The American Judiciary

by Simeon E. Baldwin

It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calder v. Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.]

The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.]

It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.]

In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles.

Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanley v. Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starr v. Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.]

But may not a power be judicial in its nature and yet not wholly so?

It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions.

Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause.

Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department.

Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise.