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The American Judiciary by Simeon E. Baldwin, LLD

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United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
Pennsylvania Law Journal for November, 1846, p. 9.]

In one of the Southern States where it is a statutory right to
demand instructions that the jury are the judges of the law, it
was the custom of a certain trial judge of commanding presence,
when called upon to give them, to say to the jury after he had
done so, rising to his full height, "But, gentlemen, you must
recollect that I have told you what the law that governs this
case is, and to this I am the only witness who has appeared or
could appear."

It was one of the acute observations of Alexander Hamilton that
under our American Constitutions judges are less to be relied on
by one who is attacked by the government, because those who
direct the government are the choice of the people, and whatever
they do is presumably popular. The judiciary, he said, was less
independent here than in England, and therefore we had the more
reason to cling to the trial by Jury and their power to render
general verdicts as our greatest safety.[Footnote: People
_v._ Croswell, 3 Johnson's Cases, 337, 353.]

The States which guard these most closely are those in which
there is the most jealousy of anything like a standing order, and
the widest scope of popular election. Georgia was the State,
among the old thirteen, in which these characteristics were most
marked. Her first Constitution of 1777 expressly threw the power
of determining the law into the hands of the jury in every case,
though they were allowed to ask the judges holding the court for
their opinion, in which case each judge gave his in rotation.
The party who lost his case could demand a new trial before a
special jury. The ordinary jury were to be sworn to bring in a
verdict according to law and the evidence, provided it be not
repugnant to the Constitution. The special jury were to be sworn
to bring one in according to law and the evidence, "provided it
be not repugnant to justice, equity, and conscience, and the
rules and regulations contained in this Constitution, of which
they shall judge." Apparently the meaning of this was that while
the decision of the first jury as to the law could be revised by
a second, that of the second, however contrary to the highest
law, could not be.

* * * * *

Resort is occasionally had to the assistance of a jury by a court
of chancery for the better disposition of some disputed question
of fact on which the equities of the parties depend. This cannot
(except by force of some express statute) be claimed as a matter
of right. The judge sends the issue to a jury for trial only if
he thinks it would be helpful to him, but their verdict has no
conclusive effect. He can adopt it or ignore it, at his

* * * * *

The selection of jurors is a long process. The general plan is
to commit to some local authorities in each city, town, or county
the choice of a considerable number out of the inhabitants whom
they may think suitable to serve in that capacity; then to have
that list revised by some higher officials or persons specially
appointed by the courts for the purpose, who must strike out a
large part of the names; and finally to have those who are to be
summoned to attend any particular term of court for jury duty
chosen by drawing from the remaining names by lot. In many
States special qualifications as to age, education, and
intelligence are required. Out of the jurors thus summoned to
attend the court, there is a further choice by lot of those to
try each particular case, subject to objections made by either
party to any thus drawn, for proper cause.

The statutes of the United States provide that jurors in the
Circuit and District Courts shall be selected in each State from
those qualified to serve in its highest trial courts, and in
substantially the same manner.

* * * * *

The right to a jury trial is in civil actions often waived by
both parties, in which case the facts as well as the law are
determined by the judge. If not expressly claimed, it is by the
rules of practice in some States treated as waived. The number
of civil causes tried to the jury, taking the country as a whole,
is declining. The decline is generally found to be quite
accurately proportioned to the confidence felt by the bar in the
ability and independence of the judge,[Footnote: See Paper by
Justice Henry B. Brown, in the American Bar Association Report
for 1889, p. 265, on "Judicial Independence."] or perhaps to that
confidence in the case of a former generation. Tradition and
custom have a large influence on whatever pertains to the
practice of law. In several of the States a majority of the
civil causes which might be tried to the jury are not: in
Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
in England is also toward dispensing with the jury in ordinary
civil trials. Over a million cases are brought every year in the
English county courts, and in not one in a thousand of them is
there a jury trial, although if the matter in demand is over L5
in value either party may claim it.[Footnote: Maitland, "Justice
and Police," 28, 29, 54. For small cases the jury is one of
five, but their verdict must be unanimous.]

Criminal trials, except in case of trivial offenses, it is
generally necessary to hold before a jury, by express provisions
of the Constitution.[Footnote: See Cooley, "Constitutional
Limitations," 389.] During the colonial era the defendant was
allowed in Massachusetts to waive a jury, even in capital
cases.[Footnote: Proceedings of the Colonial Society of
Massachusetts, VI, 95.] Statutory permission to the same effect
has since been given in some States where there is no
constitutional provision to the contrary.[Footnote: State
_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
the right to demand a jury in petty cases has been restricted in
a number of States.[Footnote: In New Hampshire, for instance, a
constitutional amendment was passed in 1877 denying it in cases
involving less than $100, unless title to land is involved.]

At common law the judges were accustomed and allowed to put great
pressure upon juries, if necessary, to force them to unite in
rendering a verdict. They could be kept together without food or
beds all night, and even carted about from one court town to
another until they were ready to report an agreement. Very
little of this practice remains in the United States. In some
States they are allowed to separate and go to their homes at
night during the trial even of a capital case, and while
deliberating over their verdict they are generally supplied with
food and other comforts.

The right of trial by jury was limited at common law to trials of
what are called "issues of fact;" that is, of the truth of a
statement of material facts made by one party and denied by the
other. If, therefore, in a civil cause a judgment has been
ordered for the plaintiff without a verdict, as where the
defendant has failed to appear and answer, it is for the court to
say for the recovery of what amount of damages the judgment shall
be rendered. It may inquire into this by the aid of a jury, but
such a jury need not consist of twelve. The inquiry may also be
conducted by the judge alone.[Footnote: Dyson _v._ Rhode
Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,

In most of our States this common law practice has been
abandoned, and damages, in cases of the kind above described,
would be assessed by a jury of twelve. This is because otherwise
a defendant who did not dispute his liability for the act
complained of and only wished to reduce the amount of damages
claimed in the writ might, after declining to appear and plead,
come forward with a motion to be heard by the court on the
question of damages. A motion of that kind would naturally be
granted, and the effect would be to transfer the decision of the
only actual controversy between the parties from a jury to a
judge. In Connecticut the old practice was maintained until
1907, and the courts held that on the hearing as to the damages,
in actions where there had been no contract between the parties
to fix the rule of assessment, the defendant might show, if he
could, that only nominal damages should be given, because really
the plaintiff had no cause of action at all.[Footnote: Lennon
_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
334.] The result was that many suits arising out of railway
accidents in that State were brought against the company in fault
in other States in which process could be served to compel its
appearance, and where a full jury trial could be secured. The
legislature finally interposed and gave the plaintiff a right to
claim a trial by jury, notwithstanding a default.[Footnote:
Public Acts of 1907, 665.]

* * * * *



The sessions of a court of record of general jurisdiction are
daily opened by a formal proclamation made, at the command of the
judge, by the crier or sheriff's officer in attendance. In many
States the ancient English style of expression has been
preserved, which dates back to the Norman conquest, and begins
with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
often closed with such words as (for instance) "God save the
Commonwealth of Rhode Island and Providence Plantations." The
adjournment from day to day is announced in a similar but less
elaborate manner.

Many courts hold a certain number of stated "terms" annually, the
first day of which is fixed by statute, and each of which is
adjourned whenever the business that may come before it is
finished, lasting sometimes but a few days and sometimes months.
In a number of States such terms are opened by prayer offered by
a minister of religion, invited in for the purpose by the sheriff
or court attendant. No regular chaplain is employed, and one
term may be opened by a Presbyterian minister and the next by a
Roman Catholic priest.

In some of the smaller counties in Massachusetts the sheriff or
his deputy daily escorts the judge to and from the court house,
in accordance with what has been the usage from colonial times.

Formerly it was the practice in New England to ring the bell of
the principal church in the town daily at the hour when court
opened.[Footnote: This was continued in Connecticut until the
last quarter of the nineteenth century.]

In many courts it is the custom for all present to rise on a
signal from the sheriff or marshal when the judge enters the
court room to take his seat on the bench. This is the general
usage in the federal courts and in the appellate courts of
States. In the latter a formal proclamation is often made by the
sheriff to announce the coming of the judicial procession,
concluding with a "God save the Commonwealth." In some States
formal bows are interchanged between bench and bar as the judges
take their places, after which the court is opened by the
customary proclamation and the bar then requested by the judges
to resume their seats.

The rules of official precedence are strictly observed in
appellate courts. In entering the court room the chief justice
advances first, and his associates follow in the order of the
dates of their commissions, the senior associate justice taking
his seat on his right, the second in seniority on his left, the
third in seniority on the right of the senior associate justice,
and so on; the junior in commission occupying the end seat on the
left of the bench.

The members of the Supreme Court and of the Circuit Court of
Appeals of the United States have always worn black silk gowns.
The members of the Supreme Court of South Carolina have worn them
from a time antedating the Revolution. The New York Court of
Appeals in 1877, at the request of the bar, preferred through
David Dudley Field, adopted the practice,[Footnote: In 1903 it
was extended to _nisi prius_ courts held by justices of the
Supreme Court.] and the same thing has since been done by
appellate courts in several other States. In one of these,
Massachusetts, they had been worn in the colonial era. About
1760, Chief Justice Hutchinson introduced gowns and cassocks
there on the Supreme bench, and also gowns, bands, and tie-wigs
for lawyers who were admitted as barristers of the Superior
Court.[Footnote: "Life and Works of John Adams," II, 133, note,
197.] The latter soon abandoned these, but gowns were retained
by the judges until 1793.[Footnote: Publications of the Colonial
Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
I, 261, note.] In North Carolina gowns and bands were worn by
the members of the Supreme Court in 1767.[Footnote: Proceedings
of the Colonial Society of Massachusetts, VI, 389.] In New
Jersey, the bar were at one time required to assume them by a
rule of the Supreme Court, but the rule was vacated in 1791.

At the first opening of the Supreme Court of the United States,
in 1790, Chief Justice Jay wore a gown with salmon-colored
facings on the front and sleeves, of the style then used by
Doctors of Laws created by the University of Dublin, from which
he had received that degree.[Footnote: 134 U. S. Reports,
Appendix.] It has not since, in that or any other American
court, been the practice for judges to wear academic hoods or
other decorations on the bench.

* * * * *

Counsel, in addressing the court, rise and begin with "May it
please the Court," "May it please your honor," or, before a court
in bane, "May it please your honors." The term "you" would never
be used to a judge on the bench; but that of "your Honor" would
be employed.

Great pains is taken by the officers in attendance to prevent
anything on the part of the audience that could in any way
disturb the proceedings, such as loud conversation or unnecessary
moving from place to place.

There is a good deal of antique form in the manner in which,
under the direction of the clerk, prisoners are arraigned and
juries are made up or "impanelled" for the trial of a cause.

In charging a jury, the judge commonly rises and the jury do the

When sentence is pronounced on a conviction for crime the
prisoner is required to rise. In cases of capital offenses, he
is asked by the judge if he has anything to say why judgment of
death should not be pronounced against him. It is highly
improbable at that stage of the cause that he should have
anything to urge which has not been already considered, but the
ancient English practice in this respect is still followed, for
it is not absolutely impossible that something may have occurred
since the verdict that would affect the judgment.

* * * * *



The great bulk of litigation is confined to the civil trial
courts, that is, to courts for the trial of ordinary causes
between man and man. It also has its seat in the trial courts of
the States, for not only is the judicial power of the United
States confined by the Constitution within narrow limits, but
these have been made still narrower by the action of Congress
from time to time.

Most lawsuits never get to trial. The defendant generally has no
defense, and is well aware of it. The suit is brought to obtain
security or force a settlement. He employs no lawyer and lets
things take their course. The result is a judgment against him
for default of appearance; for if one who has been duly summoned
to court to answer to a demand fails to attend and answer, the
court assumes that there is no answer that he could make, and
disposes of the cause on such evidence as the plaintiff may
produce. On the other hand, the plaintiff often does not care
for a judgment. He has become satisfied that, if he got one, he
could not collect it, or he has availed himself of the suit to
secure a compromise of the matter in demand on satisfactory
terms. In such case, or if, after bringing an action, he becomes
convinced that he cannot maintain it, he withdraws it, or if the
defendant insists, suffers a judgment to go against him, called a

In some States the writ or process by which the action is begun
must be accompanied by a full statement of the particular nature
of the plaintiff's claim. In others this is not required, and
such a statement is only furnished when specially ordered by the
court. If the case goes to trial on the merits, it will be on
such a statement furnished by the plaintiff, and on some paper
filed by the defendant by way of answer. Occasionally these
pleadings, as they are called, are such as to call out further
statements or claims by way of reply and rejoinder. Their form
is now generally regulated by statutes, and is much the same in
most of the States, being based upon a system known as "Code
Pleading," which originated in New York about the middle of the
nineteenth century. It is simpler and less technical than the
system under the common law which it replaced.

If the defendant has any objections to the maintenance of the
suit, on such a ground as that it is brought in a wrong court, or
a wrong way, these are first disposed of. Then, if he asserts
that the plaintiff on his own showing has no case, or if the
plaintiff asserts that the defense set up is insufficient on its
face, this being a question of law, the judge decides it without
the aid of a jury. When, however, the facts are in dispute, a
jury must be called in, if either party claims it, in an action
not of an equitable nature, when the matter in controversy is one
of any considerable amount.

In this country we adhere to the old common law mode of taking
exceptions to the legal sufficiency of written pleadings. This
was by filing a paper called a "demurrer," in which the
particular objections were set out, unless, as was frequently the
case, they were so fundamental as to be apparent at the first
glance. In many States, however, the objections must always be
particularized. In England demurrers are no longer used. Her
Judicature Act of 1873 put an end to the common law system of
pleading, reconstituted her whole method of judicial procedure,
and authorized the judges to make rules and orders from time to
time to adopt the new scheme to convenience in practice. One of
their orders, passed in 1883, abolished demurrers. In place of
them, the party desiring to have the benefit of points of law
arising on the face of the pleadings may state his point to the
court and ask to have it set down for separate argument before
proceeding to a trial of the cause on the facts. American
lawyers are not satisfied with the reasons which led to this
change. They were that the old practice made it a matter of
right to claim a special hearing on a law point, while the new
order would leave it to the discretion of the judge. The English
judges are few and able. Such a plan may work satisfactorily
under their administration, but it might often lead to useless
delays and expense if introduced in a country where judges are so
numerous and of such different qualifications as is the case in
the United States.

Our trial courts are now generally held by a single judge. Until
the latter half of the nineteenth century it was not uncommon to
have three judges sit together in county or city courts. One of
them would be a lawyer and the others not.[See Chap. VIII.] In
cities the two side judges were generally aldermen. A tribunal
thus constituted is better adapted in some respects to trying
questions of fact than a single judge. It is a jury of three
acting by a majority. But for the conduct of a jury trial it is
unwieldy, slow-moving and uncertain. In most cases any question
of law or legal practice will be virtually decided by the
presiding judge, but he will usually pause to go through the form
of consulting his associates. Occasionally they will overrule
him, and in such case it will be apt to be by a misunderstanding
or misapplication of law. The expense of three judges, however
moderate the compensation, has also weighed in favor of an
abandonment of the system. It naturally results in paying too
little to the chief judge, and too much to the others; and always
costs more than it would to pay one man a sufficient salary.

We have not the need of several judges to hold a trial court,
which is felt in many countries. They use them for a purpose
which our juries supply. For similar reasons Americans have not
seen any occasion for organizing special courts, such as are the
German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
try special classes of causes. A jury of twelve will be apt to
contain some men who will adequately represent those interested
in any ordinary industrial or commercial controversy.

Petty suits not of an equitable nature must generally be brought
before a justice of the peace, who disposes of them himself, both
as to matters of evidence and fact, but subject to an appeal to a
higher court in which a jury trial can be had. In some States he
can summon in a jury of six and leave the facts to their
determination. The pleadings before him are usually in the same
form as in the higher courts.

In jury trials of civil causes the judicial function is, so far
as possible, divided into two distinct parts. All questions of
pure law are decided by the judge alone. All questions of pure
fact are decided by the jury alone. All questions turning on the
application of the law to the facts are decided by the jury under
instructions from the judge as to what applications of the law it
would be competent for them to make under the particular
circumstances which they may find to have existed. The judge
also has a large discretionary power in minor matters arising in
the course of the suit. It is for him to say when it shall be
tried; whether the written pleadings are in proper shape, and if
not whether they may be amended; and in what order and within
what limits the evidence may be introduced.

No countries in the world have so artificial a set of rules of
evidence as England and the United States. This is because in no
other country is the right to a jury trial so extensive. Many of
these rules date back to the early history of the English common
law. It was a time of general illiteracy. The ordinary juror
could not read or write. His powers of reasoning and
discrimination had had little or no cultivation. It was thought
dangerous to allow him to listen to any evidence that was not of
the clearest and best kind. It was thought necessary to bring
all witnesses in person before him and let him hear their voice
and look into their faces in order to give him the fullest
possible opportunity to determine whether their testimony was
worthy of credit. But while our rules of evidence were devised
for jury trials, they are applied with equal rigidity in all
trials. A jury may be waived; a single judge may hear the cause;
and yet he must rule out of consideration whatever would have
been inadmissible if it had been made the subject of a jury

Much that in other countries is helpful in reaching a just
conclusion is in this manner shut out in American courts. A man
of the highest character, for instance, may say before twenty
listeners that he saw a certain person shoot and kill another,
and state how the whole thing happened. The person thus accused
is sued for damages under a statute permitting such a remedy by
the representatives of the man shot. Before the trial the
witness of the act dies. He was the sole witness. There is no
other testimony to be had. Under our system of practice, those
to whom the statement was made cannot be allowed to testify to
it. Such testimony would be "hearsay." It would put before the
jury two questions, first whether such a statement was really
made, and then whether, if made, it was true. The law of
evidence says that they ought not to be perplexed by questions
upon questions.

The tendency of American legislation of late years has been
strongly toward removing some of these artificial bars to getting
at the truth. The common law thought it dangerous to allow a
jury to hear any witness not under oath, nor under such an oath
as implied his belief in the existence of a God, or any witness
having a pecuniary interest, in the event of the cause. An
atheist or an agnostic could not testify. The plaintiff and the
defendant could not. These restrictions have been almost
everywhere repealed.

The trial judge has also, and necessarily, a large discretionary
power in excluding testimony which has only a remote bearing on
the case, and in limiting or extending the examination of a
witness so as on the one hand to prevent needless repetition, and
on the other to get out the truth and nothing but the truth. He
has similar authority to restrain the arguments of counsel within
reasonable limits.

A trial judge suddenly called upon to make a ruling on some point
of law in the progress of a trial may make a wrong one. If so,
he may have an opportunity to correct it at a later stage of the
proceeding. He has admitted evidence which should have been
excluded. In his charge to the jury he may instruct them to
disregard it, and his error will thus be cured. He has excluded
evidence which should have been admitted. Before the case is
closed he can change his ruling and allow it to come in. But so
long as any ruling stands unchanged, whether it is in accordance
with law or not, it is the law of the case for the purposes of
the trial. Counsel may endeavor to procure a reconsideration of
the question, but they cannot ask the jury to adopt a different
view from that taken by the judge. Their only remedy is by a
motion for a new trial, after the verdict, or proceedings in
error before a higher court.

* * * * *

Trial courts generally sit during a greater number of hours in
the day than appellate courts. This is particularly true when
they are held for short terms in a country shire town. In the
larger cities where they sit during a large part of the year they
generally have established hours from which they rarely depart,
such as from ten in the morning to five in the afternoon, with a
recess of an hour for lunch or dinner. Formerly nine o'clock was
a more common hour for opening court. In New York in 1829 the
sittings were from eight to three, when there was a recess of two
hours for dinner, and then from five till some time in the
evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs
of William Wirt," II, 231.]

The modern tendency everywhere is toward a shortening of the
hours of daily session, especially when an official stenographer
is employed.

The clerk keeps a docket-book in which each case returned to
court is entered and numbered. The entry reads thus:

John Doe


Richard Roe

Doe is here the plaintiff and Smith is the attorney who brought
the suit for him. Roe is the defendant and Jones is the attorney
who appears in his behalf. If there be more than one party on
either side the words _et al._ will be added, signifying as
the case may be, _et alius, et alii_ or et alium,_ or
should there be three or more defendants, _et als_,
signifying _et alios_.[Footnote: Another book is kept for
criminal cases, which are docketed as "The State _v._ John
Doe," in others as "The People _v._ John Doe," and in the
federal courts as "The United States _v._ John Doe."] From
this docket trial lists are made up for each term or session of
court. Assignments for trial are sometimes made by the court and
sometimes arranged by the bar subject to the approval of the
court. Several cases are commonly set down for each day, so that
if one falls out another may be ready, and in every case so
assigned the parties must be prepared at their peril to appear
and proceed at any minute when called upon.

In courts having a large docket of cases it is customary to set
apart one day in the week for the disposition of incidental
motions and for arguments on points of law.

When a case is called for trial the plaintiff's counsel opens by
stating its nature and the main facts as set out in the
declaration or complaint which he expects to prove. Sometimes
the pleadings on both sides are read at length. The plaintiff's
witnesses are then examined orally, after the examination of each
an opportunity being given for his cross-examination by the other
party. The testimony of witnesses whose attendance cannot be
had, which may include any living out of the State (or, in the
federal courts, over one hundred miles from the place of trial),
or who are infirm or sick, may be secured by previously taking it
down out of court in the form of a written deposition, under
oath, before a magistrate. In such case the adverse party must
have such notice as to enable him to be present and cross-examine
the deponent, or to file written cross-interrogatories.
Depositions are received in the same manner and subject to the
same objections as oral testimony. In cases in equity a
considerable part of the testimony is generally presented in
written form, either by depositions of the kind described or
certified by a special officer appointed by the court for the
purpose, who may be called an "examiner."

When the plaintiff's case has been thus presented, his attorney
announces that he "rests." The defendant's attorney then states
what he proposes to prove, and produces his evidence, at the
close of which the plaintiff has the opportunity to meet any
testimony so produced as to points not covered by the plaintiff's
case as presented "in chief," by rebutting testimony. Should
there be any new point brought out in the latter which the
defendant had not anticipated in presenting his case (which
rarely happens), he may now be allowed to introduce further
testimony as to that.

At the close of the evidence the plaintiff's counsel argues for
his client; the defendant's counsel replies; and the plaintiff's
counsel is then heard in answer to anything which has been said
in behalf of the other side.

If the trial has been had before a judge without a jury he then
commonly takes the written pleadings and makes up his decision at
his leisure; but if the case is plain may give final judgment on
the spot.

If the trial has been before a jury the parties argue as to facts
in dispute to them, but as to the law upon these facts to the
court.[Footnote: See Chap. XII.]

In some States the arguments on the latter question are made
before those on the former, and written requests or "prayers" for
instructions to the jury as to the law are submitted to the
court, upon which it passes before the jury are addressed. In
most States there is no such division of argument; judge and jury
are addressed in turn during the same speech, and counsel first
know what view of the law is taken by the court when the judge
gives his final charge.

In every jury trial, after all the evidence is in and the
arguments concluded, it is the duty of the court to instruct the
jury as to what the precise controversy is and what disposition
of the cause it would be permissible for them to make. If in
view of facts which are undisputed by either party there can be
in law but one conclusion, the judge should direct them to render
a verdict accordingly. But if the facts might fairly be found as
they are claimed to be by either party, he instructs them as to
the law applicable to the facts so claimed by each. He can, at
common law and by the practice in most States, give his own
opinion as to the weight of evidence on any point in controversy.

The common law requires unanimity on the part of the jury before
they can return a verdict. If it cannot be had they report a
disagreement, and the case stands over for another trial.

If they agree upon a verdict, it must, to be effective, be
accepted by the court. This acceptance is ordinarily a matter of
course, but if the verdict is plainly contrary to the evidence or
to the law as laid down in the charge, it may be set aside and a
new trial ordered. If it gives damages which are plainly
excessive, the judge may set it aside, unless the prevailing
party enters a _remittitur_ of a certain amount, that is,
formally stipulates on the record that the verdict shall stand
only for such sum as the judge may have thus indicated to be what
seems to him to be the utmost limit that ought to be allowed. In
some States, if the verdict is unsatisfactory to the judge,
though not so manifestly against the evidence that he would be
justified in setting it aside, he may return the jury to a second
consideration of the cause.

When a verdict is accepted judgment is rendered in accordance
with it. To this rule there are, however, certain exceptions.
It sometimes happens that a verdict is returned for a plaintiff
whose case as stated in his pleadings is one which in law is no
case; the defendant having failed to take this objection and made
his contest only on the facts. He then can ask the court not to
render any judgment upon it. This is technically called a motion
in arrest of judgment. Again, the verdict may be rendered, by
reason of the state of the written pleadings, on some immaterial
point, in favor of one party, when there are other points of
controlling importance in favor of the other, on which it has
been admitted that he is in the right. In such case the party
against whom the verdict is rendered may ask for judgment in his
own favor notwithstanding the verdict.

Verdicts are ordinarily given directly for the plaintiff or the
defendant. Printed blanks for such verdicts, one headed
"plaintiff's verdict," and the other "defendant's verdict," are
often handed to the jury when they retire, to choose from
according as they may find the facts. Such a verdict is called a
general verdict. Occasionally one of a different form is
returned at the request of counsel and by the permission of the
court. This is termed a "special verdict," and sets forth the
particular facts as found by the jury in detail, without finding
the ultimate issue for either party. This is only proper when
such a finding would have been simply a legal conclusion from
these facts. A special verdict leaves it to the court to apply
the law and render judgment as that requires.

In many causes the testimony is all taken out of court, before
some officer or arm of the court, who only reports his
conclusions from it as to the matters in controversy. This is a
common practice in equity, the case being sent to a "master in
chancery" for this purpose. In cases of a common law nature the
consent of both parties is generally required; but with that any
cause may be disposed of before an arm of the court commonly
termed an "auditor," "referee" or "committee."

The report of such a hearing sometimes is confined to the facts
which are found to have been established. In other cases it may
extend to a provisional decision of questions of law arising on
those facts. The ultimate decision of any question of law is
always for the court, and if it accepts the report it is its duty
to draw the proper legal conclusions from the facts established.
As to whether the report shall be accepted, and as to the legal
questions arising upon it, the parties have a right to be heard
in court. Improper or irregular conduct on the part of the
officer making the report may be shown as a cause for rejecting
it. If it is accepted the facts found generally stand as
conclusively established.

Equity causes are generally tried before a single judge, who
decides all questions both of fact and law, proceeding in the
same manner as in a common law cause in which a jury has been

* * * * *



The English common law regarded wills of lands as in the nature
of conveyances, the due execution of which, if ever called in
question in a lawsuit, was to be established then and there; but
if never so called in question, need never be established at all
by any judicial proceeding. Wills of personal property, on the
other hand, were to be proved as soon as might be before an
ecclesiastical court, and unless so established were ineffectual.

This difference in the treatment of the two kinds of wills was
due to the legal principle that so far as personal rights and
obligations were concerned the personality of the dead was, after
a certain fashion, continued in existence by attributing
personality to their estates. These were to be administered by
some one as the "personal representative" of the former owner.
This personal representative discharged his personal obligations
so, far as there might be personal estate or rights of property
sufficient for the purpose. He was styled an executor if
designated by will; an administrator if there were no
testamentary appointment. A man's lands, however, went upon his
death straight to his heirs unless he had by will conveyed them
to some one else. That when he died they were part of his estate
did not charge them with the fulfillment of his personal
obligations. For the discharge of these the creditor must resort
to his personal representative. His heirs occupied no such

The administrator was always appointed by an ecclesiastical court
and rendered his accounts to it. Long use and the existence of a
State church with a regular judicial establishment, made such a
system tolerable to the English people; but the new conditions
under which those of them came who planted the American colonies
made it both intolerable and impossible here.

While most of the colonies had an established church, none had
bishops or bishops' courts. The bishop of London claimed a
certain jurisdiction over all, but in none was it recognized as
extending over the estates of the dead. In the Crown colonies
the instructions to the Governors generally referred to it as
sanctioned by the government but not as extending to the probate
of wills. Some of the Governors were given _ex-officio_
full probate powers.[Footnote: "The American Jurisdiction of the
Bishop of London," Transactions of the American Antiquarian
Society, Vol. XIII, 188, 194, 197.]

The same considerations which early led to the general adoption
of a recording system for deeds of land in all the colonies
extended to wills, since they also might convey it. Such
records, to attain their purpose, had to be public in the fullest
sense. Nothing was allowed to go upon them which had not some
kind of authoritative sanction proceeding from the State. Deeds
were first to be acknowledged before a magistrate. As to wills,
the practice finally came to be to require them to be established
once for all as the act of the testator by a court invested with
special jurisdiction for that purpose, and also over all estates
of those who die leaving no will. This, if organized for that
special function particularly, is ordinarily styled a Court of
Probate, occasionally a Surrogate's Court or Orphans' Court. It
is sometimes given, and sometimes not given, a certain authority
over the real property within the State while the estate is in

All real estate left by a decedent is ordinarily made, by
statute, liable for his debts in case of a deficiency of personal
property, except so far as it may be charged with a right of
dower. Even if it has gone into the possession of an heir or
devisee, the proper Probate Court can order its sale for this
purpose, if it should appear on the allowance of the
administration account to be necessary.

The formal establishment or "probate" of a will does not affirm
the validity of its provisions. It simply adjudges the
instrument to be a will legally executed by one competent to make
it and who had a home or property within the territorial
jurisdiction of the court. Commonly, if not universally, an
opportunity is given, either in the first instance or by appeal
to a higher court, to have these questions tried before a jury.

The succession of particular persons to the property of the dead
is not a matter of natural right. It rests upon positive law and
is regulated by the authority of the government at its
pleasure.[Footnote: United States _v._ Perkins, 163
U. S. Reports, 625.] Probate procedure is therefore wholly
determined by local legislation and practice.

In many States, probate jurisdiction belongs to the county
courts. In others it is invested in local courts for lesser
subdivisions of territory with the purpose of cheapening the
settlement of estates. In a few these local courts are very
numerous, all the towns of the State being distributed into small
groups and each furnished with its Probate Court, the judge of
which, in many instances, has had no legal training, and receives
no compensation except stated fees for such business as may
actually come before him. An appeal is given from his orders to
a higher court of general jurisdiction. In practice such a
system works fairly well. If there are suitable lawyers in the
group of towns forming a probate district, one of them who
belongs to the prevailing party is generally made the judge if he
will accept the office, and if he fills it well is apt to be
re-elected, whichever party may then be uppermost. If a lawyer
is not appointed and a case of any difficulty presents itself,
the judge will probably consult some counsel in whom he feels
confidence, and who will be sufficiently flattered by the request
to advise him without making any charge for it.

The proper seat of administration is in the State and the local
subdivision of the State where the dead man belonged.
Proceedings there affect all his personal property wherever it
may be found, and generally his real estate situated anywhere in
the State. Real estate in another State can be affected by
probate proceedings only if they take place there, by its
authority. For that purpose "ancillary" administration is often
taken out, that is, one designed to serve the interests of the
general succession as administered in the seat of the principal

Since the right of a personal representative to act for the
estate of the dead comes from the positive law of the particular
sovereign having the proper jurisdiction, and since no law of a
particular sovereign can be enforced, by virtue of his power or
anything dependent on it, outside of his territorial
jurisdiction, it follows that no executor or administrator can of
right maintain a suit, as such, out of the State from the laws of
which he derives his authority. He may take possession of the
goods of the estate found in another State, or collect debts due
from its citizens if no objection be made, but if forced to claim
the aid of judicial process he must first prove his title there
before the appropriate Probate Court by taking out ancillary
administration, in which case he will probably be compelled to
give security for the proper discharge of his duties under such

* * * * *



It is within the power of Congress to assume the exclusive
regulation of bankruptcy proceedings throughout the United
States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is
in this country no real difference in meaning between the terms
bankruptcy and insolvency. Each denotes a _status_ into
which one unable to pay his debts, as and when they fall due, may
put himself, or be put by his creditors. The remedy is not
confined to any particular classes of persons, and no more fault
is implied on the part of one who is adjudged a bankrupt than on
the part of one who is adjudged an insolvent.

During most of the history of the United States there has been no
uniform law on the subject of bankruptcy for the whole country.
Three bankrupt Acts were enacted by Congress from time to time
during the first century after the adoption of the Constitution.
Each followed some serious financial crisis, and was repealed not
long after the immediate effects of the crisis had passed away.
They were adopted as a kind of [Greek: seisachtheia] to help
insolvent debtors to get on their feet again. A later Act passed
in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large,
544; 32 _id._, 797.] and as it contains many provisions
which have been found useful by creditors as well as by debtors,
it is not unlikely to remain permanently upon the statute-books.

The prosperity of the United States rests mainly on the absolute
free trade which exists between the several States. That
necessarily results in innumerable credits extended by citizens
of one State to those of others, and in immense property
interests in each State belonging to non-residents. In case of
insolvency full justice can not be worked out except through the
legislative powers vested in the United States.

The Act of 1898 allows any one except a corporation to become a
voluntary bankrupt. Practically any insolvent debtor can be
thrown into involuntary bankruptcy, except wage earners, farmers,
incorporated banks, or business corporations owing less than
$1,000. This is so even if a State court of insolvency has
already taken charge of his affairs; and if that has occurred it
is of itself a sufficient reason for bankruptcy proceedings.

Petitions in bankruptcy are preferred to a District Court of the
United States. Each bankrupt estate is put in charge of one or
more trustees. They can maintain actions to recover or protect
it, as a general rule, in the courts of any State as well as in
those of the United States.[Footnote: See Bardes _v._ Bank,
178 U. S. Reports, 524.]

Their title does not extend to anything which by the laws of the
State where the bankrupt belongs is exempt from his creditors.
Such exemptions differ greatly in different parts of the country.
In some States certain property of the value of $5,000 may be
exempt; in others the amount which the debtor can retain is
comparatively trifling. There is, therefore, no uniformity in
the result; but there is, nevertheless, uniformity in the rule
under which the results are reached, and this is enough to
support the validity of this provision of the statute.[Footnote:
Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]

The bankrupt may propose a composition to his creditors, and it
may be accepted by a majority of them in number if they also hold
the major part of the indebtedness. If such an acceptance is
confirmed by the court the entire indebtedness is discharged when
the total amount to be paid (including whatever is necessary to
discharge all preferred claims) is deposited in court.

A discharge may be granted to every honest bankrupt (whether his
estate pays anything to his creditors or not), which clears him
forever of all his ordinary debts. It does not apply to taxes
nor to liabilities for certain wrongs of an aggravated character;
nor can two successive discharges in bankruptcy be procured
within six years unless the first was the result of involuntary

Whenever there has been no national bankruptcy law in existence,
the States have been held to be free to pass such insolvent laws
as they might think proper. During the existence of a national
bankruptcy law no State insolvent law can be of any force which
covers the same field.[Footnote: Ogden _v._ Saunders, 12
Wheaton's Reports, 213; Tua _v._ Carriere, 117
U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports,
709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded
or suspended as a necessary effect of the enactment of the Act of
Congress, although that contains no express provision to that

Most of the States have on their statute-books provisions for a
permanent system of insolvency proceedings. In some they are as
favorable to the debtor as the United States bankrupt law of
1898: in more they are less favorable. Generally such
proceedings are brought before a court of special jurisdiction,
constituted both for this purpose and for the settlement of the
estates of deceased persons and of those who are incapable of
managing their own affairs. In the older States it is often made
a condition of a discharge that the creditors shall have received
a certain percentage of their claims.

The relief which the States are competent to give either to
debtor or to creditor is very inadequate. The discharge of the
debtor is of no avail except as against those creditors who were
subject to the jurisdiction of the court. None are so subject
except those belonging in the State, or actually taking part in
the proceedings.

Every bankruptcy or insolvency proceeding is a great lawsuit.
The discharge is the final judgment in it. It can bind none who
are not parties to the action. Only those are parties who were
bound to appear, or who did appear. No one belonging to any
other State or country can be bound to appear, unless in the rare
case of a personal service of proper process upon him, made while
he was within the territorial jurisdiction. Any creditor,
wherever he may reside, who files a claim against the insolvent
estate, or receives a dividend from it, makes himself a voluntary
party. But as against a non-resident who keeps aloof and takes
no part in the proceedings the discharge is worthless, even in
the courts of the very State by authority of which it was

On the other hand, the creditor gets less aid from the State
courts than a trustee in bankruptcy. The trustee in bankruptcy
can sue in any court in the country in which the debtor could
have sued for the same cause of action. The trustee or assignee
in insolvency, acting under the appointment of a State court, can
only sue within that State, unless his title has been fortified
by a conveyance from the insolvent which would be good at common
law. So far as his title rests on a law, by which it was taken
away from the bankrupt and vested in him, it is ineffectual
wherever that law is ineffectual; and the law of no sovereign is
effectual of its own force outside of his territorial

*[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337;
Hale _v._ Allinson, 188 U. S. Reports, 56.]*

If, therefore, as is commonly true in estates of any magnitude,
part of the assets can only be recovered by suit in other States,
there must be ancillary insolvency proceedings there, to clothe
the principal assignee with the right of action. Should the
insolvent be the owner of land in another State, the title to
this can only be transferred in accordance with its law, and a
foreign assignment in insolvency will be wholly ineffectual. Nor
will ancillary proceedings in insolvency be allowed to prejudice
the rights of citizens of the State in which they are instituted
to any security which they might otherwise have for debts due
them from the insolvent.[Footnote: Ward _v._ Conn. Pipe
Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers'
Reports Annotated, 706; 71 Am. State Reports, 207.] The right,
however, of every sovereignty to postpone claims under a foreign
bankruptcy or insolvency to the interests of its own people is
modified in the United States by the constitutional provision
that the citizens of each State are entitled to all privileges of
citizens in the other States.[Footnote: Blake _v._ McClung,
172 U. S. Reports, 239.]

* * * * *



The American system of criminal procedure rests on the principle
that the government should decide on the propriety of beginning
all prosecutions, and then should bring and maintain, at its own
expense, such as it may deem proper.

The first step ordinarily is the filing by an informing officer
of a written complaint in the office of some court or with some
magistrate, upon which a warrant of arrest issues as of course.
In some jurisdictions original informations in a trial court, as
distinguished from indictments, can only be filed by leave of
court first obtained. Such is the rule in the courts of the
United States.[Footnote: United States _v._ Smith, 40
Federal Reporter, 755.]

There is no such preliminary consultation with judicial officers
as characterizes European criminal procedure. The prosecuting
officer assumes the entire responsibility of initiating the
prosecution and of giving it the particular form that it may
assume. He commonly acts only on such matters as are officially
brought to his attention by constables or other officers of
police. It is rare that the party injured by an offense
complains to him personally. Hence many of the lesser offences
go unpunished, particularly in large cities, because the police
fail to report them, on account of favoritism or corruption.

The warrant refers to the complaint for its support. Between
them, the offense charged, the person accused, and the thing to
be done by the officer who is to make service must be
particularly stated. "General warrants," that is, warrants of
arrest or seizure, not specifying the person who is to be
arrested, nor the particular place where the seizure is to be
made, are expressly forbidden by the fourth amendment of the
Constitution of the United States as respects federal courts, and
as respects those of the States, are generally prohibited by
their Constitutions.

Any private individual may, by night or day, arrest without
warrant one whom he sees committing a felony or a breach of the
peace or running off with goods which he has stolen. If he knows
that a felony has been committed and has reasonable grounds for
suspecting that it was the act of a certain person, he may arrest
the latter, although without personal knowledge of his guilt.

A sheriff, constable, or other peace officer may arrest without
warrant any one whom he has reasonable ground for suspecting to
be guilty of a felony, although it may turn out that no such
felony was ever committed. For any ordinary misdemeanor he could
not, at common law, arrest without a warrant, unless he
personally witnessed the wrongful act or was near enough to hear
sounds indicating what was being done.

In practice, officers of local police arrest freely on mere
suspicion and with no personal knowledge either that any offense
has been committed or that, if any, the person taken in charge
was connected with it. The only risk which they run is of an
action for damages, and that is slight. If one were brought and
they showed that they acted in good faith and not wholly without
cause, the amount recovered would probably be very small, and in
any case it would be difficult to collect a judgment against one
of them, as they are generally men of small means.

In some of the original States a justice of the peace or higher
magistrate, in whose actual presence certain misdemeanors were
committed, could deal with the offender summarily and sentence
him to a fine without any written complaint or warrant. This was
a survival of colonial conceptions of the majesty of official
station, and the statutes justifying the practice soon became
practically obsolete.

It is one of the distinguishing features of the English system of
criminal procedure that any private individual can initiate a
criminal prosecution, and that prosecutions are generally
instituted in that manner. In doing so, he exercises a right
belonging to every member of the general public, and the
proceeding is, in that point of view, a public one.[Footnote: See
Maitland, "Justice and Police," 141.] At common law there were
but two guaranties against thus bringing forward frivolous or
malicious accusations. The complainant was obliged to verify his
charge by oath, and he was liable to a civil action if the
defendant was acquitted and it appeared that there was no
reasonable ground for the prosecution.

In some of our States, also, if any private individual files a
complaint under oath before a proper magistrate accusing another
of a properly specified offense, a warrant of arrest may issue.
In many there are statutes authorizing _qui tam_ actions to
be brought by any one. These are actions to recover a statutory
penalty prescribed for some wrongful act in the nature of a
misdemeanor. The term _qui tam_ comes from the Latin terms
of the old English writ used for such proceedings, in which the
plaintiff describes himself as one _qui tam pro domino rege
quam pro seipso in hoc parte sequitur_. The plaintiff is
styled "a common informer," and his action is for the joint
benefit of himself and of the State, or of some other public
corporation or officers designated by the statute. He is
sometimes given an option to sue in the form of a civil action,
or by an information and the use of criminal process. In
proceedings of the latter description a warrant issues upon which
the defendant is liable to arrest.[Footnote: Canfield _v._
Mitchell, 43 Conn. Reports, 169.] The action may, under some
statutes, be brought in the name of the government, though by and
at the cost of the informer. In such case, unless it is
otherwise provided, he retains the exclusive management of the
cause as fully as if he appeared as the sole plaintiff on the
face of the record. If the plaintiff obtains judgment, and
collects the penalty, he must pay half of it over to the
government. If he fails, he is personally liable to the
defendant for the taxable costs of the action. Under such a
statute, a public prosecuting officer can sue for the entire
penalty, whenever no action has been brought by a private

The tendency of modern American legislation is toward placing the
collection of penalties for misdemeanors wholly in the hands of
public officers. The _qui tam_ action is certainly a cheap
mode of enforcing laws, and one likely to be pressed to a prompt
issue. As observed by the late Judge Deady, "prosecutions
conducted by such means compare with the ordinary methods as the
enterprising privateer does to the slow-going public
vessel."[Footnote: United States _v._ Griswold, 24 Federal
Reporter, 361; 30 _id_., 762.] But they appeal to sordid
motives and are liable to abuse. One who is exposed to such a
suit often gets a friend to bring it, in order to forestall
proceedings by others or by the State, and with a view to
delaying or defeating the collection of the penalty. These
considerations induced Parliament to restrict the remedy in
England as early as the reign of Henry VII, and have proved of
equal force in course of time in the United States.

Justices of the peace and local municipal courts of criminal
jurisdiction are generally given power to deal finally with a few
petty offenses, subject to a right of appeal to a court where a
jury trial can be had. As to all others, their function is, when
the warrant of arrest has been executed, to inquire whether there
is probable cause for holding the defendant to answer to the
charge which has been made against him in a higher court, and if
they find that such cause exists, to order him to give sufficient
security that he will appear before it for trial. The question
is not whether the evidence satisfies them of his guilt, but
simply whether it is sufficient, in their judgment, to make it
proper to send him where the charge can be more thoroughly
investigated by those who have the right to condemn or to acquit.
In making this inquiry, they hear both sides, if the defendant
has any testimony to offer. In most States he is now a competent
witness in his own behalf, provided he desires to testify.

He cannot be interrogated in any court or before any magistrate
without his consent. This is a weakness in the American system
of criminal procedure. Under the English system of prosecutions
by private persons, there are greater objections to subjecting an
accused person to an examination, and it can now only be had by
his consent.[Footnote: Maitland, "Justice and Police," 129.] The
certainty in England also that criminal prosecutions may in any
case be subjected to the power of a public officer by the
interposition of the Attorney-General or the Director of Public
Prosecutions makes it more important to safeguard a defendant who
may be arraigned for a political offense, and whose prosecution
may be inspired by reasons of a partisan nature. The magistrates
upon whom the task of conducting or superintending the
examination would naturally fall are also largely both
representative of class interests and unlearned in the law.

In the United States local prosecutors are often of a different
party from that which controls the State or the United States.
They have no close connection with those administering the
general affairs of the government. They hold office for fixed
terms, not dependent on any shifting of parliamentary majorities
or change of ministry. Committing magistrates are in a similar
position. They are also in many cases trained lawyers. If our
Constitutions could be so modified or so construed as to allow
them to ask the accused the questions that the sheriff who makes
the arrest or the reporter who hurries after him to the jail is
sure to ask, there are many reasons for believing that it would
oftener prove a safeguard to innocence than an occasion for
extorted and perhaps inconsiderate or misunderstood admissions.
And be that as it may, it would certainly lead up to important
clues, and frequently bring out admissions that were both
unquestionably true and necessary to establish guilt.

The fifth amendment to the Constitution of the United States, and
similar provisions in the various State Constitutions, preclude,
so long as they stand, any radical reform in this direction.
They speak for a policy that was necessary under the political
conditions preceding the American Revolution, but which is out of
harmony with those now existing in the United States. The
interests of society are greater than those of any individual,
and yet it is with us the State that is deprived in public
prosecutions of an equal chance with the accused. While burdened
with the necessity of proving his guilt beyond a reasonable
doubt, it cannot, according to the prevailing judicial opinion in
this country, so much as ask him at any stage of the prosecution
where he was at the time when the crime charged was committed.

The terms of our Constitutions are not such as necessarily to
demand the construction which has been generally given them by
the courts. They have been commonly interpreted with a view to
making them as helpful as possible to the accused.[Footnote: Boyd
_v._ United States, 116 U. S. Reports, 616.] Provisions
against compelling him to testify have been treated as if they
forbade requesting him to testify. They would seem, on
principle, quite compatible with a procedure under which the
committing magistrates should in every case ask the defendant
when first brought before them whether he desires to make a
statement, telling him at the same time that he can decline if he
chooses. Should he then make one, it should be written down at
length in his own words, read over to him for his assent or
correction, and properly attested. Many a guilty man is now
acquitted whose conviction could have been secured on what such a
paper would have disclosed or have given a clue to ascertaining.
Such an inquiry has long been the English practice.

The hearing before the committing magistrate, if any contest is
made, generally does not take place until some time after the
arrest. Each party is apt to wish time to prepare for it.
Meanwhile, the defendant can generally claim the privilege of
release on bail, unless the crime be capital and the
circumstances strongly point to his guilt. Here our practice
differs from that of an English court of inquiry. While there
bail must be allowed in case of misdemeanors and may be in case
of felonies; the amount required is frequently so large as to be
prohibitory.[Footnote: Maitland, "Justice and Police," 131.]

The essence of bail is that the prisoner should enter into an
obligation, together with one or more others of pecuniary
responsibility as his sureties, to appear whenever he may be
called for in the course of the pending proceeding, on pain of
forfeiting a certain sum of money. All our Constitutions forbid
the taking of excessive bail. The sum should be large enough to
give a reasonable assurance that he will not allow it to be
forfeited. In fixing the amount, which in each case is left to
the good judgment of the officer before whom it is taken, special
regard should be had to the gravity of the offense, the nature of
the punishment in case of conviction, and the means of the
defendant or his friends. If too large an amount is demanded,
the defendant can get relief on a writ of _habeas corpus_
issued by some superior judge.

This privilege of bail in most States extends to, or at the
discretion of the court may be allowed at, any stage of a cause,
not capital, even after a final judgment and sentence, provided
an appeal has been allowed with a stay of execution.

Bail is given orally or in writing, according to the practice of
the particular State. When given orally, it is termed a
recognizance. This is entered into by the personal appearance of
those who are to assume the obligation before a proper magistrate
or clerk of court, and their due acknowledgment before him that
they do assume it. He makes a brief minute of the fact at the
time, from which at any subsequent time he can make up a full
record in due form. When bail is given in writing, the
obligation is prepared in behalf of the government and executed
by the parties to it.

Whoever gives bail as surety for another is by that very fact
given a kind of legal control over him. He can take him into
actual manual custody without any warrant, and against his will,
for the purpose of returning him to court and surrendering him to
the sheriff. This right is a common law right, arising from the
contract of suretyship, and is not bounded by State lines. If
the principal absconds from the State, the surety can have him
followed and brought back without any warrant of arrest.

The amount of the bail, should it be forfeited, is payable either
to the government or to some other representative of the public
interests, as may be prescribed by statute. If the sureties have
any equitable claim to relief by a reduction of the amount, there
is often given by statute or judicial practice a right to the
court in which the obligation was given or before which its
enforcement is sought to grant a reduction from the sum which
would otherwise be due upon it.

When a committing magistrate requires the defendant to give bail
to appear in a higher court, and he does not give it, he will be
committed to jail to await his trial there. In this court he is
sometimes tried on the complaint upon which he was originally
arrested: oftener a new accusation is prepared. This may be
either an information or an indictment.

At common law, no one could be tried for a felony unless a grand
jury were first satisfied that there was good ground for it. The
grand jury consisted of not more than twenty-four inhabitants of
the county, and in practice never of more than twenty-three,
summoned for that purpose to attend at the opening of a term of
court. To authorize a prosecution the assent of twelve of them
was required. They heard only the case for the prosecution, and
heard it in secret, after having been publicly charged by the
court as to the nature of the business which would be brought
before them. The court appointed one of them to act as their
foreman, and he reported back their conclusions in writing, and
in one or the other of two forms--by presentment or indictment.

A presentment was a presentation, on their own motion, of an
accusation against one or more persons. They were the official
representatives of the public before the court, and it might well
be that offenses had occurred, and become matters of common
notoriety, prosecutions for which no one cared or dared to bring.
Such a proceeding was comparatively rare.

The common course was to pass only on such written accusations as
others might submit to their consideration. These were called
bills of indictment. If the grand jury believed that there were
sufficient grounds for upholding any of them, their foreman
endorsed it as "A true bill," and it then became an indictment.
If, on the other hand, they rejected a bill of indictment as
unfounded, the foreman indorsed it as "Not a true bill," or with
the Latin term "_Ignoramus_," and this was the end of it.

The organization and functions of the American grand jury are
similar, except that here we have prosecuting attorneys to
procure the presence of the necessary witnesses and direct the
course of their examination. In the Federal courts almost all
criminal accusations, great or small, are, and by the fifth
amendment to the Constitution of the United States all charges of
infamous crimes must be, prosecuted by presentment or indictment.
In most of the States the intervention of a grand jury is
requisite only in case of serious offenses; in some only in
capital cases. It is obvious that it is less needed here than in
England, since here it is not within the power of any private
individual to institute criminal proceedings against another at
his own will, but they are brought by a public officer
commissioned for that very purpose and acting under the grave
sense of responsibility which such authority is quite sure to
carry with it. The grand jury, however, has its plain uses
wherever political feeling leads to public disorder. It has
also, since the Civil War, been found an effective restraint in
some of the Southern States, whether for good or ill, upon
prosecutions for violations of certain laws of the United States,
brought against members of a community in which those laws were
regarded with general disfavor.

Prosecutions by information are those not founded on a
presentment or indictment. The information is a written
accusation filed in court by the prosecuting officer. In certain
classes of cases, the leave of the court must be first asked in
some jurisdictions. It is not necessary that it be supported by
any previous statement or complaint under oath. The officer who
prepares it acts under an oath of office, and that is deemed
sufficient to give probability to whatever charges he may make.

If the defendant has already been bound over by a committing
magistrate, such an information may take the place of the
original complaint on which the arrest was made. If he has not
yet been arrested, or if he was arrested and discharged by such a
magistrate, the filing of an information is accompanied by a
request for the issue of a warrant for his arrest from the court.
Such a paper is called a bench warrant, and is granted whenever
necessary, whether upon a presentment, indictment, or

An information may be amended by leave of the court at any time.
A presentment or indictment cannot be. They, when returned to
court, are the work of the grand jury, and they end its work. An
amendment of a legal process can logically be made only by the
hand which originally prepared it. This rule leads to the escape
of many a criminal. If prosecuted by indictment, the case
against him must be substantially proved--in whole or part--as
there stated, or he goes free. Prosecuting officers therefore
naturally prefer to proceed upon information whenever the law
permits it.

The intervention of a grand jury is also often the necessary
cause of a delay alike prejudicial to the State and to the
prisoner. It can only be called in when a court is in session,
by which it can be instructed as to its duties and to which it is
to report its doings. Months often elapse in every year when no
such court is in session. For this reason, in case of a poor man
under arrest on a charge of crime, who cannot furnish bail, it
would often be much better for him were his liability to be
brought to trial to be settled promptly by a single examining
magistrate. At the hearing in that case also he has a right to
be present and to be heard. Before a grand jury he has no such

In most States, the great majority of indictments are against
those who have already been committed on a magistrate's warrant
to answer to the charge, should an indictment be found. The
accused thus has two chances of escape before he can be put on
trial for the charge against him: one by a discharge ordered by
the committing magistrate, and one by the refusal of the grand
jury to return "a true bill." A grand jury is more apt to throw
out a charge as groundless than a single magistrate. He feels
the full weight of undivided responsibility. If he err by
discharging the prisoner, he knows that it may let a guilty man
go free, untried. If he err by committing him for trial, he
knows that, if innocent, the jury are quite sure to acquit him.
He acts also in public. The whole community knows or may know
the proofs before him, and will hold him to account accordingly.
On the other hand, in the grand jury room all is secret. The
prosecuting attorney, if admitted, does not remain while the
jurors are deliberating over their decision. No one outside
knows who may vote for and who against the return of an
indictment. Every opportunity is thus afforded for personal
friendship for the accused or business connection with him to
have its influence. Judges know this, and in their charge often
emphasize the importance and gravity of the duty to be performed.
In 1903, the prosecuting officer in one of the small counties in
Kentucky had prepared indictments against several men of some
local prominence for arson and bribery. A special grand jury was
summoned to act upon them. There was reason to expect some
reluctance on the part of several. Of the witnesses for the
State some were no less reluctant. There was great public
excitement in the court town. One witness came there over ninety
miles by rail hidden, for fear of his life, in a closed chest in
the car of an express company. The grand jury were told by the
court that they must make their inquiry a thorough one and indict
without fear or favor every person in the county who ought to be
indicted. "If," the judge added, "the evidence calls for
indictments and you don't make them, they will be made anyway.
If you do not do your full duty, I will do mine by assembling
another grand jury." They did theirs under these stirring
injunctions, and the indictments were promptly found.

After the indictment or information comes the arraignment. This
is bringing the defendant before the court and, after the charge
made against him has been read, directing him to plead to it.
Before the plea is entered, if he has no counsel, he is asked if
he desires the aid of one, and if he responds that he does (or
should he not, if the court thinks he ought to have counsel),
some lawyer will be assigned to that duty. Some of the younger
members of the bar who are present are generally desirous of
being so assigned to defend those who have no means to employ
such assistance. The court ordinarily makes the assignment from
among their number, but in grave cases often appoints lawyers of
greater experience and reputation. No one who is so assigned is
at liberty to decline without showing good cause for excuse. A
small fee is often allowed by statute in such cases from the
public treasury. Statutes are also common providing that
witnesses for the defense may be summoned at the cost of the
government, if the defendant satisfies the court that their
testimony will be material, and that he is unable to meet this

In the federal courts, in capital cases, the defendant must be
furnished with a copy of the indictment and a list of the jurors
summoned to court and of the government witnesses, at least two
days before the trial.

Whether impanelling the jury for the trial of a case is a long or
short process will depend largely on the intelligence and
firmness of the judge who holds the court. Each side can
challenge a certain number of the jurors in attendance without
stating any reasons for it, as well as any and every one of them
for cause shown. If a juror has formed an opinion as to the
guilt of the accused so definite as to amount to a settled
prejudice against him, he is incompetent. In grave cases the
prisoner's counsel will often seek to examine every juror whose
name is drawn at great length as to whether he has such an
opinion. A capable judge will keep such an inquiry within close

In 1824, an indictment for murder was found in Kentucky against a
son of the Governor. The case was one which excited great public
interest, and was talked over from one end of the State to the
other. The result was that when the trial came on it was found
impossible, term after term, to make up a jury of men who, from
what they had heard or read, had not formed what the defense
claimed and the court thought to be a sufficiently firm opinion
as to the guilt or innocence of the accused to justify their
exclusion. The legislature was finally appealed to for relief
and passed a statute that an opinion formed from mere rumor
should not be a ground of challenge. The case was then, in 1827,
taken up for the ninth time, but with the same result, whereupon
the defendant's father gave him a pardon, on the ground that "the
prospect of obtaining a jury is entirely hopeless," and that he
had "no doubt of his being innocent of the foul
charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,

When a capital case is coming on, great pains will often be taken
by the prisoner's counsel to ascertain the characteristics and
disposition toward his client of each of the jurors who have been
summoned to court. This has sometimes been carried to the extent
of trickery, particularly in some of the Southern States. Agents
have been sent over the county to see every man capable of jury
service. There is some ostensible reason given for the call. He
is perhaps asked to buy a photograph of the accused; perhaps to
contribute to a fund to provide him with counsel. This naturally
leads to some expression of opinion in regards to the charge made
against him, and if the man thus "interviewed" should be
afterwards offered as a juror, he is challenged or not challenged
according to the information so obtained.

In every criminal case the defendant's guilt must be proved
beyond a reasonable doubt. A mere preponderance of evidence is
not enough. In other respects the rules of evidence are
applicable which obtain in civil cases.

If a verdict of Not Guilty is returned, the court orders the
discharge of the prisoner, as a matter of course, unless
provision has been made by statute for an appeal by the State for
errors of law committed on the trial. No such appeal can be
allowed for the purpose of obtaining a new trial on the ground
that the jury came to a wrong conclusion on the facts. This
would be to put the defendant twice in jeopardy, which our
Constitutions generally forbid. Even under the practice
prevailing in the Philippine Islands, where they have no juries,
and an appeal to a higher court for a new trial on the merits has
always been allowed to either party in a criminal case, as a
matter of right, this rule is held to apply.[Footnote: Kepner
_v._ United States, 195 U. S. Reports, 100.]

If the verdict is one of Guilty, the sentence is pronounced by
the judge. He generally has a broad discretion as to the extent
and nature of the punishment. For many offenses, either fine or
imprisonment or both may be imposed, according to his best
judgment. For most, when imprisonment is ordered, it may be for
a term such as he may prescribe within certain limits, as, for
instance, from one to five years. In a number of States of late
years the judge is permitted in such a case to sentence for not
less than one year, and it is left to some administrative board
to determine later how much, if any, longer the confinement shall
last, in view of the circumstances of the offense, the character
of the prisoner, and his conduct since his sentence.

A considerable and increasing group of penologists is pressing
upon our legislatures the extension of the principle of the
"indeterminate sentence" by removing the limit of a
_minimum_ term. It is doubtful if such a change would
satisfy the constitutional requirement of a trial by jury. That
in its nature involves a trial before a judge and a sentence
imposed by the court upon the verdict. Can that be deemed a
judicial sentence to imprisonment which is a sentence to
imprisonment during the pleasure of certain administrative
officials? Judgments are to ascertain justice. To do this they
must be themselves certain. In a purely indeterminate sentence
there is no certainty until it has been made certain by the
subsequent action of the administrative authorities. It may turn
out to be imprisonment for life, and the advocates of this mode
of action frankly say that such ought to be the disposition of
all incorrigible and habitual criminals. If so, ought not the
fate to be meted out to them by judicial authority? Can anything
less than that be considered as due process of law?

An experienced and able judge seldom makes any serious error in
grading the punishment of offenders who have been tried before
him. The sentence is not pronounced until they have been fully
heard as to all circumstances of extenuation, nor until the
government has been heard both as to these and as to any
circumstances of aggravation. The sentence, if the offense be a
grave one, cannot be pronounced except in the presence of the
convicted man. He has an opportunity for the last word.

Judges who are neither able nor experienced frequently impose
sentences too light or too severe. We have too many such judges
in the United States. The real remedy for the evil is to choose
better ones. As between judges and boards of prison officers or
of public charities, the judge always has the great advantage of
having tried the case and heard the witnesses. He ought
therefore to be best able to fix the term of punishment.

The punishment to which one can be sentenced on a conviction of
crime is now generally limited to fine or imprisonment. For
graver offenses both may be inflicted: for murder, and in some
States for a very few other crimes the penalty is death. The
policy of the older States long was to require those whose
offenses were directed against property to make good the loss of
the injured party. Whipping was also often added, and it was
formerly a common mode of punishment throughout the country for
all minor offenses. Every colony used it. It was authorized by
the original Act of Congress in 1790 on the subject of crimes,
and was not abolished for the courts of the United States until
1839. It was provided for in the early statutes of most of the
States, and in some still is. Until 1830, it was the only mode
of corporal punishment allowed in Connecticut for the general
crime of theft. For boys it is often the only punishment that
can properly be administered. To fine them is to punish others.
To imprison them is, in nine cases out of ten, to degrade them
beyond recall. Virginia, in 1898, reverted to it as an
alternative to fine or imprisonment in the case of boys under
sixteen, provided the consent of his father or guardian be first
given. Such a statute seems absolutely unobjectionable from any
standpoint. It is often asserted that whipping is a degrading
and inhuman invasion of the sanctity of the person. To shut a
man up in jail against his will is a worse invasion. But as
against neither is the person of a criminal convict sacred. He
has justly forfeited his right to be treated like a good citizen.
Whether whipping is a degradation or not must depend much on the
place of its infliction. The old way in this country, as in
England, was to inflict it in public. This puts the convict to
unnecessary shame. Let him be whipped in private, and his only
real degradation will be from his crime. So inhumanity is
needless. A moderate whipping only should be allowed. That is
far more humane to most men than a term of jail; that is, it
detracts less from their manhood than the long slavery of

Of late years there has been a decided movement in the United
States toward a return to the penalty of whipping for atrocious
cases of assault or offenses by boys.[Footnote: See Paper on
"Whipping and Castration as Punishments for Crime," _Yale Law
Journal_, Vol. VIII, 371, and President Roosevelt's Message to
Congress in December, 1904.] It is probable that it will find
more favor hereafter in the South as a punishment for negroes.
Most of their criminals are of that race. The jails have no
great terrors for them. They find them the only ground where
they can mingle with their white fellow-citizens on terms of
social equality. But they are sensitive to physical pain. A
flogging they dread just as a boy dreads a whipping from his
father, because it hurts. The South may have been held back from
applying this remedy in part from the apprehension that it might
be considered as reinstating the methods of slavery. No such
criticism could fairly be made. Confinement in jail is
involuntary servitude, and involuntary servitude is slavery.
Whipping is a substitute for it: it saves from slavery.

In several of the Southern States, instead of imprisonment,
ordinary offenders are set at work in the open air, either on
convict farms, or in chain gangs on the highway, or in the
construction of railroads or similar works. This plan prevails
in Georgia and Arkansas to such an extent that very few are
confined in the penitentiary. The convicts in these States are
mainly negroes. When, as has been at times permitted, they have
been turned over to private employers to work in this manner for
wages paid to the State, many of the abuses of slavery have
reappeared, and public sentiment is becoming decidedly adverse to
the allowance of such contracts for convict labor. Similar
objections do not lie in their employment on State farms, and in
North Carolina and Texas this has been tried with considerable
success.[Footnote: See "Bulletin de la Commission Penetentiaire
Internationale," 5th series, II, 179.]

Special courts have been organized, or special sessions of
existing courts directed, for the disposition of prosecutions
against children in several of the States and in the District of
Columbia during the past few years. The judge holding such a
"Juvenile Court" or "Children's Court" is expected to deal with
those brought before him rather in a paternal fashion. An
officer is generally provided, known as a Probation Officer, to
whom the custody of the accused is largely committed both before
and after trial. He is to inquire into each case and represent
the defense at the hearing. In case of conviction, the child
can, on his advice, be released on probation, or the sentence can
be suspended.

For errors of law committed by the judge in the course of the
trial the defendant commonly has a right of appeal. Until 1891
this was not true in the federal courts, and a man convicted and
sentenced there under an erroneous view of the law and in
disregard of any of his rights had no remedy, even in a capital
case. It was so in Delaware until 1897.

In some States there is a right of appeal in favor of the
government as well as of the defendant for errors of law, and
this even after a jury trial ending in a verdict of acquittal.
It is there held that the common constitutional provision that no
man shall be put twice in jeopardy of life or limb is not
contravened by the allowance of such a remedy. The writ of error
is a stage in the original prosecution. One acquitted of crime
is deemed not to be put out of jeopardy unless he has been
acquitted according to the forms of law, and after a trial
conducted according to the rules of law. What these rules are,
in case of dispute between the government and the accused, must
be determined by such proceedings in the cause as the legislature
may deem best adapted to ascertain them in an authoritative
manner. Such a mode may properly be furnished by allowing a
resort to a higher court, and a resort in favor of either
party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
_J_., in People _v._ Olcott, 2 Day's Reports, 507,
note.] In other States such a review, in favor of the
government, of the conduct of the cause is only supported when
the exceptions taken are founded on what may have preceded the
trial.[Footnote: People _v._ Webb, 38 California Reports,
467.] This distinction is approved by the Supreme Court of the
United States.[Footnote: Kepner _v._ United States, 195
United States Reports, 100, 130.]

For errors in conclusions of fact the defendant, in certain
cases, has a remedy on a petition for a new trial, but in no case
can the State ask for one. This is true even though the trial
was not had to a jury.

There is no doubt that new trials are too often granted in the
United States in favor of those who have been convicted of crime.
Particularly is this true when they are ordered because of some
irregularity of procedure or slip in the admission or exclusion
of evidence. A verdict, whether in a civil or criminal case,
should stand, notwithstanding it was preceded by erroneous
rulings or omissions of due form, unless the court of review can
see that substantial injustice may on that account have been
done.[Footnote: See Paper on "New Trials for Erroneous Rulings
upon Evidence," by Professor J. H. Wigmore, in the _Columbia
Law Review_ for November, 1903.] To release a convicted
criminal for error in mere technicalities not really affecting
the question of his guilt tends to make the people lose faith in
their courts and resort to lynch law as a surer and swifter mode
of punishment.

Appeals in criminal causes are, however, much rarer and also much
less often successful than is generally supposed. About eleven
thousand persons were convicted of felonies in the County Courts
of New York during the five years from 1898 to 1902, inclusive of
each, and of these less than nine in a thousand pursued an
appeal, not a third of whom secured a judgment of
reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
for March, 1904.] In Massachusetts, about a hundred thousand
criminal prosecutions are annually brought, and the appeals to
the Supreme Judicial Court from sentences of conviction rarely
exceed twenty to twenty-five in number, and upon these in each of
the years 1902 and 1903 only two new trials were
granted.[Footnote: _Law Notes_ for December, 1904.]

A comparison of the number of those put to death in the United
States for crime by the courts, and on a charge of crime by a
mob, for the past three years shows these results:

Executed by
Judicial Sentence. Lynched. Total.

1901 118 125 243
1902 144 96 240
1903 123 125 248

A large majority of those lynched were negroes, and met their
fate in the South. It is extremely difficult to secure a
conviction of those who take part in such acts of violence. They
commit the crime of murder, and the penalty is so heavy that
their fellow-citizens are unwilling to subject them to it. The
offenses with which the men whom they kill are charged are also
generally of a nature which make them peculiarly offensive to the
community. Many are negroes charged with the rape of a white
woman, to whom it would be intensely disagreeable to testify
against them. Not a few are men under sentence of death, who it
is feared may escape or delay punishment by an appeal.

Such considerations cannot excuse, but present some slight
palliation for those acts of mob violence by which the people of
the United States are so often disgraced. It may be added that
out of the Southern States they are quite rare, and in the
Northeastern States substantially unknown. Of the one hundred
and four lynchings in 1903, only twelve occurred in the North or

* * * * *



A public officer, whose duties are mainly other than judicial,
may be invested with judicial power to be exercised only in
certain causes which may be brought before him, in disposing of
which he acts as a court. Such an one is a judge only when he is
holding court. When it is adjourned, no court exists of which he
could be a judge. Justices of the peace and parish judges are
officers of this description. But ordinarily judges are
appointed to hold some regular court, with stated sessions, which
is always in existence. To such a judge considerable powers of a
judicial nature are usually given for exercise when his court is
not in session.

The writ of _habeas corpus_, for instance, may be issued
either by a court of record or by a judge of such a court, if
applied for when the court is not in actual session. In the
latter case, the return of the writ is made to him, the trial had
before him, and judgment rendered out of court, or, as it is
styled, "at chambers." While sitting for such a purpose, he may
be regarded as exercising functions which really belong to the
court and acting as a part of it.

Statutes often, in case of a court having but a single judge,
give him power to hold special courts whenever he may think
proper. In such a case no very definite line is drawn between
what judicial business the judge does and what the court does.
While the proper and normal constitution of a court of record
requires the attendance not only of a judge, but of a clerk and a
crier or sheriff's officer, the only one whose presence is
indispensable is the judge. A District Judge of the United
States has this power of holding special courts, and is a court
wherever and whenever he pleases to transact judicial business,
whether he describes himself in such papers or process as he may
issue, as court or judge.[Footnote: The U. S. _v._ The
Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]

The judges of courts having equitable jurisdiction act often out
of court in the issue of temporary injunctions. These are writs
directing some one to refrain from doing a certain act. They
generally direct it under pain of a specified pecuniary
forfeiture; but whether they do so or not, disobedience is
punishable also by arrest and imprisonment, being treated as a
contempt of court. The need of an injunction is often immediate.
It would be worthless unless promptly granted. When, therefore,
no court having power to issue one is in actual session, there
would be a failure of justice if the judge could not act to the
extent of granting temporary relief. Whether the injunction
should be made permanent is a subsequent question, to be
determined after a full hearing by the court. It may, in urgent
cases admitting of no delay, be issued _ex parte_, but
ordinarily the defendant is notified and has an opportunity for a
summary hearing, either orally or on affidavits, before action is

A similar power often vested in judges at chambers is that of
appointing a temporary receiver; that is, of some one to take
temporary charge of property in behalf of and as agent of the
court, when this seems necessary in order to preserve it. If the
affairs of a commercial partnership get into such a condition
that the partners cannot agree on the mode of conducting it, such
an appointment can be made to tide matters along for the time
being. So in case of an insolvent debtor his estate may, under
certain circumstances, be placed in a receiver's hands by a
summary order, issued out of court.

It may be added that by the statutes both of the United States
and of all the States many powers of a _quasi_-judicial
character are conferred on judges to be exercised out of court,
such as those of ordering the arrest of one suspected of criminal
conduct, examining into the charges against him on his arrest,
and admitting him to bail or sending him to jail for want of it.

* * * * *



For each of the States and Territories as well as for the United
States there is one supreme court of appellate jurisdiction.

The Supreme Court of the United States can entertain original
actions of certain kinds.[Footnote: See Chap. IX.] A few also of
the State supreme courts of appeal have a limited original
jurisdiction. This is generally confined to equity causes,
election contests and certain actions for extraordinary relief
known as prerogative writs, such as informations in the nature of
_quo warranto_ and writs of mandamus.

The term "appeal" in its strictest signification is confined to a
removal of a cause after trial to a higher court for a new trial
on the merits.

It is also and now more commonly used to denote such a removal
for the purpose only of inquiring whether any legal errors were
committed on the trial or are to be found in the judgment. In
this sense it covers proceedings by a writ of error, and any
other mode of reviewing questions of law.[Footnote: See the
_Federalist_, No. LXXXI.] If it does not appear from the
record of the lower court that any of the errors that may be
claimed (or "assigned," as the phrase is) exist, the judgment is
affirmed; otherwise the cause is sent back for a new trial or, if
the objections are fundamental and fatal to its maintenance, is

Appellate courts are of many kinds. Some are such exclusively;
some mainly. In others the functions of entertaining appeals is
a minor one, most of their time being occupied in trying original
causes. An appeal from judgments of a justice of the peace, for
instance, is generally given on the merits to county courts, but
the greater part of the litigation before them comes there in the
first instance. So the judgments of county or other minor courts
are often reviewable on appeal for errors in law in some superior
court which, like them, is principally occupied in the exercise
of an original jurisdiction.

When the American colonies passed into States, as has been seen,
they were habituated to the thought of a supreme controlling
authority exercised by one tribunal of a judicial character of
last resort. The judicial committee of the Privy Council had
administered this sovereign power for them, and for a long period
of years, with general acquiescence.[Footnote: See Chap. I.] The
uniformity of result thus obtained was acknowledged to be
advantageous. It was now necessary to replace them by American
courts of last resort, and it was not difficult in doing so to
improve upon the English model. The time had come for
separating, as far as it could conveniently be accomplished,
judicial from political power.

Virginia was the first to act. A few days before the Declaration
of Independence she adopted a Constitution (under which the
government, was carried on until 1830, though it was never
formally submitted to or ratified by the people) providing for a
separate judiciary headed by a Supreme Court of Appeals whose
judges should hold office during good behavior, and be ineligible
to the Privy Council or General Assembly.

This divorce of judiciary and legislature was not the plan
universally followed.

New Jersey, in which as a colony the Governor and Council had
possessed an appellate power like that vested in the English
House of Lords, was so well satisfied with this arrangement as to
continue it in her Constitution of July 3, 1776, and up to the
present time puts upon her Supreme Court a certain number of
judges who give but a part of their time to this work, and are
not necessarily (though in practice of late years they generally
have been) lawyers.

New York, in her Constitution of 1777, pursued a somewhat similar
plan. Her highest court was one "for the trials of impeachments
and the correction of errors." Its members were the Senate with
the Chancellor and judges of the Supreme Court. When a judgment
of that court was brought up for review the judges were to state
their reasons for giving it, but had no vote. This scheme was
adhered to with little modification until 1846. What made it
tolerable was that many of those elected Senators were naturally
lawyers, and that to be in the Senate soon became the ambition of
a lawyer with any desire to know how it would feel to be a judge.
Able and learned opinions were pronounced by such men in
exercising their judicial functions, and some of them in the New
York reports are still frequently the subject of reference as
clear and satisfactory statements of legal principles.

Connecticut, in 1784, when she instituted for the first time a
court of last resort, made it up of the Lieutenant Governor and
the twelve Assistants, and soon added to it the Governor himself.
A plan of this kind was likely to work in that State, as in New
York, better than it looked. Lawyers by this time had come to
fill most of the higher offices of state. Although the
Assistants were elected annually it was under a complicated
scheme of nomination, which, unless in case of a political
revolution, ensured re-election in every case. A majority of the
Assistants were always members of the bar. They were also
Federalists from the beginning of party divisions in the country.
Naturally, the Republicans found such a state of things
intolerable. All the power of government in Connecticut, said
one of those who were celebrating Jefferson's second election to
the Presidency in 1804, "together with a complete control of
elections, are in the hands of seven lawyers who have gained a
seat at the council board. These seven men virtually make and
repeal laws as they please, appoint all the Judges, plead before
those Judges, and constitute themselves a Supreme Court of Errors
to decide in the last resort on the laws of their own making. To
crown this absurdity, they have repealed a law which prohibited
them to plead before the very court of which they are Judges."
Attacks like this were too just to be resisted, and two years
later the Governor, Lieutenant-Governor and Assistants were
replaced by the Judges of the Superior Court.

Constitutional provisions that the right of trial by jury shall
be preserved inviolate preclude, as a general rule, the
establishment of courts in which the judges can make a final
disposition of petty causes which turn on disputed facts. An
appeal from their decision must be allowed, and a new hearing
given on the merits in a court furnished with a jury. Under the
Constitution of the United States a trial by jury cannot be
claimed in civil cases at common law involving a demand of not
over twenty dollars, and in most of the older States it cannot be
in cases where it was not a matter of right prior to the adoption
of their Constitutions.

The verdict of a jury can only be reviewed on its merits by a
court of last resort where it was clearly and palpably against
the weight of evidence, and in order to do this the whole
evidence given in the trial court must be certified up.

Where a judgment has been rendered on a finding of facts made by
a judge in a cause of an equitable nature, this finding can, in
the courts of the United States and in many of the States, be
reversed on any point on appeal. For this purpose also all the
evidence that was before him, or all that is pertinent to
questions involved, must be reported to the court above.

Except so far as the right of trial by jury may require it, it is
a matter of legislative discretion whether to give any remedy in
a higher court for the errors of a lower one.

In some States an appeal is given from a judgment of an inferior
court even though rendered on the verdict of a jury, to a higher
one where another trial may be had before a judge of presumably
greater ability. In many States errors in law of petty courts
may be reviewed in higher trial courts. In a few of the larger
ones, as in the United States,[Footnote: See Chap. IX.] errors
in law of the higher trial courts, in a considerable class of
cases, are finally disposed of in an intermediate appellate
court, constituted to relieve the court of last resort from an
overweight of business.

* * * * *

Ordinarily it is the statutory right of a defeated litigant to
take an appeal, provided he can state any colorable ground of
exception. In some jurisdictions he is required to obtain the
approval of the trial court or else of some member of the
appellate court. There are many judges who think that such a
practice should be universally adopted. It would certainly tend
to relieve the dockets of appellate tribunals, and to bring
lawsuits to a speedier end. If one were sure that the judge to
whom application was made for an approval of the appeal would
always act intelligently and impartially, such a precaution
against useless litigation would be admirable. But the trial
judge is not in a position that naturally leads to an
unprejudiced judgment. The appeal is asked on account of
mistakes of his, and he will not be apt to think that he has made
any. The judge of the appellate court will be impartial and
unprejudiced, but he will have a very imperfect knowledge of the
case. He could only be asked to make a hasty examination of the
points involved, and it would be quite possible for him to reject
as frivolous grounds which, on a lengthy investigation after a
full argument, might have seemed to him substantial. In view of
these objections, and of the unequal attainments and experience
of the different judges of our courts, the bar are generally in

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