The American Judiciary

by Simeon E. Baldwin

Another cause is also effective in lessening the docket of the District Courts. The ordinary lawyer prefers to sue in a State court, when he has the choice, on account of his greater familiarity with the practice there. Many American lawyers have never brought an action in a federal court. Most cases which could be so brought can also be and are brought in a State court.

Congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. There are those who claim that the reference in Art. III, Sec. 2, of the Constitution of the United States to "cases in law and equity" requires its preservation; but this seems a strained construction of the phrase. Separate dockets are kept in the District Court of legal and of equitable actions. They are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. As to equity cases, the rules of the old English chancery practice are substantially followed. In cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the State within which the federal court may be held is to be followed, as nearly as may be.[Footnote: U. S. Revised Statutes, § 914.] In fact, there is a departure from it in many points in most States,[Footnote: See Nudd v. Burrows, 91 U. S. Reports, 426.] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. If an action framed in this method be removed from a State court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another.

The Supreme Court, under power derived from acts of Congress, has framed rules of procedure for the inferior trial courts of the United States in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. The Equity Rules promulgated by the Supreme Court were revised in 1912, and took effect as changed in 1913.[Footnote: They are printed in Volume 226 of the United States Reports.] They greatly simplify the former procedure. Suits are now tried generally on oral testimony taken stenographically in open court. Formerly the evidence was usually given before officials known as examiners or masters in chancery. The former reported the testimony at length to the trial court. The latter reported their conclusions from it.

The new rules have abolished demurrers in equity causes in favor of what is substantially the present English practice.[Footnote: See infra, page 203.]

In common law causes in the District Court, the State remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[Footnote: U. S. Rev. Stat., §§ 915, 916, 967, 988.]

The field of national legislation being narrow, the offenses against the nation are correspondingly few. Any acts done on lands ceded by a State, which would have been crimes under its law in 1873, may be punished as such in the federal courts in the same manner which that law provided.[Footnote: Ibid., § 5391.]

In the Circuit Courts, before 1866 it was customary to defer the trial of important causes until the Justice of the Supreme Court assigned to the circuit could be present. If he differed on any material point from the District Judge, this point could be certified up to the full Supreme Court for argument and decision there. During this period the published reports of the decisions of the Circuit Court contain many opinions of the highest value. Several of the best which Story and Bushrod Washington wrote are to be found among them.

The Act of 1866, by which a resident Circuit Judge was appointed for each circuit, provided notwithstanding that each member of the Supreme Court should attend at least one term of the Circuit Court in each district as often as once in two years. The press of business at Washington, however, soon became such as to make it practically impossible for the Supreme Court Justices to do any substantial circuit work. When some case of national importance was to be heard in any district, the Justice in whose circuit it was included would make a special effort to go down. In this way Chief Justice Chase heard and sustained the plea with which Jefferson Davis met the indictment against him for treason. But ordinarily the Circuit Judge took the place of the Supreme Court Justice, and the latter, if he appeared at all during the term, remained hardly for a day.

The Supreme Court, therefore, during over a hundred years remained the only court of the United States existing mainly for appellate purposes. The work which it had before it at the last term during which it occupied this position (October Term, 1890) will show how much it was then overburdened.

Its docket contained 1,177 appeals brought forward by continuance because they could not be disposed of at the preceding term, 623 new cases of the same kind, and 16 cases of original jurisdiction, making a total of 1,816 actions. Of these, although the term lasted nearly eight months, it was only able to dispose of 617, thus leaving 1,199 for continuance to the following term.[Footnote: 140 U. S. Reports, Appendix.] It will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years.