It is within the power of Congress to assume the exclusive regulation of bankruptcy proceedings throughout the United States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is in this country no real difference in meaning between the terms bankruptcy and insolvency. Each denotes astatusinto which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. The remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent.
During most of the history of the United States there has been no uniform law on the subject of bankruptcy for the whole country. Three bankrupt Acts were enacted by Congress from time to time during the first century after the adoption of the Constitution. Each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had passed away. They were adopted as a kind of [Greek: seisachtheia] to help insolvent debtors to get on their feet again. A later Act passed in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large, 544; 32id., 797.] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books.
The prosperity of the United States rests mainly on the absolute free trade which exists between the several States. That necessarily results in innumerable credits extended by citizens of one State to those of others, and in immense property interests in each State belonging to non-residents. In case of insolvency full justice can not be worked out except through the legislative powers vested in the United States.
The Act of 1898 allows any one except a corporation to become a voluntary bankrupt. Practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $1,000. This is so even if a State court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings.
Petitions in bankruptcy are preferred to a District Court of the United States. Each bankrupt estate is put in charge of one or more trustees. They can maintain actions to recover or protect it, as a general rule, in the courts of any State as well as in those of the United States.[Footnote: See Bardesv.Bank, 178 U. S. Reports, 524.]
Their title does not extend to anything which by the laws of the State where the bankrupt belongs is exempt from his creditors. Such exemptions differ greatly in different parts of the country. In some States certain property of the value of $5,000 may be exempt; in others the amount which the debtor can retain is comparatively trifling. There is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[Footnote: Hanover National Bankv.Moyses, 186 U. S. Reports, 181.]
The bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. If such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court.
A discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. It does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings.
Whenever there has been no national bankruptcy law in existence, the States have been held to be free to pass such insolvent laws as they might think proper. During the existence of a national bankruptcy law no State insolvent law can be of any force which covers the same field.[Footnote: Ogdenv.Saunders, 12 Wheaton's Reports, 213; Tuav.Carriere, 117 U. S. Reports, 201; Ketchamv.McNamara, 72 Conn. Reports, 709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded or suspended as a necessary effect of the enactment of the Act of Congress, although that contains no express provision to that effect.
Most of the States have on their statute-books provisions for a permanent system of insolvency proceedings. In some they are as favorable to the debtor as the United States bankrupt law of 1898: in more they are less favorable. Generally such proceedings are brought before a court of special jurisdiction, constituted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. In the older States it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims.
The relief which the States are competent to give either to debtor or to creditor is very inadequate. The discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. None are so subject except those belonging in the State, or actually taking part in the proceedings.
Every bankruptcy or insolvency proceeding is a great lawsuit. The discharge is the final judgment in it. It can bind none who are not parties to the action. Only those are parties who were bound to appear, or who did appear. No one belonging to any other State or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. Any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. But as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very State by authority of which it was granted.
On the other hand, the creditor gets less aid from the State courts than a trustee in bankruptcy. The trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. The trustee or assignee in insolvency, acting under the appointment of a State court, can only sue within that State, unless his title has been fortified by a conveyance from the insolvent which would be good at common law. So far as his title rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction.
*[Footnote: Boothv.Clark, 17 Howard's Reports, 322, 337;Halev.Allinson, 188 U. S. Reports, 56.]*
If, therefore, as is commonly true in estates of any magnitude, part of the assets can only be recovered by suit in other States, there must be ancillary insolvency proceedings there, to clothe the principal assignee with the right of action. Should the insolvent be the owner of land in another State, the title to this can only be transferred in accordance with its law, and a foreign assignment in insolvency will be wholly ineffectual. Nor will ancillary proceedings in insolvency be allowed to prejudice the rights of citizens of the State in which they are instituted to any security which they might otherwise have for debts due them from the insolvent.[Footnote: Wardv.Conn. Pipe Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers' Reports Annotated, 706; 71 Am. State Reports, 207.] The right, however, of every sovereignty to postpone claims under a foreign bankruptcy or insolvency to the interests of its own people is modified in the United States by the constitutional provision that the citizens of each State are entitled to all privileges of citizens in the other States.[Footnote: Blakev.McClung, 172 U. S. Reports, 239.]
* * * * *
The American system of criminal procedure rests on the principle that the government should decide on the propriety of beginning all prosecutions, and then should bring and maintain, at its own expense, such as it may deem proper.
The first step ordinarily is the filing by an informing officer of a written complaint in the office of some court or with some magistrate, upon which a warrant of arrest issues as of course. In some jurisdictions original informations in a trial court, as distinguished from indictments, can only be filed by leave of court first obtained. Such is the rule in the courts of the United States.[Footnote: United Statesv.Smith, 40 Federal Reporter, 755.]
There is no such preliminary consultation with judicial officers as characterizes European criminal procedure. The prosecuting officer assumes the entire responsibility of initiating the prosecution and of giving it the particular form that it may assume. He commonly acts only on such matters as are officially brought to his attention by constables or other officers of police. It is rare that the party injured by an offense complains to him personally. Hence many of the lesser offences go unpunished, particularly in large cities, because the police fail to report them, on account of favoritism or corruption.
The warrant refers to the complaint for its support. Between them, the offense charged, the person accused, and the thing to be done by the officer who is to make service must be particularly stated. "General warrants," that is, warrants of arrest or seizure, not specifying the person who is to be arrested, nor the particular place where the seizure is to be made, are expressly forbidden by the fourth amendment of the Constitution of the United States as respects federal courts, and as respects those of the States, are generally prohibited by their Constitutions.
Any private individual may, by night or day, arrest without warrant one whom he sees committing a felony or a breach of the peace or running off with goods which he has stolen. If he knows that a felony has been committed and has reasonable grounds for suspecting that it was the act of a certain person, he may arrest the latter, although without personal knowledge of his guilt.
A sheriff, constable, or other peace officer may arrest without warrant any one whom he has reasonable ground for suspecting to be guilty of a felony, although it may turn out that no such felony was ever committed. For any ordinary misdemeanor he could not, at common law, arrest without a warrant, unless he personally witnessed the wrongful act or was near enough to hear sounds indicating what was being done.
In practice, officers of local police arrest freely on mere suspicion and with no personal knowledge either that any offense has been committed or that, if any, the person taken in charge was connected with it. The only risk which they run is of an action for damages, and that is slight. If one were brought and they showed that they acted in good faith and not wholly without cause, the amount recovered would probably be very small, and in any case it would be difficult to collect a judgment against one of them, as they are generally men of small means.
In some of the original States a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. This was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete.
It is one of the distinguishing features of the English system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. In doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[Footnote: See Maitland, "Justice and Police," 141.] At common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. The complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution.
In some of our States, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. In many there are statutes authorizingqui tamactions to be brought by any one. These are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. The termqui tamcomes from the Latin terms of the old English writ used for such proceedings, in which the plaintiff describes himself as onequi tam pro domino rege quam pro seipso in hoc parte sequitur. The plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the State, or of some other public corporation or officers designated by the statute. He is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. In proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[Footnote: Canfieldv.Mitchell, 43 Conn. Reports, 169.] The action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. In such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. If the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. If he fails, he is personally liable to the defendant for the taxable costs of the action. Under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual.
The tendency of modern American legislation is toward placing the collection of penalties for misdemeanors wholly in the hands of public officers. Thequi tamaction is certainly a cheap mode of enforcing laws, and one likely to be pressed to a prompt issue. As observed by the late Judge Deady, "prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel."[Footnote: United Statesv.Griswold, 24 Federal Reporter, 361; 30id., 762.] But they appeal to sordid motives and are liable to abuse. One who is exposed to such a suit often gets a friend to bring it, in order to forestall proceedings by others or by the State, and with a view to delaying or defeating the collection of the penalty. These considerations induced Parliament to restrict the remedy in England as early as the reign of Henry VII, and have proved of equal force in course of time in the United States.
Justices of the peace and local municipal courts of criminal jurisdiction are generally given power to deal finally with a few petty offenses, subject to a right of appeal to a court where a jury trial can be had. As to all others, their function is, when the warrant of arrest has been executed, to inquire whether there is probable cause for holding the defendant to answer to the charge which has been made against him in a higher court, and if they find that such cause exists, to order him to give sufficient security that he will appear before it for trial. The question is not whether the evidence satisfies them of his guilt, but simply whether it is sufficient, in their judgment, to make it proper to send him where the charge can be more thoroughly investigated by those who have the right to condemn or to acquit. In making this inquiry, they hear both sides, if the defendant has any testimony to offer. In most States he is now a competent witness in his own behalf, provided he desires to testify.
He cannot be interrogated in any court or before any magistrate without his consent. This is a weakness in the American system of criminal procedure. Under the English system of prosecutions by private persons, there are greater objections to subjecting an accused person to an examination, and it can now only be had by his consent.[Footnote: Maitland, "Justice and Police," 129.] The certainty in England also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the Attorney-General or the Director of Public Prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. The magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law.
In the United States local prosecutors are often of a different party from that which controls the State or the United States. They have no close connection with those administering the general affairs of the government. They hold office for fixed terms, not dependent on any shifting of parliamentary majorities or change of ministry. Committing magistrates are in a similar position. They are also in many cases trained lawyers. If our Constitutions could be so modified or so construed as to allow them to ask the accused the questions that the sheriff who makes the arrest or the reporter who hurries after him to the jail is sure to ask, there are many reasons for believing that it would oftener prove a safeguard to innocence than an occasion for extorted and perhaps inconsiderate or misunderstood admissions. And be that as it may, it would certainly lead up to important clues, and frequently bring out admissions that were both unquestionably true and necessary to establish guilt.
The fifth amendment to the Constitution of the United States, and similar provisions in the various State Constitutions, preclude, so long as they stand, any radical reform in this direction. They speak for a policy that was necessary under the political conditions preceding the American Revolution, but which is out of harmony with those now existing in the United States. The interests of society are greater than those of any individual, and yet it is with us the State that is deprived in public prosecutions of an equal chance with the accused. While burdened with the necessity of proving his guilt beyond a reasonable doubt, it cannot, according to the prevailing judicial opinion in this country, so much as ask him at any stage of the prosecution where he was at the time when the crime charged was committed.
The terms of our Constitutions are not such as necessarily to demand the construction which has been generally given them by the courts. They have been commonly interpreted with a view to making them as helpful as possible to the accused.[Footnote: Boydv.United States, 116 U. S. Reports, 616.] Provisions against compelling him to testify have been treated as if they forbade requesting him to testify. They would seem, on principle, quite compatible with a procedure under which the committing magistrates should in every case ask the defendant when first brought before them whether he desires to make a statement, telling him at the same time that he can decline if he chooses. Should he then make one, it should be written down at length in his own words, read over to him for his assent or correction, and properly attested. Many a guilty man is now acquitted whose conviction could have been secured on what such a paper would have disclosed or have given a clue to ascertaining. Such an inquiry has long been the English practice.
The hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. Each party is apt to wish time to prepare for it. Meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. Here our practice differs from that of an English court of inquiry. While there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[Footnote: Maitland, "Justice and Police," 131.]
The essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. All our Constitutions forbid the taking of excessive bail. The sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. In fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. If too large an amount is demanded, the defendant can get relief on a writ ofhabeas corpusissued by some superior judge.
This privilege of bail in most States extends to, or at the discretion of the court may be allowed at, any stage of a cause, not capital, even after a final judgment and sentence, provided an appeal has been allowed with a stay of execution.
Bail is given orally or in writing, according to the practice of the particular State. When given orally, it is termed a recognizance. This is entered into by the personal appearance of those who are to assume the obligation before a proper magistrate or clerk of court, and their due acknowledgment before him that they do assume it. He makes a brief minute of the fact at the time, from which at any subsequent time he can make up a full record in due form. When bail is given in writing, the obligation is prepared in behalf of the government and executed by the parties to it.
Whoever gives bail as surety for another is by that very fact given a kind of legal control over him. He can take him into actual manual custody without any warrant, and against his will, for the purpose of returning him to court and surrendering him to the sheriff. This right is a common law right, arising from the contract of suretyship, and is not bounded by State lines. If the principal absconds from the State, the surety can have him followed and brought back without any warrant of arrest.
The amount of the bail, should it be forfeited, is payable either to the government or to some other representative of the public interests, as may be prescribed by statute. If the sureties have any equitable claim to relief by a reduction of the amount, there is often given by statute or judicial practice a right to the court in which the obligation was given or before which its enforcement is sought to grant a reduction from the sum which would otherwise be due upon it.
When a committing magistrate requires the defendant to give bail to appear in a higher court, and he does not give it, he will be committed to jail to await his trial there. In this court he is sometimes tried on the complaint upon which he was originally arrested: oftener a new accusation is prepared. This may be either an information or an indictment.
At common law, no one could be tried for a felony unless a grand jury were first satisfied that there was good ground for it. The grand jury consisted of not more than twenty-four inhabitants of the county, and in practice never of more than twenty-three, summoned for that purpose to attend at the opening of a term of court. To authorize a prosecution the assent of twelve of them was required. They heard only the case for the prosecution, and heard it in secret, after having been publicly charged by the court as to the nature of the business which would be brought before them. The court appointed one of them to act as their foreman, and he reported back their conclusions in writing, and in one or the other of two forms—by presentment or indictment.
A presentment was a presentation, on their own motion, of an accusation against one or more persons. They were the official representatives of the public before the court, and it might well be that offenses had occurred, and become matters of common notoriety, prosecutions for which no one cared or dared to bring. Such a proceeding was comparatively rare.
The common course was to pass only on such written accusations as others might submit to their consideration. These were called bills of indictment. If the grand jury believed that there were sufficient grounds for upholding any of them, their foreman endorsed it as "A true bill," and it then became an indictment. If, on the other hand, they rejected a bill of indictment as unfounded, the foreman indorsed it as "Not a true bill," or with the Latin term "Ignoramus," and this was the end of it.
The organization and functions of the American grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. In the Federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the Constitution of the United States all charges of infamous crimes must be, prosecuted by presentment or indictment. In most of the States the intervention of a grand jury is requisite only in case of serious offenses; in some only in capital cases. It is obvious that it is less needed here than in England, since here it is not within the power of any private individual to institute criminal proceedings against another at his own will, but they are brought by a public officer commissioned for that very purpose and acting under the grave sense of responsibility which such authority is quite sure to carry with it. The grand jury, however, has its plain uses wherever political feeling leads to public disorder. It has also, since the Civil War, been found an effective restraint in some of the Southern States, whether for good or ill, upon prosecutions for violations of certain laws of the United States, brought against members of a community in which those laws were regarded with general disfavor.
Prosecutions by information are those not founded on a presentment or indictment. The information is a written accusation filed in court by the prosecuting officer. In certain classes of cases, the leave of the court must be first asked in some jurisdictions. It is not necessary that it be supported by any previous statement or complaint under oath. The officer who prepares it acts under an oath of office, and that is deemed sufficient to give probability to whatever charges he may make.
If the defendant has already been bound over by a committing magistrate, such an information may take the place of the original complaint on which the arrest was made. If he has not yet been arrested, or if he was arrested and discharged by such a magistrate, the filing of an information is accompanied by a request for the issue of a warrant for his arrest from the court. Such a paper is called a bench warrant, and is granted whenever necessary, whether upon a presentment, indictment, or information.
An information may be amended by leave of the court at any time. A presentment or indictment cannot be. They, when returned to court, are the work of the grand jury, and they end its work. An amendment of a legal process can logically be made only by the hand which originally prepared it. This rule leads to the escape of many a criminal. If prosecuted by indictment, the case against him must be substantially proved—in whole or part—as there stated, or he goes free. Prosecuting officers therefore naturally prefer to proceed upon information whenever the law permits it.
The intervention of a grand jury is also often the necessary cause of a delay alike prejudicial to the State and to the prisoner. It can only be called in when a court is in session, by which it can be instructed as to its duties and to which it is to report its doings. Months often elapse in every year when no such court is in session. For this reason, in case of a poor man under arrest on a charge of crime, who cannot furnish bail, it would often be much better for him were his liability to be brought to trial to be settled promptly by a single examining magistrate. At the hearing in that case also he has a right to be present and to be heard. Before a grand jury he has no such right.
In most States, the great majority of indictments are against those who have already been committed on a magistrate's warrant to answer to the charge, should an indictment be found. The accused thus has two chances of escape before he can be put on trial for the charge against him: one by a discharge ordered by the committing magistrate, and one by the refusal of the grand jury to return "a true bill." A grand jury is more apt to throw out a charge as groundless than a single magistrate. He feels the full weight of undivided responsibility. If he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. If he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. He acts also in public. The whole community knows or may know the proofs before him, and will hold him to account accordingly. On the other hand, in the grand jury room all is secret. The prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. No one outside knows who may vote for and who against the return of an indictment. Every opportunity is thus afforded for personal friendship for the accused or business connection with him to have its influence. Judges know this, and in their charge often emphasize the importance and gravity of the duty to be performed. In 1903, the prosecuting officer in one of the small counties in Kentucky had prepared indictments against several men of some local prominence for arson and bribery. A special grand jury was summoned to act upon them. There was reason to expect some reluctance on the part of several. Of the witnesses for the State some were no less reluctant. There was great public excitement in the court town. One witness came there over ninety miles by rail hidden, for fear of his life, in a closed chest in the car of an express company. The grand jury were told by the court that they must make their inquiry a thorough one and indict without fear or favor every person in the county who ought to be indicted. "If," the judge added, "the evidence calls for indictments and you don't make them, they will be made anyway. If you do not do your full duty, I will do mine by assembling another grand jury." They did theirs under these stirring injunctions, and the indictments were promptly found.
After the indictment or information comes the arraignment. This is bringing the defendant before the court and, after the charge made against him has been read, directing him to plead to it. Before the plea is entered, if he has no counsel, he is asked if he desires the aid of one, and if he responds that he does (or should he not, if the court thinks he ought to have counsel), some lawyer will be assigned to that duty. Some of the younger members of the bar who are present are generally desirous of being so assigned to defend those who have no means to employ such assistance. The court ordinarily makes the assignment from among their number, but in grave cases often appoints lawyers of greater experience and reputation. No one who is so assigned is at liberty to decline without showing good cause for excuse. A small fee is often allowed by statute in such cases from the public treasury. Statutes are also common providing that witnesses for the defense may be summoned at the cost of the government, if the defendant satisfies the court that their testimony will be material, and that he is unable to meet this expense.
In the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial.
Whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. Each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. If a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. In grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. A capable judge will keep such an inquiry within close limits.
In 1824, an indictment for murder was found in Kentucky against a son of the Governor. The case was one which excited great public interest, and was talked over from one end of the State to the other. The result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. The legislature was finally appealed to for relief and passed a statute that an opinion formed from mere rumor should not be a ground of challenge. The case was then, in 1827, taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[Footnote: Niles' Register, XXXII, 357, 405; XXXVIII, 336.]
When a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. This has sometimes been carried to the extent of trickery, particularly in some of the Southern States. Agents have been sent over the county to see every man capable of jury service. There is some ostensible reason given for the call. He is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. This naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained.
In every criminal case the defendant's guilt must be proved beyond a reasonable doubt. A mere preponderance of evidence is not enough. In other respects the rules of evidence are applicable which obtain in civil cases.
If a verdict of Not Guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the State for errors of law committed on the trial. No such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. This would be to put the defendant twice in jeopardy, which our Constitutions generally forbid. Even under the practice prevailing in the Philippine Islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[Footnote: Kepnerv.United States, 195 U. S. Reports, 100.]
If the verdict is one of Guilty, the sentence is pronounced by the judge. He generally has a broad discretion as to the extent and nature of the punishment. For many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. For most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. In a number of States of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circumstances of the offense, the character of the prisoner, and his conduct since his sentence.
A considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of aminimumterm. It is doubtful if such a change would satisfy the constitutional requirement of a trial by jury. That in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. Can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? Judgments are to ascertain justice. To do this they must be themselves certain. In a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. It may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. If so, ought not the fate to be meted out to them by judicial authority? Can anything less than that be considered as due process of law?
An experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. The sentence is not pronounced until they have been fully heard as to all circumstances of extenuation, nor until the government has been heard both as to these and as to any circumstances of aggravation. The sentence, if the offense be a grave one, cannot be pronounced except in the presence of the convicted man. He has an opportunity for the last word.
Judges who are neither able nor experienced frequently impose sentences too light or too severe. We have too many such judges in the United States. The real remedy for the evil is to choose better ones. As between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. He ought therefore to be best able to fix the term of punishment.
The punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. For graver offenses both may be inflicted: for murder, and in some States for a very few other crimes the penalty is death. The policy of the older States long was to require those whose offenses were directed against property to make good the loss of the injured party. Whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. Every colony used it. It was authorized by the original Act of Congress in 1790 on the subject of crimes, and was not abolished for the courts of the United States until 1839. It was provided for in the early statutes of most of the States, and in some still is. Until 1830, it was the only mode of corporal punishment allowed in Connecticut for the general crime of theft. For boys it is often the only punishment that can properly be administered. To fine them is to punish others. To imprison them is, in nine cases out of ten, to degrade them beyond recall. Virginia, in 1898, reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. Such a statute seems absolutely unobjectionable from any standpoint. It is often asserted that whipping is a degrading and inhuman invasion of the sanctity of the person. To shut a man up in jail against his will is a worse invasion. But as against neither is the person of a criminal convict sacred. He has justly forfeited his right to be treated like a good citizen. Whether whipping is a degradation or not must depend much on the place of its infliction. The old way in this country, as in England, was to inflict it in public. This puts the convict to unnecessary shame. Let him be whipped in private, and his only real degradation will be from his crime. So inhumanity is needless. A moderate whipping only should be allowed. That is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement.
Of late years there has been a decided movement in the United States toward a return to the penalty of whipping for atrocious cases of assault or offenses by boys.[Footnote: See Paper on "Whipping and Castration as Punishments for Crime,"Yale Law Journal, Vol. VIII, 371, and President Roosevelt's Message to Congress in December, 1904.] It is probable that it will find more favor hereafter in the South as a punishment for negroes. Most of their criminals are of that race. The jails have no great terrors for them. They find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. But they are sensitive to physical pain. A flogging they dread just as a boy dreads a whipping from his father, because it hurts. The South may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. No such criticism could fairly be made. Confinement in jail is involuntary servitude, and involuntary servitude is slavery. Whipping is a substitute for it: it saves from slavery.
In several of the Southern States, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. This plan prevails in Georgia and Arkansas to such an extent that very few are confined in the penitentiary. The convicts in these States are mainly negroes. When, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the State, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. Similar objections do not lie in their employment on State farms, and in North Carolina and Texas this has been tried with considerable success.[Footnote: See "Bulletin de la Commission Pénétentiaire Internationale," 5th series, II, 179.]
Special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the States and in the District of Columbia during the past few years. The judge holding such a "Juvenile Court" or "Children's Court" is expected to deal with those brought before him rather in a paternal fashion. An officer is generally provided, known as a Probation Officer, to whom the custody of the accused is largely committed both before and after trial. He is to inquire into each case and represent the defense at the hearing. In case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended.
For errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. Until 1891 this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. It was so in Delaware until 1897.
In some States there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal. It is there held that the common constitutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. The writ of error is a stage in the original prosecution. One acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. What these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. Such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[Footnote: Statev.Lee, 65 Conn. Reports, 265; 30 Atlantic Reporter, 1110; 48 American State Reports, 202; Kent,J., in Peoplev.Olcott, 2 Day's Reports, 507, note.] In other States such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[Footnote: Peoplev.Webb, 38 California Reports, 467.] This distinction is approved by the Supreme Court of the United States.[Footnote: Kepnerv.United States, 195 United States Reports, 100, 130.]
For errors in conclusions of fact the defendant, in certain cases, has a remedy on a petition for a new trial, but in no case can the State ask for one. This is true even though the trial was not had to a jury.
There is no doubt that new trials are too often granted in the United States in favor of those who have been convicted of crime. Particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. A verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[Footnote: See Paper on "New Trials for Erroneous Rulings upon Evidence," by Professor J. H. Wigmore, in theColumbia Law Reviewfor November, 1903.] To release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment.
Appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. About eleven thousand persons were convicted of felonies in the County Courts of New York during the five years from 1898 to 1902, inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[Footnote: Nathan A. Smyth,Harvard Law Reviewfor March, 1904.] In Massachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the Supreme Judicial Court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years 1902 and 1903 only two new trials were granted.[Footnote:Law Notesfor December, 1904.]
A comparison of the number of those put to death in the United States for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results:
Executed byJudicial Sentence. Lynched. Total.
1901 118 125 243 1902 144 96 240 1903 123 125 248
A large majority of those lynched were negroes, and met their fate in the South. It is extremely difficult to secure a conviction of those who take part in such acts of violence. They commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. The offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. Many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. Not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal.
Such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the United States are so often disgraced. It may be added that out of the Southern States they are quite rare, and in the Northeastern States substantially unknown. Of the one hundred and four lynchings in 1903, only twelve occurred in the North or West.
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A public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. Such an one is a judge only when he is holding court. When it is adjourned, no court exists of which he could be a judge. Justices of the peace and parish judges are officers of this description. But ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. To such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session.
The writ ofhabeas corpus, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. In the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." While sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it.
Statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. In such a case no very definite line is drawn between what judicial business the judge does and what the court does. While the proper and normal constitution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. A District Judge of the United States has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[Footnote: The U. S.v.The Schooner "Little Charles," 1 Brockenbrough's Reports, 382.]
The judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. These are writs directing some one to refrain from doing a certain act. They generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. The need of an injunction is often immediate. It would be worthless unless promptly granted. When, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. Whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. It may, in urgent cases admitting of no delay, be issuedex parte, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken.
A similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. If the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. So in case of an insolvent debtor his estate may, under certain circumstances, be placed in a receiver's hands by a summary order, issued out of court.
It may be added that by the statutes both of the United States and of all the States many powers of aquasi-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it.
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For each of the States and Territories as well as for the UnitedStates there is one supreme court of appellate jurisdiction.
The Supreme Court of the United States can entertain original actions of certain kinds.[Footnote: See Chap. IX.] A few also of the State supreme courts of appeal have a limited original jurisdiction. This is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature ofquo warrantoand writs of mandamus.
The term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits.
It is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. In this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[Footnote: See theFederalist, No. LXXXI.] If it does not appear from the record of the lower court that any of the errors that may be claimed (or "assigned," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed.
Appellate courts are of many kinds. Some are such exclusively; some mainly. In others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. An appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. So the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is principally occupied in the exercise of an original jurisdiction.
When the American colonies passed into States, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. The judicial committee of the Privy Council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[Footnote: See Chap. I.] The uniformity of result thus obtained was acknowledged to be advantageous. It was now necessary to replace them by American courts of last resort, and it was not difficult in doing so to improve upon the English model. The time had come for separating, as far as it could conveniently be accomplished, judicial from political power.
Virginia was the first to act. A few days before the Declaration of Independence she adopted a Constitution (under which the government, was carried on until 1830, though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a Supreme Court of Appeals whose judges should hold office during good behavior, and be ineligible to the Privy Council or General Assembly.
This divorce of judiciary and legislature was not the plan universally followed.
New Jersey, in which as a colony the Governor and Council had possessed an appellate power like that vested in the English House of Lords, was so well satisfied with this arrangement as to continue it in her Constitution of July 3, 1776, and up to the present time puts upon her Supreme Court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers.
New York, in her Constitution of 1777, pursued a somewhat similar plan. Her highest court was one "for the trials of impeachments and the correction of errors." Its members were the Senate with the Chancellor and judges of the Supreme Court. When a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. This scheme was adhered to with little modification until 1846. What made it tolerable was that many of those elected Senators were naturally lawyers, and that to be in the Senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge. Able and learned opinions were pronounced by such men in exercising their judicial functions, and some of them in the New York reports are still frequently the subject of reference as clear and satisfactory statements of legal principles.
Connecticut, in 1784, when she instituted for the first time a court of last resort, made it up of the Lieutenant Governor and the twelve Assistants, and soon added to it the Governor himself. A plan of this kind was likely to work in that State, as in New York, better than it looked. Lawyers by this time had come to fill most of the higher offices of state. Although the Assistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. A majority of the Assistants were always members of the bar. They were also Federalists from the beginning of party divisions in the country. Naturally, the Republicans found such a state of things intolerable. All the power of government in Connecticut, said one of those who were celebrating Jefferson's second election to the Presidency in 1804, "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. These seven men virtually make and repeal laws as they please, appoint all the Judges, plead before those Judges, and constitute themselves a Supreme Court of Errors to decide in the last resort on the laws of their own making. To crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are Judges." Attacks like this were too just to be resisted, and two years later the Governor, Lieutenant-Governor and Assistants were replaced by the Judges of the Superior Court.
Constitutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. An appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. Under the Constitution of the United States a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older States it cannot be in cases where it was not a matter of right prior to the adoption of their Constitutions.
The verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up.
Where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the United States and in many of the States, be reversed on any point on appeal. For this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above.
Except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one.
In some States an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. In many States errors in law of petty courts may be reviewed in higher trial courts. In a few of the larger ones, as in the United States,[Footnote: See Chap. IX.] errors in law of the higher trial courts, in a considerable class of cases, are finally disposed of in an intermediate appellate court, constituted to relieve the court of last resort from an overweight of business.
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Ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. In some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. There are many judges who think that such a practice should be universally adopted. It would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. If one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. But the trial judge is not in a position that naturally leads to an unprejudiced judgment. The appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. The judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. He could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. In view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts.
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The opinions and judgments of all American courts of last resort are officially reported for publication. At first they were not so reported. The earliest volume of American judicial decisions (Kirby's) was published in 1789 as a private venture. A few years later the States began to provide official reporters for their highest courts and soon assumed the expense of publication. There are now more than fifty current sets of federal and State reports, the annual output being about four hundred volumes, containing 25,000 cases. The mere indexing and digesting of these reports for the use of the bench and bar has become a science. While consulted by comparatively few who are not connected with the legal profession, they constitute a set of public records of the highest value to every student of history and sociology.[Footnote: See "Two Centuries' Growth of American Law," 6.]
It is the custom to prefix to the report of each case a head-note stating briefly the points decided. Ordinarily this is the work of the reporter. In a few States the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. Occasionally the head-note contains statements not supported by the opinion. In such case the opinion controls unless it is otherwise provided by statute.
It has not been the usual custom of English judges of courts of last resort to write out their opinions. They have commonly pronounced them orally and left it to the reporters to put them in shape. The consequence has been that English reports have a conversational tone, and are not free from useless repetition. This has been not only a matter of tradition but of necessity. The English judges have always been few in number. Their time has been largely occupied in the trial of cases on the facts. It is only in recent years that certain judges have been set apart especially for appellate work.
American judges, on the other hand, are numerous. There is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate State. Combination of all of them into one empire would make it easy to reduce the judiciary to a tithe of its present numbers. Their salaries are part of the price we pay—and can well afford to pay—for our peculiar system of political government, under which every State is animperium in imperio.
The ever-increasing number of our States, each with a body of law not exactly like that of any other, and each with a written Constitution which is its supreme law, requires a court of last resort in each. Experience tends to show that it ought not to be composed of less than five. There should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion.
In most of the States the court of last resort is not overworked. In some the judges find time to do considerable circuit duty in the trial of original causes. This keeps them in touch with the daily life of the community, and is so far good. On the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. There is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. For these reasons it has now become common for the States to confine their appellate judges exclusively to appellate work. The time, therefore, which the English judge gives to circuit duty the American judge can give to writing out his opinions with all the art and care which he can command.
He speaks in most instances to a small audience—the bar alone. But it is the bar of this year and the next year and the next century. Every volume of reports is part of the history of American jurisprudence and of American jurisprudence itself. Occasionally some case arises which involves large political questions, or one of especial local interest. The opinion is then read more widely. The newspapers seize it: reviews take it up. It is not always easy to anticipate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other States; and what drop unnoticed except by the lawyers in the cause. A judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. A certain style of American judicial opinion has thus grown up. It is dogmatic. It offers no apologies. There is neither time nor need for them. The writer speaks "as one having authority." He does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found. He is as brief as he dares to be without risking obscurity.
It is undoubtedly true that many reported opinions are of a very different type. Some of Marshall's assume a tone of apology; but in his day it was needed. He struck at cherished rights of States, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the United States as a national force. Many of those of judges of inferior ability do not rise above their source. They are verbose, repetitious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[Footnote: See, for instance, Minceyv.Bradburn, 103 Tennessee Reports, 407; Terryv.McDaniel,ibid., 415; Hall-Moody Institutev.Copass, 108id., 582.] possibly unfair in describing the claims that are overruled. But, as a whole, Americans need not fear to compare the reports of their courts with those of foreign tribunals. No judicial opinions, viewed from the point of style and argument, rank higher than some of those written by American judges.
Those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. Nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him.
Nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. If unsound reasons for those conclusions are given, defective illustrations used, or unguarded assertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[Footnote: Exchange Bank of St. Louisv.Rice, 107 Mass. Reports, 37, 41. This position is not, universally accepted. See Merrimanv.Social Manufacturing Co., 12 R. I. Reports, 175, 184.]
When Marshall became Chief Justice of the United States he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were Republicans. This, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[Footnote: Thayer, "John Marshall," 54.]
In some of the State Supreme Courts in early days, it was the practice for the Chief Justice to deliver an opinion in every case, but his associates frequently added concurring or dissenting ones.
Of late years the business of appellate courts in the United States and in most of the States is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions.
It is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is assigned, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. At a subsequent conference each judge is called upon by the Chief Justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. This practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. Prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one manuscript copy around to each in succession for his endorsement of approval or disapproval. In some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[Footnote: See for an example of this Wilcoxv.Heywood, 12 R. I. Reports, 196, 198.]
Our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal. Oral arguments are also usually heard, except in a few States where the press of business renders it practically impossible except in cases of special importance. Such a press occurs mainly in the largest States, but exists also in some whose Constitutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court.
In the Supreme Court of Georgia no costs exceeding $10 can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. In most States he has substantial costs to pay. These mainly are to meet the expense of printing the record sent up from the court below. A single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. The appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. The cost involved is occasionally several thousand dollars.
The party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. There is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court.
In the smaller States the judges have time to enable all to study each case with care. In the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. He is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. The assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. At the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second.