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The American Judiciary by Simeon E. Baldwin, LLD

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favor of making appeals a matter of right; and what the bar
favors in such a matter the legislature usually enacts.

* * * * *

The opinions and judgments of all American courts of last resort
are officially reported for publication. At first they were not
so reported. The earliest volume of American judicial decisions
(Kirby's) was published in 1789 as a private venture. A few
years later the States began to provide official reporters for
their highest courts and soon assumed the expense of publication.
There are now more than fifty current sets of federal and State
reports, the annual output being about four hundred volumes,
containing 25,000 cases. The mere indexing and digesting of
these reports for the use of the bench and bar has become a
science. While consulted by comparatively few who are not
connected with the legal profession, they constitute a set of
public records of the highest value to every student of history
and sociology.[Footnote: See "Two Centuries' Growth of American
Law," 6.]

It is the custom to prefix to the report of each case a head-note
stating briefly the points decided. Ordinarily this is the work
of the reporter. In a few States the judges are required to
prepare it; and to do so then naturally falls to the lot of that
one of them who wrote the opinion. Occasionally the head-note
contains statements not supported by the opinion. In such case
the opinion controls unless it is otherwise provided by statute.

It has not been the usual custom of English judges of courts of
last resort to write out their opinions. They have commonly
pronounced them orally and left it to the reporters to put them
in shape. The consequence has been that English reports have a
conversational tone, and are not free from useless repetition.
This has been not only a matter of tradition but of necessity.
The English judges have always been few in number. Their time
has been largely occupied in the trial of cases on the facts. It
is only in recent years that certain judges have been set apart
especially for appellate work.

American judges, on the other hand, are numerous. There is the
waste of energy in our judicial system which is the necessary
concomitant of the independent sphere belonging to each separate
State. Combination of all of them into one empire would make it
easy to reduce the judiciary to a tithe of its present numbers.
Their salaries are part of the price we pay--and can well afford
to pay--for our peculiar system of political government, under
which every State is an _imperium in imperio_.

The ever-increasing number of our States, each with a body of law
not exactly like that of any other, and each with a written
Constitution which is its supreme law, requires a court of last
resort in each. Experience tends to show that it ought not to be
composed of less than five. There should certainly be an uneven
number to facilitate decisions by a majority; and unless a
minority consists of as many as two, its dissent is apt to carry
little weight in public opinion.

In most of the States the court of last resort is not overworked.
In some the judges find time to do considerable circuit duty in
the trial of original causes. This keeps them in touch with the
daily life of the community, and is so far good. On the other
hand it disqualifies them from sitting on an appeal from their
own decisions, and so either reduces the number of the appellate
court occasionally below that which is normal and presumably
necessary, or involves calling in some one to act temporarily,
which imperils the continuity of thought and uniformity of
doctrine which should characterize every such tribunal. There is
also a certain natural bias, insensible perhaps to themselves,
which tends to make appellate courts stand by one of their
members whose rulings while holding a trial court are brought in
question. For these reasons it has now become common for the
States to confine their appellate judges exclusively to appellate
work. The time, therefore, which the English judge gives to
circuit duty the American judge can give to writing out his
opinions with all the art and care which he can command.

He speaks in most instances to a small audience--the bar alone.
But it is the bar of this year and the next year and the next
century. Every volume of reports is part of the history of
American jurisprudence and of American jurisprudence itself.
Occasionally some case arises which involves large political
questions, or one of especial local interest. The opinion is
then read more widely. The newspapers seize it: reviews take it
up. It is not always easy to anticipate what decision will
become a matter of public notoriety; what opinion will be quoted
as an authority in other States; and what drop unnoticed except
by the lawyers in the cause. A judge, therefore, though he have
no better motive than personal ambition, is apt to do his best in
every case to state the grounds of his conclusions clearly and in
order. A certain style of American judicial opinion has thus
grown up. It is dogmatic. It offers no apologies. There is
neither time nor need for them. The writer speaks "as one having
authority." He does not argue out conclusions previously settled
by former precedents, but contents himself with a reference to
the case in the reports in which the precedent is to be found.
He is as brief as he dares to be without risking obscurity.

It is undoubtedly true that many reported opinions are of a very
different type. Some of Marshall's assume a tone of apology; but
in his day it was needed. He struck at cherished rights of
States, upheld by their highest courts, and struck them down, at
a time when the country was unfamiliar with the conception of the
United States as a national force. Many of those of judges of
inferior ability do not rise above their source. They are
verbose, repetitious, slovenly, inaccurate in statement, loose in
form; perhaps sinking into a humor or sarcasm always out of place
in the reports;[Footnote: See, for instance, Mincey _v._
Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
_id_., 582.] possibly unfair in describing the claims that
are overruled. But, as a whole, Americans need not fear to
compare the reports of their courts with those of foreign
tribunals. No judicial opinions, viewed from the point of style
and argument, rank higher than some of those written by American

Those of appellate courts are generally composed and delivered by
a single one of their members, but he speaks not only for the
court but for every other member of it who does not expressly
dissent. Nevertheless, as their conclusions depend on one man
for their proper expression, the responsibility for the
particular manner in which the opinion may set them forth is
properly deemed in a peculiar sense to rest upon him.

Nor, if the opinion is afterwards relied on as establishing a
precedent, is the court bound by anything except the statement of
the conclusions necessary to support the judgment. If unsound
reasons for those conclusions are given, defective illustrations
used, or unguarded assertions made, it is chargeable with no
inconsistency in subsequently treating them as merely the
individual expressions of the judge who wrote the
opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107
Mass. Reports, 37, 41. This position is not, universally
accepted. See Merriman _v._ Social Manufacturing Co., 12
R. I. Reports, 175, 184.]

When Marshall became Chief Justice of the United States he
introduced the practice of writing all the opinions himself, and
with a few exceptions maintained it for ten years, and until, by
successive changes in the court, a majority were Republicans.
This, as has been well said, "seemed all of a sudden to give to
the judicial department a unity like that of the executive, to
concentrate the whole force of that department in its chief, and
to reduce the side justices to a sort of cabinet
advisers."[Footnote: Thayer, "John Marshall," 54.]

In some of the State Supreme Courts in early days, it was the
practice for the Chief Justice to deliver an opinion in every
case, but his associates frequently added concurring or
dissenting ones.

Of late years the business of appellate courts in the United
States and in most of the States is so considerable that it is
necessary to divide the labor, and the cases are generally
distributed equally for the preparation of opinions.

It is the prevailing practice to have the opinion, when drafted
by the judge to whom that duty is assigned, typewritten or
printed, and a copy sent to each of the other judges for their
consideration separately. At a subsequent conference each judge
is called upon by the Chief Justice to state whether he concurs
in it, and if alterations are proposed there is opportunity for
their discussion. This practice did not become general until the
latter part of the nineteenth century, when the typewriter had
come into common use. Prior to that time the draft opinion was
ordinarily first made known by its author to the other judges
either by reading it aloud at the final consultation or by
sending one manuscript copy around to each in succession for his
endorsement of approval or disapproval. In some courts it was
never thus submitted at all, and so they were occasionally
committed to positions which they had never intended to adopt and
afterwards found it necessary to repudiate.[Footnote: See for an
example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196,

Our courts of last resort generally have before them a printed
statement of the doings in the lower court which they are asked
to review, and a printed argument from each party to the appeal.
Oral arguments are also usually heard, except in a few States
where the press of business renders it practically impossible
except in cases of special importance. Such a press occurs
mainly in the largest States, but exists also in some whose
Constitutions make it easy and over-cheap for every defeated
litigant to carry his case up to the highest court.

In the Supreme Court of Georgia no costs exceeding $10 can be
taxed against the unsuccessful party; and it has had eight
hundred cases in one year upon its docket. In most States he has
substantial costs to pay. These mainly are to meet the expense
of printing the record sent up from the court below. A single
case will sometimes fill a volume or even a set of volumes,
particularly in equity causes in the federal courts, in which all
the testimony is generally written out at length. The appellant
has to pay for the printing in the first instance, but
ordinarily, if he succeeds, the other party will be obliged to
reimburse him. The cost involved is occasionally several
thousand dollars.

The party taking the appeal must file a paper stating his grounds
for it separately, distinctly, clearly and concisely. There is a
temptation to include all that can be thought of, good, bad and
indifferent; and whether this is done or not will depend largely
on the opinion which the lawyers have of the ability of the

In the smaller States the judges have time to enable all to study
each case with care. In the largest ones it is not uncommon to
assign every case on the docket, in advance of the argument, to a
particular judge. He is expected to give it special attention
with a view to reporting his conclusions upon it to the court,
and, should they be approved in consultation, to writing out its
opinion subsequently. The assignment for a term of court is not
infrequently made in the order in which the docket (or printed
list of cases to be heard) is made out, the chief justice taking
the first case, the senior associate justice the second, and so
on. At the next term the same practice will be pursued, except
that the justice next in seniority to the one who had the last
case under the previous assignments will now take the first case
on the new list, and the next junior justice the second.

Appellate courts generally sit not over four or five hours a day;
this time being either preceded or followed by a consultation.
They are seldom in session more than five days in the week. The
cases before them are not usually assigned for argument on
particular days. A list is made up of all which are ready to be
heard, numbered in order, the oldest first. They are then taken
up successively as reached, and the counsel concerned in each
must be ready at their peril. Often a limit is fixed by rule as
to the number of cases that can be called for argument in any one
day. In the Supreme Court of the United States this is the
practice, and the number is ten. In some of the States it rises
as high as twenty.

At the first consultation over a case which has been argued, the
Chief Justice (unless a special assignment has been previously
made of it to some particular member of the court) asks the
junior justice his opinion as to the proper disposition to be
made of it, and each justice in turn then gives his, in the
reverse order of seniority. If there is any serious disagreement
the matter is generally allowed to stand over for further
discussion later. At some convenient time after the views of the
various justices have been ascertained the cases are distributed
and, as a rule, equally for the purpose of preparing the
opinions. This distribution is sometimes made by the Chief
Justice and sometimes by agreement, or according to the
arrangement of the docket.

Until the opinion has been finally adopted it is not usual to
announce the decision. Not infrequently the ultimate decision is
made the other way, and a new opinion prepared by the same, or,
if he remains unconvinced that his first one was wrong, by
another judge. Still more often the draft opinion is altered in
material points to meet criticisms and avoid dissent.

Dissenting opinions are comparatively rare, particularly in
courts where there is a Chief Justice with the qualities of a
leader; that is, with ability, learning and tact, each in full
measure.[Footnote: Perhaps tact counts the most, for the Chief
Justice has the advantage of hearing the opinions of all his
associates at all consultations before he gives his own. Senator
Hoar makes a pungent comment on Chief Justice Shaw's want of it,
in his Autobiography, II, 413.] Every instance of dissent has a
certain tendency to weaken the authority of the decision and even
of the court. Law should be certain, and the community in which
those charged with its judicial administration differ
irreconcilably as to what its rules really are, as applied to the
transaction of the daily business of life, will have some cause
to think that either their laws or their courts are defective and
inadequate. For these reasons judges of appellate courts often
concur in opinions, of the soundness of which they are only
convinced because of the respect they entertain for the good
judgment of their associates. They are willing to distrust
themselves rather than them.

Not seldom, however, dissent and the preparation of a dissenting
opinion has in the course of time, aided, perhaps, by some change
of membership, converted the court and led to overruling a
position incautiously taken which was inconsistent with settled
law.[Footnote: A striking instance of this is the case of
Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
_id_., 126; 6 Atlantic Reporter, 453.]

More than eighty out of every hundred of the opinions delivered
in the courts of last resort of each State of the United States,
excepting one (New Jersey), and contained in the last volume of
the reports of each published prior to June, 1904, were
unanimous. In New Jersey seventy-three out of every hundred
were. In two States, Maryland and Vermont, there was dissent in
but two out of every hundred cases, and in all the States taken
together, out of nearly 5,000 cases decided a dissent is stated
in 284 only. This made the proportion of unanimous decisions of
State courts, in the country at large, to those in which there
was dissent nineteen to one.[Footnote: _Law Notes_ for June,
1904, p. 285.]

A dissenting judge sometimes files an opinion which is then
printed in full in the reports. More often the fact of his
dissent is simply noted. In cases involving constitutional
questions it is rare for a dissenting judge not to state his
reasons. The importance of the subject justifies if it does not
demand it. As Mr. Justice Story once observed, "Upon
constitutional questions the public have a right to know the
opinion of every judge who dissents from the opinion of the
court, and the reasons of his dissent."[Footnote: Briscoe
_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]

The official reports of the courts have some of the faults of
officialism. They often do not appear until long after the
decisions which they chronicle have been made and their general
make-up is sometimes unworkmanlike and unscientific. It requires
rare gifts to make a good reporter of judicial opinions. He must
have the art of clear and concise statement; the power to select
what is material and drop the rest; and the faculty of close
analysis of abstract reasoning.[Footnote: Four of the reporters
of the Supreme Judicial Court of Massachusetts have been
appointed justices of that court, largely in consequence of their
good work in reporting. A good reporter always has the making of
a good judge.] Many of our reporters also are practicing lawyers
of no special training for the work, and who give to it but a
portion of the year.

The modern sense of the value of time, of scientific treatment of
whatever can be treated scientifically, and of uniformity in
scientific methods led toward the close of the nineteenth century
to competition in reporting. Private publishing houses undertook
the prompt publication, in scientific arrangement upon a uniform
plan, of the opinions of the courts. This work began in 1879.
The result has been that the series of official reports of the
Circuit Court of Appeals of the United States has been
discontinued, and that the decisions of all our other appellate
courts are now twice reported. One publishing house has grouped
the States into clusters, issuing for each cluster its own series
of reports, known, respectively, as the Atlantic, the
Northeastern, the Northwestern, the Southeastern, the Southern,
the Southwestern and the Pacific Reporters. The States forming
each group have been selected mainly because they were neighbors
geographically, but partly from commercial reasons. Thus
Massachusetts, which would naturally be assigned to the Atlantic
Reporter, has been put into the Northeastern; and such inland
States as Kansas and Colorado find their place in the Pacific
Reporter. All the reported decisions of all the States in each
group are printed in pamphlet form weekly, as they may be handed
down, in chronological order; and every few months the whole
issued as a bound volume. In this way, for a trifling sum a copy
of any opinion of any American court of last resort can be had in
a few days or weeks after its announcement, and a lawyer's
library can, at slight expense, be furnished with the decisions
not only of his own State but of several others having not unlike
laws and institutions.

The multiplication of American reports makes judicial precedents
of decreasing value to the American lawyer. English cases are
cited as authority far less frequently than they were before the
middle of the nineteenth century. The omnipotence of Parliament
and the free hand with which that has been exerted to change the
common law have tended to separate English from American
jurisprudence. Our written Constitutions have perpetuated here
ideas of government and property which England does not
recognize. Hence American precedents are of more use than
English. But American precedents are becoming so numerous that
the advocate who seeks to avail himself of them is tempted to
cite too many and to examine them with too little care. In each
State its own reports are the expression of its ultimate law.
With these every member of its bar must be familiar. But the
courts before which he argues listen to him with more
satisfaction and greater benefit if he deals with the principles
of law rather than with foreign precedents which may or may not
correctly apply them.[Footnote: See a valuable statistical
article on "Reports and Citations" in _Law Notes_ for
August, 1904.]

Not every opinion which is delivered is officially reported. In
most States the court has and exercises the power of directing
that such as they may deem of no substantial value to the
profession at large shall not be. Many are simply applications
of familiar rules which obviously control. Opinions of that kind
interest only the lawyers in the cause. In the unofficial
reports, however, such cases are sure to appear and the bar is
divided in opinion as to whether they should not also be given a
place in the official ones.

It is not always easy for the court or the reporter to determine
what decision may thereafter be relied on as a precedent.
Repeated instances have occurred in which such a use has in fact
been made and properly made of some not noted in the regular
reports, and not infrequently they have subsequently been
inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
of those of the Supreme Court of the United States, one hundred
and twelve opinions are printed, the first delivered over fifty
years before, which previous reporters had thought best to omit,
and two hundred and twenty-one more such are published in
Vol. CLIV. Whoever runs them over will be apt to think that the
previous reporters were right.] There is also in case of an
opinion not to be officially reported a loss of a valuable
safeguard against unsound decisions. A judge writes with more
care and examines the points of law which may be presented more
closely if he writes for the public and for posterity.

On the whole the prevailing sentiment is that the reasons for
repressing some are stronger than those for publishing all
judicial opinions. It will be few only that, under any
circumstances, will be omitted. The leading lawyers in every
State are expected to run over, if they do not read, every case
in every new volume of its reports. Every case dropped lightens
this task. It helps to keep indexes of reports and digests of
reports and legal treatises within reasonable limits. It cuts
into an accumulating mass of material, most of which must, in any
event, so far as points of law are concerned, be a mere
repetition of twice-told tales, that is becoming so vast in the
United States as to becloud rather than illuminate whoever seeks
to know what American law really is.

If reporters will not select and discriminate between adjudged
cases publishers can and will. Many sets have been prepared and
issued in recent years of selected cases on all subjects taken
from the official reports of all the States. Their professed aim
has been to include all worth preserving. In fact, they have
naturally been guided to a considerable extent by commercial
considerations. To every lawyer the leading cases in his own
State are of the first importance. He is not likely to buy any
compilation in which a number of these do not appear, even if
intrinsically, as statements of law, they may be of no great
value. Hence in the collections in question the rule of
selection is often the rule of three, and they are apt to contain
a certain proportion of the decisions of every State.

The leading sets are the "American Decisions," running from
1760[Footnote: Long after the publication of Kirby's Reports in
1784, some unofficial reports were published of cases decided in
colonial courts prior to any which he included.] to 1869; the
"American Reports," from 1869 to 1886; the "American State
Reports," from 1886 to the present time, which three sets include
over two hundred and fifty volumes and nearly 40,000 opinions;
and the "Lawyers' Reports Annotated," now extending over more
than sixty volumes, the first of which was published in 1888, and
contains no cases reported prior to the preceding year.

Spencer's rule of social evolution that all progress is from the
homogeneous to the heterogeneous tends steadily and inexorably in
the United States to lessen the value of judicial reports out of
the State in which the cases were decided. Each of forty-five
different commonwealths is building upon legal foundations that
are not dissimilar, but some of them are advancing far faster
than others, and none proceed at exactly the same rate or on
exactly the same lines. They are building by statute, by popular
usage and by judicial decision. Heterogeneity is most marked in
legislation and it tells most there. Whoever looks over a volume
of reports will find a large proportion of the cases turning upon
some local statute. An important index title is that of
"Statutes Cited and Expounded." In Vol. 138, for instance, of
the Massachusetts Reports (a volume selected at random for this
purpose), 223 statutes or sections of statutes are noted as
having been made the subject of remark in the 170 cases which it
contains. Almost all are Massachusetts statutes, a very small
proportion of which have been re-enacted elsewhere.

Appellate courts thus forced at every turn to study with care
into the effect of local legislation, much of which, to get at
its meaning, must be traced back historically through various
changes during a long course of years, and in the older States
sometimes for centuries, listen unwillingly to citations from
decisions of other States which are even remotely affected by the
statutes that may be there in force.

The newer States and those with a small population are naturally
the ones that rely most on foreign authority. In the last volume
(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
cited in the opinions of the court are of that kind. In the last
volume (Vol. 178) of the New York Reports, the percentage is but
thirty, and in the last of the Massachusetts Reports (Vol. 185)
it is only twenty-five.[Footnote: _Law Notes_ for April,
1905, 8.]

* * * * *

In the Supreme Court of the United States and in several of the
appellate courts of the larger States each judge is provided with
a clerk at public expense. While this is a means of relief from
much which is in the nature of drudgery, it sometimes leads to a
deterioration in the quality of the judicial opinions. A
dictated opinion is apt to be unnecessarily long, and when a
clerk is set to looking up authorities, although he can hardly be
expected always to select the most apposite, it is easier to
accept his work and use what he has gathered than to institute an
independent search.

Some of the appellate courts which are most fully employed, both
State and federal, are provided with special libraries of
considerable extent, and each of the individual judges is also
often furnished with an official library, sometimes containing
several thousand volumes, for his personal use, to be handed over
to his successor when he retires from office.[Footnote: In New
York, the private library of the Court of Appeals contains over
6,000 volumes, comprehending all the reports of all the States,
and the personal libraries provided for each judge have come to
comprise 3,500 volumes.]

In some States counsel have the right to demand to be heard
before a full court, and those who have taken the appeal
generally exercise it. As decisions go by majorities, the chance
of reversing a judgment before, for instance, a court of five,
which is a common number, is obviously greater when all its
members sit than when four do. In either case it must be the act
of three judges, and one is more likely to convince three out of
five than three out of four.

In the Supreme Court of the United States there is no means of
supplying the place of a judge who is absent or disqualified.
The remaining members, provided they constitute a quorum (that
is, a majority), proceed without him. In most of the States
there is some provision for filling the vacancy in such a
contingency. Sometimes it is by calling in a judge of an
inferior court; sometimes by application to the Governor for the
temporary appointment of some member of the bar as a special
associate justice to sit in a particular case.

In several of the larger States all the members of the court of
last resort do not and need not sit in every case. In some two
permanent divisions are constituted, to each of which certain
judges are assigned, and both divisions may be in session at the
same time. In other States certain judges are detached for a
certain time, during which they study causes which have been
argued and prepare opinions. This done, they resume their seats,
and others are released for similar duties.

In Ohio, for instance, the Supreme Court consists of six judges
and commonly sits in two divisions of three each, having equal
authority. The whole court sits to hear any cause involving a
point of constitutional law. It also decides those which have
been heard in one of its divisions and in which the divisional
court is in favor of reversing the judgment appealed from. An
affirmance by the divisional court is final, but if it inclines
to a reversal the judges communicate their opinions to the full
court, which also reads the printed briefs submitted on the
original argument, and then without any further oral hearing
pronounces final judgment. Four judges, therefore, at least,
must concur to accomplish a reversal. Should the full court in
any case be equally divided, the judgment appealed from stands.

Under the Constitution of California (Art. VI, Sec. 2) the
Supreme Court, which consists of seven judges, ordinarily sits in
two departments. Three judges can render a decision, but the
judgment does not go into full effect for thirty days unless
three, including the Chief Justice, have given it their approval.
The Chief Justice also, with the concurrence of two of his
associates, or four of these without his concurrence, can direct
that any cause be heard before a full court within thirty days
after judgment by a department court. He can also order the
removal into the full court of any cause before judgment.

In Michigan only five out of the eight judges sit to hear a case,
and if one of them files an opinion dissenting from that of his
associates, the losing party can demand a rehearing before the
full court.

Neither the bar nor the bench are quite satisfied with such
methods of appellate procedure. The Ohio scheme is excellently
adapted for the dispatch of business, but may prevent an oral
argument before those who are ultimately to decide the cause.
That of California often protracts litigation. Any such plan of
division also must increase the risk of the court's taking a
position inconsistent with one which it had previously assumed.
The judges in one division may come to conclusions different from
those reached in the other division; or where the court does not
sit in divisions, a point may be determined by a narrow majority
in one case which in a later one, through the substitution of one
or two judges for those who heard the former, may be ruled the
other way.

The freedom of appeal which is generally conceded to defeated
litigants in this country has been made the subject of severe
criticism. It seems, however, a necessary incident of our
political institutions. They are built upon the foundation of a
profound reverence for the rights of the individual and of the
equality of all before the law. Our Constitutions guaranty every
man against deprivation of life, liberty or property without due
process of law. If we could count on having as judges of our
trial courts none but men of ability, learning and independence,
it might be safe to leave it to them to say what this due process
was. But the tenure of judicial office in most States is too
brief, the pay too meagre, and the mode of appointment too
subject to political influence to give always that assurance that
could be wished either of the independence of the judiciary or of
its representing only what is best in the legal profession.

In England, until recently, there was little or no right of
review in favor of one convicted of crime. But the judges are
appointed for life on ample salaries, and tradition requires that
they be selected only from among the leaders at the bar. Nor is
the right of the individual against the State deemed so sacred
under English as under American institutions. It cannot be in
any country where an hereditary aristocracy has from ancient
times had a share in government. As has been seen, the English
practice in this respect for nearly a hundred years was adopted
in the courts of the United States, but public sentiment finally
pronounced against it. Much less could it be safely followed in
the States, where criminal courts are often held by judges of
little ability, less learning, and inferior standing at the bar,
to which, after the expiration of a brief term, perhaps of but a
year, they will return should they fail to secure a party

The same reasons, if in less degree, support a liberal right of
appeal in cases involving property only, and oppose restrictions
based only on the amount in controversy. Americans could never
tolerate keeping their appellate courts for the trial of large
causes only. There must be no rich men's courts. There
certainly must be none to which a claim of right founded on a
constitutional provision cannot be carried up, however trifling
in pecuniary value may be the matter in demand.

Most appeals fail. There are few in which the counsel who takes
them are fully confident of success. Every lawyer of large
experience knows that he has often won when he expected to lose,
and lost when he expected to prevail. There are not many cases
involving large pecuniary interests or strong personal feeling
that are not appealed if there is any color for it. The
proportion of appeals which are successful will generally be not
far from a third of the whole number taken. Of course, however,
this must depend largely on the competency of the trial judges in
the court where it is claimed that errors have occurred. The
abler and more experienced those who do circuit duty may be, the
oftener will their doings be supported in the court of last

Short terms of office and consequent lack of practical
acquaintance with the business of a trial judge is the real cause
why so many appeals are taken, and are allowed to be taken in our
American States. As for the federal courts of appeal, there is
another and unavoidable occasion for large dockets. They have
the last word to pronounce on constitutional questions, and there
has probably never been a year since the United States came into
existence when the legitimate powers of the general government
have not been repeatedly infringed upon by State legislation.

In the Supreme Court of the United States, the reporter began its
second century with a plan of stating the number of cases
affirmed or reversed at each term, but dropped it after two
years. The record of these years was as follows:

Affirmed Reversed
October Term, 1890 248 104
October Term, 1891 185 103

A tabulation of the decisions reported in the various States in
their last volumes published prior to June, 1904, shows that on a
general average, in sixty-three out of every hundred appeals the
judgment of the inferior court was affirmed. In Massachusetts
the percentage was eighty-seven per cent. In Texas it was only
thirty-four per cent., and in Arkansas and Kentucky not much over
forty per cent.[Footnote: _Law Notes_ for June 1904,
p. 285.]

Many more appeals are taken by convicted persons in criminal
cases at the South than in the North. Many more criminal
prosecutions are brought there, in proportion to the population.
This is due largely to the presence of so large a body of colored
people, most of whom have had a very inferior education and
training. Many more such appeals are successful also in the
South than in the North. In the reports of the courts of last
resort of Alabama, Florida, Louisiana and Mississippi between
December 20, 1902, and April 25, 1903,[Footnote: As given in
Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
appear, in forty-six of which the judgment of conviction was set
aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
New Jersey, Pennsylvania, Rhode Island and Vermont between March
12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
Atlantic Reporter.] the reports show only twenty such cases, of
which seven were set aside.[Footnote: _Law Notes_ for
September, 1903, 105.] This would seem to indicate either that
the trial judges of criminal courts in the Gulf States are
careless or that the appellate courts there (under the pressure,
perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
Independence," by Justice Henry B. Brown in the Reports of the
Am. Bar Association for 1889, 265.] are inclined to be too
technical. If either is true it is a just cause for public
dissatisfaction with the administration of criminal justice, and
some palliation for the frequent resorts to Lynch law by the
Southern people.

The American plan of written opinions, at least in all cases of
novelty or general interest, works better in small States than in
large ones. No judge can find time to prepare more than a
certain and quite moderate number in a year, if they are such as
they should be. The shorter they are, the more time generally
has been spent in condensing them. In a great State there must,
therefore, either be a larger number of judges, or every few
years there must be a temporary addition to the judicial force to
clear off an accumulation of cases. The latter expedient is
generally preferred. Sometimes a small number of lawyers are
selected to serve as a special commission of appeals. They sit
by themselves, but there may be a provision for their submitting
their opinions to review by the regular court. Some of the
leading cases in our reports have been decided by such
commissioners. In California, where such a body now exists, its
members are appointed by the court, and removable at its
pleasure; but ordinarily they are chosen by the executive or
legislative departments.

Sometimes when the cases on the docket of the court of last
resort reach a certain number (in New York this is put at 200)
the Governor may call in judges of the next court in rank to sit
with the regular judges until the accumulation is cleared off.

Fewer causes can be heard and disposed of in American appellate
courts than in those of other countries by reason of two things,
our practice of delivering written opinions and the fulness of
treatment thought necessary in such opinions, especially when
they deal with questions of constitutional law. In France, the
Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
219 were sustained and 597 rejected.] Nothing approaching this
number could be properly disposed of on the merits in any
American Court of last resort. Many appeals, however, are here,
as everywhere, abandoned or dismissed for some failure to comply
with the rules of practice or because manifestly frivolous, and
in these no opinions are ordinarily given. During the court year
closing with the Summer of 1903, the Court of Appeals of New York
filed only 221 opinions, although it disposed, in one way or
another, of 640 cases; and the Supreme Court of the United States
filed 212 opinions and disposed of 420 cases.[Footnote: See
Chap. XXIV.]

In the calendar year 1904, the Court of Appeals of New York filed
327 opinions, and the Supreme Court of Illinois over 500.

* * * * *



No court can with propriety pass a decree which it cannot
enforce.[Footnote: Clarke's Appeal from Probate, 70
Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
U. S. Reports, 186.] After the judgment comes the issue of
appropriate process to compel obedience to it, unless such
obedience (as is generally the case) is voluntarily rendered.
The whole power of government is at the command of the court for
this purpose. A sheriff with a judicial process to serve who
meets with resistance can summon to his aid the _posse
comitatus_. By this term is meant the whole power of his
county; that is, any or all of its able-bodied inhabitants on
whom he may choose to call. Not to respond to such a call is a
legal offense. The marshals have similar powers in serving
process from the Federal courts.

The fact that there is this force behind a writ is so well
understood by the community that occasions for resorting to its
use, or indeed to the use of any actual force, are extremely
rare. If the process was lawfully issued, it would be useless to
resist. If unlawfully, it is easier and safer to seek relief by
an injunction, or in case of an arrest, by a writ of _habeas
corpus_. But there have been occasions in the judicial
history of the United States when, under the influence of a
general popular ferment, the service of process from the courts,
and even the holding of courts, have been forcibly prevented.

Shay's Rebellion in Massachusetts (in 1786) was the first of
these after the Revolution. Similar uprisings of less importance
took place at about the same time in New Hampshire and Vermont.
A few years later, the service of process from the New York
courts was interrupted in Columbia County. There was a strip of
territory adjoining the Hudson River, title to which was claimed
both by New York and Massachusetts. Conflicting claims, awaking
much bitter feeling, arose under grants from each government. In
1791, the sheriff of Columbia County was ordered by the courts,
in the course of a lawsuit, to sell a tract of this land.
Seventeen persons disguised as Indians appeared at the time of
sale to resist it, and he was killed by a shot from one of
them.[Footnote: Report Am. Historical Association for 1896, I,
152, note.]

Then came the Whiskey Rebellion in Pennsylvania. The statutes of
the United States[Footnote: United States Revised Statues, 5299.]
provide that if their courts meet with opposition of a serious
nature, the President may use the army or call out the militia of
one or more States to restore order. Opposition to the
enforcement of the revenue tax on whiskey in 1794 called for the
first exercise of this power. Marshals were resisted in serving
process, and several counties were in a state of insurrection.
Washington sent so large a force of troops to suppress it that
the rioters vanished on their approach, and there was no further
obstruction of the ordinary course of justice. The total expense
to the government in this affair was nearly $1,000,000.[Footnote:
Wharton's "State Trials," 102.] In 1799, somewhat similar
opposition arose in the same State against the enforcement of the
house taxes laid by Congress. President Adams here also sent a
sufficient force of militia to suppress it.[Footnote:
_Ibid_., 48, 459.]

In 1839, a general combination was formed among the tenant
farmers in New York holding long or perpetual leases from
manorial proprietors to resist the payment of the stipulated
rents. In several counties the greater part of the land was
occupied under such a tenure. The design was to compel the
landlords to sell to the existing tenants at a price fixed by
public appraisal, or else that the State should take the lands by
eminent domain and dispose of them to the same persons on
reasonable terms. Sheriffs were forcibly prevented from serving
writs in dispossession proceedings. One who took with him a
_posse comitatus_ of five hundred armed men, a hundred of
whom were mounted, was met and turned back by a larger band, who
were all mounted. The Governor was finally compelled to issue a
proclamation against the "up-renters," as they were called, and
to protect the sheriff by a large body of militia. Put down in
one county, the movement soon reappeared in others. Disguises
were assumed, the rioters figuring under Indian names and wearing
more or less of the Indian garb. Three hundred of them, with
twice that number not in disguise, prevented a sheriff from
levying an execution for rent on tenants upon the Livingston
manor. For six years the contest went on in several counties.
Several lives were lost on both sides. Sheriff's officers were
tarred and feathered and their writs destroyed. Of the rioters
many were arrested and prosecuted from time to time and some
convicted. Five were sent to the State's prison for life. Two
were sentenced to be hanged. The State used its militia freely
to defend the sheriffs, at a cost in one county of over $60,000,
and in 1845 a series of prosecutions and convictions, resulting
in over eighty sentences at one term of court, broke the back of
the insurrection. It died half-victorious, however, for an
"anti-rent" Governor and Lieutenant-Governor were elected the
next year, and several statutory changes in the law of leases
which the malcontents had desired were soon afterwards
enacted.[Footnote: See Paper by David Murray on the "Anti-rent
Episode in New York," Report of the American Historical
Association for 1896, I, 139.]

During the period of reconstruction in the Southern States,
following the civil war, the courts were repeatedly broken up by
violence and the service of legal process resisted, in some
instances by authority of the military Governor.[Footnote:
S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495,
496, 509, 544, 565.]

The writ to enforce the judgment of a court of law is called an
execution. It is directed to the sheriff or other proper
executive officer, and requires him to seize and sell the
defendant's property or, as the case may be, to arrest and
imprison him, to turn him out of possession of certain lands, or
to take some other active step against one who has been adjudged
in the wrong, in order to right the wrong, as the judgment may

A judgment for equitable relief is not ordinarily the subject of
an execution.[Footnote: See Chap. VIII.]

A judgment at law is generally to the effect that one of the
parties shall recover certain money or goods or land from the
other. On the prevailing party lies the burden of moving to get
possession of what has thus been adjudged to be due. This he
does by taking out an execution. A judgment in equity is an
order on the defendant to do or not to do some particular act.
It is now an affair between him and the court. He must obey this
mandate or he will be treating the court with disrespect.

To treat a court with disrespect, or, in legal parlance, to be in
contempt of court, is to incur very serious responsibilities. It
is in the nature of a criminal wrong, for it is a direct
opposition to the expressed will of the State. Whoever is guilty
of it makes himself liable to arrest and to be subjected to fine
or imprisonment. If, for instance, an injunction is obtained in
a suit for the infringement of a patent right, it becomes at once
the duty of the defendant to desist from making or selling what
the plaintiff has proved that he only can lawfully make and sell.
If he does not desist, the plaintiff can complain to the court,
and if after a preliminary hearing it appears that his complaint
is well founded, can obtain a warrant of arrest, styled a
"process of attachment." On this, the proper officer takes the
defendant into custody, and brings him before the court to answer
for violating the injunction order. If the case is an aggravated
one, he will be both fined and imprisoned, and the imprisonment
will be in the common jail for such time as the court may order.

It is the sting in the tail of an injunction that makes it
especially formidable. The debtor who fails to pay to the
sheriff, when demand is made upon an execution, a judgment for
money damages commits no contempt of court. The man who keeps on
doing what a court of equity has forbidden him to do does commit

A conspicuous instance of the efficacy of an injunction was
furnished by the great Chicago railroad strike and boycott of
1894, initiated by the American Railway Union. Mob violence
followed. More than a thousand freight cars were burned. Trains
were derailed, passengers fired at, and lives lost. The officers
of the union, after two or three weeks, wrote to the managers of
the railroads principally affected, describing the strike as
threatening "not only every public interest, but the peace,
security and prosperity of our common country."[Footnote: United
States _v._ Debs, 64 Federal Reporter, 724, 729.] A
temporary injunction was issued against these officers and others
by the Circuit Court of the United States in an equitable action
brought by the United States under the direction of the
Attorney-General. They disobeyed the injunction. Their arrest
for this contempt of court promptly followed. This stopped the
flood at its source. To quote from testimony given a few weeks
later by Mr. Debs, the President of the Union, "As soon as the
employees found that we were arrested and taken from the scene of
action, they became demoralized and that ended the strike....
The men went back to work and the ranks were broken and the
strike was broken up,... not by the army, and not by any other
power, but simply and solely by the action of the United States
court in restraining us from discharging our duties as officers
and representatives of our employees."[Footnote: United States
_v._ Debs, 64 Federal Reporter, 724, 759.] The defendants
in the contempt proceedings having been found guilty and
sentenced to jail for terms varying from three to six months,
appealed to the Supreme Court of the United States, but without
avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564,

Injunctions not infrequently are granted as an equitable relief
against a legal judgment. _Summum jus, summa injuria_ is an
ancient maxim of the courts. The foundation of equitable
jurisdiction is that courts of law cannot always do justice. One
may, for instance, be invited to build a house on another's land,
and promised a deed of the site. He builds the house and then is
refused a deed. The invitation and promise were by word of
mouth. The rules of law make such a house the legal property of
the landowner. The rules of equity make it the equitable
property of the man who built it on the faith of the landowner's
invitation and promise. If the latter sue at law for the
possession of the house, he may get judgment, but equity will
prevent his enforcing the judgment, not because it is not a legal
judgment, but because he is endeavoring to make an inequitable
use of a legal right.

A court of equity sometimes makes a decree establishing a title.
To enforce such a judgment, a writ may be issued, called a writ
of assistance. It is directed to the sheriff and requires him to
do some specific act, such as putting the defendant out of
possession of certain lands and turning it over to the plaintiff.

It is, as appears from instances which have been given, possible
that the execution of process from the courts may be defeated by
violence which they cannot overcome. It is possible in fact
though impossible in theory. As the sheriff can employ the
_posse comitatus_, he ought always to have an overwhelming
force at his command. But it is easier to "call spirits from the
vasty deep" than to make them respond. Public feeling may be so
strong in opposition to the service of the process that mob
violence will be tolerated and even openly supported. An armed
mob can only be effectually met by an armed force which is not a
mob--that is, by disciplined soldiers.

The sheriff, if so opposed, may call upon the Governor of the
State for military assistance. How efficient it will prove will,
of course, depend on the discipline of the militia and the
firmness of its commanding officers. It is seldom that it fails
to restore order, if the men carry loaded guns and are directed
to fire at the first outbreak of forcible resistance.

But the Governor may refuse to comply with the sheriff's request.
In such case, the execution of the process of the court fails
because of want, not of power, but of the will to exercise it on
the part of those on whom that duty rests. In every government
constituted by a distribution of the supreme authority between
different departments, each of them must do its part loyally with
respect to the others, or the whole scheme, for the time being,
breaks down.

In the United States this danger is doubly great because of the
interdependence of the general government and the particular
States. Judicial process may issue from a State court against
those who oppose its execution under claim of authority from the
United States; or from a federal Court against those who oppose
its execution under claim of authority from a State. Some
instances of such conflicts of jurisdiction have been already
mentioned.[Footnote: Chap. X.]

When the Supreme Court of the United States reverses a judgment
of a State court, it can either[Footnote: U. S. Revised Statutes,
Sec. 709.] itself render the judgment which the State court ought
to have rendered, and issue execution, or remand the cause to it
with directions that this be done. If the latter course be
taken, the directions may be disobeyed. A Georgia court was
guilty of this contumacy in the case of Worcester _v._
Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former
course be taken, the service of the execution may be resisted by
the power of the State.

Worcester was illegally confined in the Georgia penitentiary.
The sentence against him had been set aside and the indictment
adjudged to furnish no ground of prosecution. But if the Supreme
Court had rendered a judgment dismissing the prosecution, and
given a writ to the marshal directing him to set Worcester at
liberty, the officer would have found the prison doors shut in
his face. Every prison is a fortress, so built as to prevent
rescue from without as well as escape from within. To lay siege
to one would be too great an enterprise for the marshal to
undertake without military assistance. For this the President
could have been called upon. But he might have refused it. If
so, the judgment of the judicial department would have proved
inoperative, simply because the officer charged with the duty of
rendering it operative had declined to fulfil that duty.

The Supreme Court, in the Worcester case, probably had reason to
believe that if it had directed a call on President Jackson for a
military force it would have been refused. It is reported that
the President, in private conversation, intimated as much.
Possibly he might have been justified in the refusal. South
Carolina was on the brink of war with the United States. Georgia
was her next neighbor, and might have been induced to make common
cause with her, if Jackson had battered down the doors of her
penitentiary to release a man who, her courts insisted, had been
properly convicted of a serious crime. A court can do nothing
short of justice. The executive power, perhaps, may sometimes
rightly act or decline to act from motives of national policy.

In one instance the armed forces of a State were actually
engaged, under the authority of the legislature, in forcibly
resisting the service of process from the federal courts. It was
in 1809, when the marshal in Pennsylvania was opposed by a large
body of the militia called out by order of the Governor for the
purpose. Their commanding officer was subsequently arrested and
convicted for the offense in the Circuit Court of the United
States.[Footnote: Wharton's State Trials, 48; McMaster, "History
of the People of the U. S.," V, 405; Willoughby, "The American
Constitutional System," 41, 43.]

In 1859, the Governor of Ohio refused to honor a requisition from
the Governor of Kentucky for the surrender of a fugitive from
justice. The act charged was assisting a slave to escape. This
was a crime in the State from which the man had fled, but not in
the State where he had found refuge. The Supreme Court of the
United States was asked by Kentucky to compel the surrender. It
held that the Governor had violated his duty, but that the
Constitution of the United States furnished no means for
enforcing its performance by him.[Footnote: Kentucky _v._
Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of
this doctrine, a man indicted for murder in Kentucky has been for
several recent years residing in safety in Indiana, because the
Governor of that State has refused to comply with repeated
requisitions for his surrender.

* * * * *

Every court of record while in session has inherent power to
compel all who appear before it to preserve order, to obey its
lawful commands issued in due course of judicial procedure, and
to refrain from any expressions of disrespect to its authority,
under pain of fine or imprisonment, or both. This power, unless
withdrawn by statute, belongs to any justice of the peace who has
authority to hold a court of record, while he is holding one.
Commonly it is, in his case, regulated by statute.[Footnote:
Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic
Reporter, 955.]

At common law, superior courts of record also have power during
the progress of a cause to repress or punish any disrespectful
acts or words done or uttered, not in its presence, but so near
to it as to constitute a breach of order or tend directly to
lessen its efficiency. These are deemed powers inherent in such
a court, because necessary to support its proper dignity and
independence. Statutes are common to define or restrict them,
but they cannot take them away altogether. To do so would be to
take away an essential incident of the judicial power. Nor can
they so far reduce the penalty that may be inflicted as to
deprive the court of a reasonable measure of the right of
self-protection.[Footnote: Batchelder _v._ Moore, 42
California Reports, 412.] It is, to say the least, doubtful if
they can even restrict its exercise by any court created by the
Constitution itself.[Footnote: State _v._ Morrill, 16
Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri
Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_
Robinson, 19 Wallace's Reports, 505, 510.]

The accused is not entitled as of right to a trial by jury. The
judge is the best guardian of the dignity of the court.[Footnote:
_In re_ Debs, 158 U. S. Reports, 564, 595.]

The rule of criminal law that to convict a man of crime requires
proof of guilt beyond a reasonable doubt applies to all
proceedings of contempt. The accused is also allowed to go free
on giving bail until final sentence, if that is to be preceded by
any preliminary inquiry involving adjournments from day to day.
No such inquiry is necessary when the contempt is plain and was
committed in the presence of the court.

In the courts of the United States and in most of the States no
appeal is allowed for errors in law from a summary sentence of
punishment for a contempt of court. Appeals lie only from final
judgments in a cause, and such a sentence for contempt is not so
regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports,
364, 376.] If the contempt be (as it may be) made the subject of
a formal criminal prosecution and a jury trial, an appeal is

A punishment inflicted for contempt, even though it goes beyond
the rightful jurisdiction of the court in such a matter, is a
judicial act, and does not expose the judge passing the sentence
to an action for damages.[Footnote: Bradley _v._ Fisher, 13
Wallace's Reports, 335.]

* * * * *



Martial law is the exercise of military power. It is martial
rule at the will of the commanding military officer.

In time of war and at the seat of war martial rule is a
necessity, and under such conditions martial law may rightfully
be enforced by any sovereign as an incident of the war, whether
that is being waged with foreign or domestic enemies. The case
is different when, though war exists, an attempt is made to
enforce martial law at a place which is not the seat of war, nor
so near it as to make military rule necessary for military
success. Constitutional provisions may also affect the question.
Those affecting the United States contain limitations stricter
than those found in some of the State Constitutions. Ordinarily
no military officer can rightfully enforce martial law in a place
where the regular courts of his sovereign are open and in the
proper and unobstructed exercise of their jurisdiction.[Footnote:
_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]

The first serious contest between the judiciary and the military
power in this country as to the questions thus involved took
place during the war of 1812. General Jackson, in 1814, was at
New Orleans in command of the military Department of the South.
The city was threatened with invasion. He declared martial law,
and not long afterwards arrested a Mr. Louaillier, a member of
the State legislature, for writing a newspaper article in which
he objected to the continuance of this kind of military
government. Louaillier obtained a writ of _habeas corpus_
from the District Judge of the United States (Judge Hall),
directed to Jackson. The General, instead of obeying it,
forthwith took possession of the original writ, arrested the
Judge, and deported him from the city. Two days later despatches
were received from the War Department officially announcing the
conclusion of a treaty of peace. Judge Hall now returned, and a
rule to show cause why Jackson should not be attached for
contempt of court was issued. Jackson appeared and filed a long
answer, first stating various objections to the jurisdiction, and
then setting up the circumstances calling for his proclamation of
martial law. He had been told, he said, that the legislature was
"politically rotten." The Governor had warned him that the State
was "filled with spies and traitors," and advised, in the
presence of Judge Hall, and with no dissent from him, that
martial law be proclaimed. It seemed a time when "constitutional
forms must be suspended for the permanent preservation of
constitutional rights." The lengthy paper, which was evidently
written by a skilful lawyer, closed thus: "The powers which the
exigency of the times forced him to assume have been exercised
exclusively for the public good; and, by the blessing of God,
they have been attended with unparalleled success. They have
saved the country; and whatever may be the opinion of that
country, or the decrees of its courts in relation to the means he
has used, he can never regret that he employed them."[Footnote:
Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court,
not particularly impressed with these arguments, ordered the
proceedings to go forward and required the General to answer
certain interrogatories respecting his course of conduct, by a
day appointed. He appeared on that day and declined to answer
them, with this concluding shot:

"Your honour will not understand me as intending any disrespect
to the court; but as no opportunity has been afforded me of
explaining the reasons and motives by which I was influenced, so
it is expected that censure will constitute no part of that
sentence, which you imagine it your duty to pronounce."[Footnote:
_Ibid_., 387.]

The sentence was a fine of $1,000, which was at once paid.

The sympathy of the country was with "the hero of New Orleans" in
this affair, whose gallant defense of that city had cast a gleam
of glory upon the close of a long and apparently fruitless war.
Some of her people subscribed the money to reimburse to him the
amount of the penalty, but he declined to accept it. Nearly
thirty years afterwards Congress made an appropriation for the
purpose, and he received the full amount with interest (in all
$2,700) from the treasury, as a legislative compensation for a
judicial wrong. It would seem, however, that Judge Hall acted
within the limits of his authority. When he signed the writ of
_habeas corpus_ the State was at peace, and it was generally
known, though not officially proclaimed, that a formal treaty of
peace had been signed between the United States and Great
Britain. The courts were open; his court was open; and the
General should have respected the process which issued from
it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports,
O. S., 530. See opinion of Mr. Justice Miller in Dow _v._
Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4
Wallace's Reports, 2, 127.]

During the Civil War, President Lincoln was responsible for many
arrests by military officers of citizens of States remote from
the seat of actual hostilities, and in which the courts were
open. At its first outbreak he entirely suspended the privilege
of the writ of _habeas corpus_, and one issued by the Chief
Justice of the United States was disobeyed.[Footnote: _Ex
parte_ Merryman, Taney's Decisions, 246.] Congress in 1863
enacted that any order of the President, or under his authority,
in the course of the war, should be a defense to any action in
any court for what was done by virtue of it. The State courts
disregarded the statute. If, they said, either the common law or
martial law justified the order, it justified the act; if neither
did, the fiat of Congress cannot make the act a lawful
one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports,
370.] The Supreme Court of the United States had this question
before them, but did not find it necessary to decide
it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510;
Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the
dissenting opinion of two justices in the last report, p. 292.)]
Had they done so, it would probably have been answered in the
same way.

Missouri inserted in her Constitution of 1865 a provision similar
to the Act of Congress. This, of course, so far as that State
could do it, abrogated any rule of law to the contrary, and it
was held not to contravene any provision of the Federal
Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's
Reports, 595.] The transaction in controversy, however, was
before the adoption of the fourteenth amendment, and had the
prohibition in that been then in existence, a different result
would probably have been reached.

The Governor of North Carolina (William W. Holden) in 1870
declared two counties in a state of insurrection. The militia
were called out and a number of citizens arrested. Writs of
_habeas corpus_ in their favor were issued by Chief Justice
Pearson of the Supreme Court of the State against the military
officers.[Footnote: _Ex parte_ Moore, 64 North Carolina
Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at
first refused, by the Governor's authority, to obey them.
Similar writs were then obtained from the District Judge of the
United States, upon which the petitioners were, by the Governor's
orders, produced before the State judge. The result was the
impeachment of Governor Holden and his removal from
office.[Footnote: S. S. Cox, "Three Decades of Federal
Legislation," 458.]

While martial law is the will of the commanding officer, it may
be his will to have it applied, so far as ordinary matters of
litigation are concerned, by courts. For that purpose, when in
occupation of enemy's territory, he may allow the courts
previously existing under the government of the enemy to continue
in the exercise of their functions as his temporary
representatives; or he can institute new tribunals of local
jurisdiction having the name and form of civil courts, and
proceeding according to the ordinary rules of administrative
justice. All such courts act really as his agents and subject to
his control, but in practice he seldom interferes with their
judgments. He cannot, however, in establishing such a temporary
tribunal, give it the powers of an admiralty court over prize
cases. The judgment _in rem_ of an admiralty court,
condemning a captured ship as a lawful prize of war, is treated
as conclusive all over the world; but this is because it is a
decree of a competent court, properly established to administer a
branch of maritime law which, in its main principles, is part of
the law of nations and common to the world. No mere military
court on enemy's territory occupies that position.[Footnote:
Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]

This right of the military commander exists equally on foreign
territory in military occupation and on domestic territory, when
the ordinary courts of his country are not open. During our
Civil War, in 1864, President Lincoln, as commander in chief of
the army and navy, set up a "Provisional Court for the State of
Louisiana," after the Southern portion of that State had been
occupied by the national forces and martial law declared. Judge
Charles A. Peabody of New York, who had been a justice of the
Supreme Court of that State, was commissioned to hold it and to
dispose of both civil and criminal causes. Its docket became at
once a full one, and important litigation was transacted there
with general acceptance until the close of the war.[Footnote: The
Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
Association for 1892, 199.]

In the original proclamation of martial law in Louisiana the
commanding officer announced that civil causes between parties
would be referred to the ordinary tribunals. One of the State
courts, known as a District Court of the City and Parish of New
Orleans, the judge of which took the oath of allegiance to the
United States, continued to sit and dispose of business in the
usual course. A few months later a citizen of New York sued a
military officer before it for ravaging a plantation which he
owned in Louisiana, and recovered judgment. A suit upon it was
afterwards brought in Maine, where the defendant resided. He
pleaded that the property of the plaintiff had been taken to
furnish his troops with necessary supplies. The case ultimately
came before the Supreme Court of the United States. Here it was
thrown out, the court saying that the District Court of New
Orleans had no jurisdiction to call military officers to account
for acts done under claim of military right.[Footnote: Dow
_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
litigation between private parties unconnected with military
operations is concerned, a court of this character, established
by law, and suffered by the military authorities to continue its
sessions, has competent jurisdiction, and its judgments will be
enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
45 New York Reports, 27.] They have no power to entertain
criminal charges against those in the military service, who would
be punishable by court martial.[Footnote: Coleman _v._
Tennessee, 97 U. S. Reports, 509, 519.]

In 1864, during the war, but in Indiana, a State
distant from the seat of hostilities, the military commandant
of the district ordered the arrest of a private
citizen and his trial before a military commission on
charges of conspiracy against the United States, as a
member of a secret organization known as the Order
of American Knights or Sons of Liberty. The trial
resulted in his conviction, and a sentence to death, which
was approved by the President of the United States.
Before it could be executed, he applied to the Circuit
Court of the United States for the District of Indiana
for a writ of _habeas corpus_. The judges of that court
were divided in opinion in regard to the case, but it
was decided in his favor when it came before the
Supreme Court of the United States.[Footnote: _Ex parte_
Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
was unanimous, but in stating the reasons for it the
court was divided in a manner which has not been
uncommon since the death of Chief Justice Marshall
when any great question of a political nature has
been involved. Five justices held that the trial of
a civilian by a military commission can never be vindicated
in a peaceful State where the courts are open
and their process unobstructed. Four justices dissented,
and Chief Justice Chase thus summarized their

There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war;
another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and
civil war within States or districts occupied by rebels treated
as belligerents; and a third to be exercised in time of
invasion or insurrection within the limits of the United
States, or during rebellion within the limits of States
maintaining adhesion to the National Government, when the
public danger requires its exercise. The first of these may be
called jurisdiction under military law, and is found in acts of
Congress prescribing rules and articles of war, or otherwise
providing for the government of the national forces; the second
may be distinguished as military government, superseding, as
far as may be deemed expedient, the local law, and exercised by
the military commander under the direction of the President,
with the express or implied sanction of Congress, while the
third may be denominated martial law proper, and is called into
action by Congress, or temporarily, when the action of Congress
cannot be invited, and in the case of justifying or excusing
peril, by the President, in times of insurrection or invasion,
or of civil or foreign war within districts or localities where
ordinary law no longer adequately secures public safety and
private rights.

We think that the power of Congress in such times and in such
localities to authorize trials for crimes against the security
and safety of the national forces may be derived from its
constitutional authority to raise and support armies and to
declare war, if not from its constitutional authority to
provide for governing the national forces.[Footnote: _Ex
parte_ Milligan, 4 Wallace's Reports, 141.]

The Constitution of the United States contains some provisions
restricting the jurisdiction of military authorities and
tribunals over controversies, which are not found in the
Constitutions of the States. It may well be that martial law has
for the United States a narrower meaning than it may possess in a
particular State.

The legislature of Rhode Island in 1842, during "Dorr's
Rebellion," by a Public Act put that State under martial law
until further order, or until its termination should be
proclaimed by the Governor. A squad of militia broke into the
house of a private citizen to arrest him as an abettor of Dorr,
and were afterwards sued in trespass before the civil courts.
The cause finally came before the Supreme Court of the United
States, where (one justice only dissenting) it was held that the
Act could not be pronounced an unjustifiable exercise of
legislative power under any provision of the federal
Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
Reports, 1, 45.] Whether the courts of Rhode Island could have
taken a different view, under the fundamental laws of the State,
was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
Reports, 2, 129.]

On the other hand, there are States in which the Constitution
explicitly provides that "the military power shall always be held
in an exact subordination to the civil authority and be governed
by it."[Footnote: Constitution of Massachusetts, Declaration of
Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
Sec, 22.] It is a serious question whether, under such
provisions, a legislative or executive declaration of martial law
in time of peace, in order the better to cope with some local
disturbance, is to be regarded as an expression of the will of
the civil authority, by virtue of which the civil courts lose the
power of discharging on _habeas corpus_ one restrained of
his liberty by military command. That it is such an expression
was held in Colorado in 1904, but by a court composed of only
three judges, of whom one, in a dissenting opinion, observed that
the decision of his associates "is so repugnant to my notions of
civil liberty, so antagonistic to my ideas of a republican form
of government, and so shocking to my sense of propriety and
justice that I cannot properly characterize it." A similar
question arose, but was not judicially determined, in Arkansas in
1874. There was a contest over the election of Governor. The
Constitution provided that such contests should be decided by the
joint vote of both houses of the legislature. Baxter, the
candidate who was elected on the face of the returns, was
declared elected by the President of the Senate and took the oath
of office. Brooks, the other candidate, presented a petition for
a contest to the lower house, which refused to grant it. He then
applied to the Supreme Court on _quo warranto_ proceedings,
which threw out the case for want of jurisdiction.[Footnote:
State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
suit was then brought in a _nisi prius_ court, on which
judgment was rendered in his favor,[Footnote: This judgment was
reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
173.] and he was put in possession of the executive chambers by
an armed force which he assembled. Baxter then declared martial
law in the county in which the capital was situated, and arrested
two of the judges of the Supreme Court on their way to attend a
special session called to take action in _mandamus_
proceedings brought in behalf of Brooks. They were rescued after
a day or two by United States troops and proceeded to join their
associates. The court then gave judgment for Brooks in his third
suit, directing the State Treasurer to pay his warrants. At this
point the legislature applied to the President of the United
States for protection against domestic violence, under Art. IV of
the Constitution of the United States, and his compliance by a
proclamation officially recognizing Governor Baxter and ordering
the Federal troops to support him closed the history of this
disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
for 1874," 87-100.]

* * * * *



The oldest which survives of our American Constitution, that
adopted by Massachusetts in 1780, requires the appointment of
judges to be made by the Governor of the State, with the advice
of the Council, and for good behavior.[Footnote: Constitution of
Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]

This plan was substantially followed in framing the Constitution
of the United States. That was planned for a small number of
States, perhaps only nine, certainly at first not over thirteen.
The Senate, therefore, would be a body small enough to serve as
an executive council. Its necessary enlargement by the admission
of new States has long made it but ill-suited for this purpose,
and has thrown the power of confirming or rejecting an executive
nomination for judicial office largely under the control of the
Senators from the State to which the person named belongs,
although this control is much weakened if they do not belong to
the party of the administration. The principle that the greater
the concentration of the appointing power, the greater will be
the sense of individual responsibility for every appointment
made, makes this result of a Senate of ninety members not wholly
unfortunate. The President now consults a council of two.

Thirteen States in all originally gave to the Governor the power
either of appointing or of nominating the judges of the higher
courts; fourteen gave their election to the legislature; the rest
preferred an election by the people.[Footnote: 'Baldwin, "Modern
Political Institutions," 58, 59.] If we compare the original
practice in each State with its present practice, we find that
there are now fewer in which the Governor appoints or nominates;
fewer in which the legislature elects; more in which the people
do. Legislative elections have been found to imply a system of
caucus nominations, and have often led to a parcelling out of
places among the different counties in which geographical
considerations told for more than did fitness for office. In one
State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
since 1880, the legislature has elected on the Governor's
nomination. In practice they have never failed to act favorably
upon it.

Mississippi, which, in 1832, became a leader in the movement
toward the choice of the judges by popular election, in her
latest Constitution (of 1890) follows the plan of the United
States, the Governor nominating and the Senate confirming.

The action of the confirming or electing body when unfavorable in
any State has generally been unfortunate. It is apt to be
affected by local or personal political influence to which the
chief executive would be insensible. A large number of able men
have thus, from time to time, been deprived of a seat on the
Supreme Court of the United States who would have added to its
luster. In 1867 Massachusetts lost a Chief Justice of the first
rank in this way by the defeat of Benjamin F. Thomas. The
council refused, by a majority of one, to confirm his nomination
because, though of the same party with them, he was of a
different wing.[Footnote: Proceedings Mass. Historical Society,
2d Series, XIV, 301.]

In most of the States the judges are now elected by the
people.[Footnote: In thirty-three. In one other (Florida) the
people elect the judges of the Supreme Court, and the Governor,
with the advice and consent of the Senate, appoints those of the
superior courts. The Governor nominates in Delaware, Mississippi
and New Jersey, and in the four largest New England States. In
Rhode Island and Vermont, South Carolina and Virginia, the
legislature elects.] This makes the choice more a political
affair. The nominations are made by party conventions, and
generally in connection with others of a purely political
character. It also, in case of a nomination for re-election,
places a judge on the bench in the disagreeable position of being
a candidate for popular favor at the polls and an object of
public criticism by the political press.

In 1902 a justice of the Supreme Court of Michigan was nominated
for re-election. There was an opposing candidate, some of whose
friends published a statement that in the nine years during which
the justice had already served he had written opinions in 68
railroad and street railway cases of which 51 were in favor of
the companies. He was re-elected, but some time afterwards this
fact was reprinted in a local periodical accompanied by the
remark that "we must conclude that either the railroad and
railway companies--4 to 1--had exceptionally good cases from the
standpoint of law and justice or his Honor's mind was somewhat
warped in their favor.... You can't expurge mental prejudice
from judicial opinions any more than you can from the reasonings
of theologians and atheists.... To imagine a justice deciding a
case against his personal interests is too great a stretch of
imagination for us to appreciate."

A less brutal but more dangerous attack, made in 1903 by a
religious newspaper, illustrates the same evil. The Supreme
Court of Nebraska has decided that under their Constitution the
Bible cannot be used in the public schools. It was, of course, a
pure question of the construction of a law, for the policy of
which the court had no responsibility. The newspaper in
question[Footnote: The Boston _Congregationalist_ of Oct. 3,
1903.] which, though published in the East, had some circulation
in that State, printed this paragraph:

"The Supreme Court judge of Nebraska who wrote the decision that
the State constitution prohibits the use of the Bible in the
public schools is standing for re-election, and the fact that he
made such a decision is not forgotten by the Christian voters."

In States the control of which by one of the great political
parties is assured, the real contest is for the nomination, and
here there is even more license for unfavorable comment on the
judicial record of one who seeks it. In a Southern State there
was such a struggle in 1903 for the nomination of the prevailing
party for Governor. The person who then held that place desired
it. So did one of the justices of the Supreme Court. It is said
that the friends of the former circulated a cartoon representing
the five justices together as five jackasses, and another in
which the justice whom they were trying to run off the field was
caricatured in the act of setting aside a verdict in favor of a
child injured by a railway accident. The two candidates
subsequently met upon the platform for a joint discussion of the
issues before the people. The Governor sharply criticised the
character of the Supreme Court. The judge caught him by the
collar and was about to strike him when friends intervened, and
an explanation of the remarks was made which was accepted as

In the heat of a political campaign men do not always stop to
measure words or weigh questions of propriety. The personal
character and public acts of an opponent are a legitimate subject
of description and comment. Sharp attacks must be expected as a
natural incident of such a contest, and by candidates for
judicial office as well as others. The public record of all for
whom votes are asked at a public election must be the subject of
open criticism, or there would be danger that unworthy men would
succeed. To treat such observations as have been quoted upon
opinions previously written by a candidate for re-election,
however unseemly or unjust, as a contempt of court would be
indirectly to impair the right of free suffrage.

If assertions published as to acts done or words said are false,
it does not follow that they are libellous. An honest mistake
may be a defense for such a misstatement.[Footnote: Briggs
_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
Reporter, 513.]

Judges of trial courts, when candidates for re-election, may
expect the publication of similar attacks on rulings which they
have made. The following dispatches, which appeared in the same
issue of a local newspaper in Pennsylvania in 1903, when a county
election was soon to occur, will sufficiently illustrate this:


Sharon, Pa., Dec. 25.--From present indications the coming
judicial fight in Mercer County will be a bitter one. Public
interest centers in the efforts of Judge S. H. Miller and his
friends to secure a re-election, and the attempts of his
opponents to place A. W. Williams of Sharon on the bench
instead. While the sole topic politically is on the judgeship,
the twenty or more candidates for Assembly are not losing the
opportunity of fixing their fences. They, too, have assumed a
reticence in regard to the matter of the judgeship. It is
expected that on the last lap of the race Williams and Miller
will be the only two men remaining. There are three other
candidates for the Republican nomination who have thus far
announced themselves. They are: W. J. Whieldon of Mercer;
W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
Judge Miller and A. W. Williams are the closest of friends.


Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
Warren has been confronted with a new proposition in his
crusade in Western Pennsylvania against violators of the pure
food laws. Judge S. H. Miller of Mercer County, before whom
several oleomargarine dealers were recently convicted for the
illegal sale of "oleo," has refused to sentence them on the
ground that the procedure of the State Pure Food Bureau is
persecution and lacking in equity. He takes the position that
grocers and saloon keepers, not being expert chemists, should
at least be warned previous to arrest, and be given a chance to
determine whether the foods they are handling are pure or
adulterated. Judge Miller's position is a serious impediment
in the way of the enforcement of the law, and Commissioner
Warren is preparing to take action that may compel him to
punish offenders convicted before him.

Not infrequently in the judicial history of the United States
there has been presented to a judge the choice between rendering
a decision according to his opinion of the law and the facts and
losing his seat, and rendering one according to public opinion,
or the public opinion of his party friends, and keeping it.

A judge of the High Court of Errors and Appeals in Mississippi
was one of the earlier martyrs in the cause of judicial
independence. The State had incurred a heavy bonded debt, which
she found it inconvenient to pay. The Governor, who had approved
the bills under which over $15,000,000 of the bonds had been
issued, concluded in 1841, after the issue, that it was forbidden
by the Constitution of the State, and issued a proclamation
declaring them void. In a suit in chancery this question came up
for decision in 1852. Meanwhile the policy of "Repudiation" had
been made a political issue and the people had given it their
approval by electing its advocates year after year to the highest
offices. The chancellor upheld the validity of the bonds, and on
appeal his decision was unanimously affirmed.[Footnote: State
_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
Sergeant S. Prentiss, II, 268.] A few months later the term of
office of one of the judges who had concurred in this opinion
expired, and the people put a successor in his place who held
doctrines better suited to the public sentiment of the hour.

In the days preceding the Civil War, the validity of the laws
enacted by Congress to secure the recapture of slaves who had
fled to the free States was frequently attacked in the press and
on the platform. The Constitution expressly provided for such
proceedings, and the Supreme Court of the United States in 1842
had pronounced the "Fugitive Slave law" of 1793 to be valid in
all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
Reports, 539.] The principle of this decision plainly covered
the later Act of 1850, but as public sentiment in the North
became more and more uncompromising in its hostility to the
existence of slavery under the flag of the United States, the
State courts were not always strong enough to withstand the
pressure to disregard precedents and let the Constitution give
place to what the phrase of the time called a "higher law."

In 1859, a citizen of Ohio was convicted in the District Court of
the United States and sentenced to jail for rescuing a fugitive
slave who had been recaptured in Ohio by an agent of his master,
to whom he had been committed in proceedings under the Act of
Congress. He was imprisoned in an Ohio jail, the United States
then having none of their own, but placing all their convicts in
State jails or prisons under a contract with the State to keep
them for a certain price. His counsel applied to the judges of
the Supreme Court at chambers for a writ of _habeas corpus_
against the Ohio jailer. He produced his prisoner and submitted
a copy of the warrant of commitment from the District Court. The
public were extremely interested in the outcome of the
proceedings. The Attorney-General of the State assisted in
presenting the petitioner's case. The Governor was one of the
multitude present in the crowded court room. The
Attorney-General declared that the position that the Supreme
Court of the United States had the power to decide conclusively
as to the constitutionality of the laws of the United States and
so tie the hands of the State authority was untenable and
monstrous. "Georgia," he said, "hung Graves and Tassel over the
writ of error of this same Supreme Court. God bless Georgia for
that valiant and beneficent example."[Footnote: _Ex parte_
Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
sectional court composed of sectional men, judging sectional
questions upon sectional influences."[Footnote: _Ibid._,

Of the five judges, three held that the constitutionality of the
Fugitive Slave law was settled conclusively by repeated decisions
of the Supreme Court of the United States, and that the State
courts could not release the prisoner. Chief Justice Swan gave
the leading opinion. Its positions were thoroughly distasteful
to the people of Ohio. He knew they would be. His term, which
was one of five years, expired in the following February, and the
vacancy was to be filled at the State election in October. On
the day before the judgment was announced he told his wife that
this would be fatal to his re-election. "If the law makes it
your duty to give such an opinion," said she, "do it, whatever
happens." He gave it, and what they anticipated occurred. The
convention of his party declined to renominate him. He resigned
his office immediately after the election and retired to private
life at an age and under circumstances which made it
impracticable for him to re-enter the bar with success, but with
the consolation of knowing that he had acted right.

Chief Justice Day of Iowa, one of the ablest men who ever sat on
her Supreme bench, in the same way lost a re-election by writing
an opinion of the court, which announced a doctrine that was
legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
Reports, 543, 603.] His term was soon to expire. He, too, knew
that this decision would prevent his renomination, and it did.

In 1885, Chief Justice Cooley of Michigan, one of the great
jurists and judges of the country, failed to secure a re-election
to its Supreme Court, which he had adorned for twenty-one years,
largely on account of an opinion which he had written supporting
a large verdict against a Detroit newspaper for libel. The
newspaper, upon his renomination, described him as a railroad
judge, and kept up a running fire through the campaign, which
contributed materially to his defeat.

Political contests cost money, and if judges appear as candidates
for popular suffrage they are naturally expected to contribute to
the expense. The other candidates on the same ticket do this,
and if those nominated for the bench did not, somebody would have
to do it for them, thus bringing them under obligations that
might have an unfortunate appearance, if not an unfortunate
effect. In New York, where some of the judicial salaries are
higher than anywhere else in the country, and the terms for the
highest places are long (fourteen years), it has been customary
for those placed in nomination to contribute a large sum to the
campaign expenses of their party. This is tacitly understood to
be a condition of their accepting the nomination, and the amount
to be paid is fixed by party practice. For an original
nomination by the party in power, it is said to be about equal to
a year's salary; for a renomination half that sum may suffice.

But a judge holding office by popular election must
in any case owe something to somebody for supporting
his candidacy. He is therefore under a natural inclination
to use his power, so far as he properly can, in
such a way as to show that he has not forgotten what
his friends have done for him. There is always a
certain amount of judicial patronage to be bestowed.
There are clerks and messengers, trustees and receivers,
referees and committees, perhaps public prosecuting
attorneys and their assistants, to appoint. Other
things being equal, no one would blame a judge for
naming a political friend for such a position. But as
to whether other things are equal he is to decide. To
the most upright and fearless man the danger of this is
great; to a weak or bad man the feeling of personal
obligation will be controlling. Justice Barnard of the
Supreme Court of New York once observed on the
bench that judges had considerable patronage to be
disposed of at their discretion, and that for his part
he had always succeeded in life by helping his friends
and not his enemies. For this practice, among other
things, he was impeached and removed from office; but
how many judges are there who yield to this temptation
without avowing it? A French critic of the
elective judiciary has thus referred to these remarks
of Justice Barnard:

Le Juge Barnard, qui formulait en plein tribunal cette
declaration de principes, fut decrete d'accusation et condamne,
non sans justes motifs. Mais son crime impardonable etait de
proclamer trop franchement les doctrines de la magistrature
elective: il trahissait le secret professionnel.[Footnote: Duc
De Noailles, _Cent Ans de Republique aux Etats-Unis_, II,

Most of the old thirteen States in their first Constitutions
provided that the judges of their highest courts should hold
office during good behavior, or until seventy years of age. New
York at first put the age of superannuation at sixty, but after
losing by this the services of Chancellor Kent for some of his
best and most fruitful years, postponed it to seventy. Georgia
was the first to set the fashion of short terms. Her
Constitution of 1798 provided that the judges of her highest
court should be "elected" for three years, but that those of her
inferior courts should be "appointed" by the legislature and hold
during good behavior. The legislature construed this as allowing
it to frame such a scheme of election as it thought best, and
that adopted was for the House to nominate three, from whom the
Senate elected one.[Footnote: Schouler, "Constitutional Studies,"

In all but three States (Massachusetts, New Hampshire and Rhode
Island) at the present time all judges hold for a term of years,
and as a general rule those of the higher courts have longer
terms than those of the inferior ones. The change from life
tenure to that for a term of years was partly due to several
instances which occurred early in the nineteenth century, in
which it was evident that judges had outlived their usefulness.
Judge Pickering of the District Court of New Hampshire lost his
reason, and to get rid of him it became necessary to go through
the form of impeachment. In 1803, Judge Bradbury of the Supreme
Judicial Court of Massachusetts, who had been incapacitated by
paralysis, was displaced in the same way, though only a few
months before his death. In 1822, an old man who was the chief
judge of one of the judicial districts of Maryland was presented
by the grand jury as a "serious grievance," on account of his
habitual absence from court. His physician certified that his
life would be hazarded if he undertook to attend, but the natural
answer was that then he should resign.

At present, for judges of the State courts of last resort, the
term in Pennsylvania is twenty-one years (but with a prohibition
of re-election); in Maryland, fifteen; in New York, fourteen; in
California, Delaware, Louisiana, Virginia, and West Virginia,
twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
Illinois, and Mississippi, nine. The general average is eight,
although that particular number obtains in but seven States. In
eighteen it is six. The shortest term is two, and is found in
Vermont. It may be noted that the original rule in Vermont was
to elect judges annually. As compared with the terms of office
prescribed at the middle of the nineteenth century, those at the
opening of the twentieth are on the average decidedly longer.

* * * * *

The compensation of most American judges is a fixed salary.

In some States, courts of probate and insolvency, and in all
justices of the peace when holding court, are paid by such fees
as they may receive, at statutory rates, for business done. As
in the case of sheriffs and clerks, judges under such a system
sometimes receive a much larger official income than any one
would venture to propose to give them were they to be paid for
their services from the public treasury. A clerk of court often
receives more than the judge, and some judges of probate and
insolvency more than the Chief Justice of their State.

In colonial times, judges were sometimes paid in part by fees, in
part by occasional grants by the legislature, and in part by a
regular stipend. This practice of legislative grants from time
to time in addition to their salaries was continued in
Massachusetts in favor of the justices of the Supreme Judicial
Court for a quarter of a century, in the face of a Constitution
which provided that they "should have honourable salaries
ascertained and established by standing laws."[Footnote: Memoir
of Chief Justice Parsons, 228.] It was evidently indefensible in
principle, and to remove judges, as far as possible, from
temptation either to court the favor or dread the displeasure of
the legislature it is now generally provided in our American
Constitutions that their salaries shall be neither increased nor
decreased during the term for which they may have been elected by
any subsequent change of the law. In a few States it is thought
sufficient to guard against the consequences of legislative
disfavor, and the Constitutions forbid only such a decrease of

The Chief Justice of the Supreme Court of the United States
receives $13,000 a year and his associates $12,500. Circuit
Judges have $7,000, and District Judges $6,000.

In the States, the Chief Judge of the New York Court of Appeals
receives $10,500 and his associates $10,000. The same salaries
are given in Pennsylvania. In New Jersey, the Chancellor and the
Chief Justice each receive $10,000 and the associate judges
$9,000. In Massachusetts, the Chief Justice receives $8,500 and
his associates $8,000. In the other States less is paid, the
average for associate judges in the highest courts being about
$4,350. Only nine States pay over $5,000. The Chief Justice in
many receives $500 more. These salaries are, however, generally
supplemented by a liberal allowance for expenses, and in some
States each judge is provided with a clerk. In New York, this
addition amounts to $3,700; in Connecticut, to $1,500; in
Vermont, to $300.

The salaries for the highest trial court generally closely
approximate those paid to the judges of the Supreme Court, and in
case of trial courts held in large cities are often greater.
Those for the inferior courts are much lower.

The judges of the principal _nisi prius_ court (which is
misnamed the Supreme Court) in New York City are allowed by law
to accept additional compensation from the county, and receive
from that source more than from the State, their total official
income being $17,500. The trial judges in Chicago also receive
$10,000, although the highest appellate judges in the State have
a salary of only $7,000.

It is not surprising that American judicial salaries are no
greater, but rather that they are so large. They are fixed by a
legislature, the majority of the members of which are men of very
moderate income, and when originally fixed in the older States it
was often by men not altogether friendly to the judiciary. It
was a saying of Aaron Burr, which was not wholly untrue in his
day, that "every legislature in their treatment of the judiciary
is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
186.] Only the influence of the bar has carried through the
successive increases which have been everywhere made.

The first pension to a retired judge ever granted in the United
States was one of $300 voted in Kentucky in 1803. It was offered
to one of the members of the Court of Appeals to induce him to
resign, but the year after his resignation the statute was
repealed on the ground that it was unconstitutional.[Footnote:
Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
States have allowed their judges who have reached the age of
seventy, after not less than ten years' service, to retire, at
their option, receiving the full official salary during the
remainder of their lives. Rhode Island gives hers the same
privilege after twenty-five years' service, and Massachusetts and
Maryland have somewhat similar provisions, except that the judges
on retirement receive but part of what they formerly did. The
Connecticut legislature is in the habit of appointing her judges,
both of the Supreme and Superior Court, when retired at the age
of seventy, State referees for life, with an allowance of $2,500
for salary and expenses, their duties being to try such questions
of fact as the courts may refer to them and to report their

Our State Constitutions now generally provide that judges shall
hold no other public office. Some also provide that all votes
for any of them for any other than a judicial office shall be

* * * * *

Occasionally a judge, in order to eke out his official income,
accepts a salaried position, calling for but little of his time,
in a matter of private business employment. This, however, is
rarely done and there are obvious objections to it when the
employer is one likely to have business before the court. Many
of the judges of the higher courts, including several of the
justices of the Supreme Court of the United States, are
professors or lecturers in law schools.

The best mode of appointing judges is that which secures the best
men. Such men are unlikely to accept a place on the bench of one
of the higher courts, unless it carries with it some prospect of
permanence. It does, if it comes to them by way of promotion
after they have served acceptably for a length of time in an
inferior court. But most judges must be taken from the bar and,
save in very unusual cases, will be in large and active practice.
This must be totally abandoned if they take one of the higher
judicial positions; and if they take the lowest, must be made
secondary to it. A lawyer's practice is more easily lost than
gathered. If it is a solid one, it is of slow growth. For one
who has turned from the bar to the bench to expect on retirement
from office to resume his old practice would be to expect the
impossible. He may have achieved a position by his judicial work
which will enable him to take a better position at the bar; but
in that case his clients will be mainly new ones. He is more
likely, particularly if no longer young, to sink into a meagre
office practice and feel the pinch of narrow means, always doubly
sharp to one who by force of circumstances has a certain social
standing to maintain. The leaders at the bar therefore seldom
consent to go upon the bench unless they have property enough to
ensure their comfortable support after they leave it, without
returning to the labors of the bar.

This is one of those evils which carry in some sort their own
antidote. The lawyers, as a body, are always anxious for their
own sake to have an able and independent bench. They do not wish
to trust their causes, when they come before a court of last
resort for final disposition, to men of inferior capacity and
standing. They therefore can generally be relied on to urge on
the nominating or appointing power the selection of competent
men. Their influence in this respect is little short of
controlling. If competent men will not ordinarily go on the
bench of an appellate court, unless by way of promotion, until
they have accumulated a sufficient fortune to make them
comfortable in old age, then as competent men will usually, in
one way or another, be selected, and as few of these are men who
from their youth have been occupying judicial positions, the
judges will usually be possessed of some independent means. A
property qualification almost is thus imposed by circumstances on
those forming the American judiciary in its highest places. The
same thing is true of our higher diplomatic positions. As Goethe
has said, there is a dignity in gold. It is a poor kind of
dignity when unsupported by merit, but if to gold merit be
joined, each lends to the other solidity and power.

Among the men of the first eminence at the bar whom the
meagerness of the salary has kept off the bench may be mentioned

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