The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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It was under the influence of these ideas, and in view of the
fact that the colonial judge often knew no more law than the
jury, that it became common in this country either to give a jury
in a criminal cause no instruction as to the law at all or to
charge them that they were judges both of the law and
fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
258, 401.] In some of the States, a charge to the effect last
stated is now sometimes required by statute.

A jury trial is a poor mode of doing justice, if there is a rule
of law which, as applied to certain facts, should control the
verdict, unless that rule of law be both stated by the judge, and
so stated as to impress upon the jury that it is their sworn duty
to apply it, if the facts which they may find to exist are such
as to come under its operation. That they should be so
instructed, even if declared by express statute to be the judges
both of the law and the facts, is the prevailing opinion of
American courts and jurists.[Footnote: Commonwealth _v._
Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
U. S. Reports, 51, 71.]

It is of especial importance that the duty of juries to take the
law from the court should be clearly stated to them in a country
of written Constitutions. Most crimes are defined by statute.
It is easy for the defendant's counsel to claim that the statute
on which the prosecution is based is unconstitutional. If it be,
the accused is entitled to an acquittal; but if the jury acquit
him on that ground, and the ground is false, injustice is done.
Any such claim must be disposed of by the court, in order to give
the Constitution its due supremacy.[Footnote: State _v._
Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
American State Reports, 30.]

Mr. Justice Baldwin of the Supreme Court of the United States
came to the bench, in 1829, strongly inclined to minimize the
power of the federal judiciary. In one of his first cases on the
circuit, he charged the jury in a capital case that they were
judges of both law and fact, and if they were prepared to say
that the law was different from what he had stated it to be, were
not bound by the opinion of the court.[Footnote: United States
_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
before he found himself compelled to retreat from his position.
A man was being tried before him for forging notes of the United
States Bank, and his counsel claimed an acquittal because the law
incorporating the bank was unconstitutional, reading to prove it
the veto message of President Jackson, with the accompanying
documents. To the Jackson Democrats on the panel this was quite
an imposing argument, and Mr. Justice Baldwin was obliged in his
charge to sound the warning that for a jury to exercise the power
of treating an Act of Congress as invalid was virtually to give
us a country without a Constitution and without laws.[Footnote:
United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
Pennsylvania Law Journal for November, 1846, p. 9.]

In one of the Southern States where it is a statutory right to
demand instructions that the jury are the judges of the law, it
was the custom of a certain trial judge of commanding presence,
when called upon to give them, to say to the jury after he had
done so, rising to his full height, "But, gentlemen, you must
recollect that I have told you what the law that governs this
case is, and to this I am the only witness who has appeared or
could appear."

It was one of the acute observations of Alexander Hamilton that
under our American Constitutions judges are less to be relied on
by one who is attacked by the government, because those who
direct the government are the choice of the people, and whatever
they do is presumably popular. The judiciary, he said, was less
independent here than in England, and therefore we had the more
reason to cling to the trial by Jury and their power to render
general verdicts as our greatest safety.[Footnote: People
_v._ Croswell, 3 Johnson's Cases, 337, 353.]

The States which guard these most closely are those in which
there is the most jealousy of anything like a standing order, and
the widest scope of popular election. Georgia was the State,
among the old thirteen, in which these characteristics were most
marked. Her first Constitution of 1777 expressly threw the power
of determining the law into the hands of the jury in every case,
though they were allowed to ask the judges holding the court for
their opinion, in which case each judge gave his in rotation.
The party who lost his case could demand a new trial before a
special jury. The ordinary jury were to be sworn to bring in a
verdict according to law and the evidence, provided it be not
repugnant to the Constitution. The special jury were to be sworn
to bring one in according to law and the evidence, "provided it
be not repugnant to justice, equity, and conscience, and the
rules and regulations contained in this Constitution, of which
they shall judge." Apparently the meaning of this was that while
the decision of the first jury as to the law could be revised by
a second, that of the second, however contrary to the highest
law, could not be.

* * * * *

Resort is occasionally had to the assistance of a jury by a court
of chancery for the better disposition of some disputed question
of fact on which the equities of the parties depend. This cannot
(except by force of some express statute) be claimed as a matter
of right. The judge sends the issue to a jury for trial only if
he thinks it would be helpful to him, but their verdict has no
conclusive effect. He can adopt it or ignore it, at his
pleasure.

* * * * *

The selection of jurors is a long process. The general plan is
to commit to some local authorities in each city, town, or county
the choice of a considerable number out of the inhabitants whom
they may think suitable to serve in that capacity; then to have
that list revised by some higher officials or persons specially
appointed by the courts for the purpose, who must strike out a
large part of the names; and finally to have those who are to be
summoned to attend any particular term of court for jury duty
chosen by drawing from the remaining names by lot. In many
States special qualifications as to age, education, and
intelligence are required. Out of the jurors thus summoned to
attend the court, there is a further choice by lot of those to
try each particular case, subject to objections made by either
party to any thus drawn, for proper cause.

The statutes of the United States provide that jurors in the
Circuit and District Courts shall be selected in each State from
those qualified to serve in its highest trial courts, and in
substantially the same manner.

* * * * *

The right to a jury trial is in civil actions often waived by
both parties, in which case the facts as well as the law are
determined by the judge. If not expressly claimed, it is by the
rules of practice in some States treated as waived. The number
of civil causes tried to the jury, taking the country as a whole,
is declining. The decline is generally found to be quite
accurately proportioned to the confidence felt by the bar in the
ability and independence of the judge,[Footnote: See Paper by
Justice Henry B. Brown, in the American Bar Association Report
for 1889, p. 265, on "Judicial Independence."] or perhaps to that
confidence in the case of a former generation. Tradition and
custom have a large influence on whatever pertains to the
practice of law. In several of the States a majority of the
civil causes which might be tried to the jury are not: in
Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
in England is also toward dispensing with the jury in ordinary
civil trials. Over a million cases are brought every year in the
English county courts, and in not one in a thousand of them is
there a jury trial, although if the matter in demand is over L5
in value either party may claim it.[Footnote: Maitland, "Justice
and Police," 28, 29, 54. For small cases the jury is one of
five, but their verdict must be unanimous.]

Criminal trials, except in case of trivial offenses, it is
generally necessary to hold before a jury, by express provisions
of the Constitution.[Footnote: See Cooley, "Constitutional
Limitations," 389.] During the colonial era the defendant was
allowed in Massachusetts to waive a jury, even in capital
cases.[Footnote: Proceedings of the Colonial Society of
Massachusetts, VI, 95.] Statutory permission to the same effect
has since been given in some States where there is no
constitutional provision to the contrary.[Footnote: State
_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
the right to demand a jury in petty cases has been restricted in
a number of States.[Footnote: In New Hampshire, for instance, a
constitutional amendment was passed in 1877 denying it in cases
involving less than $100, unless title to land is involved.]

At common law the judges were accustomed and allowed to put great
pressure upon juries, if necessary, to force them to unite in
rendering a verdict. They could be kept together without food or
beds all night, and even carted about from one court town to
another until they were ready to report an agreement. Very
little of this practice remains in the United States. In some
States they are allowed to separate and go to their homes at
night during the trial even of a capital case, and while
deliberating over their verdict they are generally supplied with
food and other comforts.

The right of trial by jury was limited at common law to trials of
what are called "issues of fact;" that is, of the truth of a
statement of material facts made by one party and denied by the
other. If, therefore, in a civil cause a judgment has been
ordered for the plaintiff without a verdict, as where the
defendant has failed to appear and answer, it is for the court to
say for the recovery of what amount of damages the judgment shall
be rendered. It may inquire into this by the aid of a jury, but
such a jury need not consist of twelve. The inquiry may also be
conducted by the judge alone.[Footnote: Dyson _v._ Rhode
Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,
771.]

In most of our States this common law practice has been
abandoned, and damages, in cases of the kind above described,
would be assessed by a jury of twelve. This is because otherwise
a defendant who did not dispute his liability for the act
complained of and only wished to reduce the amount of damages
claimed in the writ might, after declining to appear and plead,
come forward with a motion to be heard by the court on the
question of damages. A motion of that kind would naturally be
granted, and the effect would be to transfer the decision of the
only actual controversy between the parties from a jury to a
judge. In Connecticut the old practice was maintained until
1907, and the courts held that on the hearing as to the damages,
in actions where there had been no contract between the parties
to fix the rule of assessment, the defendant might show, if he
could, that only nominal damages should be given, because really
the plaintiff had no cause of action at all.[Footnote: Lennon
_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
334.] The result was that many suits arising out of railway
accidents in that State were brought against the company in fault
in other States in which process could be served to compel its
appearance, and where a full jury trial could be secured. The
legislature finally interposed and gave the plaintiff a right to
claim a trial by jury, notwithstanding a default.[Footnote:
Public Acts of 1907, 665.]

* * * * *

CHAPTER XIII

FORMALITIES IN JUDICIAL PROCEDURE

The sessions of a court of record of general jurisdiction are
daily opened by a formal proclamation made, at the command of the
judge, by the crier or sheriff's officer in attendance. In many
States the ancient English style of expression has been
preserved, which dates back to the Norman conquest, and begins
with a cry of "_Oyez, Oyez, Oyez_." These proclamations are
often closed with such words as (for instance) "God save the
Commonwealth of Rhode Island and Providence Plantations." The
adjournment from day to day is announced in a similar but less
elaborate manner.

Many courts hold a certain number of stated "terms" annually, the
first day of which is fixed by statute, and each of which is
adjourned whenever the business that may come before it is
finished, lasting sometimes but a few days and sometimes months.
In a number of States such terms are opened by prayer offered by
a minister of religion, invited in for the purpose by the sheriff
or court attendant. No regular chaplain is employed, and one
term may be opened by a Presbyterian minister and the next by a
Roman Catholic priest.

In some of the smaller counties in Massachusetts the sheriff or
his deputy daily escorts the judge to and from the court house,
in accordance with what has been the usage from colonial times.

Formerly it was the practice in New England to ring the bell of
the principal church in the town daily at the hour when court
opened.[Footnote: This was continued in Connecticut until the
last quarter of the nineteenth century.]

In many courts it is the custom for all present to rise on a
signal from the sheriff or marshal when the judge enters the
court room to take his seat on the bench. This is the general
usage in the federal courts and in the appellate courts of
States. In the latter a formal proclamation is often made by the
sheriff to announce the coming of the judicial procession,
concluding with a "God save the Commonwealth." In some States
formal bows are interchanged between bench and bar as the judges
take their places, after which the court is opened by the
customary proclamation and the bar then requested by the judges
to resume their seats.

The rules of official precedence are strictly observed in
appellate courts. In entering the court room the chief justice
advances first, and his associates follow in the order of the
dates of their commissions, the senior associate justice taking
his seat on his right, the second in seniority on his left, the
third in seniority on the right of the senior associate justice,
and so on; the junior in commission occupying the end seat on the
left of the bench.

The members of the Supreme Court and of the Circuit Court of
Appeals of the United States have always worn black silk gowns.
The members of the Supreme Court of South Carolina have worn them
from a time antedating the Revolution. The New York Court of
Appeals in 1877, at the request of the bar, preferred through
David Dudley Field, adopted the practice,[Footnote: In 1903 it
was extended to _nisi prius_ courts held by justices of the
Supreme Court.] and the same thing has since been done by
appellate courts in several other States. In one of these,
Massachusetts, they had been worn in the colonial era. About
1760, Chief Justice Hutchinson introduced gowns and cassocks
there on the Supreme bench, and also gowns, bands, and tie-wigs
for lawyers who were admitted as barristers of the Superior
Court.[Footnote: "Life and Works of John Adams," II, 133, note,
197.] The latter soon abandoned these, but gowns were retained
by the judges until 1793.[Footnote: Publications of the Colonial
Society of Massachusetts, V, 22; Amory, "Life of James Sullivan,"
I, 261, note.] In North Carolina gowns and bands were worn by
the members of the Supreme Court in 1767.[Footnote: Proceedings
of the Colonial Society of Massachusetts, VI, 389.] In New
Jersey, the bar were at one time required to assume them by a
rule of the Supreme Court, but the rule was vacated in 1791.

At the first opening of the Supreme Court of the United States,
in 1790, Chief Justice Jay wore a gown with salmon-colored
facings on the front and sleeves, of the style then used by
Doctors of Laws created by the University of Dublin, from which
he had received that degree.[Footnote: 134 U. S. Reports,
Appendix.] It has not since, in that or any other American
court, been the practice for judges to wear academic hoods or
other decorations on the bench.

* * * * *

Counsel, in addressing the court, rise and begin with "May it
please the Court," "May it please your honor," or, before a court
in bane, "May it please your honors." The term "you" would never
be used to a judge on the bench; but that of "your Honor" would
be employed.

Great pains is taken by the officers in attendance to prevent
anything on the part of the audience that could in any way
disturb the proceedings, such as loud conversation or unnecessary
moving from place to place.

There is a good deal of antique form in the manner in which,
under the direction of the clerk, prisoners are arraigned and
juries are made up or "impanelled" for the trial of a cause.

In charging a jury, the judge commonly rises and the jury do the
same.

When sentence is pronounced on a conviction for crime the
prisoner is required to rise. In cases of capital offenses, he
is asked by the judge if he has anything to say why judgment of
death should not be pronounced against him. It is highly
improbable at that stage of the cause that he should have
anything to urge which has not been already considered, but the
ancient English practice in this respect is still followed, for
it is not absolutely impossible that something may have occurred
since the verdict that would affect the judgment.

* * * * *

CHAPTER XIV

TRIAL COURTS FOR CIVIL CAUSES

The great bulk of litigation is confined to the civil trial
courts, that is, to courts for the trial of ordinary causes
between man and man. It also has its seat in the trial courts of
the States, for not only is the judicial power of the United
States confined by the Constitution within narrow limits, but
these have been made still narrower by the action of Congress
from time to time.

Most lawsuits never get to trial. The defendant generally has no
defense, and is well aware of it. The suit is brought to obtain
security or force a settlement. He employs no lawyer and lets
things take their course. The result is a judgment against him
for default of appearance; for if one who has been duly summoned
to court to answer to a demand fails to attend and answer, the
court assumes that there is no answer that he could make, and
disposes of the cause on such evidence as the plaintiff may
produce. On the other hand, the plaintiff often does not care
for a judgment. He has become satisfied that, if he got one, he
could not collect it, or he has availed himself of the suit to
secure a compromise of the matter in demand on satisfactory
terms. In such case, or if, after bringing an action, he becomes
convinced that he cannot maintain it, he withdraws it, or if the
defendant insists, suffers a judgment to go against him, called a
nonsuit.

In some States the writ or process by which the action is begun
must be accompanied by a full statement of the particular nature
of the plaintiff's claim. In others this is not required, and
such a statement is only furnished when specially ordered by the
court. If the case goes to trial on the merits, it will be on
such a statement furnished by the plaintiff, and on some paper
filed by the defendant by way of answer. Occasionally these
pleadings, as they are called, are such as to call out further
statements or claims by way of reply and rejoinder. Their form
is now generally regulated by statutes, and is much the same in
most of the States, being based upon a system known as "Code
Pleading," which originated in New York about the middle of the
nineteenth century. It is simpler and less technical than the
system under the common law which it replaced.

If the defendant has any objections to the maintenance of the
suit, on such a ground as that it is brought in a wrong court, or
a wrong way, these are first disposed of. Then, if he asserts
that the plaintiff on his own showing has no case, or if the
plaintiff asserts that the defense set up is insufficient on its
face, this being a question of law, the judge decides it without
the aid of a jury. When, however, the facts are in dispute, a
jury must be called in, if either party claims it, in an action
not of an equitable nature, when the matter in controversy is one
of any considerable amount.

In this country we adhere to the old common law mode of taking
exceptions to the legal sufficiency of written pleadings. This
was by filing a paper called a "demurrer," in which the
particular objections were set out, unless, as was frequently the
case, they were so fundamental as to be apparent at the first
glance. In many States, however, the objections must always be
particularized. In England demurrers are no longer used. Her
Judicature Act of 1873 put an end to the common law system of
pleading, reconstituted her whole method of judicial procedure,
and authorized the judges to make rules and orders from time to
time to adopt the new scheme to convenience in practice. One of
their orders, passed in 1883, abolished demurrers. In place of
them, the party desiring to have the benefit of points of law
arising on the face of the pleadings may state his point to the
court and ask to have it set down for separate argument before
proceeding to a trial of the cause on the facts. American
lawyers are not satisfied with the reasons which led to this
change. They were that the old practice made it a matter of
right to claim a special hearing on a law point, while the new
order would leave it to the discretion of the judge. The English
judges are few and able. Such a plan may work satisfactorily
under their administration, but it might often lead to useless
delays and expense if introduced in a country where judges are so
numerous and of such different qualifications as is the case in
the United States.

Our trial courts are now generally held by a single judge. Until
the latter half of the nineteenth century it was not uncommon to
have three judges sit together in county or city courts. One of
them would be a lawyer and the others not.[See Chap. VIII.] In
cities the two side judges were generally aldermen. A tribunal
thus constituted is better adapted in some respects to trying
questions of fact than a single judge. It is a jury of three
acting by a majority. But for the conduct of a jury trial it is
unwieldy, slow-moving and uncertain. In most cases any question
of law or legal practice will be virtually decided by the
presiding judge, but he will usually pause to go through the form
of consulting his associates. Occasionally they will overrule
him, and in such case it will be apt to be by a misunderstanding
or misapplication of law. The expense of three judges, however
moderate the compensation, has also weighed in favor of an
abandonment of the system. It naturally results in paying too
little to the chief judge, and too much to the others; and always
costs more than it would to pay one man a sufficient salary.

We have not the need of several judges to hold a trial court,
which is felt in many countries. They use them for a purpose
which our juries supply. For similar reasons Americans have not
seen any occasion for organizing special courts, such as are the
German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to
try special classes of causes. A jury of twelve will be apt to
contain some men who will adequately represent those interested
in any ordinary industrial or commercial controversy.

Petty suits not of an equitable nature must generally be brought
before a justice of the peace, who disposes of them himself, both
as to matters of evidence and fact, but subject to an appeal to a
higher court in which a jury trial can be had. In some States he
can summon in a jury of six and leave the facts to their
determination. The pleadings before him are usually in the same
form as in the higher courts.

In jury trials of civil causes the judicial function is, so far
as possible, divided into two distinct parts. All questions of
pure law are decided by the judge alone. All questions of pure
fact are decided by the jury alone. All questions turning on the
application of the law to the facts are decided by the jury under
instructions from the judge as to what applications of the law it
would be competent for them to make under the particular
circumstances which they may find to have existed. The judge
also has a large discretionary power in minor matters arising in
the course of the suit. It is for him to say when it shall be
tried; whether the written pleadings are in proper shape, and if
not whether they may be amended; and in what order and within
what limits the evidence may be introduced.

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