THE COURTS, THE LAW, AND JUDICIAL PROCEDURE.
_The purpose of this chapter is to show how the courts are organized
and what systems of law they administer._
THE COURTS
[Sidenote: The supreme justices.]
=The Highest Court in the Land.=—Visitors to the Capitol at Washington
on any week day from October to June are usually interested to see a
group of nine distinguished-looking men, robed in silk gowns, passing at
noon through the long corridor into a room where a clerk begins to call
out, “Oyez! Oyez!”[137] This is the Supreme Court of the United States,
the highest court in the land and the most powerful tribunal in the
world. It consists of a chief justice and eight associate justices, all
of them appointed for life by the President with the consent of the
Senate. They cannot be removed from office except by impeachment. The
court holds its sessions in the chamber which was used by the Senate in
the days when that body was small. The justices sit in a row, the chief
justice in the center, with four associates on each side of him. There
is no jury, and for the most part the court simply hears the arguments
of attorneys on points of law in cases which have been appealed. The
sessions begin at twelve o’clock, and continue, with a brief
interruption for luncheon, until late in the afternoon. Every Saturday
morning the court meets behind closed doors to agree upon its decisions
and on Mondays the decisions are publicly announced. These nine justices
are the supreme guardians of the constitution, entrusted with the duty
of seeing that its provisions are duly respected by all officials of
government from the President and Congress down to the humblest
officeholder. Their mandate is binding upon everyone within the
jurisdiction of the United States.[138]
[Sidenote: The power to declare laws unconstitutional.]
=The Supreme Court’s Power.=—Congress, as has been pointed out, is the
lawmaking branch of the federal government. With the approval of the
President its power to enact laws, within the limits prescribed by the
constitution, is complete and final. The state legislatures are the
lawmaking organs of state government and with the approval of the
governors the authority of the state legislatures to make laws within
limits prescribed by the national and state constitutions is also
complete and final. Yet the Supreme Court, by a majority vote of its
nine justices, may nullify laws passed by either Congress or the state
legislatures. It has done so on many occasions. Why have we given to
this small group of men, appointed for life, the power to set aside the
action of the people’s representatives?
[Sidenote: Reason for this authority.]
The answer is this: American government, both in the nation and in the
states, rests upon certain fundamental rules which are embodied in
written constitutions. These rules determine, among other things, the
powers and functions of government officers and bodies, including
Congress and the legislatures. They have been placed in the national and
state constitutions with the intent that they shall be obeyed, and if
they were not obeyed one branch of the government would be encroaching
upon the powers of the other. But how can powerful bodies like Congress
and the state legislatures be held to the obedience of rules laid down
in the national constitution? The Supreme Court performs this duty by
declaring “unconstitutional” any law which, in its judgment, violates
the provisions of that document. The constitution, for example, provides
that Congress shall pass no bill of attainder. If Congress should enact
a measure of that kind, the court would nullify it. The constitution
stipulates that no state shall make any law impairing the obligations of
contract. If any state legislature should enact such a law, the Supreme
Court would declare it to be unconstitutional and void.
[Sidenote: Limitations upon the discretion of the court.]
Now this does not mean that the justices of the Supreme Court have the
right to veto any measure at their discretion. They have nothing to do
with the merits of a measure, nothing to do with the question whether it
has been wisely passed. The only issue they decide is whether a law
conforms to the provisions of the constitution. If they find that it
does not, they have authority to set it aside. And so long as government
is based upon written constitutions there must be some body with power
to decide whether a law is constitutional or not. Every branch of the
government is under a natural temptation to extend its own authority.
State legislatures would like to have a share in regulating the trunk
railroads; Congress would like to decide how much money may be spent by
candidates for senatorial nominations. Both of them have tried to extend
their authority in these directions during the past few years although
the constitution does not warrant their so doing. We must have some
body, therefore, endowed with the right to say to all public officials
and legislative bodies: “Thus far shall you go and no further; here is
the point where your authority, under the constitution, comes to an
end.”
[Sidenote: The Supreme Court’s power is essential.]
It is quite true that decisions of the Supreme Court are sometimes
unpopular. People who are eager for humanitarian reforms, when they see
the Supreme Court annulling measures which Congress has passed to
protect women or children, or the weak or the poor, are in the habit of
crying out that the court is an obstacle to progress and that its power
to declare laws unconstitutional should be taken away. They overlook the
fact that if there were no supreme tribunal to keep Congress within its
constitutional limits, it would be easy for Congress, step by step, to
take away all the powers now possessed by the states and to centralize
at Washington the entire government of the country. Under a federal
system of government, with powers divided between the nation and the
states as they are in this country, disputes as to where a particular
power belongs are sure to arise. How could we devise a more satisfactory
plan of deciding these disputes than by referring them to an impartial
body of nine men chosen for life from among the ablest jurists of the
land? Do we propose to abolish the powers of juries because they
sometimes render unpopular verdicts? People sometimes question the
wisdom of the Supreme Court, but no one has ever doubted its
integrity.[139]
[Sidenote: Scope of the federal courts’ jurisdiction.]
=How Cases Come Before the Federal Courts.=—The authority to try cases
is divided by the national constitution into two parts, and each part is
assigned to two separate systems of courts. Certain classes of cases are
named in the national constitution as falling within “the judicial power
of the United States” and these cases are tried in the federal courts.
All other classes of cases (and this includes the great majority of
legal disputes) are left to the state courts. The controversies named in
the national constitution as matters for trial in the federal courts are
those which it did not seem wise to let the various state courts decide,
for example, cases arising out of treaties made by the United States, or
controversies between two states, or between citizens of different
states. This is a wise arrangement, for if the state courts could say
the last word on the interpretation of treaties, the nation might easily
find itself forced into trouble with foreign countries. If cases between
citizens of different states were tried in the courts of either state,
there would be a temptation for these courts to favor their own
citizens. Even the rule which requires that cases affecting ambassadors
shall be heard in the federal courts has a good reason, for the United
States guarantees to all foreign ambassadors the privileges of
international law and must be in a position to see that these guarantees
are respected. The entire list of cases over which federal courts have
jurisdiction is so clearly set forth in the constitution that there is
no need for repeating it here.[140]
[Sidenote: How jurisdiction is determined.]
When any dispute arises between individuals or corporations the lawyers
who bring the suit determine whether the matter is one for the federal
or the state courts to hear. This they do by considering whether the
controversy comes within any of the classes named in the constitutional
provision just mentioned. If they find that it does, the suit is usually
commenced in the federal courts; otherwise it is begun in the state
courts. Most suits begin in the lowest court, and, if the decision is
not satisfactory, can be carried on appeal to the higher federal or
state courts as the case may be, until finally a very small proportion
of them reach the Supreme Court.[141] But not all cases which are heard
in the lower federal courts, or in the state courts, can be brought up
to the Supreme Court of the United States. If that were permitted, the
Supreme Court would never be able to handle all the business which would
come before it. From the lower federal courts only cases of great
importance can be brought to it, and from the state courts only
controversies in which some provision of the national constitution is
involved.
=The Lower Federal Courts.=—The lower federal courts are called district
and circuit courts. The country is divided into about one hundred
judicial districts, in each of which there is a United States district
court with a judge, a marshall, and a district attorney, all appointed
by the President. Next above these courts are the circuit courts of
appeals. There are nine of these courts, each having jurisdiction within
a certain section of the country. A circuit court of appeals has from
two to four judges, appointed by the President, and also has its own
court officials. These courts derive their name from the fact that they
go “on circuit”, that is, they move about from one large city to another
within their respective sections of the country holding sessions in
each. In most cases they have final jurisdiction.[142]
THE LAW
=What is Meant by the Law.=—Having outlined the organization and
jurisdiction of the federal courts, the question next arises: What
branches of law do American courts administer? We often speak of the
courts as administering “justice ”, and it is no doubt true that their
decisions usually@ possess the quality of justice; but what the courts
really administer is _the law_. The law may be just or unjust, and it is
very difficult, if not impossible, for any court to wring justice out of
an unjust law. Where injustice is done, the law and not the court is in
most cases to blame.
[Sidenote: How the common law developed.]
=The Common Law.=—Speaking broadly the system of jurisprudence which
American courts administer is made up of three branches, known as common
law, statutory law, and equity. Of these the common law is made up of
various time-honored usages, some of which go back many hundreds of
years. The common law began its growth in mediaeval England when there
were very few written rules, and the courts found it necessary to decide
cases in accordance with the usages or customs of the people. Gradually
these decisions became uniform, one court following the example of
another, until this body of usages interpreted by judicial decision
became “common” or universal throughout the whole realm of England
although it had never been so established by any action of parliament.
Thus the rule developed that no man should be compelled to testify
against himself, that mere hearsay should not (with certain exceptions)
be received as evidence, that all witnesses should be put upon oath,
that questions of fact should be decided by juries, that agreements to
restrain trade in an unreasonable manner were punishable, and so
on.[143] During several centuries a great body of legal rules developed
in this way and the system of common law was brought by the English
colonists to America, where it speedily took root and was administered
by the colonial courts.[144] After the Revolution it was continued and
it still remains the groundwork of the law in all the states except
Louisiana. Of course it has been gradually modified during the past
hundred or more years by court decisions and by statutes, and it still
keeps on changing.
=Statutory Law.=—Second, there is statutory law. This is law made by
definite action of the people or their representatives. Constitutions
are in effect statutory law, supreme statutory law. Laws enacted by the
people through the initiative and referendum are statutory law.
[Sidenote: Statutes.] Most statutory law, however, consists of laws made
by Congress, by the state legislatures, by city councils, and by other
regular lawmaking bodies.[145] These enactments supplement or alter the
common law. Until a statute is passed affecting any question, the common
law prevails. Whenever a statute conflicts with a provision of the
common law, the statute prevails. But when ordinary statutes conflict
with the constitution, the constitution prevails. Enormous numbers of
statutes are enacted each year by Congress and the legislatures of the
forty-eight states. They now form the larger part of the whole system of
law.
=The Need for Greater Uniformity in Statute Law.=—In many matters of
business the fact that the statutes are different in every one of the
forty-eight states is a great disadvantage. When wholesale dealers sell
goods on credit to merchants in far-off states they want to know just
what the laws provide in the matter of collecting debts. The only way to
do this is to enquire into the statutes of each state where goods are
sold. So it is with wills, contracts, notes, and so on. In some states a
will must have three witnesses; in others only two. The man who endorses
a note in one state assumes greater liabilities than are assumed by
endorsers somewhere else. To remedy this situation there is a strong
movement to secure uniformity among all the states in the case of
certain important statutes (for example, the statutes relating to
sales). A commission of eminent lawyers has been at work for years
preparing uniform laws on various subjects and some of these have been
adopted by the legislatures of many states. A uniform statute relating
to negotiable instruments (notes, bills of exchange, etc.) has now been
adopted by more than forty states, and a uniform sales act by about a
dozen of them.
=Equity.=—Finally, there is the branch of jurisprudence known as equity.
People think of this word as implying something that is more just than
the law, something which has its roots in the conscience of the judge
rather than in the statute books. But equity as actually administered in
the courts is made up of formal rules which the judges apply in certain
cases without having much discretion in the matter. The rules of equity
are written in books just like the rules of law, and they are about as
precise.
[Sidenote: The origin of equity.]
The origin of these rules is an interesting story which cannot be
narrated here save in the briefest way. In early England there grew up,
side by side with the common law, a set of unwritten rules administered
by the chancellor, who was called the “keeper of the king’s conscience”
and to whom people could appeal for relief when they felt that they had
not received justice in the courts of common law. At the outset the
chancellor, whose office eventually grew into a Court of Chancery,
decided every case on its own merits; but in due course all cases of the
same kind came to be decided in the same way, and thus a set of rules or
principles was gradually formulated. With further growth these rules of
chancery or equity were gathered together, arranged logically, put into
written form, applied by the English courts, brought to America in
colonial days, retained after the Revolution, and they continue in force
at the present time.
The differences between law and equity are too technical to be explained
here; even lawyers sometimes fail to understand them thoroughly.[146]
Cases in equity often result in the issue of injunctions and the issue
of these injunctions in labor disputes has given rise to much complaint.
(See pp. 407-408.) Both equity and law are usually administered by the
same courts.[147]
JUDICIAL PROCEDURE
=The Jury System.=—When a legal dispute arises between individuals or
corporations, or when some offence is charged against a person, there
are usually two questions to be decided. The first question is: What are
the facts? What actually took place? The second question is: What does
the law provide with reference to these facts? If you charge someone
with having done you a wrong, it is not enough to prove your charge; you
must also convince the court that common law, or statutory law, or
equity gives you the right to redress. The first question in most
important cases, both criminal and civil, is decided by a jury; the
second question by a judge.
[Sidenote: How the grand jury is chosen.]
=The Grand Jury.=—There are two kinds of juries, both of which are
selected in much the same way, but their functions are quite different.
The first is called the grand jury. It is a body of men, varying from
seven to twenty-three in number, chosen by lot from among the qualified
voters of the county or district, and charged with the duty of
investigating whether crimes have been committed. Evidence is presented
to it by the prosecuting attorney, or the grand jury may make
investigations on its own behalf. [Sidenote: Its work.] It conducts an
investigation, not a trial. If it decides by a majority vote that there
are reasonable grounds for placing any person on trial, it submits to
the court a true bill or indictment. If it believes that any conditions
within the county or district are wrong and ought to be remedied, it
submits to the court a statement of these conditions, which is called a
presentment. When a person is indicted by a grand jury, this does not
mean that he has been proved guilty but merely that, in the grand jury’s
opinion, he ought to be placed on trial. The grand jury does not hear
the accused person’s side of the case. Its purpose is to protect
individuals from being put to the inconvenience and humiliation of a
public trial unless there are reasonable grounds for doing this.[148]
[Sidenote: How the trial jury is chosen.]
=The Trial Jury.=—The other jury is known as the trial jury or petit
jury and practically always consists of twelve persons. The method of
selecting a trial jury is, in general, as follows: Some public official
who is entrusted by the law with this duty makes a list of the persons
who are liable for jury service. This list is usually compiled from the
roll of voters, leaving off all persons (such as lawyers, physicians,
public officials, and so on) who are exempted by law from jury duty.
From this list a certain number of names, perhaps fifty to a hundred,
are then selected, usually by lot. These individuals are thereupon
summoned to court, where they form what is known as the jury panel. One
by one their names are called in court and the lawyers on either side of
the case are given an opportunity to state their objections.[149] When
twelve persons have been found to whom there is no objection from either
side, these twelve constitute the jury and proceed to hear the facts of
the case. [Sidenote: Its work.] The trial jury, however, may hear only
such evidence as the judge permits it to hear, for the question whether
any item of evidence can be permitted is a question of law. The value of
the evidence, after the judge has allowed the jury to hear it, is for
the jury to determine.
[Sidenote: Jury procedure.]
The usual procedure in a jury trial, therefore, is this: When the jury
has been chosen and sworn to decide the issue fairly, the prosecuting
attorney (or, in a civil case, the counsel for the plaintiff) states
briefly to the court what he intends to prove. Then the witnesses for
the prosecution, or for the plaintiff, are called, put upon oath, and
questioned. As each witness finishes his direct testimony the
defendant’s counsel takes him in hand for cross-examination. The purpose
of this cross-examination is to test the witness, to see if he is
telling the truth, or to induce him to say things which will weaken his
original testimony.[150] When the witnesses for the prosecution have
finished, the witnesses for the defendant are called and they likewise
are cross-examined by the other side. After all the testimony is
concluded the counsel on both sides make addresses to the jury, the
judge explains to the jurymen the points of law bearing on the case, and
the jury retires to consider its verdict. This it does in secret,
remaining in a room which no one is allowed to enter or leave.
[Sidenote: Second jeopardy.]
In criminal cases the verdict must be unanimous one way or the other; if
not, the case has to be tried all over again.[151] In civil cases
unanimous verdicts are required in some states but not in others. The
verdict, whatever it may be, is reported in open court and is ordinarily
conclusive. In some cases, however, the presiding judge is empowered to
set a unanimous verdict aside and to order a new trial.[152] Where an
accused person is found not guilty by the unanimous verdict of a jury he
may never, under any circumstances, be placed on trial for the same
offence again.[153] If he is found guilty, on the other hand, he has in
most cases the right to appeal, on points of law, to a higher court.
=Value of the Jury System.=—The jury system has great value but also
some serious defects. Its value consists in assuring to everyone a fair
determination of the facts by an impartial body of his neighbors, each
one of whom is sworn to decide without fear or favor. It is a great
safeguard against the tyranny of judges and public officials. On the
other hand it makes judicial administration expensive (for the jurymen
have to be paid); it results in making trials much longer than if the
evidence were heard by a judge alone; and the requirement that verdicts
shall be unanimous often results in no verdict at all. Exemptions from
jury service have been given too freely, so that juries are sometimes
made up of men who serve because they have no other work to do. The
others are either exempted by law or ask to be excused by the court.
Prolonged trials and close confinement make jury service a burden which
many people try to evade. In serious cases the jurymen are sometimes not
permitted to visit their homes for weeks at a time; they sleep in the
courthouse, have their meals under the watchful eye of the sheriff, and
are not permitted to read the newspapers while the trial lasts.
Occasionally we have witnessed the absurd spectacle of a jury kept under
guard while the prisoner was out on bail. Yet with all its faults the
jury system affords a safer method of trying criminal cases than trial
by a judge alone. On the other hand the use of jury trials in civil
cases, particularly where the matters in dispute are not of great
importance, tends to delay the work of the courts. It has been suggested
that all such cases ought to be tried by the judge alone.
=The Law’s Delays.=—Much complaint is heard nowadays because lawsuits
are so long and involve so much expense. The courts are often so
overwhelmed with cases that a lawsuit which is brought today cannot be
tried for many months. The privilege of appealing from the decisions of
lower courts is so widely granted, moreover, that when lawsuits are once
begun they may not be ended for years. The claim is often made that all
this gives a great advantage to the rich man or the large corporation as
against the ordinary individual who cannot afford the expense involved
in prolonged litigation. Lawsuits require the hiring of lawyers by both
sides and the assistance of lawyers is costly. Judicial procedure can be
much simplified, and it ought to be. It probably would be simplified
were it not for lawyers. Lawyers profit by the law’s delays; the more
lawsuits and the more prolonged they are, the more profitable it is for
them. And lawyers form a large element in the legislatures which make
the laws relating to court procedure. This is not to imply, however,
that lawyers on the whole fail to promote the interests of justice. They
do perform great services in this respect. The ends of justice would be
far less perfectly served were it not for lawyers.
[Sidenote: Reasons for these delays.]
The main reason for the slowness with which justice is administered in
the United States can be found in the great (and perhaps unnecessary)
amount of care which is taken to assure every individual his legal
rights. This has multiplied appeals, encouraged technicalities, and
given the courts far too much to do. The right to be given a full and
fair trial, to have a jury in most cases, to appeal, and to have due
process of law with all that this implies—these are rights which the
constitution guarantees and which we greatly value. Valuable they are,
no doubt, but they make the course of justice slower in the United
States than in other countries where these constitutional safeguards do
not exist. A famous Prussian king, Frederick the Great, once ordered
that every lawsuit should be brought to an end within a year. Despots
can make their courts move quickly in this way; but nothing of the sort
is possible in a democracy.
[Sidenote: Keep the courts incorruptible.]
Yet the courts are, when all is said and done, the most important among
the institutions of free government. Corruption and incompetence in
legislatures, or in the executive branch of the government, are serious
evils when they exist, to be sure; but when incompetence and corruption
invade the judiciary they reach to the very heart of the Republic. The
Great Charter of 1215 provided that “justice should not be sold,
delayed, or denied to any man”. That is a principle which must be
maintained at all costs.
General References
C. A. BEARD, _American Government and Politics_, pp. 294-314; _Ibid._,
_Readings in American Government and Politics_, pp. 273-290; 488-508;
EVERETT KIMBALL, _National Government of the United States_, pp.
379-422;
JAMES T. YOUNG, _The New American Government and Its Work_, pp. 275-297;
W. B. MUNRO, _The Government of the United States_, pp. 342-371;
S. E. BALDWIN, _The American Judiciary_, especially pp. 3-124;
J. C. GRAY, _The Nature and Sources of the Law_, pp. 84-112.
Group Problems
=1. What can be done to improve the work of the courts?= Present
organization of the courts. How cases are brought. Figures concerning
the number of cases. How far are the courts behind in their work? Causes
of congestion. Has the jury system anything to do with it? The right to
new trials. The right of appeal. Other factors which make for delay. The
expensiveness of lawsuits. Justice and the poor. Proposed reforms in
judicial procedure. Conclusions. =References=: S. E. BALDWIN, _The
American Judiciary_, pp. 197-251; 365-373; C. A. BEARD, _Readings in
American Government and Politics_, pp. 500-508; R. H. SMITH, _Justice
and the Poor_, pp. 3-34; C. G. HAINES and BERTHA HAINES, _Principles and
Problems of Government_, pp. 367-402; American Bar Association, _Report
on the Reform of Judicial Procedure_ (in Journal of the American Bar
Association, Vol. VI, pp. 509-527, July, 1920); See also _The Cleveland
Survey_, 1921.
=2. The Supreme Court of the United States and its place in the American
scheme of Government.= =References=: W. B. MUNRO, _Government of the
United States_, pp. 357-371; P. S. REINSCH, _Readings on American
Federal Government_, pp. 703-720; C. A. BEARD, _Readings in American
Government and Politics_, pp. 288-290; W. W. WILLOUGHBY, _The Supreme
Court of the United States_, pp. 22-42.
Short Studies
1. =The Supreme Court at work.= F. J. HASKIN, _American Government_, pp.
325-336.
2. =The practice of declaring laws invalid.= C. G. HAINES, _The American
Doctrine of Judicial Supremacy_, pp. 173-184; E. S. CORWIN, _The
Doctrine of Judicial Review_, pp. 1-44.
3. =The influence of Supreme Court decisions.= P. S. REINSCH, _Readings
on American Federal Government_, pp. 706-716.
4. =Law: its nature and development.= WOODROW WILSON, _The State_, pp.
69-93.
5. =The common law.= J. C. CARTER, _Law: Its Origin and Growth_, pp.
167-190; J. C. GRAY, _The Nature and Sources of the Law_, pp. 82-108;
266-292; SIR FREDERICK POLLOCK, _The Genius of the Common Law_, pp.
1-26.
6. =Trial by jury.= S. E. BALDWIN, _The American Judiciary_, pp.
184-196.
7. =Criminal procedure.= _Ibid._, pp. 226-251.
8. =The law’s delays.= C. A. BEARD, _Readings in American Government and
Politics_, pp. 500-505.
9. =Justice and the poor.= R. H. SMITH, _Justice and the Poor_, pp.
41-59.
10. =The courts and democracy.= J. H. TUFTS, _Our Democracy_, pp.
255-267.
Questions
1. Is it essential that a country with a government like that of the
United States should have some body vested with the power to declare
laws unconstitutional? Why or why not?
2. Under what circumstances might a murder case come to the Supreme
Court?
3. Tell in each case whether the following controversies would come up
in the federal or the state courts and give your reasons: (_a_) a man
charged with murder on an American ship at sea; (_b_) a suit between the
Standard Oil Company of New Jersey and the Ford Motor Company of
Michigan; (_c_) a suit brought by Nicholas Nickleby, a citizen of
Illinois, against the State of New York; (_d_) a charge of embezzlement
brought against the cashier of a national bank; (_e_) a complaint
against a railroad conductor for assaulting a passenger at a railroad
station in Pennsylvania; (_f_) a charge against a foreign ambassador;
(_g_) a suit brought by a citizen of Massachusetts against a citizen of
California for non-payment of a note.
4. What are the subordinate federal courts? How are they organized? How
are judges appointed and for what terms? How are they removed?
5. Describe all the steps in a criminal trial by jury, from arrest to
conviction.
6. Explain the following terms, using a dictionary where needed:
plaintiff; jury panel; venireman; demurrer; second jeopardy; appellate
jurisdiction; writ of habeas corpus; affidavit; cross-examination;
peremptory challenge; counsel for the defendant.
7. Why should not every voter be required to do jury service when his
turn comes? What classes of citizens are exempted in your state? Do you
think that these exemptions are justified? Is it right that women should
be called on for jury service? Are there any cases in which they should
not serve?
8. To what extent should the right of appeal be limited?
9. If a person is found not guilty and a few days later confesses that
he actually did commit the crime with which he was charged, he cannot be
placed on trial again. Do you think this is right? Why does this rule
exist?
10. What suggestions can you make for the prevention of existing delays
in the administration of justice?
Topics for Debate
1. The power of the Supreme Court to declare laws unconstitutional
should be taken away.
2. Trial by jury should be abolished in civil cases.
3. The loser in a law suit should not be compelled to pay all the
winner’s costs, including his lawyer’s fees.
-----
Footnote 137:
This is old French for _Hear Ye! Hear Ye!_ The custom of opening a
court session with these words goes back to the time of the
Plantagenets in English history.
Footnote 138:
It may be well to explain briefly some of the terms commonly used in
connection with the law and the courts. The parties to a suit at law
are usually known as the _plaintiff_ and the _defendant_. A _criminal
case_ is one in which some crime is charged; in a _civil case_, the
issue concerns the private rights of individuals (for example, when a
man is sued for debt). A court has _original_ jurisdiction where cases
come before it in the first instance without having already been heard
by some other court; it has _appellate_ jurisdiction when cases come
up from some other court on appeal.
Footnote 139:
In more than one hundred and thirty years only one Supreme Court
justice has been impeached and he was acquitted. The charges in this
case, moreover, did not reflect upon the integrity of the judge.
Footnote 140:
Article III, Section 1.
Footnote 141:
A few cases come directly before the Supreme Court, for example, suits
between two states of the Union; but the great majority of cases come
up on appeal, or on writ of error, which is a method of appeal.
Footnote 142:
There are, in addition, some special federal courts, such as the court
of claims, the courts which try cases in the District of Columbia, and
the courts of the insular possessions.
Footnote 143:
These rules were gathered together and put into written form by
various commentators, chief among whom were Glanvil, Bracton, Coke,
Littleton, and Blackstone. Blackstone’s _Commentaries on the Common
Law of England_, compiled before the American Revolution, is still the
standard work, known to every lawyer.
Footnote 144:
The colonists looked upon the common law as a bulwark of individual
freedom. Edmund Burke, in one of his speeches, mentioned as a
significant indication of the colonists’ familiarity with the common
law the fact that almost as many copies of Blackstone had been sold in
America as in England. The Declaration of Rights adopted by the First
Continental Congress in 1774 spoke of the colonies as entitled to all
the provisions of the common law.
Footnote 145:
Where may these laws be found? Statutes passed by Congress are printed
in the Statutes-at-Large, one or more volumes for each session. State
statutes are printed in volumes known as Session Laws, or simply as
Laws of Pennsylvania or Acts and Resolves of Massachusetts. From time
to time, usually every ten years, these state laws are revised,
rearranged, and consolidated into one general compilation, usually
published as the Revised Statutes or Revised Laws. A similar
publication is issued periodically containing the revised national
statutes. City councils enact legislation by means of ordinances,
which are put together in a volume of Revised Ordinances. When all the
national or state laws relating to a certain subject (for example,
criminal law, or civil procedure, or municipal affairs, etc.) are
brought together into one compilation this is usually known as a code.
Thus we speak of the Criminal Code or the Code of Civil Procedure or
the Municipal Code.
Footnote 146:
In general, equity applies only to certain classes of civil actions
and never to criminal cases; its procedure is simple; a jury is not
ordinarily summoned to hear the facts; evidence in writing may be
submitted; judgment is given by the issue of an order or decree and
not by awarding a certain sum in damages. A further explanation may be
found in the _Cyclopedia of American Government_, Vol. I, pp. 673-675.
Footnote 147:
Courts of law, in addition to awarding punishment in criminal cases
and damages in civil cases are empowered to issue _writs_. Writs are
orders or decrees commanding certain things to be done or left undone.
They are addressed to other courts, or to public officials, or to
individuals. The best-known of these writs is the writ of _habeas
corpus_, an order issued to a jailor or other custodian commanding him
to produce a person in court and show why he is held in custody. If
the court finds that the person is wrongfully held in custody it
orders his release. Another common writ is the writ of mandate
(_mandamus_) issued to public officials to compel them to perform some
duty which is imposed upon them by law. A _writ of error_ is issued in
order to carry a case from a lower to a higher court.
Footnote 148:
In some county courts the grand jury is not now used (see p. 172).
Footnote 149:
These objections are called _challenges_. The judge decides whether
they are well-founded. Both sides are usually allowed a certain number
of _peremptory challenges_, that is, objections for which no reason at
all need be given.
Footnote 150:
There are two or three things which you ought to remember when going
on the witness stand. Tell what you know about the case simply and
briefly; tell only what you actually know, not what you think, or what
somebody told you. Don’t venture your own opinion unless you are asked
for it. When you are being cross-examined, think over every question
before you answer it. If you answer everything quickly and without
thought you will probably fall into a trap and appear to be
contradicting yourself. The opposing lawyer is playing a game of chess
with you. Watch his moves and take your own time in making yours. If
you make any slip, correct it there and then; don’t let it pass with
the idea that it will never be noticed. The witness stand is a place
where a man needs to have his wits about him.
Footnote 151:
If the case is not very serious the prosecuting attorney sometimes
recommends that there be no further trial and the accused person is
then freed.
Footnote 152:
For example, where the jury has disregarded the judge’s instructions
on points of law or where the jurymen have reached their verdict in
some improper way.
Footnote 153:
A prisoner was once charged with setting fire to his own home and
burning it down, thus causing the death of his father and mother. The
prosecuting attorney first put him on trial for the murder of his
father; but the jury acquitted him. Another jury was then summoned and
the attempt was made to place him on trial for the murder of his
mother. The prisoner’s counsel argued that this was placing him on
trial the second time (or in second jeopardy as it is called) for the
_same offence_. The prosecuting attorney argued that it was a
_different offence_, the murder of a different person. Which was
right?