The American Judiciary

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

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This right of the military commander exists equally on foreign
territory in military occupation and on domestic territory, when
the ordinary courts of his country are not open. During our
Civil War, in 1864, President Lincoln, as commander in chief of
the army and navy, set up a "Provisional Court for the State of
Louisiana," after the Southern portion of that State had been
occupied by the national forces and martial law declared. Judge
Charles A. Peabody of New York, who had been a justice of the
Supreme Court of that State, was commissioned to hold it and to
dispose of both civil and criminal causes. Its docket became at
once a full one, and important litigation was transacted there
with general acceptance until the close of the war.[Footnote: The
Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
Association for 1892, 199.]

In the original proclamation of martial law in Louisiana the
commanding officer announced that civil causes between parties
would be referred to the ordinary tribunals. One of the State
courts, known as a District Court of the City and Parish of New
Orleans, the judge of which took the oath of allegiance to the
United States, continued to sit and dispose of business in the
usual course. A few months later a citizen of New York sued a
military officer before it for ravaging a plantation which he
owned in Louisiana, and recovered judgment. A suit upon it was
afterwards brought in Maine, where the defendant resided. He
pleaded that the property of the plaintiff had been taken to
furnish his troops with necessary supplies. The case ultimately
came before the Supreme Court of the United States. Here it was
thrown out, the court saying that the District Court of New
Orleans had no jurisdiction to call military officers to account
for acts done under claim of military right.[Footnote: Dow
_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
litigation between private parties unconnected with military
operations is concerned, a court of this character, established
by law, and suffered by the military authorities to continue its
sessions, has competent jurisdiction, and its judgments will be
enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
45 New York Reports, 27.] They have no power to entertain
criminal charges against those in the military service, who would
be punishable by court martial.[Footnote: Coleman _v._
Tennessee, 97 U. S. Reports, 509, 519.]

In 1864, during the war, but in Indiana, a State
distant from the seat of hostilities, the military commandant
of the district ordered the arrest of a private
citizen and his trial before a military commission on
charges of conspiracy against the United States, as a
member of a secret organization known as the Order
of American Knights or Sons of Liberty. The trial
resulted in his conviction, and a sentence to death, which
was approved by the President of the United States.
Before it could be executed, he applied to the Circuit
Court of the United States for the District of Indiana
for a writ of _habeas corpus_. The judges of that court
were divided in opinion in regard to the case, but it
was decided in his favor when it came before the
Supreme Court of the United States.[Footnote: _Ex parte_
Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
was unanimous, but in stating the reasons for it the
court was divided in a manner which has not been
uncommon since the death of Chief Justice Marshall
when any great question of a political nature has
been involved. Five justices held that the trial of
a civilian by a military commission can never be vindicated
in a peaceful State where the courts are open
and their process unobstructed. Four justices dissented,
and Chief Justice Chase thus summarized their
conclusions:

There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war;
another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and
civil war within States or districts occupied by rebels treated
as belligerents; and a third to be exercised in time of
invasion or insurrection within the limits of the United
States, or during rebellion within the limits of States
maintaining adhesion to the National Government, when the
public danger requires its exercise. The first of these may be
called jurisdiction under military law, and is found in acts of
Congress prescribing rules and articles of war, or otherwise
providing for the government of the national forces; the second
may be distinguished as military government, superseding, as
far as may be deemed expedient, the local law, and exercised by
the military commander under the direction of the President,
with the express or implied sanction of Congress, while the
third may be denominated martial law proper, and is called into
action by Congress, or temporarily, when the action of Congress
cannot be invited, and in the case of justifying or excusing
peril, by the President, in times of insurrection or invasion,
or of civil or foreign war within districts or localities where
ordinary law no longer adequately secures public safety and
private rights.

We think that the power of Congress in such times and in such
localities to authorize trials for crimes against the security
and safety of the national forces may be derived from its
constitutional authority to raise and support armies and to
declare war, if not from its constitutional authority to
provide for governing the national forces.[Footnote: _Ex
parte_ Milligan, 4 Wallace's Reports, 141.]

The Constitution of the United States contains some provisions
restricting the jurisdiction of military authorities and
tribunals over controversies, which are not found in the
Constitutions of the States. It may well be that martial law has
for the United States a narrower meaning than it may possess in a
particular State.

The legislature of Rhode Island in 1842, during "Dorr's
Rebellion," by a Public Act put that State under martial law
until further order, or until its termination should be
proclaimed by the Governor. A squad of militia broke into the
house of a private citizen to arrest him as an abettor of Dorr,
and were afterwards sued in trespass before the civil courts.
The cause finally came before the Supreme Court of the United
States, where (one justice only dissenting) it was held that the
Act could not be pronounced an unjustifiable exercise of
legislative power under any provision of the federal
Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
Reports, 1, 45.] Whether the courts of Rhode Island could have
taken a different view, under the fundamental laws of the State,
was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
Reports, 2, 129.]

On the other hand, there are States in which the Constitution
explicitly provides that "the military power shall always be held
in an exact subordination to the civil authority and be governed
by it."[Footnote: Constitution of Massachusetts, Declaration of
Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
Sec, 22.] It is a serious question whether, under such
provisions, a legislative or executive declaration of martial law
in time of peace, in order the better to cope with some local
disturbance, is to be regarded as an expression of the will of
the civil authority, by virtue of which the civil courts lose the
power of discharging on _habeas corpus_ one restrained of
his liberty by military command. That it is such an expression
was held in Colorado in 1904, but by a court composed of only
three judges, of whom one, in a dissenting opinion, observed that
the decision of his associates "is so repugnant to my notions of
civil liberty, so antagonistic to my ideas of a republican form
of government, and so shocking to my sense of propriety and
justice that I cannot properly characterize it." A similar
question arose, but was not judicially determined, in Arkansas in
1874. There was a contest over the election of Governor. The
Constitution provided that such contests should be decided by the
joint vote of both houses of the legislature. Baxter, the
candidate who was elected on the face of the returns, was
declared elected by the President of the Senate and took the oath
of office. Brooks, the other candidate, presented a petition for
a contest to the lower house, which refused to grant it. He then
applied to the Supreme Court on _quo warranto_ proceedings,
which threw out the case for want of jurisdiction.[Footnote:
State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
suit was then brought in a _nisi prius_ court, on which
judgment was rendered in his favor,[Footnote: This judgment was
reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
173.] and he was put in possession of the executive chambers by
an armed force which he assembled. Baxter then declared martial
law in the county in which the capital was situated, and arrested
two of the judges of the Supreme Court on their way to attend a
special session called to take action in _mandamus_
proceedings brought in behalf of Brooks. They were rescued after
a day or two by United States troops and proceeded to join their
associates. The court then gave judgment for Brooks in his third
suit, directing the State Treasurer to pay his warrants. At this
point the legislature applied to the President of the United
States for protection against domestic violence, under Art. IV of
the Constitution of the United States, and his compliance by a
proclamation officially recognizing Governor Baxter and ordering
the Federal troops to support him closed the history of this
disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
for 1874," 87-100.]

* * * * *

CHAPTER XXII

APPOINTMENT, TENURE OF OFFICE AND COMPENSATION
OF JUDGES

The oldest which survives of our American Constitution, that
adopted by Massachusetts in 1780, requires the appointment of
judges to be made by the Governor of the State, with the advice
of the Council, and for good behavior.[Footnote: Constitution of
Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]

This plan was substantially followed in framing the Constitution
of the United States. That was planned for a small number of
States, perhaps only nine, certainly at first not over thirteen.
The Senate, therefore, would be a body small enough to serve as
an executive council. Its necessary enlargement by the admission
of new States has long made it but ill-suited for this purpose,
and has thrown the power of confirming or rejecting an executive
nomination for judicial office largely under the control of the
Senators from the State to which the person named belongs,
although this control is much weakened if they do not belong to
the party of the administration. The principle that the greater
the concentration of the appointing power, the greater will be
the sense of individual responsibility for every appointment
made, makes this result of a Senate of ninety members not wholly
unfortunate. The President now consults a council of two.

Thirteen States in all originally gave to the Governor the power
either of appointing or of nominating the judges of the higher
courts; fourteen gave their election to the legislature; the rest
preferred an election by the people.[Footnote: 'Baldwin, "Modern
Political Institutions," 58, 59.] If we compare the original
practice in each State with its present practice, we find that
there are now fewer in which the Governor appoints or nominates;
fewer in which the legislature elects; more in which the people
do. Legislative elections have been found to imply a system of
caucus nominations, and have often led to a parcelling out of
places among the different counties in which geographical
considerations told for more than did fitness for office. In one
State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
since 1880, the legislature has elected on the Governor's
nomination. In practice they have never failed to act favorably
upon it.

Mississippi, which, in 1832, became a leader in the movement
toward the choice of the judges by popular election, in her
latest Constitution (of 1890) follows the plan of the United
States, the Governor nominating and the Senate confirming.

The action of the confirming or electing body when unfavorable in
any State has generally been unfortunate. It is apt to be
affected by local or personal political influence to which the
chief executive would be insensible. A large number of able men
have thus, from time to time, been deprived of a seat on the
Supreme Court of the United States who would have added to its
luster. In 1867 Massachusetts lost a Chief Justice of the first
rank in this way by the defeat of Benjamin F. Thomas. The
council refused, by a majority of one, to confirm his nomination
because, though of the same party with them, he was of a
different wing.[Footnote: Proceedings Mass. Historical Society,
2d Series, XIV, 301.]

In most of the States the judges are now elected by the
people.[Footnote: In thirty-three. In one other (Florida) the
people elect the judges of the Supreme Court, and the Governor,
with the advice and consent of the Senate, appoints those of the
superior courts. The Governor nominates in Delaware, Mississippi
and New Jersey, and in the four largest New England States. In
Rhode Island and Vermont, South Carolina and Virginia, the
legislature elects.] This makes the choice more a political
affair. The nominations are made by party conventions, and
generally in connection with others of a purely political
character. It also, in case of a nomination for re-election,
places a judge on the bench in the disagreeable position of being
a candidate for popular favor at the polls and an object of
public criticism by the political press.

In 1902 a justice of the Supreme Court of Michigan was nominated
for re-election. There was an opposing candidate, some of whose
friends published a statement that in the nine years during which
the justice had already served he had written opinions in 68
railroad and street railway cases of which 51 were in favor of
the companies. He was re-elected, but some time afterwards this
fact was reprinted in a local periodical accompanied by the
remark that "we must conclude that either the railroad and
railway companies--4 to 1--had exceptionally good cases from the
standpoint of law and justice or his Honor's mind was somewhat
warped in their favor.... You can't expurge mental prejudice
from judicial opinions any more than you can from the reasonings
of theologians and atheists.... To imagine a justice deciding a
case against his personal interests is too great a stretch of
imagination for us to appreciate."

A less brutal but more dangerous attack, made in 1903 by a
religious newspaper, illustrates the same evil. The Supreme
Court of Nebraska has decided that under their Constitution the
Bible cannot be used in the public schools. It was, of course, a
pure question of the construction of a law, for the policy of
which the court had no responsibility. The newspaper in
question[Footnote: The Boston _Congregationalist_ of Oct. 3,
1903.] which, though published in the East, had some circulation
in that State, printed this paragraph:

"The Supreme Court judge of Nebraska who wrote the decision that
the State constitution prohibits the use of the Bible in the
public schools is standing for re-election, and the fact that he
made such a decision is not forgotten by the Christian voters."

In States the control of which by one of the great political
parties is assured, the real contest is for the nomination, and
here there is even more license for unfavorable comment on the
judicial record of one who seeks it. In a Southern State there
was such a struggle in 1903 for the nomination of the prevailing
party for Governor. The person who then held that place desired
it. So did one of the justices of the Supreme Court. It is said
that the friends of the former circulated a cartoon representing
the five justices together as five jackasses, and another in
which the justice whom they were trying to run off the field was
caricatured in the act of setting aside a verdict in favor of a
child injured by a railway accident. The two candidates
subsequently met upon the platform for a joint discussion of the
issues before the people. The Governor sharply criticised the
character of the Supreme Court. The judge caught him by the
collar and was about to strike him when friends intervened, and
an explanation of the remarks was made which was accepted as
satisfactory.

In the heat of a political campaign men do not always stop to
measure words or weigh questions of propriety. The personal
character and public acts of an opponent are a legitimate subject
of description and comment. Sharp attacks must be expected as a
natural incident of such a contest, and by candidates for
judicial office as well as others. The public record of all for
whom votes are asked at a public election must be the subject of
open criticism, or there would be danger that unworthy men would
succeed. To treat such observations as have been quoted upon
opinions previously written by a candidate for re-election,
however unseemly or unjust, as a contempt of court would be
indirectly to impair the right of free suffrage.

If assertions published as to acts done or words said are false,
it does not follow that they are libellous. An honest mistake
may be a defense for such a misstatement.[Footnote: Briggs
_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
Reporter, 513.]

Judges of trial courts, when candidates for re-election, may
expect the publication of similar attacks on rulings which they
have made. The following dispatches, which appeared in the same
issue of a local newspaper in Pennsylvania in 1903, when a county
election was soon to occur, will sufficiently illustrate this:

HOT JUDICIAL FIGHT PROMISED FOR MERCER.
COUNTY WILL BE SCENE OF AN INTERESTING
STRUGGLE FOR SEATS IN THE
LEGISLATURE.

Sharon, Pa., Dec. 25.--From present indications the coming
judicial fight in Mercer County will be a bitter one. Public
interest centers in the efforts of Judge S. H. Miller and his
friends to secure a re-election, and the attempts of his
opponents to place A. W. Williams of Sharon on the bench
instead. While the sole topic politically is on the judgeship,
the twenty or more candidates for Assembly are not losing the
opportunity of fixing their fences. They, too, have assumed a
reticence in regard to the matter of the judgeship. It is
expected that on the last lap of the race Williams and Miller
will be the only two men remaining. There are three other
candidates for the Republican nomination who have thus far
announced themselves. They are: W. J. Whieldon of Mercer;
W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
Judge Miller and A. W. Williams are the closest of friends.

JUDGE MILLER ASKS FOR MODERATION. BARS PURE
FOOD PROSECUTIONS BY REFUSING TO
SENTENCE THOSE CONVICTED.

Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
Warren has been confronted with a new proposition in his
crusade in Western Pennsylvania against violators of the pure
food laws. Judge S. H. Miller of Mercer County, before whom
several oleomargarine dealers were recently convicted for the
illegal sale of "oleo," has refused to sentence them on the
ground that the procedure of the State Pure Food Bureau is
persecution and lacking in equity. He takes the position that
grocers and saloon keepers, not being expert chemists, should
at least be warned previous to arrest, and be given a chance to
determine whether the foods they are handling are pure or
adulterated. Judge Miller's position is a serious impediment
in the way of the enforcement of the law, and Commissioner
Warren is preparing to take action that may compel him to
punish offenders convicted before him.

Not infrequently in the judicial history of the United States
there has been presented to a judge the choice between rendering
a decision according to his opinion of the law and the facts and
losing his seat, and rendering one according to public opinion,
or the public opinion of his party friends, and keeping it.

A judge of the High Court of Errors and Appeals in Mississippi
was one of the earlier martyrs in the cause of judicial
independence. The State had incurred a heavy bonded debt, which
she found it inconvenient to pay. The Governor, who had approved
the bills under which over $15,000,000 of the bonds had been
issued, concluded in 1841, after the issue, that it was forbidden
by the Constitution of the State, and issued a proclamation
declaring them void. In a suit in chancery this question came up
for decision in 1852. Meanwhile the policy of "Repudiation" had
been made a political issue and the people had given it their
approval by electing its advocates year after year to the highest
offices. The chancellor upheld the validity of the bonds, and on
appeal his decision was unanimously affirmed.[Footnote: State
_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
Sergeant S. Prentiss, II, 268.] A few months later the term of
office of one of the judges who had concurred in this opinion
expired, and the people put a successor in his place who held
doctrines better suited to the public sentiment of the hour.

In the days preceding the Civil War, the validity of the laws
enacted by Congress to secure the recapture of slaves who had
fled to the free States was frequently attacked in the press and
on the platform. The Constitution expressly provided for such
proceedings, and the Supreme Court of the United States in 1842
had pronounced the "Fugitive Slave law" of 1793 to be valid in
all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
Reports, 539.] The principle of this decision plainly covered
the later Act of 1850, but as public sentiment in the North
became more and more uncompromising in its hostility to the
existence of slavery under the flag of the United States, the
State courts were not always strong enough to withstand the
pressure to disregard precedents and let the Constitution give
place to what the phrase of the time called a "higher law."

In 1859, a citizen of Ohio was convicted in the District Court of
the United States and sentenced to jail for rescuing a fugitive
slave who had been recaptured in Ohio by an agent of his master,
to whom he had been committed in proceedings under the Act of
Congress. He was imprisoned in an Ohio jail, the United States
then having none of their own, but placing all their convicts in
State jails or prisons under a contract with the State to keep
them for a certain price. His counsel applied to the judges of
the Supreme Court at chambers for a writ of _habeas corpus_
against the Ohio jailer. He produced his prisoner and submitted
a copy of the warrant of commitment from the District Court. The
public were extremely interested in the outcome of the
proceedings. The Attorney-General of the State assisted in
presenting the petitioner's case. The Governor was one of the
multitude present in the crowded court room. The
Attorney-General declared that the position that the Supreme
Court of the United States had the power to decide conclusively
as to the constitutionality of the laws of the United States and
so tie the hands of the State authority was untenable and
monstrous. "Georgia," he said, "hung Graves and Tassel over the
writ of error of this same Supreme Court. God bless Georgia for
that valiant and beneficent example."[Footnote: _Ex parte_
Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
sectional court composed of sectional men, judging sectional
questions upon sectional influences."[Footnote: _Ibid._,
161.]

Of the five judges, three held that the constitutionality of the
Fugitive Slave law was settled conclusively by repeated decisions
of the Supreme Court of the United States, and that the State
courts could not release the prisoner. Chief Justice Swan gave
the leading opinion. Its positions were thoroughly distasteful
to the people of Ohio. He knew they would be. His term, which
was one of five years, expired in the following February, and the
vacancy was to be filled at the State election in October. On
the day before the judgment was announced he told his wife that
this would be fatal to his re-election. "If the law makes it
your duty to give such an opinion," said she, "do it, whatever
happens." He gave it, and what they anticipated occurred. The
convention of his party declined to renominate him. He resigned
his office immediately after the election and retired to private
life at an age and under circumstances which made it
impracticable for him to re-enter the bar with success, but with
the consolation of knowing that he had acted right.

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