The American Judiciary Part 15

Virginia was the first to act. A few days before the Declaration of Independence she adopted a Const.i.tution (under which the government, was carried on until 1830, though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a Supreme Court of Appeals whose judges should hold office during good behavior, and be ineligible to the Privy Council or General a.s.sembly.

This divorce of judiciary and legislature was not the plan universally followed.

New Jersey, in which as a colony the Governor and Council had possessed an appellate power like that vested in the English House of Lords, was so well satisfied with this arrangement as to continue it in her Const.i.tution of July 3, 1776, and up to the present time puts upon her Supreme Court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers.

New York, in her Const.i.tution of 1777, pursued a somewhat similar plan. Her highest court was one "for the trials of impeachments and the correction of errors." Its members were the Senate with the Chancellor and judges of the Supreme Court. When a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. This scheme was adhered to with little modification until 1846. What made it tolerable was that many of those elected Senators were naturally lawyers, and that to be in the Senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge.

Able and learned opinions were p.r.o.nounced by such men in exercising their judicial functions, and some of them in the New York reports are still frequently the subject of reference as clear and satisfactory statements of legal principles.

Connecticut, in 1784, when she inst.i.tuted for the first time a court of last resort, made it up of the Lieutenant Governor and the twelve a.s.sistants, and soon added to it the Governor himself.

A plan of this kind was likely to work in that State, as in New York, better than it looked. Lawyers by this time had come to fill most of the higher offices of state. Although the a.s.sistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. A majority of the a.s.sistants were always members of the bar. They were also Federalists from the beginning of party divisions in the country.

Naturally, the Republicans found such a state of things intolerable. All the power of government in Connecticut, said one of those who were celebrating Jefferson's second election to the Presidency in 1804, "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. These seven men virtually make and repeal laws as they please, appoint all the Judges, plead before those Judges, and const.i.tute themselves a Supreme Court of Errors to decide in the last resort on the laws of their own making. To crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are Judges."

Attacks like this were too just to be resisted, and two years later the Governor, Lieutenant-Governor and a.s.sistants were replaced by the Judges of the Superior Court.

Const.i.tutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. An appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. Under the Const.i.tution of the United States a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older States it cannot be in cases where it was not a matter of right prior to the adoption of their Const.i.tutions.

The verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up.

Where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the United States and in many of the States, be reversed on any point on appeal. For this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above.

Except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one.

In some States an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. In many States errors in law of petty courts may be reviewed in higher trial courts. In a few of the larger ones, as in the United States,[Footnote: See Chap. IX.] errors in law of the higher trial courts, in a considerable cla.s.s of cases, are finally disposed of in an intermediate appellate court, const.i.tuted to relieve the court of last resort from an overweight of business.

Ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. In some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. There are many judges who think that such a practice should be universally adopted. It would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. If one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. But the trial judge is not in a position that naturally leads to an unprejudiced judgment. The appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. The judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. He could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. In view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts.

The opinions and judgments of all American courts of last resort are officially reported for publication. At first they were not so reported. The earliest volume of American judicial decisions (Kirby's) was published in 1789 as a private venture. A few years later the States began to provide official reporters for their highest courts and soon a.s.sumed the expense of publication.

There are now more than fifty current sets of federal and State reports, the annual output being about four hundred volumes, containing 25,000 cases. The mere indexing and digesting of these reports for the use of the bench and bar has become a science. While consulted by comparatively few who are not connected with the legal profession, they const.i.tute a set of public records of the highest value to every student of history and sociology.[Footnote: See "Two Centuries' Growth of American Law," 6.]

It is the custom to prefix to the report of each case a head-note stating briefly the points decided. Ordinarily this is the work of the reporter. In a few States the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. Occasionally the head-note contains statements not supported by the opinion. In such case the opinion controls unless it is otherwise provided by statute.

It has not been the usual custom of English judges of courts of last resort to write out their opinions. They have commonly p.r.o.nounced them orally and left it to the reporters to put them in shape. The consequence has been that English reports have a conversational tone, and are not free from useless repet.i.tion.

This has been not only a matter of tradition but of necessity.

The English judges have always been few in number. Their time has been largely occupied in the trial of cases on the facts. It is only in recent years that certain judges have been set apart especially for appellate work.

American judges, on the other hand, are numerous. There is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate State. Combination of all of them into one empire would make it easy to reduce the judiciary to a t.i.the of its present numbers.

Their salaries are part of the price we pay--and can well afford to pay--for our peculiar system of political government, under which every State is an _imperium in imperio_.

The ever-increasing number of our States, each with a body of law not exactly like that of any other, and each with a written Const.i.tution which is its supreme law, requires a court of last resort in each. Experience tends to show that it ought not to be composed of less than five. There should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion.

In most of the States the court of last resort is not overworked.

In some the judges find time to do considerable circuit duty in the trial of original causes. This keeps them in touch with the daily life of the community, and is so far good. On the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. There is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. For these reasons it has now become common for the States to confine their appellate judges exclusively to appellate work. The time, therefore, which the English judge gives to circuit duty the American judge can give to writing out his opinions with all the art and care which he can command.

He speaks in most instances to a small audience--the bar alone.

But it is the bar of this year and the next year and the next century. Every volume of reports is part of the history of American jurisprudence and of American jurisprudence itself.

Occasionally some case arises which involves large political questions, or one of especial local interest. The opinion is then read more widely. The newspapers seize it: reviews take it up. It is not always easy to antic.i.p.ate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other States; and what drop unnoticed except by the lawyers in the cause. A judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. A certain style of American judicial opinion has thus grown up. It is dogmatic. It offers no apologies. There is neither time nor need for them. The writer speaks "as one having authority." He does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found.

He is as brief as he dares to be without risking obscurity.

It is undoubtedly true that many reported opinions are of a very different type. Some of Marshall's a.s.sume a tone of apology; but in his day it was needed. He struck at cherished rights of States, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the United States as a national force. Many of those of judges of inferior ability do not rise above their source. They are verbose, repet.i.tious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[Footnote: See, for instance, Mincey _v._ Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel, _ibid_., 415; Hall-Moody Inst.i.tute _v._ Copa.s.s, 108 _id_., 582.] possibly unfair in describing the claims that are overruled. But, as a whole, Americans need not fear to compare the reports of their courts with those of foreign tribunals. No judicial opinions, viewed from the point of style and argument, rank higher than some of those written by American judges.

Those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. Nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him.

Nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. If unsound reasons for those conclusions are given, defective ill.u.s.trations used, or unguarded a.s.sertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107 Ma.s.s. Reports, 37, 41. This position is not, universally accepted. See Merriman _v._ Social Manufacturing Co., 12 R. I. Reports, 175, 184.]

When Marshall became Chief Justice of the United States he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were Republicans.

This, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[Footnote: Thayer, "John Marshall," 54.]

In some of the State Supreme Courts in early days, it was the practice for the Chief Justice to deliver an opinion in every case, but his a.s.sociates frequently added concurring or dissenting ones.

Of late years the business of appellate courts in the United States and in most of the States is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions.

It is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is a.s.signed, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. At a subsequent conference each judge is called upon by the Chief Justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. This practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. Prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one ma.n.u.script copy around to each in succession for his endors.e.m.e.nt of approval or disapproval. In some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[Footnote: See for an example of this Wilc.o.x _v._ Heywood, 12 R. I. Reports, 196, 198.]

Our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal.

Oral arguments are also usually heard, except in a few States where the press of business renders it practically impossible except in cases of special importance. Such a press occurs mainly in the largest States, but exists also in some whose Const.i.tutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court.

In the Supreme Court of Georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. In most States he has substantial costs to pay. These mainly are to meet the expense of printing the record sent up from the court below. A single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. The appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. The cost involved is occasionally several thousand dollars.

The party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. There is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court.

In the smaller States the judges have time to enable all to study each case with care. In the largest ones it is not uncommon to a.s.sign every case on the docket, in advance of the argument, to a particular judge. He is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. The a.s.signment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior a.s.sociate justice the second, and so on. At the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous a.s.signments will now take the first case on the new list, and the next junior justice the second.

Appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation.

They are seldom in session more than five days in the week. The cases before them are not usually a.s.signed for argument on particular days. A list is made up of all which are ready to be heard, numbered in order, the oldest first. They are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. Often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. In the Supreme Court of the United States this is the practice, and the number is ten. In some of the States it rises as high as twenty.

At the first consultation over a case which has been argued, the Chief Justice (unless a special a.s.signment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. If there is any serious disagreement the matter is generally allowed to stand over for further discussion later. At some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. This distribution is sometimes made by the Chief Justice and sometimes by agreement, or according to the arrangement of the docket.

Until the opinion has been finally adopted it is not usual to announce the decision. Not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. Still more often the draft opinion is altered in material points to meet criticisms and avoid dissent.

Dissenting opinions are comparatively rare, particularly in courts where there is a Chief Justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[Footnote: Perhaps tact counts the most, for the Chief Justice has the advantage of hearing the opinions of all his a.s.sociates at all consultations before he gives his own. Senator h.o.a.r makes a pungent comment on Chief Justice Shaw's want of it, in his Autobiography, II, 413.] Every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. Law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. For these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their a.s.sociates. They are willing to distrust themselves rather than them.

Not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[Footnote: A striking instance of this is the case of Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State Reports, 401; 94 _id_., 302; 102 _id_., 370; 113 _id_., 126; 6 Atlantic Reporter, 453.]

More than eighty out of every hundred of the opinions delivered in the courts of last resort of each State of the United States, excepting one (New Jersey), and contained in the last volume of the reports of each published prior to June, 1904, were unanimous. In New Jersey seventy-three out of every hundred were. In two States, Maryland and Vermont, there was dissent in but two out of every hundred cases, and in all the States taken together, out of nearly 5,000 cases decided a dissent is stated in 284 only. This made the proportion of unanimous decisions of State courts, in the country at large, to those in which there was dissent nineteen to one.[Footnote: _Law Notes_ for June, 1904, p. 285.]

A dissenting judge sometimes files an opinion which is then printed in full in the reports. More often the fact of his dissent is simply noted. In cases involving const.i.tutional questions it is rare for a dissenting judge not to state his reasons. The importance of the subject justifies if it does not demand it. As Mr. Justice Story once observed, "Upon const.i.tutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[Footnote: Briscoe _v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]

The official reports of the courts have some of the faults of officialism. They often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. It requires rare gifts to make a good reporter of judicial opinions. He must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close a.n.a.lysis of abstract reasoning.[Footnote: Four of the reporters of the Supreme Judicial Court of Ma.s.sachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. A good reporter always has the making of a good judge.] Many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year.

The modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to compet.i.tion in reporting. Private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. This work began in 1879.

The result has been that the series of official reports of the Circuit Court of Appeals of the United States has been discontinued, and that the decisions of all our other appellate courts are now twice reported. One publishing house has grouped the States into cl.u.s.ters, issuing for each cl.u.s.ter its own series of reports, known, respectively, as the Atlantic, the Northeastern, the Northwestern, the Southeastern, the Southern, the Southwestern and the Pacific Reporters. The States forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. Thus Ma.s.sachusetts, which would naturally be a.s.signed to the Atlantic Reporter, has been put into the Northeastern; and such inland States as Kansas and Colorado find their place in the Pacific Reporter. All the reported decisions of all the States in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. In this way, for a trifling sum a copy of any opinion of any American court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own State but of several others having not unlike laws and inst.i.tutions.

The multiplication of American reports makes judicial precedents of decreasing value to the American lawyer. English cases are cited as authority far less frequently than they were before the middle of the nineteenth century. The omnipotence of Parliament and the free hand with which that has been exerted to change the common law have tended to separate English from American jurisprudence. Our written Const.i.tutions have perpetuated here ideas of government and property which England does not recognize. Hence American precedents are of more use than English. But American precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. In each State its own reports are the expression of its ultimate law.

With these every member of its bar must be familiar. But the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[Footnote: See a valuable statistical article on "Reports and Citations" in _Law Notes_ for August, 1904.]

Not every opinion which is delivered is officially reported. In most States the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. Many are simply applications of familiar rules which obviously control. Opinions of that kind interest only the lawyers in the cause. In the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones.