FORMALITIES IN JUDICIAL PROCEDURE
The sessions of a court of record of general jurisdiction are
daily opened by a formal proclamation made, at the command of the
judge, by the crier or sheriff's officer in attendance. In many
States the ancient English style of expression has been
preserved, which dates back to the Norman conquest, and begins
with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
often closed with such words as (for instance) "God save the
Commonwealth of Rhode Island and Providence Plantations." The
adjournment from day to day is announced in a similar but less
elaborate manner.
Many courts hold a certain number of stated "terms" annually, the
first day of which is fixed by statute, and each of which is
adjourned whenever the business that may come before it is
finished, lasting sometimes but a few days and sometimes months.
In a number of States such terms are opened by prayer offered by
a minister of religion, invited in for the purpose by the sheriff
or court attendant. No regular chaplain is employed, and one
term may be opened by a Presbyterian minister and the next by a
Roman Catholic priest.
In some of the smaller counties in Massachusetts the sheriff or
his deputy daily escorts the judge to and from the court house,
in accordance with what has been the usage from colonial times.
Formerly it was the practice in New England to ring the bell of
the principal church in the town daily at the hour when court
opened.[Footnote: This was continued in Connecticut until the
last quarter of the nineteenth century.]
In many courts it is the custom for all present to rise on a
signal from the sheriff or marshal when the judge enters the
court room to take his seat on the bench. This is the general
usage in the federal courts and in the appellate courts of
States. In the latter a formal proclamation is often made by the
sheriff to announce the coming of the judicial procession,
concluding with a "God save the Commonwealth." In some States
formal bows are interchanged between bench and bar as the judges
take their places, after which the court is opened by the
customary proclamation and the bar then requested by the judges
to resume their seats.
The rules of official precedence are strictly observed in
appellate courts. In entering the court room the chief justice
advances first, and his associates follow in the order of the
dates of their commissions, the senior associate justice taking
his seat on his right, the second in seniority on his left, the
third in seniority on the right of the senior associate justice,
and so on; the junior in commission occupying the end seat on the
left of the bench.
The members of the Supreme Court and of the Circuit Court of
Appeals of the United States have always worn black silk gowns.
The members of the Supreme Court of South Carolina have worn them
from a time antedating the Revolution. The New York Court of
Appeals in 1877, at the request of the bar, preferred through
David Dudley Field, adopted the practice,[Footnote: In 1903 it
was extended to _nisi prius_ courts held by justices of the
Supreme Court.] and the same thing has since been done by
appellate courts in several other States. In one of these,
Massachusetts, they had been worn in the colonial era. About
1760, Chief Justice Hutchinson introduced gowns and cassocks
there on the Supreme bench, and also gowns, bands, and tie-wigs
for lawyers who were admitted as barristers of the Superior
Court.[Footnote: "Life and Works of John Adams," II, 133, note,
197.] The latter soon abandoned these, but gowns were retained
by the judges until 1793.[Footnote: Publications of the Colonial
Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
I, 261, note.] In North Carolina gowns and bands were worn by
the members of the Supreme Court in 1767.[Footnote: Proceedings
of the Colonial Society of Massachusetts, VI, 389.] In New
Jersey, the bar were at one time required to assume them by a
rule of the Supreme Court, but the rule was vacated in 1791.
At the first opening of the Supreme Court of the United States,
in 1790, Chief Justice Jay wore a gown with salmon-colored
facings on the front and sleeves, of the style then used by
Doctors of Laws created by the University of Dublin, from which
he had received that degree.[Footnote: 134 U. S. Reports,
Appendix.] It has not since, in that or any other American
court, been the practice for judges to wear academic hoods or
other decorations on the bench.
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Counsel, in addressing the court, rise and begin with "May it
please the Court," "May it please your honor," or, before a court
in bane, "May it please your honors." The term "you" would never
be used to a judge on the bench; but that of "your Honor" would
be employed.
Great pains is taken by the officers in attendance to prevent
anything on the part of the audience that could in any way
disturb the proceedings, such as loud conversation or unnecessary
moving from place to place.
There is a good deal of antique form in the manner in which,
under the direction of the clerk, prisoners are arraigned and
juries are made up or "impanelled" for the trial of a cause.
In charging a jury, the judge commonly rises and the jury do the
same.
When sentence is pronounced on a conviction for crime the
prisoner is required to rise. In cases of capital offenses, he
is asked by the judge if he has anything to say why judgment of
death should not be pronounced against him. It is highly
improbable at that stage of the cause that he should have
anything to urge which has not been already considered, but the
ancient English practice in this respect is still followed, for
it is not absolutely impossible that something may have occurred
since the verdict that would affect the judgment.
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