The American Judiciary

by Simeon E. Baldwin

The Republicans in Congress were within their rights when, in 1802, they repealed the act passed by the Federalists the year before to create a system of Circuit Courts. Those of Massachusetts were within theirs when, in 1811, they abolished the ancient Court of Common Pleas of that State and created a new "Circuit Court," with fifteen judges, to take its place. Both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old Federalists. Why they did not has been frankly stated by one of them in his account of Governor Gerry's administration:

With the Supreme Judicial Court the party did not interfere. In respect for the authority of the Constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. The result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[Footnote: Austin, "Life of Elbridge Gerry," II, 339. See Chap. XXII.]

The weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. Of these there are generally several in each town, having jurisdiction over the whole county. Some may be lawyers. None need be, and few are. Any one of them can try cases. Which of them shall try any particular case is left to be determined by the lawyer who brings it.

Justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[Footnote: See McVeigh v. Ripley, 77 Connecticut Reports, 136; 58 Atlantic Reporter, 701.] Such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. But in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. If the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. In most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. Some justices rarely give any other judgment. Many lawyers bring all their cases before one justice, and seldom fail of success.

In 1903, a justice of the peace in one of our largest cities resigned his office and made his reasons public. They were that no one could afford to hold it who was not willing to stoop to unworthy practices. Lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. They expected the justice of the peace whom they favored to favor them. One way was by making them a discount on his legal fees. There was a competition among the justices for business on these terms, and the lowest bidder generally got it. Blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys.

A system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. That relief, however, is expensive. Judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can.

The natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. Better men could thus be had and independence of action promoted. That this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. The system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it.

In a few States a sharp line of division is drawn between courts of law and courts of equity. This distinction was inherited from England, though it has been for most purposes abolished there by the Judicature Acts of 1873 and 1875. It originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. The King was accustomed to refer requests for such action on his part to his principal secretary and councillor. The next step was to address the request directly to this officer, who was styled the Chancellor. If a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the Chancellor could compel him to desist. If the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the Chancellor could bring him to account, although the common law would give no remedy. Soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the Chancellor, or a case in chancery. Relief was given because it was equitable to give it, and so it was called relief in equity. The jurisdiction expanded. Wherever there was a right, but no adequate remedy at law, the Court of Chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice.

The Chancellor had often been an ecclesiastic. He was apt to be more familiar with canon law and civil law than with the common law. The justice which he administered came from the Crown, not from the people. The people spoke through a jury, called in law language "the country." The Chancellor spoke for himself. If he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it.

The result came to be that for several hundred years, embracing the whole colonial period, England had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. Those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. Equity also could prevent wrongs, while law could only punish them.[Footnote: See Chap. XX.] It was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. Many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court.