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J - John Joseph Lalor, Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, vol. 2 East India Co. - Nullification 
Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the best American and European Authors, ed. John J. Lalor (New York: Maynard, Merrill, & Co., 1899). Vol 2 East India Co. - Nullification
Part of: Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, 3 vols.
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JACKSON, Andrew, president of the United States 1829-37, was born in Waxhaw settlement, N. C., March 15, 1767, and died at "The Hermitage," near Nashville, Tenn., Jan. 8, 1845. He was admitted to the bar in 1786, settled in Nashville, and there became prominent as a prosecuting officer and in the state militia. He was a democratic representative 1796-7, and United States senator 1797-8. He distinguished himself in service against the southern Indians in the war of 1812, was made major general in the regular army, and inflicted a total defeat upon the British army near New Orleans, Jan. 8, 1815. After a few years of further service (see ANNEXATIONS, II.), he again became United States senator from Tennessee (1823-5). In 1824-5 he was defeated as a candidate for the presidency (see DISPUTED ELECTIONS, II), but the defeat resulted in a complete upheaval of political conditions in which almost all the political leaders hitherto prominent disappeared. Jackson and Clay withstood it. Calhoun's state did not feel it, and Adams reappeared in another field (see those names); with these exceptions there is an almost entire change of persons in politics after 1828. Jackson was elected president in 1828 and again in 1832, and after the close of his second term retired to private life.
—Jackson's early opportunities for education were very limited, and the unceasing action of his maturer years left him little time to remedy this defect. He is said, on very good authority, to have believed that the earth was flat; his familiar letters are disfigured by grammatical and other mistakes; and his public papers were always carefully revised, and often entirely written, by trusted subordinates. When forced to rely altogether upon his own pen he was apt to slip, as in his once famous general order of 1814, in which he told his army that the infliction of partial evils for an ultimate good was a dispensation of Providence, "and perhaps a wise one." It is an open secret that his nullification proclamation was the work of Edward Livingston, and his bank veto that of Amos Kendall (see NULLIFICATION: BANK CONTROVERSIES, III.); nevertheless, in all cases, it is equally certain that Jackson allowed his subordinates only the privilege of expressing his ideas and policy, and that he expected from them a certain mechanical skill of expression, not the inception of a policy. Any influence upon him by subordinates was only obtained by indirection or by force of sympathy.
—In temper Jackson was arbitrary, forceful, persistent, not at all impulsive but willing to yield to his naturally hot temper, on occasion; in brief, he was force personified, not aggressive force merely, but the force of self-control as well. According to the necessity of the case, he could either maintain equanimity against every exasperation, or pass into a fit of passion more demoniacal than human. In politics he was the legitimate successor of Jefferson as the assertor of individual rights against the tendency to class formation, but with this difference, that in Jefferson's time individualism claimed only recognition, while in Jackson's it had advanced to more active life. Under Madison, Monroe and Adams features had become powerful in the government which can only seem evil from the individual point of view: the incorporation of a bank to do government work, the protection of various classes of manufactures by tariff taxation, and the expenditure of public money upon roads and canals. Against all these Jackson fought as actively as Jefferson did passively. On the other hand, Jackson's individualism did not prevent him, as it did Jefferson, from being a thoroughly national man, for in Jackson's time individualism had taken a place as a co-ordinate factor in the national development. It is easy to mark the points in Jefferson's teachings from whose unhealthy development arose the Calhoun idea of nullification, but it would be impossible to imagine such a process in Jackson's case. Jefferson and Jackson had the same ultimate but a different immediate object: the former to protect the individual through the states; the latter to protect the individual through the nation. Jefferson would have opposed nullification in 1831-2, but not with the heat and sense of personal antipathy which Jackson exhibited.
—The events of Jackson's administrations are elsewhere given. (See ANTI-MASONRY; CHEROKEE CASE; BANK CONTROVERSIES, III.; DEPOSITS, REMOVAL OF; CENSURES, I.; INTERNAL IMPROVEMENTS; VETO; NULLIFICATION; DEMOCRATIC PARTY, IV.; SLAVERY.) The name given to his term of office by von Holst—"the reign of Andrew Jackson"—is in a sense correct. It was a mild species of that Cæsarism to which all republics seem to turn naturally, in emergencies of war or peace. In any just estimate of the political career of the United States, it is worthy of notice, on the one hand, that the nearest approaches to Cæsarism have been the perfectly constitutional administrations of Jackson and Lincoln; and, on the other, that the nearest approaches to aristocracy have been found in grants of special privileges, for general benefit, to certain corporations or manufactures. Such a record is at least fair for a republic.
—Jackson's administrations, however, are notable for the complete failure of one point of the American democratic idea. "Rotation in office," the notion that all public servants must be elected for short terms and easily removable by the people, was first announced in theory by Jefferson, and first attempted in practice by Jackson. The result is elsewhere treated. (See CIVIL SERVICE REFORM.)
—The best life of Jackson is Parton's. A corrective to it, in many respects, may be found in 2 von Holst's United States, though this author allows to Jackson's opponents the right to follow the line of expediency in politics which he generally refuses to Jackson himself. For this, however, the cardinal dogma of Jackson's party is principally responsible. (See DEMOCRATIC PARTY, VI.) A slightly different view from Parton's will be found in 1 Benton's Thirty Years' View. See also authorities under DEMOCRATIC PARTY and WHIG PARTY; authorities under articles above referred to, and TENNESSEE; Eaton's Life of Jackson (1818); Goodwin's Life of Jackson (1832); Jenkins' Life of Jackson (1847); Harper's Magazine, January, 1855; Baldwin's Party Leaders; Sargent's Public Men and Events; Mayo's Political Sketches; J. A. Hamilton's Reminiscences; Memoirs of Jas. G. Bennett; Prof. W. G. Sumner's Life of Jackson. (1882); and a list of 210 works having reference to Jackson, following the preface in 1 Parton's Life of Jackson.
JAPAN. The empire of Japan comprises a chain of volcanic islands stretching between Kamschatka and Formosa, off the east coast of Asia. The first settlers known to history coming from the Asian main-land, with their faces set to the eastward, gave the new country the name Nihon (sun-root, or sun-rise), which by the operation of Grimm's law becomes Nippon. Dai (great) is often added, making the name Dai Nihon, or Dai Nippon. Other native terms in common use are Yamato, after the central and ancient province which was the seat of the early mikados; O Yashima (the eight great islands), Toyo-akitsu (dragon-fly shape), and a wonderful variety of poetical and religious appellations, often with kuiei (country) added. Tei-koku (country ruled by the Heavenly dynasty), and Kokoku (the mikado's empire), with or without Nihon added, are official titles. The Coreans use the term Il-pon, and the Chinese Jih-pun, or Ju-pun, with kwo (country) added; which when Marco Polo in the thirteenth century heard, he wrote Zi pan-gu, which in Europe became "Japan." It is doubtful whether this country was heard of in Europe until Polo's time, though undoubtedly known to the Arabs, Persians and Hindoos, as Japanese records attest. Japan has now for her neighbors, Russia, Corea and China; while the possessions of the United States, Great Britain and France are within the limits of neighborhood. The great length of the empire, as contrasted with its narrowness, is remarkable. It lies between the 55th and 24th degrees of north latitude, and the 124th and 130th degrees of longitude east from Greenwich; yet the greatest breadth of its main island is but 350 miles. Japan comprises Chishima (thousand islands) or the Kurile chain, Yezo, Hondo (main island), Shikoku (four provinces), Kiushiu (nine provinces), Riu Kiu (fringe of tassels) or the Loo Choo group, with Sado, Oki, Iki, Tsushima, and the Goto and Bonin clusters, with the smaller islets, numbering in all not far from 3,000. The area of the empire approximates 150,000 square miles—the size of Dakota, or one-fourth more than that of the United Kingdom of Great Britain and Ireland, or one-thirty-third that of the Chinese empire. The do or geographical subdivisions are based upon lines furnished by the mountain ranges of the main island, and the sea barriers. These do or circuits, called "Eastern Sea," "Eastern Mountain," "Northern Land," "Mountain Back," "Mountain Front," "Southern Sea," "Western Sea," and "Northern Sea," with the "Five Home" provinces, and the "Two Islands," are similar, in effect, to our grouping of states, "Eastern," "Middle," "Southern," etc. They contain 71 provinces, which are again divided into over 700 kori. In actual administration, the province boundaries are ignored, and ken, or prefecture, is made the political unit. The ken now number thirty-six, and there are also three fu or imperial cities, Tökiö, Ozaka and Kiöto.
—The population of the empire, by the carefully executed census of 1880, is 34,338,404; 17,419,785 males and 16,918,619 females. The Chinese and white foreigners living in the open ports number about 4,000. The natives are of homogeneous stock, with the exception of the slightly varied Riu Kiuans, and the 12,000 Ainos of Yezo, who are distinct in physical features and language. Though there are marked peculiarities of speech in the various provinces, especially in Satsuma, yet the ordinary people from remote localities can, with little or no difficulty, understand each other; in this respect differing greatly from the Chinese. The speech of the educated class varies from the vulgar usage mainly in the employment of more honorifies and terms of Chinese origin or pronunciation. The colloquial language of the people is a mirror of their inborn courtesy. The book language varies from the spoken tongue, yet not so much as in China. The present agents of social progress, common schools and newspapers, are rapidly causing these differences to disappear, and preparing the way for a new era in the cultivation of the national language, so long neglected for the Chinese.
—The surface of the country is almost entirely mountains and valleys, with few large plains or great rivers, but with many fertile inland valleys. The climate may be said, in general, to equal any in the temperate zone. Lofty mountains and volcanoes abound, and the phenomena of earthquakes have, doubtless, their influence on the Japanese mind and temperament. The soil is not the most productive, but persistent human labor and the application of fertilizers, compel a fair yield of food crops. The national diet is 90 per cent. vegetable, with fish and game, but with little flesh of domestic animals. A marvelous variety of vegetable products is utilized as food, but the number of cattle as compared with the population is but 2 to 100; whereas in the United States it is 73 to 100. In minerals, scientific surveys show that the country is not rich, though fairly furnished with the precious metals; while coal and iron are abundant, especially in Yezo, the estimated amount of workable fuel being equal to a thousand times the present annual output of England. The fauna is comparatively meagre. Most of the Japanese people are devoted to agriculture, and a rough estimate, based upon the census, shows, farmers, 15,000,000; artisans, 700,000; merchants, 1,300,000; miscellaneous, 2,130,000. In the last class are many seamen and fishermen, the vast number of indentations in the coast line affording employment to these classes, and greatly influencing the national development. The Japanese reckon over fifty harbors, many of which are suitable for the entry of vessels of heavy tonnage.
—The physical situation and configuration of the Japanese archipelago, with the forces of nature and religion acting upon this insular people, have produced a civilization and mental traits strikingly different from those of the Chinese. In spite of the fact of Japan's great indebtedness to China for many elements of culture, the islanders are at many points the antipodes of their older and more conservative neighbors on the main-land. Japan makes the claim, unique among nations, of having been constantly governed from the beginning of history by one changeless dynasty of sovereigns. Though her history is young, compared with that of China, beginning, as the natives believe, from 660 B. C., yet, unlike her larger rival, her throne has been filled by but one family—the nameless line of the mikados. Intense loyalty to the throne characterizes the Japanese people, and unique in history is the fact that no Japanese subject has ever attempted to seize the throne itself, or to found a new imperial dynasty. Yet the measure of power possessed by the sovereign and the form of actual administration have several times suffered radical change. The history of the measure of the mikado's authority is the political history of Japan. Rai Sanyo, the greatest of native historiographers, treats the actual history since the middle ages under the title guai, (outside, foreign, military), while the nai belongs to things of the gods and emperors. Japan having no invaders, and scarcely any foreign influences acting as factors of political history, the reacting forces were the throne and the camp, the mikado and shogun. The internal history is that of the imperial palace; the external, that outside it. From the seventh to this nineteenth century, simple feudalism, centralized monarchy, the rise and struggles for power of rival noble families sprung from sires of imperial blood, civil war, dual system of government with two "capitals," complex feudalism, and finally the return to centralization with a drift toward modern constitutional and limited monarchy, are among the phases of Japan's political development.
—The origin of the Japanese people is enveloped in thick clouds of untrustworthy legend, which critical processes of study are only beginning to clear away. The people, as we now find them, are evidently the resultant of several ethnic stocks, among which are the Ainos of the north, and the Malay or Nigrito elements from the south, though the latest and dominant invaders—the Asiatic Normans of this Britain of the east—were most probably of the same race from the Amoor valley which is represented in the Coreans of to-day. These people, crossing over from the peninsula, and landing on the southern and western coasts, entered at various points from Kiushiu to Echizen. They were already organized under forms of feudalism, and when, through the first trustworthy light of tradition, we are able to distinguish historic figures, we find a powerful tribe dominating the central portion of the main island from Idzumo to Yamato. By their prowess, arms, intelligence and discipline they rapidly subdue the surrounding tribes in every direction. The mikado is their chief. and his captains or lords hold their lands of him, by feudal tenure. These people worship the sun and forces of nature, and the mikado and great men claim kindred with the heavenly gods, and after death are deified and worshiped. The cardinal doctrines of their cult are purity, and reverence for the spirits of the departed. This simple faith, Kami-no-michi, (the way of the gods), afterward called, in imported Chinese equivalent, Shinto, becomes a tremendous engine to complete the work of conquest, and to identify government and religion with the family whose chief is the mikado. As the area of conquest is increased, the mikado is obeyed, though with frequent revolts which compel constant war, and with frequent raids into and from Corea, over all the islands south of the thirty-seventh parallel of latitude. This is the picture of primitive Japan, before the advent of Chinese arts and letters, or of Buddhism: an agricultural people, inhabiting villages, but often called upon to invade or repel the attacks of their "savage" neighbors. so called. Their political life is simple feudalism. and their religion a rudimentary cult. They are without letters, or means of recording time beyond the methods employed by the North American Indians. The level of their civilization was probably about that of the Iroquois of New York. yet with a tendency toward higher development. Into this simple national life a marvelous infusion of new germs and perfected forms of culture was poured, when, during the fourth and fifth centuries of our era, there were introduced, through Corea, the letters, writing, almanacs, arts and sciences of China, together with Corean teachers, artisans, and an increasing train of civilizing influences. This was the first of the three great waves of civilization from the west to Japan. The second was from Europe in the sixteenth century, and the third from the United States and the world in the nineteenth century. In 552 A. D. there were introduced from Shinra, in Corea. to the imperial residence at Nara, then the capital, the images, sutras, literature and teachers of a new religion that was destined to completely overshadow the indigenous cult. This religion was Buddhism. Though bitterly opposed at first from patriotic and conservative motives, the faith of India spread steadily until it embraced the archipelago. From this time forth, the court at Nara became the centre of art, science and letters, as well as of religion and government. In 645 A. D. history began to be founded on chronology, and a system of registering dates was begun. In 712 A. D. literary culture had so far advanced that books were composed, political and statistical documents compiled, and the floating legends crystallized in the Kojiki (Book of Traditions), and the Nihongi (Chronicles of Japan)—the Eddas, or Bibles of the Japanese. In these books the scheme of creation is fully stated, in the following order: Chaos, separation of heaven and earth, evolution of a germ or sprout from which other beings evolved or sprouted, tending toward perfection of form, until finally sex or differentiation was apparent. Then the creator and creatrix, Izanagi and Izanami, stood on the High Plain of Heaven, and Izanagi plunged his glittering spear into the turbid waters of chaos beneath. The drops trickling from the weapon, solidified and became Onokoro-Jima (island of the congealed drop) or Awaji. Other islands were formed by their creative power, and Great Japan was gradually finished. The sun and moon were evolved from the earth. Of their offspring, Ama-Térasu (heaven-illuminating), their daughter, was given the sun for her kingdom, and Susanoö, her brother, the moon for his realm, while many lesser kami, or gods, were created to inhabit the earth. These in time becoming unruly, Ama-Térasu, the "sun-goddess," sent her grandson Ninigi to earth to rule. Descending from Heaven, with a great retinue, and bearing the three divine regalia—mirror, seal (or crystal ball) and sword—Ninigi reached the mountain of Kirishima in Kiushiu. His great-grandson, whose mother was a sea-monster, was Jimmu Tenno, who set out on the conquest of the islands Advancing through Kiushiu, he reached the neighborhood of Kioto, and "ascended the throne" 660 B. C. The first seventeen mikados, in the line founded by the alleged person, to whom many centuries afterward the name and title Jimmu Tenno were given, are credited with an average life of 108 years, and an average reign of 62 years. In Japanese mythology, "the earth" means Japan, the mikado (sacred gate, or sublime porte) is the Tenno (son of Heaven) and the representative and incarnation of the Heavenly Gods, and the Japanese equivalent of 1882 A. D. is the "2542d year of the Japanese empire"; April 3d being duly observed by all the people as the date of Jimmu's "coronation." There have been, including Jingu Kogo;, 123 mikados (seven of whom were females, and two of whom reigned twice, under different names), the average length of the reigns being twenty-one years; or, excepting the first seventeen on the list, and not counting the present ruler, the average is thirteen years. The great influence of Chinese culture on Japanese politics was soon shown in the creation of a library of books on government, the codification of the laws, and a profound change in the form of government The centralizing system of the Tang dynasty of China, with boards or ministries, was in 603 A. D. substituted for simple feudalism previously in force. Under the Jin Gi Kuan (Council of the Gods of Heaven and Earth) were the eight boards (sho) or ministries of the interior, ceremonies, civil affairs, revenue and census, war, justice, treasury and imperial household. In 786 A. D. the Dai Jo Kuan (Council of the Great Government) was formed. superseding the Jin Gi Kuan in the control of the eight boards. In it were the four great ministers of state, Dai Jo Dai Jin (Great Minister of the Great Government). Sa Dai Jin, U Dai Jin, Nai Dai Jin (Minister of the Left, Right, Interior) Under them were the eight boards. The country was divided into districts (gun) over which governors, appointed by the Dai Jo Kuan for four years, and sent out from the capital. ruled. These gun were subdivided into ken or prefectures. This was the gun-Ken system, which lasted from the seventh to the twelfth century, and a virtual return to which, since 1868, has constituted "the recent revolutions in Japan."
—This centralizing system was not relished by the tribes distant from the capital. Under feudalism, comparative freedom was the rule, but now close obedience to the governors from the Dai Jo Kuan, and prompt payment of taxes, were enforced. The natural consequence was, that revolts became so frequent as to require something like a permanent militia to suppress them. The farmers were so often enrolled, that numbers of them, usually the more robust, abandoned their usual labor of tilling the soil, and became professional soldiers. The generals (shogun) who led the expeditions to chastise the rebels were chosen from those noble families of the capital, which had been founded by the sons of the mikados by concubines. At the court, the mikados no longer living the active life of warriors in the field, became students, monks. Buddhist devotees, or gave themselves up to debauchery. Succession to the throne, in case of failure of direct issue, was then, as now, provided for from the four Shin-no or relatives of the imperial houses. Their numerous offspring outside of the legitimate line were provided for by being made founders of families, on the condition that neither they nor their descendants should ever lay claim to the throne, though the mikado's wives, or empresses, could be taken from them. Thus, in succession, the Fujiwara, Taira, Minamoto, and many other less famous families, sprung up. In the development of their history it resulted that the Fujiwara monopolized the civil offices; while the Taira and Minamoto furnished the military leaders, under the red and the white flags respectively The precedent was early established that the Dai Jo Dai Jin must be of Fujiwara blood: as was, later, that which permitted a shogun to be taken only from the Minamoto stock. As successive expeditions made the sceptre of the mikado respected from Yezo to Satsuma, the soldiers throughout the country gradually became attached in loyalty to their captains rather than to the distant and shadowy court at Nara, or Kioto. More and more the fighters became separated from the tillers of the soil, and made the material for a new order of things. The existence of this military class was recognized by the court as early as the eighth century; and by the eleventh the real power was in their hands, while that of the court weakened. Bred to arms, suffering and rejoicing in common, the relation of the warriors and commanders grew from that of leader and led to that of lord and retainer. The substance of authority was with the generals (shogun); the shadow was with the once active warrior-mikado, now become a puppet-figure set up and pulled down at the will of palace officials. During the twelfth century most of the emperors were children, and reigned only in the nursery. The orders of the court, which sought to sever the relation of lord and vassal, by forbidding the men-at-arms to follow either the red or the white banner, were ignored. Though despised as buké (military or inferior courtiers) by the kugé (civil court-nobles) the Minamoto and Taira families gradually encroached upon the administrative power, so that at Kioto (made the capital in 794 A. D.) the Taira leader, Kiyomori, became successful in palace intrigues. At the opening of the twelfth century most of the high offices of the court and provinces were filled by Taira men, who exceeded the Fujiwara in nepotism. Until 1156 the followers of the red and white flags were friendly rivals. In that year a quarrel in Kioto broke out between them, the prize of victory being possession of the palace, and the person of the mikado, the fetich and talisman in Japanese politics. Whichever party holds this divine personage has the loyal army (kuan-gun) and the imperial court. and constitutes the government; the other party are chotéki, or rebels. Blood was shed in this first feud. The Taira were victors; the palace was first garrisoned by a military clan. Then began that domination of the military classes which, with few intermissions, lasted until 1868. Intoxicated with success, Kiyomori, defying precedent, became in 1161 Dai Jo Dai Jin, and by marrying his daughter to the boy emperor, Takakura, became the virtual ruler of Japan. He planned the extermination of his enemies, and in 1181 died, asking with his last breath that the head of Yoritomo (chief of the Minamotos) be cut off and placed upon his tomb. With the help of a prince of the blood, Yoritomo now rose, even through defeat, to power. Calling his followers together, he founded the city of Kamakura, twelve miles from the modern Yokohama. In 1182 the Minamoto army entered Kioto, and Yoshitsuné, their leader, drove the Taira south, and in a great land and naval battle near Shimonoséki, nearly annihilated them. The white flag was now triumphant everywhere. Yoshitsuné, shamefully treated by his jealous brother, fled to Yezo, and thence, it is said, to Manchuria, becoming the great conqueror known as Genghis Khan. In 1190 the foundations of the second feudal system of Japan were laid by Yoritomo, under whose influence his captains and retainers were appointed military magistrates throughout the eastern half of the country. He secured from the court this division of the two governmental functions: collection of the land taxes, and maintenance of public order, which had been before united in the ken governors appointed by the Dai Jo Kuan, for terms of four years. Yoritomo himself was invested with a ciril title, which made him the chief of these military magistracies. The system worked so well in the eastern provinces, that it was gradually extended to the central and western provinces, and thus the ambition of Yoritomo was effectually concealed; until, in 1192, being able to control the court, he was created Sei-i Tai Shogun, or Great General for the quelling of Barbarians, and the complete separation of the civil and military functions of government was thus, in effect, attained. Henceforward, until 1868, the throne and the camp were the two factors of history, and Japan had two capitals and two rulers. Yoritomo died in 1198, and his line ended in 1219. The Hojo family of rulers, following out Yoritomo's plans, set up puppet shoguns to be the figure-heads of government at Kamakura, themselves holding the reins of power. It was during their rule, that Japan, through Marco Polo, was made known to Europe, the Mongols repulsed, and Buddhism revived and extended. The Hojo came to an end through misgovernment and luxury, in 1333 A. D., being overthrown by Nitta Yoshisada, who fought in the name of the mikado, and whose portrait now adorns the national "greenback" bank note currency. For two years the shogunate was in abeyance, and the mikadoate existed feebly. The rewards to the victors were in the form of fiefs of land, so firmly had the procedure of feudalism become fixed. A quarrel over an unfair division of rewards led a rival captain. Ashikaga Takauji, to seize Kamakura again, and the duarchy was restored. Setting up Kogen, a scion of imperial blood, as mikado, and his claims being resisted by the court, civil war at once broke out and raged for fifty-six years, reducing the land to desolation. A compromise and union was made in 1392, and the usurping branch of the imperial family became extinct in a few generations, and the original line of rulers filled the impotent throne. The Ashikaga line of shoguns reared higher the edifice of feudalism, by making the military magistracies hereditary in the families of their own nominees The details and etiquette which characterized the Japanese as known to Europeans were settled; castles were built; and the rise and fall of daimio families. with almost constant civil war, the decay of the shogun's power, the neglect of learning, contrasting with the spectacular splendors of feudalism. the transformation of the Buddhist monks into clerical militia, and the ravaging of the coasts of Corea and China by Japanese pirates, belong to this period (1335-1573). In many interesting aspects the state of society in Japan under the Ashikagas was marvelously like that of feudal Europe. In 1539 the first Europeans lauded in Japan, bringing gunpowder and firearms, thus introducing new elements in Japanese civilization The Jesuit missionaries, then in the freshness of their astonishing vigor, led by Xavier, in 1542 entered Japan and speedily secured a following of thousands of converts, while at the same time the Portuguese merchants opened a thriving trade in the southern ports.
—In the latter half of the sixteenth century began another series of influences upon Japan from Europe and the outer world, which for nearly eighty years poured a steady infusion of new ideas into the national mind. The chronic state of war in Japan at this period hindered the due influence of western ideas, which, though without the effect of the earlier importation from Corea in the fifth and sixth centuries, vastly enlarged the horizon of the native mind. Heretofore, also, a salient point in Japanese history was the rise to power of noble families. The striking phenomena of this pivotal half-century was the rise to loftiest power of three individuals of plebeian origin. Nobunaga, born in 1533, extinguished the Ashikaga line, endeavored to curb the rampant Buddhist power, favored Christianity for political purpose, endeavored to unify all Japan and to reduce the feudal chaos and anarchy to order, under and for the mikado. He rose to be Nai Dai Jin, but was assassinated in 1582. His retainer Hidéyoshi (Taiko Sama) completed his work, curbing even the proud Satsuma clan, laid the foundations of the policy afterward carried out by Iyéyasu invaded Corea. to give the warlike claus employment after being thus suddenly pacified after chronic war, and perhaps to be rid of his Christian soldiers, and then turned his attention to the Jesuits, whom he banished with partial success. Setting aside the precedent requiring the Dai Jo Dai Jin to be of Fujiwara blood, he himself filled that office. He died in 1599. Tokugawa Iyéyasu, a retainer of Hidéyoshi, who founded the city of Yedo and the Tokugawa line of shoguns, succeeded, after the battle of Sékigahara, in 1600, in obtaining the appointment, in 1603, of Sei-i Tai Shogun, and thenceforth devoted himself to a policy of unification, peace, the perfection of the duarchy, and the promotion of learning. Henceforth, like a crystal which, by the laws of its formation. secures perfection by casting out whatever is foreign to its substance, the history of Japan, expelling all outer influences, crystallized into the elaborate feudal and dual systems, which excited the wonder of Europeans. Long after the last traces of feudalism had begun to fade out of Europe, Japan was perfecting as minute and peculiar a form of it as the world ever saw. In 1637 Christianity was annihilated by the massacre at Shimabara, and all foreigners were expelled and warned off, except a dozen or so of Hollanders imprisoned, for the sake of trade, and limited to an annual ship's visit from Europe, upon Déshima (outside island), near Nagasaki. The throne and the camp were now perfectly separate; Kioto was the fountain of honors and titles, Yedo, of power and revenue. "The mikado all men love, the shogun all men fear," was taught in every household. Learning revived, and profound peace for 254 years followed. Fifteen shoguns of Tokugawa blood ruled in Yedo.
—"The history of Japan, as manifested in the current of events since the advent of Commodore Perry. has its sources in a number of distinct movements, some logically connected, others totally distinct from the rest. They were intended to effect. 1, The overthrow of the shogun, and his reduction to his proper level as a vassal; 2, The restoration of the true emperor to power; 3, The abolition of the feudal system, and a return to the ancient imperial régime; 4, The abolition of Buddhism, and the establishment of pure Shinto, as the national faith and the engine of government. These four movements were historically and logically connected. The fifth was the expulsion of the 'foreign barbarians,' and the dictatorial isolation of Japan from the rest of the world; the sixth, the abandonment of this design, the adoption of western civilization, and the entrance of Japan into the comity of nations. The origin of the first and second movements must be referred to a time distant from the present by a century and a half; the third and fourth to a period with in the past century; the fifth and sixth to an impulse developed mainly within the memory of young men now living" ("North American Review," April, 1875.—"The Mikado's Empire," p 291.) Into the details of these internal movements we have not space to enter. Suffice it to say that the seed of them was sown when the ancient texts, so long neglected during two centuries of civil war, were deciphered, re-edited and studied, when the scholars of Mito had published their historical researches, and when Rai Sanyo had written his masterpiece. Nihon Guaisln ("Military History of Japan"), all of which opened the eyes of students to the fact that the shogun was a usurper and the mikado the true sovereign. When all within the country was ripe for revolution, the coming of foreigners precipitated the crisis. The resultant of the two motions—that within and that without—was an acceleration of movement in the unexpected direction of western civilization such as has astonished the world, and the Japanese themselves. In producing the results which opened this secluded nation to the world, the United States has borne an honorable and leading part. as becomes her geographical position. The edict of Iyéyasu, compelling all native craft to be built so as to be unseaworthy, was the cause of hundreds of fishing and trading junks being driven by storms into the Kuro Shiwo, the gulf stream of the Pacific, whence they stranded on the Aleutian Islands and along the coast of America from Alaska to San Francisco. Over fifty known instances of such wrecks with survivors on board, since 1785, are recorded. ("The Mikado's Empire," Appendix) The majority of these waifs were picked up by captains of American ships. In 1837 Mr. Clarence A. King dispatched the American brig Morrison from Macao to Yedo bay to return three shipwrecked Japanese picked up in Washington territory. The ship was fired upon, and returned. In 1839, 1840 and 1841 American captains rescued more waifs, one of whom afterward translated Bowditch's "Navigator" into Japanese, and in 1860 sailed a Japanese steam vessel across the Pacific. In 1845 Capt. Mercator Cooper of the Manhattan, rescued at sea, and delivered up near Yokohama, twenty-two Japanese. In the same year Gen. Zadoc Pratt, of Ulster county, N. Y., chairman of the committee on naval affairs in congress, on the 15th of February, reported a bill for the effecting of commercial arrangements with Japan and Corea. In 1848 Commodore Biddle, with the United States steamers, Vincennes and Columbus, was sent to open trade if possible, but without success. Two American ships having been wrecked on the Japan coasts, Commodore Glyn on the Preble was sent to Nagasaki to bring away the sailors, all of whom had been required, in Dutch fashion, to trample on the crucifix to show that they were not Portuguese. The discovery and settlement of California and the increase of our Asiatic trade and whale fishery in the Pacific increased the desire to have access to Japanese ports, while the increasing frequency of shipwreck made such access necessary. Daniel Webster, secretary of state, prepared a letter from the president to the "emperor" (shogun) of Japan, but the expedition was delayed until after his death, when Matthew C. Perry was appointed commander and envoy. With consummate tact, Perry, arriving in the bay of Yedo, July 8, 1853, after stating his object, left, but appeared again, and with a fuller force, Feb. 12, 1854. In the negotiations, Perry treated with the shogun (an official of the sixth rank; though of de facto power) as if he were the emperor; while the latter styled himself "Tycoon" (Taikun, great prince). Treaties on the Perry model were soon after made with England, France, Russia and Holland, until twenty nations had entered into relations with Japan. These outward events only served to precipitate the crisis within. Enraged at the signing of a treaty, the admittance of foreigners on the sacred soil of the God-country, and the culmination of a long series of usurpations by assumption of the title of tycoon, the "patriots" or mikado reverencers raised the cry, "Honor the mikado and expel the barbarian." Townsend Harris, the consul general of the United States, secured a second convention with the Yedo government, which the regent li signed without the consent of the mikado. This fanned the flames of patriotism, and at once began a systematic assassination of foreigners, and the firing of their legations. The daimios broke through the law of centuries compelling their residence at Yedo, and the political centre of gravity shifted to Kioto. To further embroil the shogun with the treaty powers, fresh acts of violence were committed, and, as a result, Kagoshima in Satsuma and Shimonoséki in Choshiu were bombarded; the former by a British, the latter by an allied squadron; and heavy indemnities were exacted. Kioto was burned in the civil war between the Choshiu clan and the Yedo troops. On Jan. 3, 1868, the coalition of clans hostile to the shogun secured possession of the palace and the person of the mikado, and proclaimed the ancient form of government. When, therefore, the followers of the shogun Keiki, who had resigned his title and authority, regretted his action and attempted to re-enter Kioto in force, they were fired on, and in the three days battle of Fushimi beaten, thus becoming choteki. The result of the two years civil war which followed with American rifles and the iron-clad ram Stonewall on the loyal side, was that the mikado's authority was re-established all over Japan, and the ancient imperial régime established. Among the first acts of the new government was to ratify the treaties in the name of the mikado, to make Yedo the kio or capital, which they named Tokio, to take from the mikado an oath and promise to establish a national deliberative assembly to decide measures by public opinion, and to seek for intellect and learning from foreign countries, "to establish the foundations of the empire" Rapidly in succession followed the abolition of the feudal system, the mediatizing of the daimios, and the commutation of the hereditary pensions of the samurai or military class, the reconstruction of society into three classes, the restoration of the eta to citizenship, and reforms innumerable on a national scale. Fourteen years of absolute government have followed the restoration. The new rulers, nearly all of whom were men sprung from the middle class, had their hands too full to remind the mikado of his oath, or to wish it fulfilled. Other able men outside the government firmly demanded that the promise be kept, and the vigorous press and able political lecturers—new engines in politics—seconded the demand. Meanwhile in the southern part of Japan, the samurai, their occupation gone, irritated at the unforeseen drift of the restoration, using various pretexts—under all of which was plainly visible the warlike spirit of feudalism and Old Japan—rose repeatedly in rebellion, which taxed the power of the new government to the utmost, and, during the Satsuma uprising in 1877, threatened its very existence. To suppress these, cost the nation 20,000 lives and $100,000,000. This sum, with the amount expended on national improvements, lighthouses, railroads, commuting pensions of the samurai, etc., etc., has created a national debt (June, 1880) of $358,040,000. At last, in 1881, the government yielded to the pressure of a growing public opinion, and the mikado issued a proclamation granting the formation and powers of a true national deliberative assembly in 1890.
—The constitution of the government is as follows: The supreme council (Dai Jo Kuan), consisting of the premier (Dai Jo Dai Jin) two vice-premiers (U Dai Jin and Sa Dai Jin), a varying, but small, number of councilors (Sangi), and the ministers or heads of departments of foreign affairs, interior, finance, war. marine, public works, justice, colonies and agriculture, all of whom receive salaries much lower than those of a corresponding grade in western countries. The second of the governing bodies of the state is the senate, or Genro-in (house of elders), composed of nobles, and men of eminent service or political ability, nominated and paid by the government. Its powers are more restricted than those of the British house of lords, the initiative of its business being given by the Dai Jo Kuan, though the tendency of its nature is to broaden the law-making power. In 1878 a long step was taken toward representative institutions, by the formation of local assemblies sitting once a year, dealing, under the supervision of the minister of the interior, with questions of local taxation, with the right of petition to the central government on other matters of local interest. The qualifications of members and electors, men only, are limited by ability to read and write, and the payment of an annual land tax of at least $5. Under the Dai Jo Kuan, are the three cities and the thirty-five ken, which are ruled by governors (rei). The three classes of society are nobility (kuazoku), gentry (shizoku). and common people (heimin). Under every department the work of administration has been more or less conformed to modern and western procedure and usage, a fair proportion being based on American models. In foreign affairs, legations and consulates are now established in many foreign capitals and ports, and the steady aim is now to obtain from the treaty powers recognition of Japan's sovereignty, the removal of the extra-territoriality clauses from the treaties, and the right to regulate her own tariff and commerce. In finance, the total revenue, for 1879-80. was $61,860,000; and the expenditure, $59,610,000. The chief revenue is from the land tax, which, in 1877, was lowered to 22 per cent. upon the assessed value. $108,680,000 of paper money is in circulation. Of the total debt of $358,040,000, five sevenths was inherited from the past, incurred in commuting pensions, assuming the debts of the daimios, etc. 152 national banks, established on the American principle, possess a capital of $41,921,100, and have reduced the rate of interest from 14 to 11.2 per cent., besides greatly developing commercial enterprise and general prosperity. The whole amount of taxation levied by the government, in nineteen kinds, is $54,550,000, of which the land tax yielded, in 1879-80. $41,900,000, or about four-fifths of the whole: customs duties yielding, in 1878, $2,350,000, and all other taxes $8,670,000. The value of the government assets, forest and building land, public works, etc., etc., is appraised at $300,000,000. 4,000 miles of telegraph connect the chief towns of Japan with the rest of the world Postal lines, on which a letter may be sent for two cents, amount to 40,000 miles, and Japan is in the international postal union, besides having at home all the equipment necessary even to postal cards and savings banks, and forwarding nearly 50,000,000 covers annually. About 100 miles of railroad lines are opened. Thirty-five lighthouses, besides buoys, beacons and harbor improvements, have greatly aided foreign as well as native commerce. 460,000 vessels of native model and 400 of foreign, many of them steamers, form the mercantile marine, and 27 vessels, with 4,242 men and 149 guns, compose the navy. 400,000 wheeled vehicles in the country now pay tax, though before 1868 they were in very limited use, horses for draught being nearly unknown. The army, on a peace footing. consists of 35,560 men, and in war time of 50,230, with a reserve of 20,000 men. The police force, which in spirit and organization equals the army and can be used as military, numbers 23,334 men. Newspapers, 211 in number, have an aggregate circulation of 29,000,000 copies. The number of schools in 1879 was 25,459, with 59,825 teachers (of whom 1,558 were female), and 2,162,962 scholars (of whom 568,220 were guls). The voluntary private contributions in aid of education, from 1872 to 1879, were $9,000,000. The old judicial system has been reformed; the penal laws are based on the Code Napoleon. and the system of tribunals from the supreme court (Dai Shin In) in Tokio to the humblest magistrate's bar, are being steadily conformed in theory and practice to the models of christendom. The mere statement of these facts is sufficient to prove the sincerity of Japan's purpose to cast away the Chinese and adopt the western model of progressive civilization. In spite of many mistakes and discouragements her rulers have persevered, until it is doubtful whether history has recorded so sudden and thorough a transformation of an entire nation Christianity is also working among the masses. the way being well prepared for her by the rapid adoption of those institutions and forms of life with which this faith always assimilates. (See also COREA, MUTSUHITO. RIU KIU. and biographical notices of Japanese statesmen in this work.) The ministers of the United States to Japan have been: Townsend Harris, consul general (1856-61). Robert II. Pruyn (1861-5): R. Van Valkenburgh (1866-70)—these three were of New York, the two latter being ministers resident; Charles E. De Long of Nevada (1870-74) and John A. Bingham of Ohio (1874-82) being ministers plenipotentiary.
—Among the number. ous writers on Japan, Kaempfer. Thunberg and Tetsingh are the best among the older ones. Of modern writers before the restoration, F. L. Hawks' Narrative of the American Expedition under Commodore Perry. R. Hildreth's Japan as it was and is, Boston, 1855, and R. Alcock's The Capital of the Tycoon, London, 1863, are best suited to the student of political science. Writers since the restoration are F. O. Adams, History of Japan, London. 1875; W. E. Griffis, The Mikado's Empire (History. Travels, Essays, Social and Political Life. Statistics, etc.), New York, 1876-8; G. Bousquet, Le Japan de nos jours, Paris, 1877; C. Le Gendre, Prayrexsire Japan. New York, 1878; E. J. Read, Japan, London. 1881; J. J. Rein, Japan, Natur und Volk des Mikudoreiches, Leipzig, 1881. Especially valuable are the Transactions of the Asiatic Society of Japan, 1872-8, and the various publications in English issued by the Japanese government.
W. E. GRIFFIS.
JAY, John, was born in New York city, Dec. 1 (O. S.), 1745, and died at Bedford, N. Y., May 17, 1829. He was graduated at Columbia in 1764, was admitted to the bar in 1768, and took high rank as a lawyer. He was a leader in the early revolutionary movements in New York and in forming the state constitution in 1776. He was a delegate to congress 1774-7 and 1778-9, was on its leading committees, and was president during his last term. In the meantime he had also been chief justice of his state, 1778-9. In 1779 he became minister to Spain, and was one of the American negotiators in 1783. Returning in the following year he became secretary of foreign affairs until 1789. Sept. 24, 1789, he was appointed chief justice of the United States. (See JAY'S TREATY.) Before his return from the English negotiation he was elected governor of New York by the federalists, was re-elected, and served until 1801. He had been nominated in 1792, but was defeated by the official rejection of a part of the popular vote. (See NEW YORK.) In 1801 he retired peremptorily and permanently from public life. (See FEDERAL PARTY.)
—Jay's best political writings are his early revolutionary state papers, his share of the "Federalist" (see that title), and his opinion in Chisholm vs. Georgia. (See JUDICIARY.) His instinctive integrity is well marked by his indorsement on the back of a letter from an influential federalist, written after the democratic victory in New York in 1800, and suggesting the calling of a special session of the federalist legislature to assume legally the appointment of electors: "Proposing a measure for party purposes, which I think it would not become me to adopt."
—See Jay's Life of Jay; Sparks' Life and Writings of Jay; Renwick's Life of Jay; Jenkins' Governors of New York, 74: 2 Flanders' Chief Justices; Van Santvoord's Chief Justices; Parton's Life of Burr, 253: 37 Harper's Magazine; 1 Hammond's Political History of New York (see index).
JAY'S TREATY (IN U. S. HISTORY). The acknowledgment of the independence of the United States by the definitive treaty of peace of Sept. 3, 1783, made the United States a member of the family of nations de jure, but not de facto. The articles of confederation had given congress the power of "entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." This restriction upon the powers of congress practically prohibited the negotiation of any commercial treaty, since it was impossible that any other government would knowingly concede valuable commercial privileges to the citizens of the United States in return for a treaty which the government of the United States had no power to enforce, and which the respective states had a vested right to nullify at pleasure. Under the confederation, treaties, having more or less bearing upon commerce, were, it is true, negotiated with the Netherlands (Oct. 8, 1782), with Sweden (April 3, 1783), with Prussia (Sept. 10, 1785), and with the Barbary States (see ALGERINE WAR); but all these treaties contained stipulations really beyond the powers of congress, and were only allowed to exist without objection because of the almost entire absence of present commercial intercourse between the United States and the other contracting parties. The most important commerce of the United States was then with Great Britain, and that country not only refused to make any provisions for commercial relations in the definitive treaty of peace, but continued her refusal to make a commercial treaty with the United States throughout the period of the confederation and until 1794. Powers to make such a treaty were given to the American commissioners in 1783, to John Adams in 1785, to Gouverneur Morris in 1789, and to Thomas Pinckney in 1792, but the British government preferred to regulate trade with America by act of parliament.
—By the terms of the definitive treaty of peace special obligations were imposed upon both parties Great Britain agreed to withdraw her fleets and armies from the United States without carrying away negroes; and the United States agreed that there should be no lawful impediment to the collection of debts due to British subjects, and that congress should "recommend" to the states the restoration of the confiscated estates of tories and a cessation of confiscations for the future. The use of the word "recommend," and the contemporary debates in parliament, show that the British commissioners fully understood the limitations upon the powers of congress at the time; nevertheless, though congress punctually fulfilled its agreement by twice strongly recommending the state legislatures, in 1783 and 1787, to abstain from further confiscations, the British government chose to consider the inattention of the state legislatures an infraction of the treaty, and refused to withdraw its troops from the northwestern forts. Until 1796, therefore, the posts of Michili mackinac, Detroit, Fort Eric, Niagara, Oswego. Oswegatchie (on the St. Lawrence), and Point au fer and Dutchman's Point (on Lake Champlain) all lying within the territory of the United States, were garrisoned by British troops, whose officers exercised jurisdiction over the surrounding country. After Wayne's victory over the Indians in 1794, it was with great difficulty that the American general restrained his troops from assaulting and capturing a newly built British fort, just south of Detroit, which they met in the pursuit As a matter of course, this refusal to withdraw the British troops was a very fair excuse for the state legislatures to continue their inattention to the recommendations of congress.
—After the inauguration of the new form of government in 1789, under which entire constitutional power over treaties was intrusted to the federal government, two efforts were made by President Washington, as above stated, in 1789 and 1792, to establish commercial relations with Great Britain on a treaty basis; but the British government, apparently unconscious or unwilling to believe that a vigorous national government, capable of retaliation, had been developed in the United States, persisted in its course of unfriendliness, refusing to send a minister resident to the United States, to pay for about 3,000 negroes carried away by retiring British fleets, to enter into a commercial treaty, or to order the evacuation of the northwestern posts.
—In arranging the duties on imports the 1st congress made no attempt at retaliation upon Great Britain, but was governed mainly by the pressing necessity for raising a revenue. though protection to American interests was also kept in view. Great Britain's continued refusal to enter into a commercial treaty gradually brought up the idea of retaliation, and a house resolution of Feb. 23, 1791, called out an elaborate report from Jefferson, secretary of state, dated Dec. 16, 1793, upon "the nature and extent of the privileges and restrictions of the commercial intercourse of the United States with foreign nations" The strongest points which this celebrated report made against Great Britain were that parliament had only consented to modify the original prohibition of any American trade with Great Britain by allowing American productions to be carried thither in American ships; and that even this privilege was made dependent on the king's permission, given annually by proclamation, in default of which American vessels would be again entirely interdicted from British ports. The report advised a resort to the power of congress to "regulate commerce with foreign nations," 1, by favoring the commerce of any nation which should remove or modify its restrictions upon American commerce, and 2, by an exactly equivalent retaliation upon any nation which should impose high duties upon American productions, prohibit them altogether, or refuse to receive them except in American vessels.
—Jefferson's report fired a train which very nearly resulted in a war with Great Britain. To the inflammable material previously accumulated in the grievances against that country, the interests attaching to the French revolution had already been added, and the anti-neutral "orders in council" to the British navy raised popular excitement almost to the war point during the winter of 1793-4; so that the proposal of retaliation was not at any time discussed from an economic point of view, but was supported by the republicans (or democrats), and opposed by the federalists, mainly because it was considered a means of throwing the moral weight of pronounced American sympathy into the anti-British scale, while avoiding open war in alliance with the French republic. (See DEMOCRATIC-REPUBLICAN PARTY, II.; FEDERAL PARTY, I.; EMBARGO, I.) The first step was the introduction of a series of resolutions in the house, Jan 3, 1794, by Madison, designed to carry Jefferson's second recommendation into effect. The first resolution, asserting the general principle of retaliation, passed the house, Feb. 3, by a vote of 51 to 46, and the other resolutions were postponed until March by their supporters to await the progress of events. But in the meantime the anti-British feeling in the house had been growing steadily stronger. Madison's resolutions were practically superseded, March 26, by the passage of a joint resolution laying an embargo on ships in American ports; on the following day a proposition was introduced by Jonathan Dayton, a New Jersey federalist, to sequester all debts due by Americans to British subjects, and turn them into a fund for indemnifying American sufferers from British spoliations, and this, in its turn, was superseded by a proposition, April 7, to prohibit commercial intercourse between the United States and Great Britain, after November 1 following, until the latter country should cease its anti-neutral naval policy and evacuate the northwestern posts. Before the non intercourse resolution could be passed. President Washington again intervened, as he had done a year before (see GENET, CITIZEN), to check the torrent of anti-British feeling and action, and, April 16. sent to the senate the nomination of John Jay as minister extraordinary to Great Britain, for the purpose of securing peace and "a friendly adjustment of our complaints." The nomination was confirmed by the senate. 18 to 8. nevertheless the house persisted in passing, by a vote of 58 to 38, April 21, its non-intercourse resolution, which was only defeated in the senate by the casting vote of the vice-president.
—The president had abandoned his first selection, Hamilton, for the mission, chiefly on consideration of the bitter opposition which would inevitably meet any treaty negotiated by him. His second choice, Jay, was a much more fitting one, his great ability, tact, diplomatic skill and experience, popularity, known moderation, and freedom from partiality either to France or to Great Britain, made him, to quote Hamilton's own words to the president. "the only man in whose qualifications for success there would be thorough confidence, and him whom alone it would be advisable to send." There were but two objections to his nomination. his position as chief justice, and the needlessness of any extraordinary nomination while there was already a minister to Great Britain. It is difficult to answer the former objection; only imperative necessity and the lack of pressing occupation for the court itself, could excuse such an experiment upon the independence of the judiciary. In the second objection there was no force. In nominating Jay, the president had made an opportunity to declare that his confidence in Mr. Pinckney, the resident minister in London, was undiminished. The extraordinary nomination had a different reason, it was intended and seems to have been taken as an assurance to Great Britain that the executive of the United States intended, if possible, to maintain neutrality. No such assurance was necessary to France, for that country was already assured of the mass of popular sympathy in the United States. In this case, therefore, Washington deliberately cast the weight of his personal and official influence into the lighter scale, as Adams, his successor, in the exactly parallel case of 1798-9, threw his into the opposite scale when it became the lighter. (See X. Y. Z. MISSION, EXECUTIVE.)
—Jay reached London June 15, and entered without difficulty or delay upon the work of his mission with Lord Grenville, the English negotiator; and the two arranged the terms of a treaty, Nov. 19, in twenty-eight articles. Of the three American claims, the treaty settled but one outright: the northwestern posts were to be surrendered on or before June 1, 1796, but no compensation was to be paid for their previous wrongful detention; the American claims for compensation for illegal seizures were to be referred to commissioners for settlement; and the claims for compensation for negroes carried away were waived by Jay because of the flat refusal of the English negotiator to consider them. (See SLAVERY) Joint commissioners were to settle the northeastern and the (then) northwestern boundary of the United States, and the British debts whose collection had been prevented during the confederation; and no debts were in future to be confiscated by either party in the event of war. These points having been settled in the first ten articles, which were to be permanent, the other articles made up a treaty of commerce and navigation, limited to twelve years. Trade between the United States and the British dominions in Europe was to be reciprocally free; direct American trade to the British East Indies, but not the coasting trade there, was permitted; trade to the British West Indies, in vessels of not more than seventy tons, was permitted; and neither country was to allow its citizens to accept commissions of war against the other, or to permit privateers of a third (enemy) power to arm, enlist men, or take prizes within cannon shot of its coast. Neutral persons unlawfully commissioned or enlisted were to be considered pirates. Contraband goods were specified in general terms, and it was agreed that such articles as provisions, when made contraband by particular circumstances, should be paid for, and that the forfeiture of contraband goods should not forfeit the whole cargo. The article relating to West Indian trade was specially limited to two years after the conclusion of peace between Great Britain and powers at war with her in 1794, and the Americans were to renounce, in return for it, the exportation of sugar, molasses, cocoa, coffee, and cotton, to Europe.
—June 8, 1795, the treaty was laid before the senate in special session, and after a secret debate of over two weeks it was ratified, June 24, by a vote of 20 to 10, the exact two-thirds majority necessary for the ratification of a treaty; but the ratification was made conditional on the addition of an article to suspend that part of the 12th article relating to the West Indian trade. The principal objection to this article arose from its prohibition of the exportation of certain articles, above named, from the United States. The colonial system of European nations then included a general prohibition of trade to their colonies; and when Great Britain permitted a modified trade to her West Indian colonies, she demanded in return a renunciation of American trade in sugar, etc., in order that these colonial productions should not thus be indirectly transmitted through the United States to foreign nations. Jay seems not to have known that the culture of cotton had already been introduced into the United States. The additional article was finally added to the treaty, Oct. 28, 1795, but full navigation with the British West Indies was not obtained until October, 1830.
—Jay had reached New York, May 28. and from that time the whole country had been intensely anxious to know the nature of the treaty. After its ratification by the senate that body had still prohibited its publication; but, while the president was still in doubt whether or not to complete the conditional ratification by his signature, Senator Mason, of Virginia, sent a copy of the treaty, June 29, to the Philadelphia "Amora," a democratic newspaper, for publication. Its appearance in print, July 2, was the signal for an outbreak of political excitement which was probably never paralleled until slavery took a place in politics The newspapers were filled with articles, signed with Latin names, Cato, Camillus, Cains, Atticus, Decius, and Cinna, in the fashion of the time, mainly against the treaty; and town meetings and mass meetings, from Boston to Savannah, passed resolutions calling upon the president to withhold his signature. The ablest series of letters was that of Hamilton in defense of the treaty, over the signature of Camillus; the most venomous was that of "A Calm Observer," in the "Aurora." commonly attributed to John Beckley, clerk of the house. At first the attacks were directed against Jay; and the treaty, in its implied recognition of the British right of search, impressment and power to make any class of goods contraband. in its regulation of the West Indian trade, and in its failure to obtain compensation for the retention of the northwestern posts or for the negroes carried away from New York city, offered so many vulnerable points that attack was easy The opponents of the treaty, however, went further than mere resolutions. Jay was repeatedly burned in effigy, and one society "lamented the want of a guillotine" for him; in New York Hamilton was stoned while defending the treaty at a public meeting; in Philadelphia the mob burned a copy of the treaty before the British minister's house; and in Charleston, after a meeting led by John Rutledge, who had just been appointed chief justice in Jay's place, the British flag was dragged through the streets and burned before the house of the British consul.
—Notwithstanding the defects of the treaty. Washington believed it to be the best that could be obtained, and signed it, sending to the British government, at the same time, an urgent remonstrance against a recent order in council which made provisions contraband. The remonstrance secured the repeal of the order. The democratic leaders (see DEMOCRATIC-REPUBLICAN PARTY, II.) of the republican party at once attacked the president personally, with the object of destroying his influence in congress and of inducing the house to deny the appropriation (about $90,000) necessary for carrying the treaty into effect. From August until the following spring the attacks upon the president became progressively more open and bitter. From the beginning he was accused of usurpation, in collusion apparently with the senate majority, in having negotiated a treaty which endeavored to shut out the house of representatives from a share in the constitutional powers of regulating commerce, of establishing rules of naturalization, of defining piracy, of making rules of concerning captures, and of laying taxes. Side issues were then brought in: he was accused of having neglected to ransom American captives in the Barbary States, of having written letters designed to procure submission to Great Britain during the revolution, and of having drawn more than his salary from the treasury. Only the last named charges seem to have moved the president, though he complained that they were all couched "in terms so exaggerated and indecent as could scarcely be applied to a Nero, a notorious defaulter, or even to a common pickpocket." The alleged letters he demonstrated to be forgeries, and the secretary of the treasury disproved the other charge. But toward the time when congress was to meet, the attacks on the main issue grew warmer; an impeachment of the president was suggested; hints were given of the necessity of a Brutus for this "step-father of his country"; and some effect was produced not only on congress but on state legislatures. The house of delegates of Virginia, Nov. 20, voted down a resolution expressing their undiminished confidence in the president; and the federal house of representatives, Dec. 16, struck out a paragraph declaring their confidence in the president, which their committee had inserted in their draft of a reply to the message.
—On the other hand, the tide had really been turning, throughout the country, not so much in favor of the treaty as in support of Washington. The other state legislatures, with the exception of South Carolina, refused to follow Virginia's lead, and either voted strong declarations of their confidence in the president, or refused to consider the matter; commercial bodies of all the states approved the treaty; and the current of public meetings, at first entirely against the treaty, had turned before February, 1796. Nevertheless, a struggle in congress was inevitable, and it began with a resolution offered in the house, March 2, 1796, by Edward Livingston, of New York, calling on the president for Jay's instructions. Upon this resolution the debate lasted from March 7 until March 24, when it was passed by a vote of 62 to 37. March 30, the president, although he had already published the instructions by sending them to the senate, refused, as a matter of precedent, by yielding to the demand for the envoy's instructions, to countenance the idea that the assent of the house was necessary to the validity or execution of a treaty. April 7, the house, by resolution, which was passed by a vote of 57 to 35, declared that it claimed no agency in the making of treaties, but that it claimed, as part of congress, a right to deliberate upon the expediency of carrying into effect a treaty containing regulations on the subjects given by the constitution to the control of congress. April 15, debate began upon a federalist resolution that the treaty ought to be carried into effect. The first vote was taken in committee of the whole, April 29, and stood 49 to 49, but the speaker, though opposed to the treaty, voted for the resolution in order to give further opportunity to consider it. The report of the committee of the whole was considered in the house, on the following day, and a proposition was made to amend the resolution so as to read "That, although, in the opinion of this house, the treaty was highly objectionable," it was nevertheless expedient, considering all the circumstances, to carry it into effect. By the casting vote of the speaker, the vote standing 48 to 48, the word "highly" was stricken out; the entire amendment was then lost by a vote of 49 to 50; and the original report was adopted by a vote of 31 to 48. This ended the first and greatest struggle in congress against the application of the treaty power.
—The conflict had the good result of laying open to view a difficulty in the practical workings of the constitution, which could not well have been guarded against, and which has only been avoided by the steadily forbearing and pacific policy of successive executives. (See EXECUTIVE) The treaty power is certainly limited, but it is impossible to locate the limiting line exactly. Treaties are not, as it is sometimes loosely said, "the supreme law of the land"; "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States," together make up the supreme law of the land, and treaties, therefore, can at best hold but a co-ordinate rank. It is easy to see that a treaty involving the establishment of a foreign prince upon the throne of the United States, though made under every constitutional form, would be invalid, and that Jay's treaty, though clashing slightly with the powers of congress, was not invalid; but between these two extreme cases there are countless supposable cases open to question. It is impossible, for instance, to believe that in 1798 a federalist house of representatives would have voted money for the execution of a treaty of offensive and defensive alliance with France, passed by a democratic president and senate. It is equally impossible to conceive a republican house of representatives in 1882 submitting to the abolition of the protective system and the establishment of free trade by treaties made by a democratic president and senate. And yet the reasoning of Washington's message of March 30, 1796, makes it the duty of the house in all these cases to remain entirely passive. Perhaps the easiest solution of the difficulty is that offered by Story, as cited below: "Whether there are any other restrictions [than that treaties shall not abrogate the organic law] necessarily growing out of the structure of the government, will remain to be considered whenever the exigency shall arise."
—Curiously enough, when the difficulty next appeared for consideration, upon the annexation of Louisiana by treaty in 1803 (see ANNEXATIONS, I.), the federalists opposed, and the republicans supported, the supremacy of the treaty power and the obligation upon the house to execute its arrangements. In 1819-20 (see COMPROMISES, IV.) the difficulty did not appear naturally, but was forced in, for it is not easy to see, in a treaty stipulation for all "the privileges of citizens" to the people of Louisiana, au obligation upon congress to admit any state government which they might form. The question was again unsuccessfully raised when the bills appropriating money for the Gadsden purchase in 1854 and for the Alaska purchase in 1867 (see ANNEXATIONS, V., VI.), came before the house. In future discussions of the question, however, it must be remembered that the final decision of the house to vote the money necessary for the execution of a treaty has never yet been made on the distinct ground of obligation to do so; expediency has so far been the only test.
—In examining the question the reader will find most useful an opinion of Caleb Cushing and an article by Dr. Spear, both cited among the authorities; the former inclines toward, and the later against, the supremacy of treaties over laws.
—See authorities under CONFEDERATION, ARTICLES OF; 1 Lyman's Diplomacy of the United States, 190; Trescott's Diplomacy of the Administrations of Washington and Adams, 119; 4 Hildreth's United States, 522, 544; 1 Schouler's United States, 289; 2 Sparks' Life of Gouverneur Morris, 4; 1 Benton's Debates of Congress, 22, 458, 639; 1 Wait's State Papers, (2d edit.), 422, (Jefferson's report); 2 J. Adams' Letters, 156; 1 Flanders' Lives of the Chief Justices, 401; 4 Hamilton's Works, 519, 531; Jay's Life of John Jay, 310; 7 Hamilton's Works, 172, (the Camillus letters); 1 von Holst's United States, 121; 6 Hamilton's United States, 272; 2 Adams' Life of John Adams, 195; 11 Washington's Writings, 36, 513; 1 Gibbs' Administrations of Washington and Adams, 218; 3 Rives' Life of Madison, 511; 2 Randall's Life of Jefferson, 267; 2 Benton's Debates of Congress, 23; 2 Marshall's Life of Washington (edit. 1838), 370; Hunt's Life of Edward Livingston, 67; Monroe's Conduct of the Executive, 147; 4 Jefferson's Works (edit. 1829), 317, 464, 498; 2 Elliot's Debates, 367; Federalist, 64, 75; Rawle's Commentaries, 171; Story's Commentaries, § 1499; Carey's American Remembrancer is a useful collection of essays, etc., on both sides; for the treaty of peace of Sept. 3, 1783, and Jay's treaty, see 8 Stat. at Large, 80, 116; 6 Opinions of the Attorneys General, 291 (Cushing's opinion); 17 Albany Law Register, 460 (Dr. Spear's article on Extradition).
JEFFERSON, Thomas, vice-president of the United States 1797-1801, and president 1801-9, was born at Shadwell, Va., April 2, 1743; and died at Monticello, Va., July 4, 1826. He was graduated at William and Mary college in 1762, was admitted to the bar in 1767, was a member of the house of burgesses 1769-74 (see REVOLUTION) and of the continental congress 1775-8 (see DECLARATION OF INDEPENDENCE), and was governor of Virginia 1779-81. He served as minister, first to Europe in general and then to France, 1784-9, and became secretary of state at the formation of the constitution. (See ADMINISTRATIONS, I.) His subsequent public career is a part of the history of the party which he founded. (See DEMOCRATIC-REPUBLICAN PARTY, I.-III)
—An estimate of Jefferson's character and work involves much the same difficulties as in the case of his great rival, Hamilton. (See HAMILTON, ALEXANDER) Each was opposed in his own way to the advance of that curious complication of conflicting forces whose sum makes up American political history, and each has had warm, and often unreasonable, assailants and apologists. But, as Jefferson's maintenance of individual liberty involved an opposition to the development of nationalization in the United States, his private and public character have been subjected to criticism more minute, merciless and bitter than has ever been applied to Hamilton's. His infidelity, his cowardice, his shiftiness, his love of theory and lack of practicality, his bigotry in applying his theories to his opponents and his looseness in applying them to his friends or to himself, and, above all, his responsibility for the doctrine of nullification, have been dealt with by hands more skillful than have ever attacked Hamilton. The country has, in one sense, been growing away from Jefferson and toward Hamilton, so that the latter has always been, and will always be, more sure of a sympathetic criticism from the abler class of critics than the former.
—Jefferson's "infidelity" seems to have early settled down into a mild form of unitarianism, and his letters and those of President John Adams, show that the two were almost entirely at one in all essential points of religious belief. The different treatment of the two men, in this regard, by standard writers, is characteristic. In Adams' case, it is always slurred over as a matter interesting only to himself; in Jefferson's, the language of the orthodox New England clergy of his time is still the canon of criticism. The charge of cowardice rests only on his hurried escape from the British, while governor of Virginia. His responsibility for the doctrine of nullification is elsewhere considered. (See NULLIFICATION.) The charge of shiftiness and other bad qualities above specified rests on a different basis. It is really due to the needlessly high plane on which he set his political theory to work. His doctrine that every broad construction of the doubtful powers of the federal government is a violation of the organic law, is, in brief. illegal, was never recognized by his opponents or maintained in practice by himself or his disciples. The former recognized only expediency or inexpediency as a test of construction; and the latter, whenever they yielded in any degree to the irresistible current of events and relaxed their rule of action, laid themselves open to the charges of bigotry in applying their political theory to their opponents and of looseness in applying it to themselves. (See DEMOCRATIC-REPUBLICAN PARTY, VI.)
—Before 1789 Jefferson's political work consisted in his authorship of the act for religious toleration in Virginia, and of the declaration of independence. After 1789 his work consisted in the organization of the democratic-republican party (which see). This last work deserves consideration from several different sides. 1. From the point of view of the individual it was almost wholly beneficent. The individual American citizen is very largely indebted to the spread of Jeffersonian ideas for his unrestricted right of suffrage, his voluntary religious status, and his active individualistic life, free equally from the control of classes and from sympathy with the prejudices of classes, to which Hamilton was strongly addicted. 2. From the point of view of the states its influence was mixed, good and bad. On the one hand, by maintaining between the individual and the national government the shield of a powerful series of state corporations, it protected the individual, simplified the work of the national government, and made its expansion over an enormous territory a possibility and a success. On the other hand, its secondary development was naturally into a state feeling for the sake of the state or of a section, not of the individual. (See STATE SOVEREIGNTY.) On the whole, in spite of the heavy weight of the war of the rebellion in the scale of evil, the good seems to have largely predominated. 3. From the national point of view the influence of Jefferson's work seems at first sight to have been wholly bad. It hampered the efficiency of the national government, indirectly endangered its existence by the development of the excrescence of state sovereignty, and in a variety of ways impeded the growth of a real national feeling. Nevertheless, even in this apparent evil, the good has predominated. If the growth of national feeling has been slower because of the adverse influence of Jeffersonian ideas, it has been all the healthier for it, and will last the longer. Rapid growth implies early decay, and it is almost equally reason for gratitude that the national idea has been established and that it has been established slowly and naturally. Again, while Jefferson's work could never have prevented the final establishment of nationality, it has succeeded in guarding under it the rights of the individual, for which the original Hamiltonian idea had comparatively little regard. (See NATION.) On the whole, the ultimate combination of the two forces could hardly be better stated than in the words of a writer in "The Nation" (cited under HAMILTON, ALEXANDER): "At the present moment Jefferson rules in the manner and after the methods prescribed by Hamilton. Hamilton's theory perished before the advance of democratic principles; but Jefferson utterly failed to destroy the wise system devised by his opponent."
—Jefferson's Works have been twice collected. The best and most comprehensive edition is that of H. A. Washington in nine volumes (1853); the most convenient is that of T. J Randolph, in four volumes (1829). The best Life is that of II. S. Randall (1858); see also Carpenter's Memoirs of Jefferson (1809). Rayner's Life of Jefferson (1834); Tucker's Life of Jefferson (1837); Smuckers' Life and Times of Jefferson (1839); DeWitt's (Church's trans.) Jefferson and the American Democracy (1862); Parton's Life of Jefferson (1874); Abbott's (or Lincoln's) Lives of the Presidents; 1 Statesman's Manual (for his messages): 2 Brougham's Eminent Statesmen (edit 1854), 320, Parker's Historie Americans, 235: Cobb's Miscellanies, 5: Atlantic Monthly. January, 1862; Lippincott's Magazine, September, 1868, National Quarterly Review, March, 1875. The favorable view of Jefferson's work will generally be found in the authorities under DEMOCRATIC REPUBLICAN PARTY; the other side in the authorities cited under FEDERAL PARTY, see also Danvers' Picture of a republican magistrate of the new school (1808); II. Lee's Observations on the Writings of Jefferson (1832); Dwight's Character of Jefferson, as exhibited in his Writings (1839). For his private life see J. E. Cooke's Youth of Jefferson (1854); Pierson Jefferson at Monticello (1862), S. N. Randolph's Domestic Life of Jefferson (1871). and his autobiography in his Works.
JOHNSON, Andrew, president of the United States 1865-9, was born at Raleigh, N. C., Dec. 29, 1808, and died in Carter county, Tenn., July 31, 1875. After holding various state offices, he served as representative from Tennessee (democratic) 1843-53. as governor 1853-7, and United States senator 1857-62. He was appointed military governor of Tennessee (see that state) in 1862, and in 1864 was elected vice-president by the republican party. He became president upon President Lincoln's death, and served until 1869. (For the political events of his administration see RECONSTRUCTION; FREEDMEN'S BUREAU; CIVIL RIGHTS BILL; TENURE OF OFFICE; VETO, IMPEACHMENTS, VI.; REPUBLICAN PARTY.) He was again elected United States senator in 1875, serving until his death.
—President Johnson was an exceptionally favorable and fortunate specimen of the southern "poor white." He was absolutely without the influences of early education until after his character had been fairly formed: it was only after his marriage that he was taught by his wife to read, write and cipher, and he then passed almost at once from the tailor's bench into politics. In this field he was steadily battling against "the aristocracy," from his first formation of a working-man's party in Greenville, Tenn.. in 1828, up to the day on which, as president, he offered heavy rewards for the arrest of Jefferson Davis and the other alleged participants in Lincoln's assassination. To his mind the great work had then been done by the overthrow of the slaveholding aristocracy, and the status of the negro in the south was a question of almost as great difficulty as before. When congress undertook to reconstruct southern state governments, and to compel southern whites to recognize the political equality of the negro in the work, congress, in Johnson's eyes, took the place of oppressor upon the southern people which the "aristocracy" had held before the war, and he simply changed his opposition accordingly. It does not matter whether reconstruction by congress was accomplished wisely or unwisely: it is certain that President Johnson was eminently unfitted by nature, by education, and by life-long devotion to an entirely different object, to deal with the problem of reconstruction. The tone of his answer to the first negro delegation which met him after his accession to the presidency was sufficient to forewarn his failure, and to show the reason for it. Even his sincerity, his persistency, and a certain frankness which was often far from engaging, made him a more certain victim to the difficulties of his position.
—See Savage's Living Representative Men, 347; Savage's Life and Public Services of Andrew Johnson; Moore's Life and Speeches of Andrew Johnson; Foster's Life and Speeches of Andrew Johnson; and authorities under articles referred to.
JOHNSON, Herschel V
JOHNSON, Herschel V., was born in Burke county, Ga., Sept. 18, 1812, and died in Georgia, Aug 16, 1880. He was graduated at Franklin college in 1834, was admitted to the bar in 1837, was democratic United States senator from Georgia 1848-9, was governor of Georgia 1853-7, and received the democratic nomination for the vice-presidency in 1860 in place of Benj. Fitzpatrick, declined. (See DEMOCRATIC-REPUBLICAN PARTY, V.) He was in the senate of the confederate states, 1864-5.
JOHNSON, Reverdy, was born at Annapolis, Md., May 21, 1796, and died there, Feb. 10, 1876. He was admitted to the bar in 1815, was a whig United States senator 1845-9, attorney general under Taylor, democratic United States senator 1863-8, and minister to England 1868-9. (See ALABAMA CLAIMS.)
JOHNSON, Richard Mentor
JOHNSON, Richard Mentor, vice-president of the United States 1837-41 (see DISPUTED ELECTIONS, III.), was born at Bryant's Station, Ky., Oct. 17, 1781, studied law, and became a colonel of volunteers in the war of 1812. He was a democratic representative in congress 1807-19 and 1829-37, and United States senator 1820-29. He was the democratic candidate in 1840 for vice-president, but was defeated. (See DEMOCRATIC-REPUBLICAN PARTY, IV.)
JOINT RULE. (See PARLIAMENTARY LAW.)
JOURNAL. (See PARLIAMENTARY LAW.)
JUDAISM. (See MOSAISM.)
JUDICIARY, Elective. The term judiciary is very generally used to designate the collective body of the judges. It is also used to designate that branch of the government in which judicial power is vested, and the officials serving thereunder. In this more comprehensive sense, in which the word will generally be used in this article, it would include sheriffs, coroners, justices of the peace, commissioners of jurors, marshals, constables, bailiffs, and all the clerks and other subordinates of the courts of every grade; and among them would be county clerks, and other keepers of judicial records. The keepers of land titles, as distinguished from the keepers of judicial records, can in no sense, perhaps, be regarded as judicial subordinates; yet it seems plain that the same consideration which should govern the selection of the latter should also prevail in the selection of the former. In a sense it may be said that the sheriff is an executive rather than a judicial officer; for he is to help preserve the peace, which is a part of the duty of the president—to take care that the laws are faithfully observed. The sheriff is also to arrest offenders, which is an executive act and yet the execution of a judicial order. In a similar sense it may be held that the judges themselves are but subordinates of the executive for executing the laws Blackstone, the great commentator on English laws, thus views the matter, presenting the judges as representatives of the king for doing justice Indeed, kings originally dispensed justice in person, and the judges were at first selected as their substitutes. In its last analysis the distinction between executive and judicial officers is lost in metaphysics.
—The arguments for and against an elective judiciary strike deep both into the theory and into the practical effects of government. Mr. Mill declares ("Considerations on Representative Government," London, 1861, p. 31) that "all the difference between a good and a bad system of judicature lies in the contrivances adopted for bringing whatever moral and intellectual worth exists in the community to bear upon the administration, and making it duly operative on the result." With out much considering either theory or experience, we have in later years yielded with equal facility to blind hopes of reform from mere change, and to cunning devices of partisans for attaining their own ends. The consequences have been disastrous. The great contrariety of methods which now prevails for selecting judges, and the serious abuses which exist in our judicial administration, equally illustrate the gravity of the question and the lack of well considered views in regard to it.
—Considered upon theory, a fundamental and radical view of the matter which seems favorable to the election of judges would be this: that each department of the government alike should rest upon the direct approval of the people. The president and the governors, who are at the head of the executive departments, are elected, and they appoint their subordinates. The members of the assemblies and the senates, which are at the head of the legislative department, are elected, and they appoint their subordinates. Why should not the judges of the courts—the heads of the other departments—who appoint their subordinates, be also elected? Yet neither the president nor the members of the national senate are elected by the people; and if the analogy as to the appointment of subordinates is to be followed, all the officials before named, subordinate to the courts, would have to be appointed or nominated by them, subject to confirmation by the senates. which would make appointive many judicial officers who are now elective.
—But the view just considered overlooks other considerations quite as fundamental and far more important. Members of congress and of legislatures are representative officers sent to speak and act in conformity to the interests and opinions of sections and classes which they represent, not forgetting, however, the general welfare; and that because the great body of the people can not appear in their own behalf. These interests and opinions frequently change. The views of the majority must prevail. These views are generally expressed through a party. It is not, therefore, practicable to disregard the political opinion or the party of a representative official. A real representation is manifestly attainable only through popular elections and short terms of office. The representation would be all the more exact and complete if the official term were but a year; or but for six months, as was once the case in Connecticut and Rhode Island; or but for two months, as was for a time the fact in some of the Italian republics. So, too, the president and governors, as to a part of their functions, are representative officers, taking part in making the laws. For that reason they should be elected and for short terms. Other parts of the functions of those officers are not representative, but are strictly executive, and to a large extent are merely ministerial; involving the business details of the great departments, where the tenure of the inferior officers should be irrespective of party polities. The prostitution for party ends in this branch of executive duties has developed the demand for civil service reform. (See the article under this head)
—On these theories our national and all our earlier state constitutions were framed When we come to the judiciary the facts are widely different. There is nothing representative in its functions; nothing dependent upon majorities or party policies: nothing that should conform to mere opinions or interests, whether general or local. To interpret the laws according to their meaning and to adjudicate the controversies on the basis of principle and justice—absolutely, universally, continuously, in every part of the country and for every citizen irrespective of his peculiar opinions and interests—constitute the supreme duty and safety. For a judicial officer, in the discharge of his duty, to yield to the popular majority or to make a compromise based on the conflicting interests and opinions of the people. as a legislator may in many cases fitly do, is the beginning of corruption and despotism. The very nature of such functions, the need of conforming to fixed principles and of resisting all temporary interests and emotions—not less than the need of long experience for giving a steady, intelligent and consistent interpretation to the statutes—proclaim the utility of a stable judicial tenure—of long terms of office, if indeed any fixed term be provided. To stand upon the precedents and to give effect to the statutes according to their legal import, however the majority may clamor and whatever the interest of his section or his party, is the test and the glory of the true judge It is for the public interest, therefore, that the manner of his selection and the influences thrown about him should be such as most tend to develop a judicial frame of mind. and to make him stand more in fear of the common sense, of propriety and justice, than of any party or any combination of private interests. He whose duties require him to be impartial toward all, ought not to be able to see in the members of one party only those who voted for him. and in the other only those who voted against him. For these reasons, if the election of judges is defensible, it can hardly be on any ground of principle, but must be solely because, as matter of experience, the practical effects of that method of choice have been found beneficial—It may be said. irrespective of all such analogies, that to question the capacity of the people to select the highest officials of any kind is to distrust republican institutions. Without here considering what methods republican governments have provided in this particular, it is well to note an important distinction between judicial and other officers In the case of representative officers the decisive question. whether the candidates would be representative of the interests and opinions of the people, is peculiarly one of which the voters are the most competent judges. And whenever the qualifications and duties of an officer are such as fall within the common intelligence and experience of the voters, there are abundant reasons why their selection may be safely trusted to them. Such would not seem to be the facts in the case of judges. No one but well educated lawyers of large practical experience, and of such none but those of a well balanced, candid judgment, (or to use a phrase which in itself illustrates the limitation intended), none but those of a "judicial frame of mind," are fit to be made judges. The wisest choice is limited. first. to the members of a single learned profession, and, next, to that portion of its members which, very generally, have qualities the least likely to arrest popular observation: and of which, persons of a high order of intelligence, who are likely to be presidents, governors and legislators, are (outside of the legal profession itself) by far more competent judges than the average voter. The average citizen may decide, intelligently, whether a given lawyer would be a good representative of his district, or can make an effective speech before a jury, or is a man of good reputation, but he can hardly form a very intelligent opinion as to his having that exact knowledge of the law and that sound judicial judgment which qualify him beyond his fellows for the bench. As a general rule it may be said that the lawyers, above the inferior class, having the more showy endowments by which the average citizens would be impressed, as well as those who are most likely to seek and gain popularity in partisan circles, are precisely those who are least likely to possess the qualities most needed on the bench. Though there are exceptions, yet, as a rule, those lawyers most competent to be judges are those who practice least before juries, where the people are present, and most in the higher courts, where the people are not present.
—Looking at the matter, therefore, in the light of principle, and assuming that neither corrupt motives nor partisan coercion much affect the choice, it would seem that we should be likely to secure the better lawyers for judges by making their selections through appointments rather than through popular elections. When such vicious influences are powerful, the problem becomes exceedingly complicated. It is possible to conceive a state of facts under which, temporarily, the appointing power might be more demoralized than the public conscience, and therefore that unworthy men could be appointed judges when they could not be elected. The nearest approach to that state of facts, perhaps, was under the council of appointment many years since in the state of New York, and again during the domination of Tammany Hall, in New York city. Yet Barnard, Cardozo, McCunn and all the judicial officers of a lower grade, by which New York was disgraced, were elected by popular vote. No judges of capacity or character so low had ever reached the bench until many years after 1846, when judges were first made elective in that state. And if it be conceivable that a governor and legislature, or either acting alone, would have put such men upon the bench, it is certainly impossible that any worse could have been selected. That the wide-spread bribery and corruption of the voters by which, through popular elections, such men reached the bench, were far more disastrous than anything which would have attended the appointment of the same men, can hardly be doubted. And it is not conceivable as a continuing condition, or except under very anomalous circumstances, that the moral tone of those who would control nominations can be lower than that of those who would control the action of the party majorities, by which, after appointments have given place to popular voting, the choice of judges is almost invariably given these officers. Whenever in a community there is such independence of partisan bias and coercion that the voters will leave their party or the judicial candidate of their party. in order to vote for a better candidate of the other party or in order to vote for some better man of their own party than its convention has nominated, it is quite certain that the appointing power must be in worthy hands. The very causes which would produce a bolt from the nomination of a bad candidate. would secure the election of governors and legislators who would not venture to prostitute a power of appointing judges. We are therefore, in this view of the matter, thrown back again upon the relative merits, intrinsically considered, of the two possible methods of selection.
—If from theory we turn to practice, we find that almost the sole experience of an elective judiciary among the more enlightened nations is limited to this country, and to the last thirty-eight years. Yet at an early period most of the sheriffs in England were chosen by the inhabitants of the several counties, though some of them were hereditary. But tumultuous elections caused them to be made appointive in the time of Edward II., and such they have since remained. A statute of Richard II. (well worthy our consideration) provides that no person shall be selected by those having the appointing power for justices of the peace or sheriff, "that sueth either privately or openly to be put in the office, but only such as they shall judge to be the best and most efficient." Office seekers are thus made ineligible. Coroners in England have, from early times, been chosen for life by the freeholders of the county court, and upon this precedent our practice of electing coroners seems to have been based; though in England, as with ourselves, the popular election of such officers has been found as vicious in its effects as it is repugnant to all sound principles. No other judicial officers have been elective in Great Britain.
—The inconsiderate facility with which judicial officers were first made elective in the early years of this generation, is a striking and significant fact in our politics. But the authors of the "Federalist" pointed out that, by reason of the few who can give intelligent consideration to judicial matters changes could be made in the judicial department more easily than in the others. In 1787, when the federal constitution was adopted, each of the thirteen states, except Rhode Island and Connecticut which had retained their charters, were under constitutions of their own creation. The elections of judges, and (with slight exceptions) the elections of judicial officers of every grade, were unknown except in Georgia. In Massachusetts, Maryland and New Hampshire the judges were appointed by the executive. In New York and Pennsylvania the appointments were made by the executive and a council of appointment. In Delaware the executive and the legislature appointed. In New Jersey, Virginia, North Carolina and South Carolina they were appointed by the legislature. In South Carolina the legislature appointed justices of the peace and sheriffs, and in Georgia it appointed justices of the peace and registers of probate. The tenure was generally that of good behavior. The one striking exception to these general principles was the first constitution of Georgia, adopted in 1777, which contains very peculiar provisions. The legislature was a single body. Juries were made judges of both the law and the facts. No person could practice law without a permit from the legislature. The judges of the two higher courts were made elective by popular vote for me year only. This seems to be the first instance of the election of judges by popular vote, or of their being given a fixed term in this country. Two years later the term in Georgia was extended to three years and a state senate was created, but judges were left elective. The elective system did not give satisfaction, and it greatly divided public opinion. Before 1852 judges had become appointive by the legislature. In that year they were again made elective by the people. In 1861 it was provided that the governor should nominate and the senate confirm them; the highest grade holding for a term of twelve years. Georgia has not since made her judges elective.
—The debates pending the adoption of the federal constitution, equally with its provisions, disclose a profound sense of the need of making the bench independent of the pressure of partisan and selfish interests. Neither the president, who is to nominate, nor the senators who are to confirm, are directly elected by the people. The judges are to hold their places "during good behavior," and they are to "receive for their services a compensation which shall not be diminished during their continuance in office." The general purity, efficiency and dignity of the federal courts, the high estimation in which they have been uniformly held by the people, as well as the indisposition to make any change in the method of selecting the federal judges, would seem to be the best test of principles upon which these courts are based. A proposition to make the judges of the supreme and other federal courts elective by popular vote would doubtless be received with something like universal repugnance; and few, probably, would think it could be carried into practice without serious danger to the government.
—The partisan interests and theories which, during the last forty years, have caused so great changes in the judiciaries of the states, have produced obvious effects upon the federal courts. The federal judges in the territories have been made appointive for a term of only four years; there by involving their tenure in presidential elections and tempting them to take part in local politics; a temptation of which it is easy to trace the mischievous consequences in the judicial administration of the territories. It would seem to be plain that such a term of office, illustrating the advance of the spoils system in our politics, is repugnant to the spirit if not to the letter of the federal constitution, which declares that the judges, both "of the supreme and inferior courts, shall hold their offices during good behavior." Is not a territorial court an "inferior" court? The lamentable effects upon the federal judiciary, of bringing party politics upon the bench, and of state judges standing as candidates for politics offices, is further illustrated in the apparent willingness of the late chief justice of the supreme court and of several associate justices in recent years, to be presented as candidates for the presidency. And when, soon after his appointment, Chief Justice Waite refused the use of his name as a presidential candidate, for the reason that it would compromise the becoming independence of his position, he displayed a high sense of duty and propriety which deserves more attention than it has received. When, in his letter of refusal, be inquired whether, "if he allowed his name to be used to promote a political combination," * * "he could, in all cases, remain an unbiased judge in the estimation of the people," and further declared that "there can be no doubt that, in these days of politico juridical questions, it is highly dangerous to have a judge who looks beyond the judiciary to his personal ambition," he acted upon reasons which condemn the whole theory under which popular elections and short terms of office have made the judiciary of so many states responsive to political influence and party majorities. The causes which, in the last thirty-five years, have led to the selection of so many judges by popular elections and for short terms, were of slow growth. They need not be traced here: but see TERM AND TENURE OF OFFICE, and SPOILS SYSTEM.
—Prior to 1820 the subordinate officers of the executive departments (with the single exception of marshals) had no fixed terms. In that year collectors, district attorneys and some others were given a term of four years. The change was made without debate and in obedience to a growing demand for more patronage, re enforced by increasing despotism in party management. Jackson's administration explained the significance of the changes. Under him, in 1832, Marcy of New York proclaimed, in the senate, the doctrine that "to the victor belong the spoils," which shows pretty clearly the spirit that was then being developed in his state. (See SPOILS SYSTEM) In 1836 a four years' term was extended to all postmasters having a salary of $1,000 and over. This increased patronage but emboldened the demand for more places to fill, to which each of those laws was a surrender. Had not the provisions of the federal constitution been in the way, it may well be feared that the offices to which the four years term was extended would have been made elective. But why should not judges as well as postmasters and collectors have short terms? And since a state may be induced to elect them, why should they not, as well as legislators, be elected by the people? This was the logic of the patronage mongers and the spoilsmen. When urged by persuasive orators before popular audiences of farmers and lumbermen in the border states, it is by no means easy to resist. Nor is it much less effective with a large class of voters in the older states, when jointly urged by the lawyers who wish the ways easy and numerous to the bench, and by the politicians who seek more patronage to disperse and more frequent elections to manipulate. Judges were made elective in Missouri in 1820; in Mississippi in 1832; in Alabama in 1833; in each case for short terms; being for the presidential period of only four years in Mississippi. But the latter state, alarmed at the prospect, has since made her judges appointive. These dates indicate the development of those influences which introduced partisan proscription at about the same period into the executive service of the nation. It was natural that New York, where the spoils system was most developed, should be the first of the older states to commit her judiciary to popular elections and short terms. In 1846 she made her judges elective for the first time, and reduced the tenure of good behavior to a term of eight years. Various subordinate judicial officers were also made elective. The state was divided into eight judicial districts, and the judges were declared elective by popular vote separately in each of these districts. To careful observers the injurious effects of the new system very soon appeared, in a vicious partisan activity steadily increased, in judges who were greater politicians and lesser lawyers than had before been on the bench, and in more uncertainty in the law and less respect for the courts. The deplorable corruption in the judiciary of that state to which such abuses finally led, need not be described. The purest and ablest of the judges, lawyers and statesmen of New York, and the great body of her more enlightened citizens, have joined in lamenting this introduction of judicial elections. They made an effort in 1873 to reverse the disastrous experiment, but partisan influence prevailed; though the term has been extended from eight years to fourteen; the districts have been reduced from eight to four; the highest court has been made permanent; and in New York city the elective system for inferior criminal justices was overthrown, and such justices have been made appointive; important steps back toward the original system for which public opinion in that state is steadily growing more favorable.
—On the occasion of the election in 1873 the association of the bar of New York city (composed of more than 700 of the leading members, after full discussion) adopted, by a majority of more than five to one, a statement of reasons why judicial elections had been disastrous and should be abandoned in that state, from which we make the following extracts: "The change to an elective system was not made because the people demanded it, or because the method of appointment in this state or elsewhere had developed any judicial abuses; for there was no such demand; and in the whole period prior to 1846 not a scandal had touched the character of a single New York judge in connection with his judicial functions." * * "When the elective system was submitted to the people in 1846, there was almost no discussion before them." * * "Judicial elections have, in our opinion, as a rule, been unfavorable to the selection of men of the greatest ability and attainments for the bench. and not less unfavorable to the prevalence of courage and fidelity in the discharge of judicial functions. The judicial canvass is in its very nature demoralizing: and the temptation is dangerously strong to make commitments unfavorable to justice. The judge who reaches the bench through a party contest at the polls. where one portion of the people support and the other oppose him, by no means finds it as easy to be impartial, nor do lawyers and suitors find it as easy to believe him impartial, as if he had been appointed by the governor and confirmed by the senate." * * "Such selections have also been prejudicial to learning and character among lawyers. Lawyers of inferior capacity, aspiring to the bench, have been induced to intrigue for caucus and party influence, and thus the more honorable conditions of professional advancement have been disparaged and neglected. Much in the same ratio in which inferior lawyers have been able to reach the bench, under the elective system, persons of small education and uncertain character have made their way at the bar." * * "The election of judges, by giving more offices to be made the subject of bargaining and intrigues by the managers of popular elections, has increased the number and power of those party mercenaries who live by the spoils of elections, and the same cause has aggravated the excessive power of the mere party majority." * * "It has been one of the results of our elective system"—responding to party majorities and local influences—"that our decisions have wanted consistency, and our whole judicial system has been fluctuating and feeble. In the period during which Massachusetts has had only eighteen supreme court judges, or judicial terms, and all England has had only forty-one in her three higher law courts. New York had had one hundred and sixty judges or judicial terms, in her supreme court, and one hundred and twenty in her court of appeals. And our excessive appeals and overrulings and reversals of decisions have been much in the same ratio as compared with those of England and Massachusetts." * * "This system, to the knowledge of all of us, calls to the polls every vicious and criminal voter by all the direct interest he feels in his own safety for the past, and by his hopes of impunity for the future It appeals to the honest and virtuous voter only by a remote interest, or a mere disinterested sense of duty."
—In the work of Mr. Mill, already cited, he says: "Of all officers of government, those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers. While there are no functionaries whose especial and professional qualifications the popular judgment is less fitted to estimate, there are none in whose conduct absolute impartiality and freedom from connection with politicians are of anything like equal importance. The practice, introduced by some of the new or revised state constitutions of America, of submitting judicial offices to periodical popular re elections, will be found, I apprehend, to be one of the most dangerous errors ever committed by democracy."
—Massachusetts, New Hampshire, Connecticut, Vermont, Rhode Island and New Jersey have never adopted the elective system; though Connecticut introduced a term of eight years for her appointive judges. New Hampshire has on two occasions—and apparently only in order to give the dominant party an opportunity to secure patronage—abolished its judicial system and created another into the offices of which the dominant party proceeded to put its favorites by appointment. Pennsylvania was but four years behind New York in yielding to the pressure for the election of judges; exchanging, in 1830, her appointments and her tenure of good behavior for popular elections and a term of eight years. The effects, only a little less disastrous than in New York, caused the term to be extended to twenty-one years in 1874. In 1875 Missouri, the first state after Georgia to adopt the elective system, was compelled for the same reasons to extend her judicial terms from six to ten years. Ohio also has felt the same influences. Her constitution of 1802 made her judges appointive by the general assembly for seven years. In 1851 the term was reduced to five years, and the judges were not only made elective but they were required to be residents of the district where they were elected. These facts sufficiently indicate the causes to which the change of system has been due and its effects, and we have not space for further particulars. It would be instructive, if we had space, to point out the uncertainty in the law, the increased litigation, the greater number of appeals, the loss of respect for the courts, and the incompetency upon the bench, which have been the consequence of these short terms and of popular elections.
—There appear to be twenty-four states in which the judges are now elective by the people. The terms vary in length from two years in Vermont—though Vermont keeps her judges, by reappointments, a long time in office—to twenty-one years in Pennsylvania; the average length being about ten years. In most of the states where the judges are appointed, there is no fixed term, but a tenure of good behavior. Nearly all the recent changes in the judicial system where terms exist, have increased their length. Several states have within a few years returned to the method of appointment. The spirit of reaction against an elective political judiciary appears to be still on the increase.
—There is one part of the system of popular elections, that of electing the superior judges in separate districts, which hardly fails to have a pernicious influence, for, while suggesting to the people the idea that judicial action should be representative, it also brings the judges into a dangerous dependence upon local interests and feelings. They are naturally expected by the people of their district to so interpret the law as to protect their part of the state. Some of the states have even required each judge to be a resident of the district where he is elected; as if he was, in a strict sense. a representative officer. This district system is unfavorable to the election of the abler men whose reputations are known over the whole state. A very ordinary lawyer may secure popularity in a district. It is of the utmost importance that the people should feel that the interpretation of the law and the principles of justice are the same not only at all times but in every part of the state, identical in spirit, uniform in administration, recognizing neither locality nor occupation. This local district system teaches the contrary. There is reason to think that not a few decisions made by these local judges, which have in so many instances been reversed on appeal, can be traced to the bias or the fears which have been caused by such local influences. Between such causes and the effects of short terms and of electing popular lawyers by popular votes, the proportion of appeals and of reversals of decisions in our state courts is not probably approached in the judicial procedure of any other enlightened nation.
—It may be said in defense of the method of popular election, that no people under republican institutions can reasonably expect to secure judges, on the average, above the standard which the people regard as appropriate for the bench, and that, by allowing every man to vote, the result will represent that standard. Abstractly considered, this view has much force. But we have seen that there are peculiar reasons why the people generally are not likely to rightly estimate judicial qualifications. Besides, it follows, almost as a necessity, that the nominations for judges are made by the same party conventions which nominate representative officers, and that the election of both is, for that reason, generally dependent upon the same party management. The better class of voters who desire learned and able judges more than party victories, do not all belong to one party. They are kept from acting together, and their influence is divided and weakened by the very process of putting the candidates in nomination. These facts, besides constantly teaching the people that a judge is both a representative official and a party candidate, tend to cause the members of one party to expect favor and the other to fear injustice from the bench where he presides. The very fact of the nomination being made by one party tends to cause a distrust of the candidate on the part of the members of the other. Many decisions involve, if not party questions yet the interests of party chieftains. Nor are these the only cases in which lawyers and their clients do not disregard the politics of a judge and the obligations implied in his election. In the case of an appointment, it is only a few and not the whole voting population that get heated and prejudiced from the method of the selection. And it is not only the people who by the very methods of election are drawn into distrusts and divisions, but the bar itself. Its members belong to the different parties; and on the platforms and at the polls the elective system divides them into advocates and opponents of the candidates before some of whom they are to ask impartial judgments for their clients, among whom the same divisions have been in the same way produced. That this false teaching has affected the public estimate of the relation which judges should sustain toward politics, can hardly be doubted. Where is the statesman among us who would dare put forward a candidate for a judge who was not of his own party? The nomination even of Mr. Conkling, the most intense partisan of his time, for the supreme bench, has just met with only moderate dissent. But in Great Britain, where an elective judiciary is unknown, Mr. Gladstone has just made Sir John Holker, the tory attorney general of Lord Beaconsfield, a lord-justice of appeal, with the approval of his own party. When the ordinary voter casts his ballot, the fit inquiries he makes are these: Does the candidate uphold the principles of my party? Will he protect the interests of my district? These questions he can properly answer. But, when among the same parcel of votes he finds one the wise and just casting of which requires him to disregard those principles and to rise above those interests, and to answer this question alone: Is this candidate an upright lawyer, having that learning, experience and judicial frame of mind which fit him for the bench? it will be fortunate indeed if he shall have both the freedom from party bias and the special information needed to answer that question properly.
—It seems quite clear that during the period in which there was the strongest tendency to make judges elective and their terms short, there was also a tendency, stronger than ever before, to reduce the period of study and the scrutiny of examinations, required for admission to the bar and for graduation at the law schools. And, on the other hand, since the reaction against popularizing the judiciary, these periods of study have been generally increased and the examinations for admission to the bar have generally been made more severe. The law schools and the rules of court in the state of New York and the law school at Harvard university may, among others, be cited as examples of the true significance of the reaction.
—It can not be doubted that the evils which have attended an elective judiciary, as well as the causes which have enlisted supporters for it, have been in an influential manner connected with the growth of the spoils system in our executive administration. The patronage of bestowing the subordinate appointments under the judges has been a chief object on the part of the partisan managers who have generally dictated the judicial nominations. We have no space for presenting the facts But in New York, and in varying degrees elsewhere, this patronage has been apportioned and made sure of before the nominations have been made. The tender of the nominations has been accompanied with a demand of the patronage, and without the pledge of it the nomination would be withdrawn. In New York the subordinate positions under the judges have been crowded with supernumeraries in order to make places for the dependents of great politicians and for those henchmen who were effective at the polls. The shorter the terms and the more compliant the candidate. the more abundant and valuable is this patronage to the party manipulators. We may be sure this evil and kindred abuses will increase with the growth of cities and the development of luxury. Already in New York there are good reasons for believing that judicial nominations have very recently been made upon the condition of the payment of a large sum into the treasury of the party making them. If the reform methods already shown to be practicable (see CIVIL SERVICE REFORM) shall be introduced, according to which real tests of merit, and not mere official favoritism and partisan influence, will secure entrance to these subordinate places, the zeal of parties for judicial elections would be greatly abated. It would then be far easier to return to the method of appointment, whereby the growing evils of too many elective officers would be diminished, at the same time that some of the most objectionable accompaniments of appointments would be removed. For, it is equally true that the patronage of these subordinate places has been the cause of what has been most objectionable and corrupt when judges have been appointed as well as when they have been elected.
—The method of selecting judges by appointment has not been uniform. In several states they are selected by the legislature alone; in others they are nominated by the governor and confirmed by the senate; in others still they have been nominated by the governor and confirmed by the two houses of the legislature. Changes so frequent and methods so discordant are abundant proof that the whole subject needs careful study; and they make it probable that some better system may yet be devised for separating the judiciary from party politics and active interests, while uniting the better men of both parties in common efforts for advancing the fittest lawyers to the bench.
—Of all departments of the government the judiciary is that which needs to be most selfpoised and most independent of party politics and temporary interests and excitements And yet, if it is not by popular elections made directly dependent upon such influences, it is by appointments made to rest upon the favor of presidents, governors and legislators, by whom those influences are, both in theory and in fact, represented. In other words. our appointments for one department stand upon the two others as a basis. The problem is to give the judiciary an independent foundation, and yet as far as practicable a nonpartisan and non-representative foundation. There is also a great need of a more thorough supervision than we now have of the action of our judicial tribunals—of those of the lowest rank not less than those of the higher; and of the doings of sheriffs, coroners, marshals, constables, jailers, wardens, and of the whole prison system as well—the results of which should every year be presented in full detailed reports. The comparative expense and efficiency under each court and the other several classes of officers should be made public. Such reports would bring to light and hence defeat much extravagance, injustice and inefficiency. They would at the same time increase the official sense of responsibility. We have been treating the administration of justice, and especially the duties of subordinate judicial officers, as if they only concerned the localities. We have allowed something like secrecy and great confusion and injustice in our lower courts. May it not be practicable, especially in the larger states where the need will be greatest, to create a body which, in addition to performing these latter duties of supervision, shall be clothed with the authority (now accorded to governors) of making judicial nominations? It might also have the duty of presenting impeachments of judicial officers now given to legislative assemblies. It is very likely that strong objections will at first be made to so novel a mode of nominations. But it may be hoped that on reflection no objection can be sustained which would not be equally valid against a nomination by a governor, while various objections to the latter would be avoided. If such a body or board could be made up of three or five ex judges of the higher courts, (either to be elected, or to succeed to their places ex officio,) with terms so arranged that changes in the board should be gradual, it would seem that nominations might be made that would be in great measure free from party politics and mere local interests. Men long trained to judicial habits would not bring the political ambition, spirit or dependence of a newly elected governor. It would also be possible, and largely upon the basis of English statutes, to greatly increase the peril of making appointments and removals for unjustifiable reasons. We have thus far treated the power of nomination rather as a perquisite than as a trust, (see REMOVALS), and from this cause have sprung grave objections to the appointment of judges, which it is quite possible to remove by adequate legislation.
DORMAN B. EATON.
JUDICIARY (IN U. S. HISTORY). Under the colonial régime the judges held office at the king's pleasure. In Virginia, Maryland and New England the assemblies were at first the final court on appeal, and the New England assemblies for this reason assumed the special title of "the great and general court" (see ASSEMBLIES); but the crown ultimately succeeded in maintaining its right to appoint all the judges, though the assemblies retained the right to pay them. (See REVOLUTION.) When royal authority was overthrown, the control of the judiciary fell to the states. In Massachusetts. New York and Maryland their appointment was given to the governor and council; in the other states. to the legislature. There was no federal judiciary. and congress was dependent upon state courts for the definitive interpretation even of the articles of confederation. In territorial disputes between the states congress was itself a court, (see CONFEDERATION, ARTICLES OF, IX); and by the ordinance of April 3, 1781. congress established courts for the trial of piracies and felonies on the high seas; but there was no power in either ease to enforce decisions. This lack of any general judicial power, extending throughout the states, and empowered to define the boundaries of federal authority and to enforce its decisions by federal power, was one of the most serious evils of the confederation, and there was hardly any opposition in the convention to the proposition for supplying it by the creation of the judiciary system of the United States.
—I. ORIGIN. The "Virginia plan," as introduced, May 29, 1787, in the convention, proposed in its ninth resolution that "a national judiciary be established. to consist of one or more supreme tribunals and of inferior tribunals, to be chosen by the national legislature, to hold their offices during good behavior," and to have jurisdiction over all "questions which may involve the national peace and harmony." In committee of the whole, June 4, "the first clause, that a national judiciary be established, passed in the affirmative, nem. con." June 13 the jurisdiction of federal judges was limited to "cases which respect the collection of the national revenue. impeachments of any national officers, and questions which involve the national peace and harmony"; and their appointment was given to the senate. July 18, it was proposed to give the appointment to the executive, with the advice and consent of the senate, as was finally decided; but this was lost, July 21, and the judiciary resolution went unchanged to the committee of detail, Aug. 4, except that congress was to appoint inferior judges. The report of the committee, Aug. 6, did not essentially change the jurisdiction or constitution of the judiciary. It was not until the report of the committee of eleven, Sept. 4, that the judiciary took its present form: the appointment of the judges was given to the president with the confirmation of the senate; and the power of trying impeachments was taken from it and given to the senate. Its jurisdiction had previously been settled, Aug. 27, and was perfected by the committee on revision, appointed Sept 8. In their report it stands as it was finally adopted. (See CONSTITUTION ART. III.)
—In the constitution of the federal judiciary two points are to be specially noted, before considering its history and jurisdiction. 1. The supreme court itself was the only one which was imperatively called for by the constitution; inferior courts were to be such as "congress may from time to time ordain and establish"; but in all the courts the judges were to hold office during good behavior, and their salaries were not to be diminished during their continuance in office. Congress, by the judiciary act of 1789, organized the district and circuit court system of inferior tribunals, from which scarcely any essential departure has since been made. (See FEDERAL PARTY, I) The territorial courts are not a part of the judiciary contemplated by the constitution, but are organized under the sovereign power of the federal government over the territories; their judges, therefore, hold office for a term of four years. There are also consular courts, held by American consuls in foreign countries, such as Egypt and China, which have sometimes even acted as courts of probate; but these are entirely out of the scope of any constitutional view, and if defensible at all can only be defended under the treaty power. 2. To create a judiciary, and even to assign to it a jurisdiction, did not seem sufficient to bind down the state courts which had hitherto been sole possessors of judicial powers. The constitution, therefore, further provides (in article VI.) that the constitution, and the laws and treaties made by virtue of it, shall be "the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." This, the most sweeping and energetic of the very few distinctly national features of the constitution, seems hardly to have been taken at its full measure by the convention itself. There was no such provision in the "Virginia" or nationalizing plan; it was first introduced in the "Jersey plan," June 15; and when brought up, June 27, by Luther Martin, then the most ultra of particularists, "was agreed to, nem. con." Nor was there any more opposition to the two slight changes, Aug. 23 and 25, which brought the clause into exactly its present form. It seems to have been regarded mainly as a repetition of the promise of the states "that they shall abide by the determinations of the United States in congress assembled," which had been the only guarantee for the faithful observance of the articles of confederation. It would probably have amounted to no more than this but for the coincident creation of the federal judiciary. The conjunction, accidental or purposed, of the two provisions had an effect that could hardly have been anticipated. By defining law, as well as law courts, it vested in the federal judiciary the power to define the boundary line between federal and state powers, and bound the state judges to acquiescence. When the consequences became apparent, an instant revulsion followed. Jefferson and the whole democratic party at once denied the "power of the federal government thus to define its authority"; and on their accession to power in 1801 the "supreme law" clause became a practical nullity until toward 1820, when the judiciary, under the lead of Chief Justice Marshall, again began its assertion. It met with renewed opposition, which was gradually weakened until the close of the rebellion left the "supreme law" clause universally acknowledged as above stated. (See KENTUCKY RESOLUTIONS, CHEROKEE CASE, NULLIFICATION, PERSONAL LIBERTY LAWS.) However necessary it may be, it is certainly open to one criticism. The judiciary has always held that it can not interfere with the political exercise of power by congress or the president. It is evident, then, that there is a large class of cases in which the supreme court, by its own decisions, can not and will not act as the "interpreter of the constitution," (see STATE SOVEREIGNTY, SECESSION), and in these cases congress and the president must be the final judges of their own powers. The United States is thus practically made a national democracy, limited only by its own desire for representative institutions and for the preservation of state lines. To some minds this has always seemed a national tyranny; to others, the surest method of encouraging the political self-control of congress, the president, the state governments, and the national democracy itself.
—II. HISTORY. One of the first subjects which claimed the attention of congress under the constitution was the organization of the judiciary. A committee to prepare a bill for that purpose was appointed in the senate, April 7, 1789, the day after the first permanent organization of that body. The first judiciary act became law Sept. 24, 1789. It provided for a supreme court, to consist of a chief justice and five associate justices, and to hold two sessions annually, in February and August, at the seat of government; for district courts, each to cover within its jurisdiction a state, or some defined part of a state, as the district of Maine in Massachusetts, or the district of Kentucky in Virginia; for circuit courts, each to cover within its jurisdiction several districts, to hold two courts annually in each circuit, and to be presided over by one of the supreme court justices and the district judge of the district; for a marshal and an attorney for each district; for an attorney general of the United States; and for forms of writ and process. This organization, produced without any precedents as guides, has remained substantially unaltered to the present day. The number of supreme court justices has been gradually enlarged to nine, eight associate justices and a chief justice; a distinct class of circuit judges has been created; the territorial limits of the circuits have been variously modified; the number of districts has been increased from fifteen to fifty-three; but the organization is still the same.
—The only doubtful point in the organization of the judiciary was, whether the circuit courts, presided over by supreme court justices, were "inferior courts," such as congress was authorized to establish. This, with other reasons, led to the passage of the act of Feb. 13, 1801, which organized a distinct class of circuit courts, with sixteen justices to preside over them. The appointees were federalists; their clerks and other officers were of the same party; and the whole bill was denounced by the democrats as a federalist scheme to provide offices for life for a number of federalist politicians who were now to lose all hold on power. The story that President Adams was kept busy until midnight of his last day of office in signing commissions under the act, seems to have given strength to the popular clamor for the removal of the "midnight judges." It was difficult to find a way to the removal, for the constitution distinctly provided that the term of all judges should be during good behavior. The democratic majority, however, decided that the official existence of the judges was bound up with that of their courts, and the act of March 8, 1802. got rid of the judges by abolishing their courts and restoring the old circuit court system. The ousted judges petitioned congress for employment or for pay, but were refused both.
—Suits "between a state and citizens of another state" are placed by the constitution under the jurisdiction of the supreme court. Suits were at once begun in the supreme court against various states, but it was not until February. 1793, in the case of Chisholm vs. Georgia, that the court decided that such suits would lie against a state as against any other corporation. Georgia protested, and refused to appear; judgment by default was given for the plaintiff in February, 1794; but its execution was stopped by the adoption of the 11th amendment. (See CONSTITUTION, III.) The jurisdiction of the court was thus limited to suits in which a state is plaintiff and a citizen or citizens of another state defendants.
—Among the last appointments of President Adams were those of certain justices of the peace in the District of Columbia which the incoming president, Jefferson, refused to complete. An attempt was made through the supreme court to compel completion of the appointments. In this case, Marbury vs. Madison (the secretary of state), the court laid down the rule, to which it has always adhered, that "questions in their nature political, or which are by the constitution and laws submitted to the executive, can never be made in this court." By observing this rule the judiciary has successfully avoided any clashing with the other departments of the government. (See EXECUTIVE. III)
—For the first thirty years of its history the federal judiciary came very little into contact or antagonism with state sovereignty or state courts. The first occasion of heart-burning was removed by the 11th amendment, and thereafter the supreme court carefully avoided any conflict until 1806, when, for the first time in our history, a state law was "broken." (See YAZOO FRAUDS). The war of 1812 increased the national feeling so widely that the federal judiciary could not but reflect it. The first case which brought the change to clear view was that of Martin vs. Hunter's Lessee, in February, 1816. The 25th section of the act of 1789 had given a right of appeal to the supreme court from a final judgment of a state court in what are now often called "federal questions." that is, in questions whose decision invalidates any law or treaty of the United States. or upholds a state law claimed to be repugnant to "the constitution, treaties or laws of the United States." In February, 1813, the Virginia court of appeals refused to obey a mandate of the supreme court in an appeal of this kind, on the ground that no act of congress could constitutionally give any such right of appeal. Story's opinion in the above case in 1816, and still more Marshall's in the case of Cohen vs. Virginia, in February. 1821, upheld the constitutionality of the 25th section. and in doing so brought out for the first time to full view the "supreme law" clause of the constitution, with all its consequences. These, and the almost contemporary bank cases of McCulloch vs. Maryland, in February, 1819, and Osborn vs. The Bank of the United States, in February, 1824, (see BANK CONTROVERSIES, III), roused immediate opposition. Their root doctrines were ably controverted by Judge Roane, of Virginia, in a series of articles in the Richmond "Enquirer." May 10-July 13, 1821, over the signature of "Algernon Sidney", were warmly dissented from by at least one of the supreme court justices; and organized opposition to them in several of the states was only checked by the overshadowing importance of the Missouri question. (See COMPROMISES, IV.) Nevertheless the federal judiciary swept on to the assumption of its full limits of power. In 1827, in the Ogden case, it overthrew the insolvency laws of the states; and in 1831 it brought the state of New York before it, at the suit of New Jersey, in order to decide a disputed question of boundary. In January, 1838, the "Democratic Review" thus angrily summed up the progress of the federal judiciary since the beginning of the century: "Nearly every state of the Union, in turn, had been brought up for sentence; Georgia, New Jersey, Virginia, New Hampshire. Vermont, Louisiana, Missouri, Kentucky, Ohio, Pennsylvania, Maryland, New York, Massachusetts, South Carolina. (Delaware just escaped over Black-bird creek). all passed through the Caudine forks of a subjugation which has more than revived the suability of states. Beginning with Madison's case, there are nearly forty of these political fulminations from 1803 to 1834, viz.: one each in 1806, 1812 and 1813, two in 1815, one in 1816, four in 1819, three in 1820, two in 1821, two in 1823, two in 1824, one in 1825, four in 1827, five in 1829, three in 1830, two in 1832, two in 1833, and one in 1834; a great fabric of judicial architecture as stupendous as the pyramids and as inexplicable." The development was undoubtedly checked by the failure of the supreme court to compel obedience by Georgia in 1832 (see CHEROKEE CASE); but it was entirely arrested for a time by the political revolution in the court itself in 1835-7. In this brief space the seats of two associate justices and the chief justice were vacated by death or resignation, two new justiceships were created, and the appointments by Jackson and Van Buren completely changed the complexion of the court. In 1845-6 three new vacancies occurred which were filled by democratic appointments, and the court thereafter was rather a check than a provocative to the advance of the nationalizing spirit. (See NATION, III.; DRED SCOTT CASE.)
—The outbreak of the rebellion in 1861 found the national government divided in politics: congress and the president were republican; the supreme court was unanimously democratic, and two of its members, Catron and Wayne, were from the seceding states of Tennessee and Georgia respectively. Nevertheless, except in one instance (see HABEAS CORPUS), there was no sign of variance; the same court which had pronounced the Dred Scott decision unhesitatingly upheld the power of the national government to prosecute war against the rebellion. (See INSURRECTION, I.) The circuits in the seceding states were suspended during the war and after its close until (in 1867) martial law had ceased to operate, for the obvious reason, as given by Chief Justice Chase, that "members of the supreme court could not properly hold any court the proceedings or process of which was subject, in any degree, to military control." Circuit courts were held by various district judges in seceding states, but the supreme court declined to consider appeals from them.
—The first reconstruction act, as originally introduced, Feb. 6, 1867, prohibited the granting of writs of habeas corpus in the insurrectionary states without military permission; as passed, March 2, 1867, it contained no such provision, but reached much the same end by directing the punishment of disorders and violence to be by military commission. (See RECONSTRUCTION.) As the process of reconstruction went on, its leaders began to entertain more misgivings as to the possible action of the supreme court. One McArdle, in Mississippi, had obtained a writ of habeas corpus from a federal circuit judge to the military commission which was trying him. The circuit court refusing to discharge him, he appealed to the supreme court, and it seemed likely that the fate of the whole scheme of reconstruction would be involved in the final decision of the court. An act of congress was therefore passed repealing that section of the act of Feb. 5, 1867, which authorized such appeals in habeas corpus cases. The bill was vetoed, March 25, 1868, and passed over the veto. A bill also passed the house to forbid a declaration of the unconstitutionality of any act of congress by the supreme court, unless two thirds of the justices should concur; but it failed in the senate.
—The misgivings of congressional leaders had been unfounded. In December, 1868, the court fully sustained reconstruction by congress, in the case of Texas vs. White. It was already becoming republican in its sympathies by new appointments, and the continued control of the appointing power by the republican party made it progressively more so, until there is now (1882) but one democratic justice in the court, S. J. Field. In December, 1869, there was still some doubt as to the political leanings of the court. It then decided against the constitutionality of the action of congress, in 1862, in giving a legal tender character to the paper currency, but in March following, a new judgeship having been created by law and another new judge having been appointed to fill a vacancy, the legal tender question was again introduced, and the previous decision was reversed by the votes of the two new judges. In 1873, in the slaughter-house cases, the court began its construction of the war amendments, and upheld the validity of congressional action under them. This work it has not yet carried to its completion. (See CONSTRUCTION, III.)
—The powers and duties of the district and circuit courts are great, but not extraordinary. Those of the supreme court can not be paralleled or approached by those of any other judicial body which has ever existed. The imagination of a lawyer of earlier times could hardly have soared to the ideal of a court empowered to wipe out at a touch the legislation not only of great states like New York, equal in population and wealth to at least a kingdom of the second class, but even of that which is now the most powerful republic, and will very soon be the most powerful nation, of the world. And the powers of the court are not based on its overmastering force, for it has always carefully avoided the use or even the suggestion of force. It is, said Marbois long ago, a power "which has no guards, palace or treasures, no arms but truth and wisdom, and no splendor but its justice and the publicity of its judgments" Its controlling influence, nevertheless, is firmly established, though very charily used. Congress and the president would resort to almost any expedient rather than have the supreme court formally pronounce against them; a law which this court has finally declared unconstitutional can be disobeyed or set at defiance with impunity all over the country, for no other court would allow a conviction under it; and, apart from both these considerations, the popular reverence for the court's wisdom and discretion is so deeply fixed that its final decision has been sufficient, as in the case of the general election law in 1879, to control even the passionate feeling of a great national party. This influence is due not only to the distinguished ability of the members of the court, but to their invariable integrity, freedom from partisan feeling, and self-restraint. Throughout the whole history of the court there has never been the faintest suspicion upon the integrity of the supreme court justices; and this is equally true of the inferior courts, with the single exception of one district judge in Louisiana in 1872-3. (See LOUISIANA.) Nearly every justice has been prominent in polities before his appointment, and some of them, as Taney, Barbour, Woodbury and Chase, very actively; but all have dropped partisanship on entering the court. The drift of the court this way or that has been due to no desire for party advantage, but to the general cast of mind of its majority for the time being. Even the Dred Scott decision must fairly be ascribed to the honest conviction of the court. The self-restraint of the court has been equally conspicuous. Its greatest period of amplification, 1815-35, was not a usurpation, but a long delayed assumption of its legitimate powers; and since that time it has not hesitated to decide, again and again, in favor of states and individuals and against the federal government or even against the jurisdiction of the supreme court itself.
—The chief justices have been as follows, with the dates of their appointments: John Jay, of New York, Sept. 26, 1789; John Rutledge, of South Carolina, July 1, 1795 (rejected by the senate); Wm. Cushing, of Massachusetts, Jan. 27, 1796 (declined); Oliver Ellsworth, of Connecticut, March 4, 1796; John Jay, of New York, Dec. 19, 1800 (declined); John Marshall, of Virginia, Jan. 31, 1801; Roger Brooke Taney, of Maryland, March 15, 1836; Salmon Portland Chase, of Ohio, Dec. 6, 1864; Morrison R. Waite, of Ohio, Jan. 21, 1874. The first associate justices, appointed Sept. 26, 1789, were John Rutledge, Wm. Cushing, John Blair, of Virginia, James Wilson, of Pennsylvania, and Robt. H. Harrison, of Maryland. The court is now constituted as follows: Chief Justice Morrison R. Waite, of Ohio, Jan. 21, 1874; Samuel F. Miller, of Iowa, July 16, 1862; Stephen J. Field, of California, March 10, 1863; Joseph P. Bradley, of New Jersey, March 21, 1870; John M. Harlan, of Kentucky, Nov. 29, 1877; Wm. B. Woods, of Georgia, Dec. 21, 1880; Stanley Matthews, of Ohio, May 12, 1881; Horace Gray, of Massachusetts, Dec. 20, 1881; Samuel Blatchford, of New York, March 13, 1882. Among the associates in the intervening period are the following: Wm. Paterson, of New Jersey, 1793-1806; Samuel Chase, of Maryland, 1796-1811 (see IMPEACHMENTS, II.); Bushrod Washington, of Virginia, 1798-1829; William Johnson, of South Carolina, 1804-84; Thomas Todd, of Kentucky, 1807-26: Brockholst Livingston, of New York, 1806-23; Joseph Story, of Massachusetts, 1811-45, (see his name); Gabriel Duval, of Maryland, 1811-36; Smith Thompson, of New York, 1823-43; John McLean, of Ohio, 1829-61; Henry Baldwin, of Pennsylvania, 1830-44; James M. Wayne, of Georgia, 1835-67; Philip P. Barbour, of Virginia, 1836-41; John Catron. of Tennessee, 1837-65; Peter V. Daniel, of Virginia, 1840-60; Samuel Wilson, of New York, 1843-72; Levi Woodbury, of New Hampshire, 1846-51; Robert C. Grier, of Pennsylvania, 1846-69; Benj. R. Curtis, of Massachusetts, 1851-7; Nathan Clifford, of Maine, 1858-82; David Davis, of Illinois, 1862-77; Noah H. Swayne, of Ohio, 1862-81.
—III. SUPREME COURT. No attempt is here made to give the practice of the federal courts. For information under this head the reader is referred to the treatises cited among the authorities It is only intended to give a general idea of the jurisdiction of the court.
—1. Original Jurisdiction. According to the 3d article of the constitution the court is to have original jurisdiction, that is, suits are to be begun in this court, in but two classes of cases, those which "affect" ambassadors, other public ministers, and consuls, and those in which a state shall be a party. Cases "affect" an ambassador only by personally concerning him. By the 11th amendment the state can only be a party as plaintiff; but the power to issue writs of error to state courts often brings a state before the supreme court as defendant. The judiciary act of 1789 undertook to give the supreme court further original jurisdiction in the issue of writs of mandamus, but the court itself, in the case of Marbury vs. Madison, decided that congress had no such power.
—2. Appellate Jurisdiction. This necessarily covers the original jurisdiction of the district and circuit courts, and cases under it come into the supreme court on appeal. It includes "all cases of admiralty and maritime jurisdiction; controversies to which the United States shall be a party; controversies between citizens of different states, and between citizens of the same state claiming lands under grants of different states;" and "federal questions." that is, "all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." How far congress may also give to inferior courts any part of the supreme court's original jurisdiction, is an unsettled question.
—The act of 1789 provided for the admiralty jurisdiction of the inferior courts; but it was long held that this extended no further than the ebb and flow of the tide. The growth of inland navigation began to suggest the idea that the admiralty jurisdiction should properly extend to navigable rivers and lakes also. In 1825, in the case of The Steamboat Thomas Jefferson, the supreme court, following English definitions, declined to assume any inland admiralty jurisdiction. The act of congress of Feb. 26, 1845, gave such jurisdiction, in cases of tort and contract, in the case of vessels of more than twenty tons engaged in commerce on lakes and navigable waters between different states or with a foreign nation. In 1851, in the case of The Genesee Chief, the court upheld the act, and federal courts at once proceeded to act under it. Since that time, however, the court has swerved toward the opinion that the admiralty jurisdiction had never been limited to the ebb and flow of the tide; that neither the act of 1789 nor that of 1845 was intended as a restraining act; and that inland maritime jurisdiction is fully conferred by the constitution itself. This has been the fixed doctrine of the court since 1866-8.
—The idea that the federal courts possessed a common law criminal jurisdiction was held by the first corps of supreme court justices. and was not formally disavowed for many years. (See ALIEN AND SEDITION LAWS.) Since 1810 the criminal jurisdiction of the judiciary has been limited to offenses against acts passed under such powers of congress as those to lay and collect taxes, etc., to regulate commerce, to punish counterfeiting and felonies committed on the high seas, and to govern the territories. (See CONSTITUTION, ART. I.; CONGRESS, POWERS OF.) The 14th and 15th amendments, which give congress power to enforce them by appropriate legislation, have enlarged the criminal jurisdiction of the judiciary also.
—IV. CIRCUIT COURTS. The original jurisdiction of these courts comes under the appellate jurisdiction of the supreme court. From the final decision of the circuit court, when the matter in dispute exceeds the value of $5,000, an appeal lies to the supreme court. The amount was $2,000 until May 1, 1875, when it was increased by the act of Feb. 16, 1875. Patent and revenue cases are not limited as to amount involved.
—The number of associate justices was originally five; was increased to six in 1807; was increased to eight in 1837; was increased to nine in 1863; was decreased to eight in 1865, and to seven in 1867; and was increased to eight in 1870.
—Besides the associate justices of the supreme court, who, with the district judges, were to hold circuit courts, there is now a distinct class of circuit judges, nine in number. In each circuit, court may be held by the associate justice alone, by the circuit judge alone, by the two together, or by either one with the district judge.
—Each circuit is composed of several states; the process of the court, however, is not limited by circuit lines, but runs everywhere throughout the territory of the United States. Territorial arrangements have varied from time to time. The following gives the number of the circuits in 1882, the states composing each, and the names of the associate justice and circuit judge of each: 1. Maine, New Hampshire, Massachusetts and Rhode Island—Horace Gray, John Lowell; 2. Vermont, Connecticut and New York—Samuel Blatchford, William J. Wallace; 3. New Jersey, Delaware and Pennsylvania—Joseph P. Bradley, Wm. McKennan; 4. Maryland, Virginia, West Virginia and North and South Carolina—Chief Justice Waite, Hugh L. Bond; 5. Georgia, Florida, Alabama, Mississippi, Louisiana and Texas—Wm B. Woods, Don A. Pardee; 6. Ohio, Michigan, Kentucky and Tennessee—Stanley Matthews, John Baxter; 7. Indiana, Illinois and Wisconsin—John M. Harlan, Thomas Drummond; 8. Minnesota, Iowa, Missouri, Kansas, Arkansas, Nebraska and Colorado—Samuel F. Miller, George W. McCreary; 9. California, Oregon and Nevada—Stephen J. Field, Lorenzo Sawyer.
—V. DISTRICT COURTS. The territorial unit for these courts is in general still the state. but the growth of population, or other reasons, has caused the division of the following states into more than one district: Alabama, 3; Arkansas, 2; Florida, 2; Georgia, 2; Illinois, 2; Michigan, 2; Mississippi, 2; Missouri, 2; New York, 3; North Carolina, 2; Ohio, 2; Pennsylvania, 2; Tennessee, 2; Texas, 3; Virginia, 2; Wisconsin, 2 From these courts an appeal lies to the circuit court where the matter in dispute is of a greater value than $500, and a "federal question" is involved.
—VI. TERRITORIAL COURTS. Though these courts are not strictly a part of the federal judiciary, as provided for in the constitution, an appeal lies from them to the supreme court. The history and practice of this class of judicial bodies will be found very fully treated in the case of Clinton vs. Englebrecht, cited among the authorities, to which the reader is referred.
—VII. PROPOSED AMENDMENTS Space will not allow any consideration of the various changes which have been proposed in judiciary legislation, with a view to relieving the supreme court of some portion of its rapidly accumulating business. It is only designed to notice the amendments to the constitution which were proposed at various times in the first forty years of our history for the purpose of vitally altering the constitution of the judiciary. No such change has been seriously proposed since 1840.
—1. The failure of the Chase impeachment (see IMPEACHMENTS, II.) brought out the following amendment, proposed in the house by John Randolph, March 1. 1805 "The judges of the supreme and all other courts of the United States shall be removed by the president, on the joint address of both houses of congress. requesting the same, anything in the constitution of the United States to the contrary notwithstanding" It was postponed to the following session, was again introduced Feb 24, 1806, but was never brought to a final vote. It was reintroduced in the house, Jan. 29, 1811, by Wright, of Maryland, but the house refused to consider it; again in the senate, March 18, 1816. by Nathan Sanford, of New York, but without success.
—2. The revival of the "supreme law" clause by the supreme court, heretofore referred to, caused the introduction in the senate, Jan. 14, 1822, by Richard M. Johnson, of Kentucky, of the following amendment: "That in all controversies where the judicial power of the United States shall be so construed as to extend to any case in law or equity, arising under the constitution, the laws of the United States, or treaties made, or which shall be made, under their authority, and to which a state shall be a party; and in all controversies in which a state may desire to become a party, in consequence of having the constitution or laws of such state questioned, the senate of the United States shall have appellate jurisdiction." The amendment was not brought to a vote. Johnson's speech upon it, as cited among the authorities below, is a very convenient résumé of the cases up to its date in which the federal judiciary had come into conflict with the states.
—3. Propositions were made in the house, Jan. 28, 1831, and Jan. 24, 1835, to amend the constitution by limiting the term of office of federal judges; but the former was voted down, and the latter was not considered. These ended the attempts to change the basis of the existence of the federal judiciary. (See CONSTRUCTION, III.; STATE SOVEREIGNTY; SECESSION; NULLIFICATION.)
—See 1 Stat. at Large (Bioren and Duane's edit.), 67, 73, 670 (ordinance of April 5. 1781): I. 5 Elliot's Debates, 128, 131, 155, 192, 203, 380, 478, 507, 564; II. 1 Stat. at Large, 73 (act of Sept. 24, 1789); 2 Stat. at Large, 89, 132 (act of Feb. 13, 1801, and repealing act); 2 Bancroft's History of the Constitution, 195; 2 Benton's Debates of Congress, 427 (and see index under "Judiciary"); 2 Dallas, 419 (Chisholm vs. Georgia); 1 Cranch, 137 (Marbury vs. Madison); 1 Wheat., 304 (Martin vs. Hunter's Lessee); 6 Wheat., 264 (Coheus vs. Virginia); 4 Wheat., 316 (McCulloch vs. Maryland); 9 Wheat, 738 (Osborn vs. Bank); Letters of Algerrion Sidney (collected); 4 Jefferson's Works (edit. 1829), 371; 12 Wheat., 264 (Ogden vs. Saunders); 1 Democratic Review, 143; 4 Elliot's Debates, 523, Tyler's Life of Tancy, 432; Schuckers' Life of Chase, 533; 7 Wall., 700 (Texas vs. White); authorities under RECONSTRUCTION; Flanders' Lives of the Chief Justices; Van Santvoord's Lives of the Chief Justices; III.-VI. The Federalist, 22, 77; Story's Commentaries, (edit. 1833), § 1567; 2 Wilson's Law Lectures, 201; Sergeant's Constitutional Law (1822); Grimke's Nature of Free Institutions, 379; Duponceau's Jurisdiction of U. S. Courts (1824); Law's Jurisdiction of U. S. Courts (1852); G. T. Curtis' Jurisdiction of U. S. Courts (1854); A. Conkling's Treatise on U. S. Courts (1856); Murray's Proceedings in U. S. Courts (1868); Boyce's Manual of Practice in U. S. Circuit courts (1868); Abbott's Treatise on U. S. Courts (1869); Phillips' Statutory Jurisdiction and Practice of U. S. Courts (1872); Miller's Supreme Court of the United States (1877); B. R. Curtis' Jurisdiction of U. S. Courts (1880); 13 Wall., 434 (Clinton vs. Englebrecht); VII. 3 Benton's Debates of Congress, 553; 4 ib., 351; 5 ib., 468; 7 ib., 145 (Johnson's speech); 11 ib., 303.
JULIAN, George W., was born near Centerville, Indiana, May 5, 1817, was the free-soil candidate for vice-president in 1852, was a free-soil congressman 1849-51, and a republican congress man 1861-71.
JURY, Trial by. The jury system, both as a judicial and as a political institution, is one of the most conspicuous features in the modern state, and it is peculiarly the offspring of the English people. It has been carried into the remotest parts of the earth and established there by Englishmen, and in those parts of the civilized world into which it has not been introduced by them, it has been established by others, who confessedly adopted it from England. Our own writers have made the system of trial by jury the subject of extravagant praises, and those of other peoples have lauded it as one of the foundations of English greatness and of English liberty. De Tocqueville, for instance, says, "If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under the Tudors; and the civil jury did in reality, at that period, save the liberties of England." Other writers have in like manner exalted it, and at every new distribution of political power on the continent, trial by jury has been specified as one of the rights of the people, the introduction or extension of which has been most loudly demanded.
—There have been many theories of the origin of the jury, which need here only to be referred to; they are elaborated in the works the titles to which are given at the end of this article. From them it will be seen that the jury has been derived from the institutions of the Greeks and Romans, as well as from the earliest tribunals of the Teutonic peoples, and that analogies have been carefully drawn between it and the ancient Scandinavian assemblies. Blackstone thinks it was in use "among the earliest Saxon colonies"; it was long popularly supposed to have been established as a completed institution by Alfred the Great, and it has been traced to the assises de Jerusalem of Godfrey de Bouillon, and thought to have been introduced into England by the Normans. Without considering any of these theories, and without undertaking to fix the very time or place of the origin of the jury system, it will be sufficient for the purposes of this article to begin with that in its history which is certain, and to give a brief account, I., of its development from that point; II., of its present form, III., of its extension; and IV., of its advantages, its evils and the remedies for them.
—I. History. The jury was undoubtedly developed from the early judicial customs of the Teutonic peoples, and can be directly connected with the system of compurgation which prevailed among the Anglo Saxons. Its positive history may be said to begin with a trial between Gundolph, the bishop of Rochester, and Pichot, one of the king's sheriffs, of the title to certain lands in Kent, of which the ownership was in dispute between the king and St. Andrew. This is the first case of which we have any record, in which the decision was rendered by a limited number of suitors, or pares curiœ, upon oath. From the record it appeared that the king commanded that all the men of that county, Kent, should be convened, in order to decide which had the better title. But they, being intimidated by the sheriff, affirmed it to be the land of the king rather than that of St. Andrew. The bishop of Baieux, the king's justiciary, however, did not trust to their decision, and commanded, that if they knew what they said to be true, they should select twelve of their number, who should confirm by their oath that which all had said; but the twelve, after they had retired to consult and had been alarmed by a message from the sheriff, swore on returning, that what they had already said was true. And so the land remained in the king's hands. But in the same year, a monk by the name of Grim came to the bishop, and, having heard what the twelve had sworn, with wonder and detestation asserted that they were all of them perjured. For Grim himself had been the overlooker of the lord of Fracheham, and had taken services and customs for that manor, and had had one of those who had so sworn under him in the same manor. This was communicated by the bishop of Rochester to the bishop of Baieux, to whom Grim gave the same account. The justiciary then caused one of those who had so sworn to come before him, who, when he had come, falling at the bishop's feet, confessed his guilt. Another, who had sworn the first, made the like confession. The rest of the jurors were then, by the order of the bishop as justiciary, sent to London. All being assembled at London, it was adjudged both by French and English that all the twelve were perjured. On this condemnation the bishop of Rochester had his land again. It appears also, from this account, that twelve others de melioribus comitatus were called to account for having confirmed what the others had sworn, and that when these affirmed that they had not agreed with those who had so sworn, the bishop said they should prove their assertion by the ordeal of iron; this they promised to do, but being unable to perform their promise, were by the judgment of the county fined in the penalty of £300 to the king. (Textus Roffensis, Thorpe. 31.) Mr. Forsyth insists that the twelve here were merely compurgators, while Mr. Starkie thinks the case a precedent which must have had much weight, and which established if it did not introduce the trial by jury. The weight of authority, as well as the apparent probabilities of the case, indicate that the practice or custom described in the foregoing account was the beginning from which that institution which was incontestably the trial by jury was developed by the Norman lawyers during the time of the Plantagenets.
—The next landmark is the treatise of Glanvil, which was written about 1187. Glanvil speaks of trial by ordinary assize and jurata patriœ as forms of trial already in existence, and thus describes the grand assize which has been recently established as a method of trying the title to land, rights of advowson, and claims of vassalage. "This," he says, "is a certain royal benefit bestowed upon the people and emanating from the clemency of the prince, with the advice of his nobles—regale beneficium clementia principis populis indultum. So effectually does this proceeding preserve the lives and civil condition of men, that every one may now possess his right in safety at the same time that he avoids the doubtful event of a duel. This legal institution flows from the most profound equity * * *; by so much as the testimony of many credible witnesses in judicial proceedings preponderates over that of one only, by so much greater equity is this institution regulated than that of the duel; for, since the duel proceeds upon the testimony of one juror, this constitution requires the oaths of twelve lawful men at least." (Glanvil, lib. ii., c. 7.) He then continues to describe the workings of the grand assize as follows: "When the assize proceeds to make the recognition, the right will be well known either to all the jurors, or some may know it and some may not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the matter, and this be testified upon their oaths in court, recourse must be had to others until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter and some not, the latter are to be rejected, and others summoned to court, until twelve at least can be found who are unanimous. But if some of the jurors should decide for one party, and some of them for the other, then others must be added until twelve at least can be obtained who agree in favor of one side. Each of the knights summoned for this purpose ought to swear that he will neither utter that which is false nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard or from the declaration of their fathers, and from other sources equally entitled to credit as if falling within their own immediate knowledge."
—From this description it is clear that at this time the jurors of the grand assize were mere recognitors, that is, that they were to deliver their verdict upon their own knowledge of the facts in question. In order to obtain the required unanimous verdict of the twelve, resort was had to the practice of afforcing, by which was meant, dropping jurors who were ignorant of the facts in cases of disagreement, and adding others in their stead, until twelve were obtained who were unanimous. Afforcement, however, appears to have very early fallen into disuse, and there was some doubt whether thereafter the verdict should be rendered by a majority of the original jurors—as was done, for instance, in one case in 20 Edw. III., in which C. J. Thorpe took a verdict from eleven of the jurors, for which, however, he was reproved—or whether a unanimous verdict was required, which latter rule seems to have become established during the reign of Edward III. The names of those who were to serve on the grand assize being known beforehand, endeavors to make sure of a favorable verdict were naturally to be anticipated, and in proof of this fact it is to be noticed that three different statutes of Edward III. are directed against the bribing of jurors.
—The precise time of the establishment of the grand assize is not known, but the use of recognition by twelve or more witnesses is provided for in the constitutions of Clarendon, 1164, in cases of dispute as to the title of lands between a layman and a clerk, and the statute of Northampton, 1176, provides for the recognition of the claims of heirs before the itinerant justices. The grand assize was, it has been suggested, only the technical form of the jurata patriœ, which was a form of trying the title to lands by the swearing as to the same by the whole community, and afterward by a number selected from the community. Certainly the distinction between the jurata patriœ and the grand assize seems to have been very early lost, and both became known as the jury. With the establishment of justices in Eyre and the increasing number of suitors who resorted to the king's courts, the grand assize superseded the ordinary assize referred to by Glanvil, and recognition of facts in the manner described by him became part of its regular business. Trials in these courts were both by assizes and juries, but the former gradually fell more and more into disuse, although as a distinct manner of trial it existed until 1838, and was only abolished by 3 and 4 Wm. IV., c. 27.
—The writers succeeding Glanvil are Bracton, Britton, and the author of Fleta, by each of whom the jury of the assize is further described. Bracton, stating the grounds for exemption from service on the jury, says, that the same causes which disqualified a man from testifying were good grounds of objection to his serving on the assize, and he enumerates as such, conviction for perjury, serfdom, consanguinity, affinity, and enmity or close friendship with the other party; and he continues, the objections having been disposed of, the jury were sworn and retired to consult upon the verdict, and until they had agreed no one was allowed access to them. If they could not agree, new recognitors, equal in number to the minority, were added, and the verdict was then rendered by the twelve who were found to agree. If, however, any of the jurors were ignorant of the facts of the case, others who knew the truth, were added in their stead, and the truth was then declared. Down to the time of the writers last mentioned the jurors were, as we have seen, mere recognitors deciding upon their own knowledge. The next step forward consisted in adding to their own knowledge that of others, thus making the jurors judges of evidence; but before considering this, it is proper to examine the jury for the presentment and trial of criminals. Its origin is not clear, but from the time of Henry IV. its development is marked by stages which correspond to those in the history of the assize. It has been supposed that a law of Ethelred, which is still extant, was the source both of this and of our whole system of jury trial. That law reads as follows: "Et habeantur placita in singulis Wapentachiis; et exeant seniores xii. tayni et prepositus cum eis, et jurent super sanctuarium quod eis dabitur in manus quod neminem innocentem velint accusare vel noxium concelare et omnis infamatus homo vadat ad triplex ordalium, vel reddat quadruplum." But while the whole jury system can not be traced to this statute, as some writers seem to have supposed, the jury provided for by it may certainly be considered the foundation of the subsequent grand jury. The criminal jury has also been traced to this statute, but not definitely, and while its origin may not be determined, its history, says Mr. Stubbs, from the year 1166 is clear, and he continues: "By the assize of Clarendon, inquest is to be made through each county and through each hundred, by twelve lawful men of the hundred and by four lawful men of each township, by their oath, that they will speak the truth. By these, all persons of evil fame are to be presented to the justices. and then to proceed to the ordeal. If they fail in the ordeal, they undergo the legal punishment; if they sustain the ordeal, yet as the presentment against them is based on the evidence of the neighborhood on the score of bad character, they are to abjure the kingdom. The jury of presentment is reduced to a still more definite form. and receives a more distinct representative character in the assizes of Northampton, and in the articles of visitation of 1194. In the latter capitulary the plan used for nominating the recognitors of the grand assize is applied to the grand jury, for so the body now constituted may be termed. In the first place, four knights are to be chosen for the whole county, who by their oath shall choose two lawful knights of each hundred or wapentake, or, if knights be wanting, legal and free men, so that these twelve may answer under all heads concerning the whole hundred or wapentake. The heads on which they answer include not only the assizes which have been already referred to in connection with the jury, but all the pleas of the crown, the trial of malefactors and their receivers, as well as a vast amount of fiscal business. The latter development of these juries does not fall under our present inquiry, but it may be generally stated thus. At an early period, even before the abolition of ordeal by the Lateran council of 1215, a petty jury was allowed to disprove the truth of the presentment, and after the abolition of ordeal that expedient came into general use. The further change in the character of the jurors by which they became judges of fact instead of witnesses, is common to the civil and criminal jury alike." (Stubbs' "Constitutional History of England," vol. i., chap. xiii.)
—We have now only to follow the course of that change. The first step toward it was, as has been seen, the addition of witnesses to the jury. The verdicts of both the jurata and the assize were in the beginning based exclusively upon the personal knowledge of the jurors. Naturally, however, each juror must have more or less supplemented his own knowledge by that of his cojurors. This would be especially true in cases where the issues were complicated, and the appreciation of this inevitable fact very soon created two apparent exceptions to the rule that verdicts were rendered only upon the personal knowledge of the jurors. These were, first, the trial per patriam et testes, which had become a common practice during the reign of Henry III., in cases where the question was of the existence of a deed; and, second, the trial per sectam, which appears to have grown up between the time of Glanvil who does not mention it, and of Bracton who describes it. The trial per patriam et testes was at first allowed only in cases where deeds were in dispute, and it grew naturally from the early practice of deciding such cases by single combat, in which one of the attesting witnesses served as the plaintiff's champion. When the single combat fell into disuse, the writ to the sheriff, in those cases which had formerly been decided in this manner, commanded him to summon the witnesses named in the deed, which had been brought into court, together with a certain number of witnesses, to make recognition as to the fact in dispute. Subsequently merchants and traders were in like manner allowed to prove the fact of payment or of debt, per testes et patriam. The trial per sectam was where a party had made his claim inde producit sectam, i.e., offered to produce a number of witnesses who had been present at the transaction in dispute, to sustain his position. If the defendant could then produce a greater number of secta, he had his cause; if not, he lost it: but if he offered any other defense than a denial, such as a deed, then the plaintiff was not allowed to offer rebutting secta, but the trial must be had per patriam, or per patriam et testes nommatio in carta quam, etc. These exceptional methods of trial prepared the way for the change from mere recognition by the jurors on their own knowledge, to the system in which the jury ceased to be witnesses, and gave their verdict upon the evidence submitted to them by others. The first step toward this important change which can be clearly distinguished, is the adjoining of the witnesses to the jury, in the twenty-third year of Edward III. This was for the purpose of assisting the jury by means of the knowledge of the witnesses so adjoined. The latter, however, had no voice in the verdict, which was to be accepted even though it was opposed to the evidence of these witnesses. The range of the jury was thus greatly extended; and although the jurors still decided on their own knowledge, and were still, therefore, taken from the vicinage, this enlargement of the sources of their knowledge carried with it some important consequences. First, the educating influence of service on the jury was greatly increased by requiring jurors to draw conclusions from the testimony of others. Second, it was the foundation for the law of evidence. Very early, great care had been found necessary to exclude from the consideration of the jury all improper or corrupted evidence. This was done by requiring the evidence to be given in the presence of the court, and subsequently by the establishment of rules respecting its production. This change began probably very soon after witnesses were adjoined to the jury, as is shown by the report of a case in the eleventh year of Henry III.. in which a verdict was set aside because a jury, on retiring to consider their verdict, had taken with them an escrow which had neither been proved in evidence nor delivered to the court. A third consequence of this enlargement of the functions of the jury was the creation of a field of activity for the advocate. With the handling of witnesses and the construction of their testimony for the juries, came the opportunity for the whole of the lawyer's forensic activity. Finally, it is to be noticed that through this change the cruel practice of attainting the jury fell into disuse. Attainting the jury was the only means of obtaining a new trial in cases of a mistaken or corrupt verdict. Twenty-four jurors were summoned to try the truth of the former verdict, and if they found the former jury to have rendered a false verdict, all of its members were arrested and imprisoned, their lands and chattels forfeited, they became no longer "oathesworthe," says Bracton, and at one period it was provided that their wives and children should be turned out of their homes, and their houses and fields destroyed—a punishment which, however. was subsequently commuted by a pecuniary penalty. So long as the verdict of the jurors was rendered solely on their own knowledge, a verdict which was false must have involved perjury, and these severe punishments were perhaps justifiable; but when the verdict might, if wrong, be merely in consequence of a mistaken view of the evidence of the witnesses, such punishment became manifestly excessive. Some attempts to punish jurors under color of attaint were made under the Tudors, and the system of attaints was then expressly repudiated; but although it had long fallen into complete abeyance, it was not abolished until 6 George IV. After its disuse the means of correcting mistakes in a verdict were left unprovided for until the seventeenth century. when the introduction of new trials afforded a remedy, and the first of these of which we have any record was in 1665.
—The last step in the history of the development of the jury. is the limitation of its functions to rendering a decision solely upon the evidence submitted to it by the witnesses, and in eliminating the traces of the original functions of the jurors as recognitors and mere witnesses. The principles which necessitated such a change it has been said are obvious: the discovery of the truth was made more difficult, rather than more certain, by the fact of the residence of the jurors in the neighborhood of the disputed fact, and the rules as to venue grew after a while so complicated and troublesome that it became desirable to get rid of them. The number of hundredors on the inquest was altered from time to time, and finally the laws requiring jurors to be summoned from the hundred or vicinage were abolished in all civil actions by 4 and 5 Anne, c. 16, and 24 Geo. II., c. 18, and the jurors were thereafter drawn from the whole county. These statutes, says Mr. Starkie, are indirect authorities for the position that jurors should not still render verdicts on their knowledge of the facts. The granting by the courts of new trials, on the ground that the verdict was against evidence, is a direct authority to the same effect. In the first year of Anne's reign this transition may be said to have been completed and clearly defined by a decision found in 1 Salk., 405, to the effect that if a jury give a verdict of their own knowledge they should so inform the court that they may be sworn as witnesses, and that they ought fairly to tell the court that they had evidence to give as witnesses, before they were sworn as jurors—We have thus arrived at the existing form of the jury. Resting upon the earliest legal institutions of the Teutonic races, it was at first a body chosen for its special knowledge of the facts in dispute, the members of which decided those facts upon their personal knowledge of them. Next, witnesses were added. and the jurors decided upon the evidence given by them as well as upon their own personal knowledge. Finally, the witnesses were separated from the jury, and the jurors became thereby the judges of the evidence of witnesses, and found their verdict solely from such evidence.
—The origin of the rule that the verdict of the jury, both in civil and criminal cases, should be unanimous, lies in the fact that the jurors were at first only witnesses. The opinion of twelve was fixed as the least amount of evidence which would be accepted as final, and the jury was afforced until at least twelve agreed. In what manner twelve came to be selected as the requisite number, admits perhaps of no more scientific explanation than that offered in the "Guide to English Juries, by a Person of Quality," published in 1682, and ascribed to Lord Somers. The author says: "In analogy, of late the jury is reduced to the number of twelve; like as the prophets were twelve to foretell the truth; the apostles twelve, to preach the truth; the discoverers twelve, sent into Canaan to seek and report the truth; and the stones twelve, that the Hierusalem is built on; and as the judges were anciently twelve to try and determine matters of law; and always when there is any waging law, there must be twelve to swear in it."
—II. Present State of the System. The jury, the growth of which has thus been outlined, was cherished by the English colonists who brought it hither, as one of the dearest of their institutions. It was in general use during the colonial period, and it is expressly protected by the 5th, 7th and 8th amendments to the constitution of the United States, and in the constitutions of most of the states. From these constitutions, and from the statutes passed under them, it appears that in this country the system of trial by jury in criminal cases is universal, and that while in civil causes it is generally used, it may, in most of the states, be waived upon the consent of the parties. Four distinguishing elements also are manifest.
—1. The jury must be composed of twelve persons. It is, however, provided in Arkansas, Colorado, Connecticut, Indiana, Iowa, Kentucky, New York and Texas, that the parties may agree upon a smaller number in certain cases. In several of the states, also, provision is made for a jury of six in the justices' and county courts, and the constitutions of Georgia, Colorado, Louisiana and Michigan declare that the legislatures of these states may provide for a jury of less than twelve, but of this power no use has been made.
—2. The jury must be drawn from the vicinage—the district or county within which the trial is held—and from the whole number of the qualified citizens not expressly exempted by statute. The origin of the rule as to vicinage has already been given. The statutory definitions of those qualified to serve are, generally, that a juror must be in possession of his faculties and of fair character and intelligence. In some states a property qualification is also required. It seems clear from these statutes that jury service is a duty due from the citizens to the state, which the state may exact from all, and which it does exact from the largest possible number. Certain persons are exempted because their occupations are either necessary to the public or are of such a nature that they can not be delegated, or that they can not be withdrawn from them without great loss. These exemptions include, generally, all public officers, active professional men, teachers, telegraph operators and firemen; and the exemption laws in many states throw a curious and suggestive light upon the progress and pursuits of their people. Such, for instance, are those in the west. exempting one miller to each grist mill, and a ferryman to each ferry, in the east, exempting factory employés, bankers and police; in New York, exempting employés upon the canals; and in Kentucky the disqualification of any one as a grand juror who within six months preceding has for a reward stood a horse, jack or bull. In the states of Kentucky, Oregon and Maryland, the statutes declaring who may be summoned still speak only of white persons. These provisions, however, have been made practically nugatory by the decisions of the United States supreme court in Strauder vs. West Virginia, 100 U. S. 303, Virginia vs. Rives, 100 U. S. 313, Ex parte Virginia, 100 U. S. 340; and Neal vs. Delaware, 103 U. S. 370. These cases declare the civil rights bill constitutional, and hold that, under it and the 14th amendment, it was a right of colored men. when charged with criminal offenses, to be tried by a jury indifferently selected without regard to the color of the jurors. The decision in Ex parte Virginia goes further, and decides that the enjoyment of this right by colored criminals renders it necessary that colored men shall be called to serve, and thus indicates that jury service is to be considered not only as a duty which may be exacted by the state, but as a privilege which may be claimed by the individual.
—3. The verdict of the jury must be unanimous. This is the invariable rule in criminal cases; generally also in civil cases; but in California three-fourths may render a verdict in such cases, and in Louisiana "if nine or more agree upon a verdict it shall be recorded." The historical origin of the requirement of unanimity has been given, but it appears now to be arbitrary and unreasonable, and the tendency of the better professional opinion seems to be clearly in favor of a modification of the rule. The law writers and philosophers have been unsparing in its condemnation. Hallam speaks of it as "a preposterous relic of barbarism"; Bentham disapproves of it; the common law commissioners in 1830 said, "It is difficult to defend the justice or wisdom of the rule"; and, in his "Fundamental Constitution of Carolina," Locke declared, "that it should not be necessary for a jury to agree, but that the verdict should be according to the opinion of the majority."
—4. The jury must be impartial. This is of its essence. It is in the main sought to be accomplished by the manner of selecting the jurors, and by giving to the parties the right of challenging the jurors chosen. First. Manner of selecting jurors. The method of selecting ordinary jurors is invariably by some form of lot. Lists of jurors are prepared by designated country officers, and from these lists county or court officers, select the panel required, usually by drawing the requisite number of names from a box containing all of those upon the prepared list. The particular arrangements, however, are various, and minutely regulated in each state by statute. The complaints and criticisms of the jury system arise largely from the execution of these statutes, and in several of the large cities a class of hangers-on about the court houses, and of disreputable attorneys, have become known as "jury fixers." They pretend to be, and in many cases undoubtedly are, able, through political influence or open bribery, to secure the impaneling upon a jury of one or more persons through whom a disagreement or verdict may be obtained. It need only, however, be pointed out that such results are attained through the evasion or breach of purely administrative laws. Such abuses furnish an argument for the purification and reform of the civil service of that locality in which they occur, but they have nothing whatever to do with the merits or demerits of the system of trial by jury. In 1879 congress sought to provide a remedy for some of the alleged evils in the selection of jurors in the United States courts, by enacting that all jurors should be "publicly drawn from a box containing the names of not less than 300 persons, * * *, which names shall have been placed therein by the clerk of such court and a commissioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein." The effect of this law, as was well said by Gen. Garfield in the debate upon its passage, is "to put into the jury box a man recognized as a political partisan, and then another beside him recognized as belonging to another political party, to administer justice." While it is difficult to ascertain accurately how such a statute really operates, it seems to be the fact, that in certain political cases, such as those for the violation of the election laws, it amounts to a legalization of "jury fixing." Nevertheless the general adoption of such a system as is provided for by this statute has been urged as a remedy for the packing of juries. But it is an aggravation, not a remedy. Second. The right of challenging. Challenges may be made, First, to the array, which is an objection to the entire panel as arranged by the officers in charge because of some error or partiality in obtaining the panel, which must, from its nature, necessarily affect all the jurors obtained. Second, to the poll, for which the causes are: 1st, propter honoris respectum, as when a peer is summoned, which does not exist in the United States; 2d, propter defectum, which may arise from a lack of the statutory qualifications; 3d, propter affectum, which may arise from partiality on account of relationship, from an interest in the result of the trial, from conscientious scruples in capital cases, or from declarations of opinion as to the result; 4th, propter delictum, or conviction of a crime. In some states all challenges are decided by the court; in others, triers are appointed by the court, usually two in number, to try whether the jurors challenged "stand indifferently." Third. Peremptory challenges. It is provided that any person on trial for a capital offense or other felony, and in some states, also for a misdemeanor, shall be entitled to challenge peremptorily, without assigning any cause, a fixed number of jurors.
—Under this head of securing impartiality in the jury there are also to be noticed special provisions in some of the states such as that in New York providing for a "foreign jury" in cases where a claim involving a general interest of the inhabitants of a particular place or county is to be litigated, and it is thought that an impartial jury can not be had a that county or in the neighboring county. In such cases a jury from another county can be obtained, upon sufficient proof of the circumstances. Such also is the provision for trial by a jury de mediatate linguœ, which may still be had in Kentucky. This is a jury one-half of which must consist of aliens, and may be had whenever one of the parties is an alien. It originated in a charter of Edward I. providing for the safety of foreign merchants sojourning in his realm, and was abolished in that realm by the naturalization act in 1844. With these safeguards thrown about the system it is next provided in Arkansas, California, Colorado, Connecticut, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, the Virginias, and in the United States courts, that a jury may be waived in all civil cases upon the consent of the parties, which must usually be written, and filed with the clerk of the court. In Florida and Missouri a jury may be waived in cases of misdemeanor as well as in civil cases, in Indiana it may be waived in all cases not capital, and in Maryland in all cases. A provision in Connecticut for the waiver of a jury in criminal cases was repealed in 1878.
—That which has thus far been said upon the present state of the jury system is applicable mainly to the petit or trial jury. There is also to be considered The Grand Jury. This, in criminal cases, presents by an indictment an accusation against an offender, to a court having jurisdiction to take proceedings for his arrest and punishment. The members of the grand jury are drawn by the sheriff or other county officer, and are usually twenty-three in number. Having listened to a charge by the judge, they retire to consider the complaints, and hear the witnesses produced before them. They are the exclusive judges of the evidence submitted to them, and twelve of them at least must agree that it makes out a prima facie case against the accused, before the grand jury can find a "true bill," as it is called, against him. If they deem the evidence insufficient for this purpose, they "ignore" the bill. The prosecuting officers of the county present the indictments, with the testimony in support of the same, to the grand jury, and are allowed to be present and advise them, except when they are taking a vote. The proceedings of the grand jury are secret. The constitutions or statues of the states all provide that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. The origin of this rule has been seen. In England, especially during the Stuart reigns, it proved to be another and valuable safeguard for the liberty of the individual, and in times of great popular excitement it might still prove to be necessary as such, with us. It seems now, however, to be cumbersome and generally superfluous. As a matter of fact the duties of the grand jury are substantially performed by the district attorney; and if the inferior magistrates empowered to commit offenders deserve any confidence at all, it should be unnecessary to have the grand jury again go over the ground which has already been covered by them, in order to put an accused person on his trial.
—Coroners' Juries. It is provided that whenever any person shall have been found dead or dangerously wounded, the body must remain untouched until the arrival of the coroner, who shall then summon a jury of twelve, or of between nine and fifteen persons, from among those qualified for jury service in that county, but who must not be related to the deceased or to his slayer, if he be known or suspected. The jury thus impaneled must then, together, view the body, after which they retire and take testimony as to the manner of the death or wounding. They shall then return a written verdict setting forth the time and place at which the deceased or wounded came to his death or was wounded, who he was, at whose hands it came about, and all the circumstances concerning the same. If any of these facts shall remain unknown to the jury, they shall set that forth. In England a person accused by the coroner's jury may be put on his trial at assizes without further indictment. In Massachusetts the office of coroner has been abolished, and in other states, and especially in large cities, a strong feeling exists that some much more efficacious method may be devised of determining the cause of death, and the identity of the criminal, if there be one, than by the machinery of the coroner and his jury.
—The Special Jury. This, says Blackstone, was "originally introduced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders." Generally in this country where it is made, on proper affidavits, to appear to a court that a fair and impartial trial by jury of an issue of fact can not be had, or that the importance or intricacy of the case demands a special jury, the court will order such a jury to be struck. This is done by the selection, by some county officer, in the presence of the parties or their attorneys, of forty-eight persons from those upon the jury lists. He must select those whom he considers most indifferent to the parties, and best fitted to decide the cause, and from this number the parties strike off alternately the names of proposed jurors until but twenty four remain, from which list the trial jury is then selected in the usual manner. Trials by a special jury are seldom granted; that of Tweed in New York is the most notable recent instance—Sheriffs' Juries are impaneled by that officer to try the title to goods seized by him when they are claimed by a third party. Sheriffs' or special juries are likewise granted in proceedings de lunatico inquirendo, and in most of the states also, under certain special laws, such as that to inquire into the value of property claimed as exempt from execution under the homestead acts, and to inquire into various questions of fact arising under laws relating to highways. A Jury of Matrons was formerly impaneled upon a writ de ventre inspiciendo, in cases where a widow was supposed to intend to defraud the next heir, by claiming falsely to be with child, for the purpose of determining whether she was or not, and also in cases where a female under sentence of death claimed to be pregnant. In the latter case a jury of physicians, as in New York, is now usually provided for.
—From the time of Queen Anne, at least, the province of the jury has been to decide the facts in issue upon the evidence of the witnesses, and to render a statement of their decision, called a verdict, vere dictum, to the court. In criminal cases this may be partial, finding the accused guilty on some counts and acquitting him on the rest, or finding one of several accused guilty, and acquitting the others. A general verdict pronounces upon all of the issues, and a special verdict finds only the facts, leaving the court to decide which of the parties should receive judgment, and the courts of most states may direct a special verdict, which must be in writing. The verdict being rendered may be set aside by the court if contrary to the evidence, or if the court holds it to be for an excessive amount, in civil cases. With the growth of democratic ideas there has been a manifest tendency to make the juries in criminal cases the judges of the law as well as of the facts. And in several of the states of the Union they are expressly made such, in cases of libel. This provision has a common origin with the English libel act of 1792, providing that the jury may in libel cases render a general verdict of guilty or not guilty upon the whole matter put in issue, which sprang from Lord Mansfield's celebrated charge and judgment in Rex vs. Woodfall, and the ensuring discussion thereon. Our provisions, however, are much broader than Fox's act. In some of the United States—Georgia, Louisiana, Maryland, and optionally in Minnesota—in all criminal cases the jury are to be the judges of both law and fact, a provision which, in Illinois at least, has been practically annulled by the supreme court of that state, and the repeal of which has been actively urged. In Indiana the province of the judge has been further encroached upon by a provision giving to the jury which convicts an offender of a capital offense, the right to decide whether he shall be punished by death.
—III. The Extension of the Jury System into Foreign Countries. In Scotland the jury seems to have been established at as early a date as in England, but though preserved in criminal it was very early discontinued in civil cases. In criminal cases the Scotch jury has always consisted of fifteen persons, a majority of whom may render a verdict, which need not be "guilty" or "not guilty" as elsewhere, but may be "not proven," which releases the accused while it brands him with the accusation. The civil jury was reintroduced into Scotland by 15 George III., c. 42, in a special court established for the purpose. That court has now, however, been abolished, and the civil jury is used as in England, except that if the jurors fail to agree within six hours they must be discharged. In Ireland the jury is substantially the same as in England, and when provision was made in the repression bill of 1882 for trials in certain cases without juries, the Irish judges met and passed resolutions protesting. In the island of Jersey the grand custoumier of Normandy is still the authority, and some curious features prevail. The petit jury in criminal cases consists of policemen, and an appeal may be taken from their verdict to the grand enquete or jury of twenty-three.
—In France. The national assembly declared, April 30, 1790, that there should be a jury in criminal cases, and that there should not be a jury in civil cases. Since that time the principle of trial by jury has remained settled, although almost numberless changes have been made in the features of the system by some sixty different laws on the subject. At present there is no civil jury except en matiere d'expropriation, and in criminal cases trial may be had by jury only in cases of felony. There is no grand jury; the verdict of the trial jury is rendered by the majority, and may be accompanied by a recommendation to mercy. No person can serve upon a jury who has not reached thirty years of age and is not in the full enjoyment of his civil and political rights.
—In Germany. The jury was introduced by the French into the Rhine lands during the revolution, and has been, with many fluctuations, confirmed and extended in criminal cases since that time. It was established in Prussia in 1819, and again by the constitution of 1848, and by the law of June 3, 1849, but political offenses were withdrawn from its operation in 1851. The system was also adopted by Bavaria and Hesse in 1848, by Wurtemberg and Baden in 1849, and by Austria in 1850. With the agitation of the question of a common criminal procedure for the new empire, the abolition of trial by jury was seriously considered. Prussia first proposed the substitution of sheriffs' courts in its stead, but this had to be relinquished, in consequence, as one writer natively remarks, of the overwhelming prejudice of the "non-jurists"—the people—in favor of the jury system. Finally, by sections 79-99 of the Gerichtsverfassungsgesetz all criminal offenses except treason, political crimes. and offenses of the press, are made triable by jury.
—In Belgium the jury has existed since the separation from Holland, and it is especially provided by the constitution that political offenses and those of the press shall be tried by jury.
—In Switzerland all crimes against the confederation are to be tried by jury. For other crimes each canton has its own machinery; in Geneva, the most important, the jury is in vogue, and a verdict is permitted of "guilty under extenuating circumstances" and "guilty under very extenuating circumstances."The jury system has, of course, been established in all the colonies of Great Britain substantially as in the mother country. and is in use in all the South American republics. It was introduced into Greece in 1834, and is guaranteed by the constitution of 1844. It was also established in Portugal in 1837. It has been introduced into Spain, into Italy, into Brazil, and finally into Russia, where the first trial by jury was held Aug. 8, 1866; and in each of these countries the verdict is rendered, as in France, by the majority.
—IV. Advantages of the Jury, its Evils and the Remedies. In summarizing the advantages of the jury system it is to be said, that as a political institution the jury has been, and still is, a necessary and most efficacious guaranty against the arbitrary exercise of power; that it diminishes the inevitable antagonism between the government of the state and its individual members by increasing the participation of the latter; that jury service is one of the duties of citizenship the performance of which best fits men to enjoy the privileges thereof, since it imposes upon individuals a sense of responsibility which directly educates their sense of personal dignity and self-respect. As a judicial institution the jury secures the publicity of the administration of justice, which is one of the safeguards of its purity. A number of ordinary men chosen as jurors are, it is thought, better judges of the ordinary facts of life than any judge or bench can be—a fact which is expressed in Lord Campbell's remark so often quoted of Lord Mansfield's juries at Guildhall, "He learned from them the usages of trade, and in return he took great pains in explaining to them the principles of jurisprudence by which they were to be guided."
—The jury is also claimed to be a most valuable if not necessary protection for the individual against great impersonal corporations by which so much of the business of the world is coming to be done; and finally, it obviates the consequences of a rigid application of the logical rules of law; it "relieves against the procrustean application of legal technicalities." On the other hand, it is asserted that the jury affords an opportunity for bribery and corruption which is constantly used; that the practical workings of the jury system are so bad that those persons who still have faith in it are theorists, who really know nothing about it; that it is a source of vast and useless inconvenience to business men; and that in all cases where corporations are concerned its verdicts are hopelessly biased. When we come to the remedies, however, the statements are less precise. The radical remedies which have been proposed look toward the complete abolition of the jury, and the substitution therefor of benches of judges, from whose decision, it is even said, there should be no appeal. but most of these propositions ignore the fact that the jury is a great historical institution, which is everywhere closely interwoven with the whole fabric of the society and the government of English peoples, and that it can not, therefore, even if it be true that it has had its day, be dealt with thus lightly. Most of these propositions, also, are characterized by a certain petulance, and obviously proceed not from a view of the whole system, but from the observation of its operation in a particular instance or in a particular locality. By way of a demonstration of the absurdity of the system as it now is, these propositions have often been prefaced by a supposition of what the views of a learned oriental would be when the jury was first explained to him, and this, although it is tolerably clear from the last thousand years of the world's history, that the views of "a learned oriental," upon any governmental topic, though sometimes interesting, are not of importance. It is further to be remarked, that most of the criticism of the jury system proceeds from the great cities where the conditions of life and society are abnormal, and would, as it is easy to see, affect any substitute for the jury quite as unfavorably as they are said to affect the jury itself. Furthermore, as has already been pointed out, much of that criticism is misdirected; it should be applied to the administrative laws, to the manner of their execution. and to the view of their duties which is taken by the people themselves. With the segregation of occupations, and the close attention which every man is compelled to give to his own, individuals find that jury service is an inconvenience and a cause of pecuniary damage; and in New York, at least, they embark in almost open corruption to escape from it. But they find every other public service equally inconvenient. So, through the natural division of labor, the whole business of politics has fallen into the hands of a class as distinct as that of those engaged in any other pursuit, and it may be that, in like manner, the public will have in time to be relieved of the duty of jury service; but the approach of that possibility has nothing to do with the workings of the jury system. From the cloud of criticisms, however, just and unjust, some measures may be concluded to be remedial and desirable. 1. The amendment of the laws relating to the drawing of jurors, so as to place that operation under officers immediately responsible to the judges. 2. The vesting in and exercise by the judges of a wider discretion to excuse jurors from jury service on the grounds of their personal inconvenience. 3. The establishment in the cities of courts of arbitration of three or more judges. 4. Allowing verdicts to be rendered by three-fourths or two thirds of the jury, either absolutely, or if, after a certain number of hours, the jurors fail to arrive at unanimity. 5. Allowing persons committed by magistrates to be put on their trial without further indictment. 6. The abolition of coroners' juries. or else their elevation by making their findings of guilt equivalent to indictments by a grand jury. Such changes, or some of them, may be wise, and would be accepted as desirable. It is, however, beyond question that the very great preponderance of the best opinion is decidedly in favor of the maintenance of the jury substantially as it now exists, and it is impossible to rise from a survey of the whole system without being impressed with the soundness of the conclusions of Mr. Justice Miller, of the United States supreme court, who in an address before the New York state bar association in 1878, remarked, "It is probably wise that no man shall be convicted of an infamous crime until twelve fair-minded men are convinced of his guilt. I am also forced to admit, however, that even in civil cases my experience as a judge has been much more favorable to jury trials than it was as a practitioner. And I am bound to say that an intelligent and unprejudiced jury, when such can be obtained, who are instructed in the law with clearness and precision, are rarely mistaken in regard to facts which they are called upon to find." Nor would it be possible to conclude such a survey without full concurrence in the admirable language of Lord Coleridge, who, in charging the grand jury at Exeter, said, in words which are as applicable and as true in America as they were in England, "I think it unwise, in a complicated state of society like ours, to look at things in themselves alone, and without considering what bearing they have upon the whole machinery of society. The interests of a great number of persons in the discharge of justice, the education to a certain extent which the jury system affords to a large number of persons in our community, is a matter that is far too much lost sight of; and I should think, for my own part, that if it were true that in particular cases a better result might have been arrived at by the single judgment of a judge, than by the united judgment of a judge and jury—if that were so, upon which I express no opinion for the moment—I should say that the advantage was ill purchased by the separation of the general mass of the people from any share in the administration of our courts of justice. I believe that much of the satisfaction which I hope and trust does exist with our administration of justice as a whole, and with all its faults—for, like every other human institution, it has its faults—may to a great extent be traced to the large infusion of what I may call the popular element, and the popular element in the administration of our system of justice is the jury."
—BIRLIOGRAPHY. Blackstone. book iii; Reeve, History of English Law; Stubbs, History of England, vol. i.; Hallam, Middle Ages, notes; Woodeson's Lectures; Palgrave, Rise of English Commonwealth; Burke, Abridgment of English History; Dunscomb, Trial per Pais, 8th ed., London, 1766; Pettingall. Jury Among the Greeks and Romans; Kennedy, Law and Practice of Juries. London. 1826; Worthington, Powers of Juries; Forsyth, History of Trial by Jury. Am. ed., New York, 1875; Bentham, Art of Packing Applied to Special Juries; Reports of Common Law Commissioners, London, 1830-53; Hirsh, Juries, New York, 1879; Proffat. Trial by Jury; Sackett, Instructions to Juries; Thompson, Charging the Jury; Starkie, Trial by Jury; Erle, The Jury Laws; Adam, Trial by Jury in Scotland; Meyer, Origin and Progress of the Judicial Institutions of Europe; Quarterly Review No. 67; Westminster Review, Oct., 1827; Edwards' Juryman's Guide; Mr. Justice Gray, Note on Juries, end of Quincy's Reports; Advantages of the Jury System, N. Am. Review, Nov., 1882: Is the Jury System a Failure? The Century, Nov., 1882; Grand Jury. Western Jurist, Jan., 1882; Rogge. Gerichtswesen der Germanen; Brunner, Die Entste hung der Schwurgericht, Berlin, 1872; Gneist, Die Bildung der Gexchworeneagerichte in Deutschland, Berlin. 1849; Glaser, Zur Juryfrage, Vienna, 1864; von Bar, Recht und Beweis im Geschworenengericht. Hanover, 1861; Meyer, That und Rechtsfiage im Geschworenengericht, Berlin, 1860; Biener, Das Englishe Genchworenengerichte, Leipzig, 1875; Montesquieu, Esprit des Lois; de Tocqueville, De la Democratie en Amerique; Cherbuliez, dans la Revue de legislation xli., xlii.; Odillon Barrot, dans le Bulletin de L'Academie des Sciences morales et Politiques, 1871-2.
FREDERICK W. WHITRIDGE
JUSTICE. In the most general acceptation of the term, justice is a moral virtue which leads us to render to every one that which is his due, and to respect the rights of others. The term is sometimes used as synonymous with fullness of right and reason. It is used especially to designate the act of recognizing the rights of a person; and, more particularly, in the language of politics and administration, it is used to indicate the exercise of the power to declare the right, to pass sentence, and, if need be, to inflict punishment.
—The Roman law defined justice to be, the constant and perpetual disposition to render every man his due. This is the definition of justice which has been most generally accepted by jurisconsults and publicists.
—We may now inquire whether there is a natural justice anterior to all positive law, or whether express laws are necessary to create moral qualities. These questions which men have differed on, both in antiquity and in our own times, belong entirely, as d'Auguesseau rightly says, to the domain of the metaphysics of jurisprudence; and we need not concern ourselves with them when treating not of man in the savage state, but of man in society.
—It is certain that men can not live in society without their interests and their passions causing difficulties and differences between them, difficulties and differences which the parties interested can neither properly weigh nor settle. Hence the necessity that some power be instituted to solve these difficulties and settle these differences. This power may be exercised by the father of the family, by elders, by the chiefs of the tribe, by lords or princes, by peoples or kings; it may be exercised directly or by delegates for that purpose; but the power is necessarily found in every country.
—The right to administer justice is one of the attributes of sovereignty. It is both a right and a duty.
—Justice emanates from the people or the sovereign, according to the form of the government. Hence the old legal formula, de par le Roi, by order of the king, a formula which Bentham treated as insignificant, when he demanded that its place should be taken by the nobler form, de par justice, by the order of justice.
—There are political schools which distinguish the judicial power from the executive power and the legislative power. But if all are agreed in considering the distinction between the legislative power and the executive power, a distinction to be found in the constitutions of nearly all modern states,43 as an advance made, there are, nevertheless, a great many writers who continue to place the judicial power within the domain of the executive power, which is charged with the carrying of the law into effect. According to these writers, justice and administration constitute the two chief attributes of the executive power in the state. It is necessary to form a clear idea of the bearing of these distinctions. The judicial power and administration are not connected in the same way with the executive power. When this power gives personal, direct, formal and unceasing direction to political and administrative affairs, it allows judicial action to move in a sphere of its own, in an independent sphere, the limits of which are determined by the laws; and although justice is usually rendered in the name of the chief executive, no one dreams of giving to the executive the right to modify the decisions of the courts or to substitute his will for the judgments or decrees of the courts, just as no one dreams or putting the executive on the bench.
—The essential conditions of justice are these: it should be equal; it should know no distinction of rank or class; it should be accessible to all; it should be gratuitous in this, that the parties to an action should not be obliged to remunerate the judge; it should be both prompt and sure; it should be surrounded by guarantees in the mode of procedure calculated to prevent error, and among these guarantees we must assign the first place to the liberty of defense and to the publicity of the proceedings; lastly, and above all, justice must rest on the faithful and rigorous application of the laws.
—Judges have sometimes been asked to temper the severity of the laws by appealing to a species of charity applied to matters of justice. But, in the end, want of respect for the rule has always been regretted. Dictated by a feeling of humanity, this charity too frequently serves as a cloak for the ignorance of the judge, or as a pretext for the exercise of arbitrary power. Absolute respect for the laws by the judge himself is the most serious and most efficacious guaranty of justice. With reason does Bacon say: Optimus judex qui minimum sibi * *, optima lex quœ minimum judici; and this saying of his is true in every age.
JUSTICE, Department of
JUSTICE, Department of. The attorney general of the United States, although his office was created by congress as early as Sept. 24, 1789 (1 Stat. at Large, 92), was not made the head of a department until June 22, 1870, when the department of justice was created, (16 Stat. at Large, 162). By this act the various law officers of the government, whose functions under previously existing laws were to interpret and apply the statutes governing the business of the various departments and bureaus, and to prosecute violations of United States laws in certain cases, were placed under the supervision of the attorney general. One leading reason for creating a department of justice was to bring about uniformity in the construction and application of the laws, which had not been realized under the previously existing system, with half a dozen independent law officers, responsible to no common head.
—The attorney general is made the head of the department of justice, being the chief law officer of the government. He is one of the seven members of the cabinet; he advises the president on questions of law, and, when required, renders opinions to the heads of any of the executive departments upon legal questions arising as to the administration of any one of them. He is the representative of the United States in all matters involving legal questions. He has supervision of the United States district attorneys and marshals in the United States courts of the states and territories. He sometimes appears in the supreme court of the United States to argue causes in which the government is a party, and even sometimes (as in the notable star route cases of 1882) in a subordinate court of the United States. In all other cases, the attorney general directs what officer is to appear and argue cases in which the United States is interested, in the supreme court, the court of claims, or any other court, providing special counsel for the United States when in his judgment it is required.
—The office of solicitor general, created by the act of 1870, is the second office in the department of justice. He assists the attorney general, and in case of a vacancy in that office, or the absence of his chief, performs the duties of attorney general. The solicitor general conducts and argues United States cases in the courts at Washington, except when the attorney general otherwise directs. There are also two assistant attorneys general, whose duty it is to aid the attorney general and the solicitor general in the business of the department; one assists in the argument of causes in the supreme court, besides preparing legal opinions when called for; while the other conducts the cases in behalf of the United States in the court of claims.
—The official salaries of those connected with the department of justice (including the law officers of the executive departments, who by the law of 1870 exercise their functions under the supervision of the attorney general), are as follows: The attorney general, $8,000; the solicitor general, $7,000, two assistant attorneys general, each $5,000; assistant attorney general for the interior department, $5,000; assistant attorney general for the postoffice department, $4,000; solicitor of the treasury, $4,500; solicitor of internal revenue, $4,500; examiner of claims, state department, $3,500; twenty-four clerks and assistants, $73,600. The office of solicitor of the navy, formerly established. has been abolished, and a judge advocate general, with the rank and pay of a captain, has been substituted.
—Besides the conduct of law cases involving the interests or authority of the government, the department of justice is charged with the extensive and complicated business connected with the judicial establishment, including the appointment (or recommendation for appointment) of judges, attorneys and marshals of the circuit and district courts of the United States; the examination and allowance of the accounts of these courts, now numbering nine judicial circuits, and fifty-eight district courts in the states, besides nine United States courts in the territories and District of Columbia. The tenure of these judicial officers, and their salaries, are as follows: Judges of circuit courts, for life, $6,000 each; judges of the United States district courts, for life, salaries, $3,500 to $5,000. These judges, like those of the supreme court, may be retired on full pension after ten years continuous service, provided they have reached the age of seventy. The district attorneys and United States marshals are appointed for the term of four years by the president and senate; their salaries are $200 a year, and the fees received in judicial proceedings, as fixed by law, limited, however, to a maximum compensation of $6,000 per annum. The clerks of the United States courts are appointed by the judges, and are paid by fees limited to $3,500 per annum, except in the Pacific states, where the limit is $7,000. The total appropriation for judicial salaries for the year 1882 was $420,300, besides fees. The same year congress appropriated for the expenses of the courts of the United States, $2,950,000, including the fees. This is to cover the entire expenditure for jurors, witnesses, support of prisoners, special counsel. contingent expenses of the courts, etc.
—The offices of the department of justice occupy the same building with the court of claims, opposite the treasury department, on Pennsylvania avenue.
—Following is a complete list of the attorneys general of the United States, with their terms of office. Those whose names are repeated were reappointed by successive presidents. The list, though already given under the title ADMINISTRATIONS, is repeated here for the sake of convenience.
A. R. SPOFFORD.
[43.]Notably is this the case in the constitution of the United States and the constitutions of the several states of the Union. Says Judge Cooley, the eminent American jurist (Constitutional Limitations, p. 34): "Certain things are to be looked for in all these instruments [the constitutions of the several states of the American Union]. We are to expect * * * that the usual checks and balances of republican government, in which consist its chief excellencies, will be retained. The most important of these are the separate departments for the exercise of legislative, executive and judicial power; and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional: and second, the check of the judiciary, who may annul unconstitutional laws, and punish those concerned in enforcing them. Upon judicial action there is the legislative check, which consists in the power to proscribe rules for the courts, and perhaps to restrict their authority; and the executive check, of refusing aid in enforcing judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding with that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The executive in refusing to execute a legislative enactment. will always do so with the peril of impeachment in view." (See CHECKS AND BALANCES.)