which lead to a different conclusion."[Footnote: Hans
_v._ Louisiana, 134 United States Reports, 1, 20.]
It may be added that decisions on a point not material to the
cause are generally made without the benefit of previous argument
by counsel. The lawyers will naturally address themselves to the
controlling questions, and if well trained will see what these
are quite as clearly as the court. It is the argument at the
bar, in which different views of law are presented and each
defended by men of learning and ability, which enables the judge,
after hearing both sides and weighing all that is said in behalf
of one against all that is said in behalf of the other, to come
to the true conclusion. The Romans recognized this in their rule
as to the force of precedent in a matter of customary law. The
first thing to ask was whether "_contradicto aliquando judicio
consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de
legibus_, etc., 34.]
The retrospective effect which a refusal to follow a former
decision may have in disturbing vested rights being one of the
most cogent reasons for adhering to precedent, there is less
objection to departing from it when the decision can be so
limited as to have only a future operation. This is occasionally
feasible. Thus the High Court of Errors and Appeals of
Mississippi by an early decision held that on the dissolution of
a bank all its rights and liabilities were extinguished. Thirty
years later the Supreme Court of the same State overruled that
decision, declaring it "condemned by reason and the principles of
modern and enlightened jurisprudence," but nevertheless applied
it as a controlling precedent to a case arising out of the
dissolution of a bank which had been incorporated previously to
the time when the original decision was made.[Footnote: 1 Bank of
Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]
The effect of overruling a former opinion may also be limited by
the dual character of our government.
The courts of the United States follow the decisions of the State
courts in the determination of matters of State law. If a State
law is held by the courts of the State to have a particular
meaning and effect it will be accorded the same in the federal
courts. But if a federal judgment is for that reason rendered in
a certain form, and there is no appeal, it settles the rights of
the parties to the suit forever, even should the State courts
afterward reverse their former rulings as being
erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191
United States Reports, 499.]
De Tocqueville, in his estimate of the American bar,[Footnote: 3
"Democracy in America," II, Chap. XVI.] speaks of it as devoted
to investigating what has been done rather than what ought to be
done; to the pursuit of precedent rather than of reason.
In a very limited sense this is true. Where codes are wanting,
former judicial decisions must serve in their place. But it
would be a mistake to suppose that it is a large part of the
business of American lawyers to search out precedents for the
guidance of the courts. Most cases, after any facts in dispute
are once settled, depend on the application of the simplest
processes of ordinary reasoning. No aid from the past is needed
for this and none is to be had. It has been well said by an
English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10
Chancery Appeal Cases, 526.] that the clearer a thing is the more
difficult it is to find any express authority or any
_dictum_ exactly to the point. Nor, if there be one, is it
to be accepted without regard to the circumstances out of which
it arose or the end to be effected by the judgment. A precedent
may indeed be used slavishly, but so it may be used in the free
spirit in which it was conceived. Many an argument at the bar,
however, is ruined by an excessive anxiety to repeat the
_ipsissima verba_ of some ancient opinion, when the soul of
it is the only thing of value. And occasionally courts are
chargeable with pursuing the letter of some of their former
deliverances rather than the spirit which called them forth and
gave them all their vitality.
* * * * *
CHAPTER V
THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW
The English common law was and is an unwritten law. To find it
one has to look in legal treatises and reports of judicial
decisions. Its historical development has been not unlike that
of Rome. In Rome, as in England, there were in early times
written enactments or governmental declarations of standing rules
on but few points. Some of these writings were of special
importance, such as the twelve tables of Rome and the _Magna
Charta_ of England. These were regarded as so bound up with
the very life of the people as to have a place by themselves, and
a superior force to anything to the contrary to which the free
consent of the people was not formally given. But in general
Romans and Englishmen preferred to make custom their law, and to
let this law grow "not with observation," but insensibly from day
to day as the needs of their social organization might be found
to require. It was a wise preference, and founded on a better
philosophy than they knew--than the world knew, until the theory
of evolution was demonstrated by Darwin and applied to
governmental science by Spencer.
A customary law for a people of advancing civilization and power
must expand with corresponding rapidity. There will soon be
disputes as to what it is on certain points and a demand for some
authoritative information as to this. In Rome, the priests gave
it at first, and then the lawyers. In England, the priests never
gave it, as priests. There was no sacred college of law.
Priests took part in legislation. A priest, at the king's right
hand, was his spokesman in doing equity. But it was from the
first the king as a judge, or the king's judges deputed by him
and sitting for him, who settled controverted questions of common
law. For the Roman and for the Englishman the first
representatives of government who could be called judges were
primarily and principally executive officers. The Roman
_praetor_ was not given judicial functions because he had
legal attainments. The _aula regis_ of early England was
composed of the great officers of state. The chief justiciar,
however, soon ceased to be prime minister. His associates on the
bench, as law became a recognized profession, came to be chosen
largely for their fitness for judicial work and to be kept at it
during the king's pleasure. At Rome, on the contrary, the
praetorship remained a political place, held for a fixed term, and
a brief one. Information as to the unwritten law applicable to
any controversy between parties had therefore to be sought from
others. The lawyers could give it; and it was to them, not to
the judges, that resort was had. The opinion of a great jurist
was for Rome what the opinion of a judge was for England. It was
commonly accepted as conclusive not only by the people but by the
courts.
Such opinions profess to state what the law was by which rights
accrued out of a past transaction. In fact, they often do much
more. By declaring that to be the law, and declaring it with
authority, they are the first to make it certain that it is the
law. The difference between this and making law is not great.
The Romans at first accorded authority to the opinions
(_responsa_) of lawyers only because of the standing and
reputation of those who gave them. Later the emperors gave an
official character and weight to the opinions of certain lawyers
of the past. The English always accorded authority to the
opinions of their judges, because they spoke for the state.
Americans from the first have done the same.
American judges have exercised these powers of ascertaining and
developing unwritten law even more freely than English judges.
They were forced to it as a result of applying the common law of
one people to another people inhabiting another part of the world
and living under very different social conditions. In doing this
it was necessary to reject not a little of what for England had
already been definitely settled and universally accepted. The
legislatures of the colonies and States rejected much, but the
courts rejected more. The legislatures also added much, but the
courts added yet more.
Usages grow up rapidly in new settlements and along frontiers
bounded by territory held by savages. Of such usages, under the
rulings of the courts, many were soon crystallized into law.
New inventions and new political conceptions in the eighteenth
century began to change the face of the civilized world. The
common law as to agency had to be adapted to the operations of
business corporations; that as to highways to railroads; that as
to contracts by mail to contracts by telegram, and later to
contracts by telephone. The whole law of master and servant,
which for the English people was bottomed on the relation of
land-owner and serf, was to be recast. Public assemblies were to
be regulated and their proceedings published with greater regard
to public and less to private interest.[Footnote: Barrows
_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
479.] Along all these lines and many others the American courts
have now for nearly three hundred years been quarrying out
American law from the mine of the unwritten law of the people
within their jurisdiction. It has been their natural endeavor to
make each part of the new system of jurisprudence which they were
gradually building up harmonious with every other and to give a
certain symmetry to the whole. This has forced them to deduce
rule from rule and principle from principle with a freedom for
which in older countries of settled institutions there is less
occasion. The process has gone on during the last fifty years
with ever-increasing rapidity, and for two reasons. There have
been more novel questions to meet and there has been a greater
wealth of suggestion and precedent at command.
Not a little, however, of the development of our unwritten law
has been and remains of a local character. This is particularly
true of that of the Pacific States, both on account of climatic
conditions and historical antecedents.[Footnote: Katz _v._
Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
the Supreme Court of California, afterward so long a member of
the Supreme Court of the United States, did both a constructive
and a destructive work in shaping the jurisprudence of that
State. He found it seated in a land on which certain
institutions of civil law origin had been impressed for centuries
and into which other institutions of common law origin had been
introduced in recent years. His judicial opinions molded these
into one mass, rejecting something from each and retaining
something from each.[Footnote: Pomeroy, "Some Account of the Work
of Stephen J. Field," 38, 45.] Some of the results of his
creative touch have been the foundation of decisions in distant
States, but most were so dependent on local circumstances and
conditions as to be incapable of transplantation.
But as to all questions of general concern which can be answered
from analogies drawn from the common law, the judges of each
State--and it is the State judiciary on which the burden of
developing unwritten law mainly rests--now find in the reported
decisions of the courts of last resort in all the other States a
fertile source of supply when they are looking for a rule to fit
a case for which the ancient law made no direct provision. Keen
intellects from the bench, aided perhaps by keener ones from the
bar in forty-five different jurisdictions, are discussing the
problems of the day as they appear mirrored in litigated causes.
What is a new question in one State was set at rest ten years or
ten days ago by a judicial decision in another. If the decision
was a just and logical deduction from accepted principles of the
older law it will probably be followed everywhere. If unjust and
illogical, its very faults will serve to guard other courts to
better conclusions.
How far judges advance along these paths depends greatly on the
character of the bar. A judge rarely initiates anything. He is
apt to fall into a mistake if he does. The business which he has
to do is brought before him by others. It is brought before him
in the best way to throw all possible light upon it, because it
is set before him from two opposite points of view by two
antagonists, each strenuously endeavoring to detect a flaw in the
reasoning of the other. These two men have previously given the
subject in controversy much careful thought. What views neither
presents are generally not worth presenting. As was said in the
preceding chapter, it is only in the plainest case that a judge
can properly or safely base his decision on a position not
suggested at the bar or as to the soundness of which he has not
asked the opinion of the counsel at the hearing.
The development of law, therefore, whether unwritten or written,
is primarily the work of the lawyer. It is the adoption by the
judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]
There are obvious limits to this power of developing unwritten
law. The courts are not to push forward into a place more
appropriate for the legislature to occupy.
Mr. Justice Holmes of the Supreme Court of the United States,
when Chief Justice of Massachusetts, stated with his usual
elegance and force the bounds within which, as it seemed to him,
judicial authority should be kept. In a common law suit against
a railroad company for damages suffered by an accident on its
road, the defendant had asked the trial court to order the
plaintiff to submit to an examination of his person by a
physician whom it named, for the purpose of determining what
injuries he had really suffered. "We agree," said the Chief
Justice, "that in view of the great increase of actions for
personal injuries it may be desirable that the courts should have
the power in dispute. We appreciate the ease with which, if we
were careless or ignorant of precedent, we might deem it
enlightened to assume that power. We do not forget the
continuous process of developing the law that goes on through the
courts in the form of deduction or deny that in a clear case it
might be possible even to break away from a line of decisions in
favor of some rule generally admitted to be based upon a deeper
insight into the present wants of society. But the improvements
made by the courts are made, almost invariably, by very slow
degrees and by very short steps. Their general duty is not to
change, but to work out, the principles already sanctioned by the
practice of the past. No one supposes that a judge is at liberty
to decide with sole reference even to his strongest convictions
of policy and right. His duty in general is to develop the
principles which he finds with such consistency as he may be able
to attain.... In the present case we perceive no such pressing
need of our anticipating the legislature as to justify our
departure from what we cannot doubt is the settled tradition of
the common law to a point beyond that which we believe to have
been reached by equity, and beyond any to which our statutes
dealing with kindred subjects ever have seen fit to go. It will
be seen that we put our decision, not upon the impolicy of
admitting such a power, but on the ground that it would be too
great a step of judicial legislation to be justified by the
necessities of the case."[Footnote: Stack _v._ New York, New
Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
58 Northeastern Reporter, 686.]
The theory of judicial power thus stated carries implications
that would not be universally accepted. It is intimated that if
the necessity had seemed strong enough to call for the order
asked for in the trial court it ought to have been granted,
although not justified by any settled rule or authoritative
precedent, nor by any clear analogy from such a rule or
precedent. This is a view taken, though with less caution and
qualification, in a work written by the same hand many years
before, which is recognized as a legal classic on both sides of
the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
discussing some of the reasons which actuate judges in assuming
to unfold the unwritten law, it is stated thus:
The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course,
considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy: most generally,
to be sure, under our practice and traditions the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the
last analysis.... The truth is that the law is always
approaching and never reaching consistency. It is forever
adopting new principles from life at one end, and it always
retains old ones from history at the other, which have not yet
been absorbed or sloughed off. It will become entirely
consistent only when it ceases to grow.
Courts enter on a dangerous ground when, to justify their action,
they rely on any rule of public policy not stated in Constitution
or statute and unknown to the common law. If such was once the
habit of the English courts, it was because of social conditions
with which they had to deal which no longer exist either in their
country or in ours. It is for the judge to adapt old principles
rather than adopt new ones. What one man thinks is public policy
another, equally clear-headed and well-informed, may not. The
safe course for the judiciary is to rely on the legislature to
declare it, so far as the common law does not. If, however, the
courts of a State are called upon for the first time to declare
what any rule of the common law, governing a past transaction,
is, or at a given time was, in that State, and this be a doubtful
question, the decision virtually calls for the making of a new
rule, though under the form of applying an old one, and that will
be adopted which may be deemed best calculated to do justice in
cases of that particular character.[Footnote: Seery _v._
Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]
* * * * *
CHAPTER VI
THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING
WRITTEN LAW
As governments must provide some authority to declare what the
unwritten law governing any transaction was, so they must provide
some authority to declare what the written law governing any
transaction means. Few statements of any rule or principle can
be written out in such a way as to convey exactly the same
impression to every mind. Thought is subtler than its
expression. The meaning of written laws will therefore often be
questioned.
An answer is sometimes attempted by the authority from which the
law proceeded. A king declares what he intended by the terms of
an ambiguous edict. A legislature passes an act to declare the
meaning of a previous one. But meanwhile rights have accrued.
Something has been done in reliance upon a certain construction
of the law. If it was a right construction, then what was done
was lawful, and no subsequent explanation of his intentions by
the lawgiver can change this fact. Laws are addressed to the
community at large, and their meaning must be determined once for
all from the language used, however inadequate it may have been
to express the real design of those who enacted them, unless that
design so clearly appears, notwithstanding an unfortunate choice
of words, as to compel an interpretation against the letter but
in obedience to the spirit of the enactment. A "declaratory
statute"--one declaring what a previous statute meant--is
therefore, if it gives it a meaning unwarranted by its terms when
so interpreted, only effectual as respects future transactions.
As to the past, the meaning is for the courts, and while such a
statute may aid, it cannot control them.
Are the courts to send such questions to a jury or shall the
judges decide them? The answer must be determined by
considerations applicable to every sort of written paper. If the
true construction of an ambiguous document be left to juries, it
is evident that there would be no certainty that different
results would not be reached in different cases, and probable
that unanimity would seldom be attainable. If left to judges, a
decision will certainly be reached and, it may be presumed, be
reasoned out with care, while if the matter be one of public
importance the grounds on which they proceed will be so expressed
as to furnish a guide to others toward the same conclusion. The
construction of all writings is therefore, by the Anglo-American
common law, as by the judicial system of most countries, deemed,
in case of a question affecting litigated rights, to belong of
right to the judges. Their possession of this power in the
United States is especially necessary in respect to written law.
In every government there must be some human voice speaking with
supreme authority. It may be that of one man or of many men.
The essential thing is that it should be a personal utterance,
proceeding from persons to whom, by acknowledged law or custom,
submission is due, and one that, if need be, can be enforced by
the whole power of the State.
The fundamental principle of American government, as laid down in
the words of Harrington in the oldest of our State Constitutions,
after which many of the rest, and that of the United States as
well, have been largely patterned, is that it is one of "laws and
not of men."[Footnote: Constitution of Massachusetts, Part the
First, Art. XXX, quoted more fully in Chapter II.] Laws,
however, must be administered by men. Their meaning, if it be
uncertain, must be determined by men. It must be the subject, as
the same Constitution twice affirms, of "impartial
interpretation."[Footnote: _Id_., Preamble, and Part the
First, Art. XXIX.] This interpretation is really what gives them
force. It is the personal utterance of one speaking for the
State, and who speaks the last word. It was simply following
English precedent to give this power to the courts as respects
legislative enactments. But the principle which required it
inevitably extended with equal force to constitutional
provisions. The people who adopt written constitutions for their
government put their work in a form which must often give rise to
questions as to what they intended to express. They rely on the
judiciary to secure their enforcement, and the judiciary must
enforce them according to what it understands their meaning to
be.
There is but a step from interpretation to enlargement. Every
statute is passed to accomplish something. If the object is
clear, the rules of Anglo-American law allow the court that may
be called on to apply it to extend its operation to cases within
the purpose evidently intended, although the language used is
inadequate fully to express it. This is styled giving effect to
"the equity of the statute." Even violence can be done to the
words, if so only can this judge-discovered intent be made
effectual. The rules governing judicial interpretation of
statute law fill a good-sized volume.
As the Roman lawyers worked out by force of logic and analogy an
extensive system of private law from the meagre fabric of the
Twelve Tables, so under the lead of American lawyers American
judges have applied the processes familiar in the development of
unwritten law to the development of our written law, both
statutory and constitutional.
Carlyle said that the Roman republic was allowed so long a day
because on emergencies the constitution was suspended by a
dictatorship. The American republics have a right, upon this
theory, to a still longer one. With them the Constitution need
not be temporarily set aside on an emergency. It may simply be
permanently enlarged or limited by judicial construction. A
Constitution is the garment which a nation wears. Whether
written or unwritten, it must grow with its growth. As Mr. Bryce
has put it: "Human affairs being what they are, there must be a
loophole for expansion or extension in some part of every scheme
of government; and if the Constitution is Rigid, Flexibility must
be supplied from the minds of the Judges."[Footnote: "Studies in
History and Jurisprudence," 197.]
The Constitution of the United States declares that no State
shall pass any law impairing the obligation of contracts. This
proposition being the major premise, Chief Justice Marshall added
the minor premise that every charter of a private corporation is
a contract, and completed the syllogism by the conclusion that no
State can pass any law impairing the obligation of such charters.
The counsel who opposed this doctrine urged that every one must
acknowledge that neither the men who framed the Constitution nor
the people who adopted it ever thought that the word "contracts,"
as so used, embraced "charters." Be it so, was Marshall's
answer, that proves nothing unless you can go farther and satisfy
the court that if they had contemplated the construction we put
upon it they would have used words to exclude it.[Footnote:
Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]
The acquisition of foreign territory is a matter not especially
provided for in the Constitution of the United States. Jefferson
hesitated to make the Louisiana purchase on this account, and was
quite inclined to think, when he did make it, that he had
transcended the bounds of his authority. The courts gave the
Constitution a different interpretation, and stamped this upon it
as permanently as if it had been a birthmark. It was done by
Marshall in a single sentence. "The Constitution," he observed,
"confers absolutely on the government of the Union the powers of
making war and of making treaties: consequently that government
possesses the power of acquiring territory either by conquest or
by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511, 542.]
In the course of the same opinion, the great Chief Justice led
the way toward the doctrine, to be developed later, that the
manner in which such territory was to be held and its inhabitants
governed need not be such as the Constitution prescribed for the
territory within one of the United States. It was to be
prescribed by Congress under its power "to make all needful rules
and regulations respecting the territory or other property
belonging to the United States." Congress had set up a
Legislative Council in the Territory of Florida, and the
Legislative Council had established a court of admiralty, with
judges holding office for four years. The case in hand turned
upon the effect of a judgment of that court. It was contended at
the bar that it had no effect, because by the express terms of
the Constitution the judicial power of the United States extended
to all cases of admiralty jurisdiction, and must be vested in one
Supreme Court and such inferior courts as Congress might ordain.
"We have only," was Marshall's reply, "to pursue this subject one
step further to perceive that this provision of the Constitution
does not apply to it. The next sentence declares that 'the
judges both of the Supreme and inferior courts shall hold their
offices during good behaviour.' The Judges of the Superior Courts
of Florida hold their offices for four years. These Courts,
then, are not constitutional Courts in which the judicial power
conferred by the Constitution on the general government can be
deposited. They are incapable of receiving it. They are
legislative Courts, created in virtue of the general right of
sovereignty which exists in the government, or in virtue of that
clause which enables Congress to make all needful rules and
regulations respecting the territory belonging to the United
States. The jurisdiction with which they are invested is not a
part of that judicial power which is defined in the third article
of the Constitution, but is conferred by Congress in the
execution of those general powers which that body possesses over
the territories of the United States. Although admiralty
jurisdiction can be exercised in the States in those Courts only
which are established in pursuance of the third article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises the
combined powers of the general and of a State
government."[Footnote: 'American Insurance Co. _v._ Canter,
1 Peters' Reports, 511, 546.]
It will be perceived that the argument here was that the Florida
court did not exercise any of the judicial power of the United
States because it could not, and that it could not because the
judges were not commissioned for life. This left unanswered the
deeper question whether any act of Congress could serve to
support a court existing under authority of the United States,
the judges of which were to hold office only for a term of years.
It was assumed that the provision for a life tenure did not apply
to the Florida judges, because if it did the court would be
illegally constituted. Whether it was legally or illegally
constituted was not discussed, except for the general reference
to the power of Congress to legislate for the territories and
exercise the rights of sovereignty over territory newly acquired
by contest or treaty.
On this decision has been built up our present system of
governing territorial dependencies at the will of
Congress.[Footnote: Mormon Church _v._ United States, 136
United States Reports, 1, 43; Dorr _vs._ United States, 195
United States Reports, 138, 141.]
Marshall's was the last appointment made to the Supreme bench
from the Federalist party. It was not many years before that
party disappeared from the face of the earth. Jefferson put
three men there representing the other school of political
doctrine,[Footnote: Among Jefferson's papers is a description of
five men whom he especially considered with reference to filling
the first vacancy which occurred during his administration.
Politics figures largely in the sketch of each. As to William
Johnson, whom he selected, it is noted that he is of "republican
convictions and of good nerves in his political principles."
American Historical Review, III, 282.] and his appointments were
followed by others of a similar nature, until in 1830, after
Mr. Justice Baldwin had taken his seat, it became evident that
the nationalizing tendencies which the great Chief Justice from
the beginning of the century had impressed upon its opinions were
likely soon to cease. He apprehended himself that the court
would come to decline jurisdiction in the cases ordinarily
presented over writs of error to reverse the judgments of State
courts.[Footnote: Proceedings: Massachusetts Historical Society,
2d Series, XIV, 342.] In the following year he thought seriously
of resigning. He disliked, he wrote to Mr. Justice Story, to
leave him almost alone to represent the old school of thought,
but he adds, "the solemn convictions of my judgment, sustained by
some pride of character, admonish me not to hazard the disgrace
of continuing in office a mere inefficient pageant."[Footnote:
Proceedings Massachusetts Historical Society, 2d Series, XIV,
347.]
The next Chief Justice, while far from being of Marshall's
school, was not one to attempt to overthrow what he had done. In
Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
insisted on the supremacy of the courts of the United States over
those of the States with the utmost firmness, and defended the
doctrine on principle with force and ability. The Supreme Court,
however, under Taney, was not looked on with much favor by the
survivors of the old Federalists. "I do not," wrote Chancellor
Kent in 1845 to Justice Story, "regard their decisions (yours
always excepted) with much reverence, and for a number of the
associates I feel habitual scorn and contempt."[Footnote:
Proceedings of the Massachusetts Historical Society, 2d Series,
XIV, 420.]
Our State constitutions generally guarantee the citizen against
deprivation of his rights without "due process of law" or "due
course of law." A similar provision was made for the United
States by the fifth amendment to their Constitution, and since
1868 the fourteenth amendment has established the same rule
inflexibly for every State. What is due process of law? It is
for the courts to say, and while they have cautiously refrained
from assuming to give any precise and exhaustive definition, they
have, in many instances, enforced the guaranty at the cost of
declaring some statute which they held incompatible with it to be
no law. They have also, and much more frequently, supported some
act of government claimed to contravene it, and which, according
to the ancient common law of England, would contravene it,
because in their opinion this ancient law had been outgrown.
Sir Edward Coke, whom no expounder of the English common law
outranks in authority, in his "Institutes," in treating of
_Magna Charta_, referred to the phrase _per legem
terrae_, as equivalent to "by the law of the land (that is, to
speak it once for all) by the due course and process of law." It
is incontestable that due course and process of law in England at
the time when the American colonies were planted was understood
to require the action of a grand jury before any one could be put
on trial for a felony. Some of our States have abolished grand
juries in whole or part. To review a capital sentence for murder
in one of these States, a writ of error was prayed out from the
Supreme Court of the United States in 1883. The
constitutionality of the State law was sustained. In disposing
of the case the court did not controvert the position that by the
English common law no man could be tried for murder unless on a
presentment or indictment proceeding from a grand jury. But,
said the opinion, while that is due process of law which had the
sanction of settled usage, both in England and in this country,
at the time when our early American constitutions were adopted in
the eighteenth century, it by no means follows that nothing else
can be. To hold that every feature of such procedure "is
essential to due process of law would be to deny every quality of
the law but its age, and to render it incapable of progress or
improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and
Persians.... It is most consonant to the true philosophy of our
historical legal institutions to say that the spirit of personal
liberty and individual right, which they embodied, was preserved
and developed by a progressive growth and wise adaptation to new
circumstances and situations of the forms and processes found fit
to give, from time to time, new expression and greater effect to
modern ideas of self-government.... It follows that any legal
proceeding enforced by public authority, whether sanctioned by
age and custom or newly devised in the discretion of the
legislative power in furtherance of the general public good,
which regards and preserves these principles of liberty and
justice, must be held to be due process of law."[Footnote:
Hurtado _v._ California, 110 United States Reports, 513,
528, 529, 530, 537.]
Many of our State Constitutions specify certain rights as
inherent and indefeasible, and among them that "of acquiring,
possessing, and protecting property." What is property?
American courts have said that it includes the right of every one
to work for others at such wages as he may choose to accept. One
of them, in supporting a decree for an injunction against
combined action by a labor union to deprive non-union men of a
chance to work, by force or intimidation, notwithstanding a
statute abrogating the common law rule making such acts a
criminal conspiracy, has put it thus:
The right to the free use of his hands is the workman's
property, as much as the rich man's right to the undisturbed
income from his factory, houses, and lands. By his work he
earns present subsistence for himself and family. His savings
may result in accumulations which will make him as rich in
houses and lands as his employer. This right of acquiring
property is an inherent, indefeasible right of the workman. To
exercise it, he must have the unrestricted privilege of working
for such employer as he chooses, at such wages as he chooses to
accept. This is one of the rights guaranteed to him by our
Declaration of Rights. It is a right of which the legislature
cannot deprive him, one which the law of no trades union can
take from him, and one which it is the bounden duty of the
courts to protect. The one most concerned in jealously
maintaining this freedom is the workman himself.[Footnote:
Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79;
56 Atlantic Reporter, 331.]
But, as already suggested in the preceding chapter, the judges
whose opinions have vitalized and enlarged our written law by
reading into it some new meaning or application have but echoed
the voice of the bar.
The greatest achievements of Marshall in this direction were
really but a statement of his approbation of positions laid down
before him by Daniel Webster. In the early stages of the
Dartmouth College case, when it was before the State courts in
New Hampshire, it was Webster and his associates, Jeremiah Mason
and Jeremiah Smith, both lawyers of the highest rank, who first
put forward the doctrine that the charter of a private
corporation was a contract; and when the cause came before the
Supreme Court of the United States it fell to the lot of Webster
to bring it to the attention of the great Chief
Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the
Florida case it was he, in supporting the cause of the prevailing
party, who suggested that the Territory of Florida, though owned
by the United States, was no part of them. "By the law of
England," he went on to say, "when possession is taken of
territories, the king, _Jure Corona_, has the power of
legislation until parliament shall interfere. Congress have the
_Jus Corona_ in this case, and Florida was to be governed by
Congress as she thought proper."[Footnote: American Insurance
Co. _v._ Canter, 1 Peters' Reports, 611, 538.]
This argument did not spend its force in its effect on Marshall.
When, after the lapse of two generations, greater problems of the
relations of the United States to territory newly acquired from
Spain arose, it was, as has been said above, made one of the
cornerstones of the opinion of the same court which determined
what they were.[Footnote: Downes _v._ Bidwell, 182 United
States Reports, 244, 265.]
So in the Hurtado case, which has been described at length, no
description of due process of law was found better and none is
better than that given by Webster so many years before in the
Dartmouth College case. The Supreme Court of New Hampshire, from
whose judgment that cause came up by writ of error, had held--and
on that point its decision was final--that the change in the
college charter was no violation of the bill of rights embodied
in the Constitution of that state. This, following _Magna
Charta_, provided (Part I, Art. 15) that no subject should be
"despoiled or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or
deprived of his life, liberty or estate, but by the judgment of
his peers or the law of the land." _Magna Charta_ was wrung
from a tyrant king. So, said the State court, this article was
inserted to protect the citizens against the abuse of the
executive power. When it speaks of the law of the land it means
the law of New Hampshire, and that is whatever the legislature of
New Hampshire chooses to enact, so long as it contravenes no
other constitutional provision.
Webster, in paving the way toward his claim that the charter was
a contract, and, as a vested right of property, inviolable by a
State, alluded to the sacredness of all rights under the
guaranties to be found in our American system of constitutional
government. It was not surprising that the Constitution of the
United States should protect them in the way he asserted. All
the States, and New Hampshire among them, had done the same in
placing the great features of _Magna Charta_ in their bills
of rights. What, he asked, was this law of the land by which all
things were to be tried and judged? This was his answer: "By the
law of the land is most clearly intended the general law; a law
which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The meaning is that every
citizen shall hold his life, liberty, property and immunities
under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not
therefore to be considered the law of the land. If this were so,
acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly
transferring one man's estate to another, legislative judgments,
decrees and forfeitures in all possible forms, would be the law
of the land."[Footnote: "Works of Daniel Webster," V, 486.]
In the opinion by Mr. Justice Mathews in Hurtado _v._
California he observes: "It is not every act, legislative in
form, that is law. Law is something more than mere will exerted
as an act of power. It must be not a special rule for a
particular person or a particular case, but, in the language of
Mr. Webster, in his familiar definition, 'the general law, a law
which hears before it condemns, which proceeds upon inquiry, and
renders judgment only after trial,' so 'that every citizen shall
hold his life, liberty, property and immunities under the
protection of the general rules which govern society.'"
[Footnote: Hurtado _v._ California, 110 United States
Reports, 516, 535.]
Other instances might be mentioned, equally conspicuous, which
will entitle Webster to the name given him by his contemporaries
of "the expounder of the Constitution."[Footnote: See Article by
Everett P. Wheeler on Constitutional Law of the United States as
Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII,
p. 366, and in the 27th Annual Report of the New York State Bar
Association.] No one American lawyer has done as much in that
direction, but there are few of the greater ones who have not
done something. As, however, the glory of a battle won is for
the commander of the victorious forces, so the glory of adding a
new meaning to a constitution at a vital point is, with the
public, always for the judge whose opinion is the first to
announce it. Who announced it to him they never know or soon
forget.
The acknowledged possession by the judiciary of the power to
interpret written law, and thus to delimit its effect, has led to
a serious abuse in our methods of legislation. Statutes are
often favorably reported and enacted, both in Congress and the
State legislatures, which are admitted to be either of doubtful
constitutionality or to contain expressions of doubtful meaning,
on the plea that those are questions for the courts to settle.
This has been aptly termed the method of the "_referendum_
to the courts in legislation."[Footnote: Thomas Thacher, Address
before the State Bar Association of New Jersey, 1903.] It is
unfair to them, so far as any question of the Constitution is
concerned, since as soon as the measure is enacted a presumption
arises that it is not unconstitutional. The courts will not hold
otherwise without strong grounds. It comes to them with the
benefit of a full legislative endorsement. It is unfair to the
people, both as to questions of constitutionality and of
interpretation. A statute can be so drawn as to need no
interpretation, or none the outcome of which can be a matter of
doubt to any competent lawyer. A legislature abandons its
function when it enacts what it does not understand.
The Sherman Anti-Trust Act is an instance of legislation of this
character. It forbids contracts "in restraint of trade or
commerce" between the States. When the bill was reported it was
objected in the House of Representatives that these terms were
vague and uncertain. The chairman of the committee himself
stated that just what contracts will be in restraint of such
commerce would not and could not be known until the courts had
construed and interpreted the phrase.
The real intent of those who inserted it was that it should not
embrace contracts which were reasonable and not contrary to
public policy. A similar term in the English Railway and Canals
Traffic Act had received that interpretation in the English
courts, and they supposed that our courts would follow those
precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.]
The Supreme Court of the United States did construe it as
embracing all contracts in restraint of inter-State trade,
whether reasonable or unreasonable, fair or unfair.[Footnote:
United States _v._ Joint Traffic Association, 171 United
States Reports, 505, 570.] One of the justices who concurred in
that opinion, in a subsequent case arising under the same statute
intimated that on reconsideration he thought the view that had
been thus adopted was wrong.[Footnote: Northern Securities
Co. _v._ United States, 193 United States Reports, 197,
361.] The addition by those who drafted the bill of three or
four words to make their intended meaning clear would have
avoided a result unexpected by them and probably undesired, and
relieved the court from deciding questions of doubtful
construction involving important political considerations and
immense pecuniary interests.
* * * * *
CHAPTER VII
THE JUDICIAL POWER OF DECLARING WHAT HAS THE
FORM OF LAW NOT TO BE LAW
Government is a device for applying the power of all to secure
the rights of each. Any government is good in which they are
thus effectually secured. That government is best in which they
are so secured with the least show of force. It is not too much
to say that this result has been worked out in practice most
effectually by the American judiciary through its mode of
enforcing written constitutions. How far it has gone in
developing their meaning and building upon the foundations which
they furnish has been made the subject of discussion in the
preceding chapter. It remains to consider its office of
adjudging statutes which come in conflict with their meaning, as
thus determined, to be void.
The idea of a supreme authority exercising the function of
setting aside acts of legislative bodies which it deemed
inconsistent with a higher law was familiar to Americans from an
early period of our colonial history.[Footnote: See Chap. I;
Dicey, "Law of the Constitution," 152; "Two Centuries Growth of
American Law," 12, 19.] The charter of each colony served the
office of a constitution. The Lords of Trade and Plantations
exercised the power of enforcing its observance. They did in
effect what, as the colonies passed into independent States with
written Constitutions, naturally became the function of their own
courts of last resort. The Constitution, like the charter, was
the supreme law of the land. Whatever statutes the legislature
of a State might pass, it passed as the constitutional
representative of the people of that State. It was not made
their plenary representative. Every Constitution contained some
provisions restricting the legislative power. If any particular
legislative action transgressed these restrictions, it
necessarily went beyond the authority of the body from which it
emanated.
The Judicial Committee of the Privy Council, which now exercises
the functions formerly belonging to the Lords of Trade and
Plantations, and is in fact the same body, deals in a similar way
today with questions of a constitutional character. If one of
the provinces included in the Dominion of Canada should in its
local legislation infringe upon a field belonging to the Dominion
Parliament, this committee can "humbly advise the king" that the
act in question is for that reason void.[Footnote: In July, 1903,
for instance, an Act of the Province of Ontario, entitled the
"Lord's Day Profanation Act," was thus declared _ultra
vires_.]
The Revolution found the new-made States of the Union without
this safeguard against a statute repugnant to a higher law. They
had enjoyed as colonies the advantage which Burke declared was an
ideal in government. "The supreme authority," he said, "ought to
make its judicature, as it were, something exterior to the
State." The supreme judicature for America had been in England.
There was now no King in Council with power to set a statute
aside forthwith by an executive order. But the other function of
the King in Council, that of acting as a court of appeal from
colonial judgments, had been simply transferred to new hands.
The State into which the colony had been converted now exercised
it for itself and through her judiciary.
The judgment of a court is the legal conclusion from certain
facts. Unless it is a legal conclusion from the facts on which
it purports to rest it is erroneous, and, if there is any higher
court of appeal, can be reversed. If such a judgment depends
upon a statute which justifies or forbids the act or omission
which constituted the cause of action, it is legal or illegal
according as this statute is or is not law. It cannot be law if
its provisions contravene rules laid down by the Constitution of
the State to restrict the legislative power. The court which
tries the cause must meet this question whenever it arises like
any other and decide it. A court of law must be governed by law.
What has the form of law is not law, in a country governed by a
written constitution, unless it is consistent with all which that
instrument provides.
The first decision of an American court bottomed on these
principles was probably rendered as early as 1780, and in New
Jersey.[Footnote: Holmes _v._ Walton, IV _American
Historical Review_, 456.] One of her greatest statesmen, who
after taking a distinguished part in framing the federal
Constitution became a justice of the Supreme Court of the United
States, vigorously enforced the same doctrine on the circuit
fifteen years later in trying a cause turning on the
unconstitutionally of a confirming act passed by the legislature
of Pennsylvania. "I take it," Justice Patterson said in charging
the jury, "to be a clear position that if a legislative act
oppugns a constitutional principle the former must give way and
be rejected on the score of repugnance. I hold it to be a
position equally clear and sound that in such case it will be the
duty of the court to adhere to the Constitution, and to declare
the act null and void."[Footnote: Vanhorne's Lessee _v._
Dorrance, 2 Dallas' Reports, 304, 309, 316.]
The accession of the Republicans to power in 1801, only to find
the courts of the country controlled by judges appointed from the
ranks of the Federalists, was the occasion of new attacks upon
the doctrine thus laid down. It was vigorously denied by Senator
Breckenridge of Kentucky, afterward Attorney-General of the
United States, in the debates preceding the repeal of the
Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A
year later (in 1803) the question came for the first time before
the Supreme Court of the United States, and the same positions
advanced by Patterson were taken in what is known as the leading
case upon this subject by Chief Justice Marshall.[Footnote:
Marbury _v._ Madison, I Cranch's Reports, 137. See
Willoughby, "The American Constitutional System," 39.] It was
unfortunate that the action was one involving a matter of
practical politics, in which the plaintiff sought the benefit of
a commission the issue of which had been directed by President
Adams at the close of his term, but which was withheld by the
Secretary of State under President Jefferson. Party feeling ran
high at this time. The views of Breckenridge were shared by
many, and the supremacy of the judicial department, which this
prerogative, if it possessed it, seemed to imply, was distasteful
to a large part of the people.
An eminent judge of a State court, Chief Justice Gibson of
Pennsylvania, as late as 1825, in a dissenting opinion, combated
at length the reasoning of Marshall as weak and inconclusive.
If, he said, the judiciary had the power claimed, it would be a
political power. Our judicial system was patterned after that of
England. Our judges had, as such, no power not given by the
common law. It was conceded that English judges could not hold
an act of Parliament void because it departed from the British
constitution. No more could American judges hold an act of a
State legislature void because it departed from the State
Constitution, unless that Constitution in plain terms gave them
such a power. The Constitution of the United States did give it,
political though it was, to all judges (Art. XI, Sec. 2), and a
State statute which was contrary to that Constitution might
therefore properly be declared void by the courts.[Footnote:
Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.]
Later in his judicial career Gibson abandoned this position,
[Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports,
281.] and the ground taken by Marshall has been since 1845
universally accepted.
The last official attack upon it was made in 1831, at the time
when the feeling against protective tariffs was strong in the
South, and South Carolina was known to be meditating opposition
to their enforcement. The judiciary committee of the House of
Representatives reported a bill to repeal the section of the
Judiciary Act which gave the Supreme Court of the United States
the right to reverse judgments of State courts that it might deem
contrary to the Constitution of the United States. The report
said that such a grant was unwarranted by the Constitution and "a
much greater outrage upon the fundamental principles of
theoretical and practical liberty as established here than the
odious writ of _quo warranto_ as it was used in England by a
tyrannical king to destroy the right of corporations." The
House, however, rejected the bill by a very large majority.
A proper regard for the coordination of the departments of
government forbids courts to declare that a statute is
inconsistent with the Constitution unless the inconsistency is
plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.
This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des republicans d'Europe, fort
chatouilleux sur le chapitre de la puissance legislative. C'est
que la notion de l'Etat differe d'une facon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
Etats-Unis, II, 145.]
Our people have been satisfied with the interposition of the
courts to defend their Constitutions from executive or
legislative attack, because these Constitutions stand for
something in which they thoroughly believe. President Hadley has
well said that "a written Constitution serves much the same
purpose in public law which a fence serves in the definition and
protection of private rights to real estate. A fence does not
make a boundary; it marks one. If it is set where a boundary
line has previously existed by tradition and agreement, it forms
an exceedingly convenient means of defending it against
encroachments. If it is set near the boundary and allowed to
stay there unchallenged, it may in time become itself the
accepted boundary. But if the attempt is made to establish a
factitious boundary by the mere act of setting up a fence the
effort fails."[Footnote: Freedom and Responsibility, 30.]
Americans took principles and institutions with which they had
become familiar in colonial days and made their Constitutions out
of them. Their attachment to what the Constitution provides goes
behind the Constitution to the rock of ancient custom and
precedent on which it rests, the common heritage of all the
States.
There is an obvious reason for the unwillingness of the judiciary
to exercise the power under consideration unless in case of
necessity. The legislature presumably does only what the public
sentiment of the day justifies or demands. One branch of it, at
least, is the direct representative of the people. To defeat the
operation of a statute is therefore always presumably an
unpopular thing to do, and if in any case there is known to be
truth behind the presumption, it requires, as the Federalist
[Footnote: No. LXXVIII.] put it, "an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the constitution."
It is seldom that an inferior court declares a statute void. The
mere fact that it was enacted by the legislature imports the
opinion of that body that it was within its powers; and such an
opinion of a department of government is entitled to great
respect. If a different, opinion is to prevail, it should
ordinarily be first pronounced by the highest authority that can
speak for the judicial department. So far, however, as the
question of power or jurisdiction is concerned, a justice of the
peace, in trying a five-dollar case, has the same authority to
disregard a statute, whether it be one enacted by the State
legislature or by Congress, if he deems it unconstitutional,
which belongs to the full bench of the Supreme Court of the
United States. If he is wrong, the only remedy is by appeal.
The number of statutes which have been judicially pronounced in
whole or part invalid in the United States is very large. Among
the Acts of Congress which have fallen in this manner and have
been made the subject of elaborate opinions may be mentioned the
provision in the original Judiciary Act giving the Supreme Court
of the United States greater original jurisdiction than the
Constitution provided;[Footnote: Marbury _v._ Madison, I
Cranch's Reports, 137.] the Act of 1865, excluding from practice
in the United States courts attorneys who could not take the
"iron-clad oath" that they had not supported the South in the
Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
to protect the colored voter;[Footnote: United States _v._
Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
1875;[Footnote: United States _v._ Stanley, 109
U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
157 U. S. Reports, 429.] Fifteen others of less importance have
fallen by the same sword. The Supreme Court of the United States
has also set aside in the same manner, as inconsistent with the
Constitution of the United States, over two hundred statutes
passed by States. Of the twenty-one acts of Congress thus
declared unconstitutional, the decisions as to all but two were
rendered after 1830; of the State statutes all but
twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
fourteenth amendment has added largely to the list of the latter
since its adoption in 1868.
State statutes set aside by the State courts since 1780 as in
violation of their respective State constitutions number
thousands. In the year from October 1, 1902, to October 1, 1903,
the legislatures of forty-four States and fully organized
Territories of the United States were in session and nearly
14,400 new statutes were enacted. During the same year fifty
State statutes were declared in whole or part unconstitutional by
courts of last resort. Three of these decisions were rendered by
the Supreme Court of the United States. Five statutes of
Missouri and as many of Indiana were thus set aside; three each
of California, Kansas and Ohio; two each of Florida, Illinois,
Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
and one each of those of Kentucky, Maine, Michigan, Minnesota,
New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
No. 86, New York State Library, "Comparative Summary and Index of
Legislation, 1903," 273, 281.] On the average probably as many
as one statute out of every three hundred that are enacted from
year to year are thus judicially annulled.
The declaration by a court that a statute is unconstitutional and
void is only a step in a cause. In the judgment it may not be
found necessary or proper even to allude to it. But the order of
the court which the judgment contains must be executed precisely
as if no such statute had ever been enacted. It may, in effect,
be directed against the State whose statute is pronounced void if
the plaintiff complains of action taken under it which has
deprived him of property and put it in the hands of public
officers, or seeks a remedy to prevent a threatened wrong.
The State of Ohio in 1819 passed a statute reciting that a branch
of the United States Bank was transacting business there contrary
to the law of the State, and imposing a tax upon it, in case it
continued to do so, of $50,000 a year, to be collected by the
auditor and paid over to the treasurer. The auditor subsequently
sent a man to the bank who forcibly seized and carried off
$98,000 in specie. This was given to the State treasurer, who
kept it in the treasury in a trunk by itself. The bank sued all
three for the money in the Circuit Court, setting forth all these
proceedings at length. Judgment went against them and, with a
slight modification, was affirmed by the Supreme Court of the
United States. It was held by Marshall in giving the opinion
that the statute was void; that the money had never become
mingled with the funds of the State; and that they were liable
for it precisely as if they were private individuals who had
wrongfully seized it.[Footnote: Osborn _v._ Bank of the
United States, 9 Wheaton's Reports, 738.]
These proceedings awakened great feeling in Ohio, and became the
subject of much criticism throughout the country by those
adhering to the Democratic party. The legislature of Ohio
adopted resolutions denouncing them as unauthorized by the
Constitution of the United States, and directed the Governor to
forward a copy to the legislature of every other State with a
request for its opinion on the subject. The replies varied in
tone according to the political predilections of the party then
in control of the State addressed.
Still closer does a court come to collision with the political
sovereignty of the State when it commands a public officer to do
something in violation of a statute which it pronounces void, or
not to do something which such a statute requires. A striking
instance of this is furnished by the power to nullify legislative
gerrymanders. The Constitutions of almost every State provide
that it shall be districted from time to time by the legislature
for the purpose of electing certain officers or local
representatives, and that this shall be so done as to make the
districts as nearly equal in population as conveniently may be,
and composed of contiguous territory. If a legislature
undertakes to construct districts by any other rule, the courts
can compel those charged with the conduct of elections to
disregard it and to hold them according to the districts
previously established under the former law.[Footnote: State
_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
17 Lawyers' Reports Annotated, 145; 35 American State Reports,
29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
Northeastern Reporter, 980.] But however necessary may be the
conclusion from the premises, it can hardly be agreeable to the
authors of a law which it serves to destroy. In effect, though
not in theory, it subordinates one department of government to
another. The practical result is to give the judiciary a
superior power to the legislature in determining what laws the
latter can enact. It is not a right of veto, but in a case which
calls for its exercise it is an equal right exercised in a
different way.
In the first instance of a resort to it[Footnote: See p. 100.]
the section of the New Jersey Constitution of 1776 confirming the
right of trial by jury was held by the full bench of the Supreme
Court to render a statute void which authorized a trial without
appeal before a jury of six, on a proceeding for the forfeiture
of goods brought in from British territory or the British
military lines. This was an unwelcome decision to many who were
interested in such seizures, and they sent in several petitions
to the legislature for redress. No action criticising the
judges, however, was taken by that body.
Four years later the Mayor's Court of New York, in the case of
Rutgers _v._ Waddington, held that an act of the legislature
of that State, if given the effect which it was plainly intended
to secure, would be contrary to the Constitution of the State,
and therefore allowed it so limited an operation as virtually to
annul it. The legislature retorted by resolutions of
censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]
What was probably the second instance of the actual use of the
power in question arose in 1786, out of a statute of Rhode Island
passed to support the credit of her paper money of that year's
issue. Any one declining to receive it in payment for goods sold
at par was to be liable to a _qui tum_ action, to be tried
without a jury. Counsel for a man sued in such a proceeding put
in a plea that the act was unconstitutional and so
void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
Power and Unconstitutional Legislation," 234, 237.] The court,
which was composed of five judges, threw out the action on this
ground, treating the charter from Charles II and the long usage
under it as having established trial by jury as a fundamental and
indefeasible right. The General Assembly shortly afterward
summoned the judges before it to account for this judgment. They
appeared and stated their reasons for their conclusion,
protesting also against the adoption of any resolution for their
removal from office (which had been suggested) until after a
formal trial. They were not impeached, but at the ensuing
session, their terms of office having expired, the Assembly chose
others in their place.
Not far from the same time the Supreme Judicial Court of
Massachusetts pronounced a statute unconstitutional, but there
the legislature displayed no feeling, and at the next session
unanimously repealed it.[Footnote: This, no doubt, was one of the
instances of the exercise of this power referred to by Elbridge
Gerry in the Federal Convention of 1787. Elliot's Debates, V,
151. It is described in Proceedings Massachusetts Historical
Society, XVII, 507.]
In 1808, Judge Calvin Pease of the Ohio Circuit Court was
impeached for holding a law of Ohio unconstitutional. He avowed
the act, and insisted that as it was a judicial one the soundness
or unsoundness of his conclusions could not be inquired into as a
ground of impeachment. The result was an acquittal.[Footnote:
Foster, "Commentaries on the Constitution of the United States,"
I, 691.]
Georgia was the only one of the original States which set up no
Supreme Court at the beginning of its statehood. Her
Constitution established (Art. III, Sec. 1) a Superior Court, and
left it to the General Assembly to give it, if they thought best,
appellate jurisdiction. The judges were subsequently by statute
authorized to sit _in banc_ and hear appeals. In 1815,
while so sitting, they declared a certain statute of the State
unconstitutional and void. The legislature showed its resentment
by a set of resolutions, of which the parts material in this
connection read thus:
Whereas, John McPherson Berrien, Robert Walker, Young Gresham
and Stephen W. Harris, judges of the Superior Court, did, on
the 13th day of January, 1815, assemble themselves together in
the city of Augusta, pretending to be in legal convention, and
assuming to themselves ... the power to determine on the
constitutionality of laws passed by the general assembly, and
did declare certain acts of the legislature to be
unconstitutional and void; and ... the extraordinary power of
determining upon the constitutionality of acts of the state
legislature, if yielded by the general assembly whilst it is
not given by the constitution or laws of the state, would be an
abandonment of the dearest rights and liberties of the people,
which we, their representatives, are bound to guard and protect
inviolate;
Be it therefore resolved, That the members of this general
assembly view, with deep concern and regret, the aforesaid
conduct of the said judges ... and they can not refrain from an
expression of their entire disapprobation of the power assumed
by them of determining upon the constitutionality of laws
regularly passed by the general assembly, as prescribed by the
constitution of this state; we do, therefore, solemnly declare
and protest against the aforesaid assumption of powers, as
exercised by the said judges, and we do, with heartfelt
sensibility, deprecate the serious and distressing consequences
which followed such decision; yet we forbear to look with
severity on the past, in consequence of judicial precedents,
calculated in some measure to extenuate the conduct of the
judges, and hope that for the future this explicit expression
of public opinion will be obeyed.
In 1821 a case was argued before the Supreme Court of the United
States involving the validity of a Kentucky statute passed to
protect occupants of land who had made valuable improvements upon
it in good faith, in case it should be subsequently proved to
belong to some one else. The occupant had employed no lawyer,
and it was surmised that the court would decide against him. The
Governor of Kentucky called the attention of the legislature to
this, and advised the employment of counsel to defend the law.
The legislature responded by resolving "that they consider an
adjudication, that the laws in question are void, incompatible
with the constitutional powers of this state, and highly
injurious to the best interests of the people; and therefore do,
in the name of the commonwealth of Kentucky, and the good people
thereof, solemnly remonstrate and protest against any such
adjudication," but that two commissioners should be appointed "to
attend the Supreme Court of the United States at the next term
and oppose any decision that may be attempted to be procured from
the Supreme Court, that those laws are void in such manner as
they may deem most respectful to the court and most consistent
with the dignity of this state."[Footnote: Niles' Register, XXI,
190, 404, 405.] The case had already been heard _ex parte_,
and the court soon proceeded to give judgment that the statute in
question was void. The Kentucky commissioners employed counsel,
who moved for a reargument, and obtained one, but with the same
result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
1.] The legislature at its next session discussed the opinion in
the case and resolved "that they do most solemnly protest against
the doctrines promulgated in that decision as ruinous in their
practical effects to the good people of this commonwealth and
subversive of their dearest and most valuable political
rights."[Footnote: Niles' Register, XXV, 275.]
They then took up two decisions of their own Court of Appeals,
declaring other statutes of the State unconstitutional and void,
and resolved "that in the opinion of this legislature the
decision of the Court of Appeals of Kentucky in the cases of
Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
are erroneous, and the laws declared therein to be
unconstitutional are, in the opinion of this present General
Assembly, constitutional and valid acts."[Footnote: Niles'
Register, XXV, 275.] The next step was to endeavor to remove the
judges, but the two-thirds vote required by the Constitution to
support an address to the Governor for that purpose could not be
secured. At the next session, in 1824, the judges were summoned
to show cause why they should not be removed. They defended
their conclusions so well that the two-thirds vote of each house
required by the Constitution could not be obtained. By a
majority vote the court was then abolished, a new one set up by
the same name, and four new judges appointed. The old court
refused to recognize the validity of their proceedings. The new
one assumed to organize and to do business. At the next election
the question which court ought to be recognized was the dominant
one. The result was that the friends of the old court gained
control of the House and those of the new court that of the
Senate, one of them being also chosen as the Governor. The new
court now got possession of most of the papers of the old court.
The latter ordered their sergeant to bring them back. The
Governor made preparations to use military force to resist the
execution of this order. At last, in 1826, an act was passed
(Session Laws, p. 13) over the Governor's veto, declaring the
acts abolishing the old court unconstitutional and void. The
Governor thereupon appointed a warm champion of the new court
chief justice of the old one to fill a vacancy which had occurred
on that bench, and for the first time for two years the judicial
establishment of the State was on a proper footing.[Footnote:
Niles' Register, XXXI, 324; McMaster "History of the People of
the United States," V, 162-166; "The Old and the New Court, in
The Green Bag," XVI, 520.]
Meanwhile both courts had been sitting and disposing of cases.
New appeals from the inferior courts had been entered in the one
which the appellant's counsel thought most likely to stand as the
rightful authority. The judges of the inferior courts were in
despair when the mandates of the Court of Appeals came down, and
they were called upon to determine whether to obey them. Some
held that the new court was a _de facto court_, and to be
respected accordingly. The ultimate decision fell to the old
court, which, after the repealing Act of 1826, held that there
could be no such thing as a _de facto_ Court of Appeals so
long as civil government was maintained and the _de jure_
court was in the exercise of its functions.[Footnote: Hildreth's
Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
Reports, 206.]
The same spirit of jealousy still occasionally manifests itself
in a less outspoken but more effective fashion. If a question of
political importance is likely to come before a court, it may be
within the power of the legislature to prevent it by a change in
its statutory jurisdiction.
In this way the Supreme Court of the United States was kept from
passing on the validity of the Reconstruction Acts enacted by
Congress at the close of the Civil War, in a case which was
actually pending. Under these Acts a Mississippi newspaper
editor was arrested in 1867 by military order on account of an
article which he had published reflecting on the policy of the
government, and held for trial before a military commission. He
appealed to the Circuit Court of the United States for the
District of Mississippi for discharge on a writ of _habeas
corpus_. Judgment went against him, and he appealed to the
Supreme Court of the United States. The court, on August 1, held
that it had jurisdiction to review the decision and to decide
whether he could be tried before such a commission.[Footnote:
_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
cause was then heard on its merits and all the questions involved
discussed at length, four days being devoted to it. Congress
apprehended a decision that the Reconstruction Acts were
unconstitutional, and before one was arrived at, during the same
month, passed an act repealing the right of appeal in such cases
from the Circuit Court. The purpose of this was obvious, but it
was none the less effective, and the court, without deciding the
case, dismissed it for want of jurisdiction.[Footnote: _Ex
parte_ McCardle, 7 Wallace's Reports, 506.]
A legislature whose work has been set aside by the courts as
unconstitutional sometimes asks, in effect, for a reconsideration
of the question by passing another law substantially of the same
nature, although expressed in somewhat different terms. This is
oftenest done when the decision was made by a divided court or is
contrary to the weight of judicial opinion in other States.
Early in the history of California, for instance, a statute was
passed making it a misdemeanor to keep open any store, shop or
factory, or to sell goods, on Sunday. The Supreme Court of the
State held this to be contrary to the provisions in her
Constitution that all men had the inalienable right of acquiring
property, and that the free exercise of religious profession
should be allowed without discrimination or preference. Most of
the other States had similar statutes, and their courts had
supported their validity. Judge Stephen J. Field, then on the
California bench, dissented in a vigorous opinion.[Footnote:
_Ex parte_ Newman, 9 California Reports, 502.] Three years
later the legislature, unconvinced by the reasoning of the
majority of his associates, passed a new Sunday law, which did
not differ materially from the other, and after a few months the
court overruled their former decision, on the very ground taken
by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
Reports, 679.]
Any dissent from a judgment setting aside a statute greatly
weakens its force. It has also much less claim to public
confidence if all the judges on the bench did not participate in
it. In 1825, the Court of Appeals of Kentucky declined to follow
a decision of the Supreme Court of the United States, which held
certain statutes of Kentucky to be contrary to the Constitution
of the United States.[Footnote: Green _v._ Biddle, 8
Wheaton's Reports, 1.] The reason stated for this was that the
decision was not concurred in by a majority of the court. It had
been made by a majority of a quorum, but not by a majority of the
whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
Kentucky Reports, 57.] After this it became the practice of the
Supreme Court under Chief Justice Marshall not to give judgment
in any case involving constitutional questions, unless a majority
of the court concurred in opinion in regard to these.[Footnote:
New York _v._ Miln, 8 Peters' Reports, 118, 122.]
Several American courts have asserted the doctrine that the
judiciary can disregard a statute which plainly violates the
fundamental principles of natural justice, although it may not
contravene any particular constitutional provisions. The English
courts now claim no such power, although Sir Edward Coke, in one
of his discursive opinions, very little of which was necessary
for the determination of the cause, asserted that an act of
Parliament "against common right and reason" could be adjudged
void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
Reports, 114, 118.] So far as there was any previous judicial
authority for this position, however, it is believed that it can
only be found in decisions made before the Reformation, on
questions arising from interference by Parliament with rights
claimed under the Church of Rome. Such questions were of the
nature of those arising under a written Constitution. The law of
the church within its province was then accepted as a supreme
law.[Footnote: Coxe, "Judicial Power and Unconstitutional
Legislation,"' 147, _et seq_.]
The rule laid down by Sir Edward Coke was accepted by the Supreme
Court of South Carolina in two early cases,[Footnote: Ham
_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
Middleton, _Ibid_., 252.] and has been substantially
repeated in some judicial opinions in other States.[Footnote: See
Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
American Decisions, 72.] In the Supreme Court of the United
States its authority was emphatically denied by Mr. Justice
Iredell, near the close of the eighteenth century,[Footnote:
Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
the full court only one member dissenting, held a State statute
void which authorized cities to issue bonds in aid of private
manufacturing enterprises, because they could only be discharged
by taxation, and to tax for such a purpose would be taking
property from all for the good of one. That, said Mr. Justice
Miller in delivering the opinion, "is none the less a robbery
because it is done under the forms of law and is called taxation.
This is not legislation. It is a decree under legislative
form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
U. S. Reports, 487, 501.]
This view of the law had been forcibly, though tentatively, put
shortly after he came to the bench by Chief Justice Marshall in a
leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
Reports, 87.] but one in which it was not necessary to decide
whether the doctrine was sound. "It may well be doubted," he
observed, "whether the nature of society and of government does
not prescribe some limits to the legislative power; and, if any
be prescribed, where are they to be found, if the property of an
individual, fairly and honestly acquired, may be seized without
compensation? To the legislature all legislative power is
granted; but the question whether the act of transferring the
property of an individual to the public be in the nature of the
legislative power is well worthy of serious reflection."
The weight of American authority is in favor of the position
taken by Iredell.[Footnote: Cooley's "Constitutional
Limitations," Chap, VII; State _v._ Travelers' Insurance
Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
57 Lawyers' Reports Annotated, 481.] Time has made it safer to
stand upon it, for since he spoke not only have our State
constitutions been generally expanded by adding important
restrictions on the legislative power, but the fourteenth
amendment has added to the Constitution of the United States a
prohibition of State laws depriving any person of life, liberty,
or property without due process of law. "Due process of law" is
an elastic term. Requiring it certainly imports that no one is
to be made to suffer in person or property unless he has had an
opportunity to claim before an impartial tribunal the protection
of his rights by the settled law of the land.
The principle of Roman law that, as custom can make law, so
disuse can destroy it has never been adopted in the United
States. No court, therefore, will pronounce a statute not to
have the force of law on the ground that it is
obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
undertook to import the doctrine into American jurisprudence, but
without effect. Hill _v._ Smith, Morris' Reports, 70;
explained and limited in Pearson _v._ International
Distillery, 72 Iowa Reports, 357.]
* * * * *
PART II
THE ORGANIZATION AND PRACTICAL
WORKING OF AMERICAN COURTS
* * * * *
CHAPTER VIII
THE ORGANIZATION OF THE COURTS OF THE STATES
The State Constitutions differ fundamentally from that of the
United States in respect to the nature of the judicial
establishment. Each of the States possesses all judicial powers
belonging to any sovereignty, except so far as the people of the
United States may have provided otherwise in the Constitution of
the United States. The State Constitutions do not define those
powers. They simply commit them to certain courts and officers.
Their general language is that the judicial power is vested in a
Supreme Court and such other inferior courts as may be created by
law. On the other hand, the Constitution of the United States
defines the judicial powers of the United States exactly and
within a somewhat narrow range, investing the courts of the
United States with those powers and no others. Hence the States
require a much more complicated and extensive judicial
establishment than do the United States, for not only is the
great mass of litigated cases throughout the country to be
disposed of by State courts, but they must also pass upon by far
the greatest variety of legal questions.
In each State there is one appellate court of last
resort[Footnote: See Chap. XIX.] and several courts for the trial
of original causes. Local justices of the peace are commonly
given jurisdiction over prosecutions for petty misdemeanors, and
civil cases involving small amounts (seldom over $50 or $100),
which do not affect title to land. Then come County Courts
(often styled Courts of Common Pleas or District Courts), having
cognizance of actions involving greater sums, and to which
appeals from judgments of justices of the peace can be taken.
These generally have both civil and criminal jurisdiction.
A higher court, which may be styled a Superior Court, or Circuit
Court, often exists, with unlimited jurisdiction as respects
values in controversy, and also as to crimes, the County Courts
in such case having a limited jurisdiction in these respects.
Municipal courts are to be found in all considerable cities and
in many of the lesser municipalities, such as towns and boroughs.
City Courts often have jurisdiction over civil causes to which
one residing in the city is a party, or growing out of a
transaction occurring within the city, irrespective of the amount
of the matter in demand. They frequently have a criminal side,
before which convictions may be had for petty misdemeanors, and
those charged with higher offenses bound over for trial in some
court of general criminal jurisdiction.[Footnote: See Goodnow,
"City Government in the United States," Chap. IX.]
For the settlement of the estates of deceased persons and the
appointment and superintendence of guardians and similar agents
of the law, and proceedings in insolvency, there are in many
States special courts, known as Courts of Probate, Surrogate's
Courts, or Orphans' Courts, and Courts of Insolvency. In others
these functions belong to the County Courts.
The early practice in this country favored having several judges
hold all trial courts, whether a jury was or was not to be called
in. It was a method wasteful of time and money. In
Massachusetts it survived for their highest _nisi prius_
court until 1804. In many States it endured much longer for
County Courts.
County Courts in some States are courts only in name, except,
perhaps, for some very limited purposes. Their real functions
are administrative. Some or all of those who hold them are often
styled commissioners, and their principal duties are to manage
the general business affairs of the county.[Footnote: See
Constitution of West Virginia, Amendment of 1880; Constitution of
Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
indicates that those in that State are not fountains of law, for
it requires the district attorneys in each county, or their
deputies, to advise the County Courts "on all legal questions
that may arise." In Virginia, County Courts for a long period
were held by all the justices of the peace in the county, or such
of them as might attend. These magistrates nominated their own
successors to the Governor, who almost never refused to
commission the person so recommended. The court also nominated
the officers of militia below the rank of General, and managed
all the county affairs, besides having an extensive civil and
criminal jurisdiction, including the power of acquittal in cases
of felony. However clumsy and ill-ordered such a scheme appears,
it gave general satisfaction for a long course of years, partly
from a usage on the part of the older members of the bar who
might be in attendance to volunteer advice as _"amci
curiae"_ whenever any doubtful question of law chanced to
arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
County Courts have jurisdiction of ordinary lawsuits the judges,
or a majority of them, are sometimes without any legal training,
though this is now less common than it once was.[Footnote:
McMaster, "History of the People of the United States," III,
154.]
The Constitutions of the States generally require the existence
of a Supreme Court of last resort, and often specify also by name
one or more of inferior jurisdiction. Such courts stand on a
firmer footing than those created by the legislature under a
general power to establish inferior courts. The power to
establish implies a power to limit and to destroy. A tribunal
created by a Constitution, with functions defined in the
Constitution, is, as to these and as to its independence of
existence and action, beyond legislative control.
The Republicans in Congress were within their rights when, in
1802, they repealed the act passed by the Federalists the year
before to create a system of Circuit Courts. Those of
Massachusetts were within theirs when, in 1811, they abolished
the ancient Court of Common Pleas of that State and created a new
"Circuit Court," with fifteen judges, to take its place. Both
would have been glad to go farther and reconstitute in some way
the court of last resort, which was filled with old Federalists.
Why they did not has been frankly stated by one of them in his
account of Governor Gerry's administration:
With the Supreme Judicial Court the party did not interfere.
In respect for the authority of the Constitution this
forbearance was observed; it having been conceded after due
deliberation by men having the confidence of the dominant party
that neither the court nor the judges were within the power of
the legislature. The result was very reluctantly acceded to,
for the imposing influence of that court had been felt in the
political agitation of the times, and some of the judges, like
some ministers of the gospel, had been unwise enough to give to
the extension of their political feelings the aid directly
derived from their official authority.[Footnote: Austin, "Life
of Elbridge Gerry," II, 339. See Chap. XXII.]
The weakest point in this system of judicial organization is the
vesting of jurisdiction of small civil causes in justices of the
peace. Of these there are generally several in each town, having
jurisdiction over the whole county. Some may be lawyers. None
need be, and few are. Any one of them can try cases. Which of
them shall try any particular case is left to be determined by
the lawyer who brings it.
Justices of the peace can be trusted to dispose of petty criminal
prosecutions and to conduct preliminary examinations into charges
of any offence for the purpose of determining whether there is
ground for holding the accused for trial before a jury, although
even here mischief often results from their ignorance of law, and
the sufferers have little means of redress.[Footnote: See McVeigh
_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
Reporter, 701.] Such prosecutions are brought by a public
officer, who will not be apt to select an incompetent magistrate,
and has no strong motive for choosing one specially likely to
give judgment against the defendant. But in civil cases, for the
lawyer who institutes them to pick out his judge at will from a
number who are equally competent to assume jurisdiction, and at
the same time (as is generally the law) are left wholly without
salaries, receiving nothing except fees for cases actually
brought before them, is to place the defendant in a much less
favorable position than the plaintiff. If the justice decides in
favor of the latter, he is obviously more likely to get the
subsequent patronage of his lawyer. In most justice suits
judgment does go for the plaintiff, and not infrequently it is to
be feared that he gets it from that consideration. Some justices
rarely give any other judgment. Many lawyers bring all their
cases before one justice, and seldom fail of success.
In 1903, a justice of the peace in one of our largest cities
resigned his office and made his reasons public. They were that
no one could afford to hold it who was not willing to stoop to
unworthy practices. Lawyers having a large collection practice,
who were the best customers at such a shop of justice, threw
their business where they could get it done most cheaply. They
expected the justice of the peace whom they favored to favor
them. One way was by making them a discount on his legal fees.
There was a competition among the justices for business on these
terms, and the lowest bidder generally got it. Blank writs of
summons, even, signed by the justice would be sold at so much a
dozen, to be filled in to suit the attorneys.
A system in which such things are possible is inherently vicious,
and only endurable because the defeated party can always appeal
and have a new trial before a higher court. That relief,
however, is expensive. Judgments ought to be just in the first
instance, and it is the business of governments to ensure this,
so far as they reasonably can.
The natural remedy would seem to be to have fewer justices of the
peace who are authorized to try cases and to pay them a fixed
salary. Better men could thus be had and independence of action
promoted. That this is not done comes mainly from the feeling
that small controversies ought to be settled by a neighborhood
court; that any man of good common sense can generally deal with
them as well as a lawyer; and that to salary every justice would
be an unreasonable burden to impose on the taxpayer. The system
is also an ancient one; it works well with honest men; and the
people have an inherited attachment for it.
In a few States a sharp line of division is drawn between courts
of law and courts of equity. This distinction was inherited from
England, though it has been for most purposes abolished there by
the Judicature Acts of 1873 and 1875. It originated in the royal
prerogative of interposing to do justice between private
individuals in cases of an extraordinary character when the
regular courts had no power to grant the necessary relief. The
King was accustomed to refer requests for such action on his part
to his principal secretary and councillor. The next step was to
address the request directly to this officer, who was styled the
Chancellor. If a man were acting toward another in a way that
was against good conscience, though without absolutely
transgressing any settled rule of law, the Chancellor could
compel him to desist. If the legal title to land had been
conveyed to one for the use of another, and the holder of this
title refused to recognize the beneficial interest to serve which
he had been invested with it, the Chancellor could bring him to
account, although the common law would give no remedy. Soon,
whenever a man seemed to have justice on his side, but not law,
it was deemed a case for the Chancellor, or a case in chancery.
Relief was given because it was equitable to give it, and so it
was called relief in equity. The jurisdiction expanded.
Wherever there was a right, but no adequate remedy at law, the
Court of Chancery, or, as it was oftener called, of equity, was
recognized as competent to step in and do justice.
The Chancellor had often been an ecclesiastic. He was apt to be
more familiar with canon law and civil law than with the common
law. The justice which he administered came from the Crown, not
from the people. The people spoke through a jury, called in law
language "the country." The Chancellor spoke for himself. If he
called in the aid of a jury, it was to advise him, not, as in a
common law court, to make a final decision as to the question
submitted to it.
The result came to be that for several hundred years, embracing
the whole colonial period, England had two distinct sets of
courts, acting under different rules, and each trying a different
kind of cases. Those involving questions of trust, account,
fraud, mistake or accident, were the principal subjects of
equitable jurisdiction. Equity also could prevent wrongs, while
law could only punish them.[Footnote: See Chap. XX.] It was not,
however, always easy to mark the line between cases, and say
which belonged in the common law tribunals and which in those of
chancery. Many an action failed, not because there was no just
cause of action, but because it had been brought in the wrong
court.
In the American colonies, and for many years in the States which
succeeded them, these distinctions of procedure were generally
observed.[Footnote: In Pennsylvania the courts largely
disregarded them and asserted that equity was a part of its
common law. See Myers _v._ South Bethlehem, 149
Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
some there were, in some there still are, separate courts of
equity held by a Chancellor, aided, if necessary, by
Vice-Chancellors. In others two dockets or lists of cases were
(and in a number of them still are) kept in the same court, and
the same judge disposed of those on one docket as a court of
equity and of those on the other as a court of law.
Such a system is intrinsically absurd. It has been maintained by
whatever States yet tolerate it for two reasons: because the
lawyers and the community are used to it, and because it
furnishes a convenient test of any claim of right to a jury
trial. All our State Constitutions have some provision for
maintaining such rights, but they do not define the cases in
which the right exists. That is left to the courts, and their
rule is that it cannot be claimed in cases that call for
equitable as distinguished from legal relief.
In most of our States and Territories legal and equitable causes
of action or defenses may now be joined, and legal and equitable
relief given in one suit. This reform in procedure was largely
due to the labors of David Dudley Field, and became general
throughout the country during the last half of the nineteenth
century. The result has been that separate courts of equity are
now to be found only in a few States.
Congress has made use of the State courts in certain cases as
part of the machinery of the federal government. While by the
Constitution "the judicial power of the United States" can only
be vested in the courts of the United States, the phrase as thus
used refers only to the power of judging causes in courts of
record. State courts and magistrates can therefore be given
jurisdiction by Congress over any acts in aid of the functions of
the United States, the supervision of which may be regarded as
ministerial, or as incidental to judicial power rather than a
part of it. They have received it in this way with respect to
such matters as seizure of deserters from a merchantman, the
arrest and commitment or bail of offenders against the criminal
laws of the United States, the taking of affidavits and
depositions for use in proceedings before federal authorities,
and the naturalization of aliens.[Footnote: Robertson _v._
Baldwin, 165 U. S. Reports, 275.]
State courts also have jurisdiction over any civil action to
enforce a right given by the laws of the United States, unless
Congress has otherwise provided. They constitute together with
the federal courts one general judicial system for the whole
country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
Northeastern Reporter, 435.]
Almost all American courts are known as "courts of record." A
court of record, in modern parlance, is one which tries causes
between parties and is required to keep a full official and
permanent record of its disposition of them. For this purpose
most courts are furnished with a recording officer, called the
clerk. His record is the only evidence of their judgments and
cannot be contradicted or impeached in any collateral proceeding.
If there is any error in it, it can only be shown on a direct
proceeding brought to correct it.
Justices of the peace, when authorized to try causes, act only in
small matters and in a summary way. In most States they are not,
when exercising this function, deemed to constitute a court of
record. Nor is any court, even though furnished with a clerk, if
its proceedings are not recorded in full, but simply made the
subject of brief notes or minutes,[Footnote: Hutkoff _v._
Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
unless there is a statute or local practice giving such notes or
minutes the effect of a record.
A court of record has inherent power to preserve order in
proceedings before it[Footnote: See Chap. XX.] and, unless other
provision be made by law, to appoint a crier or other officer to
attend upon its sessions. By statute it is commonly made the
duty of the sheriff of the county to attend all courts of record,
either personally or by deputy. He also executes such processes
as under the practice of the court may be directed to him.
Witnesses and jurors are thus summoned by him to appear before
the court; arrests and attachments of property are made; and
executions are levied to enforce final judgments.
* * * * *
CHAPTER IX
THE ORGANIZATION OF THE COURTS OF THE UNITED STATES
The Constitution of the United States (Art. III) provides that
there must always be one Supreme Court of the United States. The
establishment of such inferior courts as may be deemed proper
from time to time is left to Congress.
The judicial power of the United States is limited to cases of
certain kinds or between certain kinds of parties. Either (1)
the subject-matter of the action must be of a kind that concerns
the whole nation, or (2) some party to it must be or claim under
a political sovereign, or (3) it must be between a citizen of a
State of the Union and one of another of the States or of a
foreign country.
In a few of the second class the Supreme Court is given original
jurisdiction: in all others of both classes it has appellate
jurisdiction, with such exceptions as Congress may think fit to
make, save only that no fact tried by a jury can be thus
re-examined, except so far as the rules of the common law would
have permitted. Its original jurisdiction is confined to cases
affecting ambassadors, ministers, and consuls and those to which
a State shall be a party. It is not necessarily exclusive as
respects any of them,[Footnote: Ames _v._ Kansas, 111
U. S. Reports, 449, 469.] and by the eleventh amendment to the
Constitution is so limited as not to include suits against a
State by citizens of any other State or foreign government. In
point of fact, few original suits have ever been brought before
the court, and almost all of these have been instituted by or
against States.
The Supreme Court is held at Washington. There is a Chief
Justice with eight associate justices, and each is also assigned
for circuit duty as a judge of the Circuit Court of the United
States in one of nine judicial circuits into which the country is
divided. Originally there were but six judges, and each was
required to hold two circuits a year in each district in his
circuit. They were assigned to the circuits in pairs, and both
sat together with the District Judge. The consequence was that
three-fourths of their time was spent in traveling from one court
town to another. They complained of this to Congress through the
President in 1792, and the next year it was provided that Circuit
Courts might be held by one justice, alone or with the District
Judge. In 1801, an ultimate reduction of the number to five was
provided for. They were to devote their time entirely to the
Supreme Court, while the Circuit Courts were to be held by a new
set of eighteen Circuit Judges. In 1802, they had only ten cases
pending before them, and the average for some years had not
exceeded that number. For this and other reasons mentioned
elsewhere the Act of 1801 was repealed by the next Congress. In
1807, another Justice of the Supreme Court was added and two more
in 1837.
Each circuit has a judicial establishment of its own, and is
composed of a certain number of judicial districts. Of these
there are in the whole United States about eighty. The smaller
States constitute one district. In the larger ones there are
several.
Each district generally has its own judge, called the District
Judge, and always its own court, called the District Court of
that district. Each circuit has several Circuit Judges, whose
main work is to sit in a court held in each circuit, styled the
Circuit Court of Appeals. They can also hold a District Court.
Until 1911, the District Courts had a narrow jurisdiction, and
there were Circuit Courts having a wider one. In 1911, the
Circuit Court was abolished, and the District Court now is the
general trial court of the United States in the first instance.
Anyone can sue there to enforce a right arising under the laws of
the United States when the amount in dispute is more than $3,000.
Rights arising under certain of these laws can only be enforced
there, and as to them the pecuniary limitation does not apply.
Such are patent-rights and copyrights. Any suit involving an
amount exceeding $3,000 may be brought there when the controversy
is between citizens of different States or citizens of a State
and citizens of a foreign country. So may a suit by citizens of
the same State claiming land under grants from different States,
without respect to the value of the subject of controversy.
Suits of any of these kinds which are brought in a State court
may, at the option of the defendant, be transferred for trial
into the District Court. On filing proper papers the case is
transferred automatically. The District Court has jurisdiction
also over bankruptcy and admiralty matters, a few other kinds of
civil cases of minor importance, and of all offenses against the
United States.[Footnote: The Judicial Code of the United States,
Chapter II.]
The pecuniary limit of jurisdiction was for a hundred years fixed
at $500. The increase to $3,000 was due partly to the fact that
the Supreme Court was overburdened by appeals from the trial
courts, many of which involved small amounts, and more to a
desire to keep judicial power over ordinary controversies between
man and man, as far as practicable, in the hands of the State
courts.
Early in the nineteenth century a practice began of bringing
suits in the Circuit Court of the United States, which purported
to be between citizens of different States, but in which the
plaintiff had either changed his residence for the purpose of
giving the court jurisdiction or was really suing for the benefit
of a citizen of the same State with the defendant. This was due
to the high opinion entertained of the federal
judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
bring the cause before a federal, rather than a State tribunal.
Such a mode of proceeding, while within the letter of the
governing statute, was contrary to its spirit, and little better
than a fraud. It was also an evident perversion of the intent of
the Constitution, and became at last so far-spreading that both
Congress and the courts used their best endeavors to put an end
to it, and with success.[Footnote: U. S. Statutes at Large,
XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]
Another cause is also effective in lessening the docket of the
District Courts. The ordinary lawyer prefers to sue in a State
court, when he has the choice, on account of his greater
familiarity with the practice there. Many American lawyers have
never brought an action in a federal court. Most cases which
could be so brought can also be and are brought in a State court.
Congress has thus far maintained for the federal courts the
ancient distinction between procedure in law and in equity
explained in the preceding chapter. There are those who claim
that the reference in Art. III, Sec. 2, of the Constitution of
the United States to "cases in law and equity" requires its
preservation; but this seems a strained construction of the
phrase. Separate dockets are kept in the District Court of legal
and of equitable actions. They are brought in different form,
tried in a different way, and disposed of by different rules,
though by the same judges and at the same term of court. As to
equity cases, the rules of the old English chancery practice are
substantially followed. In cases of a common law nature, the
practice existing at the time in regard to those of a similar
kind in the courts of the State within which the federal court
may be held is to be followed, as nearly as may be.[Footnote:
U. S. Revised Statutes, Sec. 914.] In fact, there is a departure
from it in many points in most States,[Footnote: See Nudd
_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
those which have reformed their procedure in civil actions by
fusing remedies at law with those in equity. If an action framed
in this method be removed from a State court to a federal court,
the plaintiff must thereupon split it in two, and present his
case at law on one set of papers and his case in equity on
another.
The Supreme Court, under power derived from acts of Congress, has
framed rules of procedure for the inferior trial courts of the
United States in equity and admiralty cases, and the latter
courts have supplemented them by further rules of their own
making. The Equity Rules promulgated by the Supreme Court were
revised in 1912, and took effect as changed in 1913.[Footnote:
They are printed in Volume 226 of the United States Reports.]
They greatly simplify the former procedure. Suits are now tried
generally on oral testimony taken stenographically in open court.
Formerly the evidence was usually given before officials known as
examiners or masters in chancery. The former reported the
testimony at length to the trial court. The latter reported
their conclusions from it.
The new rules have abolished demurrers in equity causes in favor
of what is substantially the present English practice.[Footnote:
See _infra,_ page 203.]
In common law causes in the District Court, the State remedies by
way of attaching the property of a defendant to respond to a
judgment, or seizing it on execution, or imposing a lien upon it
by a judgment, are adopted and enforced.[Footnote:
U. S. Rev. Stat., Sec.Sec. 915, 916, 967, 988.]
The field of national legislation being narrow, the offenses
against the nation are correspondingly few. Any acts done on
lands ceded by a State, which would have been crimes under its
law in 1873, may be punished as such in the federal courts in the
same manner which that law provided.[Footnote: _Ibid_., Sec.
5391.]
In the Circuit Courts, before 1866 it was customary to defer the
trial of important causes until the Justice of the Supreme Court
assigned to the circuit could be present. If he differed on any
material point from the District Judge, this point could be
certified up to the full Supreme Court for argument and decision
there. During this period the published reports of the decisions
of the Circuit Court contain many opinions of the highest value.
Several of the best which Story and Bushrod Washington wrote are
to be found among them.
The Act of 1866, by which a resident Circuit Judge was appointed
for each circuit, provided notwithstanding that each member of
the Supreme Court should attend at least one term of the Circuit
Court in each district as often as once in two years. The press
of business at Washington, however, soon became such as to make
it practically impossible for the Supreme Court Justices to do
any substantial circuit work. When some case of national
importance was to be heard in any district, the Justice in whose
circuit it was included would make a special effort to go down.
In this way Chief Justice Chase heard and sustained the plea with
which Jefferson Davis met the indictment against him for treason.
But ordinarily the Circuit Judge took the place of the Supreme
Court Justice, and the latter, if he appeared at all during the
term, remained hardly for a day.
The Supreme Court, therefore, during over a hundred years
remained the only court of the United States existing mainly for
appellate purposes. The work which it had before it at the last
term during which it occupied this position (October Term, 1890)
will show how much it was then overburdened.
Its docket contained 1,177 appeals brought forward by continuance
because they could not be disposed of at the preceding term, 623
new cases of the same kind, and 16 cases of original
jurisdiction, making a total of 1,816 actions. Of these,
although the term lasted nearly eight months, it was only able to
dispose of 617, thus leaving 1,199 for continuance to the
following term.[Footnote: 140 U. S. Reports, Appendix.] It will
be observed that the court was no longer able to cope with its
new business, not to mention that left over from previous years.
Appeals now lie in most civil cases from the final judgments of
the District and Circuit Courts, and from convictions for
infamous crimes, not capital, to the Circuit Court of Appeals.
They also extend to judgments granting a temporary injunction.
There is a court of this name for each of the nine circuits,
which was established in 1891 for the further relief of the
Supreme Court and the speedier termination of litigation. This
measure originated in the American Bar Association, by which it
was pressed upon the attention of Congress. It had become an
absolute necessity to devise some plan of expediting the
disposition of appeals from the trial courts of the United
States. There was more than enough of such business by the close
of the Civil War (the events attending which brought up for
decision many novel questions of the highest importance) to
require the entire attention of the Supreme Court. It soon took
three years after an appeal was docketed before it could be
reached for argument. This was intolerable, and it was obviously
necessary either to restrict the liberty of appeal; to constitute
divisions of the court, one to hear appeals of a certain class
and another those of another class; or to set up an intermediate
court. The last method was preferred. The practice in the
Circuit Court of Appeals is governed by rules of its own making,
but in general conforms to that of the Supreme Court of the
United States in appealed cases.
The commission appointed some years since to prepare a revision
of the laws of the United States have reported in favor of
abolishing all jurisdiction of the Circuit Court over original
cases and turning it into an appellate court.[Footnote: Senate
Doc. 68, 57th Congress, 1st Session.] Should this recommendation
be adopted, the District Court would acquire the jurisdiction now
vested in the Circuit Court, the District Judges would sit in the
District Court only, and the Circuit Court Judges in the Circuit
Court only, while the Circuit Court of Appeals would come to an
end.
The American Bar Association voted in 1903 that it was desirable
to establish a new appellate court to sit at Washington and take
cognizance of patent and copyright cases. Such a measure would
tend to relieve the Supreme Court of the United States of any
undue pressure of business, and promote both uniformity and
promptitude of decision in a class of actions in which
promptitude and uniformity are of special importance. As things
stand now, a patent may be pronounced invalid in one circuit and
upheld in another by courts of equal authority; and while in such
event the Supreme Court would probably, on a special application,
call both these judgments up before it for review, this remedy
cannot be claimed as a matter of absolute right, and is at best a
slow one.
The Circuit Court of Appeals is held by three judges, two
constituting a quorum. Those generally sitting are the Circuit
Judges belonging to the circuit. The Justice of the Supreme
Court assigned to the circuit may also sit, and any of the
District Judges in the circuit can be called in.
Except in a very limited class of cases, the decision of this
court is final, unless the Supreme Court, on special application,
should think the questions involved to be of sufficient
importance to require a review, when it can order the record sent
up to Washington for that purpose. The Circuit Court of Appeals
can also of its own motion certify up any questions in a cause to
the Supreme Court for its instructions before making a final
disposition of it.
The Supreme Court has direct appellate jurisdiction over the
District and Circuit Courts in cases turning on the limits of
their jurisdiction, in prize causes, in equity suits by the
United States under the statutes regulating inter-State commerce,
and in all cases involving the construction or application of the
Constitution of the United States, or of a treaty. Appeals also
lie to it from judgments of conviction in the Circuit Court for
capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32
_ib_. 823.]
The consequence of the Circuit Courts, which had been impaired by
the practical withdrawal of the justices of the Supreme Court,
was further lessened by the creation of the Circuit Court of
Appeals. Before that their judgments in most cases were final.
In criminal causes there was no appeal, and in ordinary civil
causes none after 1875, unless the matter in controversy exceeded
$5,000 in value. This left the life, liberty and property of the
citizen top much in the hands of one man; and the people, led by
the bar, insisted on stripping him of powers so liable to
abuse.[Footnote: See an attack on a similar state of things
existing in Louisiana at one time in the District Court, by
Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"
302, 303.] No sovereign can be sued in his own courts without
his consent. The United States consent to be sued on most claims
against them of a contractual nature, which they may dispute.
For this purpose a Court of Claims has been established at
Washington, consisting of a Chief Justice and four associates.
Originally it was little more than an administrative bureau; but
by successive amendments of the law it has come to have fully a
judicial character,[Footnote: United States _v._ Klein, 13
Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]
except in one particular. It is a general principle that a court
will make no decree that it cannot enforce. The Court of Claims
cannot issue an execution to enforce its judgments. Money can be
drawn from the treasury of the United States only to meet
appropriations made by Congress. An appropriation is made by
each Congress of a gross sum to satisfy any judgments that have
been or may be rendered by the Court of Claims; but should this
provision be omitted in any appropriation bill the judgments of
the Court of Claims could not be collected.
Concurrent jurisdiction in these respects is given to the
District Court of claims not exceeding $1,000 in amount, and to
the Circuit Court of those exceeding $1,000 and not exceeding
$10,000.
Aliens can sue in the Court of Claims when their own country
accords a similar privilege in its courts to citizens of the
United States.[Footnote: U. S. Revised Statutes, Sec. 1068.]
This court has also a peculiar kind of advisory jurisdiction.
Congress, or any committee of either house, can refer to it any
questions of fact which may have come before them. The judges
must then ascertain the facts and report them back. The head of
any of the great executive departments may, in like manner, in
dealing with any claim against the government, if the claimant
consents, refer any uncontroverted questions, either of fact or
law, to the court, which must then report back to him its
findings and opinion. This does not take the form of a judgment,
for there is no case and no parties are before it. It is a mere
expression of opinion, and stands on much the footing of the
report of a committee of inquiry to a superior
authority.[Footnote: 22 U. S. Statutes at Large, 485; 24
_id._, 507.]
A temporary court is also in existence called the Court of
Private Land Claims. This is composed of a Chief Justice and
four associate justices, and has jurisdiction to hear and
determine claims of title to land as against the United States,
founded on Spanish or Mexican grants in New Mexico, Arizona,
Utah, Nevada, Colorado or Wyoming. An appeal from the final
judgment is given to the Supreme Court of the United
States.[Footnote: 26 U. S. Statutes at Large, 854.]
The District of Columbia has a special judicial establishment.
There is a court of general jurisdiction known as the Supreme
Court of the District of, Columbia, and appeals from its
judgments lie to the Court of Appeals of the District of
Columbia. This is composed of a Chief Justice and two associate
justices, and its judgments are reviewable by the Supreme Court
of the United States, if $5,000 is involved, or the validity of
an authority exercised under the United States or a treaty or Act
of Congress is in question. An appeal also lies to it from
decisions of the Commissioner of Patents as to claims of a right
to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]
When new territory comes by conquest or cession permanently under
the jurisdiction of the United States, it belongs to the
President, in the exercise of his executive power, to see to its
proper government until Congress makes other provision. He can
institute courts there for that purpose, or if he finds courts
created by the former sovereign in existence, can expressly or
impliedly permit them to continue in the exercise of judicial
functions.
Each fully organized Territory has a set of local courts and one
Supreme Court to which appeals can be taken and the judgments of
which, in cases of large pecuniary magnitude or great legal
importance, can be reviewed by the Supreme Court of the United
States. These territorial courts do not exercise what is known
in the strict sense and designated in the Constitution as "the
judicial power of the United States." They are created to meet
temporary conditions, and with judges whose commissions run only
for a few years. Such courts are instruments through which
Congress exercises its power of regulating the territory of the
United States. They act judicially. They have judicial power.
But the source of this power is not the clause in the
Constitution under which the judicial power of the United States
is defined.[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511.] It is therefore not necessary to confine
such courts strictly to the consideration of judicial business.
In the organization of our earliest Territories the judges were
given legislative functions, and while this was originally due to
the terms of the Ordinance of 1787, it was confirmed by various
Acts of Congress after the adoption of the Constitution of the
United States.
The Philippines are governed under an Act of Congress by a
commission acting under the supervision of the Secretary of War.
The organization of courts established by Spain has been in
substance preserved. The Spanish law which was in force there
was expressed in codes mainly founded on those framed for France
under Napoleon I. In 1901, the Spanish code of civil procedure
was supplanted by one prepared by a member of the Philippine
Commission, and which is now familiarly known by his name as the
Ide Code. In substance, it establishes the mode of proceeding in
civil cases which is known in the United States as code pleading.
Trial by jury has not been introduced into the Philippines either
in civil or criminal causes, and need not be.[Footnote: Dorr
_v._ United States, 195 U. S. Reports, 138.]
In criminal causes, the Spanish system was originally retained,
allowing either party, the United States or the defendant, to
appeal from the judgment of the court of first instance to the
Supreme Court of the islands and have there a new hearing both as
to fact and law. This, however, so far as concerns an appeal by
the government, was held to be contrary to the Act of Congress
under which it was constituted.[Footnote: Kepner _v._ United
States, 195 U. S. Reports, 100.]
The courts of the United States are generally provided with an
officer styled a marshal. He executes their process, attends
their sessions, and exercises in general the functions which
belong to a sheriff as respects State courts.
Each District Court appoints a convenient number of District
Court Commissioners, who issue warrants of arrest on criminal
proceedings, take bail, inquire whether there is probable cause
to hold the accused to answer to the charge in court, and
discharge in such respects substantially the functions generally
belonging to justices of the peace in the States.
* * * * *