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The American Judiciary
by Simeon E. Baldwin, LLD
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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.

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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.]

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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.]

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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 declaration de principes, fut decrete d'accusation et condamne, non sans justes motifs. Mais son crime impardonable etait de proclamer trop franchement les doctrines de la magistrature elective: il trahissait le secret professionnel.[Footnote: Duc De Noailles, Cent Ans de Republique 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.

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