CHAPTER XIII

FORMALITIES IN JUDICIAL PROCEDURE

The sessions of a court of record of general jurisdiction are

daily opened by a formal proclamation made, at the command of the

judge, by the crier or sheriff's officer in attendance. In many

States the ancient English style of expression has been

preserved, which dates back to the Norman conquest, and begins

with a cry of "_Oyez, Oyez, Oyez_." These proclamations are

often closed with such words as (for instance) "God save the

Commonwealth of Rhode Island and Providence Plantations." The

adjournment from day to day is announced in a similar but less

elaborate manner.

Many courts hold a certain number of stated "terms" annually, the

first day of which is fixed by statute, and each of which is

adjourned whenever the business that may come before it is

finished, lasting sometimes but a few days and sometimes months.

In a number of States such terms are opened by prayer offered by

a minister of religion, invited in for the purpose by the sheriff

or court attendant. No regular chaplain is employed, and one

term may be opened by a Presbyterian minister and the next by a

Roman Catholic priest.

In some of the smaller counties in Massachusetts the sheriff or

his deputy daily escorts the judge to and from the court house,

in accordance with what has been the usage from colonial times.

Formerly it was the practice in New England to ring the bell of

the principal church in the town daily at the hour when court

opened.[Footnote: This was continued in Connecticut until the

last quarter of the nineteenth century.]

In many courts it is the custom for all present to rise on a

signal from the sheriff or marshal when the judge enters the

court room to take his seat on the bench. This is the general

usage in the federal courts and in the appellate courts of

States. In the latter a formal proclamation is often made by the

sheriff to announce the coming of the judicial procession,

concluding with a "God save the Commonwealth." In some States

formal bows are interchanged between bench and bar as the judges

take their places, after which the court is opened by the

customary proclamation and the bar then requested by the judges

to resume their seats.

The rules of official precedence are strictly observed in

appellate courts. In entering the court room the chief justice

advances first, and his associates follow in the order of the

dates of their commissions, the senior associate justice taking

his seat on his right, the second in seniority on his left, the

third in seniority on the right of the senior associate justice,

and so on; the junior in commission occupying the end seat on the

left of the bench.

The members of the Supreme Court and of the Circuit Court of

Appeals of the United States have always worn black silk gowns.

The members of the Supreme Court of South Carolina have worn them

from a time antedating the Revolution. The New York Court of

Appeals in 1877, at the request of the bar, preferred through

David Dudley Field, adopted the practice,[Footnote: In 1903 it

was extended to _nisi prius_ courts held by justices of the

Supreme Court.] and the same thing has since been done by

appellate courts in several other States. In one of these,

Massachusetts, they had been worn in the colonial era. About

1760, Chief Justice Hutchinson introduced gowns and cassocks

there on the Supreme bench, and also gowns, bands, and tie-wigs

for lawyers who were admitted as barristers of the Superior

Court.[Footnote: "Life and Works of John Adams," II, 133, note,

197.] The latter soon abandoned these, but gowns were retained

by the judges until 1793.[Footnote: Publications of the Colonial

Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"

I, 261, note.] In North Carolina gowns and bands were worn by

the members of the Supreme Court in 1767.[Footnote: Proceedings

of the Colonial Society of Massachusetts, VI, 389.] In New

Jersey, the bar were at one time required to assume them by a

rule of the Supreme Court, but the rule was vacated in 1791.

At the first opening of the Supreme Court of the United States,

in 1790, Chief Justice Jay wore a gown with salmon-colored

facings on the front and sleeves, of the style then used by

Doctors of Laws created by the University of Dublin, from which

he had received that degree.[Footnote: 134 U. S. Reports,

Appendix.] It has not since, in that or any other American

court, been the practice for judges to wear academic hoods or

other decorations on the bench.

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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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The American Judiciary · 第 5 / 17 章