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The American Judiciary by Simeon E. Baldwin, LLD

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for the determination of the cause, asserted that an act of
Parliament "against common right and reason" could be adjudged
void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
Reports, 114, 118.] So far as there was any previous judicial
authority for this position, however, it is believed that it can
only be found in decisions made before the Reformation, on
questions arising from interference by Parliament with rights
claimed under the Church of Rome. Such questions were of the
nature of those arising under a written Constitution. The law of
the church within its province was then accepted as a supreme
law.[Footnote: Coxe, "Judicial Power and Unconstitutional
Legislation,"' 147, _et seq_.]

The rule laid down by Sir Edward Coke was accepted by the Supreme
Court of South Carolina in two early cases,[Footnote: Ham
_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
Middleton, _Ibid_., 252.] and has been substantially
repeated in some judicial opinions in other States.[Footnote: See
Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
American Decisions, 72.] In the Supreme Court of the United
States its authority was emphatically denied by Mr. Justice
Iredell, near the close of the eighteenth century,[Footnote:
Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
the full court only one member dissenting, held a State statute
void which authorized cities to issue bonds in aid of private
manufacturing enterprises, because they could only be discharged
by taxation, and to tax for such a purpose would be taking
property from all for the good of one. That, said Mr. Justice
Miller in delivering the opinion, "is none the less a robbery
because it is done under the forms of law and is called taxation.
This is not legislation. It is a decree under legislative
form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
U. S. Reports, 487, 501.]

This view of the law had been forcibly, though tentatively, put
shortly after he came to the bench by Chief Justice Marshall in a
leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
Reports, 87.] but one in which it was not necessary to decide
whether the doctrine was sound. "It may well be doubted," he
observed, "whether the nature of society and of government does
not prescribe some limits to the legislative power; and, if any
be prescribed, where are they to be found, if the property of an
individual, fairly and honestly acquired, may be seized without
compensation? To the legislature all legislative power is
granted; but the question whether the act of transferring the
property of an individual to the public be in the nature of the
legislative power is well worthy of serious reflection."

The weight of American authority is in favor of the position
taken by Iredell.[Footnote: Cooley's "Constitutional
Limitations," Chap, VII; State _v._ Travelers' Insurance
Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
57 Lawyers' Reports Annotated, 481.] Time has made it safer to
stand upon it, for since he spoke not only have our State
constitutions been generally expanded by adding important
restrictions on the legislative power, but the fourteenth
amendment has added to the Constitution of the United States a
prohibition of State laws depriving any person of life, liberty,
or property without due process of law. "Due process of law" is
an elastic term. Requiring it certainly imports that no one is
to be made to suffer in person or property unless he has had an
opportunity to claim before an impartial tribunal the protection
of his rights by the settled law of the land.

The principle of Roman law that, as custom can make law, so
disuse can destroy it has never been adopted in the United
States. No court, therefore, will pronounce a statute not to
have the force of law on the ground that it is
obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
undertook to import the doctrine into American jurisprudence, but
without effect. Hill _v._ Smith, Morris' Reports, 70;
explained and limited in Pearson _v._ International
Distillery, 72 Iowa Reports, 357.]

* * * * *



* * * * *



The State Constitutions differ fundamentally from that of the
United States in respect to the nature of the judicial
establishment. Each of the States possesses all judicial powers
belonging to any sovereignty, except so far as the people of the
United States may have provided otherwise in the Constitution of
the United States. The State Constitutions do not define those
powers. They simply commit them to certain courts and officers.
Their general language is that the judicial power is vested in a
Supreme Court and such other inferior courts as may be created by
law. On the other hand, the Constitution of the United States
defines the judicial powers of the United States exactly and
within a somewhat narrow range, investing the courts of the
United States with those powers and no others. Hence the States
require a much more complicated and extensive judicial
establishment than do the United States, for not only is the
great mass of litigated cases throughout the country to be
disposed of by State courts, but they must also pass upon by far
the greatest variety of legal questions.

In each State there is one appellate court of last
resort[Footnote: See Chap. XIX.] and several courts for the trial
of original causes. Local justices of the peace are commonly
given jurisdiction over prosecutions for petty misdemeanors, and
civil cases involving small amounts (seldom over $50 or $100),
which do not affect title to land. Then come County Courts
(often styled Courts of Common Pleas or District Courts), having
cognizance of actions involving greater sums, and to which
appeals from judgments of justices of the peace can be taken.
These generally have both civil and criminal jurisdiction.

A higher court, which may be styled a Superior Court, or Circuit
Court, often exists, with unlimited jurisdiction as respects
values in controversy, and also as to crimes, the County Courts
in such case having a limited jurisdiction in these respects.

Municipal courts are to be found in all considerable cities and
in many of the lesser municipalities, such as towns and boroughs.
City Courts often have jurisdiction over civil causes to which
one residing in the city is a party, or growing out of a
transaction occurring within the city, irrespective of the amount
of the matter in demand. They frequently have a criminal side,
before which convictions may be had for petty misdemeanors, and
those charged with higher offenses bound over for trial in some
court of general criminal jurisdiction.[Footnote: See Goodnow,
"City Government in the United States," Chap. IX.]

For the settlement of the estates of deceased persons and the
appointment and superintendence of guardians and similar agents
of the law, and proceedings in insolvency, there are in many
States special courts, known as Courts of Probate, Surrogate's
Courts, or Orphans' Courts, and Courts of Insolvency. In others
these functions belong to the County Courts.

The early practice in this country favored having several judges
hold all trial courts, whether a jury was or was not to be called
in. It was a method wasteful of time and money. In
Massachusetts it survived for their highest _nisi prius_
court until 1804. In many States it endured much longer for
County Courts.

County Courts in some States are courts only in name, except,
perhaps, for some very limited purposes. Their real functions
are administrative. Some or all of those who hold them are often
styled commissioners, and their principal duties are to manage
the general business affairs of the county.[Footnote: See
Constitution of West Virginia, Amendment of 1880; Constitution of
Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
indicates that those in that State are not fountains of law, for
it requires the district attorneys in each county, or their
deputies, to advise the County Courts "on all legal questions
that may arise." In Virginia, County Courts for a long period
were held by all the justices of the peace in the county, or such
of them as might attend. These magistrates nominated their own
successors to the Governor, who almost never refused to
commission the person so recommended. The court also nominated
the officers of militia below the rank of General, and managed
all the county affairs, besides having an extensive civil and
criminal jurisdiction, including the power of acquittal in cases
of felony. However clumsy and ill-ordered such a scheme appears,
it gave general satisfaction for a long course of years, partly
from a usage on the part of the older members of the bar who
might be in attendance to volunteer advice as _"amci
curiae"_ whenever any doubtful question of law chanced to
arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
County Courts have jurisdiction of ordinary lawsuits the judges,
or a majority of them, are sometimes without any legal training,
though this is now less common than it once was.[Footnote:
McMaster, "History of the People of the United States," III,

The Constitutions of the States generally require the existence
of a Supreme Court of last resort, and often specify also by name
one or more of inferior jurisdiction. Such courts stand on a
firmer footing than those created by the legislature under a
general power to establish inferior courts. The power to
establish implies a power to limit and to destroy. A tribunal
created by a Constitution, with functions defined in the
Constitution, is, as to these and as to its independence of
existence and action, beyond legislative control.

The Republicans in Congress were within their rights when, in
1802, they repealed the act passed by the Federalists the year
before to create a system of Circuit Courts. Those of
Massachusetts were within theirs when, in 1811, they abolished
the ancient Court of Common Pleas of that State and created a new
"Circuit Court," with fifteen judges, to take its place. Both
would have been glad to go farther and reconstitute in some way
the court of last resort, which was filled with old Federalists.
Why they did not has been frankly stated by one of them in his
account of Governor Gerry's administration:

With the Supreme Judicial Court the party did not interfere.
In respect for the authority of the Constitution this
forbearance was observed; it having been conceded after due
deliberation by men having the confidence of the dominant party
that neither the court nor the judges were within the power of
the legislature. The result was very reluctantly acceded to,
for the imposing influence of that court had been felt in the
political agitation of the times, and some of the judges, like
some ministers of the gospel, had been unwise enough to give to
the extension of their political feelings the aid directly
derived from their official authority.[Footnote: Austin, "Life
of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the
vesting of jurisdiction of small civil causes in justices of the
peace. Of these there are generally several in each town, having
jurisdiction over the whole county. Some may be lawyers. None
need be, and few are. Any one of them can try cases. Which of
them shall try any particular case is left to be determined by
the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal
prosecutions and to conduct preliminary examinations into charges
of any offence for the purpose of determining whether there is
ground for holding the accused for trial before a jury, although
even here mischief often results from their ignorance of law, and
the sufferers have little means of redress.[Footnote: See McVeigh
_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
Reporter, 701.] Such prosecutions are brought by a public
officer, who will not be apt to select an incompetent magistrate,
and has no strong motive for choosing one specially likely to
give judgment against the defendant. But in civil cases, for the
lawyer who institutes them to pick out his judge at will from a
number who are equally competent to assume jurisdiction, and at
the same time (as is generally the law) are left wholly without
salaries, receiving nothing except fees for cases actually
brought before them, is to place the defendant in a much less
favorable position than the plaintiff. If the justice decides in
favor of the latter, he is obviously more likely to get the
subsequent patronage of his lawyer. In most justice suits
judgment does go for the plaintiff, and not infrequently it is to
be feared that he gets it from that consideration. Some justices
rarely give any other judgment. Many lawyers bring all their
cases before one justice, and seldom fail of success.

In 1903, a justice of the peace in one of our largest cities
resigned his office and made his reasons public. They were that
no one could afford to hold it who was not willing to stoop to
unworthy practices. Lawyers having a large collection practice,
who were the best customers at such a shop of justice, threw
their business where they could get it done most cheaply. They
expected the justice of the peace whom they favored to favor
them. One way was by making them a discount on his legal fees.
There was a competition among the justices for business on these
terms, and the lowest bidder generally got it. Blank writs of
summons, even, signed by the justice would be sold at so much a
dozen, to be filled in to suit the attorneys.

A system in which such things are possible is inherently vicious,
and only endurable because the defeated party can always appeal
and have a new trial before a higher court. That relief,
however, is expensive. Judgments ought to be just in the first
instance, and it is the business of governments to ensure this,
so far as they reasonably can.

The natural remedy would seem to be to have fewer justices of the
peace who are authorized to try cases and to pay them a fixed
salary. Better men could thus be had and independence of action
promoted. That this is not done comes mainly from the feeling
that small controversies ought to be settled by a neighborhood
court; that any man of good common sense can generally deal with
them as well as a lawyer; and that to salary every justice would
be an unreasonable burden to impose on the taxpayer. The system
is also an ancient one; it works well with honest men; and the
people have an inherited attachment for it.

In a few States a sharp line of division is drawn between courts
of law and courts of equity. This distinction was inherited from
England, though it has been for most purposes abolished there by
the Judicature Acts of 1873 and 1875. It originated in the royal
prerogative of interposing to do justice between private
individuals in cases of an extraordinary character when the
regular courts had no power to grant the necessary relief. The
King was accustomed to refer requests for such action on his part
to his principal secretary and councillor. The next step was to
address the request directly to this officer, who was styled the
Chancellor. If a man were acting toward another in a way that
was against good conscience, though without absolutely
transgressing any settled rule of law, the Chancellor could
compel him to desist. If the legal title to land had been
conveyed to one for the use of another, and the holder of this
title refused to recognize the beneficial interest to serve which
he had been invested with it, the Chancellor could bring him to
account, although the common law would give no remedy. Soon,
whenever a man seemed to have justice on his side, but not law,
it was deemed a case for the Chancellor, or a case in chancery.
Relief was given because it was equitable to give it, and so it
was called relief in equity. The jurisdiction expanded.
Wherever there was a right, but no adequate remedy at law, the
Court of Chancery, or, as it was oftener called, of equity, was
recognized as competent to step in and do justice.

The Chancellor had often been an ecclesiastic. He was apt to be
more familiar with canon law and civil law than with the common
law. The justice which he administered came from the Crown, not
from the people. The people spoke through a jury, called in law
language "the country." The Chancellor spoke for himself. If he
called in the aid of a jury, it was to advise him, not, as in a
common law court, to make a final decision as to the question
submitted to it.

The result came to be that for several hundred years, embracing
the whole colonial period, England had two distinct sets of
courts, acting under different rules, and each trying a different
kind of cases. Those involving questions of trust, account,
fraud, mistake or accident, were the principal subjects of
equitable jurisdiction. Equity also could prevent wrongs, while
law could only punish them.[Footnote: See Chap. XX.] It was not,
however, always easy to mark the line between cases, and say
which belonged in the common law tribunals and which in those of
chancery. Many an action failed, not because there was no just
cause of action, but because it had been brought in the wrong

In the American colonies, and for many years in the States which
succeeded them, these distinctions of procedure were generally
observed.[Footnote: In Pennsylvania the courts largely
disregarded them and asserted that equity was a part of its
common law. See Myers _v._ South Bethlehem, 149
Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
some there were, in some there still are, separate courts of
equity held by a Chancellor, aided, if necessary, by
Vice-Chancellors. In others two dockets or lists of cases were
(and in a number of them still are) kept in the same court, and
the same judge disposed of those on one docket as a court of
equity and of those on the other as a court of law.

Such a system is intrinsically absurd. It has been maintained by
whatever States yet tolerate it for two reasons: because the
lawyers and the community are used to it, and because it
furnishes a convenient test of any claim of right to a jury
trial. All our State Constitutions have some provision for
maintaining such rights, but they do not define the cases in
which the right exists. That is left to the courts, and their
rule is that it cannot be claimed in cases that call for
equitable as distinguished from legal relief.

In most of our States and Territories legal and equitable causes
of action or defenses may now be joined, and legal and equitable
relief given in one suit. This reform in procedure was largely
due to the labors of David Dudley Field, and became general
throughout the country during the last half of the nineteenth
century. The result has been that separate courts of equity are
now to be found only in a few States.

Congress has made use of the State courts in certain cases as
part of the machinery of the federal government. While by the
Constitution "the judicial power of the United States" can only
be vested in the courts of the United States, the phrase as thus
used refers only to the power of judging causes in courts of
record. State courts and magistrates can therefore be given
jurisdiction by Congress over any acts in aid of the functions of
the United States, the supervision of which may be regarded as
ministerial, or as incidental to judicial power rather than a
part of it. They have received it in this way with respect to
such matters as seizure of deserters from a merchantman, the
arrest and commitment or bail of offenders against the criminal
laws of the United States, the taking of affidavits and
depositions for use in proceedings before federal authorities,
and the naturalization of aliens.[Footnote: Robertson _v._
Baldwin, 165 U. S. Reports, 275.]

State courts also have jurisdiction over any civil action to
enforce a right given by the laws of the United States, unless
Congress has otherwise provided. They constitute together with
the federal courts one general judicial system for the whole
country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
Northeastern Reporter, 435.]

Almost all American courts are known as "courts of record." A
court of record, in modern parlance, is one which tries causes
between parties and is required to keep a full official and
permanent record of its disposition of them. For this purpose
most courts are furnished with a recording officer, called the
clerk. His record is the only evidence of their judgments and
cannot be contradicted or impeached in any collateral proceeding.
If there is any error in it, it can only be shown on a direct
proceeding brought to correct it.

Justices of the peace, when authorized to try causes, act only in
small matters and in a summary way. In most States they are not,
when exercising this function, deemed to constitute a court of
record. Nor is any court, even though furnished with a clerk, if
its proceedings are not recorded in full, but simply made the
subject of brief notes or minutes,[Footnote: Hutkoff _v._
Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
unless there is a statute or local practice giving such notes or
minutes the effect of a record.

A court of record has inherent power to preserve order in
proceedings before it[Footnote: See Chap. XX.] and, unless other
provision be made by law, to appoint a crier or other officer to
attend upon its sessions. By statute it is commonly made the
duty of the sheriff of the county to attend all courts of record,
either personally or by deputy. He also executes such processes
as under the practice of the court may be directed to him.
Witnesses and jurors are thus summoned by him to appear before
the court; arrests and attachments of property are made; and
executions are levied to enforce final judgments.

* * * * *



The Constitution of the United States (Art. III) provides that
there must always be one Supreme Court of the United States. The
establishment of such inferior courts as may be deemed proper
from time to time is left to Congress.

The judicial power of the United States is limited to cases of
certain kinds or between certain kinds of parties. Either (1)
the subject-matter of the action must be of a kind that concerns
the whole nation, or (2) some party to it must be or claim under
a political sovereign, or (3) it must be between a citizen of a
State of the Union and one of another of the States or of a
foreign country.

In a few of the second class the Supreme Court is given original
jurisdiction: in all others of both classes it has appellate
jurisdiction, with such exceptions as Congress may think fit to
make, save only that no fact tried by a jury can be thus
re-examined, except so far as the rules of the common law would
have permitted. Its original jurisdiction is confined to cases
affecting ambassadors, ministers, and consuls and those to which
a State shall be a party. It is not necessarily exclusive as
respects any of them,[Footnote: Ames _v._ Kansas, 111
U. S. Reports, 449, 469.] and by the eleventh amendment to the
Constitution is so limited as not to include suits against a
State by citizens of any other State or foreign government. In
point of fact, few original suits have ever been brought before
the court, and almost all of these have been instituted by or
against States.

The Supreme Court is held at Washington. There is a Chief
Justice with eight associate justices, and each is also assigned
for circuit duty as a judge of the Circuit Court of the United
States in one of nine judicial circuits into which the country is
divided. Originally there were but six judges, and each was
required to hold two circuits a year in each district in his
circuit. They were assigned to the circuits in pairs, and both
sat together with the District Judge. The consequence was that
three-fourths of their time was spent in traveling from one court
town to another. They complained of this to Congress through the
President in 1792, and the next year it was provided that Circuit
Courts might be held by one justice, alone or with the District
Judge. In 1801, an ultimate reduction of the number to five was
provided for. They were to devote their time entirely to the
Supreme Court, while the Circuit Courts were to be held by a new
set of eighteen Circuit Judges. In 1802, they had only ten cases
pending before them, and the average for some years had not
exceeded that number. For this and other reasons mentioned
elsewhere the Act of 1801 was repealed by the next Congress. In
1807, another Justice of the Supreme Court was added and two more
in 1837.

Each circuit has a judicial establishment of its own, and is
composed of a certain number of judicial districts. Of these
there are in the whole United States about eighty. The smaller
States constitute one district. In the larger ones there are

Each district generally has its own judge, called the District
Judge, and always its own court, called the District Court of
that district. Each circuit has several Circuit Judges, whose
main work is to sit in a court held in each circuit, styled the
Circuit Court of Appeals. They can also hold a District Court.

Until 1911, the District Courts had a narrow jurisdiction, and
there were Circuit Courts having a wider one. In 1911, the
Circuit Court was abolished, and the District Court now is the
general trial court of the United States in the first instance.
Anyone can sue there to enforce a right arising under the laws of
the United States when the amount in dispute is more than $3,000.
Rights arising under certain of these laws can only be enforced
there, and as to them the pecuniary limitation does not apply.
Such are patent-rights and copyrights. Any suit involving an
amount exceeding $3,000 may be brought there when the controversy
is between citizens of different States or citizens of a State
and citizens of a foreign country. So may a suit by citizens of
the same State claiming land under grants from different States,
without respect to the value of the subject of controversy.
Suits of any of these kinds which are brought in a State court
may, at the option of the defendant, be transferred for trial
into the District Court. On filing proper papers the case is
transferred automatically. The District Court has jurisdiction
also over bankruptcy and admiralty matters, a few other kinds of
civil cases of minor importance, and of all offenses against the
United States.[Footnote: The Judicial Code of the United States,
Chapter II.]

The pecuniary limit of jurisdiction was for a hundred years fixed
at $500. The increase to $3,000 was due partly to the fact that
the Supreme Court was overburdened by appeals from the trial
courts, many of which involved small amounts, and more to a
desire to keep judicial power over ordinary controversies between
man and man, as far as practicable, in the hands of the State

Early in the nineteenth century a practice began of bringing
suits in the Circuit Court of the United States, which purported
to be between citizens of different States, but in which the
plaintiff had either changed his residence for the purpose of
giving the court jurisdiction or was really suing for the benefit
of a citizen of the same State with the defendant. This was due
to the high opinion entertained of the federal
judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
bring the cause before a federal, rather than a State tribunal.
Such a mode of proceeding, while within the letter of the
governing statute, was contrary to its spirit, and little better
than a fraud. It was also an evident perversion of the intent of
the Constitution, and became at last so far-spreading that both
Congress and the courts used their best endeavors to put an end
to it, and with success.[Footnote: U. S. Statutes at Large,
XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]

Another cause is also effective in lessening the docket of the
District Courts. The ordinary lawyer prefers to sue in a State
court, when he has the choice, on account of his greater
familiarity with the practice there. Many American lawyers have
never brought an action in a federal court. Most cases which
could be so brought can also be and are brought in a State court.

Congress has thus far maintained for the federal courts the
ancient distinction between procedure in law and in equity
explained in the preceding chapter. There are those who claim
that the reference in Art. III, Sec. 2, of the Constitution of
the United States to "cases in law and equity" requires its
preservation; but this seems a strained construction of the
phrase. Separate dockets are kept in the District Court of legal
and of equitable actions. They are brought in different form,
tried in a different way, and disposed of by different rules,
though by the same judges and at the same term of court. As to
equity cases, the rules of the old English chancery practice are
substantially followed. In cases of a common law nature, the
practice existing at the time in regard to those of a similar
kind in the courts of the State within which the federal court
may be held is to be followed, as nearly as may be.[Footnote:
U. S. Revised Statutes, Sec. 914.] In fact, there is a departure
from it in many points in most States,[Footnote: See Nudd
_v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in
those which have reformed their procedure in civil actions by
fusing remedies at law with those in equity. If an action framed
in this method be removed from a State court to a federal court,
the plaintiff must thereupon split it in two, and present his
case at law on one set of papers and his case in equity on

The Supreme Court, under power derived from acts of Congress, has
framed rules of procedure for the inferior trial courts of the
United States in equity and admiralty cases, and the latter
courts have supplemented them by further rules of their own
making. The Equity Rules promulgated by the Supreme Court were
revised in 1912, and took effect as changed in 1913.[Footnote:
They are printed in Volume 226 of the United States Reports.]
They greatly simplify the former procedure. Suits are now tried
generally on oral testimony taken stenographically in open court.
Formerly the evidence was usually given before officials known as
examiners or masters in chancery. The former reported the
testimony at length to the trial court. The latter reported
their conclusions from it.

The new rules have abolished demurrers in equity causes in favor
of what is substantially the present English practice.[Footnote:
See _infra,_ page 203.]

In common law causes in the District Court, the State remedies by
way of attaching the property of a defendant to respond to a
judgment, or seizing it on execution, or imposing a lien upon it
by a judgment, are adopted and enforced.[Footnote:
U. S. Rev. Stat., Sec.Sec. 915, 916, 967, 988.]

The field of national legislation being narrow, the offenses
against the nation are correspondingly few. Any acts done on
lands ceded by a State, which would have been crimes under its
law in 1873, may be punished as such in the federal courts in the
same manner which that law provided.[Footnote: _Ibid_., Sec.

In the Circuit Courts, before 1866 it was customary to defer the
trial of important causes until the Justice of the Supreme Court
assigned to the circuit could be present. If he differed on any
material point from the District Judge, this point could be
certified up to the full Supreme Court for argument and decision
there. During this period the published reports of the decisions
of the Circuit Court contain many opinions of the highest value.
Several of the best which Story and Bushrod Washington wrote are
to be found among them.

The Act of 1866, by which a resident Circuit Judge was appointed
for each circuit, provided notwithstanding that each member of
the Supreme Court should attend at least one term of the Circuit
Court in each district as often as once in two years. The press
of business at Washington, however, soon became such as to make
it practically impossible for the Supreme Court Justices to do
any substantial circuit work. When some case of national
importance was to be heard in any district, the Justice in whose
circuit it was included would make a special effort to go down.
In this way Chief Justice Chase heard and sustained the plea with
which Jefferson Davis met the indictment against him for treason.
But ordinarily the Circuit Judge took the place of the Supreme
Court Justice, and the latter, if he appeared at all during the
term, remained hardly for a day.

The Supreme Court, therefore, during over a hundred years
remained the only court of the United States existing mainly for
appellate purposes. The work which it had before it at the last
term during which it occupied this position (October Term, 1890)
will show how much it was then overburdened.

Its docket contained 1,177 appeals brought forward by continuance
because they could not be disposed of at the preceding term, 623
new cases of the same kind, and 16 cases of original
jurisdiction, making a total of 1,816 actions. Of these,
although the term lasted nearly eight months, it was only able to
dispose of 617, thus leaving 1,199 for continuance to the
following term.[Footnote: 140 U. S. Reports, Appendix.] It will
be observed that the court was no longer able to cope with its
new business, not to mention that left over from previous years.

Appeals now lie in most civil cases from the final judgments of
the District and Circuit Courts, and from convictions for
infamous crimes, not capital, to the Circuit Court of Appeals.
They also extend to judgments granting a temporary injunction.
There is a court of this name for each of the nine circuits,
which was established in 1891 for the further relief of the
Supreme Court and the speedier termination of litigation. This
measure originated in the American Bar Association, by which it
was pressed upon the attention of Congress. It had become an
absolute necessity to devise some plan of expediting the
disposition of appeals from the trial courts of the United
States. There was more than enough of such business by the close
of the Civil War (the events attending which brought up for
decision many novel questions of the highest importance) to
require the entire attention of the Supreme Court. It soon took
three years after an appeal was docketed before it could be
reached for argument. This was intolerable, and it was obviously
necessary either to restrict the liberty of appeal; to constitute
divisions of the court, one to hear appeals of a certain class
and another those of another class; or to set up an intermediate
court. The last method was preferred. The practice in the
Circuit Court of Appeals is governed by rules of its own making,
but in general conforms to that of the Supreme Court of the
United States in appealed cases.

The commission appointed some years since to prepare a revision
of the laws of the United States have reported in favor of
abolishing all jurisdiction of the Circuit Court over original
cases and turning it into an appellate court.[Footnote: Senate
Doc. 68, 57th Congress, 1st Session.] Should this recommendation
be adopted, the District Court would acquire the jurisdiction now
vested in the Circuit Court, the District Judges would sit in the
District Court only, and the Circuit Court Judges in the Circuit
Court only, while the Circuit Court of Appeals would come to an

The American Bar Association voted in 1903 that it was desirable
to establish a new appellate court to sit at Washington and take
cognizance of patent and copyright cases. Such a measure would
tend to relieve the Supreme Court of the United States of any
undue pressure of business, and promote both uniformity and
promptitude of decision in a class of actions in which
promptitude and uniformity are of special importance. As things
stand now, a patent may be pronounced invalid in one circuit and
upheld in another by courts of equal authority; and while in such
event the Supreme Court would probably, on a special application,
call both these judgments up before it for review, this remedy
cannot be claimed as a matter of absolute right, and is at best a
slow one.

The Circuit Court of Appeals is held by three judges, two
constituting a quorum. Those generally sitting are the Circuit
Judges belonging to the circuit. The Justice of the Supreme
Court assigned to the circuit may also sit, and any of the
District Judges in the circuit can be called in.

Except in a very limited class of cases, the decision of this
court is final, unless the Supreme Court, on special application,
should think the questions involved to be of sufficient
importance to require a review, when it can order the record sent
up to Washington for that purpose. The Circuit Court of Appeals
can also of its own motion certify up any questions in a cause to
the Supreme Court for its instructions before making a final
disposition of it.

The Supreme Court has direct appellate jurisdiction over the
District and Circuit Courts in cases turning on the limits of
their jurisdiction, in prize causes, in equity suits by the
United States under the statutes regulating inter-State commerce,
and in all cases involving the construction or application of the
Constitution of the United States, or of a treaty. Appeals also
lie to it from judgments of conviction in the Circuit Court for
capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32
_ib_. 823.]

The consequence of the Circuit Courts, which had been impaired by
the practical withdrawal of the justices of the Supreme Court,
was further lessened by the creation of the Circuit Court of
Appeals. Before that their judgments in most cases were final.
In criminal causes there was no appeal, and in ordinary civil
causes none after 1875, unless the matter in controversy exceeded
$5,000 in value. This left the life, liberty and property of the
citizen top much in the hands of one man; and the people, led by
the bar, insisted on stripping him of powers so liable to
abuse.[Footnote: See an attack on a similar state of things
existing in Louisiana at one time in the District Court, by
Edward Livingston in 1826. Hunt, "Life of Edward Livingston,"
302, 303.] No sovereign can be sued in his own courts without
his consent. The United States consent to be sued on most claims
against them of a contractual nature, which they may dispute.
For this purpose a Court of Claims has been established at
Washington, consisting of a Chief Justice and four associates.
Originally it was little more than an administrative bureau; but
by successive amendments of the law it has come to have fully a
judicial character,[Footnote: United States _v._ Klein, 13
Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.]
except in one particular. It is a general principle that a court
will make no decree that it cannot enforce. The Court of Claims
cannot issue an execution to enforce its judgments. Money can be
drawn from the treasury of the United States only to meet
appropriations made by Congress. An appropriation is made by
each Congress of a gross sum to satisfy any judgments that have
been or may be rendered by the Court of Claims; but should this
provision be omitted in any appropriation bill the judgments of
the Court of Claims could not be collected.

Concurrent jurisdiction in these respects is given to the
District Court of claims not exceeding $1,000 in amount, and to
the Circuit Court of those exceeding $1,000 and not exceeding

Aliens can sue in the Court of Claims when their own country
accords a similar privilege in its courts to citizens of the
United States.[Footnote: U. S. Revised Statutes, Sec. 1068.]

This court has also a peculiar kind of advisory jurisdiction.
Congress, or any committee of either house, can refer to it any
questions of fact which may have come before them. The judges
must then ascertain the facts and report them back. The head of
any of the great executive departments may, in like manner, in
dealing with any claim against the government, if the claimant
consents, refer any uncontroverted questions, either of fact or
law, to the court, which must then report back to him its
findings and opinion. This does not take the form of a judgment,
for there is no case and no parties are before it. It is a mere
expression of opinion, and stands on much the footing of the
report of a committee of inquiry to a superior
authority.[Footnote: 22 U. S. Statutes at Large, 485; 24
_id._, 507.]

A temporary court is also in existence called the Court of
Private Land Claims. This is composed of a Chief Justice and
four associate justices, and has jurisdiction to hear and
determine claims of title to land as against the United States,
founded on Spanish or Mexican grants in New Mexico, Arizona,
Utah, Nevada, Colorado or Wyoming. An appeal from the final
judgment is given to the Supreme Court of the United
States.[Footnote: 26 U. S. Statutes at Large, 854.]

The District of Columbia has a special judicial establishment.
There is a court of general jurisdiction known as the Supreme
Court of the District of, Columbia, and appeals from its
judgments lie to the Court of Appeals of the District of
Columbia. This is composed of a Chief Justice and two associate
justices, and its judgments are reviewable by the Supreme Court
of the United States, if $5,000 is involved, or the validity of
an authority exercised under the United States or a treaty or Act
of Congress is in question. An appeal also lies to it from
decisions of the Commissioner of Patents as to claims of a right
to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]

When new territory comes by conquest or cession permanently under
the jurisdiction of the United States, it belongs to the
President, in the exercise of his executive power, to see to its
proper government until Congress makes other provision. He can
institute courts there for that purpose, or if he finds courts
created by the former sovereign in existence, can expressly or
impliedly permit them to continue in the exercise of judicial

Each fully organized Territory has a set of local courts and one
Supreme Court to which appeals can be taken and the judgments of
which, in cases of large pecuniary magnitude or great legal
importance, can be reviewed by the Supreme Court of the United
States. These territorial courts do not exercise what is known
in the strict sense and designated in the Constitution as "the
judicial power of the United States." They are created to meet
temporary conditions, and with judges whose commissions run only
for a few years. Such courts are instruments through which
Congress exercises its power of regulating the territory of the
United States. They act judicially. They have judicial power.
But the source of this power is not the clause in the
Constitution under which the judicial power of the United States
is defined.[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511.] It is therefore not necessary to confine
such courts strictly to the consideration of judicial business.
In the organization of our earliest Territories the judges were
given legislative functions, and while this was originally due to
the terms of the Ordinance of 1787, it was confirmed by various
Acts of Congress after the adoption of the Constitution of the
United States.

The Philippines are governed under an Act of Congress by a
commission acting under the supervision of the Secretary of War.

The organization of courts established by Spain has been in
substance preserved. The Spanish law which was in force there
was expressed in codes mainly founded on those framed for France
under Napoleon I. In 1901, the Spanish code of civil procedure
was supplanted by one prepared by a member of the Philippine
Commission, and which is now familiarly known by his name as the
Ide Code. In substance, it establishes the mode of proceeding in
civil cases which is known in the United States as code pleading.
Trial by jury has not been introduced into the Philippines either
in civil or criminal causes, and need not be.[Footnote: Dorr
_v._ United States, 195 U. S. Reports, 138.]

In criminal causes, the Spanish system was originally retained,
allowing either party, the United States or the defendant, to
appeal from the judgment of the court of first instance to the
Supreme Court of the islands and have there a new hearing both as
to fact and law. This, however, so far as concerns an appeal by
the government, was held to be contrary to the Act of Congress
under which it was constituted.[Footnote: Kepner _v._ United
States, 195 U. S. Reports, 100.]

The courts of the United States are generally provided with an
officer styled a marshal. He executes their process, attends
their sessions, and exercises in general the functions which
belong to a sheriff as respects State courts.

Each District Court appoints a convenient number of District
Court Commissioners, who issue warrants of arrest on criminal
proceedings, take bail, inquire whether there is probable cause
to hold the accused to answer to the charge in court, and
discharge in such respects substantially the functions generally
belonging to justices of the peace in the States.

* * * * *



Every judicial officer of a State is required by the Constitution
of the United States to bind himself by oath or affirmation to
support it, and this obligation compels him to respect every Act
of Congress made in pursuance of the Constitution, and every
treaty made under the authority of the United States, as, in case
of conflict, superior to anything in his State Constitution or

The courts of the national government are complementary to those
of the States. Both belong to one judicial system. Rights
arising under the laws of the United States may be enforced by a
State court as well as by a federal court, and rights arising
under a State law by a federal as well as by the State court,
unless in cases where there is some special restriction upon its
jurisdiction. Such a restriction may be imposed by either
government, as respects any right which it creates.

The judicial power of the United States extends only to certain
classes of cases. As to some of these it is necessarily
exclusive: as to any of the rest Congress can make it
such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411,
429.] On the other hand Congress may assume to invest a State
court with power to dispose of a certain matter of federal right,
and the State may decline to permit the exercise of such a power.
The United States cannot in that manner compel the courts of
another government to do their bidding. It would tend to throw
on the States a greater burden than they might deem necessary or
proper. They provide courts to meet the wants of those looking
to their own sovereignties for justice. Thus, although nothing
could seem more anomalous than for one sovereignty to confer
citizenship in another, the laws of the United States allow
naturalization to be obtained by proceedings in State courts.
Most aliens who become citizens of the United States do so in
that way, because the State courts are more easy of access. But
a State can at any time restrict or forbid the use of its courts
for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's
(Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law
Reports, 97; 32 Atlantic Reporter, 743.]

The federal courts can lend their aid to carry into effect a
right arising wholly from the statute of a State, even if it
affect maritime interests and must be enforced, if at all,
through an admiralty court. Admiralty suits, it is true, can
only be brought in the courts of the United States, but that is
the very reason why, if such a suit gives the only remedy,
jurisdiction of it should be entertained in the only sovereignty
competent to give relief.[Footnote: The Lottawanna, 21 Wallace's
Reports, 558, 580.]

There are many civil cases which can be brought, at the option of
the plaintiff, either in a court of the United States or in a
State court. Some of these, if brought in a State court, the
defendant can, at his option, allow to remain there or remove for
trial into the Circuit Court of the United States. Criminal
prosecutions by a State may also be removed, under certain
conditions, to the Circuit Court of the United States, when the
defense is one arising under the laws of the United States.

In any cause tried in a State court, if the decision turns on a
claim of right, set up under the Constitution, laws or treaties
of the United States, and is against its validity, the losing
party, if unable to secure its reversal by appeal to a higher
court of the State, can ask such relief from the Supreme Court of
the United States.

It will be observed that it is the losing party only who has this
remedy. If the State court decides, however erroneously, that
the claim of a federal right is well grounded, this is conclusive
as respects the controversy in that suit. If all State courts in
which the validity of an unconstitutional Act of Congress was
contested should uphold it, the courts of the United States would
be powerless to right the wrong, unless they were called upon to
enforce the statute in some suit brought before them for original

The obvious object of the limitation is to preserve so far as is
possible the sovereignty of the States. The courts of the nation
are to set aside acts or judgments flowing from that only in case
of necessity and to preserve rights flowing from the sovereignty
of the nation. For the same reasons, resort can be had to the
Supreme Court of the United States only after every right of
review given by the laws of the State has been exhausted.
Usually this requires one who loses his cause in a trial court to
take it up to the State court of last resort. Where, however,
this is not permitted by the State law, he may ask for a writ of
error from the Supreme Court of the United States to whatever
court was the highest to which he was able to remove it; and if,
by the State law, he was unable to appeal at all, then the writ
will go to the trial court. One of the greatest of Chief Justice
Marshall's great opinions was rendered on a writ of error to the
quarterly session court for the borough of Norfolk in Virginia,
held by the mayor, recorder, and aldermen of the
borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's
Reports, 264.]

It was the opinion of Hamilton that an appeal might be given from
the State courts to the inferior federal courts, in case of a
decision turning on a right claimed under the Constitution or
laws of the United States.[Footnote: _Federalist_,
No. LXXXII.] This is probably true, but Congress has wisely
forborne to make any such provision. It imposes a strain
sufficiently great on the sovereignty of a State to subject the
judgments of its court of last resort to reversal by the Supreme
Court of the nation.

The power to declare a statute void because inconsistent with
constitutional provisions belongs to every court in every case in
which such a statute is relied on either to support the action or
in defense.[Footnote: See Chap. VII.] It therefore belongs, as
respects a State statute which may be attacked as inconsistent
with the Constitution of the United States, to the trial courts
of the United States as well as to the Supreme Court. This makes
it possible for a District or Circuit Court of the United States
to adjudge the statute of a State in which it sits to be
unconstitutional and void, although it may have been declared
valid by a judgment of the highest court of the State, from which
no appeal to the Supreme Court of the United States was ever

However derogatory to the sovereignty of the States the
possession of such authority may seem and be, it is evidently a
necessary feature of our dual system of government. In some way
it was indispensable to provide for maintaining the full powers
of the United States against encroachments by State legislation,
and also for enforcing all the special limitations on the powers
of State legislation which the Constitution of the United States
lays down. This could have been done effectually in but two
ways: either by giving to Congress or to the President a veto
upon State laws; or by leaving the right of control to lie
dormant until a necessity for exercising it should arise, and
then putting it in the hands of the judiciary. The latter method
was clearly open to the least objection.[Footnote: See Hamilton's
discussion on this point in the _Federalist_, No. LXXX.]

Jefferson maintained that there was a third, and one which the
Constitution expressly provided. This was the calling of a
convention of all the States for proposing amendments to it. If,
he said, a State on the one hand by her highest authorities
asserts a certain line of action to be within her powers, and the
United States by their highest authorities deny it, "the ultimate
arbiter is the people of the Union, assembled by their deputies
in convention, at the call of Congress, or of two-thirds of the
States. Let them decide to which they mean to give an authority
claimed by two of their organs."[Footnote: Letter to Mr. Justice
Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There
seems a plain fallacy in this proposition. The question to be
decided, in case of a conflict of judicial authority, is not
which doctrine ought to be adopted, but which was adopted when
the Constitution was framed. To amend that instrument and make
it something else could not justly be allowed to alter the effect
of acts previously done.

But one serious proposition has ever been made to call a national
constitutional convention for any such purpose. That was by
Kentucky in January, 1861, when civil war was threatened; and it
was not pressed. The very delays which would be inevitable in
assembling such a body were then a reason for the call, for they
would give time for the "sober second thought." The plan,
however, seemed and probably was impracticable. The movement
toward secession had gone too far.[Footnote: Debates and
Proceedings of the National Peace Convention, 45, 61, 67.]

There were many, at the time when the Constitution of the United
States was before the people for ratification, who feared that
the jurisdiction of their courts would be extended by judicial
construction beyond the limits of the grant. New York in her
vote of ratification incorporated a declaration that she
understood it to be impossible that the jurisdiction of any court
of the United States could ever be enlarged "by any fiction." In
the Maryland Convention, this sentiment took shape in a proposed
amendment to the Constitution adopted by a committee appointed
for the purpose, but never reported, "that the Federal courts
shall not be entitled to jurisdiction by fictions or
collusion."[Footnote: Elliot's Debates, 550; Proceedings
Massachusetts Historical Society, XVII, 504-7.] Had such an
amendment been proposed and adopted, it would have cut off a
large share of the most important cases now brought before the
Circuit Courts. In 1787, there were only twenty-seven business
corporations in the United States.[Footnote: Report of the
American Historical Association for 1902, 267; _American
Historical Review_, VIII, 449.] It was not long before they
became countless and the large affairs of the country were in
their hands. Could they sue and be sued in the courts of the
United States? The decision on this point was that, by force of
a pure legal fiction, invented for the purpose, they might be.
They were, indeed, not citizens of any State;[Footnote: Paul
_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
composed them probably were. Therefore, it must be assumed that
they certainly were, and also that they were all citizens of the
same State and that the State from which incorporation was
obtained.[Footnote: Louisville, Cincinnati and Charleston
R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,

Sir Henry Maine maintained that legal fictions were the rude
device of early stages in government, and to add to them
disturbed the symmetry of a legal system and was unworthy the
approval of modern courts.[Footnote: Ancient Law, 26.] But while
they are among the things that it is hard to justify on
principle, it is harder to dispense with them in actual practice,
as the instance given conspicuously illustrates.

Although the United States are the only depositary of the power
of ordering foreign relations, foreign governments are often
aggrieved by acts of the courts of a State which the United
States have but imperfect means of preventing or rectifying.

In 1841, we were brought to the verge of war with Great Britain
by an incident of this nature.

An insurrection broke out in Canada in 1837, and a New York
steamboat was chartered to bring supplies across the Niagara
River to those engaged in it. One night when she was moored on
the New York side of the river a party of loyal Canadians seized
and burned her. During the accompanying affray an American was
killed. A Canadian named McLeod, who was charged with having
fired the fatal shot, was afterwards arrested in New York and
indicted for murder. The British government then informed ours
that it had ordered the burning of the steamer, and thereupon
demanded McLeod's release. Our Secretary of State replied that
the prosecution was in the hands of the State of New York, and
the United States had no control over it. Lord Palmerston made
the affair the subject of a dispatch, in which he stated that
McLeod's execution would produce "a war of retaliation and
vengeance." The President at once requested the Governor of New
York to order a discontinuance of the prosecution. This was
declined, but with a promise to grant a pardon in case of
conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]
The State courts refused to discharge the prisoner. He was tried
on the original charge, but acquitted.

Congress in 1842 did what it could to prevent the recurrence of
such a conflict of authority by passing an Act giving the Circuit
and District Courts of the United States jurisdiction on
_habeas corpus_ proceedings in favor of foreigners held by
State authority, who might claim a right of release under the
principles of international law.[Footnote: U. S. Revised
Statutes, Sec. 762.]

The Circuit Court has since 1875 been given power to entertain
original jurisdiction of any causes arising under the
Constitution, laws or treaties of the United States, regardless
of the citizenship of the parties, if a value of $2,000 is
involved. In all cases, also, of imprisonment by State
authority, whether under arrest before trial or after a sentence
of conviction, in violation of rights claimed under the
Constitution, laws or treaties of the United States, the prisoner
may now be summarily discharged on a writ of _habeas corpus_
by a court or judge of the United States. Ordinarily, however,
as a matter of comity, he will be left to seek his remedy in the
State courts, and if without success there, on a writ of error
from the Supreme Court of the United States.[Footnote: _In
re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117
U. S. Reports, 241.]

The State courts have no power to release on _habeas corpus_
one who is held under the authority of the United States. If
that authority has been illegally exerted, his remedy is in the
federal courts alone.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]

The cases in which a State can be sued in an original suit in the
Supreme Court of the United States are defined in the
Constitution and, as limited by the eleventh amendment to it, are
quite few.

Several such actions have been brought. In the earlier ones, the
State declined to recognize the jurisdiction of the court and did
not enter an appearance. The court thereupon decided to proceed
_ex parte_ on hearing the plaintiff;[Footnote: See New
Jersey _v._ New York, 5 Peters' Reports, 283;
U. B. Phillips, "Georgia and State Rights;" Report of American
Historical Association for 1901, II, 83.] and in the later cases
the States have appeared and made defense.

The court, in one of these suits, was asked to issue an
injunction in favor of the Cherokee Indians against the State of
Georgia to prevent her and her Governor, judges and other
officers whatsoever from enforcing certain of her statutes which
were alleged to be unconstitutional. The case went off on
another point, but the majority of the court intimated it to be
their opinion that no such injunction could properly issue
against a sovereign State. Marshall thought it savored "too much
of the exercise of political power to be within the proper
province of the judicial department." Mr. Justice Johnson said
that it was an attempt to compel the President of the United
States, and by indirection, to do what he had declined to do on
the plaintiff's application to him; namely, "to declare war
against a State or to use the public force to repel the force and
resist the laws of a State."[Footnote: Cherokee Nation _v._
Georgia, 5 Peters' Reports, 1, 19, 29.]

It would be no easy thing to enforce a judgment against a State
should it resist. Hence the Supreme Court has been justly
reluctant ever to make any order which would take money out of a
State treasury, unless in cases where the Treasurer was
individually sued, and the money in dispute was not mingled with
other public funds. In 1794, four years before the adoption of
the eleventh amendment, a judgment against the State of Georgia,
authorizing an assessment of general money damages against her,
had been entered in the Supreme Court in favor of one Chisholm,
to whom she owed a debt. Georgia had refused to enter an
appearance in the suit, and in anticipation of this result her
House of Representatives had resolved, in 1793, that if any
Federal marshal should attempt to levy an execution on such a
judgment against the State, it should be a felony, and on
conviction he should be hanged. The Senate had not concurred in
this measure, but it reflected pretty closely the general state
of public feeling in a State largely indebted for what her people
thought it belonged to the United States to pay. The eleventh
amendment was proposed by Congress during the term of court at
which judgment was entered, but not adopted until 1798.
Meanwhile, the court had thought best to defer further
proceedings, and none were ever taken afterwards. The plaintiff
therefore won a barren victory.[Footnote: U. B. Phillips,
"Georgia and State Rights," Report of American Historical
Association for 1901, II, 25.]

The appellate jurisdiction of the Supreme Court of the United
States over States is large, for the State is the party in whose
name all criminal prosecutions in its courts are brought, and in
many of these the defendant sets up some claim under the laws of
the United States which is overruled.

Here again, in case of resistance, it would be difficult to
enforce a judgment of reversal.

Shortly before the action of the Cherokee Nation for an
injunction, the Georgia courts had sentenced Corn Tassel, one of
the tribe, to death for murdering another of them. Tassel had
claimed that by the laws of the United States and their treaty
with his nation he could only be prosecuted before one of his
tribal courts. He obtained a writ of error from the Supreme
Court to review his case on this ground. It was served, but
before it could be heard the day set for his execution had
arrived. By the laws of the United States the allowance of the
writ of error superseded the sentence until the appeal should be
decided. The Governor laid the matter before the legislature,
saying that he did not propose to regard any orders from the
Supreme Court interfering with those of Georgia courts, and
should resist any attempt to enforce them with all the forces at
his command. The legislature approved his position,[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of American
Historical Association for 1901, II, 77.] and Tassel was hanged
on the day originally set.[Footnote: "Memoirs of William Wirt,"
II, 291.] There had been no time to resort again to the Supreme
Court for relief, and as soon as he was dead his writ of error
fell with him, for such a proceeding is legally terminated if the
plaintiff in error dies.

Two years later, Rev. Mr. Worcester, a missionary who had gone to
teach the Christian religion to the Cherokees, was convicted in
the Superior Court of Gwinnet County on an indictment for
residing among them without a license from the State, and sent to
the State prison. He appealed to the Supreme Court of the United
States, which decided that Georgia had no jurisdiction over the
Cherokee reservation, and could not require such licenses. The
judgment against him was therefore reversed, and an order made
"that all proceedings on the said indictment do forever surcease;
and that the said Samuel A. Worcester be and hereby is henceforth
dismissed therefrom, and that he go thereof quit without day, and
that a special mandate do go from this court to the said Superior
Court to carry the judgment into execution."[Footnote: Worcester
_v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior
Court of Gwinnet County paid no respect to this mandate; the
Governor of Georgia characterized it as an attempt at usurpation
which he should meet in a spirit of determined resistance; and
Worcester remained in prison until, on expressing his willingness
to abandon any further efforts for his discharge by authority of
the judgment on his writ of error, the Governor gave him a pardon
on condition of his leaving the State.

A year later, James Grady, who lay under a sentence of death
under proceedings similar to those in Tassel's case, like him
obtained a writ of error from the Supreme Court of the United
States and had it served on the Georgia court, only to find it
disregarded. His execution, in spite of the _"supersedeas"_
which goes by law with every such suit, was the last of this
series of judicial outrages.[Footnote: "Georgia and State
Rights," 83.]

It was unfortunate for the sufferers in these proceedings that
they took place at a time when the cry of "State Rights" was
particularly loud and general in the South. South Carolina had
been quieted with difficulty by Jackson's action in regard to her
nullification ordinance, and he did not wish to go farther than
he thought it necessary in insisting on the supremacy of the
United States.

Since the Civil War, such defiance by a State of the authority of
the Supreme Court of the United States has been unknown and would
be almost inconceivable. The absolute right of the Supreme Court
of the United States to pronounce finally, so far as the States
are concerned, upon every question brought before it as to the
meaning and effect of the national Constitution, has come to be
universally acknowledged.

The courts of a State have the same right, except that it is not
final. This the original Judiciary Act of 1789 (Sec. 25) fully
recognized. Something like it may belong to a Convention of the
whole people of a State, called to act upon its fundamental
concerns; for that would represent the sovereignty of the State
as a whole in the fullest manner. It was from such a convention
that the nullifying ordinance of 1832 proceeded, but the vice of
its action was, not so much that it pronounced the protective
tariff Acts unconstitutional and void, but that it assumed to
deny any right of appeal in litigation growing out of these Acts
and the Ordinance of Nullification, from the courts of South
Carolina to the courts of the United States. This liberty of
appeal in the regular course of judicial procedure is the one
thing which keeps the United States in existence.

The law governing the ordinary transactions of life is that of
the State where they may have their seat. This was affirmed in
the original Judiciary Act,[Footnote: U. S. Revised Statutes, Sec.
721. As "equity follows the law," State legislation creating new
equitable rights or varying those formerly established also
affects causes in equity in the Federal courts. Brine _v._
Insurance Co., 96 U. S. Reports, 627; but see James _v._
Gray, 131 Federal Reporter, 401.] as a general rule for the
courts of the United States in trials at common law. By another
Act of Congress,[Footnote: _Ibid_., Sec. 914.] the practice,
pleadings, and form and mode of proceeding in civil causes, other
than those of equity and admiralty jurisdiction, in the Circuit
and District Courts are to conform as nearly as may be to that
followed in the State within which these courts may be held.

The State laws which are thus made a rule for the United States
courts are the law of the State as it is understood and applied
in its own courts. Hence the construction of a State statute, or
the doctrines of the common law in a particular State, if
definitely settled by the courts of that State, must be followed
in subsequent litigation in the federal courts. Where, however,
a State court has taken a certain position as to what the law is,
and afterwards changes its position, the federal courts are not
compelled to change with it, if this would do injustice to one
who has meanwhile acted on the faith of the original
ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports,
20, and see argument of Daniel Webster in Groves _v._
Slaughter, 15 Peters' Reports, 449, 489.]

Nor are the federal courts, in large questions of a commercial
nature, bound always to accept the opinion of a State court as to
what the common law of the State may be. The manner in which
this doctrine has been evolved is an interesting example of the
manner in which law develops by litigation, and new points are
struck out in a single case as the joint product of lawyer and
judge.[Footnote: See Chaps, XVII, XVIII.]

A bill of exchange drawn in Maine on one Tyson, a merchant in New
York, and bearing his acceptance, was indorsed over to one Swift,
who took it in good faith before it fell due, in payment of a
pre-existing debt. He sued Tyson upon it in the Circuit Court of
the United States in Maine. If his rights were as good as if he
had paid value for it at the time he received it, he was entitled
to recover. If not, his action failed; for the acceptance had
been obtained by fraud. It was made in New York. The judicial
decisions of that State, contrary to the prevailing opinion as to
what was the general common law rule, seemed to favor the view
that a pre-existing debt did not stand on as good a footing as a
present payment, in support of a claim upon negotiable paper.
Samuel Fessenden of Portland, a lawyer of great ability, was his
counsel. The cause was submitted on briefs, without oral
argument. Mr. Fessenden, admitting that the law of the place
where acceptance was made must govern the obligations of Tyson,
insisted that the New York decisions were wrong in principle and
ought not to be regarded.

"If," said his brief, "there is any question of law, not local,
but widely general in its nature and effects, it is the present
question. It is one in which foreigners, the citizens of
different States in their contests with each other, nay, every
nation of the civilized commercial world, are deeply
interested. By all without the United States this Court is
looked to as the judiciary of the whole nation, known as the
United States, whose commerce and transactions are as widely
diffused as is the use of bills of exchange.... How can this
Court preserve its control over the reason and affections of
the people of the United States; that control in which its
usefulness consists, and which its own untrammeled learning and
judgment would enable it naturally to maintain; if its records
show that it has decided-as it may be compelled to decide if
the construction referred to, advocated on the part of the
defendant, is established-the same identical question, arising
on a bill of exchange, first one way, and then the other, with
vacillating inconsistency?"

Mr. Dana, for Tyson, maintained the opposite view with equal
ability. "In coming together," he said, "from the respective
States, the framers of the Constitution, and our representatives
in Congress after them, must be regarded as having had in view
the language, laws, and institutions of the States which they

Mr. Justice Story gave the opinion of the court. Referring to
the provision in the Judiciary Act (now U. S. Revised Statutes,
Sec. 721) above mentioned, on the construction of which the case
must turn, "It never," he remarked, "has been supposed by us that
the section did apply, or was designed to apply, to questions of
a more general nature, not at all dependent upon local statutes
or local usages of a fixed and permanent operation, as, for
example, to the construction of ordinary contracts or other
written instruments, and especially to questions of general
commercial law, where the State tribunals are called upon to
perform the like functions as ourselves, that is, to ascertain
upon general reasoning and legal analogies, what is the true
exposition of the contract or instrument, or what is the just
rule furnished by the principles of commercial law to govern the
case.... The law respecting negotiable instruments may be truly
declared in the language of Cicero, adopted by Lord Mansfield in
Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great
measure, not the law of a single country only, but of the
commercial world. _Non erit alia lex Romae, alia Athenis, alia
nunc, alia posthac, sed et apud omnes gentes, et omni tempore,
una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson,
16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.]

This opinion had been submitted to the court for the first time
during the evening before it was delivered.[Footnote:
_Ibid_., 23.] It could not have received any very close
scrutiny. It relied on no authority except that of Cicero, for
Lord Mansfield, in the case of Luke _v._ Lyde, was speaking
of the law of the sea, which in the nature of things no one
nation can prescribe or change. It was not easy to reconcile it
with precedents cited by Mr. Dana, in one of which Mr. Justice
Chase of the same court had held on the circuit as early as 1798
that the United States had no common law of their own, and that
the "common law, therefore, of one State is not the common law of
another; but the common law of England is the law of each State,
so far as each State has adopted it; and it results from that
position, connected with the judicial act, that the common law
will always apply to suits between citizen and citizen, whether
they are instituted in a Federal, or State, Court."[Footnote:
United States _v._ Worrall, 2 Dallas' Reports, 384, 394.]
So the Supreme Court itself had said, in 1834, in a famous
judgment, concurred in by Mr. Justice Story himself, that "it is
clear, there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent States; each of which may have its local usages,
customs and common law. There is no principle which pervades the
union and has the authority of law that is not embodied in the
constitution or laws of the union. The common law could be made
a part of our federal system only by legislative adoption. When,
therefore, a common law right is asserted, we must look to the
State in which the controversy originated."[Footnote: Wheaton
_v._ Peters, 8 Peters' Reports, 658.]

The State courts have looked upon the doctrine announced in Swift
_v._ Tyson with an unfriendly eye. In some, its authority
is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna
and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18
Atlantic Reporter, 503.] In none will it affect the disposition
of a cause turning upon its own law, and not pending in the
federal courts. It has, however, been repeatedly reaffirmed by
the Supreme Court of the United States, though the later
decisions appear to limit its effect to questions growing out of
commercial transactions not wholly confined to a single
State.[Footnote: Western Union Telegraph Co. _v._ Call
Publishing Co., 181 United States Reports, 92. See Article on
the Common Law of the Federal Courts, by Edward C. Eliot,
_American Law Review_, XXXVI, 498.]

The right of recovery on a cause of action of a commercial nature
will therefore often depend on the court which the plaintiff
selects. If he sues in a State court, the common law of the
State, as the judicial authorities of that State declare it to
be, will be applied; if he sues in a court of the United States,
the common law of the State as the judicial authorities of the
United States declare it to be. Each tribunal will profess to
decide by the same rule--the law of the State; but the federal
court will really apply the common law of England, as it is
generally understood to be, instead of the common law of that
State as it is locally understood to be.

The relations between the federal and State courts which have
been described obviously present many occasions for conflicts of
authority. That such conflicts are so infrequent is mainly due
to a spirit of comity, which the judges of each sovereignty
should and generally do show to those of the other. The federal
courts are also prohibited by Act of Congress from issuing any
injunction to stay proceedings in a State court, except in
certain cases arising under the bankruptcy laws. Independent of
any statute, however, the general principles of jurisprudence
forbid any direct attempt either by a court of the State to
control the action of a court of the United States or by a court
of the United States to control the action of a State court,
except to the limited extent for which provision is made in the
national Constitution.[Footnote: Diggs _v._ Wolcott, 4
Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's
Reports, 279.] Each court, this exception aside, exercises
powers belonging to an independent sovereign, and therefore
subject to control by that sovereign only.

The equitable jurisdiction of the courts of the United States
enables them to interfere in disputes arising out of State
elections in certain cases in which the claim is set up that
rights held under the Constitution or laws of the United States
have been violated. Actions for such relief are rare, and
instances have occurred in which the remedy has been abused for
political purposes.[Footnote: See the proceedings in the case of
Kellogg _v._ Warmoth in the United States Circuit Court in
Louisiana in 1872. McPherson's "History of Reconstruction,"

The centralizing and nationalizing tendencies which set in early
in the nineteenth century and were so greatly strengthened by the
course of events during and following soon after the Civil War
have greatly weakened the position and influence of the State
courts. They have thus rendered the State bench less attractive.
In 1791, John Rutledge, an associate justice of the Supreme Court
of the United States, resigned that office for the Chief
Justiceship of South Carolina. During the last half century,
several Chief Justices of States have resigned to become
Associate Justices of the Supreme Court of the United States.
Associate Justices of Supreme Courts in the smaller States have
also frequently resigned to accept the position of District
Judge, attracted by the life tenure, larger salary, and retiring

* * * * *



Every State has all the rights of an independent sovereign,
except so far as its sovereignty is limited by the Constitution
of the United States. As respects each other the States are for
most purposes in the position of foreign governments. The courts
of one are regarded by those of any other as foreign courts,
except so far as the Constitution may have prescribed a different

No legal process from a court can have any inherent force outside
of the territorial boundaries of the government in which it is
issued. The law of that government may attach certain
consequences to the fact of its service in a foreign country, but
it can do so only with reference to the effect of the proceeding
on persons or property subject to its own jurisdiction. Courts,
as a general rule, can act only when they have jurisdiction over
the person, the subject-matter, and the cause.

In rare cases, jurisdiction over the subject-matter may be
regarded as giving jurisdiction over the person, so far as may be
necessary to uphold a judgment settling the possession or title
to property. Such a proceeding is, either in form or substance,
one not _in personam_ but _in rem_. The commonest
instance is a suit in admiralty to enforce a maritime lien, such
as that given by the universal law of the sea for seamen's wages.
Wherever the vessel is found, this lien is recognized and will be
enforced by seizing and selling her, but only after some kind of
public notice has been given to all who have any pecuniary
interest in her to appear and be heard. In such a suit, personal
notice to her owners, served within the jurisdiction of the
government to the courts of which the seamen may resort, is not
indispensable. The presence of the ship within the power of the
court is enough.

While State courts have no admiralty jurisdiction, they can
adjudicate upon a claim of title or right of possession to fixed
property within the territorial limits of their State, although
the parties adversely interested are not and have not been
personally served with process there or anywhere. Here again
their power over the property necessarily implies such power of
control over those who might lay claim to it as will suffice to
settle any dispute over its ownership or possession. But in all
ordinary cases they are not only powerless to subject any one to
obedience to their judgments who is not personally within the
State in which they exist, but powerless so to subject one who is
personally within it, but who did not belong there and was not
there served with process in the original proceeding leading up
to the judgment, unless he voluntarily took part in the

In most civilized nations there is a recognized form of
proceeding by which a judgment of a foreign court, fairly
rendered after giving a proper opportunity to the defendant for a
hearing, can be enforced by process from a domestic tribunal.
This is styled making the foreign judgment executory. The
English common law did not recognize such a right, and gave no
remedy to one desiring to enforce a foreign judgment, except that
of bringing a fresh suit. In like manner, whoever has recovered
a judgment against an inhabitant of any State, in a court held
outside of that State, can enforce it against him in his own
State only by bringing a new action. This either is, or is in
the nature of, the common law action of "debt on judgment"; and
only two defenses are available. These are, first, that no such
judgment exists or is in force; and, second, that if it exists,
it was rendered by a court having no jurisdiction over the
subject-matter or the defendant.[Footnote: Pennoyer _v._
Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine
Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was
jurisdiction, it is of no consequence that it was erroneously or
unfairly exercised. The remedy for that must be sought in the
State where the judgment was pronounced. Even fraud on the part
of the plaintiff in procuring it, though a defense against a
judgment of a foreign country is not one against a judgment of
another State.[Footnote: Christmas _v._ Russell, 5 Wallace's
Reports, 290.] These rules are established by Art. IV, Sec. I of
the Constitution of the United States and by Acts of Congress
passed to enforce it.[Footnote: U. S. Revised Statutes,
Sec. 905.]

Commercial intercourse between the different States is so great
and so constant that questions in the courts of one often arise
which turn on the law of another. Those who do any act do it
with implied reference to the law of the place where it is done,
so far as respects its legal consequences. If it is a wrongful
act there, it will in most instances be deemed a wrongful act
everywhere. If it leads to a certain result as regards property
rights there, it will ordinarily give a right of action anywhere,
to secure the benefit of that result.

The law of each State is largely an unwritten common law. Even
in those where they have full codes defining civil rights, these
codes are expressed in terms for the definitions of many of which
the common law gives the rule. But this common law is not
precisely the same in any two States. In minor points certainly,
and perhaps in capital ones, there will be a divergence. In
England there is one uniform common law. Here, divided as we are
for most business purposes into forty-five different
sovereignties, it is multiform.

If, then, the court of one State in determining the legal effect
of a transaction having its seat in another must be governed by
the common law of that State, where is it to be found? If there
have been decisions of its highest courts in regard to what it is
with reference to the point in question, they will ordinarily be
accepted as conclusive.

This is not by virtue of the provision in the Constitution of the
United States that full faith and credit is to be given in each
State to the public records and proceedings of the others. That
refers to the effect of public records and proceedings upon the
rights of those who are or claim under parties to them. Such
decisions as those which have been described are accepted as
conclusive as to the rights of those who were not parties to
them, and simply because they are considered the best evidence
attainable of a rule of unwritten law of general application.
But they are not universally so considered. The rule that
transactions are governed by the law of the place where they have
their seat is one founded on the presumed intent of the parties
to them. But in fact the parties to a business transaction act
on their general notions of what the law is or must be, rather
than on any particular knowledge of what courts have declared
that it is. The rule that one country will accept the opinion of
the judicial authorities of another as to what its law is, is one
not to be pressed so far as to sacrifice essential justice. In
this point of view, some courts hold that it is permissible to
disregard decisions of other States which are based on a
departure from what is generally considered a settled doctrine of
the common law as to a commercial question. This is
substantially the same position taken by the Supreme Court of the
United States, and elsewhere described,[Footnote: See Chap. X.]
concerning the right of a federal court to refuse to be bound by
State decisions as to the unwritten law affecting foreign trade
or trade between the States.[Footnote: Faulkner _v._ Hart,
82 N. Y. Reports, 413, 423.]

Another rule of practice of great importance is that in the
absence of proof to the contrary the courts will presume, in a
State basing its jurisprudence on the English common law, that
the unwritten law of any other American State is the same as its
own. As the reason of this rule fails in the case of Louisiana,
Florida and Texas, which were subject to organized governments
not derived from Great Britain at the time when they were
incorporated into the United States, it is not applied to
them.[Footnote: Norris _v._ Harris, 15 California Reports,

Decisions of a court constitute a precedent of binding obligation
only within the particular territorial jurisdiction which is
subject to its process. In the tribunals of one State decisions
rendered in another on legal points are, so far as respects
transactions not governed by its local law, without any
authoritative force. They may be read, just as the opinions of
an author expressed in a legal treatise, or as the decisions of
an English or German court might be, for what they appear to be
worth. No formal proof that they were really the deliverances of
the court from which they purport to emanate is necessary to
support their use for this purpose.

The reported decisions of courts of other States, whether
published officially or unofficially, may be cited in argument in
any cause, to fortify the claims of counsel as to the proper
rules to be followed in reaching a decision. For this use they
are introduced simply for the intrinsic value of the reasoning
and conclusions.

If it is claimed that they prove the law of the State from which
they come to be of a certain nature (and that is a material point
in the case), they should be made the subject of proof before
argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports,
1.] In many States this is dispensed with by statutes allowing
courts to take judicial notice of all reported decisions in other
States; that is, in effect, to take any means which they think
proper to learn what they are. It is also the general practice
of the bar where no such statutes exist to allow the reports of
other States to be read for any purpose without objection.

Most States have statutes to facilitate the proof in court of the
statute laws of other States. The mode prescribed by Act of
Congress (Revised Statutes, Sec. 905) under the constitutional
provision, to which reference has been made, involves
considerable expense for the proper certification of copies.
Common provisions of State legislation are that all courts may
take judicial notice of the laws of other States (that is, take
them into account without any formal proof at all), or that a
copy of the official publications containing them shall be
competent evidence of what they are.

There is a certain spirit of comity to which courts often give
expression in rendering assistance to courts of other countries.
This judicial comity has been defined as "the deference commonly
paid by the courts of one jurisdiction to the laws or proceedings
of another, in causes affecting rights claimed under such laws or
proceedings."[Footnote: "Dict. of Philosophy and Psychology,"
_Comity_.] As between courts of the different States in the
United States this sentiment naturally is particularly strong.
In pursuance of it, it is usual, if there has been a judicial
appointment in one State of a representative of the law to
administer an estate of any kind, part of which is in another
State, for the courts of the latter to give him such further
powers or appointment as may be necessary to put in his
possession or control whatever is within their jurisdiction. An
administrator of the estate of a deceased person would thus be
appointed, almost as a matter of course, administrator of such
estate in whatever State property or rights of action belonging
to it might be found. A receiver appointed by a court of equity
to take possession of property would ordinarily, in like manner,
be appointed to the same office wherever any part of such
property might be situated; and in some States such an officer
has been permitted to sue for it under his original appointment.
The general doctrine, however, is that a receiver in chancery
(that is, a receiver appointed by a court of equity) is simply an
arm of the court which appoints him, and has no authority to act
outside of the territorial jurisdiction of that court.[Footnote:
Hale _v._ Allinson, 188 U. S. Reports, 56.]

A receiver of an insolvent corporation often finds that it has
shareholders living in several different States, who have not
fully paid in their subscriptions to its capital stock. In such
case, if the statute of the State under the laws of which it was
incorporated provided for the appointment of a receiver for
insolvent corporations of that character, he may be regarded in
other States as one to whom each shareholder, in legal effect,
promised to pay such part of his subscription as had not been
previously paid to the corporation itself. On this theory of
liability, a foreign receiver has a right of action by virtue of
his official position, indeed, but not because of authority from
a foreign court to use that position for such a purpose. He sues
as one to whom the shareholder promised to make a payment, and on
a direct contract between the two, which is implied by
law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47
Atlantic Reporter, 711; 84 American State Reports, 161.]

The sentiment or rule (for from being a sentiment it has risen to
be a rule) of comity between States both aids in the enforcement
in one of rights acquired under the other,[Footnote: Finney
_v._ Guy, 189 U. S. Reports, 335, 346.] and in the
prevention by one of acts which would infringe on prohibitions
created by the other. Thus, if a corporation of one State has
been organized to do business in another, it may be enjoined in
its home State from amalgamating with a corporation of the other,
contrary to the public policy of the other as declared by its
courts.[Footnote: Coler _v._ Tacoma Railway and Power Co.,
70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]

As no legal process can be effective outside the limits of the
sovereignty by authority of which it is issued, no court of a
State can summon before it witnesses not found within its
jurisdiction, who live in another State. This, in view of the
free intercourse and trade between all parts of the United
States, would work intolerable hardship had not statutes been
passed by every State permitting testimony to be taken outside of
its limits by written deposition for use in civil cases.

So far as criminal causes are concerned, this mode of relief
generally cannot be pursued, owing to the common provision in our
State Constitutions that the accused must be confronted by the
witnesses against him. Most of the Northeastern States, to meet
this difficulty, have passed statutes requiring their citizens
when summoned by a local magistrate at the request of a court of
another State to appear and testify before it in such a
prosecution, to do so upon receiving payment for their time and
expenses, on pain of a considerable pecuniary
forfeiture.[Footnote: New Hampshire inaugurated this legislation
more than sixty years ago. Public Stat., ed. 1842, 382. Most of
the statutes apply only to adjoining or neighboring States, and
some require reciprocity on their part.]

* * * * *

Lawyers of one State have no right to practice in any other. By
courtesy and on motion of a member of the bar, it is customary
for the courts of other States to allow them to participate in
the conduct of any particular cause. In some States, lawyers who
have removed their residence into them from another may in the
same manner be admitted to their bar; in most there is a standing
rule on the subject which requires proof of their having
practiced in the courts of their original State for a certain
number of years, and otherwise provides for an examination into
their legal attainments.

* * * * *



To have a trial by jury is, as a general rule, the right of every
man who sues or is sued in court on a cause of action not of a
kind to be disposed of in a court of equity or admiralty. The
American colonies did not all adopt this mode of procedure at
first, and few of them ever practiced it precisely on the English
plan. In the colony of New Haven there were no juries. In all
the New England colonies, later, there were juries, but verdicts
in civil causes had not the conclusive force given them by the
common law. The defeated party had what was styled the privilege
of a review. This was a new trial before another jury, either in
the same court or a higher one. If he lost his case again, it
was the end of the litigation. If he gained it on the second
trial, the other party could demand a third, and the event of
that decided the cause forever.[Footnote: Bissell _v._
Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]
In criminal prosecutions a similar right was sometimes conceded
to the defendant in case of conviction.[Footnote: Statutes of
Connecticut, ed. 1715, p. 131.] South of New England there was
no such radical departure from the common law, but there were
before the Revolution variations of considerable
importance.[Footnote: The _Federalist_, No. LXXXIII.]

Instead of sending a case before an ordinary jury, the court has
power, at the request of the parties, to direct a special jury to
be summoned to hear it. This is seldom asked or granted unless
the matter in controversy is of peculiar importance and
difficulty. Such a jury is more carefully selected, with the
assistance of the parties, so as to make it sure that it will be
composed of men exceptionally competent to decide a cause and
such a cause. They are generally paid a larger compensation than
ordinary jurors receive, the parties furnishing the additional
sum required. Prepayment of these sums may be and often is made
a condition of granting a trial before such a jury.[Footnote:
Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports,
621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports
Annotated, 911.]

The requirement of unanimity on the part of the jury in civil
causes, which we have inherited from England, is indefensible in
principle. In practice, it has saved the institution from
destruction. No one would feel himself safe if a majority of
twelve men, of no special training in the study of legal rights,
could strip him of his property. But among that number of
persons there can hardly fail to be one or two of superior
character and intelligence. These, with the aid of the judge, if
he be one who fulfills properly his part of the proceeding, can
generally lead the rest to a just conclusion. If the verdict is
for the plaintiff, they may have to yield to some compromise as
to the amount of damages. Not infrequently this has been arrived
at by calling for the separate estimates of each juror, adding
them together and dividing them by twelve. It is a rough way,
and not the fairest, but the wiser heads may consent to it to
secure the concurrence of the weaker.

In criminal cases, the importance of a verdict to the defendant
is so great that unanimity may well be required. While there is
a legal presumption that he is innocent until found guilty, this
in practice is of little avail to him with the jury. They know
from their every-day observation of affairs that there are few
prosecutions which reach the final stage of a trial on the
merits, under which there ought not to be a conviction.

In several States verdicts in civil causes by a three-fourths
vote are permitted. This radical change is not likely to become

Its best defense is that temptations to corruption are thus
removed. So long as one juror, by refusing to concur with the
rest, whether with or without reason, can prevent a verdict,
there will be defendants seeking to prevent the recovery of what
they know to be a just demand, who will be ready to buy a vote.
In 1899, seven of the bailiffs in attendance on the Chicago
courts were accused of lending themselves to such negotiations,
and twenty men who had been jurors confessed that they had either
taken or been offered bribes.[Footnote: Report of the New York
State Bar Association for 1904, 51.]

The Anglo-American jury is unique because it is nothing unless
unanimous, and because it may render a general verdict, stating
no reasons for the decision, on which a general judgment, save in
exceptional cases, is entered as of course.

In the early judicial history of the American colonies juries
were less under the control of the judge than they are
now.[Footnote: See Chap. XIV.] In some colonies they received no
instructions as to the law, the chance of an unjust decision
being guarded against in civil cases, as previously stated, by an
absolute right in the losing party to claim a new trial before
another jury.

The general tendency of judicial practice in later years has been
to emphasize the influence of the judge upon verdicts. This
often extends to directing a verdict, peremptorily, for one party
or the other, when the law is clear upon the facts claimed or
admitted. Still more often it takes the shape of a caution as to
the weight that can properly be given to certain testimony, or an
opinion as to what really are the controlling sources of
evidence. Without the guidance of an intelligent judge, a jury
would frequently come to unfortunate and even unjust conclusions.
That there should be such guidance is an essential part of the
jury system, and it is generally given most effectually where the
judges are the ablest and the most independent.

The judge has at common law and by practice in most American
States a right in his charge to comment on the evidence and
intimate his opinion as to the weight which should or should not
be given to any particular testimony. It is a right to be
cautiously exercised, for juries are greatly influenced in their
conclusions by remarks of that character. They feel that he is
the head of the court, and there is a certain sentiment of
loyalty to him as well as of respect for any one occupying the
position in which they find him placed by the authority of the
State. Sometimes this power is abused. The judge desires to
indicate a decided opinion. He fears that if he put it in plain
words it might seem so strong as to indicate partiality, and
furnish ground of appeal. He therefore uses language, perhaps in
reference to the credibility of a witness, which looks fair and
even colorless on paper, but by the tone or emphasis in which
some vital word is uttered, or with the aid of a shrug or glance,
carries to those whom he is addressing an unmistakable conviction
that he means it to be taken in a certain sense. Any such
judicial action, however, is rare, and would be looked upon with
disapprobation by the bar.[Footnote: See Metropolitan Life
Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68
Northeastern Reporter, 4.]

If the case is one which has been pressed by counsel especially
upon the sympathies of the jury, such as a suit arising out of a
labor strike, or by a widow to recover for an injury resulting in
her husband's death, it is customary for the court to caution
them in their charge that justice and not sympathy is their rule
of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation
Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter,

The American colonies were settled at a time when the English
criminal code was extremely harsh, and the English judges were
disposed to administer it in such a way as to favor the crown.
If the government promoted a prosecution, there was little hope
for the defendant, except from the jury. The courts held that on
criminal proceedings for publishing a libel it was for them to
say whether the paper was libellous, and for the jury to decide
only as to its publication by the accused. This was the occasion
of the Charles James Fox Libel Act of 1792, and of many
constitutional provisions to the same effect in this country,
under which juries, even in libel cases, can render a general
verdict of Not Guilty.

It was under the influence of these ideas, and in view of the
fact that the colonial judge often knew no more law than the
jury, that it became common in this country either to give a jury
in a criminal cause no instruction as to the law at all or to
charge them that they were judges both of the law and
fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
258, 401.] In some of the States, a charge to the effect last
stated is now sometimes required by statute.

A jury trial is a poor mode of doing justice, if there is a rule
of law which, as applied to certain facts, should control the
verdict, unless that rule of law be both stated by the judge, and
so stated as to impress upon the jury that it is their sworn duty
to apply it, if the facts which they may find to exist are such
as to come under its operation. That they should be so
instructed, even if declared by express statute to be the judges
both of the law and the facts, is the prevailing opinion of
American courts and jurists.[Footnote: Commonwealth _v._
Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
U. S. Reports, 51, 71.]

It is of especial importance that the duty of juries to take the
law from the court should be clearly stated to them in a country
of written Constitutions. Most crimes are defined by statute.
It is easy for the defendant's counsel to claim that the statute
on which the prosecution is based is unconstitutional. If it be,
the accused is entitled to an acquittal; but if the jury acquit
him on that ground, and the ground is false, injustice is done.
Any such claim must be disposed of by the court, in order to give
the Constitution its due supremacy.[Footnote: State _v._
Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
American State Reports, 30.]

Mr. Justice Baldwin of the Supreme Court of the United States
came to the bench, in 1829, strongly inclined to minimize the
power of the federal judiciary. In one of his first cases on the
circuit, he charged the jury in a capital case that they were
judges of both law and fact, and if they were prepared to say
that the law was different from what he had stated it to be, were
not bound by the opinion of the court.[Footnote: United States
_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
before he found himself compelled to retreat from his position.
A man was being tried before him for forging notes of the United
States Bank, and his counsel claimed an acquittal because the law
incorporating the bank was unconstitutional, reading to prove it
the veto message of President Jackson, with the accompanying
documents. To the Jackson Democrats on the panel this was quite
an imposing argument, and Mr. Justice Baldwin was obliged in his
charge to sound the warning that for a jury to exercise the power
of treating an Act of Congress as invalid was virtually to give
us a country without a Constitution and without laws.[Footnote:

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