The Project Gutenberg eBook ofThe American JudiciaryThis ebook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this ebook or online atwww.gutenberg.org. If you are not located in the United States, you will have to check the laws of the country where you are located before using this eBook.Title: The American JudiciaryAuthor: Simeon E. BaldwinRelease date: August 1, 2005 [eBook #8691]Most recently updated: September 24, 2014Language: EnglishCredits: Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, Charles Franks and the Online Distributed Proofreading Team*** START OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***
This ebook is for the use of anyone anywhere in the United States and most other parts of the world at no cost and with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of the Project Gutenberg License included with this ebook or online atwww.gutenberg.org. If you are not located in the United States, you will have to check the laws of the country where you are located before using this eBook.
Title: The American JudiciaryAuthor: Simeon E. BaldwinRelease date: August 1, 2005 [eBook #8691]Most recently updated: September 24, 2014Language: EnglishCredits: Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, Charles Franks and the Online Distributed Proofreading Team
Title: The American Judiciary
Author: Simeon E. Baldwin
Author: Simeon E. Baldwin
Release date: August 1, 2005 [eBook #8691]Most recently updated: September 24, 2014
Language: English
Credits: Produced by Charles Aldarondo, Tiffany Vergon, Michael Kaelbling, Charles Franks and the Online Distributed Proofreading Team
*** START OF THE PROJECT GUTENBERG EBOOK THE AMERICAN JUDICIARY ***
Produced by Charles Aldarondo, Tiffany Vergon, Michael
Kaelbling, Charles Franks and the Online DistributedProofreading Team
* * * * *
Ablemanv.BoothAllinson, Halev.American Insurance Co.v.CanterAmesv.KansasAmes, Smythv.Andrews,Ex parteAnthes, Commonwealthv.
Bachertv.Lehigh Coal and Navigation Co.Baldwin, Robertsonv.Bank, Bardesv.Bank of Kentucky, Briscoev.Bank of Mississippiv.DuncanBank of the U. S., Osbornv.Bardesv.BankBarrowsv.BellBatchelderv.MooreBaxterv.BrooksBaxter, Statev.Beanv.BeckwithBean, Beckwithv.Beckham, Taylorv.Beckwithv.BeanBeckwith, Beanv.Bell, Barrowsv.Bell's Gap R. R. Co., McCloskeyv.Bernard, Coggsv.Biddle, Greenv.Bidwell, Downesv.Bissellv.DickersonBlacker, Board of Supervisorsv.Blairv.WilliamsBlakev.McClungBoard of Supervisorsv.BlackerBodleyv.GaitherBoffman, Hickmanv.Bonham's caseBoothv.ClarkBooth, Ablemanv.Borden, Lutherv.Bowmanv.MiddletonBoydv.ThayerBoydv.U. S.Bradburn, Minceyv.Bradleyv.FisherBradleyv.New HavenBradley,Ex parteBrainerd, Fitchv.Branch,In reBrashears, Lapsleyv.Briggsv.GarrettBrinev.Insurance Co.Briscoev.Bank of KentuckyBrooksv.StateBrooks, Baxterv.Brown, Kelloggv.Brown, Parkersburgv.Bulkley, Statev.Bull, Calderv.Burgessv.SeligmanBurr's TrialBurrows, Nuddv.Bush, Perryv.Bushnell,Ex parte
Calderv.BullCalifornia, Hurtadov.Call Publishing Co., Western Union Telegraph Co.v.Calvinv.HuntleyCanfieldv.MitchellCanter, American Insurance Co.v.Carriere, Tuav.Cherokee Nationv.Georgia,Chisholmv.GeorgiaChristmasv.RussellChurchv.PearneCity of South Bendv.TurnerClaflinv.HousemanClark, Boothv.Clarke's AppealCleveland, Painesville and Eastern R. R. Co.,v.PritschauClymer, Norrisv.Cochran, Gernonv.Coffinv.United StatesCoggsv.BernardCohensv.VirginiaColemanv.TennesseeColerv.Tacoma Railway and Power Co.Colt, Stanleyv.Commonwealthv.AnthesConn. Pipe Mfg. Co., Wardv.Consul of Spainv.Consul of Great BritainCooper, Application ofCooper,In reCooper, In the matter ofCopass, Hall-Moody Institutev.Croswell, Peoplev.Cunningham, Statev.
Danbury, Hoytv.Dartmouth Collegev.WoodwardDebs, U. S.v.Debs,In reDelaware, Lackawanna and Western R. R. Co., Forepaughv.Demorest, Hutkoff,v.Dennison, Kentuckyv.Deposit Bankv.FrankfortDickerson, Bissellv.Diggsv.WolcottDonoghue, Hanleyv.Dorrv.United StatesDorrance, Vanhorne's Lessee,v.Dougherty, Lanarkv.Dowv.JohnsonDownesv.BidwellDred Scottv.SandfordDrehmanv.StifleDuncan, Bank of Mississippiv.Duncan, Johnsonv.Dysonv.Rhode Island Co.
Eakinv.RaubEckrichv.St. Louis Transit Co.Ellington, Mielv.Erdmanv.MitchellExchange Bankv.Rice
Farmers' Loan and Trust Co., Pollockv.Faulknerv.HartFinneyv.GuyFishv.SmithFisher, Bradleyv.Fitchv.BrainerdFletcherv.PeckFlynnv.MorganForepaughv.Delaware, Lackawanna and Western R. R. Co.Frankfort, Deposit Bankv.Frenchv.WaterburyFrostv.Leighton
Gaither, Bodleyv.Garland,Ex parteGarrett, Briggsv.Genesee Chief, TheGeorgiav.StantonGeorgia, Cherokee Nationv.Georgia, Chisholmv.Georgia, Worcesterv.Gernonv.CochranGibbonsv.OgdenGoshenv.StoningtonGouldv.Hudson River R. R. Co.Grady's caseGrapeshot, TheGray, Jamesv.Greenv.BiddleGriffinv.WilcoxGriswold, Hepburnv.Griswold, United Statesv.Grover & Baker Sewing Machine Co.v.RadcliffeGrovesv.SlaughterGuy, Finneyv.
Halev.AllinsonHall-Moody Institutev.Co-passHamv.McClawsHanleyv.DonoghueHanover National Bankv.MoysesHansv.LouisianaHarris, Norrisv.Hart, Faulknerv.Hawesv.OaklandHayburn's CaseHepburnv.GriswoldHeywood, Wilcoxv.Hickmanv.BoffmanHildreth's Heirsv.McIntire's DeviseeHillv.SmithHill, Koehlerv.Hoffman, Peoplev.Holmesv.WaltonHouseman, Claflinv.Houser, Statev.Howle, Metropolitan Life Insurance Co.v.Hoytv.DanburyHudson River R. R. Co., Gouldv.Huntley, Calvinv.Hurtado,v.CaliforniaHutkoffv.Demorest
Insurance Co., Brinev.International Distillery, Pearsonv.Irvinev.Stone
Jamesv.GrayJeckerv.MontgomeryJohnsonv.DuncanJohnsonv.PeopleJohnson, Dowv.Johnson, Mississippiv.Johnson, Statev.Joint Traffic Association, United Statesv.Judges, Statev.
Kansas, Amesv.Katzv.WalkinshawKelloggv.BrownKelloggv.WarmothKentuckyv.DennisonKentucky, Louisville Ferry Co.v.Kepnerv.U. S.Ketchamv.McNamaraKilbournv.ThompsonKlein, U. S.v.Kneedlerv.LaneKoehlerv.Hill
Lachenmeyer, Pepinv.Lanarkv.DoughertyLa Ninfa, TheLane, Kneedlerv.Lapsleyv.BrashearsLee, Statev.Legal Tender Cases, TheLehigh Coal and Navigation Co., Bachertv.Leighton, Frostv.,Lennonv.Rawitzer,Letson, Louisville, Cincinnati and Charleston R. R. Co.v.,Little Charles, The schooner, U. S.v.,Loan Associationv.Topeka,Loomisv.Newhali,Lottawanna, The,Louisiana, Hans,v.,Louisville, Cincinnati and Charleston R. R. Co.v.Letson,Louisville Ferry Co.v.Kentucky,Lukev.Lyde,Lutherv.Borden,Lyde, Lukev.
McCardle,Ex parte,McClaws, Hamv.,McCloskeyv.Bell's Gap R. R. Co.,McClung, Blakev.,McConnaughy, Pennoyerv.,McCullochv.Maryland,McDaniel, Terryv.,McDowellv.Oyer,McFarlandv.People,McIntire's Devisee, Hildreth's Heirsv.,M'Kimv.Voorhies,McLeod's Case,McNamara, Ketchamv.,McVeighv.Ripley
Madison, Marburyv.,Main, Statev.,Marburyv.Madison,Maryland, McCullochv.,Mather, Randv.,Merrimanv.Social Mfg. Co.,Merryman,Ex parte,Metropolitan Life Insurance Co.v.Howle,Mialv.Ellington,Middleton, Bowmanv.,Milligan,Ex parte,Miln, New Yorkv.,Minceyv.Bradburn,Mississippiv.Johnson,Mitchell, Canfieldv.,Mitchell, Erdmanv.,Montgomery, Jeckerv.,Moore,Ex parte,Moore, Batchelderv.,Morgan, Flynnv.,Mormon Churchv.United States,Morrill, Statev.,Moses Taylor, The,Moyses, Hanover National Bankv.,Mutual Reserve Fund Life Association, Vincentv.,Myersv.South Bethlehem
Nash, United Statesv.,Neagle,In re,Neff, Pennoyerv.,Newhall, Loomisv.,New Haven, Bradleyv.,New Jerseyv.New York,Newman,Ex parte,New Yorkv.Miln,New York, New Jerseyv.,New York and New England R. R. Co., Rumseyv.,New York, New Haven and Hartford R. R. Co., Stackv.,Noblev.Union River Logging Co.,Norrisv.Clymer,Norrisv.Harris,Northern Securities Co.v.United States,Norwalk Street Railway Co.'s AppealNuddv.Burrows
Oakland, Hawesv.Ogdenv.SaundersOgden, Gibbonsv.Ohio and Mississippi R. R. Co.v.WheelerOlcott, Peoplev.Osbornv.Bank of the U. 8.Oyer, McDowellv.
Parkersburgv.BrownPatterson, WilliamPaulv.VirginiaPearne, Churchv.Pearsonv.International DistilleryPease, Starrv.Peck, Fletcherv.Pennoyerv.McConnaughyPennoyerv.NeffPennsylvania, Priggv.Pennsylvania Coal Co., Sandersonv.Peoplev.CroswellPeoplev.HoffmanPeoplev.OlcottPeoplev.WebbPeople, Johnsonv.People, McFarlandv.Pepinv.LachenmeyerPerkins, United Statesv.Perryv.Bush,Peters, Wheatonv.Pollockv.Farmers' Loan and Trust Co.Priggv.PennsylvaniaPritschau, Cleveland, Painesville and Eastern R. R. Co.v.
Radcliffe, Grover & Baker Sewing Machine Co.v.Randv.MatherRaub, Eakinv.Rawitzer, Lennonv.Reese, United Statesv.Regentsv.WilliamsRhode Island Co., Dysonv.Rice, Exchange Bankv.Rich, Upshur Countyv.Ripley, McVeighv.Robbins' CaseRobertsonv.BaldwinRobinson,Ex parteRoyall,Ex parteRumseyv.New York and New England R. R. Co.Russell, Christmasv.Rutgersv.Waddington
Sandersonv.Penn. Coal Co.Sandford, Dred Scottv.Saunders, Ogdenv.Scottv.SandfordSeligman, Burgessv.Shepherd, Statev.Sheve, U. S.v.Siebold,Ex parteSims' CaseSlaughter, Grovesv.Smith, Fishv.Smith, Hillv.Smith, U. S.v.Smythv.AmesSocial Mfg. Co., Merrimanv.South Bethlehem, Myersv.Sparfv.U. S.St. Louis Transit Co., Eckrichv.Stackv.New York, New Haven and Hartford R. R. Co.Stanleyv.ColtStanley, U. S.v.Stanton, Georgiav.Starrv.PeaseStatev.BaxterStatev.BulkleyStatev.CunninghamStatev.HouserStatev.JohnsonStatev.JudgesStatev.LeeStatev.MainStatev.MorrillStatev.ShepherdStatev.Travelers' Insurance Co.Statev.WardStatev.WordenState, Brooksv.Stephens, petitionerStifle, Drehmanv.Stone, Irvinev.Stonington, Goshenv.Swiftv.Tyson
Tacoma Railway and Power Co., Colerv.Tassel's CaseTaylorv.BeckhamTennessee, Colemanv.Terryv.McDanielThayer, Boydv.The Genesee ChiefThe GrapeshotThe La NinfaThe LottawannaThe Moses TaylorThe Schooner Little Charles, U. S.v.The Thomas JeffersonThomas Jefferson, TheThompson, Kilbournv.Topeka, Loan Associationv.Trademark CasesTravelers' Insurance Co., Statev.Trevettv.WeedenTuav.CarriereTurner, City of South Bendv.Tyson, Swiftv.
Union River Logging Co., Noble,v.United Statesv.DebsUnited Statesv.GriswoldUnited Statesv.Joint Traffic AssociationUnited Statesv.KleinUnited Statesv.NashUnited Statesv.PerkinsUnited Statesv.The Schooner Little CharlesUnited Statesv.ReeseUnited Statesv.RobbinsUnited Statesv.SheveUnited Statesv.SmithUnited Statesv.SparfUnited Statesv.StanleyUnited Statesv.WilsonUnited Statesv.WorrallUnited States, Boydv.United States, Coffinv.United States, Dorrv.United States, Kepnerv.United States, Mormon Churchv.United States, Northern Securities Co.v.Upshur Countyv.Rich
Vanhorne's lesseev.DorranceVincentv.Mutual Reserve Fund Life AssociationVirginia, Cohensv.Virginia, Paulv.Voorhies, M'Kimv.
Waddington, Rutgersv.Walkinshaw, Katzv.Walton, Holmesv.Wardv.Conn. Pipe Mfg. Co.,Ward, Statev.,Warmoth, Kelloggv.,Waterbury, Frenchv.,Webb, Peoplev.,Weeden, Trevettv.,Western Union Telegraph Co. v. Call Publishing Co.,Wheaton v. Peters,Wheeler, Ohio and Mississippi R. R. Co.,v.,Wheeler's Appeal,Wilcox v. Heywood,Wilcox, Griffinv.,Williams, Blairv.,Williams, Regentsv.,Wilson, U. S.v.,Wolcott, Diggsv.,Woodward, Dartmouth College,v.,Worcester v. Georgia,Worden, Statev.,Worrall, U. S.v.
Additional cases cited in Second edition.
Janvrin v. Revere Water Co.,Revere Water Co., Janvrin,v.,O'Brien's Petition,Seery v. Waterbury,Waterbury, Seeryv.
* * * * *
* * * * *
No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test.
The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776.
The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.]
In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1.Cf.citations by D. Davenport,arguendo,in Flynnv.Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.]
In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.]
As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent.
The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]
This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law—the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one.
Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus:
"The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates…. Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arisepro re nataupon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression."[Footnote: Winthrop, "History of New England," I, 322.]
The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form.
The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns.
This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitchv.Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancientaula regis, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, "Justice and Police," 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: "Two Centuries' Growth of American Law," 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frostv.Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order.
The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles.
A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: "Two Centuries' Growth of American Law," 20.]
The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, "Narrative and Critical History of America," V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, "Maryland's First Courts," Reports of American Historical Association for 1901, 211; Osgood, "The American Colonies in the Seventeenth Century," I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, "History of the United States," II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.]
In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, "Records of the Court of Assistants of Massachusetts Bay," I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.]
In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years.
No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction.
New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, "Life of Edward Livingston," 26.]
As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the "Dominion of New England."[Footnote: Col. Rec. of Conn., III, 402, 411.]
South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, "American Universal Geography," ed. 1796, 690; Osgood, "The American Colonies in the Seventeenth Century," II, 279, 300.]
There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: "Life and Works of John Adams," II, 280. See Chap. XIII.]
Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: Statev.Ward, 43 Connecticut Reports, 489, 494.]
The benefit of the writ ofhabeas corpus, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the "Declaration and Resolves" of the first Continental Congress, they assert "that the respective colonies are entitled to the Common Law of England," and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of theHabeas CorpusAct, that great Bulwark and Palladium of English Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the Colonies," American Historical Review, VIII, 18.]
The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this:
ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ ofhabeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.
A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power.
The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickmanv.Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).]
In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]
But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State.
The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books.
The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none.
When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.]
The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.]
The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized:
Judges were to proceed according to established rules, so far as established rules might exist.
They were to proceed in analogy to established rules as to points which no established rule might cover.
They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation.
Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England.
There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority.
This higher authority might be judicial or political, or one which shared both judicial and political functions.
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From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step.
So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them.
On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington'sOceana, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.]
It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calderv.Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.]
The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.]
It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.]
In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles.
Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanleyv.Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starrv.Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.]
But may not a power be judicial in its nature and yet not wholly so?
It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions.
Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause.
Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department.
Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise.
It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradleyv.New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur Countyv.Rich, 135 U. S. Reports, 467, 477; Janvrinv.Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: Peoplev.Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793;Ex parteSiebold, 100 U. S. Reports, 371, 397.]
It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest.
It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power.
The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.]
The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used.
The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur Countyv.Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote:Ibid., 475.]
In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.]
On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbournv.Thompson, 103 U. S. Reports, 168.]
* * * * *
Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term.
The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States.
But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote:National Geographic Magazinefor June, 1904, p. 251.]
Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong.
In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII).
In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate.
New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.]
An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words:
The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names—by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbonsv.Ogden, 9 Wheaton's Reports, 1.]
A device for obtaining the same end—the views of the judges in advance of the enactment of a law—in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies.
Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.]
President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims.
Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist.
The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.]
The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Lutherv.Borden, 7 Howard's Reports, 1.]
When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts.
So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernonv.Cochran, Bee's Reports, 209.]
In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States.
But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive?
This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spainv.Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been acasus belliwas stayed by a court until and unless the Executive should intervene and permit it.