26021	----	generously made available by The Internet Archive/American Libraries.) SIOUX INDIAN COURTS AN ADDRESS DELIVERED BY DOANE ROBINSON OF PIERRE, SOUTH DAKOTA BEFORE THE SOUTH DAKOTA BAR ASSOCIATION AT PIERRE, SOUTH DAKOTA JANUARY 21, 1909 R. C. SESSIONS & SONS SIOUX FALLS S. D. SIOUX INDIAN COURTS In their primitive life the Sioux Indians of North America had an intelligent system of jurisprudence, varying somewhat in the different bands, as our court practice varies in the several states, but nevertheless recognizing the same general principles throughout the confederacy.[1] [1] Most writers upon Indian life have noted the existence of these courts. Since undertaking this paper, I have consulted Hump, One Bull, Wakutemani and Simon Kirk, all intelligent Sioux and, save as otherwise noted, they are my authorities for the statements herein contained. It is not an easy thing to determine the laws or the practices of an unlettered people, who have abandoned the wild and primitive life to live under regulations prescribed by their conquerors, and who must depend upon tradition and recollection for the practices of the old life; but fortunately intelligent observers have from time to time, during the past two and one half centuries, noted their observations, and these, supplemented by the recollections of the older men now living, give to us a fairly clear understanding of the courts and the legal practices of these people. Primarily the Sioux government was by clans,--patriarchal; but within the clan it very nearly approached the representative republican form. The council was the representative body which gave expression to the will of the people. True the council was selected by the chief of the clan, but his very tenure of office depended upon his using the nicest discretion in inviting into his cabinet the men of character, valor and influence, so that the body was almost invariably entirely representative of popular views and interests. Caste cut a considerable figure; indeed it has been said by those most intimate with Sioux life that there is as much caste among the Dakotas as among the Hindus.[2] Only high caste men of course would be permitted to sit in the deliberations, but when a council was to be convened the ordinary practice was for the chief's crier to go out and announce to the camp that a matter was to be considered in council, and the head men at once assembled and seated themselves in the council circle as a matter of course and of right.[3] The chief, unquestionably a man of courage and physical power, was an executive officer who rarely asserted arbitrary rule, particularly in civil affairs, for the Sioux were too high spirited a people to tolerate anything savoring of despotism. Usually he was suave, diplomatic and tolerant, and enjoyed the affection and veneration of his people. Most public affairs were determined in the general council, including many subjects naturally falling within the jurisdiction of courts of justice, but aside from the council were two distinct courts, one exercising jurisdiction in matters civil and criminal in times of peace; the other taking the broadest and most comprehensive jurisdiction of all things military, and in time of war assuming jurisdiction in all of the affairs of the people, arbitrarily placing the camp under martial law. [2] Miss Mary C. Collins, for thirty-three years missionary among the Tetons, especially the Hunkpapa and Blackfoot bands. [3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903. The judges of these courts were usually twelve in number and held their places by hereditary right, though occasionally some low caste man, through some brilliant exploit would break into this exclusive and aristocratic circle and sometimes even exercised dominating influence which the aristocrats dared not oppose, though he was still regarded as a plebian upstart, and was despised by the upper ten, and his rank died with him. Ordinarily from seven to twelve judges sat for the trial of causes, but sometimes even a greater number were permitted. The civil court in time of peace took cognizance of civil and criminal matters arising in the band. Civil actions usually grew out of disputes about the ownership of property and the court patiently heard the testimony of the parties and witnesses and at once determined the ownership of the article, delivered it to the successful litigant and the decision was never reviewed or questioned. A majority of the court determined the judgment. Criminal matters of which the court took cognizance were assaults, rapes, larceny and murder; all crimes against persons; and if committed against a member of the tribe were severely dealt with. Sometimes it was necessary to prove the crime by competent witnesses, and the court was the judge of the credibility of these who testified, but rarely, however, was it necessary to summon witnesses, for if the accused was really guilty it was a point of honor to admit the offense and take the consequences. Thus the real responsibility resting upon the court in most cases was to determine the penalty. Usually a severe penalty was imposed which could be satisfied by the payment of a certain number of horses or other specific property to the injured party, or his family, but if the offense was peculiarly repellent to the better sentiment of the camp the court might insist upon the summary infliction of the sentence imposed. This might be the death penalty, exile or whipping; or it might be the destruction of the teepee and other property of the convict. These latter penalties were, however, usually reserved for another class of offenses; crimes which were against the community rather than against an individual. These offenses were generally violations of the game laws and the offender could expect little mercy. How reasonable this policy was will be readily understood when we recall that the subsistence of the entire nation depended almost entirely upon the preservation of the wild game. The individual, who would wantonly kill game fit for food, or frighten it away needlessly from the vicinity of the camps was a public enemy and was treated accordingly. He was fined, his property destroyed, he was whipped, or if a persistent offender, he was reduced from his position as a hunter and made to do the menial duties of a squaw; the latter being the most humiliating and terrible sentence which could be imposed, deemed much worse than death and if the convict was a man of ordinary spirit he usually chose to commit suicide in preference.[4] [4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at Sioux Falls, in October, 1900. For some offenses a convict was exiled from the camp, given an old teepee and a blanket, but no arms, and was allowed to make a living if he could. Sometimes he would go off and join some other band, but such conduct was not considered good form and he usually set up his establishment on some small hill near the home camp and made the best of the situation. If he conducted himself properly he was usually soon forgiven and restored to his rights in the community. If he went off to another people he lost all standing among the Sioux and was thereafter treated as an outlaw and a renegade. The entire band of Inkpaduta, once the terror of the Dakota frontier, was composed of these outlaws.[5] [5] Flandreau's Minnesota. The camp policeman was a most important officer of the court and he frequently took upon himself the adjudication of petty quarrels and the summary punishment of small offenses committed within his view. He was appointed by the chief for one or more days' service and he made the most of his brief span of authority. In addition to executing the orders of the court he was always on watch to preserve the tranquility of the camp during the day and he stood upon guard at night. When ordered to do a thing it was a point of honor to accomplish it or die in the attempt. He was a peace officer, delighting to fight for peace' sake at any time.[6] [6] Journal of Lewis and Clark September 26th and 27th, 1804. While the civil court was composed of the "elder statesmen" the military court was composed of the war chief and his most distinguished braves, and, as has been before suggested herein, exercised unlimited power in time of war and was implicitly obeyed. It took jurisdiction of all matters growing out of infractions of the "Articles of War" and of all the civil and criminal affairs of the tribe as well. There was no appeal from its judgments and its sentences were summarily executed. An anecdote will illustrate something of its practice: In the campaign of 1876, after the affair at Little Big Horn, Grey Eagle, a Hunkpapa headman of good family and with a good military record, was charged with stealing a horse from another warrior of the Sioux forces. He denied the charge but the property was in his possession and he could not satisfactorily explain his connection with it. He was placed upon trial, witnesses summoned and he was convicted of the theft and sentenced to be whipped, a punishment most befitting the mean estate of a squaw. The sentence was executed in full view of the entire camp. Grey Eagle continued in the campaign, fighting valiantly at every opportunity, but he was filled with an intense desire for revenge against the court and particularly against Sitting Bull, a plebian who had compelled recognition from the aristocrats, and whom the convict believed to be especially responsible for his humiliation. Though not apropos to this discussion it may be of interest if I shall add that after the lapse of fourteen years, one December morning in 1890 when a party of native policemen, inspired very largely by the aristocratic hatred for the presumptuous plebian, came down upon the home of Sitting Bull and effected his arrest and were taking him away through an excited throng of his friends, the voice of Grey Eagle, from out in the darkness shouted: "Sitting Bull is escaping, shoot him, shoot him!" whereupon began the outbreak which within the moment resulted in the death of the old medicine man and seventeen of the police and Indians.[7] It, too, may be of further interest to relate that at the present time Grey Eagle is the Chief Justice of the native court at Bullhead Station, South Dakota. [7] Related by Miss Mary C. Collins, April, 1908. Among the duties of this court was to determine the limits of each day's march when out upon a campaign, and to regulate the camping places. This was an important function, for the army subsisted off the country and unless the utmost care was exercised "the base of supplies" would be frightened away and the band subjected to starvation. A court very similar to the military court was likewise organized for each great hunting expedition and given absolute control of the general movement, but this hunting court did not interfere with the ordinary jurisdiction of the civil court in matters of personal disputes, personal injuries and the like. In 1841, General Henry H. Sibley, of Minnesota, proposed to the Indians residing about his home at Mendota that they go down to the "Neutral Strip" in Northern Iowa for a long hunt. The Sioux were agreeable, and to get the matter in form Sibley made a feast to which all of the natives were invited. After eating and smoking several hundred painted sticks were produced and were offered for the acceptance of each grown warrior. It was understood that whoever voluntarily accepted one of these sticks was solemnly bound to be of the hunting party under penalty of punishment by the soldiers if he failed. About one hundred and fifty men accepted. These men then detached themselves from the main body and after consultation selected ten of the bravest and most influential of the young men to act as members of the hunting court. These justices were called soldiers. Every member bound himself to obey all rules made by the court. A time was then fixed for the start. At the appointed time and place every one appeared but one man who lived twelve miles distant. Five of the court at once started out to round him up. In a few hours they returned with the recalcitrant and his family, and with his belongings packed upon his horses. He was duly penitent and not subjected to punishment, though he was severely threatened in case he again failed. General Sibley thus tells the story.[8] "We," Sibley and his white friends, "became subject to the control of the soldiers. At the close of each day the limits of the following day's hunt were announced by the soldiers, designated by a stream, grove, or other natural object. This limit was ordinarily about ten miles ahead of the proposed camping place and the soldiers each morning went forward and stationed themselves along the line to detect and punish any who attempted to pass it. The penalty attached to any violation of the rules of the camp was discretionary with the soldiers. In aggravated cases they would thresh the offender unmercifully. Sometimes they would cut the clothing of the man or woman entirely to pieces, slit down the lodge with their knives, break kettles and do other damage. I was made the victim on one occasion by venturing near the prohibited boundary. A soldier hid himself in the long grass until I approached sufficiently near when he sprang from his concealment and giving the soldiers' whoop rushed upon me. He seized my fine double barreled gun and raised it in the air as if with the intention of dashing it to the ground. I reminded him that guns were not to be broken, because they could be neither repaired or replaced. He handed me back the gun and then snatched my fur cap from my head, ordering me back to camp, where he said he would cut up my lodge in the evening. I had to ride ten miles bareheaded on a cold winter day, but to resist a soldier while in the discharge of duty is considered disgraceful in the extreme. When I reached the lodge I told Faribault of the predicament in which I was placed. We concluded the best policy, would be to prepare a feast to mollify them. We got together all the best things we could muster and when the soldiers arrived in the evening we went out and invited them to a feast in our lodge. The temptation was too strong to be resisted." They responded, ate their fill, smoked and forgave the "contempt of court," which indicates that the judiciary, even in that primitive time, was not wholly incorruptible. [8] Minnesota Historical Collections, Vol. III. * * * * * The modern Sioux Courts, organized under the authority of federal law and in accordance with the rules of the Indian Department, are perhaps of more interest to lawyers than the courts of the primitive tribes. The modern courts were first proposed by General William S. Harney, in 1856 and were provided for in the treaty made at Port Pierre in March of that year, which unfortunately was not ratified by the senate.[9] It can scarcely be doubted that had Harney's scheme for making the Sioux responsible to the government for the conduct of their own people been adopted, much bloodshed and treasure would have been saved. [9] This treaty was not ratified because of the large expenditure which would be demanded to uniform and subsist the police force. Afterwards we spent in a single year for the subjugation of the Sioux sufficient money to subsist the police for a century. It was not until after the Red Cloud war ended in 1868 that the courts for Indian offenses, equipped by the Indian themselves, began to be tried at some of the agencies in a small way. The Sissetons and Santees were first to give them a trial and eventually they were supplied to all the Reservations except the Rosebud, which, for some reason of which I have been unable to secure information, has never had them. The following general rules governing courts of Indian Offenses pursuant to the statute have been adopted by the Indian Department:[10] [10] Rules and Regulations of the Indian Office governing Indian Reservations. Letter of Hon. John R. Brennan, agent at Pine Ridge, April, 1908. First: When authorized by the Department there shall be established at each agency a tribunal consisting ordinarily of three Indians, to be known as "the Court of Indian Offenses," and the members of said court shall each be styled "judge of the Court of Indian Offenses." Agents may select from among the members of the tribe persons of intelligence and good moral character and integrity and recommend them to the Indian Office for appointment as judges; provided, however, that no person shall be eligible to such an appointment who is a polygamist. Second: The court of Indian Offenses shall hold at least two regular sessions in each and every month, the time and place for holding said sessions to be agreed upon by the judges, or a majority of them, and approved by the agent; and special sessions of the court may be held when requested by three reputable members of the tribe and approved by the agent. Third: The court shall hear and pass judgment upon all such questions as may be presented to it for consideration by the agent, or by his approval, and shall have original jurisdiction over all "Indian offenses" designated as such by rules 4, 5, 6, 7 and 8 of these rules. The judgment of the court may be by two judges; and that the several orders of the court may be carried into full effect, the agent is hereby authorized and empowered to compel the attendance of witnesses at any session of the court, and to enforce, with the aid of the police, if necessary, all orders that may be passed by the court or a majority thereof; but all orders, decrees, or judgments of the court shall be subject to approval or disapproval by the agent, and an appeal to and final revision by the Indian Office; _Provided_, that when an appeal is taken to the Indian Office, the appellant shall furnish security satisfactory to the court, and approved by the agent, for good and peaceful behavior pending final decision. Fourth: The "sun dance," and all other similar dances and so-called religious ceremonies, shall be considered "Indian offenses" and any Indian found guilty of being a participant in one or more of these offenses shall, for the first offense committed, be punished by withholding from him his rations for a period not exceeding ten days; and if found guilty of any subsequent offense under this rule, shall be punished by withholding his rations for a period of not less than fifteen days nor more than thirty days, or by incarceration in the agency prison for a period not exceeding thirty days. Fifth: Any plural marriage hereafter contracted or entered into by any member of an Indian tribe under the supervision of a United States Indian Agent shall be considered an "Indian offense" cognizable by the court of Indian offenses; and upon trial and conviction thereof by said court the offender shall pay a fine of not less than twenty dollars, or work at hard labor for a period of twenty days, or both, at the discretion of the court, the proceeds thereof to be devoted to the benefit of the tribe to which the offender may at the time belong; and so long as the Indian shall continue in this unlawful relation he shall forfeit all right to receive rations from the government. And whenever it shall be proven to the satisfaction of the court that any member of the tribe fails, without proper cause, to support his wife and children, no rations shall be issued to him until such time as satisfactory assurance is given to the court, approved by the agent, that the offender will provide his family to the best of his ability. Sixth: The usual practices of so-called "medicine men" shall be considered an "Indian offense" cognizable by the court of Indian offenses, and whenever it shall be proven to the satisfaction of the court that the influence of a so-called "medicine man" operates as a hindrance to civilization of a tribe, or that said "medicine man" resorts to any artifice or device to keep the Indians under his influence, or shall adopt any means to prevent the attendance of children at the agency schools, or shall use any of the arts of the conjurer to prevent the Indians from abandoning their heathenish rites and customs, he shall be adjudged guilty of an "Indian offense," and upon conviction of any one or more of these specified practices, or any other, in the opinion of the court, of an equally anti-progressive nature shall be confined in the agency guardhouse for a term not less than ten days, or until such time as he shall produce evidence satisfactory to the court, and approved by the agent, that he will forever abandon all practices styled "Indian offenses" under this rule. Seventh: Any Indian who shall wilfully destroy, or with intent to steal or destroy, shall take and carry away any property of any value or description, being the property free from tribal interference, of any other Indian or Indians, shall, without reference to the value thereof, be deemed guilty of an "Indian offense," and, upon trial and conviction thereof, by the court of "Indian offenses," shall be compelled to return the stolen property to the proper owner, or, in case the property shall have been lost or destroyed, the estimated full value thereof, and in any event the party or parties so found guilty shall be confined in the agency guardhouse for a term not exceeding thirty days; and it shall not be considered a sufficient or satisfactory answer to any of the offenses set forth in this rule that the party charged was at the time a "mourner," and thereby justified in taking or destroying the property in accordance with the customs or rites of the tribe. Eighth: Any Indian or mixed blood who shall pay or offer to pay any money or other valuable consideration to the friends or relatives of any Indian girl or woman, for the purpose of living or cohabiting with said girl or woman, shall be deemed guilty of an "Indian offense," and upon conviction thereof shall forfeit all right to government rations for a period at the discretion of the agent, or be imprisoned in the agency guardhouse for a period not exceeding sixty days; and any Indian or mixed blood who shall receive or offer to receive any consideration for the purposes hereinbefore specified shall be punished in a similar manner as provided for the party paying or offering to pay the said consideration; and if any white man shall be found guilty of any of the offenses herein mentioned he shall be immediately removed from the reservation and not allowed to return thereto. Ninth: In addition to the "offenses" hereinbefore enumerated, the court of "Indian offenses" shall also have jurisdiction (subject to the provisions of rule 3) of misdemeanors committed by Indians belonging to the reservation, and of civil suits where Indians are parties thereto; and any Indian who shall be found intoxicated, or who shall sell, exchange, give, barter or dispose of any spirituous, vinous, or fermented liquors to any other Indian, or who shall introduce or attempt to introduce under any pretense whatever any spirituous, vinous, or fermented liquors on the reservation, shall be punishable by imprisonment for not less than thirty days nor more than ninety days or by withholding of government rations, therefrom, at the discretion of the court and approval of the agent. The civil jurisdiction of such court shall be the same as that of a justice of the peace in the State or Territory where such court is located, and the practice in such civil cases shall conform as nearly as practicable to the rules governing the practice of justices of the peace in such State or Territory, and it shall also be the duty of the court to instruct, advise and inform either or both parties to any suit in regard to the requirements of these rules. Under these rules the courts are organized and hold their sittings at such times and places as will be most convenient for the people, as for illustration, upon the Cheyenne River Reservation one judge sits at each substation at each semi-monthly ration issue, and if for any reason a party is dissatisfied with his decision, he has a right to appeal his case to the entire bench which sits for the purpose at the agency at regular intervals[11]. [11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne River, April, 1908. Persons convicted of such offenses as come within the jurisdiction of the court are committed to the guard-house for a stated period, and are required to work in keeping up the grounds about the agency or substation, as the case may be. They make very little trouble and rarely does one attempt to escape, though they work without guard.[12] [12] Letter of T. W. Lane, agent at Crow Creek, April, 1908. The Indian people generally have great respect for the judges of their courts and the latter show much wisdom and discretion in their decisions, though they do not always place the white man's estimate upon the relative enormity of offenses. I was present at a session of the Cheyenne river court in 1892, when two parties accused with crime were brought before it. One was charged with stealing a picket pin of the value of thirteen cents and he got thirty days in the guard-house, while the other, convicted of a rape, got ten days. Formerly the judges were not compensated, but now they receive a nominal salary,--from five to ten dollars per month,--and their board while sitting. It is regarded as a great distinction to be chosen to the bench and the courts administer the law, as they understand it, with dignity and firmness.[13] There are no lawyers upon the reservations but a friend may appear for a party to an action, or one accused of an offense and the trials are conducted with much formality and the pleas are frequently shrewd and eloquent. Every Indian is an orator by nature, and the courts afford the best modern opportunities to display their gifts. [13] Letter of Major Brennan. The police force upon all of the reservations is composed of the natives and they are highly efficient and render great assistance to the courts in preserving the peace and in bringing offenders to justice. It is a point of honor for a Sioux policeman to do his whole duty regardless of obstacle and neither kin nor friend can expect leniency if he stands in the way of duty, and this is equally true of the courts. It is not an infrequent thing for the judge to try his son or near relative and in such cases the accused is sure to get the limit of the law.[14] [14] Interview with Solomon Two Stars, hereditary chief of Sissetons, August, 1901. Monthly South Dakotan, December, 1901. Without exception the Indian authorities commend the native courts and policemen for fidelity and effective administration of justice. Footnotes [1] Most writers upon Indian life have noted the existence of these courts. Since undertaking this paper, I have consulted Hump, One Bull, Wakutemani and Simon Kirk, all intelligent Sioux and, save as otherwise noted, they are my authorities for the statements herein contained. [2] Miss Mary C. Collins, for thirty-three years missionary among the Tetons, especially the Hunkpapa and Blackfoot bands. [3] Letter of Dr. Thomas L. Riggs, to writer, June, 1903. [4] Interview with Joseph LaFramboise of Veblen, a Sisseton, at Sioux Falls, in October, 1900. [5] Flandreau's Minnesota. [6] Journal of Lewis and Clark September 26th and 27th, 1804. [7] Related by Miss Mary C. Collins, April, 1908. [8] Minnesota Historical Collections, Vol. III. [9] This treaty was not ratified because of the large expenditure which would be demanded to uniform and subsist the police force. Afterwards we spent in a single year for the subjugation of the Sioux sufficient money to subsist the police for a century. [10] Rules and Regulations of the Indian Office governing Indian Reservations. Letter of Hon. John R. Brennan, agent at Pine Ridge, April, 1908. [11] Letter of Prof. C. W. Rastall, Superintendent at Cheyenne River, April, 1908. [12] Letter of T. W. Lane, agent at Crow Creek, April, 1908. [13] Letter of Major Brennan. [14] Interview with Solomon Two Stars, hereditary chief of Sissetons, August, 1901. Monthly South Dakotan, December, 1901. 
35026	----	[Illustration] The Court Houses --OF A-- Century. 1800-1900. [Illustration: HOUSE OF LIEUT. JAMES MUNRO, ERECTED 1798, LOT 14, CON. 5, CHARLOTTEVILLE--USED AS COURT HOUSE, LONDON DISTRICT, 1800-1802. (_Reproduced by permission of the Ontario Historical Society and William Briggs, Publisher._)] [Illustration] The Court Houses --OF A-- Century. A Brief Historical Sketch of the Court Houses of the London District, the County of Middlesex and County of Elgin. COMPILED BY KENNETH W. McKAY, COUNTY CLERK. PUBLISHED BY THE ELGIN COUNTY COUNCIL. With Introduction by James H. Coyne, B. A. THE TIMES PRINTING COMPANY OF ST. THOMAS, LIMITED. 1901. CONTENTS. PAGE. 1. Introduction. By J. H. Coyne, B. A. 1 2. The Munro House, 1800-1802 5 3. The Turkey Point Court House 6 4. The Vittoria Court House, 1815-1826 7 5. The London Court Houses, 1826-1853 7 6. The Elgin Court Houses, 1853-1900 9 7. Statistics--Population, Number of Houses, Etc. 27 8. Plan of Court House 28 ILLUSTRATIONS. 1. Frontispiece. The Munro House 2. The London Court House 8 3. Warden Locker, 1852-1855 10 4. The Elgin Court House, 1860 11 5. D. J. Hughes, Esq., County Judge, 1853 12 6. The Elgin Court House Before the Fire 13 7. Court Room after the Fire 14 8. Wardens 1898-1899, Chairman Building Committee, Architect and Contractor 16 9. New Court House 17 10. D. J. Hughes, Esq., County Judge, 1899 18 11. Court Room 19 12. Library 20 13. County Council Chamber 21 14. County Clerk's Office 22 15. Stained Glass Window, Main Stairway 23 16. Court House, East Side, showing Jail Entrance 24 17. Gaol Yard 25 18. A Gaol Ward 26 19. Plan of Building 28 REFERENCES. District and County Records. Oxford Gazetteer, by Shenston. U. E. L. Settlement at Long Point, by Tasker. _"In any age it is a duty which every country owes to itself, to preserve the records of the past and to honor the men and women whose lives and deeds made possible its present, and to-day when the whole civilized world is throbbing to social and political impulses of the greatest significance for the future, we ought especially to call to mind such lives and deeds and catch, if we can, inspiration for acting well the part that falls to each of us."_ INTRODUCTION. THE PASSING CENTURY. The Wonderful Century is before the bar of history. Its record shows everywhere progress, consolidation, expansion, improvement. Civilization has spread, barbarism has given away. Labor has been restored to its honorable station, and idleness is accounted dishonor. Privilege has been curtailed, liberty has widened its borders. Slavery has almost disappeared from the earth. The beneficent forces are stronger. The comforts and conveniences of life are increased and more evenly distributed. Disease and pain have been brought under control. Life has been made more interesting. Travel is easier and cheaper, and mankind has become acquainted with the world it inhabits. The stars have been discovered. They have been weighed and analysed. The human mind has expanded with wider knowledge. The railway, electricity and the Postal Union have gone far to blend the nations into one. Every day, all round the globe, men read the same news, think the same thoughts, are thrilled with the same tidings of heroism or suffering. Human sympathy is broadened and deepened. Mankind is more homogeneous in spirit. Statecraft, literature, society, have become democratic and cosmopolitan. The spirit of union dominates the century. The forces of disunion and disintegration are everywhere routed. Mutual benevolence is organized for greater effectiveness. Universal education, equality of rights and responsibilities, are principles of government. Religion, emphasizing points of agreement and ignoring points of difference, manifests itself in its works as never before. The century spans the years from Copenhagen to Paardeburg, from Nelson and Napoleon to Roberts and Kruger. As the battle of Copenhagen established the naval supremacy of Britain, so Paardeburg welded the empire, one and inseparable. In 1800 the principle of a United Empire was represented by the Loyalists of Upper Canada standing almost alone. In 1900, borne by their descendants to the distant plains of South Africa, it reached its full fruition in the final charge by the Canadians under Otter, on the banks of the Modder River. The principle includes the realization of all that the century stands for--union, equal rights, progress, justice, humanity. It is my task to say a brief foreword on the progress of Canada and especially the county of Elgin. The beginning of the century found Ontario almost an unbroken wilderness. Rare and scanty were the clearings here and there along Lakes Erie and Ontario, and on the great rivers. The winter express from Detroit to York or Niagara, made its way along the lonely forest path. At long intervals only did he perceive the smoke rising in the crisp air, from the hospitable and welcome cabin. The frightened deer bounded across his path into the deeper woods. The bear hybernated in the hollow tree. The long howling of the wolves broke on the midnight air. The lynx and panther crouched among the branches, ready to spring on the unwary traveller. The only sign of human life was the Indian hunter following the trail of the turkey or wild beast. It was in the first year of the century that a young man of twenty-nine, giving up brilliant prospects in the army, and turning his back on society, found his way to the township of Yarmouth and began a clearing at or near Port Stanley. With royal dukes for his advocates, he applied to the Imperial authorities for a large grant of land to form a settlement. Two years later he succeeded. Yarmouth had been appropriated to others, and Colonel Thomas Talbot began his actual settlement in Dunwich. In the middle of the century, or more accurately in the year 1853, he died. In the same year the separation of Elgin from Middlesex was completed, and Colonel Talbot's "capital," St. Thomas, was made the County Town. Nearly another half century has passed since then, and it includes the history of the County of Elgin as a separate municipality. The death of the eccentric founder of the settlement divides nearly equally the history of the county from the time when its only inhabitants were the bear, wolf and panther, to the end of the century, which finds the county well cleared and cultivated throughout its entire extent; intersected by splendid highways, including the lines of five railway companies; peopled with a numerous and enterprising community, God-fearing and law-abiding, industrious and prosperous. The thriving city of St. Thomas, the enterprising and flourishing town of Aylmer, and numerous promising villages, advancing with rapid strides in magnitude and importance, form centres of population, where a century ago the primeval silence was unbroken, save by the footfall of the Mississaga ranging the woods in pursuit of game. It was during the first decades of the century that the pioneers came. From them the present population is largely sprung. Dunwich was the first to be settled. A few immigrants from the Eastern States settled near Port Talbot. Then the overflow of settlement from Long Point made itself felt in Southwold, Yarmouth, Malahide and Bayham. Before 1820 the Highland settlements began in Aldborough and Dunwich. The wanderings of the Kildonan settlers from Hudson's Bay to Red River, and thence eastward to Upper Canada and southward, to the settlements on Lake Erie, add a tragic episode to the story of the pioneers of West Elgin. Their hardships, sufferings and heroism can never be forgotten. Much later came the settlement of South Dorchester. These were the men who felled the forest, let the sunlight into the wilderness, drained the swamps, cleared and fenced the bush, made the roads and bridged the fords, "drave out the beasts," and established schools and churches. They were the sifted grain of Canadian immigration. For the Colonel was determined to have none but the loyal, industrious and enterprising, and was discriminating in the choice of settlers for this County, among the numerous applicants for land. Such were the pioneers of Elgin. We inherit the fruits of their strenuous toil and struggle. It was they who, with dauntless courage and unfaltering determination, braved all hardships, the loneliness, the privations, the sufferings of pioneer life, that we might enjoy the harvest of their labors. They slept on the bare ground in the forest shanty, and hewed with mighty toil the log huts, that their sons might live in framed houses, and their grandchildren in houses of brick furnished with the appliances of modern civilization. They sowed and we reap. In the old churchyards at Tyrconnel, New Glasgow, St. Thomas, and elsewhere near the lake shore, they rest well after their labors. The mouldered headboards have given way to the marble slab or stately monument, that records their brief history--that they lived and died. Their true and imperishable monument is the manhood and womanhood of Elgin, the beautiful farms and homes, the noble institutions of religion and education. Their names will be forever honored among the founders of the Canadian nation, and after a thousand years men will be proud to count their descent from the pioneers of Elgin. The public buildings of a community are a fair index of the character of the people. In this view, the completion of the new Court House is an event, and its evolution, as recorded in this volume, is a study of historical and sociological value. The new building is admirably adapted to the purposes for which it is intended. It is up-to-date in every particular. Visitors from other parts pronounce it, as its predecessor was pronounced when first erected, one of the handsomest and most commodious public buildings in the Province. The architect and contractors have done their part well; but the credit is mainly and beyond all due to the public spirit of the people of Elgin, who were resolved that nothing short of best would satisfy them, and who were willing to be taxed to a reasonable extent upon the sole condition that the building should be well and honestly built, be a credit to the county and answer its purpose. Doubtless before another century rolls round, the increase of population and wealth may call for an enlarged building, but it is certain that no changes in architectural science will produce one that will better reflect the intelligence and enterprise, the wealth and the culture of the people, than the beautiful and commodious structure, which is to-day the pride and the boast of the citizens of this county. JAMES H. COYNE. The Court Houses of a Century. The History of the Court Houses of Ontario is closely associated with the development of the Province. The first recognition of population in South Western Ontario was the formation in 1788, of the District of Hesse and the appointment of Justices of the Court of Common Pleas, and other officials. The only inhabitants were in the French settlements around Detroit, where the barracks and Government House were located. In 1792 Upper Canada, now Ontario, was divided into nineteen Counties, Norfolk, Suffolk, Essex and Kent occupying nearly the same territory as the District of Hesse. Representatives to the Provincial Parliament were elected and, at the first session convened at Niagara in September, 1792, an Act was passed for building a Gaol and Court House in every district, and for altering the names of the districts. Hesse was hereafter called the Western District, and the Court House and Gaol was ordered to be built at Detroit. The Courts were held there until the evacuation of Detroit by the British in 1795, after which they were held in the Parish of Assumption, now Sandwich. D. W. Smith, in his Gazetteer of 1799, states: "That there is a good Gaol and Court House," in Sandwich, "situated a little below the fort of Detroit, on the east side of the river." The Munro House, 1800-1802. The U. E. Loyalists settlement of Norfolk commenced in 1793, and in 1798 the rapid increase in population was recognized by a division of the Western District and the formation of three Counties, Norfolk, Oxford and Middlesex to be known as the London District. This was organized by the appointment of a general commission of the peace and the necessary officials. The first meeting of the resident Magistrates was held in the house of Lieutenant James Munro, of Charlotteville, on 1st April, 1800, for the purpose of carrying the Commission into execution, and the first General Quarter Sessions of the Peace for the District was ordered to be holden at the same place on Tuesday, the 8th day of April, 1800. The Munro House above referred to, was built in 1796, on lot 14 in the 5th concession of Charlotteville. It was the best house which had been erected up to that time, and stands to-day as an old land mark, about a half mile back from the road running straight west from Vittoria. It is a two story frame house of considerable size. The frame was made of hewn timber, with bents four feet apart, strengthened by tie girths, morticed and tendoned--a marvel of axeman's skill. The planks for the floor and sheeting were cut out by the whip saw. The original roof is on the building at the present time. The shingles are of cedar, rudely whittled by the draw knife, and show in places an original thickness of over an inch. A temporary jail was erected near the house, a log building fourteen feet by twenty-five feet, divided into two rooms--one for the debtors and the other for those charged with criminal offences. This building was erected during the winter of 1800 by day labor, and was used for nearly a year. The courts were held here until 1802, when they were removed to Turkey Point or Fort Norfolk under the authority of an Act passed in the year 1801. Turkey Point, 1802-1812. The Courts at Turkey Point were first held in the public house of Job Loder. In 1803 the contract for a court house was awarded. It was to be a frame building forty feet in length by twenty-six feet in width, to be two stories high, the first or lower story to be ten feet between floor and ceiling, and the second or upper story to be eight feet high. The original specifications were as follows: "The building to be erected on a foundation of white oak timber squared, the same to be sound and of sufficient thickness, the building to be shingled and to have two sufficient floors, an entry eight feet wide to be made from the front door across one end of the lower story, from which winding stairs are to be erected to ascend to the second story; two rooms are to be partitioned off in the second or upper story for juries. Nine windows are to be made in front and ten in rear, of twenty-four lights each, seven by three. The front door to be made of inch and a half plank, six panel, and to have a good sufficient lock and key. Two windows are to be finished in the first story opposite each other, so as to afford sufficient light to the bar, besides two windows of fifteen lights each behind the Judge or Chairman's seat. The rest of the windows are to be cased and nailed up for the present. The Bar, table, Justices' seat, benches for the bar and a table for each jury room, and benches for the same are to be finished; the three inside doors to be temporary; a seat and writing table for Clerk, to be made between the bench and the bar. Note--The house to be raised, shingled, weather-boarded and floored, and the bench for the Judge and Justices, Judge or Chairman's writing desk, Clerk's seat and table, the bar and table and benches therefor, the four windows below and two above to be finished, the rest of the windows cased and nailed up. The front door to be finished, and the other three temporary doors to be made and hung. Comprehends the present contract proposed by the court to be performed by the next assizes for this district." Courts were held in this building commencing in the year 1804 until it was appropriated for the use of prisoners during the war of 1812. The Vittoria Court House, 1815-1826. In 1815 an act was passed which provided that the courts of general quarter sessions for the district of London should be held at Charlotteville. The Magistrates were ordered to make a choice of the most convenient place, and a meeting was accordingly held at the house of Thomas Finch on the 13th June, 1815. John Backhouse, Thomas Talbot and Robert Finch were appointed Commissioners to superintend the building, and a brick court house and gaol was erected at Vittoria at an expense of £9,000. During the erection of the building, courts were held in the houses of Thomas Finch, Francis Beaupre and Mathias Steel. The first meeting of the sessions was held in the new court house on 8th April, 1817, and it was used until 1826, when it was partially destroyed by fire. The London Court Houses, 1826-1853. An Act was then passed to establish a District town in a more central place, and courts were ordered to be held in some part of the reservation made for the site of a town near the forks of the River Thames. This was at London where four acres were set apart for the purposes of the jail and court house. The commissioners appointed for the purpose of erecting the building, Thomas Talbot, Mahlon Burwell, James Hamilton, Charles Ingersoll and John Matthews, held their first meeting in St. Thomas. During the erection of the court house at London, courts were held in a private house at Vittoria, and afterwards at St. Thomas. Dr. C. Hodgins, in his History of Education of Upper Canada, states that on one occasion the Court of King's Bench, with Judge Sherwood presiding and the late Sir John Beverley Robinson in attendance as King's Attorney, was held in an upper room of a building used by Mr. Stephen Randal as a grammar school. This building was afterwards removed to the school lot near the present residence of Judge Ermatinger, and was known as the "Talbot Seminary." [Illustration: THE LONDON COURT HOUSE. _From "Illustrated London," copyrighted. By permission London Printing and Lithographing Co. (Limited.)_] The first court house in London was constructed of flat logs, and on the ground floor was a log partition to separate the jail from the jailer's room. The court room above was reached by stairs outside. This was followed by the erection of a two story frame building upon the same square where the present court house stands, but closer to the street. In one end of the first floor were placed two cells, which were rendered more secure by being surrounded with logs, from which the building acquired the distinctive title of "The Old Log Court House." Courts were first held there in 1828. In 1838 a new jail was proposed, and in the years 1843 and 1844 the present jail and court house in London was completed at a cost of £8,500. The latter resembles the castle of Malahide near Dublin, the birth place of Col. Talbot. The Elgin Court House, 1853-1898. The County of Elgin was established by an Act of the Legislature passed in August, 1851, and formed a union with Middlesex until County Buildings were erected. The provisional County Council held its first meeting in the Town Hall, St. Thomas, on April 15th, 1852. The first business was to erect a jail and Court House. Offers of building sites were received from Messrs. Curtis and Lawrence and Benjamin Drake. The Curtis sites were north of Talbot Street and West of East Street. The Lawrence site, two acres, included the lot on which the Post Office now stands. The Drake site appears to have been considered suitable before the county was formed as a deed from Benjamin Drake to Queen Victoria, dated the 25th of October, 1848, and registered the 30th of October, 1851, conveys the Jail and Court House Block to Her Majesty for public buildings for county and district purposes only. A resolution of the County Council shows that the final acceptance of this site depended on obtaining water at fifteen feet, failing this a new site was to be chosen. The location for the building on lot selected was next considered. Petitions to front the buildings on Stanley Street were presented, but they were ordered to face north so as to stand parallel with the Talbot Road in front of Queen Street. Plans were received from architects Thomas and Tully, of Toronto, and John Turner of Brantford. The plans submitted by Mr. Turner were the same as for the Court House at Brantford, which he was building. These were adopted with some changes suggested by other plans before the council. The contract was awarded to Garner Ellwood for £4,580, on the 19th June, 1852. The jail, jailor's house, etc., to be completed by the 15th September following, and the Court House on the 1st August, 1853. The Building Committee consisted of the whole council, of which Messrs. Clark and Locker of Malahide, Ganson of Yarmouth, Skinner of Bayham, Munro of Southwold and Parish of St. Thomas, were the most active. Thomas Cheeseman was the architect's superintendent in charge of the work. [Illustration: WARDEN LOCKER, 1852-1855] The jail was not completed until the spring of 1853, and on the 23rd of March Mr. Ellwood gave up the contract, £2,764 having been expended. The Warden was then authorized to proceed with the work which, with the exception of minor contracts, was completed by day labor, with Thomas Fraser, builder, of London, as superintendent. The Gaol as at first erected was not satisfactory, the plan being defective. This increased the cost and when the buildings were completed and furnished in 1854, the total expenditure was £11,405. Mr. Ellwood in tendering for the buildings was guided by the figures supplied by Architect Turner who was then erecting a court house at Brantford. In a subsequent report to the council Mr. Turner states that in the erection of the Brantford building he ruined himself, and that he could not have erected the Elgin buildings at a less price than they cost the county. A Special Committee reported on completion of the work: "That after taking into consideration the advance in price of material and labor--that the buildings have been erected in as judicious and economical a manner as the circumstances would admit, and that the beautiful workmanship and design is not surpassed by any building in Canada west." [Illustration: THE ELGIN COURTHOUSE, 1860.] The Royal Arms Rampant, which is very much admired, on the front of the Court House, is in size twelve feet by six feet, and cost £93. They were supplied by Messrs. Cochranes and Pollock of Toronto, from a sketch drawn by Mr. John M. Walthew who also painted the picture placed in the court room, the beauty of which the council acknowledged by special resolution in January 1855. Sculptured faces were placed in the east and west gables of the building. That in the west resembles Lord Elgin, after whom the county was named, and the other may be architect Turner but at present no one seems to know definitely who they were intended to represent. In 1853 the Town Hall of the Village of St. Thomas was secured for court purposes on condition that any fittings, etc., required were to be supplied by the County, and left in the building when court house was completed. Plans of the new buildings and of the town hall were submitted to the statutory commissioners, and approved of as suitable for court purposes. On the 30th of September, 1852, a proclamation was published in the Official Gazette, dissolving the union of Elgin and Middlesex. [Illustration: D. J. HUGHES, ESQ., COUNTY JUDGE, 1853.] The Officers appointed were: Judge, David John Hughes. Sheriff, Colin Munro. Registrar, John McKay. Clerk of Peace, James Farley. Clerk of the Court, Peter Murtagh. Jailor, John King. County Clerk. William McKay. County Treasurer, William Coyne. County Engineer, Charles Fraser. During November, 1853, the offices of the Sheriff, Clerk of the Peace and Clerk of the County Court were located in one room in the apartments erected for the Jailor. On the 15th of November, 1853, the first court of quarter sessions of the County of Elgin opened at St. Thomas in the Town Hall, David John Hughes, County Judge, presiding. In opening the court, the Judge delivered the following address to the Grand Jury: GENTLEMEN OF THE GRAND JURY.---- "It is usual for the presiding Justice at our criminal courts to address to grand inquests, remarks upon the duties which have to be discharged by them. This being the first time we have met together in our relative capacities, I think the occasion a becoming one for congratulating you and the inhabitants of this fine county in general, in being now separated from the senior county for the transaction of all the judicial, municipal and other business of our inhabitants. [Illustration: THE ELGIN COURT HOUSE BEFORE THE FIRE.] Anyone who has lived in what was the London district for twenty years, and who will look back upon the time when, with little better than a mere track to guide or assist them, most of the settlers were obliged to travel the primeval forests to distances of fifty or sixty miles to attend courts, and for other purposes in the way of business, and who now have public offices almost brought within reach of their own doors, cannot but feel thankful that a gracious Providence has favored the country and its inhabitants with such prosperity--a prosperity which is still on the increase, at a rate surpassing the expectations of the most sanguine. If we look beyond the limits of our own county and view the Province at large, we see progress and prosperity, peace, contentment and general happiness surrounding us. We find the minds of the people progressing too, for with a bountiful provision for schools and a well ordered system, the rising generation are enabled, and doubtless will keep pace with their monetary prosperity. The encouragement that agriculture has met with in an increased demand for the staple produce of the county, and remunerative prices will call for an improved system of tilling the fields. The encouragement given to manufactures by the increased consumption, justifies enterprise in an increase of fabrics; and all these call forth the necessary supply of improved and cultivated minds--so that enquiry is awakened, and the benefit of our schools and colleges is every year becoming more and more appreciated and will be so much better attended and encouraged, that they will themselves improve in their standard and tone, so that Canada in one or two generations will equal, if not successfully rival, parts of the world which are now considered amongst the freest and most contented. [Illustration: COURT ROOM AFTER THE FIRE.] We enjoy a liberty in our civil and religious affairs which admits not only of a freedom of thought, but action. We can watch our very rulers, and have the means in our hands of curbing usurpation of power or infringements of rights by the privilege we can exercise of approving or disapproving of the advisers of the crown. We can worship the Almighty in our own way; no one venturing to disturb or make us afraid. We can educate our children almost entirely at the public expense, and place them within reach of the highest honors that their talents entitle them to, or that the country can bestow. The time has gone by for those honors to belong only to a class; or when promising aspirants can be successfully frowned upon by those who fancy that they hold a prescriptive right to them; and the time has arrived for men not to be judged by the occupations they are day by day employed in, but by the integrity of their purposes, the cultivation of their minds, the uprightness of their characters, and their successfulness in accomplishing some good for themselves and their fellow-men. In entering upon the duties of the office I fill, I must confess my misgivings as to the ability to discharge them aright. They are onerous, responsible, and will be at times arduous and disagreeable. I depend upon the forbearance of those with whom I shall be brought in contact, and claim their assistance and advice when necessity shall suggest it. I desire to see the great body of the people, whose business or affairs shall be brought under my judicial notice, satisfied that justice and right are aimed at, however, I may fall short in administering them, and in my magisterial capacity I rely upon the aid of my brother magistrates to further these motives; for I doubt not that by mutually according to one another, integrity of purpose, (as I shall at times desire to attribute to them) we shall be able to accomplish much good in the way of checking vice and setting a good example to the several neighborhoods we respectively inhabit. The County Buildings are not yet quite completed, but I am informed that before the next sessions, the Court may be held in them; and when finished I am satisfied they will not be surpassed in beauty, convenience and comfort by any in the Province." The first Court of Quarter Sessions was held in the Court House, on the 5th of January, 1854, and on the 11th of April, in the same year, Hon. Justice Draper opened the first Court of Assize. Col. John Prince, Q. C., one of the lawyers in attendance at this Court, complimented the County on the magnificence of the Court House, which, he said, was unsurpassed by any Court House in the Province. On June 7th, 1854, all of the offices in the Court House were occupied, and the building completed, with the exception of some painting and the erection of the Royal Arms. The County Buildings remained the same until the gaol was rebuilt, and wall erected in 1872. This was followed by a new Registry Office in 1874, and a Gaoler's residence in 1889-1891. On the 1st of July, 1898, a fire occurred at midnight, destroying the roof and upper portion of the Court House, the whole building being damaged by water. [Illustration: DANIEL LANG. Warden, 1898.] [Illustration: OSCAR McKENNEY. Warden, 1898.] [Illustration: ARCHIBALD J. LEITCH. Chairman Building Committee. 1898-1899.] [Illustration: NEIL R. DARRACH. Architect.] [Illustration: ROBERT CARROLL. Contractor.] The Elgin Court House, 1898-1900. [Illustration: THE NEW COURT HOUSE.] The first meeting of the County Council, after the burning of the Court House, was held in the Grand Central Hotel, St. Thomas, on July 8th. The Insurance appraisers' award fixing the amount of damage at $5,509, was then presented. Mr. J. M. Green, contractor, was valuator on behalf of the County. The County officials were consulted in reference to temporary accommodation, and the Clerk was authorized to rent offices from Mr. Charles Spohn, on the south-west corner of William and Talbot streets. A special Building Committee was appointed, with power to employ an architect, visit other Court Houses, to have plans prepared, and report. The committee, consisting of Messrs. A. J. Leitch, S. B. Morris, D. Turner, R. Locker, D. F. Moore. W. B. Cole and Warden Lang, accompanied by N. R. Darrach, architect, and J. A. Bell, County Engineer, proceeded to Brantford, to examine the county buildings, which had recently been enlarged. Instructions were given to prepare plans to include enlargement of building and re-modelling Jail and Jailer's residence and kitchen. The County Council met on the 27th of July, to receive report presented by Architect Darrach, who estimated the cost of plans submitted at about $33,000. Opposition was offered by some members of the Council, who were desirous of limiting the cost of building to $20,000, but the architect's plans were adopted. A by-law was passed appointing a special building committee, and authorizing the Warden to sign contracts. The architect's fee was fixed at $1,200 for the whole work. Tenders were received, and as all of them exceeded the architect's estimate, a special meeting of the Council was called for the 8th of September, to consider the matter. At this session the building committee reported in favor of the adoption of the following tenders: J. H. McKnight & Co., Toronto, for the whole work, with the exception of the electric wiring, iron work and plumbing. $33,990 00 R. A. L. Grey, Toronto, electric wiring 346 00 Stacey & Co., St. Thomas, iron work 1,231 42 C. T. Bull, St. Thomas, plumbing 1,047 00 [Illustration: D. J. HUGHES, ESQ., COUNTY JUDGE, 1899.] This report was adopted and contracts signed by all with the exception of Mr. Bull. Mr. A. J. Leitch, Chairman of the Building Committee, was appointed to inspect the work as it progressed, and issue orders for payment in accordance with the architect's estimates. Tenders for heating and plumbing were received in January, 1899, and contracts awarded--the heating to Joseph Harrison for $3,146, and the plumbing to Keith & Fitzsimmons, Toronto, for $1,125. The Building Committee next considered the question of furnishing, and for the purpose of securing information, visited the court houses in Stratford and Woodstock, and in March, 1899, tenders were received and the following contracts awarded: J. Acheson, St. Thomas, hardware $400 00 McDonald & Wilson, Toronto, gas fixtures 645 00 The Preston Office & School Furniture Company, for special work 2,995 00 And for furniture, desks, etc 556 80 The Office Specialty Company, Toronto, for letter press, stands, vault fittings, etc 892 50 [Illustration: COURT ROOM.] Carpets and window blinds were procured from J. B. Kay, Son & Co., Toronto, and rubber matting for the stairs from the Gutta Percha & Rubber Co., two clocks for the court room and council chamber, from W. R. Jackson. Stained glass windows with appropriate designs were ordered from N. T. Lyons, Toronto, for the main stairway, one contains a picture of the old and new buildings; the other, the names of the County Council for the years 1898 and 1899. Stone walks around the building and through the grounds were put down by the Silica Barytic Stone Company, of Ingersoll, at the cost of $579.02. The work of grading the grounds was completed under superintendence of W. Irving. OPENING PROCEEDINGS. The Court House was formally opened on Wednesday, the 13th day of December, 1899, the occasion being the first day of the Court of General Sessions of the Peace, and of the County Court. The proceedings commenced at 2.40 p. m. Judge Hughes presided, and on his right was Junior Judge Ermatinger, and on his left Sheriff Brown. Judge Hughes explained that he had invited Rev. Canon Hill and Vicar-General Bayard to be present, to assist in the opening proceedings, but they had other engagements and could not attend. There were present Revs. D. R. Drummond, Prof. T. L. Fowler, of the Disciples College, and Rev. R. I. Warner, principal of Alma College. [Illustration: LIBRARY.] Rev. D. R. Drummond opened the proceedings with prayer, Rev. Prof. Fowler read the scriptures, and Rev. Prof. Warner led in prayer. Mr. Oscar McKenney, Warden of Elgin County, read the following address to Judge Hughes, on behalf of the County Council: "Before proceeding with the business of the County Court and General Sessions of the Peace, the County Council desire to congratulate your Honor on your good health and physical and mental vigor, which is remarkable when we consider that you have occupied your present position for over forty-six years. You had the honor of presiding at the first court held in the old buildings in 1854, and have since done much to assist in the development of the county. You have witnessed many changes and can refer to many pleasant experiences which are the accompaniment of a long and useful life. The Court House which we hereby formally hand over to you for Court purposes, is representative of our idea of the advancement made by a wealthy and prosperous community during the past half a century. We hope you may enjoy continued good health, and that the remainder of your life may be pleasant and a restful recompense for many busy years. The members of the Council will make a few remarks as they feel it is difficult in a brief address to refer to all the circumstances that have brought us together to-day." [Illustration: COUNTY COUNCIL CHAMBER.] [Illustration: COUNTY CLERK'S OFFICE.] Councillor Frank Hunt delivered the oration of the day on behalf of the County Council. He spoke as follows: "This is an important occasion. Important because it makes a page in the history of the county. It establishes a milestone marking the progress of a people who first planted civilization in this county a century ago. The burning of the old Court House necessitated the building of a new one, and this gave the present council the opportunity to erect a building characteristic of the people, and of the arts and sciences of this particular period. The old court house was emblematic of the pioneers of this county. It exhibited wisdom, strength and beauty. As much as I admire the new structure I am glad the front of the old court house is preserved, and will hand down to future ages in its Grecian columns and pilasters, the artistic taste of the pioneers who could spare from the rewards of unceasing toil money to erect a court house that bore the impress of the best art of their time. The excellence and thoroughness of the structure attest the true worth and integrity of the pioneers of the County of Elgin. I cannot but think, when considering the population and wealth of the county fifty years ago with that of to-day, that in the erection of the new court house we have spent less for artistic effect than did the pioneers. Modern requirements for the comforts of those attending courts, or on official business, entailed a large expense, which was not considered in the erection of buildings fifty years ago. The provision made for women during a forced attendance at court shows how far we have advanced on one particular line. It is a grand building of the utilitarian type, and erected on such lines that great beauty may be discovered by a casual glance. I want to say a word in praise of the architect who designed the building and supervised its erection to the satisfaction of the Building Committee. The epitaph in St. Paul's Cathedral says: "If you would know the genius of Christopher Wren, look around you." I will say, also, and it is all that is necessary, if you would know the genius of Mr. Darrach, look around you and see that he is master of his art. New occasions teach new duties, Time makes ancient good uncouth, We must upward still and onward, Who would reach the realms of truth. [Illustration: Art, national or individual, is the result of a long course of previous life and training; a necessary result, if that life has been loyal, and an impossible one, if it has been base.--_Ruskin._ WINDOW, MAIN STAIRWAY. In its important examples, all municipal art should be at once a decoration and a commemoration--it must beautify and should celebrate; thus becoming a double stimulus, first to the aesthetic sense, second to the sense of patriotism.--_Blashfield._] I cannot close without reference to His Honor Judge Hughes and his long judicial career in the County of Elgin. He opened the old court house forty-six years ago; he has been spared to open the new. In the first courts he grasped by the hand the men who planted civilization on the shores of Lake Erie. He has lived to grasp by the hand their children and grand-children. He came here in his early years, a type of that manhood which comes from the chisel of Pericles, and the great masters of the Grecian school. He has seen the county a wilderness, he now sees it populous and wealthy, inhabited by a people educated, industrious; a people who love God and keep his commandments. [Illustration: COURT HOUSE, EAST SIDE, SHOWING GAOL ENTRANCE.] He has left his impress on his county and its people, and can it not be said that it has been for the good of society, for the happiness and advancement of the people? His legal knowledge, and his great ability is known throughout the Province. His untiring industry has been proverbial. He has administered the law with fairness, and tempered justice with mercy. It is not contended that he was or is faultless. Who thinketh a faultless man to see? Thinks what ne'er was and ne'er shall be. It is the desire of the council that his learning and great abilities may long be spared to his fellow-citizens, and that An old age serene and bright, Lovely as a Lapland night, Shall lead thee to the grave." County Councillor J. H. Yarwood voiced the sentiments of Mr. Hunt, and extended the congratulations of the county to the Judge for the manner in which he had administered the affairs of the county, and hoped he would be spared for many years. County Councillors S. B. Morris, W. O. Pollock, D. Lang, W. M. Ford, E. McKellar, Mahlon Lyon, D. Moore and A. J. Leitch also delivered addresses of congratulation. [Illustration: GAOL YARD.] Judge Hughes thanked the County Council for the privilege of opening the new Court House. The county building was a testimonial to the advancement of the county council. He had to acknowledge with thanks the many kind things said of him personally, and of the way he had administered justice in the county. The building is an index, not only of enterprise and good taste, but also of conception for the convenience of those who had to attend the county buildings to do business. The mistake with the old building was that Architect Turner had his plans interfered with, and all the rooms, except the court room, were but half the size intended. He concurred in all that had been said of the architect. The contractors, too, had performed their work well. The court house was a manifestation of the progress of municipal institutions. He had found the county council always ready to encourage education and grammar schools, and this building was a monument to their honor. The county court was then opened by Court Crier Hopkins, when Mr. John Crawford, of Aylmer, on behalf of the bar of Elgin, extended to Judge Hughes their congratulations upon the long term he had served on the bench, and upon his distinguished services during that time. The members of the bar were in hearty sympathy with and heartily endorsed the remarks made by the members of the county council. The members of the bar hoped the Judge might be long spared to occupy the high position which he did. Judge Hughes said he could only express his high appreciation of the kind things said of him. It was an honor for a man to act as judge where there was such a bar as in the county of Elgin. He concluded by thanking Mr. Crawford and the other members for their kind remarks. [Illustration: F. HUNT, J. P., HOLDING COURT IN A GAOL WARD, AFTER THE FIRE.] In the evening the judge entertained the members of the bar and the municipal and judicial officers of the county of Elgin at a banquet in honor of the occasion of the re-opening of the court house and the 46th anniversary of his appointment. This was held at the Grand Central Hotel. All the work connected with the court house improvements was completed in the spring of 1900. The final report of the Building Committee was not, however presented until the 23rd of November. The total cost was $50,954.72, and of this amount the city of St. Thomas contributed $12,178.17. The excellent service rendered to the county by architect Darrach was recognized by the presentation of an address, suitably engrossed, expressing the councils appreciation of his efforts. The report also directed attention to the satisfactory manner in which Messrs. McKnight & Co., the principal contractors, who were represented by the senior member of the firm, Mr. R. Carroll, had completed their work. After the adoption of the report a resolution was passed tendering the thanks of the council to A. J. Leitch, Esq., for his services as Chairman of the Building Committee. _STATISTICS._ COUNTY || POPULATION. | OF ELGIN. || 1817 | 1841 | 1851 | 1861 | 1871 | 1881 | 1891 | -------------++------+------+------+------+------+------+------+ ALDBOROUGH || 400| 733| 1,226| 2,325| 3,500| 4,718| 5,299| || | | | | | | | BAYHAM || | 2,108| 5,092| 5,141| 4,895| 4,689| 3,856| || | | | | | | | DUNWICH || 500| 633| 1,948| 2,888| 3,731| 4,290| 3,663| || | | | | | | | DORCHESTER || | 635| 1,477| 2,204| 2,071| 1,844| 1,624| || | | | | | | | MALAHIDE || 775| 2,218| 4,050| 5,320| 5,554| 4,415| 3,851| || | | | | | | | SOUTHWOLD || 900| 2,563| 5,063| 5,467| 5,559| 5,206| 4,766| || | | | | | | | YARMOUTH || 400| 3,664| 5,288| 6,166| 5,563| 5,575| 5,471| || | | | | | | | ST. THOMAS || | | 1,274| 1,631| 2,197| 8,367|10,370| || | | | | | | | VIENNA || | | | | 590| 528| 398| || | | | | | | | PORT STANLEY || | | | | | 674| 616| || | | | | | | | AYLMER || | | | | | 1,540| 2,167| || | | | | | | | SPRINGFIELD || | | | | | 555| 463| || | | | | | | | DUTTON || | | | | | | 838| -------------++------+------+------+------+------+------+------+ TOTALS ||2,975 |12,554|25,418|31,142|33,660|42,401|43,382| -------------++------+------+------+------+------+------+------+ COUNTY || NUMBER OF HOUSES. |Schools.| OF ELGIN. || 1817 | 1841 | 1851 | 1861 | 1871 | 1881 | 1891 | 1817 | -------------++------+------+------+------+------+------+------+--------+ ALDBOROUGH || 90| 13| 189| 311| 630| 880| 1,064| 1 | || | | | | | | | | BAYHAM || 60| 133| 732| 887| 955| 978| 882| 2 | || | | | | | | | | DUNWICH || 100| 45| 316| 450| 673| 820| 744| 1 | || | | | | | | | | DORCHESTER || | 10| 238| 345| 378| 423| 341| | || | | | | | | | | MALAHIDE || 150| 125| 692| 726| 1,104| 956| 887| 2 | || | | | | | | | | SOUTHWOLD || 180| 175| 800| 579| 993| 998| 973| 3 | || | | | | | | | | YARMOUTH || 75| 299| 881| 1,128| 1,067| 1,161| 1,150| 2 | || | | | | | | | | ST. THOMAS || | | 226| 390| 417| 1,634| 2,205| | || | | | | | | | | VIENNA || | | | | 103| 105| 99| | || | | | | | | | | PORT STANLEY || | | | | | 139| 128| | || | | | | | | | | AYLMER || | | | | | 330| 521| | || | | | | | | | | SPRINGFIELD || | | | | | 130| 123| | || | | | | | | | | DUTTON || | | | | | | 167| | -------------++------+------+------+------+------+------+------+--------+ TOTALS || 655| 800| 4,074| 4,816| 6,320| 8,554| 9,284| 11 | -------------++------+------+------+------+------+------+------+--------+ The statistics of 1817 are taken from Robt. Gourlay's Book. For other years official census reports were referred to. Plan of the Court House. GROUND FLOOR. NO. BY WHOM OCCUPIED. 1-2. County Attorney and Clerk of the Peace. 3-4-5. County Court Clerk. The Vault was formerly used as an office by County Court Clerk and Junior Judge. 6. Inspector of Public Schools. Formerly occupied with vault adjoining by Clerk of the Peace. 7. Junior Judge's Office. Formerly Occupied: (1) County Treasurer's Office. (2) Law Library. (3) Jailer. (4) County Engineer. 8. County Treasurer's Office. Used as Registry Office up to 1875. 9. County Clerk. 10. County Engineer. 12-13. Sheriff. 14. Telephone. 15. Janitor. 16. Jailer. 17. Jail Kitchen. Originally occupied as Jailer's residence and afterwards as County Clerk's and Jailer's Offices. The heaters are in basement under these rooms. The space occupied by lavatories and main stairway was formerly the Sheriff's office. FIRST FLOOR. 18. County Judge's Office. 19. Barristers. 21. Crown Counsel. Formerly County Judge's Office. 22. Law Library. 23. Lady Witnesses. Formerly Petit Jury. 25. Court Room. 26. Witnesses. Formerly Crown Counsel room, afterwards law library. 27. County Council Chamber, also used for small courts. 28-29. Local Master. } } 31. Judges' Parlor. } } 32. Turnkeys. } Originally occupied as Jailer's Residence, } and afterwards as County Judge's Office. 33. Petit Jury. } } 34. Gaol Stores. } The space occupied by main stairway was formerly the county clerk's office and afterwards a witness room. SECOND FLOOR. 35-41. Janitor's apartments. 37 and 41 formerly Grand Jury Rooms. 42-43. Witnesses. 42 was formerly occupied by Local Master and afterwards by County Police Magistrate. 45. Historical Society. The space occupied by main stairway was formerly a store room. [Illustration: ELGIN COUNTY COURT HOUSE N. R. DARRACH, ARCHT., S^{T}. THOMAS, ONT. GROUND FLOOR PLAN FIRST FLOOR PLAN] [Illustration: COUNTY · BUILDING · AT · ST · THOMAS · ONT. N · R · DARRACH · · · ARCHITECT.] [Illustration: SECOND FLOOR PLAN] Members of Elgin County Council. 1852. ALDBOROUGH--Duncan McColl. DUNWICH--Moses Willey. SOUTHWOLD--Colin Munro, Nicol McColl. YARMOUTH--Elisha S. Ganson (Warden), Leslie Pierce. MALAHIDE--Thomas Locker (Warden), Lewis J. Clarke. BAYHAM--John Elliott, J. Skinner. SOUTH DORCHESTER--Jacob Cline. ST. THOMAS--David Parish. 1898-1899. DISTRICT NO. 1--(Aldborough) S. B. Morris, Daniel Lang (Warden 1898). DISTRICT NO. 2--(Dutton and Dunwich) A. J. Leitch, Edward McKellar. DISTRICT NO. 3--(Port Stanley and Southwold) William Jackson, Donald Turner, 1898, Francis Hunt, 1899. DISTRICT NO. 4--(Yarmouth) James H. Yarwood, Wm. B. Cole, 1898, Wm. O. Pollock, 1899. DISTRICT NO. 5--(Aylmer, Vienna, Polling Sub-divisions 1 and 2 of Bayham, and Malahide, except Polling Sub-division 5) Oscar McKenney, (Warden, 1899) Richard Locker, 1898, Mahlon E. Lyon, 1899. DISTRICT NO. 6--(Springfield, South Dorchester, Malahide (Division 5) and Bayham (except divisions 1 and 2)) David F. Moore, (Warden, 1900) Wm. M. Ford. Transcriber's Note. Illustrations have been moved to avoid breaks in paragraphs. Minor punctuation errors have been corrected without note. The single table of Statistics in the original has been reformatted into two separate tables for ease of reading, one for population and one for houses and schools. Typographical errors have been corrected as follows: P. 5 'east side of the river."'--closing quotation mark added. P. 5 'Tuesday, the 8th day of April, 1800.'--had '1900.' P. 6 'tie girths, morticed and tenoned'--had 'tendoned.' P. 12 'sessions of the County of Elgin opened'--had 'Couty.' P. 24 'contended that he was or is faultless'--had 'fautless.' P. 24 'Shall lead thee to the grave."'--closing quotation mark added. P. 25 'his plans interfered with, and all the'--had 'iterferred.' P. 28 '26. Witnesses. Formerly Crown Counsel room'--had '36.' Unusual spellings of hybernated, Mississaga; inconsistent spellings of jail/jailer, gaol/gaoler; inconsistent hyphenation and capitalisation are as per the original. 
59494	----	NIGHT COURT BY NORMAN ARKAWY _With a new cast nightly, it was the best show in town. Gay crowds mobbed the box office for tickets; but few went back more than twice...._ [Transcriber's Note: This etext was produced from Worlds of If Science Fiction, June 1956. Extensive research did not uncover any evidence that the U.S. copyright on this publication was renewed.] The old courthouse was in the unreconstructed part of town. No buses ran out here, and the only way that Stan and Julie could reach the court was on foot, threading their way through the debris of neglect and vandalism that littered the narrow streets. This was a part of New York that Julie had never seen. Twentieth century tenements, dimly illuminated by ancient incandescent lamps, lined the rubble-filled streets, where garbage and the decaying carcasses of poisoned rats lay stinking in the gutters. The night was warm, but Julie shivered. She hurried along at Stan's side, trying to hold her breath to shut out the unpleasant smells. They stopped at the edge of the sidewalk across the street from the court and watched a crowd of people milling about the entrance, anxiously pressing to the box office to try to get hard-to-get tickets. "Look at that mob!" Julie said. "We'll never get in!" She tried to sound disappointed, but she knew that she could not hide her feeling of relief. She didn't want to go in. She wanted to go away, back to the clean, pretty city she knew. Stan smiled and patted her hand. "You underestimate me, honey. Little Stanley knows how to take care of himself. I knew there'd be a crowd tonight, so...." He drew two tickets from his pocket. "If you don't reserve 'em, you don't deserve 'em, I always say!" He took her hand, and they started across the street toward the courthouse. It was a bleak, gray, stone-faced building whose ornate sculptured trim was weather worn and darkened with age. Once an aspiration to architectural beauty, it was pathetically ugly, a melancholy reminder of a bygone and possibly better era. A modern theater marquee had been incongruously added to the old structure and, atop the shiny new addition, huge letters of light spelled out NIGHT COURT. Smaller cast aluminum letters protruded upward from the metal rim of the arcing canopy and formed the words of a motto: "Judge not, that ye be not judged". Bold type plastered across the gleaming glass facade of the marquee loudly proclaimed: "NEW SHOW NIGHTLY". Stan and Julie pushed through the congestion outside the entrance of the court. A dizzying confusion of elbows and backs and sweating, eager faces surrounded them. Stan squeezed through the seething mass of people and, holding tightly to his hand, Julie followed. For the tenth--or hundredth--time, she was sorry that she had come. But it was too late to turn back now. Stan showed his tickets to the guard at the door, and they were ushered politely inside where a uniformed woman with a military bearing guided them to their seats. "Your ID cards, please," the young woman said. Julie was startled by the request, and alarmed. A confiscated ID card meant trouble--police trouble! "Why?" she asked, nervously, "What did we do?" Stan smiled knowingly. "It's just a formality," he assured her. "They give it back to you when you leave." He handed the usher his card. "And yours, miss?" Hesitantly, Julie took out her wallet. A cold premonition urged her to stop, to leave now, before it was too late. Then she saw Stan's amused eyes grinning at her and she reminded herself that it was already too late for her to leave. She gave the girl her ID card. The usher smiled mechanically. She handed them each a program and hurried away up the aisle. "Don't worry, honey," Stan said, "you'll get it back." He held his program up for her to admire. "Pretty snazzy, huh?" Julie nodded half-heartedly and silently leafed through her own program. It was a four page souvenir booklet. On the first page, or front cover, was the seal of justice with a perfectly balanced scale and a few words of Latin. Above the seal, NIGHT COURT OF THE CITY OF NEW YORK was embossed in black on the slick yellow paper, and below it, the legend "Judge not, that ye be not judged". Beneath the seal, in red italics, was the inscription: "_For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again._--Matthew, 7:2." The page was set up attractively but, Julie thought, the quotations seemed inappropriate. What was the purpose of the court, if not to judge? "I still can't figure it out," Stan said, as if he had read her thoughts. He reached over and tapped Julie's program with his finger. "This is the third time I've been here, and you can believe me, honey, they both judge and mete out justice in this place!" He grinned at her. "This 'judge not' business doesn't make sense!" Julie said nothing. There was nothing to say. The room was rapidly filling up now, and she watched the people slowly filing in. She was fascinated by the looks of anticipatory pleasure in their faces, the whole place tingled with barely repressed excitement. The spectators packed into the room until every seat was taken and they were standing, eight deep, in the rear of the court. Scanning their faces, Julie could feel--could almost taste--the many varied emotions that radiated from them: amusement, lust, hatred, curiosity, vengeance. It was a puzzling combination. "Now, _this_ quotation makes some sense," Stan was saying. Julie turned her attention back to him. He had opened his program booklet to the centerfold, and he pointed to an inscription printed across the top of the two inner pages. "An eye for an eye, a tooth for a tooth," he recited. "That's what this place really stands for!" He said it with relish. Julie began to feel sick. She did not like the hungry look on Stan's face or the merciless atmosphere in the courtroom. Why had she come? She stifled a shudder. She knew why she had come. She had come because Stan wanted her to and, to be honest, because she had been curious to see what the Show was like. Now that she was here, she could not call the whole thing off just because her curiosity was satisfied or because she was too squeamish to enjoy what many people considered the best entertainment in town. She had no right to ruin Stan's evening. She tried to assume a casual interest in the impending events. "What are all these lines for?" she asked weakly, indicating the horizontal lines that crossed the inner pages and were bisected by three vertical lines into four columns of uneven width. "It looks like a ledger." "It is, sort of," Stan said. "Y'see, honey, this is a scorecard. In the first column, you put the name of the accused; in the second, the offense he's charged with; in the third, his plea; and in the fourth, the disposition of the case. Up here," he explained, showing her the appropriate place, "you fill in the name of the presiding magistrate. And here," he continued, "you put in the date. It makes a nice souvenir. If you fill it out right, you can look at it six months from now and remember all the fun, just as if it were happening all over again." "Fun?" Julie's voice cracked. "Sure!" Stan said with enthusiasm. "It's a terrific show! Everyone has a good time. Well, anyhow ..." and he chuckled, "everyone but the bums!" He laughed. A man in the row in front of them turned around and looked at Julie. Perspiration glistened in an oily film on his round, pudgy moon-face. A lewd grin twisted his mouth. "First timer?" he asked. Stan grinned back at him, sharing a comradeship of common experience. "Yeah. I kept telling her she didn't know what she was missing. Finally convinced her to give it a try. I've been here twice before, myself," he added proudly. "Yeah? Me too!" the man said. "Guess that makes us real old pros: third timers!" He laughed and mopped his face with a crumpled handkerchief. "Damn! it's hot in here!" Mild embarrassment and a violent dislike for the oily-skinned man combined to redden Julie's face in a hot blush. She shifted uncomfortably in her seat. "Y'know, I never thought of it before," Stan said to the man in front, "but now that you mention it, I don't know of anybody who's been here three times." A smile of accomplishment spread onto his face. "I'll bet I'm the first one in my sector!" A growing anger blended into Julie's feeling of disgust. "I don't see that it's anything to be proud of," she said coldly. Stan's laugh was a derisive bray. "She talks just like a first timer, doesn't she?" The man in front of them nodded knowingly, again sharing with Stan the common bond of experience. "The next thing you know," Stan jeered kiddingly, "she'll be preaching to us like one of those crackpot reformers." The revulsion that Julie felt must have been clearly evident now. Stan smiled fondly and put his arm around her shoulder. "I'm only kidding, honey," he half-apologized. "What's so wrong about the reformers?" Julie demanded, angrily shrugging away his arm. "Why shouldn't men be given another chance? What...?" "Men?" The man with the moon face burst into loud laughter. "Wait'll you see these bums, kid! They're not men, they're _things_!" "He's right, honey," Stan said. "These joes don't have any homes or jobs or families or friends. They don't even have ID cards." "No ID cards?" That was impossible! But Julie was beginning to learn that many impossible things could happen in a world that most citizens knew nothing about. "Then how can they be expected to get jobs? You've got to have an ID card in order to be assigned...." "That's the general idea, lady," someone nearby said in a loud voice. Several people laughed. "You don't wanna put the court out of business, do ya?" Julie's lips trembled as she opened her mouth to voice the word that shouted emphatically within her: yes! yes! "Here they come!" someone shouted, and excited conversation buzzed throughout the room. Julie's voice was never heard. She stared silently at the people near her, then turned to the front of the room to see what they were all watching so avidly. A straggling line of bedraggled, dirty, unshaven men shuffled into a wire enclosure set along the right wall of the courtroom. Crushed men--weary, lifeless, resigned to a life without hope--they filed into the pen and slumped onto the wooden benches that were placed lengthwise in three rows in the oblong cage. Their shoulders drooped in beaten curves. Their heads were bowed. The man in front turned around and nudged Julie's knee. His triumphant smile was an obscenity. "Call those men?" He laughed and winked at Stan, then turned back to the front of the court to watch the preliminary proceedings. An incipient convulsion crawled about in Julie's stomach. Her knee felt cold and clammy where the moon-faced man had touched it. Her skin was prickly and tight. She began to itch. "Get up, honey," Stan was saying. "Here comes the judge." She stood, numbly, her eyes riveted on the men in the wire enclosure. "Julie!" She felt a hand tugging at her arm. "You can sit down now, Julie," Stan said. "Sit down!" Mechanically, she sat down. Woodenly, she stared at the tableau before her--the judge perched on his elevated throne, the stone-faced attendants at each side of the dais, the wire pen filled with misery. Through the almost tangible excitement and glee of the spectators, the misery reached her, held her. * * * * * The court was in session: the people of the City of New York against ... against an assortment of outcasts--drunks, derelicts, cripples, beggars--the "undesirables" that had been rounded up by the police in the past twenty-four hours. The people of the City of New York against a pen full of men whose only crimes, for the most part, were sickness, lack of hope and failure to possess the ID cards which everyone needed and which, somehow, they had been denied. How? Julie wondered. How could anyone not have an ID? Even if you lost your card you could get a new one simply by paying a fine. Even if you had been in prison you got a new card when you were released. You had to have a card! Everyone had to.... A court attendant called out: "Garcia, Miguel!" and a small, dark-complexioned man walked out of the detention pen and stood meekly before the judge. The clerk of the court read the charge, rattling it off in the sing-song jargon of court clerks, his words slurred together into one almost unintelligible burst of sound. There was a pause, and silence in the courtroom. "Well?" said the magistrate, "how do you plead?" His voice sounded kindly. He sat high on his bench, hunched into his black robe, and looked down with apparent benignancy on the little man who stood silently before him. The audience was hushed. It watched hopefully and waited. Julie could sense the intense excitement in Stan as he leaned forward, straining to catch every detail of the scene, anxious not to miss a thing. She heard a giggle, then Stan's hearty laugh, then a loud burst of laughter. She opened her eyes. The defendant was shrugging his shoulders in bewilderment. He turned half-way around to look at the laughing audience, a sheepish grin on his face. The magistrate smiled his appreciation of the humorous response to his question. "So, you can't make up your mind?" he said in a seemingly friendly and sympathetic way. "Well, I'll tell you what I'll do, Miguel. I'll give you thirty days in the city's hotel to think it over." Laughter and applause filled the room. The judge nodded his head in a little bow of acknowledgement. Miguel Garcia was led away, still smiling, obviously ignorant of what was happening. Miguel Garcia apparently did not understand English. Stan was happily filling in the first line of his scorecard. His face was flushed. His eyes were bright. A satisfied smile lingered on his lips. "Stan, let's leave," Julie said. Stan laughed in disbelief. "Are you kidding? The fun's just starting." "Please, Stan. I ... I don't feel well." "Oh? I'm sorry, honey." It was a formality, like saying 'I beg your pardon' to a stranger you bump into in a crowd. There was no concern in Stan's voice. The second case was being presented, and his attention was rapt upon the clerk and the object of the proceedings, an old white haired derelict. "Stan, please!" Julie insisted. "Look, honey," Stan said impatiently, "we can't leave now, even if we wanted to. They don't give back the IDs until after it's all over." A sharp burst of laughter brought his attention abruptly back to the action up front. The old man had dropped his hat and an attendant had kicked it away from him. The white haired castoff shuffled across the room to retrieve it. "I missed something!" Stan said, testily. He turned to his neighbor and was hurriedly filled in on what had happened. "Well, _I'm_ leaving!" Julie said. She got up and edged her way out to the aisle. Stan made no protest. He was concentrating on the performance up front. Julie hurried up the aisle and pushed through the pack of people standing in the back of the room. She found the usher at the door. "I'd like to leave," she told the girl. "May I please have my ID?" The usher's face was expressionless, her voice efficiently official. "ID cards will be returned at the conclusion of the session." "But I want to leave now!" Julie protested. "I don't want to see any more of this!" "No cards can be returned until the session is concluded," the usher recited. It was a final decree of official policy. There could be no arguing, no appeal from the decision. There was no alternative but to abide by it. Julie returned to her seat. She squeezed past a barricade of knees, rousing disgruntled comments from several of the spectators. Stan glanced up at her as she settled back into the seat at his side. It was only a glance, and then his eyes were fixed once again on the magistrate, the attendants, and the "undesirable" being judged. * * * * * Minutes passed. Hours. Julie suffered the time in silence. She saw and heard, but could hardly believe, the unrestrained sadism of the giggling, laughing, applauding, cheering, jeering audience. What kind of people were these, who laughed at the pain and humiliation of others? What did they find amusing in the ruin of human life? They laughed when a partially paralyzed hunchback limped before the judge and pleaded guilty to a charge of ogling girls in a public park. They roared with hilarity when the magistrate suspended sentence and commented that a more appropriate charge would have been that of defacing public property. They applauded lustily when he said to the arresting officer, "Bring him in on that one tomorrow and I'll throw the book at him!" They laughed when an alcoholic appeared, twitching and brushing imaginary creatures from his torn jacket. They howled gleefully when he whimpered and sobbed like a small boy having a nightmare. They laughed when the magistrate said his fountain pen had run out of ink and, looking into the detention pen, inquired, "Would any of you blue bloods care to make a donation?" They laughed when a court attendant read a complaint which charged that the defendant, a small skinny man, had attacked the arresting officer, and that the officer (six-three, two hundred and ten pounds) had used reasonable force in defending himself. The man's broken arm was in a sling and bandages covered twelve stitches in his scalp. The audience laughed. They gloated. They sat in judgment of their fellow men and called for punishment--the more severe, the better. At last, the detention pen was empty. The last "undesirable" was brought before the bench. He was a small, pathetic looking man dressed in sailor's dungarees. He spoke Norwegian and clumsily tried to explain his predicament with the few words of English that he knew. "Stop gibbering!" the judge shouted at him. The magistrate's facade of kindliness had long since disappeared. He turned to the arresting officer. "Do you speak that language?" He made it sound like a disgrace to be able to speak Norwegian. The officer shook his head. "Neither do I," the magistrate said, with obvious pride that he was not contaminated by such knowledge. He arbitrarily ordered the man held until he learned to make himself understood; the hearing to take place when that had been accomplished. The sailor was led away. The Show was over. "That's the end of it, folks," the judge said, genially. He tapped his gavel and rose from his seat. The courtroom rang with lusty applause. The judge hurried through the door to his chambers and the applause died out. The people started to leave. Their animated discussions of the evening's events dinned through the room in a babble of noise. * * * * * Julie's head throbbed painfully and there was a queasy feeling in her stomach. She thirsted for fresh air. Slowly, the mob of spectators formed a procession in the aisle. Slowly, the column of people moved toward the exit. Slowly, slowly, Julie was pushed along with the crowd. The line paused as each person stopped at the door and waited until his ID card was located and returned to him. Then the procession would take another step forward. And pause again. And again. Occasionally, an ID could not be found and its owner was requested to step aside and allow the line to move on while the search for his card continued. And there was another step forward. Stan held Julie's hand to prevent the pressing crowd from separating them. "How'd you like it?" he asked. He was aglow with satisfaction, tired by the long evening's excitement but with a pleasant weariness of accomplishment. "It's a terrific show, isn't it?" Julie did not answer him. She wanted to break away and run and run and run and run! She inched along with the rest of the procession. At last they reached the door. They told the usher their names and she methodically checked through the cards in her file. The procession behind them waited. Julie's ID card was quickly found and returned to her, but the usher reported some difficulty in finding Stan's card. He was asked to step aside, please, and let the line go through. He protested at the inconvenience, then sullenly joined a few other people waiting for their cards in the rear of the court. Julie stood impatiently in the doorway. She watched Stan strike up a grumbling conversation with another detained person. It was the moon-faced man who had been sitting in front of them. For a fleeting moment she thought of the old adage about "birds of a feather". She waited. People filed past her in a steady stream, from the courtroom, across the lobby, out through the street door. Watching them--smiles and pleasant conversation, civilized small talk and serious debate of the merit of the evening's fare, as if it were a dramatic work of art. She clenched her teeth and prayed that Stan would hurry up. Soon the flow of people stopped. Still no Stan. Julie waited. Some twenty minutes later, an attendant came out of the courtroom. He went past Julie, then paused at the door, turned and came over to her. "Waiting for someone, miss?" "Yes. My friend. They seem to have misplaced his ID card." The attendant smiled and shook his head. "You might as well go on home, miss. If he's still in there, he won't be coming out for some time." "I'll wait," Julie said. "You don't understand, miss. He won't be out tonight." "What are you talking about? He's just waiting till they find his ID, and it couldn't have gotten up and...." "Seventeen IDs were lost," the attendant explained. "Those people in there can't get them back. They're going to have to go to Caracas or Milan to apply for new cards." "Don't be silly!" Julie scoffed. "You don't have to go to another city to apply for a new card! All you have to do is file a claim and pay the fine." "These are special cases," the attendant said uneasily. He seemed reluctant to talk about it. Julie frowned. "What's special about them? Their ID cards were lost, weren't they?" "Look, miss, all I know is every time an ID is lost in there," he nodded toward the courtroom, "they've gotta go out of the country to apply for a new one. That's all I can tell you." "But why out of the...?" "The reassignment orders are being drawn up right now," the attendant said. He led Julie to the street exit. "So you'd better go home and forget that fellow." Confusion and a vicarious fear made Julie shiver. "Will he ... will they get new cards?" The attendant shrugged. "They might--some day." He touched her arm. His voice was low, barely audible. "Was this your first time at the Show?" Julie nodded. "How did you like it?" "I ... I ..." She shook her head. The attendant smiled at her gently. "Don't ever be a third-timer." He released her arm and hurried away down the street. Julie puzzled over his parting remark as she went out into the foul smelling night and walked away from the courthouse. Suddenly, the street before her dimmed as the lights on the huge marquee blinked out. She turned and looked back at the entrance of the court, now dark and deserted. And then she understood. She remembered the moon-faced man's observation about the scarcity of third-timers. She understood how the "undesirables" lost their ID cards and why so many could not speak English. She understood the apparent cruelty of the sentences meted out to them, too. The answer was on the marquee. As she looked back at it, only the raised letters on the canopy were visible, shining luminously in the darkness: "_judge not, that ye be not judged_". And she recalled the quotation on the program: "_For with what judgement ye judge, ye shall be judged._" 
59505	----	sales resistance BY HENRY STILL _When Consumption means prosperity, when the Pulitzer Prize is awarded to advertising copy, when the Salesman is the most respected citizen in the land.... What chance has a non-consumer?_ [Transcriber's Note: This etext was produced from Worlds of If Science Fiction, August 1956. Extensive research did not uncover any evidence that the U.S. copyright on this publication was renewed.] On his way home from the concert, Perry Mansfield whistled a pleasant melody from an old Stravinsky classic. But then, troubled by his conscience and that of his psychiatrist, he stopped to study the program again. What was that modern symphony? Oh yes, "The Flivver". The music was supposed to have its roots in antiquity when someone started converting the metal wealth of the earth on an assembly line. Those screeching noises were drill presses and lathes and automatic hammers. The syrupy melody was the saintly salesman who disbursed the wealth of gadget and machine like melted butter across the bread of the land. Perry tried to like it. But he didn't. And that disturbed him. It meant his psychotherapy wasn't working. Dr. Stone would run him through the mechanical analyzer again and scold over the results. His simple act of walking home instead of riding an anti-gravity putterseat labeled him as a misfit. But it seemed silly to rent a flying stool just to travel two blocks. The fact was, he liked to walk. Perry sighed, discouraged, as he waited for the fluorescent scanner to identify his insides and open his front door. It opened. The lights came on. Recorded music, somewhat tuned to his mood, poured from concealed amplifiers. And then he noticed the note clipped to the door. His hand trembled as he took it down. The beautiful pastel gray of the enclosing envelope was an anachronism itself, and therefore marked unmistakably its almost priestly origin. The platinum engraved card inside said simply: _A Master Salesman has chosen you for his next call._ Perry placed the note carefully on a plastic table. He inhaled deeply and held it for a moment to steady his nerves. A _Master_ salesman. No one of that stature had ever called upon him before. It was an honor like--like a mayor or a bishop. It meant he had attained top level on the universal measuring stick--an A-number-1-plus-plus credit rating. The prospect should have saturated him with pleasure. But, like the sharp new music, it didn't. This card also meant he was expected to buy something. Something big and expensive. And he didn't want or need something big and expensive. He wished they'd leave him alone. Perry clapped his hand to his mouth as though someone might have heard the thought. What was wrong with him anyway? He wasn't a recluse. He _wanted_ to indulge and enjoy the polished luxury of his world. He _wanted_ to be conventional. He was young and handsome and tall and dark. He had a good job. He had a pleasant and comfortable legal arrangement with a girl in the next block. But truly, what he had was all he wanted. He glanced at the card on the table. He could always say _no_. It wouldn't be easy, but he could say _no_. Perry thumbed through the Pulitzer prize winning work for 2087 which had been delivered yesterday as part of his book club subscription. He had seen it already, of course, in a dozen magazines and a hundred copies of his facsimile newspaper. It was the advertising copy for Cor-T-Zan foundation garments. But he didn't need a corset and the spartan simplicity of the fragile, lovely words bored him. He switched on television. A phrenetic band was hammering out the new top jingle on the Hit Parade: _Tootsie gum, tootsie gum Ooh yum-yum, it's touched with rum; Love that girl with eyes so hot, TOOTSIE GUM hits the spot._ Perry switched off the set. He was alone. He could be honest with himself. The whole damned business irritated him. If he was out of step with the times, to hell with the times. Mr. Master Salesman didn't even say _when_ he would call. You were expected to sit on the edge of your chair, waiting for the great man to appear. Finally Perry decided what he'd do. He'd simply not open the door when the MS came knocking. Upon that decision, he slept well. * * * * * Sometime later he dreamed of frying bacon over an open fire in the woods, although he hadn't been out to the park in three years. When he opened his eyes, the sun was up. He still smelled bacon frying. Perry crawled out of bed, fumbled into his robe and followed his nose to the kitchen-bar. There, in his favorite chair, sat a handsomely-dressed, distinguished man with florid complexion, iron gray hair and a fashionable paunch. Strips of bacon were frying on the bright, spotless steel of the cooking shield. "How did you get in here?" Perry asked crossly. "Serve-All does all," his visitor said cryptically and smiled the smile that's known around the world. Perry would have no opportunity to shut out the Master Salesman. He was in. "You are Mr. Mansfield?" "Yes sir," Perry said, uncertain of decorum. "My name is Marlboro," the MS said in melodius tones. "Master is the proper term used in addressing us. Please sit down." "Yes, Master," Perry said. He felt like a fool and sat down. "Breakfast will be served in a few moments," Marlboro said. "I hope you don't mind, I examined your excellent library before you came in." He pulled a volume off the shelf. "This is a beautiful old first edition. Wherever did you find it?" It was Perry's copy of "Basic Sales Techniques" with Burton footnotes on vacuum cleaner sales charts for the last half of the 20th century. "I've read it, of course," Marlboro continued, "but I've never owned a copy." He caressed the dogeared cardboard cover. "Isn't it fantastic? In that barbaric century the customers sometimes refused to buy from our predecessors in the Guild. It seems impossible that anyone could have been so crude as to turn away one of those sturdy pioneers at the door." Perry shifted uncomfortably. He had been prepared to turn away one of the Great Men at _his_ door. "Ah!" Marlboro exclaimed. "Your bacon is ready, young man." At a flick of the salesman's finger, the golden strips of meat lifted into the air and floated to an absorbent mat on the table. Perry stared. Not a bubble of fat had fallen to the floor in passage. "How did you do that?" "Serve-All does all," the MS said coyly. "Mine doesn't," Perry said. "Of course not!" Marlboro moved deftly into the opening. "You need a new one." So he had tumbled for the first trap. Perry blushed and ate a piece of bacon. The Master hefted an object to the table top. It was a hemisphere about 18 inches in diameter, smooth and featureless except for a handle on the curved top. It was painted psychological green. "This is the _new_ Serve-All," Marlboro said glibly. "Notice its smooth unobtrusive shape. No working parts exposed, but inside is a mass of circuits and servos around a baby reactor ready to do everything for you." "The bacon," Perry persisted. "How?" He was aware that the first step in successful selling is to arouse curiosity. But he was confident he could refuse to buy, though it be contrary to convention and good taste. "Fingers of energy," the MS said. "Invisible, sensitive fingers of energy reach out of here--" He tapped the Serve-All dome. "--and they'll do anything that needs doing, at your mental command. Right now this one's tuned to me, but a minor adjustment will fit it to your personal needs. Here, let me show you something else." Perry felt a gentle, firm pressure on his left cheekbone. It moved down his cheeks, across his upper lip and up the other side. Then under his chin. Marlboro whipped out a pocket mirror. Perry had just been shaved. "See?" the Master beamed. "Wonderful isn't it?" Perry nodded. That was calculated to put him in a yes mood. While they talked the Serve-All cleared the breakfast clutter and cleaned the cooking shield without visible remains or waste. Marlboro pulled a contract pad out of his pocket. "I presume I can put you down for one of these." "I don't need it," Perry said. "My old one is good enough." "Ridiculous!" Marlboro said indignantly and then chuckled good-humoredly. "Oh, I see what you're doing. You're trying some of the old tricks from the 20th century. Well, I like a game of wits, too. Look what else this model will do." While Perry watched, the Serve-All repaired a broken knob on a plastic chest, cleaned the rug and etched a mural of a voluptuous nude on one blank wall. "If you'll excuse me," Perry murmured, "it's time for me to go to work." "Of course, of course," the Master laughed jovially. In rapid succession a comb dressed Perry's hair, his robe and pajamas were whisked off and his street clothes came floating out of the closet on more invisible fingers of energy. Before he knew it, he was ready for work. "I really must be going, too," Marlboro said, "if you'll just sign here." "How much is it?" The Master Salesman sighed. "You're really very difficult. It's $9,785, plus tax." "I can't afford it." "Now, Mr. Mansfield. A joke's a joke. If your credit rating wasn't the finest, I wouldn't be here. I know, and you know, your income is mortgaged for only 15 more years and your life expectancy is at least 50." Perry moved uneasily toward the bathroom. An invisible finger of energy opened the door for him. "If you don't mind," he said angrily, "this is something I'm quite capable of doing for myself." He slammed the door. But the Serve-All flushed the toilet for him. When he emerged, Marlboro's patience also was gone. "Sign," he said firmly. "I don't want it." "Young man," the Master said thinly. "You don't realize what dangerous ground you're on. If you do not cease this rudeness at once, I'll report you to the council." "Report and be damned! I don't need your gadget and I'm not going to buy it. Now get out!" Marlboro was blue with rage. He backed uncertainly toward the door and stopped. "This borders on sacrilege," he whispered. "You'll hear from me again. Soon." Perry slammed that door, too, and walked jauntily to work. * * * * * He heard from the Master Salesman again--exactly two hours later. The message tube delivered a summons ordering him into City Court. That afternoon. Perry went. He had never been in court before. He was frightened and regretful that he had been so abrupt with Marlboro. But he resented the invasion of his privacy and to bolster his courage, he built that anger into a fair rage by the time he reached the courtroom. Marlboro was there. A judge was there. And on each of two tables squatted a metal box with voice tubes. A bailiff guided him to his table and placed the voice tube in his hand. "You're late Mr. Mansfield," the judge snapped. "Justice must be swift and you're impeding it." He lifted a printed card and scanned it near-sightedly for a moment. "You're here charged with violating the public interest by failing to purchase an item which you are able to consume and which you can afford to buy." "There's no law against--" Perry began indignantly. "Don't tell me your troubles, young man," the judge interrupted. "That's what your lawyer's for." His gesture indicated the metal box. Perry held the voice tube dumbly. The bailiff leaned over his shoulder. "You tell your side of the story in there," he whispered. Marlboro was muttering rapidly and at great length into his "lawyer." Perry did likewise, relating all he could remember of the morning fiasco. When he finished, the machine whirred, whistled and harrumphed twice before spewing out several yards of perforated tape. The plaintiff's counsel did the same, except the tape was longer. "Now Mr. Bailiff," the judge said, "you may bring in the jury." Perry was no longer surprised when the jury was rolled in. It was a large gray analog computor mounted on wheels. The judge stepped down from the bench and fed in the two conflicting tapes. The jury digested the information noisily. "It's an old model," the judge apologized, but just then a white card popped out on a small metal tray. The bailiff delivered it to the judge. He studied the card. Perry's heart thumped painfully during the calculated period of suspense. "As you attempted to inform the court earlier, Mr. Mansfield," the judge said somberly, "there is no law in the land which forces you to buy any item from our distinguished colleagues of distribution." Perry's heart brightened and he slid back from the edge of the chair. "However," the judge peered down, "it has been held by many courts that when the public interest is to be served by the individual purchase of a piece of merchandise which that individual can consume and which that individual is able to buy without financial hardship, then that individual _must_ sacrifice his emotional reluctance to the good of society." The jurist paused thoughtfully. "I think, Mr. Mansfield, that you should relearn the basic tenets of our society and economy. First, Consumption is Prosperity and that derives from the ancient law of Supply and Demand. S & D means, in simple terms, that when there is a supply of something, a demand must be created to consume it. That is why we have Master Salesmen. That is why they are the staunchest and most highly-respected citizens in our land." He bowed to Marlboro who assumed a benevolent smile. "This court decrees," the judge said sternly, "that you are to purchase an item known as the 2087 Serve-All from Master Salesman Marlboro and customary steps will be taken to attach your future salary to satisfy the stipulated payment schedule. Court dismissed." Perry was too stunned to move. His petty rebellion had collapsed into a pot of embarrassment. He was vaguely aware of Marlboro shaking his hand with a moist, jovial palm. "No hard feelings, young man," the MS said. "It was really quite interesting. I haven't had a case like this in five years." The condescension stirred Perry's anger again. "I demand an appeal!" The judge was leaving the bench, but he turned back. "Appeal bond is $2000." "No appeal," Perry said glumly. * * * * * He walked home. The 2087 Serve-All was there waiting for him, in the middle of his living room floor. Marlboro had tied a gay red ribbon around it to cheer him. He wasn't cheered. The thing must have been delivered even while he was in court. There had never been a doubt that he would lose the case. Rage began to crawl its acid path through his stomach again. The Serve-All was tuned to him now. It removed his hat and coat and put them in the closet. It loosened his tie, patted a sofa cushion to his shape and brought him a drink. Perry might just possibly have adjusted to the situation, but the Serve-All was over anxious. He liked to sip a drink. But when he lifted the glass to his lips, an invisible finger of energy pushed helpfully on the bottom. Perry strangled. When he recovered, his rage had crystallized in a definite course of action. He looked at the Serve-All and he looked at his hands. Not enough. He needed something much more. His memory of history recalled such items as an axe and a sledge hammer, but such no longer existed. But the plastic table had legs of substantial heft. A low growl rose in his throat as he grabbed the table and ripped it to pieces. The dismayed Serve-All scuttled across the room to repair the damage. Perry fended it off with his new club and then smashed downward, again and again, delighting in the screech of crushed metal and the tinkling death of transistors, vacuum tubes and servos. At the center was the tiny reactor box, but that was of solid lead and steel, that, fortunately, was virtually impervious for radiation safety. But he didn't care. It was also inert and needn't be destroyed. So Perry was free; as free as an aging husband who has just dispatched his jaded wife. He sang a little and danced around the shattered scraps of plastic and wire and metal. Then he heard the plaintive bleating beep of sound issuing from the central core of the Serve-All. He bent over it and read engraved lettering on the steel: "Central Registry No. C187-D69." Good God! Any idiot would know that every piece of equipment was centrally registered and carried a built-in signal to summon repair machinery. And destruction of mortgaged property was a criminal offense. So what now? Escape? Escape! He must be out of the house when the repair machine arrived. He must run and keep running, from the law and the Master Salesman and Serve-All, Inc. How much time did he have? Not more than a few minutes for the smooth central machinery to reach across the city to him; machinery which even now was on its way to rescue a damaged brother. Perry snatched his coat from the closet and ran to the door. Food. If he would hide from the methodical meat grinder of society, he must have food to live. He raced to the kitchen bar. There was food there, but he didn't know how to get at it. He had never before needed to do more than dial up portions for a meal, but he must have food in containers, food that would not spoil while he conserved his life on its dwindling supply. He ripped open a locked panel on the wall. There was food. But the large containers were locked in place. He clawed at the metal, but only tore his flesh and dripped blood on the immaculate counter top. The club he had used on the Serve-All! He recovered the plastic bludgeon and went to work. Five minutes later he had dislodged two of the large tins. One said _beans_; the other said _meat_. _Beans_ dripped a trail of juice across the floor as he ran to the door. He threw it open. A repair robot scuttled in and knocked him sprawling on the living room floor. Perry stared wildly at the mechanical beast. It hummed anxiously, retrieving bits of wreckage like a mother bird repairing a broken egg. Mansfield belly-crawled stealthily back toward the door. He might make it yet. The robot probably wasn't geared for cop duty. But the door was blocked. Perry looked up past the knees and the belted paunch to the face. It was Master Marlboro. Perry rose wearily to his feet and dropped the tins of food to the floor. "All right," he said, "I give up." "Really, Mr. Mansfield," Marlboro's lips curled with delicate disgust. "Isn't this a childish way to treat a beautiful machine?" "What will you do with me?" The MS didn't answer. He pulled a contract pad out of his pocket and started writing. "You mean you're going to sell me another one?" Marlboro shoved the pad in his hand. "I'm quite sure you'll sign this one," he said firmly. Perry read the sales contract: _For standard consideration, this entitles one Perry Mansfield to all required services and exclusive use of private quarters in Airy Hills Sanatarium._ Perry signed. 
10613	----	THE THEORY OF SOCIAL REVOLUTIONS BY BROOKS ADAMS 1913 PREFATORY NOTE The first chapter of the following book was published, in substantially its present form, in the _Atlantic Monthly_ for April, 1913. I have to thank the editor for his courtesy in assenting to my wish to reprint. The other chapters have not appeared before. I desire also to express my obligations to my learned friend, Dr. M.M. Bigelow, who, most kindly, at my request, read chapters two and three, which deal with the constitutional law, and gave me the benefit of his most valuable criticism. Further than this I have but one word to add. I have written in support of no political movement, nor for any ephemeral purpose. I have written only to express a deep conviction which is the result of more than twenty years of study, and reflection upon this subject. BROOKS ADAMS. QUINCY, MASSACHUSETTS, May 17, 1913. CONTENTS I. THE COLLAPSE OF CAPITALISTIC GOVERNMENT II. THE LIMITATIONS OF THE JUDICIAL FUNCTION III. AMERICAN COURTS AS LEGISLATIVE CHAMBERS IV. THE SOCIAL EQUILIBRIUM V. POLITICAL COURTS VI. INFERENCES INDEX [not included in this etext] THE THEORY OF SOCIAL REVOLUTIONS CHAPTER I THE COLLAPSE OF CAPITALISTIC GOVERNMENT Civilization, I apprehend, is nearly synonymous with order. However much we may differ touching such matters as the distribution of property, the domestic relations, the law of inheritance and the like, most of us, I should suppose, would agree that without order civilization, as we understand it, cannot exist. Now, although the optimist contends that, since man cannot foresee the future, worry about the future is futile, and that everything, in the best possible of worlds, is inevitably for the best, I think it clear that within recent years an uneasy suspicion has come into being that the principle of authority has been dangerously impaired, and that the social system, if it is to cohere, must be reorganized. So far as my observation has extended, such intuitions are usually not without an adequate cause, and if there be reason for anxiety anywhere, it surely should be in the United States, with its unwieldy bulk, its heterogeneous population, and its complex government. Therefore, I submit, that an hour may not be quite wasted which is passed in considering some of the recent phenomena which have appeared about us, in order to ascertain if they can be grouped together in any comprehensible relation. About a century ago, after, the American and French Revolutions and the Napoleonic wars, the present industrial era opened, and brought with it a new governing class, as every considerable change in human environment must bring with it a governing class to give it expression. Perhaps, for lack of a recognized name, I may describe this class as the industrial capitalistic class, composed in the main of administrators and bankers. As nothing in the universe is stationary, ruling classes have their rise, culmination, and decline, and I conjecture that this class attained to its acme of popularity and power, at least in America, toward the close of the third quarter of the nineteenth century. I draw this inference from the fact that in the next quarter resistance to capitalistic methods began to take shape in such legislation as the Interstate Commerce Law and the Sherman Act, and almost at the opening of the present century a progressively rigorous opposition found for its mouthpiece the President of the Union himself. History may not be a very practical study, but it teaches some useful lessons, one of which is that nothing is accidental, and that if men move in a given direction, they do so in obedience to an impulsion as automatic as is the impulsion of gravitation. Therefore, if Mr. Roosevelt became, what his adversaries are pleased to call, an agitator, his agitation had a cause which is as deserving of study as is the path of a cyclone. This problem has long interested me, and I harbor no doubt not only that the equilibrium of society is very rapidly shifting, but that Mr. Roosevelt has, half-automatically, been stimulated by the instability about him to seek for a new centre of social gravity. In plain English, I infer that he has concluded that industrialism has induced conditions which can no longer be controlled by the old capitalistic methods, and that the country must be brought to a level of administrative efficiency competent to deal with the strains and stresses of the twentieth century, just as, a hundred and twenty-five years ago, the country was brought to an administrative level competent for that age, by the adoption of the Constitution. Acting on these premises, as I conjecture, whether consciously worked out or not, Mr. Roosevelt's next step was to begin the readjustment; but, I infer, that on attempting any correlated measures of reform, Mr. Roosevelt found progress impossible, because of the obstruction of the courts. Hence his instinct led him to try to overleap that obstruction, and he suggested, without, I suspect, examining the problem very deeply, that the people should assume the right of "recalling" judicial decisions made in causes which involved the nullifying of legislation. What would have happened had Mr. Roosevelt been given the opportunity to thoroughly formulate his ideas, even in the midst of an election, can never be known, for it chanced that he was forced to deal with subjects as vast and complex as ever vexed a statesman or a jurist, under difficulties at least equal to the difficulties of the task itself. If the modern mind has developed one characteristic more markedly than another, it is an impatience with prolonged demands on its attention, especially if the subject be tedious. No one could imagine that the New York press of to-day would print the disquisitions which Hamilton wrote in 1788 in support of the Constitution, or that, if it did, any one would read them, least of all the lawyers; and yet Mr. Roosevelt's audience was emotional and discursive even for a modern American audience. Hence, if he attempted to lead at all, he had little choice but to adopt, or at least discuss, every nostrum for reaching an immediate millennium which happened to be uppermost; although, at the same time, he had to defend himself against an attack compared with which any criticism to which Hamilton may have been subjected resembled a caress. The result has been that the Progressive movement, bearing Mr. Roosevelt with it, has degenerated into a disintegrating rather than a constructive energy, which is, I suspect, likely to become a danger to every one interested in the maintenance of order, not to say in the stability of property. Mr. Roosevelt is admittedly a strong and determined man whose instinct is arbitrary, and yet, if my analysis be sound, we see him, at the supreme moment of his life, diverted from his chosen path toward centralization of power, and projected into an environment of, apparently, for the most part, philanthropists and women, who could hardly conceivably form a party fit to aid him in establishing a vigorous, consolidated, administrative system. He must have found the pressure toward disintegration resistless, and if we consider this most significant phenomenon, in connection with an abundance of similar phenomena, in other countries, which indicate social incoherence, we can hardly resist a growing apprehension touching the future. Nor is that apprehension allayed if, to reassure ourselves, we turn to history, for there we find on every side long series of precedents more ominous still. Were all other evidence lacking, the inference that radical changes are at hand might be deduced from the past. In the experience of the English-speaking race, about once in every three generations a social convulsion has occurred; and probably such catastrophes must continue to occur in order that laws and institutions may be adapted to physical growth. Human society is a living organism, working mechanically, like any other organism. It has members, a circulation, a nervous system, and a sort of skin or envelope, consisting of its laws and institutions. This skin, or envelope, however, does not expand automatically, as it would had Providence intended humanity to be peaceful, but is only fitted to new conditions by those painful and conscious efforts which we call revolutions. Usually these revolutions are warlike, but sometimes they are benign, as was the revolution over which General Washington, our first great "Progressive," presided, when the rotting Confederation, under his guidance, was converted into a relatively excellent administrative system by the adoption of the Constitution. Taken for all in all, I conceive General Washington to have been the greatest man of the eighteenth century, but to me his greatness chiefly consists in that balance of mind which enabled him to recognize when an old order had passed away, and to perceive how a new order could be best introduced. Joseph Story was ten years old in 1789 when the Constitution was adopted; his earliest impressions, therefore, were of the Confederation, and I know no better description of the interval just subsequent to the peace of 1783, than is contained in a few lines in his dissenting opinion in the Charles River Bridge Case:-- "In order to entertain a just view of this subject, we must go back to that period of general bankruptcy, and distress and difficulty (1785).... The union of the States was crumbling into ruins, under the old Confederation. Agriculture, manufactures, and commerce were at their lowest ebb. There was infinite danger to all the States from local interests and jealousies, and from the apparent impossibility of a much longer adherence to that shadow of a government, the Continental Congress. And even four years afterwards, when every evil had been greatly aggravated, and civil war was added to other calamities, the Constitution of the United States was all but shipwrecked in passing through the state conventions."[1] This crisis, according to my computation, was the normal one of the third generation. Between 1688 and 1765 the British Empire had physically outgrown its legal envelope, and the consequence was a revolution. The thirteen American colonies, which formed the western section of the imperial mass, split from the core and drifted into chaos, beyond the constraint of existing law. Washington was, in his way, a large capitalist, but he was much more. He was not only a wealthy planter, but he was an engineer, a traveller, to an extent a manufacturer, a politician, and a soldier, and he saw that, as a conservative, he must be "Progressive" and raise the law to a power high enough to constrain all these thirteen refractory units. For Washington understood that peace does not consist in talking platitudes at conferences, but in organizing a sovereignty strong enough to coerce its subjects. The problem of constructing such a sovereignty was the problem which Washington solved, temporarily at least, without violence. He prevailed not only because of an intelligence and elevation of character which enabled him to comprehend, and to persuade others, that, to attain a common end, all must make sacrifices, but also because he was supported by a body of the most remarkable men whom America has ever produced. Men who, though doubtless in a numerical minority, taking the country as a whole, by sheer weight of ability and energy, achieved their purpose. Yet even Washington and his adherents could not alter the limitations of the human mind. He could postpone, but he could not avert, the impact of conflicting social forces. In 1789 he compromised, but he did not determine the question of sovereignty. He eluded an impending conflict by introducing courts as political arbitrators, and the expedient worked more or less well until the tension reached a certain point. Then it broke down, and the question of sovereignty had to be settled in America, as elsewhere, on the field of battle. It was not decided until Appomattox. But the function of the courts in American life is a subject which I shall consider hereafter. If the invention of gunpowder and printing in the fourteenth and fifteenth centuries presaged the Reformation of the sixteenth, and if the Industrial Revolution of the eighteenth was the forerunner of political revolutions throughout the Western World, we may well, after the mechanical and economic cataclysm of the nineteenth, cease wondering that twentieth-century society should be radical. Never since man first walked erect have his relations toward nature been so changed, within the same space of time, as they have been since Washington was elected President and the Parisian mob stormed the Bastille. Washington found the task of a readjustment heavy enough, but the civilization he knew was simple. When Washington lived, the fund of energy at man's disposal had not very sensibly augmented since the fall of Rome. In the eighteenth, as in the fourth century, engineers had at command only animal power, and a little wind and water power, to which had been added, at the end of the Middle Ages, a low explosive. There was nothing in the daily life of his age which made the legal and administrative principles which had sufficed for Justinian insufficient for him. Twentieth-century society rests on a basis not different so much in degree, as in kind, from all that has gone before. Through applied science infinite forces have been domesticated, and the action of these infinite forces upon finite minds has been to create a tension, together with a social acceleration and concentration, not only unparalleled, but, apparently, without limit. Meanwhile our laws and institutions have remained, in substance, constant. I doubt if we have developed a single important administrative principle which would be novel to Napoleon, were he to live again, and I am quite sure that we have no legal principle younger than Justinian. As a result, society has been squeezed, as it were, from its rigid eighteenth-century legal shell, and has passed into a fourth dimension of space, where it performs its most important functions beyond the cognizance of the law, which remains in a space of but three dimensions. Washington encountered a somewhat analogous problem when dealing with the thirteen petty independent states, which had escaped from England; but his problem was relatively rudimentary. Taking the theory of sovereignty as it stood, he had only to apply it to communities. It was mainly a question of concentrating a sufficient amount of energy to enforce order in sovereign social units. The whole social detail remained unchanged. Our conditions would seem to imply a very considerable extension and specialization of the principle of sovereignty, together with a commensurate increment of energy, but unfortunately the twentieth-century American problem is still further complicated by the character of the envelope in which this highly volatilized society is theoretically contained. To attain his object, Washington introduced a written organic law, which of all things is the most inflexible. No other modern nation has to consider such an impediment. Moneyed capital I take to be stored human energy, as a coal measure is stored solar energy; and moneyed capital, under the stress of modern life, has developed at once extreme fluidity, and an equivalent compressibility. Thus a small number of men can control it in enormous masses, and so it comes to pass that, in a community like the United States, a few men, or even, in certain emergencies, a single man, may become clothed with various of the attributes of sovereignty. Sovereign powers are powers so important that the community, in its corporate capacity, has, as society has centralized, usually found it necessary to monopolize them more or less absolutely, since their possession by private persons causes revolt. These powers, when vested in some official, as, for example, a king or emperor, have been held by him, in all Western countries at least, as a trust to be used for the common welfare. A breach of that trust has commonly been punished by deposition or death. It was upon a charge of breach of trust that Charles I, among other sovereigns, was tried and executed. In short, the relation of sovereign and subject has been based either upon consent and mutual obligation, or upon submission to a divine command; but, in either case, upon recognition of responsibility. Only the relation of master and slave implies the status of sovereign power vested in an unaccountable superior. Nevertheless, it is in a relation somewhat analogous to the latter, that the modern capitalist has been placed toward his fellow citizens, by the advances in applied science. An example or two will explain my meaning. High among sovereign powers has always ranked the ownership and administration of highways. And it is evident why this should have been so. Movement is life, and the stoppage of movement is death, and the movement of every people flows along its highways. An invader has only to cut the communications of the invaded to paralyze him, as he would paralyze an animal by cutting his arteries or tendons. Accordingly, in all ages and in all lands, down to the nineteenth century, nations even partially centralized have, in their corporate capacity, owned and cared for their highways, either directly or through accountable agents. And they have paid for them by direct taxes, like the Romans, or by tolls levied upon traffic, as many mediaeval governments preferred to do. Either method answers its purpose, provided the government recognizes its responsibility; and no government ever recognized this responsibility more fully than did the autocratic government of ancient Rome. So the absolute régime of eighteenth-century France recognized this responsibility when Louis XVI undertook to remedy the abuse of unequal taxation, for the maintenance of the highways, by abolishing the corvée. Toward the middle of the nineteenth century, the application, by science, of steam to locomotion, made railways a favorite speculation. Forthwith, private capital acquired these highways, and because of the inelasticity of the old law, treated them as ordinary chattels, to be administered for the profit of the owner exclusively. It is true that railway companies posed as public agents when demanding the power to take private property; but when it came to charging for use of their ways, they claimed to be only private carriers, authorized to bargain as they pleased. Indeed, it grew to be considered a mark of efficient railroad management to extract the largest revenue possible from the people, along the lines of least resistance; that is, by taxing most heavily those individuals and localities which could least resist. And the claim by the railroads that they might do this as a matter of right was long upheld by the courts,[2] nor have the judges even yet, after a generation of revolt and of legislation, altogether abandoned this doctrine. The courts--reluctantly, it is true, and principally at the instigation of the railways themselves, who found the practice unprofitable--have latterly discountenanced discrimination as to persons, but they still uphold discrimination as to localities.[3] Now, among abuses of sovereign power, this is one of the most galling, for of all taxes the transportation tax is perhaps that which is most searching, most insidious, and, when misused, most destructive. The price paid for transportation is not so essential to the public welfare as its equality; for neither persons nor localities can prosper when the necessaries of life cost them more than they cost their competitors. In towns, no cup of water can be drunk, no crust of bread eaten, no garment worn, which has not paid the transportation tax, and the farmer's crops must rot upon his land, if other farmers pay enough less than he to exclude him from markets toward which they all stand in a position otherwise equal. Yet this formidable power has been usurped by private persons who have used it purely selfishly, as no legitimate sovereign could have used it, and by persons who have indignantly denounced all attempts to hold them accountable, as an infringement of their constitutional rights. Obviously, capital cannot assume the position of an irresponsible sovereign, living in a sphere beyond the domain of law, without inviting the fate which has awaited all sovereigns who have denied or abused their trust. The operation of the New York Clearing-House is another example of the acquisition of sovereign power by irresponsible private persons. Primarily, of course, a clearing-house is an innocent institution occupied with adjusting balances between banks, and has no relation to the volume of the currency. Furthermore, among all highly centralized nations, the regulation of the currency is one of the most jealously guarded of the prerogatives of sovereignty, because all values hinge upon the relation which the volume of the currency bears to the volume of trade. Yet, as everybody knows, in moments of financial panic, the handful of financiers who, directly or indirectly, govern the Clearing-House, have it in their power either to expand or to contract the currency, by issuing or by withdrawing Clearing-House certificates, more effectually perhaps than if they controlled the Treasury of the United States. Nor does this power, vast as it is, at all represent the supremacy which a few bankers enjoy over values, because of their facilities for manipulating the currency and, with the currency, credit; facilities, which are used or abused entirely beyond the reach of the law. Bankers, at their conventions and through the press, are wont to denounce the American monetary system, and without doubt all that they say, and much more that they do not say, is true; and yet I should suppose that there could be little doubt that American financiers might, after the panic of 1893, and before the administration of Mr. Taft, have obtained from Congress, at most sessions, very reasonable legislation, had they first agreed upon the reforms they demanded, and, secondly, manifested their readiness, as a condition precedent to such reforms, to submit to effective government supervision in those departments of their business which relate to the inflation or depression of values. They have shown little inclination to submit to restraint in these particulars, nor, perhaps, is their reluctance surprising, for the possession by a very small favored class of the unquestioned privilege, whether actually used or not, at recurring intervals, of subjecting the debtor class to such pressure as the creditor may think necessary, in order to force the debtor to surrender his property to the creditor at the creditor's price, is a wonder beside which Aladdin's lamp burns dim. As I have already remarked, I apprehend that sovereignty is a variable quantity of administrative energy, which, in civilizations which we call advancing, tends to accumulate with a rapidity proportionate to the acceleration of movement. That is to say, the community, as it consolidates, finds it essential to its safety to withdraw, more or less completely, from individuals, and to monopolize, more or less strictly, itself, a great variety of functions. At one stage of civilization the head of the family administers justice, maintains an armed force for war or police, wages war, makes treaties of peace, coins money, and, not infrequently, wears a crown, usually of a form to indicate his importance in a hierarchy. At a later stage of civilization, companies of traders play a great part. Such aggregations of private and irresponsible adventurers have invaded and conquered empires, founded colonies, and administered justice to millions of human beings. In our own time, we have seen the assumption of many of the functions of these and similar private companies by the sovereign. We have seen the East India Company absorbed by the British Parliament; we have seen the railways, and the telephone and the telegraph companies, taken into possession, very generally, by the most progressive governments of the world; and now we have come to the necessity of dealing with the domestic-trade monopoly, because trade has fallen into monopoly through the centralization of capital in a constantly contracting circle of ownership. Among innumerable kinds of monopolies none have been more troublesome than trade monopolies, especially those which control the price of the necessaries of life; for, so far as I know, no people, approximately free, have long endured such monopolies patiently. Nor could they well have done so without constraint by overpowering physical force, for the possession of a monopoly of a necessary of life by an individual, or by a small privileged class, is tantamount to investing a minority, contemptible alike in numbers and in physical force, with an arbitrary and unlimited power to tax the majority, not for public, but for private purposes. Therefore it has not infrequently happened that persistence in adhering to and in enforcing such monopolies has led, first, to attempts at regulation, and, these failing, to confiscation, and sometimes to the proscription of the owners. An example of such a phenomenon occurs to me which, just now, seems apposite. In the earlier Middle Ages, before gunpowder made fortified houses untenable when attacked by the sovereign, the highways were so dangerous that trade and manufactures could only survive in walled towns. An unarmed urban population had to buy its privileges, and to pay for these a syndicate grew up in each town, which became responsible for the town ferm, or tax, and, in return, collected what part of the municipal expenses it could from the poorer inhabitants. These syndicates, called guilds, as a means of raising money, regulated trade and fixed prices, and they succeeded in fixing prices because they could prevent competition within the walls. Presently complaints became rife of guild oppression, and the courts had to entertain these complaints from the outset, to keep some semblance of order; but at length the turmoil passed beyond the reach of the courts, and Parliament intervened. Parliament not only enacted a series of statutes regulating prices in towns, but supervised guild membership, requiring trading companies to receive new members upon what Parliament considered to be reasonable terms. Nevertheless, friction continued. With advances in science, artillery improved, and, as artillery improved, the police strengthened until the king could arrest whom he pleased. Then the country grew safe and manufactures migrated from the walled and heavily taxed towns to the cheap, open villages, and from thence undersold the guilds. As the area of competition broadened, so the guilds weakened, until, under Edward VI, being no longer able to defend themselves, they were ruthlessly and savagely plundered; and fifty years later the Court of King's Bench gravely held that a royal grant of a monopoly had always been bad at common law.[4] Though the Court's law proved to be good, since it has stood, its history was fantastic; for the trade-guild was the offspring of trade monopoly, and a trade monopoly had for centuries been granted habitually by the feudal landlord to his tenants, and indeed was the only means by which an urban population could finance its military expenditure. Then, in due course, the Crown tried to establish its exclusive right to grant monopolies, and finally Parliament--or King, Lords, and Commons combined, being the whole nation in its corporate capacity, --appropriated this monopoly of monopolies as its supreme prerogative. And with Parliament this monopoly has ever since remained. In fine, monopolies, or competition in trade, appear to be recurrent social phases which depend upon the ratio which the mass and the fluidity of capital, or, in other words, its energy, bears to the area within which competition is possible. In the Middle Ages, when the town walls bounded that area, or when, at most, it was restricted to a few lines of communication between defensible points garrisoned by the monopolists,--as were the Staple towns of England which carried on the wool trade with the British fortified counting-houses in Flanders,--a small quantity of sluggish capital sufficed. But as police improved, and the area of competition broadened faster than capital accumulated and quickened, the competitive phase dawned, whose advent is marked by Darcy _v_. Allein, decided in the year 1600. Finally, the issue between monopoly and free trade was fought out in the American Revolution, for the measure which precipitated hostilities was the effort of England to impose her monopoly of the Eastern trade upon America. The Boston Tea Party occurred on December 16, 1773. Then came the heyday of competition with the acceptance of the theories of Adam Smith, and the political domination in England, towards 1840, of the Manchester school of political economy. About forty years since, in America at least, the tide would appear once more to have turned. I fix the moment of flux, as I am apt to do, by a lawsuit. This suit was the Morris Run Coal Company _v._ Barclay Coal Company,[5] which is the first modern anti-monopoly litigation that I have met with in the United States. It was decided in Pennsylvania in 1871; and since 1871, while the area within which competition is possible has been kept constant by the tariff, capital has accumulated and has been concentrated and volatilized until, within this republic, substantially all prices are fixed by a vast moneyed mass. This mass, obeying what amounts to being a single volition, has its heart in Wall Street, and pervades every corner of the Union. No matter what price is in question, whether it be the price of meat, or coal, or cotton cloth, or of railway transportation, or of insurance, or of discounts, the inquirer will find the price to be, in essence, a monopoly or fixed price; and if he will follow his investigation to the end, he will also find that the first cause in the complex chain of cause and effect which created the monopoly in that mysterious energy which is enthroned on the Hudson. The presence of monopolistic prices in trade is not always a result of conscious agreement; more frequently, perhaps, it is automatic, and is an effect of the concentration of capital in a point where competition ceases, as when all the capital engaged in a trade belongs to a single owner. Supposing ownership to be enough restricted, combination is easier and more profitable than competition; therefore combination, conscious or unconscious, supplants competition. The inference from the evidence is that, in the United States, capital has reached, or is rapidly reaching, this point of concentration; and if this be true, competition cannot be enforced by legislation. But, assuming that competition could still be enforced by law, the only effect would be to make the mass of capital more homogeneous by eliminating still further such of the weaker capitalists as have survived. Ultimately, unless indeed society is to dissolve and capital migrate elsewhere, all the present phenomena would be intensified. Nor would free trade, probably, have more than a very transitory effect. In no department of trade is competition freer than in the Atlantic passenger service, and yet in no trade is there a stricter monopoly price. The same acceleration of the social movement which has caused this centralization of capital has caused the centralization of another form of human energy, which is its negative: labor unions organize labor as a monopoly. Labor protests against the irresponsible sovereignty of capital, as men have always protested against irresponsible sovereignty, declaring that the capitalistic social system, as it now exists, is a form of slavery. Very logically, therefore, the abler and bolder labor agitators proclaim that labor levies actual war against society, and that in that war there can be no truce until irresponsible capital has capitulated. Also, in labor's methods of warfare the same phenomena appear as in the autocracy of capital. Labor attacks capitalistic society by methods beyond the purview of the law, and may, at any moment, shatter the social system; while, under our laws and institutions, society is helpless. Few persons, I should imagine, who reflect on these phenomena, fail to admit to themselves, whatever they may say publicly, that present social conditions are unsatisfactory, and I take the cause of the stress to be that which I have stated. We have extended the range of applied science until we daily use infinite forces, and those forces must, apparently, disrupt our society, unless we can raise the laws and institutions which hold society together to an energy and efficiency commensurate to them. How much vigor and ability would be required to accomplish such a work may be measured by the experience of Washington, who barely prevailed in his relatively simple task, surrounded by a generation of extraordinary men, and with the capitalistic class of America behind him. Without the capitalistic class he must have failed. Therefore one most momentous problem of the future is the attitude which capital can or will assume in this emergency. That some of the more sagacious of the capitalistic class have preserved that instinct of self-preservation which was so conspicuous among men of the type of Washington, is apparent from the position taken by the management of the United States Steel Company, and by the Republican minority of the Congressional Committee which recently investigated the Steel Company; but whether such men very strongly influence the genus to which they belong is not clear. If they do not, much improvement in existing conditions can hardly be anticipated. If capital insists upon continuing to exercise sovereign powers, without accepting responsibility as for a trust, the revolt against the existing order must probably continue, and that revolt can only be dealt with, as all servile revolts must be dealt with, by physical force. I doubt, however, if even the most ardent and optimistic of capitalists would care to speculate deeply upon the stability of any government capital might organize, which rested on the fundamental principle that the American people must be ruled by an army. On the other hand any government to be effective must be strong. It is futile to talk of keeping peace in labor disputes by compulsory arbitration, if the government has not the power to command obedience to its arbitrators' decree; but a government able to constrain a couple of hundred thousand discontented railway employees to work against their will, must differ considerably from the one we have. Nor is it possible to imagine that labor will ever yield peaceful obedience to such constraint, unless capital makes equivalent concessions,--unless, perhaps, among other things, capital consents to erect tribunals which shall offer relief to any citizen who can show himself to be oppressed by the monopolistic price. In fine, a government, to promise stability in the future, must apparently be so much more powerful than any private interest, that all men will stand equally before its tribunals; and these tribunals must be flexible enough to reach those categories of activity which now lie beyond legal jurisdiction. If it be objected that the American people are incapable of an effort so prodigious, I readily admit that this may be true, but I also contend that the objection is beside the issue. What the American people can or cannot do is a matter of opinion, but that social changes are imminent appears to be almost certain. Though these changes cannot be prevented, possibly they may, to a degree, be guided, as Washington guided the changes of 1789. To resist them perversely, as they were resisted at the Chicago Convention of 1912, can only make the catastrophe, when it comes, as overwhelming as was the consequent defeat of the Republican party. Approached thus, that Convention of 1912 has more than a passing importance, since it would seem to indicate the ordinary phenomenon, that a declining favored class is incapable of appreciating an approaching change of environment which must alter its social status. I began with the proposition that, in any society which we now understand, civilization is equivalent to order, and the evidence of the truth of the proposition is, that amidst disorder, capital and credit, which constitute the pith of our civilization, perish first. For more than a century past, capital and credit have been absolute, or nearly so; accordingly it has not been the martial type which has enjoyed sovereignty, but the capitalistic. The warrior has been the capitalists' servant. But now, if it be true that money, in certain crucial directions, is losing its purchasing power, it is evident that capitalists must accept a position of equality before the law under the domination of a type of man who can enforce obedience; their own obedience, as well as the obedience of others. Indeed, it might occur, even to some optimists, that capitalists would be fortunate if they could certainly obtain protection for another fifty years on terms as favorable as these. But at Chicago, capitalists declined even to consider receding to a secondary position. Rather than permit the advent of a power beyond their immediate control, they preferred to shatter the instrument by which they sustained their ascendancy. For it is clear that Roosevelt's offence in the eyes of the capitalistic class was not what he had actually done, for he had done nothing seriously to injure them. The crime they resented was the assertion of the principle of equality before the law, for equality before the law signified the end of privilege to operate beyond the range of law. If this principle which Roosevelt, in theory at least, certainly embodied, came to be rigorously enforced, capitalists perceived that private persons would be precluded from using the functions of sovereignty to enrich themselves. There lay the parting of the ways. Sooner or later almost every successive ruling class has had this dilemma in one of its innumerable forms presented to them, and few have had the genius to compromise while compromise was possible. Only a generation ago the aristocracy of the South deliberately chose a civil war rather than admit the principle that at some future day they might have to accept compensation for their slaves. A thousand other instances of similar incapacity might be adduced, but I will content myself with this alone. Briefly the precedents induce the inference that privileged classes seldom have the intelligence to protect themselves by adaptation when nature turns against them, and, up to the present moment, the old privileged class in the United States has shown little promise of being an exception to the rule. Be this, however, as it may, and even assuming that the great industrial and capitalistic interests would be prepared to assist a movement toward consolidation, as their ancestors assisted Washington, I deem it far from probable that they could succeed with the large American middle class, which naturally should aid, opposed, as it seems now to be, to such a movement. Partially, doubtless, this opposition is born of fear, since the lesser folk have learned by bitter experience that the powerful have yielded to nothing save force, and therefore that their only hope is to crush those who oppress them. Doubtless, also, there is the inertia incident to long tradition, but I suspect that the resistance is rather due to a subtle and, as yet, nearly unconscious instinct, which teaches the numerical majority, who are inimical to capital, that the shortest and easiest way for them to acquire autocratic authority is to obtain an absolute mastery over those political tribunals which we call courts. Also that mastery is being by them rapidly acquired. So long as our courts retain their present functions no comprehensive administrative reform is possible, whence I conclude that the relation which our courts shall hold to politics is now the fundamental problem which the American people must solve, before any stable social equilibrium can be attained. Theodore Roosevelt's enemies have been many and bitter. They have attacked his honesty, his sobriety, his intelligence, and his judgment, but very few of them have hitherto denied that he has a keen instinct for political strife. Only of late has this gift been doubted, but now eminent politicians question whether he did not make a capital mistake when he presented the reform of our courts of law, as expounders of the Constitution, as one of his two chief issues, in his canvass for a nomination for a third presidential term. After many years of study of, and reflection upon, this intricate subject I have reached the conviction that, though Mr. Roosevelt may have erred in the remedy which he has suggested, he is right in the principle which he has advanced, and in my next chapter I propose to give the evidence and explain the reasons which constrain me to believe that American society must continue to degenerate until confusion supervenes, if our courts shall remain semi-political chambers. FOOTNOTES: [1] Charles River Bridge _v_. Warren Bridge, II Peters, 608, 609. [2] Fitchburg R.R. _v_. Gage, 12 Gray 393, and innumerable cases following it. [3] See the decisions of the Commerce Court on the Long and Short-Haul Clause. Atchison, T.&S.F. By. _v_. United States, 191 Federal Rep. 856. [4] Darcy _v_. Allein, 11 Rep. 84. [5] 68 Pa. 173. CHAPTER II THE LIMITATIONS OF THE JUDICIAL FUNCTION Taking the human race collectively, its ideal of a court of justice has been the omniscient and inexorable judgment seat of God. Individually, on the contrary, they have dearly loved favor. Hence the doctrine of the Intercession of the Saints, which many devout persons have sincerely believed could be bought by them for money. The whole development of civilization may be followed in the oscillation of any given society between these two extremes, the many always striving to so restrain the judiciary that it shall be unable to work the will of the favored few. On the whole, success in attaining to ideal justice has not been quite commensurate with the time and effort devoted to solving the problem, but, until our constitutional experiment was tried in America, I think it had been pretty generally admitted that the first prerequisite to success was that judges should be removed from political influences. For the main difficulty has been that every dominant class, as it has arisen, has done its best to use the machinery of justice for its own benefit. No argument ever has convinced like a parable, and a very famous story in the Bible will illustrate the great truth, which is the first lesson that a primitive people learns, that unless the judge can be separated from the sovereign, and be strictly limited in the performance of his functions by a recognized code of procedure, the public, as against the dominant class, has, in substance, no civil rights. The kings of Israel were judges of last resort. Solomon earned his reputation for wisdom in the cause in which two mothers claimed the same child. They were indeed both judge and jury. Also they were prosecuting officers. Also they were sheriffs. In fine they exercised unlimited judicial power, save in so far as they were checked by the divine interference usually signified through some prophet. Now David was, admittedly, one of the best sovereigns and judges who ever held office in Jerusalem, and, in the days of David, Nathan was the leading prophet of the dominant political party. "And it came to pass in an eveningtide, that David arose from off his bed, and walked upon the roof of the king's house: and from the roof he saw a woman washing herself; and the woman was very beautiful to look upon. And David sent and enquired after the woman. And one said, Is not this Bath-sheba, the daughter of Eliam, the wife of Uriah the Hittite? And David sent messengers, and took her; and she came in unto him, and he lay with her; ... and she returned unto her house." Uriah was serving in the army under Joab. David sent for Uriah, and told him to go home to his wife, but Uriah refused. Then David wrote a letter to Joab and dismissed Uriah, ordering him to give the letter to Joab. And David "wrote in the letter, saying, Set ye Uriah in the forefront of the hottest battle, and retire ye from him, that he may be smitten and die.... "And the men of the city went out and fought with Joab; and there fell some of the people of the servants of David; and Uriah the Hittite died also.... But the thing that David had done displeased the Lord. "And the Lord sent Nathan unto David. And he came unto him, and said unto him, There were two men in one city; the one rich and the other poor. The rich man had exceeding many flocks and herds: "But the poor man had nothing, save one little ewe lamb, which he had bought and nourished up: and it grew up together with him, and with his children; it did eat of his own meat and drank of his own cup, and lay in his bosom, and was unto him as a daughter. "And there came a traveller unto the rich man, and he spared to take of his own flock, ... but took the poor man's lamb, and dressed it for the man that was come to him. "And David's anger was greatly kindled against the man; and he said to Nathan, As the Lord liveth, the man that hath done this thing shall surely die: ... "And Nathan said to David, Thou art the man. Thus saith the Lord God of Israel ... Now therefore the sword shall never depart from thine house; because thou has despised me ... Behold, I will raise up evil against thee out of thine own house, and I will take thy wives before thine eyes, and give them unto thy neighbor." Here, as the heading to the Twelfth Chapter of Second Book of Samuel says, "Nathan's parable of the ewe lamb causeth David to be his own judge," but the significant part of the story is that Nathan, with all his influence, could not force David to surrender his prey. David begged very hard to have his sentence remitted, but, for all that, "David sent and fetched [Bathsheba] to his house, and she became his wife, and bare him a son." Indeed, she bore him Solomon. As against David or David's important supporters men like Uriah had no civil rights that could be enforced. Even after the judicial function is nominally severed from the executive function, so that the sovereign himself does not, like David and Solomon, personally administer justice, the same result is reached through agents, as long as the judge holds his office at the will of the chief of a political party. To go no farther afield, every page of English history blazons this record. Long after the law had taken an almost modern shape, Alice Perrers, the mistress of Edward III, sat on the bench at Westminster and intimidated the judges into deciding for suitors who had secured her services. The chief revenue of the rival factions during the War of the Roses was derived from attainders, indictments for treason, and forfeitures, avowedly partisan. Henry VII used the Star Chamber to ruin the remnants of the feudal aristocracy. Henry VIII exterminated as vagrants the wretched monks whom he had evicted. The prosecutions under Charles I largely induced the Great Rebellion; and finally the limit of endurance was reached when Charles II made Jeffreys Chief Justice of England in order to kill those who were prominent in opposition. Charles knew what he was doing. "That man," said he of Jeffreys, "has no learning, no sense, no manners, and more impudence than ten carted street-walkers." The first object was to convict Algernon Sidney of treason. Jeffreys used simple means. Usually drunk, his court resembled the den of a wild beast. He poured forth on "plaintiffs and defendants, barristers and attorneys, witnesses and jurymen, torrents of frantic abuse, intermixed with oaths and curses." The law required proof of an _overt act_ of treason. Many years before Sidney had written a philosophical treatise touching resistance by the subject to the sovereign, as a constitutional principle. But, though the fragment contained nothing more than the doctrines of Locke, Sidney had cautiously shown it to no one, and it had only been found by searching his study. Jeffreys told the jury that if they believed the book to be Sidney's book, written by him, they must convict for _scribere est agere_, to write is to commit an overt act. A revolution followed upon this and other like convictions, as revolutions have usually followed such uses of the judicial power. In that revolution the principle of the limitation of the judicial function was recognized, and the English people seriously addressed themselves to the task of separating their courts from political influences, of protecting their judges by making their tenure and their pay permanent, and of punishing them by removal if they behaved corruptly, or with prejudice, or transcended the limits within which their duty confined them. Jeffreys had legislated when he ruled it to be the law that, to write words secretly in one's closet, is to commit an overt act of treason, and he did it to kill a man whom the king who employed him wished to destroy. This was to transcend the duty of a judge, which is to expound and not to legislate. The judge may develop a principle, he may admit evidence of a custom in order to explain the intentions of the parties to a suit, as Lord Mansfield admitted evidence of the customs of merchants, but he should not legislate. To do so, as Jeffreys did in Sidney's case, is tantamount to murder. Jeffreys never was duly punished for his crimes. He died the year after the Revolution, in the Tower, maintaining to the last that he was innocent in the sight of God and man because "all the blood he had shed fell short of the King's command." And Jeffreys was perfectly logical and consistent in his attitude. A judiciary is either an end in itself or a means to an end. If it be designed to protect the civil rights of citizens indifferently, it must be free from pressure which will deflect it from this path, and it can only be protected from the severest possible pressure by being removed from politics, because politics is the struggle for ascendancy of a class or a majority. If, on the other hand, the judiciary is to serve as an instrument for advancing the fortunes of a majority or a dominant class, as David used the Jewish judiciary, or as the Stuarts used the English judiciary, then the judicial power must be embodied either in a military or political leader, like David, who does the work himself, or in an agent, more or less like Jeffreys, who will obey his orders. In the colonies the subserviency of the judges to the Crown had been a standing grievance, and the result of this long and terrible experience, stretching through centuries both in Europe and America, had been to inspire Americans with a fear of intrusting power to any man or body of men. They sought to limit everything by written restrictions. Setting aside the objection that such a system is mechanically vicious because it involves excessive friction and therefore waste of energy, it is obviously futile unless the written restrictions can be enforced, and enforced in the spirit in which they are drawn. Hamilton, whose instinct for law resembled genius, saw the difficulty and pointed out in the _Federalist_ that it is not a writing which can give protection, but only the intelligence and the sense of justice of the community itself. "The truth is, that the general genius of a Government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficiency than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good Government." After an experience of nearly a century and a quarter we must admit, I think, that Hamilton was right. In the United States we have carried bills of right and constitutional limitations to an extreme, and yet, I suppose that few would care to maintain that, during the nineteenth century, life and property were safer in America, or crime better dealt with, than in England, France, or Germany. The contrary, indeed, I take to be the truth, and I think one chief cause of this imperfection in the administration of justice will be found to have been the operation of the written Constitution. For, under the American system, the Constitution, or fundamental law, is expounded by judges, and this function, which, in essence, is political, has brought precisely that quality of pressure on the bench which it has been the labor of a hundred generations of our ancestors to remove. On the whole the result has been not to elevate politics, but to lower the courts toward the political level, a result which conforms to the _a priori_ theory. The abstract virtue of the written Constitution was not, however, a question in issue when Washington and his contemporaries set themselves to reorganize the Confederation. Those men had no choice but to draft some kind of a platform on which the states could agree to unite, if they were to unite peacefully at all, and accordingly they met in convention and drew the best form of agreement they could; but I more than suspect that a good many very able Federalists were quite alive to the defects in the plan which they adopted. Hamilton was outspoken in preferring the English model, and I am not aware that Washington ever expressed a preference for the theory that, because of a written fundamental law, the court should nullify legislation. Nor is it unworthy of remark that all foreigners, after a prolonged and attentive observation of our experiment, have avoided it. Since 1789, every highly civilized Western people have readjusted their institutions at least once, yet not one has in this respect imitated us, though all have borrowed freely from the parliamentary system of England.[6] Even our neighbor, Canada, with no adverse traditions and a population similar to ours, has been no exception to the rule. The Canadian courts indeed define the limits of provincial and federal jurisdiction as fixed under an act of Parliament, but they do not pretend to limit the exercise of power when the seat of power has been established. I take the cause of this distrust to be obvious. Although our written Constitution was successful in its primary purpose of facilitating the consolidation of the Confederation, it has not otherwise inspired confidence as a practical administrative device. Not only has constant judicial interference dislocated scientific legislation, but casting the judiciary into the vortex of civil faction has degraded it in the popular esteem. In fine, from the outset, the American bench, because it deals with the most fiercely contested of political issues, has been an instrument necessary to political success. Consequently, political parties have striven to control it, and therefore the bench has always had an avowed partisan bias. This avowed political or social bias has, I infer, bred among the American people the conviction that justice is not administered indifferently to all men, wherefore the bench is not respected with us as, for instance, it is in Great Britain, where law and politics are sundered. Nor has the dissatisfaction engendered by these causes been concealed. On the contrary, it has found expression through a series of famous popular leaders from Thomas Jefferson to Theodore Roosevelt. The Constitution could hardly have been adopted or the government organized but for the personal influence of Washington, whose power lay in his genius for dealing with men. He lost no time or strength in speculation, but, taking the Constitution as the best implement at hand, he went to the work of administration by including the representatives of the antagonistic extremes in his Cabinet. He might as well have expected fire and water to mingle as Jefferson and Hamilton to harmonize. Probably he had no delusions on that head when he chose them for his ministers, and he accomplished his object. He paralyzed opposition until the new mechanism began to operate pretty regularly, but he had not an hour to spare. Soon the French Revolution heated passions so hot that long before Washington's successor was elected the United States was rent by faction. The question which underlay all other questions, down to the Civil War, was the determination of the seat of sovereignty. Hamilton and the Federalists held it to be axiomatic that, if the federal government were to be more than a shadow, it must interpret the meaning of the instrument which created it, and, if so, that it must signify its decisions through the courts. Only in this way, they argued, could written limitations on legislative power be made effective. Only in this way could statutes which contravened the Constitution be set aside.[7] Jefferson was abroad when Hamilton wrote _The Federalist_, but his views have since been so universally accepted as embodying the opposition to Hamilton, that they may be conveniently taken as if they had been published while the Constitution was under discussion. Substantially the same arguments were advanced by others during the actual debate, if not quite so lucidly or connectedly then, as afterward by him. Very well, said Jefferson, in answer to Hamilton, admitting, for the moment, that the central government shall define its own powers, and that the courts shall be the organ through which the exposition shall be made, both of which propositions I vehemently deny, you have this result: The judges who will be called upon to pass upon the validity of national and state legislation will be plunged in the most heated of controversies, and in those controversies they cannot fail to be influenced by the same passions and prejudices which sway other men. In a word they must decide like legislators, though they will be exempt from the responsibility to the public which controls other legislators. Such conditions you can only meet by making the judicial tenure of office ephemeral, as all legislative tenure is ephemeral. It is vain to pretend, continued he, in support of fixity of tenure, that the greater the pressure on the judge is likely to be, the more need there is to make him secure. This may be true of judges clothed with ordinary attributes, like English judges, for, should these try to nullify the popular will by construing away statutes, Parliament can instantly correct them, or if Parliament fail in its duty, the constituencies, at the next election, can intervene. But no one will be able to correct the American judge who may decline to recognize the law which would constrain him. Nothing can shake him save impeachment for what is tantamount to crime, or being overruled by a constitutional amendment which you have purposely made too hard to obtain to be a remedy. He is to be judge in his own case without an appeal. Nowhere in all his long and masterly defence of the Constitution did Hamilton show so much embarrassment as here, and because, probably, he did not himself believe in his own brief. He really had faith in the English principle of an absolute parliament, restrained, if needful, by a conservative chamber, like the House of Lords, but not in the total suspension of sovereignty subject to judicial illumination. Consequently he fell back on platitudes about judicial high-mindedness, and how judges could be trusted not to allow political influences to weigh with them when deciding political questions. Pushed to its logical end, concluded he, the Jeffersonian argument would prove that there should be no judges distinct from legislatures.[8] Now, at length, exclaimed the Jeffersonian in triumph, you admit our thesis. You propose to clothe judges with the highest legislative functions, since you give them an absolute negative on legislation, and yet you decline to impose on them the responsibility to a constituency, which constrains other legislators. Clearly you thus make them autocratic, and in the worst sense, for you permit small bodies of irresponsible men under pretence of dispensing justice, but really in a spirit of hypocrisy, to annul the will of the majority of the people, even though the right of the people to exercise their will, in the matters at issue, be clearly granted them in the Constitution. No, rejoined Hamilton, thus driven to the wall, judges never will so abuse their trust. The duty of the judge requires him to suppress his _will_, and exercise his _judgment_ only. The Constitution will be before him, and he will have only to say whether authority to legislate on a given subject is granted in that instrument. If it be, the character of the legislation must remain a matter of legislative discretion. Besides, you must repose confidence somewhere, and judges, on the whole, are more trustworthy than legislators. How can you say that, retorted the opposition, when you, better than most men, know the line of despotic legal precedents from the Ship Money down to the Writs of Assistance? Looking back upon this initial controversy touching judicial functions under the Constitution, we can hardly suppose that Hamilton did not perceive that, in substance, Jefferson was right, and that a bench purposely constructed to pass upon political questions must be politically partisan. He knew very well that, if the Federalists prevailed in the elections, a Federalist President would only appoint magistrates who could be relied on to favor consolidation. And so the event proved. General Washington chose John Jay for the first Chief Justice, who in some important respects was more Federalist than Hamilton, while John Adams selected John Marshall, who, though one of the greatest jurists who ever lived, was hated by Jefferson with a bitter hatred, because of his political bias. As time went on matters grew worse. Before Marshall died slavery had become a burning issue, and the slave-owners controlled the appointing power. General Jackson appointed Taney to sustain the expansion of slavery, and when the anti-slavery party carried the country with Lincoln, Lincoln supplanted Taney with Chase, in order that Chase might stand by him in his struggle to destroy slavery. And as it has been, so must it always be. As long as the power to enact laws shall hinge on the complexion of benches of judges, so long will the ability to control a majority of the bench be as crucial a political necessity as the ability to control a majority in avowedly representative assemblies. Hamilton was one of the few great jurists and administrators whom America has ever produced, and it is inconceivable that he did not understand what he was doing. He knew perfectly well that, other things being equal, the simplest administrative mechanism is the best, and he knew also that he was helping to make an extremely complicated mechanism. Not only so, but at the heart of this complexity lay the gigantic cog of the judiciary, which was obviously devised to stop movement. He must have had a reason, beyond the reason he gave, for not only insisting on clothing the judiciary with these unusual political and legislative attributes, but for giving the judiciary an unprecedented fixity of tenure. I suspect that he was actuated by some such considerations as these: The Federalists, having pretty good cause to suppose themselves in a popular minority, purposed to consolidate the thirteen states under a new sovereign. There were but two methods by which they could prevail; they could use force, or, to secure assent, they could propose some system of arbitration. To escape war the Federalists convened the constitutional convention, and by so doing pledged themselves to arbitration. But if their plan of consolidation were to succeed, it was plain that the arbitrator must arbitrate in their favor, for if he arbitrated as Mr. Jefferson would have wished, the United States under the Constitution would have differed little from the United States under the Confederation. The Federalists, therefore, must control the arbitrator. If the Constitution were to be adopted, Hamilton and every one else knew that Washington would be the first President, and Washington could be relied on to appoint a strong Federalist bench. Hence, whatever might happen subsequently, when the new plan first should go into operation, and when the danger from insubordination among the states would probably be most acute, the judiciary would be made to throw its weight in favor of consolidation, and against disintegration, and, if it did so, it was essential that it should be protected against anything short of a revolutionary attack. In the convention, indeed, Charles Pinckney of South Carolina suggested that Congress should be empowered to negative state legislation, but such an alternative, for obvious reasons, would have been less palatable to Hamilton, since Congress would be only too likely to fall under the control of the Jeffersonian party, while a bench of judges, if once well chosen, might prove to be for many years an "excellent barrier to the encroachments and oppressions of the representative body."[9] I infer that Hamilton and many other Federalists reasoned somewhat thus, not only from what they wrote, but from the temper of their minds, and, if they did, events largely justified them. John Jay, Oliver Ellsworth, and John Marshall were successively appointed to the office of Chief Justice, nor did the complexion of the Supreme Court change until after 1830. What interests us, however, is not so much what the Federalists thought, or the motives which actuated them, as the effect which the clothing of the judiciary with political functions has had upon the development of the American republic, more especially as that extreme measure might have been avoided, had Pinckney's plan been adopted. Nor, looking back upon the actual course of events, can I perceive that, so far as the movement toward consolidation was concerned, the final result would have varied materially whether Congress or the Supreme Court had exercised control over state legislation. Marshall might just as well, in the one case as the other, have formulated his theory of a semi-centralized administration. He would only have had uniformly to sustain Congress, as an English judge sustains Parliament. Nor could either Congress or the Court have reached a definite result without an appeal to force. Either chamber might expound a theory, but nothing save an army could establish it. For two generations statesmen and jurists debated the relation of the central to the local sovereignties with no result, for words alone could decide no such issue. In America, as elsewhere, sovereignty is determined by physical force. Marshall could not conquer Jefferson, he could at most controvert Jefferson's theory. This he did, but, in doing so, I doubt if he were quite true to himself. Jefferson contended that every state might nullify national legislation, as conversely Pinckney wished Congress to be given explicitly the power to nullify state legislation; and Marshall, very sensibly, pointed out that, were Jefferson's claim carried into practice, it would create "a hydra in government,"[10] yet I am confident that Marshall did not appreciate whither his own assertion of authority must lead. In view of the victory of centralization in the Civil War, I will agree that the Supreme Court might have successfully maintained a position as arbitrator touching conflicting jurisdictions, as between the nation and the states, but that is a different matter from assuming to examine into the wisdom of the legislation itself. The one function might, possibly, pass by courtesy as judicial; the other is clearly legislative. This distinction only developed after Marshall's death, but the resentment which impelled Marshall to annul an act of Congress was roused by the political conflict which preceded the election of 1800, in which Marshall took a chief part. Apparently he could not resist the temptation of measuring himself with his old adversary, especially as he seems to have thought that he could discredit that adversary without giving him an opportunity to retaliate. In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose constitutionality no Federalist judge ever doubted, but which Jefferson considered as clearly a violation of the fundamental compact, since they tended to drive certain states, as he thought, into "revolution and blood." Under this provocation Jefferson proclaimed that it was both the right and the duty of any state, which felt itself aggrieved, to intervene to arrest "the progress of the evil," within her territory, by declining to execute, or by "nullifying," the objectionable statutes. As Jefferson wrote the Kentucky Resolutions in 1798 and was elected President in 1800, the people at least appeared to have sustained him in his exposition of the Constitution, before he entered into office. At this distance of time we find it hard to realize what the election of 1800 seemed to portend to those who participated therein. Mr. Jefferson always described it as amounting to a revolution as profound as, if less bloody than, the revolution of 1776, and though we maybe disposed to imagine that Jefferson valued his own advent to power at its full worth, it must be admitted that his enemies regarded it almost as seriously. Nor were they without some justification, for Jefferson certainly represented the party of disintegration. "Nullification" would have been tantamount to a return to the condition of the Confederation. Besides, Jefferson not so many years before had written, in defence of Shays's rebellion, that the tree of Liberty could never flourish unless refreshed occasionally with the blood of patriots and tyrants. To most Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver Ellsworth had been appointed Chief Justice by General Washington in the place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an envoy to France to try to negotiate a treaty which should reëstablish peace between the two countries. Ellsworth succeeded in his mission, but the hardships of his journey injured his health, and he, in turn, resigned in the autumn of 1800. Then Adams offered the Chief Justiceship to Jay, but Jay would not return to office, and after this the President selected his Secretary of State, John Marshall, one of the greatest of the great Virginians, but one of Jefferson's most irreconcilable enemies. Perhaps at no moment in his life did John Adams demonstrate his legal genius more convincingly than in this remarkable nomination. Yet it must be conceded that, in making John Marshall Chief Justice, John Adams deliberately chose the man whom, of all his countrymen, he thought to be the most formidable champion of those views which he himself entertained, and which he conceived that he had been elected President to advance. Nor was John Adams deceived. For thirty-four years John Marshall labored ceaselessly to counteract Jefferson's constitutional principles, while Jefferson always denounced the political partiality of the federal courts, and above all the "rancorous hatred which Marshall bears to the government of his country, and ... the cunning and sophistry within which he is able to enshroud himself."[11] No one, at this day, would be disposed to dispute that the Constitution, as a device to postpone war among the states, at least for a period, was successful, and that, as I have already pointed out, during the tentative interval which extended until Appomattox, the Supreme Court served perhaps as well, in ordinary times, as an arbiter between the states and the general government, as any which could have been suggested. So much may be conceded, and yet it remains true, as the record will show, that when it passed this point and entered into factional strife, the Supreme Court somewhat lamentably failed, probably injuring itself and popular respect for law, far more by its errors, than it aided the Union by its political adjudications. Although John Marshall, by common consent, ranks as one of the greatest and purest of Americans, yet even Marshall had human weaknesses, one of which was a really unreasonable antipathy to Thomas Jefferson; an antipathy which, I surmise, must, when Jefferson was inaugurated, have verged upon contempt. At least Marshall did what cautious men seldom do when they respect an adversary, he took the first opportunity to pick a quarrel with a man who had the advantage of him in position. In the last days of his presidency John Adams appointed one William Marbury a justice of the peace for the District of Columbia. The Senate confirmed the appointment, and the President signed, and John Marshall, as Secretary of State, sealed Marbury's commission; but in the hurry of surrendering office the commission was not delivered, and Jefferson found it in the State Department when he took possession. Resenting violently these "midnight" appointments, as he called them, Jefferson directed Mr. Madison, his Secretary of State, to withhold the commission; and, at the next December term of the Supreme Court, Marbury moved for a rule to Madison to show cause why he should not be commanded to deliver to the plaintiff the property to which Marbury pretended to be entitled. Of course Jefferson declined to appear before Marshall, through his Secretary of State, and finally, in February, 1803, Marshall gave judgment, in what was, without any doubt, the most anomalous opinion he ever delivered, in that it violated all judicial conventions, for, apparently, no object, save to humiliate a political opponent. Marshall had no intention of commanding Madison to surrender the commission to Marbury. He was too adroit a politician for that. Marshall knew that he could not compel Jefferson to obey such a writ against his will, and that in issuing the order he would only bring himself and his court into contempt. What he seems to have wished to do was to give Jefferson a lesson in deportment. Accordingly, instead of dismissing Marbury's suit upon any convenient pretext, as, according to legal etiquette, he should have done if he had made up his mind to decide against the plaintiff, and yet thought it inexpedient to explain his view of the law, he began his opinion with a long and extra-judicial homily, first on Marbury's title to ownership in the commission, and then on civil liberty. Having affirmed that Marbury's right to his office vested when the President had signed, and the Secretary of State had sealed the instrument, he pointed out that withholding the property thus vested was a violation of civil rights which could be examined in a court of justice. Were it otherwise, the Chief Justice insisted, the government of the United States could not be termed a government of laws and not of men. All this elaborate introduction was in the nature of a solemn lecture by the Chief Justice of the Supreme Court to the President of the United States upon his faulty discharge of his official duties. Having eased his mind on this head, Marshall went on, very dexterously indeed, but also very palpably, to elude the consequences of his temerity. He continued: The right of property being established, and the violation of that right clear, it is plain that a wrong has been committed, and it only remains to determine whether that wrong can be redressed under this form of procedure. We are of opinion that it cannot, because Congress has no constitutional power to confer upon the Supreme Court original jurisdiction in this class of litigation. In the lower courts alone can the relief prayed for be obtained. Of all the events of Marshall's life this controversy with Jefferson seems to me the most equivocal, and it was a direct effect of a constitutional system which has permitted the courts to become the censor of the political departments of the government. Marshall, probably, felt exasperated by Jefferson's virulence against these final appointments made by John Adams, while Marshall was Secretary of State, and for which he may have felt himself, in part, responsible. Possibly, even, he may have taken some of Jefferson's strictures as aimed at himself. At all events he went to extreme lengths in retaliation. He might have dismissed the litigation in a few words by stating that, whatever the abstract rights of the parties might have been, the Supreme Court had no power to constrain the President in his official functions; but he yielded to political animosity. Then, having taken a position practically untenable, he had to find an avenue of retreat, and he found it by asserting a supervisory jurisdiction over Congress, a step which, even at that early period, was most hazardous.[12] In reality Jefferson's temper, far from being vindictive and revolutionary, as his enemies believed, was rather gentle and timid, but he would have been more than mortal had he endured such an insult in silence. Nor could he, perhaps, have done so without risking the respect of his followers. So he decided on reprisals, and a scheme was matured among influential Virginians, like John Randolph and Senator William Giles, to purge the Supreme Court of Federalists. Among the associate justices of this court was Samuel Chase, a signer of the Declaration of Independence and an able lawyer, but an arrogant and indiscreet partisan. Chase had made himself obnoxious on various public occasions and so was considered to be the best subject to impeach; but if they succeeded with him the Jeffersonians proclaimed their intention of removing all his brethren seriatim, including the chief offender of all, John Marshall. One day in December, 1804, Senator Giles, of Virginia, in a conversation which John Quincy Adams has reported in his diary, discussed the issue at large, and that conversation is most apposite now, since it shows how early the inevitable tendency was developed to make judges who participate in political and social controversies responsible to the popular will. The conversation is too long to extract in full, but a few sentences will convey its purport:-- "He treated with the utmost contempt the idea of an _independent_ judiciary.... And if the judges of the Supreme Court should dare, _as they had done_, to declare an act of Congress unconstitutional, or to send a mandamus to the Secretary of State, _as they had done_, it was the undoubted right of the: House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions, however honest or sincere they may have been in entertaining them. * * * And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. _We want your offices_, for the purpose of giving them to men who will fill them better."[13] Jefferson, though he controlled a majority in the Senate, failed by a narrow margin to obtain the two-thirds vote necessary to convict Chase. Nevertheless, he accomplished his object. Chase never recovered his old assurance, and Marshall never again committed a solecism in judicial manners. On his side, after the impeachment, Jefferson showed moderation. He might, if he had been malevolent, without doubt, have obtained an act of Congress increasing the membership of the Supreme Court enough to have put Marshall in a minority. Then by appointing men like Giles he could have compelled Marshall to resign. He did nothing of the kind. He spared the Supreme Court, which he might have overthrown, and contented himself with waiting until time should give him the opportunity to correct the political tendencies of a body of men whom he sincerely regarded as a menace to, what he considered, popular institutions. Thus the ebullition caused by Marshall's acrimony toward Jefferson, because of Jefferson's strictures on the appointments made by his predecessor subsided, leaving no very serious immediate mischief behind, save the precedent of the nullification of an act of Congress by the Supreme Court. That precedent, however, was followed by Marshall's Democratic successor. And nothing can better illustrate the inherent vice of the American constitutional system than that it should have been possible, in 1853, to devise and afterward present to a tribunal, whose primary purpose was to administer the municipal law, a set of facts for adjudication, on purpose to force it to pass upon the validity of such a statute as the Missouri Compromise, which had been enacted by Congress in 1820, as a sort of treaty of peace between the North and South, and whose object was the limitation of the spread of slavery. Whichever way the Court decided, it must have fallen into opprobrium with one-half the country. In fact, having been organized by the slaveholders to sustain slavery, it decided against the North, and therefore lost repute with the party destined to be victorious. I need not pause to criticise the animus of the Court, nor yet the quality of the law which the Chief Justice there laid down. It suffices that in the decade which preceded hostilities no event, in all probability, so exasperated passions, and so shook the faith of the people of the northern states in the judiciary, as this decision. Faith, whether in the priest or the magistrate, is of slow growth, and if once impaired is seldom fully restored. I doubt whether the Supreme Court has ever recovered from the shock it then received, and, considered from this point of view, the careless attitude of the American people toward General Grant's administration, when in 1871 it obtained the reversal of Hepburn _v_. Griswold by appointments to the bench, assumes a sombre aspect. Of late some sensitiveness has been shown in regard to this transaction, and a disposition has appeared to defend General Grant and his Attorney-General against the charge of manipulating the membership of the bench to suit their own views. At the outset, therefore, I wish to disclaim any intention of entering into this discussion. To me it is immaterial whether General Grant and Mr. Hoar did or did not nominate judges with a view to obtaining a particular judgment. I am concerned not with what men thought, but with what they did, and with the effect of their acts at the moment, upon their fellow-citizens. Hepburn _v_. Griswold was decided in conference on November 27, 1869, when eight justices were on the bench. On February 1, following, Justice Grier resigned, and, on February 7, judgment was entered, the court then being divided four to three, but Grier having been with the majority, the vote in reality stood five to three. Two vacancies therefore existed on February 7, one caused by the resignation of Grier, the other by an act of Congress which had enlarged the court by one member, and which had taken effect in the previous December. Chief Justice Chase held that the clause of the currency laws of 1862 and 1863 which made depreciated paper a legal tender for preëxisting debts was unconstitutional. No sooner had the judgment been recorded than all the world perceived that, if both vacancies should be filled with men who would uphold the acts, Hepburn _v_. Griswold might be reversed by a majority of one. The Republican party had full control of the government and was united in vehement support of the laws. On March 21, the second of the two new judges received his commission, and precisely ten days afterward the Attorney-General moved for a rehearing, taunting the Chief Justice with having changed his opinion on this point, and intimating that the issue was in reality political, and not judicial at all. In the December Term following Knox _v_. Lee was argued by the Attorney-General, and, on May 1, 1871, judgment was entered reversing Hepburn _v_. Griswold, both the new judges voting with the former minority, thus creating the necessary majority of one. No one has ever doubted that what General Grant did coincided with the drift of opinion, and that the Republican party supported him without inquiring how he had achieved success.[14] After this it is difficult to suppose that much respect could remain among the American people for the sanctity of judicial political decisions, or that a President, at the head of a popular majority, would incur much odium for intervening to correct them, as a party measure. The last example of judicial interference which I shall mention was the nullification, in 1895, of a statute of Congress which imposed an income tax. The states have since set this decision aside by constitutional amendment, and I should suppose that few would now dispute that the Court when it so decided made a serious political and social error. As Mr. Justice White pointed out, the judges undertook to deprive the people, in their corporate capacity, of a power conceded to Congress "by universal consensus for one hundred years."[15] These words were used in the first argument, but on the rehearing the present Chief Justice waxed warm in remonstrating against the unfortunate position in which his brethren placed the Court before the nation, protesting with almost passionate earnestness against the reversal by half-a-dozen judges of what had been the universally accepted legal, political, and economic policy of the country solely in order that "invested wealth" might be read "into the constitution" as a favored and protected class of property. Mr. Justice White closed by saying that by this act the Supreme Court had "deprived [the Government] of an inherent attribute of its being."[16] I might go on into endless detail, but I apprehend that these cases, which are the most important which have ever arisen on this issue, suffice for my purpose.[17] I contend that no court can, because of the nature of its being, effectively check a popular majority acting through a coordinate legislative assembly, and I submit that the precedents which I have cited prove this contention. The only result of an attempt and failure is to bring courts of justice into odium or contempt, and, in any event, to make them objects of attack by a dominant social force in order to use them as an instrument, much as Charles II used Jeffreys. The moment we consider the situation philosophically we perceive why using a court to control a coordinate legislature must, nearly inevitably, be sooner or later fatal to the court, if it asserts its prerogative. A court to be a fit tribunal to administer the municipal law impartially, or even relatively impartially, must be a small body of men, holding by a permanent and secure tenure, guarded from all pressure which may unduly influence them. Also they should be men of much experience and learned in the precedents which should make the rules which they apply stable and consistent. In short, a court should be rigid and emotionless. It follows that it must be conservative, for its members should long have passed that period of youth when the mind is sensitive to new impressions. Were it otherwise, law would cease to be cohesive. A legislature is nearly the antithesis of a court. It is designed to reflect the passions of the voters, and the majority of voters are apt to be young. Hence in periods of change, when alone serious clashes between legislatures and courts are likely to occur, as the social equilibrium shifts the legislature almost certainly will reflect the rising, the court the sinking power. I take the Dred Scott Case as an illustration. In 1857 the slaveholding interest had passed the zenith of high fortune, and was hastening toward its decline. In the elections of 1858 the Democratic party, which represented slavery, was defeated. But the Supreme Court had been organized by Democrats who had been dominant for many years, and it adhered, on the principle laid down by Jeffreys, to the master which created it. Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall's fame rests on a series of constructive decisions like M'Culloch _v_. Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury _v_. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written constitution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the municipal law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial interference have been negative. And it would be well if in other spheres of American constitutional development, judicial activity had been always negative. Unfortunately, as I believe, it has extended into the domain of legislation. I will take the Dred Scott Case once more to illustrate my meaning. The North found it bad enough for the Supreme Court to hold that, under the Constitution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South. But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconstitutional because they thought it _unreasonable_. Yet this, in substance, is what our courts have done. And this brings me to the consideration of American courts as legislative chambers. FOOTNOTES: [6] The relation of courts to legislation in European countries has been pretty fully considered by Brinton Coxe, in _Judicial Power and Constitutional Legislation_. [7] _Federalist_ No. LXXVIII. [8] _The Federalist_, No. LXXVIII. [9] _The Federalist_, No. LXXVIII. [10] Cohens _v_. Virginia, 6 Wheaton 415. [11] To Madison, Ford, 9, 275. [12] Marshall's constitutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward. As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin _v_. Raub, 12 S.&R., 344. [13] Memoirs, I, 322. [14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov. 27, 1869, more than a month before Grier's resignation. Knox _v_. Lee, 12 Wallace 457. [15] 157 U.S. 608. [16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715. [17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of Congress which up to that time had been held to be unconstitutional. It is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV. Mr. Davis has, however, omitted from his list the Dred Scott Case, probably for the technical reason that, in 1857, when the cause was decided, the Missouri Compromise had been repealed. Nevertheless, though this is true, Tansy's decision hinged upon the invalidity of the law. Besides the statutes which I have mentioned in the test, the two most important, I suppose, which have been annulled, have to me no little interest. These are the Civil Rights Act of 1875, and the Employers' Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly unpopular, and the decision which overturned it coincided with the strong drift of opinion. The Civil Rights Cases were decided in October, 1883, and Mr. Cleveland was elected President in 1884. Doubtless the law would have been repealed had the judiciary supported it. Therefore this adjudication stood. On the other hand, the Employers' Liability Act of 1906 was held bad because Congress undertook to deal with commerce conducted wholly within the states, and therefore beyond the national jurisdiction. The Court, consequently, in the Employers' Liability Cases, simply defined the limits of sovereignty, as a Canadian Court might do; it did not question the existence of sovereignty itself. In 1908 Congress passed a statute free from this objection, and the Court, in the Second Employers' Liability Cases, 223 U.S. 1, sustained the legislation in the most thoroughgoing manner. I know not where to look for two better illustrations of my theory. CHAPTER III AMERICAN COURTS AS LEGISLATIVE CHAMBERS In one point of view many of the greatest of the Federalists were idealists. They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success. I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure. Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must. Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to assent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can. With the Declaration of Independence the thirteen colonies became sovereigns. Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts. Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated. Before entering upon this history, however, I must say a word touching the nature of our law. Municipal law, to be satisfactory, should be a body of abstract principles capable of being applied impartially to all relevant facts, just as Marshall and Jay held it to be. Where exceptions begin, equality before the law ends, as I have tried to show by the story of King David and Uriah, and therefore the great effort of civilization has been to remove judges from the possibility of being subjected to a temptation, or to a pressure, which may deflect them from impartiality as between suitors. In modern civilization, especially, nothing is so fatal to the principle of order as inequality in the dispensation of justice, and it would have been reasonable to suppose that Americans, beyond all others, would have been alive to this teaching of experience, and have studiously withdrawn their bench from politics. In fact they have ignored it, and instead they have set their judiciary at the focus of conflicting forces. The result has been the more unfortunate as the English system of jurisprudence is ill calculated to bear the strain, it being inflexible. In theory the English law moves logically from precedent to precedent, the judge originating nothing, only elaborating ideas which he has received from a predecessor, and which are binding on him. If the line of precedents leads to wrongful conclusions, the legislature must intervene with a statute rectifying the wrong. The Romans, who were gifted with a higher legal genius than we, managed better. The praetor, by his edict, suppressed inconvenient precedents, and hence the Romans maintained flexibility in their municipal law without falling into confusion. We have nothing to correspond to the praetor. Thus the English system of binding precedents is troublesome enough in a civilization in chronic and violent flux like modern civilization, even when applied to ordinary municipal law which may be changed at will by legislation, but it brings society almost to a stand when applied to the most vital functions of government, with no means at hand to obtain a corrective. For the court of last resort having once declared the meaning of a clause of the Constitution, that meaning remains fixed forever, unless the court either reverses itself, which is a disaster, or the Constitution can be amended by the states, which is not only difficult, but which, even if it be possible, entails years of delay. Yet pressing emergencies arise, emergencies in which a settlement of some kind must almost necessarily be reached somewhat rapidly to avert very serious disorders, and it has been under this tension, as I understand American constitutional development, that our courts have resorted to legislation. Nor is it fair for us to measure the sagacity of our great jurists by the standard of modern experience. They lived before the acceleration of movement by electricity and steam. They could not foresee the rapidity and the profundity of the changes which were imminent. Hence it was that, in the spirit of great lawyers, who were also possibly men tinged with a certain enthusiasm for the ideal, they began their work by ruling on the powers and limitations of sovereignty, as if they were ruling on the necessity of honest intent in dealings with one's neighbor. In 1789 General Washington is said to have offered John Jay his choice of offices under the new government, and Jay chose the chief justiceship, because there he thought he could make his influence felt most widely. If so he had his wish, and very shortly met with disappointment. In the August Term of 1792, one Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt. Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, gave judgment for Chisholm. Jay was followed by his associates with the exception of Iredell, J., of North Carolina. Forthwith a ferment began, and in the very next session of Congress an amendment to the Constitution was proposed to make such suits impossible. In January, 1798, five years after the case was argued, this amendment was declared to be adopted, but meanwhile Jay had resigned to become governor of New York. In December, 1800, he was again offered the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely declined. I have often wondered whether Jay's mortification at having his only important constitutional decision summarily condemned by the people may not have given him a distaste for judicial life. The Federalist attempt to enforce on the states a positive rule of economic morality, therefore, collapsed at once, but it still remained possible to approach the same problem from its negative side, through the clause of the Constitution which forbade any state to impair the validity of contracts, and Marshall took up this aspect of the task where Jay left it. In Marshall's mind his work was simple. He had only to determine the nature of a contract, and the rest followed automatically. All contracts were to be held sacred. Their greater or less importance was immaterial. In 1810 Marshall expounded this general principle in Fletcher _v_. Peck.[18] "When ... a law is in its nature a contract ... a repeal of the law cannot devest" rights which have vested under it. A couple of years later he applied his principle to the extreme case of an unlimited remission of taxation.[19] The State of New Jersey had granted an exemption from taxation to lands ceded to certain Indians. Marshall held that this contract ran with the land, and inured to the benefit of grantees from the Indians. If the state cared to resume its power of taxation, it must buy the grant back, and the citizens of New Jersey must pay for their improvidence. Seven years later, in 1810, Marshall may, perhaps, be said to have reached the culmination of his career, for then he carried his moral standard to a breaking strain. But, though his theory broke down, perhaps the most striking evidence of his wonderful intellectual superiority is that he convinced the Democrat, Joseph Story,--a man who had been nominated by Madison to oppose him, and of undoubted strength of character,--of the soundness of his thesis. In 1769 King George III incorporated certain Trustees of Dartmouth College. The charter was accepted and both real and personal property were thereupon conveyed to this corporate body, in trust for educational purposes. In 1816 the legislature of New Hampshire reorganized the board of trustees against their will. If the incorporation amounted to a contract, the Court was clear that this statute impaired it; therefore the only really debatable issue was whether the grant of a charter by the king amounted to a contract by him, with his subjects to whom he granted it. After prolonged consideration Marshall concluded that it did, and I conceive that, in the eye of history, he was right. Throughout the Middle Ages corporate privileges of all kinds, but especially municipal corporate privileges, had been subjects of purchase and sale, and indeed the mediaeval social system rested on such contracts. So much was this the case that the right to return members of Parliament from incorporated boroughs was, as Lord Eldon pointed out in the debates on the Reform Bill, as much private property "as any of your lordships'" titles and peerages. It was here that Marshall faltered. He felt that the public would not support him if he held that states could not alter town and county charters, so he arbitrarily split corporations in halves, protecting only those which handled exclusively private funds, and abandoning "instruments of government," as he called them, to the mercy of legislative assemblies. Toward 1832 it became convenient for middle class Englishmen to confiscate most of the property which the aristocracy had invested in parliamentary boroughs, and this social revolution was effected without straining the judicial system, because of the supremacy of Parliament. In America, at about the same time, it became, in like manner, convenient to confiscate numerous equally well-vested rights, because, to have compensated the owners would have entailed a considerable sacrifice which neither the public nor the promoters of new enterprises were willing to make. The same end was reached in America as in England, in spite of Chief Justice Marshall and the Dartmouth College Case, only in America it was attained by a legal somerset which has disordered the course of justice ever since. In 1697 King William III incorporated Trinity Church in the City of New York, confirming to the society the possession of a parcel of land, adjoining the church, to be used as a churchyard for the burial of the dead. In 1823 the government of New York prohibited interments within the city limits, thus closing the churchyard for the purposes for which it had been granted. As compensation was refused, it appeared to be a clear case of confiscation, and Trinity resisted. In the teeth of recent precedents the Supreme Court of New York decided that, under the _Police Power_, the legislature of New York might authorize this sort of appropriation of private property for sanitary purposes, without paying the owners for any loss they might thereby sustain.[20] The court thus simply dispensed the legislature from obedience to the law, saying in effect, "although the Constitution forbids impairing contracts, and although this is a contract which you have impaired, yet, in our discretion, we suspend the operation of the Constitution, in this instance, by calling your act an exercise of a power unknown to the framers of the Constitution." I cannot doubt that Marshall would have flouted this theory had he lived to pass upon it, but Marshall died in 1835, and the Charles River Bridge Case, in which this question was first presented to the Supreme Court of the United States, did not come up until 1837. Then Joseph Story, who remained as the representative of Marshall's philosophy upon the bench, vehemently protested against the latitudinarianism of Chief Justice Taney and his associates, but without producing the slightest effect. In 1785 the Massachusetts legislature chartered the Charles River Bridge Company to build a bridge between Boston and Charlestown, authorizing it, by way of consideration, to collect tolls for forty years. In 1792 the franchise was extended to seventy years, when the bridge was to revert to the Commonwealth. In 1828 the legislature chartered the Warren Bridge Company, expressly to build a bridge parallel to and practically adjoining the Charles River Bridge, the Warren Bridge to become a free bridge after six years. The purpose, of course, was to accelerate movement by ruining the Charles River Bridge Company. The Charles River Bridge Company sought to restrain the building of the Warren Bridge as a breach of contract by the State, but failed to obtain relief in the state courts, and before the cause could be argued at Washington the Warren Bridge had become free and had destroyed the value of the Charles River Bridge, though its franchise had still twenty years to run. As Story pointed out, no one denied that the charter of the Charles River Bridge Company was a contract, and, as he insisted, it is only common sense as well as common justice and elementary law, that contracts of this character should be reasonably interpreted so far as quiet enjoyment of the consideration granted is concerned; but all this availed nothing. The gist of the opposing argument is contained in a single sentence in the opinion of the Chief Justice who spoke for the majority of the court: "The millions of property which have been invested in railroads and canals, upon lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy" if this doctrine is to prevail.[21] The effect of the adoption by the Supreme Court of the United States of the New York theory of the Police Power was to vest in the judiciary, by the use of this catch-word, an almost unparalleled prerogative. They assumed a supreme function which can only be compared to the Dispensing Power claimed by the Stuarts, or to the authority which, according to the Council of Constance, inheres in the Church, to "grant indulgences for reasonable causes." I suppose nothing in modern judicial history has ever resembled this assumption; and yet, when we examine it, we find it to be not only the logical, but the inevitable, effect of those mechanical causes which constrain mankind to move along the lines of least resistance. Marshall, in a series of decisions, laid down a general principle which had been proved to be sound when applied by ordinary courts, dealing with ordinary social forces, and operating under the corrective power of either a legislature or a praetor, but which had a different aspect under the American constitutional system. He held that the fundamental law, embodied in the Constitution, commanded that all contracts should be sacred. Therefore he, as a judge, had but two questions to resolve: First, whether, in the case before him, a contract had been proved to exist. Second, admitting that a contract had been proved, whether it had also been shown to have been impaired. Within ten years after these decisions it had been found in practice that public opinion would not sustain so rigid an administration of the law. No legislature could intervene, and a pressure was brought to bear which the judges could not withstand; therefore, the Court yielded, declaring that if impairing a contract were, on the whole, for the public welfare, the Constitution, as Marshall interpreted it, should be suspended in favor of the legislation which impaired it. They called this suspension the operation of the "Police Power." It followed, as the "Police Power" could only come into operation at the discretion of the Court, that, therefore, within the limits of judicial discretion, confiscation, however arbitrary and to whatever extent, might go on. In the energetic language of the Supreme Court of Maine: "This duty and consequent power override all statute or contract exemptions. The state cannot free any person or corporation from subjection to this power. All personal, as well as property rights must be held subject to the Police Power of the state."[22] Once the theory of the Police Power was established it became desirable to define the limits of judicial discretion, but that proved to be impossible. It could not be determined in advance by abstract reasoning. Hence, as each litigation arose, the judges could follow no rule but the rule of common sense, and the Police Power, translated into plain English, presently came to signify whatever, at the moment, the judges happened to think reasonable. Consequently, they began guessing at the drift of public opinion, as it percolated to them through the medium of their education and prejudices. Sometimes they guessed right and sometimes wrong, and when they guessed wrong they were cast aside, as appeared dramatically enough in the temperance agitation. Up to about the middle of the last century the lawfulness of the liquor business had been unquestioned in the United States, and money had been invested as freely in it as in any other legitimate enterprise; but, as the temperance agitation swept over the country, in obedience to the impulsion given by science to the study of hygiene, dealing in liquor came to be condemned as a crime. Presently legislatures began to pass statutes to confiscate, more or less completely, this kind of property, and sufferers brought their cases before the courts to have the constitutionality of the acts tested, under the provisions which existed in all state constitutions, forbidding the taking, by the public, of private property without compensation, or without due process of law. Such a provision existed hi the constitution of the State of New York, adopted in 1846, and it was to invoke the protection of this clause that one Wynehamer, who had been indicted in 1855, carried his case to the Court of Appeals in the year 1856. In that cause Mr. Justice Comstock, who was one of the ablest jurists New York ever produced, gave an opinion which is a model of judicial' reasoning. He showed conclusively the absurdity of constitutional restrictions, if due process of law may be held to mean the enactment of the very statute drawn to work confiscation.[23] This decision, which represented the profoundest convictions of men of the calibre of Comstock and Denio, deserves to rank with Marshall's effort in the Dartmouth College Case. In both instances the tribunal exerted itself to carry out Hamilton's principle of judicial duty by exercising its _judgment_ and not its _will_. In other words, the judges propounded a general rule and then simply determined whether the set of facts presented to them fell within that rule. They resolutely declined to legislate by entering upon a consideration of the soundness or reasonableness of the policy which underlay the action of the legislature. In the one case as in the other the effort was unavailing, as Jefferson prophesied that it would be. I have told of Marshall's overthrow in the Charles River Bridge Case, and in 1887, after controversies of this category had begun to come before the Supreme Court of the United States under the Fourteenth Amendment, Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring an argument which was unanswerable.[24] The same series of phenomena have appeared in regard to laws confiscating property invested in lotteries, when opinion turned against lotteries, or in occupations supposed to be unsanitary, as in the celebrated case of the taxing out of existence of the rendering establishment which had been erected as a public benefit to relieve the City of Chicago of its offal.[25] In fine, whenever pressure has reached a given intensity, on one pretext or another, courts have enforced or dispensed with constitutional limitations with quite as much facility as have legislatures, and for the same reasons. The only difference has been that the pressure which has operated most directly upon courts has not always been the pressure which has swayed legislatures, though sometimes both influences have combined. For example, during the Civil War, the courts sanctioned everything the popular majority demanded under the pretext of the War Power, as in peace they have sanctioned confiscations for certain popular purposes, under the name of the Police Power. But then, courts have always been sensitive to financial influences, and if they have been flexible in permitting popular confiscation when the path of least resistance has lain that way, they have gone quite as far in the reverse direction when the amount of capital threatened has been large enough to be with them a countervailing force. As the federal Constitution originally contained no restriction upon the states touching the confiscation of the property of their own citizens, provided contracts were not impaired, it was only in 1868, by the passage of the Fourteenth Amendment, that the Supreme Court of the United States acquired the possibility of becoming the censor of state legislation in such matters. Nor did the Supreme Court accept this burden very willingly or in haste. For a number of years it labored to confine its function to defining the limits of the Police Power, guarding itself from the responsibility of passing upon the "reasonableness" with which that power was used. It was only by somewhat slow degrees, as the value of the threatened property grew to be vast, that the Court was deflected from this conservative course into effective legislation. The first prayers for relief came from the Southern states, who were still groaning under reconstruction governments; but as the Southern whites were then rather poor, their complaints were neglected. The first very famous cause of this category is known as the Slaughter House Cases. In 1869 the Carpet Bag government of Louisiana conceived the plan of confiscating most of the property of the butchers who slaughtered for New Orleans, within a district about as large as the State of Rhode Island. The Fourteenth Amendment forbade states to deprive any person of life, liberty, or property, without due process of law, and the butchers of New Orleans prayed for protection, alleging that the manner in which their property had been taken was utterly lawless. But the Supreme Court declined to interfere, explaining that the Fourteenth Amendment had been contrived to protect the emancipated slaves, and not to make the federal judiciary "a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve."[26] Although, even at that relatively early day, this conservatism met with strong opposition within the Court itself, the pressure of vested wealth did not gather enough momentum to overcome the inertia of the bench for nearly another generation. It was the concentration of capital in monopoly, and the consequent effort by the public to regulate monopoly prices, which created the stress which changed the legal equilibrium. The modern American monopoly seems first to have generated that amount of friction, which habitually finds vent in a great litigation, about the year 1870; but only some years later did the states enter upon a determined policy of regulating monopoly prices by law, with the establishment by the Illinois legislature of a tariff for the Chicago elevators. The elevator companies resisted, on the ground that regulation of prices in private business was equivalent to confiscation, and so in 1876 the Supreme Court was dragged into this fiercest of controversies, thereby becoming subject to a stress to which no judiciary can safely be exposed. Obviously two questions were presented for adjudication: The first, which by courtesy might be termed legal, was whether the fixing of prices by statute was a prerogative which a state legislature might constitutionally exercise at all; the second, which was purely political, was whether, admitting that, in the abstract, such a power could be exercised by the state, Illinois had, in this particular case, behaved _reasonably_. The Supreme Court made a conscientious effort to adhere to the theory of Hamilton, that it should, in emergencies like this, use its _judgment_ only, and not its _will_; that it should lay down a rule, not vote on the wisdom of a policy. So the judges decided that, from time immemorial, the fixing of prices in certain trades and occupations had been a legislative function, which they supposed might be classified as a branch of the Police Power, but they declared that with this expression of opinion their jurisdiction ended. When it came to asking them to criticise the propriety of legislation, it was, in substance, proposing that they should substitute their _will_ for the _will_ of the representatives of the people, which was impossible. I well remember the stir made by the case of Munn _v_. Illinois.[27] Both in and out of the legal profession, those in harmony with the great vested interests complained that the Court had shirked its duty. But these complaints soon ceased, for a movement was in progress which swept, for the moment, all before it. The great aggregations of capital, which had been accumulating ever since the Charles River Bridge Case, not long after Munn _v._ Illinois attained to a point at which they began to grasp many important prerogatives of sovereignty, and to impose, what was tantamount to, arbitrary taxation upon a large scale. The crucial trial of strength came on the contest for control of the railways, and in that contest concentrated capital prevailed. The Supreme Court reversed its attitude, and undertook to do that which it had solemnly protested it could not do. It began to censor legislation in the interest of the strongest force for the time being, that force being actually financial. By the year 1800 the railway interest had expanded prodigiously. Between 1876 and 1890 the investment in railways had far more than doubled, and, during the last five years of this period, the increment had been at an average of about $450,000,000 annually. At this point the majority of the court yielded, as ordinary political chambers always must yield, to extraordinary pressure. Mr. Justice Bradley, however, was not an ordinary man. He was, on the contrary, one of the ablest and strongest lawyers who sat on the federal bench during the last half of the nineteenth century; and Bradley, like Story before him, remonstrated against turning the bench of magistrates, to which he belonged, from a tribunal which should propound general rules applicable to all material facts, into a jury to find verdicts on the reasonableness of the votes of representative assemblies. The legislature of Minnesota, in 1887, passed a statute to regulate railway rates, and provided that the findings of the commission which it erected to fix those rates should be final. The Chicago, Milwaukee & St. Paul Railway contended that this statute was unconstitutional, because it was unreasonable, and the majority of the Court sustained their contention.[28] Justices Bradley, Gray, and Lamar dissented, and Bradley on this occasion delivered an opinion, from which I shall quote a paragraph or two, since the argument appears to me conclusive, not only from the point of view of law, but of political expediency and of common sense:-- "I cannot agree to the decision of the court in this case. It practically overrules Munn _v._ Illinois.... The governing principle of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative prerogative, and not a judicial one. This is a principle which I regard as of great importance.... "But it is said that all charges should be reasonable, and that none but reasonable charges can be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is preëminently a legislative one, involving considerations of policy as well as of remuneration.... By the decision now made we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regulation of fares and freights of railroads.... It is an assumption of authority on the part of the judiciary which, ... it has no right to make. The assertion of jurisdiction by this court makes it the duty of every court of general jurisdiction, state or federal, to entertain complaints [of this nature], for all courts are bound by the Constitution of the United States, the same as we are." There is little to add to these words. When the Supreme Court thus undertook to determine the reasonableness of legislation it assumed, under a somewhat thin disguise, the position of an upper chamber, which, though it could not originate, could absolutely veto most statutes touching the use or protection of property, for the administration of modern American society now hinges on this doctrine of judicial dispensation under the Police Power. Whether it be a regulation of rates and prices, of hours of labor, of height of buildings, of municipal distribution of charity, of flooding a cranberry bog, or of prescribing to sleeping-car porters duties regarding the lowering of upper berths,--in questions great and small, the courts vote upon the reasonableness of the use of the Police Power, like any old-fashioned town meeting. There is no rule of law involved. There is only opinion or prejudice, or pecuniary interest. The judges admit frankly that this is so. They avow that they try to weigh public opinion, as well as they can, and then vote. In 1911 Mr. Justice Holmes first explained that the Police Power extended to all great public needs, and then went on to observe that this Police Power, or extraordinary prerogative, might be put forth by legislatures "in aid of what is sanctioned by usage, or held by ... preponderant opinion to be ... necessary to the public welfare."[29] A representative chamber reaches its conclusions touching "preponderant opinion" by a simple process, but the influences which sway courts are obscurer,--often, probably, beyond the sphere of the consciousness of the judges themselves. Nor is this the worst; for, as I have already explained, the very constitution of a court, if it be a court calculated to do its legitimate work upon a lofty level, precludes it from keeping pace with the movement in science and the arts. Necessarily it lags some years behind. And this tendency, which is a benefit in the dispensation of justice as between private litigants, becomes a menace when courts are involved in politics. A long line of sinister precedents crowd unbidden upon the mind. The Court of King's Bench, when it held Hampden to be liable for the Ship Money, draped the scaffold for Charles I. The Parliament of Paris, when it denounced Turgot's edict touching the corvée, threw wide the gate by which the aristocracy of France passed to the guillotine. The ruling of the Superior Court of the Province of Massachusetts Bay, in the case of the Writs of Assistance, presaged the American Revolution; and the Dred Scott decision was the prelude to the Civil War. The capital essential of justice is that, under like conditions, all should fare alike. The magistrate should be no respecter of persons. The vice of our system of judicial dispensation is that it discriminates among suitors in proportion to their power of resistance. This is so because, under adequate pressure, our courts yield along the path of least resistance. I should not suppose that any man could calmly turn over the pages of the recent volumes of the reports of the Supreme Court of the United States and not rise from the perusal convinced that the rich and the poor, the strong and the weak, do not receive a common measure of justice before that judgment seat. Disregarding the discrimination which is always apparent against those who are unpopular, or who suffer under special opprobrium, as do liquor dealers, owners of lotteries, and the like,[30] I will take, nearly at random, a couple of examples of rate regulation, where tenderness has been shown property in something approaching to a mathematical ratio to the amount involved. In April, 1894, a record was produced before the Supreme Court which showed that the State of North Dakota had in 1891 established rates for elevating and storing grain, which rates the defendant, named Brass, who owned a small elevator, alleged to be, to him in particular, _utterly_ ruinous, and to be in general unreasonable. He averred that he used his elevator for the storage of his own grain, that it cost about $3000, that he had no monopoly, as there were many hundred such elevators in the state, and, as land fit for the purpose of building elevators was plenty and cheap, that any man could build an elevator in the town in which he lived, as well as he; that the rates he charged were reasonable, and that, were he compelled to receive grain generally at the rates fixed by the statute, he could not store his own grain. All these facts were admitted by demurrer, and Brass contended that if any man's property were ever to be held to be appropriated by the public without compensation, and under no form of law at all save a predatory statute, it should be his; but the Supreme Court voted the Dakota statute to be a reasonable exercise of the Police Power,[31] and dismissed Brass to his fate. The converse case is a very famous one known as Smyth _v._ Ames,[32] decided four years later, in 1898. In that case it appeared that the State of Nebraska had, in 1893, reduced freight rates within the state about twenty-nine per cent, in order to bring them into some sort of relation to the rates charged in the adjoining State of Iowa, which were calculated to be forty per cent lower than the Nebraska rates. Several of the most opulent and powerful corporations of the Union were affected by this law, among others the exceedingly prosperous and influential Chicago, Burlington & Quincy Railway. No one pretended that, were the law to be enforced, the total revenues of the Burlington would be seriously impaired, nor was it even clear that, were the estimate of reduction, revenue, and cost confined altogether to the commerce carried on within the limits of the State of Nebraska, leaving interstate commerce out of consideration, a loss would be suffered during the following year. Trade might increase with cheaper rates, or economies might be made by the company, or both causes and many others of increased earnings might combine. Corporation counsel, however, argued that, were the principle of the statute admitted, and should all the states through which the line passed do the like, ultimately a point might be reached at which the railway would be unable to maintain, even approximately, its dividend of eight per cent, and that the creation of such a possibility was conceding the power of confiscation, and, therefore, an unreasonable exercise of the Police Power, by the State of Nebraska. With this argument the Supreme Court concurred. They held the Nebraska statute to be unreasonable. Very possibly it may have been unsound legislation, yet it is noteworthy that within three years after this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the rate of $200 for every share of stock of the par value of $100, thus fixing forever, on the community tributary to the road, the burden of paying a revenue on just double the value of all the stock which it had been found necessary to issue to build the highway. Even at this price Mr. Hill is supposed to have made a brilliant bargain. This brings me to the heart of my theorem. Ever since Hamilton's time, it has been assumed as axiomatic, by conservative Americans, that courts whose function is to expound a written constitution can and do act as a "barrier to the encroachments and oppressions of the representative body."[33] I apprehend that courts can perform no such office and that in assuming attributes beyond the limitations of their being they, as history has abundantly proved, not only fail in their object, but shake the foundations of authority, and immolate themselves. Hitherto I have confined myself to adducing historical evidence to prove that American courts have, as a whole, been gifted with so little political sagacity that their interference with legislation, on behalf of particular suitors, has, in the end, been a danger rather than a protection to those suitors, because of the animosity which it has engendered. I shall now go further. For the sake of argument I am willing to admit that the courts, in the exercise of the dispensing prerogative, called the Police Power, have always acted wisely, so much so that every such decree which they have issued may be triumphantly defended upon economic, moral, or social grounds. Yet, assuming this to be true, though I think I have shown it to be untrue, the assumption only strengthens my contention, that our courts have ceased to be true courts, and are converted into legislative chambers, thereby promising shortly to become, if they are not already, a menace to order. I take it to be clear that the function of a legislature is to embody the will of the dominant social force, for the time being, in a political policy explained by statutes, and when that policy has reached a certain stage of development, to cause it to be digested, together with the judicial decisions relevant to it, in a code. This process of correlation is the highest triumph of the jurist, and it was by their easy supremacy in this field of thought, that Roman lawyers chiefly showed their preeminence as compared with modern lawyers. Still, while admitting this superiority, it is probably true that the Romans owed much of their success in codification to the greater permanence of the Roman legislative tenure of office, and, therefore, stability of policy,--phenomena which were both probably effects of a slower social movement among the ancients. The Romans, therefore, had less need than we of a permanent judiciary to counteract the disintegrating tendency of redundant legislation; _a fortiori_, of course, they had still less to isolate the judiciary from political onslaughts which might cause justice to become a series of exceptions to general principles, rather than a code of unvarying rules. It is precisely because they are, and are intended to be, arenas of political combat, that legislatures cannot be trustworthy courts, and it was because this fact was notorious that the founders of this government tried to separate the legislative from the judicial function, and to make this separation the foundation of the new republic. They failed, as I conceive, not because they made their legislatures courts, but because, under the system they devised, their courts have become legislatures. A disease, perhaps, the more insidious of the two. Insidious because it undermines, order, while legislative murder and confiscation induce reaction. If a legislative chamber would act as a court, the first necessity is to eliminate its legislative character. For example, the House of Lords in England has long discharged the duties of a tribunal of last resort for the empire, and with general approbation, but only because, when sitting as a court, the law lords sit alone. Politicians and political influences are excluded. Where political influences enter disaster follows. Hence the infamous renown of political decisions in legal controversies, such as bills of attainder and _ex post facto_ laws, or special legislation to satisfy claims which could not be defended before legitimate courts, or the scandals always attending the trial of election petitions. The object of true courts is to shield the public from these and kindred abuses. In primitive communities courts are erected to defend the weak against the strong, by correlating local customs in such wise that some general principle can be deduced which shall protect the civil rights of those who cannot protect themselves, against the arbitrary exactions of powerful neighbors. In no community can every person have equal civil rights. That is impossible. Civil rights must vary according to status. But such rights as any person may have, those the courts are bound to guard indifferently. If the courts do not perform this, their first and most sacred duty, I apprehend that order cannot be permanently maintained, for this is equality before the law; and equality before the law is the cornerstone of order in every modern state. I conceive that the lawyers of the age of Washington were the ablest that America has ever produced. No men ever understood the principle of equality before the law more thoroughly than they, and after the establishment of this government a long series of great and upright magistrates strove, as I have shown, to carry this principle into effect. Jay and Marshall, Story and Bradley, and many, many more, struggled, protested, and failed. Failed, as I believe, through no fault of their own, but because fortune had placed them in a position untenable for the judge. When plunged in the vortex of politics, courts must waver as do legislatures, and nothing is to me more painful than to watch the process of deterioration by which our judges lose the instinct which should warn them to shun legislation as a breach of trust, and to cleave to those general principles which permit of no exceptions. To illustrate my meaning I shall refer to but one litigation, but that one is so extraordinary that I must deal with it in detail. In 1890 the dread of the enhancement of prices by monopoly, as the Supreme Court itself has explained, caused Congress to pass the famous Sherman Act, which prohibited indiscriminately all monopolies or restraints of trade. Presently the government brought a bill to dissolve an obnoxious railway pool, called the Trans-Missouri Freight Association, and in 1896 the case came up for adjudication. I have nothing to say touching the policy involved. I am only concerned with a series of phenomena, developed through several years, as effects of pressure acting upon a judiciary, exposed as the judiciary, under our system, is exposed. The Trans-Missouri Case was argued on December 8, 1896, very elaborately and by the most eminent counsel. After long consideration, and profound reflection, Mr. Justice Peckham, speaking for the majority of the tribunal, laid down a general principle in conformity to the legislative will, precisely as Marshall had laid down a general principle in the Dartmouth College Case, or Story in the Charles River Bridge Case, or Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then the process of agitation immediately began. In the words of Mr. Justice Harlan, fifteen years later: "But those who were in combinations that were illegal did not despair. They at once set up the baseless claim that the decision of 1896 disturbed the 'business interests of the country,' and let it be known that they would never be content until the rule was established that would permit interstate commerce to be subjected to _reasonable_ restraints."[34] Other great causes, involving the same issue, were tried, the question was repeatedly reargued, but the Supreme Court tenaciously adhered to its general principle, that, under the Sherman Act, _all_ restraints of trade, or monopolies, were unlawful, and, therefore, the Court had but two matters before it, first to define a restraint of trade or a monopoly, second to determine whether the particular combination complained of fell within that definition. No discretion was permitted. Judicial duty ended there. The Court being found to be inflexible, recourse was had to Congress, and a bill in the form of an amendment to the Sherman Act was brought into the Senate authorizing, in substance, those who felt unsafe under the law, to apply to certain government officials, to be permitted to produce evidence of the reasonable methods they employed, and, if the evidence were satisfactory, to receive, what was tantamount to, an indulgence. The subject thus reopened, the Senate Committee on the Judiciary went into the whole question of monopoly anew, and in 1909 Senator Nelson presented an exhaustive report against the proposed relaxation. Thereupon the Senate indefinitely postponed further consideration of the amendment. The chief reasons given by Senator Nelson were summed up in a single sentence: "The defence of reasonable restraint would be made in every case and there would be as many different rules of reasonableness as cases, courts, and juries.... To amend the anti-trust act, as suggested by this bill, would be to entirely emasculate it, and for all practical purposes render it nugatory as a remedial statute.... The act as it exists is clear, comprehensive, certain and highly remedial. It practically covers the field of federal jurisdiction, and is in every respect a model law. To destroy or undermine it at the present juncture, ... would be a calamity. "In view of the foregoing, your committee recommend the indefinite postponement of the bill."[35] And so the Senate did indefinitely postpone the bill. Matters stood thus when the government brought process to dissolve the Standard Oil Company, as an unlawful combination. The cause was decided on May 15, 1911, the Chief Justice speaking for the majority of the bench, in one of the most suggestive opinions which I have ever read. To me this opinion, like Taney's opinion in the Charles River Bridge Case, indicates that the tension had reached the breaking point, the court yielding in all directions at once, while the dominant preoccupation of the presiding judge seemed to be to plant his tribunal in such a position that it could so yield, without stultifying itself hopelessly before the legal profession and the public. In striving to reach this position, however, I apprehend that the Chief Justice, unreservedly, crossed the chasm on whose brink American jurists had been shuddering for ninety years. The task the Chief Justice assumed was difficult almost beyond precedent. He proposed to surrender to the vested interests the principle of _reasonableness_ which they demanded, and which the tribunal he represented, together with Congress, had refused to surrender for fifteen years. To pacify the public, which would certainly resent this surrender, he was prepared to punish two hated corporations, while he strove to preserve, so far as he could, the respect of the legal profession and of the public, for the court over which he presided, by maintaining a semblance of consistency. To accomplish these contradictory results, the Chief Justice began, rather after the manner of Marshall in Marbury _v_. Madison, by an extra-judicial disquisition. The object of this disquisition was to justify his admission of the evidence of reasonableness as a defence, although it was not needful to decide that such evidence must be admitted in order to dispose of that particular cause. For the Chief Justice very readily agreed that the Standard Oil Company was, in fact, an unreasonable restraint of trade, and must be dissolved, no matter whether it were allowed to prove its reasonable methods or not. Accordingly, he might have contented himself with stating that, admitting for the sake of argument but without approving, all the defendant advanced, he should sustain the government; but to have so disposed of the case would not have suited his purpose. What the Chief Justice had it at heart to do was to surrender a fundamental principle, and yet to appear to make no surrender at all. Hence, he prepared his preliminary and extra-judicial essay on the human reason, of whose precise meaning, I must admit, I still, after many perusals, have grave doubts. I sometimes suspect that the Chief Justice did not wish to be too explicit. So far as I comprehend the Chief Justice, his chain of reasoning amounted to something like this: It was true, he observed, that for fifteen years the Supreme Court had rejected the evidence of reasonableness which he admitted, and had insisted upon a general principle which he might be supposed to renounce, but this apparent discrepancy involved no contradiction. It was only a progression in thought. For, he continued, the judges who, on various previous occasions, sustained that general principle, must have reached their conclusions by the light of reason; to-day we reach a contrary conclusion, but we also do so by the light of reason; therefore, as all these decisions are guided by the light of reason they fundamentally coincide, however much superficially they may seem to differ.[36] I have never supposed that this argument carried complete conviction either to the legal profession, to the public, or to Congress. Certainly, it did not convince Mr. Justice Harlan, who failed to fathom it, and bluntly expressed his astonishment in a dissenting opinion in another cause from which I regret to say I can only quote a couple of paragraphs, although the whole deserves attentive perusal:-- "If I do not misapprehend the opinion just delivered, the Court insists that what was said in the opinion in the Standard Oil Case, was in accordance with our previous decisions in the Trans-Missouri and Joint Traffic Cases, ... if we resort to _reason_. This statement surprises me quite as much as would a statement that black was white or white was black." "But now the Court, in accordance with what it denominates the 'rule of reason,' in effect inserts in the act the word 'undue,' which means the same as 'unreasonable,' and thereby makes Congress say what it did not say.... And what, since the passage of the act, it has explicitly refused to say.... In short, the Court now, by judicial legislation, in effect, amends an Act of Congress relating to a subject over which that department of the Government has exclusive cognizance."[37] The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly comprehensible, if we reflect a little on the conflict of forces involved, and on the path of least resistance open to an American judge seeking to find for this conflict, a resultant. The regulation or the domination of monopoly was an issue going to the foundation of society, and popular and financial energy had come into violent impact in regard to the control of prices. Popular energy found vent through Congress, while the financiers, as financiers always have and always will, took shelter behind the courts. Congress, in 1890, passed a statute to constrain monopolies, against which financiers protested as being a species of confiscation, and which the Chief Justice himself thought harsh. To this statute the Supreme Court gave a harsh construction, as the Chief Justice had more than once pointed out, when he was still an associate upon the bench. From a series of these decisions an appeal had been made to Congress, and the Senate, in the report from which I have quoted, had sustained the construction given to the statute by the majority of his brethren with whom the Chief Justice differed. Since the last of these decisions, however, the complexion of the bench had been considerably changed by new appointments, much as it had been after Hepburn _v_. Griswold, and an opportunity seemed to be presented to conciliate every one. In any other country than the United States, a chief justice so situated would doubtless have affirmed the old precedents, permitting himself, at most, to point out the mischief which, he thought, they worked. Not so a lawyer nurtured under the American constitutional system, which breeds in the judge the conviction that he is superior to the legislator. His instinct, under adequate pressure, is always to overrule anything repugnant to him that a legitimate legislative assembly may have done. In this instance, had the case been one of first impression, nothing would have been easier than to have nullified the Sherman Act as an unreasonable exercise of the Police Power, as judges had been nullifying statutes of which they disapproved for a couple of generations previously; but the case was not one of first impression. On the contrary, the constitutionality of the Sherman Act had been so often upheld by the judiciary that the Chief Justice himself admitted that so long as Congress allowed him to use his reason, these "contentions [were] plainly foreclosed." Therefore, for him the path of least resistance was to use his _reason_, and, as a magistrate, to amend a statute which Congress ought to have amended, but had _unreasonably_ omitted to amend. Such was the final and logical result of the blending of judicial and legislative functions in a court, as they are blended under the American constitutional system. Nor is it unworthy of remark, that the Chief Justice, in abstaining from questioning the constitutionality of the act, expressly intimated that he did so because, by the use of his reason, he could make that reasonable and constitutional which otherwise might be unreasonable and unconstitutional. The defendants pressed the argument that destroying the freedom of contract, as the Sherman Law destroyed it, was to infringe upon the "constitutional guaranty of due process of law." To this the Chief Justice rejoined: "But the ultimate foundation of all these arguments is the assumption that reason may not be resorted to in interpreting and applying the statute.... As the premise is demonstrated to be unsound by the construction we have given the statute," these arguments need no further notice.[38] Should Congress amend the Sherman Act, as it seems somewhat disposed to do, by explicitly enacting the rule of the Trans-Missouri Case, a grave issue would be presented. The Chief Justice might submit, and thus avert, temporarily at least, a clash; or, he might hold such an amendment unconstitutional as denying to the Court the right to administer the law according to due process. A trial of strength would then be imminent. Nearly a century ago, Jefferson wrote to Spencer Roane, "The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."[39] And however much we may recoil from admitting Jefferson's conclusion to be true, it none the less remains the fact that it has proved itself to be true, and that the people have recognized it to be true, and have taken measures to protect themselves by bringing the judiciary under the same degree of control which they enforce on other legislators. The progression has been steady and uniform, each advance toward an assumption of the legislative function by the judiciary having been counterbalanced by a corresponding extension of authority over the courts by the people. First came the protest against Marbury and Madison in the impeachment of Chase, because, as Giles explained, if judges were to annul laws, the dominant party must have on the bench judges they could trust. Next the Supreme Court of New York imagined the theory of the Police Power, which was adopted by the Supreme Court of the United States in 1837. But it stood to reason that if judges were to suspend constitutional limitations according to their notions of reasonableness, the people must have the means of securing judges whose views touching reasonableness coincided with their own. And behold, within ten years, by the constitution of 1846, New York adopted an elective judiciary. Then followed the Dred Scott Case, the Civil War, and the attack on legislative authority in Hepburn _v_. Griswold. Straightway the Court received an admonition which it remembered for a generation. Somewhat forgetful of this, on May 15, 1911, Chief Justice White gave his opinion in the Standard Oil Case, which followed hard upon a number of state decisions intended to override legislation upon several burning social issues. Forthwith, in 1912, the proposition to submit all decisions involving a question of constitutional law to a popular vote became an issue in a presidential election. Only one step farther could be taken, and that we see being taken all about us. Experience has shown, in New York and elsewhere, that an election, even for a somewhat short term, does not bring the judge so immediately under popular control that decisions objectionable to the majority may not be made. Hence the recall. The degradation of the judicial function can, in theory at least, go no farther. Thus the state courts may be said already to be prostrate, or likely shortly to become prostrate. The United States courts alone remain, and, should there be a struggle between them and Congress, the result can hardly be doubted. An event has recently occurred abroad which we may do well to ponder. Among European nations England has long represented intelligent conservatism, and at the heart of her conservatism lay the House of Lords. Through many centuries; and under many vicissitudes this ancient chamber had performed functions of the highest moment, until of late it had come to occupy a position not dissimilar to that which the Supreme Court of the United States yet holds. On one side it was the highest legal tribunal of the Empire, on the other it was a non-representative assembly, seldom indeed originating important legislation, but enjoying an absolute veto on legislation sent it from the Commons. One day in a moment of heated controversy the Lords vetoed a bill on which the Commons had determined. A dissolution followed and the House of Lords, as a political power, faded into a shadow; yet, notwithstanding this, its preeminence as a court has remained intact. Were a similar clash to occur in America no such result could be anticipated. Supposing a President, supported by a congressional majority, were to formulate some policy no more subversive than that which has been formulated by the present British Cabinet, and this policy were to be resisted, as it surely would be, by potent financial interests, the conflicting forces would converge upon the Supreme Court. The courts are always believed to tend toward conservatism, therefore they are generally supported by the conservative interest, both here and elsewhere. In this case a dilemma would be presented. Either the judges would seek to give expression to "preponderant" popular opinion, or they would legislate. In the one event they would be worthless as a restraining influence. In the other, I apprehend, a blow would fall similar to the blow which fell upon the House of Lords, only it would cut deeper. Shearing the House of Lords of political power did not dislocate the administration of English justice, because the law lords are exclusively judges. They never legislate. Therefore no one denounced them. Not even the wildest radical demanded that their tenure should be made elective, much less that they should be subjected to the recall. With us an entirely different problem would be presented for solution. A tribunal, nominally judicial, would throw itself across the path of the national movement. It would undertake to correct a disturbance of the social equilibrium. But what a shifting of the social equilibrium means, and what follows upon tampering with it, is a subject which demands a chapter by itself. FOOTNOTES: [18] 6 Cranch 135. [19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812. [20] Coates _v_. Mayor of New York, 7 Cowen 585. [21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553. [22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393. [23] Wynehamer _v_. The People, 13 N.Y. 393. [24] Mugler _v._ Kansas, 133 U.S. 623. [25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659. [26] Slaughter House Cases, 16 Wallace 78, decided in 1873. [27] 94 U.S. 113. [28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461, decided March 24, 1890. [29] Noble State Bank _v._ Haskell, 219 U.S. 104. [30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488, which must be read in connection with Gregory _v._ Trustees of Shelby College, 2 Metc. (Kentucky) 589. [31] Brass _v._ North Dakota, 133 U.S. 391. [32] 169 U.S. 466. [33] _The Federalist_, No. LXXVIII. [34] 221 U.S. 91. [35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11. [36] Standard Oil Company _v_. United States, 221 U.S. 1. [37] United States _v_. American Tobacco Company, 221 U.S. 191, 192. [38] 221 U.S. 69. [39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. CHAPTER IV THE SOCIAL EQUILIBRIUM I assume it as self-evident that those who, at any given moment, are the strongest in any civilization, will be those who are at once the ruling class, those who own most property, and those who have most influence on legislation. The weaker will fare hardly in proportion to their weakness. Such is the order of nature. But, since those are the strongest through whom nature finds it, for the time being, easiest to vent her energy, and as the whole universe is in ceaseless change, it follows that the composition of ruling classes is never constant, but shifts to correspond with the shifting environment. When this movement is so rapid that men cannot adapt themselves to it, we call the phenomenon a revolution, and it is with revolutions that I now have to do. Nothing is more certain than that the intellectual adaptability of the individual man is very limited. A ruling class is seldom conscious of its own decay, and most of the worst catastrophes of history have been caused by an obstinate resistance to change when resistance was no longer possible. Thus while an incessant alteration in social equilibrium is inevitable, a revolution is a problem in dynamics, on the correct solution of which the fortunes of a declining class depend. For example, the modern English landlords replaced the military feudal aristocracy during the sixteenth century, because the landlords had more economic capacity and less credulity. The men who supplanted the mediaeval soldiers in Great Britain had no scruple about robbing the clergy of their land, and because of this quality they prospered greatly. Ultimately the landlords reached high fortune by controlling the boroughs which had, in the Middle Ages, acquired the right to return members to the House of Commons. Their domination lasted long; nevertheless, about 1760, the rising tide of the Industrial Revolution brought forward another type of mind. Flushed by success in the Napoleonic wars the Tories failed to appreciate that the social equilibrium, by the year 1830, had shifted, and that they no longer commanded enough physical force to maintain their parliamentary ascendancy. They thought they had only to be arrogant to prevail, and so they put forward the Duke of Wellington as their champion. They could hardly have made a poorer choice. As Disraeli has very truly said, "His Grace precipitated a revolution which might have been delayed for half a century, and need never have occurred in so aggravated a form." The Duke, though a great general, lacked knowledge of England. He began by dismissing William Huskisson from his Cabinet, who was not only its ablest member, but perhaps the single man among the Tories who thoroughly comprehended the industrial age. Huskisson's issue was that the franchise of the intolerably corrupt East Retford should be given to Leeds or Manchester. Having got rid of Huskisson, the Duke declared imperiously that he would concede nothing to the disfranchised industrial magnates, nor to the vast cities in which they lived. A dissolution of Parliament followed and in the election the Tories were defeated. Although Wellington may not have been a sagacious statesman, he was a capable soldier and he knew when he could and when he could not physically fight. On this occasion, to again quote Disraeli, "He rather fled than retired." He induced his friends to absent themselves from the House of Lords and permit the Reform Bill to become law. Thus the English Tories, by their experiment with the Duke of Wellington, lost their boroughs and with them their political preeminence, but at least they saved themselves, their families, and the rest of their property. As a class they have survived to this day, although shorn of much of the influence which they might very probably have retained had they solved more correctly the problem of 1830. In sum, they were not altogether impervious to the exigencies of their environment. The French Revolution is the classic example of the annihilation of a rigid organism, and it is an example the more worthy of our attention as it throws into terrible relief the process by which an intellectually inflexible race may convert the courts of law which should protect their decline into the most awful engine for their destruction. The essence of feudalism was a gradation of rank, in the nature of caste, based upon fear. The clergy were privileged because the laity believed that they could work miracles, and could dispense something more vital even than life and death. The nobility were privileged because they were resistless in war. Therefore, the nobility could impose all sorts of burdens upon those who were unarmed. During the interval in which society centralized and acquired more and more a modern economic form, the discrepancies in status remained, while commensurately the physical or imaginative force which had once sustained inequality declined, until the social equilibrium grew to be extremely unstable. Add to this that France, under the monarchy, was ill consolidated. The provinces and towns retained the administrative complexity of an archaic age, even to local tariffs. Thus under the monarchy privilege and inequality pervaded every phase of life, and, as the judiciary must be, more or less, the mouthpiece of society, the judiciary came to be the incarnation of caste. Speaking broadly, the judicial office, under the monarchy, was vendible. In legal language, it was an incorporeal hereditament. It could be bought and sold and inherited like an advowson, or right to dispose of a cure of souls in the English Church, or of a commission in the English army. The system was well recognized and widespread in the eighteenth century, and worked fairly well with the French judiciary for about three hundred years, but it was not adapted to an industrial environment. The judicial career came to be pretty strongly hereditary in a few families, and though the members of these families were, on the whole, self-respecting, honest, and learned, they held office in their own right and not as a public trust. So in England members of the House of Commons, who sat for nomination boroughs, did not, either in fact or theory, represent the inhabitants of those boroughs, but patrons; and in like manner French judges could never learn to regard themselves as the trustees of the civil rights of a nation, but as a component part of a class who held a status by private title. Looked at as a problem in dynamics the inherent vice in all this kind of property and in all this administrative system, was the decay, after 1760, of the physical force which had engendered it and defended it. As in England the ascendancy of the landlords passed away when England turned from an agricultural into an industrial society, so in France priests and nobles fell into contempt, when most peasants knew that the Church could neither harm by its curse nor aid by its blessing, and when commissions in the army were given to children or favorites, as a sort of pension, while the pith of the nation was excluded from military command because it could not prove four quarterings of nobility. Hardly an aristocrat in France had shown military talent for a generation, while, when the revolution began, men like Jourdan and Kleber, Ney and Augereau, and a host of other future marshals and generals had been dismissed from the army, or were eating out their hearts as petty officers with no hope of advancement. Local privileges and inequalities were as intolerable as personal. There were privileged provinces and those administered arbitrarily by the Crown, there were a multiplicity of internal tariffs, and endless municipal franchises and monopolies, so much so that economists estimated that, through artificial restraints, one-quarter of the soil of France lay waste. Turgot, in his edict on the grain trade, explained that kings in the past by ordinance, or the police without royal authority, had compiled a body "of legislation equivalent to a prohibition of bringing grain into Paris," and this condition was universal. One province might be starving and another oppressed with abundance. Meanwhile, under the stimulant of applied science, centralization went on resistlessly, and the cost of administration is proportionate to centralization. To bear the burden of a centralized government taxes must be equal and movement free, but here was a rapidly centralizing nation, the essence of whose organism was that taxes should be unequal and that movement should be restricted. As the third quarter of the eighteenth century closed with the death of Louis XV, all intelligent French administrators recognized the dilemma; either relief must be given, or France must become insolvent, and revolution supervene upon insolvency. But for the aristocracy revolution had no terrors, for they believed that they could crush revolution as their class had done for a thousand years. Robert Turgot was born in 1727, of a respectable family. His father educated him for the Church, but lack of faith caused him to prefer the magistracy, and on the death of his father he obtained a small place in the Court of Parliament. Afterward he became a Master of Requests, and served for seven years in that judicial position, before he was made Intendant of the Province of Limousin. Even thus early in life Turgot showed political sagacity. In an address at the Sorbonne he supported the thesis that "well-timed reform alone averts revolution." Distinguishing himself as Intendant, on the death of Louis XV the King called Turgot to the Council of State, and in August, 1774, Turgot became Minister of Finance. He came in pledged to reform, and by January, 1776, he had formulated his plan. In that month he presented to the King his memorable Six Edicts, the first of which was the most celebrated state paper he ever wrote. It was the Edict for the Suppression of the Corvée. The corvée threw the burden of maintaining the highways on the peasantry by exacting forced labor. It was admittedly the most hateful, the most burdensome, and the most wasteful of all the bad taxes of the time, and Turgot, following the precedent of the Roman Empire, advised instead a general highway impost. The proposed impost in itself was not considerable, and would not have been extraordinarily obnoxious to the privileged classes, but for the principle of equality by which Turgot justified it: "The expenses of government having for their object the interests of all, all should contribute to them; and the more advantages a man has, the more that man should contribute." Nor was this the most levelling of Turgot's arguments. He pointed out that though originally the exemption from taxation, which the nobility enjoyed, might have been defended on the ground that the nobles were bound to yield military service without pay, such service had long ceased to be performed, while on the contrary titles could be bought for money. Hence every wealthy man became a noble when he pleased, and thus exemption from taxation had come to present the line of cleavage between the rich and poor. By this thrust the privileged classes felt themselves wounded in their vitals, and the Parliament of Paris, the essence of privilege, assumed their defence. To be binding, the edicts had to be registered by the Parliament among the laws of France, and Parliament declined to make registration on the ground that the edicts were unconstitutional, as subversive of the monarchy and of the principle of order. The opinion of the court was long, but a single paragraph gives its purport: "The first rule of justice is to preserve to every one what belongs to him: this rule consists, not only in preserving the rights of property, but still more in preserving those belonging to the person, which arise from the prerogative of birth and of position.... From this rule of law and equity it follows that every system which, under an appearance of humanity and beneficence, would tend to establish between men an equality of duties, and to destroy necessary distinctions, would soon lead to disorder (the inevitable result of equality), and would bring about the overturn of civil society." This judicial opinion was an enunciation of the archaic law of caste as opposed to the modern law of equality, and the cataclysm of the French Revolution hinged upon the incapacity of the French aristocracy to understand that the environment, which had once made caste a necessity, had yielded to another which made caste an impossibility. In vain Turgot and his contemporaries of the industrial type, represented in England by Adam Smith or even by the younger Pitt, explained that unless taxes were equalized and movement accelerated, insolvency must supervene, and that a violent readjustment must follow upon insolvency. With their eyes open to the consequences, the Nobility and Clergy elected to risk revolt, because they did not believe that revolt could prevail against them. Nothing is so impressive in the mighty convulsion which ensued as the mental opacity of the privileged orders, which caused them to increase their pressure in proportion as resistance increased, until finally those who were destined to replace them reorganized the courts, that they might have an instrument wherewith to slaughter a whole race down to the women and children. No less drastic method would serve to temper the rigidity of the aristocratic mind. The phenomenon well repays an hour of study. Insolvency came within a decade after Turgot's fall, as Turgot had demonstrated that it must come, and an insolvency immediately precipitated by the rapacity of the court which had most need of caution. The future Louis XVIII, for example, who was then known as the Comte de Provence, on one occasion, when the government had made a loan, appropriated a quarter of it, laughingly observing, "When I see others hold out their hands, I hold out my hat." In 1787 the need for money became imperative, and, not daring to appeal to the nation, the King convoked an assembly of "notables," that is to say of the privileged. Calonne, the minister, proposed pretty much the measures of Turgot, and some of these measures the "notables" accepted, but the Parliament of Paris again intervened and declined to register the laws. The Provincial Parliaments followed the Parliament of Paris. After this the King had no alternative but to try the experiment of calling the States-General. They met on May 4, 1789, and instantly an administrative system, which no longer rested upon a social centre of gravity, crumbled, carrying the judiciary with it. At first the three estates sat separately. If this usage had continued, the Clergy and the Nobles combined would have annulled every measure voted by the Commons. For six weeks the Commons waited. Then on June 10, the Abbé Sieyès said, "Let us cut the cable. It is time." So the Clergy and the Nobility were summoned, and some of the Clergy obeyed. This sufficed. On motion of Sieyès, the Commons proclaimed themselves the National Assembly, and the orders fused. Immediately caste admitted defeat and through its mouthpiece, the King, commanded the Assembly to dissolve. The Commons refused to dissolve, and the Nobles prepared for a _coup d'etat._ The foreign regiments, in the pay of the government, were stationed about Paris, while the Bastille, which was supposed to be impregnable, was garrisoned with Swiss. In reply, on July 14, 1789, the citizens of Paris stormed the Bastille. An unstable social equilibrium had been already converted by pressure into a revolution. Nevertheless, excentric as the centre of gravity had now become, it might have been measurably readjusted had the privileged classes been able to reason correctly from premise to conclusion. Men like Lafayette and Mirabeau still controlled the Assembly, and if the King and the Nobility had made terms, probably the monarchy might have been saved, certainly the massacres would have been averted. As a decaying class is apt to do, the Nobility did that which was worst for themselves. Becoming at length partly conscious of a lack of physical force in France to crush the revolution, a portion of the nobility, led by the Comte d'Artois, the future Charles X, fled to Germany to seek for help abroad, while the bolder remained to plan an attack on the rebellion. On October 1, 1789, a great military banquet was given at Versailles. The King and Queen with the Dauphin were present. A royalist demonstration began. The bugles sounded a charge, the officers drew their swords, and the ladies of the court tore the tricolor from the soldiers' coats and replaced it with the white cockade. On October 5, a vast multitude poured out of Paris, and marched to Versailles. The next day they broke into the palace, killed the guards, and carried the King and Queen captive to the Tuileries. But Louis was so intellectually limited that he could not keep faith with those who wished him well. On July 14, 1790, the King swore, before half a million spectators, to maintain the new constitution. In that summer he was plotting to escape to Metz and join the army which had been collected there under the Marquis de Bouillé, while Bouillé himself, after the rising at Nancy, was busy in improving discipline by breaking on the wheel a selection of the soldiers of the Swiss regiment of Châteauvieux which had refused to march against Paris on the 14th of July, 1789. In October, 1790, Louis wrote to the King of Spain and other sovereigns to pay no heed to his concessions for he only yielded to duress, and all this even as Mirabeau made his supreme effort to save those who were fixed upon destroying themselves. Mirabeau sought the King and offered his services. The court sneered at him as a dupe. The Queen wrote, "We make use of Mirabeau, but we do not take him seriously." When Mirabeau awoke to his predicament, he broke out in mixed wrath and scorn: "Of what are these people thinking? Do they not see the abyss yawning at their feet? Both the King and Queen will perish, and you will live to see the rabble spurn their corpses." The King and Queen, the Nobility and Clergy, could not see the abyss which Mirabeau saw, any more than the lawyers could see it, because of the temper of their minds. In the eye of caste Europe was not primarily divided into nations to whom allegiance was due, but into superimposed orders. He who betrayed his order committed the unpardonable crime. Death were better than that. But to the true aristocrat it was inconceivable that serfs could ever vanquish nobles in battle. Battle must be the final test, and the whole aristocracy of Europe was certain, Frenchmen knew, to succor the French aristocracy in distress. So in the winter of 1790 the French fugitives congregated at Coblentz on the German frontier, persuaded that they were performing a patriotic duty in organizing an invasion of their country even should their onset be fatal to their relatives and to their King. And Louis doubted not that he also did his duty as a trustee of a divine commission when he in one month swore, before the Assembly, to maintain the constitution tendered him, and in the next authorized his brother, the Comte d'Artois, to make the best combination he could among his brother sovereigns for the gathering of an army to assert his divine prerogative. On June 21, 1791, Louis fled, with his whole family, to join the army of Bouillé, with intent to destroy the entire race of traitors from Mirabeau and Lafayette down to the peasants. He managed so ill that he was arrested at Varennes, and brought back whence he came, but he lied and plotted still. Two years had elapsed between the meeting of the States-General and the flight to Varennes, and in that interval nature had been busy in selecting her new favored class. Economists have estimated that the Church owned one-third of the land of Europe during the Middle Ages. However this may have been she certainly held a very large part of France. On April 16, 1790, the Assembly declared this territory to be national property, and proceeded to sell it to the peasantry by means of the paper _assignats_ which were issued for the purpose, and were supposed to be secured upon the land. The sales were generally made in little lots, as the sales were made of the public domain in Rome under the Licinian Laws, and with an identical effect. The Emperor of Germany and the King of Prussia met at Pilnitz in August, 1791, to consider the conquest of France, and, on the eve of that meeting, the Assembly received a report which stated that these lands to the value of a thousand million francs had already been distributed, and that sales were going on. It was from this breed of liberated husbandmen that France drew the soldiers who fought her battles and won her victories for the next five and twenty years. Assuming that the type of the small French landholder, both rural and urban, had been pretty well developed by the autumn of 1791, the crisis came rapidly, for the confiscations which created this new energy roused to frenzy, perhaps the most formidable energy which opposed it. The Church had not only been robbed of her property but had been wounded in her tenderest part. By a decree of June 12, 1790, the Assembly transferred the allegiance of the French clergy from the Pope to the state, and the priesthood everywhere vowed revenge. In May, 1791, the Marquis de la Rouërie, it is true, journeyed from his home in Brittany to Germany to obtain the recognition of the royal princes for the insurrection which he contemplated in La Vendée, but the insurrection when it occurred was not due so much to him or his kind as to the influence of the nonjuring priests upon the peasant women of the West. The mental condition of the French emigrants at Coblentz during this summer of 1791 is nothing short of a psychological marvel. They regarded the Revolution as a jest, and the flight to the Rhine as a picnic. These beggared aristocrats, male and female, would throw their money away by day among the wondering natives, and gamble among themselves at night. If they ever thought of the future it was only as the patricians in Pompey's camp thought; who had no time to prepare for a campaign against Caesar, because they were absorbed in distributing offices among themselves, or in inventing torments to inflict on the rebels. Their chief anxiety was lest the resistance should be too feeble to permit them to glut themselves with blood. The creatures of caste, the emigrants could not conceive of man as a variable animal, or of the birth of a race of warriors under their eyes. To them human nature remained constant. Such, they believed, was the immutable will of God. So it came to pass that, as the Revolution took its shape, a vast combination among the antique species came semi-automatically into existence, pledged to envelop and strangle the rising type of man, a combination, however, which only attained to maturity in 1793, after the execution of the King. Leopold II, Emperor of Germany, had hitherto been the chief restraining influence, both at Pilnitz and at Paris, through his correspondence with his sister, Marie Antoinette; but Leopold died on March 1, 1792, and was succeeded by Francis II, a fervid reactionist and an obedient son of the Church. Then caste fused throughout Germany, and Prussia and Austria prepared for war. Rouërie had returned to Brittany and only awaited the first decisive foreign success to stab the Revolution in the back. England also was ripening, and the instinct of caste, incarnated in George III, found its expression through Edmund Burke. In 1790 Burke published his "Reflections," and on May 6, 1791, in a passionate outbreak in the House of Commons, he renounced his friendship with Fox as a traitor to his order and his God. Men of Burke's temperament appreciated intuitively that there could be no peace between the rising civilization and the old, one of the two must destroy the other, and very few of them conceived it to be possible that the enfranchised French peasantry and the small bourgeoisie could endure the shock of all that, in their eyes, was intelligent, sacred, and martial in the world. Indeed, aristocracy had, perhaps, some justification for arrogance, since the revolt in France fell to its lowest depth of impotence between the meeting at Pilnitz in August, 1791, and the reorganization of the Committee of Public Safety in July, 1793. Until August, 1792, the executive authority remained with the King, but the court of Louis was the focus of resistance to the Revolution, and even though a quasi-prisoner the King was still strong. Monarchy had a firm hold on liberal nobles like Mirabeau and Lafayette, on adventurers like Dumouriez, and even on lawyers like Danton who shrank from excessive cruelty. Had the pure Royalists been capable of enough intellectual flexibility to keep faith upon any reasonable basis of compromise, even as late as 1792, the Revolution might have been benign. In June, 1792, Lafayette, who commanded the army of the North, came to Paris and not only ventured to lecture the Assembly on its duty, but offered to take Louis to his army, who would protect him against the Jacobins. The court laughed at Lafayette as a Don Quixote, and betrayed his plans to the enemy. "I had rather perish," said the Queen, "than be saved by M. de Lafayette and his constitutional friends." And in this she only expressed the conviction which the caste to which she belonged held of their duty. Cazalés protested to the Assembly, "Though the King perish, let us save the kingdom." The Archduchess Christina wrote to her sister, Marie Antoinette, "What though he be slain, if we shall triumph," and Condé, in December, 1790, swore that he would march on Lyons, "come what might to the King." France was permeated with archaic thought which disorganized the emerging society until it seemingly had no cohesion. To the French emigrant on the Rhine that society appeared like a vile phantom which had but to be exorcised to vanish. And the exorcism to which he had recourse was threats of vengeance, threats which before had terrified, because they had behind them a force which made them good. Torture had been an integral part of the old law. The peasant expected it were he insubordinate. Death alone was held to be too little to inspire respect for caste. Some frightful spectacle was usually provided to magnify authority. Thus Bouillé broke on the wheel, while the men were yet alive, every bone in the bodies of his soldiers when they disobeyed him; and for scratching Louis XV, with a knife, Damiens, after indescribable agonies, was torn asunder by horses in Paris, before an immense multitude. The French emigrants believed that they had only to threaten with a similar fate men like Kellermann and Hoche to make them flee without a blow. What chiefly concerned the nobles, therefore, was not to evolve a masterly campaign, but to propound the fundamental principles of monarchy, and to denounce an awful retribution on insurgents. By the middle of July, 1792, the Prussians were ready to march, and emperors, kings, and generals were meditating manifestoes. Louis sent the journalist Mallet du Pan to the Duke of Brunswick, the commander-in-chief, to assist him in his task. On July 24, and on August 4, 1792, the King of Prussia laid down the law of caste as emphatically as had the Parliament of Paris some twenty years before. On July 25, the Duke of Brunswick pronounced the doom of the conquered. I come, said the King of Prussia, to prevent the incurable evils which will result to France, to Europe and to all mankind from the spread of the spirit of insubordination, and to this end I shall establish the monarchical power upon a stable basis. For, he continued in the later proclamation, "the supreme authority in France being never ceasing and indivisible, the King could neither be deprived nor voluntarily divest himself of any of the prerogatives of royalty, because he is obliged to transmit them entire with his own crown to his successors." The Duke of Brunswick's proclamation contained some clauses written expressly for him by Mallet du Pan, and by Limon the Royalist. If the Palace of the Tuileries be forced, if the least violence be offered to their Majesties, if they are not immediately set at liberty, then will the King of Prussia and the Emperor of Germany inflict "on those who shall deserve it the most exemplary and ever-memorable avenging punishments." These proclamations reached Paris on July 28, and simultaneously the notorious Fersen wrote the Queen of France, "You have the manifesto, and you should be content." The court actually believed that, having insulted and betrayed Lafayette and all that body of conservative opinion which might have steadied the social equilibrium, they could rely on the fidelity of regiments filled with men against whom the emigrants and their allies, the Prussians, had just denounced an agonizing death, such as Bouillé's soldiers had undergone, together with the destruction of their homes. All the world knows what followed. The Royalists had been gathering a garrison for the Tuileries ever since Lafayette's visit, in anticipation of a trial of strength with the Revolutionists. They had brought thither the Swiss guard, fifteen hundred strong; the palace was full of Royalist gentlemen; Mandat, who commanded the National Guard, had been gained over. The approaches were swept by artillery. The court was very confident. On the night of August 9, Mandat was murdered, an insurrectional committee seized the City Hall, and when Louis XVI came forth to review the troops on the morning of the 10th of August, they shouted, "Vive la Nation" and deserted. Then the assault came, the Swiss guard was massacred, the Assembly thrust aside, and the royal family were seized and conveyed to the Temple. There the monarchy ended. Thus far had the irrational opposition of a moribund type thrown into excentricity the social equilibrium of a naturally conservative people. They were destined to drive it still farther. In this supreme moment, while the Prussians were advancing, France had no stable government and very imperfect means of keeping order. All the fighting men she could muster had marched to the frontier, and, even so, only a demoralized mass of levies, under Dumouriez and Kellermann, lay between the most redoutable regiments of the world and Paris. The emigrants and the Germans thought the invasion but a military promenade. At home treason to the government hardly cared to hide itself. During much of August the streets of Paris swarmed with Royalists who cursed the Revolution, and with priests more bitter than the Royalists. Under the windows of Louis, as he lay in the Temple, there were cries of "Long live the King," and in the prisons themselves the nobles drank to the allies and corresponded with the Prussians. Finally, Roland, who was minister, so far lost courage that he proposed to withdraw beyond the Loire, but Danton would hear of no retreat. "De l'audace," he cried, "encore de l'audace, et toujours de l'audace." The Assembly had not been responsible for the assault on the Tuileries on August 10, 1792. Filled with conservatives, it lacked the energy. That movement had been the work of a knot of radicals which had its centre in Danton's Club of the Cordeliers. Under their impulsion the sections of Paris chose commissioners who should take possession of the City Hall and eject the loyalist Council. They did so, and thus Danton became for a season the Minister of Justice and the foremost man in France. Danton was a semi-conservative. His tenure of power was the last possibility of averting the Terror. The Royalists, whom he trusted, themselves betrayed him, and Danton fell, to be succeeded by Robespierre and his political criminal courts. Meanwhile, on September 20, 1792, the Prussian column recoiled before the fire of Kellermann's mob of "vagabonds, cobblers and tailors," on the slope of Valmy, and with the victory of Valmy, the great eighteenth-century readjustment of the social equilibrium of Europe passed into its secondary stage. CHAPTER V POLITICAL COURTS In the eye of philosophy, perhaps the most alluring and yet illusive of all the phenomena presented by civilization is that which we have been considering. Why should a type of mind which has developed the highest prescience when advancing along the curve which has led it to ascendancy, be stricken with fatuity when the summit of the curve is passed, and when a miscalculation touching the velocity of the descent must be destruction? Although this phenomenon has appeared pretty regularly, at certain intervals, in the development of every modern nation, I conceive its most illuminating example to be that intellectual limitation of caste which, during the French Revolution, led to the creation of those political criminal tribunals which reached perfection with Robespierre. When coolly examined, at the distance of a century, the Royalist combination for the suppression of equality before the law, as finally evolved in 1792, did not so much lack military intelligence, as it lacked any approximate comprehension of the modern mind. The Royalists proposed to reëstablish privilege, and to do this they were ready to immolate, if necessary, their King and Queen, and all of their own order who stayed at home to defend them. Indeed, speaking generally, they valued Louis XVI, living, cheaply enough, counting him a more considerable asset if dead. "What a noise it would make throughout Europe," they whispered among themselves, "if the rabble should kill the King." Nor did Marie Antoinette delude herself on this score. At Pilnitz, in 1791, the German potentates issued a declaration touching France which was too moderate to suit the emigrants, who published upon it a commentary of their own. This commentary was so revolting that when the Queen read her brother-in-law's signature appended to it, she exclaimed--"Cain." The Royalist plan of campaign was this: They reckoned the energy of the Revolution so low that they counted pretty confidently, in the summer of 1792, on the ability of their party to defend the Tuileries against any force which could be brought against it; but assuming that the Tuileries could not be defended, and that the King and Queen should be massacred, they believed that their own position would be improved. Their monarchical allies would be thereby violently stimulated. It was determined, therefore, that, regardless of consequences to their friends, the invading army should cross the border into Lorraine and, marching by way of Sierk and Rodemach, occupy Châlons. Their entry into Châlons, which they were confident could not be held against them, because of the feeling throughout the country, was to be the signal for the rising in Vendée and Brittany which should sweep down upon Paris from the rear and make the capital untenable. At Châlons the allies would be but ninety miles from Paris, and then nothing would remain but vengeance, and vengeance the more complete the greater the crime had been. All went well with them up to Valmy. The German advance on August 11, 1792, reached Rodemach, and on August 19, the bulk of the Prussian army crossed the frontier at Rédagne. On August 20, 1792, Longwy was invested and in three days capitulated. In the camp of the Comte d'Artois "there was not one of us," wrote Las Casas, "who did not see himself, in a fortnight, triumphant, in his own home, surrounded by his humbled and submissive vassals." At length from their bivouacs at Saint-Remy and at Suippes the nobles saw in the distance the towers of Châlons. The panic at Châlons was so great that orders were given to cut the bridge across the Marne, but it was not until about September 2, that the whole peril was understood at Paris. It is true that for several weeks the government had been aware that the West was agitated and that Rouërie was probably conspiring among the Royalists and nonjuring priests, but they did not appreciate the imminence of the danger. On September 3, at latest, Danton certainly heard the details of the plot from a spy, and it was then, while others quailed, that he incited Paris to audacity. This was Danton's culmination. As we look back, the weakness of the Germans seems to have been psychological rather than physical. At Valmy the numbers engaged were not unequal, and while the French were, for the most part, raw and ill-compacted levies, with few trained officers, the German regiments were those renowned battalions of Frederick the Great whose onset, during the Seven Years' War, no adversary had been able to endure. Yet these redoubtable Prussians fell back in confusion without having seriously tried the French position, and their officers, apparently, did not venture to call upon them to charge again. In vain the French gentlemen implored the Prussian King to support them if they alone should storm Kellermann's batteries. Under the advice of the Duke of Brunswick the King decided on retreat. It is said that the Duke had as little heart in the war as Charles Fox, or, possibly, Pitt, or as his own troops. And yet he was so strong that Dumouriez, after his victory, hung back and offered the invaders free passage lest the Germans, if aroused, should turn on him and fight their way to the Marne. To the emigrants the retreat was terrible. It was a disaster from which, as a compact power, they never recovered. The rising in Vendée temporarily collapsed with the check at Châlons, and they were left literally naked unto their enemy. Some of them returned to their homes, preferring the guillotine to starvation, others, disguised in peasants' blouses, tried to reach Rouërie in La Vendée, some died from hardship, some committed suicide, while the bulk regained Liège and there waited as suppliants for assistance from Vienna. But these unfortunate men, who had entered so gayly upon a conflict whose significance they could not comprehend, had by this time lost more than lands and castles. Many of them had lost wives and children in one of the most frightful butcheries of history, and a butchery for which they themselves were responsible, because it was the inevitable and logical effect of their own intellectual limitations. When, after the affair of August 10, Danton and his party became masters of the incipient republic, Paris lay between two perils whose relative magnitude no one could measure. If Châlons fell, Vendée would rise, and the Republicans of the West would be massacred. Five months later Vendée did rise, and at Machecoul the patriots were slaughtered amidst nameless atrocities, largely at the instigation of the priests. In March, 1793, one hundred thousand peasants were under arms. Clearly the West could not be denuded of troops, and yet, if Châlons were to be made good, every available man had to be hurried to Kellermann, and this gigantic effort fell to the lot of a body of young and inexperienced adventurers who formed what could hardly be dignified with the name of an organized administration. For a long time Marat, with whom Danton had been obliged to coalesce, had been insisting that, if the enemy were to be resisted on the frontier, Paris must first be purged, for Paris swarmed with Royalists wild for revenge, and who were known to be arming. Danton was not yet prepared for extermination. He instituted domiciliary visits. He made about three thousand arrests and seized a quantity of muskets, but he liberated most of those who were under suspicion. The crisis only came with the news, on September 2, of the investment of Verdun, when no one longer could doubt that the net was closing about Paris. Verdun was but three or four days' march from Châlons. When the Duke of Brunswick crossed the Marne and Brittany revolted, the government would have to flee, as Roland proposed, and then the Royalists would burst the gates of the prisons and there would be another Saint Bartholomew. Toward four o'clock in the afternoon of September 2, 1792, the prison of the Abbaye was forced and the massacres began. They lasted until September 6, and through a circular sent out by Marat they were extended to Lyons, to Reims, and to other cities. About 1600 prisoners were murdered in Paris alone. Hardly any one has ever defended those slaughters. Even Marat called them "disastrous," and yet no one interfered. Neither Danton, nor Roland, nor the Assembly, nor the National Guard, nor the City of Paris, although the two or three hundred ruffians who did the work could have been dispersed by a single company of resolute men, had society so willed it. When Robespierre's time came he fell almost automatically. Though the head of the despotic "Committee of Public Safety," and nominally the most powerful man in France, he was sent to execution like the vilest and most contemptible of criminals by adversaries who would not command a regiment. The inference is that the September massacres, which have ever since been stigmatized as the deepest stain upon the Revolution, were, veritably, due to the Royalists, who made with the Republicans an issue of self-preservation. For this was no common war. In Royalist eyes it was a servile revolt, and was to be treated as servile revolts during the Middle Ages had always been treated. Again and again, with all solemnity, the Royalists had declared that were they to return as conquerors no stone of Paris should be left standing on another, and that the inhabitants should expire in the ashes of their homes on the rack and the wheel. Though Danton had many and obvious weaknesses he was a good lawyer, and Danton perceived that though he might not have been able to prevent the September massacres, and although they might have been and probably were inevitable under the tension which prevailed, yet that any court, even a political court, would be better than Marat's mob. Some months later he explained his position to the Convention when it was considering the erection of the tribunal which finally sent Danton himself to the scaffold. "Nothing is more difficult than to define a political crime. But, if a simple citizen, for any ordinary crime, receives immediate punishment, if it is so difficult to reach a political crime, is it not necessary that extraordinary laws ... intimidate the rebels and reach the culpable? Here public safety requires strong remedies and terrible measures. I see no compromise between ordinary forms and a revolutionary tribunal. History attests this truth; and since members have dared in this assembly to refer to those bloody days which every good citizen has lamented, I say that, if such a tribunal had then existed, the people who have been so often and so cruelly reproached for them, would never have stained them with blood; I say, and I shall have the assent of all who have watched these movements, that no human power could have checked the outburst of the national vengeance." In this perversion of the courts lay, as I understand it, the foulest horror of the French Revolution. It was the effect of the rigidity of privilege, a rigidity which found its incarnation in the judiciary. The constitutional decisions of the parliaments under the old régime would alone have made their continuance impossible, but the worst evil was that, after the shell crumbled, the mind within the shell survived, and discredited the whole regular administration of justice. When the National Assembly came to examine grievances it found protests against the judicial system from every corner of France, and it referred these petitions to a committee which reported in August, 1789. Setting aside the centralization and consolidation of the system as being, for us, immaterial, the committee laid down four leading principles of reform. First, purchase of place should be abolished, and judicial office should be recognized as a public trust. Second, judges should be confined to applying, and restrained from interpreting, the law. That is to say, the judges should be forbidden to legislate. Third, the judges should be brought into harmony with public opinion by permitting the people to participate in their appointment. Fourth, the tendency toward rigor in criminal cases, which had become a scandal under the old régime, should be tempered by the introduction of the jury. Bergasse proposed that judicial appointments should be made by the executive from among three candidates selected by the provincial assemblies. After long and very remarkable debates the plan was, in substance, adopted in May, 1790, except that the Assembly decided, by a majority of 503 to 450, that the judges should be elected by the people for a term of six years, without executive interference. In the debate Cazalès represented the conservatives, Mirabeau the liberals. The vote was a test vote and shows how strong the conservatives were in the Assembly up to the reorganization of the Clergy in July, 1790, and the electoral assemblies of the districts, which selected the judges, seem, on the whole, to have been rather more conservative than the Assembly. In the election not a sixth of those who were enfranchised voted for the delegates who, in turn, chose the judges, and these delegates were usually either eminent lawyers themselves, or wealthy merchants, or men of letters. The result was a bench not differing much from an old parliament, and equally incapable of understanding the convulsion about them. Installed early in 1791, not a year elapsed before these magistrates became as ill at ease as had been those whom they displaced, and in March, 1792, Jean Debry formally demanded their recall, although their terms properly were to expire in 1796. During the summer of 1792 they sank into contempt and, after the massacres, the Legislative Assembly, just before its dissolution, provided for a new constituency for the judicial elections. This they degraded so far that, out of fifty-one magistrates to be chosen in Paris, only twelve were professionally trained. Nor did the new courts inspire respect. After the 10th of August one or two special tribunals were organized to try the Swiss Guard who surrendered in the Palace, and other political offenders, but these proved to be so ineffective that Marat thrust them aside, and substituted for them his gangs of murderers. No true and permanent political court was evolved before Danton had to deal with the treason of Dumouriez, nor was this tribunal perfected before Danton gave way to the Committee of Public Safety, when French revolutionary society became incandescent, through universal attack from without and through insurrection within. Danton, though an orator and a lawyer, possibly even a statesman, was not competent to cope with an emergency which exacted from a minister administrative genius like that of Carnot. Danton's story may be briefly told. At once after Valmy the Convention established the Republic; on January 21, 1793, Louis was beheaded; and between these two events a new movement had occurred. The Revolutionists felt intuitively that, if they remained shut up at home, with enemies without and traitors within, they would be lost. If the new ideas were sound they would spread, and Valmy had proved to them that those ideas had already weakened the invading armies. Danton declared for the natural boundaries of France,--the Rhine, the Alps, and the ocean,--and the Convention, on January 29, 1793, threw Dumouriez on Holland. This provoked war with England, and then north, south, and east the coalition was complete. It represented at least half a million fighting men. Danton, having no military knowledge or experience, fixed his hopes on Dumouriez. To Danton, Dumouriez was the only man who could save France. On November 6, 1792, Dumouriez defeated the Austrians at Jemmapes; on the 14th, he entered Brussels, and Belgium lay helpless before him. On the question of the treatment of Belgium, the schism began which ended with his desertion. Dumouriez was a conservative who plotted for a royal restoration under, perhaps, Louis Philippe. The Convention, on the contrary, determined to revolutionize Belgium, as France had been revolutionized, and to this end Cambon proposed to confiscate and sell church land and emit assignats. Danton visited Dumouriez to attempt to pacify him, but found him deeply exasperated. Had Danton been more sagacious he would have been suspicious. Unfortunately for him he left Dumouriez in command. In February, Dumouriez invaded Holland and was repulsed, and he then fell back to Brussels, not strong enough to march to Paris without support, it is true, but probably expecting to be strong enough as soon as the Vendean insurrection came to a head. Doubtless he had relations with the rebels. At all events, on March 10, the insurrection began with the massacre of Machecoul, and on March 12, 1793, Dumouriez wrote a letter to the Convention which was equivalent to a declaration of war. He then tried to corrupt his army, but failed, and on April 4, 1793, fled to the Austrians. Meanwhile, La Vendée was in flames. To appreciate the situation one must read Carnot's account of the border during these weeks when he alone, probably, averted some grave disaster. For my purpose it suffices to say that the pressure was intense, and that this intense pressure brought forth the Revolutionary Tribunal, or the political court. On March 10, 1793, the Convention passed a decree constituting a court of five judges and a jury, to be elected by the Convention. To these was joined a public prosecutor. Fouquier-Tinville afterward attained to a sombre fame in this position. Six members of the Convention were to sit as a commission to supervise drawing the indictments, the preparation of evidence, and also to advise the prosecutor. The punishments, under the limitations of the Penal Code and other criminal laws, were to be within the discretion of the court, whose judgments were to be final.[40] Death was accompanied by confiscation of property. Considering that this was an extraordinary tribunal, working under extreme tension, which tried persons against whom usually the evidence was pretty conclusive, its record for the first six months was not discreditable. Between April 6 and September 21, 1793, it rendered sixty-three sentences of death, thirteen of transportation, and thirty-eight acquittals. The trials were held patiently, testimony was heard, and the juries duly deliberated. Nevertheless the Terror deepened as the stress upon the new-born republic increased. Nothing more awful can be imagined than the ordeal which France endured between the meeting of the Convention in September, 1792, and the completion of the Committee of Public Safety in August, 1793. Hemmed in by enemies, the revolution glowed in Paris like molten lava, while yet it was torn by faction. Conservative opinion was represented by the Girondists, radical opinion by the Mountain, and between the two lay the Plain, or the majority of the Convention, who embodied the social centre of gravity. As this central mass swayed, so did supremacy incline. The movement was as accurate as that of any scientific instrument for registering any strain. Dumouriez's treason in April left the northern frontier open, save for a few fortresses which still held out. When those should fall the enemy could make a junction with the rebels in Vendée. Still the Girondists kept control, and even elected Isnard, the most violent among them, President of the Convention. Then they had the temerity to arrest a member of the Commune of Paris, which was the focus of radicalism. That act precipitated the struggle for survival and with it came the change in equilibrium. On June 2, Paris heard of the revolt of Lyons and of the massacre of the patriots. The same day the Sections invaded the Convention and expelled from their seats in the Tuileries twenty-seven Girondists. The Plain or Centre now leant toward the Mountain, and, on July 10, the Committee of Public Safety, which had been first organized on April 6, 1793, directly after Dumouriez's treason, was reorganized by the addition of men like Saint-Just and Couthon, with Prieur, a lawyer of ability and energy, for President. On July 12, 1793, the Austrians took Condé, and on July 28, Valenciennes; while on July 25, Kleber, starving, surrendered Mayence. Nothing now but their own inertia stood between the allies and La Vendée. Thither indeed Kellermann's men were sent, since they had promised not to serve against the coalition for a year, but even of these a division was surrounded and cut to pieces in the disaster of Torfou. A most ferocious civil war soon raged throughout France. Caen, Bordeaux, Lyons, Marseilles, declared against the Convention. The whole of the northwest was drenched in blood by the Chouans. Sixty departments were in arms. On August 28 the Royalists surrendered Toulon to the English, who blockaded the coasts and supplied the needs of the rebels. About Paris the people were actually starving. On July 27 Robespierre entered the Committee of Safety; Carnot, on August 14. This famous committee was a council of ten forming a pure dictatorship. On August 16, the Convention decreed the _Levée en Masse_. When Carnot became Minister of War to this dictatorship the Republic had 479,000 demoralized soldiers with the colors, under beaten and discredited commanders. Bouillé had conspired against the States-General, Lafayette against the Legislative Assembly, and Dumouriez against the Convention. One year from that time it had a superb force, 732,000 strong, commanded by Jourdan and Pichegru, Hoche, Moreau, and Bonaparte. Above all Carnot loved Hoche. Up to Valmy the old regular army, however shaken, had remained as a core. Then it became merged in a mass of volunteers, and these volunteers had to be armed and disciplined and fed and led against the greatest and strongest coalition which the modern world had ever seen. France, under Camot, became a vast workshop. Its most eminent scientific men taught the people how to gather saltpetre and the government how to manufacture powder and artillery. Horses had to be obtained. Carnot was as reckless of himself as of others. He knew no rest. There was that to be done which had to be done quickly and at any cost; there was that or annihilation. On October 21, 1794, when the people had gathered in the Champ de Mars to celebrate the Festival of Victories, after the President of the Convention had proclaimed that the Republic had been delivered, Carnot announced what had been accomplished. France had won twenty-seven victories, of which eight had been pitched battles. One hundred and twenty lesser combats. France had killed eighty thousand enemies. Had taken ninety-one thousand prisoners. Also one hundred and sixteen places or towns, six after siege. Two hundred and thirty forts or redoubts. Three thousand eight hundred cannon. Seventy thousand muskets. Ninety flags. As Benjamin Constant has observed, nothing can change the stupendous fact "that the Convention found the enemy at thirty leagues from Paris, ... and made peace at thirty leagues from Vienna." Under the stimulus of a change in environment of mind is apt to expand with something of this resistless energy. It did so in the Reformation. It may be said almost invariably to do so, when decay does not supervene, and it now concerns us to consider, in some rough way, what the cost to the sinking class of attempting repression may be, when it miscalculates its power in such an emergency. I take it to be tolerably clear that, if the French privileged classes had accepted the reforms of Turgot in good faith, and thus had spread the movement of the revolution over a generation, there would have been no civil war and no confiscations, save confiscations of ecclesiastical property. I take it also that there would have been no massacres and no revolutionary tribunals, if France in 1793 had fought foreign enemies alone, as England did in 1688. Even as it was the courts did not grow thoroughly political until the preservation of the new type of mind came to hinge largely on the extermination of the old. Danton's first and relatively benign revolutionary tribunal, established in March, 1793, was reorganized by the Committee of Public Safety in the following autumn, by a series of decrees of which the most celebrated is that of September 17, touching suspected persons. By these decrees the tribunal was enlarged so that, in the words of Danton, every day an aristocratic head might fall. The committee presented a list of judges, and the object of the law was to make the possession of a reactionary mind a capital offence. It is only in extreme exigencies that pure thinking by a single person becomes a crime. Ordinarily, a crime consists of a malicious thought coupled with an overt act, but in periods of high tension, the harboring of any given thought becomes criminal. Usually during civil wars test oaths are tendered to suspected persons to discover their loyalty. For several centuries the Church habitually burnt alive all those who denied the test dogma of transubstantiation, and during the worst spasm of the French Revolution to believe in the principle of monarchy and privilege was made capital with confiscation of property. The question which the Convention had to meet was how to establish the existence of a criminal mind, when nothing tangible indicated it. The old régime had tortured. To prove heresy the Church also had always used torture. The Revolution proceeded more mildly. It acted on suspicion. The process was simple. The Committee, of whom in this department Robespierre was the chief, made lists of those who were to be condemned. There came to be finally almost a complete absence of forms. No evidence was necessarily heard. The accused, if inconvenient, was not allowed to speak. If there were doubt touching the probability of conviction, pressure was put upon the court. I give one or two examples: Scellier, the senior associate judge of the tribunal, appears to have been a good lawyer and a fairly worthy man. One day in February, 1794, Scellier was at dinner with Robespierre, when Robespierre complained of the delays of the court. Scellier replied that without the observance of forms there could be no safety for the innocent. "Bah!" replied Robespierre,--"you and your forms: wait; soon the Committee will obtain a law which will suppress forms, and then we shall see." Scellier ventured no answer. Such a law was drafted by Couthon and actually passed on 22 Prairial (June 10, 1794), and yet it altered little the methods of Fouquier-Tinville as prosecuting officer. Scellier having complained of this law of Prairial to Saint-Just, Saint-Just replied that if he were to report his words, or that he was flinching, to the Committee, Scellier would be arrested. As arrest was tantamount to sentence of death, Scellier continued his work. Without reasoning the subject out logically from premise to conclusion, or being, of course, capable of doing so in the mass, Frenchmen had collectively received the intuition that everything must be endured for a strong government, and that whatever obstructed that government must be eliminated. For the process of elimination they used the courts. Under the conditions in which they were placed by the domestic enemy, they had little alternative. If a political party opposed the Dictatorship in the Convention, that party must be broken down; if a man seemed likely to become a rival for the Dictatorship, that man must be removed; all who conspired against the Republic must be destroyed as ruthlessly at home as on the battle-field. The Republic was insolvent, and must have money, as it must have men. If the government needed men, it took them,--all. If it needed money, and a man were rich, it did not hesitate to execute him and confiscate his property. There are very famous examples of all these phenomena strewn through the history of the Terror. The Girondists were liberals. They always had been liberals; they had never conspired against the Republic; but they were impracticable. The ablest of them, Vergniaud, complained before the Tribunal, that he was being tried for what he thought, not for what he had done. This the government denied, but it was true. Nay, more; he was tried not for positive but for negative opinions, and he was convicted and executed, and his friends were convicted and executed with him, because, had they remained in the Convention, the Dictatorship, through their opposition, would have lost its energy. Also the form of the conviction was shocking in the extreme. The defence of these twenty-one men was, practically, suppressed, and the jury were directed to bring in a verdict of guilty. Still the prosecutions of the Girondists stopped here. When they refrained from obstruction, they were spared. Danton and his friends may have been, and probably were, whether intentionally or by force of circumstances, a menace to the Dictatorship. Either Robespierre or Danton had to be eliminated. There was not room for both. On April 1, 1793, Danton, Camille Desmoulins, and others were arrested on a warrant signed by such men as Cambacérès, Carnot, and Prieur. Carnot in particular was a soldier of the highest character and genius. He would have signed no such warrant had he not thought the emergency pressing. Nor was the risk small. Danton was so popular and so strong before a jury that the government appears to have distrusted even Fouquier-Tinville, for an order was given, and held in suspense, apparently to Henriot, to arrest the President and the Public Prosecutor of the Revolutionary Tribunal, on the day of Danton's trial. Under such a stimulant Fouquier did his best, but he felt himself to be beaten. Examining Cambon, Danton broke out: "Do you believe us to be conspirators? Look, he laughs, he don't believe it. Record that he has laughed." Fouquier was at his wits' end. If the next day the jury were asked if they had heard enough, and they answered, "No," there would be an acquittal, and then Fouquier's own head would roll into the basket. Probably there might even be insurrection. Fouquier wrote to the Committee that they must obtain from the Convention a decree silencing the defence. So grave was the crisis felt to be that the decree was unanimously voted. When Fouquier heard that the decree was on its way, he said, with a sigh of relief,--"Faith, we need it." But when it was read, Danton sprung to his feet, raging, declaring that the public cried out treason upon it. The President adjourned the court while the hall resounded with the protests of the defendants and the shouts of the police as they tore the condemned from the benches which they clutched and dragged them through the corridors toward the prison. They emerged no more until they mounted the carts which took them to the scaffold. Nor was it safe to hesitate if one were attached to this court. Fouquier had a clerk named Paris-Fabricius. Now Paris had been a friend of Danton and took his condemnation to heart. He even declined to sign the judgment, which it was his duty to do. The next day, when he presented himself to Fouquier, Fouquier looked at him sourly, and observed, "We don't want men who reason here; we want business done." The following morning Paris did not appear. His friends were disturbed, but he was not to be found. He had been cast into a secret dungeon in the prison of the Luxembourg. So, if a man were too rich it might go hard with him. Louis-Philippe-Joseph, Duc d'Orleans, afterward known as �galité, was one of the most interesting figures among the old nobility. The great-great-great-grandson of Louis XIII, he was a distant cousin of Louis XVI, and ranked as the first noble of France beyond the royal family. His education had been unfortunate. His father lived with a ballet-dancer, while his mother, the Princess Henriette de Bourbon-Conti, scandalized a society which was not easily shocked. During the Terror the sans culottes everywhere averred that the Duke was the son of a coachman in the service of the banker Duruet. Doubtless this was false, but the princess had abundant liaisons not much more reputable. Left to himself at sixteen years old, �galité led a life of extreme profligacy, but he married one of the most beautiful and charming women of the age, whom he succeeded in inspiring with a devoted affection. Born in 1747, his father died in 1785, leaving him, just at the outbreak of the Revolution, the master of enormous wealth, and the father of three sons who adored him. The eldest of these was the future king, Louis-Philippe. The man must have had good in him to have been loved as he was throughout life. He was besides more intelligent touching the Revolution and its meaning than any man approaching him in rank in France. The Duke, when a young man, served with credit in the navy, but after the battle of Ushant, in 1778, where he commanded the blue squadron, he was received with such enthusiasm in Paris, that Marie-Antoinette obtained his dismissal from the service. From this period he withdrew from court and his opposition to the government began. He adopted republican ideas, which he drew from America, and he educated his children as democrats. In 1789 he was elected to the States-General, where he supported the fusion of the orders, and attained to a popularity which, on one occasion, according to Madame de Campan, nearly made the Queen faint from rage and grief. It was from the garden of his palace of the Palais Royal that the column marched on July 14, wearing his colors, the red, white and blue, to storm the Bastille. It seemed that he had only to go on resolutely to thrust the King aside and become the ruler of France. He made no effort to do so. Mirabeau is said to have been disgusted with his lack of ambition. He was charitable also, and spent very large sums of money among the poor of Paris during the years of distress which followed upon the social disorders. The breach with the court, however, became steadily wider, and finally he adhered to the party of Danton and voted for the condemnation of the King. He sent two of his sons to serve in the army. The elder was still with Dumouriez at the time of his treason. On April 6, 1793, when Dumouriez's treachery had become known, the Assembly ordered the arrest of the whole Bourbon family, and among them the Duke was apprehended and sent to Marseilles. Thus it appears that whatever complaint his own order may have had against �galité, the Republic certainly had none. No man could have done more for modern France than he. He abandoned his class, renounced his name, gave his money, sent his sons to the war, and voted for his own relative's death. No one feared him, and yet Robespierre had him brought to Paris and guillotined. His trial was a form. Fouquier admitted that he had been condemned before he left Marseilles. The Duke was, however, very rich and the government needed his money. Every one understood the situation. He was told of the order for his arrest one night when at supper in his palace in Paris with his friend Monsieur de Monville. The Duke, much moved, asked Monville if it were not horrible, after all the sacrifices he had made and all that he had done. "Yes, horrible," said Monville, coolly, "but what would you have? They have taken from your Highness all they could get, you can be of no further use to them. Therefore, they will do to you, what I do with this lemon" (he was squeezing a lemon on a sole); "now I have all the juice." And he threw the lemon into the fireplace. But yet even then Robespierre was not satisfied. He harbored malice against this fallen man. On the way to the scaffold he ordered the cart, in which the Duke sat, to stop before the Palais Royal, which had been confiscated, in order that the Duke might contemplate his last sacrifice for his country. The Duke showed neither fear nor emotion. All the world knows the story of the Terror. The long processions of carts carrying victims to the guillotine, these increasing in number until after the Law of Prairial they averaged sixty or seventy a day in Paris alone, while in the provinces there was no end. At Nantes, Carrier could not work fast enough by a court, so he sank boat loads of prisoners in the Loire. The hecatombs sacrificed at Lyons, and the "Red Masses" of Orange, have all been described. The population of Toulon sank from 29,000 to 7,000. All those, in fine, were seized and slain who were suspected of having a mind tinged with caste, or of being traitors to the Republic. And it was the Centre, or the majority of the Convention, who did this, by tacitly permitting it to be done. That is to say, France permitted it because the onslaught of the decaying class made atrocities such as these appear to be a condition of self-preservation. I doubt if, in human history, there be such another and so awful an illustration of the possible effects of conservative errors of judgment. For France never loved the Terror or the loathsome instruments, such as Fouquier-Tinville, or Carrier, or Billaud-Varennes, or Collot-d'Herbois, or Henriot, or Robespierre, or Couthon, who conducted it. On this point there can, I think, be neither doubt nor question. I have tried to show how the Terror began. It is easy to show how and why it ended. As it began automatically by the stress of foreign and domestic war, so it ended automatically when that stress was relieved. And the most curious aspect of the phenomenon is that it did not end through the application of force, but by common consent, and when it had ended, those who had been used for the bloody work could not be endured, and they too were put to death. The procession of dates is convincing. When, on July 27, 1793, Robespierre entered the Committee of Public Safety, the fortunes of the Republic were near their nadir, but almost immediately, after Carnot took the War Department on August 14, they began to mend. On October 8, 1793, Lyons surrendered; on December 19, 1793, the English evacuated Toulon; and, on December 23, the insurrection in La Vendée received its death blow at Savenai. There had also been success on the frontiers. Carnot put Hoche in command in the Vosges. On December 23, 1793, Hoche defeated Wurmser at Freschweiller, when the Austrians, abandoning the lines of Wissembourg, fell back across the Rhine. Thus by the end of 1793, save for the great border fortresses of Valenciennes and Condé to the north, which commanded the road from Brussels to Paris, the soil of France had been cleared of the enemy, and something resembling domestic tranquillity had been restored at home. Simultaneously, as the pressure lessened, rifts began to appear in the knot of men who held the Dictatorship in the Republic. Robespierre, Couthon, and Saint-Just coalesced, and gained control of the police, while Billaud-Varennes, Collot-d'Herbois, and, secretly and as far as he dared, Barère, formed an opposition. Not that the latter were more moderate or merciful than Robespierre, but because, in the nature of things, there could be but one Dictator, and it became a question of the survival of the fittest. Carnot took little or no part in active politics. He devoted himself to the war, but he disapproved of the Terror and came to a breach with Saint-Just. Robespierre's power culminated on June 10, 1794, with the passage of the Law of 22 Prairial, which put the life of every Frenchman in his hand, and after which, save for some dozen or two of his most intimate and devoted adherents like Saint-Just, Couthon, Le Bas, Fouquier, Fleuriot the Mayor of Paris, and Henriot, the commander of the national guard, no one felt his head safe on his shoulders. It needed but security on the northern frontier to cause the social centre of gravity to shift and Robespierre to fall, and security came with the campaign of Fleurus. Jourdan and Pichegru were in command on the Belgian border, and on June 26, 1794, just sixteen days after the passage of the Law of Prairial, Jourdan won the battle of Fleurus. This battle, though not decisive in itself, led to decisive results. It uncovered Valenciennes and Condé, which were invested, closing the entrance to France. On July 11, Jourdan entered Brussels; on July 16, he won a crushing victory before Louvain and the same day Namur opened its gates. On July 23, Pichegru, driving the English before him, seized Antwerp. No Frenchman could longer doubt that France was delivered, and with that certainty the Terror ended without a blow. Eventually the end must have come, but it came instantly, and, according to the old legend, it came through a man's love for a woman. John Lambert Tallien, the son of the butler of the Marquis of Bercy, was born in 1769, and received an education through the generosity of the marquis, who noticed his intelligence. He became a journeyman printer, and one day in the studio of Madame Lebrun, dressed in his workman's blouse, he met Thérézia Cabarrus, Marquise de Fontenay, the most seductive woman of her time, and fell in love with her on the instant. Nothing, apparently, could have been more hopeless or absurd. But the Revolution came. Tallien became prominent, was elected to the Convention, grew to be influential, and in September, 1793, was sent to Bordeaux, as representative of the Chamber, or as proconsul, as they called it. There he, the all-powerful despot, found Thérézia, trying to escape to Spain, in prison, humble, poor, shuddering in the shadow of the guillotine. He saved her; he carried her through Bordeaux in triumph in a car by his side. He took her with him to Paris, and there Robespierre threw her into prison, and accused Tallien of corruption. On June 12 Robespierre denounced him to the Convention, and on June 14, 1794, the Jacobins struck his name from the list of the club. When Fleurus was fought Thérézia lay in La Force, daily expecting death, while Tallien had become the soul of the reactionary party. On the 8 Thermidor (July 26,1794) Tallien received a dagger wrapped in a note signed by Thérézia,--"To-morrow they kill me. Are you then only a coward?"[41] On the morrow the great day had come. Saint-Just rose in the Convention to read a report to denounce Billaud, Collot, and Camot. Tallien would not let him be heard. Billaud followed him. Collot was in the chair. Robespierre mounted the tribune and tried to speak. It was not without reason that Thérézia afterwards said, "This little hand had somewhat to do with overthrowing the guillotine," for Tallien sprang on him, dagger in hand, and, grasping him by the throat, cast him from the tribune, exclaiming, "I have armed myself with a dagger to pierce his heart if the Convention dare not order his accusation." Then rose a great shout from the Centre, "Down with the tyrant, arrest him, accuse him!" From the Centre, which until that day had always silently supported the Robespierrian Dictatorship. Robespierre for the last time tried to speak, but his voice failed him. "It's Danton's blood that chokes him; arrest him, arrest him!" they shouted from the Right. Robespierre dropped exhausted on a bench, then they seized him, and his brother, and Couthon, and Saint-Just, and ordered that the police should take them to prison. But it was one thing for the Convention to seize Robespierre singly, and within its own hall; it was quite another for it to hold him and send him to the guillotine. The whole physical force of Paris was nominally with Robespierre. The Mayor, Fleuriot, closed the barriers, sounded the tocsin, and forbade any jailer to receive the prisoners; while Henriot, who had already been drinking, mounted a horse and galloped forth to rouse the city. Fleuriot caused Robespierre, Couthon, and Le Bas to be brought to the City Hall. A provisional government was completed. It only remained to disperse the Assembly. Henriot undertook a duty which looked easy. He seems to have collected about twenty guns, which he brought to the Tuileries and trained on the hall of the Convention. The deputies thought all was over. Collot-d'Herbois took the chair, which was directly in range, put on his hat, and calmly said, as Henriot gave the order to fire, "We can at least die at our post." No volley came--the men had mutinied. Then the Convention declared Henriot beyond the protection of the law, and Henriot fled to the City Hall. The Convention chose Barras to command their armed force, but save a few police they had no force. The night was wearing away and Fleuriot had not been able to persuade Robespierre to take any decisive step. Robespierre was, indeed, only a pettifogging attorney. At length he consented to sign an appeal to arms. He had written two letters of his name--"Ro"--when a section of police under Barras reached the City Hall. They were but a handful, but the door was unguarded. They mounted the stairs and as Robespierre finished the "o", one of these men, named Merda, fired on him, breaking his jaw. The stain of blood is still on the paper where Robespierre's head fell. They shot Couthon in the leg, they threw Henriot out of the window into a cesspool below where he wallowed all night, while Le Bas blew out his brains. The next day they brought Robespierre to the Convention, but the Convention refused to receive him. They threw him on a table, where he lay, horrible to be seen, his coat torn down the back, his stockings falling over his heels, his shirt open and soaking with blood, speechless, for his mouth was filled with splinters of his broken jaw. Such was the man who the morning before had been Dictator, and master of all the armies of France. Couthon was in little better plight. Twenty-one in all were condemned on the 10 Thermidor and taken in carts to the guillotine. An awful spectacle. There was Robespierre with his disfigured face, half dead, and Fleuriot, and Saint-Just, and Henriot next to Robespierre, his forehead gashed, his right eye hanging down his cheek, dripping with blood, and drenched with the filth of the sewer in which he had passed the night. Under their feet lay the cripple Couthon, who had been thrown in like a sack. Couthon was paralyzed, and he howled in agony as they wrenched him straight to fasten him to the guillotine. It took a quarter of an hour to finish with him, while the crowd exulted. A hundred thousand people saw the procession and not a voice or a hand was raised in protest. The whole world agreed that the Terror should end. But the oldest of those who suffered on the 10 Thermidor was Couthon, who was thirty-eight, Robespierre was thirty-five, and Saint-Just but twenty-seven. So closed the Terror with the strain which produced it. It will remain a by-word for all time, and yet, appalling as it may have been, it was the legitimate and the logical result of the opposition made by caste to the advent of equality before the law. Also, the political courts served their purpose. They killed out the archaic mind in France, a mind too rigid to adapt itself to a changing environment. Thereafter no organized opposition could ever be maintained against the new social equilibrium. Modern France went on steadily to a readjustment, on the basis of unification, simplification of administration, and equality before the law, first under the Directory, then under the Consulate, and finally under the Empire. With the Empire the Civil Code was completed, which I take to be the greatest effort at codification of modern times. Certainly it has endured until now. Governments have changed. The Empire has yielded to the Monarchy, the Monarchy to the Republic, the Republic to the Empire again, and that once more to the Republic, but the Code which embodies the principle of equality before the law has remained. Fundamentally the social equilibrium has been stable. And a chief reason of this stability has been the organization of the courts upon rational and conservative principles. During the Terror France had her fill of political tribunals. Since the Terror French judges, under every government, have shunned politics and have devoted themselves to construing impartially the Code. Therefore all parties, and all ranks, and all conditions of men have sustained the courts. In France, as in England, there is no class jealousy touching the control of the judiciary. FOOTNOTES: [40] _Histoire du Tribunal Revolutionaire de Paris_, H. Wallon, I, 57. [41] "C'est demain qu'on me tue; n'êtes-vous donc qu'un lache?" CHAPTER VI INFERENCES As the universe, which at once creates and destroys life, is a complex of infinitely varying forces, history can never repeat itself. It is vain, therefore, to look in the future for some paraphrase of the past. Yet if society be, as I assume it to be, an organism operating on mechanical principles, we may perhaps, by pondering upon history, learn enough of those principles to enable us to view, more intelligently than we otherwise should, the social phenomena about us. What we call civilization is, I suspect, only, in proportion to its perfection, a more or less thorough social centralization, while centralization, very clearly, is an effect of applied science. Civilization is accordingly nearly synonymous with centralization, and is caused by mechanical discoveries, which are applications of scientific knowledge, like the discovery of how to kindle fire, how to build and sail ships, how to smelt metals, how to prepare explosives, how to make paper and print books, and the like. And we perceive on a little consideration that from the first great and fundamental discovery of how to kindle fire, every advance in applied science has accelerated social movement, until the discovery of steam and electricity in the eighteenth and nineteenth centuries quickened movement as movement had never been quickened before. And this quickening has caused the rise of those vast cities, which are at once our pride and our terror. Social consolidation is, however, not a simple problem, for social consolidation implies an equivalent capacity for administration. I take it to be an axiom, that perfection in administration must be commensurate to the bulk and momentum of the mass to be administered, otherwise the centrifugal will overcome the centripetal force, and the mass will disintegrate. In other words, civilization would dissolve. It is in dealing with administration, as I apprehend, that civilizations have usually, though not always, broken down, for it has been on administrative difficulties that revolutions have for the most part supervened. Advances in administration seem to presuppose the evolution of new governing classes, since, apparently, no established type of mind can adapt itself to changes in environment, even in slow-moving civilizations, as fast as environments change. Thus a moment arrives when the minds of any given dominant type fail to meet the demands made upon them, and are superseded by a younger type, which in turn is set aside by another still younger, until the limit of the administrative genius of that particular race has been reached. Then disintegration sets in, the social momentum is gradually relaxed, and society sinks back to a level at which it can cohere. To us, however, the most distressing aspect of the situation is, that the social acceleration is progressive in proportion to the activity of the scientific mind which makes mechanical discoveries, and it is, therefore, a triumphant science which produces those ever more rapidly recurring changes in environment to which men must adapt themselves at their peril. As, under the stimulant of modern science, the old types fail to sustain themselves, new types have to be equally rapidly evolved, and the rise of a new governing class is always synonymous with a social revolution and a redistribution of property. The Industrial Revolution began almost precisely a century and a half ago, since when the scientific mind has continually gained in power, and, during that period, on an average of once in two generations, the environment has so far shifted that a social revolution has occurred, accompanied by the advent of a new favored class, and a readjustment of wealth. I think that a glance at American history will show this estimate to be within the truth. At the same time such rapidity of intellectual mutation is without precedent, and I should suppose that the mental exhaustion incident thereto must be very considerable. In America, in 1770, a well-defined aristocracy held control. As an effect of the Industrial Revolution upon industry and commerce, the Revolutionary War occurred, the colonial aristocracy misjudged the environment, adhered to Great Britain, were exiled, lost their property, and perished. Immediately after the American Revolution and also as a part of the Industrial Revolution, the cotton gin was invented, and the cotton gin created in the South another aristocracy, the cotton planters, who flourished until 1860. At this point the changing of the environment, caused largely by the railway, brought a pressure upon the slave-owners against which they, also failing to comprehend their situation, rebelled. They were conquered, suffered confiscation of their property, and perished. Furthermore, the rebellion of the aristocracy at the South was caused, or at all events was accompanied by, the rise of a new dominant class at the North, whose power rested upon the development of steam in transportation and industry. This is the class which has won high fortune by the acceleration of the social movement, and the consequent urban growth of the nineteenth century, and which has now for about two generations dominated in the land. If this class, like its predecessors, has in its turn mistaken its environment, a redistribution of property must occur, distressing, as previous redistributions have been, in proportion to the inflexibility of the sufferers. The last two redistributions have been painful, and, if we examine passing phenomena from this standpoint, they hardly appear to promise much that is reassuring for the future. Administration is the capacity of coördinating many, and often conflicting, social energies in a single organism, so adroitly that they shall operate as a unity. This presupposes the power of recognizing a series of relations between numerous special social interests, with all of which no single man can be intimately acquainted. Probably no very highly specialized class can be strong in this intellectual quality because of the intellectual isolation incident to specialization; and yet administration or generalization is not only the faculty upon which social stability rests, but is, possibly, the highest faculty of the human mind. It is precisely in this preëminent requisite for success in government that I suspect the modern capitalistic class to be weak. The scope of the human intellect is necessarily limited, and modern capitalists appear to have been evolved under the stress of an environment which demanded excessive specialization in the direction of a genius adapted to money-making under highly complex industrial conditions. To this money-making attribute all else has been sacrificed, and the modern capitalist not only thinks in terms of money, but he thinks in terms of money more exclusively than the French aristocrat or lawyer ever thought in terms of caste. The modern capitalist looks upon life as a financial combat of a very specialized kind, regulated by a code which he understands and has indeed himself concocted, but which is recognized by no one else in the world. He conceives sovereign powers to be for sale. He may, he thinks, buy them; and if he buys them; he may use them as he pleases. He believes, for instance, that it is the lawful, nay more! in America, that it is the constitutional right of the citizen to buy the national highways, and, having bought them, to use them as a common carrier might use a horse and cart upon a public road. He may sell his service to whom he pleases at what price may suit him, and if by doing so he ruins men and cities, it is nothing to him. He is not responsible, for he is not a trustee for the public. If he be restrained by legislation, that legislation is in his eye an oppression and an outrage, to be annulled or eluded by any means which will not lead to the penitentiary. He knows nothing and cares less, for the relation which highways always have held, and always must hold, to every civilized population, and if he be asked to inform himself on such subjects he resents the suggestion as an insult. He is too specialized to comprehend a social relation, even a fundamental one like this, beyond the narrow circle of his private interests. He might, had he so chosen, have evolved a system of governmental railway regulation, and have administered the system personally, or by his own agents, but he could never be brought to see the advantage to himself of rational concession to obtain a resultant of forces. He resisted all restraint, especially national restraint, believing that his one weapon --money--would be more effective in obtaining what he wanted in state legislatures than in Congress. Thus, of necessity, he precipitates a conflict, instead of establishing an adjustment. He is, therefore, in essence, a revolutionist without being aware of it. The same specialized thinking appears in his reasoning touching actual government. New York City will serve as an illustration. New York has for two generations been noted for a civic corruption which has been, theoretically, abominable to all good citizens, and which the capitalistic class has denounced as abominable to itself. I suspect this to be an imaginative conception of the situation. Tammany Hall is, I take it, the administrative bureau through which capital purchases its privileges. An incorruptible government would offend capital, because, under such a government, capital would have to obey the law, and privilege would cease. Occasionally, Tammany grows rapacious and exacts too much for its services. Then a reform movement is undertaken, and finally a new management is imposed on Tammany; but when Tammany has consented to a satisfactory scale of prices, the reform ends. To change the system would imply a shift in the seat of power. In fine, money is the weapon of the capitalist as the sword was the weapon of the mediaeval soldier; only, as the capitalist is more highly specialized than the soldier ever was, he is more helpless when his single weapon fails him. From the days of William the Conqueror to our own, the great soldier has been, very commonly, a famous statesman also, but I do not now remember, in English or American history, a single capitalist who has earned eminence for comprehensive statesmanship. On the contrary, although many have participated in public affairs, have held high office, and have shown ability therein, capitalists have not unusually, however unjustly, been suspected of having ulterior objects in view, unconnected with the public welfare, such as tariffs or land grants. Certainly, so far as I am aware, no capitalist has ever acquired such influence over his contemporaries as has been attained with apparent ease by men like Cromwell, Washington, or even Jackson. And this leads, advancing in an orderly manner step by step, to what is, perhaps, to me, the most curious and interesting of all modern intellectual phenomena connected with the specialized mind,--the attitude of the capitalist toward the law. Naturally the capitalist, of all men, might be supposed to be he who would respect and uphold the law most, considering that he is at once the wealthiest and most vulnerable of human beings, when called upon to defend himself by physical force. How defenceless and how incompetent he is in such exigencies, he proved to the world some years ago when he plunged himself and the country into the great Pennsylvania coal strike, with absolutely no preparation. Nevertheless, in spite of his vulnerability, he is of all citizens the most lawless.[42] He appears to assume that the law will always be enforced, when he has need of it, by some special personnel whose duty lies that way, while he may, evade the law, when convenient, or bring it into contempt, with impunity. The capitalist seems incapable of feeling his responsibility, as a member of the governing class, in this respect, and that he is bound to uphold the law, no matter what the law may be, in order that others may do the like. If the capitalist has bought some sovereign function, and wishes to abuse it for his own behoof, he regards the law which restrains him as a despotic invasion of his constitutional rights, because, with his specialized mind, he cannot grasp the relation of a sovereign function to the nation as a whole. He, therefore, looks upon the evasion of a law devised for public protection, but inimical to him, as innocent or even meritorious. If an election be lost, and the legislature, which has been chosen by the majority, cannot be pacified by money, but passes some act which promises to be annoying, the first instinct of the capitalist is to retain counsel, not to advise him touching his duty under the law, but to devise a method by which he may elude it, or, if he cannot elude it, by which he may have it annulled as unconstitutional by the courts. The lawyer who succeeds in this branch of practice is certain to win the highest prizes at the bar. And as capital has had now, for more than one or even two generations, all the prizes of the law within its gift, this attitude of capital has had a profound effect upon shaping the American legal mind. The capitalist, as I infer, regards the constitutional form of government which exists in the United States, as a convenient method of obtaining his own way against a majority, but the lawyer has learned to worship it as a fetich. Nor is this astonishing, for, were written constitutions suppressed, he would lose most of his importance and much of his income. Quite honestly, therefore, the American lawyer has come to believe that a sheet of paper soiled with printers' ink and interpreted by half-a-dozen elderly gentlemen snugly dozing in armchairs, has some inherent and marvellous virtue by which it can arrest the march of omnipotent Nature. And capital gladly accepts this view of American civilization, since hitherto capitalists have usually been able to select the magistrates who decide their causes, perhaps directly through the intervention of some president or governor whom they have had nominated by a convention controlled by their money, or else, if the judiciary has been elective, they have caused sympathetic judges to be chosen by means of a mechanism like Tammany, which they have frankly bought. I wish to make myself clearly understood. Neither capitalists nor lawyers are necessarily, or even probably, other than conscientious men. What they do is to think with specialized minds. All dominant types have been more or less specialized, if none so much as this, and this specialization has caused, as I understand it, that obtuseness of perception which has been their ruin when the environment which favored them has changed. All that is remarkable about the modern capitalist is the excess of his excentricity, or his deviation from that resultant of forces to which he must conform. To us, however, at present, neither the morality nor the present mental excentricity of the capitalist is so material as the possibility of his acquiring flexibility under pressure, for it would seem to be almost mathematically demonstrable that he will, in the near future, be subjected to a pressure under which he must develop flexibility or be eliminated. There can be no doubt that the modern environment is changing faster than any environment ever previously changed; therefore, the social centre of gravity constantly tends to shift more rapidly; and therefore, modern civilization has unprecedented need of the administrative or generalizing mind. But, as the mass and momentum of modern society is prodigious, it will require a correspondingly prodigious energy to carry it safely from an unstable to a stable equilibrium. The essential is to generate the energy which brings success; and the more the mind dwells upon the peculiarities of the modern capitalistic class, the more doubts obtrude themselves touching their ability to make the effort, even at present, and still more so to make it in the future as the magnitude of the social organism grows. One source of capitalistic weakness comes from a lack of proper instruments wherewith to work, even supposing the will of capital to be good; and this lack of administrative ability is somewhat due to the capitalistic attitude toward education. In the United States capital has long owned the leading universities by right of purchase, as it has owned the highways, the currency, and the press, and capital has used the universities, in a general way, to develop capitalistic ideas. This, however, is of no great moment. What is of moment is that capital has commercialized education. Apparently modern society, if it is to cohere, must have a high order of generalizing mind,--a mind which can grasp a multitude of complex relations,--but this is a mind which can, at best, only be produced in small quantity and at high cost. Capital has preferred the specialized mind and that not of the highest quality, since it has found it profitable to set quantity before quality to the limit which the market will endure. Capitalists have never insisted upon raising an educational standard save in science and mechanics, and the relative overstimulation of the scientific mind has now become an actual menace to order because of the inferiority of the administrative intelligence. Yet, even supposing the synthetic mind of the highest power to be increasing in proportion to the population, instead of, as I suspect, pretty rapidly decreasing, and supposing the capitalist to be fully alive to the need of administrative improvements, a phalanx of Washingtons would be impotent to raise the administrative level of the United States materially, as long as the courts remain censors of legislation; because the province of the censorial court is to dislocate any comprehensive body of legislation, whose effect would be to change the social status. That was the fundamental purpose which underlay the adoption of a written constitution whose object was to keep local sovereignties intact, especially at the South. Jefferson insisted that each sovereignty should by means of nullification protect itself. It was a long step in advance when the nation conquered the prerogative of asserting its own sovereign power through the Supreme Court. Now the intervention of the courts in legislation has become, by the change in environment, as fatal to administration as would have been, in 1800, the success of nullification. I find it difficult to believe that capital, with its specialized views of what constitutes its advantages, its duties, and its responsibilities, and stimulated by a bar moulded to meet its prejudices and requirements, will ever voluntarily assent to the consolidation of the United States to the point at which the interference of the courts with legislation might be eliminated; because, as I have pointed out, capital finds the judicial veto useful as a means of at least temporarily evading the law, while the bar, taken as a whole, quite honestly believes that the universe will obey the judicial decree. No delusion could be profounder and none, perhaps, more dangerous. Courts, I need hardly say, cannot control nature, though by trying to do so they may, like the Parliament of Paris, create a friction which shall induce an appalling catastrophe. True judicial courts, whether in times of peace or of revolution, seldom fail to be a substantial protection to the weak, because they enforce an established _corpus juris_ and conduct trials by recognized forms. It is startling to compare the percentage of convictions to prosecutions, for the same class of offences, in the regular criminal courts during the French Revolution, with the percentage in the Revolutionary Tribunal. And once a stable social equilibrium is reached, all men tend to support judicial courts, if judicial courts exist, from an instinct of self-preservation. This has been amply shown by French experience, and it is here that French history is so illuminating to the American mind. Before the Revolution France had semi-political courts which conduced to the overthrow of Turgot, and, therefore, wrought for violence; but more than this, France, under the old régime, had evolved a legal profession of a cast of mind incompatible with an equal administration of the law. The French courts were, therefore, when trouble came, supported only by a faction, and were cast aside. With that the old régime fell. The young Duke of Chartres, the son of �galité Orleans, and the future Louis Philippe, has related in his journal an anecdote which illustrates that subtle poison of distrust which undermines all legal authority, the moment that suspicion of political partiality in the judiciary enters the popular mind. In June, 1791, the Duke went down from Paris to Vendôme to join the regiment of dragoons of which he had been commissioned colonel. One day, soon after he joined, a messenger came to him in haste to tell him that a mob had gathered near by who were about to hang two priests. "I ran thither at once," wrote the Duke; "I spoke to those who seemed most excited and impressed upon them how horrible it was to hang men without trial; besides, to act as hangmen was to enter a trade which they all thought infamous; that they had judges, and that this was their affair. They answered that their judges were aristocrats, and that they did not punish the guilty." That is to say, although the priests were non-jurors, and, therefore, criminals in the eye of the law, the courts would not enforce the law because of political bias.[43] "It is your fault," I said to them, "since you elected them [the judges], but that is no reason why you should do justice yourselves." Danton explained in the Convention that it was because of the deep distrust of the judiciary in the public mind, which this anecdote shows, that the September massacres occurred, and it was because all republicans knew that the state and the army were full of traitors like Dumouriez, whom the ordinary courts would not punish, that Danton brought forward his bill to organize a true political tribunal to deal with them summarily. When Danton carried through this statute he supposed himself to be at the apex of power and popularity, and to be safe, if any man in France were safe. Very shortly he learned the error In his calculation. Billaud was a member of the Committee of Public Safety, while Danton had allowed himself to be dropped from membership. Danton had just been married, and to an aristocratic wife, and the turmoil of office had grown to be distasteful to him. On March 30, 1794, Billaud somewhat casually remarked, "We must kill Danton;" for in truth Danton, with conservative leanings, was becoming a grave danger to the extreme Jacobins. Had he lived a few months longer he would have been a Thermidorist. Billaud, therefore, only expressed the prevailing Jacobin opinion; so the Jacobins arrested Danton, Camille Desmoulins, and his other friends, and Danton at once anticipated what would be his doom. As he entered his cell he said to his jailer: "I erected the Tribunal. I ask pardon of God and men." But even yet he did not grasp the full meaning of what he had done. At his trial he wished to introduce his evidence fully, protesting "that he should understand the Tribunal since he created it;" nevertheless, he did not understand the Tribunal, he still regarded it as more or less a court. Topino-Lebrun, the artist, did understand it. Topino sat on the jury which tried Danton, and observed that the heart of one of his colleagues seemed failing him. Topino took the waverer aside, and said: "This is not a _trial_, it is a _measure_. Two men are impossible; one must perish. Will you kill Robespierre?--No.--Then by that admission you condemn Danton." Lebrun in these few words went to the root of the matter, and stated the identical principle which underlies our whole doctrine of the Police Power. A political court is not properly a court at all, but an administrative board whose function is to work the will of the dominant faction for the time being. Thus a political court becomes the most formidable of all engines for the destruction of its creators the instant the social equilibrium shifts. So Danton found, in the spring of 1794, when the equilibrium shifted; and so Robespierre, who slew Danton, found the next July, when the equilibrium shifted again. Danton died on the 5th April, 1794; about three months later Jourdan won the Fleurus campaign. Straightway Thermidor followed, and the Tribunal worked as well for the party of Thermidor as it had for the Jacobins. Carrier, who had wallowed in blood at Nantes, as the ideal Jacobin, walked behind the cart which carried Robespierre to the scaffold, shouting, "Down with the tyrant;" but that did not save him. In vain he protested to the Convention that, were he guilty, the whole Convention was guilty, "down to the President's bell." By a vote of 498 out of 500, Carrier was sent before the Tribunal which, even though reorganized, condemned him. Thérézia Cabarrus gaily presided at the closing of the Jacobin Club, Tallien moved over to the benches on the right, and therefore the court was ruthless to Fouquier. On the 11 Thermidor, seventy members, officers, or partisans of the Commune of Paris, were sent to the guillotine in only two batches. On the next day twelve more followed, four of whom were jurymen. Fouquier's turn came later. It may also be worth while for Americans to observe that a political court is quite as effective against property as against life. The Duke of Orleans is only the most celebrated example of a host of Frenchmen who perished, not because of revenge, fear, or jealousy, but because the party in power wanted their property. The famous Law touching Suspected Persons (loi des suspects) was passed on September 17, 1793. On October 10, 1793, that is three weeks afterward, Saint-Just moved that additional powers should be granted, by the Convention, to the Committee of Public Safety, defining, by way of justification for his motion, those who fell within the purview of this law. Among these, first of all, came "the rich," who by that fact alone were to be considered, _prima facie_, enemies to their country. As I stated at the beginning of this chapter, history never can repeat itself; therefore, whatever else may happen in the United States, we certainly shall have no Revolutionary Tribunal like the French Tribunal of 1793, but the mechanical principle of the political court always remains the same; it is an administrative board the control of which is useful, or may be even essential, to the success of a dominant faction, and the instinctive comprehension which the American people have of this truth is demonstrated by the determination with which they have, for many years, sought to impose the will of the majority upon the judiciary. Other means failing to meet their expectations, they have now hit on the recall, which is as revolutionary in essence as were the methods used during the Terror. Courts, from the Supreme Court downward, if purged by recall, or a process tantamount to recall, would, under proper stress, work as surely for a required purpose as did the tribunal supervised by Fouquier-Tinville. These considerations rather lead me to infer that the extreme complexity of the administrative problems presented by modern industrial civilization is beyond the compass of the capitalistic mind. If this be so, American society, as at present organized, with capitalists for the dominant class, can concentrate no further, and, as nothing in the universe is at rest, if it does not concentrate, it must, probably, begin to disintegrate. Indeed we may perceive incipient signs of disintegration all about us. We see, for example, an universal contempt for law, incarnated in the capitalistic class itself, which is responsible for order, and in spite of the awful danger which impends over every rich and physically helpless type should the coercive power collapse. We see it even more distinctly in the chronic war between capital and labor, which government is admittedly unable to control; we see it in the slough of urban politics, inseparable from capitalistic methods of maintaining its ascendancy; and, perhaps, most disquieting of all, we see it in the dissolution of the family which has, for untold ages, been the seat of discipline and the foundation of authority. For the dissolution of the family is peculiarly a phenomenon of our industrial age, and it is caused by the demand of industry for the cheap labor of women and children. Napoleon told the lawyers who drafted the Code that he insisted on one thing alone. They must fortify the family, for, said he, if the family is responsible to the father and the father to me, I can keep order in France. One of the difficulties, therefore, which capital has to meet, by the aid of such administrative ability as it can command, is how to keep order when society no longer rests on the cohesive family, but on highly volatilized individuals as incohesive as grains of sand. Meditating upon these matters, it is hard to resist the persuasion that unless capital can, in the immediate future, generate an intellectual energy, beyond the sphere of its specialized calling, very much in excess of any intellectual energy of which it has hitherto given promise, and unless it can besides rise to an appreciation of diverse social conditions, as well as to a level of political sagacity, far higher than it has attained within recent years, its relative power in the community must decline. If this be so the symptoms which indicate social disintegration will intensify. As they intensify, the ability of industrial capital to withstand the attacks made upon it will lessen, and this process must go on until capital abandons the contest to defend itself as too costly. Then nothing remains but flight. Under what conditions industrial capital would find migration from America possible, must remain for us beyond the bounds even of speculation. It might escape with little or no loss. On the other hand, it might fare as hardly as did the southern slaveholders. No man can foresee his fate. In the event of adverse fortune, however, the position of capitalists would hardly be improved by the existence of political courts serving a malevolent majority. Whatever may be in store for us, here at least, we reach an intelligible conclusion. Should Nature follow such a course as I have suggested, she will settle all our present perplexities as simply and as drastically as she is apt to settle human perturbations, and she will follow logically in the infinitely extended line of her own most impressive precedents. FOOTNOTES: [42] In these observations on the intellectual tendencies of capital I speak generally. Not only individual capitalists, but great corporations, exist, who are noble examples of law-abiding and intelligent citizenship. Their rarity, however, and their conspicuousness, seem to prove the general rule. [43] By the Law of November 27, 1790, priests refusing to swear allegiance to the "civil constitution" of the clergy were punished by loss of pay and of rights of citizenship if they continued their functions. By Law of August 26, 1792, by transportation to Cayenne. 
17041	----	+------------------------------------------------------+ | Transcriber's Note: Some obvious typographical | | errors have been corrected in this text. For a list | | please see the bottom of the document. The one Greek | | word is transliterated and marked with +'s. | +------------------------------------------------------+ THE MAN IN COURT by FREDERIC DEWITT WELLS Justice, Municipal Court of New York City G.P. Putnam's Sons New York and London The Knickerbocker Press 1917 Copyright, 1917 by Frederic Dewitt Wells The Knickerbocker Press, New York To MY FRIEND CHARLES E. GOSTENHOFER OF THE NEW YORK BAR IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS THIS BOOK IS DEDICATED INTRODUCTION The author has tried to show the point of view of the ordinary man in a law court, as the various proceedings of a trial take shape before him. To the initiated, the whole book may seem too obvious; but it has not been written for them, but for those to whom these proceedings are unfamiliar. There are many who have a certain curiosity about the courts, and at the same time a real respect for justice, mingled with amusement at the panoplies and antiquated forms of legal procedure. F. DEW. W. NEW YORK, _January, 1917_. CONTENTS PAGE INTRODUCTION iii I.--A NIGHT COURT 3 II.--THE CIVIL COURT 21 III.--THE JUDGE 39 IV.--THE ANXIOUS JURY 57 V.--THE STRENUOUS LAWYER 75 VI.--THE WORRIED CLIENT 93 VII.--PROGRAMS AND PLEADINGS 111 VIII.--PICKING THE JURY 129 IX.--OPENING THE CASE 149 X.--THE CONFUSED WITNESS 165 XI.--THOSE TECHNICAL OBJECTIONS 183 XII.--THE MOVEMENTS IN COURT 201 XIII.--ELOCUTION 219 XIV.--THE HEAVY CHARGE 235 XV.--THE TRUE VERDICT 251 XVI.--LOOKING BACKWARD 265 I A Night Court In the Night Court the drama is vital and throbbing. As the saddest object to contemplate is a play where the essentials are wrong, so in this court the fundamentals of the law are the cause of making it an uncomfortable and pathetic spectacle. The women who are brought before the Night Court are not heroines, but the criminal law does not seem better than they. It makes little attempt to mitigate any of the wretchedness that it judges; in many cases it moves only to inflict an additional burden of suffering. The result is tragedy. The magistrate sits high, between standards of brass lamps. His black gown, the metal buttons and gleaming shields of the waiting police officers, the busy court officials behind the long desks on either hand tell of the majesty of the law. In front of the desk but at a lower level is a space of ten or twelve feet running across the court-room in which are patrolmen, plain-clothes men, detectives, women prisoners, probation officers, reporters, witnesses, investigators, and lawyers. Beyond in the court-room a large crowd is on the benches. There are witnesses, brothers and sisters, friends of the prisoners waiting to see whether they go out through the street entrance or back through the strong barred gate seen through the door on the left. Also there are the "sharks" waiting to follow out the released prisoners, to prey upon them as the circumstances may favor; and a number of curiosity seekers watching intently. For them it can be nothing but a morbid dumb show, for they are so far from the bench that not a word of the proceedings could be heard. Only once in a while the shrieks and imprecations of a struggling hysterical woman as she is hurried out of court can enliven the scene. Fortified with a letter of introduction to the judge and a disposition that will not be too easily shocked at seeing conditions of life as they actually exist, the spectator may find his way past the policeman at the gate in the rail. It clicks behind him ominously and he wonders whether he will have difficulty in getting out. Finally through clerks and officials who become more kindly as they learn he is a friend of the judge, he is seated in a chair drawn up beside the bench. The magistrate is a hearty round-faced man who seems almost human in spite of his gown and the dignity of his surroundings. The court looks different from this point of view and he may easily watch the judicial enforcement of the law supreme. The organization of these courts is simple. There are not many rules or technicalities. The judges are patient, hard working, understanding, and efficient. The trouble is with the laws they are called upon to administer: Laws which are as absurd, as farcical, and as impracticable as the plot of the lightest musical comedy. At first the visitor can hardly understand what is going on. A pale-faced man is in the witness chair, on his left a bedraggled little woman is standing before and below the judge, her eyes just level with the top of the desk. Clerks are coming with papers to be signed: "commitments," "adjournments," "bail bonds"; others are trying to engage his attention. In the meanwhile the case proceeds. "I inform you," says the judge to the woman, "of your legal rights, you may retain counsel if you desire to do so and your case will be adjourned so that you may advise with him and secure witnesses, or you may now proceed to trial. Which will you do?" She murmurs something. She is pale-faced with sullen eyes, drooping mouth, an over-hanging lip. A sad red feather droops in her hat. "Proceed," says the judge; and to the policeman who is called as a witness, "You swear to tell the truth, the whole truth mm-mm-mm--you are a plain-clothes man attached to the 16th Precinct detailed by the central office, what about this woman?" "At the corner of Fifteenth Street and Irving Place," says the witness, "between the hours of 10:05 and 10:15 this evening I watched this woman stop and speak to three different men. I know her, she has been here before your Honor." "What do you say?" the judge asks the woman. She is silent. "What do you work at?" "Housework, your Honor." "Always housework; it is surprising how many houseworkers come before me." She smiles a sickly smile. "Take her record. Next case," says the judge. Outside it is a cold sleeting night in early March. "Witnesses in case of Nellie Farrel," calls the clerk. Nellie Farrel stands before the desk beside a policeman; she is tall with fair waving hair. She must have been pretty once; even now there is a delicate line of throat and chin. But her eyes are hard and on her cheeks there are traces of paint that has been hastily rubbed off. She looks thirty; she is probably not more than twenty. A callow youth, who seems preternaturally keen, swears that on Thirteenth Street between Fifth Avenue and University Place the woman stopped and spoke to him; and he tells his story as though it were learned by rote. "Do you know the officer who made the arrest?" the judge asks him. "I do." A suspicion arises that there may be an interest between the witness and the policeman. A dark-haired, smooth-faced woman who is standing by the prisoner says: "Your Honor, she's my sister. I'm a respectable woman, my husband is a driver. I have three children. It's disgrace enough to have the likes of her in the family. If you'll give her another chance I'll take her home with me; my husband is here and he's willing." The accused looks down piteously. "Discharged on probation," says the judge, and the family go out. "That's the third time that's happened to her," whispers a clerk. "Every time the sister comes up like a good one." A horrible old woman with straggling gray hair, shrivelled neck, and claw-like hands grasps a black shawl about her flat chest. "Mary," says the judge, "thirty days on the island for you." "Oh, your Honor, your Honor, not the workhouse. Oh, God, not the workhouse," and she is borne out screaming and fighting and invoking Christ to her aid. The judge turns and says in explanation, "an old case, an example of what they all may come to." A dark-haired little French woman is brought in with crimson lips, bold black eyes, and expressive hands. A detective testifies that he went with her into a tenement house on Seventeenth Street west of Sixth Avenue. Charge: Violation of the Tenement House Law. "Qu'importe," says the woman. "I go in ze street. I am arrested. I stay in ze house. I am arrested. I take ze room. I am arrested. Chantage--Blackmail. C'est pour rire." Who are these women who are brought in a crowd together? One of them older than the rest is a foreigner plainly dressed in black silk with a gold chain. She does not seem particularly evil, but rather respectable. The others are in long cloaks or waterproofs hastily donned and through which are glimpses of pink stockings. They have hair of that disagreeable butter color which speaks of peroxide. There has been a raid on a west-side street of a house of ill repute. Some testimony is given and the older woman, the "Madam" is held in bail for the action of the Grand Jury while the rest are held for further evidence. The judge tells us there will probably not be enough testimony and they will be released in the morning. But unless bail is found they will spend the night in cells. A nervous, excited woman comes in--two policemen are with her. She has been arrested for disorderly conduct on Sixth Avenue near Thirty-first Street. She has been fighting with a man who has also been arrested and taken to the men's Night Court. Hers is a hard, tough face of the lowest type. "Why should you try to scratch the man's face? What did he do?" the judge asks. "Is he your husband?" "My husband, your Honor? Yes, I guess you can call Al that. We lives up town and when I went out he says to me, 'Hustle, kid, you got to hustle, the rent's due and if you don't get the money I'll break your neck.' The slob won't work. Well, a night like this you couldn't make a cent and I only had half a dollar and I wanted to get a bite to eat. I hadn't had a thing since four o'clock, and then I met Al going down Sixt' Avenue an' he tries to swipe me fifty cents off me and I was that wild I wanted to tear him. I'm sorry; I guess it was my fault. I don't want to see him jugged, so please let me off, your Honor, and I won't make no trouble." "Take her record," said the judge, "and hold her as a witness against the man." A string of women are brought in for sentence who have been having finger prints taken in the adjoining room. The judge proceeds to impose sentences according to the previous records which are shown. Some of the women are those who have passed in front before. The little bedraggled woman with the red feather has been arrested seven times in sixteen months. Another has spent eight weeks in the workhouse out of a period of seven months; another has been sent already to the Bedford Reformatory; another has been twice to houses of reform. Before the judge gives his sentence he refers the prisoners to the probation officer, who talks with them in a motherly way. After talking with the little prisoner she addresses the judge. "She says its no use, your Honor, she does not want to reform--it will not be worth while to put her on probation." "Committed to the Mary Magdalene Home," says the judge, and the name brings a startling surmise as to what He of Galilee would have said. The foregoing is only a typical session of the court. Night after night, from eight o'clock until one in the morning, the scene is repeated. The moral effect and its reaction upon those who conduct the proceedings--the judges, officers, and the police, cannot but be deplorable; the evil done to those forcibly brought there could not be over-estimated. Substantially the law is that the women may not loiter in the streets nor solicit in the streets, or in any building open to the public. They may live neither in a tenement house nor in a disreputable house. The law makes it a crime for the women to walk abroad or stay at home. Their existence is not a crime, but only in an indirect way the law makes them outlaws. Anyone wishing to prosecute or persecute finds it easy to do so. The worst enemies of these unhappy women are to be found, curiously enough, among both the best and the most evil people in the community. The unspeakably depraved are the men who, either as procurers, blackmailers, or the miserable men who live on a share of their earnings. The excellent people who oppose any remedial legislation which might relieve the situation, seem equally responsible for the present condition, however well-intentioned they may be. One effect of the present system is the practically unchecked transmission of disease. A reform in this direction would not solve the basic problem, for there would remain full opportunities of blackmail and extortion, but it might still remove a menace to the health of the community which is probably more serious than tuberculosis. A statute to this end was enacted in New York State a few years ago: an act for the medical examination of the women. It was declared unconstitutional because of one word. It should have read, "the judge may"; instead, it read, "the judge _must_." Far more difficult to deal with is the opposition of the people who believe that the moral sense of the community would be jeopardized by any laws suggesting that prostitution is unavoidable. In ironic contrast to the failure of legislation to prevent the spread of disease, is the success of an ill-advised statute making adultery a crime. Under it, a married man having relations with a prostitute and the woman herself, are subject to criminal prosecution. It affords a fresh field for extortion, how largely used it is impossible to say. The history of the passage of the adultery act presents one of the most ghastly jokes ever perpetrated by a State Legislature. For years such a bill had been introduced in the New York Legislature and had been passed by either the Assembly or the Senate without comment and then quietly killed in the other house. It was obvious that such a law could not be properly enforced and its blackmailing possibilities were manifest, yet no one, not even Governor Hughes, who was then in office, could be openly opposed to its passage. The tender morality of the community would not allow a public discussion. It was said, at the time, that when the representative of a society for the suppression of vice called on one member asking him to introduce the bill, he declined to do so on the ground that he represented a Fifth Avenue District and it would make him too unpopular among his constituents. When the bill had been introduced by another member and came up for final passage, it was decided, since Governor Hughes had vetoed many political bills of members of both houses, to put him in a dilemma. If the bill were presented to him he would have to sign an absurd statute or declare himself the friend of unrighteousness. He signed it and the bill became a law. Since its enactment there have been ridiculously few convictions under it. The successive carelessness, timidity, and levity of the Legislature is depressing, but there is an encouraging increase of interest on the part of the public. The average man is not merely interested in the problem; he appears to take the sensible view that the "social evil" is not so much a moral question as a condition, a problem to be met like other problems. We have become less concerned with the private morals of our fellow citizens than with their health, safety, and the prevention of unnecessary suffering. We perceive that the courts are only our agents and are not directly responsible for what they do; they are following instructions given by our ancestors and which we have neglected to abolish or modify. The visitor leaves the Night Court with a strange sense of having his social values overthrown. He feels almost sympathetic with the women whom he has seen. They may be offenders against morals and the social order, but they are human beings over whom the waters of civilization seem to sweep with relentless flood. The frightful waste of life and energy seems inexcusable. And it is as though some mill dam had burst and was flowing in a terrific torrent down a river bed along which a few are drawn white and drowned. The ordinary man knows that the women who go under are such a small proportion of those who escape, that it seems either a ghastly joke or a terrible tragedy. The whole paraphernalia of the court-room merely accents the contrast between those who are caught and those who go free. But all criminal courts are always unpleasant. And humanity if seen only in the setting of a criminal trial would be a discouraging object. Turning to the more civil court, we find an almost equal unfitness between the courts and modern conditions. II THE CIVIL COURT In a twenty-four-story office building, on a smooth gliding elevator, up seventeen stories, down a low-ceilinged corridor, past fireproof doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room," we find the typical modern court. The old idea of a very pseudo-classic courthouse on a placid village green to which the neighboring county squires have ridden, and where the jail is in the cellar and the town recorder in the attic, is fast disappearing. The old courthouse in the city, of red sandstone with battlements and turrets, minarets, and a clock tower, seems out of date. The white marble palaces of the higher courts wherein broad stairways, paneled mahogany, stained glass, and soft noiseless carpets giving an air of repose and refined culture, are not altogether consistent with the modern spirit. The man on the street does not understand whether the marble statues on the roof are symbols of justice or late presidents of the United States. The usual courthouse of twenty years ago was a mixture of armory and Gothic church. In the larger courthouses where there are many terms or parts in one building, there is an air of confusion. Rotundas, corridors, stairways, and elevators are constantly filled with a moving crowd of lawyers waiting for their cases to be tried, clients who have had appointments, witnesses who have been subpoenaed to come to court and when they get there find it is not one court, but thirty. The latter are found wandering dazedly about asking anyone who will stop to listen if they know in which part the case of Martin _vs._ Martin is being tried. Lunch counters, telephone booths, and a feeling of awe are in the building. What that terror of a court of law comes from is difficult to analyze. There is the impressive majesty of the law; always about a court is the inspiring sense of something more than human. Even an empty court-room is not as other rooms. Like an empty theater there remains an atmosphere of glamour, of mystery, and yet equally true there remains a substantial, strong odor of crowds. It is said that every theater retains its own peculiar smell. The scientific investigation of the psychology of odors is too subtle to be understandable. The question of analyzing the exudations of a nervous crowd seems interesting, but the remembrance of an anxious humanity is always present. In former times the attendant placed a small bunch of herbs and aromatic flowers on the judge's desk, and glasses of the dried bouquets remained in a row for long periods. Hygienically considered the courts are unsanitary. If the windows are opened the cold air is apt to draw directly on the heads of the jury and the stenographer. In summer the noise of city streets, the cars, the elevated, the cries of children, the hand-organs, the flies, are not at all conformable to the supposed dignity of the court. It is well-known that the crowded and unhealthy conditions of the courts are conducive to disease as well as discomfort to the inhabitants. The connotations of the name court are generally impressive. There is the suggestion of jail, of punishment, of something final, of absolute judgment. Also it suggests the courtyard of a tenement house, an alleyway or something shut in and confined. The philology is from the old French cort or curt. It is curious that it means something narrow. There are the suggestions of the lists, of heralds, of trumpets, of banners and knights in armor, of prancing steeds, of fair ladies watching, of joust, tournaments, and trials by battle. There is something royal about the word. We think of pomp and magnificence and purple robes, of kings on their thrones, with courtiers standing about. The conception of Diety to the simple man who visualizes, immediately takes on the form of a court. We speak of the Courts of Heaven. The pictures of Godhead represent him as sitting in the center on his raised throne with the surrounding tiers of attendant angels. The modern court-room is only an adapted continuation of a medieval idea. On the raised dais under an unsanitary and dusty canopy of green plush sits the judge; instead of a sceptre he holds the gavel. This gavel, by the way, is falling more and more into disuse. As a symbol of authority, a little wooden hammer has become a trifle ludicrous. If a judge were to shake it too violently there might be a fear on the part of those watching that he was about to throw it at the spectators or at one of the arguing lawyers. The judge sits at an imposing high-railed desk with standard lights at either corner. The top of the desk is usually above the level of the eyes even of the lawyer standing. This is an arrangement which is conventional and convenient; it would not be consistent with the majesty of the law if the judge should be discovered writing a personal note or taking a glance at the stock market reports in the evening paper. The judge's chair is ordinarily a revolving one with a dip backward. Stationary chairs are trying, for those who have to remain quiet for so many hours at a time, and the swinging back and forth and twisting about gives a little relaxation. In front of the judge's dais are the counselors' or lawyers' tables, and at one side in front and below usually another table for reporters. It is somewhat like the arrangement in baronial halls where there was an upper and lower table and some sat below the salt and others above. On one side, opposite, but not as high, is the jury-box. This is a pen with twelve seats within a high-sided inclosure like an old-fashioned pew. What the object of the inclosure may be is uncertain, unless it is a relic of a time when it was necessary to imprison the jurors. Jury duty has doubtless always been arduous and disagreeable, and in earlier days men were probably as anxious to escape serving on the jury as they are to-day. In one of the courts, which was not supposed to be for jury trials, twelve men once sat on a case without any jury-box in plain chairs and at the side of the room. They were extremely uncomfortable themselves; their legs were exposed and they seemed shockingly unconventional. Between the judge's desk and the jury-box is the witness chair, an ordinary chair placed not quite so high, but beside the judge's and where he can look down on the witness. The position of the witness chair may be accountable for the feeling of protecting the witness that exists in the minds of the judge and jury. There is a natural sympathy for him, as though he were being attacked by the examining counsel. The witness in former times stood in a little enclosed box and in Italy, where court scenes are more intense, the prisoners to this day in criminal trials testify from behind iron bars. Below the witness chair is the stenographer. The former idea of the aged scrivener or court clerk with white hair and green eye shade has vanished. The modern stenographer, who keeps the record of a trial, is probably an energetic young man, who has passed high on the civil service list, knows something about law, is studying for a better position, or is connected with a very profitable stenographers' business on the outside. The court proper is divided from the rest of the room by an iron or wooden rail guarded by a jealous court attendant, who is always a strong advocate of court etiquette and very properly maintains the dignity of the court. He is in uniform with a shield or badge of office conspicuously displayed and being taken from the civil service list whereon war veterans and retired firemen or policemen have a preference, is generally of a certain age. Naturally, being old and having to stand so much, he has tender feet, and with the customary effects of all secure and salaried positions, acquires both a slow and shuffling gait and the ordinary characteristics of his class. He is subject to many petty annoyances, foolish questions, repeated inquiries, people talking or arguing, little disorders pursue him on every hand. The object of the attendant in the court is to maintain order and preserve dignity. They are almost avid in their pursuit of the ignoramus who comes in with his hat on his head or covers himself on going out before he reaches the door. Their salaries are not large but their duties are not arduous. They may seem solicitous to the judge and sometimes overbearing to the litigants and lawyers, but they are only in the position of the supes or ushers in the theater. Yet they are understanding and wise as regards the human drama constantly played before them. The lighting of the court-room is unusually dramatic. There are no foot-lights, but the best theory of stage lighting is that there should be none. One of the most effective scenes in the modern theater is the court setting in Galsworthy's _Justice_. The lighting is indirect and the spots of red and green lights at the judge's desk, the corners of the jury-box and the shaded ones at the clerk's elbow, give a remarkable impression of mysterious terror. Whatever may be the cause, there exists a marked resentment against the courts. Not only is there a complaint as to the cloying technicalities of procedure, the long and fatal delays of the law, the absurd forms and mannerisms of the trial, but underneath them all a fundamental distrust of justice itself. The complaint is heard of the inequality of justice. That there is a law for the poor man and another law for the rich. The stage gives expression to the feeling, and modern literature voices it. The high-priced millionaire escapes and the low-browed pickpocket goes to prison. Cases are cited where the rich woman returning from a debauch of European shopping with a few thousand dollars' worth of pearls sewed in the lining of her winter bonnet is only fined, whereas the little milliner from the lower end of the city is sent to jail for trying to smuggle in a new coat. The impressario of art collections is caught at a gigantic scheme for defrauding the government of thousands of dollars on imported pictures. He hobbles into court and on the ground of ill health escapes a prison sentence and is merely fined, while the little Italian fruit vender is summarily jailed for bringing in a few dried mushrooms. The high financier who wrecks a railroad or a bank serves a light prison term and emerges like a phoenix to buy new steamboat lines or float new enterprises. But the peddler on the East Side who sells a few dollars' worth of stale fish is punished to the limit of the law. The facts exist and to the popular mind seem unexplainable. There undoubtedly must be a reason, and what it is, is not hard to find. It seems one of the mysteries of judging and of justice, as though there were an unwritten law in the back of the human mind in favor of property rights. There is an explanation and not an inequality of justice. The facts are not as they are popularly stated or supposed to be. The public gets only a portion of the picture, and from an enormous group of cases, a few contrasted ones are picked out for the sake of the dramatic effect. The limelight of public notice is upon them and the softer lights and shadows are omitted. The public does not see the gradation. On the one hand we see the rich woman, the millionaire art dealer, the financial pirate being leniently dealt with, on the other hand we see the little milliner, the Italian fruit vender, and the peddler receiving harsh sentences. The sharp contrasts make good newspaper stories that are appealing and touching. What the public does not see is the whole picture of all the cases of alleged inequality that come into court. These are only six out of seven hundred cases, chosen because they are melodramatic. There were nearly seven hundred other offenders that were let off with suspended sentences or light fines, of whom nothing is heard, but these three are conspicuous on account of their wealth, and the cases of the milliner, the mushroom vender, and the peddler are reported for the same reason--of being conspicuous. They are unusual on account of the sentences. The harshness of their sentences is remarkable. There may be special reasons. The six hundred and ninety-odd who are punished lightly in the same way as the rich man are not noticed. As a matter of actual experience, the rich man has a harder time in court than the poor man. The inequality of justice, if there be any, is rather against him. Because he is rich and notorious the public prosecutor cannot let him off. If, for example, a poor man who is undoubtedly insane, commits a murder he is not tried, but is sent to an asylum for the insane. If, after several years, he recovers and is released, nothing is said about it; the public does not know. But let it be a rich lunatic and the public prosecutor is bound to bring him to trial. Public attention demands it. He may know him to be insane, but he must still prosecute him. The jury declare him insane. After years he is released from the asylum, the public thinks it a miscarriage of justice, forgetting in the meanwhile the inconspicuous poor man who unnoticed has gone through the same experience, and been released years ago. The delays of the law are partly due to the system of courts and partly to the dullness of court procedure. The inefficiency of the system of courts and judicial procedure is shown in the practical workings of the civil courts of New York City. The antiquated organization of all the courts is like a patchwork quilt where each additional one has been added or increased as New York has grown from a village below the Indian stockade at Wall Street to its present size. So that there exist within the city limits now seven different kinds of civil courts and five kinds of criminal courts, in nearly each of which there is a separate set of rules, different customs, and distinct methods of procedure, and of them all the most technical and the most complicated are often those where they should be the most simple and easy of understanding. Wherever the court may be the surroundings are substantially the same. The scene is laid and the carpenters have left. The spectators have found their places. The stage is empty however, there is a sudden bustle and shifting of feet, a rumor has gone abroad that something is about to happen. The court attendants take their places. One of them straightens up and with a commanding voice cries out: "Gentlemen, please rise. Hear ye, hear ye, all persons having business draw near and ye shall be heard." Enter his Honor, the Judge. III THE JUDGE With a rustle of his gown and a bow to the court-room the judge takes his seat on the bench. The trivial pleasures of being heralded and having the spectators rise when he enters have lost their charm, but he would feel uncomfortable without them. The gray-haired clerk hands him the list of the cases for the day. The anxious court attendant asks if he shall open a window. The judge sniffs audibly and orders the steam heat to be turned off. The court attendant does so and brings his Honor a glass of water. When the judge sits down in the revolving chair he is on the bench and the court is in session. The fact of the matter is the judge is a pretty decent sort of person. The trouble is that the surroundings are all against him. In the first place his whole job is one that makes him live up to a part. For five or six hours a day he has to sit still in a stuffy court-room on a leather chair under a silly canopy of wood or plush and pretend that he is the whole thing, that he knows it all, and that whatever he decides is absolutely right. Let him waiver or be uncertain in his decisions and woe is it to him. No one thinks much of a judge who does not know his business or at least does not pretend to know it. How anyone who has been long on the bench can retain any sense of proportion is remarkable. Whatever he says and does in court is final and apparently approved. If his decisions are reversed they do not affect him seriously; he has tried so many cases that were not appealed, and the greater proportion of those that have been are affirmed. The reversal comes a long time after and does not hurt his feelings. In any event, he was trying to do the best he could and human nature may be fallible, although, as far as he can see, the whole world of the little court-room where he sits has conspired to show him that he is divinely endowed. His position is not exactly one of bluff, but he is the central figure of the stage; like the actor's profession the judge's job makes him an egotist. Take for example the essential elements of his knowledge of the law. He is the _Jus Dicens_, the one saying the law, the name of judge being derived from the two Latin words. He is supposed to know the law, at least he ought to know court procedure, and the law of his State thereon by heart. In New York State, for example, the Code of Civil Procedure is five hundred thousand words long. He is bound to take judicial notice without being told of all the statutes of the State Legislature, which are being passed at the rate of six hundred a year. He is also supposed to know the laws of the United States passed at Washington, and to be thoroughly familiar with the latest decisions of the Supreme Courts of the United States, and those for the past 125 years. He must understand and look as though he knew beforehand any decision of the courts of his own State cited, which are conveniently and neatly printed in 219 New York Court of Appeals Reports, 173 volumes of the Appellate Division Reports, and 96 volumes of the Miscellaneous Reports, to say nothing of the opinions and decisions of other courts that are not printed at all. His knowledge of the law is a fearful and wonderful thing; he must have an oceanic mind. It is told that one of the leaders of the bar had formerly a young man in his office who with advancing years and reputation was elected to the bench. Before the first of January when he was to take his oath of office, the old employer and friend sent for him. When he arrived he was greeted as follows: "Joe, I've sent for you because I wanted to see you before you become a judge. I am very fond of you and I wanted to see you once again as you were, because after you go on the bench you are bound to become a stuffed shirt, for they all do." That so many escape is one of the wonders of human nature. That they retain their humanity is due to a disposition of Providence to temper the wind to the shorn lamb. The position necessarily takes away all initiative. In politics the judge is recognized as being a "dead one." After a few years on the bench only the exceptional man can fling off the shackles of his profession and get back into real life. He ceases from fighting, he is not energetic. As a good judge he must be firm but restrained. He may not be too emphatic. Every inducement is toward making him lazy, fat, and easy. Before him everyone bows and waits for him to speak. He is the absolute boss within the four walls of his court-room. The only restraining influences are the reactions from the lawyers and spectators who are before him. Their opinions can not be openly expressed; they are reserved until afterwards. If a judge really has any idea of the high esteem in which he is held, let him find out what is being said of him after the case is over, as the clients and lawyers are going down in the elevator, or what the rear benches have been whispering. He probably has a suspicion of this, but no matter how tolerant he desires to be, there is the temptation to show that his authority is supreme; that when the lawyers begin arguing a point on which he has formed an opinion to cut them off; when the witness is trembling on the stand as to whether the accident happened on a Thursday or a Friday, to ask her, "Don't you know that Thursday was on the 16th of April last year," which of course she does not. There is the temptation to feel that he can never be wrong; that a question may be reargued, but that he is not going to change his opinion. The possibility is that the judge is a mild sort of bully. But it is not always safe to go on the assumption that being a bully he is also a coward. He may be, but on a trial the odds are too much in his favor. If the lawyer wants to fight the judge, he has a great deal at stake; he may awaken so strong a prejudice that the judge knowing the rules of the game better than he does, may beat him on a technicality. On the other hand it is a mistake for the lawyer to be subservient and too cringing. Being a bully, the judge is apt to take advantage of his position. The best policy is to appeal to his human instincts as a man. He may be decent in spite of critics of the courts to the contrary notwithstanding. If he is kindly treated he will respond. In New York judges were appointed until about 1846, when there was a popular upheaval and the constitution was changed, and they have ever since been elective, with the exception of some of the minor courts. The advantages of the two methods is an open question. The arguments in favor of appointment are that it makes for an independent judiciary and that it secures better men for the bench, whereas the other does not, because the highest class lawyer will not go through the turmoil and supposed degradation of a political campaign. These arguments are not sound. The argument for the election of judges is that it keeps the bench more humane, modern, and in touch with the will of the people. The one is the aristocratic idea, the other the democratic. A court as at present constituted is an autocratic institution but the judges should be democrats. A feeling prevails that the man who has gone through a course of political sprouts involving the training of election campaigns, is more understanding of the wants of the people whom he is to serve, also that courts should be arranged on a business basis. An amusing aspect of an elective judge is that he is in an anomalous position. If he plays politics, endeavors to make friends either by his decisions on the bench or obeying the mandates of a superior political boss as to appointment of referees and receivers, he immediately becomes a corrupt judge. The stench of his unjust decisions will sooner or later come to the nostrils of the community and his chances of reëlection are forfeited. He runs the hazard of charges and removal. If, on the other hand, he forgets the organization that has elected him either in the matter of patronage or the refusal of some desired court remedy, and so conducts his court that there shall be neither fear nor favor, he is a political ingrate and deserves neither reëlection nor promotion. Of course these are the two extremes; fortunately human nature is not what the sociologists and political theorists would make it. The political boss is not the unscrupulous ogre that the muck-rakers picture. He does not order the judge to decide the hundred-thousand-dollar-contract case in favor of his hench man. He might like to have him do so but he does not ask. Neither does the judge lean over backwards in the other direction and imprison the contractor because he is a friend of the boss. The movements for the non-partisan election of judge show the recognition of some of these incongruities. The fierce bright light that plays about a throne also makes the judge conspicuous. If he sneezes, if he coughs, if he takes a glass of water he is probably feverish and cross. If he keeps still he is going to sleep and not paying attention. If he gets up or sits down it is noted as indicative of how he is going to decide the case. Every movement is watched. The position of a judge is not enviable. He is the concrete object to which the evils of the court-room attach. To the popular mind he is the court, the law, the method of procedure, the source of all the technicalities, and the delays. The beaten side will bear him a grudge, and the winning side think they ought to have got more. If he be lenient in interpreting the law, he may be called to account for inability; if he be too strict, he is accused of irritability. If he be too polite, he may seem to be extending favor. A justice of one court, wishing to be kind, once asked a young counselor whose case had been dismissed through a technicality to come up and sit on the bench with him. The young man afterward complained to his friends that the judge wanted to shame him and make him conspicuous. There are few judges who dare to cut short the examination of a witness, although the length and direction of a trial are supposed to be within the discretion of the judge. He is hindered by the technicalities of those who insist, hoping for a reversal on appeal, and sometimes the same technicalities are used to prevent the actual facts being brought out. The solution probably lies in extending the powers of the judges over the conduct of a trial. He has a position of interest and authority and one that commands respect. In England he dresses for the part in silk stockings and is next to the king in importance or about equal to a bishop. In Germany he is a little better than a Herr Pastor or a doctor, but inferior to a young lieutenant in the army. In France the salaries of the judges are pitiable. The highest, the president of the Cour de Cassation, gets $5000 a year and the lower judges only a few hundreds, with no possibility of earning anything by practicing law, but there the judges are persuaded to take out the balance of what they should have in salaries in the honor of their position. We are so shockingly frank and matter of fact, that we believe that the conventionality of pomp and circumstance have been too much regarded in courts and court procedure, that dignity is not accomplished by wearing a wig, knee breeches, or gowns of ermine and silk. It is consistent with a plain-spoken people to feel a contempt for state and symbols. Any attempt to return to the conventionalities of Europe is met by the contempt of a democracy. In rebelling at form we have been so occupied that we have not been awake to a change in substance that has been demanded by modern conditions. The courts are gradually reaching a simpler basis. Formerly they may have been surrounded by more pomp and magnificence, but the work is now being better laid out and the course of the proceeding is on more modern lines. Changes in practice acts will revolutionize trials. People smile at the dignity of their courts and judges. The modern spirit is for greater frankness, simplicity, and directness. If he is a sane and reasonably simple man the judge tries to do his duty according to the light that is in him. He knows some law, has seen a quantity of human nature and passions flowing before him. The court-room, his position of authority, the respect of the community, the human drama, the abstract and intangible demand of something above the actual awakens in the judge that passion for justice which is a quality almost divine. The man himself becomes patient, understanding, and humane. Nearly every man, no matter how small he may be at the beginning, rises to the responsibilities of his position. So it is with the judge. It is undecided whether the judge is entitled to more respect from the lawyers and laity or whether the laity is entitled to more respect from the judge. The judge sits indolently crumpled up in his easy chair; before him a leader of the bar is arguing. In an eloquent manner he is pleading for a young attorney who is about to be punished for "Contempt of court." "And so your Honor will realize that in the heat and excitement of a trial, in the turmoil of the legal battle, in the intensity of a forensic struggle, the young man may well have forgotten the respect and deference which is ever due from a member of the bar to the representative of high-minded justice." The judge seems unaffected by the appeal. The young man had been rude and impertinent, the fine of $250 must stand as punishment for his misbehavior. Suddenly the pleader with a wave of his hand and a twinkle in his eye says: "Look at the difference between the position of a lawyer who, alert with restless energy, momentarily forgets his manners in fighting for his client, and on the other hand the calm"--pointing to the judge who is still half reclining in his chair--"the calm, I repeat, of complete judicial repose." There is a smile through the court-room. The judge straightens up, sees the humor of the situation, and the fine is remitted. There is a constant play of opposing influences upon the judge. As an upholder of the law he becomes a formalist and a reactionary. The insistent demands of humanity which the statute law can never satisfy, tend to make him a revolutionist. The saving element for him is that he is only a part of a system for which he is not responsible. When the judge has had the list of cases for the day called and has disposed of the applications for adjournments, he turns to the clerk who begins to call the roll of the men who are to act an important part on the stage--the jury. The solution of the matter so far as the judge is concerned is to give him greater power. Let him be absolutely responsible for the conduct of a case in court. His position should not be that of an umpire who remains quiet until a dispute arises, but rather that of a head enquirer into merits, assisted by the two lawyers and the jury. IV THE ANXIOUS JURY The main characteristic of the jury is that it does not want to be in court. The name comes from the French word _Juré_, sworn, or the man who has taken an oath. There is probably no reason to suppose that the word is derived from the state of mind in which a juryman finds himself, nor does it mean the words he has expressed with reference to his duty: more properly it is the men who are sworn to do justice. The implication of the word serve is that there is some punishment or penalty attached to jury duty. It is not regarded as penal servitude by the average man, but it seems near to it. While he is serving, his business goes to pieces, his wife misunderstands why he does not come home to dinner and his whole life is disarranged. When a man has served on a jury he gets a discharge paper. Jury duty is one of the obligations of citizenship and its highest duty; at the same time it is one of its privileges. Foreigners and idiots cannot serve. Doctors, soldiers, journalists, clergymen, and others, besides those who are deaf, blind, or otherwise disabled, are exempted. The experience of serving on a jury may be annoying but it is broadening and gives an opportunity of seeing human nature in a way that few appreciate. To serve on a jury is to become a part of the judicial system of the State and for the time being to belong to the governing class. "All day long," says the court officer, "they do nothing but grumble and grumble at being kept away from their business but when they get chosen on a case, they realize it does not do any good so they settle down to do what is right." The country man may not have much to do and may look on jury duty rather as a diversion or vacation from farm work but the average town man feels the $2 a day he receives is only lunch money compared to the amount he is losing in his business, and so he hates it. The first warning of trouble that a juryman gets is when he comes home and finds that a policeman has been looking for him. It is to be hoped that he has a guiltless conscience. He inquires further and learns it was only a court officer summoning him to court for the trial term next month. His first concern is to see what can be done in a political way. If he belongs to the local club of the district--but here let the curtain be drawn. Besides he may accomplish very little, so many of the judges do not seem to remember their political obligations. Then he tries to reach the judge through a friend and when that fails he makes his way resignedly to court on the appointed day. When he comes there for the first time he smiles at the court attendant and tries to make friends, but the court officer who has been there many times before is not at all susceptible. Perhaps he hurries around to the judge's chambers and manages to see the judge's secretary, who is sympathetic over the fact that the month is December and the busy season of the year in the florist business and that there is only one assistant in the shop, but the judge is busy and will only see him from the bench. Finally he goes into court and waits for his name to be called. After the roll call, he goes timidly up to the rail and stands there waiting until his Honor will take notice of him. His Honor is busy blowing his nose or signing papers. Finally the court officer points him out. The judge scowls and asks him what he wants. Tremblingly he explains his difficulty: that his business needs him or that his wife is sick and that he will serve any other month if he can be let off now. The judge reads him a lecture on the duty of citizenship and the responsibility of jury duty and says he is sorry that he can not excuse him. Afterwards when the judge finds that there are enough jurymen in court for the needs of the calendar, he may privately send word to the juryman by a court attendant that he is excused for the term or for a few days until the Christmas rush is over or his wife is better. Judges are often humane, but if they were to excuse the juror openly they would find all the others in court clamoring for the same exemption. If the juryman merely wants to dodge the duty he probably does not get excused. The judge seems surprisingly intelligent and discriminating and able to pick the sheep from the goats. The man who merely wants to escape serving usually has to, and the man on whom it is a hardship is sometimes let off. Uniformly the jurymen feel that it is a necessary evil, but not so bad when they are once in court. Until a case is called for trial they sit about the court-room or walk in the corridors. In the meanwhile, the judge is arranging the calendar, and they have been watching the maneuvers of the lawyers to have their cases put off, or they may have seen the amusing little by-plays when one lawyer crosses the aisle of the court-room, button-holes his opponent, and whispers something to him. The other lawyer motions to his client and the party moves to the hall where there is a secret conference about a proposition of settlement. Something is agreed upon or they may not come to terms and decide to go on with the trial. If there is to be a settlement the two lawyers walk up to the rail and say: "Will your Honor excuse us if we interrupt and mark the case of Allen against Brewster settled." The judge smiles with pleasure; he does not mind at all being interrupted for that purpose. He is pleased to have one more case off the score. When the time comes for the selection of a jury they wait for their names to be called with the thought that the axe is about to fall. As they are examined they answer the questions of their occupations and opinions truthfully, but if for any reason they are excused, they leave the box with a smile at those impaneled and a sigh of relief as at danger escaped. Like many honors, the position of foreman of a jury is an empty honor. He has the first seat and he heads the procession when the jury walk in and out of court; he also announces the verdict, but he has no actual power either in the jury-room or in the court. If there is a vote to be taken, he has no deciding voice, but in the deliberations he quickly falls to the level which his attainments justify. During the trial a feeling of resentment at court procedure grows. It is not the judge any longer who is keeping and delaying them. The witnesses appear like fools it is true, but the lawyers make them act more foolishly than need be. Why does the judge make such absurd rulings? The law must be an unreasonable thing and the judge evidently knows a great deal about it. Why can't the witnesses tell what they know? The most tiresome parts are when the lawyers begin arguing about the testimony. One side wants the witness to tell something and the other side does not. The judge keeps still and lets the lawyers go on talking as though it were something important, perhaps he can not help it. The lawyers or the judge can not have much to do. The judge it is true is paid to listen, but the lawyers must be pretty hard up when they will go on talking in that way. No juryman would stay here wasting his time during business hours, and afterwards there are the newspapers, supper, and taking the family to the movies, all of which is far more sensible. "Say, it's like a vaudeville show to see those two go on," thinks the juryman. "You couldn't beat it if you put it in an act. Georgie Cohan or Joe Weber could make their fortunes if they only hired the lawyers as actors or came into court for their material." Occasionally the judge calls the lawyers up to his desk and together they talk over something which the jury can not hear. The jury look as though they did not care. If they want to talk some more--well, let them. Perhaps they are planning some game, and the jury will wait until their turn comes. In the jury-room they can show them what's what; that is where they know their chance is coming. Even if the judge is only trying to find out something about the case, that is a sensible thing to do. Why don't the lawyers come over and talk to the jury like that? In a few minutes they could ask them some questions that would settle the whole matter. The strange part is when a witness has said something and told how he or she feels about the whole case, which is exactly what the jury want to know, one of the lawyers jumps up and says he moves to strike that part all out and the judge strikes out. The lawyer having scored a hit, then says: "I ask your Honor to instruct the jury to disregard the testimony just given." "Gentlemen," says the judge, "the evidence just given has been ruled out by the court and is not relevant to the issue, and I must instruct you to disregard these words of the witness and in arriving at your verdict not to consider them." Of all the absurdities that happen in court, the jurymen think that is the worst. Does the judge or the lawyer believe for a moment that because they say so the jury are going to forget what the witness said, especially when it was the very thing they wanted to find out? They watch the stenographer and they notice he does not even take the trouble to cross it out of the notebook. Occasionally a juryman becomes particularly interested and wants to question something. Usually he is too self-conscious to run the risk of being snubbed, but sometimes he is bolder and ventures a question. "Why," asks the juryman, "didn't the defendant give back the goods if they were not what she wanted?" Both lawyers are on their feet. There is a mute appeal to the court; both sides are afraid to object to the question for they think the juryman may have a prejudice if he were stopped. The judge usually comes to the rescue and tells the juryman that he is sorry, but that his question is manifestly improper in form. The evidence should be whether the defendant did a certain thing or did not do it. The reason why he did it is not in point. After two or three attempts of this kind the juryman subsides and sits patiently through the trial without any suggestion. He thinks that there is a hopelessly complicated game being played before him and he does not attempt to interfere. There may be some truth in the theory of the attorney who says: "Always look out for the juryman who asks your witness questions. He is against you. If he absolutely believed the witness he would let it pass without questioning." This reasoning may be used as an argument either way, for if the juryman believes the witness he may feel that he should like to have him tell more. Or if he does not accept him as truthful, he thinks it will not be worth while to ask him other questions. An inference may be drawn as to the juror's attitude for and against. An inexplicable thing to the jury is when the judge takes the case away from them and directs a verdict or dismissal of the complaint. That the jury should be compelled to listen to all that mass of testimony and then at the end not have a chance to decide is unreasonable. If the plaintiff did not have a case, why did the judge let them go on? He should have found it out earlier instead of wasting all that time. After the whole case is in, it may happen that both sides move for a direction of the verdict and then the jury have nothing to do. The judge says: "Gentlemen of the Jury, I direct you to find a verdict for so-and-so." Before they have a chance to say whether they will or will not, the clerk announces a verdict for so-and-so. This is very annoying and discouraging, especially when the jury were going to find a verdict directly contrary to the way the judge decided. Technically they have a right to refuse to find a verdict as the judge directs, but if they did, only a mis-trial would result. It is an illustration of the difference between the function of a judge and a jury. The jury pass on the facts, the judge on the law. When the judge dismisses the case, he is saying that the facts may be so and what happened may be truly stated, but even then it does not make any difference. The law is that those facts do not make out a case. Only when the facts make out a case do the jury have any function. Then it is for them to find out whether the facts are as the plaintiff claims them to be or as the defendant. The jury are usually puzzled and do not understand the distinction. In certain cases the judge determines both the facts and the law and decides the whole matter. In those cases, and in what is known as equity, there are no jury, but a judge may always ask for a jury if he wishes one to determine the facts. A jury is supposed to be advantageous to the defendant in a criminal action and to the plaintiff in a civil action. "One judge is better than twelve," says the advocate of the non-jury system. "Law is a technical thing and you can not put a technical case plainly enough so that twelve men could thoroughly understand it." A discussion of the jury system is not in place. The jurymen have already been summoned and are in court and until the structure of the law is changed they will remain. They are ready to try any case that may come before them. The judge feels a sense of relief at not having to pass upon the facts. The law being laid down, all that remains for him to do is to see that the facts are fairly and plainly presented to the jury, that both sides conduct the case in a reasonable manner and that the trial be as open-minded as possible. The anxious attitude of mind toward the jury is that of the parties who are to be judged, the lawyers and their clients. The jury do not become very excited over the wrongs of one side or the other. They certainly do not enjoy the trial or look upon it as an example of a good fight although under the present system of procedure that is what it is supposed to be. V THE STRENUOUS LAWYER Of equal importance in the cast are the lawyers. They play the parts that represent action. The judge and jury are the heavy characters. The clients who make their entrances and exits as they take or leave the witness chair are of minor importance. The lawyers occupy the center of the stage the greater part of the time. Their clients sit watching, the judge and jury keep silent and listen to them. In order to make a trial or a contest there must be two sides. There may be three or more lawyers, but usually they divide themselves into two groups and take sides. The attacking party,--the plaintiff, complainant, or prosecutor,--naturally the more aggressive, and the man who is defending himself. The latter's lawyer is the one who is wary and alert. Sometimes the attacking lawyer having gained a position sits down and defends it. During the trial there is a constant change of attack, the taking of a redoubt, charges and countercharges, trenches captured and forsaken again. The intellectual and legal battle is as bitter as any physical one. To the understanding observer and the participant it is momentous and intense. While the contest is waging there is no intermission. The fight is always hot, keen, bitter. Quietly as the lawyer may handle himself, underneath his calm exterior he is ready to fight, bite, scratch, shoot, kill, slash, but always he must do so under the rules of the game, never hitting below the belt. What the battle is about is the issue, the result is called the verdict, or the decision, and the formal statement of the court as to the result the judgment. The contest is so real it soon ceases to be a play. It is too much in earnest and whatever humorous quality it may possess never loses the underlying intensity of human conflict. One noted trial lawyer says that he always feels the loss of a case in the pit of his stomach, another that he can never begin a trial without mopping his forehead for fear that beads of perspiration might be apparent. However ordinary and accustomed court trials may become to the participants, there will always remain the deep underlying stress of human passions. As lawyers are watched, they may appear alternately as jumping up and sitting down like jacks-in-the-box or those weather figures, where if one goes in the other comes out. Their appearance differs in the different courts from the higher courts where the well-groomed eminent leader of the bar, with thin lips and white side whiskers debates in a frock coat before the appellate court, questions of international importance, or the anxious-eyed little attorney where in one of the lower courts with a showy diamond ring and a handkerchief sticking out of his pocket in the shape of an American flag, argues, while chewing gum, whether his client shall pay the fourteen dollars rent or not. There is never any peace between them. Occasionally there is a truce when they come together to agree on a certain state of facts, or conclusions of law, but essentially they are at war; otherwise they would not be in court. The only reason for their being there is an issue to be decided. Often so eager do they appear that physical violence seemed impending. It is as though they were on the point of breaking into fisticuffs. The judge says: "Gentlemen, gentlemen." They appear like two naughty schoolboys who have to be controlled by their master. First one is restrained and rebuked, then the other is held strictly to the rules of the game. Like schoolboys, although they may be fighting one another, they appear at times to be in league against the judge. As in a baseball game, both sides join against the umpire. There is a common class feeling between the lawyers leaguing them against the judge. This may be explained perhaps by a rather subtle psychology. The lawyers are primarily in court to please their clients. Every ruling of the judge against them on even minor points of evidence, any adverse decision is fatal to them from the point of view of retaining the client for the next litigation. They watch the judge with lynx-like eyes. Is he going to drive the client away from them? Should he reprimand them or speak severely, their client would think that they had angered the judge and so they had lost the case. Defeat in a case is so important that if a lawyer loses a case he probably loses his client. In one of the lower city courts on the East Side, a young attorney came in one morning with a scar across his cheek, a scratch on his nose, and sticking plaster on his chin. The judge had often seen him before. After the case was over he called him to the bench and said that he was sorry he had an accident, and asked him what had happened. "Oh, not much," said the lawyer, "last week I simply lost a case for a client." The complaint of the lawyer against the judge is always that he has forgotten that he was a lawyer once himself. He does not realize how important it is that the lawyer should make a good impression on his client. His feeling is, if the judge cuts him off when he is arguing, the client will think that he is talking foolishly. The judge overrules his objection. The client thinks the judge does not like him. The judge denies his motion to strike out, he evidently does not look on the lawyer favorably. The lawyer's chance of display is in talking. If he is not allowed to go on he feels the judge is unreasonable in not listening to him. The nice lines to be made by the judge between consideration for the feeling of the lawyers and insisting that justice be fully and speedily accomplished, are hard to draw. On the one hand there are the courts where no limit is put to the digressions of attorneys and where they may wander on and on, apparently merely to display their oratory to their clients, and other courts where the undoubtedly bad manners of the bench to the bar are unforgivable. Control of the trial is necessary because it is a struggle in a court on a defined area. It is an intellectual ordeal by battle, a capping of intellects. It is like a game of chess in which luck is eliminated, the board is free, the pieces are equal, the way in which they may move is fixed by the rules of the game of court procedure. The element of chance is made not by the court or the procedure, but by the fact that the pawns, the castles, and the knights are not of ivory, but are human and mutable. The lawyers are discontented with the courts, while the judges feel that the deficiencies are the fault of the lawyers. The lawyers, they say, do not coöperate with the judges in the administration of justice, and are too busy with their own game. Here enters that academic question of whether a lawyer's duty is first to the court and justice, or first to his client,--should he defend a man he knows to be guilty. The dispute is sophomoric. He is the advocate of his client first, foremost, and all the time. That is the reason for his existence. He is the agent for his client; his tongue, brain, and energy belong to his client. He is undoubtedly justified in whatever he does, if he keeps to the rules. Justice is best promoted by heeding the rules of justice to the utmost. It is to be remembered that the lawyer occupies an uncertain position. As an officer of the court he is sworn to promote justice; as a champion in the battle he is under the deep obligation of performing his utmost for his client. At times the conflict between his duties seems real. As an officer of the court he has the privilege of the floor. He can be heard and is admitted to the court. It is as though he had joined a club in which dueling or gaming is permitted. The obligation resting upon him is to act as a gentleman and obey the rules and not to cheat. If he keeps to the rules he is presumably a gentleman and can do what he pleases for his clients. If there is any complaint about the courts it is held to be the fault of the lawyers, if there are criticisms of the lawyers it is the fault of the courts. They are interdependent and indissoluble. If a club house is not suitable for its purposes, is old-fashioned, rickety, and dirty, it is the fault of the members. If the members do not behave the club house gets a bad reputation. Courts are institutions, and not persons; the lawyers are the individual stockholders. If by his actions in court or in the club he brings disgrace on himself as a lawyer or upon his club, there is very little to be done about it. The club membership may be more limited and select, but the building will not be improved except that it may be swept a little cleaner. The judge as the president of the club must see that the lawyers observe the rules, he can not rebuild the club house or materially change the rules. The only persons who can effect a change are the lawyers. As members, they are agents for their clients who are the public at large. Occasionally the public awakes to a realization of their power over both courts and lawyers, that they are their creatures; then happens a revolution in procedure and something is accomplished. The lawyer waits about the courthouse for his case to be reached. It may take days or even weeks before it is marked ready. He wastes his time. The witnesses have been subpoenaed. They have to be told to come again the next day. There is little money in it for the lawyer. Office practice pays better than court work and except for the eminent pleaders there is but small honor. During the trial the lawyer seems to be sparring. He takes the attitude of saying: "I want that point of law decided; it is such a nice point, it ought to be settled." As a matter of fact he only wants it settled in his own favor. It is not the abstract interest but the concrete fact in which he is interested. The lawyer is vigilant from the beginning of the trial to the end. After the case is marked ready he watches the jury, the other side, and the judge; any movement may be of importance; if it escapes his notice he may lose his whole case. It is not safe for him to go on the assumption that the other side is as honest as he is. If they should attempt to put in some evidence that is not proper, to offer a paper that is not duly authenticated, to try by some trick or device to take an unfair advantage, he must be ready to pounce upon the incident. If he is quick he may turn it to the advantage of his own side. The other lawyer among a bundle of letters offers one that is only a copy or is not signed. The lawyer notices it but keeps still and when at the proper time calls the attention of the judge and the jury to the fact, the plain implication is that the other side must have a very weak case if it needs bolstering up by such methods as this. The argument is that he let the paper go in without objection because he thought the matter trivial anyway, and he wanted the jury to see the underhand method of the other side. The indefinable quality of personal magnetism is of much vaunted importance. It is like that horrid word, charm; no one knows what it means and seems to have a supernatural quality. The trial lawyer does not need either charm or magnetism. They are both nonsense. Like actors or fighters if they are sufficiently trained in their parts or know how to use their weapons, the lawyers' personal magnetism over judge and jury will come of itself. The judge is a fairly hard-hearted person. The jury may be governed by sentiment but they are an example of the average man and neither are going to be caught by smile or mannerisms. Sound qualities will prevail. A fine-looking trial lawyer who thoroughly knew his business once had a hard case. His appearance and manner impressed the jury. They followed his every motion. The trial was long and tiresome. It was the days of those little iron puzzles to get two rings or anchors apart; occasionally he would take one out of his pocket and begin playing with it. The jury would follow him with their eyes to see whether he could do it. Whenever he thought the evidence for the other side was getting too interesting, out would come the little iron puzzle and the jury would pay more attention to its solution than to the witness on the stand. He won his case but that is no reason to recommend the playing of "Pigs in Clover" in the court-room. The reason he won the case was because he was the capable man and on the job. The lawyers' profession is not a creative one but the value in the social structure is cohesive. He brings together the investor and the manufacturer, he amalgamates capital and labor on a sound legal basis. He adjusts conditions to the laws and laws to the conditions. His is the most large-minded of the professions. He is theoretically the layer of the law. In every community the eminent lawyer is the eminent citizen. No one commands greater respect. But there is no doubt that the inefficient administration of justice is the fault, to a large extent, of the legal profession. The fine, kind face of the lawyer who, ripe in years and understanding, beams a genial smile is a living reproach to the detractors of his profession. Painstaking, scrupulous, broad-minded, and intelligent, with a twinkle of humor for the frailities of humanity, he looks on the pettiness of men with a wise tolerance. Beneath his ease of manner and cordiality of intercourse there lies a world of experience, of battles fought and won, of inherent force of character, of public honors received and gracefully borne. There are no limits to the admiration and love to which he is entitled. Beside the lawyer, and watching him with worried eyes, sits the client, who unless he is in the wrong really wants the lawyer to bring out the facts in the case rather than to have him exhibit his qualities as a fighter. VI THE WORRIED CLIENT Like the financial backer of a play, the client does not figure largely on the stage. If he does appear as an actor he may have a small speaking part, but he is not a star. He owns the show, and if it does not pay he loses, or if he wins he gets a proportion of the profits. Consequently he hires the best talent he can afford. The star performer is the lawyer, but as the producer the client has not only the choice in picking the theme, but the play is about him and his troubles. Great drama consists in a conflict of emotions. The emotions of the two opposing clients make a court drama. The acting and the staging is the art of the lawyer. The philology and derivation of the word client is significant. It does not mean the principal, but a follower. It is derived from the Latin word _cluere_ and the Greek _+klyein+_, meaning to hear; one who listens, a follower. An ordinary man has a horror of the entanglement of the law. A hard-headed man of business says he would rather pay a claim of $250 or less, although he had never seen the claimant, and the suit was utterly unfounded, than go to court. He would rather lose the same amount than bring a suit involving the trouble and expense of hiring a lawyer, requiring witnesses to waste their time, and wasting his own in waiting for a trial, which might possibly result in a judgment against him on a perfectly just debt, either through the miscarriage of justice, or the chance of not collecting the judgment. The typical feeling is that of the stockbroker who said: "Only blackmailing suits go to court, for if sensible men have a dispute they know it is easier and cheaper to settle it outside." The client is in a darkened room. He only partially sees what is going on. If the whole case is thrown out of court on a question of law or a technicality he feels more than resentful against the judge; he is revengeful; he will spend every cent he has in the world appealing and showing that judge how wrong he is. In the first place, it is a disgrace. "Why," he says, "the judge just kicked us out of court. We didn't have a chance; the judge must have been friends with the other side. Do you call that justice? I'd like to get that judge outside and talk to him man to man. No one can get a square deal in court." The feeling of the client toward the courts and the lawyer is one of distrust, mingled with respect. He will say: "I would rather take a friend's word as a gentleman that he would do something than to have it put in the form of a forty-page contract drawn by the best lawyer in the country. I could rely on the word of a gentleman, but if any question on that contract came into court, some clever lawyer would find a loophole to get out of it." Yet the fact is that the world does require legal documents. An interesting speculation would be to consider what proportion of the world's business affairs is conducted on a basis which could be provable or have the authority of enforcement in a court of law. The proportion of the business transacted in a so-called legal manner is insignificantly small. The numberless transactions of the retail stores in a great city; such cases of proving that a pair of gloves were sold, delivered, and not paid for are extremely difficult to prove. The expense and trouble involved of subpoenaing the different departments and of breaking up the routine of the store, would prevent the stores becoming clients. The enormous transactions on the New York Stock Exchange, where a hundred million dollars' worth of business is reputed to be done in one day, is entirely on the basis of personal honesty. So far as the court goes, should one party to a stock sale not be willing to complete, there would be little possibility of enforcing it. Therefore the Stock Exchange makes its own rules and has its own method of settling disputes. The world at large is not a client in the court. The man who becomes a client in the sense of litigant is an exception. The courts would seem to be unrelated to the demands of actual business affairs. Times have changed since the Victorian days when a solicitor was the client's deferential servant, the steward and custodian of the landed gentleman's legal affairs. Then the lawyer had a profession which he carried in his head. Law reports contained a few thousand, not a million decisions, and there were no title insurance companies to make a business of determining the ownership of real estate. Yet in those days the legal adviser was not a very exalted person, ranking beneath the soldier and standing hat in hand before the gentleman of property, to whom he owed his living. The citizen who wished to learn whether he or his landlord should clear away the snow on the sidewalk, went gravely to a lawyer's office and paid a fee for the information. It is obvious that lawyers do not make their living through small fees for giving advice. As a matter of fact, those whose work is more remunerative than a street-car conductor's or a carpenter's, make their living through business and not in small litigation. To-day lawyers complain that their profession is slipping from them. But they have gained the prestige of business. "I am a business man, not a lawyer," says the elderly leader at the bar, and scarcely knows whether he is, on the whole, gratified or regretful. Their abilities are used in directing the conduct of business from a legal standpoint and protecting it from those who are ready to prey upon it. Business needs protection from other business, from accident cases, and libel cases. These frequently get into the courts. Citizens need protection from business and seek it in the aggressive form of suits for damages. Big business looks on the courts as instruments of blackmail, and the small citizen feels that the courts are inadequate to protect his rights. It makes a deal of difference which side they are on. But in any case the present-day successful lawyer is primarily a business man. A corporation is a legal creation; a lawyer is its mother and nurse. The stockholders having the curious relation of being partners, one not liable for its debts--if its legal affairs are properly handled. And so the company retains a lawyer at a yearly salary to give them advice and that legal protection. Prominent lawyers are taken in as partners of the big banking firms. The large industrial companies have the highest priced lawyers exclusively attending to their affairs. Accident Insurance Companies have enormous legal plants as efficiently organized as factories for handling damage suits and against whom is opposed the inexperienced lawyer of the individual citizen. Furthermore, the corporation, though composed, in reality, of individuals, is less personal than any one of its members. It is a client without keen emotions, without too distracting hopes, fears, or suspicions. Law is an exacting science, arduous and complex. The lawyer, to do his best, should work quietly, disturbed as little as possible by the human interests at stake. If then the lawyer is correct in preferring the soulless corporate client, it must be that the ordinary individual is either too poor, or too human. Naturally, the corporations are not only the most satisfactory, but the most desirable clients. The client, although he is the originator of the drama is in reality only a listener. The client in court has so little to say and the lawyers have so much, that it seems unexplainable. The reason is that the lawyers are the fighters, the champions, the knights in the tournament. A legal battle is only enacted because the lawyers are expert fighters. The client having hired them, has little to do but watch. When men first went to law they had no champions; they fought and took what they could, but as civilization advanced men became too busy to engage in legal or actual battles and there grew up a specialized class of fighting men. The lawyers are the hired mercenaries of the commercial structure; and the clients are the ordinary business men. True, some of the lawyers are free lancers, but the majority have the sentiments and standards of their class. There is a natural class antagonism between the client and the lawyer. The client is afraid and mistrusts the lawyer; and the lawyer feels that he must act for an unintelligent client who is ignorant and inexpert. So long as the courts continue to exist on their present plan the difference between client and lawyer will be marked. An example of a return to formalism and a reactionary development has been the change in what is known as the Poor Man's Court of New York City. It was originally planned as a court where the client or man unlearned in the law could come in to sue in a simple way. They were simple justice courts. The limit for which he could sue was $100, then $250, then $500, now $1000. Formerly the judges need not be lawyers. A trial was an informal affair. The judge would line up both the parties at the rail. One side would tell their story, the other side would interrupt and finally get a chance to tell theirs. The judge would figuratively pat them on the head, decide the case, and tell them to go home and be good. The New York Legislature recently passed a law making the court a court of record, and making all the provisions of the Code of Civil Procedure applicable. The code with its half million words is therefore a part of the procedure. So that the client now before he goes into court without a lawyer ought to familiarize himself with the code. Formerly these courts may not have been dignified. Pandemonium would break loose and the litigants begin screaming at and abusing each other. Often the judge was obliged to apply a somewhat arbitrary and paternal rule. Now the courts are more dignified and formal, but the clients are disappearing from view. They are in fact afraid to come into court without a lawyer. While the dignity and efficiency of the court have been increased, it has almost ceased to be a court for the poor man; indeed the procedure is so technical that, although possible, it is rather unusual for a man to come without a lawyer. Of course, the attorneys who make their living by appearing in small suits where the fee is often a contingent part of the small amount recovered, or a fixed charge of $5 or less for trying a case, do not present examples of the best legal ability. The point of view of the client is that he is loath to spend the money to hire a lawyer for defense. One litigant stated in court, when asked if he had not admitted the debt: "Well," he said, "I just went around to see the plaintiff to find out if I could not save a few dollars instead of hiring a lawyer." It is an open question which brand is the best for the client, the rough and ready justice or the formal and orderly kind. While the jury are being examined and during the opening of the counsel, the client sits quietly, but a trifle self-consciously, at the counsels' table. The talk is about him and frequent references are made to him and what he has been doing. He tries to look as though he did not care and was accustomed to the surroundings, and when the taking of testimony and the wrangles over objections and motions begin, he falls quietly into the background. If it is a criminal action he is not on the stand during the People's case. When his side is presented his lawyer does the best he can to keep him from the stand, whether he be innocent or guilty. The well-known expression is that the defendant hangs himself by taking the stand. In civil trials the client may be a corporation or the owner of the injured automobile or wagon, but not a witness to the accident. He sits silent by his lawyer if he is wise, realizing that his lawyer can fight better without being annoyed. If he is nervous, he keeps plucking at his sleeve and whispering advice. It is difficult for him to restrain himself. There have been months of preparation. The drama is being produced; to him it is vital. He knows more about the case than the lawyer. He wants to advise, suggest, and instruct. Why doesn't the lawyer ask the witness that question about what he told Smith or what he told his wife? The client might be surprised if he knew what the lawyer was thinking of him. If asked, the lawyer would moisten his lips, draw a long breath, and then pause, not for lack of thoughts however. The best client in court for the lawyer is the silent client. One of the greatest calamities from the lawyer's point of view is when the client is on the witness stand and begins to get confidential with the judge and to tell him exactly how he feels about the whole matter. "Why," said a lawyer, "I had a perfect case and then the judge asked a question and spoiled the whole thing. I think it was outrageous, the judge had no right to interfere." The attorney's feeling toward his client is contained in the wish that he wasn't there. The legal aspect of the case, the real point at issue, is probably something very different to what the client has in mind. The lawyer has an uneasy feeling that, in the client's eyes, he will not do the case justice. "How outrageous," thinks the defendant, "that I should be sued when I've been over-generous for years. And the jury ought to know exactly what these people are who said they'd call off the suit if I'd pay them a hundred dollars." The lawyer is aware of these views, because he has been told them more than once; he also knows that he cannot try the case in that way. The counteraction of emotions and feelings between the lawyer and the client, the judge and the jury, the undercurrents that are constantly moving from one to another, make up the drama of the court. The characters are laid, the theme is selected, the actors are chosen, and it remains for the play to be prepared. VII PROGRAMS AND PLEADINGS Pleadings are the programs of the performance. They are printed beforehand and everybody gets a copy. Preparation consists in the rehearsal and the carpentry of setting the scene. Any lawyer knows how important the pleadings are, but nobody else does. The judge does not pay any more attention to them than he has to. Juries hardly ever see them; if they did, they could not understand them. The witnesses never hear of them, the clients have sworn they have read them and have sworn that they are true. Yet not one client in a thousand could give an explanation of them other than, "My lawyer told me to sign it, so I did." Whenever anyone gets anxious to understand a pleading, there are so many volumes about the subject and so many bookcases of decisions they would furnish a house. All this may appear flippant, but the subject is so absurd, abstruse, and abnormal to a man of business, that it is almost impossible to make it understandable. A partial list of authorities on the subject sounds like a chapter from _Alice in Wonderland_: Pepper on Pleading; Perry on Pleading; Pollock on Pleading; Pound on Pleading; Puterbaugh on Pleading; Phillips on Pleading; Pomeroy on Pleading. The number of court decisions in which this branch of the proceeding has been reverently and gravely dealt with reads like a metaphysical discussion in the dark ages. The names formerly used were superb. Complaint, demurrer, confession and avoidance, traverse, replication, dilatory pleas, peremptory pleas, rejoinder, rebutter, and sur-rebutter. On the other hand the clear, concise technical statement of a case is not a matter to be laughed at; no clear thinking is possible without it. No plain understanding of what the drama is about, nor what the issues of the battle are, can be grasped. Good lawyers are good thinkers and usually plain talkers. The present-day revolt against the confused pleadings may go to the opposite extreme and abolish them all, leaving the case to be presented as formless and loose. The vexed question of the proper form of a pleading may delay justice until it is determined on appeal from the City Court to the Supreme Court, then to the Appellate Division, then to the Court of Appeals. In the meanwhile the clients may die, the money in suit may be lost, while the audience is waiting merely for the programs to be printed. In Perry on _Common Law Pleading_, reprinted in 1897, chapter thirteen is devoted to rules which tend to prevent obscurity and confusion in pleading. RULE I. Pleadings must not be insensible or repugnant. RULE II. Pleadings must not be ambiguous or doubtful. RULE III. Pleadings must not be argumentative. RULE IV. Pleadings must not be hypothetical or in the alternative. RULE V. Pleadings must not be by way of recital, but must be positive. RULE VI. Things are to be pleaded according to their legal effect. RULE VII. Pleadings should observe the known forms of expression as contained in approved precedents. RULE VIII. Pleadings should have their proper formal commencements and conclusions. RULE IX. A pleading which is bad in part is bad altogether. These are pleasant rules for a layman to understand, and any time he has a day off or a holiday he should study them. "Shocking," cries the old-fashioned reactionary lawyer, "What! Do away with pleadings, you might as well do away with the whole case. Pleadings are like the rails for a train. No one on the train sees them, but take away the rails and the train would not go very far. Pleadings are the groundwork of the trial." He grows more and more indignant. "The trouble with the modern courts is that they do not know what they are about. If this business of loosening the forms of pleadings had not taken place, lawyers would be better prepared when they came into court and there would not be this floundering about. The good old common law pleadings were the thing. It was a great mistake when they were abandoned. Then everyone knew where they were. If there was a mistake in the pleading then the whole case was thrown out of court. That was as it should be. Men had to be good and careful lawyers in those days. The slipshod methods of the present time are abominable." "You seem to be a little hard," says the modern lawyer. "Justice ought not to depend on forms." "You can never have justice without formalizing and shaping the dispute," says the lawyer. "Quite true," says the modern, "but there has been too much attention paid to the form of justice. Pleadings are the mere mechanics like printing the program or laying the rail." However, this is all a question that does not come up in the court-room at a trial. Once or twice some reference is made to the pleadings. Perhaps there is some such dispute as this. The defendant attempts to swear that he "paid for the goods then and there." The other lawyer jumps up and says, "I object, your Honor. In his answer he does not plead payment. He only pleads a general denial." The judge puts on his spectacles. The lawyers gather, business stops while everyone looks at the pleadings. Or again the plaintiff tries to show that when he was thrown from the wagon he bruised his right elbow. The counsel objects there is nothing about injuries to his right elbow in the Bill of Particulars, therefore he can not prove it. The Bill of Particulars says that he hurt his hand, scratched the forearm, and injured the right shoulder, but says nothing about the elbow. Grave consultation by the learned lawyers and the judge ensues. The defendant's lawyer is right, there is nothing in the pleadings about the elbow. The case can not go on until that important question is settled. There is argument on both sides. The client looks anxious. The jury sit and wonder what that phrase of "the delay of the law" may mean. Finally a bright idea occurs to the lawyer. "I move to amend, your Honor, so as to include the elbow." The other side looks shocked and disgusted. "What, move to amend in such a casual way as that. The pleading is a serious thing. It has been sworn to, you may not amend a sworn statement in that offhand way." The judge says that he will allow the amendment but if the other side is surprised he will grant an adjournment of the trial to another day. The other side says, "Pardon me a moment until I consult with my client." The judge smiles. The lawyer goes over to his client and the client says, "For goodness' sake don't adjourn. I've broken up my business for a week to come here now; what's all this fuss about pleadings; let's get on with the case." The lawyer returns to the bar. "We have decided to proceed." "Amendment allowed," says the judge. The witness now tells about hurting his elbow. The preparation of a case goes on behind the scenes and before the drama begins. The attempts to rehearse are piece-meal. First one witness is seen, then another, their stories are told, their statements are taken, and they are drilled in their parts. They are told as to what facts they must testify. In one large company that has a quantity of damage suits, there is said to be a school for witnesses where there are dress rehearsals and they are taught how to behave in court. The greatest farce that occurs in the court-room is the part of preparation that is involved in getting a case on for trial. There being no limit to the time to examine witnesses, to hear arguments, to listen to objections, it is said to be impossible to tell how long a case is going to take. Consequently the calendar having been called, the cases following are answered ready, by office-boys with no expectation of their being immediately reached. The grave and reverend judge looks over his desk and calls the case of Bowring _vs._ Bowring. "Ready for the plaintiff," answers a rosy-cheeked boy. "Ready for the defendant," answers another. They look rather young to be trying a case. It is marked ready and the office-boys sit about the court and telephone to the lawyers when they think there is a chance of being nearly reached. This often takes several days. In the meanwhile the cases ahead of the Bowring case have been dragging out their slow and weary performance on the court stage. Matters of fact that should have taken five minutes to bring out by the present usual laborious system of proof, have taken two hours. Argument of counsel on abstruse questions of law have worn and confused the jury and the clients, who have become exhausted and impatient. The clients and witnesses may have been sitting, trying to understand and becoming more and more mystified. The dealings of open-handed Justice ought to be plain, prompt, and understandable; instead to the spectator she seems a mysterious jade with no understanding of everyday life. She keeps them waiting there without reason. If the case is marked ready it ought to be ready. The business man feels that Justice is extremely tardy in keeping her appointments. His natural reverence for abstract Justice prevents him formulating these thoughts, but he continues to wonder. Not understanding the cause he becomes dissatisfied and his experience in court leaves a profound contempt for the system of jurisprudence. He thinks that if any man conducted his own business on the method and plans on which the courts are being run he would soon be bankrupt. "Why," he says, "does not the court get in an efficiency expert on this calendar evil and have it arranged on a business basis?" During the days the case has been on the calendar the lawyer has had to hold himself in readiness to try the case. The managing clerk has been sending out for his witnesses. They have been served with subpoenas and paid their fees to come to court on the day the case was first marked ready. They arrive and are told to come again the next day. They also have a respect for the court and are glad to come to do their duty and tell the truth. The truth is mighty and will prevail; but in court she can only speak through witnesses. Unless the witness be treated with consideration it would seem that she will not speak very willingly. In place of having them return and return again, some system soon will be devised of giving them timely notice when the case is to be reached. Exhausting the patience of the men who are the props and mainstays of truth does not seem reasonable, and after a few visits to court they are not anxious to come again. If possible they will escape the process server. A man who has witnessed an accident to a woman by a street car, in spite of his humanitarian instincts will run around the corner for fear of being called as a witness. The man who hears at night the call of "Police! Police!" in the street, jumps out of bed and begins to put on his clothes, but thinks better of it for the same reason. If a man is in a taxicab that is run into by an express wagon, and the resulting suit is brought by the taxicab company for $110 damages, he may have to attend court five separate days as a witness and the case may not be called. He has to leave the State to avoid being annoyed by the subpoena server, who dogs him at his club and at his home. The witnesses have lost their time and their patience. Each lawyer knows this and a petty game of playing for delays and adjournments sometimes goes on. Suppose there is a good claim which nevertheless the defendant denies, knowing how lengthy and wearisome is the game of reaching a case, he often succeeds for years in preventing its collection. The game is simply to tire out the opponents, clients, and witnesses. A clever and unscrupulous lawyer can throw so many obstacles in the way of a plaintiff that, unless he have a strongly developed streak of obstinacy, he will give up in disgust or be glad to compromise. Unless both sides are anxious to be reached it is practically certain a case will be adjourned two or three times. A sworn affidavit is presented with the doctor's certificate that the client or witness is sick, or the sworn statement that a witness can not be found, or that the lawyer is engaged in the trial of another case. The excuse may be valid and the reasons may be sound, but the adjournment of the day for trial occurs again and again. This is one of the causes for the complaint as to the law's delay. Naturally calendars have to be made and called. Cases have to be tried and others have to be reached in order, but at least there should be sufficient and intelligent planning of the order. It seems rather a weak answer to say that no one can tell how much time will be occupied in the trial of a case. If any systematic or scientific method of regulating the calendar were devised, one of the evils would be avoided. The very call of the calendar in some courts occupies to an unreasonable extent the time of the judge who might as readily be engaged in the real work of the court. The aggregate value of the time of the judge, the lawyers, the witnesses, and the jurymen who have all been sitting about waiting, for the call of the calendar is, for one hour's delay a large sum. The waste might be saved by an intelligent bureau for the administration of court business which would have absolute control over all calendar practice. That the judge should delay a whole court-room full of people by being late in opening court should not only be a matter of apology, but is reprehensible to the extent of being multiplied by the number of people he has kept waiting. On the other hand, the usual course of proceeding being apparently with the object of dragging out the business of the court, makes the tardiness of the judge seem only an incident. Fortunately there are few attorneys who make appearances in court merely for the sake of adding another item on their bill to the client, and the real delay in reaching a case is due more to the confusion of administrative methods; until some more practical system is devised it will continue. Then witnesses and clients will not be loath to go to court. The weary work is finished, all the tiresome facts have been gathered, and the rehearsals have been had. The play is written, the parts are cast. The disappointments and delays have been forgotten, the months of preparation have passed. At last the bell for the performance rings and the case is finally to be tried. VIII PICKING THE JURY The clerk calls the case again for trial, not this time to inquire whether both sides are ready but to announce that it is about to begin. The lawyers, their assistants on both sides and their clients move forward to within the rail. There is a certain amount of commotion as they arrange their papers, their portfolios, law books, hats, and coats, and take their places at the counsellors' table opposite the jury-box. In the dignified courts in this country this rather uncomfortable disposition of overcoats and hats is arranged in an adjacent room. The opposing parties in the battle to be enacted are now facing each other. Matters become at once more serious and formal. What was once avoidable is now inevitable. The stage has still in a measure to be set. Twelve important actors are to be selected. The jury have not yet been chosen. The jury for the sake of comparison take the part of a Greek Chorus, a silent one it is true, until the final word is to be said. They nevertheless are as important and essential a part of the drama as the Chorus, without which in the background no tragedy or comedy was complete. No curtain divides the theater and the arrangement of the stage goes on before the eyes of the spectators. The choice of the jury constitutes an interesting part of the performance. In this preliminary play the lawyers having important parts, their manner, bearing, tones of voice, their courtesy or discourtesy, repose or nervousness, are watched and unconsciously noted by the jurors. As the jury-box gradually fills, even the slightest idiosyncracy may have some effect on the outcome of the case. Trial lawyers are careful of their actions even before the case is called to trial. It may be that among the spectators who have been sitting beside the lawyers in the back of the room, waiting for the case to be called, are those who may afterwards be called as jurors. Any affectation of manner or pomposity is quickly detected. Experienced lawyers immediately they are observed by their tribunal, fall into the parts they are to play during the trial. One lawyer may be jovial and radiate a cheerful confidence. Another has a superior, detached, and academic air which promises a sarcastic cross-examination. Yet another takes on a blustering, brow-beating, intimidating manner, a kind of overmastering virility. Each kind has its own particular advantages, according to the nature of the parts to be played. The most efficient is the manner of the lawyer who is direct, business-like, and consistent with his own personality. As on the modern stage, there is a return to simplicity of acting. Naturalness and a constant regard for actuality is the only safe rule. Simplicity and naturalness, even if studiously affected, usually prove convincing. The aim is toward consistency and a non-elaborate manner. Above all the lawyer remembers that the jury admire the good fighter, and it is with a certain obvious subtlety that one successful advocate in New York lets his assistant carry his coat, books, and papers, but he himself always carries his hat--a derby, by the way, for a high hat would be over important. The great man knows that the jurors are aware of the importance of the occasion and that their eyes will follow his every movement. As he walks up to the counsel table and deposits his derby it may well become a gage of battle. The clerk at the side of the judge's desk begins turning a large hollow wooden wheel; within it are cards on each of which is written the name of a juror who has been served by the sheriff to attend on the panel for the trial term of the court. The number summoned naturally is larger than the twelve needed for any one case. Often those who have to attend at a term of court sit about with nothing to do until they are actually drawn on a case, although they receive their fees for attendance. There is the story of the ignorant workman who was serving his first time on a panel. "Why," he said, "I was sitting around all day worryin' about my lost working day. If I'd known I was getting two dollars for doing nothing I might have been enjoying myself." The clerk puts his hand into the wooden wheel after the names have been well mixed and draws out one card after another, calling the names aloud until twelve jurors have been called to the box. To the entirely new spectator there is a certain mystification about this drawing of the jury from the wooden drum with the handle for turning. To the initiated it may seem rather humorous, like the shuffling of the cards of justice, the drawing from a hat, or the turning of a roulette wheel. It is, however, significant of one of the great principles of Anglo-Saxon law, and that is a trial by a court of average men selected from among the ordinary citizens and drawn on the particular case by chance. As each juror's name is called he comes forward and his appearance is not lost by counsel. He takes his seat in the box, the juror being first called is known as Juror No. 1, and by this chance, if he remain in the box, he ordinarily becomes the foreman of the jury. In cases of special juries, as of the Grand Jury, the foreman is chosen by selection. The successive jurors are respectively numbered according to their seats beginning from right to left facing them. Here it may be noted that some lawyers in addressing questions to the individual jurors are careful to remember to call them by name, realizing that no one likes to be known by a number. Instead of referring to him as Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr. Schmittberger. The twelve men being in the box the counsellors begin to examine them as to their qualifications. On a small board bound lengthwise by rubber bands, or stuck in grooves are the cards drawn from the wheel and arranged according to the number of the seats, and containing the names, addresses, and occupations of the gentlemen seated in the box. There are two means of removing a juryman. One is by challenge for cause, _i.e._, that he is shown to be unfit or prejudiced, and the other is what is known as a peremptory challenge which is practically the same as saying one side or the other does not like the man's looks. There are connotations about the word challenge which are essentially dramatic. It implies a battle, a duel, a tournament. It is difficult to ascertain exactly what principles govern the successful examination and selection of a jury. In Massachusetts and in certain important cases in New York, the whole panel of jurors summoned for the term of court have been investigated by detectives in order that the lawyer might have information about who was to be rejected or accepted as a juror to decide the case. The propriety of doing this may be questioned and the ordinary case could not bear such an expense. Nevertheless there is a possibly sound reason for obtaining such information. Given a man's condition in life, his habits, his occupation, his church, his associations, his politics, and given on the other hand a certain state of facts, it is nearly ascertainable how he is going to decide those facts. If a man has always been a rent payer and has probably had continued trouble with his landlord about repairs and a feeling of resentment at the regular recurrence of rent day, is it not natural that he is going to be somewhat prejudiced against a landlord in a dispute between landlord and tenant? or on the other hand can a man who is one of the unfortunate owners of real estate, and who having paid taxes, interest, insurance, repairs for removal of tenement house violations, and with frequent vacancies, really be absolutely just? If a juryman is a Jew, a Catholic, or a Baptist, there will probably be an innate sympathy for his co-religionist. The law does not recognize this unless the juryman is honest enough to confess a prejudice. The soundness of the Anglo-Saxon jury system is based on the theory that there is not one juryman but that there are twelve and that among twelve there will be an average between the landlord and the rent payer, between the Baptist and the Catholic. The counsel ordinarily selects the jury with observation and common sense as his sole guide. The customary question asked jurymen, whether, given such and such a state of facts, "Do you think you could render a fair and impartial verdict?" is manifestly absurd to the juryman. Every man believes himself to be perfectly honest and just. It takes a strong character to say, "I couldn't be fair." As a matter of fact such a man ought to be kept on the jury rather than let go. As a juryman once said to a lawyer after the case: "Why did you excuse me when I said I knew the other lawyer? You wasted your challenge; he wouldn't have let me stay. I knew him too well." The extent to which the examination of the fitness of jurors may go is in the discretion of the court. The two extremes are represented by the methods in the English courts where the judge exercises close supervision over every question in the selection of the jury in what would be considered in America an arbitrary and unjustifiable manner, and the extreme liberality at criminal trials in this country. The difference in time is often between that of a few minutes and a few weeks. Naturally the challenge for cause may or may not be allowed by the judge--the form being, "Your Honor, I ask you to excuse Mr. Smith,"--because the lawyers are more careful in attempting them; for if they are not allowed the juror challenged may be small-minded enough to retain a grudge against the counsel. The sure challenges are the peremptory ones without any cause stated or reason given. The number of peremptory challenges for each side is usually six. As soon as a juror is challenged he steps out of the box and the clerk draws a new name from the wheel. It is very much as if a player were dealt a hand of twelve cards, and under the rules of the game each side can discard and draw six times from the pack six single cards to improve his holding. The hand, however, is not only his but his opponent's, who may likewise discard and draw six cards when the first player is satisfied. When the second player is through the first may again discard any of the new cards the second has substituted, provided, of course, that six drawings have not been exhausted. This game of chance is always played with an eye to creating a favorable impression on the jury and may be politely finessed to the extreme. "Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs, or his attorney, Mr. Jenkins, or his assistant, Mr.--er--the young gentleman on his left?" is the usual form, delivered with the utmost urbanity. It means very little, but perhaps helps the lawyer to identify an antagonistic juryman and to obtain their answers, which are almost uniformly in the negative. It is obviously desirable that the juryman, as a judge, should not be a friend of the opposite side. From the manner of the man in the box, as he answers, may possibly be inferred his general disposition, and all further questions have this purpose in view. So the attorney for the plaintiff proceeds throughout the twelve before him, and he may say at any time, "Your Honor, I excuse juror number so and so." Usually he examines the whole twelve before "excusing" any of them, and when doing so many lawyers turn from the box to the judge as they say, "I will excuse numbers four, five, and eleven." Frequently those remaining do not realize why their brethren have been dismissed. A slight bewilderment may pass across the faces of all, as a man here and there, under the beckoning finger of the clerk, rises to give up his seat. Opinion differs as to the extent to which challenges should be exercised. Some trial lawyers are chary in using them, being anxious to appear frank, trusting and willing to accept the judgment of any decent citizen. Others are meticulously insistent and exhaust all their challenges. The first attitude is the one of saying: "I have such a fine case, so honest and just, that it is impossible that any fair-minded man should decade against me. Therefore, I shall not insist on these minor points of interest or prejudice. You are all open-minded. I will leave it to anyone." The second attitude was explained by one lawyer who always put his hand to his chin, looked deeply and inquiringly at the jury, and said in an important voice: "I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12." When privately asked on what theory he proceeded in his earnest selection which seemed to imply so wonderful an insight, confessed to no theory at all except the plainly human one that he believed in using up all his challenges simply because it made the other jurors, who remained in the box, feel better and more selected. But the main purpose of selection is to secure a fair and intelligent jury. Not infrequently one side or the other really wishes to get rid of the best men and willing to take the risk that this will not be apparent. In a real estate case, counsel for the plaintiff not having a strong case succeeded in eliminating every man who had ever owned or who had ever had the slightest experience in houses or property. It was a bold confession that no one who understood the case would decide for him. In railway accident cases, the plaintiff, who asks damages against the company, will often excuse so far as he can, every juror who appears well-to-do or a man of property. A prominent New York lawyer, when a young man, had defended a case brought against a corporation. The plaintiff and his attorneys were Jews, and the jury-box when first filled was seven-twelfths Hebraic. Counsel for the plaintiff immediately excused the five Gentiles and when the corporation's lawyer stood up, not a man in the jury-box was of his own race. He accepted them. The trial went on, and it appeared that the plaintiff's claim was very weak indeed. At last counsel for the defendant had to sum up and he concluded in this way: "Gentlemen of the Jury: The plaintiff hopes to win this case not on the law, nor on his evidence, nor on any consideration of justice. He hopes to succeed because of the simple fact that he is a Jew, his lawyer is a Jew, and every one of you men are Jews." With an expression of faith in the sense of justice inherent in the Jewish race and of confidence in the verdict, the attorney for the defendant sat down. The jury decided in his favor. Such boldness, when successful, is often rewarded, but it is of course inherently dangerous. Skilful counsel will succeed in ingratiating themselves from the very beginning, but they will endeavor to do so only with the jury as a whole. Nothing is more unfortunate than to bestow attention upon a particular juryman: that is to flirt with a juror. If he has not yet been sworn in with the rest and the opponent sees it, he will certainly get rid of him. If he remained, he would very probably be regarded with suspicion by his chosen associates. Should the counsel think that one man in the box is favorably disposed toward him, he wisely leaves him alone and hoping that the other side will not notice it, devotes himself the more earnestly to the others. The jury is at last selected. The challenges have been exhausted. Both lawyers look as though they were pleased. The judge is informed that the jury is satisfactory, which is, of course, an euphemistic term. No jury is ever entirely satisfactory to both sides, but it is a polite way of saying it is the best they can get under the circumstances. The judge stops trying to balance his check book and looks up at the jury. The attendant motions them to their feet. They hold up their hands. The judge also rises. "Gentlemen," he says, "Do you each and all of you solemnly swear to well and truly try the case of John Smith against Thomas Gregory and a just verdict render according to the evidence? So help you God." They do not answer, but they sit down. IX OPENING THE CASE The jury is chosen, sworn, and sitting in the jury-box. The judge begins unfolding the papers of the case so that he may read the pleadings. The actual trial of issues is about to begin. The court attendant has taken the jurymen's hats and coats, another attendant has shown spectators to their seats and politely as possible suppressed the young law clerk who does not see why he could not go up to the judge and ask him what became of the case of Jones against Allen that was on the calendar last Thursday and should have been on to-day, or ask if "His Honor decided that motion in the case of Meyer against Cohen." The doors of the court-room are closed. The attendants go about looking for whisperers and saying, "Cease all conversation." The lady client is interrupted in telling her lawyer that she thinks the judge has a kind face, but that she does not like the looks of the man in uniform standing next to him, or vice versa. Gradually the court-room quiets and a spirit of expectancy prevails. But the actual taking of evidence and the hearing of testimony is not yet. Now comes what is known as the opening. So in the tournament, the armored knights entered with a blast of trumpets, their names and titles having been called, and it was customary for them to ride once or twice around the lists to let the judges see their armor, their weapons, their mounts, their trappings and accoutrements, or they might even try a tilt or two at one another. The introductory speech of counsel is somewhat in the nature of a parade or a preliminary skirmish. It may also be compared to the prologue spoken before the beginning of a drama. The speech with the vivid brevity, so common in legal terminology, is called the opening. The object is to show to the judge and jury what the drama is about. The secondary object is to arouse interest. Immediately after the opening comes the evidence, which is usually bald, fragmentary, and disconnected. It might be impossible for the jury to understand the relation of one bit of testimony to another. Take a simple case such as a suit for the failure to pay a bill at a dry-goods store. One witness testifies to the sale, another to the packing of the goods, another to the delivery; a receipt is introduced in evidence. Each one would not tell a connected story. The opening outlines the facts and makes the evidence understandable. It also has the function of an appetizer. This may seem a trifle unnecessary. But let us take an illustration. A whole case may depend upon a deed. If the paper itself were put in and read to the jury without explanation they would be bored. One witness is to tell this part of the story, another that, and the missing link of the chain may be supplied by the deed. The jury are not to be mystified before their interest is aroused. Are not the lives, property, or reputations of particular men at stake? The ordinary man and even more the average juryman has far too strong a sense of responsibility to be bored if truly he can understand what it is all about. The function of the opening is to tell him. As the counsel begins opening every juryman leans forward and watches him intently. They feel their responsibility as officers of justice and there have been few complaints of their falling asleep during the trial. The jurymen have come to know the names of the opposing lawyers and the faces of the clients, if they have been pointed out during the examination of the jurors, but nothing more. Are the jury to hear a story of bitter resentment or of passion and crime, or a calm demand for the payment of a debt? The opening will show. Did the plaintiff during years of effort build up a business and take the defendant in as a partner only to be defrauded by him? Plaintiff's attorney will indicate the years of effort briefly, but impressively, before sketching the manner in which the defendant stole from him by fraud the fruits of his labor. When the plaintiff then testifies that in 1890 he opened a small store in Fourteenth Street, moved in 1896 to Twenty-third Street and thence in 1916 to an up-town street off the Avenue, the dates will sink into the jurors' minds and they will portray for themselves the twenty-six years of painstaking effort. No eloquence then could rival the effect of the witness's slow, bare recital of his progress. Yet without counsel's prologue what could be more dull than the naming of street numbers and dates? The matter of the testimony may be interesting, but unless the witness has a rare gift of expression and a sense of the picturesque, the way in which it will be given may be dull and plain. But at this point the little keen-faced lawyer for the other side jumps up and interrupts: "I object, your Honor; what difference does it make where he lived in 1890, whether on Fifth Avenue or Mulberry Bend? What we want to know is what he is suing for now." And the court will probably rule with him and keep the plaintiff down to more relevant facts. Some of the important answers may be yes or no. Counsel in such a case supplies the color and gives an appearance of life to what is actually alive enough, but which alone would seem dry. Even if so famous a character of fiction as "Becky Sharp" came into court and only looked her part with what intense interest would we not hang on her testimony, though it consisted of no more than "Yes, I did"; "I never saw him before." We should be fascinated by this bald statement because Thackeray had interested us so enormously in the lady. The air would be electrified by the force of her personality. Without a previous introduction, however, we might be so lacking in discernment as to find her, in appearance and voice, no more unusual than the average witness who goes on the stand. Thackeray not only created Becky Sharp; he also created our interest in her. Similarly the lawyer may create an interest in his witnesses, some of whom may be personally every bit as extraordinary as any character in a novel. If a witness be actually commonplace, there is all the more need for making him vividly human; if he be so colorless that nothing could be made of him personally, he may acquire interest through the class to which he belongs, for classes have a personable color more deep than the almost colorless individual. To induce the jury to visualize the story and the characters, the highest literary gift may be brought into play. The lawyer is limited as to time and the description he may employ. He has, however, his voice and expression: an actor's tools. But again the rule of simplicity and naturalness should apply. The opening speech is a prologue and it does not argue. Counsel will not be permitted to argue his case in his opening, for his opponent will object and the Court will often say, warningly, "Counselor, you are summing up." This limitation, however, is in reality an advantage, not merely because it applies to both sides, but for the reason that no lawyer with any sense of dramatic values would anticipate his _dénouement_. Argument is apt to be chilling unless the decision sought for can be discerned, however dimly, without it. And how are the jury to frame their decision before the evidence has been presented? The jury should be interested in Miss Becky Sharp and prepared to understand her testimony, but, before they have heard her story from witnesses who know, they will not be favorably impressed by urgings that she was wronged or badly treated. There is usually leniency in regard to the length of the opening, because it is well recognized that few witnesses can tell a connected story, or tell it well. From the old French story of the lawyer who began _avant le création du monde_, and the judge who asked him to pass on _áu deluge_, down to the usual modern method of nagging the lawyer into stating only the skeleton of the action, there are various degrees of eloquence, varying naturally according to the importance of the case. A wonderful thing the prologue may be in its restraint and picturesque vividness, and, not least, in its clarity. Confused business dealings may be described so that important sums, figures, and dates will be remembered and recognized when they appear again in the evidence. Counsel, for the time, occupies the center of the stage; his course is in his hands to make or mar. He reaches the end of his speech, bows, and the first witness is called. Before the testimony begins the judge looks at the defendant's counsel and asks him whether he wishes to state his defense. There is a different practice in this regard in different courts. Some insist that the defendant ought to tell at once what his side is about, others that the defendant should wait until the plaintiff is through all his evidence and has rested; then at the beginning of the defendant's case the defendant's lawyer opens and makes his introduction. The difference between these two manners of proceeding is so essential that it may be explained. On the one hand the lawyer feels that he should not be compelled to give away what he is going to do, how he proposes to meet the attack, whether he will lie in ambush and snipe the plaintiff as he comes on or intrench behind a rampart and meet him with the full force of his battery of evidence. He may be planning to make a sudden sally after the plaintiff has shot his arrows and exhausted all his ammunition. The lawyer feels if he tells his plan of campaign he loses the advantage of generalship. Suppose a simple case: The plaintiff is suing on a long account for a bill of goods which will take a long time to prove. The defendant has a receipt in full showing payment. On the theory that the defendant need not disclose his evidence in the opening, he may sit still with the receipt up his sleeve, let the plaintiff open and call his witness, the evidence may drag itself along with the usual motions and objections, and after the plaintiff rests the defendant opens to the jury. "Gentlemen," he says, "this is a simple case. The plaintiff claims he sold the goods and the defendant did not pay for them. I propose to show you that the plaintiff was not telling the truth. I made him prove to you that he sold every item in the bill because I wanted to show you how untruthful he is. My client, the defendant, not only paid for the goods but I can show the receipt in full signed by the plaintiff." To the layman this is absurd. The defendant should have shown the receipt in the first place and all the waste time of the trial would have been saved. "No," says the technical lawyer, "if I had disclosed my evidence before, the plaintiff would have framed his evidence to meet the situation." The modern view is otherwise. In France, for instance, no paper can be offered in evidence on a trial unless it has been shown to the attorney for the other side beforehand and everyone has had a chance to examine it. Indeed, this exhibition of original documents is conducted in so open and honest a fashion that it is customary to send all the original papers to the other side without even taking a receipt or retaining a copy and in the whole history of the French bar the loss of such a paper has never been known. It seems more practical and sensible that the lawyers for the defendant should be required to state the nature and detail the facts of his defense. It is the difference between the old idea of trial and the new. The first was an imitation battle, the new idea is not that it is so much a struggle as an investigation of the facts. If the plaintiff wants to meet the receipt he can make a counter-attack or explanation in the rebuttal and explain how he came to sign the receipt in full. The judge and the jury feel the necessary element of the trial is to arrive at the facts and that the planning and methods of charge and counter-charge are not so significant. The old conception of the trial as a battle is disappearing. The opening by the defendant at the beginning directly after the plaintiff has finished his opening and before a witness is called, makes the trial simpler to the minds of the jurymen who are to decide the facts. The pleadings are supposed to define and state the issues but as they are usually technical they have become not sufficiently pliable. The defendant by his answer denies merely the facts stated in the plaintiff's complaint in the paragraphs numbered six, eight, and ten. The defendant on his opening should be compelled to make plain to the minds of the jury what he intends to show. He should take the position of a plain business man who says, These foolish people imagine they have a claim against me. They have nothing of the kind. The plaintiff says that he understood the contract to be so and so and that acting on that assumption both parties did certain things and know the defendant with evil intent and wrongfully forgetting the duty he owes to keep his word refuses to live up to his agreement, therefore, "Gentlemen, we have been compelled to come to court and bring this action and we shall show you gentlemen facts from which you must find a verdict in our favor." The defendant then arises and says: "Gentlemen, we are going to show a letter that contradicts all this." Oratory has little place in the opening of the defendant. The judge has been, during the two openings, attempting to keep the two counsels down to the facts which he thinks may be proved and from wandering too far afield. As quickly as they are both through he says, "Call your first witness," and with trepidation the witness takes the stand. X THE CONFUSED WITNESS The whole question as to witnesses is whether they shall be allowed to tell what they want or what the lawyers want. As they are both in the court-room they must abide by the rules of the court. That is the trouble: the rules are against the witness. When the witness goes on the stand for the first time the court attendant asks her to raise her right hand. She does so and tries to sit down in the witness chair so that she may feel a little more at ease. "Stand up," says the officer. The judge looks at her inquisitorially over his spectacles. She tries to smile and regains her feet. "Raise your hand," says the judge. The delightful and sanitary custom of kissing the Bible has been done away with. Even the habit of resting the hand on the Book is disappearing and in many courts a Bible is hard to find. The lady, in the confusion of appearing on a stage for the first time and standing on a raised platform before an audience, holds up her left hand. The court attendant jumps at her. The judge has seen the same performance many times before and hardly notices the _contretemps_. By this time she is confused and ruffled and after hearing something murmured about the truth, the whole truth, and nothing but the truth, she sinks into the chair and begins in a very uncomfortable frame of mind the ordeal of giving testimony. What she wants to say, what she ought to say, what she was told to say is all gone. The jury and the judge understand and feel sympathetic but the rules of the court do not permit them to be polite, and to ask her to take a more comfortable chair, to have some tea, whether the children have had any after-effects of the measles, or to take off her hat and stay a while. She knows she has to stay and that she is not going to enjoy it. She is the important witness who was riding in the car at the time it crashed into the grocery wagon. She is honest, of average intelligence, and wants to tell the truth. She is asked: "At the time of the accident, where were you?" She says that she was in the car going up-town to see her married daughter whose children were sick with the measles and she was in a hurry. The lawyer moves to strike out the latter part of the answer. The fact that she was going to see her daughter, that the children had the measles, and that she was in a hurry are not relevant and have nothing to do with the case. The only relevant fact is that she was in the up-town car. She was sitting four seats from the front and thinking the car was going very slowly and the children would be asleep before she got there. It is immaterial that she was thinking about her grandchildren or the measles, or that she was thinking about the car going slowly. The real question is how fast the car was going. The reason for the rule of evidence is that the court always wants to know not what she thought, but what she actually saw. She will not be allowed to tell what she thought or what she told her daughter after the accident. The daughter can not be called to the stand to testify what her mother told her, when she reached her house, about what had happened. Newspaper accounts of the accident may not be allowed in evidence, nor what the policemen reported on the accident, because he arrived afterward. Anglo-Saxon law holds the proof down to what was actually perceived by the five senses. The court makes up its own mind from these perceptions and the facts themselves. It does not want to hear what someone thinks, or what the witness believes or concludes, but only what he perceived. There is much to be said for and against this rule on both sides. A broader method to the lawyer seems shockingly loose and slipshod. The rules of evidence to the bystander seem an inhuman farce. The first allows an atmosphere to be created from which the whole truth may be reached. Would not an ordinary person, if he wanted to find out about the accident, read the newspapers, find out the police reports, ask what a witness thought, what that witness told someone else about the accident afterward? Is she not now giving someone an account of the accident? Psychologists agree that no one can accurately narrate their perceptions and what happens before their eyes. Moreover, the tests performed on school and college graduates in regard to their powers of observation have shown the fallibility of human perception. The failure to perceive, plus the failure to remember, plus inadequacy of language, makes all testimony unsatisfactory. People of little education are still less able to either see or explain. The only safe way is to obtain a composite photograph of the witness's mind and of the thoughts that arise from the original perception, a continuation of impressions. Judges or juries never determine cases by first deciding which witness is telling the truth or at least the exact truth. They take it for granted that both sides are lying somewhat; that no matter how well they mean and how hard they try, all witnesses are incapable of telling the exact truth. The unfortunate part of the law is that this is not officially recognized. There is a hypocrisy in not recognizing the inadequacy of human eyes and ears to grasp even simple concrete facts. A timidity exists that will not allow the admission of human imperfection. The proof of this is that when three witnesses go on the stand and describe a thing as having happened in the same way, immediately there is a strong doubt in the mind of the jury about the whole case. Suppose the question of the time a crime was committed arises and the defense tries to prove an alibi by showing the defendant was in a saloon at that time. There may have been three witnesses who really saw him at the same time. One witness comes on the stand and says 3:10, the next witness says he saw him at 3:10, and third says the same. The jury conclude that the story has been made up. Yet suppose the first witness says he saw him sometime after lunch, and the second that he remembers seeing the defendant in the saloon sometime that day, but he is not sure whether it was in the morning or the afternoon, and the third witness says that he saw him during the week, but that he does not remember the day, whether a Thursday or a Friday--it is probable that the defendant will have a much better chance of succeeding with his alibi. The lady in the car could not remember the time of the day, except that it was near the children's bed time. She had heard the crash and seen the wagon turn on to the car tracks. With a great many objections she finally gets to the point of the crash. "Did you see the car hit the wagon?" "I object to that as leading," says the other lawyer. "It is leading and suggestive." Technically he may be correct, but if the judge has common sense he overrules the objection. The proper question would be: "What happened next?" The witness, however, might remember the paper bag of oranges she was carrying to her grandchildren and instead of telling about the accident begin to describe how she dropped them on the floor. Leading questions are necessary in nearly every case. The reason that they are objectionable and ruled out is, that the judge and the jury ought to hear not the lawyer's narrative of the facts, but what the witness actually remembers. A witness on the stand appears at his worst. If any one from real life were suddenly thrust unprepared and unlearned in theatrical art upon a stage the incongruity of the situation would be appalling. Yet the witness is thrown into new and strange surroundings. It is a portion of the reality of life shown vividly against a conventionalized background. The judge and jury in a vague manner understand this. The lawyer producing the witness feels this and elicits the testimony in a soothing manner. The objects of cross-examination are as follows. The first is to prove that the story of the witness is not true, and the other is to bring out something new. The opposing counsel often forgets the purpose of his cross-examination and by attempting to bully and frighten the witness, usually either by sarcasm or a doubting manner, accomplishes very little. Not one cross-examination out of five hundred amounts to anything. The judge has heard many and he has little hope of their being of much interest. The jury make so much allowance for the witness being frightened on the stand and for the fact that she is in the hands of a clever lawyer, that they are not much impressed even if she contradicts herself or is proved mistaken. At best it is only a mistake, not a deliberate lie. The lawyer thinks he owes a moral obligation to his client and to himself to cross-examine. He is compelled to go on. There is a musty tradition of the law that a trial without cross-examination is not a proper trial. It is a legal fetish and one of the things that is done. The judge expects it, the jury expect it, the client expects it and the public. The client pays his money and he ought not to be disappointed. If it were omitted altogether, the judge and jury might not feel the loss so bitterly. Perhaps they might prefer it and the question for the lawyer is whether it is better to satisfy the client or the jury. In this quandary the lawyer may forget that the main point is to win the battle. When the case is lost the client does not care at all how brilliantly the lawyer looked, acted, or fought. If the lawyer reasons he will say: "If the object of my cross-examination is to show that the witness is not telling the truth, have I much chance of getting him to confess the fact?" The witness knows something about perjury. He is afraid and he has heard about those pitfalls of cross-examination. Does the lawyer remember his own hopeful son and how only yesterday he could not get him to admit stealing the cake even with the prospect of immediately impending punishment? Only that little rim of chocolate about the ears was the proof. Even the deaf little child, who is not as intelligent as the witness, will not admit that he was untruthful. But still he goes on cross-examining. If the witness is finally shown a paper which he or she signed when the investigator of the railroad came to see her, and in which she said she was sitting on the sixth seat, there is not such a great deal to be proud of. "Ha, Ha," thinks the lawyer "at last," "didn't you just now say you were sitting on the fourth seat?" "I don't remember," says the witness. "What," thunders the lawyer, "you don't remember; then your memory is poor. I will read you what you said on your direct examination," and he does. "Now which was it, the sixth or the fourth seat." The other object of cross-examination is to elicit new facts. This is a dangerous risk for the lawyer, and unless he is sure of his ground, he had better not take it. He will do better to let his own side tell the facts than to bring them out through an unwilling witness who is on his guard and thinking the opposing lawyer is trying to trap him. The mistake that most lawyers make in cross-examination is to ask the witness to repeat what he said in his direct testimony. Telling the same story over again merely accents the facts in the minds of the jury. The lawyer asks: "You say that you saw the driver whip up his horses when the car was a block away." The lawyer may doubt the truth of the statement but the mere repetition of the words affects the memory of the jury. Unless he has a distinct object in going over the testimony, either to show the direct contrary strongly, or the fact that the witness has learned the testimony by rote and that the repetition is in exactly the same words, the lawyer would do better to desist. Strange as it may seem the rules of evidence are actually based upon common sense. The ordinary experience of mankind gave rise to the rules of evidence, but the difficulty is that the further experience of civilization is giving rise to new rules which are not consistent with the old. Nevertheless the present rules when reasonably applied are fairly good. The question really is whether there should be any at all. Accepting the fact that there should be rules they are based on two principles; the first is that only something which has to do with a case can be proved and second that it can be proved only in a safe and reasonable way. It may seem impossible to the lawyer and equally to the laymen to state the rules of evidence in simple language. But the principles of common sense will govern in the end, as they have in the past, notwithstanding they have been hidden under a mass of verbiage, ancient forms, and obsolete customs. The theory is that justice wants the highest and best it can obtain, the court insists on the two principal rules; that evidence must be the very best that can be obtained and must be brought out in the safest, clearest, and most authentic manner. Take, for instance, the rule that conclusions of the witness are not allowed. If the court considered as evidence that the testimony "the defendant brought the goods and they were delivered," and the defendant came on the stand and said, "I did not buy the goods and they were not delivered," the court would have before it merely two contrary beliefs or conclusions. It would be a case of "Katy did, Katy didn't." The rule of evidence is plain that makes it necessary for the plaintiff to show where he saw the defendant, what was done, and what was said or written by the two parties. If the question is as to the delivery, it is not enough for the plaintiff to say "I delivered the goods." The court must have proof of the history of the goods. The driver of the wagon must be called who can testify where he drove, what package he carried, and what was done with it when he reached the house. The whole subject of expert witnesses is not so complicated after all. They are merely persons of exceptional experience who are allowed to testify as to something of which they know nothing. They may have never seen nor heard the facts in dispute but because they have had so much experience on similar facts they are allowed to say what they think of facts produced by eye witnesses before the court. As conclusions and opinions may be various, there is at times a great variety in experts, and because the very name of experts implies technicality, there is a feeling in the minds of the jury and the public, that the testimony of experts will befog by a mass of non-understandable terms. The doctor who testified in a case in which the plaintiff suffered a sore back and had seventy-five dollars damages from the jury is an example. He said: "The plaintiff was suffering from traumatic sacro-illiac disease, traumatic sinovitis of the knee and wrist and from traumatic myositis of the muscles of the back." In reality the testimony of expert witnesses is very good evidence. If it is given in plain and understandable English and the jury think the expert a clean-cut, sensible man, it is just what the jury want to learn. An expert's method of reasoning about the facts in evidence is the same as that employed by the jury in the jury-room. It is merely an opinion; for on the opinion of the jury, based on the evidence depends their verdict. While the witnesses are being examined, called to the stand, sworn, being excused, and being cross-examined, there occur numberless incidents of the trial known as the objections, exceptions, and motions. XI THOSE TECHNICAL OBJECTIONS These are the stage tricks and little incidents that give variety to the performance. No drama would be complete without a few diversions. So far as the drama itself goes, they are of no great importance except to give pungency and interest to the action. The lawyer asks an apparently good question. "I object," says the other lawyer, "on the ground that it is incompetent, irrelevant, and immaterial." The judge has to rule. He may not exactly have heard the question. The stenographer reads it again. The other lawyer leans forward in a frenzy of fear lest the question be ruled out. He begins to argue. "The question is perfectly proper; the witness ought to be permitted to answer it." "No," says the other lawyer, "it is improper in form, calls for a conclusion, and should not be allowed." The judge looks puzzled. "Read that again," he says. The question is, "What kind of a cow was it you saw in the plaintiff's garden?" "I still object," says the lawyer. "The witness has not been shown to be an expert. If my learned friend is going to attempt to qualify him as an expert, I desire an opportunity to cross-examine him concerning his experience in cows." "Not at all," answers the lawyer. "The question is entirely proper and I stand on my legal rights." The judge hesitates; if he does not rule correctly the lawyer will take an exception and the Appellate Court may not like it. So he says, turning to the witness, "You may answer, but I will reserve the question and decide it later on a motion to strike out." "I except," says the lawyer. The jury look relieved. The witness straightens up, the opposing lawyer sits back in disgusted contempt at such a loose method of procedure. "Well," says the witness, "it was a red cow." This may go on for some time. "I move to strike the answer out," says the lawyer; and the argument begins all over again. Throughout the trial the client and the jury are waiting for these objections and exceptions. The nature of an exception is a notice served on the judge that his rulings are wrong. The theory is that if he wants to change them he had better do so before the case goes to appeal. It is a covert threat to the judge. There is a principle in some courts that no ruling that is not excepted to can be considered on appeal; consequently a lawyer is careful to preserve his rights by exceptions. A young lawyer once had this principle so firmly fixed in his mind that when he went to court he began taking exceptions to everything, even rulings in his favor. He would make an objection; the judge would sustain it. "I except," said the lawyer. He would make a motion; the judge would grant it. "I except," said the young lawyer. The other side would make an objection; the judge would rule against them and in favor of the lawyer, "I except," said the lawyer. Finally the situation grew so strained that the judge called the young man to the bench and spoke to him confidentially. His explanation was: "This is my first case and the head of my firm told me to be sure and take exceptions to all rulings." Some lawyers are so in the habit of excepting, it sounds as though they were hiccoughing. "Overruled"; "I except"; "Allowed"; "I except"; "Denied"; "I except"; "Granted"; "I except." It becomes a custom as constant as the refrain in a comic opera. Theoretically it may have a sound basis under the law, but so little practical value has it that it seems ludicrous. The lawyers and the judges consider it a matter of course. If the judge after all the argument finally decides to let the testimony as to the red cow stand, he will not be inclined to change his mind because the lawyer interjects that threatening exception. The sound of the word is spiteful and seems to express the resentment of the lawyer at the ruling of the judge. No example could be found in the thousand volumes of law reports where the judge changes his mind on account of an exception. The object in this particular direction is vain. With regard to appeal; the Appellate Court that attempts to decide a case on the exceptions taken at the trial would have a difficult time. They would have to disentangle the mesh of evidence and find out whether that important piece of testimony on page 204 was excepted to or not, then whether there was a proper ruling; refer to the stenographer's minutes and look at the important exception on page 59 and again on page 106. Unless the question decided was excepted to, the Appellate Court can not decide it. It is hard to imagine that any court could be so rigorous and narrow-minded that they could hang justice on such little pegs of exceptions, which the stenographer in the hurry of the moment may have forgotten to insert. In the criminal courts there are no exceptions on the part of the people, because there are no appeals on behalf of the State. The defendant continues to repeat "I respectfully except." "I must insist on my exception." Think of a man being jailed for seventeen years because his case was not reversed on account of the failure to except. The court could not believe Justice to be so blind-folded that she can not understand the evidence as a whole. Exceptions are the tacks and pin pricks of a trial. They are of so little value in the main structure of the drama that if they are forgotten by either side, the court should provide them with a bushel basketful which could be distributed by the handful wherever the lawyers thought they would be useful or pleasant. Objections are of three main kinds: irrelevant, immaterial, and incompetent. They are like the magic words that open or unlock the doors of evidence and let it in or keep it out. They have three distinct meanings which lawyers understand. A thing may be immaterial, but not incompetent, or incompetent and not immaterial, or irrelevant and not immaterial, or irrelevant and not incompetent, or incompetent and not irrelevant, or one or both or not at all. Any student of law can fully explain the difference, but the distinction is immaterial and irrelevant, and if the reader is in doubt let him ask any lawyer friend to tell him in plain words, without insulting his common sense, what the distinction between immaterial and irrelevant is. The confusion of one young man found expression finally in the terms "irreverent, impertinent, and--and--and--no--matter." The lawyer, when he objects, usually attempts a few other suggestions which may be considered by the judge, such as "the question is leading and suggestive; grossly improper; calling for a conclusion; objected to as argumentative or because of its ambiguity." Whatever the trouble with objections may be, it is neither the fault of the lawyer, the judge, nor the witness. When certain evidence is not allowed by law it is proper that it be objected to. Unreasonable and often comical as objections sound, the basis of their existence in law is that the court wants the best possible proof. Instead of a copy of a letter the judge and the jury ought to see the original. Instead of the copy of a will the paper actually signed by the testator is wanted. Suppose a question arises as to the payment of a bill. The defendant says that he went into the store and paid it. The best proof is to be given by someone who saw him pay it. A witness to whom he came afterward and said that he had been down to the store and had paid the bill is not so accurate a witness as the man who was in the store and saw the money paid over. It is to keep out this poorer proof that objections are made. If the objection is good, the judge says "Objection sustained," or if he thinks the evidence the best he allows it and says "Objection overruled," then the witness may proceed and answer the question. Unless the lawyer objecting states the ground or reasons for his objection, the objection is not supposed to be valid for the other side ought to be apprised of the reason so that he may supply the proper proof, that is why the objection is named as irrelevant, incompetent, and immaterial, so as to cover all possible grounds. The reasons given for the objections: incompetent, irrelevant, and immaterial might, so far as the average man is concerned, read "incontepent," "irrevelant," and "immature." The words when repeated together seem like that old legal term "incorporeal hereditaments." They are imposing and add tone to the trial. The solemnity of repetition is always a valuable asset. The real value of the word irrelevant is shown by repeating irrelevant, "irrevelant," irrelevant, "irrevelant." In a short time one sounds as valuable as the other. When he makes the objection the lawyer rises and when he is through sits down. This gives the appearance of constantly jumping up but is only a question of etiquette, like taking off the hat or making a bow. Some people like the formality but there is a question how much is due to the dignity of a court and how much form and manners must be sacrificed to efficiency of business. The judge who said that he did not hear the constant objections of the lawyer because he made his objections sitting down was not so much an adherent of good form as a protestor against the absurdity of professional objections. The mooted question is the same and goes back to the one on evidence. Shall everything be allowed in and a photographic picture of numerous details be given to the court? If that is the correct idea, a general knowledge and atmosphere may be derived from all the surrounding circumstances and then there would be no objections. If the strict interpretation of the law be followed limiting evidence to only what is seen and heard, objections are proper and sensible. The modern tendency is to do away with all restrictions of the past. There has been too great severity in interpreting the law of proof and the pendulum is bound to swing far in the opposite direction. A medium may not easily be reached, and the only test is the common sense of the average. On the question of time and whether the abolishing objections and letting in all evidence would not be shorter, there is much to be said. It might take less time for the witness to recount the death-bed scene of his wife's sister's brother-in-law's aunt, than for the court to hear and pass upon all the objections and arguments as to the admission of the testimony on the red cow. As the jury listen to the objections and exceptions they become more and more impatient. The restraining influence of the surroundings, the fact that they are impaneled in a box and that they are a part of, the drama keeps them silent. They cannot break out in revolt at the badgering of the witness. They can say nothing about the absurd objections that are interrupting the proceedings or the spiteful little exceptions that are being thrown in, but can only quietly store up an increasing mistrust of the whole method. When the lawyer objects so strenuously the jury thinks he must have something to conceal. Yet when the objections are made they have a certain effect which is not at first realized. A question is asked that is to the juryman perfectly sensible, but which is absolutely inadmissable under the rules of evidence. For example, the lawyer asks, "What did you tell your wife about the accident when you got home?" Any reasonable man knows that what he tells his wife is very important and bears on the question of his veracity. The other lawyer very properly objects. The jury thinks there must be something in it. The lawyer asks again, "Didn't you tell your wife the horses were going very fast?" The other lawyer is on his feet. "I object," he says, "and I must ask your Honor to instruct the counsel not to ask questions that are manifestly improper." The Court rules in favor of the objecting lawyer. He admonishes the lawyer and instructs the jury to disregard the question. Yet what is the effect? The jury believes unless the lawyer thought the answer would be most unfavorable to his side he would not have objected to it so strenuously. The impression remains on the minds of the jury that there was a good deal to that question of what he told his wife. It is for this reason that when the lawyer keeps on asking objectionable questions, the judge will sometimes declare a mistrial or allow one side to withdraw a juror, which is only a polite way of saying that the present jury in the particular case can not be fair. Here arises one of the prettiest dilemmas of the law on the trial of a case. Suppose the case has been going on all day or for several days. The plaintiff is very anxious to have it finished. He has been at great expense and trouble to get his witness and the lawyers' time is valued at so much per trial day. On the other hand the defendant at the worst can only have a judgment against him, which may as well happen at another time. He is willing to have the case declared a mistrial and start anew; he knows it will take a long time for the trial to come up again. It has been a dull grilling proceeding, but he does not care so long as there is a chance of postponing the judgment against him. It is on the whole better and easier to put it off. Now if the judge declares a mistrial, on the motion of the plaintiff, that is his own look out. He believes that he can not have a fair trial, that he can not proceed. But suppose the defendant by his lawyer makes the trial unfair. His lawyer keeps asking those improper questions which imply so much to the minds of the jury. The judge may speak severely to the lawyer and caution him not to keep on putting suggestive questions. That is all that he can do. It would be plainly unfair to order the withdrawal of a juror. The trial according to the opinion of the judge may be unfair. The plaintiff's counsel is afraid to ask for a mistrial, first on account of the trouble and expense to his client, and second, if it be denied, the jury will believe he thinks them unfair and does not want them to try the case. The judge is in a curious position with regard to objectionable questions and testimony, he ought not to penalize the plaintiff by punishing the defendant. The loosening of the laws of evidence might do away with quandaries such as these. XII THE MOVEMENTS IN COURT Motions imply movement and action especially in a drama, but in a court motions are the reverse and occupy the place of dramatic pauses which delay the real movement of the play. They are of great interest to the lawyers, of some interest to the judge, because he has at once to pass upon them, of but little interest to the client, who does not understand them, and of no interest whatsoever to the jury, except when they result in the disposal of a trial. Before the case begins the defendant makes a motion. When the plaintiff's lawyer has finished his opening, the other side makes a motion to dismiss the case. When he ends his evidence, the other lawyer moves to dismiss. When both sides are through, each moves. When the jury bring in the verdict either side may move, or both when neither is satisfied. All through the trial there are quantities of little motions. Motions to strike out, motions to instruct, motions to make the witness answer a question, motions to make the other lawyer behave. Except for pointing the finger or raising the voice in talking, they are not movements, they are only verbal, the action comes in the play of emotions of the parties in court. Motions are merely saying what either side wants; the formal asking for something. The first important motion is on the pleadings themselves or when the plaintiff has opened. If the judge does not believe that the plaintiff has stated a case in law, he dismisses it on a motion of the defendant and the judgment is "without prejudice." The trouble is that a judgment of this kind does not finally dispose of the dispute. The plaintiff may bring the action over again. He may appeal from the decision or judgment and the appellate court may rule that the trial judge was wrong and then after an interval the case goes to a new trial just the same. By this time the plaintiff or his lawyer may believe he has no case and desists, but the course depends upon whether the parties have not died, grown tired, gone into the hands of a receiver, or moved to Borneo. The jury know little as to this state of affairs and are not interested in the preliminary motions. The clients do not understand but think the lawyers are good talkers. The lawyers are interested in the point of law and believe so strongly in their case that if an adverse ruling comes they are shocked and surprised. The judge knows that although he grant the motion to dismiss, he will probably allow an amendment. He is not greatly concerned unless he foresees a possibility of settling the dispute definitely and going on to the next case. He is anxious to try the present action and get down to the meat of the matter but really if they are going to insist on all technicalities he feels a little impatient. He knows that even if the defendant is right and the pleadings are defective because the stenographer forgot to insert a date, it can still be put in. Recent legislation has found it necessary to say that the courts should allow amendments of pleadings where "Substantial Justice" will be accomplished thereby. It is a commentary on the system of the courts that the people through its legislatures should find it necessary to pass a law that judges should amend paper pleadings in furtherance of justice. If justice and right depend upon pieces of paper to such an extent, the dry formalism of the courts is a matter of regret. The next important motion is when the plaintiff has put in his evidence and has rested. "The plaintiff rests," the lawyer says. The judge and the jury say to themselves, "Well it is half over." The defendant's lawyer rises and says, "I move to dismiss on the ground that the plaintiff has not made out a cause of action. He has not shown that the cow was owned by the defendant, or he has not shown that the driver of the plaintiff was free from contributory negligence, or he has not made out any kind of case at all." This is an anxious moment for the young attorney. Did he forget something? What was there that he did not remember? Will the case be dismissed because he forgot to tie a shoe lace or put in a pin? If he is more experienced in court work he will not be so worried. The law is that the plaintiff must be given every chance at this stage of the proceeding. Only when both sides are through does the law begin to weigh the evidence. At the close of the plaintiff's case everything is in his favor. Any particle of testimony is sufficient on a particular point. The theory of the law is that both sides must be heard. If the motion to dismiss is made on the ground that something has been left out, the court will usually give an opportunity to prove to whom the red cow belonged. This motion like many other relics of a by-gone age, is a matter of custom and tradition. It is usually made on the theory that the judge may think there is no case and that the plaintiff can not make out a case. If he so decides, the case is finished, the jury is discharged, and the client has his feelings hurt by being thrown out of court. From a decision of this kind there is also a right of appeal which may result in a reversal. Then the new jury is impanelled, the witnesses are recalled, and the proceedings are gone over once more. If the decision or judgment is affirmed, the case does not usually come up again; the higher court has said the plaintiff has no case on the evidence, and unless new evidence is produced he can never recover. In certain accident cases the appellate courts have stated they would not give their reasons for dismissing the complaint after the evidence is all in because, they say, if they did so they were afraid the plaintiff would supply the missing links by manufactured evidence on the next trial and not quite honestly. This again is a commentary on procedure. Just at this point is where the law of the case comes in so insistently. Before the case comes to court the lawyer is supposed to know whether his client has a right of action. Every state of facts or a breach of those rights does not give rise to an action that can be maintained in a court of law. If you ask a man to dinner and he accepts, but does not come, you can not recover your damages for providing the dinner; or if you fall down your own well, you can not sue the man who built it. The lawyer is supposed to have carefully considered what elements of fact make an action. If the facts themselves do not give him a right of recovery his case is dismissed; or if he has a cause of action but has not proven the facts, it is also dismissed. But as was said above, if the train of facts or those in the pleading is imperfect, the modern spirit is to allow them to be made perfect. The only theory of law that is contrary to this spirit is what is known as the theory that every man is entitled to his day in court and the day being had it is unfair to bring the other side in again on account of some defect or forgetfulness on the part of the other. The reconciliation is that there should be no surprises on a trial, the modern tendency is to bring the case away from the idea of an ordeal by battle. The little advantages that are gained by sorties and surprises and which are usually taken advantage of by motion, are after all not of great moment. An anomalous situation shows the absurdity of these motions, for when the plaintiff rests, unless the defendant makes a motion to dismiss the plaintiff's case, he is supposed to admit that the plaintiff has made a good _prima facie_ case, and if he does not move he is forever after, on appeal or otherwise, prevented from claiming that the plaintiff did not make out a good case. The result is that at the close of the plaintiff's case the motion is usually made as a matter of form to preserve the defendant's right. Usually this motion is denied if there is a possibility of making a case, but suppose the judge either through ignorance or to be obliging should say, "Well, the plaintiff has made out a good case, but if you ask it, the blood be upon your own shoulders, and I will dismiss the case." The defendant does not want it dismissed but he has asked for it and he has got what he asked for. The result is an anomalous situation. The case will undoubtedly be reversed and he will be mulcted in costs for being compelled to ask, because of the formalism of the court procedure, for what he did not want. At the end of the defendant's case, when both sides have rested, the defendant again moves to dismiss. Here again it is a formal motion, which he may not altogether mean, but which the lawyer often makes as a matter of form. If the judge really believes there is not enough evidence to let the case go to the jury, he ought to say so without the necessity of a motion. Suppose there is not, he dismisses the case "on the merits" and the trial is over. But suppose there is and the judge does not know his business and the fine point of law is not entirely clear to his Honor, and he makes a mistake and the case is dismissed. The result is that although he has granted the motion of the defendant to dismiss and given the defendant what he wanted, he has in reality penalized him, for the appellate court will reverse his decision and the defendant have to pay all costs and stand the expense of a new trial. The judge is in a quandary, which he may get out of in two ways. One is to let the weak case of the plaintiff go to the jury with the hope that they will see what a poor showing the plaintiff has made and find a verdict for the defendant, in which event he will be safe. But if the jury should make a mistake and find for the plaintiff, then the judge has the intention of setting that verdict aside, nullifying all the work of the jury, the witnesses, the clients, and the lawyers, and ordering a new trial. This is rather a weak-minded proceeding and shows the necessity of having a man in the referee's chair who knows how to decide. The second alternative for the judge is to reserve decision on the motion and to let the jury go into the jury-room and worry about the verdict for an hour or two, while the judge has the hidden intention of perhaps deciding that they need not spend any time at all about the matter. The principle on which the judge passes on this motion to dismiss is, that after all the case is in and all proof had, that on the proof and evidence there is not enough on the part of the plaintiff from which any reasonable man could ever find a verdict for him. The motion differs from the one at the close of the plaintiff's case in that the latter is based on there being no proof at all, while the one after the case is entirely in is based on the theory that there is no possibility of a verdict. This sounds again like a metaphysical discussion, but is illustrative of the futility of formal motions, so that actually the decision depends upon the good plain common sense of the judge. The tendency is that if the case has gone to the length of a full trial and there is any question of fact involved, that the jury should determine the question of fact and exercise their functions. It must be a poor weak case of the plaintiff and evidently unsound, in which the judge or the appellate court interferes. Throughout the trial the little motions that occur bear the same relation to the main issue as do the objections and exceptions. "I tried to stop the car," says the motorman. Up jumps the other lawyer. "I move to strike out as a conclusion." The witnesses have testified to slightly different facts than what were stated in the pleadings. "I move to amend the pleadings to conform to the proof," says the lawyer. "I move for an adjournment on the ground of surprise," says the other. Of course the statement of the conductor is a conclusion of fact. But if the other side wants to find out how he tried to stop the car, let him ask what was done. "Did he turn on the brake handle? Did he switch on the emergency?" A man does not have to be an expert to say that the car was going fast; he may be examined as to what he considers to be fast. Nor does he have to be an expert to say that eggs are rotten, that butter is rancid, that there has been a war in Europe, that a man has a broken leg or looks sick or acts queerly, that the fish is stale or the cow was red. The motion to strike out does not affect the jury, the testimony still remains on the jurors' minds. The verbal memory stays. Neither does the motion to amend the pleadings affect the jury. What have they got to do with it? If the papers are amended it is not important from their standpoint. Should the plaintiff have written a letter that he was going to sue for something, to the jury that seems better than any pleading. These motions are insignificant and examples of a formalism which, however valuable it may be as defining the methods of the legal battle, are not consistent with the modern spirit of investigation into facts. It is rather significant that the laws creating Public Service Commissions and Legislative Investigation Committees in some States go to the length of stating that there shall not be any rules of evidence such as are employed in the courts of law. The other motions, such as to direct a verdict, which is usually the same as a motion to dismiss, and the motions after a verdict has been rendered, are also formal statements of a request for the disposition of the case. They may be all very good and useful in their way, but are merely the incidents and measures by which the truth of the matter is reached. The client looks puzzled at the argument and the decision, the jurors have a not very clear conception of what is going on, the lawyers have a meretricious feeling that perhaps they are cheapening themselves a little by making so many motions, yet they, nevertheless, have a legal right to do so and they must take advantage of every legal right for the protection of their clients. After all the witnesses have been called, the plaintiff and the defendant have proved their sides, the plaintiff has contradicted the new evidence of the defendant, everybody has been examined, the interruptions of the objections and motions, exceptions have been had, the judge asks if both sides are through and the presentation of the case is ended. The course of justice has been on a rough and rather narrow road. The popular revolt at the method of arriving at the truth is, in fact, at the narrowness of the way. The presentation of a case and the means of reaching the truth ought to be on a well-defined and orderly system. It would seem natural that the crooked and ill-paved streets of an old town should give place to the open, smooth, and broad avenues of the modern spirit. XIII ELOCUTION At last when both sides rest and the judge has passed on the latest motions, the intense action of the drama begins. For this the clients have been waiting, the lawyers have been training. It is the opportunity for them to display their attainments, to show their clients what brilliant lawyers they have retained; to let the judge know how well they have understood the case; to move and sway the jury to their side; to unravel the mysteries and by the power of oratory to bring justice where she belongs. When his lawyer is talking, the client watches him with admiration, but while the opposing lawyer speaks the client can hardly conceal his contempt. He feels that his case is secure and he does not understand how there can be anything to be said on the other side. Yet he is fearful there may be some court trick which he does not understand and the case may be lost. "Your Honor and gentlemen of the jury," begins the defendant's lawyer. Including the judge in his address, although it is a matter of courtesy for the eloquence of the summing up, is meant solely for the jury. The judge is only supposed to listen and restrain the attorneys if they go too far afield in their attempts to influence the jury by their efforts. The judge is the time keeper or referee and holds the lawyers to the point. The object of the attack is the jury. As the burden of proving a case is on the plaintiff, he is supposed to have the first and the last word; therefore, the defendant begins to sum up. After he is through, it is the turn of the plaintiff. The tactical position is in favor of the plaintiff. The advantage, as in all verbal disputes, is reputedly with the man who has the last word. In all debates the proponent has the right of opening and closing. The plaintiff began the case with his opening, and after it is over he is permitted to close. "Gentlemen," says the judge, "how long will you take in your address?" Both sides agree upon a certain time, which usually proves too short, but which is acquiesced in with alacrity because each side thinks their case is so plain and convincing that it will not be difficult to explain. The lawyer girds up his loins, the court-room quiets, the struggle of conflicting evidence is over, the clients and witnesses retire from the foreground, the other counsel sits down and the lawyer steps close to the jury-box. "The jury is yours," says the judge, as though he were abandoning the jury. Indeed the summing up is an attack, a vivid, keen, masterly struggle in which wit and brain is pitted against wit and brain: where facts and passions are to be marshalled in the most intelligent and plausible way, where imagination and oratory are to be employed in their finest capacities. It may be bold, manly, energetic, or soft and persuasive; it may appeal to sympathy or threaten with a battery of accumulated facts. Forensic oratory is the highest type of art, the most powerful of human gifts. The only trouble with most court oratory is that it is only fit for the market-place. The lawyer begins with the firm impression that he must win the jury. His voice is bland and soothing, he feels that he must be soft and persuasive. He rubs his hands and remembering the old adage, that laugh and the world laughs with you, attempts a little joke. There is nothing so good as to get a smile for his side. Perhaps the joke does not go very well and the laugh does not come; the point has missed. He will try what flattery can do. "Men of your intelligence can readily see," he says. "When I was examining you," he explains in a subtle way. "I knew at once how unprejudiced and fair-minded you were." "You gentlemen are practical men and can understand." Yet somehow the jury are impervious. They sit back in their chairs and stare. Then the lawyer begins to forget the object of ingratiating himself. Hypnotized by the memory of his client's wrongs, he works himself into a frenzy of feeling. He swings his arms, pounds with his fist, raises his voice, and thunders his denunciation. His speech takes on a threatening tone. He shouts and bawls; the jury must be waked up. They sit stolid and unmoved. He tries to catch their eye, there is no gleam of interest. Perhaps he has rather a hopeless feeling that the art of oratory is not what it is reputed to be. The jury look particularly unresponsive. Even that one little juror, with the clever, smart face, who is leaning forward with such an expression of enjoyment may not be altogether trustworthy. The lawyer has seen that kind before and the one juror who seemed the most interested in the last case he argued was the very one who held out against him in the jury-room as he found afterwards. It seems a difficult matter to stir the jury and the men in the box are not at all a warm or enthusiastic audience. The jury are not particularly keen about the oratory of the lawyer, they look upon him as paid to do his part. It is the portion of the trial they can understand; they have not clearly comprehended what went before. When the objections were being made and there were the cross-examination and badgering of witnesses, they could not separate in their minds the functions of the lawyer and the personality of the lawyer. It seemed as though he were doing a good many unfair things and not acting quite up to the mark, but now the atmosphere has cleared. They can realize that he is only the paid talker for his client, that he is only making all this noise because that is his business. To the jury he is the pleader employed as an actor. The position is simple; if any one would pay them for acting and gesticulating at so much per day or per hour, they would be very glad to earn the money. The client watches the lawyer with affectionate admiration. True, he did not do exactly as he was wanted during the trial. He should have asked those questions he suggested, but now he is doing grandly. When the lawyer is through the client feels splendidly. He sees but one side of the case and believes in it absolutely. With such a good talker the jury cannot fail of being convinced. When the lawyer sits down the client shakes him by the hand and tells him how well he has done. He might have been willing to settle the case for a thousand dollars before, but now he wouldn't pay a cent, not one cent. Later, should the jury find against him, even to the amount of the thousand dollars which he was willing to pay, he feels terribly disappointed. There must have been something very much amiss in the jury-room. The judge while the summing up is going on, is not very attentive. His part of the case is over. While the proof was being given he was alert. True, the charge is coming afterwards, but he knows fairly well what he is going to say, and it is going to be formal. It is the function of the judge to control the address of counsel, but the counsel are sometimes very hard to control. In the criminal trials, reference is made to the emotions of the defendant's family; the devoted, anxious wife, the poor little children who may bear the stigma of their father's disgrace, should the verdict go against him. Since the domestic life of neither party to the trial has appeared in evidence, such things being entirely "irrelevant and immaterial," it does not make a great deal of difference whether the picture is accurate or wholly fanciful. The defendant may be a drunkard, a burden to his wife, and a horror to his children; he may have abandoned his family to their own resources; it is possible that he has never had any family at all. The lawyer has no right to refer in his summing up, or otherwise, to anything that has not been properly submitted in evidence. He is guilty of unfair practice in telling the jury about the defendant's family or circumstances, unless this has been part of the case, which is improbable. He knows this well; so does his opponent and the judge. And should the opposing lawyer protest, the judge will say, looking up, "Be careful, counselor, be careful." The counselor bows respectfully and probably goes on in the same vein. The judge has not heard exactly what was said and feels that the lawyers, if they are not too blatant and noisy, may say what they please. There must not be too much talk about the wicked, money-grabbing, soulless corporation, not too much appeal for the down-trodden poor, nor an over indulgence in personalities. The lawyers must not call the other side liars and thieves too openly. That is, they may say they are untruthful, but liar is too strong. The denunciation must be a little restrained. The judge throws out a rather mild admonition. "The counsellor must keep to the evidence. You may not refer to matters which are not before the court." The lawyer says, "Yes, your Honor." The judge withdraws again into a contemplation of the high cost of living and his diminishing bank balance. The shouting and vociferation grow louder. The jury are long-suffering, but they cannot object. The other lawyer jumps up, and after an insistent effort makes himself heard. "The witness did not say that; you are stating something that is not so. I ask to have the stenographer read the minutes." The stenographer begins turning over the pages of his stenographic book. The exact testimony of the lady in the car is hard to find. "Heavens," think the jury, "are we going to have the whole case over again?" The lawyer who is talking complains, "If my friend is going to keep on with his objections I shall never get through in my fifteen minutes." The stenographer has not been able to find the exact spot. It is apparently not in the testimony. Then the lawyer objecting says, "I ask your Honor to instruct the jury to disregard the statement of counsel." The lawyer must have a sarcastic vein of humor. Such an instruction does not seem necessary. The judge says, "I will cover that in my charge, but I must ask the counsel to be careful," and he looks warningly at the clock. Finally the hands point to the agreed time. The judge says, "Your time is up, counselor." "Just one minute more," says the lawyer and then he goes on for three. The judge raps on his desk. The lawyer winds up his speech in a hurried peroration. "Therefore, gentlemen, with the utmost confidence in your ability as men of experience and affairs, with the sure belief in the justness of my defense, I leave the matter in your hands." The plaintiff's lawyer now takes the floor, the jury shift their feet and glance at the clock. "Gentlemen of the jury," he begins. He probably leaves out the judge. The plaintiff now having the attack is more direct. It is rather significant of the change in all procedure that the language of all court addresses is becoming more and more simple. The old days when the lawyers delivered homilies of Latin have disappeared. No longer does the lawyer refer to _nunc pro tunc_, or make facetious jokes in a language the layman and probably the court does not understand. If a lawyer makes too many Latin quotations, the court thinks him affected. He must be simple, direct, and to the point at issue. His art in presenting his case consists in drawing the picture of the facts so vividly that they will remain in the jurors' minds. Employing his imagination in forming the concept, he gets it across the rail to the jury by the fine gift of selecting words and incidents. No one, it is said, is ever convinced by argument, but any one can realize a visualized picture of words. The counsel starts to storm and abuse his opponents and his opponents' client, and in his wrath also forgetting that persuasion is not accomplished by denunciation. The majority of the jury are rather easy-going, kindly men, who do not care to hear others made too vile. Just as satire is more effective than direct abuse the tolerant juryman prefers to have the other party laughed at than called names. The clients become worked up over their wrongs and excited by their lawyers' oratory. When the case is over they are extremely surprised to see the men who have been shaking their fists and ready to spring at one another's throats, quietly lock arms and go out to lunch together. It is all in the day's work and they must fortify themselves for the next trial. The shock is something like that when, after a melodrama, the heroine having jumped over the bridge and died in a whirlpool, comes out quietly and, in spite of her suffering, bows smilingly before the curtain. The judge and the jury know that the lawyers are coming to life again and are not really trying to kill each other. This is one of the pleasantest aspects of the life in court. There is a good fellowship between the two lawyers who have been so keenly struggling. They even have a kindly feeling toward the judge when he is off the bench. The court attendant calls the attention of the lawyer to the time, who with a sidelong look at the clock, also "Confidently leaves the case in your hands, gentlemen." The two lawyers sit down and the judge puts on his spectacles, gathers up the notes he has been making of the main points of the trial, and turning to the jury begins his charge. XIV THE HEAVY CHARGE No, madam, the charge of the judge does not mean his bill for expenses or his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about the case. It is never light or humorous, but ponderous and hard to understand. The court-room doors are locked, no one must come in or go out during the charge. The judge looks solemnly at the jury, the jury straighten up from the desponding attitude they gradually have assumed during the address of counsel. The end is near and they begin to have hope. They appear interested and a gleam of awakened intelligence is in their eyes. Now at least they are going to hear what they wanted to know about the case. The judge will probably tell them something new and clear up the points they did not understand. It may be even he will explain why he made those strange rulings during the trial and what that mysterious conference was when he called the lawyers to his desk and they talked together for so long. The judge begins: "Gentlemen of the jury, the plaintiff in this case seeks to recover," and then he goes on to tell them what the plaintiff wants, which is just what the plaintiff's lawyer has been telling them. The judge must have been asleep while he was talking for he is saying the same thing over again, only in a little different language. After that the defendant's case is set forth. There again that is what the defendant's lawyer was saying. It does not appear reasonable that they are compelled to hear six times what the case is about. There were the two openings of counsel at the beginning, the two summing up at the end, and now the two explanations of the judge. There ought to be an allowance made for the jury possessing a little intelligence. The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that. The jurymen think they ought to remember fairly well what was said. The judge admits it after he is through by saying himself: "Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court." If he means that he should have kept still and let them have their own recollection. Then he goes on: "If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony." Of course, is that not the reason for their being there? Why, the judge in the beginning made them swear to decide the case "according to the evidence." The jury is going to do exactly that. They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there? The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them. The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly. The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, "That they may consider their bearing on the stand and their manner of giving testimony." Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand. Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich. The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason. As these accumulating evidences of the judge's misunderstanding of their attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable than most of the other parts of the trial. The saving point about it is that the end is drawing near and they can soon get away and have a smoke in the jury-room, and afterwards go home. The judge, while he is charging, understands a little of what has been going on in the jury's mind. He has seen the gleam of interest which was in the jury's eyes at the beginning gradually die out. He notices how they fall into resigned attitudes. He has a glimmering that the good old legal aphorisms which he has been enunciating with such care about the burden of proof, the weight of evidence, the credibility of witnesses and the caution about sympathy and prejudice, are not very convincing to the jury. But the conventions require that he must go on. "Gentlemen," he says, "I must instruct you to eliminate from your minds any discussion of counsel upon questions of law or rulings of the court upon the rejections of testimony, or decisions upon motions to dismiss or direct. They involve matters of law with which you are not at present concerned. In arriving at your verdict you are to consider only the evidence." Perhaps the judge feels a trifle foolish and therefore he becomes more emphatic and solemn. He carefully and in a painstaking manner defines the law of negligence. He tells them the law of negligence involves two cardinal principles. "The first is that the plaintiff must establish that the defendant by its employees was guilty of negligence, that he failed to act as a prudent and careful man; second, that the plaintiff must have shown himself free from contributory negligence; that unless the jury find both of these, that the plaintiff cannot recover." Then perhaps he interjects a little more about the balance of proof as to these particulars. "If the jury find the plaintiff was negligent and the defendant was negligent, they must find a verdict for the defendant. If they find the plaintiff was not negligent and the defendant was negligent, then they may find a verdict for the plaintiff, provided they find, etc., etc. Otherwise should they find the plaintiff was not negligent and the accident happened not through the negligence of the defendant, then again must they find for the defendant, or again--" but the jury by this time is exhausted. The alternatives do not interest them. The judge may know what he is talking about, but they do not. The interesting question is how much are they going to give the plaintiff. The judge finally becomes worn out, a kind of self-hypnosis sets in. He remembers so many phrases and legal maxims that he might enunciate, his brain becomes confused as to selection. There are volumes of charges to juries which he has more or less learned by heart. There are so many glittering and vague generalities about the law of negligence, the law of contracts, the law of evidence, the burden of proof, or the weight of testimony, that he could go on indefinitely. The jury have ceased to understand and the judge realizing the hopelessness of this situation, winds up by saying--"So, gentlemen, bearing in mind what I have just told you and the evidence in the case, you will retire and consider your verdict." The jury begin to gather their hats and coats, when up jumps one of the lawyers and says: "One moment, please. I ask your Honor to charge that if the jury find the cow that was in the plaintiff's garden was a white cow and not a red cow, then their verdict must be for the defendant." "I so charge," says the judge. "I except," says the other lawyer, "and I ask your Honor to charge the jury that if they believe the cow was the property of the defendant, their verdict must be for the plaintiff." "I refuse to charge in those words," says the judge, "there may not have been any cow or he may not have eaten the cabbages." Or the lawyer for the railway may ask the judge, "That if the jury find that the driver was forty feet away from the tracks and the car was a hundred feet away from the corner of Seventy-eighth Street when he first saw the car, and the car was going at a rapid rate and the conductor pulled the bell and the driver was sitting on the right-hand side of the wagon and might have seen the car had the car been one hundred feet below the corner, then in that event I ask your Honor to instruct the jury that the plaintiff was guilty of contributory negligence and cannot recover." The question is undoubtedly a poser. The judge is evidently worried; if he make a wrong guess and says "yes" or "no" at this juncture, the appellate court may say: "Error, judgment reversed, new trial ordered." What happens is that the judge takes a chance. The lawyer says, "I refer you to 169 New York Court of Appeals Reports, page 492; in the case of Jones _vs._ Metropolitan, the court there said that the refusal to so charge was reversible error." The judge looks wise and finally says, "yes." There is a little playing of politics in this; he has possibly been thinking how the jury are going to decide and realizing that what he charges won't make any difference, he plays safe by charging what the losing side wants. These requests to charge may go back and forth indefinitely with rulings and exceptions. Either lawyer may except to a portion of the judge's charge, thus serving notice upon him that unless he hurry up and change it he may be reversed on appeal. That is the reason why the charge of the judge has not a great effect. He has to be too careful. In New York State the judge can not say what he thinks about the case. In other words, the charge must be indefinite. In England and the Federal courts in this country, the judge may legally express his opinion as to how the case should be decided, but that is as far as he can go. The distinction is a relic of the old days of the jury system when the judges would imprison the jury until they found as was wanted. Now the judge may only express a preference and the jury may do as they please. In some courts the democratic idea of the independence of the juryman goes to the extent of not allowing the judge to say anything specific. The result is that the jury are confused. They are usually of so independent a nature that the judge's charge would not greatly influence them. The clients sit by utterly confounded; they hear the judge wisely say, "I think perhaps yes, but on the whole it may be no," and when he is through, not understanding as much as the jury, they think the judge's charge is very fair. Having said little of import it probably is. The continental method is so entirely different, that it is shocking. In the courts in France the judge practically says for his charge, "You've heard the evidence, now go on out and do what's right." This again illustrates the difference between the old and the new ideas of courts. The old is a battle ground where the issues are defined, the courts are kept within narrow limits and the rules of the ordeal observed strictly, and the modern, merely an investigation of a dispute with the glamor of a contest left out. It is an investigation of facts, which however bitter may be the personal animosity, should never lose sight of the main idea of arriving at the plain truth, in a common sense way. At last the lawyers are silent, the trial is over, the judge patiently asks are there any more requests to charge, and there being no more, he turns to the jury and says, "Gentlemen, you will retire and consider your verdict." Slowly they file out, conducted by the court attendant, to the jury-room. XV THE TRUE VERDICT The truth is said. The battle is over and the mighty have prevailed. The decision is made. Justice divine and compelling is about to pronounce its sentence. The truth seeks to burst forth and the jurymen have knocked at the door of the room in which they have been locked for so many hours. The court attendant, who has been standing like a sentinel outside to prevent the approach of eavesdroppers and listeners, turns the key and sticks his head into the room, withdraws, locks the door again, and sends off for the judge. The judge has been in his chambers taking a rest and enjoying a cigar. The judge always, when he is off the bench, is by courtesy said to be in chambers--other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office room where he sits. It is named in the plural, even if it is only one ordinary room. He throws away his cigar. The lawyers or their assistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities of their clients, who insist upon speculating with them on the probable result, have been summoned to the bar. The judge takes his seat on the bench. The jury, marshalled by the court officer, file in. They are lined up in the jury-box. "Gentlemen," says the judge, "have you agreed upon a verdict?" "We have," answers the foreman of the jury. When the jury have first been locked in the jury-room they have probably immediately relaxed after the long strain of the trial. They were entitled to a smoke and to feel at their ease. Besides they know that if they finished their deliberations too early, they will be called on another case. It was nearly two when the judge finished his charge, so they have plenty of time to waste; for if they came back to the court-room before three they would be impaneled in another trial. They have taken a straw vote to find out how the sentiment stood, not with the hope of arriving at a decision but by way of trying out the matter. The result stands nine for the plaintiff and three for the defendant. They light their cigars, for they came well prepared for the tedious hours in the jury-room. The nine men look at the other three in disgust, the three look at the nine with contempt and then they begin to argue. The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. There is a certain respect for the inviolate privacy of a jury-room. If trial lawyers could understand the method by which they arrive at their final announcement they would be far better equipped than by a study of the law for many years. It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way. "Well, we ought to give that boy something." "I don't like the looks of that last witness." "That lawyer for the defendant was too smart." "But do you think the driver tried to cut him off?" "He couldn't have been in bed six weeks." "No man would stay in bed that long with a sore knee." "Oh, well, he only meant he was about the house." "That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital." "Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?" "Well, let's take another vote and see if we can't get together." "I can't stay here all day. I've got to close something important at four o'clock." "You'll stay here if you have to; we want to get this settled right." Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view. They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. But in that contract case where the other side wanted something back from the plaintiff, how are they going to find a verdict for both? They can't find a verdict both ways. They had better send out and ask the judge. No. Well then they will send for the pleadings, they will show. "What," says one juryman, "do you think those pleadings would show anything a reasonable man could understand?" They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge's desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision. There is the story of the judge who, after the jury had been out for a long time, made a bet with the stenographer as to how the jury were going to decide. The judge thought himself an expert in determining the probable verdicts of the jury. After they came in and announced their decision and were discharged, the judge having lost looked crestfallen. The stenographer smiled. Then the judge recovered himself. "You win," he said, "but the next time you and I bet on a decision it is going to be one of our cases without a jury." The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines. "Sure, I told you the silks were worth four hundred dollars." "Well, I know those kind of people; they are small people and they never did that amount of business in all their lives, let alone one month." Or, "Don't you know that neighborhood; all the cars speed up whenever they get there." "Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc." "No, I ain't prejudiced against the railroad; I ain't got nothing against the railroad." "Of course, we ain't going to decide this case on sympathy or prejudice. But that boy's Irish and he looks like he come of good honest people." "Vy, I don't see no difference whether he is Irish--or Yiddish; vot ve vant is justice." "Now see here, my friend, if you think you're going to make this a racial matter you're mistaken. Just because that boy's Irish you needn't think he ought not to get nothing. You're prejudiced, that's what you are." "Oh, let's get down to the evidence anyway; what we want is to decide." "Vel, the motorman vas Irish, vot you talking about?" "Sure, but he had to say what he did. Didn't he have to hold down his job with the company?" The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures. "The judge told us that the law was--" He is interrupted. "Oh, we don't care so much about the law. What we want to do is to do what is right." Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion. The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected. The jury has spoken, the lawyer who has lost moves to set aside the verdict. The jury looks startled. Is it possible that after all that trial and all that deliberation the judge is going to upset it again and have the long trouble gone over. The judge denies the motion or takes it under advisement. Only on rare occasions does he set the verdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly against common sense. The theory of the law is that the verdict of a jury is a final judgment on the facts by the best judges of the facts. It will not lightly or for small reasons be interfered with. The question of belief in the jury system is one of the most futile of all large questions. In the first place, jury trial is so deeply engraved in the constitutional bill of rights that one might as well ask: "Do you believe in citizenship?" "Do you believe in the United States of America?" Secondly, trial by jury is so completely involved in the present system of court trial and procedure, that they are inseparable. The evils of the whole attach to the part and the beneficent aspect of the courts pertain equally to jury trials. Coming down to a concrete case and leaving the abstract principle to the theorist, there are certain obvious things to be said for and against jury trial. The jury represents the opinion of the common or ordinary man--the _vox populi_. Twelve men picked at random are probably neither all capitalists nor all laborers. They are made up of a few of both, but the majority, if not all, are the small tradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, but their judgment is the judgment of mediocrity and mediocrity is what is wanted. The professional man, the expert, the specialist is needed for the special degree of administration, but for the determination of the actual right and justice, what is needed is the instinct of the ordinary man,--the plain ordinary common sense. When the criminal says: "I stand a better chance with a jury"; when the civilian says: "If I had the wrong end of the stick give me a jury," he is appealing not to the wrong side of the jury system, but to a quality which is not always recognized. Law is an exact, definite statement of principles, absolute and apparently immutable. When a man on the street walks up to another and wantonly insults him, the law is, that the insulted party must turn and walk away. If the matter came before a jury they would never convict him for knocking the other down at once. The jury system is the mitigation of the law. XVI LOOKING BACKWARD Extracts from the Graduation Dissertation of a Columbia J.E. upon receiving his degree of Juridical Expert in 1947. Historical investigation of obsolete customs is of little value beyond preserving some record of what may soon be forgotten. In the year 1947 it seems almost unbelievable that the universal use by the public of Judicial Corporations should have been a matter of such recent economic growth. It is interesting to trace their development and the social causes from which they sprang. The efficient administration of these co-operative Corporations being demonstrated by their financial success, makes it unnecessary to dwell upon the details of their intensely developed organization. Existing as they do upon so broad a comprehension of the whole commercial and social structures, it is little wonder that they have proven their value to the community. Their highly specialized departments of Issues, Investigation, Statutory Law, Records, Determination and Results correspond in a measure to the former method of procedure in the extinct courts of law and equity. Times have indeed changed. The analogy between the present methods and the antiquated and conventionalized customs of those cumbersome and inadequate institutions is not difficult to find. The department of Issues, for example, corresponds to what was known as the pleadings in an action. These were formerly bits of paper governed as to form by inflexible rules, instead of the efficient method by which under the trained managers of able minds the matters in dispute, either of fact or law, are now narrowed down to exact points of difference. Naturally the methods of their managers being untrammelled by outside rules and they being men of wide experience and tact, the work of this department is not as difficult as at the first commencement of Judicial Corporations was anticipated. The departments of Investigation and Experts correspond with the former division of court trials known as evidence and testimony. Any explanation would be futile of this branch of a forgotten formalism. The ancient rules of evidence and court procedure could only be understood by contemporaries and an extensive research has failed to disclose very clear concepts even by them. The modern methods of the departments governing the ascertainment of facts, either through the experience of the departmental employees or the efficient work of trained investigators, have naturally been much aided by the invention of the Viviphone making all communication adequate and easy. The departments of Statutory Law and Records even yet retain certain characteristics of a period when judicial officers and clerks represented to the public mind the embodiment of what was known as "Red Tape," a true colloquialism descriptive of the attitude of official conservatism. These departments being governed according to the latest bibliographical methods are of merely supplemental value as reference. The Simplification and National Unification of Federal and State statutes has, of course, added greatly to the facility of this branch of the business. The Determination and Result departments at first were thought to be of primary importance. Corresponding as they did in their functions to the former exclusively judicial qualities of the courts and the final judgments thereof, the exaggerated import previously given to those functions pre-supposed an equal necessity in this subdivision of the management of the corporation. This proved to be incorrect. It was found that after a careful framing and narrowing of the matter in dispute by the Issues department, and a thorough and careful sifting of facts by the Expert and Investigation departments, the dispute gradually, if not wholly, disappeared. Men of the highest character and calibre being employed at large salaries as heads of these departments, have given adequate satisfaction, as has been proved by the prosperity of the Corporations. The recompense of the heads of these various departments, requiring as it does men of the greatest commercial understanding, is said to be in some instances fabulous. In the early quarter of the present century and indeed in the latter part of the nineteenth, the undercurrents of many movements were already stirring the surface of the placid stream in which for so many centuries had been flowing the course of justice. Those curious relics of a medieval, age, the law courts, still at so recent a date, retained many of the forms, characteristics, and usages of a time when knights fought in plate armor and indulged in the mimicry of battle, urged on by the glamor of chivalry. The very terms and the legal phraseology of the period implied the jousts, tournaments, and ordeal by battle of a romantic and self-deceptive age. The universal world war that resulted in such an immense change of social and economic values contributed naturally to the destruction and abandonment of old forms and structures. Yet even before the war and the economic revolution that followed so quickly thereafter, the tendencies toward a more sane treatment of the question had already begun. Like the extinct class of so-called physicians and doctors, who have now been amalgamated by the Public and Private Health Corporations, what was known as the legal profession or men known as lawyers and judges, had been gradually losing their characteristics as a class and had been step by step merging into men of business. One of the earliest changes was the disappearance of the lawyers known as the real estate lawyer. Up to about 1890 there still remained members of the legal profession who made a livelihood out of the examination of the titles to real property. The obvious advantages of a comprehensive title examination plant by large corporations known as Title Insurance companies soon eliminated this particular subdivision. The next important change arrived in a curious manner under the cry for what was then known as Social Justice--a vague term which was then advocated by many so-called "reformers" and ignorantly opposed by the capitalist class, without any very clear understanding of what was meant. So little was realized of the economic and efficiency values of insurance against chance, that the beginning of the movement was opposed. The movement resulted in certain obvious changes which looking back upon them seemed inevitable and natural. This was what was known as universal Employers' Liability laws. The principle soon extending itself to all classes of accidents, resulted in the passage of legislation which had been foreshadowed by the tremendous growth of Casualty and Accident Insurance companies. Beginning at first with laws holding the employer liable for accident, and afterward resulting in the insurance of labor, it was gradually extended to accidents of every nature, including injury from travel on common carriers and the ordinary vicissitudes of life. The result of State insurance against negligence and injuries of every kind was that all claims for injuries were adjusted by the State and the lawyers who lived by pursuing the neglect or misfortunes of others, gradually became extinct. A certain distinguished and conspicuous type was known by the term "ambulance chasers"--the exact derivation of the term not being now, in 1947, entirely clear but probably being related to some antiquated legal custom of succoring the wounded--very soon disappeared. The cases that arose from all commercial disputes became less numerous as the more candid and intelligent dealings of the economic world awoke better and more honest business standards. But long before the disappearance of what was known as the commercial lawyer, there are evidences that the former courts of law, even before their entire abandonment, had fallen into a partial desuetude. Apparently disputes of large magnitude never reached the courts. And the legal standards enunciated by the courts were so entirely unrelated to the standards on which the actual commerce of the world was conducted, that resort was but little had to the arbitrament of the law of procedure in court. The entire change of personal and domestic relations and the greater freedom from the institutionalism of semi-civilized communities, _e.g._, the abandonment of all restriction on divorce, naturally did away with the class of litigation that appeared in certain courts of law dealing with marital or personal grievances. In regard to what were known as criminal lawyers and criminal courts, the different attitude which the public formerly had toward unfortunate sufferers makes the existence of such a class or such institutions almost unbelievable. As it is now inconceivable that we should throw into unsanitary jails men and women who are mentally or socially diseased, so is it hard to realize that during the unintelligent period of which we are speaking, nay for many centuries, there existed people who lived upon their misfortunes. Naturally with the disappearance of litigation and lawyers the public no longer tolerated the existence of the judges or courts. For a few years they retained a hold upon the imagination of a small portion of citizens who entertained a sentimental regard for the State institutions of a civilization founded upon the unsound teachings of eighteenth-century doctrinaires. The period of the abandonment of the old courts corresponded with the extraordinary development for what was called "moving pictures"; those pale, lifeless presentations without color, speech, or substance, at which the people of a benighted age gathered for amusement or entertainment! It requires imagination to conceive that people were unfamiliar with the ease of communicating with any place on the globe and reproducing exactly in form, color, and speech by turning on a switch. The observer of that age must have been shocked and surprised to find the solemn courthouses turned into what was known as moving-picture palaces or as community centers for dancing and social entertainments. The change of class which the lawyers had gradually been undergoing to simple men of affairs was not so abrupt as that for the judicial officers, who were far removed from actual life. Various expedients were attempted by which they could be preserved as a class. Their former occupation being gone and the idea of pensioning not being satisfactory, as there remained a large number of younger men on the bench who might be of some value to the community, a system of court cafés was evolved. Even to-day it is fast disappearing and for the benefit of future generations it may be well to describe the last remnant of an institution that held its position in the social order for so long. Human nature being always substantially the same, it was thought that its demands for the dramatic action and stress of battle should have some outlet. It was not thought wise to entirely abolish the arenas for legal disputes, although the present Judicial Corporations with their excellently organized departments were already rapidly destroying all litigation. It was felt that perhaps humanity demanded the bringing together of the two disputants so that they personally might oppose their claims to one another. It now seems incredible, in view of the absolute simplicity of communication by Viviphone, that this should be thought necessary. The need for romantic expression seemed to demand the opportunity for personal presentment. The social workers who established these café courts, did not realize that with the growth of a more intelligent public point of view, the question of abstract justice was little more than an application of customs and social standards to particular facts; and that with the fall of the ideas of justice in the abstract, there also fell the appurtenances of justice. It may here be noted that the learned treatise of Professor Humperdinck upon the recent discovery of certain statutes found among the ruins of the Great New York Explosion is mistaken. The figure which he described among others of the woman blind-folded and with an arm extended as though holding something, does not represent as he calls it, "The poor blind girl begging," but a figure of the Goddess of Justice holding the scales, who was so long worshiped. The growth of the court cafés was made possible by the amelioration in the climate of New England effected through the alteration in the course of the Gulf Stream. The inhabitants became accustomed to spend more time in the open air so that the courts became popular. Existing as places for the display of eccentricities and the airing of personal grievances, they soon became extremely frequented as places of amusement. Whenever any litigant felt that there was any matter in dispute which needed adjustment by some outside agency, he invited the other party to come to the court. The judges occupied the position of proprietors, _maîtres d'hôtel_, and waiters, whose business it was to make the courts as attractive as possible. As their salaries depended upon the amount of receipts and the courts were run upon a partnership basis in which all shared the profits, the aim of the judges was to draw as large amount of custom as possible. The surroundings were in every way desirable. In the open air, under spreading trees with the sunlight filtering through the leaves upon the well-kept lawns, were spread tables covered with delicious fruits and every delicacy that the human mind could devise in the way of culinary delights. Rare wines, exotic flowers were constantly supplied in profuse display. Luxurious divans and reposeful seats were interspersed about. The most modern as well as the most famous musicians furnished exquisite music, while flitting about in neat white aprons partially concealed by their gently swishing gowns of black, the attentive justices anxiously tried to add to the pleasure and comfort of their customers. With such temptations as these there was little wonder that the opposing party accepted the invitation to attend court. Witnesses and spectators crowded about, both on account of the novelty of the institution and the opportunity for refreshment and amusement. The aim of the judges was to incite the disputants to continue their disputes instead of trying to pacify them. The more vociferous they grew, the more noisy and passionate they became, the better the crowds were held who came to observe the performance. It was upon this clientele and the sale to them of viands and comestibles during the dispute that the profits of the judges depended. So long as there was a serious and energetic struggle the spectators remained at the adjacent tables and trade was brisk. Whenever, however, the litigants came to a full realization of the absurdity of their position, either by the continued laughter of the spectators at the public airing of their private wrongs with which the public had nothing to do, or becoming tired of mere words and came to diminish the ardor of their combat, the crowd would begin to dwindle away. The judges quick to understand the loss of trade after vainly trying to induce the litigants to new efforts, would gently and suggestively push under their hands a pair of dice boxes or a pack of cards and the dispute would sometimes end upon the throw of a die or the turn of a card. The reason that these court cafés have not long remained in vogue, was that all actual litigants soon became so sophisticated as they realized the enormity of the position and how unreasonable their conduct seemed to the average man. Public sentiment was naturally against such a waste of time and real performers became scarce. Several of the courts were detected in hiring false litigants as actors so as to draw the crowds. The performance not being genuine soon lost its interest. The patrons left them and many courts became bankrupt. So like their predecessors, those light-minded courts have practically ended. THE END * * * * * Justice to All The Story of the Pennsylvania State Police By Katharine Mayo Introduction by Theodore Roosevelt 8º. Illustrated. $2.50 Theodore Roosevelt says: "It is a book so interesting and so valuable that it should be in every public library and every school library in the land." This State Constabulary in its romantic career has hunted down crime, made raids into "Black Hand" strongholds, protected lives and property from mob violence, and always risen to every emergency where nerve and swift action are required. G.P. Putnam's Sons New York London * * * * * +---------------------------------------------------------+ | Typographical errors corrected in text: | | | | Page 7: beween changed to between | | Page 21: psuedo-classic changed to pseudo-classic | | Page 173: frigthened changed to frightened | | Page 202: planitiff changed to plaintiff | | | +---------------------------------------------------------+ 
31504	----	generously made available by The Internet Archive/Canadian Libraries) CONCERNING JUSTICE BY LUCILIUS A. EMERY NEW HAVEN: YALE UNIVERSITY PRESS LONDON: HUMPHREY MILFORD OXFORD UNIVERSITY PRESS MDCCCCXIV COPYRIGHT, 1914 BY YALE UNIVERSITY PRESS First printed August, 1914, 1000 copies TO MY CHILDREN HENRY CROSBY EMERY ANNE CROSBY EMERY ALLINSON THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT. CONTENTS CHAPTER PAGE I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS OF JUSTICE 3 II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS 31 III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR THE INDIVIDUAL 43 IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE SAFETY OF SOCIETY 56 V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST FORM OF GOVERNMENT 77 VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE GOVERNMENT. BILLS OF RIGHTS 95 VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY 110 VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE 121 IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION 146 CONCERNING JUSTICE CHAPTER I THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS OF JUSTICE For centuries now much has been written and proclaimed concerning justice and today the word seems to be more than ever upon the lips of men, more than ever used, but not always appositely, in arguments for proposed political action. Hence it may not be inappropriate to the time and occasion to venture, not answers to, but some observations upon the questions, what is justice, and how can it be secured. It was declared by the Roman jurist Ulpian, centuries ago, that students of law should also be students of justice. By way of prelude, however, and in the hope of accentuating the main question and presenting the subject more vividly by comparison and contrast, I would recall to your minds another and even more fundamental question asked twenty centuries ago in a judicial proceeding in distant Judea. It is related that when Jesus, upon his accusation before Pilate, claimed in defense that he had "come into the world to bear witness unto the truth," Pilate inquired of him "What is truth?"; but it is further related that when Pilate "had said this he went out again unto the Jews." Apparently he did not wait for an answer. Perhaps he repented of his question as soon as asked and went out to escape an answer. Men before and since Pilate have sought to avoid hearing the truth. Indeed, however grave the question, however essential the answer to their well-being, there does not seem to be even now on the part of the multitude an earnest desire for the truth. Their wishes and emotions cloud their vision and they are reluctant to have those clouds brushed aside lest the truth thus revealed be harsh and condemnatory. The truth often causes pain. As said by the Preacher, "He that increaseth knowledge increaseth sorrow." People generally give much the greater welcome and heed to him who tells them that their desires and schemes are righteous and can be realized, than to him who tells them that their desires are selfish or that their schemes are impracticable. It has always been the few who have sought the truth, resolute to find it and declare it, whether pleasant or unpleasant, in accord with the wishes of mankind or otherwise. Such men have sometimes suffered martyrdom in the past, and often incur hostility in the present, even when seeking that truth on which alone justice can securely rest. Nevertheless, so closely linked are truth and justice in the speech, if not the minds, of men, there should be some consideration of Pilate's question. Whether truth is absolute or only relative has been perhaps the most actively discussed topic in the field of philosophy for the last decade. Into this discussion, however, we need not enter, for such discussion is really over the problem of determining the proper criterion of truth. Wherever be this criterion, whether in some quality of inherent rationality or in some utilitarian test of practicability, the truth itself has some attributes so far unquestioned and of which we may feel certain as being inherent, necessary, and self-evident. Truth is uncompromising. It is unadaptable; all else must be adapted to it. It is not a matter of convention among men, is not established even by their unanimous assent, and it does not change with changes of opinion. It is identical throughout time and space. If it be true now that since creation the earth has swung in an orbit round the sun, it was true before the birth of Copernicus and Galileo. If it be true now that the sum of the three angles of a triangle is equal to the sum of two right angles, it was always true and always will be true, true at the poles and at the equator, true among all peoples and in all countries, true alike in monarchies, oligarchies, and democracies. Truth is also single. There are no different kinds of truth, though there may be innumerable kinds of propositions of which truth may or may not be predicated. Whichever criterion the philosophers may finally agree upon, it will hold in all propositions alike. The truth of a proposition in mathematics is the same as the truth of a proposition in any other science, physical, social, political, or theological. It can be no more nor less true in each and all. Again, in every science, social and political as well as others, and as to every proposition in any science, the truth is to be discovered, not assumed by mere convention; and men must discover it and discover it fully at their peril. Failure even after the utmost effort will not be forgiven. If the truth be found it will be a sure guide in life. If it be not found the lives of men will so far go awry. That it may be difficult to find, that we may never be sure we have found it, makes no difference. Are there any attributes of justice of which we can speak so confidently as being necessary, inherent, and self-evident? That justice ranks next to truth, if not with it, seems to have been, and to be, the general judgment of mankind. It has engaged the thought and fired the imagination of the greatest minds. A few quotations from such, ranging from ancient to modern times, will illustrate this. The Hebrew Psalmist gloried that "justice and judgment" were the habitation of Jehovah's throne. Aristotle wrote, "political science is the most excellent of all the arts and sciences, and the end sought for in political science is the greatest good for man, which is justice, for justice is the interest of all." Early in the 12th century the jurist Irnerius, distinguished for his learning and for his zeal in promoting the revival of the study of law and jurisprudence, and also as the reputed founder of the famous Law School at Bologna, imaged justice as "clothed with dignity ineffable, shining with reason and equity, and supported by Religion, Loyalty, Charity, Retribution, Reverence, and Truth." Six centuries later Addison, famed as a clear thinker and writer, thus wrote of justice: "There is no virtue so truly great and godlike as justice.... Omniscience and omnipotence are requisites for the full exercise of it." Almost in our own time Daniel Webster, called in his day the great expounder and even now reckoned among the greatest of men intellectually, in his eulogy upon Justice Story thus apostrophized justice: "Justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race." Perhaps, however, none of these laudations is so vividly impressive as is the pithy remark of an old English judge that "injustice cuts to the bone." But what is this justice, declared to be so great a virtue, so ineffable, so supremely important? I have said we feel certain of some attributes of truth. Do we know or can we know anything certain about justice? Is it something above and apart from the will of men, or is it simply a matter of convention among men? Is it immutable, or does its nature change with changing times and conditions? If mutable, does it change of itself or do men change it? Is it universal or local, the same everywhere or is it different in different localities? Is it the same for all men and races of men or does it differ according to classes and races? Again, is it single or diverse in its nature? Is there more than one kind of justice? We hear of natural justice, social justice, industrial justice, political justice. What do they who use those terms mean by them? Do nature, society, industry, politics, each have a different criterion? Still again, and briefly, is justice an inexorable law like the law of gravitation or can its operation have exceptions? Is it simply a quality of action or conduct, or, as stated by Ulpian, is it a disposition or state of mind? Finally, is it a reality or, as Falstaff said of honor, is it after all "a word," "a mere scutcheon?" I am not so presumptuous as to venture an answer to any of these questions except perhaps the last. As to that, I appeal to our consciousness, to our innate conviction that there does exist something, some virtue, some sentiment, however undefinable in terms, holding men together in society despite their natural selfishness, and without which they would fall apart. It is this virtue, this ligament of society, that we call justice. We feel that the word is not a mere word, but that it connotes a vital reality in human relationship. If this reality be ignored, men cannot be held together in any society. If justice be the greatest good, as so generally asserted, then its negative, or injustice, must be the greatest evil. Hence error in men's opinions of what is justice will work that greatest evil. Society as a whole is liable to error in respect to justice; has often been mistaken in the past and may be mistaken today. The individuals composing society are seldom, if ever, wholly disinterested and dispassionate in their judgments. Each individual is prone to believe that what is apparently good for himself or his group or class, is in accord with justice. Himself persuaded that he is battling for justice, he does not see that he may be battling only for some advantage over others, for some individual relief from common burdens, for some privilege not to be accorded to others; does not see that what he is battling for may cause injustice to others. Through ignorance of the real nature of justice, the grant to one of his plea for what he calls justice may work grievous injustice to others. So when altruists, warm with sympathy, obtain the enactment of laws intended for the betterment of the less fortunate, they may at times do injustice to others and even to those they hoped to benefit. History records many instances where laws intended to insure justice had the contrary effect. Many a statute designed to prevent oppression has itself proved oppressive in operation. Many a theory of justice has been found to work injustice. A conspicuous and familiar instance is found in the history of the French Revolution. The Jacobins believed that their theories if given effect would usher in the reign of justice in France. They obtained power and exploited their theories only to bring in the Reign of Terror, that reign of terrible injustice. As mistakes and grievous mistakes have been made in the past as to what is justice, so they will be made now and in the future, and can be lessened only by greater wisdom and forethought, by greater effort to consider justice apart by itself, with philosophical detachment, with minds unclouded by pity, sympathy, charity, and other like virtues, on the one hand, or by envy, hate, prejudice, and like evil sentiments, on the other. True, men are more enlightened now and education is more general, but society is more complex, with more diverse and conflicting interests, than formerly. The social mechanism is now so intricate that even a slight disturbance in one part may disarrange the whole. Injustice to one may injure the many. Hence the duty of ascertaining as completely as possible the real nature of justice is as imperative today as ever. As declared by Ulpian, this duty is especially incumbent upon those who have to do with the framing or administration of the laws, since justice can be enforced only by law. In any inquiry into the nature of justice we get little help from the wisdom of the ancients. They wrestled with the question but seem to have been as puzzled as we of today. Indeed, Plato represents the sage Socrates as frankly confessing his inability to answer satisfactorily the persistent question "What is justice?" The question comes up for discussion by Socrates and some friends at the home of Cephalus at the Piræus. Socrates criticizes and punctures the definitions advanced by the others until Thrasymachus, apparently with some heat, challenges Socrates to give an answer of his own to the question "what is justice?" and not to content himself, nor to consume time, with merely refuting others. After some further discussion of various aspects of the question, Socrates finally says, "I have gone from one subject to another without having discovered what I sought at first, the nature of justice. I left the inquiry and turned away to consider whether justice is virtue and wisdom, or evil and folly, and when there arose a further question about the comparative advantages of justice and injustice I could not refrain from passing on to that. The result of the whole discussion has been that I know nothing at all. I know not what justice is and therefore am not likely to know whether or not it is a virtue, nor can I say whether the just man is happy or unhappy." Granting that the confession may have been intended ironically, the further discussion did not result in any practical solution, even if in one possible in Plato's ideal, but impossible, state. Indeed, the inquiry is not yet closed and will not be until the millennium. Still, upon a question so old, so important, so persistent, so ingrained in human society, and even now receiving such diverse and conflicting answers, a brief consideration of the earlier beliefs and theories may not be useless. As said by Bishop Stubbs, the historian, "The roots of the present lie deep in the past and nothing in the past is dead to him who would learn how the present came to be what it is." The roots should be examined by him who would understand the tree. In Homer we get a glimpse of a theory of his time, to wit, that each separate decision given by the magistrate in any litigated controversy was furnished to him by Zeus specially for that case. The Greek word for such a decision was _themis_, and it was supposed that somewhere in the Pantheon was a corresponding deity whose special function was to furnish the appropriate themis for each case. This deity was shadowily personified as the goddess Themis, the daughter of heaven and earth, the companion and counselor of Zeus. It was she who summoned gods and men to council and presided unseen over their deliberations. Hence she came to be regarded as also the spirit of order without which the Greek philosophers, notably Plato, held there could be no justice. This theory that justice and even the laws were but the will of deity, revealed in various ways, was long generally accepted. In Rome, in the time of the kings, the king was the Pontifex Maximus, and as such, with the help of the College of Priests, declared the laws and decided lawsuits. For some time also under the Republic, when a vote was to be taken in the Comitia upon a proposed law, the question was thus put: "Is this your pleasure, O Quirites, and do you hold it to be the will of the gods?" Under the Empire, despite the reasoning of many philosophers and lawyers that the Emperor derived from the people his power to make laws and declare the law in any given case, he assumed and was assumed to have derived the power and inspiration solely from the gods. The early Christian Church also preached the doctrine that the ruling power in the state, however established, was ordained of God and as such was entitled to the obedience of the pious. This belief that justice and judgment were simply the will of God, to be ascertained, not by reason but by other means, was so general and deep that such crude devices as trials by ordeal and battle were often resorted to for determining guilt or innocence and other questions of fact. Indeed, resort to such expedients for determining questions of law, as well as questions of fact, was not unknown. In the tenth century under the Saxon King Otto a question arose whether upon the death of their grandfather his grandchildren by a prior deceased son should share in the inheritance along with their surviving uncles. The king ordered a trial by battle, which being had, the champions for the grandchildren were the victors. It was therefore held to be the divine will that grandchildren by a prior deceased child should inherit direct from their grandfather. I may here remind you that trial by battle was not formally abolished in England until well into the 19th century. And there is even now professed a belief that the will of God can be ascertained by counting ballots. "Vox Populi Vox Dei" is still a shibboleth. But the doctrine that justice is heaven born, superior to and controlling the opinions and wills of men, did not escape challenge even in ancient times. Those sects of philosophers known as Epicureans and Sophists, consistently with their theory of the nature of virtue in general, maintained that justice was merely a name for such conventions among men as they should adjudge best for their own utility and happiness. The most vigorous champion of this latter theory appears to have been one Carneades, a Greek philosopher of the second century B.C., said to have been the founder of the third Academy and expounder of the philosophy of probabilities and to have possessed the acutest mind of antiquity. In a course of lectures at Rome he stated the arguments for the orthodox view of justice and then boldly assumed to answer them and demonstrate that justice was not a virtue at all as virtue was defined by the philosophers, but was merely a convention; was what men should agree to be a sound basis for the maintenance of civil society, and hence that it varied with times, places, circumstances, and even opinions. This argument evidently had much effect upon public opinion, for Cato urged in the Senate that Carneades be banished because dangerous to the state. So great was the influence of Carneades that a century later Cicero, a disciple of the Stoic school of philosophy, thought it necessary to refute him specifically as the chief heretic, and to uphold the orthodox theory against his arguments. Cicero denounced with eloquent warmth the doctrine that utility was the foundation of justice. He declared that, not utility, but nature, was the source of justice, that justice was a principle of nature, the ultimate principle behind all law. To abridge the familiar quotation from his "De Republica," "There is a law which is the same as true reason, accordant with nature, a law which is constant and eternal, which calls and commands to duty, which warns and terrifies men from the practice of deceit. This law is not one thing at Rome, another at Athens, but is eternal and immutable, the expression and command of Deity." In his treatise "De Legibus" he declared that men are born to justice; that right is established not by opinion but by nature; that all civil law is but the expression or application of this eternal law of nature; that the people or the prince may make laws but these have not the true character of law unless they be derived from the ultimate law; that the source and foundation of right law must be looked for in that supreme law which came into being ages before any state was formed. This theory of the Stoics so eloquently urged by Cicero was practically the _jus naturale_ of the Roman jurists of classical times, though more moderately expressed by them. It does not seem to have been wholly academic, but to have been actually applied at times. In his history of Rome, Mommsen relates that even during the nearly absolute sway of Sulla, after the fall of Marius, the Cornelian Laws enacted to deprive various Italian communities of their Roman franchise were ignored in judicial proceedings as null and void; also that, contrary to Sulla's decree, the jurists held that the franchise of citizenship was not forfeited by capture and sale into slavery during the civil war with Marius. Later, when the church became a power in the state there are instances where laws adjudged to be contrary to the laws of God were refused effect. In England as late as the middle of the 17th century Chief Justice Hobart, a judge of high repute, asserted that "even an act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself for the laws of nature are immutable and they are the laws of laws." In the 18th century Blackstone assented to the doctrine of a _jus naturale_ and wrote of it: "This law of nature being coeval with mankind and dictated by God himself is of course superior in obligation to any other.... No human laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original." True, Blackstone combated the doctrine that duly enacted statutes were to be held void if the judges thought them contrary to reason, but he admitted that that extreme doctrine was more generally held. In this country the doctrine of a higher law than the Constitution even, and to be obeyed rather than the Constitution and laws enacted in accordance therewith, has had and even now has earnest advocates. But the contrary doctrine of Carneades and the Sophists would not down. After Cicero and the civilians, after Hobart and Blackstone, came our modern utilitarians, or sophists, Bentham, Mill, Austin, and others, who have vigorously maintained with weighty arguments the utilitarian theory of justice; and that theory is now generally accepted by lawyers and statesmen as at least the most workable theory in human affairs. There still exists, however, in the minds of many the belief that above and behind all the turmoil and strife of politics, all the flux and reflux of social movements and public sentiment, the confusion of enactments, amendments, and repeals of statutes, the swaying of judicial opinion, there is some law of nature or in nature, some criterion, which if ascertained and obeyed would be perfect justice. This question of the origin, the foundation of justice, whether it be of God or of men, seems to have been much more debated than the question what is the nature of justice whatever its origin or foundation. Yet some attempts, other than those attributed to Socrates, have been made of old to give a definition of justice. The earliest description I have found is that of the early Pythagoreans, who, in accordance with their practise of symbolizing the virtues by geometrical figures, designated justice by the square, and the just man by the cube. Plato seems to have had a theory of justice when he wrote in the "Gorgias," "Nature herself intimates that it is just for the better to have more than the worse, the stronger than the weaker, and in many ways she shows that among men as well as among animals justice consists in the superior ruling over and having more than the inferior." In these days our first impulse may be to denounce Plato's statement as altogether wrong if not worse. We should remember, however, that Plato was not considering any altruistic virtue such as kindness, sympathy, benevolence, generosity and the like, but only what nature indicates to be the essential condition of successful association. Thus interpreted, are we prepared to confute the statement? Do we know of any state of society in human or animal life at any time, past or present, of which the contrary of Plato's statement is true? But passing over all other attempts of the ancients to define justice, none of which seems to have been much regarded by contemporary opinion, I will only cite the most famous, that by Ulpian, the renowned jurist of the best period of Roman jurisprudence, whose writings were most drawn upon by the learned compilers of the Institutes and Digest of Justinian; viz., "Justitia est constans et perpetua voluntas jus suum cuique tribuendi," or "Justice is the constant and perpetual will to render to every one his right." This definition was adopted by the compilers as correct and made the introduction to the Institutes. It thus received the imperial sanction and was quoted wherever the law of Rome prevailed, down through medieval times and later, almost as if it were an inspired or at least authoritative definition not to be questioned. But notwithstanding the acclaim with which this definition was hailed, I question that it was any improvement on that of Aristotle, who tersely defined justice as "that virtue of the soul which is distributive according to desert." Indeed, I think Aristotle was nearer the mark. Upon the revival of the study of law and jurisprudence in the 11th and 12th centuries several of the more famous jurists of that time, Azo, Irnerius, Placentinus and others, essayed definitions of justice, but they do not seem to have improved upon Ulpian. Their definitions were vitiated by theological assumptions and none of them has become a text for commentators or students. Neither in modern times has any definition of justice been suggested which has received such universal assent as did that of Ulpian in his time and for centuries afterward. We may therefore return to Ulpian's definition as our point of departure, since his definition is substantially that suggested earlier by Aristotle, and observations on the later will also apply in many respects to the earlier. Ulpian's definition is elegant in style, but it does not carry us very far in our inquiry. We are told indeed that justice is a state or disposition of the mind, the disposition to render to everyone his right or, as put by Aristotle, is the disposition to distribute according to desert. It was this statement that captured the medieval jurists and which they made their text, but it is now regarded as incomplete and even inaccurate. One may have the disposition, the desire, the will, to render to every one his right, but unless he can know what is his fellow's right he may unwittingly fail to accord it to him and thus unwittingly do injustice. It evidently is not enough to have the disposition or will; hence the definition is incomplete, and any definition is incomplete which does not furnish a criterion for determining what is the given man's right. But the definition as far as it does go is not strictly accurate. The man of malevolent disposition who would wrong his fellow if he dared, may yet, to avoid unpleasant consequences to himself, render fully to every other man his right. It would seem, therefore, that justice is an attribute or quality of conduct rather than a disposition or state of mind, and of conduct toward others rather than of conduct toward one's self. It is only of the conduct of men in their relations to other men that we can predicate justice or injustice. One's conduct may result in good or evil to himself and so be wise or unwise, but assuming, what probably is never the fact, that it affects only himself, in no way affects any other, his conduct is neither just nor unjust. Robinson Crusoe, until the arrival of the man Friday, had no occasion to consider our problem. But, admitting that each man's conduct, whether active or passive, does affect some other person, what is the criterion by which to determine the justice or injustice of that conduct? It is not enough to say that if the conduct in any degree impedes the other person in the enjoyment of any of his rights it is unjust, otherwise not; for then the question comes to the front, what is the right of that other in the given case? Indeed, this latter question is the crux of the problem of justice. The derivation of the word "justice" also shows this. The Latin _justitia_ or _justitium_ according to some scholars is compounded of _jus_, right, and _sisto_ or _steti_, to place, or to cause to stand, and hence the whole word may be held to signify the maintenance of _jus_ or right. With the question of _jus_ or right correctly answered, the problem of justice is practically solved. The right of the one being known, the effect of any particular conduct of another on that right, and consequently its justice or injustice, is determinable with comparative ease. Hence to make progress in our inquiry we must consider the problem of rights, for we almost instinctively accept as correct so much of Ulpian's definition as implies that justice is to be predicated of the act of rendering to everyone his right. We instinctively feel that if we render to another his full right we do him full justice, and that if we ourselves are deprived of any right we suffer injustice. What is his or our right is therefore the real question. This will be our next subject for consideration. CHAPTER II THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS The problem of Rights is also centuries old. There have been in later years glowing tributes to human rights even more than to justice, though the sentiment of rights is egoistic, while that of justice is in some measure altruistic. There have also been diverse opinions in the past, as now, as to the source, foundation, and nature of what are called Rights, as there were and are of justice. A brief review of these opinions and of the changes in them may present the problem more vividly. In patriarchal times there could be no political questions about rights. The head of the family was supreme and sole ruler and judge. Even in Rome under an organized civil government the pater familias was long left the power of life and death over the members of his family. When families and tribes were combined in states, government was long conducted on the theory that as the individual had belonged to the family or tribe into which he was born or adopted, so he now belonged to the state, to be directed and disposed of as the state might order. What he might enjoy of life, liberty, or property was the gift of the state, subject to revocation at will. Plato reflects this theory in making Hippias declare that the measure of man's right is what the state commands. The total abolition of the liberty of innocent persons by holding them in slavery was not deemed any infringement of any right of theirs. This theory was acted upon in democratic as well as in monarchical states. Slavery was as lawful in Athens, Sparta, and republican Rome as in Persia or Egypt. True, there were rebellions and revolutions at times, but, though sometimes provoked by oppression, they were usually to acquire the power of government and not in defense of individual rights. The Plebeians revolted to obtain a greater share in the governing power. The civil wars of Marius and Sulla were not waged for liberty but for power. In Sicily, where the slaves under Eunus had for a time wrested the governing power from their masters, they did not hesitate to enslave in turn. The doctrine that the individual man has some rights by nature which the state ought not to disregard had no place in ancient nor medieval governments. The English Magna Charta purports to be a grant from the king and, though framed by the barons and forced upon the king, it contains no assertion of rights by nature. The rights claimed were claimed as accustomed rights previously conferred and enjoyed, such as the laws and customs of the time of Henry I. Apart from provisions as to improved methods of administration, the language of the Charter implies restoration rather than revolution. So in the Petition of Right in the reign of Charles I, no appeal was made to natural rights, but the demand was for accustomed privileges, for the observance by the king of the old laws and customs of the realm, especially those in force under Edward I and Edward III. In the Petition, the Charter of King John is cited, not as a schedule of the rights of man in the abstract, but as "The Great Charter of the Liberties of England," implying that the liberties therein named were not the natural heritage of men in general but the peculiar heritage of Englishmen, under English law. The prayer of the Petition is simply that the king shall accord the people of England "their rights and liberties according to the laws and statutes of the realm." So in the Bill of Rights framed by Parliament and approved by William and Mary upon their accession to the throne, it was not asserted that the acts of James II complained of were contrary to any natural right of the subject, but that they "were utterly and directly contrary to the known laws and statutes and freedom of this realm." The purpose of the Bill of Rights was declared by the Parliament in behalf of the people to be "for the vindicating and asserting their ancient rights and liberties." In the earlier remonstrances of the legislatures of the English colonies in America against various acts of the king and Parliament, only the accustomed rights of Englishmen were claimed to be violated. The colonists, at first, claimed as against king and Parliament no rights not accorded to Englishmen in England. But though the notion that man has rights by nature, not granted by the state and which the state should respect as such, did not for centuries find expression in state papers or state action, it was by no means non-existent. It was early in the minds of many and found some expression in the writings of jurists and philosophers. In Rome it was a corollary of the doctrine of the existence of a _jus naturale_. The statement of that doctrine by Ulpian incorporated in the Digest implies a doctrine that man does have some rights anterior to and independent of the state. So far, however, as the statement was susceptible of that construction it was not generally acted upon and remained practically a dead letter. The doctrine itself survived, however, engaging the attention and receiving the support of various writers. It gradually gained ground among students of politics and spread rapidly after the Protestant Reformation, so-called, because of the impetus given by that event to the exercise of private judgment. As early as the 17th century, though finding little or no expression in the Petition of Right or Bill of Rights, the doctrine that individual rights were derived from nature rather than from the state was generally entertained by the Puritans and other dissenters from the Established Church, and was invoked by them to some extent as justifying the revolution of 1640. The doctrine also passed over to the Puritan Colonies in America and early found some expression there. In the Massachusetts "Body of Liberties" of 1641 there is a suggestion that the liberties, etc., therein recited, were those demanded by "humanity, civility and christianity" rather than "accustomed" liberties. It was further asserted that these liberties were to be enjoyed by the people of the Colony and their posterity forever. The later disputes as to the proper limits of the power of the British King and Parliament over the American Colonies led the colonial lawyers and politicians to a study of the theory of natural rights advanced by various political writers, English and Continental. It has been said, I think with truth, that the writings of Locke, Voltaire, Rousseau, Montesquieu, and even of Blackstone, were more widely read and studied in America than in Europe. The brilliant writings of Tom Paine also had great influence. The result was that the doctrine of natural rights came to be generally accepted by the people of the Colonies as the real foundation of their claims and the real justification for their resistance to the objectionable acts of the King and Parliament. In 1774 the first Continental Congress in its Declaration of Rights declared that the people of the Colonies had those rights by "the immutable laws of nature" as well as by their charters and the principles of the English Constitution. Two years later in the Declaration of Independence the representatives of the people made no reference to their charters nor to the principles of the English Constitution as the foundation of their claims, but based them exclusively on the theory of natural rights. They declared: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." The same influences undoubtedly contributed to bring about the French Revolution of 1789, and the theory of natural rights again found expression in the French state papers of that period. In August of that year, in the early stages of the Revolution, the following "Declaration of the Rights of Man and Citizen" was put forth by the National Assembly and afterwards made the first two articles of the Constitution of 1791, viz., "Art. 1. Men are born and remain free and equal in rights. Social distinctions can be based only upon public utility. Art. 2. The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression." Thus in the latter part of the 18th century the doctrine that man has some individual rights by nature, not by grant or prescription, and not alienable, obtained official recognition in two great nations. It has since been formally and officially iterated in the Constitutions of many American States and has been proclaimed and invoked as an impregnably established political truth. Nevertheless the doctrine is only a theory, not yet demonstrated nor undoubted. It has been assailed and in the opinion of many refuted, by Bentham, Mill, and other utilitarian writers, the successors of Epicurus, Carneades and the Sophists. Even in France and America it is now repudiated by many and declared to be an obstacle to social and political improvement. Still, despite the vigorous arguments against the doctrine, there remains the innate feeling and a general belief that society abridges individual rights instead of conferring them. In support of this notion may be cited the fact that the statutes of any state or nation are almost wholly restrictive or compulsory in character, and rarely, if ever, permissive. From the Decalogue down, the language of the law has been compulsive, "Thou shalt" and "Thou shalt not"; and men generally act upon the theory that what society does not forbid by statute or custom the individual may do. In passing now from the region of theory, of speculative opinion, to what seems to me the region of facts, of actual conditions, of actual traits of human nature, I wish it to be understood distinctly that in what I may say about rights I am considering only the precepts of justice, and that I differentiate those precepts from the precepts of religion, charity, philanthropy, benevolence, and other similar virtues, and even those of what is loosely called humanity. If it be true as asserted by Addison that justice is the greatest and most godlike of the virtues, it does not follow that the just man, to be just, must possess all or any of the other virtues. One can be just without being religious, charitable, or philanthropic, and even without earning the reputation of being humane. I wish further to premise that I am considering our subject only with reference to those who have grown to the age of self-maintenance and consequent freedom. I do not take into account the rights of children under that age. With these premises borne in mind, I would now in the next chapter call attention to some propositions of fact, which I shall assume to be established by science and history and by the reader's own experience and observation, and which I think bear more or less directly on our subject. CHAPTER III THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR THE INDIVIDUAL Men are endowed by nature with sundry powers, faculties, capacities, physical and mental. These, however, are not at all uniform, but are diverse in kind and degree in different races of men and in different individuals of the same race. Nature seems to work through diversity rather than through uniformity, indeed through inequality rather than through equality. Not all men are born poets, nor are all poets equally good poets. Not all men are by nature adapted for intellectual pursuits, and those who are so adapted are not in that respect equally favored by nature. Even in the field of the simplest manual labor there is great diversity of natural capacity. It seems to be nature's theory that mankind, the human race as a whole, will be better served by diversities, by differences in kinds and degrees of powers, than by uniformity and equality. Further, normal men are also by nature endowed, if not with rights, yet with sundry instincts, desires, passions; also with sundry feelings, emotions, sentiments; and also with some degree of reason and power of choice. Some of these may not be apparent in infancy, but they appear in a greater or less degree of intensity as the individual develops. Among these instincts or desires is the desire to live, the desire to serve each his own welfare and that of his offspring, and the desire to decide for himself what will best serve that welfare. As a corollary, he also has by birth the desire for freedom to exercise any and all of his talents and powers in such manner, to such extent, and in pursuit of such objects as he prefers, or to be idle if he prefers idleness. Further, he has the instinct of acquisitiveness, the desire to appropriate to himself and retain control of such material objects as he thinks may serve his welfare and that of his offspring, and especially does he have a natural instinct and desire to possess and control exclusively for himself whatever, much or little, he has wrenched from nature or otherwise obtained by the exercise of his various powers. This instinct is also observable in some animals. A dog will hide a bone for his own exclusive future use. Man also instinctively claims for his own the natural increase of what he has acquired, the young of his beasts, the fruits of his orchard. This desire for control includes the desire to store up, to use, to consume, to transfer, and even to destroy at will. This desire is seen in young children, who will try to clutch and hold whatever attracts them, and who will hoard or break toys or throw them away as their whims may be. As they get older the desire to control grows stronger, for they destroy less and preserve more in order to have greater measure of control; but still they desire freedom to consume or destroy at their own will. So strong is this desire of control that men wish to direct what shall be done with their property after their death. If one is balked or hindered in the gratification of any of these desires, there is excited in him a feeling of resentment against the cause, even if it be only some force of nature. There is a note of anger in the cries of a child over interference with his play, the deprivation of any toy or other thing he may have or desire. That the wind or the rain was the cause does not sooth him. In the mature man also, anger adds some force to the kick he gives even inanimate objects unexpectedly impeding him. Who of us has ever fallen over a chair in the dark without mentally, at least, consigning it to perdition? The old law of Deodand was an expression of this feeling of resentment against inanimate objects even. By that law, according to Blackstone, whatever chattel was the immediate cause of the death of a reasonable creature was forfeited to the crown, as when a cart ran over a man. By the laws of Draco whatever caused a man's death by falling upon him was to be destroyed or cast out of the community. Thus a statue having fallen upon a man, it was thrown into the sea. The Mosaic law savagely declared: "If an ox gore a man that he die, the ox shall be stoned and his flesh shall not be eaten." Is not this instinctive feeling of resentment at interference with one's person, liberty, or property, the rudiment of a later developed idea, or sentiment, of rights possessed? Resentment is felt only when one is deprived of something he feels he is entitled to. Granting that nature has not endowed man with rights, it has imbued him with a belief that he has rights, and also with a disposition to defend them. Man is also born into a material world of natural forces, and hence to gratify his desire to live and serve his own welfare and that of his offspring, he must adapt himself to his environment, fit himself to withstand heat and cold, provide himself with food and shelter. He not only desires to, but he must, exercise his powers of mind and body and hence should be free to exercise them to that extent at least. Nature does not feed, clothe and shelter man. It only provides the raw material which man must himself find, take, and convert by his labor, manual and intellectual, into food, clothing, shelter, and whatever else he desires. But man is also born into association with other men, into some sort of social organization, and well for him that he is. It is not society, however ill organized, that has caused, or today causes, poverty. That is the primitive condition of the human race. It is only through some social organization ensuring to man freedom for his labor and security for his savings that he can escape poverty. If each individual by his own unaided efforts had to find the raw material, mold it to serve his needs and desires, and also defend it from attacks by others, his life would be one of dire poverty, scarcely above that of the higher animals. Further, nature has so formed man that he not only needs but desires association with other men. Children instinctively flock together for common play, and this social instinct continues through life and extends to work as well as play. We find men everywhere in the civilized world voluntarily entering into associations for various purposes thought by the members to be of service to themselves or others. But there is over and surrounding these associations that larger association, racial or territorial, which we call society. This is the necessary association into which man is born and in which he must live if he desires other than mere animal life. This society must be maintained if the race of men, as men and not as mere animals, is to continue. Indeed, society itself has a sort of instinct for self-preservation. It is not a mere aggregation of individual units but is an association of sentient correlated beings with a resultant life and movement of its own. Association, however, does not extinguish nor appreciably lessen the natural instincts, desires, feelings, sentiments, etc., of the individual, though they may be made less active by continued restraint. Association even extends the scope of man's individual desires and activities. He now desires freedom to make arrangements with other men of such nature and for such purposes as he and they may agree upon. If he is prevented by authority from making such arrangements he feels some resentment, feels that his right is infringed. He also comes to desire that those who have entered into arrangements or contracts with him should perform their part, and he instinctively feels resentment at their neglect or refusal to do so. He feels that he has a right to the performance of the contract. Another desire is developed or given play by society,--the desire to equal one's fellows in the race for benefits, and, that accomplished, to excel them. He desires to win in every game, to be the victor in every contest of physical or mental powers, and in business as well as in sports. If he is held back he feels resentment against the power assuming to restrain him. He thus feels he has a right to equal and to excel if he can. Whether competition should be enforced or stimulated by society is a question in economics. What affects the question of rights and hence of justice is whether this desire to excel should be impeded. In this association, however, each individual man finds himself in close contact all through life with other men having like instincts, desires, feelings, emotions, etc., as his own; and who also feel like resentments and have like notions of rights possessed. If each is left by society free to gratify these desires or to enforce his claims of rights in his own way unmindful how his action may affect others; if they be left free to "take who have the power" and only they may "keep who can," society could not exist and civilization, if not the race, would perish. Society, therefore, must frame and enforce rules for the regulation and control of the conduct of its individual members, must even restrain them to some extent from the gratification of some of their desires. On the other hand, these instincts, desires, etc., must still be reckoned with. They cannot be wholly suppressed nor even very much reduced or impeded if society is to progress or even exist. There must be left to the individual some degree of liberty of choice and action. An eminent American jurist, James C. Carter, vividly stated this, though perhaps in the extreme, when he wrote that the sole function of law and legislation is to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others. "Liberty (he wrote), the first of blessings, the aspiration of every human soul, is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it." (Carter's "Law. Its origin and growth," page 337.) There must also be left to the individual some personal motives for labor and thrift, for, after all, it is the toil of individuals that supports society and its members. It is the surplus products, not consumed, but stored up by the economy of individuals that constitutes the energy of society. However it may be improved in the future, the nature of the average man today is such that he will not toil and deny himself without prospect of rewards to accrue to himself for his own personal use. He will not strive to earn and then conserve his earnings unless he can have them for his own, to control, use and dispose of at his pleasure. However it may be with a few unselfish, devoted souls, men as a rule are not yet so altruistic as to devote themselves exclusively to the good of others, of society. I think it evident that if the impelling natural desire to serve one's self be wholly or even largely disregarded by society, little would be produced or saved by voluntary labor and self-denial. The alternative would be the restoration of some system of enforced labor, of slavery, for the vast majority of men. At this day, after centuries of exhortation to practise the virtues of benevolence, of brotherly love, of self-sacrifice for the good of others, men do not from pure love of humanity voluntarily endure heat and cold, expend their labor and savings in working mines, in braving seas, in building and operating factories, railroads and steamships, in growing corn and cotton. Even those public offices, in which the altruist might find the best opportunities for serving the people, are not much sought for unless some personal honor or pecuniary profit be attached to them. Should society decree that the laborer, whether with hands or brain, should have no individual reward proportionate to the efficiency of his labor, but only his numerical proportion of the product of all laborers, I fear the efficiency of all classes of laborers, manual and mental, would fall to the "irreducible minimum." The foregoing statements and inferences lead to the question, how far should society go in undertaking to regulate the conduct and restrict the freedom of the individual,--that freedom which would be his if he were alone in the world? It may be thought that this is a question of expediency for economists and sociologists, and so it is largely, but it is also a question of rights and hence of justice, since every action or non-action of society affects the freedom of the individual in the gratification of his desires or, in other words, in his pursuit of happiness. CHAPTER IV JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE SAFETY OF SOCIETY The question stated at the close of the last chapter is most important and, in a sense, is perhaps the crux of the whole matter. Not only may error in the solution of the question injuriously affect the material interests of individuals and hence of society as a whole, but it may cause unhappiness far greater than that caused by any material loss, viz., a sense of injustice. As said by the English judge, "Injustice cuts to the bone." At the outset I accept Herbert Spencer's theory that the idea of justice contains two sentiments, positive and negative; the one the sentiment of the individual that he has the right by nature to the unimpeded use of his faculties and to the benefits he acquires by such use; the other the consciousness that the presence of other individuals with similar claims of rights necessitates some limitation of his own claims. Out of those two sentiments is evolved, I think, the idea of justice or injustice according as they are or are not in equilibrium. They suggest the definition that justice is the equilibrium between the full freedom of the individual and the restrictions thereon necessary for the safety of society. The restraint of personal conduct within too narrow limits, the necessity of which cannot be made clear, excites resentment, stimulates angry passions, and hence causes unhappiness through a sense of injustice. Restraint within necessary limits only, the necessity of which can be seen, arouses no resentment; on the contrary, it satisfies the individual, favors harmonious cooperation, profits society and increases the happiness of its members, through the appreciation of that necessity. But for the fixing of the boundary line between necessary and unnecessary restraints upon personal conduct, some other matters still are to be considered. I have said that man instinctively feels resentment at interference with whatever he may think is his right to do, or get, or keep. If this interference is from any of his fellow men his resentment is greater than when it is from natural forces. There arises the desire for vengeance, the desire to "get even,"--to use a common phrase,--by inflicting a corresponding injury on the offender. An eye for an eye, a tooth for a tooth, is instinctively demanded now as of old. If unable to inflict a corresponding injury there is the desire to inflict an equivalent injury. To paraphrase Bacon, revenge is justice running wild. This instinct should be heeded by society. If it be necessary for its own preservation that society restrain this instinct, prohibit private vengeance, then it must itself provide for satisfaction of the instinct; the offender must be compelled to make full compensation or else be made to suffer in turn some deprivation of rights claimed by him that shall be commensurate with the offense. This should be done speedily and gratuitously so far as possible. Delay and expense cause resentment in the suitor for justice and so cause injustice. In doing this, society not only protects itself but it restores an equilibrium of rights disturbed by the offender. This restoration of equilibrium is an essential element in the concept of justice. Of course, as society progresses and human nature improves, this desire of the injured for vengeance on the offender becomes weaker. The virtues of mercy, forgiveness, or willingness to forego the demand for punishment, come into play and society is allowed to attempt to reform rather than to punish, or is allowed to pardon altogether. These virtues, however, are not part of the concept of justice. If the punishment seems inadequate, or the pardon seems undeserved, there remains, or is again excited, the feeling of resentment. The equilibrium is not restored. Another sentiment or feeling is to be reckoned with in order to secure this equilibrium in society. The young, untrained child is impatient of all restraint. It is only by experience that he learns he must submit to restraint if he would have any sort of association with his fellows. He learns that he must submit to the rules of the game if he would have a part in the game. As he comes to maturity he becomes conscious that society must impose restraint upon him and hence feels no resentment against all restraint, as does the untrained child. He does, however, feel resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others in their pursuit. Similarly he feels resentment if exemptions from restraint are allowed some others and not allowed him also. Furthermore, he is quick to note any discrimination against himself and prone to imagine it when in fact there is none. Almost as soon as the average child is placed with others under a common authority, as in a public school, he begins to complain of the teacher's partiality to other pupils. He will stay in no game where the rules operate unequally against him. He insists on an even chance with his fellow players. When later in life he engages in business he resents any favoritism shown by the government of his state or town to others in the same or a similar business. This feeling is especially noticeable in the matter of taxation. If one believes the taxes imposed by the government are unnecessarily heavy he may feel some resentment, but his resentment is much greater if he believes he is overtaxed in comparison with his fellows, that they are escaping their proportionate share of the burden, or that taxes are imposed on his products in order to favor the products of others, as when oleomargarine was taxed to handicap it in its competition with butter. This feeling of resentment at inequality of restraints and burdens imposed and exemptions granted is not ignoble, is not a feeling to be suppressed or even concealed. It is far different from the feeling of envy. If I can only afford to ride in a trolley car I may envy the man who can afford to ride in a luxurious motor car and yet not feel wronged. But if I am excluded from a public street car to which he is admitted I have a different feeling, that of resentment. I may be perfectly willing that all others, rich or poor, shall use the streets to the full extent that I do, but if it be proposed that my use shall be limited in order that some others may for their private purposes have more than an equal use with me, my feeling is not one of envy but of indignation. So I can appreciate that if I wilfully or through carelessness injure another I should make full compensation, and hence can cheerfully submit to the law compelling me to do so; but if the law undertakes to exempt any other person from a similar liability, I feel a keen sense of wrong. Conversely, the most strict disciplinarian, the martinet even, if otherwise competent receives ready obedience and respect if it is seen that he treats alike, according to their merits, all subject to his authority. This feeling is natural. Nature is impartial in the application of its laws. It allows no exemption. Its fires burn the weak as well as the strong, the child as well as the man, the poor as well as the rich. One star differs from another star in glory, but no one of all the millions of stars is exempt from any of the laws set by nature for stars. This feeling of right to impartiality of treatment had some faint expression in the Massachusetts "Body of Liberties" of 1641, in which it was declared that the liberties, etc., therein enumerated should be enjoyed "impartially" by all persons within the jurisdiction of the colony. It was more distinctly recognized in the Connecticut Declaration of 1818 and a part of the Connecticut Bill of Rights today, "That all men when they form a social compact are equal in rights and that no man or set of men are entitled to exclusive public emoluments or privileges from the community." Again it appears in the federal and some state constitutions in the provision against the granting of titles of nobility. It seems to be at least impliedly recognized in the XIVth amendment to the United States Constitution in the clause that no state "shall deny any person within its jurisdiction the equal protection of the laws," since "the equal protection of the laws" necessarily implies protection against unequal laws, laws favoring some at the expense of others or of the whole. If the state favors one more than another it does deny that other equal protection. I do not subscribe to the doctrine that "the greatest good of the greatest number" is to be sought. The only legitimate search is for the good of the whole number without discrimination for or against any one. This sentiment found expression in the once popular slogan, "Equal rights for all. Special privileges for none." I say once popular, for today it would seem not popular in practice. True, special privileges are still loudly denounced, but under the name of special exemptions, they are still demanded by those who denounce them most loudly. It is not inequality of natural powers of body or mind, nor inequality in natural conditions, that excites this feeling of resentment I have noted. The man of feeble natural powers may envy him of strong natural powers, but he can see that society, that law, is not responsible for that inequality. If one finds himself from lack of natural ability or adaptiveness unable to accomplish what others of superior ability or adaptiveness easily accomplish, and hence he fails to receive the prize they so easily win, he may feel great disappointment and regret, but if honest with himself will not attribute his failure to the injustice of society. It is not essential to the preservation of society and the race that such inequalities should be removed, that all men should be reduced to a dead level of capacity, that human nature should be ignored. It is strongly felt, however, that society should not itself create artificial inequalities, should not allow one man or set of men a liberty it will not allow to others, should not impose burdens on one man or set of men to be borne by them alone while others are exempt; or if it does undertake to do so it should be able to demonstrate that such artificial inequality is necessary for the safety of all. The intensity of this feeling against artificial inequalities is so great that men sometimes prefer equality before the law even to liberty. When the British ambassador said to Madam De Stael that Frenchmen had no more liberty after the Revolution than before, she answered that they had acquired equality before the law and they preferred that to more liberty. This sentiment was tersely and well expressed in the French Declaration of Rights of 1795. "Equality consists in this, that the law is the same for all whether it protects or punishes." Of course, no assertion of rights can be carried to the extent of the dictum, "Fiat Justitia ruat Respublica," for if the state fall, all hopes of justice fall with it. When the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise, some of its members must submit to the sacrifice of some or all of their rights. Nature will sacrifice individuals for the preservation of the race. Society must sometimes do the same. "Inter arma silent leges." But such times are exceptional and not within the scope of our inquiry. To sum up the matter, justice is the according to every one his right, and that right is such freedom of action in gratifying one's desires as can be exercised in harmony with like freedom by others. In other words, it is equal freedom, equal restraint. It is order and harmony. Plato and Aristotle were right in teaching that order is an essential element of justice. But who is to determine the matter? Who is to determine what degree of restraint or liberty is necessary to secure this order and harmony, this justice? Obviously it is society, or rather, individuals acting as a whole through society and not each individual acting for himself, that must determine such questions. Society has the responsibility. If it imposes too many restraints or imposes them unequally it excites, as said before, resentment and antagonism, sometimes to the extent of resistance. If it imposes no more restraints than are necessary and imposes them equally, order and harmony are secured. And when we have this equal freedom with equal and only necessary restraints we have order and harmony,--in other words, justice. Indeed, to repeat, justice in some of its aspects may be considered as the desired equilibrium between the needs of society and the interests of its individual members. I have left out of the account various virtues,--pity, sympathy, philanthropy, generosity and the like. Though these make social life more agreeable and contribute much to the sum of human happiness, they are not essential to the existence of the race or society. Society as an organization is not held together by these virtues, though many of its weaker members might suffer and perish if they were non-existent. Allow men as much freedom of thought and action as can be exercised without interference with like freedom of others, but restrain them from exercising any greater freedom, and they can and will live together in society though they may be wholly selfish in feeling and conduct. What is called the golden rule, that we should do to others as we would have them do to us, is a precept of philanthropy, of charity, not of justice. The rule enunciated by Confucius five hundred years before Christ, the rule that we should not do to others what we would not have them do to us, is sufficient for the existence of society. The French Convention of 1793 stated the proposition in these words: "Liberty is the power that belongs to man to do whatever is not injurious to the rights of others; it has nature for its principle, justice for its rule, law for its defense: its normal limit is the maxim, Do not to another that which you do not wish to be done to you." This order and harmony, however, are not easily secured. Not only are there honest differences of opinion as to what restraints are necessary and how and on whom they should be imposed, but society is divided into groups or classes with interests conflicting, or thought to be conflicting, and each seeking to impose restraints on others while retaining freedom for themselves. While professing to demand more liberty and equality, they are often really insisting on greater restraint and inequality. The successful insistence of the trades-unions of England in securing from Parliament a statute exempting their funds from answering in damages for injuries caused by them is a conspicuous instance. Another and equally glaring example is the effort in this country to exempt from the law against combinations in restraint of trade, combinations to increase the cost of living by increasing the prices of agricultural products and the prices to be paid for labor. The effort seems to be to compel men to compete in the use of their savings no matter how wasteful the competition, and to forbid men competing in the use of their labor, no matter what the idleness thereby caused. I think it a truism that whoever seeks to be exempted from the restrictions or liabilities he would impose on others, seeks not justice, but to do injustice. Another hindrance arises out of the very virtues of pity and sympathy. These impel many to endeavor, not to persuade, but to compel the more efficient and prudent who have by their farsightedness, courage, industry and thrift made good provision for themselves and their offspring, to provide also for the inefficient and the improvident. To be asked to give to these does not offend any sense of right, but if one be told he must give he feels resentful at once. He feels he has a right to decide for himself to whom and to what extent he shall give of his savings. Society did not come into existence nor does it now exist to correct the inequalities of nature, the inequalities of natural powers, nor to prevent the efficient and prudent receiving and enjoying the results of their efficiency and prudence. Nature itself makes no such effort. It rather tends to eliminate the less efficient and preserve the more efficient. Even if society may strive to preserve the inefficient and improvident, should it do so by hampering and restraining those wiser and more capable? We must expect nature to deal with society, with states and nations, as it does with individuals. If a state by its laws discourages the exercise to its full extent of the efficiency of the few and renders less severe the penalties for the inefficiency and imprudence of the many, it cannot long maintain any advantageous position among other nations. Whatever the precepts of religion, of philanthropy, or of other virtues may require, the precepts of justice do not require society to support men in idleness nor even to furnish them with employment. Neither do the precepts of justice require the state to furnish opportunities, nor even to establish equality of opportunity, but only equality of right to take advantage of opportunity. It is a saying, but not a fact, that opportunity knocks once at every man's door. Nature does not bring opportunities, much less equal opportunities, to men's doors. It requires men to go out and search for opportunities, or at least to be on the watch for them, as it requires men to search or watch for other things they desire; and he of the quickest perception and most farsighted will soonest see them, and when seen he does not feel any obligation to share them with others less vigilant or even less fortunate. Society does not support its members, they support it and must support it and themselves by their own exertions, find their own place, find employment for themselves, so far as the precepts of justice are concerned. However prevalent the sentiment that more than equality of right to use his opportunities is due to any one, it is not an instinctive sentiment. The contrary is the fact. Unless we are dominated by some other sentiment than justice, we instinctively yield assent to Aristotle's proposition that the prize flute should be awarded to the best flute player whether opulent or indigent, literate or illiterate, citizen or slave. A group of small children exploring the fields and woods for wild flowers will concede to each what flowers he finds whether by his better eyes or better luck. So with groups of small boys fishing in the streams and brooks. In games of cards for stakes, the players do not expect to hold cards of equal value and they concede the stakes to the winner, whether won by his greater skill or superior cards. Also there is an instinctive sentiment that the evil results of one's own conduct should be borne by him alone. If one suffers loss through his own misjudgment, incapacity, or want of care, then, whatever the precepts of other virtues may require, we do not feel that justice requires us to bear any part of that loss. On the contrary, we feel instinctively that he should bear the loss alone, that it is the natural penalty for his lack of judgment, capacity, or care. If my neighbor neglects to insure his house and loses it by fire, I see no reason why he should not bear the loss alone. In this connection, perhaps I should not omit to notice references often made to the rights of labor, the rights of capital, property rights, and personal rights, as if they were different in their nature and importance. I do not as yet see such difference. All rights are personal rights, and the right of each to control his labor, his savings, his person, and his property is the same. I am not yet convinced that the right of the laborer to make use of his labor is superior to that of the capitalist to make use of his capital; that, whatever his greater need, the right of one without property is superior to that of one who has property; that the right to get is superior to the right to save. It is also loudly proclaimed that "property rights" are of little importance compared with "human rights," unmindful of the truth that the right "of acquiring, possessing and defending property" is, as much as any other, a human right and, as such, necessary to be maintained if the race is to rise above its primitive condition of poverty. However, I do not see that the differences, if any, affect the general question of individual rights. The conclusion I arrive at is this: Society, and with it the race, cannot survive unless it restrains to some extent individual freedom of action, nor can any particular society long survive if it carry that restraint too far. It should, therefore, ascertain and maintain the line, the equilibrium, between necessary freedom and necessary restraint. It is only by such action of society that justice can be established and the welfare of the race be advanced. This brings us to the question of how and by what instrumentalities society can best perform this momentous task, the securing of justice. This will be considered in the next chapter. CHAPTER V JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST FORM OF GOVERNMENT In the present state of civilization society cannot act effectively for determining and maintaining the line, the equilibrium, between necessary freedom and necessary restraint, or in short, justice, except through some governmental organization with power to define and enforce. Appeals to altruistic sentiments will not suffice. This truth was recognized by the framers of our federal and many state constitutions, in naming first among the purposes of government the establishment of justice. Any government, however, or rather those entrusted with its administration, may through mistake or wilfulness do injustice to some of its subjects. It has often done so in the past and the future is not free from the danger. The very possession of power excites a desire to use it, and it is an admitted characteristic of our human nature that those vested with power, political or other, are prone to exercise it unduly, to abuse it. Men in authority are often said to be "drunk with power." Hence to ensure justice the governmental organization should be such that the limits of the various powers of the government be carefully defined and its administrators be kept within those limits. Some years ago I might have pointed to our own federal and state governments as the best in form and character for establishing justice and rested there. In later years, however, the superiority of our system is questioned, and radical changes are urged, and indeed some have been made, in the federal system and in that of some of the states. I feel, therefore, that I should make some defense of the system, believing as I do that in its general form and character it is best adapted to secure firmly as much individual liberty of action and equality of right as is consistent with the welfare of the whole number, or, in other words, best adapted to secure justice. It has become a familiar maxim that the functions and powers of government may all be grouped in three classes or departments, corresponding to the duties already named: (1) that of determining what rules and regulations should be observed, what restraints and duties should be imposed upon its subjects; (2) that of determining whether in a given case any of these rules, etc., have been violated; and (3) that of punishing their violation and otherwise enforcing their observance. These three groups have come to be called the three powers of government and to be designated as the legislative, judicial, and executive, though they are usually named in another order as the executive, legislative, and judicial. The most efficient form of government for good or evil, and the quickest to act, is undoubtedly that in which all of these powers are united in a single individual. If that individual were always strong, yet peace-loving, self-controlled, sagacious and exclusively devoted to the welfare of his subjects, that form of government would perhaps secure them justice most surely and speedily. Such men, however, are rare and such governments have been found to be invariably and almost inevitably arbitrary in their dealings with their subjects, and in the plenitude of their power to become oppressive. While they may effectually protect their subjects from foreign aggression and domestic anarchy, their tendency is to impose burdens and restrict individual liberty more than necessary, and to disregard the innate desire of men for liberty or at least for equality of restraint. This form of government has already largely disappeared and is further disappearing, though it may again be resorted to for the restoration of order, should the present forms of government fail to prevent violence and preserve the peace. But other forms of government have not been and are not yet wholly free from the same objectionable tendency. The vesting of all these governmental powers in a group or class of persons instead of one person has been followed by the same results. Aristocracies or oligarchies have the same tendency and even in a greater degree. They have proved even more selfish and tyrannical than the single ruler. They, like all crowds, are less sensitive in conscience, less moved by appeals to reason, than is the single individual. They offend more the sentiment of equality. The French Revolution was not so much against the king as against the nobility, who with their oppressive feudal exemptions had excited the resentment of the people at large. It was not till after he had cast in his lot with the emigrés that the king was deposed and guillotined. Nor have pure democracies, in the few instances where they have undertaken to exercise directly all the powers of government, showed less tendency to be arbitrary and inconsiderate of individual freedom and desires. The nearest approach to such a government was that of ancient Athens where the populace sent into exile, practically without trial, Aristides, called the Just, Miltiades, the victor of Marathon, and Themistocles, the victor of Salamis. The excesses of the Paris Commune of 1870 during its reign, the lynchings of today by mobs of so-called "respectable citizens" who assume the power to accuse, judge and execute all at once, indicate how much regard unrestrained democracies would have for the rights of their individual members. Nevertheless, despite the danger of more or less arbitrariness, of more or less oppression of the individual, any government must be made strong enough perfectly to maintain order and peace among its subjects. Order is earth's as well as heaven's first law. The goddess Themis in the early Greek mythology was the goddess of order as well as the supplier of _themistes_ or decisions. She was present as the spirit of order in the councils of gods and men. The government that cannot or will not maintain order and peace, prevent violence and fraud, enforce individual rights and redress individual wrongs completely and promptly, is so far a failure and whatever its form should be reformed or overthrown. Even military despotism is better than disorder. On the other hand, there must be taken into account the tendency, already mentioned, of the possessor of unlimited power over others to use it for his own benefit or pleasure at the expense of those subject to his control, where not restrained by affection or like virtues. Under all governments there has been more or less friction between the persons governing and those governed; more or less strife, sometimes culminating in rebellion and even revolution. If it be said that under a government by the people directly, a pure democracy, such as seems to be advocated at this day, there would be no distinction between governors and governed, that all would be governors and governed alike, the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people, a majority it may be, but still only a part. This part are the governors. The other part, perhaps nearly as numerous, are governed. Friction and even factious strife would still exist. Indeed, a government by a pure democracy ruling directly would probably be more arbitrary than any other, as was the case in Athens. The government by one, or that by a few, would be restrained to some extent by public opinion, would refrain from extreme measures lest they excite effectual resistance, but a majority would feel no such restraint. It would itself constitute public opinion and it would be less likely to fear resistance. It is evident, therefore, that the frame of government should be such as to secure uniformity in its action so that it shall not act arbitrarily and unequally on its subjects. I assume that no sane man would desire to live under any government where the wielders of the governmental power, one or many, are entirely without legal restraint. We all desire normally, not only order and peace, but also personal liberty and equality of rights. The problem, then, is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively, but not left able to oppress us or any of us. As said by Alexander Hamilton, we "must first enable the government to control the governed, and in the next place oblige it to control itself." One great step toward such a form of government was made in the establishment of our federal and state governments by giving effect to the theory of the tripartite nature of governmental powers, entrusting each of the three to a different person or group of persons, or, in other words, to a different department, each restraining the other departments from exceeding their defined powers, so that the government, however democratic, shall not run wild. At this day, however, even this feature of our form of government is assailed as hampering the people and their government and greatly delaying desired reforms. It may be admitted that a government with its powers thus separated in different departments is not able to act as quickly as desired by zealous persons confident of the excellence of their schemes and impatient for their realization, but, on the other hand, it is less liable to act too hastily, less liable to act arbitrarily, or to disregard individual rights and interests. The idea of a division of governmental powers is not of recent origin. Aristotle argued that the judges should have no other political power, should not themselves enforce their decisions. In Rome under the Republic there was divided between the pretor and the judex the power to decide controversies. The pretor had other duties, but the judex was confined to the single duty to hear and determine. The framers of our Federal Constitution and of our early state constitutions did not act hastily nor unadvisedly. As heretofore stated, the long controversy with Great Britain over the relations between that country and her Colonies, the arbitrary acts of the British King and Parliament, caused in the Colonies a profound study of the nature of government: what should be its purposes and how best to effect its purposes and avoid its abuses. The principal men among them in each Colony were familiar with the history of governments and with the theories of government advanced by European lawyers and political philosophers. They were acquainted with the arguments of Montesquieu and others that a separation of the powers of government and the vesting of each, the executive, legislative, and judicial, in different hands was essential to liberty. They did not merely theorize, however. They had themselves lived and labored under governments not thus divided in functions or only partially so. Colonial governors had assumed legislative functions in the promulgation of ordinances, and also judicial functions as judges of probate and in other ways. The colonial legislatures did not hesitate to dictate to the courts in particular cases and often acted as a court of appeal. In Massachusetts Bay the legislature came to be known as the General Court and exercised judicial power freely, sometimes calling in the judges to sit with them. The same individual could at one and the same time fill an executive and a legislative or judicial office. In colonial Massachusetts William Stoughton held the offices of military commander, lieutenant governor, and chief justice at the same time. Because of the frequent and prolonged absences of the titular governor he was often the acting governor. As an inevitable consequence, when sitting as a judge he was more a zealous prosecutor than an impartial judge. His conduct in the witchcraft trials was comparable to that of Jeffreys in the infamous "Bloody Assizes." Hutchinson was also often acting governor while holding his commission as chief justice. In view of their experience and deep study, the opinions formed by the framers of the early constitutions of this country should be of great weight in forming our own. It is worth while to cite the opinions of some. Thomas Jefferson was not in his day, nor has he been since, regarded as opposed to popular government. Virginia had as early as 1776 declared in its first constitution that the three great departments should be kept separate. Jefferson, who besides his other opportunities of observing the operation of government was himself chief magistrate of the state, criticized that constitution as not making such separation effectual. In his "Notes on Virginia" he wrote of it: "All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason the convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise more than one of them at the same time. But no barrier was provided between these several powers." It was this defect, this lack of barriers, that Jefferson lamented. When the draft of the Federal Constitution of 1787 was submitted to the states, one of the principal objections urged against it was that in its structure sufficient regard was not paid to keeping the three departments of government separate and distinct. In reference to this objection Madison wrote in the "Federalist": "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which this objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution therefore really chargeable with this accumulation of powers, or with a mixture of powers having a dangerous tendency to such an accumulation, no further argument would be necessary to inspire a universal reprobation of the system." He elsewhere declared the maxim to be a "fundamental article of liberty." Hamilton was apprehensive of danger to liberty from the legislative department and favored a strong executive to guard against it. He declared in the "Federalist" that the legislative department was "everywhere extending the sphere of its activity and drawing all power into its impetuous vortex,"--that the people "never seem to have recollected the danger from legislative usurpation which by assembling all power in the same hands must lead to the same tyranny as is threatened by executive usurpation." Washington in his Farewell Address, after much experience with, and observation of, legislative action, said: "The necessity of reciprocal checks in the exercise of political power by dividing and distributing it in different depositaries and constituting each the guardian of the public weal against invasions by the others has been evinced by experiments ancient and modern, some of them in our own country and under our own eyes. To preserve them must be as necessary as to institute them." After having lived for generations under governments in which there was no effective division of powers, the people of the various colonies in setting up their own governments at the time of the Revolution very generally declared for such division, in more or less explicit terms. Even in the few cases where the division was not expressly made, it was implied in the constitution. The provision in the constitution of Massachusetts adopted in 1780 may be cited as an example of the strength of the conviction. "In the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them." To this provision were appended, as the reason for it, the memorable words, "To the end that it may be a government of laws and not of men." From 1776 to the present century as new states were formed their people in most instances have adopted similar provisions. Perhaps the people of Maine when they separated from Massachusetts in 1820 adopted the most stringent provision by prohibiting not only the departments but all the persons in either department from exercising any of the powers properly belonging to either of the other departments. Of course some exceptions to the rule are necessary and these are usually named in the constitution itself. Again the dividing line between the powers cannot always be precisely defined and, further, each department in the performance of its own proper functions may sometimes be obliged to exercise a power strictly pertaining to another department. All that the maxim requires is that the three powers should be kept as distinct and separate as possible and have the government still go on. It is true we should not fear to question the wisdom of our fathers, but conclusions they have arrived at in matters of government after long study, observation, and actual experience should not be disregarded unless their error can be clearly demonstrated. CHAPTER VI THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE GOVERNMENT. BILLS OF RIGHTS It should be evident that the division and distribution of governmental powers among different depositaries will not alone prevent encroachments by the governing power upon the liberty of the subject. The executive department in performing only executive functions can, in the absence of other checks, act oppressively. The legislative department, especially, without exceeding the legislative function, can in many ways and in excessive degrees oppress the individual by unnecessary restrictions of personal liberty, by unnecessary exactions, by arbitrary discriminations. The theory of representative government is that the legislature will be a body of men who will regard themselves as entrusted with important powers to be exercised deliberately and wisely for the welfare of the whole commonwealth and not for any one or more classes or interests,--who will regard themselves not as mere delegates or proxies, but as representatives, like the directors of a corporation, to form and act upon their own judgment after investigation and reflection. Experience has shown, however, that members of the legislature do not always nor generally act upon that theory. They seem to be inoculated with the bacillus of irrepressible activity, the desire continually to be proposing new laws, new restrictions, new exactions. If the laws enacted prove difficult of enforcement by reason of their interference with what individuals feel to be their rights, then new and oppressive methods of enforcement are devised, still further restricting liberty and equality. I have seen it stated that in the first ten days of the session of the Massachusetts legislature this present year over a thousand laws were proposed. Further, the members of the legislature are beset by constituents and others to favor legislative measures for their own special benefit, or that of their association, or of their locality. One result is that during every legislative session the ordinary citizen is dreading oppressive legislation and feels relieved when the session is over. When we consider the wide, almost unlimited range of the legislative function, and the power and tendency of legislatures to push that function to the extreme, it would seem that some check should be put upon the legislature to prevent its enacting discriminatory laws or otherwise depriving the individual of some accustomed and cherished freedom of action. If it be said that public opinion is sufficient restraint, the answer is that in a democracy, or in a republic with universal suffrage, the efficient public opinion is practically that of the majority of the electorate, and it is an acknowledged truism that the unrestrained majority is even more likely than the few to be oppressive of the individual. The opinion of the many is more variable than that of the few, more likely to be swayed by sympathy, prejudice, and other emotions. Indeed, public opinion sometimes induces legislatures to enact laws which they themselves feel to be unwise and tyrannical. If history and reason show that the happiness of the people as a whole requires certain individual liberties and rights to be left undisturbed and that the safety of the people as a whole does not require the contrary, then in order to secure justice those possessing the powers of government should be restrained from any acts infringing those liberties and rights; for, as already stated, justice consists in the equilibrium between restrictions necessary for the welfare of the whole people without discrimination, and the freedom of the individual to serve his own welfare. I think there are such liberties and rights. The subjects of King John in the 13th century thought so and compelled the king to guarantee by the Magna Charta that certain specified rights and liberties should not be infringed. Again, the subjects of Charles I in the 17th century had a similar conviction and expressed it in the Petition of Right, which named some liberties and rights not to be infringed. The king assented to that much limitation of the royal power. In the same century, upon the accession of William and Mary, a Bill of Rights was framed and enacted into law by King and Parliament, naming liberties and rights of the subject which ought not to be abridged. Succeeding Kings and Parliaments seem to have respected the provisions of this Bill of Rights in their legislation for British subjects. Had they conceded the claim of the people of the American Colonies that they also were protected by its provisions, the course of our political history might have been different. As it was, however, the British government practically held that neither Magna Charta, the Petition of Right, nor the Bill of Rights restrained it in its dealings with the Colonies, and this in despite of the protests of some of its most eminent statesmen. The resolutions of the various Colonial legislatures and the formal Declaration of Independence recite many grievous instances of arbitrary action by the government in disregard of the doctrines of those charters. So bitter was their experience that, when the people of the various Colonies came to frame constitutions for "a government of the people, by the people, and for the people" independent of the British crown and all other external authority, they very generally insisted that even such a government should have its powers defined and limited, that some rights of the individual should be specified which the government should not infringe nor have the lawful power to infringe. From their own experience the people were convinced that such definitions and limitations were necessary for the security of the individual even under a popular government. The first step of the representatives of the people of Virginia toward a declaration of independence of the British crown, and the setting up an independent government, was the adoption of a declaration of rights in the individual which no government should infringe. This was adopted and promulgated sometime before the constitution proper was framed. The statement was declared to be necessary in order that the government might be "effectually secured against maladministration." Similar limitations upon the powers of the government were imposed in the early constitutions of Massachusetts, New Hampshire, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina; also in the first constitution of Connecticut in 1818, and in the first constitution of Rhode Island in 1842. The people of New Jersey in 1844 made the limitations more definite, and the people of Maryland imposed additional limitations in 1864. The people of New York did not in their first constitution of 1777 expressly in terms guarantee individual rights, but they impliedly did so by making the Declaration of Independence the preamble, and in their constitution of 1821 they incorporated an explicit statement of individual rights not to be infringed. The example of the original states in this respect has been followed by most of the subsequent states of the Union. In 1778 a convention chosen to draft a constitution for Massachusetts submitted a draft to the people, who rejected it by a large majority mainly because it did not contain a "Bill of Rights." To quote from Harry A. Cushing, a writer on the History of Commonwealth Government in Massachusetts, "No demand was more general than that for a Bill of Rights which should embody the best results of experience." In 1780 a second convention submitted another draft of a constitution containing the famous Massachusetts Declaration of Rights, and this the people adopted by a majority of more than two to one. The only objection urged against the Declaration of Rights was that it did not go far enough. In the convention that drafted the Federal Constitution it was strongly urged that a Bill of Rights should be incorporated in the draft, but it was deemed, by the majority at least, unnecessary and even dangerous to make a specific declaration of individual rights, inasmuch as the federal government contemplated was in its very nature limited to such powers as were expressly, or by necessary implication, conferred by the Constitution, and hence to specify certain things the government should not do might be construed as permitting it to do anything not so specified. This argument prevailed and the draft submitted to the states contained no Bill of Rights. Immediately, however, a storm of objections was raised against it because of the omission. Despite the arguments of Hamilton and Madison that a Bill of Rights was unnecessary, ratification was finally obtained only by a general assurance and understanding that a sufficient Bill of Rights should be added immediately upon the organization of the new government. The necessary amendments, therefore, were submitted at the first session of the new Congress and were unanimously adopted by the states. Other limitations have since been imposed, notably those in the XIVth amendment, assuring to every citizen equal consideration in legislation by the states. By the Federal Constitution as it now stands the citizen, in time of peace at least, is guaranteed, among other matters, the protection of the writ of habeas corpus; freedom from bills of attainder and ex post facto legislation; freedom of religious belief and worship; freedom of thought and its expression; freedom peacefully to assemble with others and petition for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to have assistance of counsel; that he shall not be deprived of life, liberty, or property without due process of law; that his private property shall not be taken from him even for public use without just compensation; that the obligations accruing to him under lawful contracts shall not be impaired; that he shall not be denied the equal protection of the laws. The guarantees in the state constitutions are generally of the same nature. It is difficult to see how any of these guaranties, or such other guaranties as may be contained in the federal and state constitutions, prevent legislative or executive action necessary for the welfare of the people generally. There is certainly an ample field for such action without overstepping these boundaries. Nevertheless, it is today urged by some impulsive persons, eager to impose their theories on the people at once, that all or many of these limitations upon the powers of government should be removed or disregarded and the majority of the people allowed unrestricted sway in all matters of governmental action. Others who do not go so far, yet urge that the majority should be free to suspend these guaranties temporarily or in some particular classes of cases. Against this opinion I submit that after so many centuries of experience of the tendency of all governments to enlarge their powers over the subject, and of struggles to limit the powers of government over private rights and to protect the individual from governmental oppression, the burden of evidence and of argument is heavily on those who would now advocate unlimited powers even for the most democratic government. A government directly by the people is of course in practice a government by a shifting and often narrow majority of the people. It is not yet demonstrated by experience or reason that such a government, unlimited, would be as regardful of individual rights or welfare as a republican form of government with its checks and balances and constitutional restrictions. The excesses of the unlimited democracies of ancient Greece and of the unrestrained democracy of France during and after the revolution of 1789 and the lynchings in this country do not contribute to such demonstration. It is not those who defend our present form of government with its constitutional guaranties, who resist political action tending to weaken them, that should be called unprogressive, undemocratic, or wanting in love of country. Those of our ancestors, English and American, who fought for these guaranties, who obtained them only after years of strife, who incorporated them in our federal and state constitutions and safeguarded them against the varying impulses of the populace, were not unpatriotic nor unmindful of the welfare of the people,--were not indifferent to human liberties or human rights. Neither are they such who today strive to preserve those guaranties won at such expense of blood and treasure. On the contrary, it is those who would override these guaranties and revert to the old days of unlimited governmental power, that are the reactionaries. It may be admitted that some of these limitations if enforced do now and then impede and even prevent some governmental action desired by some group or section of the people, but while action in violation of these limitations might benefit its sponsors it would necessarily be at the expense of others. Those who seek such legislation against others would quickly appeal to these limitations if legislation were directed against themselves. The noisiest declaimers against these guaranties fall back for protection upon the constitutional guaranty of freedom of speech. So long as these barriers are maintained every individual, no matter how poor and feeble, will be, theoretically at least, secure in some rights against the attacks of the many. Without such barriers every individual is at the mercy of an inconstant majority. Without such barriers justice cannot be said to be secured. Lord Treasurer Burleigh of Queen Elizabeth's time declared that England could never be ruined by its kings, but only by its Parliament. If the safeguards of the federal and state constitutions are maintained, neither Congress nor the state legislatures can ruin America. If the American people should ever consent to the removal of these safeguards they would give evidence of their want of self-restraint, of their unwillingness and even incapacity to govern themselves, and would pave the way for the man on horseback as the French Revolution paved the way for Napoleon. To deprive a single one of his rightful liberty is to endanger the liberties of all. CHAPTER VII THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY Under our federal and state form of government the question naturally arises where should be lodged the power to determine whether in a given instance either department has encroached on the proper field of any other department, and whether either department has encroached on the constitutional rights of the individual citizen. It should be evident that neither the executive nor the legislative department is a fit depositary of such power. Both these, from the nature of their powers, are aggressive. They act of their own volition. They initiate proceedings and measures to carry out policies. In their activities they are apt, consciously or unconsciously, to overstep the boundary lines between the departments and also the limits set for the protection of the citizen against such activities. Again, questions may and often do arise between the government and the individual citizen that are not political questions, but are questions of private right, the right of the individual against the government. The disputants are the individual citizen or group of citizens on the one hand, and the government on the other whether that government be a monarchy, a republican or representative government, or a pure democracy. In such case it would seem clear that one party should not have the power to decide the question. It is an axiom that neither party to a controversy should be the judge in the matter. The legislature that enacts a statute claimed by a citizen to be beyond its powers and to deprive him of some right guaranteed to him by the constitution, should not be the judge of the question any more than should the complaining citizen. So the executive should not be the judge where a citizen claims it has exceeded its powers to the detriment of his constitutional or statutory rights. Even if a statute be enacted or ratified by the people directly, under the modern initiative and referendum, and a citizen claims that the statute deprives him of some right guaranteed by the constitution, the people should not be the judge; much less should a majority. If the individual is left to be the judge of his constitutional or legal right as against the government, the result would be anarchy. If the government, even the most popular government, is to be the judge, the result would often be tyranny. There would be occasions, as there have been, when an excited people or majority would tyrannize over the individual, indeed over the minority. To secure alike the people against anarchy and the individual against tyranny, power must be vested in some impartial, independent arbiter to determine authoritatively and finally the relative rights and duties of each under the constitution. The proper department to be made the depositary of this important power would seem to be the judicial. That department does not initiate, has no policies, does not act of its own volition, but acts only when its action is regularly invoked in some controversy and then only to end that controversy. It may seem unnecessary even to state, much less defend, the proposition, but as its logical result is that the judiciary when invoked by the individual must refuse effect, so far as he is concerned, to a legislative act which deprives him of some right guaranteed by the constitution, and must thus disappoint those who procured the passage of the act, the proposition has been, is still being, denied. The action of the courts in exercising that power has been and is even now denounced as usurpation. Though the proposition is now long established, these attacks justify some repetition of the argument in its support. The logic of Chief Justice Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems to me irresistible and worthy of frequent quotation despite the attacks upon it. The Chief Justice said: "This original and supreme will (of a people) organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.... The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, either that the Constitution controls any legislative act repugnant to it, or that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void." In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted in an able, elaborate, and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the Federal Constitution, it was bound to give it effect if repugnant only to the state constitution. He frankly admitted the logical conclusion that in such case the only remedy the citizen had to enforce his constitutional rights was that of revolution. When, however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had changed his opinion on that question, partly "from experience of the necessity of the case." In the later case, _De Chastellux_ v. _Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of the power and duty of the court to refuse effect to a state statute in conflict with the state constitution. In delivering the opinion of the court he used this vigorous language: "It is idle to say the authority of each branch (of the government) is defined and limited in the constitution, if there be not an independent power able and willing to enforce the limitations.... From its very position it is apparent that the conservative power is lodged with the judiciary, which in the exercise of its undoubted right is bound to meet every emergency." The results of the contrary doctrine are well stated by the same court in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in conflict with the constitution be passed by the legislature, approved by the governor and sustained by the court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner whether the structure built to shelter him be blown up by dynamite, or the foundation be pried out stone by stone with a crowbar. In either case he is houseless." One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconstitutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. In France and other countries of continental Europe questions of the existence and extent of the authority of an official in his action against individuals are triable, at least at the pleasure of the executive, only in administrative tribunals, that is, courts pertaining to the executive department and instituted to assist that department in the performance of its functions. The aggrieved individual can only apply to the superiors of the official complained of. Such tribunals naturally incline to uphold the authority claimed, and indeed can lawfully allow the plea that the act complained of was ordered in pursuance of some executive policy. A recent instance is that unhappy affair at Zabern in Alsace where an army officer in time of peace wantonly struck and wounded a peaceful crippled citizen with his sabre. The victim could only appeal to the officer's military superiors, who acquitted the offender on the ground that the dignity of the military must be protected. In the United Kingdom, while at present, as for centuries, the individual can appeal to the judicial courts against officials acting under any executive or legislative orders, Parliament, and even a majority of the House of Commons, can at any time deprive him of that right. In this country the executive and legislative departments combined have no such power. So long as our present system is maintained, questions between government officials and individuals must remain cognizable by the judicial courts where the private citizen is on a par with the highest official, and the single individual is on a par with the government itself. In contrast to the Zabern affair we may note that the striking copper miners of Michigan were not obliged to apply to higher military officials for redress of wrongs claimed to have been inflicted upon them by the military. They were free to apply, and did apply, to tribunals outside of and independent of the executive. They and such as they should be the most unwilling to degrade the courts or lessen their power. A similar instance is that of the striking miners in Colorado who so loudly complained of the acts of the militia. They were not obliged to appeal to military or executive officers for redress. The Judicial Courts were as open to them as to any others and there they would be upon an equality with the officials. CHAPTER VIII AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE For the judiciary to be in fact, as well as in theory, the protector of the constitutional rights of the individual against the government, and of the legal rights of the individual against the aggressions of others, it should be made so far as possible free, impartial and independent. The judges should have such security of tenure, and such security and liberality of maintenance, that they will have no occasion nor disposition to court the favor, or fear the disfavor, of any individual or class however powerful or numerous, not even the government itself. They should be made free to consider only what is the truth as to the existing law or fact in question, uninfluenced by any suggestions of what is demanded by prince, people, or individual, or by any suggestion of consequent good or evil to themselves. This proposition to my mind is so self-evident that quotations from eminent philosophers cannot strengthen it. The necessity of some independent tribunal between the governors and the governed was recognized in republican Rome, where it was provided that the persons of the tribunes should be inviolate, an immunity not granted to any other officials. The medieval cities of Italy frequently selected their judges from some other city that they might be free from any connection with different local factions or interests. When, however, the empire supplanted the republic in Rome, and the free cities of Italy were made subject to despotic domination, the independence of these tribunals was lost. History shows that those possessing the governmental power have always been unwilling to maintain an independent judiciary. The only countries today possessing a judiciary with any considerable degree of independence are the United Kingdom and some of its "Dominions beyond the seas" and our own country. The need of it was seen in the experience of the people of England and of the English Colonies in America under a judiciary liable to be deprived of office or salary if its opinions were displeasing to the crown. Charles I assented to the Petition of Right and promised to observe it, but no provision was made for any tribunal independent of the king to determine whether his acts were in violation of any article of the Petition. Consequently, when afterward in the matter of the tonnage and poundage tax Parliament remonstrated against the imposition of the tax as a violation of the royal promise in assenting to the Petition of Right, the king abruptly ended the session and in his speech of prorogation denied the right of Parliament to interpret the Petition and asserted that it was for him alone to determine "the true intent thereof." Again, the legality of the imposition by the king of the "ship money" tax without the consent of Parliament was hopelessly questioned. The king procured from the judges an opinion that he could lawfully impose such a tax without awaiting the assent of Parliament, when necessary for the defense of the kingdom, and that he was the judge of the necessity and proper amount of the tax. But this was not the opinion of an independent judiciary. The judges at that time could be promoted, removed, or "recalled" at any time at the king's sole pleasure, and they well knew the king's obstinate insistence in the matter. Their opinion simply gave expression to the king's will, and hence inspired no respect. Finally, for want of an independent tribunal empowered to determine authoritatively between king and subject "the true intent" of the Petition of Right, the legal extent and limitation of the royal power, the lawfulness of its exercise upon the subject in a given case, the issues between them had to be submitted to the arbitrament of civil war, with the result that the monarchical system of government was overthrown. Its successor, an unchecked parliament, was no less arbitrary in many of its acts, and was in turn overthrown and the monarchy restored. The restored dynasty, however, obeying the impulse of all possessors of governmental powers, soon began again to claim and exercise autocratic power, to encroach upon the rights and liberties thought to have been secured to the subject by the royal assent to the Petition of Right and vindicated by successful resistance, and also to suspend the operation of the laws at his pleasure. Unfortunately again there was as yet no impartial, independent tribunal in England to determine authoritatively the line between the royal power and the specified rights of the subject. The judges were still removable at the king's sole pleasure. James II did not hesitate to use this power to obtain such opinions and decisions as he desired. Preparatory to the trial of the Quo Warranto case against the City of London to procure the forfeiture of its charter, the king removed Chief Justice Pemberton and appointed in his place the servile Saunders who had drawn the writ in the case and had conducted all the proceedings in behalf of the crown as its counsel to the stage where the case was ready for argument in the Court of King's Bench. The case of the city was thereby made hopeless and the city itself helpless. In the case of the "Seven Bishops," prosecuted for libel in presenting to the king a petition for him to recall his order for the reading in the churches his Declaration of Indulgence, he seems to have felt tolerably sure of the court as it was already constituted. Two able and learned justices, however, Holloway and Powell, ventured the opinion that the petition was not libelous. They were both promptly "recalled." Again force had to be used to free the subject and maintain his "rights and liberties" against the sovereign. James II was driven from the country and William of Orange called to the throne. This time the people in settling the new government through parliamentary action went farther than before in the way of restraint upon the government and took the necessary step to secure their rights and liberties. In a new instrument, this time called a Declaration instead of a Petition, they reiterated the rights of the subject as twice before they had been formally asserted in the Magna Charta and the Petition of Right. This instrument, known as the Declaration of Rights of 1688, was presented to William and Mary, who solemnly engaged to observe and maintain its provisions. Further still (and this was the new and effective guaranty of the subject's rights), in the Act for the settlement of the crown it was enacted by king, lords, and commons that thereafter the judicial tenure of the judges of the courts should be during good behavior. Since that time for more than two centuries "the true intent" of the laws has been determined, not by king or parliament or people, but by a judiciary made strong and independent. There has been no need to resort to force to defend the legal rights of the subject. But this security for individual rights and liberties was not extended to British subjects in America. After the Colonies had so increased in population and wealth that they were deemed worth exploitation, the government, among other means of controlling them, took over the appointment of their judges, in many instances with a tenure during the government's pleasure only. In the circular letter of Massachusetts Bay Colony to the other Colonies in 1768 they are asked to consider whether for the judges of the land not to hold their commissions during good behavior and to have their salaries appointed for them by the crown did not have a tendency to "endanger the happiness and security of the subjects." One of the counts in the indictment of July 4, 1776, against the king's government was that it had made the colonial judges dependent on the king's will alone for the tenure of their offices and the amount and payment of their salaries. As a consequence of this experience with a judiciary dependent on the governing power for the tenure and maintenance of its judges, the Colonies when they set up independent governments of their own provided a fixed tenure for their judges in every instance but one. Connecticut in its first constitution made the tenure during good behavior, as did Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, South Carolina, and Virginia. Pennsylvania at first fixed the tenure at seven years, but in 1790 changed it to good behavior. The same tenure was fixed for the federal judges in the Federal Constitution. In some instances also, further provision was made for the independence of the judges by forbidding the diminishing of their salaries during their term of office. The people of Massachusetts, which had been the most harried of the Colonies, declared emphatically the necessity for an independent judiciary. Article XXIX of the Massachusetts Declaration of Rights adopted in 1780 is as follows: "It is essential to the preservation of every individual, his life, liberty and property and character that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy but for the security of the rights of the people and of every citizen that the judges of the supreme judicial court should hold their offices so long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws." New Hampshire, with a similar experience, adopted the same language in Art. XXXV of her Bill of Rights. The Maryland Declaration of Rights of 1776 contains this article: "Art. XXX. That the independency and uprightness of the judges are essential to the impartial administration of justice and a great security to the rights and liberties of the people; wherefore the chancellor and judges ought to hold commissions during good behavior." It is true that in most of the states the official tenure of the judges has since been reduced to a more or less brief term of years. This fact is only another instance of the tendency of the governing power to lower if not remove all barriers set up against it for the protection of the individual. Majorities as well as absolute kings like their own way. The change where made may have given majorities greater freedom to enforce their will upon individuals, but it has not increased confidence in the integrity of the judges nor made them more firm to ascertain and declare only the truth. It is true also that in most states now the people have taken to themselves directly the task of selecting men suitable for judges instead of entrusting that important duty to the governor or legislature, as was the practice in the early days of the republic. I cannot think this has tended to secure better judges, though it may have secured judges more subservient to majorities. Effectually to guard the constitutional and legal rights of all alike, the judges should possess what is called the legal mind and the judicial temperament. They should be able and learned that they may appreciate the real meaning, purpose, and scope of the constitution and statutes; calm and equable in temperament that they may not be influenced by sympathy, prejudice, or other emotions; strong and courageous in character that they may resist all pressure other than fair argument. To find the men possessing these qualities requires extensive and protracted inquiry and patient consideration, such as are not and cannot be exercised by the people directly. The task should be deputed in the first instance to the head of the state, the chief executive. He has the best means of ascertaining who possesses the requisite qualifications in the greatest degree. He would feel that he alone was responsible for a proper selection, and that feeling of responsibility would tend to make him deliberate and painstaking in his choice. On the other hand, if the original selection be entrusted to the legislature or left with the people acting directly, individual members would have a much lower sense of personal responsibility and the individual members of the electorate scarcely any at all. True, in those states where the judges are elected by the people directly, excellent judges are often and perhaps ordinarily chosen, but I think I state a truth in stating that upon the whole those courts composed of judges with a long tenure and appointed by the executive stand higher in public estimation and their opinions have greater weight. Such courts are certainly a greater protection to those guilty of no wrong, but who have been so unfortunate as to incur the displeasure of an excited community. Nevertheless, despite the lessons of history and the reasons contra, it is proposed in this twentieth century that the tenure of the judges shall again be during pleasure only,--this time during the pleasure of the majority of the electorate. The proposition is not stated so baldly by its proposers. They phrase it as the right of the people to remove or recall unsatisfactory public servants, whether judges, or governors, or other officials. They propose that at the request of a certain small percentage of the electorate, setting forth their dissatisfaction with a judge, he may be removed by a majority of the voters. As precedents for their proposal they point triumphantly to the provision of the British Act of Settlement that judges should be removable by the crown upon the request of both Houses of Parliament, and to similar provisions in many of our state constitutions. Of course, there should be lodged somewhere the power to remove judges proven to be unworthy of their high office, or incapable of performing its high duties, but it should be lodged in a body of men before whom the accused judge can appear in person or by counsel, hear the complaints and face the witnesses against him, and adduce evidence and argument in reply,--and who can on their part see the witnesses and hear the arguments before deciding. That was the opinion of the British Parliament in the few cases presented to them, and the state legislatures in this country have generally entertained the same opinion. It was also held by Parliament that the address for removal should state the reasons therefor. In 1855 Governor Gardner of Massachusetts declined to remove a judge of probate on address by the legislature because no sufficient grounds were stated in the address. He said that in every instance then on record full reasons for removal had accompanied the address. The constitutional provision for removal by address evidently was not designed to lessen the impartiality and independence of the judge by subjecting him to removal at the mere will of the executive and legislature, but that he might be removed for corruption, neglect of duty, incapacity, immorality, or other disgraceful conduct, after notice, hearing, and deliberation. For the executive and legislature, or even the majority of the people, to remove a judge because they do not like his opinions as to what the constitution requires or forbids them to do, would destroy the independence of the judges and thus deprive the citizen of all security for his rights and liberties under the constitution,--would be despotism. The principal argument for lessening the independence of the judges and making them more subservient to the inconstant majority seems to be that otherwise the judges will misuse their power and impede the operation of statutes they do not themselves approve of. The argument has little or no foundation in fact. Perhaps among the hundreds, if not thousands, of cases of holding a statute unconstitutional a few may seem to have been so decided because the judges thought them unwise and oppressive. Some expressions in judicial opinions have been unfortunate in that respect, but the courts everywhere in this country, now if not at first, disclaim any such power. The same Chief Justice Marshall, who had so convincingly stated the duty of the judiciary to refuse effect to unconstitutional statutes, later in _McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts all pretensions to any power to inquire into the necessity of any statute, or in any way to interfere with the discretion of the legislature. In strong and explicit language other courts have disclaimed such pretensions. The Minnesota court in _State_ v. _Corbett_, 57 _Minn._ 345, held that courts were not at liberty to declare a statute unconstitutional because it is thought by them to be unjust or oppressive, or to violate some natural, social, or political right of the citizen, unless it can be shown that such injustice is prohibited, or such rights protected, by the constitution. The Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this language: "Much of the argument and nearly all the specific objections advanced are to the wisdom and propriety and to the justice of the statute and the motives supposed to have inspired its passage. With these we have nothing to do. They are beyond our province and are considerations to be adduced solely to the legislature." The court of West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the judges are convinced that a statute is contrary to natural right, absolute justice, or sound morality does not authorize them to refuse it effect." The court of Washington in _Fishing Co._ v. _George_, 28 _Wash._ 200, held that "a statute cannot be ignored by the courts because leading in its application to absurd, incongruous, or mischievous results." A few cases may also be cited showing how relentlessly this disclaimer is applied. The court of New York in _Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the courts had no power to inquire into the motives inducing legislation and could not impute to the legislature any other than public motives. The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._ 278, had urged upon it the argument that the statute in question had been "passed in fraud of the rights of the people." The court held that, if true, that fact would not authorize it to refuse it effect. The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked to declare a statute ineffective because its enactment was procured by bribing members of the legislature. The court held it could not do so. The Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it a statute authorizing the licensing of bawdy houses and was urged to declare it unconstitutional because against public policy and destructive of good morals. The court held it had no such power. The Justices of the Maine Supreme Court in an opinion reported in 103 _Maine_ 508 stated the principle as follows: "It is for the legislature to determine from time to time the occasion and what laws are necessary or expedient for the defense and benefit of the people; and however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws are to be held valid unless there can be pointed out some provision in the State or United States Constitution which clearly prohibits them." Further, it is a maxim of the judiciary, from the beginning and now, that no statute should be refused effect unless clearly contrary to some provision of the constitution,--unless the conflict is evident beyond a reasonable doubt. This is a maxim, a canon of interpretation, that courts always have in mind and apply in considering the question of the constitutionality of a statute. Thus scrupulous are the courts to keep within their proper sphere, to respect the limits of their powers. If the legislatures would be equally scrupulous, would themselves refrain from infringing on those rights and liberties of the citizen guaranteed by the constitution, there would be less restriction, less friction, less turmoil, less need of the judicial check, less injustice. But the complaints against the courts are not all because of their holding statutes unconstitutional. Many have felt that courts sometimes erred in having too much respect for the legislative power and because of that respect have allowed constitutional rights and liberties to be sacrificed at the behest of majorities and often at the behest of active, interested minorities more insistent than the inert majority. The decision of the United States Supreme Court in the _Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men as Webster, Kent, Story, and others as breaking down the safeguards of the constitution. The decision in the _Slaughter House_ cases was regarded by many able jurists as ignoring that provision of the XIVth amendment to the Federal Constitution forbidding any denial to any one of the equal protection of the laws. The _Elevator_ cases, holding that elevators were public utilities and therefore subject to public control as to charges for service, though the owners had no special franchise, no part of public power, are even now thought to have made a wide breach in the constitutional barriers against the invasion of private rights. The decision in the _Chinese Deportation_ cases, 149 U. S. 698, shocked the sense of justice of many. It was to the effect that Congress could empower the executive to arrest upon its own warrant any person it claimed to be an alien unlawfully residing in the United States and to deport him without trial, unless he could affirmatively prove to the satisfaction of a single judge (to be selected by the executive), and by a specified kind of evidence only, that he was not guilty, however ample and probative other evidence might be adduced and however impossible to produce the specified evidence. Justices Fuller, Field, and Brewer vigorously dissented on the ground that such action by the executive, though under the authority of Congress, was in violation of the constitutional guaranties against arrest without judicial warrant, against deprivation of liberty without trial by jury and due process of law. Justice Brewer after quoting Madison, that banishment is among the severest of punishments, went on to say: "But punishment implies a trial. 'No person shall be deprived of life, liberty or property without due process of law.' Due process of law requires that a man be heard before he is condemned, and both heard and condemned in the due and orderly procedure as recognized by the common law from time immemorial." In my research I have found more cases where it has seemed to me the courts have construed constitutional guaranties too strictly, than where they have construed them too liberally. The tendency has been rather away from the enforcement of constitutional guaranties and to allow legislative encroachments upon them. I regard this as a very dangerous tendency. Perhaps the encroachments have not been at first perceived, but I think courts should be vigilantly on the watch for them, otherwise individual rights guaranteed to the people by the constitution may be gradually weakened and finally destroyed. This duty of the courts was declared in the case of _Boyd_ v. _United States_, 116 _U. S._ 616 at page 641--where in refusing effect to a statute requiring the production of his books and papers by a defendant in proceedings for forfeiture, the court said: "Though the proceeding in question is devested of the aggravating effects of actual search and seizure, yet it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Their motto should be _obsta principiis_." A review of the cases in which the courts have been called upon to decide whether a statute breaks over the constitutional limitation will demonstrate to any dispassionate person that upon questions of expediency, of the general welfare, or even of justice, the judges rarely if ever oppose their opinion to that of the legislators. The courts do not obstruct the current of progress; they only keep it from overflowing its banks to the devastation of the constitutional rights of the people. CHAPTER IX THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION Despite the lessons of history showing the need of specified limitations upon the legislative power to ensure personal liberty and justice, it is still urged by the impatient that this check upon legislative action should be removed, or at least that the legislature should itself be the judge of the constitutionality of its acts, and that the legislatures as the representatives of the people may be trusted to observe constitutional requirements and limitations. From the beginning, however, the people of this country have not fully trusted their legislatures. They have not only set bounds to legislative power, but within those bounds they have imposed in most instances the check of an executive veto. They have also complained of their legislatures far more loudly than they have of their courts, and latterly have subjected them to the initiative and referendum and in some instances to the recall. Perhaps the judgment of those urging that the legislature should be trusted not to trespass on the constitutional rights of the people may be enlightened by recalling some instances of legislative action upon constitutional questions left to its decision by the constitution itself. It is hardly necessary to cite instances of the abuse of this power in the matter of determining who are entitled to seats in the legislature. It is common knowledge that, in the past at least, both law and fact have often been over-ridden for partisan advantage. As an illustration of how far a legislature will sometimes go in this direction I may cite a recent instance in Maine. The constitution of that state provides (Art. IV, Pt. 3, Sec. 11) that "no person holding any office under the United States (post officers excepted) shall have a seat in either house of the legislature during his continuing in such office." This provision was in the original constitution of 1821, and until the legislative session of 1913 the exception of "post officers" was understood to refer to officers in the postal service and such officers often held seats in the legislature without question. In 1913, however, the House of Representatives held for awhile that the exception referred only to military officers of the United States stationed at military posts within the state, though no such officer had ever held a seat in the legislature. That legislatures are prone to disregard constitutional provisions is also manifest in the vast amount of special legislation enacted despite constitutional prohibitions of such legislation. There are also numerous instances where legislatures while perfunctorily heeding the letter of the constitution consciously violate its spirit and evade its requirements. In many states there is a constitutional provision that no legislative act shall become effective until after a specified time has elapsed from its enactment "except in cases of emergency," which emergency, however, is to be declared in the act itself. This provision, of course, is to give the people time to understand the statute and prepare to obey it. The word "emergency" in the exception implies a sudden, unexpected happening. It is defined in Webster as a "pressing necessity; an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy." In Indiana in one legislative session, out of 200 acts, 155 were made to take effect at once by a recital that an emergency existed therefor. In Illinois a two-thirds vote of all the members elected to each house is required for the adoption of the emergency clause. Among the acts of the last session containing the emergency clause was one appropriating $600 for printing the report of a monument association. In Tennessee the exception was of cases where "the public welfare" required an earlier date. Out of 265 laws passed at one session 230 contained the declaration that the public welfare required their going into effect immediately. In Texas the constitution provides that no bill shall be passed until it has been read on three several days in each house and free discussion allowed thereon, but that "in cases of imperative public necessity four-fifths of the house may suspend the rule." Out of 118 laws passed at one session all but five contained the statement that "imperative public necessity" required suspension of the rule. Legislatures also seem prone to disregard the constitutional provision for the referendum despite the strong, explicit language of that provision. In California the constitutional provision is as follows: "No act shall go into effect until ninety days after the adjournment of the legislature which passed such act ... except urgency measures necessary for the immediate preservation of the public peace, health or safety, passed by a two-thirds vote of all the members elected to each house." Surely the language of the exception is strong and forceful. Two-thirds of all the members elected to each house must hold that the measure is urgent, not admitting of delay, that the public peace, health or safety, not the mere interests or convenience of individuals or localities, is threatened and that the danger is imminent, requiring immediate action. Among other instances, the legislature of California at its special session of 1911 adjudged an act to validate certain defective registrations of voters in some municipalities to be an urgency measure within the language of the exception; also an act to change the boundaries in a Reclamation District. Oregon has a similar constitutional requirement and exception which its legislature does not always observe. At the session of 1911, among other cases the legislature adjudged an act authorizing a county to levy a tax for advertising the county's resources to be within the exception; also an act dividing a road district; but an act appropriating money to guard against the bubonic plague was not declared to be within the exception. In Oklahoma with a similar constitutional provision and exception, the legislature seems to have run riot. At the session of 1910 a very large proportion, if not a majority, of the statutes were adjudged to be within the exception. Among them was an act to pay the mileage and per diem of the members; an act providing stenographers for the Supreme Court; an act authorizing the sale of four tracts of land at public sale; an act to pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act to reimburse the Governor $5000 expended by him for state purposes, and an act to reimburse a sheriff $4000 expended by him in the support of state prisoners were not so considered. True, Oklahoma is a new and radical state, but let us turn to the extreme east, to Maine with its heritage of law-abiding traditions from the parent state of Massachusetts. Maine has also adopted the referendum in language similar to that in the California constitution, including the exception. The state had got along quite comfortably without making Lincoln's birthday a legal holiday, but in 1909 the legislature awoke to the imminent danger to the public peace, health or safety of the state in longer delay and so established such a holiday at once without according to the people their right of review. The town of Eden, in which is situated Bar Harbor, a summer resort, had by vote for sometime excluded automobiles without any apparent danger to the public peace, health or safety, but at its last session in 1913 the legislature by a two-thirds vote of all the members elected to each house adjudged that the public peace, health or safety would be imperiled by postponing for ninety days the operation of an act authorizing a repeal of the vote. In all the instances cited, which are but few out of many, it is difficult to see how the ninety days' postponement of the operation of the acts cited could imperil the peace, health or safety of the public, however much it might inconvenience or annoy individuals or localities. These instances should, however, throw considerable doubt upon the proposition that the constitutional rights of the people are safe in the hands of the legislative department without the check of the judiciary. I have somewhere seen the statement that during recent years upwards of 500 acts of federal and state legislation have been held by the courts to be in violation of some constitutional provision, and that this fact should arouse the people to put some check on such exercise of the judicial power. On the contrary, it should arouse the people to insist on the retention of that power, and to elect wiser legislators who will more faithfully respect their oaths to observe constitutional limitations. But another and different proposition is urged upon us. It is not to leave the legislature without check upon the tendency to disregard constitutional limitations upon its power, but to subject the judicial check itself to reversal by a majority of that part of the electorate choosing to act on the matter. It is proposed that whenever a court of last resort shall adjudge that a statute trespasses upon the reserved constitutional rights of the individual, an appeal may be taken direct to the electorate, and that if a majority of those choosing to vote on the question desire the statute to stand, the constitution shall thereafter be held to be amended to that extent. It is submitted that such a procedure would destroy all constitutional guaranties, no matter what safeguards are attempted. Is there any assurance that such a majority would be more considerate of the individual's right to life, liberty, and property than their representatives whom they have selected or should have selected for their virtue and wisdom, and who are sworn, as well as the judges, to respect constitutional guaranties? Under the present procedure for amendment to constitutions, propositions for amendment are first considered and debated face to face in a legislature or constitutional convention by representatives of the people, and cannot be submitted to the people until after opportunity for full and free discussion by their representatives, and the people themselves have thereby been more or less prepared for its consideration. Even under this procedure, amendments have been adopted that the people have afterward regretted. There is now much agitation for the "short ballot," for restoring to the chief executive the power of appointment of important officials, a power at first possessed by him, but taken away by later constitutional amendments. The adoption of the "initiative and referendum" has not produced the beneficial results expected. It is found that the initiative sometimes produces defective, unworkable statutes, and that the referendum can be used to delay and even veto expedient legislation. Under the proposed procedure the questions whether the constitution should be amended and as to the nature of the amendment are sprung upon the people without this preliminary examination, debate and approval by their chosen representatives, and this often, if not always, in times of popular excitement. With such a procedure I can see no more stability of right, no more security for justice, than under any unlimited, absolute government. How unstable popular sentiment may be at times may be seen in the classic example of the citizens of Rome applauding Marius and Sulla in turn with equal fervor, and in the lesser and very recent example of the voters of the city of Seattle, who elected a mayor, then soon recalled him, and but little later re-elected him by a larger majority than before. Constitutions to be of any value as bulwarks of liberty should not be immediately changeable with the popular sentiment of the day, but slowly and only after long reflection and discussion. They should contain only the results of long thought and long experience. Legislation is ever active, ever moving this way and that way, ever experimenting, enacting new statutes and amending and repealing old ones, now imposing fetters on individual liberty, now striking them off and perhaps imposing others. Even in England and America, where personal liberty of action is most prized, time was when statutes were enacted almost putting people and business in strait-jackets. In English Norfolk as late as Henry VIII's time no one was to "dye, shear or calender" cloth except in the town of Norwich; and no one in the northern counties was to make "worsted coverlets" except in the city of York. In the reign of Elizabeth a statute was passed forbidding the eating of meat on Wednesday and Saturdays and this not on the score of health or religion but avowedly to increase the price of fish. Statutes fixing the weight and price of loaves of bread and the size and price of a glass of ale were not formally repealed till 1824. The famous Statute of Laborers forbade laboring men to ask or receive more than a prescribed low sum for their labor and also forbade their moving about seeking employment. The statutes against forestalling, regrating, and engrossing were not formally repealed until 1844. In early times in New England also, statutory attempts were made to fix the price of various commodities and the wages of various kinds of workmen. Men were fined for accepting higher than the prescribed wages. The Sunday laws in some places forbade walking about on Sunday except "reverently to go to and return from meeting." Everywhere was the ever present tendency of the legislative power to invade and direct every function of society,--social, religious, political, and economical. It should be noted that all these and similar statutes were under governments unrestrained by written constitutions and bills of right enforced by an independent judiciary. Though from time to time many restrictive statutes have been modified and many repealed, other restrictive statutes have been enacted. Today the same process is going on. While now and then restrictions and embargoes of longer or shorter standing are removed, there is still the same tendency to enact other restrictions and prohibitions. At every session of Congress and of the state legislatures measures are constantly proposed hampering in some way the freedom of the citizen in his occupation, in his pursuit of happiness. Demands are being made upon the legislative department by one class or interest for legislation to restrain other classes or interests, but for exemption for itself. In earlier times there were statutes fixing a maximum wage for labor, and though these proved ineffectual it is now proposed to fix a minimum wage, even though it should prove to be much more than the labor is worth. There are also proposed, and in many instances enacted, statutes restricting the freedom of the workman as to his output, of the employer as to his direction of his business. The natural activities of men are sought to be hampered and handicapped in vexatious ways. In illustration, I quote the following from the "Boston Herald" of June 5, 1914: "Twenty-five states and the United States itself forbid any discrimination by an employer against union men. Utah alone has a law to protect the non-union men from organized discrimination of union labor to drive him from his trade. Several of our states require that all public printing shall bear the union label. One extends that rule to all stationery. Twelve states require employers advertising for help to mention in the advertisement the existence of a strike. The Minnesota statute provides that, per contra, no employer shall require any statement from a person seeking employment as to his participation in a strike. Eight states have enacted statutes exempting labor organizations from their respective anti-trust laws. The unscrupulous employer may yet find the labor union the best means of throttling his competitors and securing a monopoly." There seems at times to be a frenzy for such legislation. Only a vivid imagination can adequately picture what might result if Congress and the state legislatures, or the inconstant majority of the electorate, were freed from all constitutional limitations or from the check of an independent judiciary. Though Great Britain, our mother country, has no written constitution and no judiciary empowered to enforce its limitations, it is the happy possessor of a practically homogeneous people of the Anglo-Saxon race, little affected by immigration, and imbued for centuries with a deep regard for personal liberty and private rights. Yet, even there today, statutes are demanded and sometimes enacted in derogation of them. In this country the population as the result of great immigration is more heterogeneous. It comprises races and peoples of diverse temperaments, of diverse experiences, of diverse traditions, many unschooled in self-government and lacking in that traditional reverence for liberty and order so characteristic of the Teutonic races. We even find some classes openly declaring that if they can get possession of the government they will exploit the rest of the people for their own benefit. They essay also to bargain their votes for special legislation in their favor at the expense of the people at large and without regard to the principles of equality of right. With such a population with its universal suffrage, were it not for our written constitutions with their Bills of Rights and with an independent judiciary to guard them, there would be no security here for personal liberty and rights. We should be in the condition of the people of France as depicted by Wm. S. Lilly in his recent book, "The New France." He wrote: "It is now more than a century since the principles of 1789 were formulated there. But in no country, not even in Russia, is individual freedom less. The state is as ubiquitous and as autocratic as under the worst Bourbon or Oriental despots. Nowhere is its hand so heavy upon the subject in every department of human life. Nowhere is the negation of the value and of the rights of personal independence more absolute, more complete, and more effective." Yet France is a republic with manhood suffrage and with an elective legislature. But its courts are not vested with any power to conserve any rights of the people against legislative caprice. CONCLUSION The thesis I have endeavored to support in these lectures, so far as I have a thesis, is this: (1) that, after all, human justice consists in securing to each individual as much liberty of action in the exercise of his physical and mental powers and as much liberty to enjoy the fruits of such action as is consistent with like liberty for other individuals, and with such restrictions only as are necessary for the welfare of society as a whole without discrimination for or against any individual; and (2) that that justice is more firmly secured by a government with a division of powers, with a written constitution excluding from governmental interference such personal rights as long experience has shown to be necessary both for the happiness and efficiency of the individual subject and for the welfare and efficiency of all; and (3) finally with an independent judiciary to defend those rights when assailed, as they often have been, and will be, by impatient and changeable majorities. It may be admitted that the courts sometimes err in their interpretation of the constitution and the laws, since judges, however carefully selected, are but men; but there must be somewhere in the body politic of a free state some body of men with the power of authoritative interpretation of the fundamental law as well as other laws. Does earlier history or later experience point to any better equipped, more stable, more safe tribunal? Should not the people endeavor to raise rather than lower the position of the courts; to conserve rather than impair that freedom, impartiality, and independence of the judges declared by the people of Massachusetts in their Declaration of Rights, after years of galling experience of the contrary, to be "essential to the preservation of every individual, his life, liberty, property and character"? Are not they the reactionaries who, despite the lessons of history, would revert to the days of a dependent, recallable, and hence timid judiciary? But justice is not fully and certainly secured by the maintenance of particular political institutions, however excellent. Political institutions are not self-acting. They are only instrumentalities for the action of society. They are not only to be established and maintained; they are to be administered, and the best institutions may be maladministered. Even under such a system of government as I have endeavored to show to be the best yet devised to secure justice, injustice is still often suffered by the individual or by society. Oppressive statutes within the legislative power are too readily enacted. Abuses in administration are too long permitted to exist. The only remedy for these is a more enlightened public opinion, a wider diffusion of the spirit of impartiality, a greater realization of the right and need of every person to life, liberty, and the results of his industry and economy. Nor are the judgments of our courts always righteous. Some of the instances of unrighteous judgments result from failure to ascertain and apply the truth as to the facts of the case; some from errors in judgment; some from lack of firmness in judges in enforcing the known rights of the individual on the one hand, or those of society on the other; and perhaps a very few from incompetency or corruption. These causes can be removed to a large extent, by a more rigid insistence on skill, ability, industry, learning, and courage on the part of those assuming to administer justice as attorneys and counselors. The same insistence in the selection of judges will lessen the injustice resulting from their errors in judgment and from their lack of firmness. There is yet another cause of injustice, the delay and expense in obtaining even righteous judgments. It is an axiom, that justice delayed is justice denied. This delay and expense are often charged against the courts and judges, as if they had full control over judicial procedure. It is not the judges but the legislature that shapes the judicial system and prescribes the judicial procedure, so far as they are not fixed by the constitution. It is not the courts but the legislatures that provide for so many appeals and allow so many stays and consequent delays. Judges and lawyers the country over are urging a more simplified, a more speedy, and less expensive procedure. They are also urging the establishment of more courts with more judges to cope with the constantly increasing litigation, in order that the wrongs against the individual and the wrongs against society may be redressed with a minimum of delay and cost. It is the legislatures that hesitate and often it is the legislatures that tie the hands of the judges. In some states it is sought to deprive the judges of their proper influence in jury trials. In some states it is even sought to prevent them from saying more than yes or no to proposed instructions to a jury. In many states nearly the whole matter of procedure, its various steps, are fixed by statute and become difficult of improvement. If courts could have more power and the legislatures would interfere less in matters of procedure, I am sure the cause of justice would be better served. In conclusion, perfect justice may not be attainable by us imperfect men. As said by Addison, "omniscience and omnipotence are requisite for its full attainment." Yet it is our duty and especially the duty of those of the legal profession to attain to such approximation as may be possible. No more noble work can engage our powers; no greater service can be rendered mankind. I do not except the endowment of schools, colleges, libraries, and the like, nor the endowment of hospitals and other charitable institutions. Great as are the virtues of charity, benevolence, philanthropy, piety and the like, justice is a yet greater virtue. To quote Addison again, "There is no virtue so truly great and godlike as justice"; and in the words of Daniel Webster's eulogy: "Whoever labors on this edifice of justice, clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name, fame, and character with that which is, and must be, as durable as the frame of human society." PUBLISHED ON THE FOUNDATION ESTABLISHED IN MEMORY OF HENRY WELDON BARNES OF THE CLASS OF 1882, YALE COLLEGE STORRS LECTURES Published by Yale University Press THE REFORM OF LEGAL PROCEDURE. By MOORFIELD STOREY. Price $1.35 net delivered. THE JUDICIARY AND THE PEOPLE. By FREDERICK N. JUDSON. Price $1.35 net delivered. CONCERNING JUSTICE. By LUCILIUS A. EMERY. Price $1.15 net delivered. _Uniform in style with the Storrs Lectures_ INTERNATIONAL ARBITRATION AND PROCEDURE. By ROBERT C. MORRIS, with a foreword by PRESIDENT TAFT. Price $1.35 net delivered. 
41034	----	generously made available by The Internet Archive/American Libraries.) [Illustration: THE CORRIDORS OF THE COURTS] A PHILADELPHIA LAWYER IN THE LONDON COURTS BY THOMAS LEAMING _Illustrated by the Author_ SECOND EDITION, REVISED NEW YORK HENRY HOLT AND COMPANY 1912 COPYRIGHT, 1911, BY HENRY HOLT AND COMPANY Published May, 1911 PREFACE The nucleus of this volume was an address delivered before the Pennsylvania State Bar Association which, finding its way into various newspapers in the United States and England, received a degree of favorable notice that seemed to warrant further pursuit of a subject heretofore apparently overlooked. Successive holiday visits to England were utilized for this purpose. As our institutions are largely derived from England, it is natural that the discussion of public questions and the glimpses of important trials afforded by the daily papers--usually murder trials or divorce cases--should more or less familiarize Americans with the English point of view in legal matters. American lawyers, indeed, must keep themselves in close touch with the actual decisions which are collected in the reports to be found in every library and which are frequently cited in our courts. Nothing in print is available, however, from which much can be learned concerning the barristers, the judges, or the solicitors, themselves, whose labors establish these precedents. They seem to have escaped the anthropologist, so curious about most vertebrates, and they must be studied in their habitat--the Inns of Court, the musty chambers and the courts themselves. The more these almost unknown creatures are investigated, the more will the pioneer appreciate the difficulty of penetrating the highly specialized professional life of England, of mastering the many peculiar customs and the elaborate etiquette by which it is governed and of reproducing the atmosphere of it all. He will find that he can do little but record his observations. It was not unknown to him that some lawyers in England are called barristers, some solicitors, and he had a vague impression that the former, only, are advocates, whose functions and activities differ from those of the solicitor; but he was hardly conscious that the two callings are as unlike as those of a physician and an apothecary. It requires personal observation to see that the barristers, belonging to a limited and somewhat aristocratic corps, less than 800 of whom monopolize the litigation of the entire Kingdom, have little in common with the solicitors, scattered all over England. The former are grouped together in their chambers in the Inns, their clients are solicitors only, they have no contact, perhaps not even an acquaintance, with the actual litigants and a cause to them is like an abstract proposition to be scientifically presented. The solicitors, on the other hand, constitute the men of law-business, whose clients are the public, but who can not themselves appear as advocates and must retain the barristers for that purpose. Again, it is difficult to grasp fully the influence exercised through life by the barrister's Inn--that curious institution, with its five hundred years of tradition--voluntarily joined by him when a youth; where he has received his training; by which he has been called to the Bar and may be disbarred for cause, and upon the Benchers of which Inn he must naturally look as his exemplars, although the Lord Chancellor may be the nominal creator of King's Counsel and the donor of judge-ships. The impulse of these Inns is still felt at the American Bar, despite more than a century's separation, for, about the time of the Revolution, over a hundred American law students were in attendance, not only acquiring, for use in the new country, a sound legal training, but absorbing the spirit of the profession which has been transmitted to posterity, although its source may be forgotten. Nor will anything he has read prepare the American for the abyss which separates the common law barrister, who spends his days in jury trials, from the chancery man, who knows nothing but equity courts; nor for the complete ignorance, if not contempt, with which they seem to regard each other. K. C.'s, indeed, are afforded their title in the reports--even in the newspapers--but nowhere does it appear that "Leaders" are appointed by the judge of a particular equity court to "take their seats" and practice before him exclusively, being associated in each case with "Juniors," who in turn have "Devils" to prepare their cases; or that a leader may sever this relation and thereafter "go special"; yet all these, and many other peculiar and inviolable customs, are handed down from one generation to another to be followed as if by instinct: and the profession would no more trouble the busy world with such matters than a dog would feel it necessary to explain that he turns thrice before lying down, simply because his wolfish ancestor did so in order to make a bed in the grass. In this environment of ancient custom, however, the American is surprised to find the most up-to-date courts in the world and an administration of law which is so prompt, so colloquial, so simple, so free from formality and so thoroughly in touch with the ordinary man's every-day life, as to provoke a blush for the tribunals of the vaunted New World, still lagging in their archaic conventionality and their diffuse and dilatory methods. At home, the American has been perplexed by the threadbare assertion that we have as many judges in a large city as has all England, but he shortly learns that such comparison considers only the few judges of the High Court, and ignores the others and the officials performing judicial functions, so numerous that the little Island fairly teems with its justiciary and that the implied criticism is due to ignorance of the facts. The trials, both civil and criminal, will reveal the complete triumph of common sense and the Englishman will appear at his best in his court, for there he leads the world. The hearty good humor, alacrity and crispness of the proceedings, the absence of declamation but the avoidance of monotony by the proper distribution of emphasis, all combine to delight the practised observer. The disciplining of the profession by means of a body to whom may be privately submitted questions of morals and manners, mostly solved by gentle admonition and rarely by severe action, will suggest that our single punishment--disbarment--is so drastic as rarely to be invoked and hence largely fails as a corrective. From the "bobby" in the street, to the Lord Chancellor on the Woolsack, from a hearing by a registrar to collect a petty debt, to the donning of the black cap in order to sentence a murderer; all will prove suggestive to the alert American who will nevertheless depart with a feeling that, while there is room for improvement at home, yet, upon the whole, there is much of which to be proud in our administration of the sound old law of our ancestors. The kindly aid of a number of English judges, barristers and solicitors, by way of suggestion and criticism, is gratefully acknowledged. The occasional illustrations are photographic reproductions of original oil sketches. Philadelphia, April, 1911. PREFACE TO THE SECOND EDITION In accordance with the kind suggestions of a well-known barrister, a number of corrections have been adopted in the text of this edition. Some of them it had been the intention of the Author to make before his death and others have seemed necessary in order to secure greater accuracy and to preserve the value of the book for purposes of reference. May 18, 1912. CONTENTS CHAPTER PAGE I. FIRST IMPRESSIONS 1 The Law Courts Building on the Strand.--A Court Room.--Participants in a Trial.--Wigs and Gowns. --Colloquial Methods.--Agreeable Voices.-- Similarity to American Trials. II. THE MAKING OF LAWYERS 9 Classes from which Barristers and Solicitors are Drawn.--The Inns of Court.--Inns of Chancery.-- American Students at Period of Revolution.--A Barrister's Chambers.--Training of Barristers in an Inn.--Being Called to the Bar.--Training of Solicitors. III. BARRISTERS 29 Waiting for Solicitors as Clients. "Devilling." --Juniors.--Conduct of a Trial.--"Taking Silk." --Becoming a K. C.--Active Practice.--The Small Number of Barristers. IV. BARRISTERS--THE COMMON LAW AND CHANCERY BARS 39 Bar Divided into Two Parts. No Distinction Between Criminal and Civil Practice.--Leaders.--"Taking His Seat" in a Particular Court.--"Going Special." --List of Specials and Leaders.--Significance of Gowns and "Weepers." "Bands."--"Court Coats."-- Wigs in the House of Lords.--Barristers' Bags, Blue and Red. V. SOLICITORS 49 Line Which Separates Them from the Bar.--Solicitor a Business Man.--Family Solicitors.--Great City Firms of Solicitors.--The Number of Solicitors in England and Wales.--Tendency Toward Abolishing the Distinction Between Barrister and Solicitor.-- Solicitors Wear no Distinctive Dress Except in County Courts.--Solicitors' Bags. VI. BUSINESS AND FEES 57 Influential Friends of Barrister.--Junior's and Leader's Brief Fees.--Fees of Common Law and Chancery Barristers.--Barrister Partnerships not Allowed.--English Litigation Less Important than American.--Clerks of Barristers and Solicitors Haggle over Fees.--Solicitors' Fees. VII. DISCIPLINE OF THE BAR AND OF SOLICITORS 67 The General Council of the Bar.--The Statutory Committee of the Incorporated Law Society. --Rulings on Various Matters.--Lapses from Correct Standards. VIII. THE CIVIL COURTS 87 The General System.--Different Courts.--Rules of Practice Made by Lord Chancellor.--Juries, Common and Special.--Judges and How Appointed.--Judges' Pay.--Costs. Court Notes.--Some Differences in English and American Methods. IX. COURTS OF APPEAL 107 The Court of Appeal.--House of Lords.--Divisional Court.--Judicial Committee of the Privy Council. X. MASTERS--THE TIME SAVERS 117 Current Hearings.--Minor Issues Threshed out. XI. THE POLICE COURTS 125 Current Hearings. XII. THE CENTRAL CRIMINAL COURT--THE OLD BAILEY 131 Current Trials XIII. AN IMPORTANT MURDER TRIAL 145 XIV. LITIGATION ARISING OUTSIDE OF LONDON 169 Local Solicitors.--Solicitors' "Agency Business." --The Circuits and Assizes.--Local Barristers. --The County Courts.--The Registrar's Court. XV. GENERAL OBSERVATIONS AND CONCLUSION 177 INDEX 195 ILLUSTRATIONS THE CORRIDORS OF THE COURTS _Frontispiece_ FACING PAGE CROSSING THE STRAND FROM TEMPLE TO COURT 36 A JURY TRIAL 100 A SUBJECT FOR THE POLICE COURT 128 THE SENTENCING OF DHINGRA 156 SIDEWALK SOCIALISM--HYDE PARK 178 A PHILADELPHIA LAWYER IN THE LONDON COURTS CHAPTER I FIRST IMPRESSIONS THE LAW COURTS BUILDING ON THE STRAND--A COURT ROOM--PARTICIPANTS IN A TRIAL--WIGS AND GOWNS --COLLOQUIAL METHODS--AGREEABLE VOICES-- SIMILARITY TO AMERICAN TRIALS. Leaving the busy Strand at Temple Bar and entering the Law Courts Building, one plunges into that teeming hive where the disputes of millions of British subjects are settled by law. Here the whole kingdom begins and ends its legal battles--except the cases on circuit, those minor matters which go to the County Courts, and the very few which reach the House of Lords. The visitor, strolling through the lofty Gothic hall and ascending one of the stair-cases to the second floor, finds himself in a long, vaulted corridor, sombre and quiet, which runs around the building. There are no idle crowds and there is no smoking, but, curiously enough, frequent refreshment bars occupy corners, where drink as well as food is dispensed by vivacious bar-maids.[A] Here and there, a uniformed officer guards a curtained door through which may be had a glimpse of a court room; but no sound escapes, because of a second door of glass, also draped with curtains. Groups of litigants and witnesses await their turns or emerge with flushed faces and discuss their recent experiences before returning to the roar of London. Barristers pace up and down in wig and gown, or retire to a window-seat for conference with their respective solicitors. A mere sight-seer, having thus visited the courts, passes on his way, but as the administration of law, from the Lord Chancellor to the "bobby," is the thing best done in England and commands the admiration and imitation of the world, the courts deserve more than a casual visit. Passing the officer and the double-curtained doors, one enters the court-room, which is usually small and lofty, with gray stone walls panelled in oak, subdued in color and well lighted from above. The admirable arrangement of seats sloping steeply upward on all sides, instead of resting upon a level floor, brings the heads of speakers and auditors near together; and the bright colors of the judges' robes--scarlet with a blue sash over the shoulder in the case of the Lord Chief Justice, and blue with a scarlet sash in the case of most of the others, together with various modifications of broad yellow cuffs--first strike the eye. The judge's bewigged head, as he sits behind his desk, is about twelve feet above the floor. On his left, at the same level, stands the witness, who has reached the box by a small stairway. At the judge's right are the jury, seated in a box of either two rows of six or three rows of four, the back row being nearly on a level with the judge. In front of the judge, but so much lower as to oblige him to stand on his chair when whispering to his lordship, sits his "associate," a barrister in wig and gown, whom we should designate as the clerk of the court. Facing the associate is the "solicitors' well," at the floor level, where, on the front row of benches, sit the solicitors in ordinary street dress. Then come the barristers--all in wig and gown--seated on wooden benches, each row with a narrow desk which forms the back of the seat in front. The desks are supplied with ink wells, and with the inevitable quill pen. The barristers keep their places until their cases are reached and then try them from the same seats, so that there is always a considerable professional audience. For the public there is little accommodation--usually only a few benches back of the barristers and a meagre gallery above. The solicitor, whose client may be the plaintiff or the defendant, has prepared the case and knows its ins and outs as well as the personal peculiarities of the parties and witnesses who will be called, but he is unable to take any part in the trial and can only whisper an occasional suggestion to the barristers he has retained, by craning his neck backward to the leader behind him. This leader is a newcomer into the case. He is a K. C. (King's Counsel) who has been "retained" by the solicitor upon payment of a guinea followed by a large "agreed fee," and he leaves the "opening of the pleadings" to the junior immediately back of him, while the latter, in turn, has handed over the preparation to his "devil" who is seated behind him. Thus, the four men engaged on a side, instead of being grouped around a counsel table, as in America, are seated one in front of the other at different levels, rendering a general consultation difficult when questions suddenly arise. The two men on each side of the case who know most about it have no voice in court, for the devil is necessarily as mum as the solicitor, and the name of the former does not even appear in the subsequent report of the trial. How this comes about requires some acquaintance with the different fields of activity of barristers and solicitors, which will be referred to later. In thus glancing at an English court, an American's attention is sure to be arrested by the wig. The barrister's wig, for his ordinary practice in the High Court, has a mass of white hair standing straight up from the forehead, as a German brushes his; above the ears are three horizontal, stiff curls, and, back of the ears, four more, while behind there are five, finished by the queue which is divided into tails, reaching below the collar of the gown. There are bright, shiny, well-curled wigs; wigs old, musty, tangled and out of curl; some are worn jauntily, producing a smart and sporty effect, others look like extinguishers. So grotesque is the effect that it is difficult to realize that these men are not mummers in some pageant of modern London, but that they are serious participants in grave proceedings. Not only the eye, but the ear will convey novel and favorable impressions to the observer. He will be struck by the cheerful alacrity and promptness of the witnesses, by the quickness and fulness of their responses, by a certain atmosphere of complete understanding between court, counsel, witnesses and jury, and more than all, by the marked courtesy, combined with an absence of all restraint, and a perfectly colloquial and good-humored interchange of thought. It is hard to define this, but it certainly differs from the air of an American tribunal where the participants seem almost sulky by comparison. The Englishman in his court is evidently in his native element and appears at his best. The voices, too, are most agreeable, although many barristers acquire the high-pitched, thin tone usually associated with literary and ecclesiastical surroundings. Besides superior modulation, the chief merit is in the admirable distribution of emphasis. In this respect both the dialogue and monologue in an English court room are far less monotonous than in an American. Passing the superficial impression and coming to the underlying substance, there is extraordinarily little difference between law courts on both sides of the Atlantic. Not only is the common law the same, and the legislation of the two countries largely parallel, but the method of law-thought--the manner of approaching the consideration of questions--is precisely identical, so that, upon the whole, the diversity is no greater than that which may exist between any two of the forty-six states. Indeed, so complete is the similarity that an American lawyer feels that he might step into the barristers' benches and conduct a current case without causing the slightest hitch in the proceedings, provided he could manage the wig and that the difference of accent--not very marked in men of the profession--should not attract too much attention. That the law emanating from the little Island, which could be tucked away in a corner of some of our States, should have spread over the vast territory of America and control such an enormous population with its many foreign strains, and that, as the decades roll on, it should thrive, improve, and successfully grapple with problems never dreamed of in its origin, indicates its surprising vitality and stimulates interest in the methods now in vogue in its native land. FOOTNOTE: [A] Very recently these bars have been moved to restaurants on the lower floor. CHAPTER II THE MAKING OF LAWYERS CLASSES FROM WHICH BARRISTERS AND SOLICITORS ARE DRAWN--THE INNS OF COURT--INNS OF CHANCERY-- STUDENTS AT PERIOD OF REVOLUTION--A BARRISTER'S CHAMBERS--TRAINING OF BARRISTERS IN AN INN--BEING CALLED TO THE BAR--TRAINING OF SOLICITORS. To young Englishmen possessing neither fortune nor influence, the profession of the law has long been an open road to advancement in a country notable for orderly and constitutional methods, where the ultimate appeal is always to reason. Perhaps the worship of money, which characterizes modern England, has somewhat lessened the prestige of success at the Bar there, as it has done in America, where a millionaire, upon urging his son to enter the profession, was met by the young hopeful's reply: "Pooh, father, _we_ can hire lawyers." Nevertheless, the law still draws its recruits from the flower of the youth of both countries and, in England, it appeals to two types of men: to those who would become barristers, and to those whose ambition soars no higher than the solicitor's calling; moreover the classes from which the candidates are generally drawn, differ as do their training and the future functions. Traditionally, indeed, the sons of gentlemen and the younger sons of peers were restricted, when seeking an occupation, to the Army, the Navy, the Church and the Bar. They never became solicitors, for that branch, like the profession of medicine, was somewhat arbitrarily excluded from possible callings, but this tradition, as is the case with many others, has been gradually losing its force of late years. It must always have been a little hazy in its application, owing to the difficulty of ascertaining accurately the status of the parent, if not a peer; and Sir Thomas Smith who, more than three centuries ago, after describing the various higher titles, attempted a definition of the word "gentleman," could formulate nothing more definite than the following: "As for gentlemen they be made good cheap in this kingdom; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and, to be short, who can live idly and without manual labor, and will bear the port, charge and countenance of a gentleman, he shall be called master and shall be taken for a gentleman." The ancient books, too, afford a glimpse of a struggle on the part of the Bar to demand a certain aristocratic deference, for an old case is reported where the court refused to hear an affidavit because a barrister named in it was not called an "Esquire." That the struggle was not in vain, is evidenced by the reply of an old-time Lord Chancellor, who, when asked how he made his selection from the ranks of the barristers when obliged to name a new judge, answered: "I always appoint a gentleman and if he knows a little law, so much the better." Naturally, the solicitor (who was formerly styled an attorney, except when practicing in an equity court) was sensitive about his own position, for the passage of a now-forgotten Act of Parliament was once procured, decreeing that attorneys should thereafter be denominated as "gentlemen." But times have changed in the law, as in other fields of activity, and sons of good families, as well as those of less degree, now enter both branches of the profession. Hence, representatives of the best names in England are to be found on the barristers' benches side by side with self-made men, some of whom have become ornaments of the Bar, and with men of divers races, such as swarthy East Indians, and Dutch South Africans. One or two barristers may even be found, who, although members of the Bar and necessarily of one of the Inns, nevertheless, remain, as born, American citizens. The Bar, in short, although a jealously close and exclusive organization, has become a less aristocratic body and is now a real republic where brains and character count. The same diversity of origin exists amongst the solicitors, for, as has been stated, they are now, in part, recruited from those who formerly would have condescended to nothing less than the Bar. A constant improvement in training, too, in the promulgation of rules of professional conduct, in the enforcement of a firm discipline and in the nursing of traditions, all tend to raise and maintain a higher standard and a better tone than formerly existed in the ranks of the solicitors. Thus, the modern tendency is that there should be less difference in the personnel of those entering either branch of the profession. Candidates for the Bar are mostly University men, more mature in years, perhaps, than our graduates--for boys commence and end their college courses late in England--and they are, as a rule, more broadly cultivated than those who intend to become solicitors. Some, indeed, take a full course of theoretical law at Oxford or Cambridge before beginning practical training as a student in one of the Inns of Court, which are peculiarly British institutions, having no counterpart elsewhere. Physically, an Inn of Court is not a single edifice, nor even an enclosure. It is rather an ill-defined district in which graceful but dingy buildings of diverse pattern and of various degrees of antiquity, are closely grouped together and through which wind crooked lanes, mostly closed to traffic, but available for pedestrians. Unexpected open squares, refreshed by fountains, delight the eye, the whole affording the most peaceful quietude, despite the nearness of the roar of surrounding London. The four Inns of Court (as distinguished from the Inns of Chancery and Serjeants' Inn, all of which have ceased to exist) are, the Middle Temple, the Inner Temple, Lincoln's Inn and Gray's Inn, but the last is of minor importance in these modern days, having fallen out of fashion. The Middle Temple and the Inner Temple acquired, by lease in the XIV Century, and by actual purchase in 1609, the lands of the Knights Templar, consisting of many broad acres situated on the south side of the Strand and Fleet Street, opposite the present Law Courts Building, and the whole space is now occupied by an intricate mass of structures--the great Halls, the Libraries, the quaint barristers' chambers--and by the beautiful Temple Gardens, sloping to the Thames, adorned with bright flowers and shaded by fine trees. There is no line of demarcation between the two Temples--one simply melts into the other. They own in common the Temple Church, part of which dates from 1185, with its recumbent black marble figures of Knights in full armor and, in the churchyard, its tomb of Oliver Goldsmith. The wonderful Hall of the Middle Temple, where the benchers, barristers and students still eat their stated dinners, was built about 1572, and is celebrated for its interior, especially for the open-work ceiling of ancient oak. Shakespeare's comedy, Twelfth Night, was performed in the Hall in 1601, and it is believed that one of the actors was the author himself. The Library is a great one, but an American lawyer may be surprised at the incompleteness of the collection of American authorities. The Hall of the Inner Temple, on the other hand, is quite modern, although most imposing and in the best of taste. Lincoln's Inn became possessed about 1312 of what was once the country-seat of the Earl of Lincoln, which, running along Chancery Lane, adjoins the modern Law Courts Building on the north and consists of two large, open squares surrounded by rows of ancient dwellings, long since converted into barristers' chambers, and shady walks leading to a fine Hall of no great antiquity, however. An old gateway, with the arms of the Lincolns and a date, A. D. 1518, is considered a good example of red brick-work of a Gothic type--probably the only one left in London. The Library, which has been growing for over four hundred years, contains the most complete collection of books upon law and kindred subjects in England, numbering upward of 40,000 volumes. These three Inns of Court are the active institutions; the fourth, Gray's Inn, which probably took its name from the Greys of Wilton who formerly owned its site, has long since ceased to be of much importance, although the old Hall and the classic architecture of some of the Chambers, still attracts the eye. It happens, however, that a Philadelphia student, who attended this ancient Inn nearly two hundred years ago, was responsible for the phrase still proverbial on both sides of the Atlantic, "that's a case for a Philadelphia lawyer." The unpopular Royal judges of the Province of New York had, in 1734, indicted a newspaper publisher for libel in criticising the court and they threatened to disbar any lawyer of the Province who might venture to defend him. But, from the then distant little town on the Delaware, the former student of Gray's Inn, although an old man at the time, journeyed to Albany and, by his skill and vehemence, actually procured a verdict of acquittal from the jury under the very noses of the obnoxious court; the fame of which achievement spread throughout not only the Colonies but the mother-country itself. Names great in the law, in literature, in statecraft and in war are linked with each of these venerable establishments, to record which would mean to review much of the history of England as well as of America; for, besides the early Colonial students, a large number were entered in the different Inns during the period immediately preceding the Revolution. Of these, South Carolina sent forty-seven, Virginia twenty-one, Maryland sixteen, Pennsylvania eleven, New York five and New England two. The names of many of them are later to be found amongst the leaders of the Bar of the new country, on the bench as Chief Justices and even as signers of the Declaration of Independence. The Halls of the Inns were once the scenes of masques and revels, triumphs and other mad orgies, in which the benchers, barristers and students took part; including, as mentioned, the production of Shakespeare's plays during his lifetime. In these halls also occur the stated dinners--to which, in the Temple, at least, the porter's horn still summons. The members and students of the Inn, arrayed in gowns, attend in procession and, entering the hall, seat themselves on long benches before oaken tables; the governing body--the benchers--being placed at one end where the floor is elevated. It is pleasant to record that, during the last year or two, the daily contact of the barrister with his Inn has been increased by the innovation of a luncheon which is served in the hall at the hour when the courts take a recess. On this occasion the most noted English advocates may be seen, strolling in without removing their silk hats, sometimes without even having dispensed with wig and gown, when, seating themselves on the uncompromising oak, they call for a chop and beer and relax into jolly sociability. At one time barristers actually lived in the Inns of Court, but this practically ceased about the time of the reign of Elizabeth. All of them now have their "chambers" in the obsolete little dwelling houses, facing upon the open squares or narrow lanes of the Inns, which are merely offices, but very unlike those of an American lawyer in one of our "skyscrapers." Entering the front door by a low step, or climbing two or three flights of a rickety staircase in one of these houses, the visitor finds a door on which, or on a tin sign, are painted the names of one or more gentlemen, without stating their occupations, which would be superfluous in this small world of barristers. A summons by means of the old iron knocker, discloses the barrister's clerk, whose habitat is an outer room, and whose business it is to receive visitors--perchance the clerks of solicitors with briefs and fees. Ushered into the barrister's sanctum, one finds a meagrely furnished room, the walls masked with rows of books, the table, chairs and window-sills littered with papers. Amidst all this, a modern telephone looks quite out of place, and the American tries to avoid detection when his eye unconsciously steals to a wig hanging on a hook back of the barrister's chair and to a round tin box, lying on the floor, which is for the transportation of the tonsorial armor when its owner travels on circuit. The otherwise uninviting aspect of the place is redeemed, however, by a cheerful fire blazing on the hearth and by a restful outlook upon a shady garden, and a splashing fountain, where the sparrows sip the water and take their dainty baths. Here the barrister remains when not in court; but when the day's work is done, if he be prosperous, his motor car whisks him to the more elegant surroundings of a home in the West End, or, perhaps a humble bus and suburban train carry him far from town. The Inns of Court began their existence about 1400, nearly cotemporaneously with the Trade Guilds, and both, doubtless, took their rise from the instinct of men engaged in a common occupation to combine for mutual protection. All lawyers were once men in holy orders and the judges were bishops, abbots and other Church dignitaries, but in the XIII Century the clergy were forbidden to act in the courts and, thereupon, the students of the law gathered together and formed the Inns. Much concerning their origin is obscure, but the nucleus of each was doubtless the gravitation of scholars to some ancient hostelry, there to profit by the teachings of a master lawyer of the day--just as the modern London club had its beginning in the convivialities of a casual coffee house. In time these loose aggregations developed into strong and elaborate organizations which acquired extensive real property, now of enormous value, and have long wielded a powerful influence. In order to enjoy the quiet of what was then the country, and yet to retain the advantage of the city's protection at a time when rural localities were far from safe, the Inns were mostly located close to the west wall of the City, although the Inner Temple, as its name implies, is just within the line of that vanished wall, and thus they were convenient to Westminster, where the courts were permanently located by a provision of Magna Charta. During the present generation, however, the principal courts (except the House of Lords and the Judicial Committee of the Privy Council) have returned to a situation actually contiguous to the old Inns, whilst the vast town, during the centuries, has not only engulfed Westminster but has spread miles beyond it. Thus, all the Inns were grouped in a section, perhaps a square mile in extent, bounded on the east by Chancery Lane, which roughly follows the old City wall and between the Thames on the south, and the district called Holborn on the north. Looking now to the functions of these ancient institutions, an Inn of Court may be defined as an unincorporated society of barristers, which, originating about the end of the XIII Century, possesses by immemorial custom the exclusive privilege of calling candidates to the Bar, and of disciplining, or when necessary, of disbarring barristers. The governing body is composed of the benchers, who are either Judges or King's Counsel and prominent junior barristers, but it is usual to invite a member to join the benchers of his Inn when, and only when, a vacancy occurs. The executive officer is the treasurer, who is selected annually, and the members consist of the barristers and students. All the Inns are alike in authority, and in the privileges which they enjoy and the regulations of each, governing the admission, education and examination of students and the calling to the Bar of those who are qualified, are precisely uniform; any differences which may have existed having been abolished by the adoption in 1875 of a code of rules known as the "Consolidated Regulations." While there is thus complete equality and no official precedence, yet each Inn has its own history, traditions and ancient customs. The choice of which Inn to enter, thus becomes a matter of individual preference, depending upon sentiment, or upon family or social surroundings. The former Inns of Chancery should also be mentioned before leaving the subject, although they have no present interest for the modern lawyer. Their origin, too, is buried in obscurity, but they arose about the same time as the Inns of Court, with one of which each was connected, and were at first places of preparatory training for young students later to be admitted to the particular Inn. These youthful apprentices, however, were gradually ousted by the attorneys and solicitors--who have always been excluded from the Inns of Court--whereupon the Inns of Chancery fell out of fashion and deteriorated, so that by the middle of the Eighteenth Century they had disappeared and their names are now mere memories. During the period of activity of the Inns of Chancery, Staple Inn (perhaps the best known) and Barnard's Inn, were attached to Gray's Inn; Clifford's Inn, Clement's Inn and Lyon's Inn were intimately related to the Inner Temple; Furnival's Inn and Thavie's Inn to Lincoln's Inn; the New Inn and Strand Inn to the Middle Temple. One block only of quaint Elizabethan buildings, with gables of cross timber and plaster, still overhangs the great thoroughfare of Holborn and marks what is left of Staple Inn. Likewise Serjeants' Inn vanished in 1876, when its valuable realty was sold--for Serjeants-at-law had long ceased to be created--and the proceeds were divided amongst the few survivors; a proceeding much criticized at the time, although one of them gave his share to charity. The serjeants-at-law were once a class of barristers who had in some manner acquired the exclusive right of audience in the Court of Common Pleas and had also secured a monopoly of the then profitable art of pleading. Upon attaining this degree, a serjeant severed his relations with his Inn of Court and attached himself to the Serjeants' Inn. After having occupied several sites since the Sixteenth Century, Serjeants' Inn was finally located on Chancery Lane, and to it belonged all of the Serjeants, and all of the judges of the Common Law Courts, for they, necessarily, had been serjeants before being elevated to the bench. The buildings, which are small and have no pretensions to architectural beauty, have for many years been occupied as offices, chiefly those of solicitors. Thus, of the many Inns of Chancery, of the Serjeants' Inn (and the once powerful societies which they housed), there remain none but the four great Inns of Court, through one of which must pass every barrister called to the English Bar. This brief sketch may convey some idea of the extent to which the young law student unconsciously absorbs tradition, and is moulded, when plastic, by the pressure of centuries of custom and etiquette. Whatever may have been his forebears, he is more than likely, when turned out as a full-fledged barrister, to answer pretty nearly to the old definition, for he has, indeed, been one "who studieth the laws of the realm" and he is apt to "bear the port, charge and countenance of a gentleman." To the embryo barrister, however, the existing Inns possess interests far livelier than those referred to, for he must enter one of them, and not only thus gain access to the Bar, but must ally himself to his choice unless he elects, by going through certain formalities, to emigrate to another Inn. Formerly he had only to attend a single function--a dinner--during each term and, having "eaten twelve dinners," he, ipso facto, became entitled to be called to the Bar, no matter how inadequate might be his knowledge of the law. In these less aristocratic and more prosaic days, however, he is obliged diligently to apply himself to study, and to pass, from time to time, regular and strict examinations, prescribed by the Council of Legal Education, so that his equipment is no longer left to chance, but is really measured with cold accuracy. The term of study is not less than three years, and twelve terms, four in each year, must be "kept" at the Inn, the evidence of which is still the fact of dining in the hall six days during each term, although members of the Universities of Oxford and Cambridge need dine but three days in each term. An English student's reading is much like that pursued in one of our own law schools, the chief difference being that he devotes more time to mastering general principles than to the consideration of reported cases from which our students are presumed to extract the underlying principle. Much has been said in favor of each method, and the true course probably lies between the extremes, but the average result of an English law training, superimposed upon a generally superior prior education, is perhaps somewhat better than the average American result, while, as to the few on both sides of the water destined to attain real eminence, no superiority could fairly be claimed by either. The total fees payable by a student amount to about £140. and women, be it observed by progressive ladies, are not eligible for the Bar in England. Having passed the necessary examinations, the young barrister is finally "called to the Bar," a ceremony which takes place in the Hall of his Inn, at the close of dinner on "Grand Day," which is the day appointed for a banquet, to which a score or more of distinguished guests are invited by the "Treasurer and the Masters of the Bench." The Students, wearing gowns over evening dress, are grouped together, below the dais on which the benchers' table stands. The Steward of the Inn calls out the names in order of seniority. Each Student, as his name is called, advances to the high table and halts there, facing the Treasurer, who, standing up, says to him: "Mr. ----, by the authority and on behalf of the Masters of the Bench, I publish you a barrister of this Honorable Society." Then the Treasurer shakes hands with the new barrister and the latter walks away to join his comrades. Solicitors are created by entirely different methods, as there are no Inns nor any similar organizations for students. There is a preliminary examination to determine whether the boy who desires to become a solicitor, has sufficient general education. If so, he is apprenticed, for a period of five years, to some practitioner, for which privilege he pays a sum of money, say from 100 to 400 guineas; the amount chiefly depending upon the solicitor's standing. There are official fees, too, amounting to about £130, so that, as he receives no compensation during his five years' apprenticeship, and meantime must be supported by his people, the cost of entering the solicitor's calling is not inconsiderable. He begins by copying papers and performing minor services in the public offices and, at the same time, pursues his legal studies, which have steadily become more arduous. His progress as a law student is ascertained by an intermediate examination, held under the direction of the Solicitors' Incorporated Law Society, and a final one determines whether he has acquired sufficient knowledge of the law to be admitted to practice. If shown to be qualified, he is admitted by the courts, and is thereafter subject to the discipline of the Society and to that of the courts themselves, usually prompted by the Society. The marked difference, therefore, that distinguishes the solicitor's training from that of the barrister, is the absence of any Inn of Court--with its _esprit de corps_--as a commanding influence in shaping his development and governing his whole career. Nevertheless, while the whole body of solicitors is, perhaps, not as liberally educated nor as polished as the Bar, the higher grade of solicitors are lawyers quite as well equipped, and gentlemen equally accomplished, as members of the Bar itself. Some glimpses of the separate roads which the barrister and the solicitor travel after their student days, will be reserved for later chapters. CHAPTER III BARRISTERS WAITING FOR SOLICITORS AS CLIENTS--"DEVILLING" --JUNIORS--CONDUCT OF A TRIAL--"TAKING SILK" --BECOMING A K. C.--ACTIVE PRACTICE--THE SMALL NUMBER OF BARRISTERS. Having been called to the Bar, the question first confronting the young barrister is whether he really intends to practice. He may have read law as an education, meaning to devote himself to literature, to politics or to some other pursuit, or he may have embraced the profession in deference to the wishes of his family and to fill in the time while awaiting the inheritance of property. Supposing him, however, to be one of the minority determined to rise in the profession, he is confronted with formidable obstacles, for he can not look to his friends to furnish him with briefs. He can never be consulted nor retained by the litigants themselves. The only clients he can ever have are solicitors, whose clients, in turn, are the public. He never goes beyond his dingy chambers in the Inns of Court, where, guarded by his clerk, he either wearily waits for solicitors with briefs and fees, or, more likely still, gives it up and goes fishing, shooting or hunting. And this furnishes the market for the alluring placards one sees at the old wig-makers' shops in the Inns of Court: "Name up and letters forwarded for £5 per annum." The early ambition of the young barrister is to become a "devil" to some junior barrister, who always has recourse to such an understudy, and, if the junior is making over £1,000 a year, he continuously employs the same devil. This term is not applied in a jocular sense, but is the regular and serious appellation of a young barrister who, in wig and gown, thus serves without compensation and without fame--for his name never appears--often for from five to seven years. The devil studies the case, sees the witnesses, looks up the law and generally masters all the details, in order to supply the junior with ammunition. Before the trial the junior has one or more "conferences" with the solicitor, all paid for at so many guineas; occasionally he even sees the party he is to represent, and, more rarely, an important witness or two. The devil is sometimes present, although his existence is, as a rule, decorously concealed from the solicitor. If the solicitor, or the litigating party, grows nervous, or hears that the other side has employed more distinguished counsel, the solicitor retains a K. C. as leader. Then a "consultation" ensues at the leader's chambers between the leader, junior, solicitor, and, occasionally, the devil. At the trial, the junior merely "opens the pleadings" by stating in the fewest possible words, what the action is about--that it is, perhaps, a suit for breach of promise of marriage between Smith and Jones, or to recover upon an insurance policy for a loss by fire--and then resumes his seat, whereupon the leader--the great K. C.--really opens the case, at considerable length and with much more detail and argument than would be good form in an American court. He states his side's contention with particularity, reads documents and correspondence (none of which have to be proved unless their authenticity is disputed--points which the solicitors have long ago threshed out) and he even indicates the position of the other side, while, at the same time, arguing its fallacy. Having done this, he leaves it to the junior to call the witnesses--more often he departs from the court room to begin another case elsewhere, and returns only to cross-examine an important witness on the other side, or to make the closing speech to the jury. In this way a busy leader may have several trials going on at once. The junior then proceeds to examine the witnesses with the help of an occasional whispered suggestion from the solicitor, who is more than ever isolated by the departure of the leader, and the devil is proud when the junior audibly refers to him for some detail. If the leader is absent, which frequently happens notwithstanding his fee has been paid, inasmuch as no case is deferred by reason of counsel's absence, the junior takes his place, while the solicitor grumbles and more devolves upon the devil. Occasionally, indeed, both leader and junior may be elsewhere and then is the glorious opportunity of the poor devil, who hungers for such an accident, for he may open, examine, and cross-examine, and, if neither his junior nor his august leader appear, he may even close to the jury. The solicitor will be white with rage and chagrin, wondering how he shall explain to the litigant the absence of the counsel whose fees he has paid, but the devil may win and so please the solicitor that the next time he may himself be briefed as junior. This is one of the things he has read of in the Lives of the Lord Chancellors. The devil is in no sense an employee or personal associate of the junior--which might look like partnership, a thing too abhorrent to be permitted. On the contrary, he often has his own chambers and may, at any time, be himself retained as a junior, in which event his business takes precedence of his duties as a devil, and he then describes himself as being "on his own." Having gained some identity, and more or less business "on his own" from the solicitors, a devil gradually begins to shine as a junior, whereupon appears his own satellite in the person of a younger man as devil, while the junior becomes more and more absorbed in the engrossing but ever fascinating activities of regular practice at the Bar. Reaching a certain degree of prominence, a junior at the common-law Bar may next "take silk;" that is, become a K. C., or King's Counsel, which has its counterpart at the Chancery Bar, as will be explained later when dealing with the division between the law and equity sides of the system. Whether a barrister shall "apply" for silk is optional with himself and the distinction is granted by the Lord Chancellor, at his discretion, to a limited, but not numerically defined, number of distinguished barristers. The phrase is derived from the fact that the K. C.'s gown is made of silk instead of "stuff," or cotton. It has also a broad collar, whereas the stuff gown is suspended from shoulder to shoulder. Whether or not to "take silk," or to become a "leader," is a critical question in the career of any successful common law or chancery barrister. As a junior, he has acquired a paying practice, as his fee is always two-thirds that of the leader. He has also a comfortable chamber practice in giving opinions, drawing pleadings and the like, but all this must be abandoned--because the etiquette of the Bar does not permit a K. C. or leader to do a junior's work--and he must thereafter hazard the fitful fancy of the solicitors when selecting counsel in important causes. Some have taken silk to their sorrow, and many strong men remain juniors all their lives, trying cases with K. C.'s much younger than themselves as their leaders. They tell this story in London: A certain Scotch law reporter (recently dead), noted for his shrewdness and good judgment, having been consulted by a barrister whether to "apply for silk," advised him in the negative, but declined to go into particulars. The barrister renewed his inquiry more than once, finally demanding the Scot's reason for his advice. The latter reluctantly explained that the barrister had a good living practice which he would be foolish to give up. Being further pressed, he finally said: "In many years' observation of the Bar I have learned that success is only possible with one or more of three qualifications, that is, a commanding person, a fine voice, or great ability, and I rate their importance in the order named. Now, with your wretched physique, penny-trumpet voice, and mediocre capacity, I think you would surely starve to death." The barrister did not "apply," but never spoke to the Scotchman again. The anecdote illustrates the crucial nature of the step when taken by any barrister, and even if taken with success, yet there are waves of popularity affecting a leader's vogue. Solicitors get vague notions that the sun of a given K. C. is rising or setting--that the judges are looking at him more kindly or less so, therefore K. C.'s and leaders who were once overwhelmed with business, may sometimes be seen on the front row with few briefs. A successful K. C. leads a strenuous life, as may well be appreciated if he be so good as to take his American friend about with him in his daily work, seating him with the barristers while he is actually engaged. One very eminent K. C., who is also in Parliament, rises in term time at 4 a.m., and reads his briefs for the day's work until 9, when he breakfasts and drives to chambers. Slipping on wig and gown at chambers and crossing the Strand, or arraying himself in the robing room of the Law Courts, he enters court at 10:30, and takes part in the trial or argument of various cases until 4 o'clock, often having two or three in progress at once, which require him to step from court to court, to open, cross-examine, or close, having relied upon the juniors and solicitors to keep each case going and tell him the situation when he enters to take a hand. From 4 to 6:30 he has consultations at his chambers, at intervals of fifteen minutes, after which he drives to the House of Commons, where he sits until 8:30, when it is time for dinner. If there is an important debate, he returns to the House, but tries to retire at midnight for four hours' sleep. Naturally the Long Vacation alone makes such a life possible for even the strongest man. [Illustration: CROSSING THE STRAND FROM TEMPLE TO COURT] His success, however, means much, for there lie before him great pecuniary rewards, fame, perhaps a judgeship, or possibly an attorney-generalship, both of which, unlike their prototypes in America, mean very high compensation, to say nothing of the honor and the title which usually accompany such offices. The English Bar is small and the business very concentrated, but no statistics are available, for many are called who never practice. By considering the estimates of well-informed judges, barristers and solicitors, it seems that the legal business of the Kingdom is handled by so small a number as from 500 to 800 barristers, although the roll of living men who have been called to the Bar now includes 9,970 names. We have no Bar with which to institute a comparison, for each county of every State has its own and all members of county Bars, practicing in the appellate court of a State, constitute the Bar of that State, which is a complete entity. Great commercial centres have larger ones and have more business than rural localities, but no Bar in America is national like that of London. It would be interesting, if it were possible, to compare the proportion of the population of England, which pursues the law as a vocation, with that of the United States, but no figures exist for the purpose. The number of barristers includes, as already stated, those who do not practice, while an enumeration of the solicitors' offices would exclude individual solicitors employed by others, as will be explained hereafter. The aggregate of these two uncertain elements, however, would be about 27,000. The legal directories give the names of something like 95,000 lawyers in America of whom about 27,000 appear in fifteen large cities--New York, for example, being credited with over 10,000, Chicago with over 3,500 and San Francisco with about 1,500--leaving about 69,000 in the smaller towns and scattered throughout the land. These tentative, and necessarily vague, suggestions rather indicate that the proportion of lawyers may not be very unequal in the two countries. CHAPTER IV BARRISTERS--THE COMMON LAW AND THE CHANCERY BARS BAR DIVIDED INTO TWO PARTS--NO DISTINCTION BETWEEN CRIMINAL AND CIVIL PRACTICE--LEADERS--"TAKING HIS SEAT" IN A PARTICULAR COURT--"GOING SPECIAL" --LIST OF SPECIALS AND LEADERS--SIGNIFICANCE OF GOWNS AND "WEEPERS"--"BANDS"--"COURT COATS"-- WIGS IN THE HOUSE OF LORDS--BARRISTERS' BAGS, BLUE AND RED. The Bar is divided into two separate parts--the Common Law Bar and the Chancery Bar; for a barrister does not try cases of both kinds as in America. The solicitor knows whether he has a law or equity case in hand, and takes it to the appropriate barrister. Common law barristers have their chambers chiefly in the Middle Temple and Inner Temple; chancery men, largely in Lincoln's Inn, and the two kinds of barristers know little of, and seem even to have a kind of contempt for, each other. Thus a common law barrister passes his life in jury trials and appeals; whereas a chancery man knows nothing but courts of equity, unless he follows a will case into a jury trial as a colleague of a common law man to determine an issue of _devisavit vel non_. And there are further specializations--although the divisions are not so marked--into probate, divorce or admiralty men. Besides, there is what is known as the Parliamentary Bar, practicing entirely before Parliamentary committees, boards and commissions. It is, however, curious that in England no apparent distinction exists between civil and criminal practice and common law barristers accept both kinds of briefs indiscriminately. At the Chancery Bar there is a peculiar subdivision which has already been mentioned. Having reached a certain degree of success and become a K. C., a barrister may "take his seat" in a particular court as a "leader" by notifying the Judge and informing the other K. C.'s who are already practising there. Thereafter he can never go into another, except as a "special," a term which will be explained presently. For three pence, at any law stationer's, one can buy a list of the leaders in the six chancery courts, varying in number from three to five and aggregating twenty-five, and if a solicitor wishes a leader for his junior in any of these courts he must retain one out of the limited list available or pay the "special" fee. Hence, these gentlemen sit like boys in school at their desks and try the cases in which they have been retained as they are reached in rotation. But even for a leader at the Chancery Bar, one more step is possible, a step which a barrister may take, or not, as he pleases, and that is: he may go "special." This means that he surrenders his position as a leader in a particular court and is open to accept retainers in any chancery court; but his retainer, in addition to the regular brief fee, must be at least fifty guineas or multiples of that sum, and his subsequent fees in like proportion. The printed list also shows the names of these "specials," at present only five in number. The list of leaders and specials in 1910 reads as follows: A LIST OF HIS MAJESTY'S COUNSEL USUALLY PRACTICING IN THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE. --------------- THE FOLLOWING COUNSEL ARE NOT ATTACHED TO ANY COURT, AND REQUIRE A SPECIAL FEE:-- Mr. Levett: Mr. Astbury: Mr. Upjohn: Mr. Buckmaster. --------------- COUNSEL WHO HAVE ATTACHED THEMSELVES TO PARTICULAR COURTS, ARRANGED IN THE ORDER IN WHICH THEY ARE ENTITLED TO MOVE:-- --------------------+-------------+------------------------+----------- Mr. Justice Joyce | Date of | Mr. Justice Warrington | Date of Lord Chancellor's | Ap'ointment | Chancery Court 2 | Ap'ointment Court | | | --------------------+-------------+------------------------+----------- Mr. T. R. Hughes | 1898 | Mr. Henry Terrell | 1897 Mr. R. F. Norton | 1900 | Mr. T. H. Carson | 1901 Mr. R. Younger | 1900 | Mr. George Cave | 1904 | | Mr. A. C. Clauson | 1910 --------------------+-------------+------------------------+------------ Mr. Justice Eve | Date of |Mr. Justice Swinfen Eady| Date of | Ap'ointment | Chancery Court 1 | Ap'ointment --------------------+-------------+------------------------+------------ Mr. P. O. Lawrence | 1896 | Mr. W. D. Rawlins | 1896 Mr. Ingpen | 1900 | Mr. E. C. Macnaghten | 1897 Mr. Dudley Stewart- | | Mr. N. Micklem | 1900 Smith | 1902 | | Mr. A. H. Jessel | 1906 | Mr. Frank Russell | 1908 Mr. E. Clayton | 1909 | | ====================+=============+========================+============ Mr. Justice Melville| Date of | Mr. Justice Parker | Date of | Ap'ointment | Chancery Court 4 | Ap'ointment --------------------+-------------+------------------------+------------ Mr. Bramwell Davis | 1895 | Mr. W. F. Hamilton | 1900 Mr. J. G. Butcher | 1897 | Mr. M. L. Romer | 1906 Mr. C. E. E. Jenkins| 1897 | Mr. E. W. Martelli | 1908 Mr. A. F. Peterson | 1906 | Mr. A. Grant | 1908 Mr. F. Cassel | 1906 | Mr. J. Gatey | 1910 ====================+=============+========================+============ NOTE--Counsel attached to the above Courts usually also practice before the Judge to whom the Companies winding-up matters are attached. Printed and Published by THE SOLICITORS' LAW STATIONERY SOCIETY, LIMITED, 22. CHANCERY LANE, W. C., 29, WALBROOK, E. G., 6, VICTORIA STREET, S. W. --------------- Chancery forms of all kinds kept in stock. --------------- Price Threepence. [Transcriber's Note: In the original text, the section for M. Justices Melville and Parker appears on the following page, across from the section for M. Justices Joyce and Washington.] The dress of barristers is the same for the Common Law Bar as for the Chancery Bar, but the details of both gown and wig signify to the initiated much as to the professional position of the wearer. The difference between the junior's stuff gown and the leader's silk one has already been referred to, but it is not true that a barrister having "taken silk," that is, having become a K. C. or a leader, always wears a silk gown, for, if he be in mourning, he again wears a cotton gown, as he did in his junior days, but, to preserve his distinction, he wears "weepers"--a six-inch deep, white lawn cuff, the name and utility of which originated before handkerchiefs were invented. Moreover, when in mourning his "bands"--the untied white lawn cravat, hanging straight down, which all barristers wear--have three lines of stitching instead of two. Under his gown, a K. C. wears a "court coat," cut not unlike an ordinary morning coat, though with hooks and eyes instead of buttons, while the junior wears the conventional frock coat. On a hot day, a junior wearing a seersucker jacket and carelessly allowing his gown to disclose it, may receive an admonition from the court, whispered in his ear by an officer. Wigs, which were introduced in the courts in 1670, and have long survived their disappearance in private life, were formerly made of human hair which became heavy and unsanitary with repeated greasing. They required frequent curling and dusting with powder which had a tendency to settle on the gown and clothing. About 1822, a wig-maker, who may be regarded as a benefactor of the profession, invented the modern article, composed of horse hair, in the proportion of five white strands to one black; this is so made as to retain its curl without grease, and with but infrequent recurling, and it requires no powder. The wig worn by the barrister in his daily practice has already been described, but, when arguing a case in the House of Lords he has recourse to an extraordinary head-dress, which is precisely the shape of a half-bushel basket with the front cut away to afford him light and air. This, hanging below the shoulders, has an advantage over the Lord Chancellor's wig in being more roomy, so that the barrister's hand can steal inside of it if he have occasion to scratch his head at a knotty problem, whereas his Lordship, in executing the same manoeuvre, inevitably sets his awry and thereby adds to its ludicrous effect. To the unaccustomed eye, the wig, at first, is a complete disguise. Individuality is lost in the overpowering absurdity and similarity of the heads. Then, too, there is an involuntary association of gray hair with years, making the Bar seem composed exclusively of old gentlemen of identical pattern. The observer is somewhat in the position of the Indian chiefs, who, having been taken to a number of eastern cities in order to be impressed with the white man's power, recognized no difference between them--although they could have detected, in the deepest forest, traces of the passage of a single human being--and reported upon returning to their tribes that there was only one town, Washington, and that they were merely trundled around in sleeping cars and repeatedly brought back to the same place. By degrees, however, differences between individuals emerge from this first impression. Blond hair above a sunburned neck, peeping between the tails of a queue, suggests the trout stream and cricket field; or an ample cheek, not quite masked by the bushel-basket-shaped wig, together with a rotundity hardly concealed by the folds of a gown, remind one that port still passes repeatedly around English tables after dinner. But it must be said that, while the wig may add to the uniformity and perhaps to the dignity--despite a certain grotesqueness--of a court room, yet it largely extinguishes individuality and obliterates to some extent personal appearance as a factor in estimating a man; and this is a factor of no small importance, for every one, in describing another, begins with his appearance--a man's presence, pose, features and dress all go to produce prepossessions which are subject to revision upon further acquaintance. One thing is certain, the wig is an anachronism which will never be imported into America. For the Bar to adopt the gown (as has been largely done by the Bench throughout the country) would be quite another matter and it seems to work well in Canada. This would have the advantage of distinguishing counsel from the crowd in a court room, of covering over inappropriateness of dress and it might promote the impressiveness of the tribunal. The bag of an English barrister is also an important part of his outfit. It is very large, capable of holding his wig and gown, as well as his briefs, and suggests a clothes bag. It is not carried by the barrister himself, but it is borne by his clerk. Its color has a deep significance. Every young barrister starts with a _blue_ bag and can only acquire a _red_ one under certain conditions. As devil, and as junior, it is not considered _infra dig._ to carry his own bag and he has ever before him the possibility of possessing a red bag. At last he succeeds in impressing a venerable K. C. by his industry and skill in some case, whereupon one morning the clerk of the K. C. appears at the junior's chambers bearing a _red_ bag with his initials embroidered upon it--a gift from the great K. C. Thereafter he can use that coveted color and he may be pardoned for having his clerk follow him closely for awhile so there may be no mistake as to the ownership. Custom requires him to tip the K. C.'s clerk with a guinea and further exacts that the clerk shall pay for the bag, which costs nine shillings and sixpence, thus, by this curious piece of economy, the clerk nets the sum of eleven shillings and sixpence and the K. C. is at no expense. CHAPTER V SOLICITORS LINE WHICH SEPARATES THEM FROM THE BAR--SOLICITOR A BUSINESS MAN--FAMILY SOLICITORS--GREAT CITY FIRMS OF SOLICITORS--THE NUMBER OF SOLICITORS IN ENGLAND AND WALES--TENDENCY TOWARD ABOLISHING THE DISTINCTION BETWEEN BARRISTER AND SOLICITOR-- SOLICITORS WEAR NO DISTINCTIVE DRESS EXCEPT IN COUNTY COURTS--SOLICITORS' BAGS. The line which separates solicitors from the Bar--the barristers--is difficult for an American to fully appreciate, for in our country it does not exist. The solicitor, or attorney, is a man of law business--not an advocate. A person contemplating litigation must first go to a solicitor, who guides his conduct by advice in the preliminary stages, or occasionally retains a barrister to give a written opinion upon a concrete question of law. The solicitor conducts all the negotiations or threats which usually precede a lawsuit and if compromise is impossible he brings a suit and retains a junior barrister by handing him a brief, which consists of a written narrative of the controversy, with copies of all papers and correspondence--in short, the facts of the case--and which states on its back the amount of the barrister's fee. The brief is engrossed or type-written on large-sized paper with very broad margins for notes, and is folded only once and lengthwise so as to make a packet fifteen by four inches. All Englishmen of substance, and all firms and corporations, have their regular solicitors and the relation is frequently handed down from generation to generation. It is, of course, unusual except in large corporations to have a permanent barrister, because the solicitor selects one from time to time, as the occasion requires, and the client is rarely even consulted in the choice. When an Englishman speaks of his lawyer, he always means his solicitor and if he wishes to impress his auditor with the seriousness of his legal troubles, he adds that his lawyer has been obliged to take the advice of counsel--perhaps of a K. C. Hence, the solicitor, unlike the barrister, is not ambitious for fame, nor does he worry because he can not become the Attorney-General or a judge; his mind is intent upon the pounds, shillings and pence of his calling. He may seek business, which the barrister can not do, and he is something of a banker, often a promoter. Some solicitors, especially those practicing at Liverpool, are admiralty men, others are adepts in the organization of corporations and in litigation arising concerning them and there are many other specialties. Some are men of the highest grade--particularly those employed by big companies or by families with large estates. The venerable family solicitor of the novel and stage--that custodian of private estates and secrets who appears in all domestic crises, warning the wayward son, comforting the daughter whose affections are misplaced and succoring the gambling father, is sufficiently familiar. The worldly experience, which this kindly old gentleman brings from his musty office, is invaluable to his clients. The large City firms of solicitors, on the other hand, occupy spacious suites of offices and maintain elaborate organizations like modern banks, with scores of clerks distributed in many departments, whose duties are so specialized that no one of them has much grasp of the business as a whole. The name of such a firm, appearing as sponsor for an extensive financial project, carries weight in the business world and its heads enjoy generous incomes, besides being men of much importance upon whom the honor of knighthood is sometimes conferred. In all England and Wales only about 17,000 solicitors took out annual certificates last year. This indicates the number of offices and does not include clerks (many of whom have been admitted to practice as solicitors), nor those who, for one reason or another, do not practice. Instead of being concentrated, like the barristers, in the Inns of Court in London, solicitors are scattered all over the town and throughout the Kingdom itself. Some, especially in the minor towns or poorer quarters of London, are in a small way of business and must earn rather a precarious living. Others are of a still lower class and seek business of a more or less disreputable character by devious methods, but all are supposed to have been carefully educated in the law and are answerable to their Society and to the courts for questionable practices. The division of the profession between the solicitors and the Bar is no doubt a survival in modern, or socialistic, England of aristocratic conditions which it is the tendency of the times to weaken, if not eventually to abolish. It is somewhat hard upon the solicitor of real ability to be confined to a limited field and to feel that, no matter how great his powers and acquirements, it is impossible to rise to the best position in his profession without abandoning his branch and beginning all over again in the barrister's ranks. In associating with solicitors, one can not fail to be struck by their attitude towards barristers, as a class, which is hardly flattering to the latter; they frequently allude somewhat lightly to them as though they were useless ornaments and as if such a division of the profession were rather unnecessary. Upon asking whether the distinction exists in America, they receive the information that it does not with evident approval. The advantages, however, of the separation of the functions of the solicitor from those of the barrister are distinctly felt in the superior skill, as trial lawyers, developed by the restriction of court practice to the limited membership of the Bar, which would hardly exist if the practice were distributed over the whole field of both branches of the profession. Then, too, the small number of persons composing the Bar enables greater control by the benchers over their professional conduct, and helps to maintain a high standard of ethics and the feeling of _esprit de corps_. Moreover, the Bar is not distracted from the science, by contact with the business, of the law and it is saved from the contaminating effect of participation in the sordid details of litigation. At the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an attitude approaching dilettanteism. If the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the Bar. Already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. The more this progresses, the greater will be the number of solicitors who will become known as court practitioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed. While such is the drift in England, there is at the same time a tendency in America to approach English conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business the science, by contact with the business, of the law and it is saved from the contaminating effect of participation in the sordid details of litigation. At the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an attitude approaching dilettanteism. If the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the Bar. Already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. The more this progresses, the greater will be the number of solicitors who will become known as court practitioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed. While such is the drift in England, there is at the same time a tendency in America to approach English conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business of the law, and indeed one now occasionally hears of such partnerships designating one of their number as "counsel" to the firm--which is, perhaps, an affectation. Solicitors often become barristers--sometimes eminent ones, for they have an opportunity to study other barristers' methods, and have acquired a knowledge of affairs. Of course they must first retire as solicitors and enter one of the Inns for study. The late Lord Chief Justice of England began his career as an Irish solicitor. Solicitors wear no distinctive dress (except a gown when in the county court, as will be explained hereafter) but attire themselves in the conventional frock or morning coat and silk hat which is indispensable for all London business men. They all, however, carry long and shallow leather bags, the shape of folded briefs, which are usually made of polished patent leather. CHAPTER VI BUSINESS AND FEES INFLUENTIAL FRIENDS OF BARRISTER--JUNIOR'S AND LEADER'S BRIEF FEES--FEES OF COMMON LAW AND CHANCERY BARRISTERS--BARRISTER PARTNERSHIPS NOT ALLOWED--ENGLISH LITIGATION LESS IMPORTANT THAN AMERICAN--CLERKS OF BARRISTERS AND SOLICITORS HAGGLE OVER FEES--SOLICITORS' FEES. An American lawyer will be curious concerning two things, about which he will get little reliable information, viz., how legal business comes and what are its rewards. The barrister supplements his reading, sometimes by practical service for a short time in a solicitor's office and nearly always by the deviling before described, and thus, in theory--and according to the traditions of the Bar--may pass years awaiting recognition. Finally, briefs begin to arrive which are received by his clerk with the accompanying fee, in gold, as to which the barrister is presumed to be quite oblivious. This, however, is not always the experience of the modern barrister, who may have some relative occupying the position of chairman of a railway, or of a large City company, the solicitors of which will be apt to think of this particular man when retaining counsel. In such fashion and other ways, while he can not receive business directly from an influential friend or relative, but only through the medium of a solicitor, yet such connections are often definitely felt in giving the young barrister a start. His eventual success, however, as in every other career, depends upon how well he avails himself of his opportunities. When briefed as a junior, without a leader, in a small action, his fee may be "3 & 1," meaning three guineas for the trial and one guinea for the "conference" with the solicitor. When briefed with a leader, however, his fee, which is always endorsed on the brief, may read: "Mr. J. Jones 35 guineas 1 guinea 36 guineas "With you SIR J. BLACK, K. C." The leader's brief will be endorsed: "Sir J. Black, K. C. 50 guineas 2 guineas 52 guineas "With you MR. J. JONES." The fee is not always sent by the solicitor with the brief, but a running account, with settlements at intervals, is not uncommon. Contingent fees are absolutely prohibited, the barrister gets his compensation, or is credited with it, irrespective of the result. All speculation as to professional earnings of a barrister must be vague, for there can be little accurate knowledge on such a subject. Chancery men seem to earn much less than common law barristers and their business is of a quieter and less conspicuous character. At the fireside in chambers in Lincoln's Inn, if the conversation drifts to fees, one may hear a discussion as to how many earn £2,000, and a doubt is expressed whether more than three men average £5,000, but the gossips will add that they do not really know the facts. The fees of common law men, while larger, are equally a matter of guess-work. One hears of the large earnings of Judah P. Benjamin a generation ago, and R. Barry O'Brien, in his life of Sir Charles Russell, quotes from his fee book yearly showing that the year he was called to the Bar he took only £117, while thirty-five years later--in 1894--just before he was elevated to the bench, his fees for the year were £22,517. For the ten years preceding he had averaged £16,842, and, for the ten years before that, £10,903. The biographer of Sir Frank Lockwood, a successful barrister, relates that he earned £120 his first year and that this increased to £2,000 in his eighth year, but he was glad to accept during his twenty-second year the Solicitor Generalship, paying about £10,000. The Attorney General, who, although his office is a political one, is generally a leading barrister, receives a salary of £7,000 and his fees are about £6,000 more. The clerk of a one time high judicial officer now dead, is authority for the statement that the year before he went upon the bench his fees aggregated 30,000 guineas. It seems to be the general opinion of those well informed that the most distinguished leader may, at the height of his career, take 20,000 to 25,000 guineas. All such estimates must, however, be received with the greatest reserve, and no one could undertake to vouch for them. Barristers' fees are, of course, for purely professional services and do not come within the same category as the immense sums one occasionally hears of being received by American lawyers--not, however, as a rule, for real professional services in litigation, but for success in promoting, merging or reorganizing business enterprises. The fees of English barristers are practically all gain, as there are no office expenses worth mentioning. No suit can be brought by a barrister to compel the payment of a fee although the services have been performed, nor is he liable for negligence or incompetence in his professional work. Partnerships, which are common between solicitors, are unknown to barristers and anything approaching them would be the subject of severe discipline. This is a fundamental law of the profession, never questioned, as to which the rulings of the governing body of the Bar (some of which will be quoted in a later chapter) relate only to the application of the principle to different circumstances. In order to appreciate the abhorrence of partnerships, it is necessary to bear in mind the fact that the great science of the law is to the barrister strictly a profession, having no affinity to a business or a trade. No barrister can have the slightest personal concern in the interests which he advocates, his fee being never contingent, nor is he ever permanently retained by salary or otherwise. He is a purely intellectual ally of the court in the consideration of questions, more or less abstract, as to which he merely supports the view he has undertaken to urge. Upon the whole, professional rewards do not strike an American as particularly large, remembering that the recipients are at the top of the profession in London, which means the Kingdom. One can not escape the impression that litigation in England deals with minor matters as compared with that of America. There are no American data for comparison with the admirable judicial statistics of England, but, in listening to the daily routine of the London courts, in the tight little Island with its dense population and well-settled rights, there seems to be a complete absence of those far-reaching litigations which arise in America, involving enormous sums, or conflicting questions concerning a whole continent, with its railroads and rivers extending as avenues of commerce for thousands of miles and with ramifications of trade running into many States, each with its separate sovereignty. One circumstance rather indicates that the popular estimate of fees is above the truth, and this is the acceptance of judgeships by the most eminent barristers; still, judicial salaries in England are high--£5,000 at the least--not to speak of the compensation of the Chief Justice and Lord Chancellor, which are more. Solicitors' clerks occasionally haggle and bargain with barristers' clerks in an undignified manner--but of this their masters are supposed to be in ignorance. And it seems that the matter of fees is sometimes abused. In the case of a celebrated barrister, now dead, it is whispered that his clerk would receive a retainer of 500 guineas on behalf of the K. C. who would be missing upon the cause being reached. The clerk would then tell the solicitor's clerk that the K. C. was overcrowded, and he did not believe he could get him into court unless 250 guineas were added to the fee. After grumbling and protesting, the addition would be forthcoming, whereupon the clerk would readily find the K. C. strolling in the Temple Gardens, and fetch him to court. This, however, was not regarded as honest and the story itself is doubted. In the case of solicitors, the acquirement of a practice is apparently much like establishing a mercantile business. The majority doubtless begin as clerks in existing firms, and, if men of ability, either rise in the firm or form their own associations. They are not hampered by the same considerations of delicacy and etiquette as the barrister, but may seek employment, although, of course, the one guarantee of real success is the honest and efficient handling of affairs with which they may be entrusted. The profits of a large firm of solicitors are very great. Much of the money, however, is made in the transaction of business which is not of the profession at all, such as the promotion of enterprises, the flotation of companies, just as there is a class of American lawyers pursuing the same lines. A solicitor's compensation, called "solicitor's costs," is not a matter of discretion, but is regulated by a recognized scale, although he may make a special agreement with his client in advance, but it must be in writing and is subject to review by a Master as to its reasonableness. For an appearance in court the charge runs from 6s. 8d. to £1. 1s. 0d., according to the nature of the business and the time consumed. A charge reading, "To crossing the street to speak to you and finding it was another man, 1s. 3d.," has been ruled out. A solicitor's compensation for services other than litigation is obtained by rendering to the client a regular bill, minutely itemized. The writing of a post card will justify a charge of three shillings and sixpence, but, for a letter the demand may be five shillings and sixpence with a half-penny for the stamp. Each interview at the office, and every visit to the client's town or country house, is charged for; while incidental outlays and expenses are carefully detailed, including the fees paid the barrister for his opinions, for the drafting of pleadings and for appearance in court. If the matter has involved proceedings in court in which the solicitor's client has been successful, then various costs are allowed as part of the judgment to be recovered from the opposite side, although they do not necessarily equal the charges to be paid by the client, as will be explained when dealing with the subject of costs. Solicitors, unlike barristers, may sue for their compensation and are liable for negligence, although not for mistaken opinions upon questions of law. CHAPTER VII DISCIPLINE OF THE BAR AND OF SOLICITORS THE GENERAL COUNCIL OF THE BAR--THE STATUTORY COMMITTEE OF THE INCORPORATED LAW SOCIETY --RULINGS ON VARIOUS MATTERS--LAPSES FROM CORRECT STANDARDS. The discipline of the Bar--the maintenance of correct standards of professional conduct--is everywhere a difficult problem. In England, with the experience of centuries, good results are obtained, upon the whole, considering that human nature is alike the world over. The General Council of the Bar governs the Bar; the Statutory Committee of the Incorporated Law Society governs the solicitors. These two bodies occasionally confer together--or rather exchange views--in matters concerning the relations of the two branches of the profession. The General Council of the Bar, having heard a complaint against a barrister, reports its findings with recommendations--perhaps of disbarment in exceptionally serious cases--to the Benchers of the barrister's Inn. They alone have the power to act and nearly always follow the recommendation. Probably little difference exists in their deliberations, methods and actions in serious cases and that of corresponding disciplinary agencies in the United States, whether called a Bar Committee or a Committee of Censors. Disbarment is an extreme penalty in both countries, inflicted only for moral turpitude amounting usually to crime. But the General Council of the English Bar renders an even greater service to the profession in establishing standards of professional conduct, not only in respect of morality, but in questions of propriety and good taste. This is accomplished by resolutions upon submitted questions which seem to fall into two classes: those which are found contrary to a "Rule of the Profession" and those which are pronounced to be "Undesirable Practices". These rulings (without names or other particulars which might lead to identification) are all reported in the "White Book", an annual book of practice in general use, and constitute a code of ethics and etiquette. An examination of these rulings shows very few findings upon rudimentary morals; it apparently is taken for granted that lawyers are familiar with such commandments as "Thou shalt not steal." They deal chiefly with the more refined questions of professional conduct which often present difficulties even to men of honest instincts but who lack natural delicacy or experience. An example of a course contrary to a rule of the profession is the following: "_County Court Judge's Sons_: It should be recognized as a 'Rule of the Profession' (the quotation marks are the Council's) that no barrister should habitually practice in any county court of which his father, or any near relative, is the judge." An. St. 1895-1896, p. 6. It is not necessary to discuss whether this would be applicable in America. Here the principle is probably recognized in the larger cities by the best element, whereas in the country, with only one county judge, it would prevent a son's following his father's profession. The ruling merely illustrates that in England there is an authoritative body which could be asked to declare how the profession regards such a difficult question as, whether suitors should be obliged to see their cases won or lost by the arguments of a son addressed to his father, or whether the son should be excluded from the only court of his vicinity. That a kind of sporting magnanimity is desirable but not required by any 'rule of the profession', is shown in the following, which refers to revenue laws requiring receipts and other papers to be stamped in order to constitute evidence: "_Stamps_: It is undesirable that counsel should object to the admissibility of any document upon the ground that it is not, or is insufficiently, stamped, unless such defect goes to the validity of such document. It is also undesirable that counsel should take part in any discussion that may arise in support of any objection taken on the ground aforesaid unless invited to do so by the court." An. St. 1901-1902, p. 5. The next point has been the subject of judicial rulings in America to the same effect: "_Damages_: _Mentioning in Court Amount claimed_: There is a general understanding that it is irregular for plaintiff's counsel to mention during the trial the amount claimed by way of damages." An. St. 1898-1899, p. 11. A series of rulings hold that a barrister occupying the office of town clerk, or clerk of any similar public body, "ought not" to practice at the Bar and that it is "undesirable" for such an official to be called to the Bar. (An. St. 1896-1897, p. 9, 1898-1899, p. 10, 1899-1900, p. 5.) Again it has been held that there is a generally understood "Rule of the Profession" that a barrister should not practice at Quarter or Petty Sessions in the county of which he is a magistrate, but he may practice at the Assizes for his county. (An. St. 1901-1902, p. 6.) The following illustrates the aversion to anything approaching advertising: "_Photographs in Legal Newspapers_: It is undesirable for members of the Bar to furnish signed photographs of themselves for publication in legal newspapers." An. St. 1900-1901, p. 8. Likewise the following: "_Names of Counsel giving Opinions: Publication of_: The practice of certain newspapers publishing the names of counsel in connection with opinions printed in their columns has been altered to meet the wishes of the Council." An. St. 1896-1897, p. 9. This is a little obscure and furnishes no information as to what alteration was effected. The daily papers invariably print the names of all counsel and solicitors engaged in any reported litigation and the object of this ruling is probably to prevent indirect advertising by writing opinions upon current topics. In this connection it may be remarked that the law reports of the leading papers are far superior to similar reports in most American journals. The chief difference is that, instead of disjointed fragments throwing the sensational into disproportionate relief and thus conveying little idea of the whole, the reports are really accurate and symmetrical, the drama, however, losing none of its interest. The perusal of these reports, instead of leaving a desire to know what really occurred, gives a feeling of being fully informed. Brevity is served by admirable condensation of the evidence, arguments and rulings, and by the use of the third person in narration. By occasional recourse, too, to the first personal pronoun, and a verbatim report of graphic passages, the important and interesting phases of the case are emphasized. These reports indicate that the authors are men trained both in the law and in writing. So well done are those of the London _Times_ that they are generally used in court for the citation of recent decisions, and, when collected and issued periodically, are universally employed for reference. The English Courts scrupulously guard against the trial of cases in the newspapers rather than in court. In the recent trial of Dr. Crippen for murder, the proprietor of a provincial newspaper which, in printing the news of the arrest, had speculated upon the probability of Crippen's guilt, was summoned before the court after the trial had been concluded and was fined £100 on the ground that the article was calculated to interfere with the cause of justice. A prominent London daily newspaper was likewise fined £200 for relating that Crippen had confessed his guilt, while a London evening paper was fined a like sum because, during the course of the trial, it published a statement not contained in the evidence. Many of the resolutions of the General Council of the Bar deal with the rights and privileges of the profession. One is thus reminded that the Inns of Court, which came into existence with the ancient London Trades Guilds, were founded originally for a like purpose--the protection of a particular occupation. During the established vacations many junior barristers take only a few days' holiday and particularly on the Chancery side, quite a number of them and also a few K. C.'s are at work in their chambers or attend the weekly sittings of the Vacation Court during the greater part of the Long Vacation. It appears, however, that some young devil once attempted to obtain a ruling that another devil should not devil in vacation, but the Council declined to sustain his contention as follows: "_Devilling in Vacation_: There is no 'Rule of the Profession' against it." An. St. 1900-1909, p. 8. A few years ago, there was a newspaper agitation against the Long Vacation which had always extended from August 12th to the first Monday of November. The result of the discussion was to shorten it, by making it begin--as it now does--on August 1st and end on the 12th of October. There are also liberal vacations at Christmas, Easter and Whitsuntide. One resolution of the Council illustrates the fact, already referred to, that barristers are not nearly so intimately identified with litigation conducted by them as are American lawyers and that their cases are more or less like abstract propositions placed in their hands to be advocated. The resolution is as follows: "_Briefs, Obligation to Accept_: The general rule is that a barrister is bound to accept any brief, in the courts in which he professes to practice, at a proper professional fee. Special circumstances may justify his refusal to accept a particular brief. Any complaint as to the propriety of such refusal, if brought to the attention of the Council and by them considered reasonable, would be transmitted by them to the Benchers of the Inn of which the barrister is a member." An. St. 1903-1904, p. 15. Conversely; a barrister can not offer inducements for briefs, as was held in the following: "_Commissions or Presents from Barristers_: Any barrister who gave any commission or present to any one introducing business to him would be guilty of most unprofessional conduct which would, if detected, imperil his position as a barrister." An. St. 1899-1900, p. 6. Again: "_Fees to Barrister's Clerk_: The clerk of Mr. A. informed the clerk of Mr. B. that the latter (Mr. B.) had received a brief on circuit because he had recommended the solicitor to Mr. B. (as was the fact) and suggested that Mr. B. should give him the clerk's fees which he would have received on it, had Mr. A. been on circuit and so able to accept the brief. Mr. B., considering that such a practice might lead to serious abuses, if it were countenanced, requested a pronouncement of the Council on the matter. The Council expressed the opinion that the practice referred to is absolutely improper." An. St. 1904-1905 VII, p. 11. A number of rulings serve to define the limitations or partial exceptions to the rule that a barrister's clients are exclusively solicitors and that he must never be in direct contact with litigants themselves. For example: "_Non-contentious Business_: There is no rule against a barrister advising in non-contentious business without the intervention of a solicitor, but it is an undesirable practice. If fees should be taken for such opinion, such fees must be marked and paid in the usual way, and on the ordinary scale, not by way of annual payment or salary." An. St. 1896-1897, p. 11. Also: "_Counsel advising on Case submitted by Colonial Advocates_: A counsel does not commit any breach of etiquette in advising, without the intervention of an English solicitor, on a case submitted to him by a colonial advocate in a colony where the professions of barrister and solicitor are combined." An. St. 1902-1903, p. 11. On the other hand, it was held that a barrister "should not" appear as spokesman for a deputation of contractors waiting upon a public body, nor on behalf of an application for a license, without the intervention of a solicitor. The preservation of the barrister's dignity in his relations with the solicitor seems to have induced this: "_Conferences at a Solicitor's Office_: The Council have expressed an opinion that as a general rule it is contrary to etiquette and improper for a barrister to attend conferences at a solicitor's office, but that under exceptional circumstances the rule may be departed from." An. St. 1904-1905, p. 10. The complicated subject of one barrister assisting another, usually in the capacity of a devil, while avoiding quasi-partnerships, has been the occasion for frequent resolutions by the General Council of the Bar, of which the following are a few: "It is not permissible, or in accordance with professional etiquette, for a counsel to hand over his brief to another counsel to represent him in court as if the latter counsel had himself been briefed; unless the client consents to this course being taken.... In the Chancery Division it is not the practice for one junior to hold a brief (other than a mere formal one) for another and the same is true of King's Counsel." "In the King's Bench Division, in the case of juniors, it is not uncommon for one counsel to devil a brief for another: but in the case of King's Counsel it is very seldom done." "There is no rule or settled practice governing the remuneration for devilling, or assistance given by one counsel to another, in the cases above referred to." "With regard to juniors, it is a common practice in the Chancery Division for the one counsel to remunerate the other by paying him an agreed proportion, generally one half, of the fees the former receives in respect of opinions or drafting. In the King's Bench Division, remuneration for devilling of briefs or assistance in drafting opinions is not common. In both Divisions occasionally such work is remunerated either by casual or periodical payments." "An arrangement of this kind is also not unfrequently made in the case of a King's Counsel who desires regular assistance from a junior in the perusal and noting of his briefs." "So far as the Council are aware, there is no practice to pay any remuneration in the rare cases where one King's Counsel holds a brief for another." "In conclusion the Council desires to say that no practice in the least resembling a partnership is permissible or (so far as they know) practiced between Counsel: and they are of opinion that the etiquette of the profession forbids the handing over of work by one counsel to another, outside of the conditions above stated." An. St. 1902-1903, p. 4. A large number of resolutions deal with the subject of fees and refreshers. Thus, it is held that while the Council is not a debt-collecting body, yet, where it is "in the interest of the whole profession" that solicitors who default in payment should be "exposed and punished" assistance may be given by the Council to a barrister in taking proceedings before the Statutory Committee of the Law Society--the solicitor's governing body. (An. St. 1901-1902, p. 13.) Again it was resolved that a junior Chancery man was not precluded by the etiquette of the Bar from accepting a refresher less in amount than two-thirds or three-fifths of the refresher accepted by the leader. (An. St. 1903-1904, p. 14.) Somewhat in the same line is the following: "A King's Counsel should refuse all drafting work and written opinions on evidence as being appropriate to juniors only; but a King's Counsel is at liberty to settle any such drafting and advice on evidence in consultation with a junior. A King's Counsel in accordance with a long-standing 'Rule of the Profession' cannot hold a brief for the plaintiff on the hearing of a civil cause in the High Court, Court of Appeals or the House of Lords, without a junior. It is the usual practice for a King's Counsel to insist on having a junior when appearing for the defendant in like cases and when appearing for the prosecution or the defence on trials of criminal indictments". An. St. 1901-1902, p. 4. The following is more general than most of the resolutions as it states a fundamental rule rather than its refinements: "_Junior and Leader._ _Proportion of Fees._ _Refreshers_:--By long-established and well-settled custom a junior is entitled to a fee of from three-fifths to two-thirds of the leader's fee, and, although there is no rigid rule of professional etiquette which prevents him from accepting a brief marked with a fee bearing a less proportion to his leader's fee, it is in accordance with the practice of the profession that he should refuse to do so in the absence of special circumstances affecting the particular case and that he should be supported by his leader in such action. An. St. 1900-1901, p. 8. (The Council of Incorporated Law Society dissent from the view expressed in this resolution). The same rule applies to refresher". An. St. 1896-1897, p. 11. The necessity for a barrister upon accepting a brief in a circuit of which he is not a member, to see that the solicitor retain a junior belonging to the circuit, which will later be explained, is recognized in the following resolution: "_Special Fees at Assizes_:--The universal practice of the circuits since June 1876 (when the matter was considered by a Joint Committee of all the Circuits) is that a counsel going special on to one circuit from another circuit should, if a King's Counsel, have a special fee of 50 guineas in addition to the brief fee, and that one member of the circuit should be employed on the side on which the counsel comes special." An. St. 1899-1900, p. 8. A resolution provides for the settlement of disputes between barristers and solicitors by their entering into an agreement to leave the questions to arbitration, the board to be composed of the chairman of the General Council of the Bar (or some member of that Council to be named by him) and the President of the Incorporated Law Society (or some member thereof to be selected by him). An. St. 1897-1898, p. 9. The following is a curious resolution: "_Barrister Recommending another Barrister as his Leader or Junior_: A barrister ought not to recommend another as his leader or junior. And such questions as, who is the best man for a witness action in such a court? Which leader is _persona grata_ in such a court? Do you get on all right with X--as your leader? are improper questions and should not be answered." An. St. 1902-1903, p. 3. Illustrative of this ruling was a recent investigation of the charge that a barrister, about to leave town, had recommended another barrister to a solicitor--the objections being that such an act would not only violate the etiquette which forbids any barrister to laud or decry another barrister to a solicitor, but also that it might savor of co-operation in the nature of a partnership which would never be tolerated. The defence was successful, however, in showing that they were old Eton schoolmates and the solicitor knew them equally well. The above extracts show how broad in scope and minute in detail are these authoritative rulings on every phase of professional life and daily practice in England. Many of them would be totally inapplicable to American conditions, and, beyond affording a glimpse of peculiar customs and an elaborate etiquette, possess little value here. They do, however, show that the experience of the best Bar in the world justifies the existence of such a body ready to declare the standards of professional propriety. It should not be inferred that in England there is no lapse from such standards. It requires some diligence to discover individual shortcomings, but inquiry will develop that even "ambulance chasing" is not unknown--although greatly reprehended and despised. If the American observer, on watching the trial of an action, perhaps against an omnibus company for personal injuries, will cautiously comment upon the array of solicitors and counsel representing a plaintiff apparently not possessed of a sixpence, and express wonder that he is able to afford it, the information will be forthcoming that some solicitor's clerk was probably in a neighboring "pooblic" and, hearing of an accident, had followed the injured man, perhaps to the hospital, and got the case for his master, whose remuneration would depend upon the result. Pressing the inquiry further as to whether the solicitor advances the barrister's fees, it will reluctantly be admitted that some barristers have relations with solicitors that should not be looked into too closely--in other words that their fees are contingent. But it will also be added that they are taking great risks of exposure. Any one who has sat on a Bar Committee, or on a Committee of Censors, in America must have been struck by the frequent instances where practitioners have fallen into error from sheer ignorance, due to inexperience or to the fact that they had not been born and bred to the best traditions. This is especially true in these days when law schools are grinding out members of the Bar who have had no real professional preceptors. As disbarment or suspension is too severe a penalty, such lapses pass unreproved and the standards sink, a result much more deplorable than the failure of individual discipline. Many a young lawyer would be induced to mend his ways if privately and fraternally informed of professional disapproval and some would be glad to seek the judgment of such a body if it could be had without exposing names or particulars. In this way, too, a body of rulings on the professional proprieties applicable to American conditions would be steadily forced upon the attention of the whole profession, instead of being locked in the breasts of the more reputable members to govern merely their own conduct. CHAPTER VIII THE CIVIL COURTS THE GENERAL SYSTEM--DIFFERENT COURTS--RULES OF PRACTICE MADE BY LORD CHANCELLOR--JURIES, COMMON AND SPECIAL--JUDGES AND HOW APPOINTED--JUDGES' PAY--COSTS--COURT NOTES--SOME DIFFERENCE IN ENGLISH AND AMERICAN METHODS. The general system of the English courts may be indicated without detailing the exact limitations of jurisdiction which would be too technical for present purposes. Prior to 1873 there were a large number of courts with various titles, which had grown up through centuries of custom and legislation. But they were nearly all abolished by an Act of Parliament, or rather their functions were merged into the present far simpler system. In this radical re-arrangement, however, two courts--the highest and the lowest--survived; the House of Lords and the County Courts remain as they were. Thus came into being the Supreme Court of Judicature, composed of two branches--the High Court of Justice and the Court of Appeal. The High Court is the one of immediate interest because here are begun all litigations of every description, excepting the minor matters which go to the County Courts, or, perhaps, to the Registrar's Court. The High Court is separated into three parts known as the King's Bench Division, devoted to jury trials which constitute the great bulk of business, the Chancery Division, where equity suits are considered, and the Probate, Divorce and Admiralty Division which deals, as its name implies, with the estates of deceased persons, with divorce, and with marine matters. Each of these three divisions has a chief; the Lord Chief Justice of England presides over the King's Bench Division and the Lord Chancellor over the Chancery Division, while the head of the Probate and Admiralty Division, enjoys no higher title than that of "President." The number of judges in the different divisions is fixed by legislation and is determined by the extent of the business in each. In every court, except appeal courts, the evidence is heard by a single judge--of course in a separate court room--with the assistance of a jury in the King's Bench Division, but, except in divorce cases, usually without any jury in the other tribunals which are equity courts. It was the evident intention of Parliament to fuse equity and common law practice, but experience has not proved that this is very feasible, so that the line which separates the two is nearly as distinct as it ever was. Nevertheless, a certain amount of progress has been made in this direction--probably all that would be wise--particularly in the admission of equitable defenses in common law actions and in the facility with which, on the other hand, an equity court is enabled to obtain the verdict of a jury upon disputed facts without the old and cumbersome method of remitting the whole case to a common law court for a trial upon a special issue. The rules of practice are established and can be changed by the Lord Chancellor with the approval of a majority of the judges. It is provided, however, that such changes must be submitted to Parliament and that they become void if either House passes a resolution of veto within forty days. The consequences of this very sensible arrangement are that the vast improvements in practice which have so greatly facilitated and accelerated English litigation, have been effected by the courts and the Bar of their own initiative without the necessity to rely upon the action of a legislative body largely incapable of dealing with such technical and important questions. This experience should be borne in mind in the present movement to lessen the law's delays in America, and the existing power of the courts should be utilized, or, if necessary, broadened, rather than permit Congress and the legislatures to attempt to deal with details which they can not in the nature of things fully understand. It will be recalled that the executive head of the American Government has not scrupled recently to designate our methods as, in some respects, "archaic and barbarous," and has directed attention to the present equity practice of the United States Courts. In them, testimony upon disputed facts is still elicited by an examiner--a method long since abandoned in progressive communities. Such an official, temporarily appointed by the court, possessing but limited power and often with little experience, merely presides, while a stenographer notes the oral evidence subsequently to be reproduced in typewriting or print. Thereafter, in some instances, a Master is appointed to consider the testimony and report his conclusions, while later the court itself does the same thing over again. All lawyers know how weak in effect is evidence when reduced to cold type, as compared with that which falls from the lips of living witnesses, and how faint and inaccurate are the impressions produced by the former upon the mind of a judge, no matter how industrious and able he may be. Hence, in enlightened systems of jurisprudence, the witnesses are called directly before the tribunal which is to decide the facts upon their testimony--exactly as they would be brought before a jury. The power to bring about such a salutary change inheres in the Supreme Court of the United States which, by the simple promulgation of an order to that effect, without any further legislation, can forever abolish the obsolete system now in vogue. This was accomplished years ago in England and has also been brought about in some American States--such as Pennsylvania, Vermont and others--with the result that equity proceedings have been much shortened in duration and lightened in cost, to the infinite relief of court, counsel and litigants. In the King's Bench Division--the only court holding jury trials except the County Courts--the jury of twelve men may be either a "common" jury or a "special" jury. Common juries are composed of men having practically no property qualification, it being required only that they shall occupy realty the rental of which is equivalent to £10 a year. The result is to exclude those merely who are practically homeless, as such a rental represents less, perhaps, than the hire of a single room. The requirements therefore for service on an ordinary jury would seem to be little more than that the juror should have a known place of residence. His compensation for services is but one shilling a day. Special juries, on the other hand, which may be claimed as a right by either party and whose services are paid for by the litigants rather than by the Government, receive one guinea a day and the members must occupy premises renting for not less than £50 a year, or a farm worth £300 yearly, or they may be bankers, merchants, or persons upon whom minor titles have been bestowed. The employment of special juries is increasing in frequency at the expense of ordinary juries and it seems that the facility to obtain them is also cutting down the number of trials which the law permits to be conducted by the judges without any jury at all, provided the parties so agree. The Chancery Division, as stated, is the tribunal for equity trials where juries are rarely employed, but the judge determines both the law and the facts. Into this court therefore comes all the equity litigation of England, although, for very limited sums, there is a concurrent jurisdiction in the County Courts. The separation which exists between practice in this court, and the barristers who practice therein, as compared with the common law courts, has already been described at length. The judges in the equity courts never wear gowns containing any colors except black. The Probate, Divorce and Admiralty Division of the High Court of Justice is, like the Chancery Division, a court of equity, as distinguished from a court of law, in which the trials are conducted by a judge without a jury. Here are considered all matters concerning decedent's estates, but the Chancery Division has to do with the construction of wills and the distribution of property. Divorces occupy much time of this Court and furnish sensational material for English newspapers. They form an exception to the general rule in the Probate, Divorce and Admiralty division in the presence of a jury and in the submission of the facts to them. The Admiralty Court is of course confined to maritime matters and the room is adorned by a gilt anchor fixed upon a shield hung upon the wall behind the presiding judge, who is assisted in the technical matters by two Trinity Masters--retired sea captains. The County Courts number about 500, not confined to London but dotted all over England, the districts of which are much smaller than counties, notwithstanding they are called County Courts. One judge suffices for a number of these courts which are grouped into circuits. In most courts the judge is allowed to decide both facts and law, but a jury of eight men can be had at the instance of either party. The jurisdiction is at present limited, in common law cases, to £100 and, in equity actions, to £500; while there is no jurisdiction whatever in the matters of divorce, libel or slander. In these courts, as will be explained later, barristers rarely appear but solicitors are allowed to act as advocates. The County Courts were established in 1846 and, as mentioned, were not disturbed in the reorganization of the courts in 1873, the idea being to bring the administration of justice closer to the people's homes and to reduce its cost. The County Courts no doubt serve to relieve the High Court of a great mass of petty litigation, and in that respect are extremely useful, if rather uninteresting. An appeal lies from the County Court to the High Court on points of law but it is not often exercised. For very small matters--chiefly the collection of trifling debts--the Registrar's Court, which is likewise not confined to London, performs useful functions which will hereafter be described more particularly. Besides the courts above mentioned, the Lord Mayor's Court in the City of London and the Palatine Court and Court of Passage, in the north of England, are local courts which transact a great deal of business. Such, briefly, is the English arrangement of courts for the disposal of civil as distinguished from criminal business. The judges of all courts are appointed--not elected--and their terms of office are for life with provisions for retirement and pension. Judicial salaries are much higher in England than in America. Ordinary judges of the High Court get £5,000, the Lords of Appeal, £6,000, the Chief Justice, £8,000, and the Lord Chancellor, £10,000. The appointing power--nominally the crown--is really the Lord Chancellor, who, unlike the Lord Chief Justice and all the other judges of England, is a political incumbent changing with the Government. It might be supposed from this fact that the Lord Chancellor would yield to a natural temptation in making judicial appointments and that his selections would constitute a distribution of political patronage. There appears to be nothing in the law to prevent this, and formerly judges were largely appointed for political considerations or by reason of personal or social influences. At present, however, the least observation will convince any one that the great majority of judicial appointments in England are made solely out of consideration for character and professional attainments. With few exceptions the judges appointed in modern times--no matter what party may have been in power--have been selected from amongst the leading barristers of the day, and a person who has been in the habit for years of frequenting the courts at intervals, is almost sure, when he misses an eminent barrister from the front row, to find him on the bench, if alive. While this is the general rule, it is true that in rare and exceptional cases one hears of the appointment of a judge who is regarded by the profession as not being well qualified and his selection is attributed to influence. The just admiration which Americans entertain for the English judiciary as a body will in such instances not be reflected by the views of the English Bar, with opportunities for observation at closer range. Barristers will remark that a given judge is not a lawyer at all, but merely had the gift of gaining cases before juries, and that the political influence he acquired induced the government to give him an office for which he is ill equipped. And one may even hear the statement made concerning some judge, "I can not say he is venal; I can not say he can be bought for money; but he has naturally a dishonest mind and can not perceive the truth." A stranger is left to speculate how far such views may reflect some past grudge and he will probably come to the conclusion that the high standing of the English judiciary, in the opinion of all the world, is fully deserved, but that there are some few exceptions to this general excellence. Costs play an important part in all English litigation. The tendency since the time of the Stuarts has been constantly to increase them. By costs--as understood in England--is not meant the official fees payable to the court officers, but a sum which the unsuccessful party is condemned to pay to the successful party, the aim being to indemnify the side whom the event proves to have been in the right. If a litigant has incurred expense to obtain a judgment for a sum of money, then he must be reimbursed by the other side who occasioned his outlay by refusal to pay. On the other hand, if an unjust claim has been made against him, the claimant must repay his expenses in resisting it. Part of these costs are taxed as the case proceeds. Thus, if one party summon another before a Master prior to trial, to obtain an order for the production of some document, the Master imposes costs--say £2. 10s. 0d.--upon the party who refused to produce, or upon the party who, the Master finds, has unwarrantably demanded the production. The theory here is to discourage unnecessary and harassing interlocutory proceedings. But the principal costs "await the event"--follow the course of the final judgment. They include an allowance for counsel fees, which, however, is not always as much as the amount paid by the litigants. For, if a litigant has indulged in the luxury of an unusual array of counsel, he must do so at his own expense, and the Master allows only what he should have laid out in fees. Thus, in a petty action, caused by some personal pique, the plaintiff may have insisted that his solicitor retain a K. C. at fifty guineas and a junior at thirty-five guineas, involving a total expense, with three guineas for the consultation, of eighty-eight guineas. The defendant, however, has been content with a junior at "3 & 1." If the plaintiff succeeds, the Master will not allow him the eighty-eight guineas, but will decide that the more modest armament of the defendant would have been sufficient. Costs are, upon the whole, very high. In an ordinary action to recover a moderate sum--say £200--the costs will generally amount to £50. In a recent action to recover £60, the balance of the purchase price of a motor car, costs were claimed of over £400, and actually allowed in a sum over £200. Though this was exceptional, owing to the unreasonable stubbornness with which a just claim was resisted, and is by no means typical, yet it illustrates the possibilities of the system. In theory it seems reasonable that the party in the wrong should reimburse the party in the right for having vexatiously put him to expense in obtaining his due. In practice, however, the prospect of large costs may stimulate unjust suits by impecunious plaintiffs--unable themselves to respond in costs if defeated--against richer defendants vulnerable for whatever the chances of war may have in store for them. To this criticism English lawyers can only answer that if the plaintiff is unable to give security for costs, he may, in actions of tort, at least, be remitted to the County Courts, where the costs are much lighter. This, however, is merely a mitigation of the evil. The general opinion seems to be that high costs discourage litigation. This may be true, but if they tend as well to obstruct the assertion of just rights and to stimulate fictitious claims, they are not to be desired by the profession or by the laity. A jury trial strikes one as more cut and dried in an English than in an American court. Apparently, through the exchange of documents and otherwise, so much is known to the opposing counsel, solicitors and judge, that the element of surprise is largely eliminated. If all the litigants were honest, and the law were an exact science, this might conduce to a deliberate consideration of the questions involved. But what American advocate, having confronted a disingenuous witness with his own letter, utterly at variance with his testimony, could say that the cause of justice would have been better served if the witness had known that the letter was to be produced and had had the chance to regulate his evidence accordingly? [Illustration: A JURY TRIAL] And what American lawyer would not feel that half the fun of life were gone? During the examination of witnesses, notwithstanding the rapidity of articulation, an American ear is struck by a certain lack of snap and by the great deliberation and long intervals between questions, which afford--especially for a dishonest witness under cross-examination--too much time for reflection. This impression may be due to differences in national temperament, and the examination may seem even rapid to an English listener. Perhaps the chief cause of the hesitancy is the fact that the examiner has obtained his information at second hand, from his client the solicitor, or his junior or devil, and has to feel his way. A kind of confidence in the veracity of witnesses appears to pervade the court; and they are, indeed, as a rule, uncommonly frank. English barristers do not know their cases as well as American lawyers. They have not conducted the preliminaries, nor become acquainted with and advised the parties they are to represent; in other words, they have not "grown up with the case," and the facts are more like abstract propositions lately placed in their hands to be presented. It is not unusual during the trial, when some unexpected situation arises, to see evidence of a lack of familiarity with the circumstances which requires instant reference to the solicitor. The judges take a larger part in trials than in most American courts--a practice which has much to commend it, and which is increasing on this side of the water. An American lawyer will say, "I tried a case before Judge So-and-so"--an English barrister says: "I conducted a case which Lord So-and-so tried." The English judge restrains counsel, often examines the witnesses, and his influence is quite openly exerted to guide the jury and cause them to avoid absurdities and extremes. Yet, the crucial questions of fact really to be determined--of which there are usually but one or two--are left absolutely to the jury's unfettered decision. Objections to questions by opposing counsel, which cut so large a figure in an American trial, are rarely made. One is told that the barristers know the rules of evidence too well to ask improper questions and that they have too much respect for the court to hazard a rebuke. This is a very pretty, but hardly a satisfactory, explanation. Observation of many trials gives the impression, rather, that great laxity prevails as to what is a proper question and that the party aggrieved by an objectionable one prefers to rely upon the reaction in his favor in the judge's mind, which will be shown when his influence comes to be exercised upon the jury. That this laxity prevails, the least experience will show. Upon direct examination leading questions, which in America would bring a storm of objection, pass unnoticed, and even hearsay evidence is not unknown. The absence of the element of surprise in trials, may make those concerned more tolerant of counsel leading in a story known to all beforehand. The occasional element of hearsay is more difficult to explain unless, indeed, the French view gains in England, which justifies the admission of hearsay on the ground that in the most important questions of life--for example, in respect to the reputation of a man whom one contemplates trusting, or of a woman one thinks of marrying--men act exclusively upon hearsay and never upon direct evidence. But, of course, the law of evidence remains in England as it always has been: all that is here meant is that a degree of tolerance prevails and upon careful observation, the real cause of this tolerance will be found in the fact that both sides rely on the influence of the judge to eliminate from the minds of the jury the effect of evidence wrongly introduced. In England, mistress of the seas, with much the greatest merchant marine in the world, and with a large insular population living in close touch with the water, one finds, as might be expected, the best Admiralty Courts and Bar in the world. The chart used by counsel in examining witnesses is pinned to a sloping table, among the barrister's benches and facing the Court. In collision cases, small models of steamers and sailing vessels, as well as arrows to indicate winds and tides, are employed. All of these may be veered and shifted as the trial progresses, by means of thumb pins projecting beneath and capable of being pressed into the table which has a cork top. The Admiralty trials are beautifully conducted and great familiarity with the affairs of the sea is displayed by the participants. Models are very much used in all English Courts. In land condemnation, nuisance injunction and accident cases, one frequently sees elaborate models reproducing the _locus in quo_. In actions concerning floods or other occurrences affecting considerable areas, models many square feet in size, reproducing the whole locality, are employed. The Chief Justice sits at nisi prius more often than upon appeal. It seems odd, during the trial of an action for damage caused by a flood due to the alleged improper construction of a bridge, to see the Lord Chief Justice of England reaching far down with a long white, lath-like stick, into the solicitors' well to point out some feature of a model while interrogating a witness, and afterwards charging the jury stick in hand. It is still more strange to hear a judge, whose name is known the world over, gravely charging a jury as to the value, as evidence of identity, of a wart under the tail of a costermonger's donkey, the ownership of which is in dispute. Yet, like every feature of an English court, it is eminently practical and free from form or affectation. The highly paid judges of the High Court, sit in the smallest case; the idea seems to be that if a man desires to assert his rights, however insignificant, it is the duty of the Government to afford him the opportunity. In the Divisional Court (an appeal court of limited jurisdiction) the Lord Chief Justice of England and two famous colleagues did not grudge, upon a recent occasion, to hear an appeal involving nominally £22. 11s. 6d., payment on account having reduced the actual amount in controversy to £2. 11s. 6d. As the salaries of the occupants of the Bench were not less than £20,000 a year--to say nothing of those of the court attendants, and the fees of the barristers and solicitors on both sides--the economy of such an employment of human effort is not apparent. Some one, however, thought his rights had been invaded, which justified the waste, while the costs furnished a small stake upon the result. CHAPTER IX COURTS OF APPEAL THE COURT OF APPEAL--HOUSE OF LORDS--DIVISIONAL COURT--JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. The Court of Appeal--the last resort except for occasional cases which reach the House of Lords and Colonial appeals which go to the Privy Council--is, perhaps, the most perfectly working tribunal for the adjustment of conflicting rights which the wit of man in any age has devised. It is divided into two parts of three judges each, sitting simultaneously. The Lord Chancellor, the Chief Justice, or the Master of the Rolls presides over the respective parts and two associate Lord Justices of Appeal compose the court. Printed briefs are not used, though the advantage of this omission is not apparent. There is no bill of exceptions and the appeal is in name, as well as in fact, a motion for a judgment the reverse of that rendered below or, in the alternative, for a new trial, and everything which transpired is open to review. Three barristers--the leader, junior and devil--together with the solicitors, are usually found on either side. The leader for the appellant opens, stating the case with great particularity, and reads from the evidence, documents and charge to the jury at great length. Much time is thus spent because, for no discoverable reason, but probably due to ancient custom and lack of enterprise, the material is all in manuscript, often illegible and with occasional errors in the copies of the Court and opposing counsel. The result is tedious and prosy and an American auditor gets an unfavorable impression at this stage of the argument; an impression, however, which is later dispelled. During the irksome opening, the court has been getting a grasp of the case, as becomes apparent when the argumentative stage is reached, for then there ensues a good tempered, courteous, informal debate between the several gentlemen, comprising the court and counsel. There is no "orating" and no declamation. The positions of the opponents are stated rapidly and smoothly. Each, as enunciated, is taken up by one or more members of the court and distinct intimation given whether the court agrees with the speaker. In case it does, he may pass on. On the other hand, deferential dissent may warn him to strengthen his position, or a frank expression of doubt may be accompanied by a friendly invitation to the other side to contribute suggestions. At the conclusion, judgment is rendered orally, in nine cases out of ten, by the presiding Lord Justice, as the last speaker resumes his seat. Then follow the opinions of the associate Lord Justices of Appeal, concurring or dissenting, all expressed with the utmost frankness and spontaneity. These are taken down stenographically, and, after revision, sometimes by the judge himself, find their way into the books to become authorities. Occasionally a "considered judgment" is reserved to be delivered within two or three days. The contrast presented by these methods (for the system is not essentially different) to the average American appeal is very great. In America, only the ablest men know by a kind of intuition upon what points their cases will turn, and one often hears a more or less stereotyped speech delivered to a court sitting like silent images, without the slightest intimation to the speaker whether he is wasting effort upon conceded points, or slighting those upon which he may discover by the written opinion--delivered months afterwards--he has won or lost. Sometimes these friendly debates in an English court of appeal are witty, and they are often rather amusing. In a case recently argued, the defendant, a real estate owner, appealed from a judgment for £300. against him for wrongfully evicting his tenant, the plaintiff, and putting his sick wife and furniture out on the sidewalk in the rain. There was not much to be said in his favor upon the merits of his act, but his counsel argued that plaintiff's advocate had used inflammatory language in his speech to the jury. The judgment was immediately affirmed, the Lord Chancellor delivering an opinion to the effect that the control of the language used was a matter of discretion for the court below and could not be examined by the appellate court. Both of the associate Lord Justices concurred, but one proceeded to give quite different reasons. With the preliminary words: "Speaking only for myself, but not for his Lordship," and with a slight inclination of his head towards the Lord Chancellor, he said he was for affirming for an entirely different reason--not because he could not examine the language used below, but rather that he had done so. He then proceeded to rehearse the brutal conduct of the defendant, and wound up by declaring, "If it had been my sick wife and my furniture which had been set out in the rain under the circumstances described, I do not think the English vocabulary contains the language I should wish my counsel to use in addressing the jury." This was received, as is not uncommon in England, but unheard of in America, with frequent laughter and even subdued applause, and the "London _Times_" in its regular legal column the next day, reported the opinions and indicated the "laughter" and "loud laughter" in brackets. The opinions in the books, after being toned down by the reporter, often bear but faint resemblance to the actual utterances. In the House of Lords appeals are equally informal and colloquial, an impression that is heightened by the absence of wigs and gowns, so far as the bench is concerned, and by the very casual manner in which the half dozen gentlemen composing the court are seated. The house itself is a large, oblong chamber with steep tiers of seats, upholstered in red leather, which rise high up the side walls and upon which the peers sit when legislating, but which are, of course, empty when the court only sit. At the far end is an unoccupied throne, while, at the near end, raised above the floor, is a kind of box from which counsel address the court. It is much like the rear platform of one of our street cars. Counsel, of course, are in wig and gown, and if K. C.'s, in full bottomed wigs, but one may occasionally see a litigant actually arguing his own case _in propria persona_. On either side of the counsel's box is a very narrow standing place for reporters and the public. The court, consisting of the Lord Chancellor in gown and full bottomed wig, and perhaps of five judges, in ordinary clothing, sit at the floor level, and therefore considerably lower than counsel in the elevated box. They are not placed in a row nor behind any bench or table. On the contrary, though the presiding Lord Chancellor is vis-a-vis to the counsel box, the others sit where they please. Sometimes this is on the front row of benches and sometimes on one of the higher tiers, with a foot propped up, perhaps, on the bench in front, and their thumbs hitched to the armholes of their waist-coats, and, necessarily, with their sides to the speaker. The members of the court often have portable tables in front of them, piled with books and papers. During the course of an argument they constantly debate with each other across the House, or walk over to one of their colleagues with some document or a book and talk of the case audibly and perfectly freely. One may hear one of them, in a salt and pepper suit, call across the floor to another Lord of Appeal who has interrupted a barrister's argument, "I say, can't you give the man a chance to say what he's got to say?" These little circumstances show that judges and counsel in the appellate courts of England behave as natural men without the slightest restraint, formality or self-consciousness. Arguments are delivered with surprising rapidity of utterance, in a conversational tone, and with a crispness of articulation altogether delightful to the ear. The drawling style of speech sometimes heard on the stage as typical of a certain kind of Englishman, seems to have disappeared in real life; it certainly is not to be found in the Courts. An American stenographer reporting an English argument, would have to increase his accustomed speed at least one-third. The methods of the Divisional Court are the same as those of the Court of Appeal, but the low limit of its jurisdiction renders it of little interest. The Judicial Committee of the Privy Council--or, as it is colloquially described by the lawyers, "The Privy Council"--is doubtless the most interesting court in England because of the variety of the questions there considered and owing to the fact that, geographically, the litigations originate in nearly every quarter of the civilized world, for, as noted above, this is the court of last resort for all of the British Colonies. It should not be confused with the Privy Council itself--a political adviser of the Crown--for the Judicial Committee's functions are purely judicial and its personnel consists of the Lord Chancellor and the other Law Lords, a few paid members, and some Ex-Colonial Judges. Historically, indeed, it was but a sub-committee of the Privy Council, which circumstance gives the Court its name and explains why its judgments always conclude with the phrase that the Committee "humbly advises His Majesty" to affirm or reverse the judgment rendered in the Colony, instead of pronouncing the conclusion in direct language, as do other courts. This extraordinary body sits in a large second story chamber, not in the least resembling a court room, of a building in Downing Street, and rarely is there any audience other than the professional men whose business takes them there. Of course, most of the Colonies are equipped with their own court of appeals--usually called the Supreme Court--but, nevertheless, an appeal lies from their decisions to the Privy Council in certain circumstances, although to define exactly the scope of this jurisdiction would be too technical for present purposes. Here are to be found, arguing their cases, lawyers from Colonies in every corner of the globe in some of which the division of the profession into barristers and solicitors hardly exists, or at least, the line separating them is quite hazy--but they must all appear in wig and gown. Bearing in mind the fact that the Colonies of Great Britain are scattered over the whole world and that it has always been the policy, so far as possible, to accept the existing law of each and graft it upon the English law system, the diversity and broadness of this court's deliberations may be imagined. The succession to an Indian Principality, to be determined under the ancient law of that far Eastern land, will be followed by a question of the legality of the adoption of a child in South Africa, to be considered under the rules of Dutch law. The next case will, perhaps, involve the effect upon an area much greater than that of all England, of the diversion of a river in the Canadian North-West. And the court may next turn its attention to the problem whether the widow of a Scotchman who left two wills--one intended to operate at home and the other to take effect in Australia--can take her thirds against the will in Scotland but accept the benefits of the other will as to property in Australia. The Court of Appeal and the House of Lords deal with domestic matters of the little Island, which, however important the principles involved and however critical the issues to the litigants themselves, seem almost petty in comparison with the broad field of the Privy Council. Little as the average man knows of it, and rarely as it figures in news of the day, no American lawyer can fail to perceive in this great court something of the tremendous scope of his own Supreme Court of the United States, to which tribunal only is the Privy Council secondary. CHAPTER X MASTERS: THE TIME SAVERS CURRENT HEARINGS--MINOR ISSUES THRESHED OUT. The numerous motions and interlocutory applications, supported by affidavits and urged by argument, which consume so much of the time of an American court, are disposed of in England by Masters--competent barristers appointed by the Courts, who are paid salaries of about £3,000 a year. At a certain hour the Master takes his seat at a desk with a printed list of "applications without counsel" or "applications with counsel." He nods to the uniformed officer at the door who admits the solicitors engaged in the cause which happens to be first on the list of cases "without counsel." The solicitors stand before the Master with a shelf upon which to rest books or papers; one side then states its demand and the other its objection in the briefest and most direct manner. The Master's immediate oral decision, accompanied by imposition of the costs and a few scratches of his pen on the back of the summons, indicates to the officer the opening of the door to admit the next case. By actual count twenty-seven cases may thus be disposed of in one hour and thirty-two minutes--an average of a little more than three minutes each. Of course there is a right of appeal, which, however, is rarely exercised. As the door opens two solicitors hurry in. There are no salutations nor introductory remarks and the business proceeds abruptly: _Plaintiff's solicitor_: "Master, we claim £50 judgment for rent." _Master to defendant's solicitor_: "Do you admit the amount?" _Defendant's solicitor_: "Yes, but we claim a set-off." _Master_: (endorsing a few words on the summons) "Judgment for rent £50 with stay of execution until counter claim is tried." _Defendant's solicitor_: "If you please, Master." This expression is the universal vernacular with which the defeated party accepts the judgment of a master or judge in all courts. The expression is not an interrogation but is equivalent to "as you please." Out they go and the next enter; here the defendant asks for delay, and gets seven days which is endorsed on the summons and requires a minute. Then comes an application under "order XIV" for judgment for £1,000. Defendant requires four days' delay. _Master_: "What is the defence?" _Defendant's solicitor_: "Master, I don't know--a recent agreement has been made between the parties which I have not yet seen." _Master_: "I'll give you four days, but you must pay the costs of the adjournment; thirteen shillings and fourpence." _Defendant's solicitor_: "If you please, Master." The next summons for judgment. As this is denied, the parties agree to try it before the Master on the following Thursday without a jury. Then follows a summons by defendant upon plaintiff for particulars of goods sold and delivered. Both parties are dealers in Japanese bulbs, and the sale was made subject to arrival in England safe and sound. The defendant demands particulars of the plaintiff as to who were his customers. The plaintiff objects to disclosing his business and the written summons, containing the request for particulars, is gone over rapidly by the Master. Such parts of the request as, in his opinion, ought not to have been demanded, because they pry into the plaintiff's private affairs, are eliminated by a stroke of the Master's pen and an order is made at the bottom in an abbreviated form, imposing the costs of the summons upon the plaintiff. This means that the plaintiff is obliged to furnish the defendant, in so many days, all the particulars which the Master did not strike out, and must pay the defendant the costs of the application. A moment is consumed in giving judgment in an uncontested case for £1,800 with costs of £8. 16s. 0d. Then comes a breach of promise case. The defendant asks for an order upon the plaintiff for a statement of claim and discovery of correspondence, which is granted. As most of the witnesses are in London, the defendant wants to try the case here, but the plaintiff wishes to try it in Manchester where the parties live. The Master thinks it is easier to bring two people up from Manchester than to take a dozen down from London. Next is a summons for directions: _Master_: "Statement of claim in ten days." _Plaintiff's solicitor_: "Yes, Master." _Master_: "Defence in ten days." _Defendant's solicitor_: "Yes, Master." _Master_: "No counter claim?" _Defendant's solicitor_: "No, Master." _Master_: "Documents?" _Both solicitors_: "Large number." _Master_: "All parties in London?" _Both solicitors_: "Yes." _Master_: "Any question of law?" _Both solicitors_: "No." _Master_: "Next case." And he at once endorses a few words on the bottom of the summons. Then a defendant appears in person: _Master_: "Do you owe the £26?" _Defendant_: "Yes, sir." _Plaintiff's solicitor_: "We only want judgment for £21 because this morning he paid £5 on account, and he agrees to pay £3 a week, so that we will not issue execution if he does this." _Master_: "I'll give you judgment generally for £21, but you write defendant a letter stating that you will not issue execution as you have just stated." Another defendant appears in person: _Defendant_: "I've got no defence, all I want is time." _Plaintiff's solicitor_: "We'll do nothing until Monday as we think he means to pay." _Master_: "All right, it is understood you will do nothing until Monday." The details of practice before these Masters would be beyond the scope of the present writing, suffice it to say that rules have been promulgated from time to time, and are constantly being improved upon, having for their object the simplification of procedure, the rapid despatch of business and the settling of all minor questions which may arise in a case before actual trial. Thus, "Order XIV," just referred to, enables a Master to enter judgment when the defence averred, even if true, would not be effectual, or when the defence is obviously frivolous, although, of course, the rights of the defendant are preserved by the privilege of appeal, the judgment, meantime, binding his property. Again, the "summons for directions" is to enable the Master to give general directions as to how the parties shall proceed, the intervals of time to be allowed for exchange of copies of documents, taking foreign testimony and what not. One of the cleverest contrivances in the practice before Masters is the "tender of damages in tort without admitting liability." A defendant may tender, say, £500. If plaintiff does not accept it, the trial ensues--the jury, of course, being in ignorance of the tender. If the judgment be for defendant, or for more than the tender, that is the end of the matter. But if the judgment be for less than the tender, a large deduction for costs is made from the judgment, and inures to the defendant's benefit. This has enormously reduced the volume of accident cases and has also curbed the often wildly extravagant demands and unjust results in such actions generally recognized as evils difficult to deal with. In short, the system of Masters in England works admirably. It is entirely adaptable to American courts, the details and modifications which might prove necessary being fitted to local conditions, but in any such adaptation, the general purpose should be kept in view, namely, that when a case appears upon a trial list it shall have already been pruned of all non-essential preliminary details and is forthwith to be actually tried upon its merits; the court's time being too precious to be expended upon the subsidiary side issues. CHAPTER XI THE POLICE COURTS CURRENT HEARINGS. Upon arrest, a preliminary hearing is first held at a police station where, as in most English proceedings, the testimony, with anything the prisoner may say (after he has been warned of the consequence of self-incrimination) is carefully reduced to longhand writing and plays an important part at the subsequent stages of the prosecution. The next step is the hearing before a Police Magistrate at Bow or Marlborough Streets, or at any one of the like courts in London which, although of minor importance, are dignified tribunals. The court room is entered by two small doors, one for the witnesses and audience, the other for officials and solicitors, and there is another passage leading from the cells through which the prisoners are brought to a dock. This dock, as in all criminal courts, is at the far end of the room from the magistrate. The prisoner is thus isolated and can only communicate with his solicitor, if he has been able to retain one, by scrawling a note and passing it on to an officer. The magistrate, appointed by the Crown or the Lord Chancellor acting in its behalf, is almost invariably a man of standing and repute, always a barrister, whose ready dispatch of business shows great experience with crime, and whose kindness to the merely unfortunate testifies to his charitableness of heart. He wears no wig nor gown and is called in court, "Your Worship"; whereas judges of the High Court are called in court, "My Lord," and those of the County Courts, "Your Honor." All judges, however, are addressed in private life as "Mr." or, if they have one, by a title. A Judge of the High Court is always knighted on appointment and in private life is addressed as "Mr. Justice ----" unless he is a Peer. Solicitors act for the more important prisoners but barristers are rarely seen and appear in ordinary street dress if at all. The early morning run of business consists chiefly of the "drunks", divided nearly equally as to sex, and of persons arrested for begging and minor misbehavior. These cases are disposed of with great rapidity. A woman, looking very silly, and with her millinery somewhat awry, is ushered into the dock charged with being "drunk and disorderly." _Magistrate_: "Do you admit it?" _Woman_: "Hi hadmit hi 'ad a little too much, but deny being disorderly, Your Worship." _Police Constable_: (sworn) "She was banging on the door of the Black Horse at 2 A.M. screamin' for drink. I cautioned her and then saw her repeat this at another closed 'pooblic', so I took her in charge." _Magistrate_: (To an officer with a book of records) "Is she known?" _Officer_: "No, Your Worship, she was never here before." _Magistrate_: "Five shillings or five days." As she is rapidly conducted through the passage and disappears in the direction of the cells, one hears called from official to official the words: "Five or five." The next is an intelligent, elderly, but very shabby, man charged with begging. The police officer had testified that a lady gave the prisoner money and that he immediately entered the nearest "pooblic". The prisoner's explanation was that he had been given the shilling without his having asked for it, and that he had gone to the tavern to get bread and cheese, which he greatly needed, and a glass of beer. The magistrate rather rebuked the policeman for referring to the visit to the public house as counting against the man, adding that anybody had the perfect right to do as he had. Then, addressing the prisoner, he said, kindly, that he was by no means sure that actual solicitation by words was essential to constitute begging and that his mere appearance was an appeal. It seemed as though the man was about to get off, when the inevitable question "Is he known?" brought the information that he had been in Court upon the same charge on February 19th, on March 5th and again the month following. The magistrate's manner quickly changed, as he recognized an old offender, "Three months hard labor," he said, and "three hard" was repeated like an echo down the corridor as the prisoner slunk back to the cells. The next was a well-dressed young man, apparently a clerk, charged with being drunk and disorderly. _Prisoner_: "It's quoite roight what the constable says." _Magistrate_: "Seven shillings and sixpence or six days." _A voice down the corridor_: "Seven and six or six." [Illustration: A SUBJECT FOR THE POLICE COURT] After the early business, which is dispatched with great rapidity, come the more serious cases, which, if well-founded, are to be held for trial. An American was charged with obtaining money and goods by false pretence. Soliciting advertisements from tradespeople for a book intended for Americans visiting London, which never was published; he had obtained money on account and at the same time, procured millinery and garments for a woman whom he introduced as his fiancée. He was represented by a barrister who would try his case if he were held for trial. The witnesses consisted of milliners and dressmakers who detailed the method of his operations. The magistrate referred frequently to the memoranda of their evidence, taken at the police station, and questioned them so as to elicit their testimony, which he wrote down in longhand. The defendant's barrister cross-examined and the magistrate added the substance of the cross-examination to the deposition which was finally signed by the witness, to be used by the trial judge as his guide, if the grand jury should find a true bill. During the examination, one was struck by the alacrity, and glibness of the replies, as in all London courts of whatever degree. An American ear is impressed by the thought that possibly these people, living in a densely packed community of five millions, all speaking one language, are particularly facile in the use of the mother tongue, unlike the English rustic who is apt to be taciturn and awkward of speech. One is also struck, as in all courts, by a certain ring of sincerity, an attitude of respect for the administration of law and the quick and cheerful co-operation of all concerned. The Englishman truly appears to the best advantage in his court, where he leads the world. If the accused be held for trial by the magistrate, the next step, as with us, is the presentation of the charge to the grand jury. The grand jury either throw out the indictment or find a true bill, in which event a jury trial follows at the Central Criminal Court. CHAPTER XII THE CENTRAL CRIMINAL COURT;--THE OLD BAILEY CURRENT TRIALS. At the corner of Newgate and Old Bailey streets, near Fleet street and not far from Ludgate Hill, stands a modern building, officially known as the Central Criminal Court, but popularly called "the Old Bailey." It occupies the site of the ancient Newgate Gaol and Fleet Prison, where, for nearly seven centuries the criminals of London expiated their crimes. There they were tried and, if convicted, hanged on the premises, or--a scarcely better fate--thrown into Newgate Prison, which, from time immemorial, was so overcrowded, so ill-ventilated and so poorly supplied with water that it was the hot-bed of diseases designated as "prison fever." At a single session of court the fever had been known to carry off fifty human beings; not only prisoners, but such august personages as judges, mayors, aldermen and sheriffs. The present fine structure is exclusively a court house to which prisoners are brought for trial and confined in sanitary cells beneath the court rooms only while awaiting the call of their cases. There are three courts: two presided over by judges called, respectively, the Common Serjeant and the Recorder, together with the Lord Chief Justice of England, or such other judge of the High Court as may be designated for the month, who comes from his civil work in the Strand Law Courts to try criminal cases at the Old Bailey. Each month, also, two or three Aldermen and Sheriffs of the City of London are scheduled for the complimentary duty of attending their Lordships and entertaining them at luncheon. The court rooms are rather small and nearly square. Like every London court, they have oak panelled walls, and excellent illumination from above by skylights; they are arranged with a high dais--on which are the chairs and desks for the presiding judge, the sheriffs, or for any guest--and they have the usual steep upward slope of the benches for barristers on the one side and for the jury on the other. Only the solicitors' table is at the floor level. This arrangement brings all the participants in a trial more nearly together than if they were distributed over a flat floor. At the end of the room farthest from the judge is the prisoners' dock, a large square box, elevated almost to the judge's level. This the prisoner reaches by a stairway from the cells below (invisible because of the sides of the dock), accompanied by officers, and he stands throughout the trial--unless invited by the judge to be seated--completely isolated from his barrister and from his solicitor and can only communicate with his defenders by scrawling a lead pencil note and passing it to an officer. A small area of sloping benches, together with a very inadequate gallery, are the only accommodations for the public. If the visitor happens to be a guest of the Court, he will be ushered in by a door leading to the raised dais and will sit at a desk beside the judge. His eye will first be arrested by a small heap on his desk of dried aromatic herbs and rose leaves and, while speculating as to the purpose of these, he will discover similar little piles on the desks of the presiding judge and sheriffs. He will also observe that the carpet of the dais is thickly strewn with the same litter. Vaguely it is suggested that the court room has been used over night for some kind of a horticultural exhibition and that the sweeping has been overlooked. Later, his astonishment, however, is redoubled when enter the sheriffs and the judge each carrying a bright colored bouquet of roses or sweet peas bound up in an old-fashioned, stiff, perforated paper holder. The visitor ventures to whisper his curiosity and he is then informed that, in the former times, these herbs, and the perfume of fresh flowers, were supposed to prevent the contagion of prison fever; and that the ancient custom has survived the use of disinfectants and the modern sanitation of prisoners and cells. The opening of court in the morning and after luncheon is a curious ceremony. The Bar and audience rise and, through a door corresponding to the one by which the visitor has reached the dais, enter the two sheriffs gowned in flowing dark blue robes trimmed with fur. Then comes the under-sheriff in a very smart black velvet knee breeches suit, white ruffled shirt, white stockings, silver buckled shoes, cocked hat under arm and sword at side. The sheriffs bow in ushering to his seat the judge, who is arrayed in wig and robe, which, in the case of the Lord Chief Justice, or one of the judges of the High Court, is of brilliant scarlet with a dark blue sash over one shoulder, or in the case of the Common Sergeant, is of sombre black. Each member of the court carries the bouquet referred to and the whole group afford a dash of color strong in contrast with the dark setting. The judge, having seated himself in a chair--so cumbersome as to require a little track to roll it forward sufficiently close to the desk--the sheriffs dispose themselves in the seats not occupied by the judge or his guest, and, later, they quietly withdraw. They have no part in the proceedings, their only function being to usher in and out the judges, and to entertain them at luncheon--the judges being by custom their guests. The judge having taken his seat, the Bar and public do the same and the business begins. There are usually two such courts sitting at the Old Bailey--sometimes three of them. At lunch time the sheriffs again escort the judges from their seats, and all the judges, sheriffs and under-sheriffs, and any guests they may invite, assemble in the dining-room of the court house for an excellent, substantial luncheon served by butler and footman in blue liveries with brass buttons, knee breeches and white stockings. The luncheon table looks odd with the varied costumes, the rich blues, the bright scarlets and the wigs of the party, who, no longer on duty, relax into jolly sociability. Indeed one can not escape the impression that he has in some way joined a group of "supes" from the opera who are snatching a light supper between the choruses. These are some of the picturesque features of the Old Bailey which, at the same time, is the theatre of the most sensible and enlightened application of law to the every day affairs of the largest aggregation of human beings the world has ever seen. While enjoying a cigar after luncheon with one of the under-sheriffs, the voice of the Common Serjeant or Recorder is heard at the door of the smoking room. Robed and armed with his bouquet, he smilingly inquires if there are no sheriffs to escort him into court. A hasty buckling on of sword, a snatching up of his bouquet and a little dusting of cigar ashes from his velvet knee breeches, prepares the under-sheriff for the function, and, preceded by the sheriffs in their blue gowns, his Lordship bringing up the rear, the little procession starts along the corridor and enters the door leading to the judges' dais. The under-sheriff shortly returns to finish his cigar but the guest tarries beside the judge. The first case was a minor one--a charge of breaking and entering a shop and stealing some goods. His name having been called, the prisoner suddenly popped up into the dock at the far end of the room with police officers on either side of him. Asked if he objected to any of the jurors already seated in the box, he replied in the negative and the trial began. The junior barrister opened very briefly, merely stating the name, date, locality and nature of the charge. Following him the senior barrister gave the details at much greater length. These barristers were not, as with us, district attorneys or state prosecutors. They are either retained by the Treasury or, as the case may be, represent private prosecutors. The judge was fully conversant with the evidence, as he had before him the depositions taken at the Magistrate's Court. In an English court, when counsel has finished the direct examination of a witness, he does not say, as we do, "cross-examine" or "the witness is yours", he simply resumes his seat as the signal for the other side to cross-examine. Sometimes, a pause of the voice simultaneously with a stooping of the barrister's head for a word of suggestion from the solicitor below, leads his opponent to believe he is seating himself and to begin to cross-examine prematurely. Although in this case the plea was "not guilty," the charge was practically undefended, and a prompt verdict of "guilty" followed. Then came the important query from the judge to the police as to whether the prisoner "is known"--was there a record of former convictions? Learning that there was not, a sentence to eighteen calendar months at hard labor followed a caution that if he should be brought again before the court, he would be sent to penal servitude. With a servile "If your Lordship pleases" he turned to dive down the stairs, and, as he did so, with a grinning leer, seized his left hand in his right and cordially shook hands with himself--a bit of a gesticular slang which led one to think that the police were not very well informed as to his previous experiences. The next was a more important case. A clever but sinister-looking Belgian, the master of several languages, was charged with obtaining a valuable pair of diamond earrings by an ingenious swindle. Having a slight acquaintance with a dealer in stones, he telephoned that a friend of his was coming over to London from Paris to join his wife and desired to present her with a pair of earrings. If the dealer had suitable stones and would allow a commission, the Belgian said he would try to effect a sale for him. He, therefore, arranged that the dealer, at a fixed hour the following day, should bring the stones to his lodgings for the Frenchman's inspection. The appointment was kept and the two men waited for some time for the Frenchman. Finally the latter's wife appeared and explained to the Belgian in French--which the Englishman did not understand--that her husband had been detained but would come by a later train, whereupon she withdrew, and the conversation was interpreted to the disappointed dealer. Then the Belgian suggested that, if the dealer cared to leave the stones, he would give a receipt for them and would either return them or the money by half-past four. The dealer replied that although he was quite willing to do so, he had partners whose interest he must consult. The Belgian then produced a certificate of stock in some Newfoundland Company, saying that it was worth as much as the diamonds. The dealer consented to receive this as security and he then left. Just before half-past four he was called up on the telephone and told by the Belgian that he had made the sale and had received the money in French notes which he would have changed into English money. The dealer told him to bring the French notes, which would be acceptable to him. That, of course, was the last he ever saw of the money, the diamonds or the swindler, until the latter was arrested some months later. The leading nature of the direct examination, so marked in all English courts, was conspicuous in such questions as the following: _Q_: "Did the defendant telephone you about 4.15?" _A_: "Yes, sir." _Q_: "Did you recognize his voice?" _A_: "Yes, sir." _Q_: "Did you send an assistant to the defendant's flat with a letter and was it returned to you unopened?" _A_: "Yes, sir." The Secretary of the Newfoundland Company having been called, was asked: "Were the shares in defendant's name formerly in the name of John Smith?" _A_: "Yes." _Q_: "Was there an order of court forbidding their transfer?" _A_: "Yes." Two pawnbrokers testified that, shortly after four o'clock, the prisoner had brought the earrings to their shops and asked how much would be loaned upon them and that, the sum offered being apparently unsatisfactory, the Belgian took the earrings away. _Defendant's barrister_: "My Lord, I submit, I've no case to answer." _The Court_: "Oh, yes, you have." _Barrister_: "Well, if your Lordship thinks so." The defence was cleverer than the original swindle in that it did not attempt to deny the overwhelming evidence, but merely made the story tally with an ostensibly innocent explanation. The Belgian averred that he had himself been robbed by the Frenchman, with whom he had but a slight acquaintance gained at the Paris races. He said that the Frenchman had kept the deferred appointment and, though he admired the stones, he thought them hardly worth the price, whereupon the two had set off in a cab to obtain an opinion as to their value. If thus assured, he was to make the purchase and together they were to take them to his wife in a hotel near Piccadilly. As it was late in the day, they failed to find a French-speaking jeweller whom they sought, and it was suggested that, as pawnbrokers were very cautious in loaning, two opinions of that fraternity should be had. On stopping at the pawnbrokers' shops, the Frenchman, being ignorant of English, said there was no use of his going in as he would have to rely upon his companion's interpretation and might as well sit in the cab. Thus, the visits by the Belgian alone to the two pawnshops and the inquiry as to the amount procurable as a loan, were duly accounted for. According to the prisoner's story, the Frenchman, being satisfied, proposed to pay in French notes and the Belgian entered a public telephone booth to enquire of his principal if that would be satisfactory, leaving the jewels with the Frenchman in the cab. When he returned the cab was gone. His intention having been to leave for the Continent the following day, the Belgian said he had already notified the landlord of his flat--which was apparently true--and had dispatched his effects in advance. So, supposing that the Frenchman had gone to Paris, he immediately followed on the evening train in the hope of identifying him en route, or of finding him somewhere in that city. He swore he did find him a few days later and caused his arrest, and that the French magistrate declined to hold him because the crime had been committed in England where there was no warrant out, and, hence, no demand for extradition. The weakest point in this ingenious fabrication was the prisoner's failure to communicate with the owner of the diamonds during the ensuing five months. This, and other discrepancies, having been easily laid bare on cross-examination, a verdict of guilty was quickly rendered. The judge had hardly uttered the usual query whether the prisoner was known, before an alert police inspector replied, "He is an international swindler, well-known all over the Continent, wanted in Berlin for a job of 20,000 marks, in Paris for another of 30,000 francs and elsewhere." _Judge_: "Suppose we give him a few months and allow the foreign police to apply for extradition?" _Inspector_: "Well, Your Lordship, the trouble is that he claims to have been born in Paris of English parents and that he is, therefore, a British subject, and the French police will jolly well accept his statement." _Judge_: "That's very awkward. We'll give him twelve calendar months and see what transpires." CHAPTER XIII AN IMPORTANT MURDER TRIAL Amongst the murder trials on the "Calendar of Prisoners" appeared "No 38; Madar Lal Dhingra, 25, Student, wilful murder of Sir William Hutt Curzon Wyllie and Dr. Cowas Lalcaca." This referred to the cowardly assassination of an English gentleman who had devoted his life to Indian administration and to benefiting the native races of that country, and to the murder of an Indian doctor, who lost his life in an effort to save him. The tragedy, the news of which had profoundly shocked the world less than three weeks before, occurred during an evening reception at the Imperial Institute. The prisoner, a fanatical Indian student, was believed to have borne no personal animosity to his victim. No one knew exactly when the case would be reached, but it had been expected for several days when, one morning, the Old Bailey, in view of a possible disturbance by Indian sympathizers, was found to be carefully guarded by detectives. Except a small audience admitted by cards which were doubtless hard to procure and not transferable, the public, clamoring at the doors, were excluded from the Court, although one American lady, who appeared in one of the back seats, seemed to have had information and influence necessary to gain an entrée. The barristers' benches, however, were so full that there was an unusual array of bewigged heads on that side of the court. The jury, already in place, and the small audience, waited in quiet but tense expectation. While one was idly noting the usual dried herbs and rose leaves on the desks and carpet of the judges' dais, the Lord Chief Justice seated himself and rolled his chair forward, a shaft of soft sun rays from the skylight accentuating his scarlet robe. The sheriffs bowed and took their seats at the side, and Dhingra's name was called. Into the dock at the far end of the room popped the prisoner, guarded by two imperturbable policemen. He was a little, yellow youth with a Semitic or Oriental countenance, silky black hair much dishevelled and badly in need of the scissors, and eyes, so far as they were discernible under his gold-rimmed spectacles, of glittering black. He wore an ordinary gray suit and stood with his right hand thrust into the breast of his coat, suggesting that he had concealed there some weapon or, perhaps, poison; but of course he had long since been disarmed and under careful guard. His was a meagre figure, by no means conveying to an observer his own conceited estimate of his personality. When he spoke, though posing as a hero and martyr, he revealed only a sullen, sulky and venomous disposition and the ferocity of his character was attested by the premeditated and treacherous murder which he had committed. The Clerk of Arraigns having asked whether the prisoner pleaded guilty or not guilty, his reply was at first not understood because of his broken English and his quick, spasmodic utterance. So his answer had to be repeated, as follows: _Prisoner_: "First of all, I would say these words can not be used with regard to me at all. Whatever I did was an act of patriotism which was justified. The only thing I have got to say is contained in that statement, which I believe you have got." _The Clerk_: "The only question is whether you plead guilty or not guilty to this indictment." _Prisoner_: "Well, according to my view I will plead not guilty." _The Clerk_: "Are you defended by counsel?" _Prisoner_: "No." There were three barristers for the prosecution, including the Attorney General who chiefly conducted the case. The Lord Chief Justice volunteered leave to the prisoner to sit down, which he did, appearing more diminutive than ever, in contrast with his guardians. The junior barrister having stated the names, the date and locality of the crime very briefly, the Attorney General opened the case for the prosecution in great detail, consuming a third of the ninety minutes which elapsed before sentence of death. In his opening, as is usual in England, he produced exhibits and read letters not yet offered in evidence. In substance it was related that Dhingra came to England about three years before to study engineering and fell into the association of India House, a rendezvous in London of Indians of seditious proclivities. He lived in lodgings where he had few visitors and where, after the murder, was found a letter from Sir Curzon Wyllie which was read in the opening speech and which stated that the prisoner had been commended to the writer's protection and offered to be of service to him while in England. The story was told of his procuring a license to carry a weapon, of his purchase of a Colt's automatic magazine revolver and another revolver, of cartridges and of a long dagger--all of which were produced by the speaker and the triggers of the empty pistols snapped to show the jury how they worked. An account of his frequent practice at a pistol gallery for three months and up to the very afternoon of the day of the tragedy and the use of a target the size of a man's head, preceded an exhibition of the last paper target used, when four bullets out of the five had pierced the bull's eye. The speaker described how Dhingra had called his victim aside into a vestibule while Lady Wyllie proceeded down the staircase, how he fired four shots pointblank, which passed through Sir Curzon's head; how Dr. Lalcaca had tried to intervene and was shot for his temerity, and how, finally, an elderly English baronet had grappled with the murderer and succeeded in wresting the revolver from him and bearing him to the floor. The witnesses were then called and examined with great rapidity, the judge restricting their testimony to essentials and checking both counsel and witness from the slightest digression. This seemed to be carried almost to an extreme, as an untrained witness often brings forth an important fact amid much irrelevant verbosity. At the end of the direct examination of the first witness, his Lordship asked Dhingra if he wished to cross-examine. The latter growled a negative but added that he had something to say, whereupon he was informed that he would have an opportunity for that later. Thereafter, when asked the same question at the conclusion of each witness' evidence, he merely shook his head. The prosecution having rested, Dhingra was asked if he had any witnesses and replied that he had not. The Lord Chief Justice then informed him that if he had anything to say, now would be his chance, and asked whether he desired to speak where he was--from the dock--or from the stand. The judge of course referred to the difference between a mere unsworn statement which might be in the nature of a plea to the jury to add a recommendation for mercy to their verdict, or, sworn testimony which might go to the merits of guilt or innocence. It was apparent that the prisoner, as he was without counsel, did not understand this question and, as well, that the judge did not comprehend his inability to grasp a distinction indicated in the question. Doubtless, as the prisoner was bound to be hanged--and he richly deserved it--the misunderstanding made not the slightest difference in this case, but one could not help feeling that the failure to provide counsel was a serious defect in the administration of justice. Dhingra elected to remain in the dock and stated that he was unable to remember all he wanted to say, but that he had committed it to a writing which was in the possession of the police. This was then read by the Clerk but so falteringly owing to the manuscript being illegible, that the effect of the revolutionary diatribe was largely lost. The London _Times_, however, printed it the next day as follows: "I do not want to say anything in defence of myself, but simply to prove the justice of my deed. For myself I do not think any English law court has got any authority to arrest me, or to detain me in prison, or to pass sentence of death upon me. That is the reason why I did not have any counsel to defend me. I maintain that if it would be patriotic in an Englishman to fight against the Germans, if they were to occupy this country, it is much more justifiable and patriotic in my case to fight against the English. I hold the English people responsible for the murder of eighty millions of my countrymen in the last fifty years, and they are also responsible for taking away £100,000,000 every year from India to this country. "I also hold them responsible for the hanging and deportation of my patriotic countrymen, who do just the same as the English people here are advising their countrymen to do. An Englishman who goes out to India and gets, say, £100 a month, simply passes the sentence of death upon one thousand of my poor countrymen who could live on that £100 a month, which the Englishman spends mostly on his frivolities and pleasures. "Just as the Germans have got no right to occupy this country, so the English people have no right to occupy India, and it is perfectly justifiable on our part to kill an Englishman who is polluting our sacred land. "I am surprised at the terrible hypocrisy, farce, and mockery of the English people when they pose as champions of oppressed humanity such as in the case of the people of the Congo and of Russia, while there is such terrible oppression and such horrible atrocities in India. For example, they kill 2,000,000 of our people every year and outrage our women. If this country is occupied by Germans and an Englishman, not bearing to see the Germans walking with the insolence of conquerors in the streets of London, goes and kills one or two Germans, then, if that Englishman is held as a patriot by the people of this country, then certainly I am a patriot too, working for the emancipation of my Motherland. Whatever else I have to say is in the statement now in the possession of the court. I make this statement, not because I wish to plead for mercy or anything of that kind. I wish the English people will sentence me to death, for in that case the vengeance of my countrymen will be all the more keen. I put forward this statement to show the justice of my cause to the outside world, especially to our sympathizers in America and Germany. That is all." His Lordship then asked the prisoner if he wished to say anything more. The prisoner at first said "No", but just as the Lord Chief Justice was commencing to sum up the case to the jury, Dhingra said there was another statement on foolscap paper. _His Lordship_: "Any other statement you must make now yourself." _Prisoner_: "I do not remember it now." _His Lordship_: "You must make any statement you wish to the jury. If there is anything, say it now." _Prisoner_: "It was taken from my pocket amongst other papers." _His Lordship_: "I do not care what was in your pocket. With what you had written before, we have nothing to do. You can say anything you wish to the jury. What you have written on previous occasions is no evidence in this case. If you wish to say anything to the jury in defence of yourself, say it now. Do you wish to say anything more?" _Prisoner_: "No." The Lord Chief Justice then summed up the case to the jury in a charge occupying but six minutes. He said that the evidence was absolutely conclusive; that the jury had no concern with any political justification for the crime, for if anything of the kind were considered it would be in the carrying of the sentence into effect--with which the jury had nothing to do--that this was an ordinary crime by which a blameless man, who had devoted himself to the public service and had done much for the natives of India, had lost his life, and that it was quite plain there had been premeditation. His Lordship added that there was nothing which could induce the jury to reduce the crime from murder to manslaughter, nor was it suggested that Dhingra was insane, so that if the jury believed the uncontradicted evidence the only possible verdict was one of wilful murder. Without leaving the box the jury put their heads together and, in less than a minute, the foreman arose and uttered the fateful word "Guilty." There are no degrees of murder in England, but in cases where a weak intellect or greatly extenuating circumstances render hanging too severe a penalty, the Home Secretary may exercise a power of commutation. Thereupon Dhingra having been ordered to stand up, the clerk addressed him as follows: "You stand convicted of the crime of wilful murder. Have you anything to say for yourself, why sentence of death should not be passed on you according to law?" _Prisoner_: (with a snarl) "I have told you once I do not acknowledge the authority of the Court. You can do whatever you like with me--I do not care. Remember, one day we shall be all-powerful, and then we can do what we like." Then followed absolute silence for two minutes--a silence in which the breathing of persons near was audible. Slowly the Lord Chief Justice lifted from his desk a piece of black cloth. It was the "Black Cap." One naturally thinks, from its name, that this is a kind of headgear corresponding to the shape of a man's head. On the contrary, it looks like a piece of plain limp cloth, a remnant from a tailor's shop, about a foot square, which the judge places on the top of his wig, letting it rest there quite casually and perhaps at a rakish angle, the four corners hanging down and the whole producing a somewhat ludicrous effect. Neither judge, jury, nor audience, rose when sentence was about to be pronounced, but all remained seated, except the prisoner, who stood in dreary isolation, flanked by his stalwart guard, at his elevated station in the dock. His Lordship, the dignity of whose well-modulated voice contrasted strongly with his comical head covering, slowly addressed the prisoner as follows: [Illustration: THE SENTENCING OF DHINGRA] "Madar Lal Dhingra, no words of mine can have the slightest effect upon you, nor do I intend to say anything more than to point out to you that you have been convicted upon the clearest possible evidence of the brutal murder of an innocent man. The law enforces upon me to pass the only possible sentence in such a case." The sentence was that the prisoner should be hanged by the neck until he was dead and be buried at the place of execution. The Chaplain, in his robes, having somehow appeared at his Lordship's side, added: "Amen. And may God have mercy upon your soul." Immediately after the dread words had been uttered, the prisoner saluted the grave judge by a salaam, bringing the back of his hand to his forehead, and said in a manner, the impertinence of which deprived his words of dignity: "Thank you, my Lord. I am proud to have the honor of laying down my life for my country. I do not care." Counsel representing the relatives of the condemned man then arose and said that he was instructed to say that they viewed the crime with the greatest abhorrence and wished to repudiate in the most emphatic way the slightest sympathy with the views and motives which had led to it, adding, on behalf of the father and family, that there were no more loyal subjects of the Empire than themselves. His Lordship replied that, while the course might seem somewhat unusual, yet, having regard to the wicked attempt at justification in some quarters, he was glad for what had been said on behalf of the members of the family. Dhingra and his guards then disappeared from the dock and in a few moments the Lord Chief Justice and his escort, as well as the small audience, had withdrawn, leaving the court room deserted except for a newspaper reporter who was completing his notes. And so the drama closed. One was told that the youthful student would probably be hanged in a fortnight from the following Tuesday--the trial having taken place on a Friday--as ancient custom entitled the condemned man to three Sundays of life after sentence.[B] The spectacle of this little, lonely, misguided, yellow man, prompted partly by fanaticism but largely by vanity, having braved the whole power of mighty Britain in its proud capital to exploit his chimerical views, caught in the meshes of a law he hardly understood and hemmed in on all sides by its remorseless ministers, was deeply interesting and somewhat calculated to excite sympathy, until one's reason summoned the significance of the treacherous murder and the picture of a fair Englishwoman going out into that London night a widow. While the result of this trial was justice, swift and unerring, to an American observer it seemed odd and scarcely a fair practice for a man to be tried for his life unrepresented by counsel learned in the law. Although the case was plain, nevertheless, with great respect for the admirable administration of the law in England, it must be remarked that innocent persons,--who, even if not mentally defective, may none the less be far from clever and who are necessarily inexperienced, and may perhaps lack the intelligence or means to retain counsel--ought not to be permitted by the court to pit their wits against an able officer of the crown, the stake being their own necks. To excuse the omission on the ground of the obvious guilt and callousness of the prisoner, is not a satisfactory solution, because it would involve prejudging the issue to be tried. The proper and humane course is followed in the United States--the appointment by the court of counsel for an undefended prisoner--for it guards against the possibility of terrible mistakes. From a technical point of view, the "leading" nature of the direct examinations, so noticeable in English courts, was especially conspicuous in that this was a murder trial where no departure from the recognized customs would have been permitted. One's ear grows accustomed to questions which put the answer into the mouth of the witness and require merely a monosyllabic assent; and one waits in vain for the objection which, at home, would follow such infractions of the rules of evidence as thunder succeeds lightning. In the Dhingra trial, for instance, the Attorney General did not scruple to ask such questions as the following: _Q_: "Did you happen to look through the doorway and into the vestibule and see the prisoner speaking to Sir Curzon Wyllie and did you see him raise his hand and fire four shots into his face, the pistol almost touching him?" _Q_: "Did you see Sir Curzon Wyllie collapse?" _Q_: "Then, was there an interval of some seconds and then more shots?" (These killed Dr. Lalcaca.) Nor did he hesitate to put such questions to another witness as: _Q_: "Did you hear the noise of four shots and did you then look and see the prisoner and did you see him shoot again?" A police officer was asked: _Q_: "Did you examine the pistol and find one undischarged cartridge only?" _Q_: "Had the other pistol six undischarged cartridges in it?" _Q_: "Did you find two bullets similar to these in the wall?" To such an extent was leading carried in the Dhingra trial that occasionally the answer did not follow the lead, thus: _Q_: "Did you ask him 'What is your name and where do you live?'" _A_: "I can't remember what I asked him." The probable reason for the great latitude in this regard is the fact that apparently nothing in an English trial is a surprise--except to the jury. The court and counsel, knowing practically all the evidence beforehand, are extremely lenient. Not only are leading questions common but also questions asking for conclusions--not for facts from which the jury may draw their own deductions. Thus, in the Dhingra trial, a doctor, who was sent for after the murder, was asked: "Did the prisoner seem calm, quiet and collected?" A plaintiff, perhaps, will be asked: "How came the defendant to write this letter and what was its object? Did he consider himself remiss?" Of course an American lawyer would successfully contend that a letter speaks for itself, while a man's estimate of his own position could only be put in evidence by repeating his admissions in that regard--not by asking his opponent how he regarded himself. In favor of the practice of asking witnesses for conclusions--a practice which many American lawyers have found invalidates parts of testimony taken in England for use here--much may be said. To ask a witness the mental attitude of a person, whom he heard talking a year before--whether he was angry, or joking, for example--is to ask an answerable question; but to require him to repeat the exact words, is to demand an impossibility. In replying to either form of inquiry the witness may be honest or the reverse, so that the chances of intentional misinformation are equally balanced, but an attempt at verbatim repetition nearly always requires, consciously or unconsciously, a draft upon the imagination. It seems that our rules of evidence in this regard might, perhaps, be cautiously relaxed with advantage, to accord more with practical experience. An English criminal trial is quick, simple and direct. Dhingra, for example, whose crime was committed on July first, was sentenced on the twenty-first of that month and was hanged on August seventeenth--all in forty-seven days. The simplicity and directness of such trials is due to the absence of irrelevant testimony and imaginative arguments; these, counsel scarcely ever attempt to introduce--so certain is their exclusion by the judge. Thus, the real object of all punishment--its deterrent effect upon others--is greatly enhanced because it is swift and sure. The public, moreover, are usually spared the scandal and demoralizing effects of prolonged, spectacular and sensational trials. Until a short time ago any person convicted in an English court was without appeal--the rulings and sentence of a single judge were final--but this manifest injustice has lately been cured by a law granting the right of appeal. It is too soon to estimate the effect of this change, but the prediction may be ventured that the ancient habit of regarding criminal judgments as conclusive, together with the saving common sense which characterizes all English courts, will probably prevent any radical departure from the present methods, which have much to commend them. Comparison with American conditions is most difficult because, besides the United States courts extending for certain purposes over the whole country, there are forty-six absolutely separate sovereignties whose administration of criminal law, unless in conflict with the Constitution of the United States, is as independent of the rest of the world as that of an empire. Consequently, while differences exist in methods and results, the remarkable fact is that they are, upon the whole, so similar, when only a common tradition and a fairly homogeneous public opinion serve to keep them from drifting in diverse directions. The administration of criminal law by the United States Courts deals chiefly with the trial of persons accused of murder on the high seas, counterfeiting, forgery, smuggling or postal frauds, defaulting bank officials and, very lately, corporation managers charged with favoritism in freight rates, or with the maintenance of monopolies affecting interstate commerce. Throughout the length and breadth of the land it is prompt, thoroughly dignified, vigorous and fair; indeed, its excellence, as a whole, suffers little if at all by comparison with the best English standards, which have been perfected only by centuries of experience in the highly concentrated population of a small Island. But turning to the individual States, all comparisons must depend upon locality. New York, the landing place, that threshold of real America, with a predominating foreign population; the western frontiers of civilization, and the South, with its peculiar racial conditions, suffer by comparison with British standards far more than would one of the orderly communities composing the greater part of the Republic. Recent mal-administration of criminal law in New York constitutes a subject of national mortification, but the existence of this sensitiveness is the best of reasons for believing that time will bring an improvement. Unfortunately for the good name of the country, foreigners do not comprehend, and can hardly be made to appreciate, that the instances of private assassination in that city followed by trials, which, whether owing to a vicious system of practice or to judicial incompetency, excite the indignation and ridicule of the world, are not typical of America but are expressions of purely local and probably temporary conditions. Foreign critics should be told that New York is not America, as many of them assume, and that temporary and local lapses do not prove a low standard. They may also be reminded, as showing that human justice is fallible, that even in London if a man walks into an Oxford Street department store, lies in wait for the proprietor against whom he has a grievance and blows out his brains, although he will be convicted in a trial occupying but three hours, yet the Home Secretary may intervene and prevent his hanging, upon a petition signed by tens of thousands of sentimentalists moved by the rather illogical fact that his wife contemplates an addition to a thus celebrated family. In the far West, criminal practice is probably neither better nor worse than in any other rough frontier of civilization where men must largely rely upon their own resources, rather than upon the government, for the protection of their lives and property. Conditions in the South are so peculiar, owing to the sudden elevation to a legal equality of an inferior race which is in the majority, that no comparison with any other community is possible. Without in the least condoning existing conditions, it may even be said that lynching, unlike private assassination, involves some degree of co-operation and is the expression of public, rather than of individual, vengeance. The theatre of these outrages is, moreover, sparsely settled, beyond large cities or centres of education, and still retains some of the features of a frontier. Throughout much the largest area, however, constituting the solid civilization and containing the bulk of the population of this immense country, no such conditions exist. On the contrary, crime is met with that steady and impartial justice, inherited from England, which neither partakes of the police oppression of continental countries, nor lapses into the barbarism of the exceptional localities above referred to. To commit deliberate murder in one of the eastern States, such as Pennsylvania, or Massachusetts, or in one of the great commonwealths of the middle West, means sure and reasonably speedy hanging. But, bearing in mind the difficulty of accurate comparisons between such diversified sections and a compact unit like England, and endeavoring to arrive at a general estimate, it must be conceded that America, as a whole, has even more to learn from England's criminal, than from her civil, courts. FOOTNOTE: [B] He was hanged three weeks from the following Tuesday. CHAPTER XIV LITIGATION ARISING OUTSIDE OF LONDON LOCAL SOLICITORS--SOLICITORS' "AGENCY BUSINESS" --THE CIRCUITS AND ASSIZES--LOCAL BARRISTERS --THE COUNTY COURTS--THE REGISTRAR'S COURT. As has been said, solicitors are to be found in every town in England, whereas barristers, with minor exceptions to be noted, all hail from the London Inns of Court. People living in the country or in provincial towns, especially the larger ones, such as Liverpool and Manchester, of course consult local solicitors. If litigation is contemplated, the solicitor advises his client and conducts the sparring and negotiations which usually precede a lawsuit. But when actual warfare opens, the provincial solicitor generally associates himself with a London solicitor who is known as his "agent"; and hence "agency business" constitutes a considerable portion of the practice of a large firm of town solicitors. The Manchester or Liverpool solicitor does all the work and receives the fees up to the time he sends the "proofs" to the agent--that is, the documents, statements of witnesses reduced to affidavits, and the other items of evidence--and dispatches the witnesses to the trial in London, which usually however, he does not attend himself, although, of course, he sometimes does so. The London solicitor retains the barristers, and is thereafter in complete charge of the case. The newspaper reports of trials of cases from the provinces, after giving the names of the barristers, always mention the London solicitor as agent for the country solicitor whose name also appears. The fees are shared from the time of association; one-third to the country, and two-thirds to the town solicitor. This is not unlike the manner in which our lawyers handle business in States other than their own--but it is much more systematized. If, however, the provincial solicitor prefers to await the Assizes (which he may, except in divorce, probate, equity and some other kinds of business) he may bring his action in the High Court, sub-offices of which are available throughout the country for the issuance of writs, and, having retained a barrister, may try the case in his own town when the judge of the High Court comes down from London thrice a year on circuit. These Circuits of the High Court are arranged with regard to the volume of business and the contiguity of centres of population, without reference to county boundaries, and the same judge is rarely designated to repeat his visit to a circuit until it is reached again in regular rotation. To some circuits, like the Northern, where the business is very heavy, two judges are sent. At these Assizes, both civil and criminal business is handled, and, if there be two judges, one court room is devoted to the former and the other to the latter. Every London barrister, early in his career, joins a circuit. He usually selects one where he may be somewhat known to the solicitors, and where, perhaps, his family have property or associations. Formerly and, in fact, long after the advent of steam, judge and counsel "rode the circuit"--as was done in the early days of our own county Bars--and indeed, within the memory of barristers still in middle life, a horse van used to stand in one of the Temple squares to receive the luggage, papers and books of court and Bar for the circuit. Each circuit has its "mess" with interesting traditions of midnight carousals and records of fines of bottles of port inflicted upon members for various delinquencies. The modern mess, besides procuring special rates at the hotels, constitutes a sort of itinerant club; rendering possible a discipline for breaches of professional propriety by expulsion or denial of admission, which is the most drastic punishment short of disbarment. A few barristers, and their number is increasing, reside in large towns other than London and practice exclusively at the Assizes and in the county courts--of which something will be said later. They are known as "locals". If successful, however, they gravitate to the source of the High Court--London. Thus the local solicitor, if he decide to eschew London and an agent and await the Assizes, has a considerable Bar from which to pick his man. A barrister never accepts a brief in a circuit other than his own unless the solicitor has also briefed, as his associate, a junior who is a member of the circuit. To do so would be a gross breach of etiquette. But if this unwritten law be duly observed, the barrister who is a stranger here, although a daily colleague in the London courts, is immediately received with open arms and made an honorary member of the mess. Court and Bar having reached and disposed themselves in an Assize town, as a flock of birds settle in a convenient cover, a transplantation of a London court is effected until the disputes of the neighborhood are resolved. An observer can find no difference in personnel or general aspect, except perhaps, that the provincial policemen at the doors are not so polite and patient as the London "bobby"--that marvel which excites the envy, admiration and despair of conscientious ministers of authority in the rest of Christendom. If an action involve no more than £100, a solicitor may seek the County Courts--for there are seven of such courts for the county of London. The advantage in so doing is chiefly in the smaller costs, which are a serious matter to all English litigants, and almost prohibitive to the poor. The judge of a county court must be a barrister of at least seven years standing and generally hails from London. He is appointed by the Lord Chancellor and receives a salary of £1,500. His title in court is "Your Honor", as distinguished from a judge of the High court, who is addressed as "My Lord" or "Your Lordship," and from a magistrate, who is called "Your Worship." In the county courts, solicitors "have audience", that is, they may, equally with barristers, address the court and jury; in other words, they may be the actual trial lawyers, whereas, in the High Court barristers alone are heard. In addressing the court, they must wear a black gown, but no wig. Barristers, except locals, are infrequently seen in the county courts; the amounts involved scarcely warrant retaining them. But, for some years, the tendency has been to increase the limit of jurisdiction of these courts and their importance is steadily growing. In this connection it may be mentioned, too, that agitation appears to be making some progress for removing all limitation of the jurisdiction of the county courts with, however, a right to the defendant to remove a cause to the High Court when more than a certain sum is involved, thus creating a sort of solicitor-advocate. But the outcome of all this is, at the moment, problematical. At present, to prevent solicitors developing into pure advocates even in the county courts, a law forbids one solicitor retaining another to conduct the actual trial. The Registrar's Court in a great town, like Birmingham, will be found in the county court building. The court room is large, but usually contains only a few people, of the lower class, and the registrar, in black gown and wig, sits on a raised dais. In the High Court, the American observer has been accustomed to associate a gown only with the barrister--never with the solicitor. In the county courts, however, he has seen solicitors practicing as advocates, in minor cases, and wearing gowns; but until he visits a registrar's court he has never seen a wig except upon the head of a barrister or of a judge; and all judges have once been barristers. He is therefore surprised to learn that, notwithstanding his attire, the registrar is a solicitor, appointed to his position by the county judge. Beside the registrar stands a man who very rapidly passes to him numerous printed forms upon which the registrar places a figure or two, such as "4/6" or "7/6". This is done almost as fast as one would deal a pack of cards. Occasionally, there is a pause, a name is called and some one from the audience steps forward; whereupon brief testimony is taken as to some small debt, claimed upon one side and denied upon the other. Judgment for plaintiff follows in nine cases out of ten, and then inquiry is made by the registrar whether the defendant--or her husband, if she be a woman--has work or is unemployed. A figure is then placed on the printed form which is added to the pile. The business dispatched is that of some large retail tradesman. Upon payment of a small fee in the clerk's office, summonses have been obtained which have been served on the debtors by a policeman, and, in most cases, the defendants have signed their names admitting the debt. The figures 4/6, 7/6, etc. signify the order of the court, that 4 shillings and 6 pence, or 7 shillings and 6 pence, shall be paid monthly until the debt is liquidated. In this way, the time of a defendant who admits the debt is not diverted from his work to attend court. The claims are fixed for hearing in batches of 100 every half hour of the court's sitting, when, if not admitted in writing, a short trial of the contested cases ensues. In this way about 400 cases a day are readily disposed of. Payments are made in the clerk's office and each payment is endorsed on the summons. If the debtor falls out of work, an application is made, invariably with success, to suspend the payment until idleness ceases. The costs are trifling and the whole system works admirably. It is a prompt and businesslike manner of enforcing small obligations with a minimum of loss and delay. CHAPTER XV GENERAL OBSERVATIONS AND CONCLUSION It is the office of the courts to administer written laws enacted from time to time in response to the popular mood. They also--and it is the more important function--discover and declare the principles of natural justice which, in the absence of written law, govern the decision of a controversy. These deliverances, constituting the common law, rely much upon precedents which, however, are not followed slavishly, but are continually being modified--sometimes abruptly--in harmony with prevailing sentiment. Thus, the law expounded by the courts is ever changing and it slowly follows public opinion. Both the public opinion and the law of England were, for generations, characterized by the quality of conservatism. The various reform acts, starting in 1832, marked the advent of an epoch of individualism which, lasting for over fifty years, made England the land where personal liberty and private property were perhaps safer than ever before in the world's history. It was a country where government's chief concern was to furnish irreproachable courts, competent police and few but honest civil servants, so that each man might pursue happiness after his own fashion with the least possible interference, yet with complete confidence that he could assert his rights effectively when invaded. Hence it was that America learned to look to England for precedents. All this is changing. The substitution of the doctrines of collectivism for those of individualism began in 1885 and it proceeds rapidly in many directions. The socialistic harangues one hears from vagabonds mounted on benches in Hyde Park are delivered without interference by the police. The spreading of discontent by paid agitators proceeds at the market crosses and in the taverns of the villages between elections. Later the politicians appear and solicit votes for impossible schemes, an ever increasing proportion of which are actually adopted by Parliament and of which the laws regulating liability for personal injuries, attacks upon land and other forms of property, old age pensions and the methods of public education, furnish typical examples. [Illustration: SIDEWALK SOCIALISM--HYDE PARK] The Workingmen's Compensation and Employers' Liability Act of 1906 was a tentative step, but seems likely to lead to extended liability and reduced defences, particularly in the matter of contributory negligence, which has almost ceased to be a factor. One of the clauses of this Act shows that, even when it is proved that the death or serious disablement of a workman is attributable to his own wilful misconduct, compensation may yet be claimed on his behalf from his employer. In addition, another and unheard of form of liability for an employer, requiring him to compensate his servant if the latter falls ill or dies of an "industrial disease" (a list of which diseases was appended to the Act) and with the extraordinary provision that, having paid the compensation, the employer may sue any former employer for the amount, if he can prove the servant actually contracted the complaint in the earlier service and within ten years. Of course universal accident liability insurance followed, the cost of which must be borne by the proprietor, and, if he is a manufacturer, eventually by the consumer. As may be imagined, such laws give rise to surprising results. The report of one of the great accident liability insurance companies, made shortly after the passage of this law, exhibited, for example, the recovery of damages by a domestic servant, who, while eating a meal, had swallowed her own false teeth; another had contrived to swallow a curtain hook; a third was burned by the bed clothes taking fire from a hot iron which she had wrapped in flannel for the purpose of warming herself. The manageress of a laundry had her hands poisoned by handling copper coins. A footman was bitten while attempting to extract a cat from the jaws of a dog; a nurse-maid was burnt by letting off fire works in the back garden at a private celebration of the servants during the master's absence, and a cook had her eyes scratched by the house cat. Such absurdities show the trend of modern English legislation on the subject. A glance at an English landscape with its panorama of endless turf and forest and comparatively small areas of cultivation, in marked contrast with the minute utilization of every inch on the Continent, and the reflection that England produces only a portion of the food consumed in its crowded towns, should leave no one surprised at an agitation to modify the existing conditions, which led to continued assaults upon all forms of possession, whether of real or personal property. Acts of Parliament followed each other in quick succession depriving land owners of their holdings to inaugurate chimerical building schemes; giving rent-payers power to condemn and forcibly purchase dwelling houses; attacking property other than land by taxing the inheritance of money so heavily (on a sliding scale of percentages increasing with the size of the estate), as to approach the socialistic ideal that two deaths shall mean the absorption by the State of any large property and that no man shall enjoy a rich grandfather's accumulations; levying upon the living wealthy by ever increasing income taxes, with a like sliding scale, operating upon them alone, while exempting the poor. To this almost confiscatory taxation no limit seems to be in sight. Old age pensions--one of the most startling novelties of the collectivist--are doubtless economically impossible and morally pernicious unless required to be contributory on the part of those who may later claim them, so that they constitute a system of compulsory saving and insurance, as is the plan in Germany where socialism is at least somewhat scientific. But it remained for the once conservative England to inaugurate the distribution of universal alms without any comprehensive plan for raising the money--the weekly dole to be inevitably increased and the age limit lowered as the exigencies of vote-seeking politicians render expedient. No one now questions the propriety of a Government providing free education for children, but in England a father, no matter how well qualified, may now be prosecuted for educating his child himself rather than sending him to a Government school to be fed as well as taught. At the Marylebone Police Court a well known journalist and writer on education was summoned by the Education Department of the London County Council some time ago for neglecting to send his four children to school. He was, himself, an old and experienced teacher with credentials from one of the colleges of Cambridge University. He did not believe in sending his children to school until they reached the age of ten or eleven, but meanwhile he taught them himself, _viva voce_ in the open air, according to the system of Froebel and Pestalozzi, and endeavored to make education a delight. This was the father's chief occupation and he devoted as much time as possible to training all the mental faculties, without exhausting the nervous force or injuring the physical health, of his children. The eldest, a boy of fourteen, had contributed an article to one of the leading magazines which was pronounced by a competent editor of another periodical to be an extraordinary effort for a boy of his age. It appeared that he knew Shakespeare well and was in the habit of quoting him and other poets, but that his brother, aged eleven, preferred Wordsworth. He considered the English language "awkward," French "euphonious" and German "rationally spelt." It was rather a relief to find another brother, aged nine, who was deep in "Robinson Crusoe." A school-attendance officer, however, had reported that the children did not attend the elementary schools and the magistrate imposed fines upon the father, but, upon it appearing that he had no property, he was sentenced to imprisonment for seven days in respect of the Shakespearean, and five days each to cover the lover of Wordsworth and the student of Defoe. A month later the father was summoned before a different magistrate in the same police court who fined him in respect of the youngest child and adjourned the hearing in order that the other three might be examined by a government inspector to ascertain whether they were being efficiently educated. This episode may not have been typical, but that it was possible in modern England illustrates how out of date is the old-fashioned conception of the personal liberty and freedom from governmental intrusion which once characterized that Island as distinguished from the Continent. These are but examples of a series of surrenders to the proletariat, which have practically delivered over the general Government of England to the collectivists; while the education and training of many of the party managers who are responsible for it, renders incredible the excuse that they may be only fanatics. Simultaneously, municipal socialism has spread in a manner affecting the public even more intimately. Over three fourths of the Councils--County, Town, Urban District and Rural District--are engaged in municipal trading of various kinds, operating inefficiently and generally at a loss, such enterprises as golf links, steamboats, concert halls, motor busses, markets, trams, bath houses, gas works, libraries, telephones, milk depots, electric lighting, lodging houses, building operations, insurance--and a host of other undertakings heretofore left to private initiative. All this means an ever increasing army of officials, agents and inspectors. The interference of a paternal government is threatened or felt in every detail of existence. The people have learned to agitate collectively for advantages to be taken from some classes and distributed to others. Without a constitution (for the so-called English Constitution is but a misnomer for former laws and decisions which are subject to constant repeal and alteration) and without a Supreme Court capable of declaring wild legislation to be unconstitutional--for every act of Parliament becomes a law which can never be challenged in any court--there is no brake to retard, and the politicians of all shades are left free to compete in casting one vested right after another to the mob in quest of votes. The most serious effect of all this is, probably, the tendency to weaken that sturdy self-reliance upon individual effort which has always characterized Englishmen, and the encouragement of an attitude of leaning upon the Government and of looking to legislation to remove all difficulties. No popular disturbance is impending--it is unnecessary, for the revolution progresses smoothly and the whole country is adjusting itself to the new order of things. The possessors of property seem singularly resigned, or at least inarticulate, and submit almost in silence to spoliation. Such opposition as exists takes chiefly the form of party controversy upon details, and criticism by each faction of the steps of the other. Few seem to realize how far the country has departed from its former standards or that the most moderate proposals of to-day were radical yesterday. It is a great race, this Anglo-Saxon, and it has shown wonderful capacity to govern itself in the past. It may prove to be wisely meeting half way an approaching avalanche of worldwide socialism destined to modify the existing order of society. Or can it be that England has seen its best days? One thing, at least, is sure--the United States is at the moment infinitely more conservative than England. Both are pure democracies, and therefore if the people should be resolved to abolish the rights of property as we at present know them, it would inevitably be accomplished. That the majority are really of that mind in either country is more than doubtful; but in England the politicians seem to be destroying that which it has taken centuries to build up, whereas in America this could not happen unless the conviction was so widespread, determined and permanent, as to accomplish what is apparently impossible--the radical amendment of the Constitution. This digression into the field of politics is only relevant in its possible effect upon the courts. They, at present, necessarily exist in an atmosphere of confusion and of constant annihilation of rights. The head of the whole administration of law, the Lord Chancellor, is a political appointee changing with the parties. He appoints the other judges, the King's Counsel and, directly or indirectly, he is the great source of legal advancement. True, he has for a long time been selected from the leaders of the Bar so that he has been professionally well qualified. But this was not always the case and it is not necessarily a permanent condition, especially in a country passing through such fundamental changes. Time alone will show whether these violent shocks will disturb the balance of the scales of justice. For the future, realizing that England is no longer conservative, but is now the land of startling experiment, it would be at least prudent to accept its political and legal precedents with caution. One sometimes hears it said that we have too many judges, and the argument is apt to be urged by the assertion that the number in a large city is as great as in all England. The natural inference is that our judges work less effectively. No statement could be based upon falser premises. The roll of judges in the High Court is, indeed, a limited one and, as they try small as well as large cases, the impression might follow that they constitute the whole judicial force of England. The fact, however, is quite the reverse. Taking at random the daily Official Cause List for London there will be found on a given day sitting at the Law Courts in the Strand alone, twenty-one judges of the High Court, eight masters, seven Chancery registrars, twelve masters in Chancery, three official referees, two registrars in bankruptcy and one official presiding over "companies winding up"--exactly fifty-four men simultaneously performing judicial duty in one building. Each of these is holding what is practically a separate court and his title is of no significance. When one remembers that at the same time the House of Lords is sitting at Westminster, the Judicial Committee of the Privy Council in Downing Street, the four Criminal Courts at the Old Bailey, more than twenty police magistrates at Bow Street and elsewhere, and County Courts, at Bloomsbury, Clerkenwell, Edmonton, Marylebone, Shoreditch, Southwark and Westminster, some idea may be formed of the number of judges and courts always at work in the metropolis. Innumerable courts are also sitting in the provinces, which, if less important, serve to relieve the metropolitan judges. The justices of the peace number in many counties three or four hundred and in one county about eight hundred, although most of them never attend and the work is done by comparatively few. They sit singly as committing magistrates and in groups at petty sessions and at quarter sessions. There are also a large number of borough criminal courts presided over by a recorder. Besides, the county courts are over five hundred in the aggregate, though there are not so many county judges, for the smaller courts are grouped into circuits. Finally, there are the Assizes of the High Court coming down periodically from London to try causes, both criminal and civil, all over England. Thus the little Island fairly bristles with tribunals and teems with judges and any criticism of American judges or of American judicial methods by such comparison would only be possible in ignorance of the facts. * * * * * In America, litigation begins in the court room; in England, it ends there. American proceedings tend to be somewhat formal, conventional, diffuse and dilatory. Pitfalls and traps are occasionally laid by astute practitioners, which embarrass the side really in the right and delay a conclusion upon the merits. Much is incomprehensible to the laymen concerned except the result. English legal proceedings on the contrary are colloquial, flexible, simple and prompt, thoroughly in touch with the spirit of the times and with the ordinary man's every-day life. The legal decisions of the two countries are probably of equal value, and are held in mutual respect. Neither, perhaps, could claim any superiority over the other in its legal results, but in methods, England at present is far in advance. This was not always so. Up to 1875 the English courts were most slow, expensive and unsatisfactory. But in these thirty-five years, reforms in methods have so progressed, step by step, that the most important action can be tried, a judgment given, appeal taken, argued and orally decided as counsel sit down--all in ninety days. The details of these improvements are too technical for the present occasion; suffice it to say that they are characterized by the utmost simplicity, and many of them are capable of adaptation with modifications to American conditions. In America, the Bar is almost unorganized. It has little voice in the selection of the judges, of whose qualifications the politicians have no knowledge; it is weak in disciplining and purging itself and in commanding public respect for its rights; its standards of professional propriety are not clearly enough established, although great improvement is noticeable in all these respects. In England, the Bar is well organized and governs the whole administration of the law, jealously resenting any interference with its ancient prerogatives and preserving its own professional honor. Thus, a close observation of professional life in England will prove instructive and suggestive to the ever-alert American. Nevertheless he will depart with a feeling that, while at home there is room for progress, yet, upon the whole, the old profession in the New World well maintains its proud position. INDEX Absence of "leader" in trial, 32 Accident cases, "tender of damages" in, 122 Admiralty, Probate, Divorce and Admiralty Division of High Court, 93 Trial, 104 Advocates, solicitors as, 174 "Agency business" of solicitors, 169 American law books in Middle Temple library, 14 Members of English Bar, 12 Appeal, Courts of, 107 to Judicial Committee of Privy Council, 113 to House of Lords, 111 in criminal cases, 163 of colonial cases, 114 Appellation of judges, 173 Appointment of judges, 96 Aromatic herbs in criminal courts, 133 Assizes, 170 "Associate" or clerk of court, 3 Attorney or solicitor, 49 Bags of barristers, 47 of solicitors, 55 Bailey, Old, 131 "Bands" of K. C.'s dress, 40 Bar, American members of English, 12 Calling to, 26 Discipline of, 67 English, size of, 37 English, division of, 39 Make up of, 12 Parliamentary, 40 Women not eligible to, 26 Barnard's Inn (Chancery), 23 Barrister, "Associate," 3 "Blue and red" bags of, 47 Begins by becoming "devil," 30 Chambers of, 14 Chancery, 40 Common law, 40 Desks of, 3 Dress of, 44 Fees of, 58 Formerly lived in Inns, 18 Joining circuit, 171 "Juniors," 31 "Leader," 4 "Locals," 172 Master, 117 Member of Inns of Court, 24 Partnerships forbidden, 61 Practice of, 57 Selection of, 50 Serjeants-at-law, 23 Training of, 25 "Twelve Dinners" of, 25 Upon becoming K. C., invited to join Benchers, 21 Voices of, 6 Wig of, 5, 45 Benchers govern Inns, 21 Black Cap, 156 Briefs, 50 Briefs, endorsed with fees, 62 Butler's livery at Old Bailey, 135 Calling to bar, 26 Cambridge students exempted, 25 Censors, 68 Chambers of barristers, 18 Chancery Bar, "Specials," 41 Barrister of, 40 Division of High Court, 93 Inns, 16 Inns formerly connected with Inns of Court, 22 Inns, history of, 22 Lane, 15 Lane, Serjeants' Inn, 23 "Leaders," 34 Chief Justice, salary of, 95 Circuits of High Court, 171 Clement's Inn (Chancery), 23 Clerk of Court or "associate," 3 Clifford's Inn (Chancery), 23 Colonial appeals, 114 Colors of bags, "blue and red" for barristers, 47 Common juries, 92 Serjeant criminal judge, 132 Law barrister, 39 "Consolidated regulations," 22 Contingent fees not permitted, 59 Corridors of the court, 1 Costs, 97 Council of Bar, general, 67 of legal education prescribes course of studies for barrister, 25 Counsel in a cause, 4 County courts, jurisdiction of, 94 procedure, 173 judges of, 173 salaries of judges of, 173 Court Appeal, 107 Central Criminal (Old Bailey), 131 Civil, 87 Common Pleas, practice formerly limited to Sergeants-at-law, 23 County, 94-142 Criminal, 131 Divisional, 113 Enumerated, 188 High, 88 Police, 125 Registrar's, 95 Room described, 2 Room, Criminal Court, described, 132 Vacation of, 73 Criminal Law, 39 Trials, 136 Trials, appeals in, 163 Trials, comparison with American, 164 Criminal Court, Aromatic herbs in, 133 Central (Old Bailey), 131 Customs in, 133 Dock of, 133 Judges of, 132 Police, 125 Recorder, 132 Room described, 132 Devil may conduct trial, 32 "Devilling," 30 Dhingra's Trial, 145 Disbarment, 67 Discipline of bar, 67 of solicitors, 67 Divisional Court, 113 Divorce, Probate and Admiralty Division of High Court, 93 Dock, in Criminal Court, 133 Dress of Barristers, 44 of Butlers at Old Bailey, 134 in Criminal Court, 134 of Footmen at Old Bailey, 135 Judges, 3 Judges (Chancery), 93 King's Counsel, 44 Solicitors, 3-46 Education, Council on Legal, governs training of barristers, 25 Employers' Liability Acts, 179 English Bar, size of, 37 Entrances to court room, 1 Equity Trials in Chancery Division High Court, 93 Ethics of profession, 68 Etiquette of dress enforced, 40 Fees of Barrister, 58 of Sir Charles Russell, 60 of Sir Frank Lockwood, 60 Must not be contingent, 59 Paid by law students, 26 of solicitors, 64 of solicitors, sometimes divided, 170 First impressions, 1 Fleet Street--"Old Bailey," 131 Footman's livery--"Old Bailey," 135 Furnival's Inn (Chancery), 23 General Council of Bar, 67 Observations, 177 "Gentleman," defined by Sir Thomas Smith, 10 Gray's Inn, 13-15 Hearings in Police Courts, 125 Herbs used in Criminal Court, 133 High Court, of Justice, 88 Circuits of, 139 Division of, 88 House of Lords, Appeals, 111 Impressions on entering Law Courts' Building, 1 Incorporated Law Society, 27-67 Inns of Chancery, 13 Formerly connected with Inns of Court, 22 History of, 22 "Staple's," "Barnard's," "Clifford's," "Clement's," "Lyon's," "Furnival's," "Thavie's," "New Inn," "Strand," 23 Inns of Court, 13 Date of origin, 21 Government of, 21 Origin of, 21 Position of, 20 Uniformity of, 21 Inns, Gray's Inn, 13 Inner Temple, 13 Lincoln's Inn, 13 Middle Temple, 13 Serjeants', 23 Interior of barristers' chambers, 18 Journals, law, reports of, 72 Judges, 3 Actively conduct trials, 102 Appellation of, 142 Appointment of, 96 Chancery Division, robes of, 93 Formerly in holy orders, 19 Of County Courts, 173 Of County Courts, salaries of, 173 Of Criminal Courts, 132 Robes of, 3 Salaries of, 63-95 Judicial Appointments, 96 Committee Privy Council, 113 "Junior" barrister "opens pleadings," 31 tries case, 32 Jury, Common and Special, 91 Only in King's Bench, 88 Qualifications of, 92 Situation and arrangement of, 3 Trials, 100 King's Bench, 88 Counsel, 4, 31 Counsel, robes of, 44 Counsel, routine of, 36 Counsel, "Taking Silk," 33-34 Law Courts Building on Strand, 1 Journals, 72 Society, Solicitors' Incorporated, 28 Lawyer's training, 9 "Leader," 4 King's Counsel, 31 List of, 42 Absence of, 32 Leading questions, 140-160 Lincoln's Inn, 13-15 Livery of Footman, Criminal Court, 135 Local Barristers, 172 Solicitors, 169 Lockwood, Sir Frank, fees of, 60 London Times, law reports of, 72 Long vacation, 73 Lord Chancellor, appointments by, 173 Salary of, 95 Lord Chief Justice, 132 Lyon's Inn (Chancery), 23 Magna Charta fixed position of courts, 20 Masters, 117 Trinity, 94 "Mess" of Circuits, 171 Middle Temple, described, 13 American law books in, 13 Models much used, 104 Murder Trial of Madar Lal Dhingra, 145 Newgate Prison, 131 New Inn (Chancery), 23 Newspapers, Law reporting in, 72 Trial of cases in, 73 Nisi Prius, sittings frequent, 105 Offices of barristers in Inns, 18 Old age pensions, 181 Old Bailey (Central Criminal Court), 131 Oxford students, exemptions of, 25 Parliamentary Bar, 40 Partnerships of barristers forbidden, 61 Pensions, old age, 181 Police courts, 125 Porter's Horn, 17 Practice of barristers, 58 before masters, 117 Rules of, 89 Preliminary hearing in Police Courts, 125 Preparation of case by solicitor, 4 "President" of Probate, Divorce and Admiralty Division, 88 Prison fever, 131 Privy Council, judicial committee of, 113 Probate, Divorce and Admiralty Division of High Court, 93 Procedure in county courts, 173 Provincial courts, 169 Reading of English law student, 25 Recorder, a criminal judge, 132 Registrars' courts, 174 Registrar, a solicitor, 175 Reports of cases, 72 Robes, Judges', 3 of Judges' Chancery Division, 93 of King's Counsel, 44 Rules of practice, 89 Russell, Sir Charles, fees of, 60 Salaries of judges, 63-95 of Judges, County Courts, 173 of Masters, 117 Serjeants-at-law, 23 Common, a criminal judge, 132 Inn, 13-23 Inn, present use of, 23 Shakespeare, production of "Twelfth Night" in Temple, 14 Sheriffs, duties in Criminal Court, 132 "Silk," "taking of," 33 Smith, Sir Thomas, definition of "gentleman," 10 Socialistic legislation, 184 Solicitors, 49 "Agents," 169 Bags of, 55 Become registrars, 175 Develop into advocates, 174 Discipline of, 67 Dress of, 55 Fees of, 64 Have no Inn of Court, 27 Incorporated Law Society governs training of solicitors, 27 Prepare cases, 4 Sphere of, 50 Training of, 12-27 "Well," 3 Special Juries, 92 "Specials" in the Chancery Courts, 40 List of, 42 Staple's Inn (Chancery), 23 Strand Inn (Chancery), 23 Students, training of, 25 Supreme Court of Judicature, 87 "Taking Silk," 33 Templars, Knights; use of land of, by Inns of Court, 13 Temple, Church of, 14 Inner, 13 Library of, 14 Middle, 13 Tender of damages in tort cases, 122 Thavie's Inn (Chancery), 23 Trade Guilds organized, 19 Treasurer, executive officer of Inn of Court, 21 Term of, 21 Trial, 31-74 Absence of "Leader" in, 32 In Admiralty, 104 Before Master, 118 Of criminal cases, 136 "Trinity Masters," 94 "Twelfth Night," produced in Temple, 14 Vacations of courts, 74 "Weepers," 44 "White Book," 68 Wigs, 45 Barristers' described, 5 Witness Box, situation of, 3 Witnesses, demeanor of, 6 Women, not eligible to Bar, 26 Workingmen's Compensation Acts, 179 Transcriber's Notes: The spelling "Sergeant" appears once in this text on page 134, otherwise the word is spelled and indexed as "Serjeant." There is a separate transcriber's at the end of the Table of Counsel that appears in Chapter IV. 
8691	----	Kaelbling, Charles Franks and the Online Distributed Proofreading Team THE AMERICAN JUDICIARY BY SIMEON E. BALDWIN, LL.D. CONTENTS PART CASES CITED. I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES. II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS. _PART I_ CHAPTER I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY. II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS. III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT. IV. THE FORCE OF JUDICIAL PRECEDENTS. V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW. VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW. VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW. _PART II_ VIII. THE ORGANIZATION OF THE COURTS OF THE STATES. IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES. X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES, AND OF THE UNITED STATES JUDICIARY TO THE STATES. XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES. XII. TRIAL BY JURY. XIII. FORMALITIES IN JUDICIAL PROCEDURE. XIV. TRIAL COURTS FOR CIVIL CAUSES. XV. PROBATE COURTS. XVI. BANKRUPTCY AND INSOLVENCY COURTS. XVII. CRIMINAL PROCEDURE. XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT. XIX. APPELLATE COURTS. XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT. XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL LAW. XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES. XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH. XXIV. THE LAW'S DELAYS. XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY. INDEX. * * * * * TABLE OF CASES Ableman _v._ Booth Allinson, Hale _v._ American Insurance Co. _v._ Canter Ames _v._ Kansas Ames, Smyth _v._ Andrews, _Ex parte_ Anthes, Commonwealth _v._ Bachert _v._ Lehigh Coal and Navigation Co. Baldwin, Robertson _v._ Bank, Bardes _v._ Bank of Kentucky, Briscoe _v._ Bank of Mississippi _v._ Duncan Bank of the U. S., Osborn _v._ Bardes _v._ Bank Barrows _v._ Bell Batchelder _v._ Moore Baxter _v._ Brooks Baxter, State _v._ Bean _v._ Beckwith Bean, Beckwith _v._ Beckham, Taylor _v._ Beckwith _v._ Bean Beckwith, Bean _v._ Bell, Barrows _v._ Bell's Gap R. R. Co., McCloskey _v._ Bernard, Coggs _v._ Biddle, Green _v._ Bidwell, Downes _v._ Bissell _v._ Dickerson Blacker, Board of Supervisors _v._ Blair _v._ Williams Blake _v._ McClung Board of Supervisors _v._ Blacker Bodley _v._ Gaither Boffman, Hickman _v._ Bonham's case Booth _v._ Clark Booth, Ableman _v._ Borden, Luther _v._ Bowman _v._ Middleton Boyd _v._ Thayer Boyd _v._ U. S. Bradburn, Mincey _v._ Bradley _v._ Fisher Bradley _v._ New Haven Bradley, _Ex parte_ Brainerd, Fitch _v._ Branch, _In re_ Brashears, Lapsley _v._ Briggs _v._ Garrett Brine _v._ Insurance Co. Briscoe _v._ Bank of Kentucky Brooks _v._ State Brooks, Baxter _v._ Brown, Kellogg _v._ Brown, Parkersburg _v._ Bulkley, State _v._ Bull, Calder _v._ Burgess _v._ Seligman Burr's Trial Burrows, Nudd _v._ Bush, Perry _v._ Bushnell, _Ex parte_ Calder _v._ Bull California, Hurtado _v._ Call Publishing Co., Western Union Telegraph Co. _v._ Calvin _v._ Huntley Canfield _v._ Mitchell Canter, American Insurance Co. _v._ Carriere, Tua _v._ Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia Christmas _v._ Russell Church _v._ Pearne City of South Bend _v._ Turner Claflin _v._ Houseman Clark, Booth _v._ Clarke's Appeal Cleveland, Painesville and Eastern R. R. Co., _v._ Pritschau Clymer, Norris _v._ Cochran, Gernon _v._ Coffin _v._ United States Coggs _v._ Bernard Cohens _v._ Virginia Coleman _v._ Tennessee Coler _v._ Tacoma Railway and Power Co. Colt, Stanley _v._ Commonwealth _v._ Anthes Conn. Pipe Mfg. Co., Ward _v._ Consul of Spain _v._ Consul of Great Britain Cooper, Application of Cooper, _In re_ Cooper, In the matter of Copass, Hall-Moody Institute _v._ Croswell, People _v._ Cunningham, State _v._ Danbury, Hoyt _v._ Dartmouth College _v._ Woodward Debs, U. S. _v._ Debs, _In re_ Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._ Demorest, Hutkoff, _v._ Dennison, Kentucky _v._ Deposit Bank _v._ Frankfort Dickerson, Bissell _v._ Diggs _v._ Wolcott Donoghue, Hanley _v._ Dorr _v._ United States Dorrance, Vanhorne's Lessee, _v._ Dougherty, Lanark _v._ Dow _v._ Johnson Downes _v._ Bidwell Dred Scott _v._ Sandford Drehman _v._ Stifle Duncan, Bank of Mississippi _v._ Duncan, Johnson _v._ Dyson _v._ Rhode Island Co. Eakin _v._ Raub Eckrich _v._ St. Louis Transit Co. Ellington, Miel _v._ Erdman _v._ Mitchell Exchange Bank _v._ Rice Farmers' Loan and Trust Co., Pollock _v._ Faulkner _v._ Hart Finney _v._ Guy Fish _v._ Smith Fisher, Bradley _v._ Fitch _v._ Brainerd Fletcher _v._ Peck Flynn _v._ Morgan Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co. Frankfort, Deposit Bank _v._ French _v._ Waterbury Frost _v._ Leighton Gaither, Bodley _v._ Garland, _Ex parte_ Garrett, Briggs _v._ Genesee Chief, The Georgia _v._ Stanton Georgia, Cherokee Nation _v._ Georgia, Chisholm _v._ Georgia, Worcester _v._ Gernon _v._ Cochran Gibbons _v._ Ogden Goshen _v._ Stonington Gould _v._ Hudson River R. R. Co. Grady's case Grapeshot, The Gray, James _v._ Green _v._ Biddle Griffin _v._ Wilcox Griswold, Hepburn _v._ Griswold, United States _v._ Grover & Baker Sewing Machine Co. _v._ Radcliffe Groves _v._ Slaughter Guy, Finney _v._ Hale _v._ Allinson Hall-Moody Institute _v._ Co-pass Ham _v._ McClaws Hanley _v._ Donoghue Hanover National Bank _v._ Moyses Hans _v._ Louisiana Harris, Norris _v._ Hart, Faulkner _v._ Hawes _v._ Oakland Hayburn's Case Hepburn _v._ Griswold Heywood, Wilcox _v._ Hickman _v._ Boffman Hildreth's Heirs _v._ McIntire's Devisee Hill _v._ Smith Hill, Koehler _v._ Hoffman, People _v._ Holmes _v._ Walton Houseman, Claflin _v._ Houser, State _v._ Howle, Metropolitan Life Insurance Co. _v._ Hoyt _v._ Danbury Hudson River R. R. Co., Gould _v._ Huntley, Calvin _v._ Hurtado, _v._ California Hutkoff _v._ Demorest Insurance Co., Brine _v._ International Distillery, Pearson _v._ Irvine _v._ Stone James _v._ Gray Jecker _v._ Montgomery Johnson _v._ Duncan Johnson _v._ People Johnson, Dow _v._ Johnson, Mississippi _v._ Johnson, State _v._ Joint Traffic Association, United States _v._ Judges, State _v._ Kansas, Ames _v._ Katz _v._ Walkinshaw Kellogg _v._ Brown Kellogg _v._ Warmoth Kentucky _v._ Dennison Kentucky, Louisville Ferry Co. _v._ Kepner _v._ U. S. Ketcham _v._ McNamara Kilbourn _v._ Thompson Klein, U. S. _v._ Kneedler _v._ Lane Koehler _v._ Hill Lachenmeyer, Pepin _v._ Lanark _v._ Dougherty La Ninfa, The Lane, Kneedler _v._ Lapsley _v._ Brashears Lee, State _v._ Legal Tender Cases, The Lehigh Coal and Navigation Co., Bachert _v._ Leighton, Frost _v._, Lennon _v._ Rawitzer, Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._, Little Charles, The schooner, U. S. _v._, Loan Association _v._ Topeka, Loomis _v._ Newhali, Lottawanna, The, Louisiana, Hans, _v._, Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, Louisville Ferry Co. _v._ Kentucky, Luke _v._ Lyde, Luther _v._ Borden, Lyde, Luke _v._ McCardle, _Ex parte_, McClaws, Ham _v._, McCloskey _v._ Bell's Gap R. R. Co., McClung, Blake _v._, McConnaughy, Pennoyer _v._, McCulloch _v._ Maryland, McDaniel, Terry _v._, McDowell _v._ Oyer, McFarland _v._ People, McIntire's Devisee, Hildreth's Heirs _v._, M'Kim _v._ Voorhies, McLeod's Case, McNamara, Ketcham _v._, McVeigh _v._ Ripley Madison, Marbury _v._, Main, State _v._, Marbury _v._ Madison, Maryland, McCulloch _v._, Mather, Rand _v._, Merriman _v._ Social Mfg. Co., Merryman, _Ex parte_, Metropolitan Life Insurance Co. _v._ Howle, Mial _v._ Ellington, Middleton, Bowman _v._, Milligan, _Ex parte_, Miln, New York _v._, Mincey _v._ Bradburn, Mississippi _v._ Johnson, Mitchell, Canfield _v._, Mitchell, Erdman _v._, Montgomery, Jecker _v._, Moore, _Ex parte_, Moore, Batchelder _v._, Morgan, Flynn _v._, Mormon Church _v._ United States, Morrill, State _v._, Moses Taylor, The, Moyses, Hanover National Bank _v._, Mutual Reserve Fund Life Association, Vincent _v._, Myers _v._ South Bethlehem Nash, United States _v._, Neagle, _In re_, Neff, Pennoyer _v._, Newhall, Loomis _v._, New Haven, Bradley _v._, New Jersey _v._ New York, Newman, _Ex parte_, New York _v._ Miln, New York, New Jersey _v._, New York and New England R. R. Co., Rumsey _v._, New York, New Haven and Hartford R. R. Co., Stack _v._, Noble _v._ Union River Logging Co., Norris _v._ Clymer, Norris _v._ Harris, Northern Securities Co. _v._ United States, Norwalk Street Railway Co.'s Appeal Nudd _v._ Burrows Oakland, Hawes _v._ Ogden _v._ Saunders Ogden, Gibbons _v._ Ohio and Mississippi R. R. Co. _v._ Wheeler Olcott, People _v._ Osborn _v._ Bank of the U. 8. Oyer, McDowell _v._ Parkersburg _v._ Brown Patterson, William Paul _v._ Virginia Pearne, Church _v._ Pearson _v._ International Distillery Pease, Starr _v._ Peck, Fletcher _v._ Pennoyer _v._ McConnaughy Pennoyer _v._ Neff Pennsylvania, Prigg _v._ Pennsylvania Coal Co., Sanderson _v._ People _v._ Croswell People _v._ Hoffman People _v._ Olcott People _v._ Webb People, Johnson _v._ People, McFarland _v._ Pepin _v._ Lachenmeyer Perkins, United States _v._ Perry _v._ Bush, Peters, Wheaton _v._ Pollock _v._ Farmers' Loan and Trust Co. Prigg _v._ Pennsylvania Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._ Radcliffe, Grover & Baker Sewing Machine Co. _v._ Rand _v._ Mather Raub, Eakin _v._ Rawitzer, Lennon _v._ Reese, United States _v._ Regents _v._ Williams Rhode Island Co., Dyson _v._ Rice, Exchange Bank _v._ Rich, Upshur County _v._ Ripley, McVeigh _v._ Robbins' Case Robertson _v._ Baldwin Robinson, _Ex parte_ Royall, _Ex parte_ Rumsey _v._ New York and New England R. R. Co. Russell, Christmas _v._ Rutgers _v._ Waddington Sanderson _v._ Penn. Coal Co. Sandford, Dred Scott _v._ Saunders, Ogden _v._ Scott _v._ Sandford Seligman, Burgess _v._ Shepherd, State _v._ Sheve, U. S. _v._ Siebold, _Ex parte_ Sims' Case Slaughter, Groves _v._ Smith, Fish _v._ Smith, Hill _v._ Smith, U. S. _v._ Smyth _v._ Ames Social Mfg. Co., Merriman _v._ South Bethlehem, Myers _v._ Sparf _v._ U. S. St. Louis Transit Co., Eckrich _v._ Stack _v._ New York, New Haven and Hartford R. R. Co. Stanley _v._ Colt Stanley, U. S. _v._ Stanton, Georgia _v._ Starr _v._ Pease State _v._ Baxter State _v._ Bulkley State _v._ Cunningham State _v._ Houser State _v._ Johnson State _v._ Judges State _v._ Lee State _v._ Main State _v._ Morrill State _v._ Shepherd State _v._ Travelers' Insurance Co. State _v._ Ward State _v._ Worden State, Brooks _v._ Stephens, petitioner Stifle, Drehman _v._ Stone, Irvine _v._ Stonington, Goshen _v._ Swift _v._ Tyson Tacoma Railway and Power Co., Coler _v._ Tassel's Case Taylor _v._ Beckham Tennessee, Coleman _v._ Terry _v._ McDaniel Thayer, Boyd _v._ The Genesee Chief The Grapeshot The La Ninfa The Lottawanna The Moses Taylor The Schooner Little Charles, U. S. _v._ The Thomas Jefferson Thomas Jefferson, The Thompson, Kilbourn _v._ Topeka, Loan Association _v._ Trademark Cases Travelers' Insurance Co., State _v._ Trevett _v._ Weeden Tua _v._ Carriere Turner, City of South Bend _v._ Tyson, Swift _v._ Union River Logging Co., Noble, _v._ United States _v._ Debs United States _v._ Griswold United States _v._ Joint Traffic Association United States _v._ Klein United States _v._ Nash United States _v._ Perkins United States _v._ The Schooner Little Charles United States _v._ Reese United States _v._ Robbins United States _v._ Sheve United States _v._ Smith United States _v._ Sparf United States _v._ Stanley United States _v._ Wilson United States _v._ Worrall United States, Boyd _v._ United States, Coffin _v._ United States, Dorr _v._ United States, Kepner _v._ United States, Mormon Church _v._ United States, Northern Securities Co. _v._ Upshur County _v._ Rich Vanhorne's lessee _v._ Dorrance Vincent _v._ Mutual Reserve Fund Life Association Virginia, Cohens _v._ Virginia, Paul _v._ Voorhies, M'Kim _v._ Waddington, Rutgers _v._ Walkinshaw, Katz _v._ Walton, Holmes _v._ Ward _v._ Conn. Pipe Mfg. Co., Ward, State _v._, Warmoth, Kellogg _v._, Waterbury, French _v._, Webb, People _v._, Weeden, Trevett _v._, Western Union Telegraph Co. v. Call Publishing Co., Wheaton v. Peters, Wheeler, Ohio and Mississippi R. R. Co., _v._, Wheeler's Appeal, Wilcox v. Heywood, Wilcox, Griffin _v._, Williams, Blair _v._, Williams, Regents _v._, Wilson, U. S. _v._, Wolcott, Diggs _v._, Woodward, Dartmouth College, _v._, Worcester v. Georgia, Worden, State _v._, Worrall, U. S. _v._ Additional cases cited in Second edition. Janvrin v. Revere Water Co., Revere Water Co., Janvrin, _v._, O'Brien's Petition, Seery v. Waterbury, Waterbury, Seery _v._ * * * * * PART I THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES * * * * * CHAPTER I ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test. The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776. The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.] In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._ citations by D. Davenport, _arguendo,_ in Flynn _v._ Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.] In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.] As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent. The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.] This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law--the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one. Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus: "The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise _pro re nata_ upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression."[Footnote: Winthrop, "History of New England," I, 322.] The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form. The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns. This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancient _aula regis_, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, "Justice and Police," 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: "Two Centuries' Growth of American Law," 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frost _v._ Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order. The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles. A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: "Two Centuries' Growth of American Law," 20.] The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, "Narrative and Critical History of America," V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, "Maryland's First Courts," Reports of American Historical Association for 1901, 211; Osgood, "The American Colonies in the Seventeenth Century," I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, "History of the United States," II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.] In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, "Records of the Court of Assistants of Massachusetts Bay," I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.] In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years. No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction. New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, "Life of Edward Livingston," 26.] As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the "Dominion of New England."[Footnote: Col. Rec. of Conn., III, 402, 411.] South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, "American Universal Geography," ed. 1796, 690; Osgood, "The American Colonies in the Seventeenth Century," II, 279, 300.] There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: "Life and Works of John Adams," II, 280. See Chap. XIII.] Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: State _v._ Ward, 43 Connecticut Reports, 489, 494.] The benefit of the writ of _habeas corpus_, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the "Declaration and Resolves" of the first Continental Congress, they assert "that the respective colonies are entitled to the Common Law of England," and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of the _Habeas Corpus_ Act, that great Bulwark and Palladium of English Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the Colonies," American Historical Review, VIII, 18.] The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this: ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power. The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman _v._ Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).] In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.] But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State. The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books. The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none. When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.] The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.] The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized: Judges were to proceed according to established rules, so far as established rules might exist. They were to proceed in analogy to established rules as to points which no established rule might cover. They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation. Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England. There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority. This higher authority might be judicial or political, or one which shared both judicial and political functions. * * * * * CHAPTER II THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step. So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them. On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington's _Oceana_, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.] It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calder _v._ Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.] The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.] It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.] In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles. Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanley _v._ Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starr _v._ Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.] But may not a power be judicial in its nature and yet not wholly so? It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions. Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause. Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department. Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise. It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley _v._ New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur County _v._ Rich, 135 U. S. Reports, 467, 477; Janvrin _v._ Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: People _v._ Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793; _Ex parte_ Siebold, 100 U. S. Reports, 371, 397.] It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest. It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power. The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.] The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used. The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur County _v._ Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote: _Ibid_., 475.] In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.] On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbourn _v._ Thompson, 103 U. S. Reports, 168.] * * * * * CHAPTER III THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term. The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States. But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote: _National Geographic Magazine_ for June, 1904, p. 251.] Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong. In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII). In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate. New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.] An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words: The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbons _v._ Ogden, 9 Wheaton's Reports, 1.] A device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies. Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.] President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims. Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist. The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.] The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1.] When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts. So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon _v._ Cochran, Bee's Reports, 209.] In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States. But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive? This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain _v._ Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the Executive should intervene and permit it. The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States? This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so. Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides. The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States _v._ Nash _alias_ Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department. On the other hand, the peculiar provision of the Constitution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open. These principles are well illustrated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172° to that of 193° west longitude. Great Britain contended for the three-mile limit. Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska. The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause: In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: _In re_ Cooper, 143 United States Reports, 472, 503.] In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration. The arbitration took place and the award supported the British contention. Congress passed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators." In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were entitled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before: This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the United States in the waters of Behring Sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "They are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with Congress, not with the judiciary." The Cherokee Tobacco, 11 Wall., 616-621. But in the present case there is no pending question left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. ... The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[Footnote: The La Ninfa, 75 Federal Reporter, 513, 517.] The degree of confiscation was therefore reviewed. It will be noticed that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly. The courts before the Revolution, and in some States for half a century after it, served as a kind of political mouthpiece. The institution of the grand jury[Footnote: See Chap. XVII.] afforded the means. Those composing it are personally selected by the sheriff from the principal men in the county. It is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. Frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[Footnote: "Life and Works of John Adams," II, 169.] To this the grand jury were not backward in responding with compliments and perhaps presentments. In Massachusetts they went even further in 1774. The House of Representatives of the Provincial Assembly impeached the Chief Justice for accepting a salary from the Crown instead of relying on legislative grants, as had been the practice. The Council before which the articles were exhibited declined to entertain them. The people, however, felt that the House was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. They refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. No business was done in court until the following year, when, after the battle of Lexington, new judges were appointed by the Council.[Footnote: "Life and Works of John Adams," II, 332; X, 240; "Principles and Acts of the Revolution," 100.] 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. The decision of the court in McCulloch _v._ Maryland[Footnote: 4 Wheaton's Reports, 316. See Willoughby, "The American Constitutional System," 44, 123.] unquestionably settled forever, as between the cashier of the bank and the State of Maryland, that the bank was a lawful institution. That in Osborn _v._ The Bank of the United States[Footnote: 9 Wheaton's Reports, 738.] reaffirmed it as between the bank and the Treasurer of the State of Ohio. It would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all States growing out of the creation of such a corporation. Practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as Jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. It could not disturb the past. The authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. A silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them. No departure from precedent in any American court has ever awakened so much feeling as that by the Supreme Court of the United States in 1872, when it decided that Congress could make government notes a legal tender for debts contracted before the law was passed.[Footnote: The Legal Tender Cases, 12 Wallace's Reports, 457, 529.] It had held precisely the contrary two years before,[Footnote: Hepburn _v._ Griswold, 8 Wallace's Reports, 603.] but it was by a bare majority and in the face of a strong dissenting opinion. In the opinions filed in the second case stress was laid upon this division of the court.[Footnote: 12 Wallace's Reports, 553, 569. See George F. Hoar, "Autobiography," I, 286.] The word "established" is often used to describe the kind of precedent to which courts are bound to adhere. What serves to establish one? Long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. Of these, in fact, the last is probably the most powerful. Lawyers and courts, in countries without codes, get their law mainly from the standard text-books. Such authors as Coke, Blackstone, Kent and Cooley are freely cited and relied on as authorities by the highest tribunals.[Footnote: See, for instance, Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 101; Louisville Ferry Co. _v._ Kentucky, 188 United States Reports, 394, 397.] It is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order. The English courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. American courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. This construction was shown by Professor John C. Gray, in a work on "Perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous. The nature of a legal presumption, also, had been misconceived by several American courts. It had been treated as evidence of facts.[Footnote: Coffin _v._ United States, 156 United States Reports, 432.] Professor J. B. Thayer, in his "Preliminary Treatise on Evidence,"[Footnote: Pages 337, 566-575.] argued so forcibly against this view that in at least one State a decision in which it had been taken has been formally overruled.[Footnote: Vincent _v._ Mutual Reserve Fund Life Association, 77 Connecticut Reports, 281, 291; 58 Atlantic Reporter, 963.] The Court of Appeals of New York once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the State, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[Footnote: Gould _v._ Hudson River Railroad Co., 6 New York Reports, 522.] In a text-book written by Chief Justice Cooley, this decision was justly criticised,[Footnote: Cooley on Constitutional Limitations, 670.] and not long after the publication of that work it was formally overruled.[Footnote: Rumsey _v._ New York and New England Railroad Co., 133 New York Reports, 79; 30 Northeastern Reporter, 654; 15 Lawyers' Reports Annotated, 618.] It is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science. The general doctrine of the courts, which is commonly expressed by the rule "_stare decisis_," was never better stated than by Chief Justice Black of Pennsylvania, in these words: When a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that _stare decisis_ is itself a principle of great magnitude and importance.... A palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. _Tempora mutantur_. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[Footnote: McDowell _v._ Oyer, 9 Harris' Reports, 423.] Generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. A marked instance of this occurred in 1851, in proceedings before the Supreme Court of the United States. More than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the District Court of Kentucky for want of jurisdiction, and on appeal this action had been affirmed. Mr. Justice Story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[Footnote: The Thomas Jefferson, 10 Wheaton's Reports, 428.] This was undoubtedly a true statement of what had always been the doctrine of both English and American courts. But out of what did this doctrine spring? From the fact that in England there were no navigable waters except those in which the tide ebbed and flowed, and that in the United States, up to that time, there were none of a different kind which had been largely used for commercial purposes. Twenty years passed. Steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. The day was dawning when the bulk of American shipping was to be employed upon them. A suit in admiralty was brought against a ship for sinking another on Lake Ontario. The defendants put in an answer relying on the doctrine laid down by Story. The District Court overruled it. The case came by appeal to the Supreme Court, and in an opinion by Chief Justice Taney the appeal was dismissed. "The conviction," he said, referring to the opinion of Mr. Justice Story, "that this definition of admiralty powers was narrower than the Constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western States.... These lakes are in truth inland seas. Different States border on them on one side and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... The case of the _Thomas Jefferson_ did not decide any question of property or lay down any rule by which the right of property should be determined.... The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[Footnote: The Genesee Chief, 12 Howard's Reports, 443, 451.] But without any change of circumstances, the proper desire of all American courts to keep their common law in harmony with that of the other States is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[Footnote: City of South Bend _v._ Turner, 156 Indiana Reports, 418; 60 Northeastern Reporter, 271.] The consistency of American law as a whole is immeasurably more important than the consistency of the law of any single State. Sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it. Illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[Footnote: Andrews, "American Law," 255, 1027.] It was not a doctrine justified by the common law nor generally held in this country, and in 1894 the Supreme Court of the State refused to recognize it, with little or nothing more than this brief _ipse dixit_: "The doctrine of comparative negligence is no longer the law of this court."[Footnote: Lanark _v._ Dougherty, 153 Illinois Reports, 163; 38 Northeastern Reporter, 892.] Occasionally a case is overruled because it has been forgotten. An early decision in Massachusetts (Loomis _v._ Newhall[Footnote: 15 Pickering's Reports, 159.]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. Such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[Footnote: Irvine _v._ Stone, 6 Cushing's Reports, 508, 510.] Subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if Loomis _v._ Newhall had been then remembered."[Footnote: Rand _v._ Mather, 11 Cushing's Reports, 1, 5.] The authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. Some judges write treatises instead of decisions or in addition to decisions. Whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language _obiter dictum_. It may be interesting and even persuasive, but it is not an authoritative statement of law. It may grow to be such by adoption in subsequent cases. The Court of King's Bench in England was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. There were four judges who heard the case, of whom three gave their opinions.[Footnote: Coggs _v._ Bernard, Lord Raymond's Reports, 909.] Two of these opinions were confined to the precise point of law on which the case turned. In the third, Chief Justice Holt seized the opportunity to lay down the law of England as to all sorts of contracts arising out of the reception by one man of the goods of another. This he did mainly by setting forth what were the rules of the Roman law on the subject, but not referring to their Roman origin, and quoting them, so far as he could, from Bracton, an English legal writer of the thirteenth century, who had also stated them as English law. For four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. Now the Chief Justice of England had given such recognition in the amplest manner. Meanwhile the trade of England had reached a point at which some definite rules on all these matters had become of the utmost importance. The bar were only too glad to advise their clients in accordance with Lord Holt's opinion. It was not long before it was universally practiced upon, and no case in the English language touching contract relations of that nature is of greater importance as a precedent. Yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at Rome or London--they cared little, so long as it had been accepted by the highest judicial authority in the realm. On the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them. Two of the great opinions of Chief Justice Marshall are Marbury _v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens _v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the first the court held that it had no jurisdiction to command the Secretary of State to deliver a commission executed under the preceding administration, because, although Congress had assumed to confer it, Congress had no power to do so; and in defending this position Marshall observed that the Constitution defined the jurisdiction of the Supreme Court over cases brought there in the first instance, and that in this clause of the Constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. In the second case this observation was relied on by Virginia to defeat the power of the court to review a State judgment. But, said the Chief Justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... In the case of Marbury _v._ Madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... The general expressions in the case of Marbury _v._ Madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." He then proceeded to dispose of the case in hand by saying that Virginia having obtained an erroneous judgment against Cohens, Cohens had a right to appeal, and the suit still remained a suit by a State against him and not by him against a State. Unfortunately, here again came in next an _obiter dictum_. If, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the Constitution gave the United States judicial power over all cases arising under the Constitution or laws of the United States without respect to parties. Nearly a hundred years later a State was sued in the courts of the United States on a cause of action arising under the Constitution, and Cohens _v._ Virginia was relied on as a precedent. "It must be conceded," was the reply of the Supreme Court, "that the last observation of the Chief Justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[Footnote: Hans _v._ Louisiana, 134 United States Reports, 1, 20.] It may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. The lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. It is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. The Romans recognized this in their rule as to the force of precedent in a matter of customary law. The first thing to ask was whether "_contradicto aliquando judicio consuetudo firmata sit_."[Footnote: "Digest," 1, 3, _de legibus_, etc., 34.] The retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. This is occasionally feasible. Thus the High Court of Errors and Appeals of Mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. Thirty years later the Supreme Court of the same State overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[Footnote: 1 Bank of Mississippi _v._ Duncan, 56 Mississippi Reports, 165.] The effect of overruling a former opinion may also be limited by the dual character of our government. The courts of the United States follow the decisions of the State courts in the determination of matters of State law. If a State law is held by the courts of the State to have a particular meaning and effect it will be accorded the same in the federal courts. But if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the State courts afterward reverse their former rulings as being erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191 United States Reports, 499.] De Tocqueville, in his estimate of the American bar,[Footnote: 3 "Democracy in America," II, Chap. XVI.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason. In a very limited sense this is true. Where codes are wanting, former judicial decisions must serve in their place. But it would be a mistake to suppose that it is a large part of the business of American lawyers to search out precedents for the guidance of the courts. Most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. No aid from the past is needed for this and none is to be had. It has been well said by an English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10 Chancery Appeal Cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. Nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. A precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. Many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. And occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality. * * * * * CHAPTER V THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW The English common law was and is an unwritten law. To find it one has to look in legal treatises and reports of judicial decisions. Its historical development has been not unlike that of Rome. In Rome, as in England, there were in early times written enactments or governmental declarations of standing rules on but few points. Some of these writings were of special importance, such as the twelve tables of Rome and the _Magna Charta_ of England. These were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. But in general Romans and Englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. It was a wise preference, and founded on a better philosophy than they knew--than the world knew, until the theory of evolution was demonstrated by Darwin and applied to governmental science by Spencer. A customary law for a people of advancing civilization and power must expand with corresponding rapidity. There will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. In Rome, the priests gave it at first, and then the lawyers. In England, the priests never gave it, as priests. There was no sacred college of law. Priests took part in legislation. A priest, at the king's right hand, was his spokesman in doing equity. But it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. For the Roman and for the Englishman the first representatives of government who could be called judges were primarily and principally executive officers. The Roman _prætor_ was not given judicial functions because he had legal attainments. The _aula regis_ of early England was composed of the great officers of state. The chief justiciar, however, soon ceased to be prime minister. His associates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. At Rome, on the contrary, the prætorship remained a political place, held for a fixed term, and a brief one. Information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. The lawyers could give it; and it was to them, not to the judges, that resort was had. The opinion of a great jurist was for Rome what the opinion of a judge was for England. It was commonly accepted as conclusive not only by the people but by the courts. 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.] Our State constitutions generally guarantee the citizen against deprivation of his rights without "due process of law" or "due course of law." A similar provision was made for the United States by the fifth amendment to their Constitution, and since 1868 the fourteenth amendment has established the same rule inflexibly for every State. What is due process of law? It is for the courts to say, and while they have cautiously refrained from assuming to give any precise and exhaustive definition, they have, in many instances, enforced the guaranty at the cost of declaring some statute which they held incompatible with it to be no law. They have also, and much more frequently, supported some act of government claimed to contravene it, and which, according to the ancient common law of England, would contravene it, because in their opinion this ancient law had been outgrown. Sir Edward Coke, whom no expounder of the English common law outranks in authority, in his "Institutes," in treating of _Magna Charta_, referred to the phrase _per legem terrae_, as equivalent to "by the law of the land (that is, to speak it once for all) by the due course and process of law." It is incontestable that due course and process of law in England at the time when the American colonies were planted was understood to require the action of a grand jury before any one could be put on trial for a felony. Some of our States have abolished grand juries in whole or part. To review a capital sentence for murder in one of these States, a writ of error was prayed out from the Supreme Court of the United States in 1883. The constitutionality of the State law was sustained. In disposing of the case the court did not controvert the position that by the English common law no man could be tried for murder unless on a presentment or indictment proceeding from a grand jury. But, said the opinion, while that is due process of law which had the sanction of settled usage, both in England and in this country, at the time when our early American constitutions were adopted in the eighteenth century, it by no means follows that nothing else can be. To hold that every feature of such procedure "is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.... It is most consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.... It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."[Footnote: Hurtado _v._ California, 110 United States Reports, 513, 528, 529, 530, 537.] Many of our State Constitutions specify certain rights as inherent and indefeasible, and among them that "of acquiring, possessing, and protecting property." What is property? American courts have said that it includes the right of every one to work for others at such wages as he may choose to accept. One of them, in supporting a decree for an injunction against combined action by a labor union to deprive non-union men of a chance to work, by force or intimidation, notwithstanding a statute abrogating the common law rule making such acts a criminal conspiracy, has put it thus: The right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. By his work he earns present subsistence for himself and family. His savings may result in accumulations which will make him as rich in houses and lands as his employer. This right of acquiring property is an inherent, indefeasible right of the workman. To exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. This is one of the rights guaranteed to him by our Declaration of Rights. It is a right of which the legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. The one most concerned in jealously maintaining this freedom is the workman himself.[Footnote: Erdman _v._ Mitchell, 207 Pennsylvania State Reports, 79; 56 Atlantic Reporter, 331.] But, as already suggested in the preceding chapter, the judges whose opinions have vitalized and enlarged our written law by reading into it some new meaning or application have but echoed the voice of the bar. The greatest achievements of Marshall in this direction were really but a statement of his approbation of positions laid down before him by Daniel Webster. In the early stages of the Dartmouth College case, when it was before the State courts in New Hampshire, it was Webster and his associates, Jeremiah Mason and Jeremiah Smith, both lawyers of the highest rank, who first put forward the doctrine that the charter of a private corporation was a contract; and when the cause came before the Supreme Court of the United States it fell to the lot of Webster to bring it to the attention of the great Chief Justice.[Footnote: "Works of Daniel Webster," V, 497.] So in the Florida case it was he, in supporting the cause of the prevailing party, who suggested that the Territory of Florida, though owned by the United States, was no part of them. "By the law of England," he went on to say, "when possession is taken of territories, the king, _Jure Corona_, has the power of legislation until parliament shall interfere. Congress have the _Jus Corona_ in this case, and Florida was to be governed by Congress as she thought proper."[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 611, 538.] This argument did not spend its force in its effect on Marshall. When, after the lapse of two generations, greater problems of the relations of the United States to territory newly acquired from Spain arose, it was, as has been said above, made one of the cornerstones of the opinion of the same court which determined what they were.[Footnote: Downes _v._ Bidwell, 182 United States Reports, 244, 265.] So in the Hurtado case, which has been described at length, no description of due process of law was found better and none is better than that given by Webster so many years before in the Dartmouth College case. The Supreme Court of New Hampshire, from whose judgment that cause came up by writ of error, had held--and on that point its decision was final--that the change in the college charter was no violation of the bill of rights embodied in the Constitution of that state. This, following _Magna Charta_, provided (Part I, Art. 15) that no subject should be "despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land." _Magna Charta_ was wrung from a tyrant king. So, said the State court, this article was inserted to protect the citizens against the abuse of the executive power. When it speaks of the law of the land it means the law of New Hampshire, and that is whatever the legislature of New Hampshire chooses to enact, so long as it contravenes no other constitutional provision. Webster, in paving the way toward his claim that the charter was a contract, and, as a vested right of property, inviolable by a State, alluded to the sacredness of all rights under the guaranties to be found in our American system of constitutional government. It was not surprising that the Constitution of the United States should protect them in the way he asserted. All the States, and New Hampshire among them, had done the same in placing the great features of _Magna Charta_ in their bills of rights. What, he asked, was this law of the land by which all things were to be tried and judged? This was his answer: "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land."[Footnote: "Works of Daniel Webster," V, 486.] In the opinion by Mr. Justice Mathews in Hurtado _v._ California he observes: "It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.'" [Footnote: Hurtado _v._ California, 110 United States Reports, 516, 535.] Other instances might be mentioned, equally conspicuous, which will entitle Webster to the name given him by his contemporaries of "the expounder of the Constitution."[Footnote: See Article by Everett P. Wheeler on Constitutional Law of the United States as Moulded by Daniel Webster, in Yale Law Journal, Vol. XIII, p. 366, and in the 27th Annual Report of the New York State Bar Association.] No one American lawyer has done as much in that direction, but there are few of the greater ones who have not done something. As, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a constitution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. Who announced it to him they never know or soon forget. The acknowledged possession by the judiciary of the power to interpret written law, and thus to delimit its effect, has led to a serious abuse in our methods of legislation. Statutes are often favorably reported and enacted, both in Congress and the State legislatures, which are admitted to be either of doubtful constitutionality or to contain expressions of doubtful meaning, on the plea that those are questions for the courts to settle. This has been aptly termed the method of the "_referendum_ to the courts in legislation."[Footnote: Thomas Thacher, Address before the State Bar Association of New Jersey, 1903.] It is unfair to them, so far as any question of the Constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. The courts will not hold otherwise without strong grounds. It comes to them with the benefit of a full legislative endorsement. It is unfair to the people, both as to questions of constitutionality and of interpretation. A statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. A legislature abandons its function when it enacts what it does not understand. The Sherman Anti-Trust Act is an instance of legislation of this character. It forbids contracts "in restraint of trade or commerce" between the States. When the bill was reported it was objected in the House of Representatives that these terms were vague and uncertain. The chairman of the committee himself stated that just what contracts will be in restraint of such commerce would not and could not be known until the courts had construed and interpreted the phrase. The real intent of those who inserted it was that it should not embrace contracts which were reasonable and not contrary to public policy. A similar term in the English Railway and Canals Traffic Act had received that interpretation in the English courts, and they supposed that our courts would follow those precedents.[Footnote: George F. Hoar, "Autobiography," II, 364.] The Supreme Court of the United States did construe it as embracing all contracts in restraint of inter-State trade, whether reasonable or unreasonable, fair or unfair.[Footnote: United States _v._ Joint Traffic Association, 171 United States Reports, 505, 570.] One of the justices who concurred in that opinion, in a subsequent case arising under the same statute intimated that on reconsideration he thought the view that had been thus adopted was wrong.[Footnote: Northern Securities Co. _v._ United States, 193 United States Reports, 197, 361.] The addition by those who drafted the bill of three or four words to make their intended meaning clear would have avoided a result unexpected by them and probably undesired, and relieved the court from deciding questions of doubtful construction involving important political considerations and immense pecuniary interests. * * * * * CHAPTER VII THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW Government is a device for applying the power of all to secure the rights of each. Any government is good in which they are thus effectually secured. That government is best in which they are so secured with the least show of force. It is not too much to say that this result has been worked out in practice most effectually by the American judiciary through its mode of enforcing written constitutions. How far it has gone in developing their meaning and building upon the foundations which they furnish has been made the subject of discussion in the preceding chapter. It remains to consider its office of adjudging statutes which come in conflict with their meaning, as thus determined, to be void. The idea of a supreme authority exercising the function of setting aside acts of legislative bodies which it deemed inconsistent with a higher law was familiar to Americans from an early period of our colonial history.[Footnote: See Chap. I; Dicey, "Law of the Constitution," 152; "Two Centuries Growth of American Law," 12, 19.] The charter of each colony served the office of a constitution. The Lords of Trade and Plantations exercised the power of enforcing its observance. They did in effect what, as the colonies passed into independent States with written Constitutions, naturally became the function of their own courts of last resort. The Constitution, like the charter, was the supreme law of the land. Whatever statutes the legislature of a State might pass, it passed as the constitutional representative of the people of that State. It was not made their plenary representative. Every Constitution contained some provisions restricting the legislative power. If any particular legislative action transgressed these restrictions, it necessarily went beyond the authority of the body from which it emanated. The Judicial Committee of the Privy Council, which now exercises the functions formerly belonging to the Lords of Trade and Plantations, and is in fact the same body, deals in a similar way today with questions of a constitutional character. If one of the provinces included in the Dominion of Canada should in its local legislation infringe upon a field belonging to the Dominion Parliament, this committee can "humbly advise the king" that the act in question is for that reason void.[Footnote: In July, 1903, for instance, an Act of the Province of Ontario, entitled the "Lord's Day Profanation Act," was thus declared _ultra vires_.] The Revolution found the new-made States of the Union without this safeguard against a statute repugnant to a higher law. They had enjoyed as colonies the advantage which Burke declared was an ideal in government. "The supreme authority," he said, "ought to make its judicature, as it were, something exterior to the State." The supreme judicature for America had been in England. There was now no King in Council with power to set a statute aside forthwith by an executive order. But the other function of the King in Council, that of acting as a court of appeal from colonial judgments, had been simply transferred to new hands. The State into which the colony had been converted now exercised it for itself and through her judiciary. The judgment of a court is the legal conclusion from certain facts. Unless it is a legal conclusion from the facts on which it purports to rest it is erroneous, and, if there is any higher court of appeal, can be reversed. If such a judgment depends upon a statute which justifies or forbids the act or omission which constituted the cause of action, it is legal or illegal according as this statute is or is not law. It cannot be law if its provisions contravene rules laid down by the Constitution of the State to restrict the legislative power. The court which tries the cause must meet this question whenever it arises like any other and decide it. A court of law must be governed by law. What has the form of law is not law, in a country governed by a written constitution, unless it is consistent with all which that instrument provides. The first decision of an American court bottomed on these principles was probably rendered as early as 1780, and in New Jersey.[Footnote: Holmes _v._ Walton, IV _American Historical Review_, 456.] One of her greatest statesmen, who after taking a distinguished part in framing the federal Constitution became a justice of the Supreme Court of the United States, vigorously enforced the same doctrine on the circuit fifteen years later in trying a cause turning on the unconstitutionally of a confirming act passed by the legislature of Pennsylvania. "I take it," Justice Patterson said in charging the jury, "to be a clear position that if a legislative act oppugns a constitutional principle the former must give way and be rejected on the score of repugnance. I hold it to be a position equally clear and sound that in such case it will be the duty of the court to adhere to the Constitution, and to declare the act null and void."[Footnote: Vanhorne's Lessee _v._ Dorrance, 2 Dallas' Reports, 304, 309, 316.] The accession of the Republicans to power in 1801, only to find the courts of the country controlled by judges appointed from the ranks of the Federalists, was the occasion of new attacks upon the doctrine thus laid down. It was vigorously denied by Senator Breckenridge of Kentucky, afterward Attorney-General of the United States, in the debates preceding the repeal of the Judiciary Act of 1801.[Footnote: Elliot's Debates, IV, 444.] A year later (in 1803) the question came for the first time before the Supreme Court of the United States, and the same positions advanced by Patterson were taken in what is known as the leading case upon this subject by Chief Justice Marshall.[Footnote: Marbury _v._ Madison, I Cranch's Reports, 137. See Willoughby, "The American Constitutional System," 39.] It was unfortunate that the action was one involving a matter of practical politics, in which the plaintiff sought the benefit of a commission the issue of which had been directed by President Adams at the close of his term, but which was withheld by the Secretary of State under President Jefferson. Party feeling ran high at this time. The views of Breckenridge were shared by many, and the supremacy of the judicial department, which this prerogative, if it possessed it, seemed to imply, was distasteful to a large part of the people. An eminent judge of a State court, Chief Justice Gibson of Pennsylvania, as late as 1825, in a dissenting opinion, combated at length the reasoning of Marshall as weak and inconclusive. If, he said, the judiciary had the power claimed, it would be a political power. Our judicial system was patterned after that of England. Our judges had, as such, no power not given by the common law. It was conceded that English judges could not hold an act of Parliament void because it departed from the British constitution. No more could American judges hold an act of a State legislature void because it departed from the State Constitution, unless that Constitution in plain terms gave them such a power. The Constitution of the United States did give it, political though it was, to all judges (Art. XI, Sec. 2), and a State statute which was contrary to that Constitution might therefore properly be declared void by the courts.[Footnote: Eakin _v._ Raub, 12 Sergeant and Rawle's Reports, 330.] Later in his judicial career Gibson abandoned this position, [Footnote: Norris _v._ Clymer, 2 Pennsylvania State Reports, 281.] and the ground taken by Marshall has been since 1845 universally accepted. The last official attack upon it was made in 1831, at the time when the feeling against protective tariffs was strong in the South, and South Carolina was known to be meditating opposition to their enforcement. The judiciary committee of the House of Representatives reported a bill to repeal the section of the Judiciary Act which gave the Supreme Court of the United States the right to reverse judgments of State courts that it might deem contrary to the Constitution of the United States. The report said that such a grant was unwarranted by the Constitution and "a much greater outrage upon the fundamental principles of theoretical and practical liberty as established here than the odious writ of _quo warranto_ as it was used in England by a tyrannical king to destroy the right of corporations." The House, however, rejected the bill by a very large majority. A proper regard for the coordination of the departments of government forbids courts to declare that a statute is inconsistent with the Constitution unless the inconsistency is plain. It has been judicially asserted that it must be plain beyond a reasonable doubt, thus applying a rule of evidence which governs the disposition of a criminal cause. As judgments declaring a statute inconsistent are often rendered by a divided court, this position seems practically untenable. The majority must concede that there is a reasonable doubt whether the statute may not be consistent with the Constitution, since some of their associates either must have such a doubt, or go further and hold that there is no inconsistency between the two documents. This right of a court to set itself up against a legislature, and of a court of one sovereign to set itself up against the legislature of another sovereign, is something which no other country in the world would tolerate. It rests on solid reason, but as the Due de Noailles has said, "Un semblable raisonnement ne ferait pas fortune aupres des républicans d'Europe, fort chatouilleux sur le chapitre de la puissance législative. C'est que la notion de l'�tat diffère d'une façon essentielle sur les deux rives de l'Atlantique."[Footnote: Cent Ans de République aux �tats-Unis, II, 145.] Our people have been satisfied with the interposition of the courts to defend their Constitutions from executive or legislative attack, because these Constitutions stand for something in which they thoroughly believe. President Hadley has well said that "a written Constitution serves much the same purpose in public law which a fence serves in the definition and protection of private rights to real estate. A fence does not make a boundary; it marks one. If it is set where a boundary line has previously existed by tradition and agreement, it forms an exceedingly convenient means of defending it against encroachments. If it is set near the boundary and allowed to stay there unchallenged, it may in time become itself the accepted boundary. But if the attempt is made to establish a factitious boundary by the mere act of setting up a fence the effort fails."[Footnote: Freedom and Responsibility, 30.] Americans took principles and institutions with which they had become familiar in colonial days and made their Constitutions out of them. Their attachment to what the Constitution provides goes behind the Constitution to the rock of ancient custom and precedent on which it rests, the common heritage of all the States. There is an obvious reason for the unwillingness of the judiciary to exercise the power under consideration unless in case of necessity. The legislature presumably does only what the public sentiment of the day justifies or demands. One branch of it, at least, is the direct representative of the people. To defeat the operation of a statute is therefore always presumably an unpopular thing to do, and if in any case there is known to be truth behind the presumption, it requires, as the Federalist [Footnote: No. LXXVIII.] put it, "an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution." It is seldom that an inferior court declares a statute void. The mere fact that it was enacted by the legislature imports the opinion of that body that it was within its powers; and such an opinion of a department of government is entitled to great respect. If a different, opinion is to prevail, it should ordinarily be first pronounced by the highest authority that can speak for the judicial department. So far, however, as the question of power or jurisdiction is concerned, a justice of the peace, in trying a five-dollar case, has the same authority to disregard a statute, whether it be one enacted by the State legislature or by Congress, if he deems it unconstitutional, which belongs to the full bench of the Supreme Court of the United States. If he is wrong, the only remedy is by appeal. The number of statutes which have been judicially pronounced in whole or part invalid in the United States is very large. Among the Acts of Congress which have fallen in this manner and have been made the subject of elaborate opinions may be mentioned the provision in the original Judiciary Act giving the Supreme Court of the United States greater original jurisdiction than the Constitution provided;[Footnote: Marbury _v._ Madison, I Cranch's Reports, 137.] the Act of 1865, excluding from practice in the United States courts attorneys who could not take the "iron-clad oath" that they had not supported the South in the Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn _v._ Griswold, 8 Wallace's Reports, 603, overruled in the Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870, to protect the colored voter;[Footnote: United States _v._ Reese, 92 U. S. Reports, 214.] the Civil Rights Act of 1875;[Footnote: United States _v._ Stanley, 109 U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co., 157 U. S. Reports, 429.] Fifteen others of less importance have fallen by the same sword. The Supreme Court of the United States has also set aside in the same manner, as inconsistent with the Constitution of the United States, over two hundred statutes passed by States. Of the twenty-one acts of Congress thus declared unconstitutional, the decisions as to all but two were rendered after 1830; of the State statutes all but twenty-six.[Footnote: Condensed Reports Supreme Court (Peters' Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The fourteenth amendment has added largely to the list of the latter since its adoption in 1868. State statutes set aside by the State courts since 1780 as in violation of their respective State constitutions number thousands. In the year from October 1, 1902, to October 1, 1903, the legislatures of forty-four States and fully organized Territories of the United States were in session and nearly 14,400 new statutes were enacted. During the same year fifty State statutes were declared in whole or part unconstitutional by courts of last resort. Three of these decisions were rendered by the Supreme Court of the United States. Five statutes of Missouri and as many of Indiana were thus set aside; three each of California, Kansas and Ohio; two each of Florida, Illinois, Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin, and one each of those of Kentucky, Maine, Michigan, Minnesota, New Jersey, Georgia, South Carolina, South Dakota, Tennessee, Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin No. 86, New York State Library, "Comparative Summary and Index of Legislation, 1903," 273, 281.] On the average probably as many as one statute out of every three hundred that are enacted from year to year are thus judicially annulled. The declaration by a court that a statute is unconstitutional and void is only a step in a cause. In the judgment it may not be found necessary or proper even to allude to it. But the order of the court which the judgment contains must be executed precisely as if no such statute had ever been enacted. It may, in effect, be directed against the State whose statute is pronounced void if the plaintiff complains of action taken under it which has deprived him of property and put it in the hands of public officers, or seeks a remedy to prevent a threatened wrong. The State of Ohio in 1819 passed a statute reciting that a branch of the United States Bank was transacting business there contrary to the law of the State, and imposing a tax upon it, in case it continued to do so, of $50,000 a year, to be collected by the auditor and paid over to the treasurer. The auditor subsequently sent a man to the bank who forcibly seized and carried off $98,000 in specie. This was given to the State treasurer, who kept it in the treasury in a trunk by itself. The bank sued all three for the money in the Circuit Court, setting forth all these proceedings at length. Judgment went against them and, with a slight modification, was affirmed by the Supreme Court of the United States. It was held by Marshall in giving the opinion that the statute was void; that the money had never become mingled with the funds of the State; and that they were liable for it precisely as if they were private individuals who had wrongfully seized it.[Footnote: Osborn _v._ Bank of the United States, 9 Wheaton's Reports, 738.] These proceedings awakened great feeling in Ohio, and became the subject of much criticism throughout the country by those adhering to the Democratic party. The legislature of Ohio adopted resolutions denouncing them as unauthorized by the Constitution of the United States, and directed the Governor to forward a copy to the legislature of every other State with a request for its opinion on the subject. The replies varied in tone according to the political predilections of the party then in control of the State addressed. Still closer does a court come to collision with the political sovereignty of the State when it commands a public officer to do something in violation of a statute which it pronounces void, or not to do something which such a statute requires. A striking instance of this is furnished by the power to nullify legislative gerrymanders. The Constitutions of almost every State provide that it shall be districted from time to time by the legislature for the purpose of electing certain officers or local representatives, and that this shall be so done as to make the districts as nearly equal in population as conveniently may be, and composed of contiguous territory. If a legislature undertakes to construct districts by any other rule, the courts can compel those charged with the conduct of elections to disregard it and to hold them according to the districts previously established under the former law.[Footnote: State _v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35; 17 Lawyers' Reports Annotated, 145; 35 American State Reports, 29; Board of Supervisors _v._ Blacker, 92 Michigan Reports, 638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70 Northeastern Reporter, 980.] But however necessary may be the conclusion from the premises, it can hardly be agreeable to the authors of a law which it serves to destroy. In effect, though not in theory, it subordinates one department of government to another. The practical result is to give the judiciary a superior power to the legislature in determining what laws the latter can enact. It is not a right of veto, but in a case which calls for its exercise it is an equal right exercised in a different way. In the first instance of a resort to it[Footnote: See p. 100.] the section of the New Jersey Constitution of 1776 confirming the right of trial by jury was held by the full bench of the Supreme Court to render a statute void which authorized a trial without appeal before a jury of six, on a proceeding for the forfeiture of goods brought in from British territory or the British military lines. This was an unwelcome decision to many who were interested in such seizures, and they sent in several petitions to the legislature for redress. No action criticising the judges, however, was taken by that body. Four years later the Mayor's Court of New York, in the case of Rutgers _v._ Waddington, held that an act of the legislature of that State, if given the effect which it was plainly intended to secure, would be contrary to the Constitution of the State, and therefore allowed it so limited an operation as virtually to annul it. The legislature retorted by resolutions of censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.] What was probably the second instance of the actual use of the power in question arose in 1786, out of a statute of Rhode Island passed to support the credit of her paper money of that year's issue. Any one declining to receive it in payment for goods sold at par was to be liable to a _qui tum_ action, to be tried without a jury. Counsel for a man sued in such a proceeding put in a plea that the act was unconstitutional and so void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial Power and Unconstitutional Legislation," 234, 237.] The court, which was composed of five judges, threw out the action on this ground, treating the charter from Charles II and the long usage under it as having established trial by jury as a fundamental and indefeasible right. The General Assembly shortly afterward summoned the judges before it to account for this judgment. They appeared and stated their reasons for their conclusion, protesting also against the adoption of any resolution for their removal from office (which had been suggested) until after a formal trial. They were not impeached, but at the ensuing session, their terms of office having expired, the Assembly chose others in their place. Not far from the same time the Supreme Judicial Court of Massachusetts pronounced a statute unconstitutional, but there the legislature displayed no feeling, and at the next session unanimously repealed it.[Footnote: This, no doubt, was one of the instances of the exercise of this power referred to by Elbridge Gerry in the Federal Convention of 1787. Elliot's Debates, V, 151. It is described in Proceedings Massachusetts Historical Society, XVII, 507.] In 1808, Judge Calvin Pease of the Ohio Circuit Court was impeached for holding a law of Ohio unconstitutional. He avowed the act, and insisted that as it was a judicial one the soundness or unsoundness of his conclusions could not be inquired into as a ground of impeachment. The result was an acquittal.[Footnote: Foster, "Commentaries on the Constitution of the United States," I, 691.] Georgia was the only one of the original States which set up no Supreme Court at the beginning of its statehood. Her Constitution established (Art. III, Sec. 1) a Superior Court, and left it to the General Assembly to give it, if they thought best, appellate jurisdiction. The judges were subsequently by statute authorized to sit _in banc_ and hear appeals. In 1815, while so sitting, they declared a certain statute of the State unconstitutional and void. The legislature showed its resentment by a set of resolutions, of which the parts material in this connection read thus: Whereas, John McPherson Berrien, Robert Walker, Young Gresham and Stephen W. Harris, judges of the Superior Court, did, on the 13th day of January, 1815, assemble themselves together in the city of Augusta, pretending to be in legal convention, and assuming to themselves ... the power to determine on the constitutionality of laws passed by the general assembly, and did declare certain acts of the legislature to be unconstitutional and void; and ... the extraordinary power of determining upon the constitutionality of acts of the state legislature, if yielded by the general assembly whilst it is not given by the constitution or laws of the state, would be an abandonment of the dearest rights and liberties of the people, which we, their representatives, are bound to guard and protect inviolate; Be it therefore resolved, That the members of this general assembly view, with deep concern and regret, the aforesaid conduct of the said judges ... and they can not refrain from an expression of their entire disapprobation of the power assumed by them of determining upon the constitutionality of laws regularly passed by the general assembly, as prescribed by the constitution of this state; we do, therefore, solemnly declare and protest against the aforesaid assumption of powers, as exercised by the said judges, and we do, with heartfelt sensibility, deprecate the serious and distressing consequences which followed such decision; yet we forbear to look with severity on the past, in consequence of judicial precedents, calculated in some measure to extenuate the conduct of the judges, and hope that for the future this explicit expression of public opinion will be obeyed. In 1821 a case was argued before the Supreme Court of the United States involving the validity of a Kentucky statute passed to protect occupants of land who had made valuable improvements upon it in good faith, in case it should be subsequently proved to belong to some one else. The occupant had employed no lawyer, and it was surmised that the court would decide against him. The Governor of Kentucky called the attention of the legislature to this, and advised the employment of counsel to defend the law. The legislature responded by resolving "that they consider an adjudication, that the laws in question are void, incompatible with the constitutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the commonwealth of Kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication," but that two commissioners should be appointed "to attend the Supreme Court of the United States at the next term and oppose any decision that may be attempted to be procured from the Supreme Court, that those laws are void in such manner as they may deem most respectful to the court and most consistent with the dignity of this state."[Footnote: Niles' Register, XXI, 190, 404, 405.] The case had already been heard _ex parte_, and the court soon proceeded to give judgment that the statute in question was void. The Kentucky commissioners employed counsel, who moved for a reargument, and obtained one, but with the same result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The legislature at its next session discussed the opinion in the case and resolved "that they do most solemnly protest against the doctrines promulgated in that decision as ruinous in their practical effects to the good people of this commonwealth and subversive of their dearest and most valuable political rights."[Footnote: Niles' Register, XXV, 275.] They then took up two decisions of their own Court of Appeals, declaring other statutes of the State unconstitutional and void, and resolved "that in the opinion of this legislature the decision of the Court of Appeals of Kentucky in the cases of Blair against Williams[Footnote: 4 Littell's Kentucky Reports, 34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.] are erroneous, and the laws declared therein to be unconstitutional are, in the opinion of this present General Assembly, constitutional and valid acts."[Footnote: Niles' Register, XXV, 275.] The next step was to endeavor to remove the judges, but the two-thirds vote required by the Constitution to support an address to the Governor for that purpose could not be secured. At the next session, in 1824, the judges were summoned to show cause why they should not be removed. They defended their conclusions so well that the two-thirds vote of each house required by the Constitution could not be obtained. By a majority vote the court was then abolished, a new one set up by the same name, and four new judges appointed. The old court refused to recognize the validity of their proceedings. The new one assumed to organize and to do business. At the next election the question which court ought to be recognized was the dominant one. The result was that the friends of the old court gained control of the House and those of the new court that of the Senate, one of them being also chosen as the Governor. The new court now got possession of most of the papers of the old court. The latter ordered their sergeant to bring them back. The Governor made preparations to use military force to resist the execution of this order. At last, in 1826, an act was passed (Session Laws, p. 13) over the Governor's veto, declaring the acts abolishing the old court unconstitutional and void. The Governor thereupon appointed a warm champion of the new court chief justice of the old one to fill a vacancy which had occurred on that bench, and for the first time for two years the judicial establishment of the State was on a proper footing.[Footnote: Niles' Register, XXXI, 324; McMaster "History of the People of the United States," V, 162-166; "The Old and the New Court, in The Green Bag," XVI, 520.] Meanwhile both courts had been sitting and disposing of cases. New appeals from the inferior courts had been entered in the one which the appellant's counsel thought most likely to stand as the rightful authority. The judges of the inferior courts were in despair when the mandates of the Court of Appeals came down, and they were called upon to determine whether to obey them. Some held that the new court was a _de facto court_, and to be respected accordingly. The ultimate decision fell to the old court, which, after the repealing Act of 1826, held that there could be no such thing as a _de facto_ Court of Appeals so long as civil government was maintained and the _de jure_ court was in the exercise of its functions.[Footnote: Hildreth's Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky Reports, 206.] The same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. If a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction. In this way the Supreme Court of the United States was kept from passing on the validity of the Reconstruction Acts enacted by Congress at the close of the Civil War, in a case which was actually pending. Under these Acts a Mississippi newspaper editor was arrested in 1867 by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. He appealed to the Circuit Court of the United States for the District of Mississippi for discharge on a writ of _habeas corpus_. Judgment went against him, and he appealed to the Supreme Court of the United States. The court, on August 1, held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[Footnote: _Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. Congress apprehended a decision that the Reconstruction Acts were unconstitutional, and before one was arrived at, during the same month, passed an act repealing the right of appeal in such cases from the Circuit Court. The purpose of this was obvious, but it was none the less effective, and the court, without deciding the case, dismissed it for want of jurisdiction.[Footnote: _Ex parte_ McCardle, 7 Wallace's Reports, 506.] A legislature whose work has been set aside by the courts as unconstitutional sometimes asks, in effect, for a reconsideration of the question by passing another law substantially of the same nature, although expressed in somewhat different terms. This is oftenest done when the decision was made by a divided court or is contrary to the weight of judicial opinion in other States. Early in the history of California, for instance, a statute was passed making it a misdemeanor to keep open any store, shop or factory, or to sell goods, on Sunday. The Supreme Court of the State held this to be contrary to the provisions in her Constitution that all men had the inalienable right of acquiring property, and that the free exercise of religious profession should be allowed without discrimination or preference. Most of the other States had similar statutes, and their courts had supported their validity. Judge Stephen J. Field, then on the California bench, dissented in a vigorous opinion.[Footnote: _Ex parte_ Newman, 9 California Reports, 502.] Three years later the legislature, unconvinced by the reasoning of the majority of his associates, passed a new Sunday law, which did not differ materially from the other, and after a few months the court overruled their former decision, on the very ground taken by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California Reports, 679.] Any dissent from a judgment setting aside a statute greatly weakens its force. It has also much less claim to public confidence if all the judges on the bench did not participate in it. In 1825, the Court of Appeals of Kentucky declined to follow a decision of the Supreme Court of the United States, which held certain statutes of Kentucky to be contrary to the Constitution of the United States.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports, 1.] The reason stated for this was that the decision was not concurred in by a majority of the court. It had been made by a majority of a quorum, but not by a majority of the whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's Kentucky Reports, 57.] After this it became the practice of the Supreme Court under Chief Justice Marshall not to give judgment in any case involving constitutional questions, unless a majority of the court concurred in opinion in regard to these.[Footnote: New York _v._ Miln, 8 Peters' Reports, 118, 122.] Several American courts have asserted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular constitutional provisions. The English courts now claim no such power, although Sir Edward Coke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, asserted that an act of Parliament "against common right and reason" could be adjudged void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's Reports, 114, 118.] So far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the Reformation, on questions arising from interference by Parliament with rights claimed under the Church of Rome. Such questions were of the nature of those arising under a written Constitution. The law of the church within its province was then accepted as a supreme law.[Footnote: Coxe, "Judicial Power and Unconstitutional Legislation,"' 147, _et seq_.] The rule laid down by Sir Edward Coke was accepted by the Supreme Court of South Carolina in two early cases,[Footnote: Ham _v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._ Middleton, _Ibid_., 252.] and has been substantially repeated in some judicial opinions in other States.[Footnote: See Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31 American Decisions, 72.] In the Supreme Court of the United States its authority was emphatically denied by Mr. Justice Iredell, near the close of the eighteenth century,[Footnote: Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874 the full court only one member dissenting, held a State statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. That, said Mr. Justice Miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's Reports, 655, 664; approved in Parkersburg _v._ Brown, 106 U. S. Reports, 487, 501.] This view of the law had been forcibly, though tentatively, put shortly after he came to the bench by Chief Justice Marshall in a leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's Reports, 87.] but one in which it was not necessary to decide whether the doctrine was sound. "It may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection." 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.] Another cause is also effective in lessening the docket of the District Courts. The ordinary lawyer prefers to sue in a State court, when he has the choice, on account of his greater familiarity with the practice there. Many American lawyers have never brought an action in a federal court. Most cases which could be so brought can also be and are brought in a State court. Congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. There are those who claim that the reference in Art. III, Sec. 2, of the Constitution of the United States to "cases in law and equity" requires its preservation; but this seems a strained construction of the phrase. Separate dockets are kept in the District Court of legal and of equitable actions. They are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. As to equity cases, the rules of the old English chancery practice are substantially followed. In cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the State within which the federal court may be held is to be followed, as nearly as may be.[Footnote: U. S. Revised Statutes, § 914.] In fact, there is a departure from it in many points in most States,[Footnote: See Nudd _v._ Burrows, 91 U. S. Reports, 426.] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. If an action framed in this method be removed from a State court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another. The Supreme Court, under power derived from acts of Congress, has framed rules of procedure for the inferior trial courts of the United States in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. The Equity Rules promulgated by the Supreme Court were revised in 1912, and took effect as changed in 1913.[Footnote: They are printed in Volume 226 of the United States Reports.] They greatly simplify the former procedure. Suits are now tried generally on oral testimony taken stenographically in open court. Formerly the evidence was usually given before officials known as examiners or masters in chancery. The former reported the testimony at length to the trial court. The latter reported their conclusions from it. The new rules have abolished demurrers in equity causes in favor of what is substantially the present English practice.[Footnote: See _infra,_ page 203.] In common law causes in the District Court, the State remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[Footnote: U. S. Rev. Stat., §§ 915, 916, 967, 988.] The field of national legislation being narrow, the offenses against the nation are correspondingly few. Any acts done on lands ceded by a State, which would have been crimes under its law in 1873, may be punished as such in the federal courts in the same manner which that law provided.[Footnote: _Ibid_., § 5391.] In the Circuit Courts, before 1866 it was customary to defer the trial of important causes until the Justice of the Supreme Court assigned to the circuit could be present. If he differed on any material point from the District Judge, this point could be certified up to the full Supreme Court for argument and decision there. During this period the published reports of the decisions of the Circuit Court contain many opinions of the highest value. Several of the best which Story and Bushrod Washington wrote are to be found among them. The Act of 1866, by which a resident Circuit Judge was appointed for each circuit, provided notwithstanding that each member of the Supreme Court should attend at least one term of the Circuit Court in each district as often as once in two years. The press of business at Washington, however, soon became such as to make it practically impossible for the Supreme Court Justices to do any substantial circuit work. When some case of national importance was to be heard in any district, the Justice in whose circuit it was included would make a special effort to go down. In this way Chief Justice Chase heard and sustained the plea with which Jefferson Davis met the indictment against him for treason. But ordinarily the Circuit Judge took the place of the Supreme Court Justice, and the latter, if he appeared at all during the term, remained hardly for a day. The Supreme Court, therefore, during over a hundred years remained the only court of the United States existing mainly for appellate purposes. The work which it had before it at the last term during which it occupied this position (October Term, 1890) will show how much it was then overburdened. Its docket contained 1,177 appeals brought forward by continuance because they could not be disposed of at the preceding term, 623 new cases of the same kind, and 16 cases of original jurisdiction, making a total of 1,816 actions. Of these, although the term lasted nearly eight months, it was only able to dispose of 617, thus leaving 1,199 for continuance to the following term.[Footnote: 140 U. S. Reports, Appendix.] It will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years. Appeals now lie in most civil cases from the final judgments of the District and Circuit Courts, and from convictions for infamous crimes, not capital, to the Circuit Court of Appeals. They also extend to judgments granting a temporary injunction. There is a court of this name for each of the nine circuits, which was established in 1891 for the further relief of the Supreme Court and the speedier termination of litigation. This measure originated in the American Bar Association, by which it was pressed upon the attention of Congress. It had become an absolute necessity to devise some plan of expediting the disposition of appeals from the trial courts of the United States. There was more than enough of such business by the close of the Civil War (the events attending which brought up for decision many novel questions of the highest importance) to require the entire attention of the Supreme Court. It soon took three years after an appeal was docketed before it could be reached for argument. This was intolerable, and it was obviously necessary either to restrict the liberty of appeal; to constitute divisions of the court, one to hear appeals of a certain class and another those of another class; or to set up an intermediate court. The last method was preferred. The practice in the Circuit Court of Appeals is governed by rules of its own making, but in general conforms to that of the Supreme Court of the United States in appealed cases. The commission appointed some years since to prepare a revision of the laws of the United States have reported in favor of abolishing all jurisdiction of the Circuit Court over original cases and turning it into an appellate court.[Footnote: Senate Doc. 68, 57th Congress, 1st Session.] Should this recommendation be adopted, the District Court would acquire the jurisdiction now vested in the Circuit Court, the District Judges would sit in the District Court only, and the Circuit Court Judges in the Circuit Court only, while the Circuit Court of Appeals would come to an end. The American Bar Association voted in 1903 that it was desirable to establish a new appellate court to sit at Washington and take cognizance of patent and copyright cases. Such a measure would tend to relieve the Supreme Court of the United States of any undue pressure of business, and promote both uniformity and promptitude of decision in a class of actions in which promptitude and uniformity are of special importance. As things stand now, a patent may be pronounced invalid in one circuit and upheld in another by courts of equal authority; and while in such event the Supreme Court would probably, on a special application, call both these judgments up before it for review, this remedy cannot be claimed as a matter of absolute right, and is at best a slow one. The Circuit Court of Appeals is held by three judges, two constituting a quorum. Those generally sitting are the Circuit Judges belonging to the circuit. The Justice of the Supreme Court assigned to the circuit may also sit, and any of the District Judges in the circuit can be called in. Except in a very limited class of cases, the decision of this court is final, unless the Supreme Court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to Washington for that purpose. The Circuit Court of Appeals can also of its own motion certify up any questions in a cause to the Supreme Court for its instructions before making a final disposition of it. The Supreme Court has direct appellate jurisdiction over the District and Circuit Courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the United States under the statutes regulating inter-State commerce, and in all cases involving the construction or application of the Constitution of the United States, or of a treaty. Appeals also lie to it from judgments of conviction in the Circuit Court for capital offenses.[Footnote: 29 U. S. Statutes at Large, 492; 32 _ib_. 823.] The consequence of the Circuit Courts, which had been impaired by the practical withdrawal of the justices of the Supreme Court, was further lessened by the creation of the Circuit Court of Appeals. Before that their judgments in most cases were final. In criminal causes there was no appeal, and in ordinary civil causes none after 1875, unless the matter in controversy exceeded $5,000 in value. This left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[Footnote: See an attack on a similar state of things existing in Louisiana at one time in the District Court, by Edward Livingston in 1826. Hunt, "Life of Edward Livingston," 302, 303.] No sovereign can be sued in his own courts without his consent. The United States consent to be sued on most claims against them of a contractual nature, which they may dispute. For this purpose a Court of Claims has been established at Washington, consisting of a Chief Justice and four associates. Originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[Footnote: United States _v._ Klein, 13 Wallace's Reports, 128, 144; 24 U. S. Statutes at Large, 505.] except in one particular. It is a general principle that a court will make no decree that it cannot enforce. The Court of Claims cannot issue an execution to enforce its judgments. Money can be drawn from the treasury of the United States only to meet appropriations made by Congress. An appropriation is made by each Congress of a gross sum to satisfy any judgments that have been or may be rendered by the Court of Claims; but should this provision be omitted in any appropriation bill the judgments of the Court of Claims could not be collected. Concurrent jurisdiction in these respects is given to the District Court of claims not exceeding $1,000 in amount, and to the Circuit Court of those exceeding $1,000 and not exceeding $10,000. Aliens can sue in the Court of Claims when their own country accords a similar privilege in its courts to citizens of the United States.[Footnote: U. S. Revised Statutes, § 1068.] This court has also a peculiar kind of advisory jurisdiction. Congress, or any committee of either house, can refer to it any questions of fact which may have come before them. The judges must then ascertain the facts and report them back. The head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. This does not take the form of a judgment, for there is no case and no parties are before it. It is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[Footnote: 22 U. S. Statutes at Large, 485; 24 _id._, 507.] A temporary court is also in existence called the Court of Private Land Claims. This is composed of a Chief Justice and four associate justices, and has jurisdiction to hear and determine claims of title to land as against the United States, founded on Spanish or Mexican grants in New Mexico, Arizona, Utah, Nevada, Colorado or Wyoming. An appeal from the final judgment is given to the Supreme Court of the United States.[Footnote: 26 U. S. Statutes at Large, 854.] The District of Columbia has a special judicial establishment. There is a court of general jurisdiction known as the Supreme Court of the District of, Columbia, and appeals from its judgments lie to the Court of Appeals of the District of Columbia. This is composed of a Chief Justice and two associate justices, and its judgments are reviewable by the Supreme Court of the United States, if $5,000 is involved, or the validity of an authority exercised under the United States or a treaty or Act of Congress is in question. An appeal also lies to it from decisions of the Commissioner of Patents as to claims of a right to a patent.[Footnote: 27 U. S. Statutes at Large, 434.] When new territory comes by conquest or cession permanently under the jurisdiction of the United States, it belongs to the President, in the exercise of his executive power, to see to its proper government until Congress makes other provision. He can institute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions. Each fully organized Territory has a set of local courts and one Supreme Court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the Supreme Court of the United States. These territorial courts do not exercise what is known in the strict sense and designated in the Constitution as "the judicial power of the United States." They are created to meet temporary conditions, and with judges whose commissions run only for a few years. Such courts are instruments through which Congress exercises its power of regulating the territory of the United States. They act judicially. They have judicial power. But the source of this power is not the clause in the Constitution under which the judicial power of the United States is defined.[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 511.] It is therefore not necessary to confine such courts strictly to the consideration of judicial business. In the organization of our earliest Territories the judges were given legislative functions, and while this was originally due to the terms of the Ordinance of 1787, it was confirmed by various Acts of Congress after the adoption of the Constitution of the United States. The Philippines are governed under an Act of Congress by a commission acting under the supervision of the Secretary of War. The organization of courts established by Spain has been in substance preserved. The Spanish law which was in force there was expressed in codes mainly founded on those framed for France under Napoleon I. In 1901, the Spanish code of civil procedure was supplanted by one prepared by a member of the Philippine Commission, and which is now familiarly known by his name as the Ide Code. In substance, it establishes the mode of proceeding in civil cases which is known in the United States as code pleading. Trial by jury has not been introduced into the Philippines either in civil or criminal causes, and need not be.[Footnote: Dorr _v._ United States, 195 U. S. Reports, 138.] In criminal causes, the Spanish system was originally retained, allowing either party, the United States or the defendant, to appeal from the judgment of the court of first instance to the Supreme Court of the islands and have there a new hearing both as to fact and law. This, however, so far as concerns an appeal by the government, was held to be contrary to the Act of Congress under which it was constituted.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.] The courts of the United States are generally provided with an officer styled a marshal. He executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects State courts. Each District Court appoints a convenient number of District Court Commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the States. * * * * * CHAPTER X RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES AND OF THE UNITED STATES JUDICIARY TO THE STATES Every judicial officer of a State is required by the Constitution of the United States to bind himself by oath or affirmation to support it, and this obligation compels him to respect every Act of Congress made in pursuance of the Constitution, and every treaty made under the authority of the United States, as, in case of conflict, superior to anything in his State Constitution or laws. The courts of the national government are complementary to those of the States. Both belong to one judicial system. Rights arising under the laws of the United States may be enforced by a State court as well as by a federal court, and rights arising under a State law by a federal as well as by the State court, unless in cases where there is some special restriction upon its jurisdiction. Such a restriction may be imposed by either government, as respects any right which it creates. The judicial power of the United States extends only to certain classes of cases. As to some of these it is necessarily exclusive: as to any of the rest Congress can make it such.[Footnote: The Moses Taylor, 4 Wallace's Reports, 411, 429.] On the other hand Congress may assume to invest a State court with power to dispose of a certain matter of federal right, and the State may decline to permit the exercise of such a power. The United States cannot in that manner compel the courts of another government to do their bidding. It would tend to throw on the States a greater burden than they might deem necessary or proper. They provide courts to meet the wants of those looking to their own sovereignties for justice. Thus, although nothing could seem more anomalous than for one sovereignty to confer citizenship in another, the laws of the United States allow naturalization to be obtained by proceedings in State courts. Most aliens who become citizens of the United States do so in that way, because the State courts are more easy of access. But a State can at any time restrict or forbid the use of its courts for such a purpose.[Footnote: Stephens, petitioner, 4 Gray's (Mass.) Reports, 559; State _v._ Judges, 58 N. J. Law Reports, 97; 32 Atlantic Reporter, 743.] The federal courts can lend their aid to carry into effect a right arising wholly from the statute of a State, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. Admiralty suits, it is true, can only be brought in the courts of the United States, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[Footnote: The Lottawanna, 21 Wallace's Reports, 558, 580.] There are many civil cases which can be brought, at the option of the plaintiff, either in a court of the United States or in a State court. Some of these, if brought in a State court, the defendant can, at his option, allow to remain there or remove for trial into the Circuit Court of the United States. Criminal prosecutions by a State may also be removed, under certain conditions, to the Circuit Court of the United States, when the defense is one arising under the laws of the United States. In any cause tried in a State court, if the decision turns on a claim of right, set up under the Constitution, laws or treaties of the United States, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the State, can ask such relief from the Supreme Court of the United States. It will be observed that it is the losing party only who has this remedy. If the State court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. If all State courts in which the validity of an unconstitutional Act of Congress was contested should uphold it, the courts of the United States would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial. The obvious object of the limitation is to preserve so far as is possible the sovereignty of the States. The courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. For the same reasons, resort can be had to the Supreme Court of the United States only after every right of review given by the laws of the State has been exhausted. Usually this requires one who loses his cause in a trial court to take it up to the State court of last resort. Where, however, this is not permitted by the State law, he may ask for a writ of error from the Supreme Court of the United States to whatever court was the highest to which he was able to remove it; and if, by the State law, he was unable to appeal at all, then the writ will go to the trial court. One of the greatest of Chief Justice Marshall's great opinions was rendered on a writ of error to the quarterly session court for the borough of Norfolk in Virginia, held by the mayor, recorder, and aldermen of the borough.[Footnote: Cohens _v._ Virginia, 6 Wheaton's Reports, 264.] It was the opinion of Hamilton that an appeal might be given from the State courts to the inferior federal courts, in case of a decision turning on a right claimed under the Constitution or laws of the United States.[Footnote: _Federalist_, No. LXXXII.] This is probably true, but Congress has wisely forborne to make any such provision. It imposes a strain sufficiently great on the sovereignty of a State to subject the judgments of its court of last resort to reversal by the Supreme Court of the nation. The power to declare a statute void because inconsistent with constitutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[Footnote: See Chap. VII.] It therefore belongs, as respects a State statute which may be attacked as inconsistent with the Constitution of the United States, to the trial courts of the United States as well as to the Supreme Court. This makes it possible for a District or Circuit Court of the United States to adjudge the statute of a State in which it sits to be unconstitutional and void, although it may have been declared valid by a judgment of the highest court of the State, from which no appeal to the Supreme Court of the United States was ever taken. However derogatory to the sovereignty of the States the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. In some way it was indispensable to provide for maintaining the full powers of the United States against encroachments by State legislation, and also for enforcing all the special limitations on the powers of State legislation which the Constitution of the United States lays down. This could have been done effectually in but two ways: either by giving to Congress or to the President a veto upon State laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. The latter method was clearly open to the least objection.[Footnote: See Hamilton's discussion on this point in the _Federalist_, No. LXXX.] Jefferson maintained that there was a third, and one which the Constitution expressly provided. This was the calling of a convention of all the States for proposing amendments to it. If, he said, a State on the one hand by her highest authorities asserts a certain line of action to be within her powers, and the United States by their highest authorities deny it, "the ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs."[Footnote: Letter to Mr. Justice Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There seems a plain fallacy in this proposition. The question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the Constitution was framed. To amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done. But one serious proposition has ever been made to call a national constitutional convention for any such purpose. That was by Kentucky in January, 1861, when civil war was threatened; and it was not pressed. The very delays which would be inevitable in assembling such a body were then a reason for the call, for they would give time for the "sober second thought." The plan, however, seemed and probably was impracticable. The movement toward secession had gone too far.[Footnote: Debates and Proceedings of the National Peace Convention, 45, 61, 67.] There were many, at the time when the Constitution of the United States was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. New York in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the United States could ever be enlarged "by any fiction." In the Maryland Convention, this sentiment took shape in a proposed amendment to the Constitution adopted by a committee appointed for the purpose, but never reported, "that the Federal courts shall not be entitled to jurisdiction by fictions or collusion."[Footnote: Elliot's Debates, 550; Proceedings Massachusetts Historical Society, XVII, 504-7.] Had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the Circuit Courts. In 1787, there were only twenty-seven business corporations in the United States.[Footnote: Report of the American Historical Association for 1902, 267; _American Historical Review_, VIII, 449.] It was not long before they became countless and the large affairs of the country were in their hands. Could they sue and be sued in the courts of the United States? The decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be. They were, indeed, not citizens of any State;[Footnote: Paul _v._ Virginia, 8 Wallace Reports, 168.] but the persons who composed them probably were. Therefore, it must be assumed that they certainly were, and also that they were all citizens of the same State and that the State from which incorporation was obtained.[Footnote: Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports, 286.] Sir Henry Maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[Footnote: Ancient Law, 26.] But while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously illustrates. Although the United States are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a State which the United States have but imperfect means of preventing or rectifying. In 1841, we were brought to the verge of war with Great Britain by an incident of this nature. An insurrection broke out in Canada in 1837, and a New York steamboat was chartered to bring supplies across the Niagara River to those engaged in it. One night when she was moored on the New York side of the river a party of loyal Canadians seized and burned her. During the accompanying affray an American was killed. A Canadian named McLeod, who was charged with having fired the fatal shot, was afterwards arrested in New York and indicted for murder. The British government then informed ours that it had ordered the burning of the steamer, and thereupon demanded McLeod's release. Our Secretary of State replied that the prosecution was in the hands of the State of New York, and the United States had no control over it. Lord Palmerston made the affair the subject of a dispatch, in which he stated that McLeod's execution would produce "a war of retaliation and vengeance." The President at once requested the Governor of New York to order a discontinuance of the prosecution. This was declined, but with a promise to grant a pardon in case of conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.] The State courts refused to discharge the prisoner. He was tried on the original charge, but acquitted. Congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by passing an Act giving the Circuit and District Courts of the United States jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by State authority, who might claim a right of release under the principles of international law.[Footnote: U. S. Revised Statutes, § 762.] The Circuit Court has since 1875 been given power to entertain original jurisdiction of any causes arising under the Constitution, laws or treaties of the United States, regardless of the citizenship of the parties, if a value of $2,000 is involved. In all cases, also, of imprisonment by State authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the Constitution, laws or treaties of the United States, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the United States. Ordinarily, however, as a matter of comity, he will be left to seek his remedy in the State courts, and if without success there, on a writ of error from the Supreme Court of the United States.[Footnote: _In re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117 U. S. Reports, 241.] The State courts have no power to release on _habeas corpus_ one who is held under the authority of the United States. If that authority has been illegally exerted, his remedy is in the federal courts alone.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.] The cases in which a State can be sued in an original suit in the Supreme Court of the United States are defined in the Constitution and, as limited by the eleventh amendment to it, are quite few. Several such actions have been brought. In the earlier ones, the State declined to recognize the jurisdiction of the court and did not enter an appearance. The court thereupon decided to proceed _ex parte_ on hearing the plaintiff;[Footnote: See New Jersey _v._ New York, 5 Peters' Reports, 283; U. B. Phillips, "Georgia and State Rights;" Report of American Historical Association for 1901, II, 83.] and in the later cases the States have appeared and made defense. The court, in one of these suits, was asked to issue an injunction in favor of the Cherokee Indians against the State of Georgia to prevent her and her Governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. The case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign State. Marshall thought it savored "too much of the exercise of political power to be within the proper province of the judicial department." Mr. Justice Johnson said that it was an attempt to compel the President of the United States, and by indirection, to do what he had declined to do on the plaintiff's application to him; namely, "to declare war against a State or to use the public force to repel the force and resist the laws of a State."[Footnote: Cherokee Nation _v._ Georgia, 5 Peters' Reports, 1, 19, 29.] It would be no easy thing to enforce a judgment against a State should it resist. Hence the Supreme Court has been justly reluctant ever to make any order which would take money out of a State treasury, unless in cases where the Treasurer was individually sued, and the money in dispute was not mingled with other public funds. In 1794, four years before the adoption of the eleventh amendment, a judgment against the State of Georgia, authorizing an assessment of general money damages against her, had been entered in the Supreme Court in favor of one Chisholm, to whom she owed a debt. Georgia had refused to enter an appearance in the suit, and in anticipation of this result her House of Representatives had resolved, in 1793, that if any Federal marshal should attempt to levy an execution on such a judgment against the State, it should be a felony, and on conviction he should be hanged. The Senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a State largely indebted for what her people thought it belonged to the United States to pay. The eleventh amendment was proposed by Congress during the term of court at which judgment was entered, but not adopted until 1798. Meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. The plaintiff therefore won a barren victory.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 25.] The appellate jurisdiction of the Supreme Court of the United States over States is large, for the State is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the United States which is overruled. Here again, in case of resistance, it would be difficult to enforce a judgment of reversal. Shortly before the action of the Cherokee Nation for an injunction, the Georgia courts had sentenced Corn Tassel, one of the tribe, to death for murdering another of them. Tassel had claimed that by the laws of the United States and their treaty with his nation he could only be prosecuted before one of his tribal courts. He obtained a writ of error from the Supreme Court to review his case on this ground. It was served, but before it could be heard the day set for his execution had arrived. By the laws of the United States the allowance of the writ of error superseded the sentence until the appeal should be decided. The Governor laid the matter before the legislature, saying that he did not propose to regard any orders from the Supreme Court interfering with those of Georgia courts, and should resist any attempt to enforce them with all the forces at his command. The legislature approved his position,[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 77.] and Tassel was hanged on the day originally set.[Footnote: "Memoirs of William Wirt," II, 291.] There had been no time to resort again to the Supreme Court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies. Two years later, Rev. Mr. Worcester, a missionary who had gone to teach the Christian religion to the Cherokees, was convicted in the Superior Court of Gwinnet County on an indictment for residing among them without a license from the State, and sent to the State prison. He appealed to the Supreme Court of the United States, which decided that Georgia had no jurisdiction over the Cherokee reservation, and could not require such licenses. The judgment against him was therefore reversed, and an order made "that all proceedings on the said indictment do forever surcease; and that the said Samuel A. Worcester be and hereby is henceforth dismissed therefrom, and that he go thereof quit without day, and that a special mandate do go from this court to the said Superior Court to carry the judgment into execution."[Footnote: Worcester _v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior Court of Gwinnet County paid no respect to this mandate; the Governor of Georgia characterized it as an attempt at usurpation which he should meet in a spirit of determined resistance; and Worcester remained in prison until, on expressing his willingness to abandon any further efforts for his discharge by authority of the judgment on his writ of error, the Governor gave him a pardon on condition of his leaving the State. A year later, James Grady, who lay under a sentence of death under proceedings similar to those in Tassel's case, like him obtained a writ of error from the Supreme Court of the United States and had it served on the Georgia court, only to find it disregarded. His execution, in spite of the _"supersedeas"_ which goes by law with every such suit, was the last of this series of judicial outrages.[Footnote: "Georgia and State Rights," 83.] It was unfortunate for the sufferers in these proceedings that they took place at a time when the cry of "State Rights" was particularly loud and general in the South. South Carolina had been quieted with difficulty by Jackson's action in regard to her nullification ordinance, and he did not wish to go farther than he thought it necessary in insisting on the supremacy of the United States. Since the Civil War, such defiance by a State of the authority of the Supreme Court of the United States has been unknown and would be almost inconceivable. The absolute right of the Supreme Court of the United States to pronounce finally, so far as the States are concerned, upon every question brought before it as to the meaning and effect of the national Constitution, has come to be universally acknowledged. The courts of a State have the same right, except that it is not final. This the original Judiciary Act of 1789 (Sec. 25) fully recognized. Something like it may belong to a Convention of the whole people of a State, called to act upon its fundamental concerns; for that would represent the sovereignty of the State as a whole in the fullest manner. It was from such a convention that the nullifying ordinance of 1832 proceeded, but the vice of its action was, not so much that it pronounced the protective tariff Acts unconstitutional and void, but that it assumed to deny any right of appeal in litigation growing out of these Acts and the Ordinance of Nullification, from the courts of South Carolina to the courts of the United States. This liberty of appeal in the regular course of judicial procedure is the one thing which keeps the United States in existence. The law governing the ordinary transactions of life is that of the State where they may have their seat. This was affirmed in the original Judiciary Act,[Footnote: U. S. Revised Statutes, § 721. As "equity follows the law," State legislation creating new equitable rights or varying those formerly established also affects causes in equity in the Federal courts. Brine _v._ Insurance Co., 96 U. S. Reports, 627; but see James _v._ Gray, 131 Federal Reporter, 401.] as a general rule for the courts of the United States in trials at common law. By another Act of Congress,[Footnote: _Ibid_., § 914.] the practice, pleadings, and form and mode of proceeding in civil causes, other than those of equity and admiralty jurisdiction, in the Circuit and District Courts are to conform as nearly as may be to that followed in the State within which these courts may be held. The State laws which are thus made a rule for the United States courts are the law of the State as it is understood and applied in its own courts. Hence the construction of a State statute, or the doctrines of the common law in a particular State, if definitely settled by the courts of that State, must be followed in subsequent litigation in the federal courts. Where, however, a State court has taken a certain position as to what the law is, and afterwards changes its position, the federal courts are not compelled to change with it, if this would do injustice to one who has meanwhile acted on the faith of the original ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports, 20, and see argument of Daniel Webster in Groves _v._ Slaughter, 15 Peters' Reports, 449, 489.] Nor are the federal courts, in large questions of a commercial nature, bound always to accept the opinion of a State court as to what the common law of the State may be. The manner in which this doctrine has been evolved is an interesting example of the manner in which law develops by litigation, and new points are struck out in a single case as the joint product of lawyer and judge.[Footnote: See Chaps, XVII, XVIII.] A bill of exchange drawn in Maine on one Tyson, a merchant in New York, and bearing his acceptance, was indorsed over to one Swift, who took it in good faith before it fell due, in payment of a pre-existing debt. He sued Tyson upon it in the Circuit Court of the United States in Maine. If his rights were as good as if he had paid value for it at the time he received it, he was entitled to recover. If not, his action failed; for the acceptance had been obtained by fraud. It was made in New York. The judicial decisions of that State, contrary to the prevailing opinion as to what was the general common law rule, seemed to favor the view that a pre-existing debt did not stand on as good a footing as a present payment, in support of a claim upon negotiable paper. Samuel Fessenden of Portland, a lawyer of great ability, was his counsel. The cause was submitted on briefs, without oral argument. Mr. Fessenden, admitting that the law of the place where acceptance was made must govern the obligations of Tyson, insisted that the New York decisions were wrong in principle and ought not to be regarded. "If," said his brief, "there is any question of law, not local, but widely general in its nature and effects, it is the present question. It is one in which foreigners, the citizens of different States in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. By all without the United States this Court is looked to as the judiciary of the whole nation, known as the United States, whose commerce and transactions are as widely diffused as is the use of bills of exchange.... How can this Court preserve its control over the reason and affections of the people of the United States; that control in which its usefulness consists, and which its own untrammeled learning and judgment would enable it naturally to maintain; if its records show that it has decided-as it may be compelled to decide if the construction referred to, advocated on the part of the defendant, is established-the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?" Mr. Dana, for Tyson, maintained the opposite view with equal ability. "In coming together," he said, "from the respective States, the framers of the Constitution, and our representatives in Congress after them, must be regarded as having had in view the language, laws, and institutions of the States which they represented." Mr. Justice Story gave the opinion of the court. Referring to the provision in the Judiciary Act (now U. S. Revised Statutes, Sec. 721) above mentioned, on the construction of which the case must turn, "It never," he remarked, "has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.... The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. _Non erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson, 16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.] This opinion had been submitted to the court for the first time during the evening before it was delivered.[Footnote: _Ibid_., 23.] It could not have received any very close scrutiny. It relied on no authority except that of Cicero, for Lord Mansfield, in the case of Luke _v._ Lyde, was speaking of the law of the sea, which in the nature of things no one nation can prescribe or change. It was not easy to reconcile it with precedents cited by Mr. Dana, in one of which Mr. Justice Chase of the same court had held on the circuit as early as 1798 that the United States had no common law of their own, and that the "common law, therefore, of one State is not the common law of another; but the common law of England is the law of each State, so far as each State has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal, or State, Court."[Footnote: United States _v._ Worrall, 2 Dallas' Reports, 384, 394.] So the Supreme Court itself had said, in 1834, in a famous judgment, concurred in by Mr. Justice Story himself, that "it is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common law right is asserted, we must look to the State in which the controversy originated."[Footnote: Wheaton _v._ Peters, 8 Peters' Reports, 658.] The State courts have looked upon the doctrine announced in Swift _v._ Tyson with an unfriendly eye. In some, its authority is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18 Atlantic Reporter, 503.] In none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. It has, however, been repeatedly reaffirmed by the Supreme Court of the United States, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single State.[Footnote: Western Union Telegraph Co. _v._ Call Publishing Co., 181 United States Reports, 92. See Article on the Common Law of the Federal Courts, by Edward C. Eliot, _American Law Review_, XXXVI, 498.] The right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. If he sues in a State court, the common law of the State, as the judicial authorities of that State declare it to be, will be applied; if he sues in a court of the United States, the common law of the State as the judicial authorities of the United States declare it to be. Each tribunal will profess to decide by the same rule--the law of the State; but the federal court will really apply the common law of England, as it is generally understood to be, instead of the common law of that State as it is locally understood to be. The relations between the federal and State courts which have been described obviously present many occasions for conflicts of authority. That such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. The federal courts are also prohibited by Act of Congress from issuing any injunction to stay proceedings in a State court, except in certain cases arising under the bankruptcy laws. Independent of any statute, however, the general principles of jurisprudence forbid any direct attempt either by a court of the State to control the action of a court of the United States or by a court of the United States to control the action of a State court, except to the limited extent for which provision is made in the national Constitution.[Footnote: Diggs _v._ Wolcott, 4 Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's Reports, 279.] Each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only. The equitable jurisdiction of the courts of the United States enables them to interfere in disputes arising out of State elections in certain cases in which the claim is set up that rights held under the Constitution or laws of the United States have been violated. Actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[Footnote: See the proceedings in the case of Kellogg _v._ Warmoth in the United States Circuit Court in Louisiana in 1872. McPherson's "History of Reconstruction," 100-108.] The centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the Civil War have greatly weakened the position and influence of the State courts. They have thus rendered the State bench less attractive. In 1791, John Rutledge, an associate justice of the Supreme Court of the United States, resigned that office for the Chief Justiceship of South Carolina. During the last half century, several Chief Justices of States have resigned to become Associate Justices of the Supreme Court of the United States. Associate Justices of Supreme Courts in the smaller States have also frequently resigned to accept the position of District Judge, attracted by the life tenure, larger salary, and retiring pension. * * * * * CHAPTER XI RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES Every State has all the rights of an independent sovereign, except so far as its sovereignty is limited by the Constitution of the United States. As respects each other the States are for most purposes in the position of foreign governments. The courts of one are regarded by those of any other as foreign courts, except so far as the Constitution may have prescribed a different rule. No legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. The law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. Courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause. In rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. Such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. The commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen's wages. Wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. In such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. The presence of the ship within the power of the court is enough. While State courts have no admiralty jurisdiction, they can adjudicate upon a claim of title or right of possession to fixed property within the territorial limits of their State, although the parties adversely interested are not and have not been personally served with process there or anywhere. Here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. But in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the State in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding. In most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal. This is styled making the foreign judgment executory. The English common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. In like manner, whoever has recovered a judgment against an inhabitant of any State, in a court held outside of that State, can enforce it against him in his own State only by bringing a new action. This either is, or is in the nature of, the common law action of "debt on judgment"; and only two defenses are available. These are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[Footnote: Pennoyer _v._ Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. The remedy for that must be sought in the State where the judgment was pronounced. Even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another State.[Footnote: Christmas _v._ Russell, 5 Wallace's Reports, 290.] These rules are established by Art. IV, Sec. I of the Constitution of the United States and by Acts of Congress passed to enforce it.[Footnote: U. S. Revised Statutes, Sec. 905.] Commercial intercourse between the different States is so great and so constant that questions in the courts of one often arise which turn on the law of another. Those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. If it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. If it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result. The law of each State is largely an unwritten common law. Even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. But this common law is not precisely the same in any two States. In minor points certainly, and perhaps in capital ones, there will be a divergence. In England there is one uniform common law. Here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform. If, then, the court of one State in determining the legal effect of a transaction having its seat in another must be governed by the common law of that State, where is it to be found? If there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive. This is not by virtue of the provision in the Constitution of the United States that full faith and credit is to be given in each State to the public records and proceedings of the others. That refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. Such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application. But they are not universally so considered. The rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. But in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. The rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. In this point of view, some courts hold that it is permissible to disregard decisions of other States which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. This is substantially the same position taken by the Supreme Court of the United States, and elsewhere described,[Footnote: See Chap. X.] concerning the right of a federal court to refuse to be bound by State decisions as to the unwritten law affecting foreign trade or trade between the States.[Footnote: Faulkner _v._ Hart, 82 N. Y. Reports, 413, 423.] Another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a State basing its jurisprudence on the English common law, that the unwritten law of any other American State is the same as its own. As the reason of this rule fails in the case of Louisiana, Florida and Texas, which were subject to organized governments not derived from Great Britain at the time when they were incorporated into the United States, it is not applied to them.[Footnote: Norris _v._ Harris, 15 California Reports, 253.] Decisions of a court constitute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. In the tribunals of one State decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. They may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an English or German court might be, for what they appear to be worth. No formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose. The reported decisions of courts of other States, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. For this use they are introduced simply for the intrinsic value of the reasoning and conclusions. If it is claimed that they prove the law of the State from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports, 1.] In many States this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other States; that is, in effect, to take any means which they think proper to learn what they are. It is also the general practice of the bar where no such statutes exist to allow the reports of other States to be read for any purpose without objection. Most States have statutes to facilitate the proof in court of the statute laws of other States. The mode prescribed by Act of Congress (Revised Statutes, Sec. 905) under the constitutional provision, to which reference has been made, involves considerable expense for the proper certification of copies. Common provisions of State legislation are that all courts may take judicial notice of the laws of other States (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are. There is a certain spirit of comity to which courts often give expression in rendering assistance to courts of other countries. This judicial comity has been defined as "the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings."[Footnote: "Dict. of Philosophy and Psychology," _Comity_.] As between courts of the different States in the United States this sentiment naturally is particularly strong. In pursuance of it, it is usual, if there has been a judicial appointment in one State of a representative of the law to administer an estate of any kind, part of which is in another State, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. An administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever State property or rights of action belonging to it might be found. A receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some States such an officer has been permitted to sue for it under his original appointment. The general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[Footnote: Hale _v._ Allinson, 188 U. S. Reports, 56.] A receiver of an insolvent corporation often finds that it has shareholders living in several different States, who have not fully paid in their subscriptions to its capital stock. In such case, if the statute of the State under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other States as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. On this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. He sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47 Atlantic Reporter, 711; 84 American State Reports, 161.] The sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between States both aids in the enforcement in one of rights acquired under the other,[Footnote: Finney _v._ Guy, 189 U. S. Reports, 335, 346.] and in the prevention by one of acts which would infringe on prohibitions created by the other. Thus, if a corporation of one State has been organized to do business in another, it may be enjoined in its home State from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[Footnote: Coler _v._ Tacoma Railway and Power Co., 70 New Jersey Law Reports; 54 Atlantic Reporter, 413.] As no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a State can summon before it witnesses not found within its jurisdiction, who live in another State. This, in view of the free intercourse and trade between all parts of the United States, would work intolerable hardship had not statutes been passed by every State permitting testimony to be taken outside of its limits by written deposition for use in civil cases. So far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our State Constitutions that the accused must be confronted by the witnesses against him. Most of the Northeastern States, to meet this difficulty, have passed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another State to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[Footnote: New Hampshire inaugurated this legislation more than sixty years ago. Public Stat., ed. 1842, 382. Most of the statutes apply only to adjoining or neighboring States, and some require reciprocity on their part.] * * * * * Lawyers of one State have no right to practice in any other. By courtesy and on motion of a member of the bar, it is customary for the courts of other States to allow them to participate in the conduct of any particular cause. In some States, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original State for a certain number of years, and otherwise provides for an examination into their legal attainments. * * * * * CHAPTER XII TRIAL BY JURY To have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. The American colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the English plan. In the colony of New Haven there were no juries. In all the New England colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. The defeated party had what was styled the privilege of a review. This was a new trial before another jury, either in the same court or a higher one. If he lost his case again, it was the end of the litigation. If he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[Footnote: Bissell _v._ Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.] In criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[Footnote: Statutes of Connecticut, ed. 1715, p. 131.] South of New England there was no such radical departure from the common law, but there were before the Revolution variations of considerable importance.[Footnote: The _Federalist_, No. LXXXIII.] Instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. This is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. Such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. They are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. Prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[Footnote: Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports, 621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports Annotated, 911.] The requirement of unanimity on the part of the jury in civil causes, which we have inherited from England, is indefensible in principle. In practice, it has saved the institution from destruction. No one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. But among that number of persons there can hardly fail to be one or two of superior character and intelligence. These, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. If the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. Not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. It is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker. In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction. In several States verdicts in civil causes by a three-fourths vote are permitted. This radical change is not likely to become general. Its best defense is that temptations to corruption are thus removed. So long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. In 1899, seven of the bailiffs in attendance on the Chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[Footnote: Report of the New York State Bar Association for 1904, 51.] The Anglo-American jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course. In the early judicial history of the American colonies juries were less under the control of the judge than they are now.[Footnote: See Chap. XIV.] In some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury. The general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. This often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. Still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. Without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. That there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent. The judge has at common law and by practice in most American States a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. It is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. They feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the State. Sometimes this power is abused. The judge desires to indicate a decided opinion. He fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. He therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. Any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[Footnote: See Metropolitan Life Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68 Northeastern Reporter, 4.] If the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter, 765.] The American colonies were settled at a time when the English criminal code was extremely harsh, and the English judges were disposed to administer it in such a way as to favor the crown. If the government promoted a prosecution, there was little hope for the defendant, except from the jury. The courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. This was the occasion of the Charles James Fox Libel Act of 1792, and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of Not Guilty. It was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[Footnote: 2 Swift's "System of the Laws of Connecticut," 258, 401.] In some of the States, a charge to the effect last stated is now sometimes required by statute. A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists.[Footnote: Commonwealth _v._ Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156 U. S. Reports, 51, 71.] It is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written Constitutions. Most crimes are defined by statute. It is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconstitutional. If it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. Any such claim must be disposed of by the court, in order to give the Constitution its due supremacy.[Footnote: State _v._ Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61 American State Reports, 30.] Mr. Justice Baldwin of the Supreme Court of the United States came to the bench, in 1829, strongly inclined to minimize the power of the federal judiciary. In one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[Footnote: United States _v._ Wilson, 1 Baldwin's Reports, 109.] It was not long before he found himself compelled to retreat from his position. A man was being tried before him for forging notes of the United States Bank, and his counsel claimed an acquittal because the law incorporating the bank was unconstitutional, reading to prove it the veto message of President Jackson, with the accompanying documents. To the Jackson Democrats on the panel this was quite an imposing argument, and Mr. Justice Baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an Act of Congress as invalid was virtually to give us a country without a Constitution and without laws.[Footnote: United States _v._ Sheve, 1 Baldwin's Reports, 510, 513; Pennsylvania Law Journal for November, 1846, p. 9.] In one of the Southern States where it is a statutory right to demand instructions that the jury are the judges of the law, it was the custom of a certain trial judge of commanding presence, when called upon to give them, to say to the jury after he had done so, rising to his full height, "But, gentlemen, you must recollect that I have told you what the law that governs this case is, and to this I am the only witness who has appeared or could appear." It was one of the acute observations of Alexander Hamilton that under our American Constitutions judges are less to be relied on by one who is attacked by the government, because those who direct the government are the choice of the people, and whatever they do is presumably popular. The judiciary, he said, was less independent here than in England, and therefore we had the more reason to cling to the trial by Jury and their power to render general verdicts as our greatest safety.[Footnote: People _v._ Croswell, 3 Johnson's Cases, 337, 353.] The States which guard these most closely are those in which there is the most jealousy of anything like a standing order, and the widest scope of popular election. Georgia was the State, among the old thirteen, in which these characteristics were most marked. Her first Constitution of 1777 expressly threw the power of determining the law into the hands of the jury in every case, though they were allowed to ask the judges holding the court for their opinion, in which case each judge gave his in rotation. The party who lost his case could demand a new trial before a special jury. The ordinary jury were to be sworn to bring in a verdict according to law and the evidence, provided it be not repugnant to the Constitution. The special jury were to be sworn to bring one in according to law and the evidence, "provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this Constitution, of which they shall judge." Apparently the meaning of this was that while the decision of the first jury as to the law could be revised by a second, that of the second, however contrary to the highest law, could not be. * * * * * Resort is occasionally had to the assistance of a jury by a court of chancery for the better disposition of some disputed question of fact on which the equities of the parties depend. This cannot (except by force of some express statute) be claimed as a matter of right. The judge sends the issue to a jury for trial only if he thinks it would be helpful to him, but their verdict has no conclusive effect. He can adopt it or ignore it, at his pleasure. * * * * * The selection of jurors is a long process. The general plan is to commit to some local authorities in each city, town, or county the choice of a considerable number out of the inhabitants whom they may think suitable to serve in that capacity; then to have that list revised by some higher officials or persons specially appointed by the courts for the purpose, who must strike out a large part of the names; and finally to have those who are to be summoned to attend any particular term of court for jury duty chosen by drawing from the remaining names by lot. In many States special qualifications as to age, education, and intelligence are required. Out of the jurors thus summoned to attend the court, there is a further choice by lot of those to try each particular case, subject to objections made by either party to any thus drawn, for proper cause. The statutes of the United States provide that jurors in the Circuit and District Courts shall be selected in each State from those qualified to serve in its highest trial courts, and in substantially the same manner. * * * * * The right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. If not expressly claimed, it is by the rules of practice in some States treated as waived. The number of civil causes tried to the jury, taking the country as a whole, is declining. The decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[Footnote: See Paper by Justice Henry B. Brown, in the American Bar Association Report for 1889, p. 265, on "Judicial Independence."] or perhaps to that confidence in the case of a former generation. Tradition and custom have a large influence on whatever pertains to the practice of law. In several of the States a majority of the civil causes which might be tried to the jury are not: in Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency in England is also toward dispensing with the jury in ordinary civil trials. Over a million cases are brought every year in the English county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over £5 in value either party may claim it.[Footnote: Maitland, "Justice and Police," 28, 29, 54. For small cases the jury is one of five, but their verdict must be unanimous.] Criminal trials, except in case of trivial offenses, it is generally necessary to hold before a jury, by express provisions of the Constitution.[Footnote: See Cooley, "Constitutional Limitations," 389.] During the colonial era the defendant was allowed in Massachusetts to waive a jury, even in capital cases.[Footnote: Proceedings of the Colonial Society of Massachusetts, VI, 95.] Statutory permission to the same effect has since been given in some States where there is no constitutional provision to the contrary.[Footnote: State _v._ Worden, 46 Connecticut Reports, 349.] In civil causes, the right to demand a jury in petty cases has been restricted in a number of States.[Footnote: In New Hampshire, for instance, a constitutional amendment was passed in 1877 denying it in cases involving less than $100, unless title to land is involved.] At common law the judges were accustomed and allowed to put great pressure upon juries, if necessary, to force them to unite in rendering a verdict. They could be kept together without food or beds all night, and even carted about from one court town to another until they were ready to report an agreement. Very little of this practice remains in the United States. In some States they are allowed to separate and go to their homes at night during the trial even of a capital case, and while deliberating over their verdict they are generally supplied with food and other comforts. The right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. If, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. It may inquire into this by the aid of a jury, but such a jury need not consist of twelve. The inquiry may also be conducted by the judge alone.[Footnote: Dyson _v._ Rhode Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter, 771.] In most of our States this common law practice has been abandoned, and damages, in cases of the kind above described, would be assessed by a jury of twelve. This is because otherwise a defendant who did not dispute his liability for the act complained of and only wished to reduce the amount of damages claimed in the writ might, after declining to appear and plead, come forward with a motion to be heard by the court on the question of damages. A motion of that kind would naturally be granted, and the effect would be to transfer the decision of the only actual controversy between the parties from a jury to a judge. In Connecticut the old practice was maintained until 1907, and the courts held that on the hearing as to the damages, in actions where there had been no contract between the parties to fix the rule of assessment, the defendant might show, if he could, that only nominal damages should be given, because really the plaintiff had no cause of action at all.[Footnote: Lennon _v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter, 334.] The result was that many suits arising out of railway accidents in that State were brought against the company in fault in other States in which process could be served to compel its appearance, and where a full jury trial could be secured. The legislature finally interposed and gave the plaintiff a right to claim a trial by jury, notwithstanding a default.[Footnote: Public Acts of 1907, 665.] * * * * * CHAPTER XIII FORMALITIES IN JUDICIAL PROCEDURE The sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff's officer in attendance. In many States the ancient English style of expression has been preserved, which dates back to the Norman conquest, and begins with a cry of "_Oyez, Oyez, Oyez_." These proclamations are often closed with such words as (for instance) "God save the Commonwealth of Rhode Island and Providence Plantations." The adjournment from day to day is announced in a similar but less elaborate manner. Many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months. In a number of States such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. No regular chaplain is employed, and one term may be opened by a Presbyterian minister and the next by a Roman Catholic priest. In some of the smaller counties in Massachusetts the sheriff or his deputy daily escorts the judge to and from the court house, in accordance with what has been the usage from colonial times. Formerly it was the practice in New England to ring the bell of the principal church in the town daily at the hour when court opened.[Footnote: This was continued in Connecticut until the last quarter of the nineteenth century.] In many courts it is the custom for all present to rise on a signal from the sheriff or marshal when the judge enters the court room to take his seat on the bench. This is the general usage in the federal courts and in the appellate courts of States. In the latter a formal proclamation is often made by the sheriff to announce the coming of the judicial procession, concluding with a "God save the Commonwealth." In some States formal bows are interchanged between bench and bar as the judges take their places, after which the court is opened by the customary proclamation and the bar then requested by the judges to resume their seats. The rules of official precedence are strictly observed in appellate courts. In entering the court room the chief justice advances first, and his associates follow in the order of the dates of their commissions, the senior associate justice taking his seat on his right, the second in seniority on his left, the third in seniority on the right of the senior associate justice, and so on; the junior in commission occupying the end seat on the left of the bench. The members of the Supreme Court and of the Circuit Court of Appeals of the United States have always worn black silk gowns. The members of the Supreme Court of South Carolina have worn them from a time antedating the Revolution. The New York Court of Appeals in 1877, at the request of the bar, preferred through David Dudley Field, adopted the practice,[Footnote: In 1903 it was extended to _nisi prius_ courts held by justices of the Supreme Court.] and the same thing has since been done by appellate courts in several other States. In one of these, Massachusetts, they had been worn in the colonial era. About 1760, Chief Justice Hutchinson introduced gowns and cassocks there on the Supreme bench, and also gowns, bands, and tie-wigs for lawyers who were admitted as barristers of the Superior Court.[Footnote: "Life and Works of John Adams," II, 133, note, 197.] The latter soon abandoned these, but gowns were retained by the judges until 1793.[Footnote: Publications of the Colonial Society of Massachusetts, V, 22; Amory, "Life of James Sullivan," I, 261, note.] In North Carolina gowns and bands were worn by the members of the Supreme Court in 1767.[Footnote: Proceedings of the Colonial Society of Massachusetts, VI, 389.] In New Jersey, the bar were at one time required to assume them by a rule of the Supreme Court, but the rule was vacated in 1791. At the first opening of the Supreme Court of the United States, in 1790, Chief Justice Jay wore a gown with salmon-colored facings on the front and sleeves, of the style then used by Doctors of Laws created by the University of Dublin, from which he had received that degree.[Footnote: 134 U. S. Reports, Appendix.] It has not since, in that or any other American court, been the practice for judges to wear academic hoods or other decorations on the bench. * * * * * Counsel, in addressing the court, rise and begin with "May it please the Court," "May it please your honor," or, before a court in bane, "May it please your honors." The term "you" would never be used to a judge on the bench; but that of "your Honor" would be employed. Great pains is taken by the officers in attendance to prevent anything on the part of the audience that could in any way disturb the proceedings, such as loud conversation or unnecessary moving from place to place. There is a good deal of antique form in the manner in which, under the direction of the clerk, prisoners are arraigned and juries are made up or "impanelled" for the trial of a cause. In charging a jury, the judge commonly rises and the jury do the same. When sentence is pronounced on a conviction for crime the prisoner is required to rise. In cases of capital offenses, he is asked by the judge if he has anything to say why judgment of death should not be pronounced against him. It is highly improbable at that stage of the cause that he should have anything to urge which has not been already considered, but the ancient English practice in this respect is still followed, for it is not absolutely impossible that something may have occurred since the verdict that would affect the judgment. * * * * * CHAPTER XIV TRIAL COURTS FOR CIVIL CAUSES The great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. It also has its seat in the trial courts of the States, for not only is the judicial power of the United States confined by the Constitution within narrow limits, but these have been made still narrower by the action of Congress from time to time. Most lawsuits never get to trial. The defendant generally has no defense, and is well aware of it. The suit is brought to obtain security or force a settlement. He employs no lawyer and lets things take their course. The result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court assumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. On the other hand, the plaintiff often does not care for a judgment. He has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. In such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit. In some States the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff's claim. In others this is not required, and such a statement is only furnished when specially ordered by the court. If the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. Occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. Their form is now generally regulated by statutes, and is much the same in most of the States, being based upon a system known as "Code Pleading," which originated in New York about the middle of the nineteenth century. It is simpler and less technical than the system under the common law which it replaced. If the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. Then, if he asserts that the plaintiff on his own showing has no case, or if the plaintiff asserts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. When, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount. In this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. This was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. In many States, however, the objections must always be particularized. In England demurrers are no longer used. Her Judicature Act of 1873 put an end to the common law system of pleading, reconstituted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. One of their orders, passed in 1883, abolished demurrers. In place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. American lawyers are not satisfied with the reasons which led to this change. They were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. The English judges are few and able. Such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the United States. Our trial courts are now generally held by a single judge. Until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. One of them would be a lawyer and the others not.[See Chap. VIII.] In cities the two side judges were generally aldermen. A tribunal thus constituted is better adapted in some respects to trying questions of fact than a single judge. It is a jury of three acting by a majority. But for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. In most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his associates. Occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. The expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. It naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary. We have not the need of several judges to hold a trial court, which is felt in many countries. They use them for a purpose which our juries supply. For similar reasons Americans have not seen any occasion for organizing special courts, such as are the German _Gewerbegerichte_ and _Kaufmannsgerichte,_ to try special classes of causes. A jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy. Petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. In some States he can summon in a jury of six and leave the facts to their determination. The pleadings before him are usually in the same form as in the higher courts. In jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. All questions of pure law are decided by the judge alone. All questions of pure fact are decided by the jury alone. All questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circumstances which they may find to have existed. The judge also has a large discretionary power in minor matters arising in the course of the suit. It is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced. No countries in the world have so artificial a set of rules of evidence as England and the United States. This is because in no other country is the right to a jury trial so extensive. Many of these rules date back to the early history of the English common law. It was a time of general illiteracy. The ordinary juror could not read or write. His powers of reasoning and discrimination had had little or no cultivation. It was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. It was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. But while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. A jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial. Much that in other countries is helpful in reaching a just conclusion is in this manner shut out in American courts. A man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. The person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. Before the trial the witness of the act dies. He was the sole witness. There is no other testimony to be had. Under our system of practice, those to whom the statement was made cannot be allowed to testify to it. Such testimony would be "hearsay." It would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. The law of evidence says that they ought not to be perplexed by questions upon questions. The tendency of American legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. The common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a God, or any witness having a pecuniary interest, in the event of the cause. An atheist or an agnostic could not testify. The plaintiff and the defendant could not. These restrictions have been almost everywhere repealed. The trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. He has similar authority to restrain the arguments of counsel within reasonable limits. A trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. If so, he may have an opportunity to correct it at a later stage of the proceeding. He has admitted evidence which should have been excluded. In his charge to the jury he may instruct them to disregard it, and his error will thus be cured. He has excluded evidence which should have been admitted. Before the case is closed he can change his ruling and allow it to come in. But so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. Counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. Their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court. * * * * * Trial courts generally sit during a greater number of hours in the day than appellate courts. This is particularly true when they are held for short terms in a country shire town. In the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. Formerly nine o'clock was a more common hour for opening court. In New York in 1829 the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[Footnote: Kennedy, "Memoirs of William Wirt," II, 231.] The modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed. The clerk keeps a docket-book in which each case returned to court is entered and numbered. The entry reads thus: John Doe Smith vs. Richard Roe Jones. Doe is here the plaintiff and Smith is the attorney who brought the suit for him. Roe is the defendant and Jones is the attorney who appears in his behalf. If there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[Footnote: Another book is kept for criminal cases, which are docketed as "The State _v._ John Doe," in others as "The People _v._ John Doe," and in the federal courts as "The United States _v._ John Doe."] From this docket trial lists are made up for each term or session of court. Assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. Several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon. In courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law. When a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. Sometimes the pleadings on both sides are read at length. The plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. The testimony of witnesses whose attendance cannot be had, which may include any living out of the State (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. In such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. Depositions are received in the same manner and subject to the same objections as oral testimony. In cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner." When the plaintiff's case has been thus presented, his attorney announces that he "rests." The defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. Should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that. At the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side. If the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot. If the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[Footnote: See Chap. XII.] In some States the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. In most States there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge. In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. But if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. He can, at common law and by the practice in most States, give his own opinion as to the weight of evidence on any point in controversy. The common law requires unanimity on the part of the jury before they can return a verdict. If it cannot be had they report a disagreement, and the case stands over for another trial. If they agree upon a verdict, it must, to be effective, be accepted by the court. This acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. If it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remittitur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. In some States, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause. When a verdict is accepted judgment is rendered in accordance with it. To this rule there are, however, certain exceptions. It sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. He then can ask the court not to render any judgment upon it. This is technically called a motion in arrest of judgment. Again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. In such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict. Verdicts are ordinarily given directly for the plaintiff or the defendant. Printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. Such a verdict is called a general verdict. Occasionally one of a different form is returned at the request of counsel and by the permission of the court. This is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. This is only proper when such a finding would have been simply a legal conclusion from these facts. A special verdict leaves it to the court to apply the law and render judgment as that requires. In many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. This is a common practice in equity, the case being sent to a "master in chancery" for this purpose. In cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee." The report of such a hearing sometimes is confined to the facts which are found to have been established. In other cases it may extend to a provisional decision of questions of law arising on those facts. The ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established. As to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. Improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. If it is accepted the facts found generally stand as conclusively established. Equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived. * * * * * CHAPTER XV PROBATE COURTS The English common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. Wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual. This difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. These were to be administered by some one as the "personal representative" of the former owner. This personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. He was styled an executor if designated by will; an administrator if there were no testamentary appointment. A man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. That when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. For the discharge of these the creditor must resort to his personal representative. His heirs occupied no such position. The administrator was always appointed by an ecclesiastical court and rendered his accounts to it. Long use and the existence of a State church with a regular judicial establishment, made such a system tolerable to the English people; but the new conditions under which those of them came who planted the American colonies made it both intolerable and impossible here. While most of the colonies had an established church, none had bishops or bishops' courts. The bishop of London claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. In the Crown colonies the instructions to the Governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. Some of the Governors were given _ex-officio_ full probate powers.[Footnote: "The American Jurisdiction of the Bishop of London," Transactions of the American Antiquarian Society, Vol. XIII, 188, 194, 197.] The same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. Such records, to attain their purpose, had to be public in the fullest sense. Nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the State. Deeds were first to be acknowledged before a magistrate. As to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. This, if organized for that special function particularly, is ordinarily styled a Court of Probate, occasionally a Surrogate's Court or Orphans' Court. It is sometimes given, and sometimes not given, a certain authority over the real property within the State while the estate is in settlement. All real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. Even if it has gone into the possession of an heir or devisee, the proper Probate Court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary. The formal establishment or "probate" of a will does not affirm the validity of its provisions. It simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. Commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury. The succession of particular persons to the property of the dead is not a matter of natural right. It rests upon positive law and is regulated by the authority of the government at its pleasure.[Footnote: United States _v._ Perkins, 163 U. S. Reports, 625.] Probate procedure is therefore wholly determined by local legislation and practice. In many States, probate jurisdiction belongs to the county courts. In others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. In a few these local courts are very numerous, all the towns of the State being distributed into small groups and each furnished with its Probate Court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. An appeal is given from his orders to a higher court of general jurisdiction. In practice such a system works fairly well. If there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. If a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it. The proper seat of administration is in the State and the local subdivision of the State where the dead man belonged. Proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the State. Real estate in another State can be affected by probate proceedings only if they take place there, by its authority. For that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration. Since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the State from the laws of which he derives his authority. He may take possession of the goods of the estate found in another State, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate Probate Court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment. * * * * * CHAPTER XVI BANKRUPTCY AND INSOLVENCY COURTS It is within the power of Congress to assume the exclusive regulation of bankruptcy proceedings throughout the United States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is in this country no real difference in meaning between the terms bankruptcy and insolvency. Each denotes a _status_ into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. The remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent. During most of the history of the United States there has been no uniform law on the subject of bankruptcy for the whole country. Three bankrupt Acts were enacted by Congress from time to time during the first century after the adoption of the Constitution. Each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had passed away. They were adopted as a kind of [Greek: seisachtheia] to help insolvent debtors to get on their feet again. A later Act passed in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large, 544; 32 _id._, 797.] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books. The prosperity of the United States rests mainly on the absolute free trade which exists between the several States. That necessarily results in innumerable credits extended by citizens of one State to those of others, and in immense property interests in each State belonging to non-residents. In case of insolvency full justice can not be worked out except through the legislative powers vested in the United States. The Act of 1898 allows any one except a corporation to become a voluntary bankrupt. Practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $1,000. This is so even if a State court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings. Petitions in bankruptcy are preferred to a District Court of the United States. Each bankrupt estate is put in charge of one or more trustees. They can maintain actions to recover or protect it, as a general rule, in the courts of any State as well as in those of the United States.[Footnote: See Bardes _v._ Bank, 178 U. S. Reports, 524.] Their title does not extend to anything which by the laws of the State where the bankrupt belongs is exempt from his creditors. Such exemptions differ greatly in different parts of the country. In some States certain property of the value of $5,000 may be exempt; in others the amount which the debtor can retain is comparatively trifling. There is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[Footnote: Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.] The bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. If such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court. A discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. It does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings. Whenever there has been no national bankruptcy law in existence, the States have been held to be free to pass such insolvent laws as they might think proper. During the existence of a national bankruptcy law no State insolvent law can be of any force which covers the same field.[Footnote: Ogden _v._ Saunders, 12 Wheaton's Reports, 213; Tua _v._ Carriere, 117 U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports, 709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded or suspended as a necessary effect of the enactment of the Act of Congress, although that contains no express provision to that effect. Most of the States have on their statute-books provisions for a permanent system of insolvency proceedings. In some they are as favorable to the debtor as the United States bankrupt law of 1898: in more they are less favorable. Generally such proceedings are brought before a court of special jurisdiction, constituted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. In the older States it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims. The relief which the States are competent to give either to debtor or to creditor is very inadequate. The discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. None are so subject except those belonging in the State, or actually taking part in the proceedings. Every bankruptcy or insolvency proceeding is a great lawsuit. The discharge is the final judgment in it. It can bind none who are not parties to the action. Only those are parties who were bound to appear, or who did appear. No one belonging to any other State or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. Any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. But as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very State by authority of which it was granted. On the other hand, the creditor gets less aid from the State courts than a trustee in bankruptcy. The trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. The trustee or assignee in insolvency, acting under the appointment of a State court, can only sue within that State, unless his title has been fortified by a conveyance from the insolvent which would be good at common law. So far as his title rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction. *[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337; Hale _v._ Allinson, 188 U. S. Reports, 56.]* If, therefore, as is commonly true in estates of any magnitude, part of the assets can only be recovered by suit in other States, there must be ancillary insolvency proceedings there, to clothe the principal assignee with the right of action. Should the insolvent be the owner of land in another State, the title to this can only be transferred in accordance with its law, and a foreign assignment in insolvency will be wholly ineffectual. Nor will ancillary proceedings in insolvency be allowed to prejudice the rights of citizens of the State in which they are instituted to any security which they might otherwise have for debts due them from the insolvent.[Footnote: Ward _v._ Conn. Pipe Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers' Reports Annotated, 706; 71 Am. State Reports, 207.] The right, however, of every sovereignty to postpone claims under a foreign bankruptcy or insolvency to the interests of its own people is modified in the United States by the constitutional provision that the citizens of each State are entitled to all privileges of citizens in the other States.[Footnote: Blake _v._ McClung, 172 U. S. Reports, 239.] * * * * * CHAPTER XVII CRIMINAL PROCEDURE The American system of criminal procedure rests on the principle that the government should decide on the propriety of beginning all prosecutions, and then should bring and maintain, at its own expense, such as it may deem proper. The first step ordinarily is the filing by an informing officer of a written complaint in the office of some court or with some magistrate, upon which a warrant of arrest issues as of course. In some jurisdictions original informations in a trial court, as distinguished from indictments, can only be filed by leave of court first obtained. Such is the rule in the courts of the United States.[Footnote: United States _v._ Smith, 40 Federal Reporter, 755.] There is no such preliminary consultation with judicial officers as characterizes European criminal procedure. The prosecuting officer assumes the entire responsibility of initiating the prosecution and of giving it the particular form that it may assume. He commonly acts only on such matters as are officially brought to his attention by constables or other officers of police. It is rare that the party injured by an offense complains to him personally. Hence many of the lesser offences go unpunished, particularly in large cities, because the police fail to report them, on account of favoritism or corruption. The warrant refers to the complaint for its support. Between them, the offense charged, the person accused, and the thing to be done by the officer who is to make service must be particularly stated. "General warrants," that is, warrants of arrest or seizure, not specifying the person who is to be arrested, nor the particular place where the seizure is to be made, are expressly forbidden by the fourth amendment of the Constitution of the United States as respects federal courts, and as respects those of the States, are generally prohibited by their Constitutions. Any private individual may, by night or day, arrest without warrant one whom he sees committing a felony or a breach of the peace or running off with goods which he has stolen. If he knows that a felony has been committed and has reasonable grounds for suspecting that it was the act of a certain person, he may arrest the latter, although without personal knowledge of his guilt. A sheriff, constable, or other peace officer may arrest without warrant any one whom he has reasonable ground for suspecting to be guilty of a felony, although it may turn out that no such felony was ever committed. For any ordinary misdemeanor he could not, at common law, arrest without a warrant, unless he personally witnessed the wrongful act or was near enough to hear sounds indicating what was being done. In practice, officers of local police arrest freely on mere suspicion and with no personal knowledge either that any offense has been committed or that, if any, the person taken in charge was connected with it. The only risk which they run is of an action for damages, and that is slight. If one were brought and they showed that they acted in good faith and not wholly without cause, the amount recovered would probably be very small, and in any case it would be difficult to collect a judgment against one of them, as they are generally men of small means. In some of the original States a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. This was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete. It is one of the distinguishing features of the English system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. In doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[Footnote: See Maitland, "Justice and Police," 141.] At common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. The complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution. In some of our States, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. In many there are statutes authorizing _qui tam_ actions to be brought by any one. These are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. The term _qui tam_ comes from the Latin terms of the old English writ used for such proceedings, in which the plaintiff describes himself as one _qui tam pro domino rege quam pro seipso in hoc parte sequitur_. The plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the State, or of some other public corporation or officers designated by the statute. He is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. In proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[Footnote: Canfield _v._ Mitchell, 43 Conn. Reports, 169.] The action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. In such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. If the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. If he fails, he is personally liable to the defendant for the taxable costs of the action. Under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual. The tendency of modern American legislation is toward placing the collection of penalties for misdemeanors wholly in the hands of public officers. The _qui tam_ action is certainly a cheap mode of enforcing laws, and one likely to be pressed to a prompt issue. As observed by the late Judge Deady, "prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel."[Footnote: United States _v._ Griswold, 24 Federal Reporter, 361; 30 _id_., 762.] But they appeal to sordid motives and are liable to abuse. One who is exposed to such a suit often gets a friend to bring it, in order to forestall proceedings by others or by the State, and with a view to delaying or defeating the collection of the penalty. These considerations induced Parliament to restrict the remedy in England as early as the reign of Henry VII, and have proved of equal force in course of time in the United States. Justices of the peace and local municipal courts of criminal jurisdiction are generally given power to deal finally with a few petty offenses, subject to a right of appeal to a court where a jury trial can be had. As to all others, their function is, when the warrant of arrest has been executed, to inquire whether there is probable cause for holding the defendant to answer to the charge which has been made against him in a higher court, and if they find that such cause exists, to order him to give sufficient security that he will appear before it for trial. The question is not whether the evidence satisfies them of his guilt, but simply whether it is sufficient, in their judgment, to make it proper to send him where the charge can be more thoroughly investigated by those who have the right to condemn or to acquit. In making this inquiry, they hear both sides, if the defendant has any testimony to offer. In most States he is now a competent witness in his own behalf, provided he desires to testify. He cannot be interrogated in any court or before any magistrate without his consent. This is a weakness in the American system of criminal procedure. Under the English system of prosecutions by private persons, there are greater objections to subjecting an accused person to an examination, and it can now only be had by his consent.[Footnote: Maitland, "Justice and Police," 129.] The certainty in England also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the Attorney-General or the Director of Public Prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. The magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law. In the United States local prosecutors are often of a different party from that which controls the State or the United States. They have no close connection with those administering the general affairs of the government. They hold office for fixed terms, not dependent on any shifting of parliamentary majorities or change of ministry. Committing magistrates are in a similar position. They are also in many cases trained lawyers. If our Constitutions could be so modified or so construed as to allow them to ask the accused the questions that the sheriff who makes the arrest or the reporter who hurries after him to the jail is sure to ask, there are many reasons for believing that it would oftener prove a safeguard to innocence than an occasion for extorted and perhaps inconsiderate or misunderstood admissions. And be that as it may, it would certainly lead up to important clues, and frequently bring out admissions that were both unquestionably true and necessary to establish guilt. The fifth amendment to the Constitution of the United States, and similar provisions in the various State Constitutions, preclude, so long as they stand, any radical reform in this direction. They speak for a policy that was necessary under the political conditions preceding the American Revolution, but which is out of harmony with those now existing in the United States. The interests of society are greater than those of any individual, and yet it is with us the State that is deprived in public prosecutions of an equal chance with the accused. While burdened with the necessity of proving his guilt beyond a reasonable doubt, it cannot, according to the prevailing judicial opinion in this country, so much as ask him at any stage of the prosecution where he was at the time when the crime charged was committed. The terms of our Constitutions are not such as necessarily to demand the construction which has been generally given them by the courts. They have been commonly interpreted with a view to making them as helpful as possible to the accused.[Footnote: Boyd _v._ United States, 116 U. S. Reports, 616.] Provisions against compelling him to testify have been treated as if they forbade requesting him to testify. They would seem, on principle, quite compatible with a procedure under which the committing magistrates should in every case ask the defendant when first brought before them whether he desires to make a statement, telling him at the same time that he can decline if he chooses. Should he then make one, it should be written down at length in his own words, read over to him for his assent or correction, and properly attested. Many a guilty man is now acquitted whose conviction could have been secured on what such a paper would have disclosed or have given a clue to ascertaining. Such an inquiry has long been the English practice. The hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. Each party is apt to wish time to prepare for it. Meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. Here our practice differs from that of an English court of inquiry. While there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[Footnote: Maitland, "Justice and Police," 131.] The essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. All our Constitutions forbid the taking of excessive bail. The sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. In fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. If too large an amount is demanded, the defendant can get relief on a writ of _habeas corpus_ issued by some superior judge. This privilege of bail in most States extends to, or at the discretion of the court may be allowed at, any stage of a cause, not capital, even after a final judgment and sentence, provided an appeal has been allowed with a stay of execution. Bail is given orally or in writing, according to the practice of the particular State. When given orally, it is termed a recognizance. This is entered into by the personal appearance of those who are to assume the obligation before a proper magistrate or clerk of court, and their due acknowledgment before him that they do assume it. He makes a brief minute of the fact at the time, from which at any subsequent time he can make up a full record in due form. When bail is given in writing, the obligation is prepared in behalf of the government and executed by the parties to it. Whoever gives bail as surety for another is by that very fact given a kind of legal control over him. He can take him into actual manual custody without any warrant, and against his will, for the purpose of returning him to court and surrendering him to the sheriff. This right is a common law right, arising from the contract of suretyship, and is not bounded by State lines. If the principal absconds from the State, the surety can have him followed and brought back without any warrant of arrest. The amount of the bail, should it be forfeited, is payable either to the government or to some other representative of the public interests, as may be prescribed by statute. If the sureties have any equitable claim to relief by a reduction of the amount, there is often given by statute or judicial practice a right to the court in which the obligation was given or before which its enforcement is sought to grant a reduction from the sum which would otherwise be due upon it. When a committing magistrate requires the defendant to give bail to appear in a higher court, and he does not give it, he will be committed to jail to await his trial there. In this court he is sometimes tried on the complaint upon which he was originally arrested: oftener a new accusation is prepared. This may be either an information or an indictment. At common law, no one could be tried for a felony unless a grand jury were first satisfied that there was good ground for it. The grand jury consisted of not more than twenty-four inhabitants of the county, and in practice never of more than twenty-three, summoned for that purpose to attend at the opening of a term of court. To authorize a prosecution the assent of twelve of them was required. They heard only the case for the prosecution, and heard it in secret, after having been publicly charged by the court as to the nature of the business which would be brought before them. The court appointed one of them to act as their foreman, and he reported back their conclusions in writing, and in one or the other of two forms--by presentment or indictment. A presentment was a presentation, on their own motion, of an accusation against one or more persons. They were the official representatives of the public before the court, and it might well be that offenses had occurred, and become matters of common notoriety, prosecutions for which no one cared or dared to bring. Such a proceeding was comparatively rare. The common course was to pass only on such written accusations as others might submit to their consideration. These were called bills of indictment. If the grand jury believed that there were sufficient grounds for upholding any of them, their foreman endorsed it as "A true bill," and it then became an indictment. If, on the other hand, they rejected a bill of indictment as unfounded, the foreman indorsed it as "Not a true bill," or with the Latin term "_Ignoramus_," and this was the end of it. The organization and functions of the American grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. In the Federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the Constitution of the United States all charges of infamous crimes must be, prosecuted by presentment or indictment. In most of the States the intervention of a grand jury is requisite only in case of serious offenses; in some only in capital cases. It is obvious that it is less needed here than in England, since here it is not within the power of any private individual to institute criminal proceedings against another at his own will, but they are brought by a public officer commissioned for that very purpose and acting under the grave sense of responsibility which such authority is quite sure to carry with it. The grand jury, however, has its plain uses wherever political feeling leads to public disorder. It has also, since the Civil War, been found an effective restraint in some of the Southern States, whether for good or ill, upon prosecutions for violations of certain laws of the United States, brought against members of a community in which those laws were regarded with general disfavor. Prosecutions by information are those not founded on a presentment or indictment. The information is a written accusation filed in court by the prosecuting officer. In certain classes of cases, the leave of the court must be first asked in some jurisdictions. It is not necessary that it be supported by any previous statement or complaint under oath. The officer who prepares it acts under an oath of office, and that is deemed sufficient to give probability to whatever charges he may make. If the defendant has already been bound over by a committing magistrate, such an information may take the place of the original complaint on which the arrest was made. If he has not yet been arrested, or if he was arrested and discharged by such a magistrate, the filing of an information is accompanied by a request for the issue of a warrant for his arrest from the court. Such a paper is called a bench warrant, and is granted whenever necessary, whether upon a presentment, indictment, or information. An information may be amended by leave of the court at any time. A presentment or indictment cannot be. They, when returned to court, are the work of the grand jury, and they end its work. An amendment of a legal process can logically be made only by the hand which originally prepared it. This rule leads to the escape of many a criminal. If prosecuted by indictment, the case against him must be substantially proved--in whole or part--as there stated, or he goes free. Prosecuting officers therefore naturally prefer to proceed upon information whenever the law permits it. The intervention of a grand jury is also often the necessary cause of a delay alike prejudicial to the State and to the prisoner. It can only be called in when a court is in session, by which it can be instructed as to its duties and to which it is to report its doings. Months often elapse in every year when no such court is in session. For this reason, in case of a poor man under arrest on a charge of crime, who cannot furnish bail, it would often be much better for him were his liability to be brought to trial to be settled promptly by a single examining magistrate. At the hearing in that case also he has a right to be present and to be heard. Before a grand jury he has no such right. In most States, the great majority of indictments are against those who have already been committed on a magistrate's warrant to answer to the charge, should an indictment be found. The accused thus has two chances of escape before he can be put on trial for the charge against him: one by a discharge ordered by the committing magistrate, and one by the refusal of the grand jury to return "a true bill." A grand jury is more apt to throw out a charge as groundless than a single magistrate. He feels the full weight of undivided responsibility. If he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. If he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. He acts also in public. The whole community knows or may know the proofs before him, and will hold him to account accordingly. On the other hand, in the grand jury room all is secret. The prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. No one outside knows who may vote for and who against the return of an indictment. Every opportunity is thus afforded for personal friendship for the accused or business connection with him to have its influence. Judges know this, and in their charge often emphasize the importance and gravity of the duty to be performed. In 1903, the prosecuting officer in one of the small counties in Kentucky had prepared indictments against several men of some local prominence for arson and bribery. A special grand jury was summoned to act upon them. There was reason to expect some reluctance on the part of several. Of the witnesses for the State some were no less reluctant. There was great public excitement in the court town. One witness came there over ninety miles by rail hidden, for fear of his life, in a closed chest in the car of an express company. The grand jury were told by the court that they must make their inquiry a thorough one and indict without fear or favor every person in the county who ought to be indicted. "If," the judge added, "the evidence calls for indictments and you don't make them, they will be made anyway. If you do not do your full duty, I will do mine by assembling another grand jury." They did theirs under these stirring injunctions, and the indictments were promptly found. After the indictment or information comes the arraignment. This is bringing the defendant before the court and, after the charge made against him has been read, directing him to plead to it. Before the plea is entered, if he has no counsel, he is asked if he desires the aid of one, and if he responds that he does (or should he not, if the court thinks he ought to have counsel), some lawyer will be assigned to that duty. Some of the younger members of the bar who are present are generally desirous of being so assigned to defend those who have no means to employ such assistance. The court ordinarily makes the assignment from among their number, but in grave cases often appoints lawyers of greater experience and reputation. No one who is so assigned is at liberty to decline without showing good cause for excuse. A small fee is often allowed by statute in such cases from the public treasury. Statutes are also common providing that witnesses for the defense may be summoned at the cost of the government, if the defendant satisfies the court that their testimony will be material, and that he is unable to meet this expense. In the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial. Whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. Each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. If a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. In grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. A capable judge will keep such an inquiry within close limits. In 1824, an indictment for murder was found in Kentucky against a son of the Governor. The case was one which excited great public interest, and was talked over from one end of the State to the other. The result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. The legislature was finally appealed to for relief and passed a statute that an opinion formed from mere rumor should not be a ground of challenge. The case was then, in 1827, taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII, 336.] When a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. This has sometimes been carried to the extent of trickery, particularly in some of the Southern States. Agents have been sent over the county to see every man capable of jury service. There is some ostensible reason given for the call. He is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. This naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained. In every criminal case the defendant's guilt must be proved beyond a reasonable doubt. A mere preponderance of evidence is not enough. In other respects the rules of evidence are applicable which obtain in civil cases. If a verdict of Not Guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the State for errors of law committed on the trial. No such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. This would be to put the defendant twice in jeopardy, which our Constitutions generally forbid. Even under the practice prevailing in the Philippine Islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[Footnote: Kepner _v._ United States, 195 U. S. Reports, 100.] If the verdict is one of Guilty, the sentence is pronounced by the judge. He generally has a broad discretion as to the extent and nature of the punishment. For many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. For most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. In a number of States of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circumstances of the offense, the character of the prisoner, and his conduct since his sentence. A considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of a _minimum_ term. It is doubtful if such a change would satisfy the constitutional requirement of a trial by jury. That in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. Can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? Judgments are to ascertain justice. To do this they must be themselves certain. In a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. It may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. If so, ought not the fate to be meted out to them by judicial authority? Can anything less than that be considered as due process of law? An experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. The sentence is not pronounced until they have been fully heard as to all circumstances of extenuation, nor until the government has been heard both as to these and as to any circumstances of aggravation. The sentence, if the offense be a grave one, cannot be pronounced except in the presence of the convicted man. He has an opportunity for the last word. Judges who are neither able nor experienced frequently impose sentences too light or too severe. We have too many such judges in the United States. The real remedy for the evil is to choose better ones. As between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. He ought therefore to be best able to fix the term of punishment. The punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. For graver offenses both may be inflicted: for murder, and in some States for a very few other crimes the penalty is death. The policy of the older States long was to require those whose offenses were directed against property to make good the loss of the injured party. Whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. Every colony used it. It was authorized by the original Act of Congress in 1790 on the subject of crimes, and was not abolished for the courts of the United States until 1839. It was provided for in the early statutes of most of the States, and in some still is. Until 1830, it was the only mode of corporal punishment allowed in Connecticut for the general crime of theft. For boys it is often the only punishment that can properly be administered. To fine them is to punish others. To imprison them is, in nine cases out of ten, to degrade them beyond recall. Virginia, in 1898, reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. Such a statute seems absolutely unobjectionable from any standpoint. It is often asserted that whipping is a degrading and inhuman invasion of the sanctity of the person. To shut a man up in jail against his will is a worse invasion. But as against neither is the person of a criminal convict sacred. He has justly forfeited his right to be treated like a good citizen. Whether whipping is a degradation or not must depend much on the place of its infliction. The old way in this country, as in England, was to inflict it in public. This puts the convict to unnecessary shame. Let him be whipped in private, and his only real degradation will be from his crime. So inhumanity is needless. A moderate whipping only should be allowed. That is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement. Of late years there has been a decided movement in the United States toward a return to the penalty of whipping for atrocious cases of assault or offenses by boys.[Footnote: See Paper on "Whipping and Castration as Punishments for Crime," _Yale Law Journal_, Vol. VIII, 371, and President Roosevelt's Message to Congress in December, 1904.] It is probable that it will find more favor hereafter in the South as a punishment for negroes. Most of their criminals are of that race. The jails have no great terrors for them. They find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. But they are sensitive to physical pain. A flogging they dread just as a boy dreads a whipping from his father, because it hurts. The South may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. No such criticism could fairly be made. Confinement in jail is involuntary servitude, and involuntary servitude is slavery. Whipping is a substitute for it: it saves from slavery. In several of the Southern States, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. This plan prevails in Georgia and Arkansas to such an extent that very few are confined in the penitentiary. The convicts in these States are mainly negroes. When, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the State, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. Similar objections do not lie in their employment on State farms, and in North Carolina and Texas this has been tried with considerable success.[Footnote: See "Bulletin de la Commission Pénétentiaire Internationale," 5th series, II, 179.] Special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the States and in the District of Columbia during the past few years. The judge holding such a "Juvenile Court" or "Children's Court" is expected to deal with those brought before him rather in a paternal fashion. An officer is generally provided, known as a Probation Officer, to whom the custody of the accused is largely committed both before and after trial. He is to inquire into each case and represent the defense at the hearing. In case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended. For errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. Until 1891 this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. It was so in Delaware until 1897. In some States there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal. It is there held that the common constitutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. The writ of error is a stage in the original prosecution. One acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. What these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. Such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[Footnote: State _v._ Lee, 65 Conn. Reports, 265; 30 Atlantic Reporter, 1110; 48 American State Reports, 202; Kent, _J_., in People _v._ Olcott, 2 Day's Reports, 507, note.] In other States such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[Footnote: People _v._ Webb, 38 California Reports, 467.] This distinction is approved by the Supreme Court of the United States.[Footnote: Kepner _v._ United States, 195 United States Reports, 100, 130.] For errors in conclusions of fact the defendant, in certain cases, has a remedy on a petition for a new trial, but in no case can the State ask for one. This is true even though the trial was not had to a jury. There is no doubt that new trials are too often granted in the United States in favor of those who have been convicted of crime. Particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. A verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[Footnote: See Paper on "New Trials for Erroneous Rulings upon Evidence," by Professor J. H. Wigmore, in the _Columbia Law Review_ for November, 1903.] To release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment. Appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. About eleven thousand persons were convicted of felonies in the County Courts of New York during the five years from 1898 to 1902, inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[Footnote: Nathan A. Smyth, _Harvard Law Review_ for March, 1904.] In Massachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the Supreme Judicial Court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years 1902 and 1903 only two new trials were granted.[Footnote: _Law Notes_ for December, 1904.] A comparison of the number of those put to death in the United States for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results: Executed by Judicial Sentence. Lynched. Total. 1901 118 125 243 1902 144 96 240 1903 123 125 248 A large majority of those lynched were negroes, and met their fate in the South. It is extremely difficult to secure a conviction of those who take part in such acts of violence. They commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. The offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. Many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. Not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal. Such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the United States are so often disgraced. It may be added that out of the Southern States they are quite rare, and in the Northeastern States substantially unknown. Of the one hundred and four lynchings in 1903, only twelve occurred in the North or West. * * * * * CHAPTER XVIII THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT A public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. Such an one is a judge only when he is holding court. When it is adjourned, no court exists of which he could be a judge. Justices of the peace and parish judges are officers of this description. But ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. To such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session. The writ of _habeas corpus_, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. In the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." While sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it. Statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. In such a case no very definite line is drawn between what judicial business the judge does and what the court does. While the proper and normal constitution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. A District Judge of the United States has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[Footnote: The U. S. _v._ The Schooner "Little Charles," 1 Brockenbrough's Reports, 382.] The judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. These are writs directing some one to refrain from doing a certain act. They generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. The need of an injunction is often immediate. It would be worthless unless promptly granted. When, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. Whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. It may, in urgent cases admitting of no delay, be issued _ex parte_, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken. A similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. If the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. So in case of an insolvent debtor his estate may, under certain circumstances, be placed in a receiver's hands by a summary order, issued out of court. It may be added that by the statutes both of the United States and of all the States many powers of a _quasi_-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it. * * * * * CHAPTER XIX APPELLATE COURTS For each of the States and Territories as well as for the United States there is one supreme court of appellate jurisdiction. The Supreme Court of the United States can entertain original actions of certain kinds.[Footnote: See Chap. IX.] A few also of the State supreme courts of appeal have a limited original jurisdiction. This is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature of _quo warranto_ and writs of mandamus. The term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits. It is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. In this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[Footnote: See the _Federalist_, No. LXXXI.] If it does not appear from the record of the lower court that any of the errors that may be claimed (or "assigned," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed. Appellate courts are of many kinds. Some are such exclusively; some mainly. In others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. An appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. So the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is principally occupied in the exercise of an original jurisdiction. When the American colonies passed into States, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. The judicial committee of the Privy Council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[Footnote: See Chap. I.] The uniformity of result thus obtained was acknowledged to be advantageous. It was now necessary to replace them by American courts of last resort, and it was not difficult in doing so to improve upon the English model. The time had come for separating, as far as it could conveniently be accomplished, judicial from political power. Virginia was the first to act. A few days before the Declaration of Independence she adopted a Constitution (under which the government, was carried on until 1830, though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a Supreme Court of Appeals whose judges should hold office during good behavior, and be ineligible to the Privy Council or General Assembly. This divorce of judiciary and legislature was not the plan universally followed. New Jersey, in which as a colony the Governor and Council had possessed an appellate power like that vested in the English House of Lords, was so well satisfied with this arrangement as to continue it in her Constitution of July 3, 1776, and up to the present time puts upon her Supreme Court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers. New York, in her Constitution of 1777, pursued a somewhat similar plan. Her highest court was one "for the trials of impeachments and the correction of errors." Its members were the Senate with the Chancellor and judges of the Supreme Court. When a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. This scheme was adhered to with little modification until 1846. What made it tolerable was that many of those elected Senators were naturally lawyers, and that to be in the Senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge. Able and learned opinions were pronounced by such men in exercising their judicial functions, and some of them in the New York reports are still frequently the subject of reference as clear and satisfactory statements of legal principles. Connecticut, in 1784, when she instituted for the first time a court of last resort, made it up of the Lieutenant Governor and the twelve Assistants, and soon added to it the Governor himself. A plan of this kind was likely to work in that State, as in New York, better than it looked. Lawyers by this time had come to fill most of the higher offices of state. Although the Assistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. A majority of the Assistants were always members of the bar. They were also Federalists from the beginning of party divisions in the country. Naturally, the Republicans found such a state of things intolerable. All the power of government in Connecticut, said one of those who were celebrating Jefferson's second election to the Presidency in 1804, "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. These seven men virtually make and repeal laws as they please, appoint all the Judges, plead before those Judges, and constitute themselves a Supreme Court of Errors to decide in the last resort on the laws of their own making. To crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are Judges." Attacks like this were too just to be resisted, and two years later the Governor, Lieutenant-Governor and Assistants were replaced by the Judges of the Superior Court. Constitutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. An appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. Under the Constitution of the United States a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older States it cannot be in cases where it was not a matter of right prior to the adoption of their Constitutions. The verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up. Where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the United States and in many of the States, be reversed on any point on appeal. For this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above. Except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one. In some States an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. In many States errors in law of petty courts may be reviewed in higher trial courts. In a few of the larger ones, as in the United States,[Footnote: See Chap. IX.] errors in law of the higher trial courts, in a considerable class of cases, are finally disposed of in an intermediate appellate court, constituted to relieve the court of last resort from an overweight of business. * * * * * Ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. In some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. There are many judges who think that such a practice should be universally adopted. It would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. If one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. But the trial judge is not in a position that naturally leads to an unprejudiced judgment. The appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. The judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. He could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. In view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts. * * * * * The opinions and judgments of all American courts of last resort are officially reported for publication. At first they were not so reported. The earliest volume of American judicial decisions (Kirby's) was published in 1789 as a private venture. A few years later the States began to provide official reporters for their highest courts and soon assumed the expense of publication. There are now more than fifty current sets of federal and State reports, the annual output being about four hundred volumes, containing 25,000 cases. The mere indexing and digesting of these reports for the use of the bench and bar has become a science. While consulted by comparatively few who are not connected with the legal profession, they constitute a set of public records of the highest value to every student of history and sociology.[Footnote: See "Two Centuries' Growth of American Law," 6.] It is the custom to prefix to the report of each case a head-note stating briefly the points decided. Ordinarily this is the work of the reporter. In a few States the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. Occasionally the head-note contains statements not supported by the opinion. In such case the opinion controls unless it is otherwise provided by statute. It has not been the usual custom of English judges of courts of last resort to write out their opinions. They have commonly pronounced them orally and left it to the reporters to put them in shape. The consequence has been that English reports have a conversational tone, and are not free from useless repetition. This has been not only a matter of tradition but of necessity. The English judges have always been few in number. Their time has been largely occupied in the trial of cases on the facts. It is only in recent years that certain judges have been set apart especially for appellate work. American judges, on the other hand, are numerous. There is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate State. Combination of all of them into one empire would make it easy to reduce the judiciary to a tithe of its present numbers. Their salaries are part of the price we pay--and can well afford to pay--for our peculiar system of political government, under which every State is an _imperium in imperio_. The ever-increasing number of our States, each with a body of law not exactly like that of any other, and each with a written Constitution which is its supreme law, requires a court of last resort in each. Experience tends to show that it ought not to be composed of less than five. There should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion. In most of the States the court of last resort is not overworked. In some the judges find time to do considerable circuit duty in the trial of original causes. This keeps them in touch with the daily life of the community, and is so far good. On the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. There is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. For these reasons it has now become common for the States to confine their appellate judges exclusively to appellate work. The time, therefore, which the English judge gives to circuit duty the American judge can give to writing out his opinions with all the art and care which he can command. He speaks in most instances to a small audience--the bar alone. But it is the bar of this year and the next year and the next century. Every volume of reports is part of the history of American jurisprudence and of American jurisprudence itself. Occasionally some case arises which involves large political questions, or one of especial local interest. The opinion is then read more widely. The newspapers seize it: reviews take it up. It is not always easy to anticipate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other States; and what drop unnoticed except by the lawyers in the cause. A judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. A certain style of American judicial opinion has thus grown up. It is dogmatic. It offers no apologies. There is neither time nor need for them. The writer speaks "as one having authority." He does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found. He is as brief as he dares to be without risking obscurity. It is undoubtedly true that many reported opinions are of a very different type. Some of Marshall's assume a tone of apology; but in his day it was needed. He struck at cherished rights of States, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the United States as a national force. Many of those of judges of inferior ability do not rise above their source. They are verbose, repetitious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[Footnote: See, for instance, Mincey _v._ Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel, _ibid_., 415; Hall-Moody Institute _v._ Copass, 108 _id_., 582.] possibly unfair in describing the claims that are overruled. But, as a whole, Americans need not fear to compare the reports of their courts with those of foreign tribunals. No judicial opinions, viewed from the point of style and argument, rank higher than some of those written by American judges. Those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. Nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him. Nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. If unsound reasons for those conclusions are given, defective illustrations used, or unguarded assertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[Footnote: Exchange Bank of St. Louis _v._ Rice, 107 Mass. Reports, 37, 41. This position is not, universally accepted. See Merriman _v._ Social Manufacturing Co., 12 R. I. Reports, 175, 184.] When Marshall became Chief Justice of the United States he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were Republicans. This, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[Footnote: Thayer, "John Marshall," 54.] In some of the State Supreme Courts in early days, it was the practice for the Chief Justice to deliver an opinion in every case, but his associates frequently added concurring or dissenting ones. Of late years the business of appellate courts in the United States and in most of the States is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions. It is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is assigned, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. At a subsequent conference each judge is called upon by the Chief Justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. This practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. Prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one manuscript copy around to each in succession for his endorsement of approval or disapproval. In some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[Footnote: See for an example of this Wilcox _v._ Heywood, 12 R. I. Reports, 196, 198.] Our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal. Oral arguments are also usually heard, except in a few States where the press of business renders it practically impossible except in cases of special importance. Such a press occurs mainly in the largest States, but exists also in some whose Constitutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court. In the Supreme Court of Georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. In most States he has substantial costs to pay. These mainly are to meet the expense of printing the record sent up from the court below. A single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. The appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. The cost involved is occasionally several thousand dollars. The party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. There is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court. In the smaller States the judges have time to enable all to study each case with care. In the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. He is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. The assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. At the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second. Appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation. They are seldom in session more than five days in the week. The cases before them are not usually assigned for argument on particular days. A list is made up of all which are ready to be heard, numbered in order, the oldest first. They are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. Often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. In the Supreme Court of the United States this is the practice, and the number is ten. In some of the States it rises as high as twenty. At the first consultation over a case which has been argued, the Chief Justice (unless a special assignment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. If there is any serious disagreement the matter is generally allowed to stand over for further discussion later. At some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. This distribution is sometimes made by the Chief Justice and sometimes by agreement, or according to the arrangement of the docket. Until the opinion has been finally adopted it is not usual to announce the decision. Not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. Still more often the draft opinion is altered in material points to meet criticisms and avoid dissent. Dissenting opinions are comparatively rare, particularly in courts where there is a Chief Justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[Footnote: Perhaps tact counts the most, for the Chief Justice has the advantage of hearing the opinions of all his associates at all consultations before he gives his own. Senator Hoar makes a pungent comment on Chief Justice Shaw's want of it, in his Autobiography, II, 413.] Every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. Law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. For these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their associates. They are willing to distrust themselves rather than them. Not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[Footnote: A striking instance of this is the case of Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State Reports, 401; 94 _id_., 302; 102 _id_., 370; 113 _id_., 126; 6 Atlantic Reporter, 453.] More than eighty out of every hundred of the opinions delivered in the courts of last resort of each State of the United States, excepting one (New Jersey), and contained in the last volume of the reports of each published prior to June, 1904, were unanimous. In New Jersey seventy-three out of every hundred were. In two States, Maryland and Vermont, there was dissent in but two out of every hundred cases, and in all the States taken together, out of nearly 5,000 cases decided a dissent is stated in 284 only. This made the proportion of unanimous decisions of State courts, in the country at large, to those in which there was dissent nineteen to one.[Footnote: _Law Notes_ for June, 1904, p. 285.] A dissenting judge sometimes files an opinion which is then printed in full in the reports. More often the fact of his dissent is simply noted. In cases involving constitutional questions it is rare for a dissenting judge not to state his reasons. The importance of the subject justifies if it does not demand it. As Mr. Justice Story once observed, "Upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[Footnote: Briscoe _v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.] The official reports of the courts have some of the faults of officialism. They often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. It requires rare gifts to make a good reporter of judicial opinions. He must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close analysis of abstract reasoning.[Footnote: Four of the reporters of the Supreme Judicial Court of Massachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. A good reporter always has the making of a good judge.] Many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year. The modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to competition in reporting. Private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. This work began in 1879. The result has been that the series of official reports of the Circuit Court of Appeals of the United States has been discontinued, and that the decisions of all our other appellate courts are now twice reported. One publishing house has grouped the States into clusters, issuing for each cluster its own series of reports, known, respectively, as the Atlantic, the Northeastern, the Northwestern, the Southeastern, the Southern, the Southwestern and the Pacific Reporters. The States forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. Thus Massachusetts, which would naturally be assigned to the Atlantic Reporter, has been put into the Northeastern; and such inland States as Kansas and Colorado find their place in the Pacific Reporter. All the reported decisions of all the States in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. In this way, for a trifling sum a copy of any opinion of any American court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own State but of several others having not unlike laws and institutions. The multiplication of American reports makes judicial precedents of decreasing value to the American lawyer. English cases are cited as authority far less frequently than they were before the middle of the nineteenth century. The omnipotence of Parliament and the free hand with which that has been exerted to change the common law have tended to separate English from American jurisprudence. Our written Constitutions have perpetuated here ideas of government and property which England does not recognize. Hence American precedents are of more use than English. But American precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. In each State its own reports are the expression of its ultimate law. With these every member of its bar must be familiar. But the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[Footnote: See a valuable statistical article on "Reports and Citations" in _Law Notes_ for August, 1904.] Not every opinion which is delivered is officially reported. In most States the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. Many are simply applications of familiar rules which obviously control. Opinions of that kind interest only the lawyers in the cause. In the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones. It is not always easy for the court or the reporter to determine what decision may thereafter be relied on as a precedent. Repeated instances have occurred in which such a use has in fact been made and properly made of some not noted in the regular reports, and not infrequently they have subsequently been inserted in them.[Footnote: In the centennial volume (Vol. CXXXI) of those of the Supreme Court of the United States, one hundred and twelve opinions are printed, the first delivered over fifty years before, which previous reporters had thought best to omit, and two hundred and twenty-one more such are published in Vol. CLIV. Whoever runs them over will be apt to think that the previous reporters were right.] There is also in case of an opinion not to be officially reported a loss of a valuable safeguard against unsound decisions. A judge writes with more care and examines the points of law which may be presented more closely if he writes for the public and for posterity. On the whole the prevailing sentiment is that the reasons for repressing some are stronger than those for publishing all judicial opinions. It will be few only that, under any circumstances, will be omitted. The leading lawyers in every State are expected to run over, if they do not read, every case in every new volume of its reports. Every case dropped lightens this task. It helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. It cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the United States as to becloud rather than illuminate whoever seeks to know what American law really is. If reporters will not select and discriminate between adjudged cases publishers can and will. Many sets have been prepared and issued in recent years of selected cases on all subjects taken from the official reports of all the States. Their professed aim has been to include all worth preserving. In fact, they have naturally been guided to a considerable extent by commercial considerations. To every lawyer the leading cases in his own State are of the first importance. He is not likely to buy any compilation in which a number of these do not appear, even if intrinsically, as statements of law, they may be of no great value. Hence in the collections in question the rule of selection is often the rule of three, and they are apt to contain a certain proportion of the decisions of every State. The leading sets are the "American Decisions," running from 1760[Footnote: Long after the publication of Kirby's Reports in 1784, some unofficial reports were published of cases decided in colonial courts prior to any which he included.] to 1869; the "American Reports," from 1869 to 1886; the "American State Reports," from 1886 to the present time, which three sets include over two hundred and fifty volumes and nearly 40,000 opinions; and the "Lawyers' Reports Annotated," now extending over more than sixty volumes, the first of which was published in 1888, and contains no cases reported prior to the preceding year. Spencer's rule of social evolution that all progress is from the homogeneous to the heterogeneous tends steadily and inexorably in the United States to lessen the value of judicial reports out of the State in which the cases were decided. Each of forty-five different commonwealths is building upon legal foundations that are not dissimilar, but some of them are advancing far faster than others, and none proceed at exactly the same rate or on exactly the same lines. They are building by statute, by popular usage and by judicial decision. Heterogeneity is most marked in legislation and it tells most there. Whoever looks over a volume of reports will find a large proportion of the cases turning upon some local statute. An important index title is that of "Statutes Cited and Expounded." In Vol. 138, for instance, of the Massachusetts Reports (a volume selected at random for this purpose), 223 statutes or sections of statutes are noted as having been made the subject of remark in the 170 cases which it contains. Almost all are Massachusetts statutes, a very small proportion of which have been re-enacted elsewhere. Appellate courts thus forced at every turn to study with care into the effect of local legislation, much of which, to get at its meaning, must be traced back historically through various changes during a long course of years, and in the older States sometimes for centuries, listen unwillingly to citations from decisions of other States which are even remotely affected by the statutes that may be there in force. The newer States and those with a small population are naturally the ones that rely most on foreign authority. In the last volume (Vol. 26) of the Nevada Reports, sixty-two per cent, of the cases cited in the opinions of the court are of that kind. In the last volume (Vol. 178) of the New York Reports, the percentage is but thirty, and in the last of the Massachusetts Reports (Vol. 185) it is only twenty-five.[Footnote: _Law Notes_ for April, 1905, 8.] * * * * * In the Supreme Court of the United States and in several of the appellate courts of the larger States each judge is provided with a clerk at public expense. While this is a means of relief from much which is in the nature of drudgery, it sometimes leads to a deterioration in the quality of the judicial opinions. A dictated opinion is apt to be unnecessarily long, and when a clerk is set to looking up authorities, although he can hardly be expected always to select the most apposite, it is easier to accept his work and use what he has gathered than to institute an independent search. Some of the appellate courts which are most fully employed, both State and federal, are provided with special libraries of considerable extent, and each of the individual judges is also often furnished with an official library, sometimes containing several thousand volumes, for his personal use, to be handed over to his successor when he retires from office.[Footnote: In New York, the private library of the Court of Appeals contains over 6,000 volumes, comprehending all the reports of all the States, and the personal libraries provided for each judge have come to comprise 3,500 volumes.] In some States counsel have the right to demand to be heard before a full court, and those who have taken the appeal generally exercise it. As decisions go by majorities, the chance of reversing a judgment before, for instance, a court of five, which is a common number, is obviously greater when all its members sit than when four do. In either case it must be the act of three judges, and one is more likely to convince three out of five than three out of four. In the Supreme Court of the United States there is no means of supplying the place of a judge who is absent or disqualified. The remaining members, provided they constitute a quorum (that is, a majority), proceed without him. In most of the States there is some provision for filling the vacancy in such a contingency. Sometimes it is by calling in a judge of an inferior court; sometimes by application to the Governor for the temporary appointment of some member of the bar as a special associate justice to sit in a particular case. In several of the larger States all the members of the court of last resort do not and need not sit in every case. In some two permanent divisions are constituted, to each of which certain judges are assigned, and both divisions may be in session at the same time. In other States certain judges are detached for a certain time, during which they study causes which have been argued and prepare opinions. This done, they resume their seats, and others are released for similar duties. In Ohio, for instance, the Supreme Court consists of six judges and commonly sits in two divisions of three each, having equal authority. The whole court sits to hear any cause involving a point of constitutional law. It also decides those which have been heard in one of its divisions and in which the divisional court is in favor of reversing the judgment appealed from. An affirmance by the divisional court is final, but if it inclines to a reversal the judges communicate their opinions to the full court, which also reads the printed briefs submitted on the original argument, and then without any further oral hearing pronounces final judgment. Four judges, therefore, at least, must concur to accomplish a reversal. Should the full court in any case be equally divided, the judgment appealed from stands. Under the Constitution of California (Art. VI, Sec. 2) the Supreme Court, which consists of seven judges, ordinarily sits in two departments. Three judges can render a decision, but the judgment does not go into full effect for thirty days unless three, including the Chief Justice, have given it their approval. The Chief Justice also, with the concurrence of two of his associates, or four of these without his concurrence, can direct that any cause be heard before a full court within thirty days after judgment by a department court. He can also order the removal into the full court of any cause before judgment. In Michigan only five out of the eight judges sit to hear a case, and if one of them files an opinion dissenting from that of his associates, the losing party can demand a rehearing before the full court. Neither the bar nor the bench are quite satisfied with such methods of appellate procedure. The Ohio scheme is excellently adapted for the dispatch of business, but may prevent an oral argument before those who are ultimately to decide the cause. That of California often protracts litigation. Any such plan of division also must increase the risk of the court's taking a position inconsistent with one which it had previously assumed. The judges in one division may come to conclusions different from those reached in the other division; or where the court does not sit in divisions, a point may be determined by a narrow majority in one case which in a later one, through the substitution of one or two judges for those who heard the former, may be ruled the other way. The freedom of appeal which is generally conceded to defeated litigants in this country has been made the subject of severe criticism. It seems, however, a necessary incident of our political institutions. They are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. Our Constitutions guaranty every man against deprivation of life, liberty or property without due process of law. If we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. But the tenure of judicial office in most States is too brief, the pay too meagre, and the mode of appointment too subject to political influence to give always that assurance that could be wished either of the independence of the judiciary or of its representing only what is best in the legal profession. In England, until recently, there was little or no right of review in favor of one convicted of crime. But the judges are appointed for life on ample salaries, and tradition requires that they be selected only from among the leaders at the bar. Nor is the right of the individual against the State deemed so sacred under English as under American institutions. It cannot be in any country where an hereditary aristocracy has from ancient times had a share in government. As has been seen, the English practice in this respect for nearly a hundred years was adopted in the courts of the United States, but public sentiment finally pronounced against it. Much less could it be safely followed in the States, where criminal courts are often held by judges of little ability, less learning, and inferior standing at the bar, to which, after the expiration of a brief term, perhaps of but a year, they will return should they fail to secure a party renomination. The same reasons, if in less degree, support a liberal right of appeal in cases involving property only, and oppose restrictions based only on the amount in controversy. Americans could never tolerate keeping their appellate courts for the trial of large causes only. There must be no rich men's courts. There certainly must be none to which a claim of right founded on a constitutional provision cannot be carried up, however trifling in pecuniary value may be the matter in demand. Most appeals fail. There are few in which the counsel who takes them are fully confident of success. Every lawyer of large experience knows that he has often won when he expected to lose, and lost when he expected to prevail. There are not many cases involving large pecuniary interests or strong personal feeling that are not appealed if there is any color for it. The proportion of appeals which are successful will generally be not far from a third of the whole number taken. Of course, however, this must depend largely on the competency of the trial judges in the court where it is claimed that errors have occurred. The abler and more experienced those who do circuit duty may be, the oftener will their doings be supported in the court of last resort. Short terms of office and consequent lack of practical acquaintance with the business of a trial judge is the real cause why so many appeals are taken, and are allowed to be taken in our American States. As for the federal courts of appeal, there is another and unavoidable occasion for large dockets. They have the last word to pronounce on constitutional questions, and there has probably never been a year since the United States came into existence when the legitimate powers of the general government have not been repeatedly infringed upon by State legislation. In the Supreme Court of the United States, the reporter began its second century with a plan of stating the number of cases affirmed or reversed at each term, but dropped it after two years. The record of these years was as follows: Affirmed Reversed October Term, 1890 248 104 October Term, 1891 185 103 A tabulation of the decisions reported in the various States in their last volumes published prior to June, 1904, shows that on a general average, in sixty-three out of every hundred appeals the judgment of the inferior court was affirmed. In Massachusetts the percentage was eighty-seven per cent. In Texas it was only thirty-four per cent., and in Arkansas and Kentucky not much over forty per cent.[Footnote: _Law Notes_ for June 1904, p. 285.] Many more appeals are taken by convicted persons in criminal cases at the South than in the North. Many more criminal prosecutions are brought there, in proportion to the population. This is due largely to the presence of so large a body of colored people, most of whom have had a very inferior education and training. Many more such appeals are successful also in the South than in the North. In the reports of the courts of last resort of Alabama, Florida, Louisiana and Mississippi between December 20, 1902, and April 25, 1903,[Footnote: As given in Vol. XXXIII of the Southern Reporter.] ninety-four criminal cases appear, in forty-six of which the judgment of conviction was set aside. In Connecticut, Delaware, Maine, Maryland, New Hampshire, New Jersey, Pennsylvania, Rhode Island and Vermont between March 12 and June 25, 1903,[Footnote: As given in Vol. LIV of the Atlantic Reporter.] the reports show only twenty such cases, of which seven were set aside.[Footnote: _Law Notes_ for September, 1903, 105.] This would seem to indicate either that the trial judges of criminal courts in the Gulf States are careless or that the appellate courts there (under the pressure, perhaps, of unwise statutes)[Footnote: See Paper on "Judicial Independence," by Justice Henry B. Brown in the Reports of the Am. Bar Association for 1889, 265.] are inclined to be too technical. If either is true it is a just cause for public dissatisfaction with the administration of criminal justice, and some palliation for the frequent resorts to Lynch law by the Southern people. The American plan of written opinions, at least in all cases of novelty or general interest, works better in small States than in large ones. No judge can find time to prepare more than a certain and quite moderate number in a year, if they are such as they should be. The shorter they are, the more time generally has been spent in condensing them. In a great State there must, therefore, either be a larger number of judges, or every few years there must be a temporary addition to the judicial force to clear off an accumulation of cases. The latter expedient is generally preferred. Sometimes a small number of lawyers are selected to serve as a special commission of appeals. They sit by themselves, but there may be a provision for their submitting their opinions to review by the regular court. Some of the leading cases in our reports have been decided by such commissioners. In California, where such a body now exists, its members are appointed by the court, and removable at its pleasure; but ordinarily they are chosen by the executive or legislative departments. Sometimes when the cases on the docket of the court of last resort reach a certain number (in New York this is put at 200) the Governor may call in judges of the next court in rank to sit with the regular judges until the accumulation is cleared off. Fewer causes can be heard and disposed of in American appellate courts than in those of other countries by reason of two things, our practice of delivering written opinions and the fulness of treatment thought necessary in such opinions, especially when they deal with questions of constitutional law. In France, the Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these, 219 were sustained and 597 rejected.] Nothing approaching this number could be properly disposed of on the merits in any American Court of last resort. Many appeals, however, are here, as everywhere, abandoned or dismissed for some failure to comply with the rules of practice or because manifestly frivolous, and in these no opinions are ordinarily given. During the court year closing with the Summer of 1903, the Court of Appeals of New York filed only 221 opinions, although it disposed, in one way or another, of 640 cases; and the Supreme Court of the United States filed 212 opinions and disposed of 420 cases.[Footnote: See Chap. XXIV.] In the calendar year 1904, the Court of Appeals of New York filed 327 opinions, and the Supreme Court of Illinois over 500. * * * * * CHAPTER XX THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT No court can with propriety pass a decree which it cannot enforce.[Footnote: Clarke's Appeal from Probate, 70 Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178 U. S. Reports, 186.] After the judgment comes the issue of appropriate process to compel obedience to it, unless such obedience (as is generally the case) is voluntarily rendered. The whole power of government is at the command of the court for this purpose. A sheriff with a judicial process to serve who meets with resistance can summon to his aid the _posse comitatus_. By this term is meant the whole power of his county; that is, any or all of its able-bodied inhabitants on whom he may choose to call. Not to respond to such a call is a legal offense. The marshals have similar powers in serving process from the Federal courts. The fact that there is this force behind a writ is so well understood by the community that occasions for resorting to its use, or indeed to the use of any actual force, are extremely rare. If the process was lawfully issued, it would be useless to resist. If unlawfully, it is easier and safer to seek relief by an injunction, or in case of an arrest, by a writ of _habeas corpus_. But there have been occasions in the judicial history of the United States when, under the influence of a general popular ferment, the service of process from the courts, and even the holding of courts, have been forcibly prevented. Shay's Rebellion in Massachusetts (in 1786) was the first of these after the Revolution. Similar uprisings of less importance took place at about the same time in New Hampshire and Vermont. A few years later, the service of process from the New York courts was interrupted in Columbia County. There was a strip of territory adjoining the Hudson River, title to which was claimed both by New York and Massachusetts. Conflicting claims, awaking much bitter feeling, arose under grants from each government. In 1791, the sheriff of Columbia County was ordered by the courts, in the course of a lawsuit, to sell a tract of this land. Seventeen persons disguised as Indians appeared at the time of sale to resist it, and he was killed by a shot from one of them.[Footnote: Report Am. Historical Association for 1896, I, 152, note.] Then came the Whiskey Rebellion in Pennsylvania. The statutes of the United States[Footnote: United States Revised Statues, 5299.] provide that if their courts meet with opposition of a serious nature, the President may use the army or call out the militia of one or more States to restore order. Opposition to the enforcement of the revenue tax on whiskey in 1794 called for the first exercise of this power. Marshals were resisted in serving process, and several counties were in a state of insurrection. Washington sent so large a force of troops to suppress it that the rioters vanished on their approach, and there was no further obstruction of the ordinary course of justice. The total expense to the government in this affair was nearly $1,000,000.[Footnote: Wharton's "State Trials," 102.] In 1799, somewhat similar opposition arose in the same State against the enforcement of the house taxes laid by Congress. President Adams here also sent a sufficient force of militia to suppress it.[Footnote: _Ibid_., 48, 459.] In 1839, a general combination was formed among the tenant farmers in New York holding long or perpetual leases from manorial proprietors to resist the payment of the stipulated rents. In several counties the greater part of the land was occupied under such a tenure. The design was to compel the landlords to sell to the existing tenants at a price fixed by public appraisal, or else that the State should take the lands by eminent domain and dispose of them to the same persons on reasonable terms. Sheriffs were forcibly prevented from serving writs in dispossession proceedings. One who took with him a _posse comitatus_ of five hundred armed men, a hundred of whom were mounted, was met and turned back by a larger band, who were all mounted. The Governor was finally compelled to issue a proclamation against the "up-renters," as they were called, and to protect the sheriff by a large body of militia. Put down in one county, the movement soon reappeared in others. Disguises were assumed, the rioters figuring under Indian names and wearing more or less of the Indian garb. Three hundred of them, with twice that number not in disguise, prevented a sheriff from levying an execution for rent on tenants upon the Livingston manor. For six years the contest went on in several counties. Several lives were lost on both sides. Sheriff's officers were tarred and feathered and their writs destroyed. Of the rioters many were arrested and prosecuted from time to time and some convicted. Five were sent to the State's prison for life. Two were sentenced to be hanged. The State used its militia freely to defend the sheriffs, at a cost in one county of over $60,000, and in 1845 a series of prosecutions and convictions, resulting in over eighty sentences at one term of court, broke the back of the insurrection. It died half-victorious, however, for an "anti-rent" Governor and Lieutenant-Governor were elected the next year, and several statutory changes in the law of leases which the malcontents had desired were soon afterwards enacted.[Footnote: See Paper by David Murray on the "Anti-rent Episode in New York," Report of the American Historical Association for 1896, I, 139.] During the period of reconstruction in the Southern States, following the civil war, the courts were repeatedly broken up by violence and the service of legal process resisted, in some instances by authority of the military Governor.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495, 496, 509, 544, 565.] The writ to enforce the judgment of a court of law is called an execution. It is directed to the sheriff or other proper executive officer, and requires him to seize and sell the defendant's property or, as the case may be, to arrest and imprison him, to turn him out of possession of certain lands, or to take some other active step against one who has been adjudged in the wrong, in order to right the wrong, as the judgment may command. A judgment for equitable relief is not ordinarily the subject of an execution.[Footnote: See Chap. VIII.] A judgment at law is generally to the effect that one of the parties shall recover certain money or goods or land from the other. On the prevailing party lies the burden of moving to get possession of what has thus been adjudged to be due. This he does by taking out an execution. A judgment in equity is an order on the defendant to do or not to do some particular act. It is now an affair between him and the court. He must obey this mandate or he will be treating the court with disrespect. To treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. It is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the State. Whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. If, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell. If he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." On this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. If the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order. It is the sting in the tail of an injunction that makes it especially formidable. The debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. The man who keeps on doing what a court of equity has forbidden him to do does commit one. A conspicuous instance of the efficacy of an injunction was furnished by the great Chicago railroad strike and boycott of 1894, initiated by the American Railway Union. Mob violence followed. More than a thousand freight cars were burned. Trains were derailed, passengers fired at, and lives lost. The officers of the union, after two or three weeks, wrote to the managers of the railroads principally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 729.] A temporary injunction was issued against these officers and others by the Circuit Court of the United States in an equitable action brought by the United States under the direction of the Attorney-General. They disobeyed the injunction. Their arrest for this contempt of court promptly followed. This stopped the flood at its source. To quote from testimony given a few weeks later by Mr. Debs, the President of the Union, "As soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike.... The men went back to work and the ranks were broken and the strike was broken up,... not by the army, and not by any other power, but simply and solely by the action of the United States court in restraining us from discharging our duties as officers and representatives of our employees."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 759.] The defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the Supreme Court of the United States, but without avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 600.] Injunctions not infrequently are granted as an equitable relief against a legal judgment. _Summum jus, summa injuria_ is an ancient maxim of the courts. The foundation of equitable jurisdiction is that courts of law cannot always do justice. One may, for instance, be invited to build a house on another's land, and promised a deed of the site. He builds the house and then is refused a deed. The invitation and promise were by word of mouth. The rules of law make such a house the legal property of the landowner. The rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. If the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right. A court of equity sometimes makes a decree establishing a title. To enforce such a judgment, a writ may be issued, called a writ of assistance. It is directed to the sheriff and requires him to do some specific act, such as putting the defendant out of possession of certain lands and turning it over to the plaintiff. It is, as appears from instances which have been given, possible that the execution of process from the courts may be defeated by violence which they cannot overcome. It is possible in fact though impossible in theory. As the sheriff can employ the _posse comitatus_, he ought always to have an overwhelming force at his command. But it is easier to "call spirits from the vasty deep" than to make them respond. Public feeling may be so strong in opposition to the service of the process that mob violence will be tolerated and even openly supported. An armed mob can only be effectually met by an armed force which is not a mob--that is, by disciplined soldiers. The sheriff, if so opposed, may call upon the Governor of the State for military assistance. How efficient it will prove will, of course, depend on the discipline of the militia and the firmness of its commanding officers. It is seldom that it fails to restore order, if the men carry loaded guns and are directed to fire at the first outbreak of forcible resistance. But the Governor may refuse to comply with the sheriff's request. In such case, the execution of the process of the court fails because of want, not of power, but of the will to exercise it on the part of those on whom that duty rests. In every government constituted by a distribution of the supreme authority between different departments, each of them must do its part loyally with respect to the others, or the whole scheme, for the time being, breaks down. In the United States this danger is doubly great because of the interdependence of the general government and the particular States. Judicial process may issue from a State court against those who oppose its execution under claim of authority from the United States; or from a federal Court against those who oppose its execution under claim of authority from a State. Some instances of such conflicts of jurisdiction have been already mentioned.[Footnote: Chap. X.] When the Supreme Court of the United States reverses a judgment of a State court, it can either[Footnote: U. S. Revised Statutes, Sec. 709.] itself render the judgment which the State court ought to have rendered, and issue execution, or remand the cause to it with directions that this be done. If the latter course be taken, the directions may be disobeyed. A Georgia court was guilty of this contumacy in the case of Worcester _v._ Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former course be taken, the service of the execution may be resisted by the power of the State. Worcester was illegally confined in the Georgia penitentiary. The sentence against him had been set aside and the indictment adjudged to furnish no ground of prosecution. But if the Supreme Court had rendered a judgment dismissing the prosecution, and given a writ to the marshal directing him to set Worcester at liberty, the officer would have found the prison doors shut in his face. Every prison is a fortress, so built as to prevent rescue from without as well as escape from within. To lay siege to one would be too great an enterprise for the marshal to undertake without military assistance. For this the President could have been called upon. But he might have refused it. If so, the judgment of the judicial department would have proved inoperative, simply because the officer charged with the duty of rendering it operative had declined to fulfil that duty. The Supreme Court, in the Worcester case, probably had reason to believe that if it had directed a call on President Jackson for a military force it would have been refused. It is reported that the President, in private conversation, intimated as much. Possibly he might have been justified in the refusal. South Carolina was on the brink of war with the United States. Georgia was her next neighbor, and might have been induced to make common cause with her, if Jackson had battered down the doors of her penitentiary to release a man who, her courts insisted, had been properly convicted of a serious crime. A court can do nothing short of justice. The executive power, perhaps, may sometimes rightly act or decline to act from motives of national policy. In one instance the armed forces of a State were actually engaged, under the authority of the legislature, in forcibly resisting the service of process from the federal courts. It was in 1809, when the marshal in Pennsylvania was opposed by a large body of the militia called out by order of the Governor for the purpose. Their commanding officer was subsequently arrested and convicted for the offense in the Circuit Court of the United States.[Footnote: Wharton's State Trials, 48; McMaster, "History of the People of the U. S.," V, 405; Willoughby, "The American Constitutional System," 41, 43.] In 1859, the Governor of Ohio refused to honor a requisition from the Governor of Kentucky for the surrender of a fugitive from justice. The act charged was assisting a slave to escape. This was a crime in the State from which the man had fled, but not in the State where he had found refuge. The Supreme Court of the United States was asked by Kentucky to compel the surrender. It held that the Governor had violated his duty, but that the Constitution of the United States furnished no means for enforcing its performance by him.[Footnote: Kentucky _v._ Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of this doctrine, a man indicted for murder in Kentucky has been for several recent years residing in safety in Indiana, because the Governor of that State has refused to comply with repeated requisitions for his surrender. * * * * * Every court of record while in session has inherent power to compel all who appear before it to preserve order, to obey its lawful commands issued in due course of judicial procedure, and to refrain from any expressions of disrespect to its authority, under pain of fine or imprisonment, or both. This power, unless withdrawn by statute, belongs to any justice of the peace who has authority to hold a court of record, while he is holding one. Commonly it is, in his case, regulated by statute.[Footnote: Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic Reporter, 955.] At common law, superior courts of record also have power during the progress of a cause to repress or punish any disrespectful acts or words done or uttered, not in its presence, but so near to it as to constitute a breach of order or tend directly to lessen its efficiency. These are deemed powers inherent in such a court, because necessary to support its proper dignity and independence. Statutes are common to define or restrict them, but they cannot take them away altogether. To do so would be to take away an essential incident of the judicial power. Nor can they so far reduce the penalty that may be inflicted as to deprive the court of a reasonable measure of the right of self-protection.[Footnote: Batchelder _v._ Moore, 42 California Reports, 412.] It is, to say the least, doubtful if they can even restrict its exercise by any court created by the Constitution itself.[Footnote: State _v._ Morrill, 16 Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_ Robinson, 19 Wallace's Reports, 505, 510.] The accused is not entitled as of right to a trial by jury. The judge is the best guardian of the dignity of the court.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 595.] The rule of criminal law that to convict a man of crime requires proof of guilt beyond a reasonable doubt applies to all proceedings of contempt. The accused is also allowed to go free on giving bail until final sentence, if that is to be preceded by any preliminary inquiry involving adjournments from day to day. No such inquiry is necessary when the contempt is plain and was committed in the presence of the court. In the courts of the United States and in most of the States no appeal is allowed for errors in law from a summary sentence of punishment for a contempt of court. Appeals lie only from final judgments in a cause, and such a sentence for contempt is not so regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports, 364, 376.] If the contempt be (as it may be) made the subject of a formal criminal prosecution and a jury trial, an appeal is allowed. A punishment inflicted for contempt, even though it goes beyond the rightful jurisdiction of the court in such a matter, is a judicial act, and does not expose the judge passing the sentence to an action for damages.[Footnote: Bradley _v._ Fisher, 13 Wallace's Reports, 335.] * * * * * CHAPTER XXI JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO MARTIAL LAW Martial law is the exercise of military power. It is martial rule at the will of the commanding military officer. In time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. Constitutional provisions may also affect the question. Those affecting the United States contain limitations stricter than those found in some of the State Constitutions. Ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.] The first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. General Jackson, in 1814, was at New Orleans in command of the military Department of the South. The city was threatened with invasion. He declared martial law, and not long afterwards arrested a Mr. Louaillier, a member of the State legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. Louaillier obtained a writ of _habeas corpus_ from the District Judge of the United States (Judge Hall), directed to Jackson. The General, instead of obeying it, forthwith took possession of the original writ, arrested the Judge, and deported him from the city. Two days later despatches were received from the War Department officially announcing the conclusion of a treaty of peace. Judge Hall now returned, and a rule to show cause why Jackson should not be attached for contempt of court was issued. Jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. He had been told, he said, that the legislature was "politically rotten." The Governor had warned him that the State was "filled with spies and traitors," and advised, in the presence of Judge Hall, and with no dissent from him, that martial law be proclaimed. It seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." The lengthy paper, which was evidently written by a skilful lawyer, closed thus: "The powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of God, they have been attended with unparalleled success. They have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[Footnote: Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the General to answer certain interrogatories respecting his course of conduct, by a day appointed. He appeared on that day and declined to answer them, with this concluding shot: "Your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which I was influenced, so it is expected that censure will constitute no part of that sentence, which you imagine it your duty to pronounce."[Footnote: _Ibid_., 387.] The sentence was a fine of $1,000, which was at once paid. The sympathy of the country was with "the hero of New Orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war. Some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. Nearly thirty years afterwards Congress made an appropriation for the purpose, and he received the full amount with interest (in all $2,700) from the treasury, as a legislative compensation for a judicial wrong. It would seem, however, that Judge Hall acted within the limits of his authority. When he signed the writ of _habeas corpus_ the State was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the United States and Great Britain. The courts were open; his court was open; and the General should have respected the process which issued from it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports, O. S., 530. See opinion of Mr. Justice Miller in Dow _v._ Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.] During the Civil War, President Lincoln was responsible for many arrests by military officers of citizens of States remote from the seat of actual hostilities, and in which the courts were open. At its first outbreak he entirely suspended the privilege of the writ of _habeas corpus_, and one issued by the Chief Justice of the United States was disobeyed.[Footnote: _Ex parte_ Merryman, Taney's Decisions, 246.] Congress in 1863 enacted that any order of the President, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. The State courts disregarded the statute. If, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of Congress cannot make the act a lawful one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports, 370.] The Supreme Court of the United States had this question before them, but did not find it necessary to decide it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510; Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the dissenting opinion of two justices in the last report, p. 292.)] Had they done so, it would probably have been answered in the same way. Missouri inserted in her Constitution of 1865 a provision similar to the Act of Congress. This, of course, so far as that State could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the Federal Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's Reports, 595.] The transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached. The Governor of North Carolina (William W. Holden) in 1870 declared two counties in a state of insurrection. The militia were called out and a number of citizens arrested. Writs of _habeas corpus_ in their favor were issued by Chief Justice Pearson of the Supreme Court of the State against the military officers.[Footnote: _Ex parte_ Moore, 64 North Carolina Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at first refused, by the Governor's authority, to obey them. Similar writs were then obtained from the District Judge of the United States, upon which the petitioners were, by the Governor's orders, produced before the State judge. The result was the impeachment of Governor Holden and his removal from office.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 458.] While martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. For that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can institute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. All such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. He cannot, however, in establishing such a temporary tribunal, give it the powers of an admiralty court over prize cases. The judgment _in rem_ of an admiralty court, condemning a captured ship as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. No mere military court on enemy's territory occupies that position.[Footnote: Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.] This right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. During our Civil War, in 1864, President Lincoln, as commander in chief of the army and navy, set up a "Provisional Court for the State of Louisiana," after the Southern portion of that State had been occupied by the national forces and martial law declared. Judge Charles A. Peabody of New York, who had been a justice of the Supreme Court of that State, was commissioned to hold it and to dispose of both civil and criminal causes. Its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[Footnote: The Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical Association for 1892, 199.] In the original proclamation of martial law in Louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. One of the State courts, known as a District Court of the City and Parish of New Orleans, the judge of which took the oath of allegiance to the United States, continued to sit and dispose of business in the usual course. A few months later a citizen of New York sued a military officer before it for ravaging a plantation which he owned in Louisiana, and recovered judgment. A suit upon it was afterwards brought in Maine, where the defendant resided. He pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. The case ultimately came before the Supreme Court of the United States. Here it was thrown out, the court saying that the District Court of New Orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[Footnote: Dow _v._ Johnson, 100 U. S. Reports, 158.] So far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other States.[Footnote: Pepin _v._ Lachenmeyer, 45 New York Reports, 27.] They have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[Footnote: Coleman _v._ Tennessee, 97 U. S. Reports, 509, 519.] In 1864, during the war, but in Indiana, a State distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the United States, as a member of a secret organization known as the Order of American Knights or Sons of Liberty. The trial resulted in his conviction, and a sentence to death, which was approved by the President of the United States. Before it could be executed, he applied to the Circuit Court of the United States for the District of Indiana for a writ of _habeas corpus_. The judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the Supreme Court of the United States.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of Chief Justice Marshall when any great question of a political nature has been involved. Five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful State where the courts are open and their process unobstructed. Four justices dissented, and Chief Justice Chase thus summarized their conclusions: There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights. We think that the power of Congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 141.] The Constitution of the United States contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the Constitutions of the States. It may well be that martial law has for the United States a narrower meaning than it may possess in a particular State. The legislature of Rhode Island in 1842, during "Dorr's Rebellion," by a Public Act put that State under martial law until further order, or until its termination should be proclaimed by the Governor. A squad of militia broke into the house of a private citizen to arrest him as an abettor of Dorr, and were afterwards sued in trespass before the civil courts. The cause finally came before the Supreme Court of the United States, where (one justice only dissenting) it was held that the Act could not be pronounced an unjustifiable exercise of legislative power under any provision of the federal Constitution.[Footnote: Luther _v._ Borden, 7 Howard's Reports, 1, 45.] Whether the courts of Rhode Island could have taken a different view, under the fundamental laws of the State, was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 129.] On the other hand, there are States in which the Constitution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[Footnote: Constitution of Massachusetts, Declaration of Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2, Sec, 22.] It is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on _habeas corpus_ one restrained of his liberty by military command. That it is such an expression was held in Colorado in 1904, but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his associates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that I cannot properly characterize it." A similar question arose, but was not judicially determined, in Arkansas in 1874. There was a contest over the election of Governor. The Constitution provided that such contests should be decided by the joint vote of both houses of the legislature. Baxter, the candidate who was elected on the face of the returns, was declared elected by the President of the Senate and took the oath of office. Brooks, the other candidate, presented a petition for a contest to the lower house, which refused to grant it. He then applied to the Supreme Court on _quo warranto_ proceedings, which threw out the case for want of jurisdiction.[Footnote: State _v._ Baxter, 28 Arkansas Reports, 129.] A similar suit was then brought in a _nisi prius_ court, on which judgment was rendered in his favor,[Footnote: This judgment was reversed on appeal. Baxter _v._ Brooks, 29 _id_., 173.] and he was put in possession of the executive chambers by an armed force which he assembled. Baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the Supreme Court on their way to attend a special session called to take action in _mandamus_ proceedings brought in behalf of Brooks. They were rescued after a day or two by United States troops and proceeded to join their associates. The court then gave judgment for Brooks in his third suit, directing the State Treasurer to pay his warrants. At this point the legislature applied to the President of the United States for protection against domestic violence, under Art. IV of the Constitution of the United States, and his compliance by a proclamation officially recognizing Governor Baxter and ordering the Federal troops to support him closed the history of this disgraceful incident.[Footnote: McPherson, "Hand-book of Politics for 1874," 87-100.] * * * * * CHAPTER XXII APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES The oldest which survives of our American Constitution, that adopted by Massachusetts in 1780, requires the appointment of judges to be made by the Governor of the State, with the advice of the Council, and for good behavior.[Footnote: Constitution of Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.] This plan was substantially followed in framing the Constitution of the United States. That was planned for a small number of States, perhaps only nine, certainly at first not over thirteen. The Senate, therefore, would be a body small enough to serve as an executive council. Its necessary enlargement by the admission of new States has long made it but ill-suited for this purpose, and has thrown the power of confirming or rejecting an executive nomination for judicial office largely under the control of the Senators from the State to which the person named belongs, although this control is much weakened if they do not belong to the party of the administration. The principle that the greater the concentration of the appointing power, the greater will be the sense of individual responsibility for every appointment made, makes this result of a Senate of ninety members not wholly unfortunate. The President now consults a council of two. Thirteen States in all originally gave to the Governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legislature; the rest preferred an election by the people.[Footnote: 'Baldwin, "Modern Political Institutions," 58, 59.] If we compare the original practice in each State with its present practice, we find that there are now fewer in which the Governor appoints or nominates; fewer in which the legislature elects; more in which the people do. Legislative elections have been found to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. In one State[Footnote: Conn. Constitution, Twenty-sixth Amendment.] since 1880, the legislature has elected on the Governor's nomination. In practice they have never failed to act favorably upon it. Mississippi, which, in 1832, became a leader in the movement toward the choice of the judges by popular election, in her latest Constitution (of 1890) follows the plan of the United States, the Governor nominating and the Senate confirming. The action of the confirming or electing body when unfavorable in any State has generally been unfortunate. It is apt to be affected by local or personal political influence to which the chief executive would be insensible. A large number of able men have thus, from time to time, been deprived of a seat on the Supreme Court of the United States who would have added to its luster. In 1867 Massachusetts lost a Chief Justice of the first rank in this way by the defeat of Benjamin F. Thomas. The council refused, by a majority of one, to confirm his nomination because, though of the same party with them, he was of a different wing.[Footnote: Proceedings Mass. Historical Society, 2d Series, XIV, 301.] In most of the States the judges are now elected by the people.[Footnote: In thirty-three. In one other (Florida) the people elect the judges of the Supreme Court, and the Governor, with the advice and consent of the Senate, appoints those of the superior courts. The Governor nominates in Delaware, Mississippi and New Jersey, and in the four largest New England States. In Rhode Island and Vermont, South Carolina and Virginia, the legislature elects.] This makes the choice more a political affair. The nominations are made by party conventions, and generally in connection with others of a purely political character. It also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candidate for popular favor at the polls and an object of public criticism by the political press. In 1902 a justice of the Supreme Court of Michigan was nominated for re-election. There was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in 68 railroad and street railway cases of which 51 were in favor of the companies. He was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must conclude that either the railroad and railway companies--4 to 1--had exceptionally good cases from the standpoint of law and justice or his Honor's mind was somewhat warped in their favor.... You can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists.... To imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate." A less brutal but more dangerous attack, made in 1903 by a religious newspaper, illustrates the same evil. The Supreme Court of Nebraska has decided that under their Constitution the Bible cannot be used in the public schools. It was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. The newspaper in question[Footnote: The Boston _Congregationalist_ of Oct. 3, 1903.] which, though published in the East, had some circulation in that State, printed this paragraph: "The Supreme Court judge of Nebraska who wrote the decision that the State constitution prohibits the use of the Bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the Christian voters." In States the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. In a Southern State there was such a struggle in 1903 for the nomination of the prevailing party for Governor. The person who then held that place desired it. So did one of the justices of the Supreme Court. It is said that the friends of the former circulated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. The two candidates subsequently met upon the platform for a joint discussion of the issues before the people. The Governor sharply criticised the character of the Supreme Court. The judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory. In the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. The personal character and public acts of an opponent are a legitimate subject of description and comment. Sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. The public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. To treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage. If assertions published as to acts done or words said are false, it does not follow that they are libellous. An honest mistake may be a defense for such a misstatement.[Footnote: Briggs _v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic Reporter, 513.] Judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. The following dispatches, which appeared in the same issue of a local newspaper in Pennsylvania in 1903, when a county election was soon to occur, will sufficiently illustrate this: HOT JUDICIAL FIGHT PROMISED FOR MERCER. COUNTY WILL BE SCENE OF AN INTERESTING STRUGGLE FOR SEATS IN THE LEGISLATURE. Sharon, Pa., Dec. 25.--From present indications the coming judicial fight in Mercer County will be a bitter one. Public interest centers in the efforts of Judge S. H. Miller and his friends to secure a re-election, and the attempts of his opponents to place A. W. Williams of Sharon on the bench instead. While the sole topic politically is on the judgeship, the twenty or more candidates for Assembly are not losing the opportunity of fixing their fences. They, too, have assumed a reticence in regard to the matter of the judgeship. It is expected that on the last lap of the race Williams and Miller will be the only two men remaining. There are three other candidates for the Republican nomination who have thus far announced themselves. They are: W. J. Whieldon of Mercer; W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville. Judge Miller and A. W. Williams are the closest of friends. JUDGE MILLER ASKS FOR MODERATION. BARS PURE FOOD PROSECUTIONS BY REFUSING TO SENTENCE THOSE CONVICTED. Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner Warren has been confronted with a new proposition in his crusade in Western Pennsylvania against violators of the pure food laws. Judge S. H. Miller of Mercer County, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the State Pure Food Bureau is persecution and lacking in equity. He takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. Judge Miller's position is a serious impediment in the way of the enforcement of the law, and Commissioner Warren is preparing to take action that may compel him to punish offenders convicted before him. Not infrequently in the judicial history of the United States there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it. A judge of the High Court of Errors and Appeals in Mississippi was one of the earlier martyrs in the cause of judicial independence. The State had incurred a heavy bonded debt, which she found it inconvenient to pay. The Governor, who had approved the bills under which over $15,000,000 of the bonds had been issued, concluded in 1841, after the issue, that it was forbidden by the Constitution of the State, and issued a proclamation declaring them void. In a suit in chancery this question came up for decision in 1852. Meanwhile the policy of "Repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. The chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[Footnote: State _v._ Johnson, 25 Mississippi Reports, 625; Memoir of Sergeant S. Prentiss, II, 268.] A few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour. In the days preceding the Civil War, the validity of the laws enacted by Congress to secure the recapture of slaves who had fled to the free States was frequently attacked in the press and on the platform. The Constitution expressly provided for such proceedings, and the Supreme Court of the United States in 1842 had pronounced the "Fugitive Slave law" of 1793 to be valid in all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters' Reports, 539.] The principle of this decision plainly covered the later Act of 1850, but as public sentiment in the North became more and more uncompromising in its hostility to the existence of slavery under the flag of the United States, the State courts were not always strong enough to withstand the pressure to disregard precedents and let the Constitution give place to what the phrase of the time called a "higher law." In 1859, a citizen of Ohio was convicted in the District Court of the United States and sentenced to jail for rescuing a fugitive slave who had been recaptured in Ohio by an agent of his master, to whom he had been committed in proceedings under the Act of Congress. He was imprisoned in an Ohio jail, the United States then having none of their own, but placing all their convicts in State jails or prisons under a contract with the State to keep them for a certain price. His counsel applied to the judges of the Supreme Court at chambers for a writ of _habeas corpus_ against the Ohio jailer. He produced his prisoner and submitted a copy of the warrant of commitment from the District Court. The public were extremely interested in the outcome of the proceedings. The Attorney-General of the State assisted in presenting the petitioner's case. The Governor was one of the multitude present in the crowded court room. The Attorney-General declared that the position that the Supreme Court of the United States had the power to decide conclusively as to the constitutionality of the laws of the United States and so tie the hands of the State authority was untenable and monstrous. "Georgia," he said, "hung Graves and Tassel over the writ of error of this same Supreme Court. God bless Georgia for that valiant and beneficent example."[Footnote: _Ex parte_ Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a sectional court composed of sectional men, judging sectional questions upon sectional influences."[Footnote: _Ibid._, 161.] Of the five judges, three held that the constitutionality of the Fugitive Slave law was settled conclusively by repeated decisions of the Supreme Court of the United States, and that the State courts could not release the prisoner. Chief Justice Swan gave the leading opinion. Its positions were thoroughly distasteful to the people of Ohio. He knew they would be. His term, which was one of five years, expired in the following February, and the vacancy was to be filled at the State election in October. On the day before the judgment was announced he told his wife that this would be fatal to his re-election. "If the law makes it your duty to give such an opinion," said she, "do it, whatever happens." He gave it, and what they anticipated occurred. The convention of his party declined to renominate him. He resigned his office immediately after the election and retired to private life at an age and under circumstances which made it impracticable for him to re-enter the bar with success, but with the consolation of knowing that he had acted right. Chief Justice Day of Iowa, one of the ablest men who ever sat on her Supreme bench, in the same way lost a re-election by writing an opinion of the court, which announced a doctrine that was legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa Reports, 543, 603.] His term was soon to expire. He, too, knew that this decision would prevent his renomination, and it did. In 1885, Chief Justice Cooley of Michigan, one of the great jurists and judges of the country, failed to secure a re-election to its Supreme Court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a Detroit newspaper for libel. The newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat. Political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice. But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be bestowed. There are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. Other things being equal, no one would blame a judge for naming a political friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? A French critic of the elective judiciary has thus referred to these remarks of Justice Barnard: Le Juge Barnard, qui formulait en plein tribunal cette déclaration de principes, fut décrété d'accusation et condamné, non sans justes motifs. Mais son crime impardonable était de proclamer trop franchement les doctrines de la magistrature élective: il trahissait le secret professionnel.[Footnote: Duc De Noailles, _Cent Ans de République aux Etats-Unis_, II, 232.] Most of the old thirteen States in their first Constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to seventy. Georgia was the first to set the fashion of short terms. Her Constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one.[Footnote: Schouler, "Constitutional Studies," 65.] In all but three States (Massachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign. At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The shortest term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annually. As compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer. * * * * * The compensation of most American judges is a fixed salary. In some States, courts of probate and insolvency, and in all justices of the peace when holding court, are paid by such fees as they may receive, at statutory rates, for business done. As in the case of sheriffs and clerks, judges under such a system sometimes receive a much larger official income than any one would venture to propose to give them were they to be paid for their services from the public treasury. A clerk of court often receives more than the judge, and some judges of probate and insolvency more than the Chief Justice of their State. In colonial times, judges were sometimes paid in part by fees, in part by occasional grants by the legislature, and in part by a regular stipend. This practice of legislative grants from time to time in addition to their salaries was continued in Massachusetts in favor of the justices of the Supreme Judicial Court for a quarter of a century, in the face of a Constitution which provided that they "should have honourable salaries ascertained and established by standing laws."[Footnote: Memoir of Chief Justice Parsons, 228.] It was evidently indefensible in principle, and to remove judges, as far as possible, from temptation either to court the favor or dread the displeasure of the legislature it is now generally provided in our American Constitutions that their salaries shall be neither increased nor decreased during the term for which they may have been elected by any subsequent change of the law. In a few States it is thought sufficient to guard against the consequences of legislative disfavor, and the Constitutions forbid only such a decrease of salary. The Chief Justice of the Supreme Court of the United States receives $13,000 a year and his associates $12,500. Circuit Judges have $7,000, and District Judges $6,000. In the States, the Chief Judge of the New York Court of Appeals receives $10,500 and his associates $10,000. The same salaries are given in Pennsylvania. In New Jersey, the Chancellor and the Chief Justice each receive $10,000 and the associate judges $9,000. In Massachusetts, the Chief Justice receives $8,500 and his associates $8,000. In the other States less is paid, the average for associate judges in the highest courts being about $4,350. Only nine States pay over $5,000. The Chief Justice in many receives $500 more. These salaries are, however, generally supplemented by a liberal allowance for expenses, and in some States each judge is provided with a clerk. In New York, this addition amounts to $3,700; in Connecticut, to $1,500; in Vermont, to $300. The salaries for the highest trial court generally closely approximate those paid to the judges of the Supreme Court, and in case of trial courts held in large cities are often greater. Those for the inferior courts are much lower. The judges of the principal _nisi prius_ court (which is misnamed the Supreme Court) in New York City are allowed by law to accept additional compensation from the county, and receive from that source more than from the State, their total official income being $17,500. The trial judges in Chicago also receive $10,000, although the highest appellate judges in the State have a salary of only $7,000. It is not surprising that American judicial salaries are no greater, but rather that they are so large. They are fixed by a legislature, the majority of the members of which are men of very moderate income, and when originally fixed in the older States it was often by men not altogether friendly to the judiciary. It was a saying of Aaron Burr, which was not wholly untrue in his day, that "every legislature in their treatment of the judiciary is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason," 186.] Only the influence of the bar has carried through the successive increases which have been everywhere made. The first pension to a retired judge ever granted in the United States was one of $300 voted in Kentucky in 1803. It was offered to one of the members of the Court of Appeals to induce him to resign, but the year after his resignation the statute was repealed on the ground that it was unconstitutional.[Footnote: Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United States have allowed their judges who have reached the age of seventy, after not less than ten years' service, to retire, at their option, receiving the full official salary during the remainder of their lives. Rhode Island gives hers the same privilege after twenty-five years' service, and Massachusetts and Maryland have somewhat similar provisions, except that the judges on retirement receive but part of what they formerly did. The Connecticut legislature is in the habit of appointing her judges, both of the Supreme and Superior Court, when retired at the age of seventy, State referees for life, with an allowance of $2,500 for salary and expenses, their duties being to try such questions of fact as the courts may refer to them and to report their conclusions. Our State Constitutions now generally provide that judges shall hold no other public office. Some also provide that all votes for any of them for any other than a judicial office shall be void. * * * * * Occasionally a judge, in order to eke out his official income, accepts a salaried position, calling for but little of his time, in a matter of private business employment. This, however, is rarely done and there are obvious objections to it when the employer is one likely to have business before the court. Many of the judges of the higher courts, including several of the justices of the Supreme Court of the United States, are professors or lecturers in law schools. The best mode of appointing judges is that which secures the best men. Such men are unlikely to accept a place on the bench of one of the higher courts, unless it carries with it some prospect of permanence. It does, if it comes to them by way of promotion after they have served acceptably for a length of time in an inferior court. But most judges must be taken from the bar and, save in very unusual cases, will be in large and active practice. This must be totally abandoned if they take one of the higher judicial positions; and if they take the lowest, must be made secondary to it. A lawyer's practice is more easily lost than gathered. If it is a solid one, it is of slow growth. For one who has turned from the bar to the bench to expect on retirement from office to resume his old practice would be to expect the impossible. He may have achieved a position by his judicial work which will enable him to take a better position at the bar; but in that case his clients will be mainly new ones. He is more likely, particularly if no longer young, to sink into a meagre office practice and feel the pinch of narrow means, always doubly sharp to one who by force of circumstances has a certain social standing to maintain. The leaders at the bar therefore seldom consent to go upon the bench unless they have property enough to ensure their comfortable support after they leave it, without returning to the labors of the bar. This is one of those evils which carry in some sort their own antidote. The lawyers, as a body, are always anxious for their own sake to have an able and independent bench. They do not wish to trust their causes, when they come before a court of last resort for final disposition, to men of inferior capacity and standing. They therefore can generally be relied on to urge on the nominating or appointing power the selection of competent men. Their influence in this respect is little short of controlling. If competent men will not ordinarily go on the bench of an appellate court, unless by way of promotion, until they have accumulated a sufficient fortune to make them comfortable in old age, then as competent men will usually, in one way or another, be selected, and as few of these are men who from their youth have been occupying judicial positions, the judges will usually be possessed of some independent means. A property qualification almost is thus imposed by circumstances on those forming the American judiciary in its highest places. The same thing is true of our higher diplomatic positions. As Goethe has said, there is a dignity in gold. It is a poor kind of dignity when unsupported by merit, but if to gold merit be joined, each lends to the other solidity and power. Among the men of the first eminence at the bar whom the meagerness of the salary has kept off the bench may be mentioned Jeremiah Mason, who declined the position of Chief Justice of New Hampshire on this account, and William Wirt. Wirt in 1802 was made one of the Chancellors of Virginia at the age of twenty-nine. The salary and fees amounted to about five hundred pounds a year. He married on the strength of it, but in a few months found that his income was insufficient to maintain his family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91, 99.] Dignity and power, however, are strong attractions. Theophilus Parsons in 1806 left a practice worth $10,000 a year--the largest in New England in his day--to take the place of Chief Justice of Massachusetts on a salary of $2,500. After three years he sent in his resignation, saying that he found that this sum was insufficient for his support, even with the addition of the income from such property as he possessed. The legislature thereupon raised the salary to $3,500, and he remained on the bench through a long life.[Footnote: "Memoir of Chief Justice Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode Island, who then had a practice of $8,000 a year, gave it up for the Chief Justiceship of the State, though the salary was then but $750, supplemented by some trifling fees. In a few years, however, he resigned the office on account of the inadequacy of the compensation.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 75.] The qualities of a judge are by no means the qualities of a politician. The faculty of looking at both sides of a question and the power of forming deliberate and well-considered judgments do not tell for much in a campaign speech. The politician's title to support is standing by his friends. The judge's duty may be to decide a cause against his friends. Many a lawyer of eminence might accept a nomination from a President or Governor involving no participation in a political election contest who would refuse one from a party convention. The general sentiment of thinking men in the United States is that judges should never be chosen by popular vote. It is, however, an unpopular sentiment. The people in general do not appreciate the difference between their fitness to select political rulers and to select judicial rulers--to choose out good men and to choose out good lawyers. And the people make and ought to make our Constitutions. Rufus Choate once said that the question at bottom was, Are you afraid to trust the people? If you answer Yes, then they cry out that "he blasphemeth." If you answer No, they naturally reply, Then let them elect their judges. Jefferson was the first to suggest an elective judiciary, basing his opinion on a misconception of the usage in Connecticut. There, he wrote, the judges had been chosen by the people every six months for nearly two centuries, yet with few changes on the bench, "so powerful is the curb of incessant responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of July 12, 1816, regarding a new Constitution for Virginia.] In fact, the Connecticut judges were chosen annually, and those not holding judicial powers as an incident of political ones were appointed by the legislature. The experiment of resorting to popular election was first fully tried in Mississippi in 1832, under the influence of Governor Henry T. Foote, but in later life he expressed his regret at the course which he had taken, and the belief that it had weakened the character of the bench.[Footnote: "Casket of Reminiscenses," 348.] The scheme of popular election may be pursued with reasonable success if the bar use all the influence at their command to secure both good nominations originally and the re-election of all who have served well.[Footnote: It is not uncommon for local bar associations after the party nominations for the bench have been made to refer them to a committee, on the report of which those deemed the best are commended for popular approval. In two judicial districts in Iowa, the lawyers nominate judges for the district in a convention of delegates from the bar, and then see to it that the nominations are ratified by the party conventions. Simon Fleischmann, "The Influence of the Bar in the Selection of Judges," Report of 28th annual meeting of the New York State Bar Association (1905).] A conspicuous instance of its success under such conditions is shown by the repeated re-election of Judge Joseph E. Gary of the criminal court of the city of Chicago. Originally elected in 1863, when it was called the Recorder's Court, he has been re-elected for successive terms of six years without a break, and in 1903, when he was 82 years old and still in active service on the bench, received well-merited addresses of congratulation from the Chicago Law Institute and the Chicago Bar Association. Judges of Probate, whose functions are largely of a business character, and who are brought into close contact with the people at first hand, are frequently re-elected for a long period of years with little regard to their party affiliations.[Footnote: In the Probate District of Hartford in Connecticut there have been but two judges during the last forty years, though the elections have been annual or biennial.] In case of those having long terms of office, a re-election comes more easily and commonly. A man who has been ten or twenty years upon the bench has become set apart from the community. The people have ceased to think of him as one of themselves, so far as the active political and business life of the day is concerned. His position and his work, if it has been good, have given him a certain elevation of station. Men have learned to trust him, and to feel that his presence on the court helps to make liberty and property more secure. If he receives his party nomination, he is apt to secure a majority of votes, whether the others on the ticket are or are not elected. The opposing party often nominates him also, and sometimes, if his own gives the nomination to another, nominates him itself, and with success. In New York it has been generally the case that a good judge of the Court of Appeals or Supreme Court is re-elected until he reaches the age limit set by the Constitution. To accomplish this, however, it has been necessary for the bar to use constant efforts to bring the nominating conventions of both parties to the support of the same man or men, and personal ambition and party feeling have on a number of occasions set up an effectual bar. Before a recent election of two judges in that State, in preparation for which a scheme had been suggested by which one of the outgoing judges of each party should be re-elected, a third candidate for the succession, himself a prominent member of the bar and an officer of the State, published a lengthy statement of his claims, which concluded thus: "I am a candidate for nomination to the office of Associate Judge of the Court of Appeals at the coming Democratic State Convention. I appeal to my fellow-citizens for their support. While I do not believe that support for judicial candidacy should be unduly importuned, I feel that the present circumstances justify me in making this announcement. I have always stood by my party in its dark days, when others voted the Republican ticket in the interest of their business. I have assisted in endeavors to so shape its policies as to make success possible. Now that this has been accomplished, I do not think that my fellow-Democrats will thrust me aside to make way for those who neither affiliate with the party nor vote its ticket." As a general rule, in the country at large political considerations are decisive, both in cases of popular election and of executive nomination, but as to the latter exceptions are more frequent. One instance has occurred in which a President of the United States nominated to the Supreme Court a member of the party in opposition to the administration,[Footnote: Howell E. Jackson, a Democrat, was thus appointed by President Harrison, a Republican, in 1893. President Taft, a Republican, has since appointed two Democrats, justices Lurton and Lamar, and made a third Chief Justice.] and the same President, upon the creation of the Circuit Court of Appeals, when there were a number of new judges to be appointed, gave several of the places to those not of his political faith. It is, however, to be expected that the Presidents of the United States, as a general rule, will place upon the Supreme Court none whose political opinions are not similar to their own. It is a court wielding too great a political power to allow this ground of qualification to be lightly passed over. Precisely because of this, the political antecedents of the justices of the Supreme Court are more apt to be discoverable in their opinions than is the case in State courts. Professor William G. Sumner, in referring to the change of character of the Supreme Court by reason of Jackson's appointments to it, remarks with some truth that "the effect of political appointments to the bench is always traceable after two or three years in the reports, which come to read like a collection of old stump speeches."[Footnote: "Life of Andrew Jackson," 363.] In States where the judges are only appointed for a certain term of years, it is not unusual for the Governor, if he has the power of nomination, to exercise it in favor of outgoing judges who are his political opponents. So, also, if there happen to be several original vacancies to fill, it is the traditional method in a few States to give one of the places to a member of the opposition party. If the election belongs to the legislature, a similar practice prevails in some of the older States. In Connecticut but six instances of refusing a re-election to judges of the higher courts for mere party reasons have occurred for more than a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and Trumbull were dropped in 1818 and 1819 as an incident of the political revolution which destroyed the Federalist party in Connecticut and brought about the adoption of a Constitution, under which the judges were to hold for life, to replace the royal charter. Judges Seymour and Waldo were dropped in 1863 during the Civil War, because they were classed with the "Peace Democrats." Their successors, however, were appointed from the "War Democrats," though the legislature was Republican.] In Vermont, where elections to the Supreme Court were annual, Judge Redfield was placed on the Supreme bench and then re-elected year after year for twenty-three successive years by legislatures controlled by the party politically opposed to him.[Footnote: Edward J. Phelps, "Orations and Essays," 220.] 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. In a few States a distinction is made between attorneys with reference to the courts in which they may practice. When first admitted it is to the bar of the trial courts. Later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the State. This distinction reaches back, in New Jersey, to the colonial era. Attorneys were there a different class from "counsellors," and, following the English practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. The last lawyer bearing the title survived until nearly the middle of the nineteenth century. In this State the Governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the Supreme Court.[Footnote: _In re_ Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.] The admission of attorneys in the several courts of the United States is determined by rules which they respectively establish from time to time. These rules make the only qualification membership in regular standing for a certain period of time in the bar of a State and good moral character. There is no doubt that the United States have been in advance of England both in providing means of legal education and in requiring their use. The length of the course of study now established at our older Law Schools--three years--seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. The first provision for one or more years of graduate study for those who may desire it was made at Yale University in 1876, and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice. Unquestionably the American bar is now, as a whole, a far better trained class of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased. * * * * * Members of the bar are always subject to punishment by the court for official misconduct. This may be by censure, temporary suspension from practice, or disbarment. If guilty of contempt of court, they can also be sentenced to fine or imprisonment.[Footnote: See Chap. XX.] As suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing. Disbarment cannot be decreed by the legislative department. That would be virtually an act of attainder. It must come from a judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's Reports, 333, 378.] In some States the principal trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. In others such committees are created by Bar Associations, of which almost every State has one for the whole State, while several have also one or more local associations. It is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either institute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be instituted there by its order and conducted by the public prosecutor. In the larger States, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. In the smaller States they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest. The Bar Associations, which first began to start up soon after the Civil War, have been of great service in upholding the honor of the profession. Their Constitutions generally name this particularly as among their professed objects. One State[Footnote: Alabama] has recently under such influences, passed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to institute proceedings for any violation of the law, upon the complaint of the council of the State Bar Association. The steadily and rapidly increasing proportion of lawyers to the population in the United States necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. The principle of the concentration of industry also works against the great majority of them. Searching titles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. It is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. So collecting uncontested debts was formerly the staple of many a lawyer's practice. The general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau. Until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the English bar. In 1806 there was but one lawyer in New England with an annual professional income of $10,000: until about 1860 there was none in Connecticut, and probably not over a hundred in the entire country.[Footnote: Parton, "Life of Aaron Burr." 153; Great American Lawyers, III, 55.] In 1827, William Wirt was informed by Justice Thompson of the Supreme Court of the United States that "six, eight, and ten thousand dollars is considered great practice in New York and ten thousand dollars the _maximum_."[Footnote: Kennedy, "Memoirs of William Wirt," II, 209.] Thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[Footnote: Parton, "Life of Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000 when at the height of his career.[Footnote: Harvey, "Reminiscences of Daniel Webster," 84.] The Civil War was the occasion of many important business enterprises, and gave rise to much litigation. It brought also a great increase of wealth to the North and West, and new and greater investments of Northern capital in the South. From that time the business of the leading lawyers in every State became more remunerative. Incomes of $20,000 and $25,000 were occasionally earned in the smaller States, and of four or five times as much in the larger ones. The American lawyer of the eighteenth century was apt to have his office in his house. During the nineteenth century this became less and less common and is now comparatively rare. In cities certain streets, generally near the court-house, are crowded with lawyers' offices. These are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor. In many of the counties in Virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. A small rent is paid by the occupants to the county. When court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact. The relations of the bar to the bench assume a peculiar character under the conditions of American society. The judges stand closer to the lawyers in this country than in any other. All of them, unlike those of continental Europe, have been themselves practicing lawyers. The majority, unlike those of England, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. Not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. Those of the latter description always occupy a somewhat unfortunate position. The State does not expect them to devote themselves entirely to its service. It does not provide for their compensation on that basis. It expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. They certainly cannot practice in their own court with propriety. Statutes to prevent it are not uncommon. For the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. So, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[Footnote: French _v._ Waterbury, 72 Conn. Reports, 435; 44 Atlantic Reporter, 740.] There are, however, in every State quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. As respects those of the United States courts there is a statute (U. S. Revised Statutes, Sec. 713) making it criminal for them to practice law. Similar legislation exists in some of the States with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[Footnote: Perry _v._ Bush, 45 Florida Reports; 35 Southern Reporter, 225.] The demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. If they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. A greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the State courts. No judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. Chief Justice Parsons of Massachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point. The leaders of the bar of Boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room. The first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. The next met the same kind of interruption in the same way, and so on until the court room was cleared. The Chief Justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.] Occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing. Judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and analysis. The bar is their little world. It is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has asserted has not been conceded. It is much more common for American judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[Footnote: See a striking instance of this tendency given in Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau, 69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They dislike even to seem harsh. Most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. This is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in American courts than in those of most other countries. Another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. The lawyer holds a more permanent office in the court than the judge. He is quite likely to be his superior in learning and ability. He belongs to a class that is influential in the community, and whose members usually share quite actively in the direction of party politics. The judge in most instances holds but a brief authority. He does not wish to parade it in such a manner as might seem offensive. He is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. The judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. Trials for these reasons are longer in the United States than in England. Fewer summary rulings are made. More questionable evidence is admitted. More time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court. The broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. It is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. A foreign lawyer often hesitates to cross swords with the judge. He distrusts his own judgment if it differs from that of the court. He defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. He therefore seldom appeals on minor points of procedure, even if he could. In the United States probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause. The American lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question. Those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. The reputation of a judge depends on the opinion which the lawyers have of him. The general public may be deceived as to his character, ability and attainments; the bar cannot be. In the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the State. The lawyers recognize this feeling as just. It is common for them to rise as a body when the judge enters the bench. They find no difficulty in using the conventional style of address of "May it please the Court," or "May it please your Honor." When a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. If, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation. Less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. An incident occurring in Massachusetts about the beginning of the nineteenth century may serve as an illustration. Robert Treat Paine, a signer of the Declaration of Independence, resigned his seat on the bench of the Supreme Judicial Court in 1804, at the age of seventy, largely on account of deafness. Naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity. Fisher Ames used to refer to him as _Ursa Major_, and once told a friend that he should not go into court again, when Judge Paine held it, without a club in one hand and a speaking trumpet in the other. Theophilus Parsons, not long afterwards made Chief Justice of the State, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "Mr. Parsons, I tell you once for all, take that glove off your tongue." "Certainly, Sir," was the quick retort, "and may I beg your honor to take the wool out of your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.] Some twenty years later Roger Minott Sherman, the leader of the Connecticut bar, in trying a cause before an empty-headed judge who had been put on the bench for no other apparent reason than that his father was a man of distinction, quoted several English authorities and was about to read from another when the judge remarked that he need not take the trouble to read anything more of that sort to him. "Then," said Mr. Sherman, "with your Honor's permission I will read from it to the jury, and let me say that it is an opinion of Lord Ellenborough, a Chief Justice of England who rose to the bench by his own merits, and shone by no reflected light." One of the anecdotes of the Boston bar is that while Samuel Dexter, one of the great lawyers of his day, was arguing a cause in the Circuit Court of the United States before Justice Story, soon after his accession to the bench, the court suddenly interposed, as a certain principle was asserted, with "That proposition is not law, Sir," to which Mr. Dexter retorted, "It is the law, if your Honor please, and will finally be declared to be the law by this court," as indeed it was later by Justice Story himself.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 241.] Such a passage at arms between court and counsel as took place in either of these instances could now hardly occur. Out of court there is no longer this distance between judge and lawyer. While they will not talk over an unfinished case, one that is finally disposed of is often the subject of free comment by each. They are now entirely upon the same level in the community. Officialism is put off when the court room is closed. Socially they meet in the same circles and on the same footing. It is considered not improper for a judge to accept the hospitality of a lawyer concerned in a case before him, and even a case on trial. The American rule in this respect is much less strict than the English.[Footnote: See "Memoir of Chief Justice Parsons," 208-211.] * * * * * CHAPTER XXIV THE LAW'S DELAYS The right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. The plaintiff, too, has corresponding rights. It was found not so easy by Frederick the Great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. In a freer land no such result is possible. The power of the judge to expedite trials is also much less in the United States than in most countries. They must be had mainly on oral testimony. The testimony must be so given that thirteen different men may each understand it. What the witnesses may be allowed to tell, and what they cannot be, depends on the application of numerous and artificial rules of evidence. If there is a question as to whether this rule or that applies, the judges sometimes invite and generally allow a discussion by counsel. Appeals are liberally conceded. If exceptions to any ruling of the court are to be made the basis of proceedings in error, they must be carefully noted at the time, and afterwards made the subject of a lengthy set of papers. Many trial judges are young men of little experience either on the bench or at the bar. They are learning the law by administering it. Such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. It is hardly probable that they will always come to the right decision at last. Hence it is that so great a liberty of appeal is granted in every American State. Appeal means delay.[Footnote: See Chap. XIX.] A man is fortunate whose appeal is heard within three months and decided within six. Oftener he must expect to wait a year or two. During a long course of years an appeal to the Supreme Court of the United States could not be reached for argument in regular order in less than three years after it was taken. In Nebraska, for some time prior to 1901 the Supreme Court was so overwhelmed with business that it could not hear a cause until five years after it was docketed. In 1882 a brakeman was injured on a New York railroad. He brought suit against the company, and in 1884 recovered $4,000 damages. The judgment in 1886 was reversed on appeal. On a new trial he got a verdict for $4,900. This was appealed to two courts successively. The first affirmed and the second reversed the judgment. In 1889, there was a third trial, at which the company won. Two appeals by the brakeman followed. On the first the intermediate appellate court, in 1894, decided against him. On the second, in 1897, the court of last resort decided for him. For the fourth time the case came on in the trial court, and a verdict for $4,500 was recovered. The company appealed and with success. A fifth trial gave him a verdict for $4,900. This, too, was set aside on appeal. A sixth trial followed with exactly the same results. In 1902, the seventh and final trial took place. The verdict this time was for $4,500. The company appealed again, but was defeated.[Footnote: Case and Comment, X, 50.] A lawsuit that embraces seven appeals and lasts for twenty years is, of course, a rarity, but the system of administrative justice under which such things are possible is faulty somewhere. The right of trial by jury is one cause of such delays. The broad right of appeal is another. The want of skill and experience on the part of trial judges and trial lawyers may be a third. The twenty-three English judges of the High Court of Justice (with the aid of masters in chancery and referees) actually try and determine about fifty-six hundred cases a year.[Footnote: This was the average number for each of the years 1900 and 1901.] Each judge, therefore, on the average, dispatches over two hundred and forty. No American judges under our American system of practice could do as much and do it well. We tolerate a succession of motions and objections and arguments from the bar which English courts would not. We often take more time in impanelling a jury than they would in trying the case. The American bar, unlike the English, is not so constituted that a certain number of its members are professedly devoted in a special way to the trial of cases. The English barrister in active practice may almost be said to do nothing else. His standing and his income depend on his ability to try case after case in rapid succession. Others are responsible for their slow and careful preparation. He is responsible for their quick and effective dispatch when the preparation is ended. He becomes necessarily familiar with the _technique_ of a trial at every point. In examining a witness, he strikes directly at what is material, and would be ashamed to appear ignorant of what that is. In argument he stops when he is through. The ordinary American lawyer who tries a case to-day, draws papers constituting a partnership or a corporation the next, and prepares an opinion on the construction of a will the day after, has not that concentration of knowledge which comes from concentration of occupation. The art of making a clear and definite statement of the points in controversy on paper is also one not sufficiently cultivated by the American bar. Without it the system of "code pleading," which has in most States supplanted the rigid and often meaningless forms of the common law, leads to confusion and obscurity. The claims of each party ought to be, but seldom are, so presented that matters of law are, so far as possible, kept distinct from matters of fact, and what he means to prove is set forth, but not the evidence by which he hopes to establish it. This looseness of pleading leads to endless motions to expunge this and correct that, and time of the court is taken up by the preliminaries of trials which, if the lawyers used more care or had more skill, would be devoted to the trials themselves. Still worse is it when such motions are postponed until the case comes on for final hearing, and witnesses and juries are compelled to wait during tedious arguments over questions of mere form. In our great centers of population business under these circumstances almost necessarily accumulates too fast for the courts to handle it. In bringing on criminal trials there is little delay, unless at the request of the accused, and for what seems good reason. Our Constitutions generally provide that whoever is to be tried on a criminal charge shall be tried promptly, and the practice of the courts conforms to this rule. The broad right of appeal, however, for errors of law on the part of the court may serve to postpone the execution of a sentence, and too many new trials are granted by the courts for steps in procedure in matters of a purely technical character. Delays from this cause are, however, comparatively infrequent. Most convicts are too poor to take advantage of it. Most also know that their sentence is just, and are anxious only to have it executed and through with as soon as possible. In hardly one case in a hundred is an appeal taken or, if taken, pursued to the end.[Footnote: See Chap. XVII.] In our largest cities the disposition of criminal business occupies the time of several judges, and the prosecuting officer has a staff of professional assistants. In cases of such importance as to call for his personal management a postponement is occasionally inevitable. In Chicago, in December, 1903, over a thousand cases were awaiting trial in the Criminal Court. It tends to expedition in the trial of any cause if it is heard before a judge especially familiar with the class of questions which it involves. Criminal courts, particularly in cities, are largely held by judges whose work is either wholly or mainly confined to them. This helps greatly to prevent delays in such tribunals. For a similar cause admiralty business is dispatched with great rapidity by the District Judges at our principal ports, and patent causes by the Circuit Courts. In the criminal courts of New York City in 1903, there were about 3,000 prosecutions on which indictments were found, and the defendant committed for want of bail. In most of these cases there was a plea of guilty, but counting them with the others, the average time as to all which elapsed between the original arrest and the final judgment was only eight days. During the same time those who gave bail were generally tried within three months from their arrest.[Footnote: Nathan A. Smyth in the Harvard Law Review for March, 1904.] An insufficiency of judges was formerly one great cause of delay, but the modern tendency has been to have too many, rather than too few. In the Court of Chancery in Virginia (which was held by a single Chancellor, then a man seventy-six years old) there were in 1802, 2,627 causes pending at one term. In the city of New York a jury trial in civil causes cannot ordinarily be reached until two years after they are brought. In its principal trial court between four and five thousand cases are annually disposed of, and in 1903, there were nearly ten thousand on its docket. When the criminal courts in the borough of Manhattan--the greatest division of the city--were opened in October of that year, there were nearly five hundred different prosecutions to be disposed of, and a hundred and sixty-seven prisoners awaiting trial who had been unable to procure bail. In the county containing the city of Chicago (and which contains little else), there were in 1903 twenty thousand civil cases on the dockets of the courts. This mass of business it would require more than two years and a half to dispose of with the number of judges then provided, were no new suits instituted to divide their attention. A very large part of the cases tried to the jury are claims for damages for accidental injuries received by employees in the course of their service. In the county in Missouri including Kansas City there were, in December, 1903, over fifty-one hundred civil causes on the dockets of the various courts. The population of the county was less than two hundred thousand. About three-fourths of the cases were against corporations for injuries received by their employees. The defendant in such an action is generally in no hurry to bring it to trial. The plaintiff often is not. He may have a weak case, brought in the hope of forcing a settlement. He has probably no money to pay his lawyer for trying it, and finds it hard to get together what is necessary to summon his witnesses and provide expert testimony as to the nature of his injuries. Whenever it is tried, however, he is sure to want a jury, for if the case is a good one a jury is apt to give larger damages than a judge, and if a bad one a jury is less likely to appreciate its weakness.[Footnote: McCloskey _v._ Bell's Gap R. R. Co., 156 Pennsylvania State Reports, 254; 27 Atlantic Reporter, 246.] A jury trial is much slower than a trial before a judge, although the decision is apt to come more quickly. It also facilitates appeals by necessarily presenting more occasions for error. A judge in trying a cause, if evidence of doubtful competency is offered, can admit it provisionally and exclude it afterwards if, on deliberation, he thinks that it should not be considered. With a jury this is impossible. There must be an immediate ruling one way or the other. In the charge to a jury, also, opportunities are offered for exceptions which do not exist if the cause is to be decided by the judge alone. He does not have to instruct himself in public. He can study the case in private at his leisure. A cause of delay formerly existed in several States which arose from the method of computing the costs taxable against the losing party. They included, by statute, a certain sum, say twenty-five or thirty-three cents a day for each day's attendance at court by the prevailing party. This was construed to mean each day during which the action lay in court, since upon any of them it might by possibility be called up, and the client was always represented by his attorney of record, a notice to whom was a notice to him. Christian Roselius, one of the leaders of the New Orleans bar in the nineteenth century, once said that he had spent a fourth of his life in the court house waiting for his cases to be called. The lawyers, as the duty of attendance fell on them, generally considered this allowance as their perquisite. An attorney with a large docket received, therefore, a number of dollars for every day the court sat, and the longer the term lasted or the more terms to which a cause was carried over, the larger was his gain if his client ultimately obtained judgment, and the defendant was of financial responsibility. This system was not universally discontinued until the last quarter of the nineteenth century. A few States, by statute or constitutional provision, set a certain time within which a decision must be rendered after the trial. California gives ninety days; Idaho (Const., Art. V., Sec. 17) thirty. A sanction for the law sometimes provided is that the judge cannot draw his salary until he has made oath that he is in no default. * * * * * CHAPTER XXV THE ATTITUDE OF THE PEOPLE TOWARD THE JUDICIARY Americans are proud of their country and of their State. They are proud of their scheme of government, by which an imperial world-power has been created for certain national and international purposes, resting on a collection of States, each of which is an independent sovereignty, absolutely as respects the others, and for the most part as respects the United States. They are in the mass an educated and intelligent people. The public schools have thus far been found adequate to Americanizing the children of foreign immigrants. The colored population of the South stands largely by itself, and constitutes no active and self-moving force in matters of political concern. An educated and intelligent people living under a government of written law of their own making cannot but know how vital it is that this law should be fully guarded and fairly administered. Americans have become distrustful of their legislatures. They believe that much of their work is ill-considered, and that some of it has its source in corruption. They are far removed from the chief executive magistrates, and from the sphere in which they move. The President comes nearer to them than the Governor of their State because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. They look for these to the courts, and they know that they will seldom look in vain. Only an educated and intelligent people can live under a written Constitution. It requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient institutions. Our Constitutions are mainly the work of former generations. We may amend or recast them, but the substantial framework will remain the same. Our Declarations of Rights speak the language and the lessons of the eighteenth century. Their provisions are almost wholly aimed at our executives and legislators. They give guarantees which the judiciary only can enforce. No people can steadily prosper unless a just mean be preserved between reform and conservatism in the administration of the government. The courts stand for conservatism, but by their recognition of custom as law, and their free use of logic and analogy to develop law, they also keep a door open for the entrance of reform. The courts also come very close to the people. They are to be found in every county and almost every township. They settle the estates of the dead. They protect the living. They act largely through juries made up of the people and returning to them after a brief term of public service. All these considerations put Americans in a friendly attitude toward the judiciary. It makes less show of authority than the policeman or the militiaman. But the people feel that it has authority and is ready to exercise it always to secure that right be done. When a plain man who thinks that he has been wronged by another declares that he "will have the law on him," it expresses his conviction that he can get justice from the courts. The creation of the judiciary of the United States was welcomed at the outset by all.[Footnote: See "Life of Peter Van Schaick," 435.] It was not until party feeling had become intense that Republicans found it difficult to look with approval on a force evidently becoming stronger every day, and that Jefferson could describe the Supreme Court as the sappers and miners who were gradually undermining the foundations of American liberty.[Footnote: Letter to Thomas Ritchie of Dec. 25, 1870. "Works of Thomas Jefferson," VII, 192.] Of the political questions which engaged attention over the whole country from time to time from the adoption of the Constitution to the close of the Civil War, almost all bore some relation to the institution of slavery and derived their real vitality from that connection. Slavery depended on State laws. Unless the authority of each State to allow and regulate it were preserved, its countenance would be endangered. This was largely the source of the "State Rights" cry. Almost all the powers which the United States possessed the States had lost. For thirteen years each had been in the position of a full sovereign. Its courts had exercised jurisdiction over all kinds of actions. Now a new set of courts had risen up having over many actions an equal jurisdiction, over some a superior one.[Footnote: See Chap. X.] The case of Chisholm _v._ Georgia,[Footnote: 2 Dallas' Reports, 419.] in 1793, and the institution of similar suits against other States of the South showed that the Supreme Court of the United States claimed authority to render a money judgment against a State, which meant that it could then issue an execution to collect it by levying on the property of the State. In 1798, the Alien and Sedition Laws were passed, and a crime previously cognizable exclusively in the State courts was made a subject of prosecution in those of the United States if it affected an officer of the United States. A member of Congress, Matthew Lyon, of Vermont, who was sentenced in the Fall of that year to a fine of $1,000 and four months in jail for writing of the President and Senate, that his message to Congress in 1797 was a bullying speech, which the Senate in a stupid answer had echoed with more servility than ever Geo. III. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by Congress in 1840. The case of Jonathan Robbins[Footnote: See Chap. III.] in South Carolina in 1799, showed that the Circuit Court at the request of the President could surrender an American citizen to a foreign government to be carried off and tried for murder. This and the sentence of Lyon became immediately the subject of hot discussion in Congress, and both contributed to the political revolution which put Jefferson in the seat of Adams in 1801. The creation by the outgoing party of places for eighteen new Circuit Judges appointed by Adams in the last month of his administration strengthened the popular feeling that the courts of the United States were too powerful. That Act was at once repealed,[Footnote: See Chaps. IX, XXII.] and also the provision for the next regular term of the Supreme Court. The latter measure was taken to prevent any legal proceedings in the Supreme Court to secure its intervention in behalf of the displaced judges. The new circuit system had been swept away, but the full bench at Washington, headed by Marshall, remained. The unsuccessful impeachment of one of them followed in 1804.[Footnote: See Chap. III.] His acquittal the next year, and that of a majority of the Supreme Court of Pennsylvania,[Footnote: McMaster, "History of the United States," III, 159.] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. Judicial independence had been secured by the very struggle to defeat it. What has won in any contest finds favor with the multitude. They admire a victor. From this time on the courts both of the United States and the States grew in public esteem. When those of the former seemed to trench on the fields of State sovereignty, particularly in the South, the inroad was resented.[Footnote: See letters of Marshall alluding to this, in "Proceedings of the Massachusetts Historical Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern State it was even opposed by force.[Footnote: See Chap. X.] As late as 1854 the supremacy of the Supreme Court of the United States in expounding the federal Constitution was contested by the courts of a Northern State; there also in a case growing out of the system of slavery.[Footnote: Ableman _v._ Booth, 21 Howard's Reports, 506.] Another decision by the same tribunal of a similar nature--that in the Dred Scott case[Footnote: Dred Scott _v._ Sandford, 19 Howard's Reports, 393.]--greatly strengthened the confidence of the Southern people in the federal courts, and weakened that of the North. It did much to bring on the Civil War, but the result of that struggle was to confirm the authority not only of the Supreme Court but of the Supreme Court as it was under Marshall and his original associates. In 1901, the centenary of his appointment was celebrated all over the country, North and South. Such a tribute was never paid before in any country to the memory of a judge. His services were commemorated for the very reason that led Jefferson to depreciate them--because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any State. Confidence in the State courts has also been strengthened during the last century. It was greatly shaken at the time of the fall of the Federalists. They had lost the executive and legislative power, but they retained the judicial, and the Republicans found it hard to tolerate courts that represented the political ideas of a former generation. This continued long after the extinction of the Federalist party, and often extended to distrust of judges elected by the Republicans who were thought to have become affected by the influence of their senior associates. In the New York constitutional convention of 1821, Peter R. Livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 618.] Who, he asked, were the present judges of their Supreme Court? "Judge Spencer came into office under a republican administration; Judge Van Ness was appointed by a mongrel council; and the elevation to the bench of Judge Platt was occasioned by the defection from the Republican ranks of a man elected to the Senate from the county of Dutchess, who acted the part of a political Judas, and sold his party. We have been bought and sold--there is not one of these men who would have been on the bench if our administration had been truly republican.... There is not a man in this Convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 620.] The judiciary may also have suffered somewhat in the esteem of dispassionate observers on account of its attitude in many of the States toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. In commenting on a judicial opinion in a Southern bank case, the author of one of our leading American legal treatises, himself once a judge, has referred to this period in these plain words: Decisions of this kind, which were not infrequent in the era of State banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. It can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[Footnote: Thompson on "Private Corporations," V, p. 5306.] It is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. Independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. He acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it. The Bar Association of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench. It is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. Jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. As a whole, however, American courts are clean-handed throughout, and the people know it. The judiciary has been popularized in most States by constitutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the Governor or legislature by election by the people. The powers of judges have been on the whole increased. The only matter in which they have been substantially cut down is that of punishment for contempt. Serious attempts have been made to abridge their jurisdiction over injunctions, but without success. These attacks have come from those representing certain labor unions. The more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a class of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[Footnote: The number of the _Pennsylvania Grange News_ for Sept., 1904, states this view at length.] As a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the class of working-men in the general acceptation of that term. Their education has cost money and is generally the fruit of capital. The judges of the higher courts are usually men of some means. If they were not, they could not have afforded to accept their places. But the people at large do not believe that only the poor man can be relied on to deal justly on the bench. The mass of working-men do not believe it. They do believe that courts have too much power over them in their associated relations. They are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. But they know that it is from the legislatures and not from the courts that this must be sought. The federal judges stand higher in public estimation than the State judges of corresponding rank. This is partly on account of the paramount authority of the government which they represent. It is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. It is more because of their permanence of tenure. This removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment. Our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the States or of the United States, but the people know that there is less of it there than in any other department of governmental action. President Hadley of Yale University has thus expressed what is the general view of the work of the courts held by thoughtful men in the United States; and it is they who in the long run form and lead public opinion. "On the whole, federal and State courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority.... It has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. The anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. But I think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of American liberty; and that while Hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. I believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the American republic from the necessity of repeating the successive revolutionary experiences which France underwent before she could attain to a stable democracy."[Footnote: "Freedom and Responsibility," 23, 24.] This confidence in and respect for the judiciary as a whole has increased with the general advance of the country in population and wealth. There have been larger questions with which to deal, and the courts have been found adequate to the task. But at the same time the personal consequence and reputation of every individual American judge has been steadily decreasing. As States multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. There is no room for star players upon the stage. Broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as Marshall or Story, Kent or Parsons, did, apart from his fellows. Popular confidence is now not placed in courts because this or that man is the ruling spirit in them. It is impersonal and attaches itself to the institution of the judiciary as, all things considered, the best guaranty of good government in the United States. This spirit of confidence is, of course, not universal and unqualified. It is often not found in bodies of working men, associated as Labor Unions. They have repeatedly found a court enforcing public order in a way that interfered with their manner of conducting a strike. They have been met by injunctions, and more often by criminal prosecutions. The membership of a Labor Union, in many parts of the country, is apt to be largely of foreign birth. The leaders not infrequently know little of the English language and less of American institutions. They have been led, in their native land, to regard the law and its officers as their enemies, and they look at them in the same way here. It is believed, however, that a large majority of the Unions regard them with respect, and it is certain that such is the prevailing feeling of non-union men. But that the public trust in our judges is less than it was when the first edition of this work was published,[Footnote: See _supra_, page 340.] is indicated by the favor with which, in many quarters, the doctrine of the "judicial recall" has been received. The dangers incident to its practice are obvious, and seem far to outweigh any attending advantages. In the United States, of all lands on the face of the earth, it is important that the judges should act with resolution and without thought of the consequences personal to themselves. Elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation. To expose one who exercises this power to immediate displacement, by a popular vote--largely, perhaps, composed of his political opponents--is to invite the enactment of questionable statutes, and still worse--to weaken the attractions of the bench for able and honest men. Our judicial terms, in most of the States, are already too brief for the public good. To make them determinable at the will of the electoral constituency tends powerfully to keep good lawyers at the bar, who might otherwise have done honor to a judicial station.