The American Judiciary Part 2

Idaho, in her Const.i.tution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Const.i.tution and in the laws, as they may find to exist.

The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Const.i.tution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1.]

When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts.

So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon _v._ Cochran, Bee's Reports, 209.]

In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States.

But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of the Const.i.tution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain _v._ Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the Executive should intervene and permit it.

The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States?

This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so.

Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States _v._ Nash _alias_ Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department.

On the other hand, the peculiar provision of the Const.i.tution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open.

These principles are well ill.u.s.trated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172 to that of 193 west longitude. Great Britain contended for the three-mile limit.

Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska.

The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause:

In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the pet.i.tioner; nor do we permit ourselves to doubt that under such circ.u.mstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: _In re_ Cooper, 143 United States Reports, 472, 503.]

In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration.

The arbitration took place and the award supported the British contention. Congress pa.s.sed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were ent.i.tled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before:

This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the United States in the waters of Behring Sea," in the amendment thereto, must be construed to mean the waters within three miles from the sh.o.r.es of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "They are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with Congress, not with the judiciary." The Cherokee Tobacco, 11 Wall., 616-621. But in the present case there is no pending question left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. ... The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has pa.s.sed "an act to give effect to the award rendered by the tribunal of arbitration."[Footnote: The La Ninfa, 75 Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be noticed that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly.

The courts before the Revolution, and in some States for half a century after it, served as a kind of political mouthpiece. The inst.i.tution of the grand jury[Footnote: See Chap. XVII.] afforded the means. Those composing it are personally selected by the sheriff from the princ.i.p.al men in the county. It is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. Frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[Footnote: "Life and Works of John Adams," II, 169.] To this the grand jury were not backward in responding with compliments and perhaps presentments.

In Ma.s.sachusetts they went even further in 1774. The House of Representatives of the Provincial a.s.sembly impeached the Chief Justice for accepting a salary from the Crown instead of relying on legislative grants, as had been the practice. The Council before which the articles were exhibited declined to entertain them. The people, however, felt that the House was right, and this sentiment was manifested at the next sessions of the courts by the grand and pet.i.t juries in every county. They refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment.

No business was done in court until the following year, when, after the battle of Lexington, new judges were appointed by the Council.[Footnote: "Life and Works of John Adams," II, 332; X, 240; "Principles and Acts of the Revolution," 100.]

Sometimes the laws of the State were criticised in this way by judge and jury.

In December, 1788, a grand jury in South Carolina made this presentment:

We present as a grievance of the greatest magnitude the many late interferences of the legislature of the State in private contracts between debtor and creditor. We should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[Footnote: "American Museum," VII, Appendix II, 10. _Cf. ibid._, 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History of the People of the United States," II, 229.] or acts of Congress were formerly attacked. In 1819, the action of the House of Representatives as to the introduction of slavery in Missouri was the subject of a warm protest from a grand jury in that territory, which closed thus:

They hope those restrictions will never more be attempted; and, if they should, they hope by the a.s.sistance of the genius of '76 and the interposition of Divine Providence to find means to protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently presented as grievances in the South during the years preceding the nullification movement in South Carolina.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of the American Historical a.s.sociation for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance the suspension of Commodore Porter from duty for six months under sentence of a naval court martial, approved by the Secretary of the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a grand jury in Tennessee presented a "protest against the bold and daring usurpations of power by the present Executive of the United States" (John Quincy Adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of Blount County."[Footnote: Niles'

Register, x.x.xII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to a grand jury with a long statement of the justice of the Revolution, its military successes, and the duties of patriotism.

The court thereupon ordered "That the political part of the Chief Justice's charge" be forthwith printed.[Footnote: Principles and Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the Const.i.tution of the United States. Jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the United States a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for Governor of Ma.s.sachusetts, a Federalist newspaper reported approvingly a charge of Chief Justice Dana of that State. He had been an ardent politician before going on the bench and had declined a nomination as minister to France during the preceding year. "The learned judge," said the Boston _Centinel_, "in a forcible manner proved the existence of a French faction in the bosom of our country and exposed the French system among us from the quintumvirate of Paris to the Vice-President and minority of Congress as apostles of atheism and anarchy, bloodshed and plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin, "Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States made several charges in Maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the House of Representatives as a ground of his impeachment. The article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and Const.i.tution." He had, indeed, used this language:

You know, gentlemen, that our State and national inst.i.tutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State const.i.tution, by the establishment of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general a.s.sembly. The change of the State const.i.tution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican const.i.tution will sink into a mobocracy, the worst of all possible governments. I can only lament that the main pillar of our State const.i.tution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state.

All this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of Guilty on the article of impeachment founded upon it to secure a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of Pennsylvania was charging a Pennsylvania grand jury that the Jeffersonians had a.s.sumed a name that did not belong to them.

"Such men," he said, "disgrace the name of Republicans by exclusively a.s.suming it. In their sheep's clothing they are ravening wolves."[Footnote: Wharton's State Trials, 47, note.]

For this, among other things, he was very properly impeached and removed in 1803, after the Republicans came into power in that State.[Footnote: McMaster, "History of the People of the United States," III, 154.]

It is difficult for the American of the twentieth century to conceive how honorable men could so have abused official position.[Footnote: Wharton's State Trials, 376. Justice Washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until 1817, when party feeling had moderated, not to give out copies of any charges for publication. Niles' Register, XIII, 169.] The cause lies in the extreme rancor which then embittered politics and debased society. Federalists and Republicans were hardly on speaking terms. Many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. Judge Addison's charge brought out an open letter to him in a Pittsburgh newspaper, signed by a Republican who was on the Supreme bench of the State, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[Footnote: Wharton's State Trials, 47, note.] On the other hand, at a political banquet of the Boston Federalists, at about the same time, their approval of Judge Dana's charges to grand juries was manifested by this toast: "The Honorable Francis Dana, Chief Justice of the learned a.s.sociate Judges of our Supreme Judicial Court. While the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[Footnote: Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers.

Heads of Departments of the State or the United States are subject to this power.[Footnote: n.o.ble _v._ Union River Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169 U. S. Reports, 466.] So in the Federal Courts are Governors of States acting under a law repugnant to the Const.i.tution of the United States.[Footnote: Pennoyer _v._ McConnaughy, 140 U. S. Reports, 1.] No such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[Footnote: Georgia _v._ Stanton, 6 Wallace's Reports, 50.] nor under any circ.u.mstances against the President of the United States.[Footnote: Mississippi _v._ Johnson, 4 Wallace's Reports, 475.] As to whether it can in some cases be granted by a State court against the Governor there is a conflict of authority.

The development of party government in the United States has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. Statutes of this nature relating to the form and heading of ballots for use at popular elections are common. If conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. The legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[Footnote: State _v._ Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When t.i.tle to a political office is contested, the courts, unless there is some const.i.tutional provision to the contrary, may be appealed to for a decision. This is true even in respect to the office of Governor.[Footnote: Boyd _v._ Thayer, 143 U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports, 548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It is a remedy which has been, though in rare instances, abused for party purposes.[Footnote: Such a case was the issue by a District Judge of the United States in 1872 of an injunction-order under which the Marshal took possession of the Louisiana State-house, and excluded those claiming to be the legislature of the State.

Gibson, "A Political Crime," 347 _et seq._; Senate Report, 457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Const.i.tutions of several States, to ask the judges of the Supreme Court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is Governor, if the t.i.tle to the office is claimed by two. This was the case in Florida in 1869. The House of Representatives had commenced proceedings of impeachment against the Governor. It was on the first day of a special session of the a.s.sembly. There could be no such session unless a quorum was present in each house. There were but twelve Senators in attendance. The Lieutenant-Governor regarded the proceedings as regular, and a.s.sumed to exercise the office of Governor pending the trial.

The Governor claimed that twelve Senators were not a quorum, and that the proceedings were void. On these points he requested the opinion of the Justices of the Supreme Court, and they gave one supporting his contentions.[Footnote: 12 Florida Reports, 653.]

A few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[Footnote: S. S. c.o.x, "Three Decades of Federal Legislation," 518, 520.]

In the early days of the United States, under the present Const.i.tution, the Chief Justices of the Supreme Court of the United States at times filled also a political office, and so were invested at the same time with political and judicial functions. John Jay, the first Chief Justice, while holding that office, was made our Envoy Extraordinary to Great Britain, and spent a year abroad in that capacity. His acceptance of the position, however, occasioned general and unfavorable comment.

John Marshall was both Chief Justice and Secretary of State for five weeks, during which he held one term of the Supreme Court.

Oliver Ellsworth was both Chief Justice and minister to France at the same time, and for a period of over a year, during which he held one term of court.

Nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office.

When the result of the election of the President and Vice-President of the United States was contested in 1877, Congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the Supreme Court, to decide upon the returns. Four of the justices were especially selected by the act pa.s.sed for this purpose, two of them being Republicans and two Democrats, and they were directed to choose the fifth.[Footnote: 19 United States Statutes at Large, 228.] They agreed on Justice Bradley, a Republican. The Congressional members were equally divided politically. The result proved to be that on every important question in controversy every Republican voted for the view favorable to the Republican candidates and every Democrat voted for the other. The country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial partic.i.p.ation in the decision of political issues.[Footnote: See Wilson, "Division and Reunion," 286; S. S. c.o.x, "Three Decades of Federal Legislation," 655; Pomeroy, "Some Account of the Work of Stephen J. Field," 440.]