APPELLATE COURTS
For each of the States and Territories as well as for the United
States there is one supreme court of appellate jurisdiction.
The Supreme Court of the United States can entertain original
actions of certain kinds.[Footnote: See Chap. IX.] A few also of
the State supreme courts of appeal have a limited original
jurisdiction. This is generally confined to equity causes,
election contests and certain actions for extraordinary relief
known as prerogative writs, such as informations in the nature of
_quo warranto_ and writs of mandamus.
The term "appeal" in its strictest signification is confined to a
removal of a cause after trial to a higher court for a new trial
on the merits.
It is also and now more commonly used to denote such a removal
for the purpose only of inquiring whether any legal errors were
committed on the trial or are to be found in the judgment. In
this sense it covers proceedings by a writ of error, and any
other mode of reviewing questions of law.[Footnote: See the
_Federalist_, No. LXXXI.] If it does not appear from the
record of the lower court that any of the errors that may be
claimed (or "assigned," as the phrase is) exist, the judgment is
affirmed; otherwise the cause is sent back for a new trial or, if
the objections are fundamental and fatal to its maintenance, is
dismissed.
Appellate courts are of many kinds. Some are such exclusively;
some mainly. In others the functions of entertaining appeals is
a minor one, most of their time being occupied in trying original
causes. An appeal from judgments of a justice of the peace, for
instance, is generally given on the merits to county courts, but
the greater part of the litigation before them comes there in the
first instance. So the judgments of county or other minor courts
are often reviewable on appeal for errors in law in some superior
court which, like them, is principally occupied in the exercise
of an original jurisdiction.
When the American colonies passed into States, as has been seen,
they were habituated to the thought of a supreme controlling
authority exercised by one tribunal of a judicial character of
last resort. The judicial committee of the Privy Council had
administered this sovereign power for them, and for a long period
of years, with general acquiescence.[Footnote: See Chap. I.] The
uniformity of result thus obtained was acknowledged to be
advantageous. It was now necessary to replace them by American
courts of last resort, and it was not difficult in doing so to
improve upon the English model. The time had come for
separating, as far as it could conveniently be accomplished,
judicial from political power.
Virginia was the first to act. A few days before the Declaration
of Independence she adopted a Constitution (under which the
government, was carried on until 1830, though it was never
formally submitted to or ratified by the people) providing for a
separate judiciary headed by a Supreme Court of Appeals whose
judges should hold office during good behavior, and be ineligible
to the Privy Council or General Assembly.
This divorce of judiciary and legislature was not the plan
universally followed.
New Jersey, in which as a colony the Governor and Council had
possessed an appellate power like that vested in the English
House of Lords, was so well satisfied with this arrangement as to
continue it in her Constitution of July 3, 1776, and up to the
present time puts upon her Supreme Court a certain number of
judges who give but a part of their time to this work, and are
not necessarily (though in practice of late years they generally
have been) lawyers.
New York, in her Constitution of 1777, pursued a somewhat similar
plan. Her highest court was one "for the trials of impeachments
and the correction of errors." Its members were the Senate with
the Chancellor and judges of the Supreme Court. When a judgment
of that court was brought up for review the judges were to state
their reasons for giving it, but had no vote. This scheme was
adhered to with little modification until 1846. What made it
tolerable was that many of those elected Senators were naturally
lawyers, and that to be in the Senate soon became the ambition of
a lawyer with any desire to know how it would feel to be a judge.
Able and learned opinions were pronounced by such men in
exercising their judicial functions, and some of them in the New
York reports are still frequently the subject of reference as
clear and satisfactory statements of legal principles.
Connecticut, in 1784, when she instituted for the first time a
court of last resort, made it up of the Lieutenant Governor and
the twelve Assistants, and soon added to it the Governor himself.
A plan of this kind was likely to work in that State, as in New
York, better than it looked. Lawyers by this time had come to
fill most of the higher offices of state. Although the
Assistants were elected annually it was under a complicated
scheme of nomination, which, unless in case of a political
revolution, ensured re-election in every case. A majority of the
Assistants were always members of the bar. They were also
Federalists from the beginning of party divisions in the country.
Naturally, the Republicans found such a state of things
intolerable. All the power of government in Connecticut, said
one of those who were celebrating Jefferson's second election to
the Presidency in 1804, "together with a complete control of
elections, are in the hands of seven lawyers who have gained a
seat at the council board. These seven men virtually make and
repeal laws as they please, appoint all the Judges, plead before
those Judges, and constitute themselves a Supreme Court of Errors
to decide in the last resort on the laws of their own making. To
crown this absurdity, they have repealed a law which prohibited
them to plead before the very court of which they are Judges."
Attacks like this were too just to be resisted, and two years
later the Governor, Lieutenant-Governor and Assistants were
replaced by the Judges of the Superior Court.
Constitutional provisions that the right of trial by jury shall
be preserved inviolate preclude, as a general rule, the
establishment of courts in which the judges can make a final
disposition of petty causes which turn on disputed facts. An
appeal from their decision must be allowed, and a new hearing
given on the merits in a court furnished with a jury. Under the
Constitution of the United States a trial by jury cannot be
claimed in civil cases at common law involving a demand of not
over twenty dollars, and in most of the older States it cannot be
in cases where it was not a matter of right prior to the adoption
of their Constitutions.
The verdict of a jury can only be reviewed on its merits by a
court of last resort where it was clearly and palpably against
the weight of evidence, and in order to do this the whole
evidence given in the trial court must be certified up.
Where a judgment has been rendered on a finding of facts made by
a judge in a cause of an equitable nature, this finding can, in
the courts of the United States and in many of the States, be
reversed on any point on appeal. For this purpose also all the
evidence that was before him, or all that is pertinent to
questions involved, must be reported to the court above.
Except so far as the right of trial by jury may require it, it is
a matter of legislative discretion whether to give any remedy in
a higher court for the errors of a lower one.
In some States an appeal is given from a judgment of an inferior
court even though rendered on the verdict of a jury, to a higher
one where another trial may be had before a judge of presumably
greater ability. In many States errors in law of petty courts
may be reviewed in higher trial courts. In a few of the larger
ones, as in the United States,[Footnote: See Chap. IX.] errors
in law of the higher trial courts, in a considerable class of
cases, are finally disposed of in an intermediate appellate
court, constituted to relieve the court of last resort from an
overweight of business.
* * * * *
Ordinarily it is the statutory right of a defeated litigant to
take an appeal, provided he can state any colorable ground of
exception. In some jurisdictions he is required to obtain the
approval of the trial court or else of some member of the
appellate court. There are many judges who think that such a
practice should be universally adopted. It would certainly tend
to relieve the dockets of appellate tribunals, and to bring
lawsuits to a speedier end. If one were sure that the judge to
whom application was made for an approval of the appeal would
always act intelligently and impartially, such a precaution
against useless litigation would be admirable. But the trial
judge is not in a position that naturally leads to an
unprejudiced judgment. The appeal is asked on account of
mistakes of his, and he will not be apt to think that he has made
any. The judge of the appellate court will be impartial and
unprejudiced, but he will have a very imperfect knowledge of the
case. He could only be asked to make a hasty examination of the
points involved, and it would be quite possible for him to reject
as frivolous grounds which, on a lengthy investigation after a
full argument, might have seemed to him substantial. In view of
these objections, and of the unequal attainments and experience
of the different judges of our courts, the bar are generally in
favor of making appeals a matter of right; and what the bar
favors in such a matter the legislature usually enacts.
* * * * *
The opinions and judgments of all American courts of last resort
are officially reported for publication. At first they were not
so reported. The earliest volume of American judicial decisions
(Kirby's) was published in 1789 as a private venture. A few
years later the States began to provide official reporters for
their highest courts and soon assumed the expense of publication.
There are now more than fifty current sets of federal and State
reports, the annual output being about four hundred volumes,
containing 25,000 cases. The mere indexing and digesting of
these reports for the use of the bench and bar has become a
science. While consulted by comparatively few who are not
connected with the legal profession, they constitute a set of
public records of the highest value to every student of history
and sociology.[Footnote: See "Two Centuries' Growth of American
Law," 6.]
It is the custom to prefix to the report of each case a head-note
stating briefly the points decided. Ordinarily this is the work
of the reporter. In a few States the judges are required to
prepare it; and to do so then naturally falls to the lot of that
one of them who wrote the opinion. Occasionally the head-note
contains statements not supported by the opinion. In such case
the opinion controls unless it is otherwise provided by statute.
It has not been the usual custom of English judges of courts of
last resort to write out their opinions. They have commonly
pronounced them orally and left it to the reporters to put them
in shape. The consequence has been that English reports have a
conversational tone, and are not free from useless repetition.
This has been not only a matter of tradition but of necessity.
The English judges have always been few in number. Their time
has been largely occupied in the trial of cases on the facts. It
is only in recent years that certain judges have been set apart
especially for appellate work.
American judges, on the other hand, are numerous. There is the
waste of energy in our judicial system which is the necessary
concomitant of the independent sphere belonging to each separate
State. Combination of all of them into one empire would make it
easy to reduce the judiciary to a tithe of its present numbers.
Their salaries are part of the price we pay--and can well afford
to pay--for our peculiar system of political government, under
which every State is an _imperium in imperio_.
The ever-increasing number of our States, each with a body of law
not exactly like that of any other, and each with a written
Constitution which is its supreme law, requires a court of last
resort in each. Experience tends to show that it ought not to be
composed of less than five. There should certainly be an uneven
number to facilitate decisions by a majority; and unless a
minority consists of as many as two, its dissent is apt to carry
little weight in public opinion.
In most of the States the court of last resort is not overworked.
In some the judges find time to do considerable circuit duty in
the trial of original causes. This keeps them in touch with the
daily life of the community, and is so far good. On the other
hand it disqualifies them from sitting on an appeal from their
own decisions, and so either reduces the number of the appellate
court occasionally below that which is normal and presumably
necessary, or involves calling in some one to act temporarily,
which imperils the continuity of thought and uniformity of
doctrine which should characterize every such tribunal. There is
also a certain natural bias, insensible perhaps to themselves,
which tends to make appellate courts stand by one of their
members whose rulings while holding a trial court are brought in
question. For these reasons it has now become common for the
States to confine their appellate judges exclusively to appellate
work. The time, therefore, which the English judge gives to
circuit duty the American judge can give to writing out his
opinions with all the art and care which he can command.
He speaks in most instances to a small audience--the bar alone.
But it is the bar of this year and the next year and the next
century. Every volume of reports is part of the history of
American jurisprudence and of American jurisprudence itself.
Occasionally some case arises which involves large political
questions, or one of especial local interest. The opinion is
then read more widely. The newspapers seize it: reviews take it
up. It is not always easy to anticipate what decision will
become a matter of public notoriety; what opinion will be quoted
as an authority in other States; and what drop unnoticed except
by the lawyers in the cause. A judge, therefore, though he have
no better motive than personal ambition, is apt to do his best in
every case to state the grounds of his conclusions clearly and in
order. A certain style of American judicial opinion has thus
grown up. It is dogmatic. It offers no apologies. There is
neither time nor need for them. The writer speaks "as one having
authority." He does not argue out conclusions previously settled
by former precedents, but contents himself with a reference to
the case in the reports in which the precedent is to be found.
He is as brief as he dares to be without risking obscurity.
It is undoubtedly true that many reported opinions are of a very
different type. Some of Marshall's assume a tone of apology; but
in his day it was needed. He struck at cherished rights of
States, upheld by their highest courts, and struck them down, at
a time when the country was unfamiliar with the conception of the
United States as a national force. Many of those of judges of
inferior ability do not rise above their source. They are
verbose, repetitious, slovenly, inaccurate in statement, loose in
form; perhaps sinking into a humor or sarcasm always out of place
in the reports;[Footnote: See, for instance, Mincey _v._
Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
_id_., 582.] possibly unfair in describing the claims that
are overruled. But, as a whole, Americans need not fear to
compare the reports of their courts with those of foreign
tribunals. No judicial opinions, viewed from the point of style
and argument, rank higher than some of those written by American
judges.
Those of appellate courts are generally composed and delivered by
a single one of their members, but he speaks not only for the
court but for every other member of it who does not expressly
dissent. Nevertheless, as their conclusions depend on one man
for their proper expression, the responsibility for the
particular manner in which the opinion may set them forth is
properly deemed in a peculiar sense to rest upon him.
Nor, if the opinion is afterwards relied on as establishing a
precedent, is the court bound by anything except the statement of
the conclusions necessary to support the judgment. If unsound
reasons for those conclusions are given, defective illustrations
used, or unguarded assertions made, it is chargeable with no
inconsistency in subsequently treating them as merely the
individual expressions of the judge who wrote the
opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
Mass. Reports, 37, 41. This position is not, universally
accepted. See Merriman _v._ Social Manufacturing Co., 12
R. I. Reports, 175, 184.]
When Marshall became Chief Justice of the United States he
introduced the practice of writing all the opinions himself, and
with a few exceptions maintained it for ten years, and until, by
successive changes in the court, a majority were Republicans.
This, as has been well said, "seemed all of a sudden to give to
the judicial department a unity like that of the executive, to
concentrate the whole force of that department in its chief, and
to reduce the side justices to a sort of cabinet
advisers."[Footnote: Thayer, "John Marshall," 54.]
In some of the State Supreme Courts in early days, it was the
practice for the Chief Justice to deliver an opinion in every
case, but his associates frequently added concurring or
dissenting ones.
Of late years the business of appellate courts in the United
States and in most of the States is so considerable that it is
necessary to divide the labor, and the cases are generally
distributed equally for the preparation of opinions.
It is the prevailing practice to have the opinion, when drafted
by the judge to whom that duty is assigned, typewritten or
printed, and a copy sent to each of the other judges for their
consideration separately. At a subsequent conference each judge
is called upon by the Chief Justice to state whether he concurs
in it, and if alterations are proposed there is opportunity for
their discussion. This practice did not become general until the
latter part of the nineteenth century, when the typewriter had
come into common use. Prior to that time the draft opinion was
ordinarily first made known by its author to the other judges
either by reading it aloud at the final consultation or by
sending one manuscript copy around to each in succession for his
endorsement of approval or disapproval. In some courts it was
never thus submitted at all, and so they were occasionally
committed to positions which they had never intended to adopt and
afterwards found it necessary to repudiate.[Footnote: See for an
example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,
198.]
Our courts of last resort generally have before them a printed
statement of the doings in the lower court which they are asked
to review, and a printed argument from each party to the appeal.
Oral arguments are also usually heard, except in a few States
where the press of business renders it practically impossible
except in cases of special importance. Such a press occurs
mainly in the largest States, but exists also in some whose
Constitutions make it easy and over-cheap for every defeated
litigant to carry his case up to the highest court.
In the Supreme Court of Georgia no costs exceeding $10 can be
taxed against the unsuccessful party; and it has had eight
hundred cases in one year upon its docket. In most States he has
substantial costs to pay. These mainly are to meet the expense
of printing the record sent up from the court below. A single
case will sometimes fill a volume or even a set of volumes,
particularly in equity causes in the federal courts, in which all
the testimony is generally written out at length. The appellant
has to pay for the printing in the first instance, but
ordinarily, if he succeeds, the other party will be obliged to
reimburse him. The cost involved is occasionally several
thousand dollars.
The party taking the appeal must file a paper stating his grounds
for it separately, distinctly, clearly and concisely. There is a
temptation to include all that can be thought of, good, bad and
indifferent; and whether this is done or not will depend largely
on the opinion which the lawyers have of the ability of the
court.
In the smaller States the judges have time to enable all to study
each case with care. In the largest ones it is not uncommon to
assign every case on the docket, in advance of the argument, to a
particular judge. He is expected to give it special attention
with a view to reporting his conclusions upon it to the court,
and, should they be approved in consultation, to writing out its
opinion subsequently. The assignment for a term of court is not
infrequently made in the order in which the docket (or printed
list of cases to be heard) is made out, the chief justice taking
the first case, the senior associate justice the second, and so
on. At the next term the same practice will be pursued, except
that the justice next in seniority to the one who had the last
case under the previous assignments will now take the first case
on the new list, and the next junior justice the second.
Appellate courts generally sit not over four or five hours a day;
this time being either preceded or followed by a consultation.
They are seldom in session more than five days in the week. The
cases before them are not usually assigned for argument on
particular days. A list is made up of all which are ready to be
heard, numbered in order, the oldest first. They are then taken
up successively as reached, and the counsel concerned in each
must be ready at their peril. Often a limit is fixed by rule as
to the number of cases that can be called for argument in any one
day. In the Supreme Court of the United States this is the
practice, and the number is ten. In some of the States it rises
as high as twenty.
At the first consultation over a case which has been argued, the
Chief Justice (unless a special assignment has been previously
made of it to some particular member of the court) asks the
junior justice his opinion as to the proper disposition to be
made of it, and each justice in turn then gives his, in the
reverse order of seniority. If there is any serious disagreement
the matter is generally allowed to stand over for further
discussion later. At some convenient time after the views of the
various justices have been ascertained the cases are distributed
and, as a rule, equally for the purpose of preparing the
opinions. This distribution is sometimes made by the Chief
Justice and sometimes by agreement, or according to the
arrangement of the docket.
Until the opinion has been finally adopted it is not usual to
announce the decision. Not infrequently the ultimate decision is
made the other way, and a new opinion prepared by the same, or,
if he remains unconvinced that his first one was wrong, by
another judge. Still more often the draft opinion is altered in
material points to meet criticisms and avoid dissent.
Dissenting opinions are comparatively rare, particularly in
courts where there is a Chief Justice with the qualities of a
leader; that is, with ability, learning and tact, each in full
measure.[Footnote: Perhaps tact counts the most, for the Chief
Justice has the advantage of hearing the opinions of all his
associates at all consultations before he gives his own. Senator
Hoar makes a pungent comment on Chief Justice Shaw's want of it,
in his Autobiography, II, 413.] Every instance of dissent has a
certain tendency to weaken the authority of the decision and even
of the court. Law should be certain, and the community in which
those charged with its judicial administration differ
irreconcilably as to what its rules really are, as applied to the
transaction of the daily business of life, will have some cause
to think that either their laws or their courts are defective and
inadequate. For these reasons judges of appellate courts often
concur in opinions, of the soundness of which they are only
convinced because of the respect they entertain for the good
judgment of their associates. They are willing to distrust
themselves rather than them.
Not seldom, however, dissent and the preparation of a dissenting
opinion has in the course of time, aided, perhaps, by some change
of membership, converted the court and led to overruling a
position incautiously taken which was inconsistent with settled
law.[Footnote: A striking instance of this is the case of
Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
_id_., 126; 6 Atlantic Reporter, 453.]
More than eighty out of every hundred of the opinions delivered
in the courts of last resort of each State of the United States,
excepting one (New Jersey), and contained in the last volume of
the reports of each published prior to June, 1904, were
unanimous. In New Jersey seventy-three out of every hundred
were. In two States, Maryland and Vermont, there was dissent in
but two out of every hundred cases, and in all the States taken
together, out of nearly 5,000 cases decided a dissent is stated
in 284 only. This made the proportion of unanimous decisions of
State courts, in the country at large, to those in which there
was dissent nineteen to one.[Footnote: _Law Notes_ for June,
1904, p. 285.]
A dissenting judge sometimes files an opinion which is then
printed in full in the reports. More often the fact of his
dissent is simply noted. In cases involving constitutional
questions it is rare for a dissenting judge not to state his
reasons. The importance of the subject justifies if it does not
demand it. As Mr. Justice Story once observed, "Upon
constitutional questions the public have a right to know the
opinion of every judge who dissents from the opinion of the
court, and the reasons of his dissent."[Footnote: Briscoe
_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]
The official reports of the courts have some of the faults of
officialism. They often do not appear until long after the
decisions which they chronicle have been made and their general
make-up is sometimes unworkmanlike and unscientific. It requires
rare gifts to make a good reporter of judicial opinions. He must
have the art of clear and concise statement; the power to select
what is material and drop the rest; and the faculty of close
analysis of abstract reasoning.[Footnote: Four of the reporters
of the Supreme Judicial Court of Massachusetts have been
appointed justices of that court, largely in consequence of their
good work in reporting. A good reporter always has the making of
a good judge.] Many of our reporters also are practicing lawyers
of no special training for the work, and who give to it but a
portion of the year.
The modern sense of the value of time, of scientific treatment of
whatever can be treated scientifically, and of uniformity in
scientific methods led toward the close of the nineteenth century
to competition in reporting. Private publishing houses undertook
the prompt publication, in scientific arrangement upon a uniform
plan, of the opinions of the courts. This work began in 1879.
The result has been that the series of official reports of the
Circuit Court of Appeals of the United States has been
discontinued, and that the decisions of all our other appellate
courts are now twice reported. One publishing house has grouped
the States into clusters, issuing for each cluster its own series
of reports, known, respectively, as the Atlantic, the
Northeastern, the Northwestern, the Southeastern, the Southern,
the Southwestern and the Pacific Reporters. The States forming
each group have been selected mainly because they were neighbors
geographically, but partly from commercial reasons. Thus
Massachusetts, which would naturally be assigned to the Atlantic
Reporter, has been put into the Northeastern; and such inland
States as Kansas and Colorado find their place in the Pacific
Reporter. All the reported decisions of all the States in each
group are printed in pamphlet form weekly, as they may be handed
down, in chronological order; and every few months the whole
issued as a bound volume. In this way, for a trifling sum a copy
of any opinion of any American court of last resort can be had in
a few days or weeks after its announcement, and a lawyer's
library can, at slight expense, be furnished with the decisions
not only of his own State but of several others having not unlike
laws and institutions.
The multiplication of American reports makes judicial precedents
of decreasing value to the American lawyer. English cases are
cited as authority far less frequently than they were before the
middle of the nineteenth century. The omnipotence of Parliament
and the free hand with which that has been exerted to change the
common law have tended to separate English from American
jurisprudence. Our written Constitutions have perpetuated here
ideas of government and property which England does not
recognize. Hence American precedents are of more use than
English. But American precedents are becoming so numerous that
the advocate who seeks to avail himself of them is tempted to
cite too many and to examine them with too little care. In each
State its own reports are the expression of its ultimate law.
With these every member of its bar must be familiar. But the
courts before which he argues listen to him with more
satisfaction and greater benefit if he deals with the principles
of law rather than with foreign precedents which may or may not
correctly apply them.[Footnote: See a valuable statistical
article on "Reports and Citations" in _Law Notes_ for
August, 1904.]
Not every opinion which is delivered is officially reported. In
most States the court has and exercises the power of directing
that such as they may deem of no substantial value to the
profession at large shall not be. Many are simply applications
of familiar rules which obviously control. Opinions of that kind
interest only the lawyers in the cause. In the unofficial
reports, however, such cases are sure to appear and the bar is
divided in opinion as to whether they should not also be given a
place in the official ones.
It is not always easy for the court or the reporter to determine
what decision may thereafter be relied on as a precedent.
Repeated instances have occurred in which such a use has in fact
been made and properly made of some not noted in the regular
reports, and not infrequently they have subsequently been
inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
of those of the Supreme Court of the United States, one hundred
and twelve opinions are printed, the first delivered over fifty
years before, which previous reporters had thought best to omit,
and two hundred and twenty-one more such are published in
Vol. CLIV. Whoever runs them over will be apt to think that the
previous reporters were right.] There is also in case of an
opinion not to be officially reported a loss of a valuable
safeguard against unsound decisions. A judge writes with more
care and examines the points of law which may be presented more
closely if he writes for the public and for posterity.
On the whole the prevailing sentiment is that the reasons for
repressing some are stronger than those for publishing all
judicial opinions. It will be few only that, under any
circumstances, will be omitted. The leading lawyers in every
State are expected to run over, if they do not read, every case
in every new volume of its reports. Every case dropped lightens
this task. It helps to keep indexes of reports and digests of
reports and legal treatises within reasonable limits. It cuts
into an accumulating mass of material, most of which must, in any
event, so far as points of law are concerned, be a mere
repetition of twice-told tales, that is becoming so vast in the
United States as to becloud rather than illuminate whoever seeks
to know what American law really is.
If reporters will not select and discriminate between adjudged
cases publishers can and will. Many sets have been prepared and
issued in recent years of selected cases on all subjects taken
from the official reports of all the States. Their professed aim
has been to include all worth preserving. In fact, they have
naturally been guided to a considerable extent by commercial
considerations. To every lawyer the leading cases in his own
State are of the first importance. He is not likely to buy any
compilation in which a number of these do not appear, even if
intrinsically, as statements of law, they may be of no great
value. Hence in the collections in question the rule of
selection is often the rule of three, and they are apt to contain
a certain proportion of the decisions of every State.
The leading sets are the "American Decisions," running from
1760[Footnote: Long after the publication of Kirby's Reports in
1784, some unofficial reports were published of cases decided in
colonial courts prior to any which he included.] to 1869; the
"American Reports," from 1869 to 1886; the "American State
Reports," from 1886 to the present time, which three sets include
over two hundred and fifty volumes and nearly 40,000 opinions;
and the "Lawyers' Reports Annotated," now extending over more
than sixty volumes, the first of which was published in 1888, and
contains no cases reported prior to the preceding year.
Spencer's rule of social evolution that all progress is from the
homogeneous to the heterogeneous tends steadily and inexorably in
the United States to lessen the value of judicial reports out of
the State in which the cases were decided. Each of forty-five
different commonwealths is building upon legal foundations that
are not dissimilar, but some of them are advancing far faster
than others, and none proceed at exactly the same rate or on
exactly the same lines. They are building by statute, by popular
usage and by judicial decision. Heterogeneity is most marked in
legislation and it tells most there. Whoever looks over a volume
of reports will find a large proportion of the cases turning upon
some local statute. An important index title is that of
"Statutes Cited and Expounded." In Vol. 138, for instance, of
the Massachusetts Reports (a volume selected at random for this
purpose), 223 statutes or sections of statutes are noted as
having been made the subject of remark in the 170 cases which it
contains. Almost all are Massachusetts statutes, a very small
proportion of which have been re-enacted elsewhere.
Appellate courts thus forced at every turn to study with care
into the effect of local legislation, much of which, to get at
its meaning, must be traced back historically through various
changes during a long course of years, and in the older States
sometimes for centuries, listen unwillingly to citations from
decisions of other States which are even remotely affected by the
statutes that may be there in force.
The newer States and those with a small population are naturally
the ones that rely most on foreign authority. In the last volume
(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
cited in the opinions of the court are of that kind. In the last
volume (Vol. 178) of the New York Reports, the percentage is but
thirty, and in the last of the Massachusetts Reports (Vol. 185)
it is only twenty-five.[Footnote: _Law Notes_ for April,
1905, 8.]
* * * * *
In the Supreme Court of the United States and in several of the
appellate courts of the larger States each judge is provided with
a clerk at public expense. While this is a means of relief from
much which is in the nature of drudgery, it sometimes leads to a
deterioration in the quality of the judicial opinions. A
dictated opinion is apt to be unnecessarily long, and when a
clerk is set to looking up authorities, although he can hardly be
expected always to select the most apposite, it is easier to
accept his work and use what he has gathered than to institute an
independent search.
Some of the appellate courts which are most fully employed, both
State and federal, are provided with special libraries of
considerable extent, and each of the individual judges is also
often furnished with an official library, sometimes containing
several thousand volumes, for his personal use, to be handed over
to his successor when he retires from office.[Footnote: In New
York, the private library of the Court of Appeals contains over
6,000 volumes, comprehending all the reports of all the States,
and the personal libraries provided for each judge have come to
comprise 3,500 volumes.]
In some States counsel have the right to demand to be heard
before a full court, and those who have taken the appeal
generally exercise it. As decisions go by majorities, the chance
of reversing a judgment before, for instance, a court of five,
which is a common number, is obviously greater when all its
members sit than when four do. In either case it must be the act
of three judges, and one is more likely to convince three out of
five than three out of four.
In the Supreme Court of the United States there is no means of
supplying the place of a judge who is absent or disqualified.
The remaining members, provided they constitute a quorum (that
is, a majority), proceed without him. In most of the States
there is some provision for filling the vacancy in such a
contingency. Sometimes it is by calling in a judge of an
inferior court; sometimes by application to the Governor for the
temporary appointment of some member of the bar as a special
associate justice to sit in a particular case.
In several of the larger States all the members of the court of
last resort do not and need not sit in every case. In some two
permanent divisions are constituted, to each of which certain
judges are assigned, and both divisions may be in session at the
same time. In other States certain judges are detached for a
certain time, during which they study causes which have been
argued and prepare opinions. This done, they resume their seats,
and others are released for similar duties.
In Ohio, for instance, the Supreme Court consists of six judges
and commonly sits in two divisions of three each, having equal
authority. The whole court sits to hear any cause involving a
point of constitutional law. It also decides those which have
been heard in one of its divisions and in which the divisional
court is in favor of reversing the judgment appealed from. An
affirmance by the divisional court is final, but if it inclines
to a reversal the judges communicate their opinions to the full
court, which also reads the printed briefs submitted on the
original argument, and then without any further oral hearing
pronounces final judgment. Four judges, therefore, at least,
must concur to accomplish a reversal. Should the full court in
any case be equally divided, the judgment appealed from stands.
Under the Constitution of California (Art. VI, Sec. 2) the
Supreme Court, which consists of seven judges, ordinarily sits in
two departments. Three judges can render a decision, but the
judgment does not go into full effect for thirty days unless
three, including the Chief Justice, have given it their approval.
The Chief Justice also, with the concurrence of two of his
associates, or four of these without his concurrence, can direct
that any cause be heard before a full court within thirty days
after judgment by a department court. He can also order the
removal into the full court of any cause before judgment.
In Michigan only five out of the eight judges sit to hear a case,
and if one of them files an opinion dissenting from that of his
associates, the losing party can demand a rehearing before the
full court.
Neither the bar nor the bench are quite satisfied with such
methods of appellate procedure. The Ohio scheme is excellently
adapted for the dispatch of business, but may prevent an oral
argument before those who are ultimately to decide the cause.
That of California often protracts litigation. Any such plan of
division also must increase the risk of the court's taking a
position inconsistent with one which it had previously assumed.
The judges in one division may come to conclusions different from
those reached in the other division; or where the court does not
sit in divisions, a point may be determined by a narrow majority
in one case which in a later one, through the substitution of one
or two judges for those who heard the former, may be ruled the
other way.
The freedom of appeal which is generally conceded to defeated
litigants in this country has been made the subject of severe
criticism. It seems, however, a necessary incident of our
political institutions. They are built upon the foundation of a
profound reverence for the rights of the individual and of the
equality of all before the law. Our Constitutions guaranty every
man against deprivation of life, liberty or property without due
process of law. If we could count on having as judges of our
trial courts none but men of ability, learning and independence,
it might be safe to leave it to them to say what this due process
was. But the tenure of judicial office in most States is too
brief, the pay too meagre, and the mode of appointment too
subject to political influence to give always that assurance that
could be wished either of the independence of the judiciary or of
its representing only what is best in the legal profession.
In England, until recently, there was little or no right of
review in favor of one convicted of crime. But the judges are
appointed for life on ample salaries, and tradition requires that
they be selected only from among the leaders at the bar. Nor is
the right of the individual against the State deemed so sacred
under English as under American institutions. It cannot be in
any country where an hereditary aristocracy has from ancient
times had a share in government. As has been seen, the English
practice in this respect for nearly a hundred years was adopted
in the courts of the United States, but public sentiment finally
pronounced against it. Much less could it be safely followed in
the States, where criminal courts are often held by judges of
little ability, less learning, and inferior standing at the bar,
to which, after the expiration of a brief term, perhaps of but a
year, they will return should they fail to secure a party
renomination.
The same reasons, if in less degree, support a liberal right of
appeal in cases involving property only, and oppose restrictions
based only on the amount in controversy. Americans could never
tolerate keeping their appellate courts for the trial of large
causes only. There must be no rich men's courts. There
certainly must be none to which a claim of right founded on a
constitutional provision cannot be carried up, however trifling
in pecuniary value may be the matter in demand.
Most appeals fail. There are few in which the counsel who takes
them are fully confident of success. Every lawyer of large
experience knows that he has often won when he expected to lose,
and lost when he expected to prevail. There are not many cases
involving large pecuniary interests or strong personal feeling
that are not appealed if there is any color for it. The
proportion of appeals which are successful will generally be not
far from a third of the whole number taken. Of course, however,
this must depend largely on the competency of the trial judges in
the court where it is claimed that errors have occurred. The
abler and more experienced those who do circuit duty may be, the
oftener will their doings be supported in the court of last
resort.
Short terms of office and consequent lack of practical
acquaintance with the business of a trial judge is the real cause
why so many appeals are taken, and are allowed to be taken in our
American States. As for the federal courts of appeal, there is
another and unavoidable occasion for large dockets. They have
the last word to pronounce on constitutional questions, and there
has probably never been a year since the United States came into
existence when the legitimate powers of the general government
have not been repeatedly infringed upon by State legislation.
In the Supreme Court of the United States, the reporter began its
second century with a plan of stating the number of cases
affirmed or reversed at each term, but dropped it after two
years. The record of these years was as follows:
Affirmed Reversed
October Term, 1890 248 104
October Term, 1891 185 103
A tabulation of the decisions reported in the various States in
their last volumes published prior to June, 1904, shows that on a
general average, in sixty-three out of every hundred appeals the
judgment of the inferior court was affirmed. In Massachusetts
the percentage was eighty-seven per cent. In Texas it was only
thirty-four per cent., and in Arkansas and Kentucky not much over
forty per cent.[Footnote: _Law Notes_ for June 1904,
p. 285.]
Many more appeals are taken by convicted persons in criminal
cases at the South than in the North. Many more criminal
prosecutions are brought there, in proportion to the population.
This is due largely to the presence of so large a body of colored
people, most of whom have had a very inferior education and
training. Many more such appeals are successful also in the
South than in the North. In the reports of the courts of last
resort of Alabama, Florida, Louisiana and Mississippi between
December 20, 1902, and April 25, 1903,[Footnote: As given in
Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
appear, in forty-six of which the judgment of conviction was set
aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
New Jersey, Pennsylvania, Rhode Island and Vermont between March
12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
Atlantic Reporter.] the reports show only twenty such cases, of
which seven were set aside.[Footnote: _Law Notes_ for
September, 1903, 105.] This would seem to indicate either that
the trial judges of criminal courts in the Gulf States are
careless or that the appellate courts there (under the pressure,
perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
Independence," by Justice Henry B. Brown in the Reports of the
Am. Bar Association for 1889, 265.] are inclined to be too
technical. If either is true it is a just cause for public
dissatisfaction with the administration of criminal justice, and
some palliation for the frequent resorts to Lynch law by the
Southern people.
The American plan of written opinions, at least in all cases of
novelty or general interest, works better in small States than in
large ones. No judge can find time to prepare more than a
certain and quite moderate number in a year, if they are such as
they should be. The shorter they are, the more time generally
has been spent in condensing them. In a great State there must,
therefore, either be a larger number of judges, or every few
years there must be a temporary addition to the judicial force to
clear off an accumulation of cases. The latter expedient is
generally preferred. Sometimes a small number of lawyers are
selected to serve as a special commission of appeals. They sit
by themselves, but there may be a provision for their submitting
their opinions to review by the regular court. Some of the
leading cases in our reports have been decided by such
commissioners. In California, where such a body now exists, its
members are appointed by the court, and removable at its
pleasure; but ordinarily they are chosen by the executive or
legislative departments.
Sometimes when the cases on the docket of the court of last
resort reach a certain number (in New York this is put at 200)
the Governor may call in judges of the next court in rank to sit
with the regular judges until the accumulation is cleared off.
Fewer causes can be heard and disposed of in American appellate
courts than in those of other countries by reason of two things,
our practice of delivering written opinions and the fulness of
treatment thought necessary in such opinions, especially when
they deal with questions of constitutional law. In France, the
Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
219 were sustained and 597 rejected.] Nothing approaching this
number could be properly disposed of on the merits in any
American Court of last resort. Many appeals, however, are here,
as everywhere, abandoned or dismissed for some failure to comply
with the rules of practice or because manifestly frivolous, and
in these no opinions are ordinarily given. During the court year
closing with the Summer of 1903, the Court of Appeals of New York
filed only 221 opinions, although it disposed, in one way or
another, of 640 cases; and the Supreme Court of the United States
filed 212 opinions and disposed of 420 cases.[Footnote: See
Chap. XXIV.]
In the calendar year 1904, the Court of Appeals of New York filed
327 opinions, and the Supreme Court of Illinois over 500.
* * * * *