The American Judiciary

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

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The modern sense of the value of time, of scientific treatment of
whatever can be treated scientifically, and of uniformity in
scientific methods led toward the close of the nineteenth century
to competition in reporting. Private publishing houses undertook
the prompt publication, in scientific arrangement upon a uniform
plan, of the opinions of the courts. This work began in 1879.
The result has been that the series of official reports of the
Circuit Court of Appeals of the United States has been
discontinued, and that the decisions of all our other appellate
courts are now twice reported. One publishing house has grouped
the States into clusters, issuing for each cluster its own series
of reports, known, respectively, as the Atlantic, the
Northeastern, the Northwestern, the Southeastern, the Southern,
the Southwestern and the Pacific Reporters. The States forming
each group have been selected mainly because they were neighbors
geographically, but partly from commercial reasons. Thus
Massachusetts, which would naturally be assigned to the Atlantic
Reporter, has been put into the Northeastern; and such inland
States as Kansas and Colorado find their place in the Pacific
Reporter. All the reported decisions of all the States in each
group are printed in pamphlet form weekly, as they may be handed
down, in chronological order; and every few months the whole
issued as a bound volume. In this way, for a trifling sum a copy
of any opinion of any American court of last resort can be had in
a few days or weeks after its announcement, and a lawyer's
library can, at slight expense, be furnished with the decisions
not only of his own State but of several others having not unlike
laws and institutions.

The multiplication of American reports makes judicial precedents
of decreasing value to the American lawyer. English cases are
cited as authority far less frequently than they were before the
middle of the nineteenth century. The omnipotence of Parliament
and the free hand with which that has been exerted to change the
common law have tended to separate English from American
jurisprudence. Our written Constitutions have perpetuated here
ideas of government and property which England does not
recognize. Hence American precedents are of more use than
English. But American precedents are becoming so numerous that
the advocate who seeks to avail himself of them is tempted to
cite too many and to examine them with too little care. In each
State its own reports are the expression of its ultimate law.
With these every member of its bar must be familiar. But the
courts before which he argues listen to him with more
satisfaction and greater benefit if he deals with the principles
of law rather than with foreign precedents which may or may not
correctly apply them.[Footnote: See a valuable statistical
article on "Reports and Citations" in _Law Notes_ for
August, 1904.]

Not every opinion which is delivered is officially reported. In
most States the court has and exercises the power of directing
that such as they may deem of no substantial value to the
profession at large shall not be. Many are simply applications
of familiar rules which obviously control. Opinions of that kind
interest only the lawyers in the cause. In the unofficial
reports, however, such cases are sure to appear and the bar is
divided in opinion as to whether they should not also be given a
place in the official ones.

It is not always easy for the court or the reporter to determine
what decision may thereafter be relied on as a precedent.
Repeated instances have occurred in which such a use has in fact
been made and properly made of some not noted in the regular
reports, and not infrequently they have subsequently been
inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
of those of the Supreme Court of the United States, one hundred
and twelve opinions are printed, the first delivered over fifty
years before, which previous reporters had thought best to omit,
and two hundred and twenty-one more such are published in
Vol. CLIV. Whoever runs them over will be apt to think that the
previous reporters were right.] There is also in case of an
opinion not to be officially reported a loss of a valuable
safeguard against unsound decisions. A judge writes with more
care and examines the points of law which may be presented more
closely if he writes for the public and for posterity.

On the whole the prevailing sentiment is that the reasons for
repressing some are stronger than those for publishing all
judicial opinions. It will be few only that, under any
circumstances, will be omitted. The leading lawyers in every
State are expected to run over, if they do not read, every case
in every new volume of its reports. Every case dropped lightens
this task. It helps to keep indexes of reports and digests of
reports and legal treatises within reasonable limits. It cuts
into an accumulating mass of material, most of which must, in any
event, so far as points of law are concerned, be a mere
repetition of twice-told tales, that is becoming so vast in the
United States as to becloud rather than illuminate whoever seeks
to know what American law really is.

If reporters will not select and discriminate between adjudged
cases publishers can and will. Many sets have been prepared and
issued in recent years of selected cases on all subjects taken
from the official reports of all the States. Their professed aim
has been to include all worth preserving. In fact, they have
naturally been guided to a considerable extent by commercial
considerations. To every lawyer the leading cases in his own
State are of the first importance. He is not likely to buy any
compilation in which a number of these do not appear, even if
intrinsically, as statements of law, they may be of no great
value. Hence in the collections in question the rule of
selection is often the rule of three, and they are apt to contain
a certain proportion of the decisions of every State.

The leading sets are the "American Decisions," running from
1760[Footnote: Long after the publication of Kirby's Reports in
1784, some unofficial reports were published of cases decided in
colonial courts prior to any which he included.] to 1869; the
"American Reports," from 1869 to 1886; the "American State
Reports," from 1886 to the present time, which three sets include
over two hundred and fifty volumes and nearly 40,000 opinions;
and the "Lawyers' Reports Annotated," now extending over more
than sixty volumes, the first of which was published in 1888, and
contains no cases reported prior to the preceding year.

Spencer's rule of social evolution that all progress is from the
homogeneous to the heterogeneous tends steadily and inexorably in
the United States to lessen the value of judicial reports out of
the State in which the cases were decided. Each of forty-five
different commonwealths is building upon legal foundations that
are not dissimilar, but some of them are advancing far faster
than others, and none proceed at exactly the same rate or on
exactly the same lines. They are building by statute, by popular
usage and by judicial decision. Heterogeneity is most marked in
legislation and it tells most there. Whoever looks over a volume
of reports will find a large proportion of the cases turning upon
some local statute. An important index title is that of
"Statutes Cited and Expounded." In Vol. 138, for instance, of
the Massachusetts Reports (a volume selected at random for this
purpose), 223 statutes or sections of statutes are noted as
having been made the subject of remark in the 170 cases which it
contains. Almost all are Massachusetts statutes, a very small
proportion of which have been re-enacted elsewhere.

Appellate courts thus forced at every turn to study with care
into the effect of local legislation, much of which, to get at
its meaning, must be traced back historically through various
changes during a long course of years, and in the older States
sometimes for centuries, listen unwillingly to citations from
decisions of other States which are even remotely affected by the
statutes that may be there in force.

The newer States and those with a small population are naturally
the ones that rely most on foreign authority. In the last volume
(Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases
cited in the opinions of the court are of that kind. In the last
volume (Vol. 178) of the New York Reports, the percentage is but
thirty, and in the last of the Massachusetts Reports (Vol. 185)
it is only twenty-five.[Footnote: _Law Notes_ for April,
1905, 8.]

* * * * *

In the Supreme Court of the United States and in several of the
appellate courts of the larger States each judge is provided with
a clerk at public expense. While this is a means of relief from
much which is in the nature of drudgery, it sometimes leads to a
deterioration in the quality of the judicial opinions. A
dictated opinion is apt to be unnecessarily long, and when a
clerk is set to looking up authorities, although he can hardly be
expected always to select the most apposite, it is easier to
accept his work and use what he has gathered than to institute an
independent search.

Some of the appellate courts which are most fully employed, both
State and federal, are provided with special libraries of
considerable extent, and each of the individual judges is also
often furnished with an official library, sometimes containing
several thousand volumes, for his personal use, to be handed over
to his successor when he retires from office.[Footnote: In New
York, the private library of the Court of Appeals contains over
6,000 volumes, comprehending all the reports of all the States,
and the personal libraries provided for each judge have come to
comprise 3,500 volumes.]

In some States counsel have the right to demand to be heard
before a full court, and those who have taken the appeal
generally exercise it. As decisions go by majorities, the chance
of reversing a judgment before, for instance, a court of five,
which is a common number, is obviously greater when all its
members sit than when four do. In either case it must be the act
of three judges, and one is more likely to convince three out of
five than three out of four.

In the Supreme Court of the United States there is no means of
supplying the place of a judge who is absent or disqualified.
The remaining members, provided they constitute a quorum (that
is, a majority), proceed without him. In most of the States
there is some provision for filling the vacancy in such a
contingency. Sometimes it is by calling in a judge of an
inferior court; sometimes by application to the Governor for the
temporary appointment of some member of the bar as a special
associate justice to sit in a particular case.

In several of the larger States all the members of the court of
last resort do not and need not sit in every case. In some two
permanent divisions are constituted, to each of which certain
judges are assigned, and both divisions may be in session at the
same time. In other States certain judges are detached for a
certain time, during which they study causes which have been
argued and prepare opinions. This done, they resume their seats,
and others are released for similar duties.

In Ohio, for instance, the Supreme Court consists of six judges
and commonly sits in two divisions of three each, having equal
authority. The whole court sits to hear any cause involving a
point of constitutional law. It also decides those which have
been heard in one of its divisions and in which the divisional
court is in favor of reversing the judgment appealed from. An
affirmance by the divisional court is final, but if it inclines
to a reversal the judges communicate their opinions to the full
court, which also reads the printed briefs submitted on the
original argument, and then without any further oral hearing
pronounces final judgment. Four judges, therefore, at least,
must concur to accomplish a reversal. Should the full court in
any case be equally divided, the judgment appealed from stands.

Under the Constitution of California (Art. VI, Sec. 2) the
Supreme Court, which consists of seven judges, ordinarily sits in
two departments. Three judges can render a decision, but the
judgment does not go into full effect for thirty days unless
three, including the Chief Justice, have given it their approval.
The Chief Justice also, with the concurrence of two of his
associates, or four of these without his concurrence, can direct
that any cause be heard before a full court within thirty days
after judgment by a department court. He can also order the
removal into the full court of any cause before judgment.

In Michigan only five out of the eight judges sit to hear a case,
and if one of them files an opinion dissenting from that of his
associates, the losing party can demand a rehearing before the
full court.

Neither the bar nor the bench are quite satisfied with such
methods of appellate procedure. The Ohio scheme is excellently
adapted for the dispatch of business, but may prevent an oral
argument before those who are ultimately to decide the cause.
That of California often protracts litigation. Any such plan of
division also must increase the risk of the court's taking a
position inconsistent with one which it had previously assumed.
The judges in one division may come to conclusions different from
those reached in the other division; or where the court does not
sit in divisions, a point may be determined by a narrow majority
in one case which in a later one, through the substitution of one
or two judges for those who heard the former, may be ruled the
other way.

The freedom of appeal which is generally conceded to defeated
litigants in this country has been made the subject of severe
criticism. It seems, however, a necessary incident of our
political institutions. They are built upon the foundation of a
profound reverence for the rights of the individual and of the
equality of all before the law. Our Constitutions guaranty every
man against deprivation of life, liberty or property without due
process of law. If we could count on having as judges of our
trial courts none but men of ability, learning and independence,
it might be safe to leave it to them to say what this due process
was. But the tenure of judicial office in most States is too
brief, the pay too meagre, and the mode of appointment too
subject to political influence to give always that assurance that
could be wished either of the independence of the judiciary or of
its representing only what is best in the legal profession.

In England, until recently, there was little or no right of
review in favor of one convicted of crime. But the judges are
appointed for life on ample salaries, and tradition requires that
they be selected only from among the leaders at the bar. Nor is
the right of the individual against the State deemed so sacred
under English as under American institutions. It cannot be in
any country where an hereditary aristocracy has from ancient
times had a share in government. As has been seen, the English
practice in this respect for nearly a hundred years was adopted
in the courts of the United States, but public sentiment finally
pronounced against it. Much less could it be safely followed in
the States, where criminal courts are often held by judges of
little ability, less learning, and inferior standing at the bar,
to which, after the expiration of a brief term, perhaps of but a
year, they will return should they fail to secure a party
renomination.

The same reasons, if in less degree, support a liberal right of
appeal in cases involving property only, and oppose restrictions
based only on the amount in controversy. Americans could never
tolerate keeping their appellate courts for the trial of large
causes only. There must be no rich men's courts. There
certainly must be none to which a claim of right founded on a
constitutional provision cannot be carried up, however trifling
in pecuniary value may be the matter in demand.

Most appeals fail. There are few in which the counsel who takes
them are fully confident of success. Every lawyer of large
experience knows that he has often won when he expected to lose,
and lost when he expected to prevail. There are not many cases
involving large pecuniary interests or strong personal feeling
that are not appealed if there is any color for it. The
proportion of appeals which are successful will generally be not
far from a third of the whole number taken. Of course, however,
this must depend largely on the competency of the trial judges in
the court where it is claimed that errors have occurred. The
abler and more experienced those who do circuit duty may be, the
oftener will their doings be supported in the court of last
resort.

Short terms of office and consequent lack of practical
acquaintance with the business of a trial judge is the real cause
why so many appeals are taken, and are allowed to be taken in our
American States. As for the federal courts of appeal, there is
another and unavoidable occasion for large dockets. They have
the last word to pronounce on constitutional questions, and there
has probably never been a year since the United States came into
existence when the legitimate powers of the general government
have not been repeatedly infringed upon by State legislation.

In the Supreme Court of the United States, the reporter began its
second century with a plan of stating the number of cases
affirmed or reversed at each term, but dropped it after two
years. The record of these years was as follows:

Affirmed Reversed
October Term, 1890 248 104
October Term, 1891 185 103

A tabulation of the decisions reported in the various States in
their last volumes published prior to June, 1904, shows that on a
general average, in sixty-three out of every hundred appeals the
judgment of the inferior court was affirmed. In Massachusetts
the percentage was eighty-seven per cent. In Texas it was only
thirty-four per cent., and in Arkansas and Kentucky not much over
forty per cent.[Footnote: _Law Notes_ for June 1904,
p. 285.]

Many more appeals are taken by convicted persons in criminal
cases at the South than in the North. Many more criminal
prosecutions are brought there, in proportion to the population.
This is due largely to the presence of so large a body of colored
people, most of whom have had a very inferior education and
training. Many more such appeals are successful also in the
South than in the North. In the reports of the courts of last
resort of Alabama, Florida, Louisiana and Mississippi between
December 20, 1902, and April 25, 1903,[Footnote: As given in
Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases
appear, in forty-six of which the judgment of conviction was set
aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire,
New Jersey, Pennsylvania, Rhode Island and Vermont between March
12 and June 25, 1903,[Footnote: As given in Vol. LIV of the
Atlantic Reporter.] the reports show only twenty such cases, of
which seven were set aside.[Footnote: _Law Notes_ for
September, 1903, 105.] This would seem to indicate either that
the trial judges of criminal courts in the Gulf States are
careless or that the appellate courts there (under the pressure,
perhaps, of unwise statutes)[Footnote: See Paper on "Judicial
Independence," by Justice Henry B. Brown in the Reports of the
Am. Bar Association for 1889, 265.] are inclined to be too
technical. If either is true it is a just cause for public
dissatisfaction with the administration of criminal justice, and
some palliation for the frequent resorts to Lynch law by the
Southern people.

The American plan of written opinions, at least in all cases of
novelty or general interest, works better in small States than in
large ones. No judge can find time to prepare more than a
certain and quite moderate number in a year, if they are such as
they should be. The shorter they are, the more time generally
has been spent in condensing them. In a great State there must,
therefore, either be a larger number of judges, or every few
years there must be a temporary addition to the judicial force to
clear off an accumulation of cases. The latter expedient is
generally preferred. Sometimes a small number of lawyers are
selected to serve as a special commission of appeals. They sit
by themselves, but there may be a provision for their submitting
their opinions to review by the regular court. Some of the
leading cases in our reports have been decided by such
commissioners. In California, where such a body now exists, its
members are appointed by the court, and removable at its
pleasure; but ordinarily they are chosen by the executive or
legislative departments.

Sometimes when the cases on the docket of the court of last
resort reach a certain number (in New York this is put at 200)
the Governor may call in judges of the next court in rank to sit
with the regular judges until the accumulation is cleared off.

Fewer causes can be heard and disposed of in American appellate
courts than in those of other countries by reason of two things,
our practice of delivering written opinions and the fulness of
treatment thought necessary in such opinions, especially when
they deal with questions of constitutional law. In France, the
Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these,
219 were sustained and 597 rejected.] Nothing approaching this
number could be properly disposed of on the merits in any
American Court of last resort. Many appeals, however, are here,
as everywhere, abandoned or dismissed for some failure to comply
with the rules of practice or because manifestly frivolous, and
in these no opinions are ordinarily given. During the court year
closing with the Summer of 1903, the Court of Appeals of New York
filed only 221 opinions, although it disposed, in one way or
another, of 640 cases; and the Supreme Court of the United States
filed 212 opinions and disposed of 420 cases.[Footnote: See
Chap. XXIV.]

In the calendar year 1904, the Court of Appeals of New York filed
327 opinions, and the Supreme Court of Illinois over 500.

* * * * *

CHAPTER XX

THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF
CONTEMPTS OF COURT

No court can with propriety pass a decree which it cannot
enforce.[Footnote: Clarke's Appeal from Probate, 70
Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
U. S. Reports, 186.] After the judgment comes the issue of
appropriate process to compel obedience to it, unless such
obedience (as is generally the case) is voluntarily rendered.
The whole power of government is at the command of the court for
this purpose. A sheriff with a judicial process to serve who
meets with resistance can summon to his aid the _posse
comitatus_. By this term is meant the whole power of his
county; that is, any or all of its able-bodied inhabitants on
whom he may choose to call. Not to respond to such a call is a
legal offense. The marshals have similar powers in serving
process from the Federal courts.

The fact that there is this force behind a writ is so well
understood by the community that occasions for resorting to its
use, or indeed to the use of any actual force, are extremely
rare. If the process was lawfully issued, it would be useless to
resist. If unlawfully, it is easier and safer to seek relief by
an injunction, or in case of an arrest, by a writ of _habeas
corpus_. But there have been occasions in the judicial
history of the United States when, under the influence of a
general popular ferment, the service of process from the courts,
and even the holding of courts, have been forcibly prevented.

Shay's Rebellion in Massachusetts (in 1786) was the first of
these after the Revolution. Similar uprisings of less importance
took place at about the same time in New Hampshire and Vermont.
A few years later, the service of process from the New York
courts was interrupted in Columbia County. There was a strip of
territory adjoining the Hudson River, title to which was claimed
both by New York and Massachusetts. Conflicting claims, awaking
much bitter feeling, arose under grants from each government. In
1791, the sheriff of Columbia County was ordered by the courts,
in the course of a lawsuit, to sell a tract of this land.
Seventeen persons disguised as Indians appeared at the time of
sale to resist it, and he was killed by a shot from one of
them.[Footnote: Report Am. Historical Association for 1896, I,
152, note.]

Then came the Whiskey Rebellion in Pennsylvania. The statutes of
the United States[Footnote: United States Revised Statues, 5299.]
provide that if their courts meet with opposition of a serious
nature, the President may use the army or call out the militia of
one or more States to restore order. Opposition to the
enforcement of the revenue tax on whiskey in 1794 called for the
first exercise of this power. Marshals were resisted in serving
process, and several counties were in a state of insurrection.
Washington sent so large a force of troops to suppress it that
the rioters vanished on their approach, and there was no further
obstruction of the ordinary course of justice. The total expense
to the government in this affair was nearly $1,000,000.[Footnote:
Wharton's "State Trials," 102.] In 1799, somewhat similar
opposition arose in the same State against the enforcement of the
house taxes laid by Congress. President Adams here also sent a
sufficient force of militia to suppress it.[Footnote:
_Ibid_., 48, 459.]

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