The American Judiciary

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

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In those colonies which were provided by charter with a Court of
Assistants, this body soon came to act as a judicial court. This
took place in the colony of Massachusetts Bay as soon as the seat
of the company's government was transferred from England to
America, and took place as a matter of course. Divisional courts
were frequently held by part of the assistants, with original
jurisdiction of minor causes, and all sat semi-annually, or
oftener, to try larger ones and hear appeals.[Footnote: Noble,
"Records of the Court of Assistants of Massachusetts Bay," I,
Preface; Publications of the Colonial Society of Massachusetts,
III, 317.]

In Connecticut, appellate jurisdiction was originally retained by
the General Assembly, but when the docket became too crowded,
resort was occasionally had to the appointment of a special and
temporary commission of appeals to clear it off. As early as
1719, one was constituted for this purpose to hold office for two
years.

No colony set up a permanent supreme court with full appellate
jurisdiction. None probably cared to do this, and none probably
thought that it could. The Lords of Trade and Plantations would
have rightly thought such a step hardly consistent with the
maintenance of their revisory and controlling powers. It would
have been too costly to allow two appeals; and for them to
reverse a judgment of a colonial supreme court would have been
more distasteful to Americans than the exercise of a similar
power as to a court professedly of superior, not supreme,
jurisdiction.

New York had a court named Supreme, but its business was largely
the trial of original causes, and the Governor and Council
claimed the right of reviewing its judgments. The judges in 1765
denied the existence of such a right, but the King in Council
decided against them.[Footnote: Hunt, "Life of Edward
Livingston," 26.]

As soon as regular judges, not members of other departments of
the government, were appointed for the highest court, they were
generally required to perform circuit duty in the various
counties during part of each year.[Footnote: See
"Am. Hist. Review," III, 44.] This was a leading feature of the
judicial establishment set up in 1686 under Sir Edmund Andros for
the "Dominion of New England."[Footnote: Col. Rec. of Conn., III,
402, 411.]

South Carolina, for a hundred years, centered all her judicial
business at Charleston. No courts sat anywhere else and all the
lawyers in the State resided in the city. In the latter part of
the eighteenth century she followed the other colonies in
establishing a circuit system and county courts.[Footnote: Morse,
"American Universal Geography," ed. 1796, 690; Osgood, "The
American Colonies in the Seventeenth Century," II, 279, 300.]

There was occasionally some little approach to English form when
the colonial judges went on the circuit. In Massachusetts the
sheriff or his deputy was accustomed to come out from the court
town to meet the judges as they approached it, to open a term of
court.[Footnote: "Life and Works of John Adams," II, 280. See
Chap. XIII.]

Acts of Parliament directly affecting procedure in American
courts, and unifying its methods in some particulars, were
occasionally passed during the colonial era. Such was the Act of
1732 (V, Geo. II, Chap. VII), making affidavits taken in England
admissible in any suit in an American colony to which an
Englishman might be a party, and providing that all American real
estate (including negro slaves employed upon it) should be
subject to be levied on for any debts of the owner, although real
estate in England could only be taken for debts of a particular
kind.[Footnote: Connecticut promptly passed a statute extending
the new remedy thus given, so as to authorize the sale of land
belonging to the estate of a deceased person, to pay his debts,
if he did not leave sufficient personal estate for that purpose.
Col. Rec. of Conn., VII, 444.] Other English statutes, passed
after the settlement of the colonies, and not in terms applying
to them, were often adopted here, either by the enactment of
colonial statutes to the same effect or by incorporation into our
common law by tacit consent, as interpreted by the
courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
489, 494.]

The benefit of the writ of _habeas corpus_, which, though
issuable at common law, really first took its present shape in
1679, by the Act of 31 Charles II, Chap. II, was thought in this
country, though not by the Lords of Trade and Plantations, to be
a privilege of Americans, as British subjects. In some colonies
this statute was re-enacted, or, as in Virginia, rights under it
conceded under the royal prerogative. In others, as in Maryland,
it was treated as being, by tacit adoption, the birthright of the
inhabitants. In the "Declaration and Resolves" of the first
Continental Congress, they assert "that the respective colonies
are entitled to the Common Law of England," and in the address to
the people of Great Britain they complain that the English
settlers in Canada "are now the subjects of an arbitrary
Government, deprived of Trial by Jury, and when imprisoned cannot
claim the Benefit of the _Habeas Corpus_ Act, that great
Bulwark and Palladium of English Liberty."[Footnote: Journals of
Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
Colonies," American Historical Review, VIII, 18.]

The same sentiments dictated the terms of the Ordinance of 1787,
under which our first Territories were to be organized. One of
its leading provisions was this:

ART. 2. The inhabitants of the said territory shall always be
entitled to the benefits of the writ of _habeas corpus_,
and of the trial by jury; of a proportionate representation of
the people in the legislature, and of judicial proceedings
according to the course of the common law.

A recognized system of jurisprudence had, under the circumstances
and from the causes which had been stated, begun to grow up
before the Revolution. It might fairly be called American, but
it was thoroughly English by heredity, and had been shaped by a
long succession of English influences, and steadied by the firm
hand of English power.

The Revolutionary War made everything connected with the law of
England distasteful to the people at large. The lawyers knew its
value: the community did not. Public sentiment favored an
American law for America. It was quickened by the unfriendly
feeling toward the mother country which became pronounced toward
the close of the eighteenth century and culminated in the War of
1812. Several of the States, New Jersey leading off, passed
statutes forbidding the citation, in the argument of causes, of
any decisions of the English courts made since the Declaration of
Independence. Under one of these Henry Clay, in 1808, was
stopped by the Supreme Court of Kentucky when reading in argument
from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
Boffman, Hardin's Rep., 348, 364.] but after a few years,
legislation of this kind, while it might remain formally
unrepealed, was treated as obsolete both by court and
bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
I, 613 (1807).]

In courts held by unlearned judges, also, English law-books were
lightly considered. One of this kind was Chief Justice
Livermore, of New Hampshire. Shortly after the close of the
Revolution, while presiding on the bench, he stopped a lawyer who
was reading from one with the inquiry whether he thought that the
members of the court did not "understand the principles of
justice as well as the old wigged lawyers of the dark ages
did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]

But whether cited or not from their original sources, the settled
doctrines of English law were sure in the end to permeate both
bar and bench in every State.

The Roman law and the law of nations were studied in preparation
for admission to the American bar more generally and more
thoroughly in the years immediately preceding and following the
Revolutionary era than they have been since.[Footnote: See
Chap. XXIII.] The law student was also set then to reading more
books on English law than he is now.[Footnote: See Report of the
American Bar Association for 1903, p. 675.] He learned his
profession by the eye and not by the ear. His only lectures were
the occasional arguments on a demurrer or writ of error which he
might hear in the court room, and these were a reiteration of
rules laid down in English law-books.

The reason why he read more of Roman law than is now required in
legal education was mainly that there was more time for it, since
of English law reports there were then few, and of American none.

When the Revolution broke out it also became important in helping
to explain the practice in prize courts. These were set up (or
existing common law courts invested with admiralty jurisdiction)
in all the States, and American privateers gave them not a little
business. In order to secure uniformity of decision in matters
so directly affecting our foreign relations, the Continental
Congress claimed the right to exercise appellate functions,
through a standing committee of its members, and in 1780
organized a formal court for the purpose, styled "The Court of
Appeals in Cases of Capture." Three judges were appointed and
provided with a register and seal. They held terms at Hartford,
New York, Philadelphia and Richmond during the next six years.
On an average about ten cases were disposed of annually, and the
decisions were generally conceded to have been fair and well
supported by the rules of admiralty and the law of
nations.[Footnote: See Jameson, "Essays on the Constitutional
History of the United States," I; J. C. Bancroft Davis, "Federal
Courts Prior to the Adoption of the Constitution," 131 United
States Reports, Appendix, XIX.]

The influence of French ideas was strong in shaping constructive
work in American politics, as the colonies passed into States;
but aside from the separation of the judicial department from the
executive and legislative it had little effect upon the courts
until the opening of the nineteenth century. Then the principles
of the Roman law, particularly as presented and illustrated by
the French jurists, were seized upon by Kent and Story, and
served greatly to expand and enrich our jurisprudence.[Footnote:
"Memoirs and Letters of James Kent," 117.]

The course of events which has been sketched left certain ideas
in regard to the position and powers of the judiciary with
respect to the other branches of the government firmly imbedded
in the American mind. These may be thus summarized:

Judges were to proceed according to established rules, so far as
established rules might exist.

They were to proceed in analogy to established rules as to points
which no established rule might cover.

They were to look to the common law and political institutions of
England to determine what rules were established, as to points
not covered by local usage or legislation.

Local usage or legislation might, within certain limits, depart
from the common law and even from the political institutions of
England.

There were limits to such departure, and a colonial statute or
judgment which transgressed them could be annulled or set aside
by a higher authority.

This higher authority might be judicial or political, or one
which shared both judicial and political functions.

* * * * *

CHAPTER II

THE SEPARATION OF THE JUDICIAL POWER FROM THE
LEGISLATIVE AND EXECUTIVE IN AMERICAN
CONSTITUTIONS

From the colonial system of legislatures by which all the powers
of government were at times exercised to the modern American
State, with its professed division of them into three parts, and
assignment of each to a distinct department, was a long step.

So far as the United States were concerned, the weakness of the
government under the Articles of Confederation had been
universally acknowledged and was generally thought to come in
part from throwing whatever powers the States had granted, in a
mass, into the hands of the Continental Congress. Nevertheless,
the Constitution of the United States is not framed upon the
principles of a strict tripartite division. It places the
executive power in the hands of the President, all the
legislative powers which were granted by it in Congress, and the
judicial power in certain courts; but it does not follow the
earlier State Constitutions in declaring that whatever was vested
in either of these three depositaries was and must always be
different in kind from that vested in any other of them.

On this point Virginia set the fashion, but the sonorous phrase
of the Massachusetts Constitution of 1780 is the most familiar,
in its declaration (Part the First, Art. XXX) that "in the
government of this commonwealth, the legislative department shall
never exercise the executive and judicial powers, or either of
them; the executive shall never exercise the legislative and
judicial powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or either of them;
to the end it may be a government of laws, and not of
men."[Footnote: The last declaration of purpose was taken from
Harrington's _Oceana_, in which it is said that while a
monarchy is an empire of men, "a commonwealth is an empire of
laws and not of men." Works, London ed., 35, 42, 224.]

It was from an unwillingness to commit themselves to such a
principle that the people of Connecticut and Rhode Island
preferred for many years to be governed in the old way by their
legislatures, without a written constitution. During this
period, the General Assembly of Connecticut repeatedly exercised
the power of setting aside judgments of courts, and its right to
do so was sustained by the Supreme Court of the United
States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3
Dallas' Reports, 386.]

The courts of the United States were called upon at an early day
to determine how far Congress could invest them with functions
that were not judicial or not to be performed in a judicial
manner. An act was passed requiring the Circuit Courts to pass
upon claims for invalid pensions, their decisions to be subject
to review by Congress. The performance of this duty was
declined, and the attempt to put a judgment of a court under the
control of the legislature made the refusal so plainly proper
that the act was repealed at the next session.[Footnote:
Hayburn's Case, 2 Dallas' Reports, 409.]

It was easier for the United States to maintain from the first
this general scheme for the division of power than for the early
States. Their people had grown up under too different a plan of
government. It had become so familiar to them that they could
hardly believe that it had been abolished. Tradition for them
interpreted their new Constitutions and overmastered them. The
State legislatures therefore continued for a time to claim some
control over the judiciary, or at least a right to criticise and
censure its doings.[Footnote: See Chap. VII.]

In many of our State Constitutions, after providing for a
distribution of powers between three separate departments,
instead of absolutely prohibiting any of them from exercising any
power properly belonging to either of the others, it is declared
that this shall not be done, except as may be expressly allowed
in subsequent articles.

Such a declaration was proposed in the draft of the Constitution
of Connecticut, reported to the convention which framed it in
1818; but on objection it was struck out.[Footnote: Journal of
the Constitutional Convention of Connecticut, pp. 78, 55.] It
was thought better to leave the relations of the departments to
each other to be worked out in practice, and for nearly eighty
years afterward the legislature continued to exercise some
judicial power. It sometimes gave equitable relief to carry out
a charitable purpose in a will, which would otherwise fail. It
interfered repeatedly in probate proceedings. It released
sureties in judicial recognizances. It set aside judgments.
[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315;
Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of
the Supreme Court of Errors sanctioned the practice;[Footnote:
Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898
the court overruled its former opinion, and held that as the
three departments were made separate and distinct, it needed no
express constitutional declaration to prevent either from
invading the province of the other, and so that no power not
judicial in its nature could be conferred upon the
courts.[Footnote: Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080.]

But may not a power be judicial in its nature and yet not wholly
so?

It is practically impossible to establish in every instance a
plain line of demarcation between legislative, executive and
judicial functions.

Courts, for instance, make rules of practice. In one sense this
is a judicial act, because it is one appropriate for the
judiciary. In another point of view it is an act of legislation.
In nothing does it resemble the act of judging a litigated cause.

Impeachments are both political and judicial proceedings, but
American constitutions leave them wholly to the legislative
department.

Franchises to exist as an artificial person are the proper
subjects of legislative grant, but with the growing insistence in
our Constitutions on absolute equality of right, they are now
almost everywhere given only by general laws. Such a law will
offer incorporation for certain purposes to any who choose to
avail themselves of the privilege by fulfilling certain
conditions and filing certain papers in a public office. But
what shall be the nature of this office, and who shall decide
whether these conditions have been fulfilled and these papers
filed? The legislature may select an executive, a legislative,
or a judicial office. It may entrust this power of decision to
an executive, a legislative, or a judicial officer. It has, in
fact, in some States, entrusted it to a court, and authorized it,
if it decided in favor of those claiming incorporation, not only
to record the decision, but to issue the paper which shows that
they are entitled to possess and enjoy the franchise.

It is safe to assert that in no State are the functions of the
courts purely judicial. Many belonging to the administration of
the methods of political government are in all intrusted to
judicial officers either originally or by way of review. Some of
these concern such matters of internal police, as the enforcement
of laws to preserve the public health or to regulate the sale of
intoxicating liquors, and the establishment and repair of
highways.[Footnote: Application of Cooper, 22 New York Reports,
67, 82, 84; Norwalk Street Railway Company's Appeal, 69
Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._
New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter,
960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477;
Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North
Eastern Rep. 381.] Instead of creating a system of bureaus and
prefects, we have adhered to the English plan of administering
local and county concerns through justices of the peace, courts
of quarter-sessions, and county or parish courts.[Footnote: See
Maitland, "Justice and Police," 85.] Of the affairs committed to
such authorities some pertain to the conduct of elections, and
courts are frequently empowered to appoint election officers or
clerks, because it is felt that thus a wise impartiality in
selection can best be attained.[Footnote: People _v._
Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596;
56 American Reports, 793; _Ex parte_ Siebold, 100
U. S. Reports, 371, 397.]

It is vital to the proper working of government under a written
constitution that these constitutional restrictions on the powers
of the courts should not be too strictly interpreted. Every step
in the progress of civilization makes this the more obvious. No
absolute trinity of governmental form can be maintained in human
society, as the relations of each individual to his fellows, and
of the State to all, become, and necessarily become, more
numerous and complicated. In every State that department which
in practice proves the strongest will push its jurisdiction
furthest.

It may be said, in view of its now established power to decide
between higher and lower forms of law,[Footnote: See Chap. VII.]
that the judiciary has proved the strongest. The legislature, as
has been stated, have found it a convenient depositary of many
quasi-legislative and quasi-executive functions, and this also
has largely increased its power.

The theory of the French philosophers that all the powers of
government could be divided into three parts, each bearing a name
descriptive only of itself, is not supported by the practical
experience of Americans. There are functions that might as well
be assigned to one of these parts as to another, or made into a
fourth and called administrative.[Footnote: Under authority of
her present Constitution, Virginia in 1904 organized a State
Commission for the Supervision of Corporations, which has both
judicial and administrative functions.]

The Constitution of the United States recognizes this in effect.
It makes the Senate an executive council, as well as a
legislative chamber. It allows Congress to vest the appointment
of any inferior officers in the courts (Art. II, Sec. 3). In
practice this power has been freely used.

The Supreme Court of the United States has had occasion to
consider this question in connection with the statutes defining
the jurisdiction of the Circuit Courts. It extends to certain
"suits." But what is a suit? It is not necessarily a proceeding
at common law or in equity or admiralty. It may be a statutory
process. "Even," they say, "an appeal from an assessment, if
referred to a court and jury, or merely to a court, to be
proceeded in according to judicial methods, may become a suit
within the act of Congress."[Footnote: Upshur County _v._
Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding
by the government to take land for public use on payment of due
compensation, they observe that "the general rule with regard to
cases of this sort is, that the initial proceeding of
appraisement by commissioners is an administrative proceeding,
and not a suit; but that if an appeal is taken to a court, and a
litigation is there instituted between parties, then it becomes a
suit within the meaning of this act of Congress."[Footnote:
_Ibid_., 475.]

In one point of considerable importance express constitutional
provisions generally narrow the jurisdiction of American, as
compared with English courts. Each house of the legislature is
made the final judge of the returns and qualifications of its
members. In England, election contests as to a seat in the House
of Commons has been made by Act of Parliament the subject of
judicial determination. This avoids partizan decisions and is so
far good. It diminishes, however, the independence of the
legislative house in which the seat is contested. This is
jealously guarded by our traditions as well as our Constitutions.
The practice of wearing hats during the sessions of the House of
Commons was an expression of the early feeling of the English
Commons on this subject. They would not uncover before speaker
or king. In some of the early American legislatures the same
thing was done. Hats were occasionally worn in the House of
Representatives at Washington as late as the second quarter of
the nineteenth century.[Footnote: Hunt, "Life of Edward
Livingston," 301. They were worn in the Continental Congress on
occasions of ceremony. McMaster, "History of the People of the
United States," I, 105.]

On the other hand, American courts interfere more readily than
the English to protect a citizen from arrest by legislative
authority. Each house of the British parliament has large
inherited powers over those who may treat it with contempt. Each
house of an American legislature has some powers of this
description, but they are far narrower ones.[Footnote: Kilbourn
_v._ Thompson, 103 U. S. Reports, 168.]

* * * * *

CHAPTER III

THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
DEPARTMENTS OF GOVERNMENT

Courts of Claims are the only permanent special courts for the
disposition of causes arising from the acts of public
officials.[Footnote: One exists for the United States; and one
for New York.] The system of administrative law prevailing on
the Continent of Europe, by which all such matters are withheld
from the ordinary tribunals, is totally unknown here. If the
Secretary of War of the United States should do some act to a
private citizen, which may be justified by his official powers,
but otherwise would not be, he may be summoned to answer for it
before any civil court having jurisdiction of the parties. So
may even the President of the United States be sued after the
expiration of his term.

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