III. The Courts.—A feature of American jurisprudence which excites the wonder of foreigners is the power in the courts to declare legislative or executive acts void because unconstitutional. Before the Revolution the Rhode Island court struck down a statute contrary to the provincial charter; and a recent instance is the decision of the U. S. Supreme Court on the income tax. The power is exercised on individuals, without direct conflict between the great departments of government. The judicial power has otherwise widened. Civil trials without jury are frequent. In the counties judges exercise much administrative power. Road and bridge cases, grants of liquor licenses, appointments to educational and other offices, are illustrations. In what has been termed “government by injunction,” functions both of the executive and of the jury have been assumed. Perhaps this justifies the demand that all judges shall be elected by the people. Frequently the choice of judges was originally by the legislature, or by the governor, alone or with the approval of the senate. The judicial tenure of office has generally been lengthened to a term insuring a long service. In Pennsylvania, a supreme court judge holds office twenty-one years, a county judge ten years. Age limit prevails in some States. In a democracy, it is not surprising to find the doctrine sometimes asserted that juries in criminal cases are judges both of law and fact. In certain civil cases, the jury is a crude but powerful engine for holding corporations to strict responsibility for the citizens’ safety, although excessive or unfounded verdicts are to be deplored. Much of the old law of deodands has force to-day in subtler form. A feature to note in passing is the duty imposed on the judge to answer before the jury points of instruction framed by counsel.
IV. Civil Procedure.—Twenty-nine States and Territories rejoice in escape from puzzling classifications by substitution of simple statements. Extreme separation of law and equity had made the old condition worse. Equity might often soften legal principles, or law lend vigor to equity. Much of this has now been done; had been done, in fact, in Pennsylvania, from early days. Its enforcement of equitable rights through remedies at law was largely followed in the English Judicature Act of 1873 abolishing forms of actions at law and interblending law and equity. This statute has been copied largely in British colonies. England abolished the cumbrous system of real actions in 1834, and substituted simpler remedies for assertion of title.
The simplicity of present procedure is accompanied by ability to reach decision more promptly, and an old reproach has been greatly lessened.
V. Codification.—The New York Revised Statutes of 1828 embraced nearly the entire civil procedure, and in 1848 a “Code of Procedure” was adopted, although the original draftsman, David Dudley Field, complained bitterly of changes. Forty-two States now have more or less complete codes of practice; and criminal codes likewise are numerous. Codification of the branches of substantive law may be anticipated. Something of this is going on in England. The Bill of Sales Act, the Employers’ Liability Act, the Bills of Exchange Act, the Public Health (Scotland) Act of 1897, the Land Transfer Act of the same year, are instances. In Pennsylvania, there are codelets like the Evidence Act of 1887, or the Building Law for Philadelphia of 1893. Instances could be multiplied. A code intended for all the States on Negotiable Instruments has been prepared by commissioners, and has been adopted in New York, Connecticut, Colorado, and Florida. In Great Britain there has not been general codification, whereas the continental systems run largely that way, even in substantive law, being based on the Roman law.
VI. Criminal Jurisprudence.—The grand jury is no longer grand in many States; indeed, less than twelve members suffice in some; and their service may even be dispensed with under some Western constitutions. Individual malice has been avoided by the creation of public prosecuting attorneys. “Standing aside jurors” resulted from 33 Edward I., denying government challenge except for cause. It has been generally abolished, and the prosecution equalized by a number of peremptory challenges. Pennsylvania retains the old practice. Prisoners may now testify, but refusal is not to weigh against them. The statute 7 William III. allowed counsel in treason cases, but England did not extend the privilege to trials for other felonies until 1836. The courts in mitigation permitted counsel to prompt prisoners with questions. Penn’s charter gave prisoners privileges of witnesses and counsel, and this is now universal in American constitutions. Many States provide counsel for prisoners without means, some with compensation. “Standing mute” has become equivalent to a plea of not guilty. Unanimity in a verdict is essential to conviction of crime above misdemeanor, except in Utah, and there it is limited to capital cases. In civil and in minor criminal cases about a dozen constitutions in the far West or Southwest either recognize verdict by proportion of jury or else empower the legislature so to do. England refuses criminal appeals, but in this country they are allowed. The courts of this country have never been subservient to military passion, and all friends of the great French Republic must rejoice at the courage of the Court of Cassation in the Dreyfus case. The English law inflicted death for 160 crimes, some great and many otherwise, about the period of our Revolution, and in 1819 this number had become 200. American jurisprudence never had such stain of blood, yet 10 crimes were punishable with death in Massachusetts, and 20 in Delaware, at the time of the Revolution, and the pillory, stocks, shears, branding-irons, and lash were busy. Horrible prisons existed, filled with every foulness and immorality. The older penitentiary system has been modified in 20 States by the parole system under police supervision, and in 4 the policy of indeterminate sentences within fixed limits and ages has been adopted. Bertillon and other methods of identification have greatly lessened crime in England. The law of deodand, whereby the value of an object causing accidental death was forfeited for charities, was abolished in England in 1846. Societies to prevent cruelty to children, or to animals, attest the advance of refinement and humanity.
HON. MELVILLE W. FULLER.
(Chief Justice U. S. Supreme Court.)
VII. Capital Punishment.—In England, treason and felony, except petty larceny and mayhem, were punishable with death. The fiction by which males who could read were supposed to be of the clergy saved first offenders, who escaped with branding. In the eighteenth century, the fiction was forbidden, and death imposed on additional offenses, so that 160 crimes were so punishable. In 1826, the efforts of Sir Samuel Romilly and Sir James Mackintosh, and later of Sir John Russell, resulted in a more merciful spirit, and since 1861 murder, treason, and firing of the great dock yards, have been the only capital offenses. The American colonies were more humane, yet Massachusetts punished 10 and Delaware 20 crimes with death. Since the Revolution imprisonment has been the general penalty. In Maine, Wisconsin, and Colorado capital punishment has been abolished altogether; in Rhode Island, except where murder is committed by a life prisoner; in Michigan, except for treason. In some States, as in Ohio, the jury may avert the death penalty. New York and Iowa, after experiments, restored capital punishment. The federal law imposes death for murder, piracy, robbery on the high seas, rape, treason. The introduction of degrees of murder has reduced the number of executions. In New York, electrocution has been substituted for hanging. Capital punishment has been abolished or qualified in the Argentine Republic, Belgium, Brazil, Chile, Costa Rica, Guatemala, Holland, Italy, Norway, Portugal, Russia, Switzerland (in eight cantons), and in Venezuela.
VIII. Police Power.—The citizen of the present day is protected by the police power to a degree which, perhaps, would have seemed marvelous a century ago. The sale of food is governed both in quality and quantity; building laws prescribe yards for light and air, height and thickness of walls, and forbid wooden buildings in many populous centres. Explosives are placed under strict regulations. Health laws protect from impurity of food and from pestilence, establish quarantines, deny the importation of rags, cattle, etc., likely to breed disease; medicine, pharmacy, dentistry, and nursing are protected from ignorance; immigration laws exclude persons or races deemed uncongenial or objectionable; railroads are subjected to provisions promoting safety, comfort, and impartiality of service; lotteries, gambling, threatening letters are forbidden; game laws preserve the various species from extinction; women and children are guarded by special laws. Almost the entire body of this division of law is new to this century, and much of it is recent.