for the determination of the cause, asserted that an act of Parliament “against common right and reason” could be adjudged void at common law.[Footnote: Dr. Bonham’s Case, 8 Coke’s Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Constitution. The law of the church within its province was then accepted as a supreme law.[Footnote: Coxe, “Judicial Power and Unconstitutional Legislation,”‘ 147, _et seq_.]
The rule laid down by Sir Edward Coke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham _v._ M’Claws, 1 Bay’s Reports, 98; Bowman _v._ Middleton, _Ibid_., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and Regents _v._ Williams, 9 Gill & Johnson’s Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder _v._ Bull, 3 Dallas’ Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, “is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative form.”[Footnote: Loan Association _v._ Topeka, 20 Wallace’s Reports, 655, 664; approved in Parkersburg _v._ Brown, 106 U. S. Reports, 487, 501.]
This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch’s Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. “It may well be doubted,” he observed, “whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection.”
The weight of American authority is in favor of the position taken by Iredell.[Footnote: Cooley’s “Constitutional Limitations,” Chap, VII; State _v._ Travelers’ Insurance Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299; 57 Lawyers’ Reports Annotated, 481.] Time has made it safer to stand upon it, for since he spoke not only have our State constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the Constitution of the United States a prohibition of State laws depriving any person of life, liberty, or property without due process of law. “Due process of law” is an elastic term. Requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land.
The principle of Roman law that, as custom can make law, so disuse can destroy it has never been adopted in the United States. No court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840, undertook to import the doctrine into American jurisprudence, but without effect. Hill _v._ Smith, Morris’ Reports, 70; explained and limited in Pearson _v._ International Distillery, 72 Iowa Reports, 357.]
* * * * *
PART II
THE ORGANIZATION AND PRACTICAL
WORKING OF AMERICAN COURTS
* * * * *
CHAPTER VIII
THE ORGANIZATION OF THE COURTS OF THE STATES
The State Constitutions differ fundamentally from that of the United States in respect to the nature of the judicial establishment. Each of the States possesses all judicial powers belonging to any sovereignty, except so far as the people of the United States may have provided otherwise in the Constitution of the United States. The State Constitutions do not define those powers. They simply commit them to certain courts and officers. Their general language is that the judicial power is vested in a Supreme Court and such other inferior courts as may be created by law. On the other hand, the Constitution of the United States defines the judicial powers of the United States exactly and within a somewhat narrow range, investing the courts of the United States with those powers and no others. Hence the States require a much more complicated and extensive judicial establishment than do the United States, for not only is the great mass of litigated cases throughout the country to be disposed of by State courts, but they must also pass upon by far the greatest variety of legal questions.
In each State there is one appellate court of last resort[Footnote: See Chap. XIX.] and several courts for the trial of original causes. Local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $50 or $100), which do not affect title to land. Then come County Courts (often styled Courts of Common Pleas or District Courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken. These generally have both civil and criminal jurisdiction.
A higher court, which may be styled a Superior Court, or Circuit Court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the County Courts in such case having a limited jurisdiction in these respects.
Municipal courts are to be found in all considerable cities and in many of the lesser municipalities, such as towns and boroughs. City Courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. They frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[Footnote: See Goodnow, “City Government in the United States,” Chap. IX.]
For the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many States special courts, known as Courts of Probate, Surrogate’s Courts, or Orphans’ Courts, and Courts of Insolvency. In others these functions belong to the County Courts.
The early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. It was a method wasteful of time and money. In Massachusetts it survived for their highest _nisi prius_ court until 1804. In many States it endured much longer for County Courts.
County Courts in some States are courts only in name, except, perhaps, for some very limited purposes. Their real functions are administrative. Some or all of those who hold them are often styled commissioners, and their principal duties are to manage the general business affairs of the county.[Footnote: See Constitution of West Virginia, Amendment of 1880; Constitution of Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903 indicates that those in that State are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the County Courts “on all legal questions that may arise.” In Virginia, County Courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. These magistrates nominated their own successors to the Governor, who almost never refused to commission the person so recommended. The court also nominated the officers of militia below the rank of General, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. However clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _”amci curiae”_ whenever any doubtful question of law chanced to arise.[Footnote: Tucker, “Life of Thomas Jefferson,” II, 378; Kennedy, “Memoirs of William Wirt,” I, 59.] Even in States where County Courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[Footnote: McMaster, “History of the People of the United States,” III, 154.]
The Constitutions of the States generally require the existence of a Supreme Court of last resort, and often specify also by name one or more of inferior jurisdiction. Such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. The power to establish implies a power to limit and to destroy. A tribunal created by a Constitution, with functions defined in the Constitution, is, as to these and as to its independence of existence and action, beyond legislative control.
The Republicans in Congress were within their rights when, in 1802, they repealed the act passed by the Federalists the year before to create a system of Circuit Courts. Those of Massachusetts were within theirs when, in 1811, they abolished the ancient Court of Common Pleas of that State and created a new “Circuit Court,” with fifteen judges, to take its place. Both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old Federalists. Why they did not has been frankly stated by one of them in his account of Governor Gerry’s administration:
With the Supreme Judicial Court the party did not interfere. In respect for the authority of the Constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. The result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[Footnote: Austin, “Life of Elbridge Gerry,” II, 339. See Chap. XXII.]
The weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. Of these there are generally several in each town, having jurisdiction over the whole county. Some may be lawyers. None need be, and few are. Any one of them can try cases. Which of them shall try any particular case is left to be determined by the lawyer who brings it.
Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[Footnote: See McVeigh _v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic Reporter, 701.] Such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. But in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. If the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. In most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. Some justices rarely give any other judgment. Many lawyers bring all their cases before one justice, and seldom fail of success.
In 1903, a justice of the peace in one of our largest cities resigned his office and made his reasons public. They were that no one could afford to hold it who was not willing to stoop to unworthy practices. Lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. They expected the justice of the peace whom they favored to favor them. One way was by making them a discount on his legal fees. There was a competition among the justices for business on these terms, and the lowest bidder generally got it. Blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys.
A system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. That relief, however, is expensive. Judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can.
The natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. Better men could thus be had and independence of action promoted. That this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. The system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it.
In a few States a sharp line of division is drawn between courts of law and courts of equity. This distinction was inherited from England, though it has been for most purposes abolished there by the Judicature Acts of 1873 and 1875. It originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. The King was accustomed to refer requests for such action on his part to his principal secretary and councillor. The next step was to address the request directly to this officer, who was styled the Chancellor. If a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the Chancellor could compel him to desist. If the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the Chancellor could bring him to account, although the common law would give no remedy. Soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the Chancellor, or a case in chancery. Relief was given because it was equitable to give it, and so it was called relief in equity. The jurisdiction expanded. Wherever there was a right, but no adequate remedy at law, the Court of Chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice.
The Chancellor had often been an ecclesiastic. He was apt to be more familiar with canon law and civil law than with the common law. The justice which he administered came from the Crown, not from the people. The people spoke through a jury, called in law language “the country.” The Chancellor spoke for himself. If he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it.
The result came to be that for several hundred years, embracing the whole colonial period, England had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. Those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. Equity also could prevent wrongs, while law could only punish them.[Footnote: See Chap. XX.] It was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. Many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court.
In the American colonies, and for many years in the States which succeeded them, these distinctions of procedure were generally observed.[Footnote: In Pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. See Myers _v._ South Bethlehem, 149 Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In some there were, in some there still are, separate courts of equity held by a Chancellor, aided, if necessary, by Vice-Chancellors. In others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law.
Such a system is intrinsically absurd. It has been maintained by whatever States yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. All our State Constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. That is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief.
In most of our States and Territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. This reform in procedure was largely due to the labors of David Dudley Field, and became general throughout the country during the last half of the nineteenth century. The result has been that separate courts of equity are now to be found only in a few States.
Congress has made use of the State courts in certain cases as part of the machinery of the federal government. While by the Constitution “the judicial power of the United States” can only be vested in the courts of the United States, the phrase as thus used refers only to the power of judging causes in courts of record. State courts and magistrates can therefore be given jurisdiction by Congress over any acts in aid of the functions of the United States, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. They have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the United States, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[Footnote: Robertson _v._ Baldwin, 165 U. S. Reports, 275.]
State courts also have jurisdiction over any civil action to enforce a right given by the laws of the United States, unless Congress has otherwise provided. They constitute together with the federal courts one general judicial system for the whole country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports, 130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59 Northeastern Reporter, 435.]
Almost all American courts are known as “courts of record.” A court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. For this purpose most courts are furnished with a recording officer, called the clerk. His record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. If there is any error in it, it can only be shown on a direct proceeding brought to correct it.
Justices of the peace, when authorized to try causes, act only in small matters and in a summary way. In most States they are not, when exercising this function, deemed to constitute a court of record. Nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[Footnote: Hutkoff _v._ Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.] unless there is a statute or local practice giving such notes or minutes the effect of a record.
A court of record has inherent power to preserve order in proceedings before it[Footnote: See Chap. XX.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. By statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. He also executes such processes as under the practice of the court may be directed to him. Witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments.
* * * * *
CHAPTER IX
THE ORGANIZATION OF THE COURTS OF THE UNITED STATES
The Constitution of the United States (Art. III) provides that there must always be one Supreme Court of the United States. The establishment of such inferior courts as may be deemed proper from time to time is left to Congress.
The judicial power of the United States is limited to cases of certain kinds or between certain kinds of parties. Either (1) the subject-matter of the action must be of a kind that concerns the whole nation, or (2) some party to it must be or claim under a political sovereign, or (3) it must be between a citizen of a State of the Union and one of another of the States or of a foreign country.
In a few of the second class the Supreme Court is given original jurisdiction: in all others of both classes it has appellate jurisdiction, with such exceptions as Congress may think fit to make, save only that no fact tried by a jury can be thus re-examined, except so far as the rules of the common law would have permitted. Its original jurisdiction is confined to cases affecting ambassadors, ministers, and consuls and those to which a State shall be a party. It is not necessarily exclusive as respects any of them,[Footnote: Ames _v._ Kansas, 111 U. S. Reports, 449, 469.] and by the eleventh amendment to the Constitution is so limited as not to include suits against a State by citizens of any other State or foreign government. In point of fact, few original suits have ever been brought before the court, and almost all of these have been instituted by or against States.
The Supreme Court is held at Washington. There is a Chief Justice with eight associate justices, and each is also assigned for circuit duty as a judge of the Circuit Court of the United States in one of nine judicial circuits into which the country is divided. Originally there were but six judges, and each was required to hold two circuits a year in each district in his circuit. They were assigned to the circuits in pairs, and both sat together with the District Judge. The consequence was that three-fourths of their time was spent in traveling from one court town to another. They complained of this to Congress through the President in 1792, and the next year it was provided that Circuit Courts might be held by one justice, alone or with the District Judge. In 1801, an ultimate reduction of the number to five was provided for. They were to devote their time entirely to the Supreme Court, while the Circuit Courts were to be held by a new set of eighteen Circuit Judges. In 1802, they had only ten cases pending before them, and the average for some years had not exceeded that number. For this and other reasons mentioned elsewhere the Act of 1801 was repealed by the next Congress. In 1807, another Justice of the Supreme Court was added and two more in 1837.
Each circuit has a judicial establishment of its own, and is composed of a certain number of judicial districts. Of these there are in the whole United States about eighty. The smaller States constitute one district. In the larger ones there are several.
Each district generally has its own judge, called the District Judge, and always its own court, called the District Court of that district. Each circuit has several Circuit Judges, whose main work is to sit in a court held in each circuit, styled the Circuit Court of Appeals. They can also hold a District Court.
Until 1911, the District Courts had a narrow jurisdiction, and there were Circuit Courts having a wider one. In 1911, the Circuit Court was abolished, and the District Court now is the general trial court of the United States in the first instance. Anyone can sue there to enforce a right arising under the laws of the United States when the amount in dispute is more than $3,000. Rights arising under certain of these laws can only be enforced there, and as to them the pecuniary limitation does not apply. Such are patent-rights and copyrights. Any suit involving an amount exceeding $3,000 may be brought there when the controversy is between citizens of different States or citizens of a State and citizens of a foreign country. So may a suit by citizens of the same State claiming land under grants from different States, without respect to the value of the subject of controversy. Suits of any of these kinds which are brought in a State court may, at the option of the defendant, be transferred for trial into the District Court. On filing proper papers the case is transferred automatically. The District Court has jurisdiction also over bankruptcy and admiralty matters, a few other kinds of civil cases of minor importance, and of all offenses against the United States.[Footnote: The Judicial Code of the United States, Chapter II.]
The pecuniary limit of jurisdiction was for a hundred years fixed at $500. The increase to $3,000 was due partly to the fact that the Supreme Court was overburdened by appeals from the trial courts, many of which involved small amounts, and more to a desire to keep judicial power over ordinary controversies between man and man, as far as practicable, in the hands of the State courts.
Early in the nineteenth century a practice began of bringing suits in the Circuit Court of the United States, which purported to be between citizens of different States, but in which the plaintiff had either changed his residence for the purpose of giving the court jurisdiction or was really suing for the benefit of a citizen of the same State with the defendant. This was due to the high opinion entertained of the federal judiciary[Footnote: Niles’ Register, XXIX, 14.] and the desire to bring the cause before a federal, rather than a State tribunal. Such a mode of proceeding, while within the letter of the governing statute, was contrary to its spirit, and little better than a fraud. It was also an evident perversion of the intent of the Constitution, and became at last so far-spreading that both Congress and the courts used their best endeavors to put an end to it, and with success.[Footnote: U. S. Statutes at Large, XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]
Another cause is also effective in lessening the docket of the District Courts. The ordinary lawyer prefers to sue in a State court, when he has the choice, on account of his greater familiarity with the practice there. Many American lawyers have never brought an action in a federal court. Most cases which could be so brought can also be and are brought in a State court.
Congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. There are those who claim that the reference in Art. III, Sec. 2, of the Constitution of the United States to “cases in law and equity” requires its preservation; but this seems a strained construction of the phrase. Separate dockets are kept in the District Court of legal and of equitable actions. They are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. As to equity cases, the rules of the old English chancery practice are substantially followed. In cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the State within which the federal court may be held is to be followed, as nearly as may be.[Footnote: U. S. Revised Statutes, Sec. 914.] In fact, there is a departure from it in many points in most States,[Footnote: See Nudd _v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. If an action framed in this method be removed from a State court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another.
The Supreme Court, under power derived from acts of Congress, has framed rules of procedure for the inferior trial courts of the United States in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. The Equity Rules promulgated by the Supreme Court were revised in 1912, and took effect as changed in 1913.[Footnote: They are printed in Volume 226 of the United States Reports.] They greatly simplify the former procedure. Suits are now tried generally on oral testimony taken stenographically in open court. Formerly the evidence was usually given before officials known as examiners or masters in chancery. The former reported the testimony at length to the trial court. The latter reported their conclusions from it.
The new rules have abolished demurrers in equity causes in favor of what is substantially the present English practice.[Footnote: See _infra,_ page 203.]
In common law causes in the District Court, the State remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[Footnote: U. S. Rev. Stat., Sec.Sec. 915, 916, 967, 988.]
The field of national legislation being narrow, the offenses against the nation are correspondingly few. Any acts done on lands ceded by a State, which would have been crimes under its law in 1873, may be punished as such in the federal courts in the same manner which that law provided.[Footnote: _Ibid_., Sec. 5391.]
In the Circuit Courts, before 1866 it was customary to defer the trial of important causes until the Justice of the Supreme Court assigned to the circuit could be present. If he differed on any material point from the District Judge, this point could be certified up to the full Supreme Court for argument and decision there. During this period the published reports of the decisions of the Circuit Court contain many opinions of the highest value. Several of the best which Story and Bushrod Washington wrote are to be found among them.
The Act of 1866, by which a resident Circuit Judge was appointed for each circuit, provided notwithstanding that each member of the Supreme Court should attend at least one term of the Circuit Court in each district as often as once in two years. The press of business at Washington, however, soon became such as to make it practically impossible for the Supreme Court Justices to do any substantial circuit work. When some case of national importance was to be heard in any district, the Justice in whose circuit it was included would make a special effort to go down. In this way Chief Justice Chase heard and sustained the plea with which Jefferson Davis met the indictment against him for treason. But ordinarily the Circuit Judge took the place of the Supreme Court Justice, and the latter, if he appeared at all during the term, remained hardly for a day.
The Supreme Court, therefore, during over a hundred years remained the only court of the United States existing mainly for appellate purposes. The work which it had before it at the last term during which it occupied this position (October Term, 1890) will show how much it was then overburdened.
Its docket contained 1,177 appeals brought forward by continuance because they could not be disposed of at the preceding term, 623 new cases of the same kind, and 16 cases of original jurisdiction, making a total of 1,816 actions. Of these, although the term lasted nearly eight months, it was only able to dispose of 617, thus leaving 1,199 for continuance to the following term.[Footnote: 140 U. S. Reports, Appendix.] It will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years.
Appeals now lie in most civil cases from the final judgments of the District and Circuit Courts, and from convictions for infamous crimes, not capital, to the Circuit Court of Appeals. They also extend to judgments granting a temporary injunction. There is a court of this name for each of the nine circuits, which was established in 1891 for the further relief of the Supreme Court and the speedier termination of litigation. This measure originated in the American Bar Association, by which it was pressed upon the attention of Congress. It had become an absolute necessity to devise some plan of expediting the disposition of appeals from the trial courts of the United States. There was more than enough of such business by the close of the Civil War (the events attending which brought up for decision many novel questions of the highest importance) to require the entire attention of the Supreme Court. It soon took three years after an appeal was docketed before it could be reached for argument. This was intolerable, and it was obviously necessary either to restrict the liberty of appeal; to constitute divisions of the court, one to hear appeals of a certain class and another those of another class; or to set up an intermediate court. The last method was preferred. The practice in the Circuit Court of Appeals is governed by rules of its own making, but in general conforms to that of the Supreme Court of the United States in appealed cases.
The commission appointed some years since to prepare a revision of the laws of the United States have reported in favor of abolishing all jurisdiction of the Circuit Court over original cases and turning it into an appellate court.[Footnote: Senate Doc. 68, 57th Congress, 1st Session.] Should this recommendation be adopted, the District Court would acquire the jurisdiction now vested in the Circuit Court, the District Judges would sit in the District Court only, and the Circuit Court Judges in the Circuit Court only, while the Circuit Court of Appeals would come to an end.
The American Bar Association voted in 1903 that it was desirable to establish a new appellate court to sit at Washington and take cognizance of patent and copyright cases. Such a measure would tend to relieve the Supreme Court of the United States of any undue pressure of business, and promote both uniformity and promptitude of decision in a class of actions in which promptitude and uniformity are of special importance. As things stand now, a patent may be pronounced invalid in one circuit and upheld in another by courts of equal authority; and while in such event the Supreme Court would probably, on a special application, call both these judgments up before it for review, this remedy cannot be claimed as a matter of absolute right, and is at best a slow one.
The Circuit Court of Appeals is held by three judges, two constituting a quorum. Those generally sitting are the Circuit Judges belonging to the circuit. The Justice of the Supreme Court assigned to the circuit may also sit, and any of the District Judges in the circuit can be called in.
Except in a very limited class of cases, the decision of this court is final, unless the Supreme Court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to Washington for that purpose. The Circuit Court of Appeals can also of its own motion certify up any questions in a cause to the Supreme Court for its instructions before making a final disposition of it.
The Supreme Court has direct appellate jurisdiction over the District and Circuit Courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the United States under the statutes regulating inter-State commerce, and in all cases involving the construction or application of the Constitution of the United States, or of a treaty. Appeals also lie to it from judgments of conviction in the Circuit Court for capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32 _ib_. 823.]
The consequence of the Circuit Courts, which had been impaired by the practical withdrawal of the justices of the Supreme Court, was further lessened by the creation of the Circuit Court of Appeals. Before that their judgments in most cases were final. In criminal causes there was no appeal, and in ordinary civil causes none after 1875, unless the matter in controversy exceeded $5,000 in value. This left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[Footnote: See an attack on a similar state of things existing in Louisiana at one time in the District Court, by Edward Livingston in 1826. Hunt, “Life of Edward Livingston,” 302, 303.] No sovereign can be sued in his own courts without his consent. The United States consent to be sued on most claims against them of a contractual nature, which they may dispute. For this purpose a Court of Claims has been established at Washington, consisting of a Chief Justice and four associates. Originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[Footnote: United States _v._ Klein, 13 Wallace’s Reports, 128, 144; 24 U. S. Statutes at Large, 505.] except in one particular. It is a general principle that a court will make no decree that it cannot enforce. The Court of Claims cannot issue an execution to enforce its judgments. Money can be drawn from the treasury of the United States only to meet appropriations made by Congress. An appropriation is made by each Congress of a gross sum to satisfy any judgments that have been or may be rendered by the Court of Claims; but should this provision be omitted in any appropriation bill the judgments of the Court of Claims could not be collected.
Concurrent jurisdiction in these respects is given to the District Court of claims not exceeding $1,000 in amount, and to the Circuit Court of those exceeding $1,000 and not exceeding $10,000.
Aliens can sue in the Court of Claims when their own country accords a similar privilege in its courts to citizens of the United States.[Footnote: U. S. Revised Statutes, Sec. 1068.]
This court has also a peculiar kind of advisory jurisdiction. Congress, or any committee of either house, can refer to it any questions of fact which may have come before them. The judges must then ascertain the facts and report them back. The head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. This does not take the form of a judgment, for there is no case and no parties are before it. It is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[Footnote: 22 U. S. Statutes at Large, 485; 24 _id._, 507.]
A temporary court is also in existence called the Court of Private Land Claims. This is composed of a Chief Justice and four associate justices, and has jurisdiction to hear and determine claims of title to land as against the United States, founded on Spanish or Mexican grants in New Mexico, Arizona, Utah, Nevada, Colorado or Wyoming. An appeal from the final judgment is given to the Supreme Court of the United States.[Footnote: 26 U. S. Statutes at Large, 854.]
The District of Columbia has a special judicial establishment. There is a court of general jurisdiction known as the Supreme Court of the District of, Columbia, and appeals from its judgments lie to the Court of Appeals of the District of Columbia. This is composed of a Chief Justice and two associate justices, and its judgments are reviewable by the Supreme Court of the United States, if $5,000 is involved, or the validity of an authority exercised under the United States or a treaty or Act of Congress is in question. An appeal also lies to it from decisions of the Commissioner of Patents as to claims of a right to a patent.[Footnote: 27 U. S. Statutes at Large, 434.]
When new territory comes by conquest or cession permanently under the jurisdiction of the United States, it belongs to the President, in the exercise of his executive power, to see to its proper government until Congress makes other provision. He can institute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions.
Each fully organized Territory has a set of local courts and one Supreme Court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the Supreme Court of the United States. These territorial courts do not exercise what is known in the strict sense and designated in the Constitution as “the judicial power of the United States.” They are created to meet temporary conditions, and with judges whose commissions run only for a few years. Such courts are instruments through which Congress exercises its power of regulating the territory of the United States. They act judicially. They have judicial power. But the source of this power is not the clause in the Constitution under which the judicial power of the United States is defined.[Footnote: American Insurance Co. _v._ Canter, 1 Peters’ Reports, 511.] It is therefore not necessary to confine such courts strictly to the consideration of judicial business. In the organization of our earliest Territories the judges were given legislative functions, and while this was originally due to the terms of the Ordinance of 1787, it was confirmed by various Acts of Congress after the adoption of the Constitution of the United States.
The Philippines are governed under an Act of Congress by a commission acting under the supervision of the Secretary of War.
The organization of courts established by Spain has been in substance preserved. The Spanish law which was in force there was expressed in codes mainly founded on those framed for France under Napoleon I. In 1901, the Spanish code of civil procedure was supplanted by one prepared by a member of the Philippine Commission, and which is now familiarly known by his name as the Ide Code. In substance, it establishes the mode of proceeding in civil cases which is known in the United States as code pleading. Trial by jury has not been introduced into the Philippines either in civil or criminal causes, and need not be.[Footnote: Dorr _v._ United States, 195 U. S. Reports, 138.]
In criminal causes, the Spanish system was originally retained, allowing either party, the United States or the defendant, to appeal from the judgment of the court of first instance to the Supreme Court of the islands and have there a new hearing both as to fact and law. This, however, so far as concerns an appeal by the government, was held to be contrary to the Act of Congress under which it was constituted.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.]
The courts of the United States are generally provided with an officer styled a marshal. He executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects State courts.
Each District Court appoints a convenient number of District Court Commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the States.
* * * * *
CHAPTER X
RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES AND OF THE UNITED STATES JUDICIARY TO THE STATES
Every judicial officer of a State is required by the Constitution of the United States to bind himself by oath or affirmation to support it, and this obligation compels him to respect every Act of Congress made in pursuance of the Constitution, and every treaty made under the authority of the United States, as, in case of conflict, superior to anything in his State Constitution or laws.
The courts of the national government are complementary to those of the States. Both belong to one judicial system. Rights arising under the laws of the United States may be enforced by a State court as well as by a federal court, and rights arising under a State law by a federal as well as by the State court, unless in cases where there is some special restriction upon its jurisdiction. Such a restriction may be imposed by either government, as respects any right which it creates.
The judicial power of the United States extends only to certain classes of cases. As to some of these it is necessarily exclusive: as to any of the rest Congress can make it such.[Footnote: The Moses Taylor, 4 Wallace’s Reports, 411, 429.] On the other hand Congress may assume to invest a State court with power to dispose of a certain matter of federal right, and the State may decline to permit the exercise of such a power. The United States cannot in that manner compel the courts of another government to do their bidding. It would tend to throw on the States a greater burden than they might deem necessary or proper. They provide courts to meet the wants of those looking to their own sovereignties for justice. Thus, although nothing could seem more anomalous than for one sovereignty to confer citizenship in another, the laws of the United States allow naturalization to be obtained by proceedings in State courts. Most aliens who become citizens of the United States do so in that way, because the State courts are more easy of access. But a State can at any time restrict or forbid the use of its courts for such a purpose.[Footnote: Stephens, petitioner, 4 Gray’s (Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law Reports, 97; 32 Atlantic Reporter, 743.]
The federal courts can lend their aid to carry into effect a right arising wholly from the statute of a State, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. Admiralty suits, it is true, can only be brought in the courts of the United States, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[Footnote: The Lottawanna, 21 Wallace’s Reports, 558, 580.]
There are many civil cases which can be brought, at the option of the plaintiff, either in a court of the United States or in a State court. Some of these, if brought in a State court, the defendant can, at his option, allow to remain there or remove for trial into the Circuit Court of the United States. Criminal prosecutions by a State may also be removed, under certain conditions, to the Circuit Court of the United States, when the defense is one arising under the laws of the United States.
In any cause tried in a State court, if the decision turns on a claim of right, set up under the Constitution, laws or treaties of the United States, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the State, can ask such relief from the Supreme Court of the United States.
It will be observed that it is the losing party only who has this remedy. If the State court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. If all State courts in which the validity of an unconstitutional Act of Congress was contested should uphold it, the courts of the United States would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial.
The obvious object of the limitation is to preserve so far as is possible the sovereignty of the States. The courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. For the same reasons, resort can be had to the Supreme Court of the United States only after every right of review given by the laws of the State has been exhausted. Usually this requires one who loses his cause in a trial court to take it up to the State court of last resort. Where, however, this is not permitted by the State law, he may ask for a writ of error from the Supreme Court of the United States to whatever court was the highest to which he was able to remove it; and if, by the State law, he was unable to appeal at all, then the writ will go to the trial court. One of the greatest of Chief Justice Marshall’s great opinions was rendered on a writ of error to the quarterly session court for the borough of Norfolk in Virginia, held by the mayor, recorder, and aldermen of the borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton’s Reports, 264.]
It was the opinion of Hamilton that an appeal might be given from the State courts to the inferior federal courts, in case of a decision turning on a right claimed under the Constitution or laws of the United States.[Footnote: _Federalist_, No. LXXXII.] This is probably true, but Congress has wisely forborne to make any such provision. It imposes a strain sufficiently great on the sovereignty of a State to subject the judgments of its court of last resort to reversal by the Supreme Court of the nation.
The power to declare a statute void because inconsistent with constitutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[Footnote: See Chap. VII.] It therefore belongs, as respects a State statute which may be attacked as inconsistent with the Constitution of the United States, to the trial courts of the United States as well as to the Supreme Court. This makes it possible for a District or Circuit Court of the United States to adjudge the statute of a State in which it sits to be unconstitutional and void, although it may have been declared valid by a judgment of the highest court of the State, from which no appeal to the Supreme Court of the United States was ever taken.
However derogatory to the sovereignty of the States the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. In some way it was indispensable to provide for maintaining the full powers of the United States against encroachments by State legislation, and also for enforcing all the special limitations on the powers of State legislation which the Constitution of the United States lays down. This could have been done effectually in but two ways: either by giving to Congress or to the President a veto upon State laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. The latter method was clearly open to the least objection.[Footnote: See Hamilton’s discussion on this point in the _Federalist_, No. LXXX.]
Jefferson maintained that there was a third, and one which the Constitution expressly provided. This was the calling of a convention of all the States for proposing amendments to it. If, he said, a State on the one hand by her highest authorities asserts a certain line of action to be within her powers, and the United States by their highest authorities deny it, “the ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs.”[Footnote: Letter to Mr. Justice Johnson, Tucker, “Life of Thomas Jefferson,” II, 455.] There seems a plain fallacy in this proposition. The question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the Constitution was framed. To amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done.
But one serious proposition has ever been made to call a national constitutional convention for any such purpose. That was by Kentucky in January, 1861, when civil war was threatened; and it was not pressed. The very delays which would be inevitable in assembling such a body were then a reason for the call, for they would give time for the “sober second thought.” The plan, however, seemed and probably was impracticable. The movement toward secession had gone too far.[Footnote: Debates and Proceedings of the National Peace Convention, 45, 61, 67.]
There were many, at the time when the Constitution of the United States was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. New York in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the United States could ever be enlarged “by any fiction.” In the Maryland Convention, this sentiment took shape in a proposed amendment to the Constitution adopted by a committee appointed for the purpose, but never reported, “that the Federal courts shall not be entitled to jurisdiction by fictions or collusion.”[Footnote: Elliot’s Debates, 550; Proceedings Massachusetts Historical Society, XVII, 504-7.] Had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the Circuit Courts. In 1787, there were only twenty-seven business corporations in the United States.[Footnote: Report of the American Historical Association for 1902, 267; _American Historical Review_, VIII, 449.] It was not long before they became countless and the large affairs of the country were in their hands. Could they sue and be sued in the courts of the United States? The decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be. They were, indeed, not citizens of any State;[Footnote: Paul _v._ Virginia, 8 Wallace Reports, 168.] but the persons who composed them probably were. Therefore, it must be assumed that they certainly were, and also that they were all citizens of the same State and that the State from which incorporation was obtained.[Footnote: Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, 2 Howard’s Reports, 497, 555; Ohio and Mississippi R. R. Co. _v._ Wheeler, I Black’s Reports, 286.]
Sir Henry Maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[Footnote: Ancient Law, 26.] But while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously illustrates.
Although the United States are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a State which the United States have but imperfect means of preventing or rectifying.
In 1841, we were brought to the verge of war with Great Britain by an incident of this nature.
An insurrection broke out in Canada in 1837, and a New York steamboat was chartered to bring supplies across the Niagara River to those engaged in it. One night when she was moored on the New York side of the river a party of loyal Canadians seized and burned her. During the accompanying affray an American was killed. A Canadian named McLeod, who was charged with having fired the fatal shot, was afterwards arrested in New York and indicted for murder. The British government then informed ours that it had ordered the burning of the steamer, and thereupon demanded McLeod’s release. Our Secretary of State replied that the prosecution was in the hands of the State of New York, and the United States had no control over it. Lord Palmerston made the affair the subject of a dispatch, in which he stated that McLeod’s execution would produce “a war of retaliation and vengeance.” The President at once requested the Governor of New York to order a discontinuance of the prosecution. This was declined, but with a promise to grant a pardon in case of conviction.[Footnote: Lothrop, “Life of William H. Seward,” 35.] The State courts refused to discharge the prisoner. He was tried on the original charge, but acquitted.
Congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by passing an Act giving the Circuit and District Courts of the United States jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by State authority, who might claim a right of release under the principles of international law.[Footnote: U. S. Revised Statutes, Sec. 762.]
The Circuit Court has since 1875 been given power to entertain original jurisdiction of any causes arising under the Constitution, laws or treaties of the United States, regardless of the citizenship of the parties, if a value of $2,000 is involved. In all cases, also, of imprisonment by State authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the Constitution, laws or treaties of the United States, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the United States. Ordinarily, however, as a matter of comity, he will be left to seek his remedy in the State courts, and if without success there, on a writ of error from the Supreme Court of the United States.[Footnote: _In re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117 U. S. Reports, 241.]
The State courts have no power to release on _habeas corpus_ one who is held under the authority of the United States. If that authority has been illegally exerted, his remedy is in the federal courts alone.[Footnote: Ableman _v._ Booth, 21 Howard’s Reports, 506.]
The cases in which a State can be sued in an original suit in the Supreme Court of the United States are defined in the Constitution and, as limited by the eleventh amendment to it, are quite few.
Several such actions have been brought. In the earlier ones, the State declined to recognize the jurisdiction of the court and did not enter an appearance. The court thereupon decided to proceed _ex parte_ on hearing the plaintiff;[Footnote: See New Jersey _v._ New York, 5 Peters’ Reports, 283; U. B. Phillips, “Georgia and State Rights;” Report of American Historical Association for 1901, II, 83.] and in the later cases the States have appeared and made defense.
The court, in one of these suits, was asked to issue an injunction in favor of the Cherokee Indians against the State of Georgia to prevent her and her Governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. The case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign State. Marshall thought it savored “too much of the exercise of political power to be within the proper province of the judicial department.” Mr. Justice Johnson said that it was an attempt to compel the President of the United States, and by indirection, to do what he had declined to do on the plaintiff’s application to him; namely, “to declare war against a State or to use the public force to repel the force and resist the laws of a State.”[Footnote: Cherokee Nation _v._ Georgia, 5 Peters’ Reports, 1, 19, 29.]
It would be no easy thing to enforce a judgment against a State should it resist. Hence the Supreme Court has been justly reluctant ever to make any order which would take money out of a State treasury, unless in cases where the Treasurer was individually sued, and the money in dispute was not mingled with other public funds. In 1794, four years before the adoption of the eleventh amendment, a judgment against the State of Georgia, authorizing an assessment of general money damages against her, had been entered in the Supreme Court in favor of one Chisholm, to whom she owed a debt. Georgia had refused to enter an appearance in the suit, and in anticipation of this result her House of Representatives had resolved, in 1793, that if any Federal marshal should attempt to levy an execution on such a judgment against the State, it should be a felony, and on conviction he should be hanged. The Senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a State largely indebted for what her people thought it belonged to the United States to pay. The eleventh amendment was proposed by Congress during the term of court at which judgment was entered, but not adopted until 1798. Meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. The plaintiff therefore won a barren victory.[Footnote: U. B. Phillips, “Georgia and State Rights,” Report of American Historical Association for 1901, II, 25.]
The appellate jurisdiction of the Supreme Court of the United States over States is large, for the State is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the United States which is overruled.
Here again, in case of resistance, it would be difficult to enforce a judgment of reversal.
Shortly before the action of the Cherokee Nation for an injunction, the Georgia courts had sentenced Corn Tassel, one of the tribe, to death for murdering another of them. Tassel had claimed that by the laws of the United States and their treaty with his nation he could only be prosecuted before one of his tribal courts. He obtained a writ of error from the Supreme Court to review his case on this ground. It was served, but before it could be heard the day set for his execution had arrived. By the laws of the United States the allowance of the writ of error superseded the sentence until the appeal should be decided. The Governor laid the matter before the legislature, saying that he did not propose to regard any orders from the Supreme Court interfering with those of Georgia courts, and should resist any attempt to enforce them with all the forces at his command. The legislature approved his position,[Footnote: U. B. Phillips, “Georgia and State Rights,” Report of American Historical Association for 1901, II, 77.] and Tassel was hanged on the day originally set.[Footnote: “Memoirs of William Wirt,” II, 291.] There had been no time to resort again to the Supreme Court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies.
Two years later, Rev. Mr. Worcester, a missionary who had gone to teach the Christian religion to the Cherokees, was convicted in the Superior Court of Gwinnet County on an indictment for residing among them without a license from the State, and sent to the State prison. He appealed to the Supreme Court of the United States, which decided that Georgia had no jurisdiction over the Cherokee reservation, and could not require such licenses. The judgment against him was therefore reversed, and an order made “that all proceedings on the said indictment do forever surcease; and that the said Samuel A. Worcester be and hereby is henceforth dismissed therefrom, and that he go thereof quit without day, and that a special mandate do go from this court to the said Superior Court to carry the judgment into execution.”[Footnote: Worcester _v._ Georgia, 6 Peters’ Reports, 515, 596.] The Superior Court of Gwinnet County paid no respect to this mandate; the Governor of Georgia characterized it as an attempt at usurpation which he should meet in a spirit of determined resistance; and Worcester remained in prison until, on expressing his willingness to abandon any further efforts for his discharge by authority of the judgment on his writ of error, the Governor gave him a pardon on condition of his leaving the State.
A year later, James Grady, who lay under a sentence of death under proceedings similar to those in Tassel’s case, like him obtained a writ of error from the Supreme Court of the United States and had it served on the Georgia court, only to find it disregarded. His execution, in spite of the _”supersedeas”_ which goes by law with every such suit, was the last of this series of judicial outrages.[Footnote: “Georgia and State Rights,” 83.]
It was unfortunate for the sufferers in these proceedings that they took place at a time when the cry of “State Rights” was particularly loud and general in the South. South Carolina had been quieted with difficulty by Jackson’s action in regard to her nullification ordinance, and he did not wish to go farther than he thought it necessary in insisting on the supremacy of the United States.
Since the Civil War, such defiance by a State of the authority of the Supreme Court of the United States has been unknown and would be almost inconceivable. The absolute right of the Supreme Court of the United States to pronounce finally, so far as the States are concerned, upon every question brought before it as to the meaning and effect of the national Constitution, has come to be universally acknowledged.
The courts of a State have the same right, except that it is not final. This the original Judiciary Act of 1789 (Sec. 25) fully recognized. Something like it may belong to a Convention of the whole people of a State, called to act upon its fundamental concerns; for that would represent the sovereignty of the State as a whole in the fullest manner. It was from such a convention that the nullifying ordinance of 1832 proceeded, but the vice of its action was, not so much that it pronounced the protective tariff Acts unconstitutional and void, but that it assumed to deny any right of appeal in litigation growing out of these Acts and the Ordinance of Nullification, from the courts of South Carolina to the courts of the United States. This liberty of appeal in the regular course of judicial procedure is the one thing which keeps the United States in existence.
The law governing the ordinary transactions of life is that of the State where they may have their seat. This was affirmed in the original Judiciary Act,[Footnote: U. S. Revised Statutes, Sec. 721. As “equity follows the law,” State legislation creating new equitable rights or varying those formerly established also affects causes in equity in the Federal courts. Brine _v._ Insurance Co., 96 U. S. Reports, 627; but see James _v._ Gray, 131 Federal Reporter, 401.] as a general rule for the courts of the United States in trials at common law. By another Act of Congress,[Footnote: _Ibid_., Sec. 914.] the practice, pleadings, and form and mode of proceeding in civil causes, other than those of equity and admiralty jurisdiction, in the Circuit and District Courts are to conform as nearly as may be to that followed in the State within which these courts may be held.
The State laws which are thus made a rule for the United States courts are the law of the State as it is understood and applied in its own courts. Hence the construction of a State statute, or the doctrines of the common law in a particular State, if definitely settled by the courts of that State, must be followed in subsequent litigation in the federal courts. Where, however, a State court has taken a certain position as to what the law is, and afterwards changes its position, the federal courts are not compelled to change with it, if this would do injustice to one who has meanwhile acted on the faith of the original ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports, 20, and see argument of Daniel Webster in Groves _v._ Slaughter, 15 Peters’ Reports, 449, 489.]
Nor are the federal courts, in large questions of a commercial nature, bound always to accept the opinion of a State court as to what the common law of the State may be. The manner in which this doctrine has been evolved is an interesting example of the manner in which law develops by litigation, and new points are struck out in a single case as the joint product of lawyer and judge.[Footnote: See Chaps, XVII, XVIII.]
A bill of exchange drawn in Maine on one Tyson, a merchant in New York, and bearing his acceptance, was indorsed over to one Swift, who took it in good faith before it fell due, in payment of a pre-existing debt. He sued Tyson upon it in the Circuit Court of the United States in Maine. If his rights were as good as if he had paid value for it at the time he received it, he was entitled to recover. If not, his action failed; for the acceptance had been obtained by fraud. It was made in New York. The judicial decisions of that State, contrary to the prevailing opinion as to what was the general common law rule, seemed to favor the view that a pre-existing debt did not stand on as good a footing as a present payment, in support of a claim upon negotiable paper. Samuel Fessenden of Portland, a lawyer of great ability, was his counsel. The cause was submitted on briefs, without oral argument. Mr. Fessenden, admitting that the law of the place where acceptance was made must govern the obligations of Tyson, insisted that the New York decisions were wrong in principle and ought not to be regarded.
“If,” said his brief, “there is any question of law, not local, but widely general in its nature and effects, it is the present question. It is one in which foreigners, the citizens of different States in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. By all without the United States this Court is looked to as the judiciary of the whole nation, known as the United States, whose commerce and transactions are as widely diffused as is the use of bills of exchange…. How can this Court preserve its control over the reason and affections of the people of the United States; that control in which its usefulness consists, and which its own untrammeled learning and judgment would enable it naturally to maintain; if its records show that it has decided-as it may be compelled to decide if the construction referred to, advocated on the part of the defendant, is established-the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?”
Mr. Dana, for Tyson, maintained the opposite view with equal ability. “In coming together,” he said, “from the respective States, the framers of the Constitution, and our representatives in Congress after them, must be regarded as having had in view the language, laws, and institutions of the States which they represented.”
Mr. Justice Story gave the opinion of the court. Referring to the provision in the Judiciary Act (now U. S. Revised Statutes, Sec. 721) above mentioned, on the construction of which the case must turn, “It never,” he remarked, “has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case…. The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. _Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit.”_[Footnote: Swift _v._ Tyson, 16 Peters’ Reports, 1, 8, 9, 10, 11, 13, 18.]
This opinion had been submitted to the court for the first time during the evening before it was delivered.[Footnote: _Ibid_., 23.] It could not have received any very close scrutiny. It relied on no authority except that of Cicero, for Lord Mansfield, in the case of Luke _v._ Lyde, was speaking of the law of the sea, which in the nature of things no one nation can prescribe or change. It was not easy to reconcile it with precedents cited by Mr. Dana, in one of which Mr. Justice Chase of the same court had held on the circuit as early as 1798 that the United States had no common law of their own, and that the “common law, therefore, of one State is not the common law of another; but the common law of England is the law of each State, so far as each State has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal, or State, Court.”[Footnote: United States _v._ Worrall, 2 Dallas’ Reports, 384, 394.] So the Supreme Court itself had said, in 1834, in a famous judgment, concurred in by Mr. Justice Story himself, that “it is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common law right is asserted, we must look to the State in which the controversy originated.”[Footnote: Wheaton _v._ Peters, 8 Peters’ Reports, 658.]
The State courts have looked upon the doctrine announced in Swift _v._ Tyson with an unfriendly eye. In some, its authority is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18 Atlantic Reporter, 503.] In none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. It has, however, been repeatedly reaffirmed by the Supreme Court of the United States, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single State.[Footnote: Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 92. See Article on the Common Law of the Federal Courts, by Edward C. Eliot, _American Law Review_, XXXVI, 498.]
The right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. If he sues in a State court, the common law of the State, as the judicial authorities of that State declare it to be, will be applied; if he sues in a court of the United States, the common law of the State as the judicial authorities of the United States declare it to be. Each tribunal will profess to decide by the same rule–the law of the State; but the federal court will really apply the common law of England, as it is generally understood to be, instead of the common law of that State as it is locally understood to be.
The relations between the federal and State courts which have been described obviously present many occasions for conflicts of authority. That such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. The federal courts are also prohibited by Act of Congress from issuing any injunction to stay proceedings in a State court, except in certain cases arising under the bankruptcy laws. Independent of any statute, however, the general principles of jurisprudence forbid any direct attempt either by a court of the State to control the action of a court of the United States or by a court of the United States to control the action of a State court, except to the limited extent for which provision is made in the national Constitution.[Footnote: Diggs _v._ Wolcott, 4 Cranch’s Reports, 179; M’Kim _v._ Voorhies, 7 Cranch’s Reports, 279.] Each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only.
The equitable jurisdiction of the courts of the United States enables them to interfere in disputes arising out of State elections in certain cases in which the claim is set up that rights held under the Constitution or laws of the United States have been violated. Actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[Footnote: See the proceedings in the case of Kellogg _v._ Warmoth in the United States Circuit Court in Louisiana in 1872. McPherson’s “History of Reconstruction,” 100-108.]
The centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the Civil War have greatly weakened the position and influence of the State courts. They have thus rendered the State bench less attractive. In 1791, John Rutledge, an associate justice of the Supreme Court of the United States, resigned that office for the Chief Justiceship of South Carolina. During the last half century, several Chief Justices of States have resigned to become Associate Justices of the Supreme Court of the United States. Associate Justices of Supreme Courts in the smaller States have also frequently resigned to accept the position of District Judge, attracted by the life tenure, larger salary, and retiring pension.
* * * * *
CHAPTER XI
RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES
Every State has all the rights of an independent sovereign, except so far as its sovereignty is limited by the Constitution of the United States. As respects each other the States are for most purposes in the position of foreign governments. The courts of one are regarded by those of any other as foreign courts, except so far as the Constitution may have prescribed a different rule.
No legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. The law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. Courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause.
In rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. Such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. The commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen’s wages. Wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. In such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. The presence of the ship within the power of the court is enough.
While State courts have no admiralty jurisdiction, they can adjudicate upon a claim of title or right of possession to fixed property within the territorial limits of their State, although the parties adversely interested are not and have not been personally served with process there or anywhere. Here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. But in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the State in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding.
In most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal. This is styled making the foreign judgment executory. The English common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. In like manner, whoever has recovered a judgment against an inhabitant of any State, in a court held outside of that State, can enforce it against him in his own State only by bringing a new action. This either is, or is in the nature of, the common law action of “debt on judgment”; and only two defenses are available. These are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[Footnote: Pennoyer _v._ Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. The remedy for that must be sought in the State where the judgment was pronounced. Even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another State.[Footnote: Christmas _v._ Russell, 5 Wallace’s Reports, 290.] These rules are established by Art. IV, Sec. I of the Constitution of the United States and by Acts of Congress passed to enforce it.[Footnote: U. S. Revised Statutes, Sec. 905.]
Commercial intercourse between the different States is so great and so constant that questions in the courts of one often arise which turn on the law of another. Those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. If it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. If it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result.
The law of each State is largely an unwritten common law. Even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. But this common law is not precisely the same in any two States. In minor points certainly, and perhaps in capital ones, there will be a divergence. In England there is one uniform common law. Here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform.
If, then, the court of one State in determining the legal effect of a transaction having its seat in another must be governed by the common law of that State, where is it to be found? If there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive.
This is not by virtue of the provision in the Constitution of the United States that full faith and credit is to be given in each State to the public records and proceedings of the others. That refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. Such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application. But they are not universally so considered. The rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. But in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. The rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. In this point of view, some courts hold that it is permissible to disregard decisions of other States which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. This is substantially the same position taken by the Supreme Court of the United States, and elsewhere described,[Footnote: See Chap. X.] concerning the right of a federal court to refuse to be bound by State decisions as to the unwritten law affecting foreign trade or trade between the States.[Footnote: Faulkner _v._ Hart, 82 N. Y. Reports, 413, 423.]
Another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a State basing its jurisprudence on the English common law, that the unwritten law of any other American State is the same as its own. As the reason of this rule fails in the case of Louisiana, Florida and Texas, which were subject to organized governments not derived from Great Britain at the time when they were incorporated into the United States, it is not applied to them.[Footnote: Norris _v._ Harris, 15 California Reports, 253.]
Decisions of a court constitute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. In the tribunals of one State decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. They may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an English or German court might be, for what they appear to be worth. No formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose.
The reported decisions of courts of other States, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. For this use they are introduced simply for the intrinsic value of the reasoning and conclusions.
If it is claimed that they prove the law of the State from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports, 1.] In many States this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other States; that is, in effect, to take any means which they think proper to learn what they are. It is also the general practice of the bar where no such statutes exist to allow the reports of other States to be read for any purpose without objection.
Most States have statutes to facilitate the proof in court of the statute laws of other States. The mode prescribed by Act of Congress (Revised Statutes, Sec. 905) under the constitutional provision, to which reference has been made, involves considerable expense for the proper certification of copies. Common provisions of State legislation are that all courts may take judicial notice of the laws of other States (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are.
There is a certain spirit of comity to which courts often give expression in rendering assistance to courts of other countries. This judicial comity has been defined as “the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings.”[Footnote: “Dict. of Philosophy and Psychology,” _Comity_.] As between courts of the different States in the United States this sentiment naturally is particularly strong. In pursuance of it, it is usual, if there has been a judicial appointment in one State of a representative of the law to administer an estate of any kind, part of which is in another State, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. An administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever State property or rights of action belonging to it might be found. A receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some States such an officer has been permitted to sue for it under his original appointment. The general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[Footnote: Hale _v._ Allinson, 188 U. S. Reports, 56.]
A receiver of an insolvent corporation often finds that it has shareholders living in several different States, who have not fully paid in their subscriptions to its capital stock. In such case, if the statute of the State under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other States as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. On this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. He sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47 Atlantic Reporter, 711; 84 American State Reports, 161.]
The sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between States both aids in the enforcement in one of rights acquired under the other,[Footnote: Finney _v._ Guy, 189 U. S. Reports, 335, 346.] and in the prevention by one of acts which would infringe on prohibitions created by the other. Thus, if a corporation of one State has been organized to do business in another, it may be enjoined in its home State from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[Footnote: Coler _v._ Tacoma Railway and Power Co., 70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]
As no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a State can summon before it witnesses not found within its jurisdiction, who live in another State. This, in view of the free intercourse and trade between all parts of the United States, would work intolerable hardship had not statutes been passed by every State permitting testimony to be taken outside of its limits by written deposition for use in civil cases.
So far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our State Constitutions that the accused must be confronted by the witnesses against him. Most of the Northeastern States, to meet this difficulty, have passed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another State to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[Footnote: New Hampshire inaugurated this legislation more than sixty years ago. Public Stat., ed. 1842, 382. Most of the statutes apply only to adjoining or neighboring States, and some require reciprocity on their part.]
* * * * *
Lawyers of one State have no right to practice in any other. By courtesy and on motion of a member of the bar, it is customary for the courts of other States to allow them to participate in the conduct of any particular cause. In some States, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original State for a certain number of years, and otherwise provides for an examination into their legal attainments.
* * * * *
CHAPTER XII
TRIAL BY JURY
To have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. The American colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the English plan. In the colony of New Haven there were no juries. In all the New England colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. The defeated party had what was styled the privilege of a review. This was a new trial before another jury, either in the same court or a higher one. If he lost his case again, it was the end of the litigation. If he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[Footnote: Bissell _v._ Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.] In criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[Footnote: Statutes of Connecticut, ed. 1715, p. 131.] South of New England there was no such radical departure from the common law, but there were before the Revolution variations of considerable importance.[Footnote: The _Federalist_, No. LXXXIII.]
Instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. This is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. Such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. They are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. Prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[Footnote: Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports, 621; 75 Southwestern Reporter, 755; 62 Lawyers’ Reports Annotated, 911.]
The requirement of unanimity on the part of the jury in civil causes, which we have inherited from England, is indefensible in principle. In practice, it has saved the institution from destruction. No one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. But among that number of persons there can hardly fail to be one or two of superior character and intelligence. These, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. If the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. Not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. It is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker.
In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction.
In several States verdicts in civil causes by a three-fourths vote are permitted. This radical change is not likely to become general.
Its best defense is that temptations to corruption are thus removed. So long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. In 1899, seven of the bailiffs in attendance on the Chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[Footnote: Report of the New York State Bar Association for 1904, 51.]
The Anglo-American jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course.
In the early judicial history of the American colonies juries were less under the control of the judge than they are now.[Footnote: See Chap. XIV.] In some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury.
The general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. This often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. Still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. Without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. That there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent.
The judge has at common law and by practice in most American States a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. It is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. They feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the State. Sometimes this power is abused. The judge desires to indicate a decided opinion. He fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. He therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. Any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[Footnote: See Metropolitan Life Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68 Northeastern Reporter, 4.]
If the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband’s death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter, 765.]
The American colonies were settled at a time when the English criminal code was extremely harsh, and the English judges were disposed to administer it in such a way as to favor the crown. If the government promoted a prosecution, there was little hope for the defendant, except from the jury. The courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. This was the occasion of the Charles James Fox Libel Act of 1792, and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of Not Guilty.
It was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[Footnote: 2 Swift’s “System of the Laws of Connecticut,” 258, 401.] In some of the States, a charge to the effect last stated is now sometimes required by statute.
A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists.[Footnote: Commonwealth _v._ Anthes, 5 Gray’s Reports, 185; Sparf _v._ United States, 156 U. S. Reports, 51, 71.]
It is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written Constitutions. Most crimes are defined by statute. It is easy for the defendant’s counsel to claim that the statute on which the prosecution is based is unconstitutional. If it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. Any such claim must be disposed of by the court, in order to give the Constitution its due supremacy.[Footnote: State _v._ Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61 American State Reports, 30.]
Mr. Justice Baldwin of the Supreme Court of the United States came to the bench, in 1829, strongly inclined to minimize the power of the federal judiciary. In one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[Footnote: United States _v._ Wilson, 1 Baldwin’s Reports, 109.] It was not long before he found himself compelled to retreat from his position. A man was being tried before him for forging notes of the United States Bank, and his counsel claimed an acquittal because the law incorporating the bank was unconstitutional, reading to prove it the veto message of President Jackson, with the accompanying documents. To the Jackson Democrats on the panel this was quite an imposing argument, and Mr. Justice Baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an Act of Congress as invalid was virtually to give us a country without a Constitution and without laws.[Footnote: