CHAPTER XLII THE STATE JUDICIARY THE Judiciary in every State includes three sets of courts:— -A supreme court or court of appeal; superior courts of record; local courts; but the particular names and relations of these several tribunals and the arrangements for criminal business vary greatly from State to State. We hear of courts of common pleas, probate courts, surrogate courts, prerogative courts, courts of oyer and terminer, orphans' courts, court of general sessions of the peace and gaol delivery, quarter sessions, hustings' courts, county courts, etc. etc. All sorts of old English institutions have been transferred bodily, and sometimes look as odd in the midst of their new surroundings as the quaint gables of a seventeenthcentury house among the terraces of a growing London suburb. As respects the distinction which Englishmen used to deem fundamental, that of courts of common law and courts of equity, there has been great diversity of practice. Most of the original thirteen colonies once possessed separate courts of chancery, and these were maintained for many years after the separation from England, and were imitated in a few of the earlier among the new States, such as Michigan, Arkansas, Missouri. In some of the old States, however, the hostility to equity jurisdiction, which marked the popular party in England in the seventeenth century, had transmitted itself to America. Chancery courts were regarded with suspicion, because thought to be less bound by fixed rules, and therefore more liable to be abused by an ambitious or capricious judiciary. Massachusetts, for instance, would permit no such court, though she was eventually obliged 1 Admiralty business is within the exclusive jurisdiction of the Federal courts. Note that the grossest abuses of judicial power by American judges, such as the Erie Railroad injunctions of Judge Barnard of New York.in 1869, were perpetrated in the exercise of equitable jurisdiction. Equity in granting discretion opens a door to indiscretion, or to something worse. to invest her ordinary judges with equitable powers, and to engraft a system of equity on her common law, while still keeping the two systems distinct. Pennsylvania held out still longer, but she also now administers equity, as indeed every civilized State must do in substance, dispensing it, however, through the same judges as those who apply the common law, and having more or less worked it into the texture of the older system. Special chancery courts were abolished in New York, where they had flourished and enriched American jurisprudence by many admirable judgments, by the democratizing constitution of 1846; and they now exist only in a few of the States, chiefly older Eastern or Southern States, which, in judicial matters, have shown themselves more conservative than their sisters in the West. In three States only (New York, North Carolina, and California) has there been a complete fusion of law and equity, although there are several others which lave provided that the legislature shall abolish the distinction between the two kinds of procedure. Five States provide for the establishment of tribunals of arbitration and conciliation. The jurisdiction of the State courts, both civil and criminal, is absolutely unlimited, i.e. there is no appeal from them to the Federal courts, except in certain cases specified by the Federal Constitution (see above, Chapter XXII.), being cases in which some point of Federal law arises. Certain classes of cases are, of course, reserved for the Federal courts and in some the State courts enjoy a concurrent jurisdiction. All crinies, except such as are punishable under some Federal statute, are justiciable by a State court; and it is worth remembering that in most States there exist much wider facilities for setting aside the ver dict of a jury finding a prisoner guilty, by raising all sorts of points of law, than are permitted by the law and practice of England. Such facilities have been and are abused, to the great detriment of the community. One or two other points relating to law and justice in the States require notice. Each State recognizes the judgments of the courts of a sister State, gives credit to its public acts and records, and delivers up to its justice any fugitive from its jurisdiction charged with a crime. Of course the courts of one State are not bound either by law or usage to follow the reported Distinct chancery courts remain in Delaware, New Jersey, Vermont, Teunessce, Alabama, Mississippi. See Chapter XXII. ante. decisions of those of another State. They use such decisions merely for their own enlightenment, and as some evidence of the common law, just as they use the English law reports. Most of the States have within the last half century made sweeping changes, not only in their judicial system, but in the form of their law. They have revised and codified their statutes, a carefully corrected edition whereof is issued every few years. They have in many instances adopted codes of procedure, and in some cases have even enacted codes embodying the substance of the common law, and fusing it with the statutes. Such codes, however, have been condemned by the judgment of the abler and more learned part of the profession, as tending to confuse the law and make it more uncertain and less scientific.1 A warm controversy has lately been raging in New York on the subject. But with the masses of the people the proposal is popular, for it holds out a prospect, unfortunately belied by the result in States which, like California, have tried the experiment, of a system whose simplicity will enable the layman to understand the law, and render justice cheaper and more speedy. A really good code might have these happy effects. But it may be doubted whether the codifying States have taken the steps requisite to secure the goodness of the codes they enact. And there is a grave objection to the codification of State law which does not exist in a country like England or France, So-long as the law of a State remains common law, ie. rests upon custom and decisions given by the judges, the law of each State tends to keep in tolerable harmony with that of other States, because each set of judges is enlightened by and disposed to be influenced by the decisions of the Federal courts and of judges in other States. But when the whole law of a State has been enacted in the form of a code all existing divergences between one State and another are sharpened and perpetuated, and new divergences probably created. Hence codification increases the variations of the law between different States, and these variations may impede business and disturb the ordinary relations of life. Important as are the functions of the American judiciary, the powers of a judge are limited by the State Constitutions in a 1 This is perhaps less true of Louisiana, where the civil law of Rome, which may be said to have been the common law of the State, offered a better basis for a code than the English common law does. The Louisiana code is based on the Code Napoleon. manner surprising to Europeans. He is not allowed to charge the jury on questions of fact, but only to state the law. He is sometimes required to put his charge in writing. His power of committing for contempt of court is often restricted. Express rules forbid him to sit in causes wherein he can have any family or pecuniary interest. In one Constitution his punctual attendance is enforced by the provision that if he does not arrive in court within half an hour of the time fixed for the sitting, the attorneys of the parties may agree on some person to act as judge, and proceed forthwith to the trial of the cause. And in California he is not allowed to draw his salary till he has made an affidavit that no cause that has been submitted for decision for ninety days remains undecided in his court.2 I come now to three points, which are not only important in themselves, but instructive as illustrating the currents of opinion which have influenced the peoples of the States. These are The method of appointing the judges. Their tenure of office. Their salaries. The remarkable changes that have been made in the two former matters, and the strange practice which now prevails in the latter, are full of significance for the student of modern democracy, full of warning for Europe and the British colonies. In colonial days the superior judges were appointed by the Governors, except in Rhode Island and Connecticut, where the legislature elected them. When, in and after 1776, the States formed their first Constitutions, four States, besides the two just named, vested the appointment in the legislature, five gave it to the Governor with the consent of the council; Delaware gave it to the legislature and President (= Governor) in joint ballot, while Georgia alone entrusted the election to the people. In the period between 1812 and 1860, when the tide of democracy was running strong, the function was in several of the older States taken from the Governor or the legislature to be given to the people voting at the polls; and the same became A frequent form is that in the Constitution of Tennessee of 1870 (Art. vi. § 9) -“Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law." Several Constitutions are silent on the point. 2 The Californian judges are said to have contrived to evade this. 3 Virginia, New Jersey, North Carolina, and South Carolina. • Massachusetts, New Hampshire Pennsylvania, Maryland, New York. the practice among the new States as they were successively admitted to the Union. Mississippi, in 1832, made all her judges elected by the people. The decisive nature of the change was marked by the great State of New York, which, in her highly democratic Constitution of 1846, transferred all judicial appointments to the citizens at the polls. At present we find that in twenty-five States, the judges are elected by the people. These include nearly all the Western and Southern States, besides New York, Pennsylvania, and Ohio. In five States they are elected by the legislature. In eight States 2 they are appointed by the Governor, subject however to confirmation either by the council, or by the legisla ture, or by one House thereof. I may observe that all the thirteen States which do not appoint the judge by popular election either belong to the original thirteen colonies or are States which have been specially influenced by one of those thirteen (as, for instance, Maine was influenced by Massachusetts). It is these older commonwealths that have clung to the less democratic methods of choosing judicial officers; while the new democracies of the West, together with the most populous States of the East, New York and Pennsylvania, States thoroughly democratized by their great cities, have thrown this grave and delicate function into the rude hands of the masses, that is to say, of the wirepullers. Originally, the superior judges were, in most States, like those of England since the Revolution of 1688, appointed for life, and held office during good behaviour, ie. were removable only when condemned on an impeachment, or when an address requesting their removal had been presented by both houses of the legislature. A judge may now be removed upon such an address in thirty States, a majority of two-thirds in each house being usually required. The salutary provision of the British Constitution against capricious removals has been faithfully adhered to. But the wave of democracy has in nearly all States swept away the old system of life-tenure. Only four now retain 1 Rhode Island, Vermont. Virginia, South Carolina, Georgia. Massachusetts, Connecticut, New Hampshire, Delaware, Maine, Mississippi, New Jersey, Louisiana; in the last of which, however, district judges, and in Maine and Connecticut probate judges, are popularly elected. The power of impeachment remains but is not often used. |