Andrew Barton Paterson - "An Outback Marriage"

Alfred Elwes - "The Adventures of a Dog, and a Good Dog Too"

D. G. Hogarth - "The Ancient East"

Margaret Warde - "Betty Wales Senior"

Editorial
This paper argues that discourses of love in Ghanaian market literature for youth offer a view into complex negotiations of agency and empowerment. Drawing on Deborah Durham's notion of youth as "social `shifters'" and Francis Nyamnjoh's conception of the "interconnectedness" of agency, I take Ghanaian market literature as one specific case of how African literature for youth foregrounds questions of continuity and change as African societies enter into increasingly complex global relations. In this literature for youth, received notions of love, often constructed out of impressions from American pop and hip hop music, carry new notions of agency that compete with existing "domesticated" forms. Authors like Ike Tandoh and Evelyn Tay employ discourses of love to offer youth alternative avenues for empowerment in a context of socio-economic disenfranchizement. In a creative process of "straddling", this writing both reveals and reproduces the contradictions that obtain in youth configurations of agency.

The American Judiciary

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




In most States, the great majority of indictments are against
those who have already been committed on a magistrate's warrant
to answer to the charge, should an indictment be found. The
accused thus has two chances of escape before he can be put on
trial for the charge against him: one by a discharge ordered by
the committing magistrate, and one by the refusal of the grand
jury to return "a true bill." A grand jury is more apt to throw
out a charge as groundless than a single magistrate. He feels
the full weight of undivided responsibility. If he err by
discharging the prisoner, he knows that it may let a guilty man
go free, untried. If he err by committing him for trial, he
knows that, if innocent, the jury are quite sure to acquit him.
He acts also in public. The whole community knows or may know
the proofs before him, and will hold him to account accordingly.
On the other hand, in the grand jury room all is secret. The
prosecuting attorney, if admitted, does not remain while the
jurors are deliberating over their decision. No one outside
knows who may vote for and who against the return of an
indictment. Every opportunity is thus afforded for personal
friendship for the accused or business connection with him to
have its influence. Judges know this, and in their charge often
emphasize the importance and gravity of the duty to be performed.
In 1903, the prosecuting officer in one of the small counties in
Kentucky had prepared indictments against several men of some
local prominence for arson and bribery. A special grand jury was
summoned to act upon them. There was reason to expect some
reluctance on the part of several. Of the witnesses for the
State some were no less reluctant. There was great public
excitement in the court town. One witness came there over ninety
miles by rail hidden, for fear of his life, in a closed chest in
the car of an express company. The grand jury were told by the
court that they must make their inquiry a thorough one and indict
without fear or favor every person in the county who ought to be
indicted. "If," the judge added, "the evidence calls for
indictments and you don't make them, they will be made anyway.
If you do not do your full duty, I will do mine by assembling
another grand jury." They did theirs under these stirring
injunctions, and the indictments were promptly found.

After the indictment or information comes the arraignment. This
is bringing the defendant before the court and, after the charge
made against him has been read, directing him to plead to it.
Before the plea is entered, if he has no counsel, he is asked if
he desires the aid of one, and if he responds that he does (or
should he not, if the court thinks he ought to have counsel),
some lawyer will be assigned to that duty. Some of the younger
members of the bar who are present are generally desirous of
being so assigned to defend those who have no means to employ
such assistance. The court ordinarily makes the assignment from
among their number, but in grave cases often appoints lawyers of
greater experience and reputation. No one who is so assigned is
at liberty to decline without showing good cause for excuse. A
small fee is often allowed by statute in such cases from the
public treasury. Statutes are also common providing that
witnesses for the defense may be summoned at the cost of the
government, if the defendant satisfies the court that their
testimony will be material, and that he is unable to meet this
expense.

In the federal courts, in capital cases, the defendant must be
furnished with a copy of the indictment and a list of the jurors
summoned to court and of the government witnesses, at least two
days before the trial.

Whether impanelling the jury for the trial of a case is a long or
short process will depend largely on the intelligence and
firmness of the judge who holds the court. Each side can
challenge a certain number of the jurors in attendance without
stating any reasons for it, as well as any and every one of them
for cause shown. If a juror has formed an opinion as to the
guilt of the accused so definite as to amount to a settled
prejudice against him, he is incompetent. In grave cases the
prisoner's counsel will often seek to examine every juror whose
name is drawn at great length as to whether he has such an
opinion. A capable judge will keep such an inquiry within close
limits.

In 1824, an indictment for murder was found in Kentucky against a
son of the Governor. The case was one which excited great public
interest, and was talked over from one end of the State to the
other. The result was that when the trial came on it was found
impossible, term after term, to make up a jury of men who, from
what they had heard or read, had not formed what the defense
claimed and the court thought to be a sufficiently firm opinion
as to the guilt or innocence of the accused to justify their
exclusion. The legislature was finally appealed to for relief
and passed a statute that an opinion formed from mere rumor
should not be a ground of challenge. The case was then, in 1827,
taken up for the ninth time, but with the same result, whereupon
the defendant's father gave him a pardon, on the ground that "the
prospect of obtaining a jury is entirely hopeless," and that he
had "no doubt of his being innocent of the foul
charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII,
336.]

When a capital case is coming on, great pains will often be taken
by the prisoner's counsel to ascertain the characteristics and
disposition toward his client of each of the jurors who have been
summoned to court. This has sometimes been carried to the extent
of trickery, particularly in some of the Southern States. Agents
have been sent over the county to see every man capable of jury
service. There is some ostensible reason given for the call. He
is perhaps asked to buy a photograph of the accused; perhaps to
contribute to a fund to provide him with counsel. This naturally
leads to some expression of opinion in regards to the charge made
against him, and if the man thus "interviewed" should be
afterwards offered as a juror, he is challenged or not challenged
according to the information so obtained.

In every criminal case the defendant's guilt must be proved
beyond a reasonable doubt. A mere preponderance of evidence is
not enough. In other respects the rules of evidence are
applicable which obtain in civil cases.

If a verdict of Not Guilty is returned, the court orders the
discharge of the prisoner, as a matter of course, unless
provision has been made by statute for an appeal by the State for
errors of law committed on the trial. No such appeal can be
allowed for the purpose of obtaining a new trial on the ground
that the jury came to a wrong conclusion on the facts. This
would be to put the defendant twice in jeopardy, which our
Constitutions generally forbid. Even under the practice
prevailing in the Philippine Islands, where they have no juries,
and an appeal to a higher court for a new trial on the merits has
always been allowed to either party in a criminal case, as a
matter of right, this rule is held to apply.[Footnote: Kepner
_v._ United States, 195 U. S. Reports, 100.]

If the verdict is one of Guilty, the sentence is pronounced by
the judge. He generally has a broad discretion as to the extent
and nature of the punishment. For many offenses, either fine or
imprisonment or both may be imposed, according to his best
judgment. For most, when imprisonment is ordered, it may be for
a term such as he may prescribe within certain limits, as, for
instance, from one to five years. In a number of States of late
years the judge is permitted in such a case to sentence for not
less than one year, and it is left to some administrative board
to determine later how much, if any, longer the confinement shall
last, in view of the circumstances of the offense, the character
of the prisoner, and his conduct since his sentence.

A considerable and increasing group of penologists is pressing
upon our legislatures the extension of the principle of the
"indeterminate sentence" by removing the limit of a
_minimum_ term. It is doubtful if such a change would
satisfy the constitutional requirement of a trial by jury. That
in its nature involves a trial before a judge and a sentence
imposed by the court upon the verdict. Can that be deemed a
judicial sentence to imprisonment which is a sentence to
imprisonment during the pleasure of certain administrative
officials? Judgments are to ascertain justice. To do this they
must be themselves certain. In a purely indeterminate sentence
there is no certainty until it has been made certain by the
subsequent action of the administrative authorities. It may turn
out to be imprisonment for life, and the advocates of this mode
of action frankly say that such ought to be the disposition of
all incorrigible and habitual criminals. If so, ought not the
fate to be meted out to them by judicial authority? Can anything
less than that be considered as due process of law?

An experienced and able judge seldom makes any serious error in
grading the punishment of offenders who have been tried before
him. The sentence is not pronounced until they have been fully
heard as to all circumstances of extenuation, nor until the
government has been heard both as to these and as to any
circumstances of aggravation. The sentence, if the offense be a
grave one, cannot be pronounced except in the presence of the
convicted man. He has an opportunity for the last word.

Judges who are neither able nor experienced frequently impose
sentences too light or too severe. We have too many such judges
in the United States. The real remedy for the evil is to choose
better ones. As between judges and boards of prison officers or
of public charities, the judge always has the great advantage of
having tried the case and heard the witnesses. He ought
therefore to be best able to fix the term of punishment.

The punishment to which one can be sentenced on a conviction of
crime is now generally limited to fine or imprisonment. For
graver offenses both may be inflicted: for murder, and in some
States for a very few other crimes the penalty is death. The
policy of the older States long was to require those whose
offenses were directed against property to make good the loss of
the injured party. Whipping was also often added, and it was
formerly a common mode of punishment throughout the country for
all minor offenses. Every colony used it. It was authorized by
the original Act of Congress in 1790 on the subject of crimes,
and was not abolished for the courts of the United States until
1839. It was provided for in the early statutes of most of the
States, and in some still is. Until 1830, it was the only mode
of corporal punishment allowed in Connecticut for the general
crime of theft. For boys it is often the only punishment that
can properly be administered. To fine them is to punish others.
To imprison them is, in nine cases out of ten, to degrade them
beyond recall. Virginia, in 1898, reverted to it as an
alternative to fine or imprisonment in the case of boys under
sixteen, provided the consent of his father or guardian be first
given. Such a statute seems absolutely unobjectionable from any
standpoint. It is often asserted that whipping is a degrading
and inhuman invasion of the sanctity of the person. To shut a
man up in jail against his will is a worse invasion. But as
against neither is the person of a criminal convict sacred. He
has justly forfeited his right to be treated like a good citizen.
Whether whipping is a degradation or not must depend much on the
place of its infliction. The old way in this country, as in
England, was to inflict it in public. This puts the convict to
unnecessary shame. Let him be whipped in private, and his only
real degradation will be from his crime. So inhumanity is
needless. A moderate whipping only should be allowed. That is
far more humane to most men than a term of jail; that is, it
detracts less from their manhood than the long slavery of
confinement.

Of late years there has been a decided movement in the United
States toward a return to the penalty of whipping for atrocious
cases of assault or offenses by boys.[Footnote: See Paper on
"Whipping and Castration as Punishments for Crime," _Yale Law
Journal_, Vol. VIII, 371, and President Roosevelt's Message to
Congress in December, 1904.] It is probable that it will find
more favor hereafter in the South as a punishment for negroes.
Most of their criminals are of that race. The jails have no
great terrors for them. They find them the only ground where
they can mingle with their white fellow-citizens on terms of
social equality. But they are sensitive to physical pain. A
flogging they dread just as a boy dreads a whipping from his
father, because it hurts. The South may have been held back from
applying this remedy in part from the apprehension that it might
be considered as reinstating the methods of slavery. No such
criticism could fairly be made. Confinement in jail is
involuntary servitude, and involuntary servitude is slavery.
Whipping is a substitute for it: it saves from slavery.

In several of the Southern States, instead of imprisonment,
ordinary offenders are set at work in the open air, either on
convict farms, or in chain gangs on the highway, or in the
construction of railroads or similar works. This plan prevails
in Georgia and Arkansas to such an extent that very few are
confined in the penitentiary. The convicts in these States are
mainly negroes. When, as has been at times permitted, they have
been turned over to private employers to work in this manner for
wages paid to the State, many of the abuses of slavery have
reappeared, and public sentiment is becoming decidedly adverse to
the allowance of such contracts for convict labor. Similar
objections do not lie in their employment on State farms, and in
North Carolina and Texas this has been tried with considerable
success.[Footnote: See "Bulletin de la Commission Penetentiaire
Internationale," 5th series, II, 179.]

Special courts have been organized, or special sessions of
existing courts directed, for the disposition of prosecutions
against children in several of the States and in the District of
Columbia during the past few years. The judge holding such a
"Juvenile Court" or "Children's Court" is expected to deal with
those brought before him rather in a paternal fashion. An
officer is generally provided, known as a Probation Officer, to
whom the custody of the accused is largely committed both before
and after trial. He is to inquire into each case and represent
the defense at the hearing. In case of conviction, the child
can, on his advice, be released on probation, or the sentence can
be suspended.

For errors of law committed by the judge in the course of the
trial the defendant commonly has a right of appeal. Until 1891
this was not true in the federal courts, and a man convicted and
sentenced there under an erroneous view of the law and in
disregard of any of his rights had no remedy, even in a capital
case. It was so in Delaware until 1897.

In some States there is a right of appeal in favor of the
government as well as of the defendant for errors of law, and
this even after a jury trial ending in a verdict of acquittal.
It is there held that the common constitutional provision that no
man shall be put twice in jeopardy of life or limb is not
contravened by the allowance of such a remedy. The writ of error
is a stage in the original prosecution. One acquitted of crime
is deemed not to be put out of jeopardy unless he has been
acquitted according to the forms of law, and after a trial
conducted according to the rules of law. What these rules are,
in case of dispute between the government and the accused, must
be determined by such proceedings in the cause as the legislature
may deem best adapted to ascertain them in an authoritative
manner. Such a mode may properly be furnished by allowing a
resort to a higher court, and a resort in favor of either
party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30
Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,
_J_., in People _v._ Olcott, 2 Day's Reports, 507,
note.] In other States such a review, in favor of the
government, of the conduct of the cause is only supported when
the exceptions taken are founded on what may have preceded the
trial.[Footnote: People _v._ Webb, 38 California Reports,
467.] This distinction is approved by the Supreme Court of the
United States.[Footnote: Kepner _v._ United States, 195
United States Reports, 100, 130.]

For errors in conclusions of fact the defendant, in certain
cases, has a remedy on a petition for a new trial, but in no case
can the State ask for one. This is true even though the trial
was not had to a jury.

There is no doubt that new trials are too often granted in the
United States in favor of those who have been convicted of crime.
Particularly is this true when they are ordered because of some
irregularity of procedure or slip in the admission or exclusion
of evidence. A verdict, whether in a civil or criminal case,
should stand, notwithstanding it was preceded by erroneous
rulings or omissions of due form, unless the court of review can
see that substantial injustice may on that account have been
done.[Footnote: See Paper on "New Trials for Erroneous Rulings
upon Evidence," by Professor J. H. Wigmore, in the _Columbia
Law Review_ for November, 1903.] To release a convicted
criminal for error in mere technicalities not really affecting
the question of his guilt tends to make the people lose faith in
their courts and resort to lynch law as a surer and swifter mode
of punishment.

Appeals in criminal causes are, however, much rarer and also much
less often successful than is generally supposed. About eleven
thousand persons were convicted of felonies in the County Courts
of New York during the five years from 1898 to 1902, inclusive of
each, and of these less than nine in a thousand pursued an
appeal, not a third of whom secured a judgment of
reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_
for March, 1904.] In Massachusetts, about a hundred thousand
criminal prosecutions are annually brought, and the appeals to
the Supreme Judicial Court from sentences of conviction rarely
exceed twenty to twenty-five in number, and upon these in each of
the years 1902 and 1903 only two new trials were
granted.[Footnote: _Law Notes_ for December, 1904.]

A comparison of the number of those put to death in the United
States for crime by the courts, and on a charge of crime by a
mob, for the past three years shows these results:

Executed by
Judicial Sentence. Lynched. Total.

1901 118 125 243
1902 144 96 240
1903 123 125 248

A large majority of those lynched were negroes, and met their
fate in the South. It is extremely difficult to secure a
conviction of those who take part in such acts of violence. They
commit the crime of murder, and the penalty is so heavy that
their fellow-citizens are unwilling to subject them to it. The
offenses with which the men whom they kill are charged are also
generally of a nature which make them peculiarly offensive to the
community. Many are negroes charged with the rape of a white
woman, to whom it would be intensely disagreeable to testify
against them. Not a few are men under sentence of death, who it
is feared may escape or delay punishment by an appeal.

Such considerations cannot excuse, but present some slight
palliation for those acts of mob violence by which the people of
the United States are so often disgraced. It may be added that
out of the Southern States they are quite rare, and in the
Northeastern States substantially unknown. Of the one hundred
and four lynchings in 1903, only twelve occurred in the North or
West.

* * * * *



CHAPTER XVIII


THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT


A public officer, whose duties are mainly other than judicial,
may be invested with judicial power to be exercised only in
certain causes which may be brought before him, in disposing of
which he acts as a court. Such an one is a judge only when he is
holding court. When it is adjourned, no court exists of which he
could be a judge. Justices of the peace and parish judges are
officers of this description. But ordinarily judges are
appointed to hold some regular court, with stated sessions, which
is always in existence. To such a judge considerable powers of a
judicial nature are usually given for exercise when his court is
not in session.

The writ of _habeas corpus_, for instance, may be issued
either by a court of record or by a judge of such a court, if
applied for when the court is not in actual session. In the
latter case, the return of the writ is made to him, the trial had
before him, and judgment rendered out of court, or, as it is
styled, "at chambers." While sitting for such a purpose, he may
be regarded as exercising functions which really belong to the
court and acting as a part of it.

Statutes often, in case of a court having but a single judge,
give him power to hold special courts whenever he may think
proper. In such a case no very definite line is drawn between
what judicial business the judge does and what the court does.
While the proper and normal constitution of a court of record
requires the attendance not only of a judge, but of a clerk and a
crier or sheriff's officer, the only one whose presence is
indispensable is the judge. A District Judge of the United
States has this power of holding special courts, and is a court
wherever and whenever he pleases to transact judicial business,
whether he describes himself in such papers or process as he may
issue, as court or judge.[Footnote: The U. S. _v._ The
Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]

The judges of courts having equitable jurisdiction act often out
of court in the issue of temporary injunctions. These are writs
directing some one to refrain from doing a certain act. They
generally direct it under pain of a specified pecuniary
forfeiture; but whether they do so or not, disobedience is
punishable also by arrest and imprisonment, being treated as a
contempt of court. The need of an injunction is often immediate.
It would be worthless unless promptly granted. When, therefore,
no court having power to issue one is in actual session, there
would be a failure of justice if the judge could not act to the
extent of granting temporary relief. Whether the injunction
should be made permanent is a subsequent question, to be
determined after a full hearing by the court. It may, in urgent
cases admitting of no delay, be issued _ex parte_, but
ordinarily the defendant is notified and has an opportunity for a
summary hearing, either orally or on affidavits, before action is
taken.

A similar power often vested in judges at chambers is that of
appointing a temporary receiver; that is, of some one to take
temporary charge of property in behalf of and as agent of the
court, when this seems necessary in order to preserve it. If the
affairs of a commercial partnership get into such a condition
that the partners cannot agree on the mode of conducting it, such
an appointment can be made to tide matters along for the time
being. So in case of an insolvent debtor his estate may, under
certain circumstances, be placed in a receiver's hands by a
summary order, issued out of court.

It may be added that by the statutes both of the United States
and of all the States many powers of a _quasi_-judicial
character are conferred on judges to be exercised out of court,
such as those of ordering the arrest of one suspected of criminal
conduct, examining into the charges against him on his arrest,
and admitting him to bail or sending him to jail for want of it.

* * * * *



CHAPTER XIX


APPELLATE COURTS


For each of the States and Territories as well as for the United
States there is one supreme court of appellate jurisdiction.

The Supreme Court of the United States can entertain original
actions of certain kinds.[Footnote: See Chap. IX.] A few also of
the State supreme courts of appeal have a limited original
jurisdiction. This is generally confined to equity causes,
election contests and certain actions for extraordinary relief
known as prerogative writs, such as informations in the nature of
_quo warranto_ and writs of mandamus.

The term "appeal" in its strictest signification is confined to a
removal of a cause after trial to a higher court for a new trial
on the merits.

It is also and now more commonly used to denote such a removal
for the purpose only of inquiring whether any legal errors were
committed on the trial or are to be found in the judgment. In
this sense it covers proceedings by a writ of error, and any
other mode of reviewing questions of law.[Footnote: See the
_Federalist_, No. LXXXI.] If it does not appear from the
record of the lower court that any of the errors that may be
claimed (or "assigned," as the phrase is) exist, the judgment is
affirmed; otherwise the cause is sent back for a new trial or, if
the objections are fundamental and fatal to its maintenance, is
dismissed.

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