The American Judiciary
by
Simeon E. Baldwin, LLD
Part 6 out of 6
Jeremiah Mason, who declined the position of Chief Justice of New
Hampshire on this account, and William Wirt. Wirt in 1802 was
made one of the Chancellors of Virginia at the age of
twenty-nine. The salary and fees amounted to about five hundred
pounds a year. He married on the strength of it, but in a few
months found that his income was insufficient to maintain his
family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
99.]
Dignity and power, however, are strong attractions. Theophilus
Parsons in 1806 left a practice worth $10,000 a year--the largest
in New England in his day--to take the place of Chief Justice of
Massachusetts on a salary of $2,500. After three years he sent
in his resignation, saying that he found that this sum was
insufficient for his support, even with the addition of the
income from such property as he possessed. The legislature
thereupon raised the salary to $3,500, and he remained on the
bench through a long life.[Footnote: "Memoir of Chief Justice
Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
Island, who then had a practice of $8,000 a year, gave it up for
the Chief Justiceship of the State, though the salary was then
but $750, supplemented by some trifling fees. In a few years,
however, he resigned the office on account of the inadequacy of
the compensation.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 75.]
The qualities of a judge are by no means the qualities of a
politician. The faculty of looking at both sides of a question
and the power of forming deliberate and well-considered judgments
do not tell for much in a campaign speech. The politician's
title to support is standing by his friends. The judge's duty
may be to decide a cause against his friends. Many a lawyer of
eminence might accept a nomination from a President or Governor
involving no participation in a political election contest who
would refuse one from a party convention.
The general sentiment of thinking men in the United States is
that judges should never be chosen by popular vote. It is,
however, an unpopular sentiment. The people in general do not
appreciate the difference between their fitness to select
political rulers and to select judicial rulers--to choose out
good men and to choose out good lawyers. And the people make and
ought to make our Constitutions. Rufus Choate once said that the
question at bottom was, Are you afraid to trust the people? If
you answer Yes, then they cry out that "he blasphemeth." If you
answer No, they naturally reply, Then let them elect their
judges.
Jefferson was the first to suggest an elective judiciary, basing
his opinion on a misconception of the usage in Connecticut.
There, he wrote, the judges had been chosen by the people every
six months for nearly two centuries, yet with few changes on the
bench, "so powerful is the curb of incessant
responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
July 12, 1816, regarding a new Constitution for Virginia.] In
fact, the Connecticut judges were chosen annually, and those not
holding judicial powers as an incident of political ones were
appointed by the legislature. The experiment of resorting to
popular election was first fully tried in Mississippi in 1832,
under the influence of Governor Henry T. Foote, but in later life
he expressed his regret at the course which he had taken, and the
belief that it had weakened the character of the bench.[Footnote:
"Casket of Reminiscenses," 348.]
The scheme of popular election may be pursued with reasonable
success if the bar use all the influence at their command to
secure both good nominations originally and the re-election of
all who have served well.[Footnote: It is not uncommon for local
bar associations after the party nominations for the bench have
been made to refer them to a committee, on the report of which
those deemed the best are commended for popular approval. In two
judicial districts in Iowa, the lawyers nominate judges for the
district in a convention of delegates from the bar, and then see
to it that the nominations are ratified by the party conventions.
Simon Fleischmann, "The Influence of the Bar in the Selection of
Judges," Report of 28th annual meeting of the New York State Bar
Association (1905).] A conspicuous instance of its success under
such conditions is shown by the repeated re-election of Judge
Joseph E. Gary of the criminal court of the city of Chicago.
Originally elected in 1863, when it was called the Recorder's
Court, he has been re-elected for successive terms of six years
without a break, and in 1903, when he was 82 years old and still
in active service on the bench, received well-merited addresses
of congratulation from the Chicago Law Institute and the Chicago
Bar Association. Judges of Probate, whose functions are largely
of a business character, and who are brought into close contact
with the people at first hand, are frequently re-elected for a
long period of years with little regard to their party
affiliations.[Footnote: In the Probate District of Hartford in
Connecticut there have been but two judges during the last forty
years, though the elections have been annual or biennial.]
In case of those having long terms of office, a re-election comes
more easily and commonly. A man who has been ten or twenty years
upon the bench has become set apart from the community. The
people have ceased to think of him as one of themselves, so far
as the active political and business life of the day is
concerned. His position and his work, if it has been good, have
given him a certain elevation of station. Men have learned to
trust him, and to feel that his presence on the court helps to
make liberty and property more secure. If he receives his party
nomination, he is apt to secure a majority of votes, whether the
others on the ticket are or are not elected. The opposing party
often nominates him also, and sometimes, if his own gives the
nomination to another, nominates him itself, and with success.
In New York it has been generally the case that a good judge of
the Court of Appeals or Supreme Court is re-elected until he
reaches the age limit set by the Constitution. To accomplish
this, however, it has been necessary for the bar to use constant
efforts to bring the nominating conventions of both parties to
the support of the same man or men, and personal ambition and
party feeling have on a number of occasions set up an effectual
bar. Before a recent election of two judges in that State, in
preparation for which a scheme had been suggested by which one of
the outgoing judges of each party should be re-elected, a third
candidate for the succession, himself a prominent member of the
bar and an officer of the State, published a lengthy statement of
his claims, which concluded thus:
"I am a candidate for nomination to the office of Associate Judge
of the Court of Appeals at the coming Democratic State
Convention. I appeal to my fellow-citizens for their support.
While I do not believe that support for judicial candidacy should
be unduly importuned, I feel that the present circumstances
justify me in making this announcement. I have always stood by
my party in its dark days, when others voted the Republican
ticket in the interest of their business. I have assisted in
endeavors to so shape its policies as to make success possible.
Now that this has been accomplished, I do not think that my
fellow-Democrats will thrust me aside to make way for those who
neither affiliate with the party nor vote its ticket."
As a general rule, in the country at large political
considerations are decisive, both in cases of popular election
and of executive nomination, but as to the latter exceptions are
more frequent. One instance has occurred in which a President of
the United States nominated to the Supreme Court a member of the
party in opposition to the administration,[Footnote: Howell
E. Jackson, a Democrat, was thus appointed by President Harrison,
a Republican, in 1893. President Taft, a Republican, has since
appointed two Democrats, justices Lurton and Lamar, and made a
third Chief Justice.] and the same President, upon the creation
of the Circuit Court of Appeals, when there were a number of new
judges to be appointed, gave several of the places to those not
of his political faith. It is, however, to be expected that the
Presidents of the United States, as a general rule, will place
upon the Supreme Court none whose political opinions are not
similar to their own. It is a court wielding too great a
political power to allow this ground of qualification to be
lightly passed over.
Precisely because of this, the political antecedents of the
justices of the Supreme Court are more apt to be discoverable in
their opinions than is the case in State courts. Professor
William G. Sumner, in referring to the change of character of the
Supreme Court by reason of Jackson's appointments to it, remarks
with some truth that "the effect of political appointments to the
bench is always traceable after two or three years in the
reports, which come to read like a collection of old stump
speeches."[Footnote: "Life of Andrew Jackson," 363.]
In States where the judges are only appointed for a certain term
of years, it is not unusual for the Governor, if he has the power
of nomination, to exercise it in favor of outgoing judges who are
his political opponents. So, also, if there happen to be several
original vacancies to fill, it is the traditional method in a few
States to give one of the places to a member of the opposition
party. If the election belongs to the legislature, a similar
practice prevails in some of the older States. In Connecticut
but six instances of refusing a re-election to judges of the
higher courts for mere party reasons have occurred for more than
a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
Trumbull were dropped in 1818 and 1819 as an incident of the
political revolution which destroyed the Federalist party in
Connecticut and brought about the adoption of a Constitution,
under which the judges were to hold for life, to replace the
royal charter. Judges Seymour and Waldo were dropped in 1863
during the Civil War, because they were classed with the "Peace
Democrats." Their successors, however, were appointed from the
"War Democrats," though the legislature was Republican.] In
Vermont, where elections to the Supreme Court were annual, Judge
Redfield was placed on the Supreme bench and then re-elected year
after year for twenty-three successive years by legislatures
controlled by the party politically opposed to him.[Footnote:
Edward J. Phelps, "Orations and Essays," 220.]
In a few States it is not customary for his party to renominate a
judge more than once. Two terms are considered enough for one
man, and when he has served them he should make room for some one
else. Many a judge has thus been taken from the bench at a time
when, with the aid of experience, he was doing his best work.
Appointments to appellate courts are generally provided for by a
scheme calculated to prevent any sudden and general changes of
membership. Not more than one or two receive an appointment in
any one year, so that the terms of not more than one or two can
expire at the same time. Where judges hold for life or--as is
frequently the case--if there is a constitutional provision that
no judge shall hold office after reaching the age of seventy, the
vacancies will, of course, occur and be filled at irregular
intervals. All this, in connection with the natural tendency to
reappoint judges who have earned the public confidence, secures
to the court a certain continuity of existence and consistency of
view. In every court of last resort in the older States there
will be apt to be found some who have served ten or twenty years
and were at first associated with those who had themselves then
served as long. It is not easy to "pack" a court thus
constituted. If, however, some question of supreme political
importance is looming up, likely soon to become the subject of
litigation, the nominating or appointing power is not likely to
be insensible of the party advantages that may result from its
decision in a particular way by the highest judicial authority,
nor of the importance of the vote to be cast by each who may
share in its administration.
During the Civil War Congress passed a conscription law. The
Supreme Court of Pennsylvania pronounced it unconstitutional, and
advised the issue of a temporary injunction to prevent its
enforcement by the officials charged with that function. The
term of the Chief Justice was about to expire. The decision had
been made by three judges, of whom he was one, against two who
dissented. The political party to which he belonged renominated
him, but he was defeated at the polls. A motion was soon
afterwards made to dissolve the injunction. His successor joined
with the former minority in advising that the motion be granted,
and on the ground that the Act of Congress was not
unconstitutional. The two remaining members of the court adhered
to their former opinion.[Footnote: Kneedler _v._ Lane, 45
Penn. State Reports, 238. See this case reviewed in Pomeroy,
"Introduction to the Constitutional Law of the United States,"
Sec. 479.]
In some States the justices of the Supreme Court select one of
their number annually to be Chief Justice for the year ensuing.
In several, whenever there is a vacancy, the office falls, as of
course, to the justice who has the shortest time to serve. This
is a ready way to pass a title about and attach it to as many men
as possible in quick succession. Its ostensible defense is that
there can be no unfair discrimination and favoritism in such an
appointment, and that as the judge whose term has most nearly
elapsed will naturally be the one who has served the longest, he
will certainly have the advantages of experience. These
considerations deserve little weight in view of the sacrifices
that such a scheme entails. Unfair discrimination is indeed
prevented, but so is a just and proper discrimination. The plan
of promoting the senior associate justice when a vacancy occurs
is liable to similar objections, though in less degree. He is at
least not unlikely to serve for a considerable time.
To be a good Chief Justice requires special gifts. Whoever holds
that office should have not only learning and ability, but
patience and courtesy in a high degree. He must be methodical in
the transaction of business, if the docket of the court is a
large one. He should have the art of presiding over its public
sessions and disposing of the minor motions which may be made
from the bar with dignity and tact. He should be a man who
commonly carries his associates with him at its private
consultations in support of any doctrine which he is firmly
convinced to be the law applicable to the case in hand. He
should have the faculty of conciliation. He should know when to
yield as well as to insist, in order to secure the best results
for his court and for his State. He should be able to write a
clear and forcible opinion. The best lawyer in the jurisdiction
who may be supposed to have these qualities and will accept the
position ought to be at the head of its judiciary. Many have
been tempted from the bar by an offer of that place who would
have refused the appointment of associate justice. John Marshall
was one of these. Chief Justice Parsons of Massachusetts was
another. In the Supreme Court of the United States no Chief
Justice has ever been appointed from among the associate
justices, although a nomination was offered to and declined by
Mr. Justice Cushing in 1796. In the State courts the general
practice is to the contrary, and it is common to fill a vacancy
by appointing one of the associate justices.
Popular election and life tenure cannot well go together. The
chance of an irremediable mistake is too great. Judicial
nominations are often the mere incident of the prevalence in a
party convention of one faction of the delegates, whose main
object is to control the nominations for other positions.
American experience seems to indicate life tenure and executive
nomination, with some suitable provision for securing retirement
at a certain age, as likely to secure the best judges of the
higher courts. This has worked well for the United States, and
no State courts have stood higher in the general opinion of the
bar than those thus organized. For the lower courts there is
less necessity and less chance for getting men of the first rank
in attainments and character. Shorter terms of office can
therefore reasonably be prescribed, and the objections to popular
election are correspondingly less. Even as to them, however, the
plan of executive nomination is safer than that of party
nomination. A man acts carefully when he is the only one whom
the public can hold responsible for what is done.
It is customary to provide that vacancies in judicial offices can
be temporarily filled by the Executive until there is an
opportunity for a new appointment or election by the proper
authority.
The place of a judge who is absent or disqualified is in some
States, by authority of a statute or agreement of the parties,
occasionally taken by a member of the bar called in to try a
particular cause or hold a particular term of court.[Footnote:
See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
_v._ Brown, 32 Connecticut Reports, 112.] So the English
assize judges are constituted by special commissions for each
circuit, which include also the barristers on the circuit who are
sergeants at law, king's counsel, or holders of patents of
precedence.
It is hard to dislodge a judge for misconduct or inefficiency.
Our Constitutions give remedies by impeachment or by removal by
the Governor on address of the legislature, but lengthy
proceedings are generally necessary to obtain the benefit of
them, and the decision is often in favor of the judge. Party
feeling is apt to have its influence in such matters. Whether it
does or does not, it is an unpleasant task to assume the
initiative. Those who best know the facts are the lawyers, and
if some of them are the ones to move, it is at the risk, should
they fail, of having afterwards to conduct causes in a court
presided over by one who is not likely to regard them with a
friendly eye.
The number of judicial impeachments in the history of the country
has been comparatively small, and few of these have resulted in
convictions.[Footnote: See Chap. III.] Of the cases which were
successful, the most noteworthy is that of Justice George
G. Barnard of the Supreme Court of New York, who was convicted of
having abused his right to issue _ex parte_ orders and of
other measures of improper favoritism. The Bar Association of
the City of New York brought the charges, and were influential in
carrying the whole proceeding through to a favorable result. In
another instance, occurring in 1854 in Massachusetts, the right
of impeachment was stretched to its limit by removing a Judge of
Probate, Edward G. Loring, the only real ground being that as a
United States Commissioner he had ordered the return of a
fugitive slave under the laws of the United States--laws the
constitutionality of which the highest court of the State had
recently declared to be fully settled.[Footnote: Sims' Case, 7
Cushing's Reports, 285.]
Judges of inferior courts are sometimes removable by the higher
ones for cause, on complaint of a public prosecutor. In such
case, the proceeding being strictly a judicial one, there is more
assurance of success if the charges are well founded. Here also,
however, it will be known from whom they come, and the hearings
are likely to be so protracted and expensive to the State that
only a flagrant case will usually be taken up. The hearings on
such a complaint, brought in New York in 1903, extended over
thirty-six days; the stenographic minutes of the testimony
covered over 3,300 pages; there were over four hundred exhibits
introduced; and the items of cost presented for taxation amounted
to over $20,000.
Removals by the Governor on the address of the legislature have
been more frequent, and occasionally have been dictated largely
by party managers who desired to make places for those of their
own political faith.[Footnote: Schouler, "Constitutional
Studies," 288, note.] In one instance it was attempted, but
unsuccessfully, in Kentucky as a punishment for giving a judicial
opinion that a stay-law recently passed by the legislature was
unconstitutional. A two-thirds vote of each house was required,
and as in the lower house, though it voted for an address by a
large majority, this could not be obtained, the proceeding was
allowed to drop.[Footnote: Niles' Register, XXII, 266. See
_ante_ p. 114.] In all there have been in the whole country
since 1776 not over thirty removals, whether on impeachment and
conviction or on address of the two houses, of judges of a higher
grade than justices of the peace.[Footnote: See Foster,
"Commentaries on the Constitution of the United States,"
Appendix, 633.]
Wholesale removals have also, in rare instances, been effected
for similar purposes by abolishing courts, the judges of which
held during good behavior.[Footnote: See Chap. VII.] Maryland
was the first to do this, abolishing a court and re-establishing
it at the same session, almost in the words of the former law.
Congress followed in 1802 by repealing the statute of the year
before by which a new scheme of Circuit Courts was arranged and
under which sixteen Federalists had been appointed to the bench.
Massachusetts did the same thing in 1811 with respect to her
Courts of Common Pleas.[Footnote: See Chap. VIII.]
The occurrence of vacancies has sometimes been prevented in a
similar manner when the nominating or appointing authority was
politically opposed to the legislature. The existence of a
supreme court is required by all our Constitutions, but the
number of the judges is frequently left to be fixed from time to
time by statute. The Federalists, when they were about to go out
of power, provided that the Supreme Court of the United States
should on the next vacancy be reduced from six to five, thus
seeking to prevent Jefferson from filling such vacancy. By 1863
the number had been raised to ten, but three years later, when a
Democratic President was contending with a Republican Congress,
it was enacted that as vacancies might occur it should be reduced
to seven. In 1869, when a Republican President had come in, the
number was restored to nine, and the new justice for whom a place
was thus made shortly joined in reversing a decision made by the
court not long before and quite unsatisfactory to the majority in
Congress on an important constitutional point. Similar
legislation, for like reasons, has been had in many of the
States.
* * * * *
CHAPTER XXIII
THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
BENCH
Every lawyer is an officer of the court as fully as is the judge
or the clerk. He has, indeed, a longer term of office than is
generally accorded to them, for he holds his position for life,
or during good behavior.
Courts could not exist under the American system without lawyers
to stand between litigants and the judge or jury. It is a system
that requires written pleadings, originally very artificial in
form and still somewhat so. It imposes many limitations on the
introduction of evidence, which often seem to shut out what ought
to be admitted, and rest on reasons not apparent to any who have
not been specially instructed in legal history. It divides the
decision of a cause between judge and jury in a manner only to be
understood after a long and close study. It gives a defeated
party a right of review dependent on a number of technical rules,
and to be availed of only by those who are skilled in the
preparation of law papers of a peculiar kind.
A class of men has therefore been set apart to keep the people
from direct approach to the bench, except when they may desire to
argue their own cases, which rarely occurs.
In England there are two such barriers, the class of barristers
and the class of attorneys. The attorneys keep the people from
access to the barristers; the barristers keep the attorneys from
access to the court. The attorney prepares the case, represents
his client in the proceedings preliminary to the trial, and
assists the barrister whom he may retain at the trial, but cannot
examine a witness or argue the cause.
In America we do not thus divide lawyers into two classes. There
are many of them who never in fact address the court, but it is
not because they have not a legal right to do so. Every member
of the bar of any court has all the legal rights of any other
member of it.
The qualifications for admission to the bar are generally left to
be regulated by the courts. In a few States they are fixed by
constitutional or statutory provisions. In all, when the
Constitutions do not regulate it, the legislature can. It has
indeed been asserted that the admission of attorneys is in its
nature a matter for the courts only.[Footnote: See _American
Law School Review_, I, 211.] English history does not support
this contention.[Footnote: Pollock & Maitland, "History of
English Law," I, 211-217; II, 226. O'Brien's Petition, 79
Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
Court, which are mere voluntary associations of lawyers, have
from time immemorial exercised the function of calling to the
bar, so far as barristers are concerned, and the admission of
attorneys has always been regulated by Acts of
Parliament.[Footnote: See In the Matter of Cooper, 22
N. Y. Reports, 67, 90.] By our American legislatures the same
course has been generally pursued.
The duty of ascertaining whether candidates for admission have
the prescribed qualifications is occasionally performed by the
judges in person; more often by a committee of the bar appointed
by the court for that purpose; in some States by a standing board
of State examiners, receiving compensation for their
services.[Footnote: This comes from fees paid by those examined.]
The latter method was introduced in the latter part of the
nineteenth century and is steadily gaining in favor. A committee
of a local bar is unavoidably subject to some local influences or
prepossessions. A State board can act with greater independence
and maintain with more ease a high standard of admission.
In early colonial days the legislature sometimes set a limit to
the number of attorneys who could be allowed to practice before
the courts. In some colonies the number at the bar of a
particular court was fixed; in others the number of lawyers in
each county.[Footnote: Acts and Laws of the Colony of Conn., May
session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
No such limitation now exists in any State, and the matter is
left to be regulated by the law of supply and demand. This by
the census of 1900 required over 114,000.
The freer a country is, and the quicker its step in the march of
civilization, the more lawyers it will naturally have. The
growth and importance of the bar are stunted wherever it is
overshadowed by an hereditary aristocracy. A land of absolutism
and stagnation has no use for lawyers. The institutions of China
would not be safe if she had a bar. Lawyers are a conservative
force in a free country; an upheaving force under a despotic
government. In Russia one is found enough to serve over thirty
thousand; in the United States there is about one to every six
hundred and sixty of the population,[Footnote: In 1870, there was
one to every 946; in 1880, one to every 782.] and in England one
to every eleven hundred.
The colonial lawyers of the seventeenth and eighteenth centuries
occupied an inferior place in the community as compared with that
now held by the legal profession. There was comparatively little
opportunity to rise to eminence. The positions on the bench, as
has been seen, were largely held by those not trained as lawyers.
Before such judges it was a waste of words to make elaborate
arguments on points of law.
Among the first settlers were a few who had been educated for the
English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
drafted the _Magna Charta_ or "Body of Liberties" of that
colony, adopted in 1641. His opinion of the need of lawyers may
be inferred from the fact that it provided expressly that those
who pleaded causes for others should receive no compensation for
it. Virginia adopted the same policy from 1645 to 1662. Later,
lawyers practicing in Massachusetts were excluded from the
General Court. As that had large judicial powers, it was thought
fitting to give no opportunity to any to sit there to-day to
judge and to appear to-morrow before an inferior court to argue
as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
III, 104.]
As time went on, an American was occasionally sent to London to
read law. He was apt to be a young man of fortune, who entered
the Temple or the Inns of Court more as a means of gaining
pleasant acquaintances than for any serious purpose of education.
Most of them came from Pennsylvania and the Southern colonies.
Two Presidents of the Continental Congress, Randolph and McKean,
four signers of the Declaration of Independence, Heyward, Lynch,
Middleton, Edward Rutledge, and John Rutledge, one of the first
associate justices of the Supreme Court of the United States,
were of the number.
Not infrequently there were legal proceedings in London which
concerned colonial interests. Their charters were attacked or
colony laws and judgments put in question before the Lords of
Trade and Plantations. In such proceedings, if counsel were
needed, English barristers were generally employed. An American
lawyer now and then went over to consult with them and perhaps to
join in the argument, but the leading part was theirs.
It was not until the quickening and deepening of American life
which preceded and portended the Revolution that anything like a
colonial bar, led by a man of learning and position, really came
into existence.[Footnote: "Two Centuries' Growth of American
Law," 16.] From the middle of the eighteenth century to its
close there was a steady and rapid progress in this direction.
Legal education was taken seriously. In the case of many it
began with the fundamental notions of justice and right. The
Greek and Latin classics on those heads were read.[Footnote:
"Life of Peter Van Schaick," 9.] The private law of the Romans
was studied to a greater extent relatively than it is now. The
first chair of law in the United States was established at
William and Mary College in 1779, and there, under Chancellor
Wythe, John Marshall was a student. President Stiles of Yale, in
his "Literary Diary," so full of that kind of historical incident
which after a few years have passed it is most difficult to
trace, enumerates the books read by his son, Ezra Stiles, Jr.,
between 1778 and 1781, in preparation for the Connecticut bar,
under the advice and in the offices of Judge Parker of Portsmouth
and Charles Chauncey of New Haven. They comprehended, besides
much in English and Scotch law, Burlamaqui's _Principes de
Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
Institutes of Justinian, certain titles of the Pandects, and
Puffendorf _de Officio Hominis et Civis juxta Legem
Naturalem_. James Kent at about the same time was reading
Grotius and Puffendorf in the office of the Attorney-General of
New York, and Edward Livingston, under Chancellor Lansing,
explored all parts of the _Corpus Juris Civilis_.[Footnote:
Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
years later, under the instruction of Chief Justice Parsons of
Massachusetts, took up Vattel and the Institutes of
Justinian.[Footnote: Report of the American Bar Association for
1903, 675, note.] The latter, as well as Van Muyden's
_Compendiosa Tractatio_ of them, his father had studied in
his preparation for the bar thirty years before.[Footnote: "Life
and Works of John Adams," I, 46.]
The lectures of Chancellor Wythe at William and Mary, like those
of Mr. Justice Wilson in 1790 at the University of Pennsylvania
and of Chancellor Kent in 1794 at Columbia, were designed, as
were Blackstone's at Oxford, to give such information as to the
nature and principles of law as might be of service to any one
desirous of acquiring a liberal education. Such instruction
could not be considered as anything approaching a proper
preparation for entering on the practice of the legal profession.
The United States preceded England in the endeavor to provide
such a preparation by a systematic course of study pursued under
competent teachers at a seat of learning established for that
sole purpose.
The need of something of the kind was felt to be pressing after
the independence of the United States had been fully established.
An unusual number of young men of promise were turning from the
army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
the number of attorneys in the State of New York had risen to
120. Morse's "American Geography," ed. 1796, 506. Thirty years
later it was 1,200. Miles' "Register," XIV, 311.] Those already
members of it had educated themselves as best they could, with
slight assistance from the lawyers in whose offices they had
studied. They in turn were indisposed to do more for such as
might desire to read law in their offices. Few of them were
competent to do much.[Footnote: See "Life of Peter Van Schaick,"
9, 13.]
There was a demand for a professed school of law, and in 1784 the
first in any English-speaking country was opened at Litchfield,
Connecticut. There are now 104 of them,[Footnote: Report of the
American Bar Association for 1903, p. 398.] with a total
attendance of over fourteen thousand students. The course of
study in a few may be completed in one year; in most two are
required; in the rest three, with perhaps an offer of a fourth
for advanced instruction leading to the degree of master or
doctor of laws. The ordinary degree is that of bachelor of laws
(LL.B.).
The American Bar Association has had an important influence from
its first organization, in 1877, in prolonging the period and
raising the standards of legal education. In affiliation with it
there is an "Association of American Law Schools," representing a
large majority of the teachers and students engaged in law school
work. This admits no institution into its ranks at which
students are received without a preliminary education at least
equal to that given by the ordinary high school. A few of the
schools so associated receive no student, save in exceptional
cases, unless he already holds a degree in arts, science,
philosophy, or letters from some collegiate institution.
In several of the States having boards of State examiners no one
is admitted to the final examination before them who did not
prior to the beginning of his education receive one of the
degrees above indicated or else pass a special examination before
the same board on certain prescribed studies, corresponding
substantially with those ordinarily pursued in a high school.
Some proof is everywhere required that an applicant for admission
to the bar possesses a good moral character. It is necessarily
largely a matter of form. Certificates are sometimes required
from those familiar with his previous life, and sometimes the
mere motion for his admission by a member of the bar representing
the examining committee is accepted as sufficiently implying that
no unworthy person would be thus presented.
In a few States a distinction is made between attorneys with
reference to the courts in which they may practice. When first
admitted it is to the bar of the trial courts. Later, after a
few years of experience, they can be admitted on further
examination to practice also in the highest courts of the State.
This distinction reaches back, in New Jersey, to the colonial
era. Attorneys were there a different class from "counsellors,"
and, following the English practice, the style of "sergeant" was
also formerly bestowed on leaders at the bar. The last lawyer
bearing the title survived until nearly the middle of the
nineteenth century. In this State the Governor has always issued
the licenses or commissions to attorneys and solicitors in
chancery, but for more than a hundred and fifty years only on the
recommendation of the Supreme Court.[Footnote: _In re_
Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]
The admission of attorneys in the several courts of the United
States is determined by rules which they respectively establish
from time to time. These rules make the only qualification
membership in regular standing for a certain period of time in
the bar of a State and good moral character.
There is no doubt that the United States have been in advance of
England both in providing means of legal education and in
requiring their use. The length of the course of study now
established at our older Law Schools--three years--seems all that
can reasonably be exacted, if a proper foundation of general
discipline and knowledge has been previously laid. The first
provision for one or more years of graduate study for those who
may desire it was made at Yale University in 1876, and a similar
opportunity has since been offered at several others; but it has
been availed of by few, and of these a considerable part had in
view the teaching of law as their ultimate vocation rather than
its practice.
Unquestionably the American bar is now, as a whole, a far better
trained class of men than it was twenty or thirty years ago, and
the efficiency of the courts has been correspondingly increased.
* * * * *
Members of the bar are always subject to punishment by the court
for official misconduct. This may be by censure, temporary
suspension from practice, or disbarment. If guilty of contempt
of court, they can also be sentenced to fine or
imprisonment.[Footnote: See Chap. XX.] As suspension or
disbarment means a loss, temporary or permanent, of a livelihood,
it is only ordered in aggravated cases and after an opportunity
for a formal hearing.
Disbarment cannot be decreed by the legislative department. That
would be virtually an act of attainder. It must come from a
judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333, 378.]
In some States the principal trial court, which is the one by
order of which attorneys generally are admitted to the bar,
appoints a standing committee on grievances. In others such
committees are created by Bar Associations, of which almost every
State has one for the whole State, while several have also one or
more local associations. It is the duty of such a committee to
inquire into any instances of professional misconduct that may be
brought to their notice and either institute proceedings for a
hearing before themselves or bring the matter to the attention of
the court, so that they may be instituted there by its order and
conducted by the public prosecutor. In the larger States,
several inquiries of this nature are ordinarily set on foot every
year, which result in suspension or disbarment. In the smaller
States they are rare, both because they have smaller bars and
because the smaller a bar is the more difficult is it for any one
of its number to hide any misdoing from the rest.
The Bar Associations, which first began to start up soon after
the Civil War, have been of great service in upholding the honor
of the profession. Their Constitutions generally name this
particularly as among their professed objects. One
State[Footnote: Alabama] has recently under such influences,
passed a statute making it a misdemeanor for an attorney to send
out "runners" to solicit practice, and requiring the public
prosecuting officer to institute proceedings for any violation of
the law, upon the complaint of the council of the State Bar
Association.
The steadily and rapidly increasing proportion of lawyers to the
population in the United States necessarily tends to a lowering
of their average professional income, and this tendency is not
fully overcome by the increase of the wealth and business of the
country. The principle of the concentration of industry also
works against the great majority of them. Searching titles to
real estate, for instance, was until the last half of the
nineteenth century part of the business of every lawyer. It is
now in the larger cities monopolized by certain firms or
corporations, who own copies or abstracts of the public records,
laboriously prepared, which give them special facilities for
doing the work rapidly and well. So collecting uncontested debts
was formerly the staple of many a lawyer's practice. The general
abolition of imprisonment for debt about the middle of the
nineteenth century rendered the process much more difficult and
the fees less, and of late years great collection agencies,
generally corporations, have sprung up, with an extensive system
of correspondents among members of the bar, by whom most suits of
such a nature are now brought under an agreement to divide their
fees with the central bureau.
Until the last half of the nineteenth century there were probably
no lawyers in this country whose average net income from year to
year was equal to that of the leaders of the English bar. In
1806 there was but one lawyer in New England with an annual
professional income of $10,000: until about 1860 there was none
in Connecticut, and probably not over a hundred in the entire
country.[Footnote: Parton, "Life of Aaron Burr." 153; Great
American Lawyers, III, 55.] In 1827, William Wirt was informed
by Justice Thompson of the Supreme Court of the United States
that "six, eight, and ten thousand dollars is considered great
practice in New York and ten thousand dollars the
_maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"
II, 209.] Thirty years later the same was true, except that
twenty thousand dollars had then become the highest annual
average, and that but of a very few.[Footnote: Parton, "Life of
Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000
when at the height of his career.[Footnote: Harvey,
"Reminiscences of Daniel Webster," 84.]
The Civil War was the occasion of many important business
enterprises, and gave rise to much litigation. It brought also a
great increase of wealth to the North and West, and new and
greater investments of Northern capital in the South. From that
time the business of the leading lawyers in every State became
more remunerative. Incomes of $20,000 and $25,000 were
occasionally earned in the smaller States, and of four or five
times as much in the larger ones.
The American lawyer of the eighteenth century was apt to have his
office in his house. During the nineteenth century this became
less and less common and is now comparatively rare. In cities
certain streets, generally near the court-house, are crowded with
lawyers' offices. These are generally over business stores, but
in some places residential streets have been converted to this
use, and what was formerly a handsome mansion will have the
chambers of counsel on every floor.
In many of the counties in Virginia chambers for the
accommodation of the lawyers are built in the rear of the
court-house on public ground. A small rent is paid by the
occupants to the county. When court is about to open each day
the crier calls out from one of the court-house windows the name
of each lawyer to notify him of the fact.
The relations of the bar to the bench assume a peculiar character
under the conditions of American society. The judges stand
closer to the lawyers in this country than in any other. All of
them, unlike those of continental Europe, have been themselves
practicing lawyers. The majority, unlike those of England, are
young men, sitting in minor courts, who have generally left the
bar for but a brief period, expecting, if not desiring, soon to
return to it. Not a few hold court but one or two days in the
week or one or two hours in the day, and for the rest of the time
are actively engaged in professional practice before other
courts. Those of the latter description always occupy a somewhat
unfortunate position. The State does not expect them to devote
themselves entirely to its service. It does not provide for
their compensation on that basis. It expects them to continue
the general practice of their profession, except so far as their
judicial duties may necessarily prevent. They certainly cannot
practice in their own court with propriety. Statutes to prevent
it are not uncommon. For the same man to charge the jury one day
as judge and address them the next in argument as counsel must
tend to confuse their notions as to the weight they should give
to what he says, and to lend it often a weight which it may not
deserve. So, too, his relations to the clerk and other court
officers are such officially as to give him opportunities for
influencing them when he is engaged at the bar, not shared by his
brother lawyers.[Footnote: French _v._ Waterbury, 72
Conn. Reports, 435; 44 Atlantic Reporter, 740.]
There are, however, in every State quite a number of judges of
higher courts who receive a salary deemed sufficient for their
support and who are expected to devote their entire time to
judicial duties. As respects those of the United States courts
there is a statute (U. S. Revised Statutes, Sec. 713) making it
criminal for them to practice law. Similar legislation exists in
some of the States with regard to the judges of their higher
courts, but without it a sense of propriety dictates their
abstaining from it, and it has even been held that the right of
any judge of a superior trial court of general jurisdiction over
important causes to act as an attorney or counsellor, except in
his own cause, is suspended by implication of law so long as he
retains his seat on the bench.[Footnote: Perry _v._ Bush, 45
Florida Reports; 35 Southern Reporter, 225.]
The demeanor of the judges to the bar is inevitably affected to
some extent by their tenure of office. If they hold their places
for life, they naturally are less sedulous to avoid giving
offense and less ready to tolerate a poor or tedious argument. A
greater distance is maintained for this cause between bench and
bar in the federal courts than is usual in most of the State
courts.
No judge, however, desires to have the reputation of being
overbearing, rough or impatient, and few are. Chief Justice
Parsons of Massachusetts at one time fell into an inveterate
habit on the circuit of checking counsel in argument rather
curtly when they seemed to him to wander from the vital point.
The leaders of the bar of Boston finally determined to stop it,
and arranged at the next term at which he was to preside that
whoever of them was thus treated should leave the court room.
The first to address the court was checked in the usual manner,
and observing that he regretted his argument seemed not worthy of
the court's attention, took his papers and went out. The next
met the same kind of interruption in the same way, and so on
until the court room was cleared. The Chief Justice afterwards
sought an explanation, received it in good part, and was forever
cured of what had been a serious impediment to his usefulness on
the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.]
Occasionally a trial judge will have a similar lesson taught him
by finding no business to be disposed of when he opens court, and
learning later that the bar agreed to the continuance of all
pending cases, because they did not care to trust him with them,
or were disinclined to submit to his manner of conducting a
hearing.
Judges are universally desirous of securing the good opinion of
the bar as respects their knowledge of law and powers of
discrimination and analysis. The bar is their little world. It
is a critical world, for in every case that is tried there will
be one lawyer who is dissatisfied with the result, and likely to
think the judge wrong rather than himself, if every proposition
of law which he has asserted has not been conceded.
It is much more common for American judges to be too tolerant of
a waste of time by counsel than to be too impatient at
it.[Footnote: See a striking instance of this tendency given in
Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau,
69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They
dislike even to seem harsh. Most of them also hold office only
for a term of years and do not forget that undue severity may
jeopardize their re-election. This is one reason for the fact
that at all points the bar are subject to fewer restrictions upon
their conduct in the trial of causes in American courts than in
those of most other countries. Another, and a more fundamental
one, is that the judges and lawyers stand more nearly on the same
level both in public regard and official position. The lawyer
holds a more permanent office in the court than the judge. He is
quite likely to be his superior in learning and ability. He
belongs to a class that is influential in the community, and
whose members usually share quite actively in the direction of
party politics. The judge in most instances holds but a brief
authority. He does not wish to parade it in such a manner as
might seem offensive. He is in danger of seeming to parade it if
he goes beyond what is necessary in regulating the conduct of the
lawyers who may appear before him. The judge who keeps a rigid
watch on the examination of witnesses to exclude all improper
testimony, whether objection be made to it or not, declines to
hear argument on matters that may appear to him too clear to
justify it, and is impatient when argument on doubtful points is
continued longer than he thinks worth while, may be respected,
but he will never be popular. Trials for these reasons are
longer in the United States than in England. Fewer summary
rulings are made. More questionable evidence is admitted. More
time is allowed to counsel in the argument of the cause, and more
freedom in arguing points that may seem immaterial to the court.
The broad liberty of appeal generally allowed is another reason
for hesitation on the part of trial judges to interfere more than
seems absolutely necessary with the management of a cause by
counsel. It is not merely the legal right of appeal but the
practice under it which is a peculiar feature of our judicial
system. A foreign lawyer often hesitates to cross swords with
the judge. He distrusts his own judgment if it differs from that
of the court. He defers to the opinion of the bench, not only as
stating the law of the case, but as probably stating the law of
the land. He therefore seldom appeals on minor points of
procedure, even if he could. In the United States probably one
case in ten of all that go to trial is carried up for review on
points of law; many of them mere matters of practice not
affecting the merits of the cause.
The American lawyer can also safely speak with freedom of the
conduct of the government or of high officials should it come in
question.
Those in any court, high or low, who hope for a reappointment
know that the best way to obtain it is to secure the good will of
the bar. The reputation of a judge depends on the opinion which
the lawyers have of him. The general public may be deceived as
to his character, ability and attainments; the bar cannot be.
In the public sessions of court there are few judges who are not
impressed with the necessity of maintaining the dignity of their
position as representing the power of the State. The lawyers
recognize this feeling as just. It is common for them to rise as
a body when the judge enters the bench. They find no difficulty
in using the conventional style of address of "May it please the
Court," or "May it please your Honor." When a ruling is made in
the course of a trial the lawyer, whose client is adversely
affected by it, accepts it without further discussion, simply
reserving his exception, if he have one, for purposes of review
in a higher court. If, in addressing the jury, counsel exceed
the bounds of professional license in commenting on testimony or
alluding to the character of the parties, the court will check
them without hesitation.
Less outward respect was shown toward the courts by the bar in
former times than now, and it often received less courtesy of
treatment from the bench. An incident occurring in Massachusetts
about the beginning of the nineteenth century may serve as an
illustration. Robert Treat Paine, a signer of the Declaration of
Independence, resigned his seat on the bench of the Supreme
Judicial Court in 1804, at the age of seventy, largely on account
of deafness. Naturally somewhat imperious in temperament, his
bearing toward the bar had seemed harsher from this infirmity.
Fisher Ames used to refer to him as _Ursa Major_, and once
told a friend that he should not go into court again, when Judge
Paine held it, without a club in one hand and a speaking trumpet
in the other. Theophilus Parsons, not long afterwards made Chief
Justice of the State, was arguing before him one day when the
judge, under the misconception into which a deaf old person so
easily falls, that the younger generation all speak hurriedly and
indistinctly, cried out, "Mr. Parsons, I tell you once for all,
take that glove off your tongue." "Certainly, Sir," was the
quick retort, "and may I beg your honor to take the wool out of
your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]
Some twenty years later Roger Minott Sherman, the leader of the
Connecticut bar, in trying a cause before an empty-headed judge
who had been put on the bench for no other apparent reason than
that his father was a man of distinction, quoted several English
authorities and was about to read from another when the judge
remarked that he need not take the trouble to read anything more
of that sort to him. "Then," said Mr. Sherman, "with your
Honor's permission I will read from it to the jury, and let me
say that it is an opinion of Lord Ellenborough, a Chief Justice
of England who rose to the bench by his own merits, and shone by
no reflected light."
One of the anecdotes of the Boston bar is that while Samuel
Dexter, one of the great lawyers of his day, was arguing a cause
in the Circuit Court of the United States before Justice Story,
soon after his accession to the bench, the court suddenly
interposed, as a certain principle was asserted, with "That
proposition is not law, Sir," to which Mr. Dexter retorted, "It
is the law, if your Honor please, and will finally be declared to
be the law by this court," as indeed it was later by Justice
Story himself.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 241.]
Such a passage at arms between court and counsel as took place in
either of these instances could now hardly occur.
Out of court there is no longer this distance between judge and
lawyer. While they will not talk over an unfinished case, one
that is finally disposed of is often the subject of free comment
by each. They are now entirely upon the same level in the
community. Officialism is put off when the court room is closed.
Socially they meet in the same circles and on the same footing.
It is considered not improper for a judge to accept the
hospitality of a lawyer concerned in a case before him, and even
a case on trial. The American rule in this respect is much less
strict than the English.[Footnote: See "Memoir of Chief Justice
Parsons," 208-211.]
* * * * *
CHAPTER XXIV
THE LAW'S DELAYS
The right to be heard before judgment, the right to have judgment
rendered only on due process of law, and the right in most cases
to a jury trial, necessarily make the course of justice slower in
this country than it need be in one where there are no such
guaranties in favor of those against whom the aid of a court is
invoked. The plaintiff, too, has corresponding rights. It was
found not so easy by Frederick the Great to enforce his famous
decree that every lawsuit in his dominions must be finished in a
year. In a freer land no such result is possible.
The power of the judge to expedite trials is also much less in
the United States than in most countries. They must be had
mainly on oral testimony. The testimony must be so given that
thirteen different men may each understand it. What the
witnesses may be allowed to tell, and what they cannot be,
depends on the application of numerous and artificial rules of
evidence. If there is a question as to whether this rule or that
applies, the judges sometimes invite and generally allow a
discussion by counsel. Appeals are liberally conceded. If
exceptions to any ruling of the court are to be made the basis of
proceedings in error, they must be carefully noted at the time,
and afterwards made the subject of a lengthy set of papers.
Many trial judges are young men of little experience either on
the bench or at the bar. They are learning the law by
administering it. Such men cannot decide controverted points in
a moment, and shut off all unnecessary discussion in the manner
that might be expected and tolerated from judges of the first
rank. It is hardly probable that they will always come to the
right decision at last. Hence it is that so great a liberty of
appeal is granted in every American State.
Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate
whose appeal is heard within three months and decided within six.
Oftener he must expect to wait a year or two. During a long
course of years an appeal to the Supreme Court of the United
States could not be reached for argument in regular order in less
than three years after it was taken. In Nebraska, for some time
prior to 1901 the Supreme Court was so overwhelmed with business
that it could not hear a cause until five years after it was
docketed.
In 1882 a brakeman was injured on a New York railroad. He
brought suit against the company, and in 1884 recovered $4,000
damages. The judgment in 1886 was reversed on appeal. On a new
trial he got a verdict for $4,900. This was appealed to two
courts successively. The first affirmed and the second reversed
the judgment. In 1889, there was a third trial, at which the
company won. Two appeals by the brakeman followed. On the first
the intermediate appellate court, in 1894, decided against him.
On the second, in 1897, the court of last resort decided for him.
For the fourth time the case came on in the trial court, and a
verdict for $4,500 was recovered. The company appealed and with
success. A fifth trial gave him a verdict for $4,900. This,
too, was set aside on appeal. A sixth trial followed with
exactly the same results. In 1902, the seventh and final trial
took place. The verdict this time was for $4,500. The company
appealed again, but was defeated.[Footnote: Case and Comment, X,
50.] A lawsuit that embraces seven appeals and lasts for twenty
years is, of course, a rarity, but the system of administrative
justice under which such things are possible is faulty somewhere.
The right of trial by jury is one cause of such delays. The
broad right of appeal is another. The want of skill and
experience on the part of trial judges and trial lawyers may be a
third. The twenty-three English judges of the High Court of
Justice (with the aid of masters in chancery and referees)
actually try and determine about fifty-six hundred cases a
year.[Footnote: This was the average number for each of the years
1900 and 1901.] Each judge, therefore, on the average,
dispatches over two hundred and forty. No American judges under
our American system of practice could do as much and do it well.
We tolerate a succession of motions and objections and arguments
from the bar which English courts would not. We often take more
time in impanelling a jury than they would in trying the case.
The American bar, unlike the English, is not so constituted that
a certain number of its members are professedly devoted in a
special way to the trial of cases. The English barrister in
active practice may almost be said to do nothing else. His
standing and his income depend on his ability to try case after
case in rapid succession. Others are responsible for their slow
and careful preparation. He is responsible for their quick and
effective dispatch when the preparation is ended. He becomes
necessarily familiar with the _technique_ of a trial at
every point. In examining a witness, he strikes directly at what
is material, and would be ashamed to appear ignorant of what that
is. In argument he stops when he is through. The ordinary
American lawyer who tries a case to-day, draws papers
constituting a partnership or a corporation the next, and
prepares an opinion on the construction of a will the day after,
has not that concentration of knowledge which comes from
concentration of occupation.
The art of making a clear and definite statement of the points in
controversy on paper is also one not sufficiently cultivated by
the American bar. Without it the system of "code pleading,"
which has in most States supplanted the rigid and often
meaningless forms of the common law, leads to confusion and
obscurity. The claims of each party ought to be, but seldom are,
so presented that matters of law are, so far as possible, kept
distinct from matters of fact, and what he means to prove is set
forth, but not the evidence by which he hopes to establish it.
This looseness of pleading leads to endless motions to expunge
this and correct that, and time of the court is taken up by the
preliminaries of trials which, if the lawyers used more care or
had more skill, would be devoted to the trials themselves. Still
worse is it when such motions are postponed until the case comes
on for final hearing, and witnesses and juries are compelled to
wait during tedious arguments over questions of mere form.
In our great centers of population business under these
circumstances almost necessarily accumulates too fast for the
courts to handle it.
In bringing on criminal trials there is little delay, unless at
the request of the accused, and for what seems good reason. Our
Constitutions generally provide that whoever is to be tried on a
criminal charge shall be tried promptly, and the practice of the
courts conforms to this rule. The broad right of appeal,
however, for errors of law on the part of the court may serve to
postpone the execution of a sentence, and too many new trials are
granted by the courts for steps in procedure in matters of a
purely technical character. Delays from this cause are, however,
comparatively infrequent. Most convicts are too poor to take
advantage of it. Most also know that their sentence is just, and
are anxious only to have it executed and through with as soon as
possible. In hardly one case in a hundred is an appeal taken or,
if taken, pursued to the end.[Footnote: See Chap. XVII.]
In our largest cities the disposition of criminal business
occupies the time of several judges, and the prosecuting officer
has a staff of professional assistants. In cases of such
importance as to call for his personal management a postponement
is occasionally inevitable. In Chicago, in December, 1903, over
a thousand cases were awaiting trial in the Criminal Court.
It tends to expedition in the trial of any cause if it is heard
before a judge especially familiar with the class of questions
which it involves. Criminal courts, particularly in cities, are
largely held by judges whose work is either wholly or mainly
confined to them. This helps greatly to prevent delays in such
tribunals. For a similar cause admiralty business is dispatched
with great rapidity by the District Judges at our principal
ports, and patent causes by the Circuit Courts.
In the criminal courts of New York City in 1903, there were about
3,000 prosecutions on which indictments were found, and the
defendant committed for want of bail. In most of these cases
there was a plea of guilty, but counting them with the others,
the average time as to all which elapsed between the original
arrest and the final judgment was only eight days. During the
same time those who gave bail were generally tried within three
months from their arrest.[Footnote: Nathan A. Smyth in the
Harvard Law Review for March, 1904.]
An insufficiency of judges was formerly one great cause of delay,
but the modern tendency has been to have too many, rather than
too few. In the Court of Chancery in Virginia (which was held by
a single Chancellor, then a man seventy-six years old) there were
in 1802, 2,627 causes pending at one term.
In the city of New York a jury trial in civil causes cannot
ordinarily be reached until two years after they are brought. In
its principal trial court between four and five thousand cases
are annually disposed of, and in 1903, there were nearly ten
thousand on its docket. When the criminal courts in the borough
of Manhattan--the greatest division of the city--were opened in
October of that year, there were nearly five hundred different
prosecutions to be disposed of, and a hundred and sixty-seven
prisoners awaiting trial who had been unable to procure bail.
In the county containing the city of Chicago (and which contains
little else), there were in 1903 twenty thousand civil cases on
the dockets of the courts. This mass of business it would
require more than two years and a half to dispose of with the
number of judges then provided, were no new suits instituted to
divide their attention.
A very large part of the cases tried to the jury are claims for
damages for accidental injuries received by employees in the
course of their service. In the county in Missouri including
Kansas City there were, in December, 1903, over fifty-one hundred
civil causes on the dockets of the various courts. The
population of the county was less than two hundred thousand.
About three-fourths of the cases were against corporations for
injuries received by their employees. The defendant in such an
action is generally in no hurry to bring it to trial. The
plaintiff often is not. He may have a weak case, brought in the
hope of forcing a settlement. He has probably no money to pay
his lawyer for trying it, and finds it hard to get together what
is necessary to summon his witnesses and provide expert testimony
as to the nature of his injuries.
Whenever it is tried, however, he is sure to want a jury, for if
the case is a good one a jury is apt to give larger damages than
a judge, and if a bad one a jury is less likely to appreciate its
weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156
Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A
jury trial is much slower than a trial before a judge, although
the decision is apt to come more quickly. It also facilitates
appeals by necessarily presenting more occasions for error. A
judge in trying a cause, if evidence of doubtful competency is
offered, can admit it provisionally and exclude it afterwards if,
on deliberation, he thinks that it should not be considered.
With a jury this is impossible. There must be an immediate
ruling one way or the other. In the charge to a jury, also,
opportunities are offered for exceptions which do not exist if
the cause is to be decided by the judge alone. He does not have
to instruct himself in public. He can study the case in private
at his leisure.
A cause of delay formerly existed in several States which arose
from the method of computing the costs taxable against the losing
party. They included, by statute, a certain sum, say twenty-five
or thirty-three cents a day for each day's attendance at court by
the prevailing party. This was construed to mean each day during
which the action lay in court, since upon any of them it might by
possibility be called up, and the client was always represented
by his attorney of record, a notice to whom was a notice to him.
Christian Roselius, one of the leaders of the New Orleans bar in
the nineteenth century, once said that he had spent a fourth of
his life in the court house waiting for his cases to be called.
The lawyers, as the duty of attendance fell on them, generally
considered this allowance as their perquisite. An attorney with
a large docket received, therefore, a number of dollars for every
day the court sat, and the longer the term lasted or the more
terms to which a cause was carried over, the larger was his gain
if his client ultimately obtained judgment, and the defendant was
of financial responsibility. This system was not universally
discontinued until the last quarter of the nineteenth century.
A few States, by statute or constitutional provision, set a
certain time within which a decision must be rendered after the
trial. California gives ninety days; Idaho (Const., Art. V.,
Sec. 17) thirty. A sanction for the law sometimes provided is
that the judge cannot draw his salary until he has made oath that
he is in no default.
* * * * *
CHAPTER XXV
THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY
Americans are proud of their country and of their State. They
are proud of their scheme of government, by which an imperial
world-power has been created for certain national and
international purposes, resting on a collection of States, each
of which is an independent sovereignty, absolutely as respects
the others, and for the most part as respects the United States.
They are in the mass an educated and intelligent people. The
public schools have thus far been found adequate to Americanizing
the children of foreign immigrants. The colored population of
the South stands largely by itself, and constitutes no active and
self-moving force in matters of political concern. An educated
and intelligent people living under a government of written law
of their own making cannot but know how vital it is that this law
should be fully guarded and fairly administered. Americans have
become distrustful of their legislatures. They believe that much
of their work is ill-considered, and that some of it has its
source in corruption. They are far removed from the chief
executive magistrates, and from the sphere in which they move.
The President comes nearer to them than the Governor of their
State because he stands for more, and personifies their country,
but it is not from him that they look for peace and safety in the
ordinary affairs of life and home. They look for these to the
courts, and they know that they will seldom look in vain.
Only an educated and intelligent people can live under a written
Constitution. It requires of those whom it governs a certain
spirit of conservatism, a certain sentiment of reverence for
ancient institutions. Our Constitutions are mainly the work of
former generations. We may amend or recast them, but the
substantial framework will remain the same. Our Declarations of
Rights speak the language and the lessons of the eighteenth
century. Their provisions are almost wholly aimed at our
executives and legislators. They give guarantees which the
judiciary only can enforce. No people can steadily prosper
unless a just mean be preserved between reform and conservatism
in the administration of the government. The courts stand for
conservatism, but by their recognition of custom as law, and
their free use of logic and analogy to develop law, they also
keep a door open for the entrance of reform.
The courts also come very close to the people. They are to be
found in every county and almost every township. They settle the
estates of the dead. They protect the living. They act largely
through juries made up of the people and returning to them after
a brief term of public service.
All these considerations put Americans in a friendly attitude
toward the judiciary. It makes less show of authority than the
policeman or the militiaman. But the people feel that it has
authority and is ready to exercise it always to secure that right
be done. When a plain man who thinks that he has been wronged by
another declares that he "will have the law on him," it expresses
his conviction that he can get justice from the courts.
The creation of the judiciary of the United States was welcomed
at the outset by all.[Footnote: See "Life of Peter Van Schaick,"
435.] It was not until party feeling had become intense that
Republicans found it difficult to look with approval on a force
evidently becoming stronger every day, and that Jefferson could
describe the Supreme Court as the sappers and miners who were
gradually undermining the foundations of American
liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.
"Works of Thomas Jefferson," VII, 192.]
Of the political questions which engaged attention over the whole
country from time to time from the adoption of the Constitution
to the close of the Civil War, almost all bore some relation to
the institution of slavery and derived their real vitality from
that connection. Slavery depended on State laws. Unless the
authority of each State to allow and regulate it were preserved,
its countenance would be endangered. This was largely the source
of the "State Rights" cry.
Almost all the powers which the United States possessed the
States had lost. For thirteen years each had been in the
position of a full sovereign. Its courts had exercised
jurisdiction over all kinds of actions. Now a new set of courts
had risen up having over many actions an equal jurisdiction, over
some a superior one.[Footnote: See Chap. X.]
The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'
Reports, 419.] in 1793, and the institution of similar suits
against other States of the South showed that the Supreme Court
of the United States claimed authority to render a money judgment
against a State, which meant that it could then issue an
execution to collect it by levying on the property of the State.
In 1798, the Alien and Sedition Laws were passed, and a crime
previously cognizable exclusively in the State courts was made a
subject of prosecution in those of the United States if it
affected an officer of the United States. A member of Congress,
Matthew Lyon, of Vermont, who was sentenced in the Fall of that
year to a fine of $1,000 and four months in jail for writing of
the President and Senate, that his message to Congress in 1797
was a bullying speech, which the Senate in a stupid answer had
echoed with more servility than ever Geo. III. experienced from
either house of parliament, served his time and paid the fine,
but for the amount of the latter he was reimbursed by Congress in
1840.
The case of Jonathan Robbins[Footnote: See Chap. III.] in South
Carolina in 1799, showed that the Circuit Court at the request of
the President could surrender an American citizen to a foreign
government to be carried off and tried for murder. This and the
sentence of Lyon became immediately the subject of hot discussion
in Congress, and both contributed to the political revolution
which put Jefferson in the seat of Adams in 1801.
The creation by the outgoing party of places for eighteen new
Circuit Judges appointed by Adams in the last month of his
administration strengthened the popular feeling that the courts
of the United States were too powerful. That Act was at once
repealed,[Footnote: See Chaps. IX, XXII.] and also the provision
for the next regular term of the Supreme Court. The latter
measure was taken to prevent any legal proceedings in the Supreme
Court to secure its intervention in behalf of the displaced
judges.
The new circuit system had been swept away, but the full bench at
Washington, headed by Marshall, remained. The unsuccessful
impeachment of one of them followed in 1804.[Footnote: See
Chap. III.]
His acquittal the next year, and that of a majority of the
Supreme Court of Pennsylvania,[Footnote: McMaster, "History of
the United States," III, 159.] who were impeached there at the
same time for punishing a libel on certain proceedings before
that court by a sentence of imprisonment, satisfied all that it
was practically impossible to secure the removal of a judge
except for the gravest cause. Judicial independence had been
secured by the very struggle to defeat it. What has won in any
contest finds favor with the multitude. They admire a victor.
From this time on the courts both of the United States and the
States grew in public esteem. When those of the former seemed to
trench on the fields of State sovereignty, particularly in the
South, the inroad was resented.[Footnote: See letters of Marshall
alluding to this, in "Proceedings of the Massachusetts Historical
Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern
State it was even opposed by force.[Footnote: See Chap. X.] As
late as 1854 the supremacy of the Supreme Court of the United
States in expounding the federal Constitution was contested by
the courts of a Northern State; there also in a case growing out
of the system of slavery.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]
Another decision by the same tribunal of a similar nature--that
in the Dred Scott case[Footnote: Dred Scott _v._ Sandford,
19 Howard's Reports, 393.]--greatly strengthened the confidence
of the Southern people in the federal courts, and weakened that
of the North.
It did much to bring on the Civil War, but the result of that
struggle was to confirm the authority not only of the Supreme
Court but of the Supreme Court as it was under Marshall and his
original associates. In 1901, the centenary of his appointment
was celebrated all over the country, North and South. Such a
tribute was never paid before in any country to the memory of a
judge. His services were commemorated for the very reason that
led Jefferson to depreciate them--because they led to the
establishment of a strong national government with a controlling
judicial authority adequate to protect it within its sphere from
interference or obstruction in any way by any State.
Confidence in the State courts has also been strengthened during
the last century. It was greatly shaken at the time of the fall
of the Federalists. They had lost the executive and legislative
power, but they retained the judicial, and the Republicans found
it hard to tolerate courts that represented the political ideas
of a former generation. This continued long after the extinction
of the Federalist party, and often extended to distrust of judges
elected by the Republicans who were thought to have become
affected by the influence of their senior associates.
In the New York constitutional convention of 1821, Peter
R. Livingston appealed to the lawyers present to say "whether it
has not been the case that when a man in the country of any
political standing has had a suit depending at a circuit court,
he has not consulted with his counsel to know what judge was to
preside at the circuit; and whether he has not been frequently
told that a political judge was to preside and it would not do to
let the cause come on."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 618.] Who, he asked, were the
present judges of their Supreme Court? "Judge Spencer came into
office under a republican administration; Judge Van Ness was
appointed by a mongrel council; and the elevation to the bench of
Judge Platt was occasioned by the defection from the Republican
ranks of a man elected to the Senate from the county of Dutchess,
who acted the part of a political Judas, and sold his party. We
have been bought and sold--there is not one of these men who
would have been on the bench if our administration had been truly
republican.... There is not a man in this Convention who is a
republican of any standing or character who would like to have
his liberty or property placed in the hands of a political judge
of a different party."[Footnote: Reports of the Proceedings and
Debates of the Convention of 1821, 620.]
The judiciary may also have suffered somewhat in the esteem of
dispassionate observers on account of its attitude in many of the
States toward the financial enterprises in corporate form, in
which so much money was made and lost in the first third of the
nineteenth century. In commenting on a judicial opinion in a
Southern bank case, the author of one of our leading American
legal treatises, himself once a judge, has referred to this
period in these plain words:
Decisions of this kind, which were not infrequent in the era of
State banks of issue, can only be "reconciled" with modern
holdings in view of the well-known fact that nearly all the
politicians were creditors of those political banks, by notes
often renewed, at the time when they finally suspended, and
that all the judges were politicians. It can hardly be doubted
that in many of those semi-barbarous decisions the judges were
either rendering decisions to exonerate themselves from their
liabilities to the insolvent banks or to exonerate powerful and
influential politicians upon whom they depended for the tenure
of their offices.[Footnote: Thompson on "Private Corporations,"
V, p. 5306.]
It is quite probable that an insensible bias in favor of friends
and neighbors may have had its share in producing the judgments
to which reference was thus made, but quite improbable that they
were the fruit of baser motives. Independently of other
considerations, every judge is watched by sharp eyes in every
step which he may take in the progress of a cause. He acts in
view of the bar at large, and of two of their number in
particular, one of whom probably will be disappointed by his
decision, and solicitous to ascertain and employ every reasonable
ground for overturning it.
The Bar Association of the country have exercised a large
influence during the past thirty years in maintaining public
confidence in the purity of the bench.
It is extremely rare that suspicion of corruption attaches to a
judge; and rarer still that it attaches justly. Jurors are
occasionally found who are guilty of it, and more who, without
being chargeable with so black a crime, are more interested in
serving a friend than in doing justice. As a whole, however,
American courts are clean-handed throughout, and the people know
it.
The judiciary has been popularized in most States by
constitutional provisions replacing tenure during good behavior
by stated terms of years, and appointment by the Governor or
legislature by election by the people.
The powers of judges have been on the whole increased. The only
matter in which they have been substantially cut down is that of
punishment for contempt. Serious attempts have been made to
abridge their jurisdiction over injunctions, but without success.
These attacks have come from those representing certain labor
unions. The more thorough organization of working-men in all
trades and callings during the last half century, and the
development of collectivism as a working theory, have produced a
class of leaders among them who regard the courts as manned by
representatives of capital and controlled in the interests of
capital.[Footnote: The number of the _Pennsylvania Grange
News_ for Sept., 1904, states this view at length.] As a
judicial office can only be properly filled by one who has had a
legal education and as, aside from a few petty magistrates and
local tribunals, practically all our judges are trained lawyers,
it necessarily follows that they cannot belong to the class of
working-men in the general acceptation of that term. Their
education has cost money and is generally the fruit of capital.
The judges of the higher courts are usually men of some means.
If they were not, they could not have afforded to accept their
places. But the people at large do not believe that only the
poor man can be relied on to deal justly on the bench. The mass
of working-men do not believe it. They do believe that courts
have too much power over them in their associated relations.
They are in favor of cutting off the right of issuing injunctions
to suppress boycotts or "picketing" in case of strikes. But they
know that it is from the legislatures and not from the courts
that this must be sought.
The federal judges stand higher in public estimation than the
State judges of corresponding rank. This is partly on account of
the paramount authority of the government which they represent.
It is partly also because there are none of them who occupy the
lower grades of judicial station with a petty jurisdiction over
petty controversies. It is more because of their permanence of
tenure. This removes them from that field of criticism which
surrounds every public officer who holds for a term limited in
duration, and is always in the position of a candidate for
re-appointment.
Our methods of judicial appointment are not such as always to
exclude political feeling from the bench either of the States or
of the United States, but the people know that there is less of
it there than in any other department of governmental action.
President Hadley of Yale University has thus expressed what is
the general view of the work of the courts held by thoughtful men
in the United States; and it is they who in the long run form and
lead public opinion.
"On the whole, federal and State courts alike have been not only
a protection, but the one really efficient protection of minority
interests against oppression by the majority.... It has more
than once happened that an impatient majority has denounced these
courts as instruments of partisanship. The anti-slavery leaders,
the soft money leaders, and the labor leaders have in turn taken
exception to their utterances, and even ventured to impugn their
motives. But I think that most intelligent men who know the
history of the country will say that our courts have been the
real bulwarks of American liberty; and that while Hamilton and
his associates would be somewhat disappointed in the working of
the machinery of legislation and administration if they could see
it in its present shape, they would be filled with admiration at
the work which has been accomplished by the judiciary. I believe
it to be the judgment of sober-minded men that the courts have
furnished the agency which has guarded us against excesses, and
have saved the American republic from the necessity of repeating
the successive revolutionary experiences which France underwent
before she could attain to a stable democracy."[Footnote:
"Freedom and Responsibility," 23, 24.]
This confidence in and respect for the judiciary as a whole has
increased with the general advance of the country in population
and wealth. There have been larger questions with which to deal,
and the courts have been found adequate to the task. But at the
same time the personal consequence and reputation of every
individual American judge has been steadily decreasing. As
States multiply and the range of litigation widens, the work of
judicial exposition of legal principles comes to be shared by so
many hands that what any one man does is of comparatively small
account. There is no room for star players upon the stage.
Broad as it is, it is too crowded for one to make a conspicuous
place for himself and stand as Marshall or Story, Kent or
Parsons, did, apart from his fellows. Popular confidence is now
not placed in courts because this or that man is the ruling
spirit in them. It is impersonal and attaches itself to the
institution of the judiciary as, all things considered, the best
guaranty of good government in the United States.
This spirit of confidence is, of course, not universal and
unqualified. It is often not found in bodies of working men,
associated as Labor Unions. They have repeatedly found a court
enforcing public order in a way that interfered with their manner
of conducting a strike. They have been met by injunctions, and
more often by criminal prosecutions. The membership of a Labor
Union, in many parts of the country, is apt to be largely of
foreign birth. The leaders not infrequently know little of the
English language and less of American institutions. They have
been led, in their native land, to regard the law and its
officers as their enemies, and they look at them in the same way
here. It is believed, however, that a large majority of the
Unions regard them with respect, and it is certain that such is
the prevailing feeling of non-union men.
But that the public trust in our judges is less than it was when
the first edition of this work was published,[Footnote: See
_supra_, page 340.] is indicated by the favor with which, in
many quarters, the doctrine of the "judicial recall" has been
received. The dangers incident to its practice are obvious, and
seem far to outweigh any attending advantages.
In the United States, of all lands on the face of the earth, it
is important that the judges should act with resolution and
without thought of the consequences personal to themselves.
Elsewhere in form, but here only in fact, are judges armed with
the power of declaring legislative action void which is in
conflict with a higher form of law, that proceeded directly from
the people, and mainly from the people of a former generation.
To expose one who exercises this power to immediate displacement,
by a popular vote--largely, perhaps, composed of his political
opponents--is to invite the enactment of questionable statutes,
and still worse--to weaken the attractions of the bench for able
and honest men. Our judicial terms, in most of the States, are
already too brief for the public good. To make them determinable
at the will of the electoral constituency tends powerfully to
keep good lawyers at the bar, who might otherwise have done honor
to a judicial station.
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