The American Judiciary

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

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25

The weight of American authority is in favor of the position
taken by Iredell.[Footnote: Cooley's "Constitutional
Limitations," Chap, VII; State _v._ Travelers' Insurance
Co., 73 Connecticut Reports, 255, 283; 47 Atlantic Reporter, 299;
57 Lawyers' Reports Annotated, 481.] Time has made it safer to
stand upon it, for since he spoke not only have our State
constitutions been generally expanded by adding important
restrictions on the legislative power, but the fourteenth
amendment has added to the Constitution of the United States a
prohibition of State laws depriving any person of life, liberty,
or property without due process of law. "Due process of law" is
an elastic term. Requiring it certainly imports that no one is
to be made to suffer in person or property unless he has had an
opportunity to claim before an impartial tribunal the protection
of his rights by the settled law of the land.

The principle of Roman law that, as custom can make law, so
disuse can destroy it has never been adopted in the United
States. No court, therefore, will pronounce a statute not to
have the force of law on the ground that it is
obsolete.[Footnote: Chief Justice Mason of Iowa, in 1840,
undertook to import the doctrine into American jurisprudence, but
without effect. Hill _v._ Smith, Morris' Reports, 70;
explained and limited in Pearson _v._ International
Distillery, 72 Iowa Reports, 357.]

* * * * *

PART II

THE ORGANIZATION AND PRACTICAL
WORKING OF AMERICAN COURTS

* * * * *

CHAPTER VIII

THE ORGANIZATION OF THE COURTS OF THE STATES

The State Constitutions differ fundamentally from that of the
United States in respect to the nature of the judicial
establishment. Each of the States possesses all judicial powers
belonging to any sovereignty, except so far as the people of the
United States may have provided otherwise in the Constitution of
the United States. The State Constitutions do not define those
powers. They simply commit them to certain courts and officers.
Their general language is that the judicial power is vested in a
Supreme Court and such other inferior courts as may be created by
law. On the other hand, the Constitution of the United States
defines the judicial powers of the United States exactly and
within a somewhat narrow range, investing the courts of the
United States with those powers and no others. Hence the States
require a much more complicated and extensive judicial
establishment than do the United States, for not only is the
great mass of litigated cases throughout the country to be
disposed of by State courts, but they must also pass upon by far
the greatest variety of legal questions.

In each State there is one appellate court of last
resort[Footnote: See Chap. XIX.] and several courts for the trial
of original causes. Local justices of the peace are commonly
given jurisdiction over prosecutions for petty misdemeanors, and
civil cases involving small amounts (seldom over $50 or $100),
which do not affect title to land. Then come County Courts
(often styled Courts of Common Pleas or District Courts), having
cognizance of actions involving greater sums, and to which
appeals from judgments of justices of the peace can be taken.
These generally have both civil and criminal jurisdiction.

A higher court, which may be styled a Superior Court, or Circuit
Court, often exists, with unlimited jurisdiction as respects
values in controversy, and also as to crimes, the County Courts
in such case having a limited jurisdiction in these respects.

Municipal courts are to be found in all considerable cities and
in many of the lesser municipalities, such as towns and boroughs.
City Courts often have jurisdiction over civil causes to which
one residing in the city is a party, or growing out of a
transaction occurring within the city, irrespective of the amount
of the matter in demand. They frequently have a criminal side,
before which convictions may be had for petty misdemeanors, and
those charged with higher offenses bound over for trial in some
court of general criminal jurisdiction.[Footnote: See Goodnow,
"City Government in the United States," Chap. IX.]

For the settlement of the estates of deceased persons and the
appointment and superintendence of guardians and similar agents
of the law, and proceedings in insolvency, there are in many
States special courts, known as Courts of Probate, Surrogate's
Courts, or Orphans' Courts, and Courts of Insolvency. In others
these functions belong to the County Courts.

The early practice in this country favored having several judges
hold all trial courts, whether a jury was or was not to be called
in. It was a method wasteful of time and money. In
Massachusetts it survived for their highest _nisi prius_
court until 1804. In many States it endured much longer for
County Courts.

County Courts in some States are courts only in name, except,
perhaps, for some very limited purposes. Their real functions
are administrative. Some or all of those who hold them are often
styled commissioners, and their principal duties are to manage
the general business affairs of the county.[Footnote: See
Constitution of West Virginia, Amendment of 1880; Constitution of
Oregon, Art. VII, Sec. 12.] A statute passed by Oregon in 1903
indicates that those in that State are not fountains of law, for
it requires the district attorneys in each county, or their
deputies, to advise the County Courts "on all legal questions
that may arise." In Virginia, County Courts for a long period
were held by all the justices of the peace in the county, or such
of them as might attend. These magistrates nominated their own
successors to the Governor, who almost never refused to
commission the person so recommended. The court also nominated
the officers of militia below the rank of General, and managed
all the county affairs, besides having an extensive civil and
criminal jurisdiction, including the power of acquittal in cases
of felony. However clumsy and ill-ordered such a scheme appears,
it gave general satisfaction for a long course of years, partly
from a usage on the part of the older members of the bar who
might be in attendance to volunteer advice as _"amci
curiae"_ whenever any doubtful question of law chanced to
arise.[Footnote: Tucker, "Life of Thomas Jefferson," II, 378;
Kennedy, "Memoirs of William Wirt," I, 59.] Even in States where
County Courts have jurisdiction of ordinary lawsuits the judges,
or a majority of them, are sometimes without any legal training,
though this is now less common than it once was.[Footnote:
McMaster, "History of the People of the United States," III,
154.]

The Constitutions of the States generally require the existence
of a Supreme Court of last resort, and often specify also by name
one or more of inferior jurisdiction. Such courts stand on a
firmer footing than those created by the legislature under a
general power to establish inferior courts. The power to
establish implies a power to limit and to destroy. A tribunal
created by a Constitution, with functions defined in the
Constitution, is, as to these and as to its independence of
existence and action, beyond legislative control.

The Republicans in Congress were within their rights when, in
1802, they repealed the act passed by the Federalists the year
before to create a system of Circuit Courts. Those of
Massachusetts were within theirs when, in 1811, they abolished
the ancient Court of Common Pleas of that State and created a new
"Circuit Court," with fifteen judges, to take its place. Both
would have been glad to go farther and reconstitute in some way
the court of last resort, which was filled with old Federalists.
Why they did not has been frankly stated by one of them in his
account of Governor Gerry's administration:

With the Supreme Judicial Court the party did not interfere.
In respect for the authority of the Constitution this
forbearance was observed; it having been conceded after due
deliberation by men having the confidence of the dominant party
that neither the court nor the judges were within the power of
the legislature. The result was very reluctantly acceded to,
for the imposing influence of that court had been felt in the
political agitation of the times, and some of the judges, like
some ministers of the gospel, had been unwise enough to give to
the extension of their political feelings the aid directly
derived from their official authority.[Footnote: Austin, "Life
of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the
vesting of jurisdiction of small civil causes in justices of the
peace. Of these there are generally several in each town, having
jurisdiction over the whole county. Some may be lawyers. None
need be, and few are. Any one of them can try cases. Which of
them shall try any particular case is left to be determined by
the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal
prosecutions and to conduct preliminary examinations into charges
of any offence for the purpose of determining whether there is
ground for holding the accused for trial before a jury, although
even here mischief often results from their ignorance of law, and
the sufferers have little means of redress.[Footnote: See McVeigh
_v._ Ripley, 77 Connecticut Reports, 136; 58 Atlantic
Reporter, 701.] Such prosecutions are brought by a public
officer, who will not be apt to select an incompetent magistrate,
and has no strong motive for choosing one specially likely to
give judgment against the defendant. But in civil cases, for the
lawyer who institutes them to pick out his judge at will from a
number who are equally competent to assume jurisdiction, and at
the same time (as is generally the law) are left wholly without
salaries, receiving nothing except fees for cases actually
brought before them, is to place the defendant in a much less
favorable position than the plaintiff. If the justice decides in
favor of the latter, he is obviously more likely to get the
subsequent patronage of his lawyer. In most justice suits
judgment does go for the plaintiff, and not infrequently it is to
be feared that he gets it from that consideration. Some justices
rarely give any other judgment. Many lawyers bring all their
cases before one justice, and seldom fail of success.

In 1903, a justice of the peace in one of our largest cities
resigned his office and made his reasons public. They were that
no one could afford to hold it who was not willing to stoop to
unworthy practices. Lawyers having a large collection practice,
who were the best customers at such a shop of justice, threw
their business where they could get it done most cheaply. They
expected the justice of the peace whom they favored to favor
them. One way was by making them a discount on his legal fees.
There was a competition among the justices for business on these
terms, and the lowest bidder generally got it. Blank writs of
summons, even, signed by the justice would be sold at so much a
dozen, to be filled in to suit the attorneys.

A system in which such things are possible is inherently vicious,
and only endurable because the defeated party can always appeal
and have a new trial before a higher court. That relief,
however, is expensive. Judgments ought to be just in the first
instance, and it is the business of governments to ensure this,
so far as they reasonably can.

The natural remedy would seem to be to have fewer justices of the
peace who are authorized to try cases and to pay them a fixed
salary. Better men could thus be had and independence of action
promoted. That this is not done comes mainly from the feeling
that small controversies ought to be settled by a neighborhood
court; that any man of good common sense can generally deal with
them as well as a lawyer; and that to salary every justice would
be an unreasonable burden to impose on the taxpayer. The system
is also an ancient one; it works well with honest men; and the
people have an inherited attachment for it.

In a few States a sharp line of division is drawn between courts
of law and courts of equity. This distinction was inherited from
England, though it has been for most purposes abolished there by
the Judicature Acts of 1873 and 1875. It originated in the royal
prerogative of interposing to do justice between private
individuals in cases of an extraordinary character when the
regular courts had no power to grant the necessary relief. The
King was accustomed to refer requests for such action on his part
to his principal secretary and councillor. The next step was to
address the request directly to this officer, who was styled the
Chancellor. If a man were acting toward another in a way that
was against good conscience, though without absolutely
transgressing any settled rule of law, the Chancellor could
compel him to desist. If the legal title to land had been
conveyed to one for the use of another, and the holder of this
title refused to recognize the beneficial interest to serve which
he had been invested with it, the Chancellor could bring him to
account, although the common law would give no remedy. Soon,
whenever a man seemed to have justice on his side, but not law,
it was deemed a case for the Chancellor, or a case in chancery.
Relief was given because it was equitable to give it, and so it
was called relief in equity. The jurisdiction expanded.
Wherever there was a right, but no adequate remedy at law, the
Court of Chancery, or, as it was oftener called, of equity, was
recognized as competent to step in and do justice.

The Chancellor had often been an ecclesiastic. He was apt to be
more familiar with canon law and civil law than with the common
law. The justice which he administered came from the Crown, not
from the people. The people spoke through a jury, called in law
language "the country." The Chancellor spoke for himself. If he
called in the aid of a jury, it was to advise him, not, as in a
common law court, to make a final decision as to the question
submitted to it.

The result came to be that for several hundred years, embracing
the whole colonial period, England had two distinct sets of
courts, acting under different rules, and each trying a different
kind of cases. Those involving questions of trust, account,
fraud, mistake or accident, were the principal subjects of
equitable jurisdiction. Equity also could prevent wrongs, while
law could only punish them.[Footnote: See Chap. XX.] It was not,
however, always easy to mark the line between cases, and say
which belonged in the common law tribunals and which in those of
chancery. Many an action failed, not because there was no just
cause of action, but because it had been brought in the wrong
court.

In the American colonies, and for many years in the States which
succeeded them, these distinctions of procedure were generally
observed.[Footnote: In Pennsylvania the courts largely
disregarded them and asserted that equity was a part of its
common law. See Myers _v._ South Bethlehem, 149
Pennsylvania State Reports, 85, 24 Atlantic Reporter, 280.] In
some there were, in some there still are, separate courts of
equity held by a Chancellor, aided, if necessary, by
Vice-Chancellors. In others two dockets or lists of cases were
(and in a number of them still are) kept in the same court, and
the same judge disposed of those on one docket as a court of
equity and of those on the other as a court of law.

Such a system is intrinsically absurd. It has been maintained by
whatever States yet tolerate it for two reasons: because the
lawyers and the community are used to it, and because it
furnishes a convenient test of any claim of right to a jury
trial. All our State Constitutions have some provision for
maintaining such rights, but they do not define the cases in
which the right exists. That is left to the courts, and their
rule is that it cannot be claimed in cases that call for
equitable as distinguished from legal relief.

In most of our States and Territories legal and equitable causes
of action or defenses may now be joined, and legal and equitable
relief given in one suit. This reform in procedure was largely
due to the labors of David Dudley Field, and became general
throughout the country during the last half of the nineteenth
century. The result has been that separate courts of equity are
now to be found only in a few States.

Congress has made use of the State courts in certain cases as
part of the machinery of the federal government. While by the
Constitution "the judicial power of the United States" can only
be vested in the courts of the United States, the phrase as thus
used refers only to the power of judging causes in courts of
record. State courts and magistrates can therefore be given
jurisdiction by Congress over any acts in aid of the functions of
the United States, the supervision of which may be regarded as
ministerial, or as incidental to judicial power rather than a
part of it. They have received it in this way with respect to
such matters as seizure of deserters from a merchantman, the
arrest and commitment or bail of offenders against the criminal
laws of the United States, the taking of affidavits and
depositions for use in proceedings before federal authorities,
and the naturalization of aliens.[Footnote: Robertson _v._
Baldwin, 165 U. S. Reports, 275.]

State courts also have jurisdiction over any civil action to
enforce a right given by the laws of the United States, unless
Congress has otherwise provided. They constitute together with
the federal courts one general judicial system for the whole
country.[Footnote: Cluflin _v._ Houseman, 93 U. S. Reports,
130, 137; Calvin v. Huntley, 178 Mass. Reports, 29; 59
Northeastern Reporter, 435.]

Almost all American courts are known as "courts of record." A
court of record, in modern parlance, is one which tries causes
between parties and is required to keep a full official and
permanent record of its disposition of them. For this purpose
most courts are furnished with a recording officer, called the
clerk. His record is the only evidence of their judgments and
cannot be contradicted or impeached in any collateral proceeding.
If there is any error in it, it can only be shown on a direct
proceeding brought to correct it.

Justices of the peace, when authorized to try causes, act only in
small matters and in a summary way. In most States they are not,
when exercising this function, deemed to constitute a court of
record. Nor is any court, even though furnished with a clerk, if
its proceedings are not recorded in full, but simply made the
subject of brief notes or minutes,[Footnote: Hutkoff _v._
Demorest, 104 N. Y. Reports, 655; 10 Northeastern Reporter, 535.]
unless there is a statute or local practice giving such notes or
minutes the effect of a record.

A court of record has inherent power to preserve order in
proceedings before it[Footnote: See Chap. XX.] and, unless other
provision be made by law, to appoint a crier or other officer to
attend upon its sessions. By statute it is commonly made the
duty of the sheriff of the county to attend all courts of record,
either personally or by deputy. He also executes such processes
as under the practice of the court may be directed to him.
Witnesses and jurors are thus summoned by him to appear before
the court; arrests and attachments of property are made; and
executions are levied to enforce final judgments.

* * * * *

CHAPTER IX

THE ORGANIZATION OF THE COURTS OF THE UNITED STATES

The Constitution of the United States (Art. III) provides that
there must always be one Supreme Court of the United States. The
establishment of such inferior courts as may be deemed proper
from time to time is left to Congress.

The judicial power of the United States is limited to cases of
certain kinds or between certain kinds of parties. Either (1)
the subject-matter of the action must be of a kind that concerns
the whole nation, or (2) some party to it must be or claim under
a political sovereign, or (3) it must be between a citizen of a
State of the Union and one of another of the States or of a
foreign country.

In a few of the second class the Supreme Court is given original
jurisdiction: in all others of both classes it has appellate
jurisdiction, with such exceptions as Congress may think fit to
make, save only that no fact tried by a jury can be thus
re-examined, except so far as the rules of the common law would
have permitted. Its original jurisdiction is confined to cases
affecting ambassadors, ministers, and consuls and those to which
a State shall be a party. It is not necessarily exclusive as
respects any of them,[Footnote: Ames _v._ Kansas, 111
U. S. Reports, 449, 469.] and by the eleventh amendment to the
Constitution is so limited as not to include suits against a
State by citizens of any other State or foreign government. In
point of fact, few original suits have ever been brought before
the court, and almost all of these have been instituted by or
against States.

The Supreme Court is held at Washington. There is a Chief
Justice with eight associate justices, and each is also assigned
for circuit duty as a judge of the Circuit Court of the United
States in one of nine judicial circuits into which the country is
divided. Originally there were but six judges, and each was
required to hold two circuits a year in each district in his
circuit. They were assigned to the circuits in pairs, and both
sat together with the District Judge. The consequence was that
three-fourths of their time was spent in traveling from one court
town to another. They complained of this to Congress through the
President in 1792, and the next year it was provided that Circuit
Courts might be held by one justice, alone or with the District
Judge. In 1801, an ultimate reduction of the number to five was
provided for. They were to devote their time entirely to the
Supreme Court, while the Circuit Courts were to be held by a new
set of eighteen Circuit Judges. In 1802, they had only ten cases
pending before them, and the average for some years had not
exceeded that number. For this and other reasons mentioned
elsewhere the Act of 1801 was repealed by the next Congress. In
1807, another Justice of the Supreme Court was added and two more
in 1837.

Each circuit has a judicial establishment of its own, and is
composed of a certain number of judicial districts. Of these
there are in the whole United States about eighty. The smaller
States constitute one district. In the larger ones there are
several.

Each district generally has its own judge, called the District
Judge, and always its own court, called the District Court of
that district. Each circuit has several Circuit Judges, whose
main work is to sit in a court held in each circuit, styled the
Circuit Court of Appeals. They can also hold a District Court.

Until 1911, the District Courts had a narrow jurisdiction, and
there were Circuit Courts having a wider one. In 1911, the
Circuit Court was abolished, and the District Court now is the
general trial court of the United States in the first instance.
Anyone can sue there to enforce a right arising under the laws of
the United States when the amount in dispute is more than $3,000.
Rights arising under certain of these laws can only be enforced
there, and as to them the pecuniary limitation does not apply.
Such are patent-rights and copyrights. Any suit involving an
amount exceeding $3,000 may be brought there when the controversy
is between citizens of different States or citizens of a State
and citizens of a foreign country. So may a suit by citizens of
the same State claiming land under grants from different States,
without respect to the value of the subject of controversy.
Suits of any of these kinds which are brought in a State court
may, at the option of the defendant, be transferred for trial
into the District Court. On filing proper papers the case is
transferred automatically. The District Court has jurisdiction
also over bankruptcy and admiralty matters, a few other kinds of
civil cases of minor importance, and of all offenses against the
United States.[Footnote: The Judicial Code of the United States,
Chapter II.]

The pecuniary limit of jurisdiction was for a hundred years fixed
at $500. The increase to $3,000 was due partly to the fact that
the Supreme Court was overburdened by appeals from the trial
courts, many of which involved small amounts, and more to a
desire to keep judicial power over ordinary controversies between
man and man, as far as practicable, in the hands of the State
courts.

Early in the nineteenth century a practice began of bringing
suits in the Circuit Court of the United States, which purported
to be between citizens of different States, but in which the
plaintiff had either changed his residence for the purpose of
giving the court jurisdiction or was really suing for the benefit
of a citizen of the same State with the defendant. This was due
to the high opinion entertained of the federal
judiciary[Footnote: Niles' Register, XXIX, 14.] and the desire to
bring the cause before a federal, rather than a State tribunal.
Such a mode of proceeding, while within the letter of the
governing statute, was contrary to its spirit, and little better
than a fraud. It was also an evident perversion of the intent of
the Constitution, and became at last so far-spreading that both
Congress and the courts used their best endeavors to put an end
to it, and with success.[Footnote: U. S. Statutes at Large,
XVIII, 470; Hawes _v._ Oakland, 104 U. S., 450, 459.]

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25