The American plan of written opinions, at least in all cases of novelty or general interest, works better in small States than in large ones. No judge can find time to prepare more than a certain and quite moderate number in a year, if they are such as they should be. The shorter they are, the more time generally has been spent in condensing them. In a great State there must, therefore, either be a larger number of judges, or every few years there must be a temporary addition to the judicial force to clear off an accumulation of cases. The latter expedient is generally preferred. Sometimes a small number of lawyers are selected to serve as a special commission of appeals. They sit by themselves, but there may be a provision for their submitting their opinions to review by the regular court. Some of the leading cases in our reports have been decided by such commissioners. In California, where such a body now exists, its members are appointed by the court, and removable at its pleasure; but ordinarily they are chosen by the executive or legislative departments.
Sometimes when the cases on the docket of the court of last resort reach a certain number (in New York this is put at 200) the Governor may call in judges of the next court in rank to sit with the regular judges until the accumulation is cleared off.
Fewer causes can be heard and disposed of in American appellate courts than in those of other countries by reason of two things, our practice of delivering written opinions and the fulness of treatment thought necessary in such opinions, especially when they deal with questions of constitutional law. In France, the Court of Cassation in 1901 heard 816 appeals.[Footnote: Of these, 219 were sustained and 597 rejected.] Nothing approaching this number could be properly disposed of on the merits in any American Court of last resort. Many appeals, however, are here, as everywhere, abandoned or dismissed for some failure to comply with the rules of practice or because manifestly frivolous, and in these no opinions are ordinarily given. During the court year closing with the Summer of 1903, the Court of Appeals of New York filed only 221 opinions, although it disposed, in one way or another, of 640 cases; and the Supreme Court of the United States filed 212 opinions and disposed of 420 cases.[Footnote: See Chap. XXIV.]
In the calendar year 1904, the Court of Appeals of New York filed 327 opinions, and the Supreme Court of Illinois over 500.
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CHAPTER XX
THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT
No court can with propriety pass a decree which it cannot enforce.[Footnote: Clarke's Appeal from Probate, 70 Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178 U. S. Reports, 186.] After the judgment comes the issue of appropriate process to compel obedience to it, unless such obedience (as is generally the case) is voluntarily rendered. The whole power of government is at the command of the court for this purpose. A sheriff with a judicial process to serve who meets with resistance can summon to his aid the posse comitatus. By this term is meant the whole power of his county; that is, any or all of its able-bodied inhabitants on whom he may choose to call. Not to respond to such a call is a legal offense. The marshals have similar powers in serving process from the Federal courts.
The fact that there is this force behind a writ is so well understood by the community that occasions for resorting to its use, or indeed to the use of any actual force, are extremely rare. If the process was lawfully issued, it would be useless to resist. If unlawfully, it is easier and safer to seek relief by an injunction, or in case of an arrest, by a writ of habeas corpus. But there have been occasions in the judicial history of the United States when, under the influence of a general popular ferment, the service of process from the courts, and even the holding of courts, have been forcibly prevented.
Shay's Rebellion in Massachusetts (in 1786) was the first of these after the Revolution. Similar uprisings of less importance took place at about the same time in New Hampshire and Vermont. A few years later, the service of process from the New York courts was interrupted in Columbia County. There was a strip of territory adjoining the Hudson River, title to which was claimed both by New York and Massachusetts. Conflicting claims, awaking much bitter feeling, arose under grants from each government. In 1791, the sheriff of Columbia County was ordered by the courts, in the course of a lawsuit, to sell a tract of this land. Seventeen persons disguised as Indians appeared at the time of sale to resist it, and he was killed by a shot from one of them.[Footnote: Report Am. Historical Association for 1896, I, 152, note.]