The American Judiciary

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

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Sometimes the laws of the State were criticised in this way by
judge and jury.

In December, 1788, a grand jury in South Carolina made this
presentment:

We present as a grievance of the greatest magnitude the many
late interferences of the legislature of the State in private
contracts between debtor and creditor. We should be wanting in
our duty to our country and regardless of the obligation of our
solemn oath and the high trust at this time devolving upon us
by operation of the laws of the land, did we omit this occasion
between the expiration of one legislature and the meeting of a
new representative body, to express our utter abhorrence of
such interferences.[Footnote: "American Museum," VII, Appendix
II, 10. _Cf. ibid._, 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History
of the People of the United States," II, 229.] or acts of
Congress were formerly attacked. In 1819, the action of the
House of Representatives as to the introduction of slavery in
Missouri was the subject of a warm protest from a grand jury in
that territory, which closed thus:

They hope those restrictions will never more be attempted; and,
if they should, they hope by the assistance of the genius of
'76 and the interposition of Divine Providence to find means to
protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently
presented as grievances in the South during the years preceding
the nullification movement in South Carolina.[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of the
American Historical Association for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance
the suspension of Commodore Porter from duty for six months under
sentence of a naval court martial, approved by the Secretary of
the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a
grand jury in Tennessee presented a "protest against the bold and
daring usurpations of power by the present Executive of the
United States" (John Quincy Adams), and stated that "being
decidedly opposed to the present administration, we have for
ourselves resolved to oppose all those we have just reason to
suspect to be friendly thereto, and recommend the same course to
all our fellow-citizens of Blount County."[Footnote: Niles'
Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to
a grand jury with a long statement of the justice of the
Revolution, its military successes, and the duties of patriotism.
The court thereupon ordered "That the political part of the Chief
Justice's charge" be forthwith printed.[Footnote: Principles and
Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a
similar occasion to comment with severity on those who had
opposed the ratification of the Constitution of the United
States. Jealousy had done much to poison their minds, he said,
"for it is observable that throughout the whole of the United
States a majority of the leaders of the opposition to our newly
adopted government are not natives of our soil; hence this
pernicious quality of the mind displays itself more widely in
America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for
Governor of Massachusetts, a Federalist newspaper reported
approvingly a charge of Chief Justice Dana of that State. He had
been an ardent politician before going on the bench and had
declined a nomination as minister to France during the preceding
year. "The learned judge," said the Boston _Centinel_, "in
a forcible manner proved the existence of a French faction in the
bosom of our country and exposed the French system among us from
the quintumvirate of Paris to the Vice-President and minority of
Congress as apostles of atheism and anarchy, bloodshed and
plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin,
"Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States
made several charges in Maryland hardly less objectionable, one
of which was afterward unsuccessfully set up by the House of
Representatives as a ground of his impeachment. The article
stating it described the charge as "an intemperate and
inflammatory political harangue with intent to excite the fears
and resentment of the said grand jury and of the good people of
Maryland against their state government and Constitution." He
had, indeed, used this language:

You know, gentlemen, that our State and national institutions
were framed to secure to every member of the society, equal
liberty and equal rights; but the late alteration of the
federal judiciary by the abolition of the office of the sixteen
circuit judges, and the recent change in our State
constitution, by the establishment of universal suffrage, and
the further alteration that is contemplated in our State
judiciary (if adopted) will, in my judgment, take away all
security for property and personal liberty. The independence
of the national judiciary is already shaken to its foundation,
and the virtue of the people alone can restore it. The
independence of the judges of this State will be entirely
destroyed if the bill for the abolition of the two supreme
courts should be ratified by the next general assembly. The
change of the State constitution, by allowing universal
suffrage, will, in my opinion, certainly and rapidly destroy
all protection to property, and all security to personal
liberty; and our republican constitution will sink into a
mobocracy, the worst of all possible governments. I can only
lament that the main pillar of our State constitution has
already been thrown down by the establishment of universal
suffrage. By this shock alone the whole building totters to
its base and will crumble into ruins before many years elapse,
unless it be restored to its original state.

All this was less indefensible under the judicial practice of a
century ago than it would be now, and there were not enough votes
of Guilty on the article of impeachment founded upon it to secure
a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of
Pennsylvania was charging a Pennsylvania grand jury that the
Jeffersonians had assumed a name that did not belong to them.
"Such men," he said, "disgrace the name of Republicans by
exclusively assuming it. In their sheep's clothing they are
ravening wolves."[Footnote: Wharton's State Trials, 47, note.]
For this, among other things, he was very properly impeached and
removed in 1803, after the Republicans came into power in that
State.[Footnote: McMaster, "History of the People of the United
States," III, 154.]

It is difficult for the American of the twentieth century to
conceive how honorable men could so have abused official
position.[Footnote: Wharton's State Trials, 376. Justice
Washington made it a rule not to enter into any political
questions in his charges unless necessary for the guidance of the
grand jury in the work before them, and until 1817, when party
feeling had moderated, not to give out copies of any charges for
publication. Niles' Register, XIII, 169.] The cause lies in the
extreme rancor which then embittered politics and debased
society. Federalists and Republicans were hardly on speaking
terms. Many who were actively engaged in politics felt compelled
to carry a sword cane for defence if attacked. Judge Addison's
charge brought out an open letter to him in a Pittsburgh
newspaper, signed by a Republican who was on the Supreme bench of
the State, expressing his astonishment that the people who heard
him "were not fired with sudden indignation and did not drag you
from your seat and tread you under foot."[Footnote: Wharton's
State Trials, 47, note.] On the other hand, at a political
banquet of the Boston Federalists, at about the same time, their
approval of Judge Dana's charges to grand juries was manifested
by this toast: "The Honorable Francis Dana, Chief Justice of the
learned Associate Judges of our Supreme Judicial Court. While
the political opinions delivered from the bench are dictated by
intelligence, integrity and patriotism, may they be as highly
respected as have ever been its judicial decisions."[Footnote:
Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior
executive officers to do specific official acts which it is their
plain duty to perform, or issue an injunction to prevent their
doing an official act which is plainly beyond their powers.
Heads of Departments of the State or the United States are
subject to this power.[Footnote: Noble _v._ Union River
Logging Co., 147 U. S. Reports, 165; Smyth _v._ Ames, 169
U. S. Reports, 466.] So in the Federal Courts are Governors of
States acting under a law repugnant to the Constitution of the
United States.[Footnote: Pennoyer _v._ McConnaughy, 140
U. S. Reports, 1.] No such writ will be issued, however, when
the case is of a political nature and involves the exercise of
any official discretion,[Footnote: Georgia _v._ Stanton, 6
Wallace's Reports, 50.] nor under any circumstances against the
President of the United States.[Footnote: Mississippi _v._
Johnson, 4 Wallace's Reports, 475.] As to whether it can in some
cases be granted by a State court against the Governor there is a
conflict of authority.

The development of party government in the United States has led
of recent years to much legislation for the regulation of party
conventions and party organization in the interest of fair
dealing and public order. Statutes of this nature relating to
the form and heading of ballots for use at popular elections are
common. If conflicting factions contend for the right of issuing
ballots in the name of the same party, the courts may be called
upon to decide between them on an application for an injunction
or writ of mandamus. The legislature, however, may provide that
some standing agency or committee of a party shall decide finally
upon any such conflicting claims, and in such case their decision
will be conclusive upon the courts.[Footnote: State _v._
Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When title to a political office is contested, the courts, unless
there is some constitutional provision to the contrary, may be
appealed to for a decision. This is true even in respect to the
office of Governor.[Footnote: Boyd _v._ Thayer, 143
U. S. Reports, 135; Taylor _v._ Beckham, 178 U. S. Reports,
548; State _v._ Bulkeley, 61 Connecticut Reports, 287.] It
is a remedy which has been, though in rare instances, abused for
party purposes.[Footnote: Such a case was the issue by a District
Judge of the United States in 1872 of an injunction-order under
which the Marshal took possession of the Louisiana State-house,
and excluded those claiming to be the legislature of the State.
Gibson, "A Political Crime," 347 _et seq._; Senate Report,
457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Constitutions
of several States, to ask the judges of the Supreme Court for
their opinion on any question of law, may throw upon them the
delicate task of deciding in a collateral proceeding who is
Governor, if the title to the office is claimed by two. This was
the case in Florida in 1869. The House of Representatives had
commenced proceedings of impeachment against the Governor. It
was on the first day of a special session of the Assembly. There
could be no such session unless a quorum was present in each
house. There were but twelve Senators in attendance. The
Lieutenant-Governor regarded the proceedings as regular, and
assumed to exercise the office of Governor pending the trial.
The Governor claimed that twelve Senators were not a quorum, and
that the proceedings were void. On these points he requested the
opinion of the Justices of the Supreme Court, and they gave one
supporting his contentions.[Footnote: 12 Florida Reports, 653.]
A few weeks later a regular session was held, at which a quorum
was present in each house, and the proceedings of the special
session were treated as void.[Footnote: S. S. Cox, "Three Decades
of Federal Legislation," 518, 520.]

In the early days of the United States, under the present
Constitution, the Chief Justices of the Supreme Court of the
United States at times filled also a political office, and so
were invested at the same time with political and judicial
functions. John Jay, the first Chief Justice, while holding that
office, was made our Envoy Extraordinary to Great Britain, and
spent a year abroad in that capacity. His acceptance of the
position, however, occasioned general and unfavorable comment.
John Marshall was both Chief Justice and Secretary of State for
five weeks, during which he held one term of the Supreme Court.
Oliver Ellsworth was both Chief Justice and minister to France at
the same time, and for a period of over a year, during which he
held one term of court.

Nothing of this kind has since occurred, nor would it now be
thought consistent with the proprieties of judicial office.

When the result of the election of the President and
Vice-President of the United States was contested in 1877,
Congress, as a temporary makeshift, bridged over the difficulty
by creating a commission of fifteen, five from each house and
five from the Supreme Court, to decide upon the returns. Four of
the justices were especially selected by the act passed for this
purpose, two of them being Republicans and two Democrats, and
they were directed to choose the fifth.[Footnote: 19 United
States Statutes at Large, 228.] They agreed on Justice Bradley,
a Republican. The Congressional members were equally divided
politically. The result proved to be that on every important
question in controversy every Republican voted for the view
favorable to the Republican candidates and every Democrat voted
for the other. The country could not fail to see that judges, as
well as other public men, may be insensibly influenced by their
political affiliations, and regarded the whole matter as a new
proof of the wisdom of separating the judiciary from any
unjudicial participation in the decision of political
issues.[Footnote: See Wilson, "Division and Reunion," 286;
S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy,
"Some Account of the Work of Stephen J. Field," 440.]

Justices of the Supreme Court have since sat on international
tribunals of arbitration, but this is, or should be, a strictly
judicial proceeding.

In the State Constitutions, the judges of the highest courts are
now often expressly forbidden to accept other office,[Footnote:
See Chap XXII.] but in the absence of such a prohibition it would
be considered as unbecoming. Formerly and during the first third
of the nineteenth century this was in many States not so. Some
were then judges because they held legislative office and as an
incident of it. Others did not hesitate to accept political
positions. Of the six Federalist electors chosen in New
Hampshire at the presidential election of 1800, three were judges
of her Supreme Court.[Footnote: Wharton's State Trials, 47.]

Judges have frequently taken part in constitutional conventions
of their States. In Virginia, Chief Justice Marshall was a
member of that of 1829, and Judge Underwood of the District Court
presided over that of 1867. Chancellor Kent and Chief Justice
Spencer were members of that of 1821 in New York.

It may well be doubted if the advantages to be gained by their
counsel in such a position are not outweighed by the evil of
exposing it to criticism as dictated by selfish considerations.
A member of the New York convention thus alluded upon the floor
to the measures supported by the Chief Justice and Chancellor:

He regretted that such an opinion and plan had been proposed by
the Chief Justice. It must have arisen from the politics of
the Supreme Court. The judges of that court had been occupied
so much in politics that they had been compelled to press upon
the public a system that had nothing else to recommend it than
such a relief to themselves from the burthen of official duties
as would leave them to the free exercise of their
electioneering qualifications. But for this, the Chief Justice
might have shown a Holt, or a Mansfield. The elevated
character of the Chancellor had been often asserted and alluded
to. He meant no disrespect to that honorable gentleman. He
respected him as highly as any man when he confined himself to
the discharge of the official duties of his office; but when he
stepped beyond that line; when he became a politician, instead
of being his fancied oak, which, planted deeply in our soil,
extended its branches from Maine to Mexico, he rather resembled
the Bohon Upas of Java, that destroyed whatever sought for
shelter or protection in its shade.[Footnote: Reports of the
Proceedings and Debates of the Convention of 1821, 615.]

The pardoning power is essentially of a political nature.
Judicial officers are to do justice. Mercy is an act of policy
or grace. A pardon after conviction presupposes guilt.
Nevertheless, in a few States this royal prerogative of pardoning
has been committed to a board of officers, headed by the
Governor, of which some of the judiciary are members. There is
this advantage in it, that judges know best how fully
circumstances of extenuation are always taken into account by the
court before pronouncing sentence, and therefore cannot but
exercise a restraining power against the influences of mere
sentimental promptings to inconsiderate clemency.

It may be said, in general, that the tendency towards keeping the
judiciary apart from any active connection with the executive
department has steadily increased since the first quarter of the
nineteenth century.

When our position as a neutral power, in 1793, involved us in
serious questions affecting the rights of Great Britain and
France, Washington's cabinet advised him that the ministers of
those countries be informed that the points involved would be
referred to persons learned in the law, and that with this in
view the Justices of the Supreme Court of the United States be
invited to come to the capitol, six days later, "to give their
advice on certain matters of public concern, which will be
referred to them by the President."[Footnote: Jefferson's
Writings, Library Ed., I, 370.] Nothing of this nature would now
be dreamed of, under any conditions.

* * * * *

CHAPTER IV

THE FORCE OF JUDICIAL PRECEDENTS

The antipathy to legal codification, which, until recent years,
was a characteristic both of the English and American bar, and
still prevails, though with diminishing force, has given, and
necessarily given, great force to judicial precedents. It is
mainly through them that with us unwritten law passes into
written law. Precedent is a fruit of reason ripened by time.
Time, it has been said, is the daughter of Antiquity and takes
place after Reason, which is the daughter of Eternity. Precedent
rests on both. A legal code framed in any American State is
little more than the orderly statement of what American courts
have decided the law to be on certain points.

When reason is set to work upon the solution of a problem growing
out of the affairs of daily life, it often happens that two minds
will pursue different paths and perhaps come to different
results. Not infrequently neither result can fairly be
pronounced untenable. An English judge has said that nine-tenths
of the cases which had ever gone to judgment in the highest
courts of England might have been decided the other way without
any violence to the principles of the common law.

Every lawsuit looks to two results: to end a controversy, and to
end it justly; and in the administration of human government the
first is almost as important as the last.[Footnote: Hoyt
_v._ Danbury, 69 Conn. Reports, 341, 349.] Certainty is of
the essence of justice; but among men and as administered by
their governments it can only be such certainty as may be
attained by an impartial, intelligent, and well-trained judge.
If such a judge has, after a proper hearing, declared what, under
a particular set of circumstances, the law is which determines
the rights of the parties interested, this declaration makes it
certain, once and forever, as far as they are concerned, and
helps to make it certain as to any others in the future between
whom there is a controversy under circumstances that are similar.
If it is the declaration of a court of supreme authority it is
ordinarily accepted as of binding force by any inferior courts of
the same government, and treated with great respect and as high
evidence of the law by any other of its superior courts, as well
as by courts of other States before which a similar question may
be presented.

A decision on a point of law by the highest court in a State does
not, however, bind its lower courts as absolutely as would a
statute. An inferior court may disregard it and decide the same
point another way if it be fully satisfied that the action taken
by the court above was ill-considered and erroneous. It is
possible that in such event, on reconsideration, the court of
last resort may reverse its original position.[Footnote: A good
instance of this is furnished by the case of Johnson _v._
People, 140 Illinois Reports, 350; 29 Northeastern Reporter, 895.
In McFarland _v._ People, 72 Illinois Reports, 368, the
Supreme Court had stated in its opinion, that if two unimpeached
witnesses gave the only testimony as to a certain point material
to the plaintiff's case, and testified in contradiction of each
other, the case failed for want of proof. Many years later a
charge to the jury to this effect was asked and refused in an
inferior court. An appeal was taken to the Supreme Court, and
there Mr. Justice Schofield, the author of the original opinion,
thus disposed of it: "Although in McFarland _v._ People, 72
III., 368, the writer of this opinion expressed the belief that a
similar instruction was free of legal objection, his remarks in
that respect were unnecessary to a determination of the case then
before the court, and they were made without sufficient
consideration, and are manifestly inaccurate. They are now
overruled. The question of competency is one of law, and
therefore for the court; but the question of credibility,--that
is, of worthiness of belief,--and therefore the effect of the
competent evidence of each witness, is one of fact, and for the
jury."] If not, that acquires by this attack a double force.

Chief Justice Bleckley of Georgia once remarked that courts of
last resort lived by correcting the errors of others and adhering
to their own. Nevertheless, they have often, years after
formally announcing a certain legal doctrine in one of their
opinions, declared it to be unsound, and overruled the case in
which it was laid down. They do this, however, with natural and
proper reluctance, and never if this doctrine is one affecting
private rights of property and has been followed for so long a
course of time that it may be considered as a rule on which the
people have relied in exchanging values and transferring titles.

The public, however, have rights to be regarded as fully as
individuals, and if a right of private ownership has been
adjudged to exist, which involves a public loss, the precedent
thus created might be overruled with less hesitation than one
would be determining rights and correlative obligations that were
purely private. Thus the North Carolina courts for seventy years
held that a public office was the private property of the
incumbent. No other courts in the United States took that view,
and it has, by a recent decision, been repudiated in North
Carolina.[Footnote: Mial _v._ Ellington, 134 North Carolina
Reports, 131; 46 Southeastern Reporter, 961; 65 Lawyers' Reports
Annotated, 697.]

Still more are public interests to be regarded when a question
arises as to reversing a decision as to the proper construction
of a constitutional provision. If a judicial mistake be made in
construing a statute it is easily remedied. The next legislature
can amend the law. But a Constitution can only be amended with
extreme difficulty and by a slow process. If the court falls
into error as to its meaning, the correction must ordinarily come
from its own action or not at all. Hence an opinion on a matter
of constitutional construction is less to be regarded as a final
and conclusive precedent than one rendered on a matter of mere
private right.

It has been the position of some American statesmen and jurists
that judicial decisions on points of constitutional construction
were not binding upon the executive or legislative department of
the government. President Jackson asserted this with great force
in his message to the Senate of July 10, 1832, disapproving the
re-charter of the Bank of the United States. He conceded,
however, that a judicial precedent may be conclusive when it has
received the settled acquiescence of the people and the States.
But while such acquiescence may strengthen the authority of a
decision, it can hardly be regarded as that which gives it
authority. That comes from the fact that it is an exercise of
the judicial power of the government in a case for the disposal
of which this judicial power has been properly invoked.

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