The American Judiciary

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

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In a few States it is not customary for his party to renominate a
judge more than once. Two terms are considered enough for one
man, and when he has served them he should make room for some one
else. Many a judge has thus been taken from the bench at a time
when, with the aid of experience, he was doing his best work.

Appointments to appellate courts are generally provided for by a
scheme calculated to prevent any sudden and general changes of
membership. Not more than one or two receive an appointment in
any one year, so that the terms of not more than one or two can
expire at the same time. Where judges hold for life or--as is
frequently the case--if there is a constitutional provision that
no judge shall hold office after reaching the age of seventy, the
vacancies will, of course, occur and be filled at irregular
intervals. All this, in connection with the natural tendency to
reappoint judges who have earned the public confidence, secures
to the court a certain continuity of existence and consistency of
view. In every court of last resort in the older States there
will be apt to be found some who have served ten or twenty years
and were at first associated with those who had themselves then
served as long. It is not easy to "pack" a court thus
constituted. If, however, some question of supreme political
importance is looming up, likely soon to become the subject of
litigation, the nominating or appointing power is not likely to
be insensible of the party advantages that may result from its
decision in a particular way by the highest judicial authority,
nor of the importance of the vote to be cast by each who may
share in its administration.

During the Civil War Congress passed a conscription law. The
Supreme Court of Pennsylvania pronounced it unconstitutional, and
advised the issue of a temporary injunction to prevent its
enforcement by the officials charged with that function. The
term of the Chief Justice was about to expire. The decision had
been made by three judges, of whom he was one, against two who
dissented. The political party to which he belonged renominated
him, but he was defeated at the polls. A motion was soon
afterwards made to dissolve the injunction. His successor joined
with the former minority in advising that the motion be granted,
and on the ground that the Act of Congress was not
unconstitutional. The two remaining members of the court adhered
to their former opinion.[Footnote: Kneedler _v._ Lane, 45
Penn. State Reports, 238. See this case reviewed in Pomeroy,
"Introduction to the Constitutional Law of the United States,"
Sec. 479.]

In some States the justices of the Supreme Court select one of
their number annually to be Chief Justice for the year ensuing.
In several, whenever there is a vacancy, the office falls, as of
course, to the justice who has the shortest time to serve. This
is a ready way to pass a title about and attach it to as many men
as possible in quick succession. Its ostensible defense is that
there can be no unfair discrimination and favoritism in such an
appointment, and that as the judge whose term has most nearly
elapsed will naturally be the one who has served the longest, he
will certainly have the advantages of experience. These
considerations deserve little weight in view of the sacrifices
that such a scheme entails. Unfair discrimination is indeed
prevented, but so is a just and proper discrimination. The plan
of promoting the senior associate justice when a vacancy occurs
is liable to similar objections, though in less degree. He is at
least not unlikely to serve for a considerable time.

To be a good Chief Justice requires special gifts. Whoever holds
that office should have not only learning and ability, but
patience and courtesy in a high degree. He must be methodical in
the transaction of business, if the docket of the court is a
large one. He should have the art of presiding over its public
sessions and disposing of the minor motions which may be made
from the bar with dignity and tact. He should be a man who
commonly carries his associates with him at its private
consultations in support of any doctrine which he is firmly
convinced to be the law applicable to the case in hand. He
should have the faculty of conciliation. He should know when to
yield as well as to insist, in order to secure the best results
for his court and for his State. He should be able to write a
clear and forcible opinion. The best lawyer in the jurisdiction
who may be supposed to have these qualities and will accept the
position ought to be at the head of its judiciary. Many have
been tempted from the bar by an offer of that place who would
have refused the appointment of associate justice. John Marshall
was one of these. Chief Justice Parsons of Massachusetts was
another. In the Supreme Court of the United States no Chief
Justice has ever been appointed from among the associate
justices, although a nomination was offered to and declined by
Mr. Justice Cushing in 1796. In the State courts the general
practice is to the contrary, and it is common to fill a vacancy
by appointing one of the associate justices.

Popular election and life tenure cannot well go together. The
chance of an irremediable mistake is too great. Judicial
nominations are often the mere incident of the prevalence in a
party convention of one faction of the delegates, whose main
object is to control the nominations for other positions.
American experience seems to indicate life tenure and executive
nomination, with some suitable provision for securing retirement
at a certain age, as likely to secure the best judges of the
higher courts. This has worked well for the United States, and
no State courts have stood higher in the general opinion of the
bar than those thus organized. For the lower courts there is
less necessity and less chance for getting men of the first rank
in attainments and character. Shorter terms of office can
therefore reasonably be prescribed, and the objections to popular
election are correspondingly less. Even as to them, however, the
plan of executive nomination is safer than that of party
nomination. A man acts carefully when he is the only one whom
the public can hold responsible for what is done.

It is customary to provide that vacancies in judicial offices can
be temporarily filled by the Executive until there is an
opportunity for a new appointment or election by the proper
authority.

The place of a judge who is absent or disqualified is in some
States, by authority of a statute or agreement of the parties,
occasionally taken by a member of the bar called in to try a
particular cause or hold a particular term of court.[Footnote:
See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
_v._ Brown, 32 Connecticut Reports, 112.] So the English
assize judges are constituted by special commissions for each
circuit, which include also the barristers on the circuit who are
sergeants at law, king's counsel, or holders of patents of
precedence.

It is hard to dislodge a judge for misconduct or inefficiency.
Our Constitutions give remedies by impeachment or by removal by
the Governor on address of the legislature, but lengthy
proceedings are generally necessary to obtain the benefit of
them, and the decision is often in favor of the judge. Party
feeling is apt to have its influence in such matters. Whether it
does or does not, it is an unpleasant task to assume the
initiative. Those who best know the facts are the lawyers, and
if some of them are the ones to move, it is at the risk, should
they fail, of having afterwards to conduct causes in a court
presided over by one who is not likely to regard them with a
friendly eye.

The number of judicial impeachments in the history of the country
has been comparatively small, and few of these have resulted in
convictions.[Footnote: See Chap. III.] Of the cases which were
successful, the most noteworthy is that of Justice George
G. Barnard of the Supreme Court of New York, who was convicted of
having abused his right to issue _ex parte_ orders and of
other measures of improper favoritism. The Bar Association of
the City of New York brought the charges, and were influential in
carrying the whole proceeding through to a favorable result. In
another instance, occurring in 1854 in Massachusetts, the right
of impeachment was stretched to its limit by removing a Judge of
Probate, Edward G. Loring, the only real ground being that as a
United States Commissioner he had ordered the return of a
fugitive slave under the laws of the United States--laws the
constitutionality of which the highest court of the State had
recently declared to be fully settled.[Footnote: Sims' Case, 7
Cushing's Reports, 285.]

Judges of inferior courts are sometimes removable by the higher
ones for cause, on complaint of a public prosecutor. In such
case, the proceeding being strictly a judicial one, there is more
assurance of success if the charges are well founded. Here also,
however, it will be known from whom they come, and the hearings
are likely to be so protracted and expensive to the State that
only a flagrant case will usually be taken up. The hearings on
such a complaint, brought in New York in 1903, extended over
thirty-six days; the stenographic minutes of the testimony
covered over 3,300 pages; there were over four hundred exhibits
introduced; and the items of cost presented for taxation amounted
to over $20,000.

Removals by the Governor on the address of the legislature have
been more frequent, and occasionally have been dictated largely
by party managers who desired to make places for those of their
own political faith.[Footnote: Schouler, "Constitutional
Studies," 288, note.] In one instance it was attempted, but
unsuccessfully, in Kentucky as a punishment for giving a judicial
opinion that a stay-law recently passed by the legislature was
unconstitutional. A two-thirds vote of each house was required,
and as in the lower house, though it voted for an address by a
large majority, this could not be obtained, the proceeding was
allowed to drop.[Footnote: Niles' Register, XXII, 266. See
_ante_ p. 114.] In all there have been in the whole country
since 1776 not over thirty removals, whether on impeachment and
conviction or on address of the two houses, of judges of a higher
grade than justices of the peace.[Footnote: See Foster,
"Commentaries on the Constitution of the United States,"
Appendix, 633.]

Wholesale removals have also, in rare instances, been effected
for similar purposes by abolishing courts, the judges of which
held during good behavior.[Footnote: See Chap. VII.] Maryland
was the first to do this, abolishing a court and re-establishing
it at the same session, almost in the words of the former law.
Congress followed in 1802 by repealing the statute of the year
before by which a new scheme of Circuit Courts was arranged and
under which sixteen Federalists had been appointed to the bench.
Massachusetts did the same thing in 1811 with respect to her
Courts of Common Pleas.[Footnote: See Chap. VIII.]

The occurrence of vacancies has sometimes been prevented in a
similar manner when the nominating or appointing authority was
politically opposed to the legislature. The existence of a
supreme court is required by all our Constitutions, but the
number of the judges is frequently left to be fixed from time to
time by statute. The Federalists, when they were about to go out
of power, provided that the Supreme Court of the United States
should on the next vacancy be reduced from six to five, thus
seeking to prevent Jefferson from filling such vacancy. By 1863
the number had been raised to ten, but three years later, when a
Democratic President was contending with a Republican Congress,
it was enacted that as vacancies might occur it should be reduced
to seven. In 1869, when a Republican President had come in, the
number was restored to nine, and the new justice for whom a place
was thus made shortly joined in reversing a decision made by the
court not long before and quite unsatisfactory to the majority in
Congress on an important constitutional point. Similar
legislation, for like reasons, has been had in many of the
States.

* * * * *

CHAPTER XXIII

THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
BENCH

Every lawyer is an officer of the court as fully as is the judge
or the clerk. He has, indeed, a longer term of office than is
generally accorded to them, for he holds his position for life,
or during good behavior.

Courts could not exist under the American system without lawyers
to stand between litigants and the judge or jury. It is a system
that requires written pleadings, originally very artificial in
form and still somewhat so. It imposes many limitations on the
introduction of evidence, which often seem to shut out what ought
to be admitted, and rest on reasons not apparent to any who have
not been specially instructed in legal history. It divides the
decision of a cause between judge and jury in a manner only to be
understood after a long and close study. It gives a defeated
party a right of review dependent on a number of technical rules,
and to be availed of only by those who are skilled in the
preparation of law papers of a peculiar kind.

A class of men has therefore been set apart to keep the people
from direct approach to the bench, except when they may desire to
argue their own cases, which rarely occurs.

In England there are two such barriers, the class of barristers
and the class of attorneys. The attorneys keep the people from
access to the barristers; the barristers keep the attorneys from
access to the court. The attorney prepares the case, represents
his client in the proceedings preliminary to the trial, and
assists the barrister whom he may retain at the trial, but cannot
examine a witness or argue the cause.

In America we do not thus divide lawyers into two classes. There
are many of them who never in fact address the court, but it is
not because they have not a legal right to do so. Every member
of the bar of any court has all the legal rights of any other
member of it.

The qualifications for admission to the bar are generally left to
be regulated by the courts. In a few States they are fixed by
constitutional or statutory provisions. In all, when the
Constitutions do not regulate it, the legislature can. It has
indeed been asserted that the admission of attorneys is in its
nature a matter for the courts only.[Footnote: See _American
Law School Review_, I, 211.] English history does not support
this contention.[Footnote: Pollock & Maitland, "History of
English Law," I, 211-217; II, 226. O'Brien's Petition, 79
Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
Court, which are mere voluntary associations of lawyers, have
from time immemorial exercised the function of calling to the
bar, so far as barristers are concerned, and the admission of
attorneys has always been regulated by Acts of
Parliament.[Footnote: See In the Matter of Cooper, 22
N. Y. Reports, 67, 90.] By our American legislatures the same
course has been generally pursued.

The duty of ascertaining whether candidates for admission have
the prescribed qualifications is occasionally performed by the
judges in person; more often by a committee of the bar appointed
by the court for that purpose; in some States by a standing board
of State examiners, receiving compensation for their
services.[Footnote: This comes from fees paid by those examined.]
The latter method was introduced in the latter part of the
nineteenth century and is steadily gaining in favor. A committee
of a local bar is unavoidably subject to some local influences or
prepossessions. A State board can act with greater independence
and maintain with more ease a high standard of admission.

In early colonial days the legislature sometimes set a limit to
the number of attorneys who could be allowed to practice before
the courts. In some colonies the number at the bar of a
particular court was fixed; in others the number of lawyers in
each county.[Footnote: Acts and Laws of the Colony of Conn., May
session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
No such limitation now exists in any State, and the matter is
left to be regulated by the law of supply and demand. This by
the census of 1900 required over 114,000.

The freer a country is, and the quicker its step in the march of
civilization, the more lawyers it will naturally have. The
growth and importance of the bar are stunted wherever it is
overshadowed by an hereditary aristocracy. A land of absolutism
and stagnation has no use for lawyers. The institutions of China
would not be safe if she had a bar. Lawyers are a conservative
force in a free country; an upheaving force under a despotic
government. In Russia one is found enough to serve over thirty
thousand; in the United States there is about one to every six
hundred and sixty of the population,[Footnote: In 1870, there was
one to every 946; in 1880, one to every 782.] and in England one
to every eleven hundred.

The colonial lawyers of the seventeenth and eighteenth centuries
occupied an inferior place in the community as compared with that
now held by the legal profession. There was comparatively little
opportunity to rise to eminence. The positions on the bench, as
has been seen, were largely held by those not trained as lawyers.
Before such judges it was a waste of words to make elaborate
arguments on points of law.

Among the first settlers were a few who had been educated for the
English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
drafted the _Magna Charta_ or "Body of Liberties" of that
colony, adopted in 1641. His opinion of the need of lawyers may
be inferred from the fact that it provided expressly that those
who pleaded causes for others should receive no compensation for
it. Virginia adopted the same policy from 1645 to 1662. Later,
lawyers practicing in Massachusetts were excluded from the
General Court. As that had large judicial powers, it was thought
fitting to give no opportunity to any to sit there to-day to
judge and to appear to-morrow before an inferior court to argue
as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
III, 104.]

As time went on, an American was occasionally sent to London to
read law. He was apt to be a young man of fortune, who entered
the Temple or the Inns of Court more as a means of gaining
pleasant acquaintances than for any serious purpose of education.
Most of them came from Pennsylvania and the Southern colonies.
Two Presidents of the Continental Congress, Randolph and McKean,
four signers of the Declaration of Independence, Heyward, Lynch,
Middleton, Edward Rutledge, and John Rutledge, one of the first
associate justices of the Supreme Court of the United States,
were of the number.

Not infrequently there were legal proceedings in London which
concerned colonial interests. Their charters were attacked or
colony laws and judgments put in question before the Lords of
Trade and Plantations. In such proceedings, if counsel were
needed, English barristers were generally employed. An American
lawyer now and then went over to consult with them and perhaps to
join in the argument, but the leading part was theirs.

It was not until the quickening and deepening of American life
which preceded and portended the Revolution that anything like a
colonial bar, led by a man of learning and position, really came
into existence.[Footnote: "Two Centuries' Growth of American
Law," 16.] From the middle of the eighteenth century to its
close there was a steady and rapid progress in this direction.
Legal education was taken seriously. In the case of many it
began with the fundamental notions of justice and right. The
Greek and Latin classics on those heads were read.[Footnote:
"Life of Peter Van Schaick," 9.] The private law of the Romans
was studied to a greater extent relatively than it is now. The
first chair of law in the United States was established at
William and Mary College in 1779, and there, under Chancellor
Wythe, John Marshall was a student. President Stiles of Yale, in
his "Literary Diary," so full of that kind of historical incident
which after a few years have passed it is most difficult to
trace, enumerates the books read by his son, Ezra Stiles, Jr.,
between 1778 and 1781, in preparation for the Connecticut bar,
under the advice and in the offices of Judge Parker of Portsmouth
and Charles Chauncey of New Haven. They comprehended, besides
much in English and Scotch law, Burlamaqui's _Principes de
Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
Institutes of Justinian, certain titles of the Pandects, and
Puffendorf _de Officio Hominis et Civis juxta Legem
Naturalem_. James Kent at about the same time was reading
Grotius and Puffendorf in the office of the Attorney-General of
New York, and Edward Livingston, under Chancellor Lansing,
explored all parts of the _Corpus Juris Civilis_.[Footnote:
Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
years later, under the instruction of Chief Justice Parsons of
Massachusetts, took up Vattel and the Institutes of
Justinian.[Footnote: Report of the American Bar Association for
1903, 675, note.] The latter, as well as Van Muyden's
_Compendiosa Tractatio_ of them, his father had studied in
his preparation for the bar thirty years before.[Footnote: "Life
and Works of John Adams," I, 46.]

The lectures of Chancellor Wythe at William and Mary, like those
of Mr. Justice Wilson in 1790 at the University of Pennsylvania
and of Chancellor Kent in 1794 at Columbia, were designed, as
were Blackstone's at Oxford, to give such information as to the
nature and principles of law as might be of service to any one
desirous of acquiring a liberal education. Such instruction
could not be considered as anything approaching a proper
preparation for entering on the practice of the legal profession.

The United States preceded England in the endeavor to provide
such a preparation by a systematic course of study pursued under
competent teachers at a seat of learning established for that
sole purpose.

The need of something of the kind was felt to be pressing after
the independence of the United States had been fully established.
An unusual number of young men of promise were turning from the
army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
the number of attorneys in the State of New York had risen to
120. Morse's "American Geography," ed. 1796, 506. Thirty years
later it was 1,200. Miles' "Register," XIV, 311.] Those already
members of it had educated themselves as best they could, with
slight assistance from the lawyers in whose offices they had
studied. They in turn were indisposed to do more for such as
might desire to read law in their offices. Few of them were
competent to do much.[Footnote: See "Life of Peter Van Schaick,"
9, 13.]

There was a demand for a professed school of law, and in 1784 the
first in any English-speaking country was opened at Litchfield,
Connecticut. There are now 104 of them,[Footnote: Report of the
American Bar Association for 1903, p. 398.] with a total
attendance of over fourteen thousand students. The course of
study in a few may be completed in one year; in most two are
required; in the rest three, with perhaps an offer of a fourth
for advanced instruction leading to the degree of master or
doctor of laws. The ordinary degree is that of bachelor of laws
(LL.B.).

The American Bar Association has had an important influence from
its first organization, in 1877, in prolonging the period and
raising the standards of legal education. In affiliation with it
there is an "Association of American Law Schools," representing a
large majority of the teachers and students engaged in law school
work. This admits no institution into its ranks at which
students are received without a preliminary education at least
equal to that given by the ordinary high school. A few of the
schools so associated receive no student, save in exceptional
cases, unless he already holds a degree in arts, science,
philosophy, or letters from some collegiate institution.

In several of the States having boards of State examiners no one
is admitted to the final examination before them who did not
prior to the beginning of his education receive one of the
degrees above indicated or else pass a special examination before
the same board on certain prescribed studies, corresponding
substantially with those ordinarily pursued in a high school.

Some proof is everywhere required that an applicant for admission
to the bar possesses a good moral character. It is necessarily
largely a matter of form. Certificates are sometimes required
from those familiar with his previous life, and sometimes the
mere motion for his admission by a member of the bar representing
the examining committee is accepted as sufficiently implying that
no unworthy person would be thus presented.

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