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.
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: Statev.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: Priggv.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 ofhabeas corpusagainst 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 parteBushnell, 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: Koehlerv.Hill, 60 Iowa Reports, 543, 603.] His term was soon to expire. He, too, knew that this decision would prevent his renomination, and it did.
In 1885, Chief Justice Cooley of Michigan, one of the great jurists and judges of the country, failed to secure a re-election to its Supreme Court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a Detroit newspaper for libel. The newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat.
Political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. The other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. In New York, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. This is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. For an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice.
But a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. He is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. There is always a certain amount of judicial patronage to be bestowed. There are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. Other things being equal, no one would blame a judge for naming a political friend for such a position. But as to whether other things are equal he is to decide. To the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. Justice Barnard of the Supreme Court of New York once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. For this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? A French critic of the elective judiciary has thus referred to these remarks of Justice Barnard:
Le Juge Barnard, qui formulait en plein tribunal cette déclaration de principes, fut décrété d'accusation et condamné, non sans justes motifs. Mais son crime impardonable était de proclamer trop franchement les doctrines de la magistrature élective: il trahissait le secret professionnel.[Footnote: Duc De Noailles,Cent Ans de République aux Etats-Unis, II, 232.]
Most of the old thirteen States in their first Constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. New York at first put the age of superannuation at sixty, but after losing by this the services of Chancellor Kent for some of his best and most fruitful years, postponed it to seventy. Georgia was the first to set the fashion of short terms. Her Constitution of 1798 provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. The legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the House to nominate three, from whom the Senate elected one.[Footnote: Schouler, "Constitutional Studies," 65.]
In all but three States (Massachusetts, New Hampshire and Rhode Island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. The change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. Judge Pickering of the District Court of New Hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. In 1803, Judge Bradbury of the Supreme Judicial Court of Massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. In 1822, an old man who was the chief judge of one of the judicial districts of Maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. His physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign.
At present, for judges of the State courts of last resort, the term in Pennsylvania is twenty-one years (but with a prohibition of re-election); in Maryland, fifteen; in New York, fourteen; in California, Delaware, Louisiana, Virginia, and West Virginia, twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado, Illinois, and Mississippi, nine. The general average is eight, although that particular number obtains in but seven States. In eighteen it is six. The shortest term is two, and is found in Vermont. It may be noted that the original rule in Vermont was to elect judges annually. As compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer.
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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 principalnisi priuscourt (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.
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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: Kneedlerv.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 Kelloggv.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 issueex parteorders 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. Seeantep. 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.
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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: SeeAmerican Law School Review, I, 211.] English history does not support this contention.[Footnote: Pollock & Maitland, "History of English Law," I, 211-217; II, 226. O'Brien's Petition, 79 Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of Court, which are mere voluntary associations of lawyers, have from time immemorial exercised the function of calling to the bar, so far as barristers are concerned, and the admission of attorneys has always been regulated by Acts of Parliament.[Footnote: See In the Matter of Cooper, 22 N. Y. Reports, 67, 90.] By our American legislatures the same course has been generally pursued.
The duty of ascertaining whether candidates for admission have the prescribed qualifications is occasionally performed by the judges in person; more often by a committee of the bar appointed by the court for that purpose; in some States by a standing board of State examiners, receiving compensation for their services.[Footnote: This comes from fees paid by those examined.] The latter method was introduced in the latter part of the nineteenth century and is steadily gaining in favor. A committee of a local bar is unavoidably subject to some local influences or prepossessions. A State board can act with greater independence and maintain with more ease a high standard of admission.
In early colonial days the legislature sometimes set a limit to the number of attorneys who could be allowed to practice before the courts. In some colonies the number at the bar of a particular court was fixed; in others the number of lawyers in each county.[Footnote: Acts and Laws of the Colony of Conn., May session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.] No such limitation now exists in any State, and the matter is left to be regulated by the law of supply and demand. This by the census of 1900 required over 114,000.
The freer a country is, and the quicker its step in the march of civilization, the more lawyers it will naturally have. The growth and importance of the bar are stunted wherever it is overshadowed by an hereditary aristocracy. A land of absolutism and stagnation has no use for lawyers. The institutions of China would not be safe if she had a bar. Lawyers are a conservative force in a free country; an upheaving force under a despotic government. In Russia one is found enough to serve over thirty thousand; in the United States there is about one to every six hundred and sixty of the population,[Footnote: In 1870, there was one to every 946; in 1880, one to every 782.] and in England one to every eleven hundred.
The colonial lawyers of the seventeenth and eighteenth centuries occupied an inferior place in the community as compared with that now held by the legal profession. There was comparatively little opportunity to rise to eminence. The positions on the bench, as has been seen, were largely held by those not trained as lawyers. Before such judges it was a waste of words to make elaborate arguments on points of law.
Among the first settlers were a few who had been educated for the English bar. One of them, in Massachusetts, Rev. Nathaniel Ward, drafted theMagna Chartaor "Body of Liberties" of that colony, adopted in 1641. His opinion of the need of lawyers may be inferred from the fact that it provided expressly that those who pleaded causes for others should receive no compensation for it. Virginia adopted the same policy from 1645 to 1662. Later, lawyers practicing in Massachusetts were excluded from the General Court. As that had large judicial powers, it was thought fitting to give no opportunity to any to sit there to-day to judge and to appear to-morrow before an inferior court to argue as an advocate.[Footnote: Hutchinson, "History of Massachusetts," III, 104.]
As time went on, an American was occasionally sent to London to read law. He was apt to be a young man of fortune, who entered the Temple or the Inns of Court more as a means of gaining pleasant acquaintances than for any serious purpose of education. Most of them came from Pennsylvania and the Southern colonies. Two Presidents of the Continental Congress, Randolph and McKean, four signers of the Declaration of Independence, Heyward, Lynch, Middleton, Edward Rutledge, and John Rutledge, one of the first associate justices of the Supreme Court of the United States, were of the number.
Not infrequently there were legal proceedings in London which concerned colonial interests. Their charters were attacked or colony laws and judgments put in question before the Lords of Trade and Plantations. In such proceedings, if counsel were needed, English barristers were generally employed. An American lawyer now and then went over to consult with them and perhaps to join in the argument, but the leading part was theirs.
It was not until the quickening and deepening of American life which preceded and portended the Revolution that anything like a colonial bar, led by a man of learning and position, really came into existence.[Footnote: "Two Centuries' Growth of American Law," 16.] From the middle of the eighteenth century to its close there was a steady and rapid progress in this direction. Legal education was taken seriously. In the case of many it began with the fundamental notions of justice and right. The Greek and Latin classics on those heads were read.[Footnote: "Life of Peter Van Schaick," 9.] The private law of the Romans was studied to a greater extent relatively than it is now. The first chair of law in the United States was established at William and Mary College in 1779, and there, under Chancellor Wythe, John Marshall was a student. President Stiles of Yale, in his "Literary Diary," so full of that kind of historical incident which after a few years have passed it is most difficult to trace, enumerates the books read by his son, Ezra Stiles, Jr., between 1778 and 1781, in preparation for the Connecticut bar, under the advice and in the offices of Judge Parker of Portsmouth and Charles Chauncey of New Haven. They comprehended, besides much in English and Scotch law, Burlamaqui'sPrincipes de Droit Naturel, Montesquieu,de l'Esprit des Lois, the Institutes of Justinian, certain titles of the Pandects, and Puffendorfde Officio Hominis et Civis juxta Legem Naturalem. James Kent at about the same time was reading Grotius and Puffendorf in the office of the Attorney-General of New York, and Edward Livingston, under Chancellor Lansing, explored all parts of theCorpus Juris Civilis.[Footnote: Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few years later, under the instruction of Chief Justice Parsons of Massachusetts, took up Vattel and the Institutes of Justinian.[Footnote: Report of the American Bar Association for 1903, 675, note.] The latter, as well as Van Muyden'sCompendiosa Tractatioof them, his father had studied in his preparation for the bar thirty years before.[Footnote: "Life and Works of John Adams," I, 46.]
The lectures of Chancellor Wythe at William and Mary, like those of Mr. Justice Wilson in 1790 at the University of Pennsylvania and of Chancellor Kent in 1794 at Columbia, were designed, as were Blackstone's at Oxford, to give such information as to the nature and principles of law as might be of service to any one desirous of acquiring a liberal education. Such instruction could not be considered as anything approaching a proper preparation for entering on the practice of the legal profession.
The United States preceded England in the endeavor to provide such a preparation by a systematic course of study pursued under competent teachers at a seat of learning established for that sole purpose.
The need of something of the kind was felt to be pressing after the independence of the United States had been fully established. An unusual number of young men of promise were turning from the army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788, the number of attorneys in the State of New York had risen to 120. Morse's "American Geography," ed. 1796, 506. Thirty years later it was 1,200. Miles' "Register," XIV, 311.] Those already members of it had educated themselves as best they could, with slight assistance from the lawyers in whose offices they had studied. They in turn were indisposed to do more for such as might desire to read law in their offices. Few of them were competent to do much.[Footnote: See "Life of Peter Van Schaick," 9, 13.]
There was a demand for a professed school of law, and in 1784 the first in any English-speaking country was opened at Litchfield, Connecticut. There are now 104 of them,[Footnote: Report of the American Bar Association for 1903, p. 398.] with a total attendance of over fourteen thousand students. The course of study in a few may be completed in one year; in most two are required; in the rest three, with perhaps an offer of a fourth for advanced instruction leading to the degree of master or doctor of laws. The ordinary degree is that of bachelor of laws (LL.B.).
The American Bar Association has had an important influence from its first organization, in 1877, in prolonging the period and raising the standards of legal education. In affiliation with it there is an "Association of American Law Schools," representing a large majority of the teachers and students engaged in law school work. This admits no institution into its ranks at which students are received without a preliminary education at least equal to that given by the ordinary high school. A few of the schools so associated receive no student, save in exceptional cases, unless he already holds a degree in arts, science, philosophy, or letters from some collegiate institution.
In several of the States having boards of State examiners no one is admitted to the final examination before them who did not prior to the beginning of his education receive one of the degrees above indicated or else pass a special examination before the same board on certain prescribed studies, corresponding substantially with those ordinarily pursued in a high school.
Some proof is everywhere required that an applicant for admission to the bar possesses a good moral character. It is necessarily largely a matter of form. Certificates are sometimes required from those familiar with his previous life, and sometimes the mere motion for his admission by a member of the bar representing the examining committee is accepted as sufficiently implying that no unworthy person would be thus presented.
In a few States a distinction is made between attorneys with reference to the courts in which they may practice. When first admitted it is to the bar of the trial courts. Later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the State.
This distinction reaches back, in New Jersey, to the colonial era. Attorneys were there a different class from "counsellors," and, following the English practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. The last lawyer bearing the title survived until nearly the middle of the nineteenth century. In this State the Governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the Supreme Court.[Footnote:In reBranch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]
The admission of attorneys in the several courts of the United States is determined by rules which they respectively establish from time to time. These rules make the only qualification membership in regular standing for a certain period of time in the bar of a State and good moral character.
There is no doubt that the United States have been in advance of England both in providing means of legal education and in requiring their use. The length of the course of study now established at our older Law Schools—three years—seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. The first provision for one or more years of graduate study for those who may desire it was made at Yale University in 1876, and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice.
Unquestionably the American bar is now, as a whole, a far better trained class of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased.
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Members of the bar are always subject to punishment by the court for official misconduct. This may be by censure, temporary suspension from practice, or disbarment. If guilty of contempt of court, they can also be sentenced to fine or imprisonment.[Footnote: See Chap. XX.] As suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing.
Disbarment cannot be decreed by the legislative department. That would be virtually an act of attainder. It must come from a judicial sentence.[Footnote:Ex parteGarland, 4 Wallace's Reports, 333, 378.]
In some States the principal trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. In others such committees are created by Bar Associations, of which almost every State has one for the whole State, while several have also one or more local associations. It is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either institute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be instituted there by its order and conducted by the public prosecutor. In the larger States, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. In the smaller States they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest.
The Bar Associations, which first began to start up soon after the Civil War, have been of great service in upholding the honor of the profession. Their Constitutions generally name this particularly as among their professed objects. One State[Footnote: Alabama] has recently under such influences, passed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to institute proceedings for any violation of the law, upon the complaint of the council of the State Bar Association.
The steadily and rapidly increasing proportion of lawyers to the population in the United States necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. The principle of the concentration of industry also works against the great majority of them. Searching titles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. It is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. So collecting uncontested debts was formerly the staple of many a lawyer's practice. The general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau.
Until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the English bar. In 1806 there was but one lawyer in New England with an annual professional income of $10,000: until about 1860 there was none in Connecticut, and probably not over a hundred in the entire country.[Footnote: Parton, "Life of Aaron Burr." 153; Great American Lawyers, III, 55.] In 1827, William Wirt was informed by Justice Thompson of the Supreme Court of the United States that "six, eight, and ten thousand dollars is considered great practice in New York and ten thousand dollars themaximum."[Footnote: Kennedy, "Memoirs of William Wirt," II, 209.] Thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[Footnote: Parton, "Life of Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000 when at the height of his career.[Footnote: Harvey, "Reminiscences of Daniel Webster," 84.]
The Civil War was the occasion of many important business enterprises, and gave rise to much litigation. It brought also a great increase of wealth to the North and West, and new and greater investments of Northern capital in the South. From that time the business of the leading lawyers in every State became more remunerative. Incomes of $20,000 and $25,000 were occasionally earned in the smaller States, and of four or five times as much in the larger ones.
The American lawyer of the eighteenth century was apt to have his office in his house. During the nineteenth century this became less and less common and is now comparatively rare. In cities certain streets, generally near the court-house, are crowded with lawyers' offices. These are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor.
In many of the counties in Virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. A small rent is paid by the occupants to the county. When court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact.
The relations of the bar to the bench assume a peculiar character under the conditions of American society. The judges stand closer to the lawyers in this country than in any other. All of them, unlike those of continental Europe, have been themselves practicing lawyers. The majority, unlike those of England, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. Not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. Those of the latter description always occupy a somewhat unfortunate position. The State does not expect them to devote themselves entirely to its service. It does not provide for their compensation on that basis. It expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. They certainly cannot practice in their own court with propriety. Statutes to prevent it are not uncommon. For the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. So, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[Footnote: Frenchv.Waterbury, 72 Conn. Reports, 435; 44 Atlantic Reporter, 740.]
There are, however, in every State quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. As respects those of the United States courts there is a statute (U. S. Revised Statutes, Sec. 713) making it criminal for them to practice law. Similar legislation exists in some of the States with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[Footnote: Perryv.Bush, 45 Florida Reports; 35 Southern Reporter, 225.]
The demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. If they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. A greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the State courts.
No judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. Chief Justice Parsons of Massachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point. The leaders of the bar of Boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room. The first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. The next met the same kind of interruption in the same way, and so on until the court room was cleared. The Chief Justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.] Occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing.
Judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and analysis. The bar is their little world. It is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has asserted has not been conceded.
It is much more common for American judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[Footnote: See a striking instance of this tendency given in Cleveland, Painesville & Eastern R. R. Co.v.Pritschau, 69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They dislike even to seem harsh. Most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. This is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in American courts than in those of most other countries. Another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. The lawyer holds a more permanent office in the court than the judge. He is quite likely to be his superior in learning and ability. He belongs to a class that is influential in the community, and whose members usually share quite actively in the direction of party politics. The judge in most instances holds but a brief authority. He does not wish to parade it in such a manner as might seem offensive. He is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. The judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. Trials for these reasons are longer in the United States than in England. Fewer summary rulings are made. More questionable evidence is admitted. More time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court.
The broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. It is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. A foreign lawyer often hesitates to cross swords with the judge. He distrusts his own judgment if it differs from that of the court. He defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. He therefore seldom appeals on minor points of procedure, even if he could. In the United States probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause.
The American lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question.
Those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. The reputation of a judge depends on the opinion which the lawyers have of him. The general public may be deceived as to his character, ability and attainments; the bar cannot be.
In the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the State. The lawyers recognize this feeling as just. It is common for them to rise as a body when the judge enters the bench. They find no difficulty in using the conventional style of address of "May it please the Court," or "May it please your Honor." When a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. If, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation.
Less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. An incident occurring in Massachusetts about the beginning of the nineteenth century may serve as an illustration. Robert Treat Paine, a signer of the Declaration of Independence, resigned his seat on the bench of the Supreme Judicial Court in 1804, at the age of seventy, largely on account of deafness. Naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity. Fisher Ames used to refer to him asUrsa Major, and once told a friend that he should not go into court again, when Judge Paine held it, without a club in one hand and a speaking trumpet in the other. Theophilus Parsons, not long afterwards made Chief Justice of the State, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "Mr. Parsons, I tell you once for all, take that glove off your tongue." "Certainly, Sir," was the quick retort, "and may I beg your honor to take the wool out of your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]