The American Judiciary Part 10

There is a certain spirit of comity to which courts often give expression in rendering a.s.sistance to courts of other countries.

This judicial comity has been defined as "the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings."[Footnote: "Dict. of Philosophy and Psychology,"

_Comity_.] As between courts of the different States in the United States this sentiment naturally is particularly strong.

In pursuance of it, it is usual, if there has been a judicial appointment in one State of a representative of the law to administer an estate of any kind, part of which is in another State, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. An administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever State property or rights of action belonging to it might be found. A receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some States such an officer has been permitted to sue for it under his original appointment.

The general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[Footnote: Hale _v._ Allinson, 188 U. S. Reports, 56.]

A receiver of an insolvent corporation often finds that it has shareholders living in several different States, who have not fully paid in their subscriptions to its capital stock. In such case, if the statute of the State under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other States as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. On this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. He sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47 Atlantic Reporter, 711; 84 American State Reports, 161.]

The sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between States both aids in the enforcement in one of rights acquired under the other,[Footnote: Finney _v._ Guy, 189 U. S. Reports, 335, 346.] and in the prevention by one of acts which would infringe on prohibitions created by the other. Thus, if a corporation of one State has been organized to do business in another, it may be enjoined in its home State from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[Footnote: Coler _v._ Tacoma Railway and Power Co., 70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]

As no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a State can summon before it witnesses not found within its jurisdiction, who live in another State. This, in view of the free intercourse and trade between all parts of the United States, would work intolerable hardship had not statutes been pa.s.sed by every State permitting testimony to be taken outside of its limits by written deposition for use in civil cases.

So far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our State Const.i.tutions that the accused must be confronted by the witnesses against him. Most of the Northeastern States, to meet this difficulty, have pa.s.sed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another State to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[Footnote: New Hampshire inaugurated this legislation more than sixty years ago. Public Stat., ed. 1842, 382. Most of the statutes apply only to adjoining or neighboring States, and some require reciprocity on their part.]

Lawyers of one State have no right to practice in any other. By courtesy and on motion of a member of the bar, it is customary for the courts of other States to allow them to partic.i.p.ate in the conduct of any particular cause. In some States, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original State for a certain number of years, and otherwise provides for an examination into their legal attainments.

CHAPTER XII

TRIAL BY JURY

To have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. The American colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the English plan. In the colony of New Haven there were no juries. In all the New England colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. The defeated party had what was styled the privilege of a review. This was a new trial before another jury, either in the same court or a higher one. If he lost his case again, it was the end of the litigation. If he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[Footnote: Bissell _v._ d.i.c.kerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]

In criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[Footnote: Statutes of Connecticut, ed. 1715, p. 131.] South of New England there was no such radical departure from the common law, but there were before the Revolution variations of considerable importance.[Footnote: The _Federalist_, No. Lx.x.xIII.]

Instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. This is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. Such a jury is more carefully selected, with the a.s.sistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. They are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. Prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[Footnote: Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports, 621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports Annotated, 911.]

The requirement of unanimity on the part of the jury in civil causes, which we have inherited from England, is indefensible in principle. In practice, it has saved the inst.i.tution from destruction. No one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. But among that number of persons there can hardly fail to be one or two of superior character and intelligence. These, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. If the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. Not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. It is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker.

In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction.

In several States verdicts in civil causes by a three-fourths vote are permitted. This radical change is not likely to become general.

Its best defense is that temptations to corruption are thus removed. So long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote.

In 1899, seven of the bailiffs in attendance on the Chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[Footnote: Report of the New York State Bar a.s.sociation for 1904, 51.]

The Anglo-American jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course.

In the early judicial history of the American colonies juries were less under the control of the judge than they are now.[Footnote: See Chap. XIV.] In some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury.

The general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. This often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. Still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. Without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions.

That there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent.

The judge has at common law and by practice in most American States a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. It is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. They feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the State. Sometimes this power is abused. The judge desires to indicate a decided opinion. He fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. He therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. Any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[Footnote: See Metropolitan Life Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68 Northeastern Reporter, 4.]

If the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter, 765.]

The American colonies were settled at a time when the English criminal code was extremely harsh, and the English judges were disposed to administer it in such a way as to favor the crown.

If the government promoted a prosecution, there was little hope for the defendant, except from the jury. The courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. This was the occasion of the Charles James Fox Libel Act of 1792, and of many const.i.tutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of Not Guilty.

It was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"

258, 401.] In some of the States, a charge to the effect last stated is now sometimes required by statute.

A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists.[Footnote: Commonwealth _v._ Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156 U. S. Reports, 51, 71.]

It is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written Const.i.tutions. Most crimes are defined by statute.

It is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconst.i.tutional. If it be, the accused is ent.i.tled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done.

Any such claim must be disposed of by the court, in order to give the Const.i.tution its due supremacy.[Footnote: State _v._ Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61 American State Reports, 30.]

Mr. Justice Baldwin of the Supreme Court of the United States came to the bench, in 1829, strongly inclined to minimize the power of the federal judiciary. In one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[Footnote: United States _v._ Wilson, 1 Baldwin's Reports, 109.] It was not long before he found himself compelled to retreat from his position.

A man was being tried before him for forging notes of the United States Bank, and his counsel claimed an acquittal because the law incorporating the bank was unconst.i.tutional, reading to prove it the veto message of President Jackson, with the accompanying doc.u.ments. To the Jackson Democrats on the panel this was quite an imposing argument, and Mr. Justice Baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an Act of Congress as invalid was virtually to give us a country without a Const.i.tution and without laws.[Footnote: United States _v._ Sheve, 1 Baldwin's Reports, 510, 513; Pennsylvania Law Journal for November, 1846, p. 9.]

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

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

The States which guard these most closely are those in which there is the most jealousy of anything like a standing order, and the widest scope of popular election. Georgia was the State, among the old thirteen, in which these characteristics were most marked. Her first Const.i.tution of 1777 expressly threw the power of determining the law into the hands of the jury in every case, though they were allowed to ask the judges holding the court for their opinion, in which case each judge gave his in rotation.

The party who lost his case could demand a new trial before a special jury. The ordinary jury were to be sworn to bring in a verdict according to law and the evidence, provided it be not repugnant to the Const.i.tution. The special jury were to be sworn to bring one in according to law and the evidence, "provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this Const.i.tution, of which they shall judge." Apparently the meaning of this was that while the decision of the first jury as to the law could be revised by a second, that of the second, however contrary to the highest law, could not be.

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

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

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

The right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. If not expressly claimed, it is by the rules of practice in some States treated as waived. The number of civil causes tried to the jury, taking the country as a whole, is declining. The decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[Footnote: See Paper by Justice Henry B. Brown, in the American Bar a.s.sociation Report for 1889, p. 265, on "Judicial Independence."] or perhaps to that confidence in the case of a former generation. Tradition and custom have a large influence on whatever pertains to the practice of law. In several of the States a majority of the civil causes which might be tried to the jury are not: in Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency in England is also toward dispensing with the jury in ordinary civil trials. Over a million cases are brought every year in the English county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over 5 in value either party may claim it.[Footnote: Maitland, "Justice and Police," 28, 29, 54. For small cases the jury is one of five, but their verdict must be unanimous.]

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

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

The right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. If, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. It may inquire into this by the aid of a jury, but such a jury need not consist of twelve. The inquiry may also be conducted by the judge alone.[Footnote: Dyson _v._ Rhode Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter, 771.]

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