The American Judiciary Part 21

One of the anecdotes of the Boston bar is that while Samuel Dexter, one of the great lawyers of his day, was arguing a cause in the Circuit Court of the United States before Justice Story, soon after his accession to the bench, the court suddenly interposed, as a certain principle was a.s.serted, with "That proposition is not law, Sir," to which Mr. Dexter retorted, "It is the law, if your Honor please, and will finally be declared to be the law by this court," as indeed it was later by Justice Story himself.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 241.]

Such a pa.s.sage at arms between court and counsel as took place in either of these instances could now hardly occur.

Out of court there is no longer this distance between judge and lawyer. While they will not talk over an unfinished case, one that is finally disposed of is often the subject of free comment by each. They are now entirely upon the same level in the community. Officialism is put off when the court room is closed.

Socially they meet in the same circles and on the same footing.

It is considered not improper for a judge to accept the hospitality of a lawyer concerned in a case before him, and even a case on trial. The American rule in this respect is much less strict than the English.[Footnote: See "Memoir of Chief Justice Parsons," 208-211.]

CHAPTER XXIV

THE LAW'S DELAYS

The right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. The plaintiff, too, has corresponding rights. It was found not so easy by Frederick the Great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. In a freer land no such result is possible.

The power of the judge to expedite trials is also much less in the United States than in most countries. They must be had mainly on oral testimony. The testimony must be so given that thirteen different men may each understand it. What the witnesses may be allowed to tell, and what they cannot be, depends on the application of numerous and artificial rules of evidence. If there is a question as to whether this rule or that applies, the judges sometimes invite and generally allow a discussion by counsel. Appeals are liberally conceded. If exceptions to any ruling of the court are to be made the basis of proceedings in error, they must be carefully noted at the time, and afterwards made the subject of a lengthy set of papers.

Many trial judges are young men of little experience either on the bench or at the bar. They are learning the law by administering it. Such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. It is hardly probable that they will always come to the right decision at last. Hence it is that so great a liberty of appeal is granted in every American State.

Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate whose appeal is heard within three months and decided within six.

Oftener he must expect to wait a year or two. During a long course of years an appeal to the Supreme Court of the United States could not be reached for argument in regular order in less than three years after it was taken. In Nebraska, for some time prior to 1901 the Supreme Court was so overwhelmed with business that it could not hear a cause until five years after it was docketed.

In 1882 a brakeman was injured on a New York railroad. He brought suit against the company, and in 1884 recovered $4,000 damages. The judgment in 1886 was reversed on appeal. On a new trial he got a verdict for $4,900. This was appealed to two courts successively. The first affirmed and the second reversed the judgment. In 1889, there was a third trial, at which the company won. Two appeals by the brakeman followed. On the first the intermediate appellate court, in 1894, decided against him.

On the second, in 1897, the court of last resort decided for him.

For the fourth time the case came on in the trial court, and a verdict for $4,500 was recovered. The company appealed and with success. A fifth trial gave him a verdict for $4,900. This, too, was set aside on appeal. A sixth trial followed with exactly the same results. In 1902, the seventh and final trial took place. The verdict this time was for $4,500. The company appealed again, but was defeated.[Footnote: Case and Comment, X, 50.] A lawsuit that embraces seven appeals and lasts for twenty years is, of course, a rarity, but the system of administrative justice under which such things are possible is faulty somewhere.

The right of trial by jury is one cause of such delays. The broad right of appeal is another. The want of skill and experience on the part of trial judges and trial lawyers may be a third. The twenty-three English judges of the High Court of Justice (with the aid of masters in chancery and referees) actually try and determine about fifty-six hundred cases a year.[Footnote: This was the average number for each of the years 1900 and 1901.] Each judge, therefore, on the average, dispatches over two hundred and forty. No American judges under our American system of practice could do as much and do it well.

We tolerate a succession of motions and objections and arguments from the bar which English courts would not. We often take more time in impanelling a jury than they would in trying the case.

The American bar, unlike the English, is not so const.i.tuted that a certain number of its members are professedly devoted in a special way to the trial of cases. The English barrister in active practice may almost be said to do nothing else. His standing and his income depend on his ability to try case after case in rapid succession. Others are responsible for their slow and careful preparation. He is responsible for their quick and effective dispatch when the preparation is ended. He becomes necessarily familiar with the _technique_ of a trial at every point. In examining a witness, he strikes directly at what is material, and would be ashamed to appear ignorant of what that is. In argument he stops when he is through. The ordinary American lawyer who tries a case to-day, draws papers const.i.tuting a partnership or a corporation the next, and prepares an opinion on the construction of a will the day after, has not that concentration of knowledge which comes from concentration of occupation.

The art of making a clear and definite statement of the points in controversy on paper is also one not sufficiently cultivated by the American bar. Without it the system of "code pleading,"

which has in most States supplanted the rigid and often meaningless forms of the common law, leads to confusion and obscurity. The claims of each party ought to be, but seldom are, so presented that matters of law are, so far as possible, kept distinct from matters of fact, and what he means to prove is set forth, but not the evidence by which he hopes to establish it.

This looseness of pleading leads to endless motions to expunge this and correct that, and time of the court is taken up by the preliminaries of trials which, if the lawyers used more care or had more skill, would be devoted to the trials themselves. Still worse is it when such motions are postponed until the case comes on for final hearing, and witnesses and juries are compelled to wait during tedious arguments over questions of mere form.

In our great centers of population business under these circ.u.mstances almost necessarily acc.u.mulates too fast for the courts to handle it.

In bringing on criminal trials there is little delay, unless at the request of the accused, and for what seems good reason. Our Const.i.tutions generally provide that whoever is to be tried on a criminal charge shall be tried promptly, and the practice of the courts conforms to this rule. The broad right of appeal, however, for errors of law on the part of the court may serve to postpone the execution of a sentence, and too many new trials are granted by the courts for steps in procedure in matters of a purely technical character. Delays from this cause are, however, comparatively infrequent. Most convicts are too poor to take advantage of it. Most also know that their sentence is just, and are anxious only to have it executed and through with as soon as possible. In hardly one case in a hundred is an appeal taken or, if taken, pursued to the end.[Footnote: See Chap. XVII.]

In our largest cities the disposition of criminal business occupies the time of several judges, and the prosecuting officer has a staff of professional a.s.sistants. In cases of such importance as to call for his personal management a postponement is occasionally inevitable. In Chicago, in December, 1903, over a thousand cases were awaiting trial in the Criminal Court.

It tends to expedition in the trial of any cause if it is heard before a judge especially familiar with the cla.s.s of questions which it involves. Criminal courts, particularly in cities, are largely held by judges whose work is either wholly or mainly confined to them. This helps greatly to prevent delays in such tribunals. For a similar cause admiralty business is dispatched with great rapidity by the District Judges at our princ.i.p.al ports, and patent causes by the Circuit Courts.

In the criminal courts of New York City in 1903, there were about 3,000 prosecutions on which indictments were found, and the defendant committed for want of bail. In most of these cases there was a plea of guilty, but counting them with the others, the average time as to all which elapsed between the original arrest and the final judgment was only eight days. During the same time those who gave bail were generally tried within three months from their arrest.[Footnote: Nathan A. Smyth in the Harvard Law Review for March, 1904.]

An insufficiency of judges was formerly one great cause of delay, but the modern tendency has been to have too many, rather than too few. In the Court of Chancery in Virginia (which was held by a single Chancellor, then a man seventy-six years old) there were in 1802, 2,627 causes pending at one term.

In the city of New York a jury trial in civil causes cannot ordinarily be reached until two years after they are brought. In its princ.i.p.al trial court between four and five thousand cases are annually disposed of, and in 1903, there were nearly ten thousand on its docket. When the criminal courts in the borough of Manhattan--the greatest division of the city--were opened in October of that year, there were nearly five hundred different prosecutions to be disposed of, and a hundred and sixty-seven prisoners awaiting trial who had been unable to procure bail.

In the county containing the city of Chicago (and which contains little else), there were in 1903 twenty thousand civil cases on the dockets of the courts. This ma.s.s of business it would require more than two years and a half to dispose of with the number of judges then provided, were no new suits inst.i.tuted to divide their attention.

A very large part of the cases tried to the jury are claims for damages for accidental injuries received by employees in the course of their service. In the county in Missouri including Kansas City there were, in December, 1903, over fifty-one hundred civil causes on the dockets of the various courts. The population of the county was less than two hundred thousand.

About three-fourths of the cases were against corporations for injuries received by their employees. The defendant in such an action is generally in no hurry to bring it to trial. The plaintiff often is not. He may have a weak case, brought in the hope of forcing a settlement. He has probably no money to pay his lawyer for trying it, and finds it hard to get together what is necessary to summon his witnesses and provide expert testimony as to the nature of his injuries.

Whenever it is tried, however, he is sure to want a jury, for if the case is a good one a jury is apt to give larger damages than a judge, and if a bad one a jury is less likely to appreciate its weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156 Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A jury trial is much slower than a trial before a judge, although the decision is apt to come more quickly. It also facilitates appeals by necessarily presenting more occasions for error. A judge in trying a cause, if evidence of doubtful competency is offered, can admit it provisionally and exclude it afterwards if, on deliberation, he thinks that it should not be considered.

With a jury this is impossible. There must be an immediate ruling one way or the other. In the charge to a jury, also, opportunities are offered for exceptions which do not exist if the cause is to be decided by the judge alone. He does not have to instruct himself in public. He can study the case in private at his leisure.

A cause of delay formerly existed in several States which arose from the method of computing the costs taxable against the losing party. They included, by statute, a certain sum, say twenty-five or thirty-three cents a day for each day's attendance at court by the prevailing party. This was construed to mean each day during which the action lay in court, since upon any of them it might by possibility be called up, and the client was always represented by his attorney of record, a notice to whom was a notice to him.

Christian Roselius, one of the leaders of the New Orleans bar in the nineteenth century, once said that he had spent a fourth of his life in the court house waiting for his cases to be called.

The lawyers, as the duty of attendance fell on them, generally considered this allowance as their perquisite. An attorney with a large docket received, therefore, a number of dollars for every day the court sat, and the longer the term lasted or the more terms to which a cause was carried over, the larger was his gain if his client ultimately obtained judgment, and the defendant was of financial responsibility. This system was not universally discontinued until the last quarter of the nineteenth century.

A few States, by statute or const.i.tutional provision, set a certain time within which a decision must be rendered after the trial. California gives ninety days; Idaho (Const., Art. V., Sec. 17) thirty. A sanction for the law sometimes provided is that the judge cannot draw his salary until he has made oath that he is in no default.

CHAPTER XXV

THE ATt.i.tUDE OF THE PEOPLE TOWARD THE JUDICIARY

Americans are proud of their country and of their State. They are proud of their scheme of government, by which an imperial world-power has been created for certain national and international purposes, resting on a collection of States, each of which is an independent sovereignty, absolutely as respects the others, and for the most part as respects the United States.

They are in the ma.s.s an educated and intelligent people. The public schools have thus far been found adequate to Americanizing the children of foreign immigrants. The colored population of the South stands largely by itself, and const.i.tutes no active and self-moving force in matters of political concern. An educated and intelligent people living under a government of written law of their own making cannot but know how vital it is that this law should be fully guarded and fairly administered. Americans have become distrustful of their legislatures. They believe that much of their work is ill-considered, and that some of it has its source in corruption. They are far removed from the chief executive magistrates, and from the sphere in which they move.

The President comes nearer to them than the Governor of their State because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. They look for these to the courts, and they know that they will seldom look in vain.

Only an educated and intelligent people can live under a written Const.i.tution. It requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient inst.i.tutions. Our Const.i.tutions are mainly the work of former generations. We may amend or recast them, but the substantial framework will remain the same. Our Declarations of Rights speak the language and the lessons of the eighteenth century. Their provisions are almost wholly aimed at our executives and legislators. They give guarantees which the judiciary only can enforce. No people can steadily prosper unless a just mean be preserved between reform and conservatism in the administration of the government. The courts stand for conservatism, but by their recognition of custom as law, and their free use of logic and a.n.a.logy to develop law, they also keep a door open for the entrance of reform.

The courts also come very close to the people. They are to be found in every county and almost every township. They settle the estates of the dead. They protect the living. They act largely through juries made up of the people and returning to them after a brief term of public service.

All these considerations put Americans in a friendly att.i.tude toward the judiciary. It makes less show of authority than the policeman or the militiaman. But the people feel that it has authority and is ready to exercise it always to secure that right be done. When a plain man who thinks that he has been wronged by another declares that he "will have the law on him," it expresses his conviction that he can get justice from the courts.

The creation of the judiciary of the United States was welcomed at the outset by all.[Footnote: See "Life of Peter Van Schaick,"

435.] It was not until party feeling had become intense that Republicans found it difficult to look with approval on a force evidently becoming stronger every day, and that Jefferson could describe the Supreme Court as the sappers and miners who were gradually undermining the foundations of American liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870.

"Works of Thomas Jefferson," VII, 192.]

Of the political questions which engaged attention over the whole country from time to time from the adoption of the Const.i.tution to the close of the Civil War, almost all bore some relation to the inst.i.tution of slavery and derived their real vitality from that connection. Slavery depended on State laws. Unless the authority of each State to allow and regulate it were preserved, its countenance would be endangered. This was largely the source of the "State Rights" cry.

Almost all the powers which the United States possessed the States had lost. For thirteen years each had been in the position of a full sovereign. Its courts had exercised jurisdiction over all kinds of actions. Now a new set of courts had risen up having over many actions an equal jurisdiction, over some a superior one.[Footnote: See Chap. X.]

The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas'

Reports, 419.] in 1793, and the inst.i.tution of similar suits against other States of the South showed that the Supreme Court of the United States claimed authority to render a money judgment against a State, which meant that it could then issue an execution to collect it by levying on the property of the State.