The American Judiciary Part 6

What was probably the second instance of the actual use of the power in question arose in 1786, out of a statute of Rhode Island pa.s.sed to support the credit of her paper money of that year's issue. Any one declining to receive it in payment for goods sold at par was to be liable to a _qui tum_ action, to be tried without a jury. Counsel for a man sued in such a proceeding put in a plea that the act was unconst.i.tutional and so void.[Footnote: Trevett _v._ Weeden. See c.o.xe, "Judicial Power and Unconst.i.tutional Legislation," 234, 237.] The court, which was composed of five judges, threw out the action on this ground, treating the charter from Charles II and the long usage under it as having established trial by jury as a fundamental and indefeasible right. The General a.s.sembly shortly afterward summoned the judges before it to account for this judgment. They appeared and stated their reasons for their conclusion, protesting also against the adoption of any resolution for their removal from office (which had been suggested) until after a formal trial. They were not impeached, but at the ensuing session, their terms of office having expired, the a.s.sembly chose others in their place.

Not far from the same time the Supreme Judicial Court of Ma.s.sachusetts p.r.o.nounced a statute unconst.i.tutional, but there the legislature displayed no feeling, and at the next session unanimously repealed it.[Footnote: This, no doubt, was one of the instances of the exercise of this power referred to by Elbridge Gerry in the Federal Convention of 1787. Elliot's Debates, V, 151. It is described in Proceedings Ma.s.sachusetts Historical Society, XVII, 507.]

In 1808, Judge Calvin Pease of the Ohio Circuit Court was impeached for holding a law of Ohio unconst.i.tutional. He avowed the act, and insisted that as it was a judicial one the soundness or unsoundness of his conclusions could not be inquired into as a ground of impeachment. The result was an acquittal.[Footnote: Foster, "Commentaries on the Const.i.tution of the United States,"

I, 691.]

Georgia was the only one of the original States which set up no Supreme Court at the beginning of its statehood. Her Const.i.tution established (Art. III, Sec. 1) a Superior Court, and left it to the General a.s.sembly to give it, if they thought best, appellate jurisdiction. The judges were subsequently by statute authorized to sit _in banc_ and hear appeals. In 1815, while so sitting, they declared a certain statute of the State unconst.i.tutional and void. The legislature showed its resentment by a set of resolutions, of which the parts material in this connection read thus:

Whereas, John McPherson Berrien, Robert Walker, Young Gresham and Stephen W. Harris, judges of the Superior Court, did, on the 13th day of January, 1815, a.s.semble themselves together in the city of Augusta, pretending to be in legal convention, and a.s.suming to themselves ... the power to determine on the const.i.tutionality of laws pa.s.sed by the general a.s.sembly, and did declare certain acts of the legislature to be unconst.i.tutional and void; and ... the extraordinary power of determining upon the const.i.tutionality of acts of the state legislature, if yielded by the general a.s.sembly whilst it is not given by the const.i.tution or laws of the state, would be an abandonment of the dearest rights and liberties of the people, which we, their representatives, are bound to guard and protect inviolate;

Be it therefore resolved, That the members of this general a.s.sembly view, with deep concern and regret, the aforesaid conduct of the said judges ... and they can not refrain from an expression of their entire disapprobation of the power a.s.sumed by them of determining upon the const.i.tutionality of laws regularly pa.s.sed by the general a.s.sembly, as prescribed by the const.i.tution of this state; we do, therefore, solemnly declare and protest against the aforesaid a.s.sumption of powers, as exercised by the said judges, and we do, with heartfelt sensibility, deprecate the serious and distressing consequences which followed such decision; yet we forbear to look with severity on the past, in consequence of judicial precedents, calculated in some measure to extenuate the conduct of the judges, and hope that for the future this explicit expression of public opinion will be obeyed.

In 1821 a case was argued before the Supreme Court of the United States involving the validity of a Kentucky statute pa.s.sed to protect occupants of land who had made valuable improvements upon it in good faith, in case it should be subsequently proved to belong to some one else. The occupant had employed no lawyer, and it was surmised that the court would decide against him. The Governor of Kentucky called the attention of the legislature to this, and advised the employment of counsel to defend the law.

The legislature responded by resolving "that they consider an adjudication, that the laws in question are void, incompatible with the const.i.tutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the commonwealth of Kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication," but that two commissioners should be appointed "to attend the Supreme Court of the United States at the next term and oppose any decision that may be attempted to be procured from the Supreme Court, that those laws are void in such manner as they may deem most respectful to the court and most consistent with the dignity of this state."[Footnote: Niles' Register, XXI, 190, 404, 405.] The case had already been heard _ex parte_, and the court soon proceeded to give judgment that the statute in question was void. The Kentucky commissioners employed counsel, who moved for a reargument, and obtained one, but with the same result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The legislature at its next session discussed the opinion in the case and resolved "that they do most solemnly protest against the doctrines promulgated in that decision as ruinous in their practical effects to the good people of this commonwealth and subversive of their dearest and most valuable political rights."[Footnote: Niles' Register, XXV, 275.]

They then took up two decisions of their own Court of Appeals, declaring other statutes of the State unconst.i.tutional and void, and resolved "that in the opinion of this legislature the decision of the Court of Appeals of Kentucky in the cases of Blair against Williams[Footnote: 4 Littell's Kentucky Reports, 34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]

are erroneous, and the laws declared therein to be unconst.i.tutional are, in the opinion of this present General a.s.sembly, const.i.tutional and valid acts."[Footnote: Niles'

Register, XXV, 275.] The next step was to endeavor to remove the judges, but the two-thirds vote required by the Const.i.tution to support an address to the Governor for that purpose could not be secured. At the next session, in 1824, the judges were summoned to show cause why they should not be removed. They defended their conclusions so well that the two-thirds vote of each house required by the Const.i.tution could not be obtained. By a majority vote the court was then abolished, a new one set up by the same name, and four new judges appointed. The old court refused to recognize the validity of their proceedings. The new one a.s.sumed to organize and to do business. At the next election the question which court ought to be recognized was the dominant one. The result was that the friends of the old court gained control of the House and those of the new court that of the Senate, one of them being also chosen as the Governor. The new court now got possession of most of the papers of the old court.

The latter ordered their sergeant to bring them back. The Governor made preparations to use military force to resist the execution of this order. At last, in 1826, an act was pa.s.sed (Session Laws, p. 13) over the Governor's veto, declaring the acts abolishing the old court unconst.i.tutional and void. The Governor thereupon appointed a warm champion of the new court chief justice of the old one to fill a vacancy which had occurred on that bench, and for the first time for two years the judicial establishment of the State was on a proper footing.[Footnote: Niles' Register, x.x.xI, 324; McMaster "History of the People of the United States," V, 162-166; "The Old and the New Court, in The Green Bag," XVI, 520.]

Meanwhile both courts had been sitting and disposing of cases.

New appeals from the inferior courts had been entered in the one which the appellant's counsel thought most likely to stand as the rightful authority. The judges of the inferior courts were in despair when the mandates of the Court of Appeals came down, and they were called upon to determine whether to obey them. Some held that the new court was a _de facto court_, and to be respected accordingly. The ultimate decision fell to the old court, which, after the repealing Act of 1826, held that there could be no such thing as a _de facto_ Court of Appeals so long as civil government was maintained and the _de jure_ court was in the exercise of its functions.[Footnote: Hildreth's Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky Reports, 206.]

The same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. If a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction.

In this way the Supreme Court of the United States was kept from pa.s.sing on the validity of the Reconstruction Acts enacted by Congress at the close of the Civil War, in a case which was actually pending. Under these Acts a Mississippi newspaper editor was arrested in 1867 by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. He appealed to the Circuit Court of the United States for the District of Mississippi for discharge on a writ of _habeas corpus_. Judgment went against him, and he appealed to the Supreme Court of the United States. The court, on August 1, held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[Footnote: _Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. Congress apprehended a decision that the Reconstruction Acts were unconst.i.tutional, and before one was arrived at, during the same month, pa.s.sed an act repealing the right of appeal in such cases from the Circuit Court. The purpose of this was obvious, but it was none the less effective, and the court, without deciding the case, dismissed it for want of jurisdiction.[Footnote: _Ex parte_ McCardle, 7 Wallace's Reports, 506.]

A legislature whose work has been set aside by the courts as unconst.i.tutional sometimes asks, in effect, for a reconsideration of the question by pa.s.sing another law substantially of the same nature, although expressed in somewhat different terms. This is oftenest done when the decision was made by a divided court or is contrary to the weight of judicial opinion in other States.

Early in the history of California, for instance, a statute was pa.s.sed making it a misdemeanor to keep open any store, shop or factory, or to sell goods, on Sunday. The Supreme Court of the State held this to be contrary to the provisions in her Const.i.tution that all men had the inalienable right of acquiring property, and that the free exercise of religious profession should be allowed without discrimination or preference. Most of the other States had similar statutes, and their courts had supported their validity. Judge Stephen J. Field, then on the California bench, dissented in a vigorous opinion.[Footnote: _Ex parte_ Newman, 9 California Reports, 502.] Three years later the legislature, unconvinced by the reasoning of the majority of his a.s.sociates, pa.s.sed a new Sunday law, which did not differ materially from the other, and after a few months the court overruled their former decision, on the very ground taken by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California Reports, 679.]

Any dissent from a judgment setting aside a statute greatly weakens its force. It has also much less claim to public confidence if all the judges on the bench did not partic.i.p.ate in it. In 1825, the Court of Appeals of Kentucky declined to follow a decision of the Supreme Court of the United States, which held certain statutes of Kentucky to be contrary to the Const.i.tution of the United States.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The reason stated for this was that the decision was not concurred in by a majority of the court. It had been made by a majority of a quorum, but not by a majority of the whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's Kentucky Reports, 57.] After this it became the practice of the Supreme Court under Chief Justice Marshall not to give judgment in any case involving const.i.tutional questions, unless a majority of the court concurred in opinion in regard to these.[Footnote: New York _v._ Miln, 8 Peters' Reports, 118, 122.]

Several American courts have a.s.serted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular const.i.tutional provisions. The English courts now claim no such power, although Sir Edward c.o.ke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, a.s.serted that an act of Parliament "against common right and reason" could be adjudged void at common law.[Footnote: Dr. Bonham's Case, 8 c.o.ke's Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Const.i.tution. The law of the church within its province was then accepted as a supreme law.[Footnote: c.o.xe, "Judicial Power and Unconst.i.tutional Legislation,"' 147, _et seq_.]

The rule laid down by Sir Edward c.o.ke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham _v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._ Middleton, _Ibid_., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation.

This is not legislation. It is a decree under legislative form."[Footnote: Loan a.s.sociation _v._ Topeka, 20 Wallace's Reports, 655, 664; approved in Parkersburg _v._ Brown, 106 U. S. Reports, 487, 501.]

This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "It may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection."

The weight of American authority is in favor of the position taken by Iredell.[Footnote: Cooley's "Const.i.tutional Limitations," Chap, VII; State _v._ Travelers' Insurance Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299; 57 Lawyers' Reports Annotated, 481.] Time has made it safer to stand upon it, for since he spoke not only have our State const.i.tutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the Const.i.tution of the United States a prohibition of State laws depriving any person of life, liberty, or property without due process of law. "Due process of law" is an elastic term. Requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land.

The principle of Roman law that, as custom can make law, so disuse can destroy it has never been adopted in the United States. No court, therefore, will p.r.o.nounce a statute not to have the force of law on the ground that it is obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840, undertook to import the doctrine into American jurisprudence, but without effect. Hill _v._ Smith, Morris' Reports, 70; explained and limited in Pearson _v._ International Distillery, 72 Iowa Reports, 357.]

PART II

THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS

CHAPTER VIII

THE ORGANIZATION OF THE COURTS OF THE STATES

The State Const.i.tutions differ fundamentally from that of the United States in respect to the nature of the judicial establishment. Each of the States possesses all judicial powers belonging to any sovereignty, except so far as the people of the United States may have provided otherwise in the Const.i.tution of the United States. The State Const.i.tutions do not define those powers. They simply commit them to certain courts and officers.

Their general language is that the judicial power is vested in a Supreme Court and such other inferior courts as may be created by law. On the other hand, the Const.i.tution of the United States defines the judicial powers of the United States exactly and within a somewhat narrow range, investing the courts of the United States with those powers and no others. Hence the States require a much more complicated and extensive judicial establishment than do the United States, for not only is the great ma.s.s of litigated cases throughout the country to be disposed of by State courts, but they must also pa.s.s upon by far the greatest variety of legal questions.

In each State there is one appellate court of last resort[Footnote: See Chap. XIX.] and several courts for the trial of original causes. Local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $50 or $100), which do not affect t.i.tle to land. Then come County Courts (often styled Courts of Common Pleas or District Courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken.

These generally have both civil and criminal jurisdiction.

A higher court, which may be styled a Superior Court, or Circuit Court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the County Courts in such case having a limited jurisdiction in these respects.

Munic.i.p.al courts are to be found in all considerable cities and in many of the lesser munic.i.p.alities, such as towns and boroughs.

City Courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. They frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[Footnote: See Goodnow, "City Government in the United States," Chap. IX.]

For the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many States special courts, known as Courts of Probate, Surrogate's Courts, or Orphans' Courts, and Courts of Insolvency. In others these functions belong to the County Courts.

The early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. It was a method wasteful of time and money. In Ma.s.sachusetts it survived for their highest _nisi prius_ court until 1804. In many States it endured much longer for County Courts.

County Courts in some States are courts only in name, except, perhaps, for some very limited purposes. Their real functions are administrative. Some or all of those who hold them are often styled commissioners, and their princ.i.p.al duties are to manage the general business affairs of the county.[Footnote: See Const.i.tution of West Virginia, Amendment of 1880; Const.i.tution of Oregon, Art. VII, Sec. 12.] A statute pa.s.sed by Oregon in 1903 indicates that those in that State are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the County Courts "on all legal questions that may arise." In Virginia, County Courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. These magistrates nominated their own successors to the Governor, who almost never refused to commission the person so recommended. The court also nominated the officers of militia below the rank of General, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. However clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _"amci curiae"_ whenever any doubtful question of law chanced to arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378; Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where County Courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[Footnote: McMaster, "History of the People of the United States," III, 154.]

The Const.i.tutions of the States generally require the existence of a Supreme Court of last resort, and often specify also by name one or more of inferior jurisdiction. Such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. The power to establish implies a power to limit and to destroy. A tribunal created by a Const.i.tution, with functions defined in the Const.i.tution, is, as to these and as to its independence of existence and action, beyond legislative control.

The Republicans in Congress were within their rights when, in 1802, they repealed the act pa.s.sed by the Federalists the year before to create a system of Circuit Courts. Those of Ma.s.sachusetts were within theirs when, in 1811, they abolished the ancient Court of Common Pleas of that State and created a new "Circuit Court," with fifteen judges, to take its place. Both would have been glad to go farther and reconst.i.tute in some way the court of last resort, which was filled with old Federalists.

Why they did not has been frankly stated by one of them in his account of Governor Gerry's administration:

With the Supreme Judicial Court the party did not interfere.

In respect for the authority of the Const.i.tution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. The result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[Footnote: Austin, "Life of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. Of these there are generally several in each town, having jurisdiction over the whole county. Some may be lawyers. None need be, and few are. Any one of them can try cases. Which of them shall try any particular case is left to be determined by the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[Footnote: See McVeigh _v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic Reporter, 701.] Such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. But in civil cases, for the lawyer who inst.i.tutes them to pick out his judge at will from a number who are equally competent to a.s.sume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. If the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. In most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. Some justices rarely give any other judgment. Many lawyers bring all their cases before one justice, and seldom fail of success.