Social Civics

The Highest Court in the Land.—Visitors to the Capitol at Washington on any week day from October to June are usually interested to see a group of nine distinguished-looking men, robed in silk gowns, passing at noon through the long corridor into a room where a clerk begins to call out, “Oyez! Oyez!”^[137] This is the Supreme Court of the United States, the highest court in the land and the most powerful tribunal in the world. It consists of a chief justice and eight associate justices, all of them appointed for life by the President with the consent of the Senate. They cannot be removed from office except by impeachment. The court holds its sessions in the chamber which was used by the Senate in the days when that body was small. The justices sit in a row, the chief justice in the center, with four associates on each side of him. There is no jury, and for the most part the court simply hears the arguments of attorneys on points of law in cases which have been appealed. The sessions begin at twelve o’clock, and continue, with a brief interruption for luncheon, until late in the afternoon. Every Saturday morning the court meets behind closed doors to agree upon its decisions and on Mondays the decisions are publicly announced. These nine justices are the supreme guardians of the constitution, entrusted with the duty of seeing that its provisions are duly respected by all officials of government from the President and Congress down to the humblest officeholder. Their mandate is binding upon everyone within the jurisdiction of the United States.^[138]

The Supreme Court’s Power.—Congress, as has been pointed out, is the lawmaking branch of the federal government. With the approval of the President its power to enact laws, within the limits prescribed by the constitution, is complete and final. The state legislatures are the lawmaking organs of state government and with the approval of the governors the authority of the state legislatures to make laws within limits prescribed by the national and state constitutions is also complete and final. Yet the Supreme Court, by a majority vote of its nine justices, may nullify laws passed by either Congress or the state legislatures. It has done so on many occasions. Why have we given to this small group of men, appointed for life, the power to set aside the action of the people’s representatives?

The answer is this: American government, both in the nation and in the states, rests upon certain fundamental rules which are embodied in written constitutions. These rules determine, among other things, the powers and functions of government officers and bodies, including Congress and the legislatures. They have been placed in the national and state constitutions with the intent that they shall be obeyed, and if they were not obeyed one branch of the government would be encroaching upon the powers of the other. But how can powerful bodies like Congress and the state legislatures be held to the obedience of rules laid down in the national constitution? The Supreme Court performs this duty by declaring “unconstitutional” any law which, in its judgment, violates the provisions of that document. The constitution, for example, provides that Congress shall pass no bill of attainder. If Congress should enact a measure of that kind, the court would nullify it. The constitution stipulates that no state shall make any law impairing the obligations of contract. If any state legislature should enact such a law, the Supreme Court would declare it to be unconstitutional and void.

Now this does not mean that the justices of the Supreme Court have the right to veto any measure at their discretion. They have nothing to do with the merits of a measure, nothing to do with the question whether it has been wisely passed. The only issue they decide is whether a law conforms to the provisions of the constitution. If they find that it does not, they have authority to set it aside. And so long as government is based upon written constitutions there must be some body with power to decide whether a law is constitutional or not. Every branch of the government is under a natural temptation to extend its own authority. State legislatures would like to have a share in regulating the trunk railroads; Congress would like to decide how much money may be spent by candidates for senatorial nominations. Both of them have tried to extend their authority in these directions during the past few years although the constitution does not warrant their so doing. We must have some body, therefore, endowed with the right to say to all public officials and legislative bodies: “Thus far shall you go and no further; here is the point where your authority, under the constitution, comes to an end.”

It is quite true that decisions of the Supreme Court are sometimes unpopular. People who are eager for humanitarian reforms, when they see the Supreme Court annulling measures which Congress has passed to protect women or children, or the weak or the poor, are in the habit of crying out that the court is an obstacle to progress and that its power to declare laws unconstitutional should be taken away. They overlook the fact that if there were no supreme tribunal to keep Congress within its constitutional limits, it would be easy for Congress, step by step, to take away all the powers now possessed by the states and to centralize at Washington the entire government of the country. Under a federal system of government, with powers divided between the nation and the states as they are in this country, disputes as to where a particular power belongs are sure to arise. How could we devise a more satisfactory plan of deciding these disputes than by referring them to an impartial body of nine men chosen for life from among the ablest jurists of the land? Do we propose to abolish the powers of juries because they sometimes render unpopular verdicts? People sometimes question the wisdom of the Supreme Court, but no one has ever doubted its integrity.^[139]

How Cases Come Before the Federal Courts.—The authority to try cases is divided by the national constitution into two parts, and each part is assigned to two separate systems of courts. Certain classes of cases are named in the national constitution as falling within “the judicial power of the United States” and these cases are tried in the federal courts. All other classes of cases (and this includes the great majority of legal disputes) are left to the state courts. The controversies named in the national constitution as matters for trial in the federal courts are those which it did not seem wise to let the various state courts decide, for example, cases arising out of treaties made by the United States, or controversies between two states, or between citizens of different states. This is a wise arrangement, for if the state courts could say the last word on the interpretation of treaties, the nation might easily find itself forced into trouble with foreign countries. If cases between citizens of different states were tried in the courts of either state, there would be a temptation for these courts to favor their own citizens. Even the rule which requires that cases affecting ambassadors shall be heard in the federal courts has a good reason, for the United States guarantees to all foreign ambassadors the privileges of international law and must be in a position to see that these guarantees are respected. The entire list of cases over which federal courts have jurisdiction is so clearly set forth in the constitution that there is no need for repeating it here.^[140]

When any dispute arises between individuals or corporations the lawyers who bring the suit determine whether the matter is one for the federal or the state courts to hear. This they do by considering whether the controversy comes within any of the classes named in the constitutional provision just mentioned. If they find that it does, the suit is usually commenced in the federal courts; otherwise it is begun in the state courts. Most suits begin in the lowest court, and, if the decision is not satisfactory, can be carried on appeal to the higher federal or state courts as the case may be, until finally a very small proportion of them reach the Supreme Court.^[141] But not all cases which are heard in the lower federal courts, or in the state courts, can be brought up to the Supreme Court of the United States. If that were permitted, the Supreme Court would never be able to handle all the business which would come before it. From the lower federal courts only cases of great importance can be brought to it, and from the state courts only controversies in which some provision of the national constitution is involved.

The Lower Federal Courts.—The lower federal courts are called district and circuit courts. The country is divided into about one hundred judicial districts, in each of which there is a United States district court with a judge, a marshall, and a district attorney, all appointed by the President. Next above these courts are the circuit courts of appeals. There are nine of these courts, each having jurisdiction within a certain section of the country. A circuit court of appeals has from two to four judges, appointed by the President, and also has its own court officials. These courts derive their name from the fact that they go “on circuit”, that is, they move about from one large city to another within their respective sections of the country holding sessions in each. In most cases they have final jurisdiction.^[142]

The Law

What is Meant by the Law.—Having outlined the organization and jurisdiction of the federal courts, the question next arises: What branches of law do American courts administer? We often speak of the courts as administering “justice ”, and it is no doubt true that their decisions usually@ possess the quality of justice; but what the courts really administer is the law. The law may be just or unjust, and it is very difficult, if not impossible, for any court to wring justice out of an unjust law. Where injustice is done, the law and not the court is in most cases to blame.

The Common Law.—Speaking broadly the system of jurisprudence which American courts administer is made up of three branches, known as common law, statutory law, and equity. Of these the common law is made up of various time-honored usages, some of which go back many hundreds of years. The common law began its growth in mediaeval England when there were very few written rules, and the courts found it necessary to decide cases in accordance with the usages or customs of the people. Gradually these decisions became uniform, one court following the example of another, until this body of usages interpreted by judicial decision became “common” or universal throughout the whole realm of England although it had never been so established by any action of parliament. Thus the rule developed that no man should be compelled to testify against himself, that mere hearsay should not (with certain exceptions) be received as evidence, that all witnesses should be put upon oath, that questions of fact should be decided by juries, that agreements to restrain trade in an unreasonable manner were punishable, and so on.^[143] During several centuries a great body of legal rules developed in this way and the system of common law was brought by the English colonists to America, where it speedily took root and was administered by the colonial courts.^[144] After the Revolution it was continued and it still remains the groundwork of the law in all the states except Louisiana. Of course it has been gradually modified during the past hundred or more years by court decisions and by statutes, and it still keeps on changing.

Statutory Law.—Second, there is statutory law. This is law made by definite action of the people or their representatives. Constitutions are in effect statutory law, supreme statutory law. Laws enacted by the people through the initiative and referendum are statutory law. |Statutes.| Most statutory law, however, consists of laws made by Congress, by the state legislatures, by city councils, and by other regular lawmaking bodies.^[145] These enactments supplement or alter the common law. Until a statute is passed affecting any question, the common law prevails. Whenever a statute conflicts with a provision of the common law, the statute prevails. But when ordinary statutes conflict with the constitution, the constitution prevails. Enormous numbers of statutes are enacted each year by Congress and the legislatures of the forty-eight states. They now form the larger part of the whole system of law.

The Need for Greater Uniformity in Statute Law.—In many matters of business the fact that the statutes are different in every one of the forty-eight states is a great disadvantage. When wholesale dealers sell goods on credit to merchants in far-off states they want to know just what the laws provide in the matter of collecting debts. The only way to do this is to enquire into the statutes of each state where goods are sold. So it is with wills, contracts, notes, and so on. In some states a will must have three witnesses; in others only two. The man who endorses a note in one state assumes greater liabilities than are assumed by endorsers somewhere else. To remedy this situation there is a strong movement to secure uniformity among all the states in the case of certain important statutes (for example, the statutes relating to sales). A commission of eminent lawyers has been at work for years preparing uniform laws on various subjects and some of these have been adopted by the legislatures of many states.states. A uniform statute relating to negotiable instruments (notes, bills of exchange, etc.) has now been adopted by more than forty states, and a uniform sales act by about a dozen of them.

Equity.—Finally, there is the branch of jurisprudence known as equity. People think of this word as implying something that is more just than the law, something which has its roots in the conscience of the judge rather than in the statute books. But equity as actually administered in the courts is made up of formal rules which the judges apply in certain cases without having much discretion in the matter. The rules of equity are written in books just like the rules of law, and they are about as precise.

The origin of these rules is an interesting story which cannot be narrated here save in the briefest way. In early England there grew up, side by side with the common law, a set of unwritten rules administered by the chancellor, who was called the “keeper of the king’s conscience” and to whom people could appeal for relief when they felt that they had not received justice in the courts of common law. At the outset the chancellor, whose office eventually grew into a Court of Chancery, decided every case on its own merits; but in due course all cases of the same kind came to be decided in the same way, and thus a set of rules or principles was gradually formulated. With further growth these rules of chancery or equity were gathered together, arranged logically, put into written form, applied by the English courts, brought to America in colonial days, retained after the Revolution, and they continue in force at the present time.

The differences between law and equity are too technical to be explained here; even lawyers sometimes fail to understand them thoroughly.^[146] Cases in equity often result in the issue of injunctions and the issue of these injunctions in labor disputes has given rise to much complaint. (See pp. 407-408.) Both equity and law are usually administered by the same courts.^[147]

Judicial Procedure

The Jury System.—When a legal dispute arises between individuals or corporations, or when some offence is charged against a person, there are usually two questions to be decided. The first question is: What are the facts? What actually took place? The second question is: What does the law provide with reference to these facts? If you charge someone with having done you a wrong, it is not enough to prove your charge; you must also convince the court that common law, or statutory law, or equity gives you the right to redress. The first question in most important cases, both criminal and civil, is decided by a jury; the second question by a judge.

The Grand Jury.—There are two kinds of juries, both of which are selected in much the same way, but their functions are quite different. The first is called the grand jury. It is a body of men, varying from seven to twenty-three in number, chosen by lot from among the qualified voters of the county or district, and charged with the duty of investigating whether crimes have been committed. Evidence is presented to it by the prosecuting attorney, or the grand jury may make investigations on its own behalf. |Its work.| It conducts an investigation, not a trial. If it decides by a majority vote that there are reasonable grounds for placing any person on trial, it submits to the court a true bill or indictment. If it believes that any conditions within the county or district are wrong and ought to be remedied, it submits to the court a statement of these conditions, which is called a presentment. When a person is indicted by a grand jury, this does not mean that he has been proved guilty but merely that, in the grand jury’s opinion, he ought to be placed on trial. The grand jury does not hear the accused person’s side of the case. Its purpose is to protect individuals from being put to the inconvenience and humiliation of a public trial unless there are reasonable grounds for doing this.^[148]

The Trial Jury.—The other jury is known as the trial jury or petit jury and practically always consists of twelve persons. The method of selecting a trial jury is, in general, as follows: Some public official who is entrusted by the law with this duty makes a list of the persons who are liable for jury service. This list is usually compiled from the roll of voters, leaving off all persons (such as lawyers, physicians, public officials, and so on) who are exempted by law from jury duty. From this list a certain number of names, perhaps fifty to a hundred, are then selected, usually by lot. These individuals are thereupon summoned to court, where they form what is known as the jury panel. One by one their names are called in court and the lawyers on either side of the case are given an opportunity to state their objections.^[149] When twelve persons have been found to whom there is no objection from either side, these twelve constitute the jury and proceed to hear the facts of the case. |Its work.| The trial jury, however, may hear only such evidence as the judge permits it to hear, for the question whether any item of evidence can be permitted is a question of law. The value of the evidence, after the judge has allowed the jury to hear it, is for the jury to determine.

The usual procedure in a jury trial, therefore, is this: When the jury has been chosen and sworn to decide the issue fairly, the prosecuting attorney (or, in a civil case, the counsel for the plaintiff) states briefly to the court what he intends to prove. Then the witnesses for the prosecution, or for the plaintiff, are called, put upon oath, and questioned. As each witness finishes his direct testimony the defendant’s counsel takes him in hand for cross-examination. The purpose of this cross-examination is to test the witness, to see if he is telling the truth, or to induce him to say things which will weaken his original testimony.^[150] When the witnesses for the prosecution have finished, the witnesses for the defendant are called and they likewise are cross-examined by the other side. After all the testimony is concluded the counsel on both sides make addresses to the jury, the judge explains to the jurymen the points of law bearing on the case, and the jury retires to consider its verdict. This it does in secret, remaining in a room which no one is allowed to enter or leave.

In criminal cases the verdict must be unanimous one way or the other; if not, the case has to be tried all over again.^[151] In civil cases unanimous verdicts are required in some states but not in others. The verdict, whatever it may be, is reported in open court and is ordinarily conclusive. In some cases, however, the presiding judge is empowered to set a unanimous verdict aside and to order a new trial.^[152] Where an accused person is found not guilty by the unanimous verdict of a jury he may never, under any circumstances, be placed on trial for the same offence again.^[153] If he is found guilty, on the other hand, he has in most cases the right to appeal, on points of law, to a higher court.

Value of the Jury System.—The jury system has great value but also some serious defects. Its value consists in assuring to everyone a fair determination of the facts by an impartial body of his neighbors, each one of whom is sworn to decide without fear or favor. It is a great safeguard against the tyranny of judges and public officials. On the other hand it makes judicial administration expensive (for the jurymen have to be paid); it results in making trials much longer than if the evidence were heard by a judge alone; and the requirement that verdicts shall be unanimous often results in no verdict at all. Exemptions from jury service have been given too freely, so that juries are sometimes made up of men who serve because they have no other work to do. The others are either exempted by law or ask to be excused by the court. Prolonged trials and close confinement make jury service a burden which many people try to evade. In serious cases the jurymen are sometimes not permitted to visit their homes for weeks at a time; they sleep in the courthouse, have their meals under the watchful eye of the sheriff, and are not permitted to read the newspapers while the trial lasts. Occasionally we have witnessed the absurd spectacle of a jury kept under guard while the prisoner was out on bail. Yet with all its faults the jury system affords a safer method of trying criminal cases than trial by a judge alone. On the other hand the use of jury trials in civil cases, particularly where the matters in dispute are not of great importance, tends to delay the work of the courts. It has been suggested that all such cases ought to be tried by the judge alone.

The Law’s Delays.—Much complaint is heard nowadays because lawsuits are so long and involve so much expense. The courts are often so overwhelmed with cases that a lawsuit which is brought today cannot be tried for many months. The privilege of appealing from the decisions of lower courts is so widely granted, moreover, that when lawsuits are once begun they may not be ended for years. The claim is often made that all this gives a great advantage to the rich man or the large corporation as against the ordinary individual who cannot afford the expense involved in prolonged litigation. Lawsuits require the hiring of lawyers by both sides and the assistance of lawyers is costly. Judicial procedure can be much simplified, and it ought to be. It probably would be simplified were it not for lawyers. Lawyers profit by the law’s delays; the more lawsuits and the more prolonged they are, the more profitable it is for them. And lawyers form a large element in the legislatures which make the laws relating to court procedure. This is not to imply, however, that lawyers on the whole fail to promote the interests of justice. They do perform great services in this respect. The ends of justice would be far less perfectly served were it not for lawyers.

The main reason for the slowness with which justice is administered in the United States can be found in the great (and perhaps unnecessary) amount of care which is taken to assure every individual his legal rights. This has multiplied appeals, encouraged technicalities, and given the courts far too much to do. The right to be given a full and fair trial, to have a jury in most cases, to appeal, and to have due process of law with all that this implies—these are rights which the constitution guarantees and which we greatly value. Valuable they are, no doubt, but they make the course of justice slower in the United States than in other countries where these constitutional safeguards do not exist. A famous Prussian king, Frederick the Great, once ordered that every lawsuit should be brought to an end within a year. Despots can make their courts move quickly in this way; but nothing of the sort is possible in a democracy.

Yet the courts are, when all is said and done, the most important among the institutions of free government. Corruption and incompetence in legislatures, or in the executive branch of the government, are serious evils when they exist, to be sure; but when incompetence and corruption invade the judiciary they reach to the very heart of the Republic. The Great Charter of 1215 provided that “justice should not be sold, delayed, or denied to any man”. That is a principle which must be maintained at all costs.

C. A. Beard, American Government and Politics, pp. 294-314; Ibid., Readings in American Government and Politics, pp. 273-290; 488-508;

Everett Kimball, National Government of the United States, pp. 379-422;

James T. Young, The New American Government and Its Work, pp. 275-297;

W. B. Munro, The Government of the United States, pp. 342-371;

S. E. Baldwin, The American Judiciary, especially pp. 3-124;

J. C. Gray, The Nature and Sources of the Law, pp. 84-112.

1. What can be done to improve the work of the courts? Present organization of the courts. How cases are brought. Figures concerning the number of cases. How far are the courts behind in their work? Causes of congestion. Has the jury system anything to do with it? The right to new trials. The right of appeal. Other factors which make for delay. The expensiveness of lawsuits. Justice and the poor. Proposed reforms in judicial procedure. Conclusions. References: S. E. Baldwin, The American Judiciary, pp. 197-251; 365-373; C. A. Beard, Readings in American Government and Politics, pp. 500-508; R. H. Smith, Justice and the Poor, pp. 3-34; C. G. Haines and Bertha Haines, Principles and Problems of Government, pp. 367-402; American Bar Association, Report on the Reform of Judicial Procedure (in Journal of the American Bar Association, Vol. VI, pp. 509-527, July, 1920); See also The Cleveland Survey, 1921.

2. The Supreme Court of the United States and its place in the American scheme of Government. References: W. B. Munro, Government of the United States, pp. 357-371; P. S. Reinsch, Readings on American Federal Government, pp. 703-720; C. A. Beard, Readings in American Government and Politics, pp. 288-290; W. W. Willoughby, The Supreme Court of the United States, pp. 22-42.

1. The Supreme Court at work. F. J. Haskin, American Government, pp. 325-336.

2. The practice of declaring laws invalid. C. G. Haines, The American Doctrine of Judicial Supremacy, pp. 173-184; E. S. Corwin, The Doctrine of Judicial Review, pp. 1-44.

3. The influence of Supreme Court decisions. P. S. Reinsch, Readings on American Federal Government, pp. 706-716.

4. Law: its nature and development. Woodrow Wilson, The State, pp. 69-93.

5. The common law. J. C. Carter, Law: Its Origin and Growth, pp. 167-190; J. C. Gray, The Nature and Sources of the Law, pp. 82-108; 266-292; Sir Frederick Pollock, The Genius of the Common Law, pp. 1-26.

6. Trial by jury. S. E. Baldwin, The American Judiciary, pp. 184-196.

7. Criminal procedure. Ibid., pp. 226-251.

8. The law’s delays. C. A. Beard, Readings in American Government and Politics, pp. 500-505.

9. Justice and the poor. R. H. Smith, Justice and the Poor, pp. 41-59.

10. The courts and democracy. J. H. Tufts, Our Democracy, pp. 255-267.

1. Is it essential that a country with a government like that of the United States should have some body vested with the power to declare laws unconstitutional? Why or why not?

2. Under what circumstances might a murder case come to the Supreme Court?

3. Tell in each case whether the following controversies would come up in the federal or the state courts and give your reasons: (a) a man charged with murder on an American ship at sea; (b) a suit between the Standard Oil Company of New Jersey and the Ford Motor Company of Michigan; (c) a suit brought by Nicholas Nickleby, a citizen of Illinois, against the State of New York; (d) a charge of embezzlement brought against the cashier of a national bank; (e) a complaint against a railroad conductor for assaulting a passenger at a railroad station in Pennsylvania; (f) a charge against a foreign ambassador; (g) a suit brought by a citizen of Massachusetts against a citizen of California for non-payment of a note.

4. What are the subordinate federal courts? How are they organized? How are judges appointed and for what terms? How are they removed?

5. Describe all the steps in a criminal trial by jury, from arrest to conviction.

6. Explain the following terms, using a dictionary where needed: plaintiff; jury panel; venireman; demurrer; second jeopardy; appellate jurisdiction; writ of habeas corpus; affidavit; cross-examination; peremptory challenge; counsel for the defendant.

7. Why should not every voter be required to do jury service when his turn comes? What classes of citizens are exempted in your state? Do you think that these exemptions are justified? Is it right that women should be called on for jury service? Are there any cases in which they should not serve?

8. To what extent should the right of appeal be limited?

9. If a person is found not guilty and a few days later confesses that he actually did commit the crime with which he was charged, he cannot be placed on trial again. Do you think this is right? Why does this rule exist?

10. What suggestions can you make for the prevention of existing delays in the administration of justice?

1. The power of the Supreme Court to declare laws unconstitutional should be taken away.

2. Trial by jury should be abolished in civil cases.

3. The loser in a law suit should not be compelled to pay all the winner’s costs, including his lawyer’s fees.