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chapter 15: The Absolute Reign of Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Absolute Reign of Law
Prior to the American Revolution the courts in the Colonies were officered by royal judges. As soon as the Colonies reached a stage where there was need of any developed system of law, the whole of the English law was introduced in its system of common law and equity, with exceptions that are not important. In New York when the English took possession of New Amsterdam, no part of the Dutch law was preserved. Royal judges in the Colonies as a matter of necessity administered the only kind of law of which they had any knowledge. The prevalence of English law was fortified by the lawyers, who received their legal education, so far as they received any scholastic legal training, by attending the Inns of Court in London, although for the less fortunate a reading in lawyers’ offices furnished some sort of legal education which was sufficient for a highly trained mind. It is no doubt true that those colonials who had been trained at the Inns of Court enjoyed a great deal of prestige among the less fortunate members of the bar in the Colonies. The lack of a system of education for lawyers has had an effect in permanently deciding the form of professional practice in this country.
Edmund Burke in his great speech on America, one of those productions of that extraordinary man which show him at his best as a philosophical statesman, noticed the peculiar fact that there were more copies of Blackstone’s Commentaries sold in the American colonies than in England itself. He did not, however, suggest the real reason for this apparently strange thing—a reason which to us is obvious. In England the form of legal education was fixed. The Inns of Court had their well established method of study. The introduction of a new book like Blackstone was not easy, nor was it considered necessary, but in the Colonies, where there were no schools of law, the Commentaries were hailed as absolutely essential to any legal education and as the only book in which extended legal knowledge could be easily acquired. More and more men in the Colonies were choosing the law as a profession, and most students felt that the mastery of Blackstone was an entirely adequate preparation for the bar. Littleton’s Book on Tenures, Coke’s huddled annotations of Littleton, Sir Matthew Hale’s two treatises, one on the criminal law, the other on the common law, were now supplanted by a book easily read, clear and luminous in its statements and covering apparently the whole field of the law. Every word of it was taken as legal gospel. From that time began the superstitious reverence for Blackstone which could never have found lodgment except in a colonial type of mind. It was to continue through colonial and provincial thought for many years to come. Out in the West Blackstone was far more popular than Kent, because the former was much more condensed and had not so much terrifying Latin and French as Kent presented.
By the time of the American Revolution this lack of educational facilities for lawyers had fixed once for all in this country the form of the profession. In order to maintain the English division of lawyers into barristers and attorneys or solicitors, it was required that there should be not only the aristocratic forms of an old and fixed society and long inherited traditions fully established, but also the apparatus for legal education and for admission to the bar that was furnished by the Inns of Court. It probably would not have been endurable in the Colonies that there should be any social distinction among lawyers who had for the most part pursued the same manner of legal training. It was not possible that the colonists would recognize that any particular portion of the legal profession should have the monopoly of the right to speak or act in court, such as the barristers enjoyed in the English courts. Nor could it be thought of in the Colonies that people would admit the truism that really underlies the British practice in the division of the profession—the conception that the citizen may be considered competent to select an attorney, who can attend to many of his less important legal matters, but when the client comes to decide upon more important and weightier matters of the law, he is not competent but must leave the selection of proper counsel to his attorney, who is supposed to have and doubtless does have far more ability to make a proper selection than the client himself. Later in this chapter the effects of this American method of practising law and many things resulting will be noted. At present the point to observe is that before the Revolution, from entirely natural and controlling causes and from the inadequate provision for legal education, the rule had become fixed once for all that every lawyer in America is potentially and theoretically able to perform all or any part of the duties of a lawyer, whether those duties belong to what are called attorneys and solicitors, or to what are called barristers in England. This is doubtless a profound popular misconception, but it is not likely that it will ever be changed.
At the present time there are so many law schools which are fully competent to designate those who are qualified to enter the profession, that it would be a boon to the profession if the sole right of calling to the bar should be left to such schools. The medical profession is protected from unqualified men in point of instruction, and no sound reason can be suggested for not treating the legal profession in the same way. Individual cases of hardship are wholly immaterial.
The next general subject deserving special comment is the genesis of our constitutional development. This development of a written constitution as binding upon government had its origin in the existence in the Colonies of royal charters under which colonization had taken place. Certain factors of the charters are of importance for the comprehension of the exact struggle between England and the American Colonies and for the creation of constitutional thought. The charters defined the rights and privileges of the colonists. They contained many generous provisions and the custom grew up of appealing to the charters to define colonial rights. The charters were a regularly used form of document. In the long struggle for popular rights in England, the various charters of liberties extorted from the Crown had taken the form of royal grants. The Great Charter was a grant by King John revised and reissued under his son Henry III, and confirmed by John’s grandson, Edward I. The subsequent Petition of Right under Charles I had taken the form of a royal grant. These charters in English history had a peculiar sanctity to the minds of Englishmen. But it had never occurred to the English to define the rights of Englishmen in a form of constitution that would be binding on King and Parliament alike. One reason was that there was no representative machinery and no possibility of any representative machinery, beyond the Lords and the Commons, that could make a constitution. There never was a possibility of conceiving of a Parliament making a constitutional law which some succeeding Parliament could not repeal. The proposition was unthinkable from the times of the earliest Parliament that a Parliament could bind its successors not to change a law enacted by Parliament. Hobbes in his Leviathan had gone so far as to say that because a legislative body could not bind its successors, no law was binding on government. Hobbes was guilty of the palpable error of not seeing that the question was whether a law was binding on government, while it stood unrepealed, and whether it could create rights in the individual against the government, while it was in existence. There never, however, had been a time when a constitution binding on the government itself in all its departments, irrevocable and unamendable except according to the method of the Constitution itself, was a possibility in England. The so-called English Constitution could be changed at any time by Parliament.
It is true that in an old Year Book Stonor had laid it down that even an act of Parliament could be unconstitutional. Coke, in the desperation of his battle with the Crown lawyers, had adopted this idea. These lawyers had in mind the same class of thought that caused Bartolus to say that there were certain things that government could not do. His language had been quoted in the former chapter on the Medieval Law. The social contract school of thought would have said that such matters are beyond the original social compact, that certain rights are inalienable by the people, even if common consent be given to their alienation. This conception of a superlaw lies at the basis of the rule against all arbitrary government, whether of the one ruler or of the rule of the many, and has received the sanction of our Supreme Court, even where the Constitution is silent.
But this idea that there are certain acts beyond the power of government never found any lodgment in England. Stonor and Coke found no successors to assert that a law of Parliament could be unconstitutional in this sense or any other. There was once a crisis when the English could have freed themselves from the nothing-without-Parliament idea. When Charles I was beheaded and when the Parliament of King, Lords, and Commons was practically dissolved, and a godly Puritan state was in contemplation, a written constitution was proposed under Cromwell and Englishmen had what they would call a narrow escape from a written constitution; but nothing happened. The old conservative instinct prevailed and England came back to her King, Lords, and Commons with the King to be shorn, not to say shaven, of all power in the combination. After many years the Lords too were to be deposed from an equal partnership.
In the ancient world, at least among the Romans, there was the theory of a fundamental law not written but customary. As an instance may be given the power granted to the consuls by the Senate in times of civil danger that the consuls should “take care that the Commonwealth suffered no harm.” This decree of the Senate was supposed to give dictatorial power to the consuls. Yet there was a law to the effect that no Roman citizen could be put to death without an appeal to the whole body of the people. It was contended that the decree of dictatorial power set aside for the occasion the right of appeal to the popular assembly. It was conceded that this was true as to any one openly in arms against the government. Cicero in the year of his consulship, 63 B. C., argued a case brought against a man for killing a Roman citizen under this sort of decree in the year 100 B. C. Cicero himself put to death the Catilinarian conspirators under such a senatus consultum. He was banished for it and afterwards brought back in triumph. There was thus a sort of ill-defined unwritten constitutional law in Rome, but it was sometimes regarded and sometimes violated. Among the Athenians when a man was prosecuted for causing the passage of a law, the constitutional standard was anything that the court would make a standard. But the theory of a written constitution was absolutely foreign to Greek and Roman thought. The Athenian constitution was like the English constitution, a mere matter for ordinary legislation.
In early modern times there had been developed a new word in political thought—the term sovereignty. The word was new but the idea was very old. The original Greek and Roman conception of political power was that all political power of every kind—executive, legislative, and judicial—emanated from the body of the people, and the method of its expression was by the voice of the popular assembly. In Rome power to legislate belonged also to the Senate and Council of the Plebs. When the Republic passed away and the Empire began, the powers that were conferred upon Augustus were given him by the vote of the senate and by the people. This grant was made to his successors and the law granting the power was called the lex regia or royal law. This grant ceased after a time to be made, but nevertheless in the works of Ulpian it was laid down that the Emperor could make law, because the people had given him the power. This conception was carried into the Roman Digest of Justinian and he, an autocrat in fact, lent his approval to the statement that his autocracy depended upon the will of the people. The doctors of the Bolognese school in commenting on this text asserted that the people, having granted the power, could resume it.
But unfortunately St. Paul had taken in his Epistle to the Romans an excursion into politics and had evolved the proposition that “the powers that be are ordained of God, for there is no power but of God. Therefore he that resisteth the power withstandeth the ordinance of God.” Thus the idea came in, as the inspired word of God, higher than all human wisdom, that the Emperor’s, or any other ruler’s, power came from God, that his authority had been delivered to him from Heaven, not through any human power. Since this power was of sacred origin the priests claimed that they had a part in it and the Pope, as the Vicar of God, inserted himself between God and the ruler as a man ruling men without divine guidance, just as he had inserted himself and his ministers between all men and God.
In the long medieval struggle between the claim of the papacy to control the secular government and the claim of the secular rulers to be independent of the Church, the appeal was made to St. Paul’s text as a solid basis for the divine right of kings. Using a new word, the formula of the claim of secular government was summed up in the statement that each national government is sovereign, that is to say, independent of all outside control. This formula overwhelmed the papal claim and it prevailed. But it will be seen that as yet there had been the simple question of what may be called external sovereignty, not any question as to where sovereignty resides within the state itself. All lawyers accepted the conception of the Roman law that sovereignty existed in the body of the people and this popular power was supposed to be the supreme power in the state.
Bodin, a French writer, in his book demonstrated as best he could this idea in order to prove that the Pope had no control over the succession of a Protestant King, Henry IV, to the throne of France.1 It is true that the French King with the careless statement that the throne was worth a mass ended the discussion; but the idea lies at the basis of all modern international law, to the effect that each national government is, as to all others, a sovereign power. So far the development of sovereignty was impregnable. Bodin went further and ascribed to the sovereign the powers of internal sovereignty.
Thereupon a school of absolutists in government took the position that this power of sovereignty in a government, theretofore considered a freedom from external aggression, must logically require a supreme power, which resides somewhere in each national government, and which must be unaccountable to any other power in the state itself. This is wholly a non sequitur. It does not follow at all, because a nation may be sovereign externally and yet internally that power of sovereign control in internal affairs may reside nowhere. Hobbes took up the discussion. He is always a nuisance, because he is always wrong from his fundamental proposition of the natural state of mankind as a war of all against all and of a social contract made to end this war, to his absolutist idea of the divine right of kings. He asserted that a government and its laws were things imposed by a superior upon inferiors. At any rate Hobbes insisted upon the idea that in every sovereign government the power of unconditional, uncontrolled sovereignty must reside somewhere. He placed it in the sovereign, the king. Trained Catholic controversialists like Molina, Mariana, and Cardinal Bellarmine rapidly made this divine right of kings wholly ridiculous.2 At first the Anglican churchmen stood on this divine right, quoting St. Paul as supporting the turning-the-other-cheek doctrine of non-resistance and passive obedience to lawless acts of a king. The Revolution of 1688 vindicated the power of Parliament to control this so-called sovereign. Then the English took the thought and reduced it to the proposition that sovereignty in the English government resides in the Parliament, and from that day to this the English dogma has been that Parliament is omnipotent. From that time Englishmen have never escaped from this political dogma.
As a consequence of this dogma the Parliament slowly but surely usurped control over all the colonies and territorial possessions of Great Britain. Parliament had had nothing to do with the creation of the American Colonies, the rights of the colonists were guaranteed by Crown grants of charters, which were, when accepted and acted upon, covenants between the Crown and the colonists. Hence, when contentions arose between Colonists and Crown, the colonists appealed to their rights as written and defined in the charters. Parliament, without any legal right whatever, assumed that it could annul or revise or redraft those charter provisions at its pleasure. The Navigation Acts were passed, violative of the rights of the colonists, in imitation of the ages-old oppressive laws of the Athenian state striving to make all trading of the subsidiary states in the Delian League subservient to fostering the trade of Athens. The colonial lawyers, who knew nothing of and had never accepted the dogma of parliamentary omnipotence, replied with the colonial rights given in the charters. Parliament naturally could not give up its dogma as to its own power and insisted upon its right to do as it pleased with the Colonies uncontrolled by the charter grants of the Crown. It could annul any grant of the king in England, so it naturally assumed that it could annul any charter grant to the Colonies. This was all assumption of the common lawyers who were incapable of conceiving a royal grant with the Colonies as creating a Crown contract with the Colonies. This argument was never completely worked out by the colonial lawyers but it made impregnable in the colonial mind the idea that there could be a governmental charter or constitution which represented a set of legal rules that were above and beyond, and in control of, the ordinary executive or legislative power.
A discrimination is necessary here. The thought of a charter as a covenant binding upon government, standing by itself, is the precursor of the constitutional doctrine that a corporate charter is a contract, as it was ruled in the Dartmouth College case.3 But when that doctrine unites with the doctrine of the people, as the ultimate source of political power, resuming for the time its full sovereignty, there results that higher conception of a constitutional supreme rule of law binding on the people itself and all governmental agencies. To complete this full doctrine resort is necessary to the conception of Roman law that all power emanates from the people.
When looked at from the point of view of a governmental compact the Revolutionary struggle was not alone a mere contest over a paltry revenue in taxes; it depended upon deep and fundamental conceptions of the powers of government. The colonists, however, did not meet the issue squarely. They should have laid their troubles at the door of the English Parliament. It is much more grateful to denounce a king than a representative body elected by the people. The colonists should not have foisted that dogma of sovereign control over the Colonies upon the king. He and his ministers no doubt were in the van of the struggle, but his ministers were merely a cabinet representing a ruling committee of the English Lords and Commons. Nothing can be more stupid than the usual historical folly of charging the acts of the cabinet upon the king. Against a word from Parliament to a minister the king was powerless. This idea of parliamentary omnipotence is not at all necessary, because during the late war the War Council, which ruled the Empire, had representatives from the Dominions beyond the Seas. To-day the English Crown is the kingly head of Canada, of Australia, and of South Africa, but to not one of those dominions does parliamentary power now extend. At last the American theory has been vindicated, and thus the whirligig of time brings in its revenges.
The fact no one can dispute, that the colonial lawyers were deeply imbued with the idea that there must be an organic instrument of government, that bound government in all its branches and people alike. The colonials added, we repeat, to the theory of governmental law, a revival of the Roman conception that the sovereignty resided in the people itself, in the social community of which the government was the outward expression. This differentiation between the organic social community and the mere form of government and its agencies to which we shall come in a moment, is needed to show our fundamental departure from the English dogma that the government is the actual state or community and no power can exist beyond it. Here it is to be stated that immediately after the Declaration of Independence there began the adoption of state constitutions to supplant the old royal charters. The question was bound to arise and it at once arose: If the state government violates the state constitution, what is the remedy and where is it to be found? The answer came at once. The question is a judicial one; it can be raised by any citizen whose rights are affected and it must be decided by the courts according to the law of the land. The constitution of the state is the supreme law binding alike on government and all its agencies. It is binding on the sovereign people itself, and any law of any governmental agency, any act of any governmental officer, contrary to that supreme law, is simply void. Cases on this basis had been decided before the Constitutional Convention. This is what is meant by the heading of this chapter, the Absolute Reign of Law, which could just as well be stated as the Reign of an Absolute Law, which is the American doctrine of a controlling supreme law emanating from the people and putting limits to the exercise of every governmental power, supplemented by a judicial power to enforce and protect the rule of the supreme law.
This was the situation of American thought when the Federal Constitutional Convention assembled after our Revolutionary War, with the added thought just before mentioned that there had now been developed a deeper and more fundamental conception of the nature of the state. The original thirteen Colonies had developed a social cohesion that had given them the form of a single social community. Long ages before, Cicero, in the thirty-fifth chapter of his treatise on the Commonwealth, which exists now only in fragmentary form, had defined that form of social corporation which is called a state. He said that it is “a union of the people, associated in an agreement of law and a community of interest.” Perhaps a better translation would be: “A coming together of a multitude of people associated in an agreement of law for the general advantage.” A great Father of the Church, St. Augustine, followed Cicero. This is the true theory of the ancient world that a nation is a greater conception than its mere ruling power. For more than a hundred years Poland was divided into its parts, ruled separately by Russia, Prussia, and Austria, but the undying social community lived on to emerge in happier circumstances as the present state of Poland. The existence of such a social community is a fact. The only test of it is whether it does cohere and whether it continues to cohere. It is no metaphysical question involving a common will expressed in an actual form of governmental contrivances. The state is independent of the form of the government. Generally, however, sooner or later, the social community must attain expression in a governmental form or it will perish.
The best description of such a social organization is Burke’s superb phrase that any particular human society “is placed in a just correspondence and symmetry with the order of the world and with the mode of existence decreed to a permanent body composed of transitory parts, wherein, by the disposition of a stupendous wisdom, the whole, at one time, is never old or middle-aged or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation and progression.” Governments may rise and fall, empires may flourish and decay, and the social aggregate, the social community, the state, may remain. This social aggregate considered as the state, when it does attain its particular expression in a form of government, is in all its relations with other governments a unity, a moral person, and our law treats it as a public corporation.
Such a social community existed among the independent American Colonies when the American Constitutional Convention met. Its delegates derived their commission directly from the people of this united social community welding together the people of the states. It makes no difference how that agency to the delegates was granted; it was, and was used as, a delegation of power from the people of the United States who employed for convenience the existing and original divisions of the Colonies in order to select the delegates. When the act of independence had taken place, when the Declaration of Independence was made by the Colonies, it had been the act of the United Colonies.
This conception of the social aggregate as a reversion to the ideas of the ancient Greek and Roman world shows how it is that great and fundamental ideas are rarely entirely lost in the story of law. During the barbarian period and the era of feudalism, any conception of a social community was in fact completely submerged. The sway of a feudal lord and of a king over feudal lords was conceived as merely a personal relation of suzerain and subject. A nation was considered to be a nation not because it was a social community held together by the natural ties of a community of interests in the common bond of law, but because there was a common ruler, to whom were owed by all, the artificial man-created duties of fealty and homage. The Colonies, having grown together in a natural way, were not misled by old feudal ideas, except that when they declared their independence it was a declaration of the dissolution of the tie of allegiance to the British Crown, not to the British Parliament, which in fact was governing the Colonies. The Colonies were historically correct. It was so declared, because the Colonies repudiated any rights over them except those shown by the charters of the English kings. As to other rights, they claimed the general rights of all Englishmen, because those rights defined in the laws which they brought with them, were their common bond of law.
It has always been the doctrine of the Supreme Court of the United States that the nation composed of the people of the United Colonies was in existence before any form of Federal government had been made. The first Chief Justice stated in an opinion that the Declaration of Independence found the people of the Colonies already united for general purposes and at the same time providing for their more domestic concerns by state governments and other temporary arrangements.4 The Supreme Court early made the distinction between the social aggregate of the nation and its form of government. The social aggregate, it was asserted by a philosophical jurist in that court, is the complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, to do justice to others, and if necessary to resist aggression. Here, at last, is something new in public law.
The government naturally, in consonance with the English type of thought, has often claimed that it is the social aggregate itself, but the two things are totally distinct. The social union of the Colonies existed before the first form of government (which was the Articles of Confederation) and the present form of government (which is called the Constitution) were ever considered. Time and again our highest tribunal has repeated this doctrine of the cohesive social aggregate antedating the form of government. Another early decision asserted that before the Constitution was adopted this one united political body, existing as a fact, raised armies, conducted military operations, issued bills of credit, borrowed money, received and sent ambassadors and made treaties. The word state is used, our Supreme Court tells us, in three senses: it means, first, the political community; secondly, the territory of that community; and thirdly, the government thereof. The difference between the political community and the form of government is emphasized. The Union as a social aggregate, they said, is not an arbitrary and purely artificial relation. It grew out of natural facts of common origin, mutual sympathies, similar interests, and geographical relations. By the Revolutionary War it was confirmed, strengthened, and solidified. By Articles of Confederation it took one arbitrary and purely artificial form of government, and by the Constitution that form was changed. But necessarily the form cannot rise higher than its creator, and that form was given by the existing consolidated people, who as a people made the form of government.
This is the philosophical theory of this Union of States which was finally settled by our great Civil War. But for many years a certain school of political thought contended that the only genuine social aggregates were the peoples of the various states, and that there was no such thing as a naturally cohesive political community of the whole United States. The state as a social community underlying the government was a new conception in politics and was never understood either in English or in French political circles until years afterwards. After the German Empire was formed, the legal scholars of Bavaria, borrowing from Calhoun’s tenets,5 earnestly contended that there was a political community known as Bavaria and that there was no such natural political community as the people of the German Empire. But a man who is so dull as to deny the natural political community of Germany is as much out of date as many other fossil saurians.
It is necessary at the outset to define this fundamental manner of union, for without it the doctrine of a political community of which the government is the mere creature, cannot be comprehended. Nor can there be any understanding of our political system by one whose mind is befogged by the English theory of the omnipotence of its Parliament constituting the political community with no higher power behind. Those who sigh for an omnipotence of power embodied in our Congress and the President are one hundred and fifty years behind the times. As to the unified political community, no one can say when it came into being. It had a natural growth from natural causes, but as to the form of government it is possible to put a finger on the very time of the artificial agreement and to name the individuals by whom the agreement was made in the Constitutional Convention.
At the time of the adoption of the Constitution the people had resumed for the time all political power whatever and out of the plenitude of its sovereignty was laying down rules that were to be obeyed as the supreme law of the land, anything in any other law, local or general, “to the contrary notwithstanding.” It was assumed that the people, through its delegates to the Constitutional Convention, was exercising all the power of government, whether theretofore resident in the different states or in the whole body of the people. This is the necessary background from which to understand our system.
In the next place the Constitution recognized that there are three powers existing in and issuing out of the social community of the United States and inherent in that body. The delegates, as a part of their commission, were to provide for the exercise of those powers of that general social union. In accordance with the developed legal experience of the ages, and in accordance with a truth recognized since Aristotle, those threefold powers are the legislative, the executive, and the judicial. In accordance with the philosophy of Montesquieu, borrowed from Locke, and extracted from the form of English government, before the dogma of Parliamentary omnipotence had been developed, those three powers must be separate and separately exercised by separate departments. The legislative power is lodged in the legislative department, the executive power in the executive, and the judicial power in the judicial.
The legislative department with its power was given the duty of enacting laws—which, we have seen, is but another form of saying that the legislative enactment of a law is the expression of the nation’s acceptance of law. This legislative power looks only to the future. It declares a rule to govern future transactions or acts, not acts or transactions that are past and completed. The legislative department is made up of a Senate and House after the English analogy. The executive department, however, is made a part of the legislative power in this respect: The legislative body, the Congress, is not empowered alone to accept law in the first instance. The executive department, the President, must also accept; but if he refuses to accept the law, a vote of two-thirds of each house is so near a practical approach to unanimity as to show that, in spite of the President’s veto, the people with practical unanimity is ready to accept the law.
The executive department is the President, in whom is lodged the executive power. He has the duty of executing the laws. The President cannot make a rule for the future, for that is legislating; he cannot assume to decide a litigated question, for that is a judicial act. The sphere of his domain is strictly in the present, save and except that in the domain of legislation he may by his veto require a more thorough consideration of law and a nearer approach to unanimity.
The judicial power of the United States is by the Constitution vested in a Supreme Court and in inferior courts established by Congress. The judges are to hold their offices during good behavior and each judge is to receive a compensation which cannot be decreased during his continuance in office. This provision embodies, of course, the result of the Revolution of 1688 and the experience of all the ages. Congress cannot legislate a judge out of office by taking away his compensation or diminishing it. The extent of the judicial power given to the government of the United States was considered to be coextensive with the necessities of the Federal government. The Supreme Court, while generally an appellate court, is a court of original jurisdiction in every case where a state is a party and where ambassadors and foreign representatives are affected. It is possible, of course, for Congress to abolish all the jurisdiction of the inferior courts of the United States, but it could not affect the original jurisdiction nor by the best opinion could it prevent the appellate jurisdiction of the Supreme Court from taking effect upon any case within the judicial power of the United States. If this appellate jurisdiction could be abolished, the Supreme Court could be cut down to simply its original jurisdiction. This would in effect leave the Supreme Court without authority to pass upon any constitutional question arising under the Constitution of the United States. It would be possible for Congress to attempt to leave all cases whatsoever to the decision of state courts, except those cases where a state is a party or where foreign representatives are involved; but the Supreme Court has decided that certain jurisdictions of the United States courts are exclusive of the state courts. Owing to the fact that the court has not been entirely consistent in its rulings, it is impossible to say what the law is, but it does seem certain that Congress could not take away the appellate jurisdiction of the Supreme Court. Certainly the Convention never contemplated such a national suicide as being possible. That appellate jurisdiction is subject, of course, to such exceptions as Congress may by law have directed, but the Supreme Court will never make it possible for Congress to ruin the whole scheme of government. By taking away all appellate jurisdiction of the Supreme Court and by abolishing all the inferior Federal courts, every inhibition of the Constitution on the Federal government and on the states would be rendered abortive by leaving all such questions to the state courts, with their varying decisions.
The inhibitions of the original Constitution were of two kinds. One kind is the inhibitions on the Federal Congress itself. Their explanation is found in English history. The inhibition against the passage of a bill of attainder or ex post facto law recalls some of the bloodiest pages of English law. Other inhibitions are intended to maintain the equality of the states. No direct tax can be levied except in proportion to the census, nor can Congress by its laws tax exports from one state to another or give any preference of a particular port of one state over those of other states.
When the inhibitions against the states are considered they also contain the provision against passing a bill of attainder or ex post facto law as well as against a law impairing the obligation of contracts. The other provisions are against any act that would bring the state into collision with the Federal government. Among them is the provision that no state can join a confederacy of any kind, the provision that was violated by the seceding states in 1861, and was enforced by the armies of the North vindicating the constitutional rule.
As soon as the Constitution was adopted amendments in the way of a Bill of Rights as against the Federal government were adopted. Most of them come out of English history. The inhibition against establishing religion, or preventing its free exercise, or abridging the freedom of speech or of the press, or preventing the right to assemble and petition the government, or against the quartering of soldiers, or against unreasonable searches and seizures, the prohibition of search warrants unless they be granted on probable cause and particularly specify person and place—all find their explanation in English history.
The preservation of a grand jury indictment as a prerequisite to all prosecutions for infamous crimes, the prohibition against putting a defendant twice in jeopardy or compelling him to be a witness against himself, all point to particular abuses under the common law. Magna Charta was kept alive by the provision that no one shall be deprived of life, liberty, or property without due process of law. The old method of purveying is forbidden by the clause against taking private property without just compensation. Nor can the public confiscate property, unless possibly by a constitutional amendment. A defendant in a criminal case is given a certain relief against the old common law in that he must be tried in his district and must be confronted by the witnesses and must have compulsory process for his own witnesses and must be allowed counsel for his defense. These provisions correct the inhumanity of the common law. Excessive bail or fines cannot be exacted nor cruel and unusual punishments inflicted. These provisions recall the history of the Court of Star Chamber and some later trials when tremendous fines were imposed, when ears were cut off and then for a second offense reshaven. Every one will recall old Prynne arraigned a second time before the Star Chamber. His long hair concealed his mutilated ears cut off for a former offense. One inhuman judge exclaimed: “Methinks the gentleman hath ears. Let us see his ears.” The hair was pushed back, exposing the stumps of his ears, and he was sentenced to have even the remnants of his ears shaven off. This was the conduct of primordial brutes when Shakespeare was writing of that judicial mercy that falleth as the gentle dew from heaven.
These original amendments as construed affected only the government of the United States. Hence it happened that for many years, while the Federal government could not deprive any person of life, liberty, or property without due process of law, the states could do so, so far as the Federal Constitution was concerned. By the fourteenth amendment, adopted after the Civil War, a state was forbidden by law or otherwise to deprive any person of life, liberty, or property without due process of law or to deny to any one within its jurisdiction the equal protection of the laws, which means the protection of equal laws, an idea that goes back to Cicero. Thus finally the Absolute Law was complete, binding alike on the Federal government and the governments of the states, by a rule enforceable upon all agencies of government by the Federal courts.
Later amendments have permitted income taxes without apportionment or census, in order to enable the poorer states protected in their equal representation in the Senate even against constitutional amendment, to make the richer states pay almost all the expenses of the general government. The direct election of United States senators has been provided—with results that are deplorable. The manufacture or sale, or importation into or exportation from the United States, for beverage purposes of intoxicating liquor has been added as an attempt to improve the general morals. Congress and the states are given concurrent power to enforce this latter provision. A large part of the citizens refuse to obey this prohibition and at present there is a large lawless territory of conduct in the sale of liquor which in some places has developed usages of its own, including private war among those who purvey to the craving for intoxicants.
The final amendment, that the right of citizens to vote shall not be denied or abridged by Congress or by any state on account of sex, places women under the same constitutional protection as colored men formerly were supposed to enjoy; but the provision is not likely to be evaded with the ease with which the color amendment has been evaded. It is not likely that white women will consider colored women entitled to any part of the support of the equal suffragists. Experience has shown that this last amendment will not make any appreciable changes in the general results of voting. Women will vote much as men vote.
The prohibition of intoxicating liquor, however, presents the question whether a law can be enforced which a large part of the citizens refuse to obey. Its enforcement depends upon a gradual forced change in public sentiment, but it must be said that no signs can yet be found of any alteration in public sentiment which has affected the stimulated thirst of many people for ardent spirits. In the end the difficulty will probably be determined by some reasonable compromise. There is too much capacity in this country in adjusting law to social conditions, to permit the present situation to continue. When that adjustment comes about, the artificial condition of lawlessness created by the present legal situation will, of course, pass away. The situation has happened before in various states, but now a wider experience has been gained in regard to the matter, not only in this country but in a number of foreign countries.
It will be seen from this general scheme that the Federal government is a form of government where the various departments are bound down by the supreme law. In certain matters it was intended that there should be no flexibility or compromise. The assertion that the Constitution shall be the supreme law suggests the thought of what shall be the remedy and the recourse if Congress itself or the executive department or some of its officers or the states or their legislatures or officers or agencies should, by passing a law or indulging in other conduct, attempt to overrule or set at naught or violate the supreme law of the land. If such acts can be done and there be no recourse, it follows, of course, that the supreme law has descended to becoming inferior to the law or act that violates it. So much, at least, no reasonable human being who has any respect for his own mind ought to deny.
At the time this Constitution was adopted there had been, as we have seen, a long struggle and controversy to vindicate the chartered rights of the Colonies against the legislative acts of Parliament and the executive acts of its cabinet committee mistakenly called the Crown. As we to-day look back at the controversy there seems to be no doubt that as a matter of law the Colonies were right and Parliament was wrong. But the point is, as insisted above, that there was imbedded in the colonial mind the thought of a rule of law that transcended legislative and executive power.
After the Declaration of Independence certain of the states adopted new constitutions which became their organic laws. Among them was that of Massachusetts, with its earnest hope that that state should have a government “of laws and not of men.” Other states followed. One state made shift to get along for years with its colonial charter. Before the Constitutional Convention produced its new Federal Constitution, there had been decisions on cases in the state courts, as we have seen, that any state legislation in conflict with the state constitution was absolutely void. This conception was well developed in political thought when the Federal Convention met. Probably no one in that Convention had the slightest doubt that it was necessary to have in the Federal government a judicial power that could preserve the Constitution as the supreme law of the land. This necessity was clearly pointed out in the articles of the Federalist.
This idea was so firmly imbedded in the minds of all political thinkers, that at once under the new government it was insisted that there should be added by amendments a Bill of Rights, analyzed above, which should define the rights of each and every citizen against the powers of government. Those amendments were adopted without any question, and they contemplated that the rights of citizens thereby guaranteed should be protected against encroachment by any governmental agency. It was not long before a question did arise where a state was sued by citizens of another state, and the Supreme Court by a fine opinion sought to protect helpless Indians against robbery by the State of Georgia, and at once a new amendment was devised and passed to prevent such a contingency again arising; but the amendment was easily avoided by suing state officers.
At last, after the first great political change in party government under the Constitution, it became apparent that the Supreme Court would without question declare a Federal law or an executive act unconstitutional and void, if it, in the judgment of the Court, infringed the Federal Constitution. Politicians, who in their political battles rarely look beyond the moment and are rarely scrupulous as to means selected, decided that something must be done to curb the power of the Supreme Court and to reduce it to subjection to the representatives of the people, as the President and Congress were said to be. The Constitution was surveyed and the indirect method of an impeachment was adopted in order to render the Court subservient to the legislative and executive power. Those two departments combined their forces and moved on the Supreme Court by an impeachment of one of the justices of that court. The victim selected was Samuel Chase of Maryland, a signer of the Declaration of Independence. He had opposed the adoption of the Constitution but had become a Federalist in politics. When made a justice of the Supreme Court he had made himself exceedingly obnoxious to many people by his enforcement of the Alien and Sedition laws, under which it was attempted to put some curb upon the support that was being given to France both by resident aliens and by citizens. Those laws were mildness itself compared with the laws passed during the World War, but the clamor of the politicians affected was loud, and as usual freedom was in danger, if political rascals were not permitted to prejudice the country.
The precedents of impeachment from English history were not entirely satisfactory. There were many famous impeachment trials, but under the Tudors the impeachment had been deserted by the politicians and the Crown for the more expeditious and bloody proceeding by bill of attainder. No doubt the politicians sighed for the bill of attainder, but a bill of attainder as well as an ex post facto law was forbidden by the Federal Constitution. Impeachment, however, had been preserved and it seemed possible by that form of proceeding to escape all judicial restraints.6
In 1621 Sir Edward Coke had restored impeachment as a mode of criminal trial. In that very year the Commons heard witnesses, gave judgment, and imposed a punishment, but the House of Lords promptly, on the strength of a precedent in the first year of Henry IV (1399), proved that the Commons were not judges in Parliament and that that jurisdiction belonged to the Lords alone. Then followed, to name a few famous cases, Strafford’s impeachment and the speech in his own defense which has become a classic of noble and moving eloquence. Three Lord Chancellors, Clarendon, Somers, and Macclesfield, suffered impeachment, but against Lord Bolingbroke, a prime minister, the more reliable bill of attainder was revived. There is a trial of the impeachment charges against Dr. Sacheverell for the extraordinary offense of preaching two sermons in support of the Tory doctrines of non-resistance and passive obedience. The punishment imposed upon him was to keep silence for three years, which ought to figure as a cruel and unusual punishment against a man so fond of political sermons.
The most interesting of all the English impeachments was that of Warren Hastings, next after Clive, the founder of the English Empire in India, who returned in the splendor of his fame to spend ten years of his life pursued by that towering array of talent, with its extraordinary power of eloquence, Sheridan, Fox, and above all Burke, the ablest politician, in the noble sense of the word, this world has ever seen. The advocates of Hastings, headed by Edward Law, afterwards Lord Chief Justice Ellenborough, broke the force of that impeachment by tying the great orators down to rules of strict legal procedure and by meeting their political law and loose testimony with the serried ranks of the rules of evidence. The superb spectacle in Westminster Hall and the marvelous efforts of the great statesmen surpassed anything in our history in the way of an impeachment case.
Of far more political importance than the impeachment of Hastings, was this impeachment of Samuel Chase, when our Constitution was new and untried.7 We had adopted against Federal officers the English method of impeachment, by giving to the House of Representatives the sole right to prefer a charge and to the Senate the sole power of trial. In 1804 men who had fought in the Revolution for the independence of a narrow strip along the Atlantic had lived to see the national domain stretching to the mouth of the Columbia River in Oregon. In this year early in our constitutional history the great battle was to be fought between the lawyers and the politicians to determine whether this national government of ours should be one of laws or merely of men. The trial of Chase was in fact to determine whether hostile politicians could impeach and remove judges of the Supreme Court because of what those ignorant and prejudiced political gentlemen considered errors of law, and improper views of the meaning of our Constitution.
Chase was a Federalist in the old and able court headed by Marshall. His associates were all Federalists, one of them a nephew of Washington. At the instigation of President Jefferson, working in his devious way, the House of Representatives had impeached Chase for alleged errors in the trial of a seditious criminal named Fries, of another named Callender, and finally for an address to the grand jury on the circuit in which he had reflected on the dominant party, then called Republican. The real point at issue was whether the legislative power could control the judges by removing them by impeachment on account of their expressed ideas as to constitutional law and then pack the court with their worthless partisans. The situation was acute. Marshall had just informed the administration that the Court would not hesitate in its duty to hold an executive act to be unconstitutional and Jefferson’s rage against the sanest man in our history, whom he called “the half-crazy chief judge,” was malignant. This impeachment is in its far-reaching results the most important fact in our constitutional history after the adoption of the Constitution.
Yet it is to be said with regret that the men who write our histories with no adequate knowledge of constitutional law, have failed to recognize the overpowering importance of this trial. Two men have very imperfectly essayed the task, but the constitutional histories have missed it altogether. Over thirty years ago students at college, for want of something better, read for their sins, as a textbook on our constitutional history, a work by Von Holst, and in all that voluminous book there is no mention of this impeachment. The wonder is how constitutional history could be written without noticing this trial. Let any man try to conceive what the history of this country would have been if Samuel Chase had been found guilty and removed and if then the politicians, with appetite whetted by the smell of blood, had moved on Chief Justice Marshall and he had been removed by impeachment.
There was long afterwards another important impeachment, that of Andrew Johnson. The charges there were actual violations of a penal statute combined with other charges that were not seriously considered. Owing to the fact that the charges as to violations of the statute failed, no real issue was there presented except the improprieties of the President, and they were not matter of impeachment. Johnson’s trial, however, is worth reading to see how Evarts, Curtis, and Groesbeck as advocates overthrew the politicians, which is the ordinary outcome of great impeachment trials. It is the victory of the trained and equipped mind over casual and desultory effort. Any one who has pored over those volumes, printed in the miserable type which our government deems worthy of its publications, will remember the detestable vulgarity and pettifogging of Ben Butler, who managed and disgraced the case for the House, the sophomoric eloquence of Judge Bingham, and the cold, reasoned, cutting logic of old Thad Stevens, unable to stand, carried in a chair daily from House to Senate, the greatest advocate on either side. If he could have directed the case Johnson would have been convicted. Stevens’s wit never failed him. One day when he was being carried by two stalwart attendants, he looked up and said: “Who will carry me, boys, when you are dead and gone?” Opposed to the House managers in the Johnson trial were the solemn weight of Curtis’s argument, the wit and adroitness, the suavity and finish of Evarts. These recollections will remain with any one, who has read the record, as unfading memories of a great trial. But Johnson’s impeachment cannot approach in political importance this trial of Judge Chase.
It is not necessary to go into the formal statement of the charges against the Justice. They can be read in the book published in 1805 giving the proceedings. In answer to the charges Judge Chase appeared before the Senate with his counsel, the ablest advocates of that day. The managers of the impeachment were John Randolph of Roanoke, utterly ignorant of law, and a number of other men who, among politicians, passed, no doubt, for lawyers.
Presiding over the Senate was Aaron Burr, fresh from the killing of Hamilton. Jefferson, formerly Burr’s bitter enemy, had lately been conciliating him with offices. Stirred by recollections of the great Hastings trial, Burr had attempted a pitiful travesty of the pomp of Westminster Hall in most uncongenial surroundings in the old Senate Chamber, which is now the Supreme Court Room, in the village that was then the wretched mudhole of Washington, without houses or streets and with an unfinished Capitol building. In an amazing riot of color of his own designing, Vice-President Burr performed almost the last act of his official career. He was just about to cease to be Vice-President and to engage in the Louisiana venture which aroused again the enmity of Jefferson and brought him to trial for high treason before Judge Marshall on the circuit. It is to be said for Burr that upon this Chase trial his bearing was a model of judicial decorum and his part in it could not be a subject of criticism. As a keen lawyer he must have enjoyed the discomfiture of the Jeffersonians.
The sole question before the Senate in the Chase trial was on the meaning of the Constitution. In Article II, section 4, it declared that all civil officers of the United States should be removed from office on impeachment for and conviction of treason, bribery, and other high crimes and misdemeanors. Article I, section 3, added that the one convicted should nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. It is plain that the phrase high crimes and misdemeanors does not mean “high errors,” but does mean actual criminal offenses, because that is the meaning the words then bore. This view is strengthened by the collateral consideration that the Constitution evidently supposes that every impeachable offense is indictable and punishable as a crime. Since it was not claimed that Judge Chase had committed any public offense, the articles stated no ground for impeachment.
The attempts of the historians to explain the issues upon this trial are not successful. Historical writers are rarely fortunate in an attempt to explain legal matters. They do not seem to be able to comprehend the terms that are being used. But this is nothing new. Over three hundred years ago Coke, the oracle of the common law, observed: “And for that it is hard for a man to report any part or branch of any art or science justly and truly, which he professeth not, and impossible to make a just and true relation of anything that he understands not, I pray thee beware of chronicle law,” or as we say historians’ law. In Coke’s time there were no histories of England except the jejune chronicles.
Although the law was plain, Campbell, the manager opening the case, contended as had been agreed in Judge Pickering’s case just finished, that an impeachable offense need not be indictable. Pickering had been impeached probably for the slimy political reason that thereby a number of Senators could be committed to a particular construction of the words of the Constitution. But these managers were to find that Judge Chase, supported by his court and defended by the flower of the bar, was a very different person from the bibulous and half-demented Judge Pickering of New Hampshire. Impeachment, Randolph vaguely continued the managers’ position, was a sort of official inquiry into the conduct of a public officer, more in the nature of a civil investigation than a criminal prosecution. The articles of impeachment, according to Randolph, who did not foresee what he was to meet, charged that Judge Chase had committed errors in his rulings. In other words, the law as decided by a judge of the Supreme Court was, according to the managers, to be passed upon and revised and the legal rulings of the judges were to be submitted to a lot of usually second-rate politicians or indifferent lawyers, filling the senatorial benches, preparatory to removing the judge. This is the original proposition in our history for a judicial referendum. Instead of the manifest imbecility of a popular referendum, Randolph and his associates proposed a referendum to the Senate, giving it the final decision upon matters of law, by removing the judges.
But some of the articles of impeachment contradicted this theory; they attempted to charge acts as being criminal offenses, although the acts could not be offenses; others charged mere errors of law, but every act charged, except the address to the grand jury, which was at most a judicial impropriety, not even an error, became on final analysis merely an alleged error of law committed by a judge in the discharge of his judicial duties, and every such error assigned was precluded by the decisions of Marshall and his fellow judges.
Chase’s counsel, in their speeches in opening, at once took issue upon this ridiculous legal basis for the impeachment. Thereupon Nicholson, another manager, abandoned this position of the managers. Randolph, who closed the opening speeches, was wholly at sea on the legal points involved, for a Virginia planter, even if he did know a little Latin, could hardly be expected to reply to trained lawyers. After the evidence was in, the managers in closing arguments again attempted to come back to the ground that they were not obliged to prove a criminal offense. They asserted in closing that if they proved violations of law not amounting to crime, the law would impute to every such violation or every breach of duty an evil intent or a corrupt motive. This is tantamount to saying that every time a judge decided a point of law wrongly he committed a high crime or misdemeanor out of evil intent or corrupt motive; yet those deluded partisans knew that appellate courts existed simply for the purpose of correcting errors of law, and the whole theory of appeal is that an error is not a tort or a wrong. The managers without knowing it were going back to Plato’s proposition in his Laws that for an error the judge appealed from should be tried as for a criminal act. Such was before Bracton’s time in an age of barbarism the theory of the common law, but the law had been otherwise for over six hundred years.
One after another Judge Chase’s counsel slaughtered the managers’ proposition and exposed the ignorance of law shown both in the articles and in the speeches. Luther Martin unsparingly exposed and ridiculed the unfounded assertions as to Maryland and Virginia law for which Randolph was responsible. Nicholson, replying for the managers, again shifted his ground; now he argued that any misbehavior in office amounted to a misdemeanor; otherwise the judges holding during good behavior would be irremovable, and even though a judge became incapable he could not be removed unless he could be impeached. This was the same position as the first, for it depends for its validity upon the proposition not expressed that when a judge commits an error of law he is guilty of a misdemeanor, or if he does something that is not even an error but is a lack of taste or judgment, he is likewise guilty of a misdemeanor. This may sound like a plausible argument to a layman, who does not know the legal term “misdemeanor,” or to some lawyer, who believes in the removal of judges by the executive on the address of the legislature, or to those happily few lecturers on civil government and political science who know just enough about constitutional law to be dangerous public nuisances. The answer to Nicholson is that only high crimes or misdemeanors, as the law defined those words, were sufficient for an impeachment, while the removal of a judge for adequate cause of misbehavior could easily be provided for by a constitutional law, since judges by the Constitution hold during good behavior. The Constitution did not make impeachment a remedy for mere misbehavior. The objection of the politicians to passing a law on that subject was that such a law must come sooner or later under the revision of the judiciary for them to say what is good behavior and what is not, and the judges must finally decide what was good or bad behavior in a Federal judge. It was certain that any decision by the Supreme Court on that question would not suit politicians, bent on breaking the Court.
At last came Randolph, in what was supposed to be the effort of his life. He was bewildered and utterly befogged. Knowing nothing of law, he had been intimidated by Luther Martin. He delivered a characteristic harangue, he babbled the drunken nonsense he was accustomed to use in the House, where it passed for eloquence, he became confused, he excused his futility by complaining that he had lost his notes, he broke down and wept, and ending with snuffling sobs left the whole case for the managers in pitiful confusion.
The partisan majority in the Senate rebelled. Chase was triumphantly acquitted. On the one article as to the grand jury address, the poorest of all the charges from the standpoint of constitutional law, the administration mustered its largest vote. Marshall and his fellow judges were left free to lay down the law in a series of great decisions upon which reposed and now reposes the whole fabric of our government. Randolph, cowed and humiliated, came out of the trial cursing what he called the treachery and cowardice of Jefferson in not dragooning his followers into line, and proposing a constitutional amendment that the judges should be removed by the President upon the address of Congress. Such was the effect of this decision that even during the Civil War, when Taney, the Chief Justice, was harassing the government in the courts, no question was made as to the independence of the judiciary. He was merely ignored.
The hero of the Chase impeachment was Luther Martin of Maryland. He was slovenly and unkempt in appearance, generally half drunk and always ready to drink more. Heavy and obese in figure, with a harsh and, when aroused, a screaming voice, he poured forth speeches full of repetitions and redundancies in a great flood of language strung out to interminable length; yet he was a legal genius of vast learning, a most convincing speaker, whose very faults seemed to add to his convincingness. No doubt he was in his day the very head of the American Bar. In the book on the Burr trial can be seen his second complete triumph over Jefferson in the acquittal of Burr.
For thirty years Luther Martin was Attorney General of Maryland. Long after the Chase trial, the story goes, he had so conducted himself while drunk in Judge Chase’s court that a warrant was drawn for his commitment. The paper was handed to Judge Chase to sign but he looked at it a moment and threw down his pen saying, “No doubt I owe a duty to the court, but Samuel Chase cannot sign a commitment of Luther Martin.” At length, in 1822, Martin was stricken with paralysis and left destitute, but such was his standing and so endeared was he to the bar, that a special tax was imposed upon each lawyer in Maryland for his support and was paid without question. Soon he wandered to New York, where Burr was now practising with success, and we can feel some warmth toward Burr by recalling that he received the old and broken prodigal and took care of him for the rest of his days.
In the meantime the scepter of leadership at the American bar had been held for a time by Pinkney,8 but when he died in 1820 that leadership had passed to the far greater legal genius of Daniel Webster. The two most extraordinarily statesmanlike intellects in our history were very great lawyers. In sheer mental ability Hamilton was the greater. In rapidity of apprehension and in genius of almost instantly reaching correct conclusions, he no doubt deserved the judgment of Talleyrand, who pronounced Hamilton the ablest man that he had ever known; and Talleyrand had observed closely all the great men of his time. As a reasoner with the power to impress his reasoning on others, Hamilton has never been surpassed in our history. Compared with Hamilton as a lawyer, Luther Martin, of course, is entitled to no consideration. Webster, without the originality of Hamilton, and without his vast constructive genius, had yet a massiveness of mind and a power of massive expression that gave him for thirty years the unquestioned leadership at the bar. No two men in our history have ever had the following of Hamilton and Webster among what may be called the intellectuals of the nation.
In his life Webster made errors, no doubt, but the part of his life that was given to the law had no stains. It is doubtless true that Webster was dependent upon others for much of his material, as in the Dartmouth College case, but it was Webster who put the material in its convincing form. He was always the great lawyer. Had it not been for him Massachusetts might have gone over to the states with elective judges. He, more than any other lawyer, had a large part in the construction of the edifice of our constitutional law. His oratory was a potent force in producing a national type of thought. His last great speech on the 7th of March, 1850, which was long denounced as a desertion of the cause of the free states, is seen now to have been massively constructed on sure foundations.
It is useless to speculate against the accomplished fact, but if Webster’s advice could have been followed and if there could have been less of the unscrupulous state politics in the South, there need never have been a civil war. Slavery would have peaceably gone the way of all things in which the Time Spirit sets his tooth. The fact that one of the last legislative acts of the Southern Confederacy was the abolishment of slavery is a curious epitaph upon that sacred institution. Webster, at least, did his best to avert the struggle, and the men who denounced him, like Seward, were the very first to be ready to sacrifice the Union and the Constitution when the Civil War began. That war at least demonstrated that the original American theory of a social community, bound together so that it could not be disrupted, was a certain fact. The men who made it the accomplished fact were those who accepted the powerful nationalism of Webster. He has come into his own again, and his errors can well be forgotten. There is a stanza in the lovely lines of Oliver Wendell Holmes on the Birthday of Webster, written in 1859, that exactly expresses the final judgment on Webster:
The history of the Supreme Court would be without a flaw could the years from Chief Justice Marshall’s death to the Civil War be forgotten. However one may seek to apologize and excuse there are some things in the years from 1848 to 1861 that cannot be forgotten. The glorious years are those of Marshall and Story, the one of powerful mind, the other equipped with a marvelous learning. They kept the Court on an even keel. When Marshall passed away Story did not hesitate to express his disgust with the Court as it went from bad to worse. But there is something in the detached, intellectual atmosphere of a court of high jurisdiction that enables a man at many times to rise above what would be considered his predilections. When the Prize cases were before that court during the Civil War, the decision was saved by Greer of Pennsylvania and Wayne of Georgia, that stout old Roman who wrote the caustic dissent in the Gaines case. In the days after the Civil War the decisions of the Supreme Court of the United States did much to take away the bitterness that followed that devastating struggle. All constitutional law is more or less mixed up with politics. As long as the politics are of a high grade the mixture is necessary.
The fortunes of the law regulating the private relations among citizens are of more importance to the story of law than are particular questions of constitutional law. A résumé of the general private law is here, of course, impossible. All our law except unfortunate legislative experiments is a development, by means of the juristic methods of the Roman jurisconsults, from preceding well settled principles in arriving at either differentiations or accordances. There are, however, certain conditions that affect the general form of the law, especially in its administration. The most important condition for private law is the provision that is made for the education of the bar.
In the eastern and older states a law school was originally started in Connecticut soon after the Revolution. After a time the law school of Harvard College was in large part the work of celebrated judges like Story and Parsons. Their labors resulted in a series of textbooks that were of incalculable benefit to law students. Two works especially have had a noted career. One was the book called Greenleaf on Evidence, wonderfully well written and perfectly lucid. The other was the general work on the law by James Kent, formerly Chancellor of New York. He was called upon to supply practically by himself the needs of a law school. Using Blackstone as a basis, he evolved the book in the form of lectures that is called Kent’s Commentaries. It took a much wider range than Blackstone. Kent was a man of remarkable industry and wide learning and he levied upon the civilian writers for different phases of Roman law to illustrate his subject. But up to the time of the Civil War the bulk of legal instruction, at least in the western states, was acquired in law offices or by a reading generally inadequate and often desultory.
There is a close connection between the bar and the courts. Generally speaking, inadequately prepared lawyers exercise a very deleterious influence upon the courts. Where the courts are filled with elective judges the result is that bar and court react upon each other to the excessive detriment of both lawyer and judge. It is an old saying that a multitude of the unskilled ruins a court. It is no less true that inadequately equipped judges debase and degrade the bar. When such judges are found in appellate courts they do not discriminate between matters of real substance and matters of form. Being elective judges, except in happy cases, they are bound more or less in communities of the fiercest democracy to cater to the well developed public sentiment.
Certain results from such a situation can be noted: first, an extraordinary reverence for the jury trial so conducted that the judge will not take any part in the deliberations of the jury; secondly, the practice of asking written requests for instructions to the jury; thirdly, an excessive technicality in appellate courts in passing upon matters of detail; fourthly, a literal use of the rules of evidence so that mere matters of varying ideas of probativeness became important subjects upon appeal. These abuses began in the criminal law and extended to civil cases.
In explanation it may be said generally that the courts were manned with men who in practice had gained the exaggerated notion that, however a jury might be misled, cajoled, or deceived, jury trial was something so sacred that the court not only must tell the jury that they could decide the facts but must not under any circumstances give the jury the slightest intimation of what the judge thought of the testimony or its credibility. Naturally, in rural communities the jury received exaggerated notions of its own importance. The result was that the judge whose duty it was under the English theory to assist the jury was debarred from being of the slightest assistance.
Since the jury was all-important, an elaborate system of impaneling a jury came into existence, with examinations of jurors on every kind of collateral subject that might seem to give some light as to how a juryman might be affected by the evidence or might be inclined to view the case. The result became a gross absurdity where in any important criminal trial long periods of time were taken in impaneling a jury, generally with the result that any man intelligent enough to sit would be excluded. The results of this sort of practice have greatly debased the law.
The rule fixed for criminal cases extended at once to civil causes and many of the same evils resulted in those cases. The excessive zeal for jury trial led courts to lay down rules of absurd strictness as to when there was evidence to go to a jury in a civil case. The result was most unfortunate, for the judge finding his function minimized was glad to shirk his duty and to let every case go to a jury. In some states this mistaken practice has been carried so far that it is provided by law that a judge must instruct the jury before the counsel make their arguments to the jury. In this and in many other respects inferior lawyers in state legislatures have been enabled to do their worst to legal administration.
The second evil arising in jury trials was the encouragement of the practice of asking written instructions on every conceivable phase of the case. These instructions must be marked by the judge either held or refused, for the rule was established that a judge need not instruct on a point unless he was requested to do so, and the counterpart of the rule was that if requested he must do so. The old practice of the judge listening to the evidence, sifting it out, and stating it to the jury with pertinent statements as to the law, was lost sight of in the newer states, and the most minute criticisms were applied to these charges given or refused. This part of the law became highly technical, so much so that large volumes of law books were compiled on the subject of instructions to juries. The result was that mere matters of detail of relative unimportance determined a trial and reversals prodigiously increased. The law became so technical that only the most astute could hope to avoid error in a trial.
To all this was added another development. It became an accepted notion that error could be predicted in a trial upon the admission or exclusion of evidence. The rules of evidence were designed to be cautionary rules for the guidance of the judge upon a trial. But unless the point of evidence went to the merits of the whole case, no one would have conceived that the admission or exclusion of evidence was not a matter wholly for the discretion of the judge presiding at the trial. But, first in criminal cases and later in civil cases, the same excessive technicality resulted. Error was predicated upon rulings upon evidence. The question whether the trial had reached a correct result was wholly lost sight of. A trial became a mere game where the question was whether any wrong ruling had been made in regard to the numberless questions asked on the impaneling of a jury, next whether there was any incorrect ruling on the admission or rejection of evidence, and finally whether there was any incorrect ruling on giving or refusing any of the multiplied requests handed up by opposing counsel.
In this connection the exaggerated importance of a jury trial led to the utmost strictness being applied in curtailing the chancery jurisdiction, until many lawyers came to think that the chancery law was a very small and almost useless part of the law. In some way the idea got abroad that before a jury no great equipment of law was needed for success, if the lawyer was possessed of a sort of high-sounding grandiloquent style of speech, that generally lacked any background of convincing thought, while in a hearing before a chancery court no power of clear expression and exposition was necessary, if the lawyer had some knowledge of the outlandish and generally useless learning called equity. Something should here be said about the fortunes of the two systems in this country.
As we have seen, the double system of courts, common law and chancery, came to this country as a part of the English law. When the Constitution of the United States was phrased no doubt had ever entered the minds of its makers that that double system was perfection and should always be preserved. Consequently the provisions of the Constitution, as construed, required both systems of law and that these two jurisdictions should be separately exercised. But while this was true, the same judge sitting in the United States court exercised both jurisdictions, and now the anomaly was presented that the same judge would say to a suitor: “I cannot, sitting in my law court, do anything else than rule against you, but if you will hand up to me sitting in this same place in this same court on this same day a paper setting forth my weakness and inability, so well known to myself, I will enjoin your opponent from applying to myself as a common law judge, and I will thus prevent myself from doing you a great injustice.” In this situation the Federal jurisdiction has remained, but the fact that the same court exerts both jurisdictions has taken away a large part of the difficulty. If both jurisdictions are lodged in the same judge the question is merely one of amendment.
Most of the state courts began with this double system of courts, and in some states there was a chancellor as an equity judge separate from the judges of the common law courts. In New York there were two well known lawyers who acted as chancellor. One was the noted lawyer Chancellor Kent. The other was Chancellor Walworth. But New York early began experimenting with its courts. It tried for a time an experiment based on the appellate jurisdiction of the House of Lords. The State Senate was made a court of appeals, and it was probably the worst appellate court that has existed in modern times. The judges in New York became elective. The state adopted a revised procedure amalgamating the two systems of common law and equity. The distinction between them can never be completely abolished, since a jury trial can be asked for in a common law case.
By this time many new western states had been admitted to the Union. They all with one exception adopted the double system of common law and equity, but they all had elective judges, and all except one state had the system of the same judge and same court administering both systems. The State of Louisiana kept the civil law which the French had brought with them. It is a tribute to the essential sameness of the substantive rules of law in both systems that men from other states found no difficulty in adapting themselves to the civil law. In an indirect way this law offered to the states following the two systems of law of England, an easy method of getting rid of some of the technicalities of the English law. The proposals of Edward Livingston arose from his knowledge of the civil law.
The trouble was supposed to be in the pleadings and in the contrast between a bill in chancery and a common law declaration. As a matter of fact the trouble was not there at all, but rather in incompetent administration by incompetent lawyers and judges. This is shown by the fact that in the Federal courts there has never been any actual demand for the abolition of the distinction. Those courts act as if they were using merely two forms of action. If a lawyer mistakes his form, he can easily amend.
The change in the states began with the adoption in various places of the code system of pleading. All the forms of action were abolished and a single form of pleading was provided, and the prescription for it was that the plaintiff should make a plain statement in a concise form of the facts constituting the cause of action. This sounded and seemed simple enough, but it turned out that the common law had in the course of time developed a system of pleading facts by pleading what were called ultimate facts as distinguished from facts that would be considered evidence to prove an ultimate fact. The common law pleading was simple and plain, to the effect that if on such a day at such a place A became indebted to B in a certain sum for goods sold and delivered and A had not paid the bill there was a good pleading. These forms the profession knew and was not prepared to give up. These facts pleaded were ultimate facts. The actual facts were that A had run up a bill at B’s store, with nothing said as to price, that B had sent a bill and A had not paid the bill. So it was with most causes of action. In every common law action the one party or the other could claim a jury trial. That distinction was a sacred thing, the palladium of our liberties written in the Constitution of every state. The differences in the forms of an action at law and of a suit in equity could not be abolished. The test then remained to examine the pleadings under the Code, to find out whether the case stated would have been an action at law or a suit in equity, and the answer must be examined to ascertain whether a defense was set up not good at law, but good in equity. If the latter situation existed such a defense could not be submitted to a jury. Even the most hardened jury lover could see this.
But now another source of confusion arose. Many cases belonging to the jurisdiction of the United States court could be brought in the state court in the first instance. A statute provided that under certain circumstances such a case could be removed into the United States court. As soon as the case was removed and the record reached the Federal court the hybrid code pleading paying no regard to the distinction between law and equity must be at once recast, so that the Federal court could, as required by the Federal Constitution, exercise its common law jurisdiction separately from its equity jurisdiction. The state practitioner who had hoped that he could get rid of much necessity for the old learning now found himself afloat on what to him was an uncharted sea. The consequence was that the so-called code lawyer in order to understand his own system was required to have the same knowledge of the common law and equity systems that he would have been required to have were there no system of code pleading, and in addition he was required to be prepared with all the special technical rules that had been introduced by the code and its highly technical and sometimes ill considered language. The lawyer who practised in the Federal courts or in the courts of states like New Jersey or Illinois or Alabama, which had kept the separate systems, looked with pity and contempt upon the code lawyer as a poor creature who was dependent upon a Code of Civil Procedure, which furnished no rule whatever that was capable of intelligent application. To add to the confusion certain states had adopted codes attempting to define the whole field of the private civil law. These codes used the obvious generalizations of the existing law but did not, like the existing law, provide for many exceptional cases. Thus a new element of confusion and uncertainty was added.
But the codes and revised systems of pleading had added a new element of uncertainty in the Federal courts. The double system of pleading being constitutionally preserved in those courts and it being impossible to mingle matter of common law with that of chancery cognizance, an old existing practice in the Federal courts could no longer be followed. The practice in cases at common law in the Federal courts, by a statute of the United States, was made to conform as near as might be to the practice of the courts of the state where the Federal court was sitting. The chancery practice, however, for all the Federal courts is uniform through the country and is fixed by rules of court promulgated by the Federal Supreme Court. State statutes cannot affect this practice in any way. The vast flood of legislation on the practice in the states must be reconciled in some way to the Federal practice by conformity. Where all forms of actions both for law and for equity had been abolished and but one form, whether the case be of chancery or of common law description has been adopted, how was it possible to conform the Federal pleading at law?
In the state itself the abolition of all form had produced the consequence that in a single action matters of common law and equitable cognizance could be mingled in the pleadings both by plaintiff and by way of defense. But the state constitution had preserved a jury trial for law actions and the matters of equitable cognizance must be tried in one way, and other matters of common law cognizance must be tried by a jury, if one was demanded. The change amounted simply to making two kinds of trial in the same case, one without a jury, the other before a jury.
In other of the states without any abolition of the two forms of pleading there has occurred a very great liberalizing of the common law forms, with the distinction between law and equity preserved. Still other states have adhered to the separate jurisdictions of common law and equity, and the equity practice of the state courts differed from the equity practice prescribed in the Federal courts. In Louisiana the civil law has been preserved. Thus there is a very wide variety of practice presented to a lawyer whose activities take him into the courts of more than one state and into the Federal courts.
Fortunately the substantive law that is not the result of statutes is, in almost all the states as to most matters, practically the same. We may take the land law. It is true that there are differences, for instance in the forms and effects of deeds to land, and many common law rules have been discarded; but the practice of registering titles is common and there are no instances of tenure that can properly be so called. Titles in all except the original states with some slight exceptions all come from the government of the United States. In Texas, which is a state that was annexed as a state, the public lands belonged to the state and have been and are being disposed of by the state. In states like California, which was acquired from Mexico, there were old titles originating in Spanish land grants which have produced much litigation. But the general rule is that a land title begins with a land patent from the United States.
There are some kinds of estates in land that are peculiar. The mining laws recognize a title originating by a discovery of mineral and a claim made. This title may be transformed into a title by patent. But if this be not done, the title is recognized as one in fee simple if it is kept good by the doing of a certain amount of work upon the claim each year. This title may be considered as a base fee, a fee that continues as long as the assessment work is done but no longer. It can hardly be called a fee on condition, for no entry is required for condition broken, and on failure to perform work, the land reverts to the public domain.
The estate that is given in mineral land either by a claim properly made and lawfully continued occupancy or by a mineral patent for mineral in place and not in the form of detritus, is a peculiar title in that the title to mineral may and usually does extend below the surface outside of the tract of land as described upon the surface. The original of this law is an old mining custom of England. The shortest way to describe this peculiar estate is to say that the vein is conceived as the filling by mineral of a fissure or separation in the rock. The fissure or separation is conceived as descending with its mineral contents into the earth at an angle from the horizontal. The claim is supposed to be located to cover a distance or length along the edge of the vein exposed at the surface or toward the surface. That length of vein the claimant obtains wherever the vein extends on its descent, whether it extends outside of the space defined by the surface lines or not. The legal rule is that whoever owns a certain length of apex of the vein at the part of the vein nearest the surface owns that particular length of vein wherever it may go upon its descent into the earth. This is a pure case of law made by adoption and acceptance by the mass of the people and afterwards attempted to be put into the form of a statute which has always been inadequate to meet the varying conditions presented in natural formations.
Another development of law arising wholly from adoption and acceptance by the public without a statute is the law of waters which obtains in all the arid portion of this country where irrigation is necessary. By the common law water flowing in a stream was not the subject of exclusive appropriation for a use that consumed the stream. Prescriptive rights, not unreasonable, could be gained by an adverse possession. But in the lands of the older states where irrigation was not used the question of appropriation was not considered. For irrigated lands which will not otherwise produce crops it is necessary to take the water out of the stream in order to use it to any advantage, and the water is thereby consumed. The rule regarding such appropriations is that the one who is first in point of time in appropriation and application to a beneficial use is first in right to the necessary amount of his use. The principle is taken from the Roman law. It came into the western law through the Spaniards, although there are in existence well built ditches of the original Cliff Dwellers which doubtless were used for irrigating purposes, and which had no connection with Spaniards or Mexicans. The doctrine was first applied to the public lands of the United States, and difficult questions arose between appropriators and patentees whose riparian rights antedated the appropriation. Even yet the law is not entirely settled, although all government patents to lands in the arid region have long been made subject to vested or accrued water rights.
The peculiar situation arising from the fact that the states are held to be foreign as to each other, necessitates a vast amount of legal work in regard to corporations. Since most large businesses in the country are carried on under the corporate form, it follows that a great amount of business is done by corporations in states other than the one in which the corporation is formed. Every state has laws requiring a corporation of another state to take out a license in order to carry on business. In many instances, for business or legal reasons, a corporation is incorporated under the laws of a state where it does no business. As long as the business is done from a home office, it may receive protection as interstate commerce, but as against foreign corporations the state governments are constantly striving to derive a revenue from those foreign corporations. As soon as the large interstate corporation finds it necessary to qualify as a foreign corporation to do business in states other than that in which it is incorporated, it becomes instantly an object of attack, if not of pillage, by the state taxing power. In such a business as insurance, which has been held not to be a form of interstate commerce, the exactions of the different states have been enormous, and they have added much to the cost of insurance. Far more than in any other civilized country is it necessary in the United States on account of the multiplicity of laws, for men engaged in business to have the constant advice of lawyers.
But this is not all. It is a common saying that the people in the United States are the most governed people in the world. If it were added that they are in some respects the most and worst governed people in the world the statement would be accurately true. It has been found that in the natural course of events it was necessary to create long ago the Land Department of the United States government, which had under its special control the granting of the public lands. The power of the Federal government to grant patents for inventions and copyrights and trademarks added another large department to the government. These departments performed duties that were more or less judicial in their character, and a large bar was created whose practice was mainly in these departments. Then a department and board for the control of the railroads added the great number of lawyers who devote themselves to practising before the Interstate Commerce Commission, which was specially concerned for years in the task of ruining the railroads. The slow and just processes of the courts were not found satisfactory in regard to matters of trade and commerce and the Federal Trade Commission added its activities. So it has gone on; government board after government board, all with more or less judicial functions, has been created, always adding to the business of lawyers. At last came the income tax amendment, and this vast department rapidly outdistanced all competitors in the magnitude of its work for the legal profession. The living having been taxed to the point of possible depletion, the taxing bodies turned to the property left by the dead. Inheritance taxes, added to other exactions, introduced into business the sudden shifts of property values caused by forced sales to cover the inheritance taxes due upon the estates of the deceased.
The state governments were not to be outdone in this work, and much of the activity of the Federal government was duplicated by every sort of state board, until at present a large business is hardly justified in doing the most ordinary act of corporate business without seeking legal advice in order to ascertain whether there is not some regulatory law that bears upon the matter. If these various governmental boards, both Federal and state, would be satisfied by ordinary voracity, the situation would not be so bad, but through the resources of the government printing office, they are enabled to deluge the land with masses of documents highly laudatory of their activities, and pointing out how further revenue can be obtained. They devote no little time to devising methods by which they can increase their own powers and further circumvent the helpless citizen by amending and reamending the law in the way in which the income tax law and the inheritance tax law are constantly made a still more dangerous morass for the man who carries on business or hopes to die leaving some property to his family. Congress and the state legislatures seem perfectly willing to pass any sort of law that any government board asks for. While every one of substance breathes easier as soon as a legislative body is safely adjourned, there is rarely a session when new burdens have not been imposed upon the responsible public.
This constant flood of legislation is the worst feature of our polity. Laws that regulate minutely the affairs of the citizens are bad enough, but when they are constantly changing, the evil is vastly multiplied. Plato may have had a fantastic idea when he said that children’s games ought to be regulated so that they could not be changed, but his reason was this, that when these children were grown up they would not as citizens be constantly changing the laws. His idea was the direct result of the baleful legislative fecundity of Athens. Zaleucus, the lawgiver of the Epizephyrian Locrians, had the provision that the proposer of a law should appear before the assembly with a rope around his neck, and if the law failed of passage the proposer should be instantly hanged. At Athens if a law turned out badly, any citizen could bring a criminal action against the proposer. But under our representative system of government the responsibility for a law cannot be enforced against any one. If in this country proposers of bad laws were indictable the number of courts would need to be doubled.
But on the other hand it is to be said that we are living in a country and in times of unheard-of industrial expansion. Many things take place in business that are indefensible. It is no doubt a very good thing that men can easily rise to great wealth, but when some one has done so by methods that resemble those of the bludgeon, the war club, the tomahawk, and the scalping knife there is a great outcry and demand for a law. It is the old cry against the barbarian methods of the Middle Ages. But the laws generally are not well conceived, and they accomplish the embarrassment only of those who would never think of using such methods. Administrative boards are multiplied but they seem to do no good. All we can say is that, in general result, the field of action for all kinds of lawyers, good and bad, honest and dishonest, is constantly increased. The profession of law has assumed far more importance in business life than it ever had before.
It must be confessed that many of the evils that exist can be ascribed to this vast mass of men who are supposed in one way or another to be engaged in practising law. Many of them are not qualified either by character or by legal knowledge to be so engaged and there are yet few signs of any improvement. The great mass of responsible legal business, however, is not carried on by such lawyers; yet the profession bears the burden of them, for almost every scheme to circumvent the law originates with some lawyer attempting to further the selfish interests of some clients. Lawyers of sorts fill the legislatures and are influential in passing all descriptions of worthless laws.
If the field of the law is surveyed, it will be seen that the greatest evils in the law result not from the law itself nor from its rules, but from the human elements that enter into the administration of the law. Great judges and a great bar can make even a poor system flexible and adaptable. The very best system with inferior judges and a poor bar is a just cause of complaint. In the field of private law with all the drawbacks to our system the general results of litigation in reaching justice are not a cause for complaint because, generally speaking, the courts of appeal are well constituted.
In the field of criminal law it will readily be admitted that in many parts of the Union the actual enforcement of criminal laws is in a disgraceful condition. This situation is not at all necessary, for the Federal courts generally present the pleasing spectacle of a rigid but just enforcement of criminal statutes. The failure of many state courts is due first of all to the character of the criminal bar. It is not necessary to dilate upon the unpleasing subject, but all know the situation. The judges who sit in the courts are not always competent to meet the situation; but probably the worst evil from the standpoint of the judges is that if a judge tries to improve the administration, he is rebuked by the excessive technicality of the courts of final resort, in insisting upon matters which have little to do with guilt or innocence. Another crying evil is a lack either of intelligence or of character in jurymen. A judge is helpless either to assist the jury in their deliberation or to correct their conduct when it is outrageous.
If one goes into a criminal court of England he is astonished at the contrast. The barristers defend their cases on plain principles of justice. The case is tried with brevity. There is no foolish and prolonged examination of jurymen. The prosecuting counsel are careful in all their conduct and the trial is one of calmness and justice. The defendant’s counsel do not descend to unworthy conduct. The men who act in the jury box are men of character in the community. The testimony of the witnesses is put in without any long discussions over its admissibility. Every one seems to be trying to get at the very truth of the case. When the judge instructs the jury he indicates to them with clearness the bearings of the testimony. He states the law to them in connection with the facts and does not read a great mass of written instructions which the ordinary juryman cannot understand. The jury with some promptness agrees upon a verdict and the sentence is given.
In the field of private law it may rightfully be claimed that practically all the difficulties come from the conduct of the bar, and from the inferior character of the jurymen. The contrast between a civil trial in the English courts and in the courts of America is startling, and yet before fairly competent judges, with skilled and experienced lawyers on both sides, a civil trial in America is much like one in England. But this is too often not the case. In some courts in this country a skilled lawyer is often at a positive disadvantage, on account of the inability of the judge to approach the case from a legal standpoint.
The difference between the efficiency of English courts and the inefficiency of many American courts is at bottom certainly due to the respective bars. In England barristers have the sole right of audience, except in the lower and local courts. No attorney or solicitor can try a case in the higher courts of general jurisdiction. It is recognized that men of skill and experience are required as lawyers to conduct cases in court. Other men should not be permitted to waste the time of the public tribunal. The barristers in England must come from the Inns. The Inns have the sole privilege of calling to the bar. Those men who appear in court are selected by the attorneys or solicitors, and the client takes their judgment. The attorneys or solicitors select the barrister solely with reference to their knowledge of his attainments.
But the query will at once come, how is a younger and inexperienced man ever to attain any position at the bar under this system? The answer lies in another unwritten rule of professional usage. The bar is divided between seniors, or leaders, and juniors. A leader cannot take part in a case without the presence of a junior. A junior, of course, can take part without a leader, but until a junior has demonstrated to the attorneys and solicitors his capacity, he is never in court except as he is guided by the experience and skill of his leaders. These matters are self-regulating, and the rules of precedence and conduct are carefully observed. When Lord Westbury was Sir Richard Bethell and a leader at the chancery bar, he and his junior were about to enter the chancery court of appeal. The junior, intensely preoccupied, filled with the case in which he was to speak as junior, grasped the door to pass in ahead of his leader. Sir Richard touched him on the arm, saying in his peculiarly bland but incisive tones: “Softly, softly, my young friend. If we cannot teach these old gentlemen any law, we can at least give them a lesson in manners. I shall precede you.”
The English system attains results, and it attains them by recognizing that the conduct of cases in court is the most important part of legal practice and must be in the hands of experts who are not in contact with clients, except through the other branches of the profession. One result of this situation is a hidden one, but it is its best feature. Barristers who alone carry on the litigation and the important consultation work in the practice are, as stated above, never tied to particular clients. They never are employees. They are in a position of absolute independence. Their advice is always impersonal and disinterested. No one can say to a barrister, “You shall do this or that,” or “I wish this or that.” No attorney ever is afraid that if he advises or retains a barrister he is jeopardizing his relation with his client.
This is the rule among avocats in France. An avocat can accept no employment. He cannot have any business. He cannot be interested in any business. He cannot be a lawyer regularly employed by a particular client. A worthy avocat who sold the fruits and produce from his farm in France found that he must reform or leave the bar. No leading barrister in England is ever suspected of representing in his public utterances any client or clients.
In this country the profession has no division. All lawyers are equally competent to conduct litigation or to advise. Most of them are afraid, except in rare instances, that the more competent lawyer employed will appropriate the client. Since it is the few who are really competent to be charged with the conduct of litigation, it necessarily follows that much of the litigation is poorly conducted. The conduct of litigation in court has come to be looked upon as much inferior to other activities. Almost any one may be considered competent to try a cause in court. It is only in the most important cases that any genuine selection is made with reference to the personality of the lawyer who is to conduct the litigation. The result has been a steady deterioration in the conduct of litigation. Such lawyers react upon the courts. A false impression is disseminated as to the requirements of a judge. Almost any lawyer deems himself fully competent to sit on the bench. The action of the bar on the courts, assisted by elections of judges, has caused a steady deterioration in judges. In the courts of a large city like Chicago can be seen the most extraordinary specimens of judicial officers. Some of them almost violate the rule that the proceedings must be in the English tongue. Elections of judges are constantly being mixed up with the fortunes of the barons of municipal politics. The societies of lawyers called Bar Associations reflect, too often, inferior legal thought. The profession has brought most of this lack of standing upon itself. Leading lawyers have allowed themselves in public places to become representatives of clients. They forgot that in public place they must be the representatives of the public. The consequence has been that a leading lawyer in large practice in public place is looked upon with suspicion, and he seems to be no longer considered available for those public positions which he, if disinterested, could so well fill.
Another result of this general situation in the practice has been the so-called standardization of legal business. The multiplications of a lawyer’s duties has led to the creation of very large law offices where legal work is ground out as if it were the standardized production of a factory. Departments and heads of departments consult as to how the business is to be carried on. All the personal relation of a particular lawyer to a particular case ceases. Matters are doled out to employees or clerks without close supervision. The small staff of a great English barrister is impossible in this country even in a modest law office. All the multiplied activities of the extensive contacts centering in a large practice require the use of endless employees. Matters requiring the greatest research must go to these employees. Their work cannot be supervised and directed by long experience and great attainments. The consequence of all these various influences is the legal profession as we see it, no longer a learned profession but simply a business organization conducted by push buttons and call bells.
A so-called reformer would say at once, let us pass a law establishing the English system. But the reformer would have much to learn. The English system is as impossible in this country as would be mastodons roaming the streets. The reasons ought to be apparent to any lawyer or to any intelligent citizen. Let a law be proposed to give a special class of lawyers sole audience in the courts, and one long wail couched in almost all the languages of modern Europe would overwhelm the reformer. The numberless men whose living depends upon the continuance of the present system would furnish an opposition whose weight would be irresistible. It is useless to speculate on changing the present system except, first, by convincing the public that the present system is extraordinarily wasteful, and secondly, by gradually changing the present situation through the long extended process of slowly changing the character of admissions to the bar. The high qualification of a liberal education should be made a positive requirement. Admission committees should be abolished. Only a properly certified school of law with an extended and approved curriculum should be allowed to call to the bar. In the course of time the profession would reform itself. This result is sure to come. The improvement will be slow but it will come in the end and there is no need to take gloomy views of the future of the law or of the profession.
To gain a proper perspective of judgment we must go back hundreds of years. If Aristotle had been told that in the course of time an empire larger than any that he knew, far wider in its sway than the domain of his quondam pupil Alexander, would exist, where there would be no slaves, where every man would be paid for his work, where every citizen from the lowest to the highest would have the right to vote upon all governmental matters, where the head of the government and most of the officers were elected at stated intervals, where millions of people were packed into a single large city, he would have at once pronounced it to be impossible. If a Roman of the days of Augustus, mourning over the loss of the Republic, had been told of such an Empire he would have answered that the body of the people is always unsound and that such an Empire would not last for a year.
If either Aristotle or the Roman had been assured that in that empire there would be such a constitutional polity that any citizen high or low was guaranteed by a written document of government against any infringement of all his ordinary rights, so that the whole body of citizens or the legislative assembly could not take those rights away, the statement would not have been believed. If it had been asserted to either of those men that the courts without command of an army could say to the lawmaking body, “Your law infringes upon the document of government and it cannot be enforced,” and that it would not be enforced; could say to the executive head of the government or to any of his officers, “Your acts, with all the power of government behind you, are not in accordance with the laws, and especially with the supreme law of the land, and we forbid you from further acts of the kind and command you to make redress,” the Roman would have said that Cicero in one of his noblest writings had prophesied that such a day would come but that no one believed him. Aristotle would have replied, “That is what I dimly dreamed, but I knew that it was only a dream, for such a nation has a government of laws and not of men.” Even Algernon Sydney and Sir Harry Vane, could they have anticipated that their cruel fate should have had its part in bringing about such a reign of law, would have gladly said: “Lord, now lettest Thou Thy servant depart in peace, for mine eyes have seen Thy salvation.”
No man knows how manifold are the blessings which he lives with as his common surroundings in a land where every man can, if he has character, work out his own life, express whatever opinion he thinks to be right, and depart with a fair and assured hope. Grant the many evils, corruption in municipal affairs far worse than most men realize, a system of government that is wasteful and extravagant, that offers rewards to many who are incompetent, grant a body of laws and courts that do not always in the first instance attain justice, yet it is true that we have attained that highest and most practical form of justice among men, the equality of all men before the law.
There is a type of political thought in this country that is always insisting that we should be much better governed if our government could approach the English type of legislative omnipotence with a cabinet chosen from the legislative body to be the ruling executive body. This form of government keeps France in a turmoil, while Italy has recovered from it. The fact is that no country but England can make the system work. It is insisted that such a government is more instantly responsive to public opinion. The latter statement is true, and that fact is the greatest objection to it. It is owing to this form of government that so large a part of the English population has always been on the public pay roll, formerly under the Poor Laws and now under some other sort of dole.
Compared with England and her rapid changes, the form of government in this country has been a towering cliff of conservatism. Public opinion has its effect, but time and again a resolute executive by his veto has withstood the demand of preponderating opinion. Years ago we were saved by Grant’s veto from the wild fiat paper money heresy. In later times Cleveland withstood the free silver fanatics. Other instances, some of them very late, will readily occur. The fact is that in this country we are preserved in the first place by our great size and diverse interests. It is impossible to get all the foolish people to thinking alike on any particular question. It used to be thought that a Republic could exist only in a small state; now it is seen that it is suited only to a very large one. If, however, the Congressional body does pass some indefensible and dangerous law, it is found that the President has generally a better developed sense of civic responsibility. He can veto and he is impregnable until the end of his term. If he, too, fails the country, the law has yet to pass the scrutiny of the judicial department, and that body has, of all branches of government, as a general rule, the highest sense of civic virtue. The greatest virtue of our form of government is that public opinion must long be tested and winnowed before it can prevail.
The vagaries of public opinion in this country have a double outlet. The various states have their legislatures. There every spurt of the wild effervescence of political thought can be tried out. The states which are most subject to such attacks of popular opinion become hideous and horrible examples. If it were not for the states and their great field of legislative power, which short-sighted people think should be given to the Federal government, our political history would have been and would still be becoming another record of failure in popular government. By the existence of the states as they are, in spite of a very heterogeneous and in many respects mercurial population, this country with universal suffrage remains, without question, from a legal standpoint the most conservative civilized country in the world. Centuries of long and patient effort are needed to construct the fabric of a great body of civilized law, and only a few years of unrestrained public perversity may lay it in the dust. Wild men may lead one state of this Union from folly to folly, the unrestrained nonsense of ignorant men may wreck another state, and even a combination and confederacy may attempt the destruction of the Union, but the great national life flows on, safely contained within the same banks that it received in the Constitutional Convention. Every true lover of his country should hope that a truly conservative nation this country will always remain.
That it has hitherto remained so is the result of the law of the Constitution, preserved by our Supreme Court. There is no more august spectacle in the world than the Supreme Court of the United States when it sits to consider a great constitutional question, involving the interests of many citizens. The very entry of the Court is a model of impressive dignity. The very atmosphere is one of calm and restraint. The cause has been prepared for hearing carefully, minutely and thoroughly, with vast research and full attention to detail. The statute in question or the policy in question has been considered in all the light that can be obtained from analogous situations. The social aspect of the question, the social considerations and experience that bear upon the question, are cited with the fullest detail. The reasons for the enactment, the general public policy involved, the demands of abstract justice, the interference with settled rules, all the reasons for a strict or a liberal construction, all the different legal rules for interpretation, are urged, debated, weighed, and tested, and finally the experienced and trained minds of the judges in their private consultations are brought to bear. If new grounds develop, a new argument can be had. When an opinion is reached at last, it is certain that everything of which the human mind is capable has been used.
This situation is the result of our constitutional system. Anything like it had never existed before in the history of the law, and this is what renders the Constitution of the United States an epochal document in the story of law. It represents the contributions of many able minds. Everything in it is an echo of the historical experience of the race and especially of the English race. It is in its fine balance between generality and particularity a model of sound and enlightened judgment. Without reserve can be commended its dignified and stately form of expression. It represents the English race at its best, with calmness and self-restraint composing divergent ideas and wisely compromising hostile tendencies. It represents a totally new departure in the law, the establishment of a great empire under the forms of a republic. The fine and just balance between the functions of the federated government and the functions of the states is the result of what we may call a stupendous wisdom. Every departure from that true balance between general and local governments, every attempt to modify the just relations of the super-government to the states, has been filled with disaster. The tendency among short-sighted men who think that by laws the conduct of human beings can be forced to an artificial model will always be a source of danger in democratic government. The lawgiver, of all men, should have a sense of historic values.
When one of those who make our laws looks over the world and sees that the future belongs to the great federated commonwealths, when he observes Australia and its federated states, when he considers the constitutional form of government of the Commonwealth of Australia and its Supreme Court, when he ponders the provinces of Canada united under an organic form of government that preserves the balance between general and more local fields of legislation, when he has grasped the extraordinary achievement of the formation of the South African Union with its heterogeneous population, when he realizes that these great social aggregates destined in the future to mold the happiness of uncounted millions of men would have been impossible without the lessons derived from the heritage of American constitutional history, the lawgiver ought to stand in humility and reverence before the noble structure of our constitutional law. Above all, when he follows the historical opinions of the final judicial tribunal established by the Constitution and realizes that in its power, its wisdom, and its calm restraint it has perpetuated the work of the founders of the Republic and has stood between the rights of the citizen and the arbitrary tendencies of legislative or executive power on many a legal battlefield, he may well ask himself, “Who am I, a puny apparition of a day, that I should count my rashness and inexperience higher than the accumulated wisdom of a court, the most august in the world, which will be building still higher the great structure of justice and equality before the law long ages after I am forgotten?” If rash and violent men insist, as they have insisted and will insist in the future, upon the disturbance of the judicial power which has only the interest of preserving a just balance between the public interest and rights of the citizen high or low, weak or powerful, we know that they can never prevail. From Jefferson to Roosevelt popular idols have assaulted that citadel of our government, but they have never made the slightest impression upon its bulwarks. The Court has never fought back, it can make no appeal to popular opinion, it can only rely upon the sober good sense of the average citizen. Yet there is a power in the state which always has supported the duty of the judiciary to declare the law, and that is the power of the professional opinion of the bar. Renegades of no standing have failed to do this, but the great moral force of the bar has never been wanting, for every worthy lawyer knows that this judicial power is the basis of our whole constitutional polity.
[1. ]Jean Bodin (1530–96). —C. J. R., Jr.
[2. ]Luis de Molina (1535–1600), Juan de Mariana (1536–1624), and Robert Bellarmine (1542–1621). —C. J. R., Jr.
[3. ]Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). —C. J. R., Jr.
[4. ]The Chief Justice is John Jay. The case is Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). —C. J. R., Jr.
[5. ]John C. Calhoun (1782–1850), the foremost proponent of states’ rights. —C. J. R., Jr.
[6. ]The reader may also wish to consult Raoul Berger, Impeachment: The Constitutional Problems (Cambridge: Harvard University Press, 1973). —C. J. R., Jr.
[7. ]The impeachment of Samuel Chase has been made the subject of an important study by the sitting Chief Justice. See William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Morrow, 1992). —C. J. R., Jr.
[8. ]William Pinkney (1764–1822). —C. J. R., Jr.