THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY
Americans are proud of their country and of their State. They
are proud of their scheme of government, by which an imperial
world-power has been created for certain national and
international purposes, resting on a collection of States, each
of which is an independent sovereignty, absolutely as respects
the others, and for the most part as respects the United States.
They are in the mass an educated and intelligent people. The
public schools have thus far been found adequate to Americanizing
the children of foreign immigrants. The colored population of
the South stands largely by itself, and constitutes no active and
self-moving force in matters of political concern. An educated
and intelligent people living under a government of written law
of their own making cannot but know how vital it is that this law
should be fully guarded and fairly administered. Americans have
become distrustful of their legislatures. They believe that much
of their work is ill-considered, and that some of it has its
source in corruption. They are far removed from the chief
executive magistrates, and from the sphere in which they move.
The President comes nearer to them than the Governor of their
State because he stands for more, and personifies their country,
but it is not from him that they look for peace and safety in the
ordinary affairs of life and home. They look for these to the
courts, and they know that they will seldom look in vain.
Only an educated and intelligent people can live under a written
Constitution. It requires of those whom it governs a certain
spirit of conservatism, a certain sentiment of reverence for
ancient institutions. Our Constitutions are mainly the work of
former generations. We may amend or recast them, but the
substantial framework will remain the same. Our Declarations of
Rights speak the language and the lessons of the eighteenth
century. Their provisions are almost wholly aimed at our
executives and legislators. They give guarantees which the
judiciary only can enforce. No people can steadily prosper
unless a just mean be preserved between reform and conservatism
in the administration of the government. The courts stand for
conservatism, but by their recognition of custom as law, and
their free use of logic and analogy to develop law, they also
keep a door open for the entrance of reform.
The courts also come very close to the people. They are to be
found in every county and almost every township. They settle the
estates of the dead. They protect the living. They act largely
through juries made up of the people and returning to them after
a brief term of public service.
All these considerations put Americans in a friendly attitude
toward the judiciary. It makes less show of authority than the
policeman or the militiaman. But the people feel that it has
authority and is ready to exercise it always to secure that right
be done. When a plain man who thinks that he has been wronged by
another declares that he "will have the law on him," it expresses
his conviction that he can get justice from the courts.
The creation of the judiciary of the United States was welcomed
at the outset by all.[Footnote: See "Life of Peter Van Schaick,"
435.] It was not until party feeling had become intense that
Republicans found it difficult to look with approval on a force
evidently becoming stronger every day, and that Jefferson could
describe the Supreme Court as the sappers and miners who were
gradually undermining the foundations of American
liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.
"Works of Thomas Jefferson," VII, 192.]
Of the political questions which engaged attention over the whole
country from time to time from the adoption of the Constitution
to the close of the Civil War, almost all bore some relation to
the institution of slavery and derived their real vitality from
that connection. Slavery depended on State laws. Unless the
authority of each State to allow and regulate it were preserved,
its countenance would be endangered. This was largely the source
of the "State Rights" cry.
Almost all the powers which the United States possessed the
States had lost. For thirteen years each had been in the
position of a full sovereign. Its courts had exercised
jurisdiction over all kinds of actions. Now a new set of courts
had risen up having over many actions an equal jurisdiction, over
some a superior one.[Footnote: See Chap. X.]
The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'
Reports, 419.] in 1793, and the institution of similar suits
against other States of the South showed that the Supreme Court
of the United States claimed authority to render a money judgment
against a State, which meant that it could then issue an
execution to collect it by levying on the property of the State.
In 1798, the Alien and Sedition Laws were passed, and a crime
previously cognizable exclusively in the State courts was made a
subject of prosecution in those of the United States if it
affected an officer of the United States. A member of Congress,
Matthew Lyon, of Vermont, who was sentenced in the Fall of that
year to a fine of $1,000 and four months in jail for writing of
the President and Senate, that his message to Congress in 1797
was a bullying speech, which the Senate in a stupid answer had
echoed with more servility than ever Geo. III. experienced from
either house of parliament, served his time and paid the fine,
but for the amount of the latter he was reimbursed by Congress in
1840.
The case of Jonathan Robbins[Footnote: See Chap. III.] in South
Carolina in 1799, showed that the Circuit Court at the request of
the President could surrender an American citizen to a foreign
government to be carried off and tried for murder. This and the
sentence of Lyon became immediately the subject of hot discussion
in Congress, and both contributed to the political revolution
which put Jefferson in the seat of Adams in 1801.
The creation by the outgoing party of places for eighteen new
Circuit Judges appointed by Adams in the last month of his
administration strengthened the popular feeling that the courts
of the United States were too powerful. That Act was at once
repealed,[Footnote: See Chaps. IX, XXII.] and also the provision
for the next regular term of the Supreme Court. The latter
measure was taken to prevent any legal proceedings in the Supreme
Court to secure its intervention in behalf of the displaced
judges.
The new circuit system had been swept away, but the full bench at
Washington, headed by Marshall, remained. The unsuccessful
impeachment of one of them followed in 1804.[Footnote: See
Chap. III.]
His acquittal the next year, and that of a majority of the
Supreme Court of Pennsylvania,[Footnote: McMaster, "History of
the United States," III, 159.] who were impeached there at the
same time for punishing a libel on certain proceedings before
that court by a sentence of imprisonment, satisfied all that it
was practically impossible to secure the removal of a judge
except for the gravest cause. Judicial independence had been
secured by the very struggle to defeat it. What has won in any
contest finds favor with the multitude. They admire a victor.
From this time on the courts both of the United States and the
States grew in public esteem. When those of the former seemed to
trench on the fields of State sovereignty, particularly in the
South, the inroad was resented.[Footnote: See letters of Marshall
alluding to this, in "Proceedings of the Massachusetts Historical
Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern
State it was even opposed by force.[Footnote: See Chap. X.] As
late as 1854 the supremacy of the Supreme Court of the United
States in expounding the federal Constitution was contested by
the courts of a Northern State; there also in a case growing out
of the system of slavery.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]
Another decision by the same tribunal of a similar nature--that
in the Dred Scott case[Footnote: Dred Scott _v._ Sandford,
19 Howard's Reports, 393.]--greatly strengthened the confidence
of the Southern people in the federal courts, and weakened that
of the North.
It did much to bring on the Civil War, but the result of that
struggle was to confirm the authority not only of the Supreme
Court but of the Supreme Court as it was under Marshall and his
original associates. In 1901, the centenary of his appointment
was celebrated all over the country, North and South. Such a
tribute was never paid before in any country to the memory of a
judge. His services were commemorated for the very reason that
led Jefferson to depreciate them--because they led to the
establishment of a strong national government with a controlling
judicial authority adequate to protect it within its sphere from
interference or obstruction in any way by any State.
Confidence in the State courts has also been strengthened during
the last century. It was greatly shaken at the time of the fall
of the Federalists. They had lost the executive and legislative
power, but they retained the judicial, and the Republicans found
it hard to tolerate courts that represented the political ideas
of a former generation. This continued long after the extinction
of the Federalist party, and often extended to distrust of judges
elected by the Republicans who were thought to have become
affected by the influence of their senior associates.
In the New York constitutional convention of 1821, Peter
R. Livingston appealed to the lawyers present to say "whether it
has not been the case that when a man in the country of any
political standing has had a suit depending at a circuit court,
he has not consulted with his counsel to know what judge was to
preside at the circuit; and whether he has not been frequently
told that a political judge was to preside and it would not do to
let the cause come on."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 618.] Who, he asked, were the
present judges of their Supreme Court? "Judge Spencer came into
office under a republican administration; Judge Van Ness was
appointed by a mongrel council; and the elevation to the bench of
Judge Platt was occasioned by the defection from the Republican
ranks of a man elected to the Senate from the county of Dutchess,
who acted the part of a political Judas, and sold his party. We
have been bought and sold--there is not one of these men who
would have been on the bench if our administration had been truly
republican.... There is not a man in this Convention who is a
republican of any standing or character who would like to have
his liberty or property placed in the hands of a political judge
of a different party."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 620.]
The judiciary may also have suffered somewhat in the esteem of
dispassionate observers on account of its attitude in many of the
States toward the financial enterprises in corporate form, in
which so much money was made and lost in the first third of the
nineteenth century. In commenting on a judicial opinion in a
Southern bank case, the author of one of our leading American
legal treatises, himself once a judge, has referred to this
period in these plain words:
Decisions of this kind, which were not infrequent in the era of
State banks of issue, can only be "reconciled" with modern
holdings in view of the well-known fact that nearly all the
politicians were creditors of those political banks, by notes
often renewed, at the time when they finally suspended, and
that all the judges were politicians. It can hardly be doubted
that in many of those semi-barbarous decisions the judges were
either rendering decisions to exonerate themselves from their
liabilities to the insolvent banks or to exonerate powerful and
influential politicians upon whom they depended for the tenure
of their offices.[Footnote: Thompson on "Private Corporations,"
V, p. 5306.]
It is quite probable that an insensible bias in favor of friends
and neighbors may have had its share in producing the judgments
to which reference was thus made, but quite improbable that they
were the fruit of baser motives. Independently of other
considerations, every judge is watched by sharp eyes in every
step which he may take in the progress of a cause. He acts in
view of the bar at large, and of two of their number in
particular, one of whom probably will be disappointed by his
decision, and solicitous to ascertain and employ every reasonable
ground for overturning it.
The Bar Association of the country have exercised a large
influence during the past thirty years in maintaining public
confidence in the purity of the bench.
It is extremely rare that suspicion of corruption attaches to a
judge; and rarer still that it attaches justly. Jurors are
occasionally found who are guilty of it, and more who, without
being chargeable with so black a crime, are more interested in
serving a friend than in doing justice. As a whole, however,
American courts are clean-handed throughout, and the people know
it.
The judiciary has been popularized in most States by
constitutional provisions replacing tenure during good behavior
by stated terms of years, and appointment by the Governor or
legislature by election by the people.
The powers of judges have been on the whole increased. The only
matter in which they have been substantially cut down is that of
punishment for contempt. Serious attempts have been made to
abridge their jurisdiction over injunctions, but without success.
These attacks have come from those representing certain labor
unions. The more thorough organization of working-men in all
trades and callings during the last half century, and the
development of collectivism as a working theory, have produced a
class of leaders among them who regard the courts as manned by
representatives of capital and controlled in the interests of
capital.[Footnote: The number of the _Pennsylvania Grange
News_ for Sept., 1904, states this view at length.] As a
judicial office can only be properly filled by one who has had a
legal education and as, aside from a few petty magistrates and
local tribunals, practically all our judges are trained lawyers,
it necessarily follows that they cannot belong to the class of
working-men in the general acceptation of that term. Their
education has cost money and is generally the fruit of capital.
The judges of the higher courts are usually men of some means.
If they were not, they could not have afforded to accept their
places. But the people at large do not believe that only the
poor man can be relied on to deal justly on the bench. The mass
of working-men do not believe it. They do believe that courts
have too much power over them in their associated relations.
They are in favor of cutting off the right of issuing injunctions
to suppress boycotts or "picketing" in case of strikes. But they
know that it is from the legislatures and not from the courts
that this must be sought.
The federal judges stand higher in public estimation than the
State judges of corresponding rank. This is partly on account of
the paramount authority of the government which they represent.
It is partly also because there are none of them who occupy the
lower grades of judicial station with a petty jurisdiction over
petty controversies. It is more because of their permanence of
tenure. This removes them from that field of criticism which
surrounds every public officer who holds for a term limited in
duration, and is always in the position of a candidate for
re-appointment.
Our methods of judicial appointment are not such as always to
exclude political feeling from the bench either of the States or
of the United States, but the people know that there is less of
it there than in any other department of governmental action.
President Hadley of Yale University has thus expressed what is
the general view of the work of the courts held by thoughtful men
in the United States; and it is they who in the long run form and
lead public opinion.
"On the whole, federal and State courts alike have been not only
a protection, but the one really efficient protection of minority
interests against oppression by the majority.... It has more
than once happened that an impatient majority has denounced these
courts as instruments of partisanship. The anti-slavery leaders,
the soft money leaders, and the labor leaders have in turn taken
exception to their utterances, and even ventured to impugn their
motives. But I think that most intelligent men who know the
history of the country will say that our courts have been the
real bulwarks of American liberty; and that while Hamilton and
his associates would be somewhat disappointed in the working of
the machinery of legislation and administration if they could see
it in its present shape, they would be filled with admiration at
the work which has been accomplished by the judiciary. I believe
it to be the judgment of sober-minded men that the courts have
furnished the agency which has guarded us against excesses, and
have saved the American republic from the necessity of repeating
the successive revolutionary experiences which France underwent
before she could attain to a stable democracy."[Footnote:
"Freedom and Responsibility," 23, 24.]
This confidence in and respect for the judiciary as a whole has
increased with the general advance of the country in population
and wealth. There have been larger questions with which to deal,
and the courts have been found adequate to the task. But at the
same time the personal consequence and reputation of every
individual American judge has been steadily decreasing. As
States multiply and the range of litigation widens, the work of
judicial exposition of legal principles comes to be shared by so
many hands that what any one man does is of comparatively small
account. There is no room for star players upon the stage.
Broad as it is, it is too crowded for one to make a conspicuous
place for himself and stand as Marshall or Story, Kent or
Parsons, did, apart from his fellows. Popular confidence is now
not placed in courts because this or that man is the ruling
spirit in them. It is impersonal and attaches itself to the
institution of the judiciary as, all things considered, the best
guaranty of good government in the United States.
This spirit of confidence is, of course, not universal and
unqualified. It is often not found in bodies of working men,
associated as Labor Unions. They have repeatedly found a court
enforcing public order in a way that interfered with their manner
of conducting a strike. They have been met by injunctions, and
more often by criminal prosecutions. The membership of a Labor
Union, in many parts of the country, is apt to be largely of
foreign birth. The leaders not infrequently know little of the
English language and less of American institutions. They have
been led, in their native land, to regard the law and its
officers as their enemies, and they look at them in the same way
here. It is believed, however, that a large majority of the
Unions regard them with respect, and it is certain that such is
the prevailing feeling of non-union men.
But that the public trust in our judges is less than it was when
the first edition of this work was published,[Footnote: See
_supra_, page 340.] is indicated by the favor with which, in
many quarters, the doctrine of the "judicial recall" has been
received. The dangers incident to its practice are obvious, and
seem far to outweigh any attending advantages.
In the United States, of all lands on the face of the earth, it
is important that the judges should act with resolution and
without thought of the consequences personal to themselves.
Elsewhere in form, but here only in fact, are judges armed with
the power of declaring legislative action void which is in
conflict with a higher form of law, that proceeded directly from
the people, and mainly from the people of a former generation.
To expose one who exercises this power to immediate displacement,
by a popular vote--largely, perhaps, composed of his political
opponents--is to invite the enactment of questionable statutes,
and still worse--to weaken the attractions of the bench for able
and honest men. Our judicial terms, in most of the States, are
already too brief for the public good. To make them determinable
at the will of the electoral constituency tends powerfully to
keep good lawyers at the bar, who might otherwise have done honor
to a judicial station.
End of Project Gutenberg's The American Judiciary, by Simeon E. Baldwin