The American Judiciary Part 22

In 1798, the Alien and Sedition Laws were pa.s.sed, and a crime previously cognizable exclusively in the State courts was made a subject of prosecution in those of the United States if it affected an officer of the United States. A member of Congress, Matthew Lyon, of Vermont, who was sentenced in the Fall of that year to a fine of $1,000 and four months in jail for writing of the President and Senate, that his message to Congress in 1797 was a bullying speech, which the Senate in a stupid answer had echoed with more servility than ever Geo. III. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by Congress in 1840.

The case of Jonathan Robbins[Footnote: See Chap. III.] in South Carolina in 1799, showed that the Circuit Court at the request of the President could surrender an American citizen to a foreign government to be carried off and tried for murder. This and the sentence of Lyon became immediately the subject of hot discussion in Congress, and both contributed to the political revolution which put Jefferson in the seat of Adams in 1801.

The creation by the outgoing party of places for eighteen new Circuit Judges appointed by Adams in the last month of his administration strengthened the popular feeling that the courts of the United States were too powerful. That Act was at once repealed,[Footnote: See Chaps. IX, XXII.] and also the provision for the next regular term of the Supreme Court. The latter measure was taken to prevent any legal proceedings in the Supreme Court to secure its intervention in behalf of the displaced judges.

The new circuit system had been swept away, but the full bench at Washington, headed by Marshall, remained. The unsuccessful impeachment of one of them followed in 1804.[Footnote: See Chap. III.]

His acquittal the next year, and that of a majority of the Supreme Court of Pennsylvania,[Footnote: McMaster, "History of the United States," III, 159.] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. Judicial independence had been secured by the very struggle to defeat it. What has won in any contest finds favor with the mult.i.tude. They admire a victor.

From this time on the courts both of the United States and the States grew in public esteem. When those of the former seemed to trench on the fields of State sovereignty, particularly in the South, the inroad was resented.[Footnote: See letters of Marshall alluding to this, in "Proceedings of the Ma.s.sachusetts Historical Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern State it was even opposed by force.[Footnote: See Chap. X.] As late as 1854 the supremacy of the Supreme Court of the United States in expounding the federal Const.i.tution was contested by the courts of a Northern State; there also in a case growing out of the system of slavery.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.]

Another decision by the same tribunal of a similar nature--that in the Dred Scott case[Footnote: Dred Scott _v._ Sandford, 19 Howard's Reports, 393.]--greatly strengthened the confidence of the Southern people in the federal courts, and weakened that of the North.

It did much to bring on the Civil War, but the result of that struggle was to confirm the authority not only of the Supreme Court but of the Supreme Court as it was under Marshall and his original a.s.sociates. In 1901, the centenary of his appointment was celebrated all over the country, North and South. Such a tribute was never paid before in any country to the memory of a judge. His services were commemorated for the very reason that led Jefferson to depreciate them--because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any State.

Confidence in the State courts has also been strengthened during the last century. It was greatly shaken at the time of the fall of the Federalists. They had lost the executive and legislative power, but they retained the judicial, and the Republicans found it hard to tolerate courts that represented the political ideas of a former generation. This continued long after the extinction of the Federalist party, and often extended to distrust of judges elected by the Republicans who were thought to have become affected by the influence of their senior a.s.sociates.

In the New York const.i.tutional convention of 1821, Peter R. Livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 618.] Who, he asked, were the present judges of their Supreme Court? "Judge Spencer came into office under a republican administration; Judge Van Ness was appointed by a mongrel council; and the elevation to the bench of Judge Platt was occasioned by the defection from the Republican ranks of a man elected to the Senate from the county of Dutchess, who acted the part of a political Judas, and sold his party. We have been bought and sold--there is not one of these men who would have been on the bench if our administration had been truly republican.... There is not a man in this Convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 620.]

The judiciary may also have suffered somewhat in the esteem of dispa.s.sionate observers on account of its att.i.tude in many of the States toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. In commenting on a judicial opinion in a Southern bank case, the author of one of our leading American legal treatises, himself once a judge, has referred to this period in these plain words:

Decisions of this kind, which were not infrequent in the era of State banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. It can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[Footnote: Thompson on "Private Corporations,"

V, p. 5306.]

It is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. Independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. He acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it.

The Bar a.s.sociation of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench.

It is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. Jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. As a whole, however, American courts are clean-handed throughout, and the people know it.

The judiciary has been popularized in most States by const.i.tutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the Governor or legislature by election by the people.

The powers of judges have been on the whole increased. The only matter in which they have been substantially cut down is that of punishment for contempt. Serious attempts have been made to abridge their jurisdiction over injunctions, but without success.

These attacks have come from those representing certain labor unions. The more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a cla.s.s of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[Footnote: The number of the _Pennsylvania Grange News_ for Sept., 1904, states this view at length.] As a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the cla.s.s of working-men in the general acceptation of that term. Their education has cost money and is generally the fruit of capital.

The judges of the higher courts are usually men of some means.

If they were not, they could not have afforded to accept their places. But the people at large do not believe that only the poor man can be relied on to deal justly on the bench. The ma.s.s of working-men do not believe it. They do believe that courts have too much power over them in their a.s.sociated relations.

They are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. But they know that it is from the legislatures and not from the courts that this must be sought.

The federal judges stand higher in public estimation than the State judges of corresponding rank. This is partly on account of the paramount authority of the government which they represent.

It is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. It is more because of their permanence of tenure. This removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment.

Our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the States or of the United States, but the people know that there is less of it there than in any other department of governmental action.

President Hadley of Yale University has thus expressed what is the general view of the work of the courts held by thoughtful men in the United States; and it is they who in the long run form and lead public opinion.

"On the whole, federal and State courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority.... It has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. The anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. But I think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of American liberty; and that while Hamilton and his a.s.sociates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. I believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the American republic from the necessity of repeating the successive revolutionary experiences which France underwent before she could attain to a stable democracy."[Footnote: "Freedom and Responsibility," 23, 24.]

This confidence in and respect for the judiciary as a whole has increased with the general advance of the country in population and wealth. There have been larger questions with which to deal, and the courts have been found adequate to the task. But at the same time the personal consequence and reputation of every individual American judge has been steadily decreasing. As States multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. There is no room for star players upon the stage.

Broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as Marshall or Story, Kent or Parsons, did, apart from his fellows. Popular confidence is now not placed in courts because this or that man is the ruling spirit in them. It is impersonal and attaches itself to the inst.i.tution of the judiciary as, all things considered, the best guaranty of good government in the United States.

This spirit of confidence is, of course, not universal and unqualified. It is often not found in bodies of working men, a.s.sociated as Labor Unions. They have repeatedly found a court enforcing public order in a way that interfered with their manner of conducting a strike. They have been met by injunctions, and more often by criminal prosecutions. The membership of a Labor Union, in many parts of the country, is apt to be largely of foreign birth. The leaders not infrequently know little of the English language and less of American inst.i.tutions. They have been led, in their native land, to regard the law and its officers as their enemies, and they look at them in the same way here. It is believed, however, that a large majority of the Unions regard them with respect, and it is certain that such is the prevailing feeling of non-union men.

But that the public trust in our judges is less than it was when the first edition of this work was published,[Footnote: See _supra_, page 340.] is indicated by the favor with which, in many quarters, the doctrine of the "judicial recall" has been received. The dangers incident to its practice are obvious, and seem far to outweigh any attending advantages.

In the United States, of all lands on the face of the earth, it is important that the judges should act with resolution and without thought of the consequences personal to themselves.

Elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation.

To expose one who exercises this power to immediate displacement, by a popular vote--largely, perhaps, composed of his political opponents--is to invite the enactment of questionable statutes, and still worse--to weaken the attractions of the bench for able and honest men. Our judicial terms, in most of the States, are already too brief for the public good. To make them determinable at the will of the electoral const.i.tuency tends powerfully to keep good lawyers at the bar, who might otherwise have done honor to a judicial station.