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The American Judiciary by Simeon E. Baldwin, LLD

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* * * * *


Ableman _v._ Booth
Allinson, Hale _v._
American Insurance Co. _v._ Canter
Ames _v._ Kansas
Ames, Smyth _v._
Andrews, _Ex parte_
Anthes, Commonwealth _v._

Bachert _v._ Lehigh Coal and Navigation Co.
Baldwin, Robertson _v._
Bank, Bardes _v._
Bank of Kentucky, Briscoe _v._
Bank of Mississippi _v._ Duncan
Bank of the U. S., Osborn _v._
Bardes _v._ Bank
Barrows _v._ Bell
Batchelder _v._ Moore
Baxter _v._ Brooks
Baxter, State _v._
Bean _v._ Beckwith
Bean, Beckwith _v._
Beckham, Taylor _v._
Beckwith _v._ Bean
Beckwith, Bean _v._
Bell, Barrows _v._
Bell's Gap R. R. Co., McCloskey _v._
Bernard, Coggs _v._
Biddle, Green _v._
Bidwell, Downes _v._
Bissell _v._ Dickerson
Blacker, Board of Supervisors _v._
Blair _v._ Williams
Blake _v._ McClung
Board of Supervisors _v._ Blacker
Bodley _v._ Gaither
Boffman, Hickman _v._
Bonham's case
Booth _v._ Clark
Booth, Ableman _v._
Borden, Luther _v._
Bowman _v._ Middleton
Boyd _v._ Thayer
Boyd _v._ U. S.
Bradburn, Mincey _v._
Bradley _v._ Fisher
Bradley _v._ New Haven
Bradley, _Ex parte_
Brainerd, Fitch _v._
Branch, _In re_
Brashears, Lapsley _v._
Briggs _v._ Garrett
Brine _v._ Insurance Co.
Briscoe _v._ Bank of Kentucky
Brooks _v._ State
Brooks, Baxter _v._
Brown, Kellogg _v._
Brown, Parkersburg _v._
Bulkley, State _v._
Bull, Calder _v._
Burgess _v._ Seligman
Burr's Trial
Burrows, Nudd _v._
Bush, Perry _v._
Bushnell, _Ex parte_

Calder _v._ Bull
California, Hurtado _v._
Call Publishing Co., Western Union Telegraph Co. _v._
Calvin _v._ Huntley
Canfield _v._ Mitchell
Canter, American Insurance Co. _v._
Carriere, Tua _v._
Cherokee Nation _v._ Georgia,
Chisholm _v._ Georgia
Christmas _v._ Russell
Church _v._ Pearne
City of South Bend _v._ Turner
Claflin _v._ Houseman
Clark, Booth _v._
Clarke's Appeal
Cleveland, Painesville and Eastern R. R. Co., _v._
Clymer, Norris _v._
Cochran, Gernon _v._
Coffin _v._ United States
Coggs _v._ Bernard
Cohens _v._ Virginia
Coleman _v._ Tennessee
Coler _v._ Tacoma Railway and Power Co.
Colt, Stanley _v._
Commonwealth _v._ Anthes
Conn. Pipe Mfg. Co., Ward _v._
Consul of Spain _v._ Consul of Great Britain
Cooper, Application of
Cooper, _In re_
Cooper, In the matter of
Copass, Hall-Moody Institute _v._
Croswell, People _v._
Cunningham, State _v._

Danbury, Hoyt _v._
Dartmouth College _v._ Woodward
Debs, U. S. _v._
Debs, _In re_
Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._
Demorest, Hutkoff, _v._
Dennison, Kentucky _v._
Deposit Bank _v._ Frankfort
Dickerson, Bissell _v._
Diggs _v._ Wolcott
Donoghue, Hanley _v._
Dorr _v._ United States
Dorrance, Vanhorne's Lessee, _v._
Dougherty, Lanark _v._
Dow _v._ Johnson
Downes _v._ Bidwell
Dred Scott _v._ Sandford
Drehman _v._ Stifle
Duncan, Bank of Mississippi _v._
Duncan, Johnson _v._
Dyson _v._ Rhode Island Co.

Eakin _v._ Raub
Eckrich _v._ St. Louis Transit Co.
Ellington, Miel _v._
Erdman _v._ Mitchell
Exchange Bank _v._ Rice

Farmers' Loan and Trust Co., Pollock _v._
Faulkner _v._ Hart
Finney _v._ Guy
Fish _v._ Smith
Fisher, Bradley _v._
Fitch _v._ Brainerd
Fletcher _v._ Peck
Flynn _v._ Morgan
Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co.
Frankfort, Deposit Bank _v._
French _v._ Waterbury
Frost _v._ Leighton

Gaither, Bodley _v._
Garland, _Ex parte_
Garrett, Briggs _v._
Genesee Chief, The
Georgia _v._ Stanton
Georgia, Cherokee Nation _v._
Georgia, Chisholm _v._
Georgia, Worcester _v._
Gernon _v._ Cochran
Gibbons _v._ Ogden
Goshen _v._ Stonington
Gould _v._ Hudson River R. R. Co.
Grady's case
Grapeshot, The
Gray, James _v._
Green _v._ Biddle
Griffin _v._ Wilcox
Griswold, Hepburn _v._
Griswold, United States _v._
Grover & Baker Sewing Machine Co. _v._ Radcliffe
Groves _v._ Slaughter
Guy, Finney _v._

Hale _v._ Allinson
Hall-Moody Institute _v._ Co-pass
Ham _v._ McClaws
Hanley _v._ Donoghue
Hanover National Bank _v._ Moyses
Hans _v._ Louisiana
Harris, Norris _v._
Hart, Faulkner _v._
Hawes _v._ Oakland
Hayburn's Case
Hepburn _v._ Griswold
Heywood, Wilcox _v._
Hickman _v._ Boffman
Hildreth's Heirs _v._ McIntire's Devisee
Hill _v._ Smith
Hill, Koehler _v._
Hoffman, People _v._
Holmes _v._ Walton
Houseman, Claflin _v._
Houser, State _v._
Howle, Metropolitan Life Insurance Co. _v._
Hoyt _v._ Danbury
Hudson River R. R. Co., Gould _v._
Huntley, Calvin _v._
Hurtado, _v._ California
Hutkoff _v._ Demorest

Insurance Co., Brine _v._
International Distillery, Pearson _v._
Irvine _v._ Stone

James _v._ Gray
Jecker _v._ Montgomery
Johnson _v._ Duncan
Johnson _v._ People
Johnson, Dow _v._
Johnson, Mississippi _v._
Johnson, State _v._
Joint Traffic Association, United States _v._
Judges, State _v._

Kansas, Ames _v._
Katz _v._ Walkinshaw
Kellogg _v._ Brown
Kellogg _v._ Warmoth
Kentucky _v._ Dennison
Kentucky, Louisville Ferry Co. _v._
Kepner _v._ U. S.
Ketcham _v._ McNamara
Kilbourn _v._ Thompson
Klein, U. S. _v._
Kneedler _v._ Lane
Koehler _v._ Hill

Lachenmeyer, Pepin _v._
Lanark _v._ Dougherty
La Ninfa, The
Lane, Kneedler _v._
Lapsley _v._ Brashears
Lee, State _v._
Legal Tender Cases, The
Lehigh Coal and Navigation Co., Bachert _v._
Leighton, Frost _v._,
Lennon _v._ Rawitzer,
Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._,
Little Charles, The schooner, U. S. _v._,
Loan Association _v._ Topeka,
Loomis _v._ Newhali,
Lottawanna, The,
Louisiana, Hans, _v._,
Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson,
Louisville Ferry Co. _v._ Kentucky,
Luke _v._ Lyde,
Luther _v._ Borden,
Lyde, Luke _v._

McCardle, _Ex parte_,
McClaws, Ham _v._,
McCloskey _v._ Bell's Gap R. R. Co.,
McClung, Blake _v._,
McConnaughy, Pennoyer _v._,
McCulloch _v._ Maryland,
McDaniel, Terry _v._,
McDowell _v._ Oyer,
McFarland _v._ People,
Mclntire's Devisee, Hildreth's Heirs _v._,
M'Kim _v._ Voorhies,
McLeod's Case,
McNamara, Ketcham _v._,
McVeigh _v._ Ripley

Madison, Marbury _v._,
Main, State _v._,
Marbury _v._ Madison,
Maryland, McCulloch _v._,
Mather, Rand _v._,
Merriman _v._ Social Mfg. Co.,
Merryman, _Ex parte_,
Metropolitan Life Insurance Co. _v._ Howle,
Mial _v._ Ellington,
Middleton, Bowman _v._,
Milligan, _Ex parte_,
Miln, New York _v._,
Mincey _v._ Bradburn,
Mississippi _v._ Johnson,
Mitchell, Canfield _v._,
Mitchell, Erdman _v._,
Montgomery, Jecker _v._,
Moore, _Ex parte_,
Moore, Batchelder _v._,
Morgan, Flynn _v._,
Mormon Church _v._ United States,
Morrill, State _v._,
Moses Taylor, The,
Moyses, Hanover National Bank _v._,
Mutual Reserve Fund Life Association, Vincent _v._,
Myers _v._ South Bethlehem

Nash, United States _v._,
Neagle, _In re_,
Neff, Pennoyer _v._,
Newhall, Loomis _v._,
New Haven, Bradley _v._,
New Jersey _v._ New York,
Newman, _Ex parte_,
New York _v._ Miln,
New York, New Jersey _v._,
New York and New England R. R. Co., Rumsey _v._,
New York, New Haven and Hartford R. R. Co., Stack _v._,
Noble _v._ Union River Logging Co.,
Norris _v._ Clymer,
Norris _v._ Harris,
Northern Securities Co. _v._ United States,
Norwalk Street Railway Co.'s Appeal
Nudd _v._ Burrows

Oakland, Hawes _v._
Ogden _v._ Saunders
Ogden, Gibbons _v._
Ohio and Mississippi R. R. Co. _v._ Wheeler
Olcott, People _v._
Osborn _v._ Bank of the U. 8.
Oyer, McDowell _v._

Parkersburg _v._ Brown
Patterson, William
Paul _v._ Virginia
Pearne, Church _v._
Pearson _v._ International Distillery
Pease, Starr _v._
Peck, Fletcher _v._
Pennoyer _v._ McConnaughy
Pennoyer _v._ Neff
Pennsylvania, Prigg _v._
Pennsylvania Coal Co., Sanderson _v._
People _v._ Croswell
People _v._ Hoffman
People _v._ Olcott
People _v._ Webb
People, Johnson _v._
People, McFarland _v._
Pepin _v._ Lachenmeyer
Perkins, United States _v._
Perry _v._ Bush,
Peters, Wheaton _v._
Pollock _v._ Farmers' Loan and Trust Co.
Prigg _v._ Pennsylvania
Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._

Radcliffe, Grover & Baker Sewing Machine Co. _v._
Rand _v._ Mather
Raub, Eakin _v._
Rawitzer, Lennon _v._
Reese, United States _v._
Regents _v._ Williams
Rhode Island Co., Dyson _v._
Rice, Exchange Bank _v._
Rich, Upshur County _v._
Ripley, McVeigh _v._
Robbins' Case
Robertson _v._ Baldwin
Robinson, _Ex parte_
Royall, _Ex parte_
Rumsey _v._ New York and New England R. R. Co.
Russell, Christmas _v._
Rutgers _v._ Waddington

Sanderson _v._ Penn. Coal Co.
Sandford, Dred Scott _v._
Saunders, Ogden _v._
Scott _v._ Sandford
Seligman, Burgess _v._
Shepherd, State _v._
Sheve, U. S. _v._
Siebold, _Ex parte_
Sims' Case
Slaughter, Groves _v._
Smith, Fish _v._
Smith, Hill _v._
Smith, U. S. _v._
Smyth _v._ Ames
Social Mfg. Co., Merriman _v._
South Bethlehem, Myers _v._
Sparf _v._ U. S.
St. Louis Transit Co., Eckrich _v._
Stack _v._ New York, New Haven and Hartford R. R. Co.
Stanley _v._ Colt
Stanley, U. S. _v._
Stanton, Georgia _v._
Starr _v._ Pease
State _v._ Baxter
State _v._ Bulkley
State _v._ Cunningham
State _v._ Houser
State _v._ Johnson
State _v._ Judges
State _v._ Lee
State _v._ Main
State _v._ Morrill
State _v._ Shepherd
State _v._ Travelers' Insurance Co.
State _v._ Ward
State _v._ Worden
State, Brooks _v._
Stephens, petitioner
Stifle, Drehman _v._
Stone, Irvine _v._
Stonington, Goshen _v._
Swift _v._ Tyson

Tacoma Railway and Power Co., Coler _v._
Tassel's Case
Taylor _v._ Beckham
Tennessee, Coleman _v._
Terry _v._ McDaniel
Thayer, Boyd _v._
The Genesee Chief
The Grapeshot
The La Ninfa
The Lottawanna
The Moses Taylor
The Schooner Little Charles, U. S. _v._
The Thomas Jefferson
Thomas Jefferson, The
Thompson, Kilbourn _v._
Topeka, Loan Association _v._
Trademark Cases
Travelers' Insurance Co., State _v._
Trevett _v._ Weeden
Tua _v._ Carriere
Turner, City of South Bend _v._
Tyson, Swift _v._

Union River Logging Co., Noble, _v._
United States _v._ Debs
United States _v._ Griswold
United States _v._ Joint Traffic Association
United States _v._ Klein
United States _v._ Nash
United States _v._ Perkins
United States _v._ The Schooner Little Charles
United States _v._ Reese
United States _v._ Robbins
United States _v._ Sheve
United States _v._ Smith
United States _v._ Sparf
United States _v._ Stanley
United States _v._ Wilson
United States _v._ Worrall
United States, Boyd _v._
United States, Coffin _v._
United States, Dorr _v._
United States, Kepner _v._
United States, Mormon Church _v._
United States, Northern Securities Co. _v._
Upshur County _v._ Rich

Vanhorne's lessee _v._ Dorrance
Vincent _v._ Mutual Reserve Fund Life Association
Virginia, Cohens _v._
Virginia, Paul _v._
Voorhies, M'Kim _v._

Waddington, Rutgers _v._
Walkinshaw, Katz _v._
Walton, Holmes _v._
Ward _v._ Conn. Pipe Mfg. Co.,
Ward, State _v._,
Warmoth, Kellogg _v._,
Waterbury, French _v._,
Webb, People _v._,
Weeden, Trevett _v._,
Western Union Telegraph Co. v. Call Publishing Co.,
Wheaton v. Peters,
Wheeler, Ohio and Mississippi R. R. Co., _v._,
Wheeler's Appeal,
Wilcox v. Heywood,
Wilcox, Griffin _v._,
Williams, Blair _v._,
Williams, Regents _v._,
Wilson, U. S. _v._,
Woleott, Diggs _v._,
Woodward, Dartmouth College, _v._,
Worcester v. Georgia,
Worden, State _v._,
Worrall, U. S. _v._

Additional cases cited in Second edition.

Janvrin v. Revere Water Co.,
Revere Water Co., Janvrin, _v._,
O'Brien's Petition,
Seery v. Waterbury,
Waterbury, Seery _v._

* * * * *



* * * * *



No government can live and flourish without having as part of its
system of administration of civil affairs some permanent human
force, invested with acknowledged and supreme authority, and
always in a position to exercise it promptly and efficiently, in
case of need, on any proper call. It must be permanent in its
character. Only what is permanent will have the confidence of
the people. It must always be ready to act on the instant. The
unexpected is continually happening, and it is emergencies that
put governments to the test.

The judiciary holds this position in the United States. The
institutions which underlie and characterize it, both of the
United States and of each of the States, considered by
itself,[Footnote: I do not except Louisiana, for trial by jury
and other institutions derived from the common law have
profoundly affected her whole judicial system.] are the outgrowth
of those of the thirteen English colonies on the Atlantic coast,
which declared their independence in 1776.

The colonial charters, whether of the proprietary, provincial or
republican type, were all equally charters for Englishmen, based
on the common law of the English people. So far as they granted
legislative power, it was generally declared that it should be
exercised in conformity, so far as might be practicable, with the
laws of England. The proviso to this effect in the roving patent
given by Queen Elizabeth to Sir Walter Raleigh may be taken as a
type: "so always as the said statutes, lawes, and ordinances may
be, as neere as conveniently may be, agreeable to the forme of
the lawes, statutes, government, or pollicie of
England."[Footnote: Poore, "Charters and Constitutions," II,

In the Southern New England colonies, when first settled, the
common law of England was disowned. They made the little law
which they needed for themselves, and as cases which this might
not provide for arose, they were to be decided by such rules as
the magistrates might think right and warranted by the precepts
found in the Bible. Connecticut continued to insist on this
view, with general consistency, until the days of the Stamp Act,
when it became the interest of her people to claim the benefit of
the principles of the English constitution and of the common law,
on which it was built up.[Footnote: Colonial Records of Conn.,
1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._
citations by D. Davenport, _arguendo,_ in Flynn _v._
Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State

In early Massachusetts the written pleadings often referred to
the Bible, quoting a text from it as an authority, just as
citations now might be made in a lawyer's brief from a legal
treatise or reported case.[Footnote: Publications of the Colonial
Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the
first and everywhere that if the common law was to be applied to
the rough conditions of colonial life some modifications were
necessary. These the colonists were, in the main, left free to
make at their pleasure. Much of this work came to be done by
their legislative assemblies; more by their courts. The
assemblies sat but for a few days in the year: the courts were
always open to suitors, and sessions of the inferior ones were

The assemblies, however, were themselves courts. At first they
kept in their own hands a large share of judicial power. They
acted as the early parliaments of England had acted, both as a
legislature and a judicial tribunal. In several colonies they
long kept to themselves the right of deciding private
controversies on equitable principles. They sat as a court of
review, to grant new trials or review judgments. They passed
acts of attainder. They settled insolvent estates.[Footnote:
Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing
to be tolerated only while the foundations of a government are
being laid. As the Roman plebeian, in the days before the Twelve
Tables, clamored for a known and certain law, so the common
people of the early colonies insisted that from a similar want
they held their rights too much at the will of their rulers. In
the colony of New Haven a code was early framed; but there they
built on a written law--the Bible.[Footnote: New Haven Colony
Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where
they were more anxious to avoid conflict with the common law, the
problem was a serious one.

Winthrop, writing in 1639, describes it with his usual clearness
and discrimination thus:

"The people had long desired a body of laws, and thought their
condition very unsafe while so much power rested in the
discretion of magistrates.... Two great reasons there were,
which caused most of the magistrates and some of the elders not
to be very forward in this matter. One was want of sufficient
experience of the nature and disposition of the people,
considered with the condition of the country and other
circumstances, which made them conceive that such laws would be
fittest for us which should arise _pro re nata_ upon
occasions, etc., and so the laws of England and other states
grew, and therefore the fundamental laws of England are called
customs, consuetudines. 2. For that it would professedly
transgress the limits of our charter, which provide we shall
make no laws repugnant to the laws of England, and that we were
assured we must do. But to raise up laws by practice and
custom had been no transgression."[Footnote: Winthrop, "History
of New England," I, 322.]

The tendency toward partial codification proved too strong to be
resisted, and all the colonies soon had a substantial body of
written law published in official form.

The exercise of judicial power by colonial legislatures was
steadily contracting throughout the century preceding the
Revolution. Where there were Governors appointed by the crown,
they discouraged it. The courts were correspondingly
strengthened. Law became better understood and more wisely
applied. A large body of local statute law had grown up by 1750,
much of it already venerable by antiquity, and intimately
interwoven with the life of the people. Its form and color
differed in different colonies. Religious views and preferences
had had a large effect in shaping it. So had influences
proceeding from the civil war, the Commonwealth, and the
Restoration. Yet at bottom there was the same substructure in
Virginia as in Massachusetts, in Pennsylvania as in New York. It
was the common law of England as it existed in the days of the
last of the Tudor and first of the Stuart reigns.

This had been built into the foundations of American institutions
and kept firm in place, not only because the colonists were
habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's
(Conn.) Reports, 163, 189.] and themselves both English subjects
and the descendants of Englishmen of those days, but largely by
force of the British system of colonial government through the
Lords of Trade and Plantations. The ancient _aula regis_,
in which the king dispensed justice at first hand, had survived
in another form in the tribunal known as the King in Council.
This, so far as the colonies were concerned, was represented by a
standing committee of the Privy Council. It was substantially
the same thing as the Court of Star Chamber, but since 1640
without the extraordinary penal jurisdiction which gave that so
evil a reputation for Americans.[Footnote: Maitland, "Justice and
Police," 5.] This committee was after this restriction of its
powers known as the Lords of Trade and Plantations,[Footnote: It
was afterward and is now called the Judicial Committee of the
Privy Council.] and by its authority from the time when England
first had colonies of any commercial importance (and those in
America were the first) their statutes could be set aside and the
judgments of their courts, when of any considerable magnitude and
importance, reversed.[Footnote: See Paper on Appeals to the Lords
of Trade from Colonial Courts, by Harold D. Hazeltine, Report of
the American Historical Association for 1894, 299.] This
revisory jurisdiction, though questioned and occasionally evaded
or thwarted by the colonial governments, became solidly
established long before the Revolution.[Footnote: "Two Centuries'
Growth of American Law," 12, 18, 264.] In but one case did a
colonial court formally ignore a judgment of reversal. This was
in 1738, when the Superior Court of Judicature of Massachusetts,
at its sittings in York County, in what is now the State of
Maine, disobeyed an order of the King in Council made on appeal
from one of its judgments, and when it was repeated a year later,
adhered to its original position.[Footnote: Frost
_v._ Leighton, Publications of the Colonial Society of
Massachusetts, III, 246.] The amount involved was trifling, and
the Lords of Trade and Plantations made no further effort to
enforce their order.

The natural effect of this court of appeal at London was to keep
the public proceedings of the colonies in line with the common
law of England, so far as related to its fundamental principles.

A certain uniformity of result was thus secured. American law,
in its substantial framework, was not allowed to vary from
English law in any case where agreement was reasonably
practicable. There was a central power at London ever ready to
enforce the charter rule. The colonial courts, if their
judgments were to stand, must proceed in conformity to the
British constitution. Justice must be administered by due course
of law, and to find out what that due course was the judges were
forced to study the English law-books. When Blackstone's
Commentaries were first published, more copies were sold in
America than in England.[Footnote: "Two Centuries' Growth of
American Law," 20.]

The colonial bench was weaker than the colonial bar. Judicial
station was at first always, and later often, a mere incident of
political office. When judges were appointed whose functions
were wholly judicial, their selection was largely dictated by
political considerations or executive favor. Few of them were
really learned in the law. Of the bar many were. That of
Massachusetts did not conceal its disapprobation when
Lieutenant-Governor Hutchinson, although he had never been a
member of it, was appointed Chief Justice in 1760. None of the
judges of the first Superior Court in that colony were
lawyers.[Footnote: Winsor, "Narrative and Critical History of
America," V, 166.] In some of the others the Governor was the
Chancellor, and in Maryland he was at one time the Chief Justice
also.[Footnote: Steiner, "Maryland's First Courts," Reports of
American Historical Association for 1901, 211; Osgood, "The
American Colonies in the Seventeenth Century," I, Chap. II; II,
Chap. XII.] In several the judges were appointed during the
king's pleasure, and the Governor removed them at his discretion,
without any notice or hearing.[Footnote: Bancroft, "History of
the United States," II, 279. A notable instance of a removal in
consequence in part, at least, of a decision as to the royal
prerogative, not relished by the Governor, was the case of Chief
Justice Lewis Morris of New York, in 1733. Documents relating to
the Colonial History of New York, V, 948; VI, 4, 8, 951.]

In those colonies which were provided by charter with a Court of
Assistants, this body soon came to act as a judicial court. This
took place in the colony of Massachusetts Bay as soon as the seat
of the company's government was transferred from England to
America, and took place as a matter of course. Divisional courts
were frequently held by part of the assistants, with original
jurisdiction of minor causes, and all sat semi-annually, or
oftener, to try larger ones and hear appeals.[Footnote: Noble,
"Records of the Court of Assistants of Massachusetts Bay," I,
Preface; Publications of the Colonial Society of Massachusetts,
III, 317.]

In Connecticut, appellate jurisdiction was originally retained by
the General Assembly, but when the docket became too crowded,
resort was occasionally had to the appointment of a special and
temporary commission of appeals to clear it off. As early as
1719, one was constituted for this purpose to hold office for two

No colony set up a permanent supreme court with full appellate
jurisdiction. None probably cared to do this, and none probably
thought that it could. The Lords of Trade and Plantations would
have rightly thought such a step hardly consistent with the
maintenance of their revisory and controlling powers. It would
have been too costly to allow two appeals; and for them to
reverse a judgment of a colonial supreme court would have been
more distasteful to Americans than the exercise of a similar
power as to a court professedly of superior, not supreme,

New York had a court named Supreme, but its business was largely
the trial of original causes, and the Governor and Council
claimed the right of reviewing its judgments. The judges in 1765
denied the existence of such a right, but the King in Council
decided against them.[Footnote: Hunt, "Life of Edward
Livingston," 26.]

As soon as regular judges, not members of other departments of
the government, were appointed for the highest court, they were
generally required to perform circuit duty in the various
counties during part of each year.[Footnote: See
"Am. Hist. Review," III, 44.] This was a leading feature of the
judicial establishment set up in 1686 under Sir Edmund Andros for
the "Dominion of New England."[Footnote: Col. Rec. of Conn., III,
402, 411.]

South Carolina, for a hundred years, centered all her judicial
business at Charleston. No courts sat anywhere else and all the
lawyers in the State resided in the city. In the latter part of
the eighteenth century she followed the other colonies in
establishing a circuit system and county courts.[Footnote: Morse,
"American Universal Geography," ed. 1796, 690; Osgood, "The
American Colonies in the Seventeenth Century," II, 279, 300.]

There was occasionally some little approach to English form when
the colonial judges went on the circuit. In Massachusetts the
sheriff or his deputy was accustomed to come out from the court
town to meet the judges as they approached it, to open a term of
court.[Footnote: "Life and Works of John Adams," II, 280. See
Chap. XIII.]

Acts of Parliament directly affecting procedure in American
courts, and unifying its methods in some particulars, were
occasionally passed during the colonial era. Such was the Act of
1732 (V, Geo. II, Chap. VII), making affidavits taken in England
admissible in any suit in an American colony to which an
Englishman might be a party, and providing that all American real
estate (including negro slaves employed upon it) should be
subject to be levied on for any debts of the owner, although real
estate in England could only be taken for debts of a particular
kind.[Footnote: Connecticut promptly passed a statute extending
the new remedy thus given, so as to authorize the sale of land
belonging to the estate of a deceased person, to pay his debts,
if he did not leave sufficient personal estate for that purpose.
Col. Rec. of Conn., VII, 444.] Other English statutes, passed
after the settlement of the colonies, and not in terms applying
to them, were often adopted here, either by the enactment of
colonial statutes to the same effect or by incorporation into our
common law by tacit consent, as interpreted by the
courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
489, 494.]

The benefit of the writ of _habeas corpus_, which, though
issuable at common law, really first took its present shape in
1679, by the Act of 31 Charles II, Chap. II, was thought in this
country, though not by the Lords of Trade and Plantations, to be
a privilege of Americans, as British subjects. In some colonies
this statute was re-enacted, or, as in Virginia, rights under it
conceded under the royal prerogative. In others, as in Maryland,
it was treated as being, by tacit adoption, the birthright of the
inhabitants. In the "Declaration and Resolves" of the first
Continental Congress, they assert "that the respective colonies
are entitled to the Common Law of England," and in the address to
the people of Great Britain they complain that the English
settlers in Canada "are now the subjects of an arbitrary
Government, deprived of Trial by Jury, and when imprisoned cannot
claim the Benefit of the _Habeas Corpus_ Act, that great
Bulwark and Palladium of English Liberty."[Footnote: Journals of
Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
Colonies," American Historical Review, VIII, 18.]

The same sentiments dictated the terms of the Ordinance of 1787,
under which our first Territories were to be organized. One of
its leading provisions was this:

ART. 2. The inhabitants of the said territory shall always be
entitled to the benefits of the writ of _habeas corpus_,
and of the trial by jury; of a proportionate representation of
the people in the legislature, and of judicial proceedings
according to the course of the common law.

A recognized system of jurisprudence had, under the circumstances
and from the causes which had been stated, begun to grow up
before the Revolution. It might fairly be called American, but
it was thoroughly English by heredity, and had been shaped by a
long succession of English influences, and steadied by the firm
hand of English power.

The Revolutionary War made everything connected with the law of
England distasteful to the people at large. The lawyers knew its
value: the community did not. Public sentiment favored an
American law for America. It was quickened by the unfriendly
feeling toward the mother country which became pronounced toward
the close of the eighteenth century and culminated in the War of
1812. Several of the States, New Jersey leading off, passed
statutes forbidding the citation, in the argument of causes, of
any decisions of the English courts made since the Declaration of
Independence. Under one of these Henry Clay, in 1808, was
stopped by the Supreme Court of Kentucky when reading in argument
from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
Boffman, Hardin's Rep., 348, 364.] but after a few years,
legislation of this kind, while it might remain formally
unrepealed, was treated as obsolete both by court and
bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
I, 613 (1807).]

In courts held by unlearned judges, also, English law-books were
lightly considered. One of this kind was Chief Justice
Livermore, of New Hampshire. Shortly after the close of the
Revolution, while presiding on the bench, he stopped a lawyer who
was reading from one with the inquiry whether he thought that the
members of the court did not "understand the principles of
justice as well as the old wigged lawyers of the dark ages
did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]

But whether cited or not from their original sources, the settled
doctrines of English law were sure in the end to permeate both
bar and bench in every State.

The Roman law and the law of nations were studied in preparation
for admission to the American bar more generally and more
thoroughly in the years immediately preceding and following the
Revolutionary era than they have been since.[Footnote: See
Chap. XXIII.] The law student was also set then to reading more
books on English law than he is now.[Footnote: See Report of the
American Bar Association for 1903, p. 675.] He learned his
profession by the eye and not by the ear. His only lectures were
the occasional arguments on a demurrer or writ of error which he
might hear in the court room, and these were a reiteration of
rules laid down in English law-books.

The reason why he read more of Roman law than is now required in
legal education was mainly that there was more time for it, since
of English law reports there were then few, and of American none.

When the Revolution broke out it also became important in helping
to explain the practice in prize courts. These were set up (or
existing common law courts invested with admiralty jurisdiction)
in all the States, and American privateers gave them not a little
business. In order to secure uniformity of decision in matters
so directly affecting our foreign relations, the Continental
Congress claimed the right to exercise appellate functions,
through a standing committee of its members, and in 1780
organized a formal court for the purpose, styled "The Court of
Appeals in Cases of Capture." Three judges were appointed and
provided with a register and seal. They held terms at Hartford,
New York, Philadelphia and Richmond during the next six years.
On an average about ten cases were disposed of annually, and the
decisions were generally conceded to have been fair and well
supported by the rules of admiralty and the law of
nations.[Footnote: See Jameson, "Essays on the Constitutional
History of the United States," I; J. C. Bancroft Davis, "Federal
Courts Prior to the Adoption of the Constitution," 131 United
States Reports, Appendix, XIX.]

The influence of French ideas was strong in shaping constructive
work in American politics, as the colonies passed into States;
but aside from the separation of the judicial department from the
executive and legislative it had little effect upon the courts
until the opening of the nineteenth century. Then the principles
of the Roman law, particularly as presented and illustrated by
the French jurists, were seized upon by Kent and Story, and
served greatly to expand and enrich our jurisprudence.[Footnote:
"Memoirs and Letters of James Kent," 117.]

The course of events which has been sketched left certain ideas
in regard to the position and powers of the judiciary with
respect to the other branches of the government firmly imbedded
in the American mind. These may be thus summarized:

Judges were to proceed according to established rules, so far as
established rules might exist.

They were to proceed in analogy to established rules as to points
which no established rule might cover.

They were to look to the common law and political institutions of
England to determine what rules were established, as to points
not covered by local usage or legislation.

Local usage or legislation might, within certain limits, depart
from the common law and even from the political institutions of

There were limits to such departure, and a colonial statute or
judgment which transgressed them could be annulled or set aside
by a higher authority.

This higher authority might be judicial or political, or one
which shared both judicial and political functions.

* * * * *



From the colonial system of legislatures by which all the powers
of government were at times exercised to the modern American
State, with its professed division of them into three parts, and
assignment of each to a distinct department, was a long step.

So far as the United States were concerned, the weakness of the
government under the Articles of Confederation had been
universally acknowledged and was generally thought to come in
part from throwing whatever powers the States had granted, in a
mass, into the hands of the Continental Congress. Nevertheless,
the Constitution of the United States is not framed upon the
principles of a strict tripartite division. It places the
executive power in the hands of the President, all the
legislative powers which were granted by it in Congress, and the
judicial power in certain courts; but it does not follow the
earlier State Constitutions in declaring that whatever was vested
in either of these three depositaries was and must always be
different in kind from that vested in any other of them.

On this point Virginia set the fashion, but the sonorous phrase
of the Massachusetts Constitution of 1780 is the most familiar,
in its declaration (Part the First, Art. XXX) that "in the
government of this commonwealth, the legislative department shall
never exercise the executive and judicial powers, or either of
them; the executive shall never exercise the legislative and
judicial powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or either of them;
to the end it may be a government of laws, and not of
men."[Footnote: The last declaration of purpose was taken from
Harrington's _Oceana_, in which it is said that while a
monarchy is an empire of men, "a commonwealth is an empire of
laws and not of men." Works, London ed., 35, 42, 224.]

It was from an unwillingness to commit themselves to such a
principle that the people of Connecticut and Rhode Island
preferred for many years to be governed in the old way by their
legislatures, without a written constitution. During this
period, the General Assembly of Connecticut repeatedly exercised
the power of setting aside judgments of courts, and its right to
do so was sustained by the Supreme Court of the United
States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3
Dallas' Reports, 386.]

The courts of the United States were called upon at an early day
to determine how far Congress could invest them with functions
that were not judicial or not to be performed in a judicial
manner. An act was passed requiring the Circuit Courts to pass
upon claims for invalid pensions, their decisions to be subject
to review by Congress. The performance of this duty was
declined, and the attempt to put a judgment of a court under the
control of the legislature made the refusal so plainly proper
that the act was repealed at the next session.[Footnote:
Hayburn's Case, 2 Dallas' Reports, 409.]

It was easier for the United States to maintain from the first
this general scheme for the division of power than for the early
States. Their people had grown up under too different a plan of
government. It had become so familiar to them that they could
hardly believe that it had been abolished. Tradition for them
interpreted their new Constitutions and overmastered them. The
State legislatures therefore continued for a time to claim some
control over the judiciary, or at least a right to criticise and
censure its doings.[Footnote: See Chap. VII.]

In many of our State Constitutions, after providing for a
distribution of powers between three separate departments,
instead of absolutely prohibiting any of them from exercising any
power properly belonging to either of the others, it is declared
that this shall not be done, except as may be expressly allowed
in subsequent articles.

Such a declaration was proposed in the draft of the Constitution
of Connecticut, reported to the convention which framed it in
1818; but on objection it was struck out.[Footnote: Journal of
the Constitutional Convention of Connecticut, pp. 78, 55.] It
was thought better to leave the relations of the departments to
each other to be worked out in practice, and for nearly eighty
years afterward the legislature continued to exercise some
judicial power. It sometimes gave equitable relief to carry out
a charitable purpose in a will, which would otherwise fail. It
interfered repeatedly in probate proceedings. It released
sureties in judicial recognizances. It set aside judgments.
[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315;
Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of
the Supreme Court of Errors sanctioned the practice;[Footnote:
Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898
the court overruled its former opinion, and held that as the
three departments were made separate and distinct, it needed no
express constitutional declaration to prevent either from
invading the province of the other, and so that no power not
judicial in its nature could be conferred upon the
courts.[Footnote: Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080.]

But may not a power be judicial in its nature and yet not wholly

It is practically impossible to establish in every instance a
plain line of demarcation between legislative, executive and
judicial functions.

Courts, for instance, make rules of practice. In one sense this
is a judicial act, because it is one appropriate for the
judiciary. In another point of view it is an act of legislation.
In nothing does it resemble the act of judging a litigated cause.

Impeachments are both political and judicial proceedings, but
American constitutions leave them wholly to the legislative

Franchises to exist as an artificial person are the proper
subjects of legislative grant, but with the growing insistence in
our Constitutions on absolute equality of right, they are now
almost everywhere given only by general laws. Such a law will
offer incorporation for certain purposes to any who choose to
avail themselves of the privilege by fulfilling certain
conditions and filing certain papers in a public office. But
what shall be the nature of this office, and who shall decide
whether these conditions have been fulfilled and these papers
filed? The legislature may select an executive, a legislative,
or a judicial office. It may entrust this power of decision to
an executive, a legislative, or a judicial officer. It has, in
fact, in some States, entrusted it to a court, and authorized it,
if it decided in favor of those claiming incorporation, not only
to record the decision, but to issue the paper which shows that
they are entitled to possess and enjoy the franchise.

It is safe to assert that in no State are the functions of the
courts purely judicial. Many belonging to the administration of
the methods of political government are in all intrusted to
judicial officers either originally or by way of review. Some of
these concern such matters of internal police, as the enforcement
of laws to preserve the public health or to regulate the sale of
intoxicating liquors, and the establishment and repair of
highways.[Footnote: Application of Cooper, 22 New York Reports,
67, 82, 84; Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._
New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter,
960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477;
Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North
Eastern Rep. 381.] Instead of creating a system of bureaus and
prefects, we have adhered to the English plan of administering
local and county concerns through justices of the peace, courts
of quarter-sessions, and county or parish courts.[Footnote: See
Maitland, "Justice and Police," 85.] Of the affairs committed to
such authorities some pertain to the conduct of elections, and
courts are frequently empowered to appoint election officers or
clerks, because it is felt that thus a wise impartiality in
selection can best be attained.[Footnote: People _v._
Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596;
56 American Reports, 793; _Ex parte_ Siebold, 100
U. S. Reports, 371, 397.]

It is vital to the proper working of government under a written
constitution that these constitutional restrictions on the powers
of the courts should not be too strictly interpreted. Every step
in the progress of civilization makes this the more obvious. No
absolute trinity of governmental form can be maintained in human
society, as the relations of each individual to his fellows, and
of the State to all, become, and necessarily become, more
numerous and complicated. In every State that department which
in practice proves the strongest will push its jurisdiction

It may be said, in view of its now established power to decide
between higher and lower forms of law,[Footnote: See Chap. VII.]
that the judiciary has proved the strongest. The legislature, as
has been stated, have found it a convenient depositary of many
quasi-legislative and quasi-executive functions, and this also
has largely increased its power.

The theory of the French philosophers that all the powers of
government could be divided into three parts, each bearing a name
descriptive only of itself, is not supported by the practical
experience of Americans. There are functions that might as well
be assigned to one of these parts as to another, or made into a
fourth and called administrative.[Footnote: Under authority of
her present Constitution, Virginia in 1904 organized a State
Commission for the Supervision of Corporations, which has both
judicial and administrative functions.]

The Constitution of the United States recognizes this in effect.
It makes the Senate an executive council, as well as a
legislative chamber. It allows Congress to vest the appointment
of any inferior officers in the courts (Art. II, Sec. 3). In
practice this power has been freely used.

The Supreme Court of the United States has had occasion to
consider this question in connection with the statutes defining
the jurisdiction of the Circuit Courts. It extends to certain
"suits." But what is a suit? It is not necessarily a proceeding
at common law or in equity or admiralty. It may be a statutory
process. "Even," they say, "an appeal from an assessment, if
referred to a court and jury, or merely to a court, to be
proceeded in according to judicial methods, may become a suit
within the act of Congress."[Footnote: Upshur County _v._
Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding
by the government to take land for public use on payment of due
compensation, they observe that "the general rule with regard to
cases of this sort is, that the initial proceeding of
appraisement by commissioners is an administrative proceeding,
and not a suit; but that if an appeal is taken to a court, and a
litigation is there instituted between parties, then it becomes a
suit within the meaning of this act of Congress."[Footnote:
_Ibid_., 475.]

In one point of considerable importance express constitutional
provisions generally narrow the jurisdiction of American, as
compared with English courts. Each house of the legislature is
made the final judge of the returns and qualifications of its
members. In England, election contests as to a seat in the House
of Commons has been made by Act of Parliament the subject of
judicial determination. This avoids partizan decisions and is so
far good. It diminishes, however, the independence of the
legislative house in which the seat is contested. This is
jealously guarded by our traditions as well as our Constitutions.
The practice of wearing hats during the sessions of the House of
Commons was an expression of the early feeling of the English
Commons on this subject. They would not uncover before speaker
or king. In some of the early American legislatures the same
thing was done. Hats were occasionally worn in the House of
Representatives at Washington as late as the second quarter of
the nineteenth century.[Footnote: Hunt, "Life of Edward
Livingston," 301. They were worn in the Continental Congress on
occasions of ceremony. McMaster, "History of the People of the
United States," I, 105.]

On the other hand, American courts interfere more readily than
the English to protect a citizen from arrest by legislative
authority. Each house of the British parliament has large
inherited powers over those who may treat it with contempt. Each
house of an American legislature has some powers of this
description, but they are far narrower ones.[Footnote: Kilbourn
_v._ Thompson, 103 U. S. Reports, 168.]

* * * * *



Courts of Claims are the only permanent special courts for the
disposition of causes arising from the acts of public
officials.[Footnote: One exists for the United States; and one
for New York.] The system of administrative law prevailing on
the Continent of Europe, by which all such matters are withheld
from the ordinary tribunals, is totally unknown here. If the
Secretary of War of the United States should do some act to a
private citizen, which may be justified by his official powers,
but otherwise would not be, he may be summoned to answer for it
before any civil court having jurisdiction of the parties. So
may even the President of the United States be sued after the
expiration of his term.

The President, while President, however, cannot be compelled to
obey a summons to appear in court. The country cannot spare him
to go here and there in obedience to a writ. Chief Justice
Marshall issued one against President Jefferson, directing him to
appear at the trial of Aaron Burr and bring with him a certain
paper. Jefferson declined to obey, and there was no attempt to
enforce the subpoena. Had there been, it would have been found
that he had taken measures for his protection.[Footnote: Thayer,
"John Marshall," 79.] Marshall's action was based on an
admission by the counsel for the government that a summons to
testify could lawfully issue, though they denied that it could be
accompanied by a direction to produce documents. This admission
is now generally thought by the legal profession to have been
ill-advised. If the President could be summoned at all, he could
be compelled to obey the summons, and nothing could be more
unseemly or inadmissible than an attempt of that nature by the
judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the
disposition of causes against individuals in the United States,
considered as a collection of States or of people within those
States, more freedom has been used by Congress in providing for
the Territories. This has been conspicuously the case in regard
to the Philippines. By the Act of Congress of July 1, 1902, they
were left under the supervision of the War Department, in which
there was constituted a "Bureau of Insular Affairs," the business
assigned to which "shall embrace all matters pertaining to civil
government in the island possessions of the United States subject
to the jurisdiction of the War Department; and the Secretary of
War is hereby authorized to detail an officer of the army whom he
may consider especially well qualified to act under the authority
of the Secretary of War as the Chief of said Bureau." The
officer filling the position of chief published in 1904 this
account of the practical working of the provisions made for the
disposition of matters of legal controversy occurring on the
islands: "The establishment of a judicial system in the
Philippines affords a means for the adjudication of litigated
questions between the inhabitants and of many questions
respecting the jurisdiction and authority of officials of that
government. Whenever possible, controversies are referred to
those tribunals. In some instances questions have arisen
affecting the action or authority of officers of the executive
department of that government in matters controlled by the
discretion of the administrative branch and affecting the
administration of civil affairs. These questions are considered
and determined by the War Department, upon investigation and
report by the law officer."[Footnote: _National Geographic
Magazine_ for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an
administrative or political nature for calling public officers
directly to account for a breach of public duty are our courts of
impeachment. These act only occasionally, and when specially
convened for the purpose of hearing charges against a particular
individual. They do not grant relief to any party injured by the
wrongful acts which are the subject of the accusation. They sit
only to punish the public wrong.

In constituting courts of impeachment, the control of the cause
is generally given to officers of the legislative department, but
judicial officers are often joined with them. Such a tribunal
was long maintained in New York, of which the senators formed the
majority, but in which the chancellor and judges of the Supreme
Court also sat. The first Constitution of South Carolina,
adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying
impeachments, but should the Governor be thus brought before
them, the Chief Justice is added to it, and presides. A similar
provision is contained in the Constitution of the United States
as respects the President. The main reason for putting such a
proceeding under judicial direction is to avoid giving the second
in rank of the executive magistracy, whose function it generally
is to preside over the Senate, a position of authority over his
chief, in a proceeding which, if successful, would put him in his
place. It also, of course, tends to promote a trial in
accordance with all the rules of law. The court in such a
proceeding cannot be regarded as fully organized until the Chief
Justice is present. It is then first competent to prescribe the
rules to govern it during the progress of the cause. This was
the ruling of Chief Justice Chase on the impeachment of President
Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in
judicial power, but her judges a share in that of legislation.
Her Constitution of 1777 provided for a council of revision,
consisting of the Governor, the Chancellor, and the judges of the
Supreme Court, to whom all bills which passed the Senate and
Assembly should be presented for consideration; and that if a
majority of them should deem it improper that any such bill
should become a law they should within ten days return it with
their objections to the house in which it originated, which
should enter the objections at large in its minutes, and proceed
to reconsider the bill; and that it should not become a law
unless re-passed by a vote of two-thirds of the members of each
house. For forty years this remained the law, and the Council of
Revision contained from time to time judges of great ability,
Chancellor Kent being one. During this period 6,590 bills in all
were passed. One hundred and twenty-eight of them were returned
by the Council with their objections, and only seventeen of these
received the two-thirds vote necessary to re-enact
them.[Footnote: Poore, "Charters and Constitutions," II, 1332,
1333, note.]

An obvious objection to this method of legislation is that the
judges who, as members of a council of revision, find nothing
objectionable in a bill presented for their scrutiny, must
naturally have a certain pride of opinion to conquer before,
should its constitutionality become afterward the subject of
litigation before them, they could be in a frame of mind to
render an unprejudiced judgment. One of the bills which came
under the eye of Chancellor Kent as a member of the Council was
afterward the source of controversy before him in court. He
adhered to his original views, but was overruled by the Supreme
Court of the United States. Chief Justice Marshall gave the
opinion, and half apologetically alluded to this circumstance in
these words:

The State of New York maintains the constitutionality of these
laws; and their legislature, their council of revision, and
their judges, have repeatedly concurred in this opinion. It is
supported by great names--by names which have all the titles to
consideration that virtue, intelligence, and office can bestow.
No tribunal can approach the decision of this question without
feeling a just and real respect for that opinion which is
sustained by such authority; but it is the province of this
court, while it respects, not to bow to it implicitly; and the
judges must exercise, in the examination of the subject, that
understanding which Providence has bestowed upon them, with
that independence which the people of the United States expect
from this department of the government.[Footnote: Gibbons
_v._ Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end--the views of the judges in
advance of the enactment of a law--in a different way, has been
from the first quite common. This is for the legislature to ask
them specially for their opinion as to the constitutionality of a
bill before it is put upon its passage. An analogous practice
has always obtained in England, and was followed in several of
the colonies.

Some of our State Constitutions expressly authorize such
proceedings. In the absence of such authority, the judges can
properly decline to comply with the request. It always asks them
to prejudge a question which may later come before them in court,
and to prejudge it without hearing any of the parties whom it may
affect injuriously.[Footnote: See the Reply of the Judges of the
Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind
before the justices of the Supreme Court of the United States.
It was during the controversy with M. Genet, the French minister,
as to his right to refit a captured English merchantman as a
privateer at an American port, and then send her out for a
cruise. By the advice of his Cabinet, the President asked the
justices a series of questions comprehending all the subjects of
difference as to the proper exposition of the provisions of our
treaties with France under which her minister made claim. They
replied that they deemed it improper to enter the field of
politics by declaring their opinions on questions not growing out
of some case actually before them.[Footnote: Marshall, "Life of
Washington," V, 433, 441.] No further request of this kind has
since been made by any of the political departments to a court of
the United States, except such as have been addressed to the
Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give
the legislature the benefit of judicial advice at the opening of
each session as to what laws it might be desirable to enact. The
judges of her trial courts are annually to report to those of her
Supreme Court such defects and omissions in the laws as their
knowledge and experience may suggest, and the latter, after
considering these suggestions, are then, within the next five
months, to report to the Governor such defects and omissions,
both in the Constitution and in the laws, as they may find to

The duty of the judiciary, in the course of lawsuits, to compare
a statute, the validity of which is called in question, with the
Constitution, and by the decision indirectly to affect
legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving
matters affecting the foreign relations of the general
government, acknowledge in a certain degree a dependence upon the
executive department. If they have a treaty to construe, any
construction of it as to the point in question already given by
the State Department will be followed, unless plainly wrong. If
it becomes material to determine whether a certain country is
subject to a certain power, and the President of the United
States has dealt with that question (as by recognizing or
refusing to recognize a minister accredited to the United
States), his action will be accepted as conclusive. His
proceedings would have like weight if taken within the limits of
his authority with respect to the government of one of the United
States.[Footnote: Luther _v._ Borden, 7 Howard's Reports,

When questions of this nature arise in a lawsuit between private
parties, the courts can, without notice to them, seek information
by communicating directly with the Department of State. It will
be given by a letter or certificate, and this will be received as
a conclusive mode of proof or as aiding the court in taking
judicial notice of historical facts.

So an official letter or certificate from the minister or consul
of a foreign power can be received and used as evidence as to
facts in controversy peculiarly within the knowledge of that
government.[Footnote: Gernon _v._ Cochran, Bee's Reports,

In prize cases, which must all be brought before the District
Court, an appeal is allowed directly to the Supreme Court of the
United States, although the judgments of the District Court
generally are reviewable only in an intermediate court. This
secures a prompt decision by the highest judicial authority of a
question which necessarily affects, in some degree, the foreign
relations of the United States.

But there may be cases affecting a vessel claimed as a prize
which are not brought to secure her forfeiture and so are not
prize cases. They may even to a greater extent affect our
relations to foreign governments. How far can the courts, in
dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of
the Constitution. Great Britain and Spain were at war. A
British man-of-war brought a Spanish felucca into Charleston,
claiming her as a prize, and she was advertised for sale. No
proceedings to have her adjudicated a lawful prize had been taken
before any court. The Spanish consul applied to the Circuit
Court for an injunction against the sale, claiming that for the
United States to permit it would be a breach of neutrality and
contrary to the law of nations. The British consul resisted the
application on the ground that a sale could not be forbidden in
the absence of any act of Congress on the subject, except by the
President. The Chief Justice, who sat in the case, gave the
opinion, which was that there could be no lawful sale without the
permission of the United States; that it was a matter proper to
be dealt with by the President; that the court would not say how
he should deal with it; but that an injunction might issue to
stop the sale until further order, unless permission should be
sooner obtained from the President.[Footnote: Consul of Spain
_v._ Consul of Great Britain, Bee's Reports, 263.] Here,
therefore, an act which might have been a _casus belli_ was
stayed by a court until and unless the Executive should intervene
and permit it.

The extradition of criminals under a treaty on the demand of a
foreign government presents a debatable ground in respect to the
subject now under consideration. The surrender is an executive
proceeding and a political act. But the laws may provide for a
preliminary inquiry before a court into the propriety of
complying with the demand. They certainly provide for a judicial
proceeding by writ of _habeas corpus_ to release any one
arrested in such a proceeding if held without due cause. Is the
court before which either of these proceedings may be had at
liberty to receive advice or submit to instructions from the
President of the United States?

This question stirred the country to its depths in 1799. Great
Britain applied to our government for the extradition of a seaman
who claimed to be an American citizen and was charged with
committing murder on a British man-of-war. He was arrested in
South Carolina, under a warrant from the District Judge, and
lodged in jail. There was a treaty of extradition between the
two powers covering cases of murder, but no particular machinery
had been provided for regulating the surrender. The British
consul asked the judge who had made the commitment to order his
delivery to him. The judge doubted his power to do so.
Thereupon the Secretary of State, by authority of the President,
wrote him that the President advised and requested him to make
the surrender, if satisfied with the proofs of criminality, as he
(the President) was of opinion that any crime committed on a
man-of-war was committed within the territory of the power to
which it belonged. The judge complied with this request, after a
public hearing on a writ of _habeas corpus_, under which he
ordered the man in question to be brought before him, and in the
course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in
Congress, but the President's course was ably and conclusively
defended by Marshall on the floor of the House,[Footnote: United
States _v._ Nash _alias_ Robins, Bee's Reports, 266;
Robbins' Case, Wharton's State Trials, 392.] and the course
pursued has since been followed in substance by our extradition
statutes.[Footnote: United States Revised Statutes, Secs. 5270,
5272.] These provide for a hearing of a judicial character, and
then, if that results in a determination that a surrender should
be made, it may be ordered on a warrant from the State

On the other hand, the peculiar provision of the Constitution of
the United States which makes treaties the supreme law of the
land calls upon the courts to enforce them according to whatever
interpretation they may conclude to give them, even if it should
differ from that adopted by the President or the State
Department. If a treaty prescribes a rule by which the rights of
private individuals are to be determined, and those rights are
such as can be appropriately made the subject of a lawsuit, the
court before which it may be brought has as full authority to
construe the treaty as it would have to construe an act of
Congress, were the matter in controversy one of a statutory
nature. They cannot be appropriately made the subject of a
lawsuit so long as the questions involved are under active
consideration in the course of diplomatic negotiation and pending
for decision before the President. Let him, however, once make
his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our
controversy with Great Britain over the seal fisheries in Behring
Sea. There was a serious dispute between the two governments as
to the limits of our jurisdiction over the waters adjacent to
Alaska. We maintained that it ran to the middle of Behring's
Straits and from the meridian of 172 deg. to that of 193 deg. west
longitude. Great Britain contended for the three-mile limit.
Pending diplomatic negotiations as to this point, one of our
revenue cruisers seized a Canadian vessel which was engaged in
seal fishing nearly sixty miles from the Alaskan coast, and she
was condemned, on a libel by the United States, by an admiralty
court in Alaska.

The owner in 1891 applied to the Supreme Court of the United
States for a writ to prohibit the enforcement of this decree of
confiscation. The Attorney-General of Canada filed in this suit
papers in aid of the application, stating that he did so with the
knowledge and approval of the imperial government, and that he
would be represented by counsel employed by the British minister
resident. The writ was refused on technical grounds, but the
court, through Chief Justice Fuller, made these observations as
to the merits of the cause:

In this case, Her Britannic Majesty's Attorney-General of
Canada has presented, with the knowledge and approval of the
Imperial government of Great Britain, a suggestion on behalf of
the claimant. He represents no property interest in the
vessel, as is sometimes done by consuls, but only a public
political interest. We are not insensible to the courtesy
implied in the willingness thus manifested that this court
should proceed to a decision on the main question argued for
the petitioner; nor do we permit ourselves to doubt that under
such circumstances the decision would receive all the
consideration that the utmost good faith would require; but it
is very clear that, presented as a political question merely,
it would not fall within our province to determine it.... We
are not to be understood, however, as underrating the weight of
the argument that in a case involving private rights, the court
may be obliged, if those rights are dependent upon the
construction of acts of Congress or of a treaty, and the case
turns upon a question, public in its nature, which has not been
determined by the political departments in the form of a law
specifically settling it, or authorizing the executive to do
so, to render judgment, "since we have no more right to decline
the jurisdiction which is given than to usurp that which is not
given."[Footnote: _In re_ Cooper, 143 United States
Reports, 472, 503.]

In the following year a convention was concluded between the
United States and Great Britain for the submission of the
question of our jurisdiction over Behring's Sea to arbitration.
The arbitration took place and the award supported the British
contention. Congress passed an act to give it full effect. The
convention provided in terms that "the high contracting parties
engage to consider the result of the proceedings of the tribunal
of arbitration as a full, perfect and final settlement of all the
questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel
engaged in the seal fishery outside the three-mile limit was
seized by one of our revenue cutters. A libel was filed by the
United States in the admiralty court for Alaska and she was
condemned. Her owners appealed to the Circuit Court of Appeals,
on the ground that the seizure was made outside of the
jurisdiction of the United States. If so, they were entitled to
her release. The court held that the limits of this jurisdiction
were conclusively settled by the award, and thus adverted to the
claim that they should treat the case as the Supreme Court of the
United States had dealt with that which followed the seizure of
the year before:

This question has been settled by the award of the arbitrators,
and this settlement must be accepted "as final." It follows
therefrom that the words "in the waters thereof," as used in
section 1956, and the words "dominion of the United States in
the waters of Behring Sea," in the amendment thereto, must be
construed to mean the waters within three miles from the shores
of Alaska. In coming to this conclusion, this court does not
decide the question adversely to the political department of
the government. It is undoubtedly true, as has been decided by
the Supreme Court, that, in pending controversies, doubtful
questions which are undecided must be met by the political
department of the government. "They are beyond the sphere of
judicial cognizance," and "if a wrong has been done, the power
of redress is with Congress, not with the judiciary." The
Cherokee Tobacco, 11 Wall., 616-621. But in the present case
there is no pending question left undetermined for the
political department to decide. It has been settled. The
award is to be construed as a treaty which has become final. A
treaty when accepted and agreed to becomes the supreme law of
the land. ... The duty of courts is to construe and give
effect to the latest expression of the sovereign will; hence it
follows that, whatever may have been the contention of the
government at the time _in re_ Cooper was decided, it has
receded therefrom since the award was rendered, by an agreement
to accept the same "as a full, complete, and final settlement
of all questions referred to by the arbitrators," and from the
further fact that the government since the rendition of the
award has passed "an act to give effect to the award rendered
by the tribunal of arbitration."[Footnote: The La Ninfa, 75
Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be
noticed that this result was reached in a suit by the United
States in one of their own courts, in which the claim of the
government was one of territorial boundary, and yet that the
court overruled the claim and threw out the suit on the strength
of an award made in pursuance of the law of the land. The treaty
was the law. This law provided for the award and made it,
whichever view should be adopted, final. It was therefore for
the court to accept it as final, even against the resistance of
the political department of the government, and do justice

The courts before the Revolution, and in some States for half a
century after it, served as a kind of political mouthpiece. The
institution of the grand jury[Footnote: See Chap. XVII.] afforded
the means. Those composing it are personally selected by the
sheriff from the principal men in the county. It is the duty of
the court to instruct them at the opening of the term which they
are summoned to attend as to the law and practice governing the
exercise of their functions. Frequently this charge was prefaced
by an harangue from the judge on the social, moral, religious or
political questions of the day.[Footnote: "Life and Works of John
Adams," II, 169.] To this the grand jury were not backward in
responding with compliments and perhaps presentments.

In Massachusetts they went even further in 1774. The House of
Representatives of the Provincial Assembly impeached the Chief
Justice for accepting a salary from the Crown instead of relying
on legislative grants, as had been the practice. The Council
before which the articles were exhibited declined to entertain
them. The people, however, felt that the House was right, and
this sentiment was manifested at the next sessions of the courts
by the grand and petit juries in every county. They refused to
take the oaths and stated that they could not take part in
proceedings presided over by a judge who was under impeachment.
No business was done in court until the following year, when,
after the battle of Lexington, new judges were appointed by the
Council.[Footnote: "Life and Works of John Adams," II, 332; X,
240; "Principles and Acts of the Revolution," 100.]

Sometimes the laws of the State were criticised in this way by
judge and jury.

In December, 1788, a grand jury in South Carolina made this

We present as a grievance of the greatest magnitude the many
late interferences of the legislature of the State in private
contracts between debtor and creditor. We should be wanting in
our duty to our country and regardless of the obligation of our
solemn oath and the high trust at this time devolving upon us
by operation of the laws of the land, did we omit this occasion
between the expiration of one legislature and the meeting of a
new representative body, to express our utter abhorrence of
such interferences.[Footnote: "American Museum," VII, Appendix
II, 10. _Cf. ibid._, 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History
of the People of the United States," II, 229.] or acts of
Congress were formerly attacked. In 1819, the action of the
House of Representatives as to the introduction of slavery in
Missouri was the subject of a warm protest from a grand jury in
that territory, which closed thus:

They hope those restrictions will never more be attempted; and,
if they should, they hope by the assistance of the genius of
'76 and the interposition of Divine Providence to find means to
protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently
presented as grievances in the South during the years preceding
the nullification movement in South Carolina.[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of the
American Historical Association for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance
the suspension of Commodore Porter from duty for six months under
sentence of a naval court martial, approved by the Secretary of
the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
grand jury in Tennessee presented a "protest against the bold and
daring usurpations of power by the present Executive of the
United States" (John Quincy Adams), and stated that "being
decidedly opposed to the present administration, we have for
ourselves resolved to oppose all those we have just reason to
suspect to be friendly thereto, and recommend the same course to
all our fellow-citizens of Blount County."[Footnote: Niles'
Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to
a grand jury with a long statement of the justice of the
Revolution, its military successes, and the duties of patriotism.
The court thereupon ordered "That the political part of the Chief
Justice's charge" be forthwith printed.[Footnote: Principles and
Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a
similar occasion to comment with severity on those who had
opposed the ratification of the Constitution of the United
States. Jealousy had done much to poison their minds, he said,
"for it is observable that throughout the whole of the United
States a majority of the leaders of the opposition to our newly
adopted government are not natives of our soil; hence this
pernicious quality of the mind displays itself more widely in
America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for
Governor of Massachusetts, a Federalist newspaper reported
approvingly a charge of Chief Justice Dana of that State. He had
been an ardent politician before going on the bench and had
declined a nomination as minister to France during the preceding
year. "The learned judge," said the Boston _Centinel_, "in
a forcible manner proved the existence of a French faction in the
bosom of our country and exposed the French system among us from
the quintumvirate of Paris to the Vice-President and minority of
Congress as apostles of atheism and anarchy, bloodshed and
plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
"Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States
made several charges in Maryland hardly less objectionable, one
of which was afterward unsuccessfully set up by the House of
Representatives as a ground of his impeachment. The article
stating it described the charge as "an intemperate and
inflammatory political harangue with intent to excite the fears
and resentment of the said grand jury and of the good people of
Maryland against their state government and Constitution." He
had, indeed, used this language:

You know, gentlemen, that our State and national institutions
were framed to secure to every member of the society, equal
liberty and equal rights; but the late alteration of the
federal judiciary by the abolition of the office of the sixteen
circuit judges, and the recent change in our State
constitution, by the establishment of universal suffrage, and
the further alteration that is contemplated in our State
judiciary (if adopted) will, in my judgment, take away all
security for property and personal liberty. The independence
of the national judiciary is already shaken to its foundation,
and the virtue of the people alone can restore it. The
independence of the judges of this State will be entirely
destroyed if the bill for the abolition of the two supreme
courts should be ratified by the next general assembly. The
change of the State constitution, by allowing universal
suffrage, will, in my opinion, certainly and rapidly destroy
all protection to property, and all security to personal
liberty; and our republican constitution will sink into a
mobocracy, the worst of all possible governments. I can only
lament that the main pillar of our State constitution has
already been thrown down by the establishment of universal
suffrage. By this shock alone the whole building totters to
its base and will crumble into ruins before many years elapse,
unless it be restored to its original state.

All this was less indefensible under the judicial practice of a
century ago than it would be now, and there were not enough votes
of Guilty on the article of impeachment founded upon it to secure
a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of
Pennsylvania was charging a Pennsylvania grand jury that the
Jeffersonians had assumed a name that did not belong to them.
"Such men," he said, "disgrace the name of Republicans by
exclusively assuming it. In their sheep's clothing they are
ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
For this, among other things, he was very properly impeached and
removed in 1803, after the Republicans came into power in that
State.[Footnote: McMaster, "History of the People of the United
States," III, 154.]

It is difficult for the American of the twentieth century to
conceive how honorable men could so have abused official
position.[Footnote: Wharton's State Trials, 376. Justice
Washington made it a rule not to enter into any political
questions in his charges unless necessary for the guidance of the
grand jury in the work before them, and until 1817, when party
feeling had moderated, not to give out copies of any charges for
publication. Niles' Register, XIII, 169.] The cause lies in the
extreme rancor which then embittered politics and debased
society. Federalists and Republicans were hardly on speaking
terms. Many who were actively engaged in politics felt compelled
to carry a sword cane for defence if attacked. Judge Addison's
charge brought out an open letter to him in a Pittsburgh
newspaper, signed by a Republican who was on the Supreme bench of
the State, expressing his astonishment that the people who heard
him "were not fired with sudden indignation and did not drag you
from your seat and tread you under foot."[Footnote: Wharton's
State Trials, 47, note.] On the other hand, at a political
banquet of the Boston Federalists, at about the same time, their
approval of Judge Dana's charges to grand juries was manifested
by this toast: "The Honorable Francis Dana, Chief Justice of the
learned Associate Judges of our Supreme Judicial Court. While
the political opinions delivered from the bench are dictated by
intelligence, integrity and patriotism, may they be as highly
respected as have ever been its judicial decisions."[Footnote:
Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior
executive officers to do specific official acts which it is their
plain duty to perform, or issue an injunction to prevent their
doing an official act which is plainly beyond their powers.
Heads of Departments of the State or the United States are
subject to this power.[Footnote: Noble _v._ Union River
Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
U. S. Reports, 466.] So in the Federal Courts are Governors of
States acting under a law repugnant to the Constitution of the
United States.[Footnote: Pennoyer _v._ McConnaughy, 140
U. S. Reports, 1.] No such writ will be issued, however, when
the case is of a political nature and involves the exercise of
any official discretion,[Footnote: Georgia _v._ Stanton, 6
Wallace's Reports, 50.] nor under any circumstances against the
President of the United States.[Footnote: Mississippi _v._
Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
cases be granted by a State court against the Governor there is a
conflict of authority.

The development of party government in the United States has led
of recent years to much legislation for the regulation of party
conventions and party organization in the interest of fair
dealing and public order. Statutes of this nature relating to
the form and heading of ballots for use at popular elections are
common. If conflicting factions contend for the right of issuing
ballots in the name of the same party, the courts may be called
upon to decide between them on an application for an injunction
or writ of mandamus. The legislature, however, may provide that
some standing agency or committee of a party shall decide finally
upon any such conflicting claims, and in such case their decision
will be conclusive upon the courts.[Footnote: State _v._
Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When title to a political office is contested, the courts, unless
there is some constitutional provision to the contrary, may be
appealed to for a decision. This is true even in respect to the
office of Governor.[Footnote: Boyd _v._ Thayer, 143
U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
is a remedy which has been, though in rare instances, abused for
party purposes.[Footnote: Such a case was the issue by a District
Judge of the United States in 1872 of an injunction-order under
which the Marshal took possession of the Louisiana State-house,
and excluded those claiming to be the legislature of the State.
Gibson, "A Political Crime," 347 _et seq._; Senate Report,
457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Constitutions
of several States, to ask the judges of the Supreme Court for
their opinion on any question of law, may throw upon them the
delicate task of deciding in a collateral proceeding who is
Governor, if the title to the office is claimed by two. This was
the case in Florida in 1869. The House of Representatives had
commenced proceedings of impeachment against the Governor. It
was on the first day of a special session of the Assembly. There
could be no such session unless a quorum was present in each
house. There were but twelve Senators in attendance. The
Lieutenant-Governor regarded the proceedings as regular, and
assumed to exercise the office of Governor pending the trial.
The Governor claimed that twelve Senators were not a quorum, and
that the proceedings were void. On these points he requested the
opinion of the Justices of the Supreme Court, and they gave one
supporting his contentions.[Footnote: 12 Florida Reports, 653.]
A few weeks later a regular session was held, at which a quorum
was present in each house, and the proceedings of the special
session were treated as void.[Footnote: S. S. Cox, "Three Decades
of Federal Legislation," 518, 520.]

In the early days of the United States, under the present
Constitution, the Chief Justices of the Supreme Court of the
United States at times filled also a political office, and so
were invested at the same time with political and judicial
functions. John Jay, the first Chief Justice, while holding that
office, was made our Envoy Extraordinary to Great Britain, and
spent a year abroad in that capacity. His acceptance of the
position, however, occasioned general and unfavorable comment.
John Marshall was both Chief Justice and Secretary of State for
five weeks, during which he held one term of the Supreme Court.
Oliver Ellsworth was both Chief Justice and minister to France at
the same time, and for a period of over a year, during which he

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