The American Judiciary

by Simeon E. Baldwin

Decisions of this kind, which were not infrequent in the era of State banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. It can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[Footnote: Thompson on "Private Corporations," V, p. 5306.]

It is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. Independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. He acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it.

The Bar Association of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench.

It is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. Jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. As a whole, however, American courts are clean-handed throughout, and the people know it.

The judiciary has been popularized in most States by constitutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the Governor or legislature by election by the people.

The powers of judges have been on the whole increased. The only matter in which they have been substantially cut down is that of punishment for contempt. Serious attempts have been made to abridge their jurisdiction over injunctions, but without success. These attacks have come from those representing certain labor unions. The more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a class of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[Footnote: The number of the Pennsylvania Grange News for Sept., 1904, states this view at length.] As a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the class of working-men in the general acceptation of that term. Their education has cost money and is generally the fruit of capital. The judges of the higher courts are usually men of some means. If they were not, they could not have afforded to accept their places. But the people at large do not believe that only the poor man can be relied on to deal justly on the bench. The mass of working-men do not believe it. They do believe that courts have too much power over them in their associated relations. They are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. But they know that it is from the legislatures and not from the courts that this must be sought.

The federal judges stand higher in public estimation than the State judges of corresponding rank. This is partly on account of the paramount authority of the government which they represent. It is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. It is more because of their permanence of tenure. This removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment.

Our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the States or of the United States, but the people know that there is less of it there than in any other department of governmental action.

President Hadley of Yale University has thus expressed what is the general view of the work of the courts held by thoughtful men in the United States; and it is they who in the long run form and lead public opinion.

"On the whole, federal and State courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority…. It has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. The anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. But I think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of American liberty; and that while Hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. I believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the American republic from the necessity of repeating the successive revolutionary experiences which France underwent before she could attain to a stable democracy."[Footnote: "Freedom and Responsibility," 23, 24.]