The American Judiciary

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

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Such opinions profess to state what the law was by which rights
accrued out of a past transaction. In fact, they often do much
more. By declaring that to be the law, and declaring it with
authority, they are the first to make it certain that it is the
law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions
(_responsa_) of lawyers only because of the standing and
reputation of those who gave them. Later the emperors gave an
official character and weight to the opinions of certain lawyers
of the past. The English always accorded authority to the
opinions of their judges, because they spoke for the state.
Americans from the first have done the same.

American judges have exercised these powers of ascertaining and
developing unwritten law even more freely than English judges.
They were forced to it as a result of applying the common law of
one people to another people inhabiting another part of the world
and living under very different social conditions. In doing this
it was necessary to reject not a little of what for England had
already been definitely settled and universally accepted. The
legislatures of the colonies and States rejected much, but the
courts rejected more. The legislatures also added much, but the
courts added yet more.

Usages grow up rapidly in new settlements and along frontiers
bounded by territory held by savages. Of such usages, under the
rulings of the courts, many were soon crystallized into law.

New inventions and new political conceptions in the eighteenth
century began to change the face of the civilized world. The
common law as to agency had to be adapted to the operations of
business corporations; that as to highways to railroads; that as
to contracts by mail to contracts by telegram, and later to
contracts by telephone. The whole law of master and servant,
which for the English people was bottomed on the relation of
land-owner and serf, was to be recast. Public assemblies were to
be regulated and their proceedings published with greater regard
to public and less to private interest.[Footnote: Barrows
_v._ Bell, 7 Gray's Reports, 301; 66 American Decisions,
479.] Along all these lines and many others the American courts
have now for nearly three hundred years been quarrying out
American law from the mine of the unwritten law of the people
within their jurisdiction. It has been their natural endeavor to
make each part of the new system of jurisprudence which they were
gradually building up harmonious with every other and to give a
certain symmetry to the whole. This has forced them to deduce
rule from rule and principle from principle with a freedom for
which in older countries of settled institutions there is less
occasion. The process has gone on during the last fifty years
with ever-increasing rapidity, and for two reasons. There have
been more novel questions to meet and there has been a greater
wealth of suggestion and precedent at command.

Not a little, however, of the development of our unwritten law
has been and remains of a local character. This is particularly
true of that of the Pacific States, both on account of climatic
conditions and historical antecedents.[Footnote: Katz _v._
Walkinshaw, 141 California Reports, 116.] Chief Justice Field of
the Supreme Court of California, afterward so long a member of
the Supreme Court of the United States, did both a constructive
and a destructive work in shaping the jurisprudence of that
State. He found it seated in a land on which certain
institutions of civil law origin had been impressed for centuries
and into which other institutions of common law origin had been
introduced in recent years. His judicial opinions molded these
into one mass, rejecting something from each and retaining
something from each.[Footnote: Pomeroy, "Some Account of the Work
of Stephen J. Field," 38, 45.] Some of the results of his
creative touch have been the foundation of decisions in distant
States, but most were so dependent on local circumstances and
conditions as to be incapable of transplantation.

But as to all questions of general concern which can be answered
from analogies drawn from the common law, the judges of each
State--and it is the State judiciary on which the burden of
developing unwritten law mainly rests--now find in the reported
decisions of the courts of last resort in all the other States a
fertile source of supply when they are looking for a rule to fit
a case for which the ancient law made no direct provision. Keen
intellects from the bench, aided perhaps by keener ones from the
bar in forty-five different jurisdictions, are discussing the
problems of the day as they appear mirrored in litigated causes.
What is a new question in one State was set at rest ten years or
ten days ago by a judicial decision in another. If the decision
was a just and logical deduction from accepted principles of the
older law it will probably be followed everywhere. If unjust and
illogical, its very faults will serve to guard other courts to
better conclusions.

How far judges advance along these paths depends greatly on the
character of the bar. A judge rarely initiates anything. He is
apt to fall into a mistake if he does. The business which he has
to do is brought before him by others. It is brought before him
in the best way to throw all possible light upon it, because it
is set before him from two opposite points of view by two
antagonists, each strenuously endeavoring to detect a flaw in the
reasoning of the other. These two men have previously given the
subject in controversy much careful thought. What views neither
presents are generally not worth presenting. As was said in the
preceding chapter, it is only in the plainest case that a judge
can properly or safely base his decision on a position not
suggested at the bar or as to the soundness of which he has not
asked the opinion of the counsel at the hearing.

The development of law, therefore, whether unwritten or written,
is primarily the work of the lawyer. It is the adoption by the
judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]

There are obvious limits to this power of developing unwritten
law. The courts are not to push forward into a place more
appropriate for the legislature to occupy.

Mr. Justice Holmes of the Supreme Court of the United States,
when Chief Justice of Massachusetts, stated with his usual
elegance and force the bounds within which, as it seemed to him,
judicial authority should be kept. In a common law suit against
a railroad company for damages suffered by an accident on its
road, the defendant had asked the trial court to order the
plaintiff to submit to an examination of his person by a
physician whom it named, for the purpose of determining what
injuries he had really suffered. "We agree," said the Chief
Justice, "that in view of the great increase of actions for
personal injuries it may be desirable that the courts should have
the power in dispute. We appreciate the ease with which, if we
were careless or ignorant of precedent, we might deem it
enlightened to assume that power. We do not forget the
continuous process of developing the law that goes on through the
courts in the form of deduction or deny that in a clear case it
might be possible even to break away from a line of decisions in
favor of some rule generally admitted to be based upon a deeper
insight into the present wants of society. But the improvements
made by the courts are made, almost invariably, by very slow
degrees and by very short steps. Their general duty is not to
change, but to work out, the principles already sanctioned by the
practice of the past. No one supposes that a judge is at liberty
to decide with sole reference even to his strongest convictions
of policy and right. His duty in general is to develop the
principles which he finds with such consistency as he may be able
to attain.... In the present case we perceive no such pressing
need of our anticipating the legislature as to justify our
departure from what we cannot doubt is the settled tradition of
the common law to a point beyond that which we believe to have
been reached by equity, and beyond any to which our statutes
dealing with kindred subjects ever have seen fit to go. It will
be seen that we put our decision, not upon the impolicy of
admitting such a power, but on the ground that it would be too
great a step of judicial legislation to be justified by the
necessities of the case."[Footnote: Stack _v._ New York, New
Haven and Hartford Railroad Co., 177 Massachusetts Reports, 155;
58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications
that would not be universally accepted. It is intimated that if
the necessity had seemed strong enough to call for the order
asked for in the trial court it ought to have been granted,
although not justified by any settled rule or authoritative
precedent, nor by any clear analogy from such a rule or
precedent. This is a view taken, though with less caution and
qualification, in a work written by the same hand many years
before, which is recognized as a legal classic on both sides of
the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after
discussing some of the reasons which actuate judges in assuming
to unfold the unwritten law, it is stated thus:

The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course,
considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy: most generally,
to be sure, under our practice and traditions the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the
last analysis.... The truth is that the law is always
approaching and never reaching consistency. It is forever
adopting new principles from life at one end, and it always
retains old ones from history at the other, which have not yet
been absorbed or sloughed off. It will become entirely
consistent only when it ceases to grow.

Courts enter on a dangerous ground when, to justify their action,
they rely on any rule of public policy not stated in Constitution
or statute and unknown to the common law. If such was once the
habit of the English courts, it was because of social conditions
with which they had to deal which no longer exist either in their
country or in ours. It is for the judge to adapt old principles
rather than adopt new ones. What one man thinks is public policy
another, equally clear-headed and well-informed, may not. The
safe course for the judiciary is to rely on the legislature to
declare it, so far as the common law does not. If, however, the
courts of a State are called upon for the first time to declare
what any rule of the common law, governing a past transaction,
is, or at a given time was, in that State, and this be a doubtful
question, the decision virtually calls for the making of a new
rule, though under the form of applying an old one, and that will
be adopted which may be deemed best calculated to do justice in
cases of that particular character.[Footnote: Seery _v._
Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

* * * * *

CHAPTER VI

THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING
WRITTEN LAW

As governments must provide some authority to declare what the
unwritten law governing any transaction was, so they must provide
some authority to declare what the written law governing any
transaction means. Few statements of any rule or principle can
be written out in such a way as to convey exactly the same
impression to every mind. Thought is subtler than its
expression. The meaning of written laws will therefore often be
questioned.

An answer is sometimes attempted by the authority from which the
law proceeded. A king declares what he intended by the terms of
an ambiguous edict. A legislature passes an act to declare the
meaning of a previous one. But meanwhile rights have accrued.
Something has been done in reliance upon a certain construction
of the law. If it was a right construction, then what was done
was lawful, and no subsequent explanation of his intentions by
the lawgiver can change this fact. Laws are addressed to the
community at large, and their meaning must be determined once for
all from the language used, however inadequate it may have been
to express the real design of those who enacted them, unless that
design so clearly appears, notwithstanding an unfortunate choice
of words, as to compel an interpretation against the letter but
in obedience to the spirit of the enactment. A "declaratory
statute"--one declaring what a previous statute meant--is
therefore, if it gives it a meaning unwarranted by its terms when
so interpreted, only effectual as respects future transactions.
As to the past, the meaning is for the courts, and while such a
statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the
judges decide them? The answer must be determined by
considerations applicable to every sort of written paper. If the
true construction of an ambiguous document be left to juries, it
is evident that there would be no certainty that different
results would not be reached in different cases, and probable
that unanimity would seldom be attainable. If left to judges, a
decision will certainly be reached and, it may be presumed, be
reasoned out with care, while if the matter be one of public
importance the grounds on which they proceed will be so expressed
as to furnish a guide to others toward the same conclusion. The
construction of all writings is therefore, by the Anglo-American
common law, as by the judicial system of most countries, deemed,
in case of a question affecting litigated rights, to belong of
right to the judges. Their possession of this power in the
United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with
supreme authority. It may be that of one man or of many men.
The essential thing is that it should be a personal utterance,
proceeding from persons to whom, by acknowledged law or custom,
submission is due, and one that, if need be, can be enforced by
the whole power of the State.

The fundamental principle of American government, as laid down in
the words of Harrington in the oldest of our State Constitutions,
after which many of the rest, and that of the United States as
well, have been largely patterned, is that it is one of "laws and
not of men."[Footnote: Constitution of Massachusetts, Part the
First, Art. XXX, quoted more fully in Chapter II.] Laws,
however, must be administered by men. Their meaning, if it be
uncertain, must be determined by men. It must be the subject, as
the same Constitution twice affirms, of "impartial
interpretation."[Footnote: _Id_., Preamble, and Part the
First, Art. XXIX.] This interpretation is really what gives them
force. It is the personal utterance of one speaking for the
State, and who speaks the last word. It was simply following
English precedent to give this power to the courts as respects
legislative enactments. But the principle which required it
inevitably extended with equal force to constitutional
provisions. The people who adopt written constitutions for their
government put their work in a form which must often give rise to
questions as to what they intended to express. They rely on the
judiciary to secure their enforcement, and the judiciary must
enforce them according to what it understands their meaning to
be.

There is but a step from interpretation to enlargement. Every
statute is passed to accomplish something. If the object is
clear, the rules of Anglo-American law allow the court that may
be called on to apply it to extend its operation to cases within
the purpose evidently intended, although the language used is
inadequate fully to express it. This is styled giving effect to
"the equity of the statute." Even violence can be done to the
words, if so only can this judge-discovered intent be made
effectual. The rules governing judicial interpretation of
statute law fill a good-sized volume.

As the Roman lawyers worked out by force of logic and analogy an
extensive system of private law from the meagre fabric of the
Twelve Tables, so under the lead of American lawyers American
judges have applied the processes familiar in the development of
unwritten law to the development of our written law, both
statutory and constitutional.

Carlyle said that the Roman republic was allowed so long a day
because on emergencies the constitution was suspended by a
dictatorship. The American republics have a right, upon this
theory, to a still longer one. With them the Constitution need
not be temporarily set aside on an emergency. It may simply be
permanently enlarged or limited by judicial construction. A
Constitution is the garment which a nation wears. Whether
written or unwritten, it must grow with its growth. As Mr. Bryce
has put it: "Human affairs being what they are, there must be a
loophole for expansion or extension in some part of every scheme
of government; and if the Constitution is Rigid, Flexibility must
be supplied from the minds of the Judges."[Footnote: "Studies in
History and Jurisprudence," 197.]

The Constitution of the United States declares that no State
shall pass any law impairing the obligation of contracts. This
proposition being the major premise, Chief Justice Marshall added
the minor premise that every charter of a private corporation is
a contract, and completed the syllogism by the conclusion that no
State can pass any law impairing the obligation of such charters.
The counsel who opposed this doctrine urged that every one must
acknowledge that neither the men who framed the Constitution nor
the people who adopted it ever thought that the word "contracts,"
as so used, embraced "charters." Be it so, was Marshall's
answer, that proves nothing unless you can go farther and satisfy
the court that if they had contemplated the construction we put
upon it they would have used words to exclude it.[Footnote:
Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]

The acquisition of foreign territory is a matter not especially
provided for in the Constitution of the United States. Jefferson
hesitated to make the Louisiana purchase on this account, and was
quite inclined to think, when he did make it, that he had
transcended the bounds of his authority. The courts gave the
Constitution a different interpretation, and stamped this upon it
as permanently as if it had been a birthmark. It was done by
Marshall in a single sentence. "The Constitution," he observed,
"confers absolutely on the government of the Union the powers of
making war and of making treaties: consequently that government
possesses the power of acquiring territory either by conquest or
by treaty."[Footnote: American Insurance Co. _v._ Canter, 1
Peters' Reports, 511, 542.]

In the course of the same opinion, the great Chief Justice led
the way toward the doctrine, to be developed later, that the
manner in which such territory was to be held and its inhabitants
governed need not be such as the Constitution prescribed for the
territory within one of the United States. It was to be
prescribed by Congress under its power "to make all needful rules
and regulations respecting the territory or other property
belonging to the United States." Congress had set up a
Legislative Council in the Territory of Florida, and the
Legislative Council had established a court of admiralty, with
judges holding office for four years. The case in hand turned
upon the effect of a judgment of that court. It was contended at
the bar that it had no effect, because by the express terms of
the Constitution the judicial power of the United States extended
to all cases of admiralty jurisdiction, and must be vested in one
Supreme Court and such inferior courts as Congress might ordain.
"We have only," was Marshall's reply, "to pursue this subject one
step further to perceive that this provision of the Constitution
does not apply to it. The next sentence declares that 'the
judges both of the Supreme and inferior courts shall hold their
offices during good behaviour.' The Judges of the Superior Courts
of Florida hold their offices for four years. These Courts,
then, are not constitutional Courts in which the judicial power
conferred by the Constitution on the general government can be
deposited. They are incapable of receiving it. They are
legislative Courts, created in virtue of the general right of
sovereignty which exists in the government, or in virtue of that
clause which enables Congress to make all needful rules and
regulations respecting the territory belonging to the United
States. The jurisdiction with which they are invested is not a
part of that judicial power which is defined in the third article
of the Constitution, but is conferred by Congress in the
execution of those general powers which that body possesses over
the territories of the United States. Although admiralty
jurisdiction can be exercised in the States in those Courts only
which are established in pursuance of the third article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises the
combined powers of the general and of a State
government."[Footnote: 'American Insurance Co. _v._ Canter,
1 Peters' Reports, 511, 546.]

It will be perceived that the argument here was that the Florida
court did not exercise any of the judicial power of the United
States because it could not, and that it could not because the
judges were not commissioned for life. This left unanswered the
deeper question whether any act of Congress could serve to
support a court existing under authority of the United States,
the judges of which were to hold office only for a term of years.
It was assumed that the provision for a life tenure did not apply
to the Florida judges, because if it did the court would be
illegally constituted. Whether it was legally or illegally
constituted was not discussed, except for the general reference
to the power of Congress to legislate for the territories and
exercise the rights of sovereignty over territory newly acquired
by contest or treaty.

On this decision has been built up our present system of
governing territorial dependencies at the will of
Congress.[Footnote: Mormon Church _v._ United States, 136
United States Reports, 1, 43; Dorr _vs._ United States, 195
United States Reports, 138, 141.]

Marshall's was the last appointment made to the Supreme bench
from the Federalist party. It was not many years before that
party disappeared from the face of the earth. Jefferson put
three men there representing the other school of political
doctrine,[Footnote: Among Jefferson's papers is a description of
five men whom he especially considered with reference to filling
the first vacancy which occurred during his administration.
Politics figures largely in the sketch of each. As to William
Johnson, whom he selected, it is noted that he is of "republican
convictions and of good nerves in his political principles."
American Historical Review, III, 282.] and his appointments were
followed by others of a similar nature, until in 1830, after
Mr. Justice Baldwin had taken his seat, it became evident that
the nationalizing tendencies which the great Chief Justice from
the beginning of the century had impressed upon its opinions were
likely soon to cease. He apprehended himself that the court
would come to decline jurisdiction in the cases ordinarily
presented over writs of error to reverse the judgments of State
courts.[Footnote: Proceedings: Massachusetts Historical Society,
2d Series, XIV, 342.] In the following year he thought seriously
of resigning. He disliked, he wrote to Mr. Justice Story, to
leave him almost alone to represent the old school of thought,
but he adds, "the solemn convictions of my judgment, sustained by
some pride of character, admonish me not to hazard the disgrace
of continuing in office a mere inefficient pageant."[Footnote:
Proceedings Massachusetts Historical Society, 2d Series, XIV,
347.]

The next Chief Justice, while far from being of Marshall's
school, was not one to attempt to overthrow what he had done. In
Ableman _v._ Booth,[Footnote: 21 Howard's Reports, 506.] he
insisted on the supremacy of the courts of the United States over
those of the States with the utmost firmness, and defended the
doctrine on principle with force and ability. The Supreme Court,
however, under Taney, was not looked on with much favor by the
survivors of the old Federalists. "I do not," wrote Chancellor
Kent in 1845 to Justice Story, "regard their decisions (yours
always excepted) with much reverence, and for a number of the
associates I feel habitual scorn and contempt."[Footnote:
Proceedings of the Massachusetts Historical Society, 2d Series,
XIV, 420.]

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