The American Judiciary Part 14

In the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial.

Whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. Each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. If a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. In grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. A capable judge will keep such an inquiry within close limits.

In 1824, an indictment for murder was found in Kentucky against a son of the Governor. The case was one which excited great public interest, and was talked over from one end of the State to the other. The result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. The legislature was finally appealed to for relief and pa.s.sed a statute that an opinion formed from mere rumor should not be a ground of challenge. The case was then, in 1827, taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[Footnote: Niles' Register, x.x.xII, 357, 405; x.x.xVIII, 336.]

When a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. This has sometimes been carried to the extent of trickery, particularly in some of the Southern States. Agents have been sent over the county to see every man capable of jury service. There is some ostensible reason given for the call. He is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. This naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained.

In every criminal case the defendant's guilt must be proved beyond a reasonable doubt. A mere preponderance of evidence is not enough. In other respects the rules of evidence are applicable which obtain in civil cases.

If a verdict of Not Guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the State for errors of law committed on the trial. No such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. This would be to put the defendant twice in jeopardy, which our Const.i.tutions generally forbid. Even under the practice prevailing in the Philippine Islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.]

If the verdict is one of Guilty, the sentence is p.r.o.nounced by the judge. He generally has a broad discretion as to the extent and nature of the punishment. For many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. For most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. In a number of States of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circ.u.mstances of the offense, the character of the prisoner, and his conduct since his sentence.

A considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of a _minimum_ term. It is doubtful if such a change would satisfy the const.i.tutional requirement of a trial by jury. That in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. Can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? Judgments are to ascertain justice. To do this they must be themselves certain. In a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. It may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. If so, ought not the fate to be meted out to them by judicial authority? Can anything less than that be considered as due process of law?

An experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. The sentence is not p.r.o.nounced until they have been fully heard as to all circ.u.mstances of extenuation, nor until the government has been heard both as to these and as to any circ.u.mstances of aggravation. The sentence, if the offense be a grave one, cannot be p.r.o.nounced except in the presence of the convicted man. He has an opportunity for the last word.

Judges who are neither able nor experienced frequently impose sentences too light or too severe. We have too many such judges in the United States. The real remedy for the evil is to choose better ones. As between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. He ought therefore to be best able to fix the term of punishment.

The punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. For graver offenses both may be inflicted: for murder, and in some States for a very few other crimes the penalty is death. The policy of the older States long was to require those whose offenses were directed against property to make good the loss of the injured party. Whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. Every colony used it. It was authorized by the original Act of Congress in 1790 on the subject of crimes, and was not abolished for the courts of the United States until 1839. It was provided for in the early statutes of most of the States, and in some still is. Until 1830, it was the only mode of corporal punishment allowed in Connecticut for the general crime of theft. For boys it is often the only punishment that can properly be administered. To fine them is to punish others.

To imprison them is, in nine cases out of ten, to degrade them beyond recall. Virginia, in 1898, reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. Such a statute seems absolutely un.o.bjectionable from any standpoint. It is often a.s.serted that whipping is a degrading and inhuman invasion of the sanct.i.ty of the person. To shut a man up in jail against his will is a worse invasion. But as against neither is the person of a criminal convict sacred. He has justly forfeited his right to be treated like a good citizen.

Whether whipping is a degradation or not must depend much on the place of its infliction. The old way in this country, as in England, was to inflict it in public. This puts the convict to unnecessary shame. Let him be whipped in private, and his only real degradation will be from his crime. So inhumanity is needless. A moderate whipping only should be allowed. That is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement.

Of late years there has been a decided movement in the United States toward a return to the penalty of whipping for atrocious cases of a.s.sault or offenses by boys.[Footnote: See Paper on "Whipping and Castration as Punishments for Crime," _Yale Law Journal_, Vol. VIII, 371, and President Roosevelt's Message to Congress in December, 1904.] It is probable that it will find more favor hereafter in the South as a punishment for negroes.

Most of their criminals are of that race. The jails have no great terrors for them. They find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. But they are sensitive to physical pain. A flogging they dread just as a boy dreads a whipping from his father, because it hurts. The South may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. No such criticism could fairly be made. Confinement in jail is involuntary servitude, and involuntary servitude is slavery.

Whipping is a subst.i.tute for it: it saves from slavery.

In several of the Southern States, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. This plan prevails in Georgia and Arkansas to such an extent that very few are confined in the penitentiary. The convicts in these States are mainly negroes. When, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the State, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. Similar objections do not lie in their employment on State farms, and in North Carolina and Texas this has been tried with considerable success.[Footnote: See "Bulletin de la Commission Penetentiaire Internationale," 5th series, II, 179.]

Special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the States and in the District of Columbia during the past few years. The judge holding such a "Juvenile Court" or "Children's Court" is expected to deal with those brought before him rather in a paternal fashion. An officer is generally provided, known as a Probation Officer, to whom the custody of the accused is largely committed both before and after trial. He is to inquire into each case and represent the defense at the hearing. In case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended.

For errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. Until 1891 this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. It was so in Delaware until 1897.

In some States there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal.

It is there held that the common const.i.tutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. The writ of error is a stage in the original prosecution. One acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. What these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. Such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30 Atlantic Reporter, 1110; 48 American State Reports, 202; Kent, _J_., in People _v._ Olcott, 2 Day's Reports, 507, note.] In other States such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[Footnote: People _v._ Webb, 38 California Reports, 467.] This distinction is approved by the Supreme Court of the United States.[Footnote: Kepner _v._ United States, 195 United States Reports, 100, 130.]

For errors in conclusions of fact the defendant, in certain cases, has a remedy on a pet.i.tion for a new trial, but in no case can the State ask for one. This is true even though the trial was not had to a jury.

There is no doubt that new trials are too often granted in the United States in favor of those who have been convicted of crime.

Particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. A verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[Footnote: See Paper on "New Trials for Erroneous Rulings upon Evidence," by Professor J. H. Wigmore, in the _Columbia Law Review_ for November, 1903.] To release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment.

Appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. About eleven thousand persons were convicted of felonies in the County Courts of New York during the five years from 1898 to 1902, inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_ for March, 1904.] In Ma.s.sachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the Supreme Judicial Court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years 1902 and 1903 only two new trials were granted.[Footnote: _Law Notes_ for December, 1904.]

A comparison of the number of those put to death in the United States for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results:

Executed by Judicial Sentence. Lynched. Total.

1901 118 125 243 1902 144 96 240 1903 123 125 248

A large majority of those lynched were negroes, and met their fate in the South. It is extremely difficult to secure a conviction of those who take part in such acts of violence. They commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. The offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. Many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. Not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal.

Such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the United States are so often disgraced. It may be added that out of the Southern States they are quite rare, and in the Northeastern States substantially unknown. Of the one hundred and four lynchings in 1903, only twelve occurred in the North or West.

CHAPTER XVIII

THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT

A public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. Such an one is a judge only when he is holding court. When it is adjourned, no court exists of which he could be a judge. Justices of the peace and parish judges are officers of this description. But ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. To such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session.

The writ of _habeas corpus_, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. In the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." While sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it.

Statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. In such a case no very definite line is drawn between what judicial business the judge does and what the court does.

While the proper and normal const.i.tution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. A District Judge of the United States has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[Footnote: The U. S. _v._ The Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]

The judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. These are writs directing some one to refrain from doing a certain act. They generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. The need of an injunction is often immediate.

It would be worthless unless promptly granted. When, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. Whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. It may, in urgent cases admitting of no delay, be issued _ex parte_, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken.

A similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. If the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. So in case of an insolvent debtor his estate may, under certain circ.u.mstances, be placed in a receiver's hands by a summary order, issued out of court.

It may be added that by the statutes both of the United States and of all the States many powers of a _quasi_-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it.

CHAPTER XIX

APPELLATE COURTS

For each of the States and Territories as well as for the United States there is one supreme court of appellate jurisdiction.

The Supreme Court of the United States can entertain original actions of certain kinds.[Footnote: See Chap. IX.] A few also of the State supreme courts of appeal have a limited original jurisdiction. This is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature of _quo warranto_ and writs of mandamus.

The term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits.

It is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. In this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[Footnote: See the _Federalist_, No. Lx.x.xI.] If it does not appear from the record of the lower court that any of the errors that may be claimed (or "a.s.signed," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed.

Appellate courts are of many kinds. Some are such exclusively; some mainly. In others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. An appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. So the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is princ.i.p.ally occupied in the exercise of an original jurisdiction.

When the American colonies pa.s.sed into States, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. The judicial committee of the Privy Council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[Footnote: See Chap. I.] The uniformity of result thus obtained was acknowledged to be advantageous. It was now necessary to replace them by American courts of last resort, and it was not difficult in doing so to improve upon the English model. The time had come for separating, as far as it could conveniently be accomplished, judicial from political power.