CHAPTER VII.

THE JUDICIARY.

THE English sovereign anciently exercised judicial functions which, by an evolutionary process, have gradually come to be separated from his executive functions, and deputed to a permanent body of judges, appointed by him, but independent of his direction. During the Saxon period, the kings decided cases which otherwise had failed in obtaining settlement, and after the Norman Conquest they continued to administer justice in person.[1] William the Conqueror, whenever present in England, held great courts of justice at Christmas, Easter, and Whitsuntide. To William Rufus, the barons recommended mercy in the sentence of minor criminals in 1096. Henry I. summoned Robert of Beleseme before his court, charged with treason under forty-five articles; and other cases, criminal and civil, are recorded of him. Some of the sayings of Henry II. on the seat of judgment have come down to us.[2] Instances of personal decisions are narrated of John, Henry III., Edward I., and Edward II. But royal hearings, always and necessarily rare, gradually ceased. Edward IV. visited the Court of King's Bench in person to observe its procedure; in which, however, he did not share.[3] When James I. attended a trial, and desired to take part, he was informed by the judges, that he could not deliver an opinion.[4] And the constitutional principle has long since been recognized, that the sovereign, even though present, is not entitled to "determine any case, but by the mouths of his judges, to whom he has committed the whole of his judicial authority."[5]

The national legislature of England also, as we have seen, possessed judicial powers.[6] And by the changes of centuries it has come to share these with a variety of courts, though preserving the supreme jurisdiction pertaining to the House of Lords The Witenagemot transmitted its judicial functions to the Norman Great Council, the Curia Regis. But at least from the time of Henry I, an inner body — an offshoot from the larger, yet taking to itself the name Curia Regis.[7] — administered judicial and financial affairs, under the king or his deputy, the chief justiciar.[8] Judges made circuits of the kingdom, principally for fiscal, but also for judicial, purposes, and the local courts of each county — themselves outgrowths of the old folkmoots — were thus brought into connection with the national tribunals.[9]

This lesser Curia Regis in time became divided into three sections, which, in the latter part of the reign of Henry III., emerged as the distinctive courts of Exchequer, Common Pleas, and King's Bench, each charged with its own portion of business. The hearing of exceptional cases was still reserved to the inner council, and through the chancellor's relation to such cases eventually arose the Court of Chancery.[10] The council passed its powers on to the Privy Council, which continues its higher jurisdiction.[11] And thus judicial functions of the legislature, actively exercised by what was at first a sort of standing committee, came to be subdivided and put in operation through a gradually evolved system of courts, — the legislature itself continuing to exercise justice in what is now the House of Lords, successor to the Witan.[12] The judicial action of both the Privy Council and the House of Lords is taken in our day, not by those bodies as a whole, but by special judicial personages, — in the former by the "Judicial Committee," and in the latter by the Lord Chancellor, three Lords of Appeal in Ordinary, called "law lords,"and peers who are or have been on the bench.

Thus by slow transfer of power originally belonging to both the executive and the legislature, the national judiciary finally emerged into definite being, and became a characteristic feature of the English Constitution. The system, at least in its leading and essential elements, concerns the present inquiry. For from it the American judicial system — with differences of detail — has directly come. The process of derivation has been first through the creation and action of the colonial courts and judges, and the application of English law and procedure on American soil; secondly, through the direct contact of the colonies with the English tribunals, and especially with the Privy Council as an imperial supreme court for all Americans down to 1776; thirdly, through the legal literature of England, which has ever been regarded and utilized by the American bar as its own; and lastly, through adaptation from English models, begun in the Philadelphia Convention, and since continued by Congress in dealing with Article III. of the Constitution.[13]

Not only is the judiciary system of the United States derived from that of England, but even the co-ordinate and independent place accorded to it in the threefold division of government, and so often thought a novelty, is taken from English and colonial antecedents. Referring to this, Sir Henry Maine observes: "It may be confidently laid down that neither the institution of a Supreme Court, nor the entire structure of the Constitution of the United States, were the least likely to occur to anybody's mind before the publication of the Esprit des Lois.... The Federalist regards the opinions of Montesquieu as of paramount authority, and no opinion had more weight with its writers than that which affirmed the essential separation of the executive, legislative, and judicial powers. The distinction is so familiar to us, that we find it hard to believe that even the different nature of the executive and legislative powers was not recognized till the fourteenth century; but it was not till the eighteenth that the Esprit des Lois made the analysis of the various powers of the state part of the accepted political doctrine of the civilized world. Yet, as Madison saw, Montesquieu was really writing of England, and contrasting it with France.... The fact was, that in the middle of the eighteenth century it was quite impossible to say where the respective provinces of the French king, and of the French parliament in legislature, and still more of the same authorities in judicature, began and ended. To this indistinctness of boundary Montesquieu opposed the considerable, but yet incomplete, separation of the executive, legislative, and the judicial powers in England, and he founded on the contrast his famous generalization."[14]

But although this influence of Montesquieu in promoting the independent relation of the judiciary in the American Constitution is unquestionable, the Philadelphia Convention had before its eyes in this, as in other matters, the colonial adaptation of English usage then existing in the States of which the new nation was composed. And the testimony of the Federalist is exceedingly explicit on this point. For after stating reasons for an independent judiciary, it continues: "These considerations teach us to applaud the wisdom of those States which have committed the judicial power in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the Convention in this respect as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and the preference which has been given to these models is highly to be commended."[15]

When the Convention assembled in Philadelphia, State courts were in vigorous operation, but nothing had yet been done to supply the place formerly occupied by the English Privy Council as a supreme court of appeal common to all the colonies. Under any truly national constitution a national judicature was a necessity, not only for ordinary affairs, but also for those national matters which in the days of colonial dependence had been dealt with by the courts of England.

What the Convention did, was to add to the State courts one national supreme tribunal, and there it stopped. Other classes of national courts were contemplated, but the creation of them was left to Congress. Article III. of the Constitution reads: "The judicial power of the United States shall be vested in one Supreme Court, and in such minor courts as the Congress may, from time to time, ordain and establish."[16]

The present national courts of the United States are, therefore, the creation of the Constitution directly, in the instance of the Supreme Court, and indirectly, in that of the minor courts established under the provisions of Article III. These minor courts may be changed or added to by Congress as need arises. They consist at present of the circuit courts of appeal, the circuit and district courts, and the Court of Claims, as national tribunals, and the courts of the District of Columbia and of the territories as local courts under national control. The State courts are also employed for such national cases as they are capable of dealing with. By the present condition of the law, many cases within reach of the national judicial power are left wholly to the State courts, while in other cases, the State courts are allowed a jurisdiction concurrent with that of the Federal courts; their judgments on questions of Federal law being subject to final review in the national Supreme Court. The full purpose of the Federal jurisdiction is met, if the case, though heard first in a State court, may be removed, at the option of the parties, for final decision in the Federal courts. Congress has consequently left the parties at liberty, with few exceptions, to bring their suits in the State courts, no matter what the questions involved. But at the same time, it has protected the Federal authority, by providing for a transfer to the Federal courts, either before or after judgment, of all cases to which the Federal judicial power extends.[17]

Not only do the State courts — successors of the colonial courts — thus share in the national judicature, but the national courts apply State law whenever applicable to cases coming before them. And though the nation itself has no common law, its courts constantly administer the English common law of the States where it is proper to do so. In this way the law applied by the national courts is, first of all, that of the Constitution and of enactments of Congress, and secondly that which has grown up from English antecedents in the original thirteen States, or which has been adopted in the later States, formed more or less closely upon the older models. The jurisprudence regulating the procedure and moulding the decrees of the American Supreme Court is English jurisprudence, and it has thus become a new source of both American and English law. The system of inferior Federal courts is essentially a reproduction of the English itinerant system of judicature. In both civil and criminal cases the Federal courts proceed according to the English customary law, while in equity and admiralty causes they cling with like tenacity to the general body of English jurisprudence.[18]

An impression that the Supreme Court was created to be the "guardian" of the Constitution, by interpreting it, has often called forth admiration for what has been regarded a most novel contrivance of the Philadelphia Convention. Even so acute a writer as Sir Henry Maine assures us, that "there is no exact precedent for it either in the ancient or in the modern world."[19] Yet words describing such a function of the court are not to be found in the Constitution itself, and the procedure which really exists is neither of recent date nor without historical precedent. In deciding constitutional questions, the Supreme Court interprets the law in accordance with principles that have long governed the courts of England. For when an English judge finds conflict between an act of Parliament and a judicial decision, he sets aside the decision, as of an authority inferior to that of the act; and if two parliamentary acts conflict, the earlier is set aside as superseded by the later one, — the court interpreting the law, simply by determining what is law as distinguished from what is not. The range of this English usage was somewhat amplified in the colonies, owing to the fact, that instead of Parliament, the colonial courts had legislatures to deal with, which acted, in most instances, under written charters limiting their powers, — as also under the general domination of the home government. The colonial judiciary did not hesitate to adjudge a local statute invalid, if its enactment could be shown to have exceeded powers conferred by charter, — and the Privy Council, in the capacity of a supreme court for the colonies, decided in like manner conflicts between laws. When State constitutions succeeded to the charters, the process was continued by the State courts in cases showing conflict between statutes and the new constitutions judicially interpreted.[20] The national government, with a constitution of its own, created an element of superior law, in conflict with which not only State but national enactments of lesser authority are nullified.[21] All that the judiciary does in England, and all that it does in the States, and in the courts of the United States, is to uphold the authority of what it decides to be the higher law, as against all lesser laws or judicial decisions. What therefore has been supposed to be the most unique feature of the American Supreme Court is really only another adaptation from the past, and rests upon colonial and English precedents.[22]

The judges of England receive their appointment from the sovereign. Judges of the Supreme Court of the United States are appointed by the President, with consent of the Senate, under the provisions of Article II. Section 2, and judges of inferior national courts in like manner, under the general clause of the same article, which empowers the executive to name "all other officers of the United States whose appointments are not herein otherwise provided for."[23] In the Philadelphia Convention a proposition at first prevailed that the Supreme Court judges should be appointed by the Senate, but at a later session, upon the report of a committee, the present provision was adopted by unanimous vote.[24] The States, in more recent times, have made the office of judge depend very generally upon election by the legislature, or even by the people. But the national judges are still appointed by the executive.

By legal theory, as we have seen, English judges represent the sovereign in the dispensation of justice, and accordingly their commissions were formerly limited to such terms of office as the crown might prescribe. This control of tenure proved to be dangerous to public liberties, through liability of miscarriage of justice from political interest; and there were occasionally shameful compliances by judges with the wishes of the king, and involving flagrant violation of the rights of the subject. In the time of Lord Coke, Barons of the Exchequer were appointed to hold office during good behaviour, i.e. practically for life, — other judges still holding during royal pleasure. Until the accession of William and Mary, it was in the power of the sovereign to select which tenure he might prefer, — durante bene placito, or quamdiu bene se gesserint. The Act of Settlement of that reign stipulated, "that ... judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established, but upon the address of both houses of Parliament, it may be lawful to remove them."[25] Commissions were still held to expire at the king's death. But one of the earliest acts of George III. was to complete the independence of the judiciary by providing that judges should remain in office during good behaviour, notwithstanding any demise of the crown, and that their full salaries should be secured during the continuance of their commissions.

In the Constitutional Convention at Philadelphia it was proposed to make judges removable by the President upon the application of both houses of Congress. The circumstances, however, were not the same as those which gave rise to the similar provision in the Act of Settlement, and the proposition failed of adoption. The Constitution of the United States reads: "The judges both of the superior and inferior courts shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office."[26]

In Section 2, Article III., of the Constitution, are described the powers of the national judiciary. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and the citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, and subjects.

"In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulation, as the Congress shall make."[27]

The very first words of this section, "the judicial power shall extend to all cases," imposes upon the national judges a mode of action which is of English origin. English courts decide the issue of actual disputes only, and never lay down a general proposition except as arising from a "case," brought before them for settlement. The success of the Supreme Court of the United States is largely a result of following this method of determining questions of constitutionality and unconstitutionality. The process is slower, but it is freer from chance of political pressure, and far less provocative of jealousy than would be the presentation of abstract and emergent political propositions to a judicial tribunal; and yet this latter process is what a European foreigner thinks of when he contemplates a court of justice deciding an alleged violation of a constitutional rule or principle.

Thus also the rest of the same sentence of this second section of Article III. refers to legal usages of the mother-land: "The judicial power shall extend to all cases in law and equity, arising under the Constitution, laws, and treaties of the United States, and treaties made or which shall be made under their authority."[28]

Mr. Justice Story asks: "What is to be understood by 'cases in law and equity,' in this clause? Plainly, cases at common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their immigration, and with which all the American States were familiarly acquainted. Here, then, at least, the Constitution of the United States appeals to, and adopts the common law, to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union. If the remedy must be in law, or in equity, according to the course of proceedings at the common law in arising under the Constitution, laws, and treaties of the United States, it would seem irresistibly to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto such has been the uniform interpretation and mode of administrating justice in civil cases in the courts of the United States in this class of cases."[29]

The seemingly American characteristic of the jurisdiction of national courts over controversies between States, had its origin in the colonial custom, by which disputes between one colony and another — which frequently arose before the War of Independence — were adjudicated by the Privy Council. Such a case between Massachusetts and New Hampshire was settled by the Privy Council in 1679, and one between New Hampshire and New York in 1764. In the case of Pennsylvania v. Lord Baltimore, the jurisdiction involved was recognized by Lord Hardwicke in the most deliberate manner. And Blackstone thus states the law of the time: "Whenever a question arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein upon the principles of feudal sovereignty."[30] It was to take the place of this former jurisdiction of the crown, that the Constitution provided, "In all cases ... in which a State shall be party, the Supreme Court shall have original jurisdiction."[31]

It may be said in general, that the subjects coming within the reach of the federal courts, and the method of dealing with them, are very largely of a character familiar to English law. Powers which inhere in the British, or were exercised in the colonial, courts, are put into operation by the present tribunals to the extent of their jurisdiction. Customary writs are issued. Forms and procedure bear abundant evidence of old moulding. In fact, notwithstanding elements of differentiation, the entire American judicial and legal system, both State and national, is so essentially and confessedly of English origin, that consideration in minute detail is superfluous.[32] Perhaps no proof could be more to the point, than that the Commentaries of Sir William Blackstone are still "the best book in which to take a comprehensive view of the rudiments of English and American law."[33] And this legal influence is not merely a thing of the past, but continuous. "It is one of the links which best serves to bind the United States to England. The interest of the higher class of American lawyers in the English law, bar, and judges is wonderfully fresh and keen. An English barrister, if properly authenticated, is welcomed as a brother of the art, and finds the law reports of his own country as sedulously read and as acutely criticised as he would in the Temple."[34]

Referring to the next chapter, the provision in Article III. for trial by jury in criminal cases, we may consider the law of treason, which concludes the Article. Of the action of the Convention regarding this law, Story remarks: "They have adopted the very words of the statute of treason of Edward III., and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law which has prevailed for ages."[35] The English judges originally were left to determine for themselves, by rules of the common law, somewhat vague in character, what was treason and what was not. Injustice often resulted. And complaints and petitions were put forth from time to time by the House of Commons calling attention to the abuse. Finally, in 1352, a petition was presented, the royal reply to which, entitled "A Declaration which offences shall be adjudged treason," constitutes the statute.[36] This law of Edward III. was altered and enlarged in later reigns. And an amendment to it, referring to witnesses, which has been incorporated in the American Constitution, dates from 1552 in the time of Edward VI., when, in consequence of complaint from persons under trial, that they were unable to defend themselves, because not allowed to meet their accusers, it was enacted that no one should be indicted for treason in future, save on the testimony of two witnesses who should be brought into the presence of the accused at the time of his trial, unless he should willingly confess the charges.[37] The Constitution reads: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."[38]

Article IV., which takes up the general subject of States and territories, in their relation to each other and to the Federal government, touches a variety of matters confessedly of English derivation; and even the State system itself, which usually has been considered an American peculiarity, must be conceded to be only a natural and necessary outgrowth of the old political separation of colony from colony, and of union under the crown. Colony and State have remained the same in substance, whether the higher administration has been centred in London or in Washington. And the identical principle is still in operation in the clusters of colonies of Canada, South Africa, and Australia, and has its analogies in the general structure of the British empire.

The concluding articles — the fifth, treating of amendments; the sixth, detailing sundry matters of routine relating to the establishment of the Constitution itself; and the seventh, providing for the ratification of that instrument — need not be dwelt upon, save as to points which will come up in connection with kindred topics in the next chapter.[39]


[1] Even queens sat in court in early Norman times. Queen Matilda, consort of the Conqueror, Queen Maud, consort of Henry I., and the queen consort of Henry III., are recorded as having done so. Heming, 512; Hist. Mon. Abingd., II. 116, Rolls Ser.; Biglow, Placita Anglo-Normannica, 99; Spence, Equit. Jurisdiction, 101. n.

[2] A defendant alleged, in a case tried before him in 1454, soon after his obtaining the crown, that a charter of Henry I., placed in evidence, had been improperly gotten. "Per oculos Dei," exclaimed the king, taking the charter into his own hands, "si cartam hanc falsam comprobare possess, lucrum mille librarum mihi in Anglia conferres." Walter, Abbott of St. Martin of Battle v. Gilbert de Balliol: Chron. Monasterii de Bello, 106; Biglow, Placita Anglo-Normannica, 175. In a case over a land franchise between Baldwin, Archbishop of Canterbury, and the Abbot of St. Edmund, conflicting charters were presented; upon which the puzzled monarch exclaimed, "Nescio quid dicam: nisi ut cartae ad invicem pugnent." The abbot offering to submit the contention to the verdict of the counties of Norfolk and Suffolk, and the archbishop declining the offer, the king arose in indignation, and left the court, with the words: "Qui potest capere capiat." Archbishop of Canterbury v. Abbot of St. Edmund, circ. 1186; Chron. Jocelin de Brakelonda, 37, pub. Camden Soc.; Biglow, Placita Anglo-Normanica, 238.

[3] Stow, Chronicles, 416.

[4] Blackstone, Commentaries, III. 41.

[5] Coke, 4th Inst., 73.

[6] The Codex Diplomaticus prints a very extended list of charters recording the results of trials by the Witenagemot. The documents give very minute information as to the nature, process, parties, and causes, with place and date of the gemot at which each trial was held and the names of those who presided.

[7] Hallam (Middle Ages, II. 423) refers to the confusing application of the term Curia Regis. It was used to designate. (l) The Commune Concilium or National Council of the realm, the Witenagemot in a feudalized form. (2) The Ordinarium Concilium, the perpetual or select council for judicial and administrative purposes. (3) The Court of King's Bench, growing out of the limited tribunal separated from this last by Henry II., in 1178, and soon after acquiring exclusively the denomination "Curia Regis."

[8] "As the highest judicial tribunal in the realm, the Curia Regis consisted of the king, sitting to administer justice in person, with the advice and counsel of those vassals who were members of the royal household and of such others as were, on account of their knowledge of law, specially appointed as judges. In the absence of the king his court was presided over by the justiciar, who was at all times the supreme administrator of law and finance. By virtue of special writs, and as a special favour, the king could at his pleasure call up causes from the local courts to be heard in his own court according to such new methods as his advisers might invent. Through the issuance of these special writs, the king became practically the fountain of justice, and through their agency the new system of royal law, which finds its source in the person of the king, was brought in to remedy the defects of the old, unelastic system of customary law which prevailed in the provincial courts of the people." — Origin and Growth of English Constitution, 245, 246. See Biglow, History of Procedure in England, Reeves, History of English Law, etc.

[9] Taylor has admirably condensed the facts "In the course of the assessment and collection of the revenue, which was the chief work of the Curia as a financial body, local disputes so constantly arose that it became necessary to send detachments of justices to adjust the business of the exchequer in each shire. As early as the reign of Henry I, officers of the exchequer were frequently sent through the country to assess the revenue, and in the reign of his grandson, Henry II, this custom was enforced with systematic regularity. The justices while thus engaged in provincial business sat in the shiremoots, where judicial work soon followed in the path of their fiscal duties. In 1176 the kingdom was divided into six circuits, to each of which were assigned three justices, who are now for the first time given in the Pipe Rolls the name of Justitiarii Itinerantes. After several intermediate changes in the number of the circuits, it was at last provided by Magna Charta that two justices should be sent four times each year into each shire to take the assizes of novel disseisin, mart d'ancester, and darrien presentment. The provincial visitations of the justices from the exchequer, whose primary object was financial, thus led to the establishment of those judicial visitations which have ever remained an abiding feature in English judicature. Through these visitations was established that vitally important connection between the strong central system of administration embodied in the Norman Curia and the ancient system of local freedom embodied in the Old English shiremoots." — Origin and Growth of the English Constitution, 247, 248.

Stubbs says: "The visits of the itinerant justices form the link between the Curia Regis and the shiremoot, between royal and popular justice, between the old system and the new. The courts in which they preside are the ancient county courts, under new conditions, but substantially identical with those of the Anglo-Saxon times." — Constitutional History of England, I. 678.

The itinerant justices were for a long time active in extorting money from the people for the king's use. In 1242, at a Great Council assembled by Henry III., the barons complained, "Non cassaverunt justitiarii itinerantes itinerare per omnes partes. Angliae tam de placitis forestae quam de omnibus aliis placitis, ita quod omnes comitatus Angliae et omnia hundreda civitates et burgi, et fere omnes villae graviter amerciantur; unde solummodo de illo itinere habet dominus rex vel habere debet maximam summam pecuniae, si persolvatur et bene colligatur. Unde bene dicunt quod per ilia amerciamenta et per alia auxilia prius data, omnes de regno ita gravantur et depauperantur quod parum aut nihil habent in bonis." — Matt. Paris, 582.

[10] "The chancellor, who at a later period entered into many of the rights and dignities of the justiciar, appears in history very much earlier. The name, derived probably from the cancelli, or screen behind which the secretarial work of the royal household was carried on, claims a considerable antiquity; and the offices which it denotes are various in proportion. The chancellor of the Carolingian sovereigns, succeeding to the place of the more ancient referendarius, is simply the royal notary; the archi-cancellarius is the chief of a large body of such officers associated under the name of the chancery, and is the official keeper of the royal seal. It is from this minister that the English chancellor derives his name and function." — Stubbs, Constitutional History of England, I. 398, 399. See also Waitz, Deutsche Verfassungs-Geschuhte, II. 409. For etymology of the word "chancellor," see Campbell, Lives of the Lord Chancellors, I. 1, 2.

[11] "The original tribunal, the king's ordinary council, retained its undiminished powers throughout, changing at various times and throwing off new offshoots, such as the Court of Star Chamber, until it has reached our own time in the form of the Judicial Committee of the Privy Council." — Select Charters, 24.

[12] "We must not forget," says Freeman, "that our judicial and parliamentary institutions are closely connected, that both spring out of the primitive assemblies, that things which now seem so unlike as our popular juries and the judicial powers of the House of Lords are in truth both of them fragments of the judicial powers which Tacitus speaks of as being vested in those primitive assemblies. It was only step by step that the functions of judge, juror, witness, and legislator became the utterly distinct functions which they are now." — Growth of English Constitution, 84.

[13] Taylor notes this well-known identity of the American and English judicial systems. "So far as [the American] judicial organization is concerned, there has been but a slight departure from the ancient original. Such differences as do exist are rather differences of detail than of organic structure. In both systems the unit of local judicial administration is the county, where all causes, except equity and probate causes, are tried in the first instance according to the course of English customary law, subject to review in a central appellate court modelled after the great courts at Westminster. It is not the ancient county court, however, that is the local centre of judicial administration. In America, as in England, the ancient county court is overshadowed by the itinerant, or circuit court, held periodically in every county by the itinerant or circuit judge sent to preside in local tribunals by State authority. In every assize or circuit court held where English law prevails, the jury of presentment and the trial jury enter as component parts into the structure of a tribunal which, in its modern form, is the special possession of the English race. Each colony started out by adopting the whole body of English statutory and customary law, so far as its principles could be adapted to their changed social and political conditions. By a perusal of the colonial codes, it is possible to trace the beginnings of the great work of adaptation, which has not yet eliminated all the obsolete elements of the ancient system." — Origin and Growth of the English Constitution, 47, 48.

[14]Popular Government, 218-220.

[15]Federalist, No. 81.

[16]Constitution of the United States, Art. III. Sec. I. Without discussion, the committee of the whole, in the Philadelphia Convention, voted for a national judiciary to be composed of one Supreme Court and inferior courts. Later on, dissatisfaction was expressed, that in view of the fact that the States already possessed a full system of inferior courts, there should be forced upon them, in addition, a body of national inferior tribunals. Madison urged, however, that an effective judiciary establishment for the nation, commensurate with the national legislative authority, was essential. In this position he was sustained by Wilson and Dickinson. But the original motion was stricken out by a vote of six States to four. A compromise suggested by Dickinson was then agreed to, providing for the establishment of such minor courts as Congress should decide upon. — See Elliot, Debates, V. 155, 159, 160.

[17] As Robinson expresses it, "There is no hard and fast line dividing the jurisdiction of the Federal courts from that of the State courts." — Publications of the American Academy of Political and Social Science, No. 9, p. 236. This striking peculiarity of the American judicial system — its flexibility — seems to have been wholly missed by De Tocqueville. He admits "ce qu'un étranger comprend avec le plus de peine aux États-Unis, c'est l'organisation judiciare." — Démocratie en Amérique I. 163.

[18] See Origin and Growth of the English Constitution, 74.

[19] Popular Government, 218.

[20] See, for the era of the Constitutional Convention, the case of Holmes v. Walton in New Jersey, 1780, and action in Virginia, 1782, and in New York, 1784. See also Bryce, American Commonwealth, I. 243-247, or last revised edition, I. 248-252. Present usage is well known. A writer in The Nation, July 12, 1894, remarks with reference to the above paragraph: "No nation in the ancient or modern world possessed a judiciary beyond legislative control which could declare an act of the legislature void." This is true; but it does not touch the origin of the American usage, which is the point here considered.

[21] "Sir Henry Maine speaks of the Supreme Court as a 'virtually unique creation of the founders of the Constitution.' But it is ... unique rather in position than in form. There were supreme courts in many of the States, forming a separate branch of government, with judges chosen for good behaviour, and, in one State at least, in the manner prescribed by the Federal Constitution. Even in respect to constitutional importance, we find a precedent in the State courts; for Gerry, in maintaining that 'the judiciary would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality,' reminded the Convention that 'in some States the judges had actually set aside laws as being against the constitution.'" — Publications of the American Academy, No. 9, p. 241.

[22] "There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to protect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the Federal Constitution for the provisions he had been told to admire. No wonder he did not find them, for there is not a word in the Constitution on the subject.... The so-called 'power of annulling an unconstitutional statute' is a duty rather than a power, and a duty incumbent on the humblest State court, when a case raising the point comes before it, no less than on the Supreme Federal Court at Washington. When, therefore, people talk, as they sometimes do, even in the United States, of the Supreme Court, as 'the guardian of the Constitution,' they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme Court are the same in kind as those of all other courts, State as well as Federal. Its duty and theirs is simply to declare and apply the law; and where any court, be it a State court of first instance, or the Federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter." — American Commonwealth, I. 246, 247.

[23]Constitution of the United States, Art. II. Sec. 2.

[24] After the discussion in the Philadelphia Convention over the mode of appointing judges, and a preliminary decision that the Senate should have the power (see Elliot, Debates, V. 188), Mr. Gorham "suggested that the judges be appointed by the executive, with the advice and consent of the second branch, in the mode prescribed by the constitution of Massachusetts." This was finally agreed to, as having been "ratified by the experience of a hundred and forty years." See Elliot, Debates, V. 328, 330; Constitution of Massachusetts, 1780, Pt. II. Ch. II. Sec. 1, Art. IX.

[25] 13 Will. III. c. 2, III. 7. Campbell says: "It was not until after the Revolution of 1688, which placed Dutch William on the throne, that any permanent check was placed upon the power of removal; and it was not until the reign of George III. that the present system was introduced, under which judges hold office during good behaviour. All this was settled in the Dutch republic two centuries before.... The supreme judges of the High Court of Appeals at The Hague, nominated by the Senate, and confirmed by the Stadtholder, executed their functions for life, or so long as they conducted themselves virtuously in their high office." — Puritan in Holland, England, and America, II. 450. However this be, the fact remains, that America received these matters from and through England, whether William III. is concerned or George III. As to the action of George III., see King's Message, March 3d, 1761; I Geo. III. c. 23; Walpole, Memoirs, I. 41; Cook, History of Party, II. 400. A precedent in favour of the establishment of an independent judiciary long before the time of "Dutch William," is the statute of Alfonso V. of Aragon, in 1442, providing that judges should remain such for life, they being removable only on sufficient cause by the king and Cortes combined. See Prescott, History of Ferdinand and Isabella, I. 108, Intro. Sec. 2, p. 74, 5th ed., Lond. 1849. Was the Dutch usage influenced by Spain, through Spanish relation to the Netherlands? We have sufficient light on the direct cause of action in the Philadelphia Convention, from the remark of Hamilton in the Federalist, No. 78, in which he says, speaking of tenure of judges during "good behaviour," that it was a thing "conformable to the most approved of the State constitutions."

[26]Constitution of the United States, Art. III. Sec. I. The Federalist, No. 79, notes that "in the general course of human nature, a power over a man's substance amounts to a power over his will." Chief Justice Taney in a letter of February 15, 1863, objected to a national tax applying to justices of the Supreme Court, because it was an unconstitutional diminution of their salaries. This letter was recorded in the minutes of the Supreme Court by an order of the court of March 10, 1863. See Tyler, Life of Taney, 432. Hamilton, in the Federalist, No. 78, points out that "the complete independence of the courts of justice is peculiarly essential in a limited constitution." Story declares, with reference to compensation, "without this provision the other, as to tenure of office, would have been utterly nugatory, and, indeed, a mere mockery." — Commentaries on Constitution of the United States, II. 424, § 1628. Tucker, treating of this clause of the Constitution says: "Whatever has been said by Baron Montesquieu, De Lolme, or Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go further. In England, the judiciary may be overwhelmed by a combination between the executive and the legislature. In America, ... it is rendered absolutely independent of, and superior to, the attempts of both to control or to crush it. First, by the tenure of office, which is during good behaviour; these words (by a long train of decisions in England, even as far back as the reign of Edward III.) in all commissions and grants, public or private, imparting an office, or estate, for the life of the grantee, determinable only by his death or breach of good behaviour. Secondly, by the independence of the judges in respect of their salaries, which cannot be diminished," etc. — Tucker's Blackstone, Commentaries, App. 353, 354.

[27]Constitution of the United States, Art. III. Sec. 2.

[28]Constitution of the United States, Art. III. Sec. 2. "The equity jurisdiction of the courts of the United States is independent of the local law of any State, and is the same in nature and extent as the equity jurisdiction of England from which it is derived." — Gordon v. Hobart, Sumner, II. 401.

Mr. Justice Miller, of the United States Supreme Court, forcibly says: "Not only did the framers of the new Constitution follow as well as they might the general polity of the English system, but they evinced an ardent desire to preserve the principles which had been accepted as part of the general administration of the law among our ancestors. This is shown in many of the provisions of the Constitution. Among others, the article concerning the judicial powers of the new government, establishes its jurisdiction as extending to all cases in admiralty, and in law, and in equity, thus recognizing the English separation of these three classes of legal controversies as being governed by a separate jurisdiction. At least such has been the construction placed upon the instrument by the courts of the country without much question. It has been repeatedly decided that the jurisdiction in equity, which was a very peculiar one under the English system of legal administration, remains in the courts of the United States as it was at the time they separated from that country, and that one of the distinctive features of the difference between law and equity — namely, that at law there is a right to a trial by jury, and in equity there is none — has continued to the present day." — Lectures on Constitution, 488. Judge Cooley, referring to modern English usages, points to the effect of the jurisdiction acts of 1873 and 1875; and of change in usage in certain States of the American Union. Cooley's Blackstone, II. Bk. III. 454, n. 11.

[29]Commentaries on the Constitution of the United States, II. 436.

[30]Commentaries, I. 231.

[31]Constitution of the United States, Art. III. Sec. 2. "In extending the Federal judicial power to cases between two or more States, the Convention followed the example of the Articles of Confederation, which, although establishing no courts, provided that the United States in Congress assembled should be the last resort on appeal in all disputes and differences between two or more States." — Publications of the American Academy, No. 9, p. 234.

[32] Douglas Campbell (Puritan in Holland, England, and America, I. 62) says of this: "As the colonies grew, their jurisprudence naturally developed with them, and after they became independent States, their development was much more rapid. New law was required to meet new conditions of society. Sometimes the want was supplied by enactments of the legislature, at others by what Bentham aptly called judge-made law, the creation of the courts. The result is, that the legal system of America has changed about as much in the last two centuries as the face of the country itself. In England, too, the same change has been going on, in much the same directions, and from the same causes." Yet even he admits (p. 63): "England and America have, to-day, much the same legal principles."

[33] Cooley's Blackstone, Commentaries, I., preface, p. v. This statement comes from the pen of the leading legal writer of the present day in the United States.

[34] Bryce, American Commonwealth, II. 491.

[35]Commentaries on the Constitution of the United States, II. 555, § 1799.

[36] 25 Edw., St. 5, c. 2. The petition prayed that "whereas the king's justices in different counties adjudge persons indicted before them to be traitors for sundry matters not known by the commons to be treason, it would please the king by his council, and by the great and wise men of the land, to declare what are treasons, in this present Parliament." In later reigns the law of treason was often extended to offences not mentioned in this statute of Edward III., but to reduce the crime to the limits of the ancient statute was always a popular measure. With some modifications, this is the law at the present time.

[37] 5 and 6 Edw. VI. c. II.

[38]Constitution of the United States, Art. III. Sec. 3. "The interpretation of the phrases, 'levying war' and 'adhering to their enemies,' is a matter wholly for the court. The court is, then, empowered to defend the individual against prosecutions for any extraordinary treasons which Congress might attempt to construct." Burgess, Political Science and Constitutional Law, II. 148. See also Hanauer v. Doane, United States Reports, 12 Wallace, 342; Ex parte Bollman v. Swartwout, United States Reports, 4 Cranch, 75; Carlisle v. United States, United States Reports, 16 Wallace, 147.

[39] Reference has already been made in this book to Douglas Campbell's Puritan in Holland, England, and America. The fact admitted by Mr. Campbell, that historians take a position entirely at variance with his, seems not to have deterred him from setting up a claim for Dutch influence in America; which claim, in most of its particulars, must continue to lack the support of historians. A conspicuous feature, giving the key to the whole of his work, is an argument in the introduction, intended to demonstrate that American governmental institutions are not of English derivation. He says: "Instead of those of the United States being derived from England, it is a curious fact, that while we have in the main English social customs and traits of character, we have scarcely a legal or political institution of importance which is of English origin, and but few which have come to us by the way of England." — I. n. In proof of this astonishing assertion he proceeds, after referring to certain religious and social matters, to illustrate by specifying characteristics of the American Constitution. Let us briefly look at these characteristics.

(1) Mr. Campbell intimates, that as the English Constitution is unwritten, Americans could not have got a written constitution from England; and seems to imply that they therefore got it from the Dutch, who had a written compact in the Union of Utrecht, of which he says much. Of course, nowhere in his work does he show American continuity from this imagined Dutch original. And he wholly ignores the real origin of written constitutions in America; viz. the English charters granted by English sovereigns to English subjects. These latter, with the English political usage growing up under them, formed, as we have seen, the constitutions of colonial days. All the States save Connecticut and Rhode Island, framed the first State constitutions accordingly, — those two States retaining the old charters, even into the nineteenth century. The national Constitution, as a written document, is based on the written constitutions of the States, as these in turn were based on the written English charters. And the latter had their source in English trade charters, and not in any Dutch original whatsoever.

(2) He intimates that the American executive office is not of English derivation, because the President is a personal executive, and the English sovereign of to-day is controlled by a cabinet. In this he strangely confuses historical facts, and leaves altogether out of view the real evolution, through the colonial governorship and otherwise, from the older English kingship before the establishment of the Cabinet system.

(3) He intimates that the American Congress is not of English derivation, because the House of Lords of to-day has powers differing in some degree from those of the Senate, and the latter body is, in part, an executive or privy council; and because further a member of the House of Representatives is paid, and has a term of membership differing as to duration from that of a member of the House of Commons. Surely no serious answer need be accorded to arguments so trivial, in view of the fact of legislative evolution in organization, privileges, and power, traced in the foregoing Chapters III. and IV.

(4) Mr. Campbell says that "above all in America ... sits the Supreme Court to see that the Constitution ... is preserved intact. Its judges are appointed by the President and confirmed by the Senate, but they hold office for life or good behaviour." The foregoing chapter shows how far this can be claimed as proof that the American judicial system is not of English and Anglo-colonial evolution. He adds: "These features make up the peculiarities of the American Federal system, and differentiate it from other forms of government. All nations have an executive of some kind, most of them have judges and legislative bodies, so that in these general outlines there is nothing on which to base a theory of English origin. The question is whether our peculiar institutions, those distinctive of America, are derived from the 'mother-country.'" The aim of the present book — written before Mr. Campbell's appeared — has been to indicate, by the appeal to history, in what manner and to what extent the American Constitution is actually evolved from colonial and European sources.


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