Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, Charles Franks and the Online Distributed Proofreading Team THE AMERICAN JUDICIARY BY SIMEON E. BALDWIN, LL.D. CONTENTS PART CASES CITED. I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES. II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS. _PART I_ CHAPTER I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY. II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS. III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT. IV. THE FORCE OF JUDICIAL PRECEDENTS. V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW. VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW. VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW. _PART II_ VIII. THE ORGANIZATION OF THE COURTS OF THE STATES. IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES. X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES, AND OF THE UNITED STATES JUDICIARY TO THE STATES. XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES. XII. TRIAL BY JURY. XIII. FORMALITIES IN JUDICIAL PROCEDURE. XIV. TRIAL COURTS FOR CIVIL CAUSES. XV. PROBATE COURTS. XVI. BANKRUPTCY AND INSOLVENCY COURTS. XVII. CRIMINAL PROCEDURE. XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT. XIX. APPELLATE COURTS. XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT. XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL LAW. XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES. XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH. XXIV. THE LAW'S DELAYS. XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY. INDEX. * * * * * TABLE OF CASES Ableman _v._ Booth Allinson, Hale _v._ American Insurance Co. _v._ Canter Ames _v._ Kansas Ames, Smyth _v._ Andrews, _Ex parte_ Anthes, Commonwealth _v._ Bachert _v._ Lehigh Coal and Navigation Co. Baldwin, Robertson _v._ Bank, Bardes _v._ Bank of Kentucky, Briscoe _v._ Bank of Mississippi _v._ Duncan Bank of the U. S., Osborn _v._ Bardes _v._ Bank Barrows _v._ Bell Batchelder _v._ Moore Baxter _v._ Brooks Baxter, State _v._ Bean _v._ Beckwith Bean, Beckwith _v._ Beckham, Taylor _v._ Beckwith _v._ Bean Beckwith, Bean _v._ Bell, Barrows _v._ Bell's Gap R. R. Co., McCloskey _v._ Bernard, Coggs _v._ Biddle, Green _v._ Bidwell, Downes _v._ Bissell _v._ Dickerson Blacker, Board of Supervisors _v._ Blair _v._ Williams Blake _v._ McClung Board of Supervisors _v._ Blacker Bodley _v._ Gaither Boffman, Hickman _v._ Bonham's case Booth _v._ Clark Booth, Ableman _v._ Borden, Luther _v._ Bowman _v._ Middleton Boyd _v._ Thayer Boyd _v._ U. S. Bradburn, Mincey _v._ Bradley _v._ Fisher Bradley _v._ New Haven Bradley, _Ex parte_ Brainerd, Fitch _v._ Branch, _In re_ Brashears, Lapsley _v._ Briggs _v._ Garrett Brine _v._ Insurance Co. Briscoe _v._ Bank of Kentucky Brooks _v._ State Brooks, Baxter _v._ Brown, Kellogg _v._ Brown, Parkersburg _v._ Bulkley, State _v._ Bull, Calder _v._ Burgess _v._ Seligman Burr's Trial Burrows, Nudd _v._ Bush, Perry _v._ Bushnell, _Ex parte_ Calder _v._ Bull California, Hurtado _v._ Call Publishing Co., Western Union Telegraph Co. _v._ Calvin _v._ Huntley Canfield _v._ Mitchell Canter, American Insurance Co. _v._ Carriere, Tua _v._ Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia Christmas _v._ Russell Church _v._ Pearne City of South Bend _v._ Turner Claflin _v._ Houseman Clark, Booth _v._ Clarke's Appeal Cleveland, Painesville and Eastern R. R. Co., _v._ Pritschau Clymer, Norris _v._ Cochran, Gernon _v._ Coffin _v._ United States Coggs _v._ Bernard Cohens _v._ Virginia Coleman _v._ Tennessee Coler _v._ Tacoma Railway and Power Co. Colt, Stanley _v._ Commonwealth _v._ Anthes Conn. Pipe Mfg. Co., Ward _v._ Consul of Spain _v._ Consul of Great Britain Cooper, Application of Cooper, _In re_ Cooper, In the matter of Copass, Hall-Moody Institute _v._ Croswell, People _v._ Cunningham, State _v._ Danbury, Hoyt _v._ Dartmouth College _v._ Woodward Debs, U. S. _v._ Debs, _In re_ Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._ Demorest, Hutkoff, _v._ Dennison, Kentucky _v._ Deposit Bank _v._ Frankfort Dickerson, Bissell _v._ Diggs _v._ Wolcott Donoghue, Hanley _v._ Dorr _v._ United States Dorrance, Vanhorne's Lessee, _v._ Dougherty, Lanark _v._ Dow _v._ Johnson Downes _v._ Bidwell Dred Scott _v._ Sandford Drehman _v._ Stifle Duncan, Bank of Mississippi _v._ Duncan, Johnson _v._ Dyson _v._ Rhode Island Co. Eakin _v._ Raub Eckrich _v._ St. Louis Transit Co. Ellington, Miel _v._ Erdman _v._ Mitchell Exchange Bank _v._ Rice Farmers' Loan and Trust Co., Pollock _v._ Faulkner _v._ Hart Finney _v._ Guy Fish _v._ Smith Fisher, Bradley _v._ Fitch _v._ Brainerd Fletcher _v._ Peck Flynn _v._ Morgan Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co. Frankfort, Deposit Bank _v._ French _v._ Waterbury Frost _v._ Leighton Gaither, Bodley _v._ Garland, _Ex parte_ Garrett, Briggs _v._ Genesee Chief, The Georgia _v._ Stanton Georgia, Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia, Worcester _v._ Gernon _v._ Cochran Gibbons _v._ Ogden Goshen _v._ Stonington Gould _v._ Hudson River R. R. Co. Grady's case Grapeshot, The Gray, James _v._ Green _v._ Biddle Griffin _v._ Wilcox Griswold, Hepburn _v._ Griswold, United States _v._ Grover & Baker Sewing Machine Co. _v._ Radcliffe Groves _v._ Slaughter Guy, Finney _v._ Hale _v._ Allinson Hall-Moody Institute _v._ Co-pass Ham _v._ McClaws Hanley _v._ Donoghue Hanover National Bank _v._ Moyses Hans _v._ Louisiana Harris, Norris _v._ Hart, Faulkner _v._ Hawes _v._ Oakland Hayburn's Case Hepburn _v._ Griswold Heywood, Wilcox _v._ Hickman _v._ Boffman Hildreth's Heirs _v._ McIntire's Devisee Hill _v._ Smith Hill, Koehler _v._ Hoffman, People _v._ Holmes _v._ Walton Houseman, Claflin _v._ Houser, State _v._ Howle, Metropolitan Life Insurance Co. _v._ Hoyt _v._ Danbury Hudson River R. R. Co., Gould _v._ Huntley, Calvin _v._ Hurtado, _v._ California Hutkoff _v._ Demorest Insurance Co., Brine _v._ International Distillery, Pearson _v._ Irvine _v._ Stone James _v._ Gray Jecker _v._ Montgomery Johnson _v._ Duncan Johnson _v._ People Johnson, Dow _v._ Johnson, Mississippi _v._ Johnson, State _v._ Joint Traffic Association, United States _v._ Judges, State _v._ Kansas, Ames _v._ Katz _v._ Walkinshaw Kellogg _v._ Brown Kellogg _v._ Warmoth Kentucky _v._ Dennison Kentucky, Louisville Ferry Co. _v._ Kepner _v._ U. S. Ketcham _v._ McNamara Kilbourn _v._ Thompson Klein, U. S. _v._ Kneedler _v._ Lane Koehler _v._ Hill Lachenmeyer, Pepin _v._ Lanark _v._ Dougherty La Ninfa, The Lane, Kneedler _v._ Lapsley _v._ Brashears Lee, State _v._ Legal Tender Cases, The Lehigh Coal and Navigation Co., Bachert _v._ Leighton, Frost _v._, Lennon _v._ Rawitzer, Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._, Little Charles, The schooner, U. S. _v._, Loan Association _v._ Topeka, Loomis _v._ Newhali, Lottawanna, The, Louisiana, Hans, _v._, Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, Louisville Ferry Co. _v._ Kentucky, Luke _v._ Lyde, Luther _v._ Borden, Lyde, Luke _v._ McCardle, _Ex parte_, McClaws, Ham _v._, McCloskey _v._ Bell's Gap R. R. Co., McClung, Blake _v._, McConnaughy, Pennoyer _v._, McCulloch _v._ Maryland, McDaniel, Terry _v._, McDowell _v._ Oyer, McFarland _v._ People, McIntire's Devisee, Hildreth's Heirs _v._, M'Kim _v._ Voorhies, McLeod's Case, McNamara, Ketcham _v._, McVeigh _v._ Ripley Madison, Marbury _v._, Main, State _v._, Marbury _v._ Madison, Maryland, McCulloch _v._, Mather, Rand _v._, Merriman _v._ Social Mfg. Co., Merryman, _Ex parte_, Metropolitan Life Insurance Co. _v._ Howle, Mial _v._ Ellington, Middleton, Bowman _v._, Milligan, _Ex parte_, Miln, New York _v._, Mincey _v._ Bradburn, Mississippi _v._ Johnson, Mitchell, Canfield _v._, Mitchell, Erdman _v._, Montgomery, Jecker _v._, Moore, _Ex parte_, Moore, Batchelder _v._, Morgan, Flynn _v._, Mormon Church _v._ United States, Morrill, State _v._, Moses Taylor, The, Moyses, Hanover National Bank _v._, Mutual Reserve Fund Life Association, Vincent _v._, Myers _v._ South Bethlehem Nash, United States _v._, Neagle, _In re_, Neff, Pennoyer _v._, Newhall, Loomis _v._, New Haven, Bradley _v._, New Jersey _v._ New York, Newman, _Ex parte_, New York _v._ Miln, New York, New Jersey _v._, New York and New England R. R. Co., Rumsey _v._, New York, New Haven and Hartford R. R. Co., Stack _v._, Noble _v._ Union River Logging Co., Norris _v._ Clymer, Norris _v._ Harris, Northern Securities Co. _v._ United States, Norwalk Street Railway Co.'s Appeal Nudd _v._ Burrows Oakland, Hawes _v._ Ogden _v._ Saunders Ogden, Gibbons _v._ Ohio and Mississippi R. R. Co. _v._ Wheeler Olcott, People _v._ Osborn _v._ Bank of the U. 8. Oyer, McDowell _v._ Parkersburg _v._ Brown Patterson, William Paul _v._ Virginia Pearne, Church _v._ Pearson _v._ International Distillery Pease, Starr _v._ Peck, Fletcher _v._ Pennoyer _v._ McConnaughy Pennoyer _v._ Neff Pennsylvania, Prigg _v._ Pennsylvania Coal Co., Sanderson _v._ People _v._ Croswell People _v._ Hoffman People _v._ Olcott People _v._ Webb People, Johnson _v._ People, McFarland _v._ Pepin _v._ Lachenmeyer Perkins, United States _v._ Perry _v._ Bush, Peters, Wheaton _v._ Pollock _v._ Farmers' Loan and Trust Co. Prigg _v._ Pennsylvania Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._ Radcliffe, Grover & Baker Sewing Machine Co. _v._ Rand _v._ Mather Raub, Eakin _v._ Rawitzer, Lennon _v._ Reese, United States _v._ Regents _v._ Williams Rhode Island Co., Dyson _v._ Rice, Exchange Bank _v._ Rich, Upshur County _v._ Ripley, McVeigh _v._ Robbins' Case Robertson _v._ Baldwin Robinson, _Ex parte_ Royall, _Ex parte_ Rumsey _v._ New York and New England R. R. Co. Russell, Christmas _v._ Rutgers _v._ Waddington Sanderson _v._ Penn. Coal Co. Sandford, Dred Scott _v._ Saunders, Ogden _v._ Scott _v._ Sandford Seligman, Burgess _v._ Shepherd, State _v._ Sheve, U. S. _v._ Siebold, _Ex parte_ Sims' Case Slaughter, Groves _v._ Smith, Fish _v._ Smith, Hill _v._ Smith, U. S. _v._ Smyth _v._ Ames Social Mfg. Co., Merriman _v._ South Bethlehem, Myers _v._ Sparf _v._ U. S. St. Louis Transit Co., Eckrich _v._ Stack _v._ New York, New Haven and Hartford R. R. Co. Stanley _v._ Colt Stanley, U. S. _v._ Stanton, Georgia _v._ Starr _v._ Pease State _v._ Baxter State _v._ Bulkley State _v._ Cunningham State _v._ Houser State _v._ Johnson State _v._ Judges State _v._ Lee State _v._ Main State _v._ Morrill State _v._ Shepherd State _v._ Travelers' Insurance Co. State _v._ Ward State _v._ Worden State, Brooks _v._ Stephens, petitioner Stifle, Drehman _v._ Stone, Irvine _v._ Stonington, Goshen _v._ Swift _v._ Tyson Tacoma Railway and Power Co., Coler _v._ Tassel's Case Taylor _v._ Beckham Tennessee, Coleman _v._ Terry _v._ McDaniel Thayer, Boyd _v._ The Genesee Chief The Grapeshot The La Ninfa The Lottawanna The Moses Taylor The Schooner Little Charles, U. S. _v._ The Thomas Jefferson Thomas Jefferson, The Thompson, Kilbourn _v._ Topeka, Loan Association _v._ Trademark Cases Travelers' Insurance Co., State _v._ Trevett _v._ Weeden Tua _v._ Carriere Turner, City of South Bend _v._ Tyson, Swift _v._ Union River Logging Co., Noble, _v._ United States _v._ Debs United States _v._ Griswold United States _v._ Joint Traffic Association United States _v._ Klein United States _v._ Nash United States _v._ Perkins United States _v._ The Schooner Little Charles United States _v._ Reese United States _v._ Robbins United States _v._ Sheve United States _v._ Smith United States _v._ Sparf United States _v._ Stanley United States _v._ Wilson United States _v._ Worrall United States, Boyd _v._ United States, Coffin _v._ United States, Dorr _v._ United States, Kepner _v._ United States, Mormon Church _v._ United States, Northern Securities Co. _v._ Upshur County _v._ Rich Vanhorne's lessee _v._ Dorrance Vincent _v._ Mutual Reserve Fund Life Association Virginia, Cohens _v._ Virginia, Paul _v._ Voorhies, M'Kim _v._ Waddington, Rutgers _v._ Walkinshaw, Katz _v._ Walton, Holmes _v._ Ward _v._ Conn. Pipe Mfg. Co., Ward, State _v._, Warmoth, Kellogg _v._, Waterbury, French _v._, Webb, People _v._, Weeden, Trevett _v._, Western Union Telegraph Co. v. Call Publishing Co., Wheaton v. Peters, Wheeler, Ohio and Mississippi R. R. Co., _v._, Wheeler's Appeal, Wilcox v. Heywood, Wilcox, Griffin _v._, Williams, Blair _v._, Williams, Regents _v._, Wilson, U. S. _v._, Wolcott, Diggs _v._, Woodward, Dartmouth College, _v._, Worcester v. Georgia, Worden, State _v._, Worrall, U. S. _v._ Additional cases cited in Second edition. Janvrin v. Revere Water Co., Revere Water Co., Janvrin, _v._, O'Brien's Petition, Seery v. Waterbury, Waterbury, Seery _v._ * * * * * PART I THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES * * * * * CHAPTER I ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test. The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776. The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.] In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._ citations by D. Davenport, _arguendo,_ in Flynn _v._ Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.] In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.] As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent. The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.] This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law--the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one. Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus: "The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise _pro re nata_ upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression."[Footnote: Winthrop, "History of New England," I, 322.] The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form. The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns. This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancient _aula regis_, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, "Justice and Police," 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: "Two Centuries' Growth of American Law," 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frost _v._ Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order. The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles. A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: "Two Centuries' Growth of American Law," 20.] The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, "Narrative and Critical History of America," V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, "Maryland's First Courts," Reports of American Historical Association for 1901, 211; Osgood, "The American Colonies in the Seventeenth Century," I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, "History of the United States," II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.] In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, "Records of the Court of Assistants of Massachusetts Bay," I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.] In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years. No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction. New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, "Life of Edward Livingston," 26.] As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the "Dominion of New England."[Footnote: Col. Rec. of Conn., III, 402, 411.] South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, "American Universal Geography," ed. 1796, 690; Osgood, "The American Colonies in the Seventeenth Century," II, 279, 300.] There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: "Life and Works of John Adams," II, 280. See Chap. XIII.] Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: State _v._ Ward, 43 Connecticut Reports, 489, 494.] The benefit of the writ of _habeas corpus_, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the "Declaration and Resolves" of the first Continental Congress, they assert "that the respective colonies are entitled to the Common Law of England," and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of the _Habeas Corpus_ Act, that great Bulwark and Palladium of English Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the Colonies," American Historical Review, VIII, 18.] The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this: ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power. The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman _v._ Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).] In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.] But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State. The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books. The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none. When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.] The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.] The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized: Judges were to proceed according to established rules, so far as established rules might exist. They were to proceed in analogy to established rules as to points which no established rule might cover. They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation. Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England. There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority. This higher authority might be judicial or political, or one which shared both judicial and political functions. * * * * * CHAPTER II THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step. So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them. On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington's _Oceana_, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.] It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.] The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.] It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.] In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles. Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.] But may not a power be judicial in its nature and yet not wholly so? It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions. Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause. Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department. Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise. It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._ New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477; Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: People _v._ Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793; _Ex parte_ Siebold, 100 U. S. Reports, 371, 397.] It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest. It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power. The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.] The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used. The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur County _v._ Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote: _Ibid_., 475.] In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.] On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbourn _v._ Thompson, 103 U. S. Reports, 168.] * * * * * CHAPTER III THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term. The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States. But while there is nothing like an administrative court for the disposition of causes against individuals in
{'title': 'The American Judiciary by Simeon E. Baldwin', 'source': 'Project Gutenberg', 'lang': 'en'}