The American Judiciary Part 19

It is not surprising that American judicial salaries are no greater, but rather that they are so large. They are fixed by a legislature, the majority of the members of which are men of very moderate income, and when originally fixed in the older States it was often by men not altogether friendly to the judiciary. It was a saying of Aaron Burr, which was not wholly untrue in his day, that "every legislature in their treatment of the judiciary is a d.a.m.ned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"

186.] Only the influence of the bar has carried through the successive increases which have been everywhere made.

The first pension to a retired judge ever granted in the United States was one of $300 voted in Kentucky in 1803. It was offered to one of the members of the Court of Appeals to induce him to resign, but the year after his resignation the statute was repealed on the ground that it was unconst.i.tutional.[Footnote: Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United States have allowed their judges who have reached the age of seventy, after not less than ten years' service, to retire, at their option, receiving the full official salary during the remainder of their lives. Rhode Island gives hers the same privilege after twenty-five years' service, and Ma.s.sachusetts and Maryland have somewhat similar provisions, except that the judges on retirement receive but part of what they formerly did. The Connecticut legislature is in the habit of appointing her judges, both of the Supreme and Superior Court, when retired at the age of seventy, State referees for life, with an allowance of $2,500 for salary and expenses, their duties being to try such questions of fact as the courts may refer to them and to report their conclusions.

Our State Const.i.tutions now generally provide that judges shall hold no other public office. Some also provide that all votes for any of them for any other than a judicial office shall be void.

Occasionally a judge, in order to eke out his official income, accepts a salaried position, calling for but little of his time, in a matter of private business employment. This, however, is rarely done and there are obvious objections to it when the employer is one likely to have business before the court. Many of the judges of the higher courts, including several of the justices of the Supreme Court of the United States, are professors or lecturers in law schools.

The best mode of appointing judges is that which secures the best men. Such men are unlikely to accept a place on the bench of one of the higher courts, unless it carries with it some prospect of permanence. It does, if it comes to them by way of promotion after they have served acceptably for a length of time in an inferior court. But most judges must be taken from the bar and, save in very unusual cases, will be in large and active practice.

This must be totally abandoned if they take one of the higher judicial positions; and if they take the lowest, must be made secondary to it. A lawyer's practice is more easily lost than gathered. If it is a solid one, it is of slow growth. For one who has turned from the bar to the bench to expect on retirement from office to resume his old practice would be to expect the impossible. He may have achieved a position by his judicial work which will enable him to take a better position at the bar; but in that case his clients will be mainly new ones. He is more likely, particularly if no longer young, to sink into a meagre office practice and feel the pinch of narrow means, always doubly sharp to one who by force of circ.u.mstances has a certain social standing to maintain. The leaders at the bar therefore seldom consent to go upon the bench unless they have property enough to ensure their comfortable support after they leave it, without returning to the labors of the bar.

This is one of those evils which carry in some sort their own antidote. The lawyers, as a body, are always anxious for their own sake to have an able and independent bench. They do not wish to trust their causes, when they come before a court of last resort for final disposition, to men of inferior capacity and standing. They therefore can generally be relied on to urge on the nominating or appointing power the selection of competent men. Their influence in this respect is little short of controlling. If competent men will not ordinarily go on the bench of an appellate court, unless by way of promotion, until they have acc.u.mulated a sufficient fortune to make them comfortable in old age, then as competent men will usually, in one way or another, be selected, and as few of these are men who from their youth have been occupying judicial positions, the judges will usually be possessed of some independent means. A property qualification almost is thus imposed by circ.u.mstances on those forming the American judiciary in its highest places. The same thing is true of our higher diplomatic positions. As Goethe has said, there is a dignity in gold. It is a poor kind of dignity when unsupported by merit, but if to gold merit be joined, each lends to the other solidity and power.

Among the men of the first eminence at the bar whom the meagerness of the salary has kept off the bench may be mentioned Jeremiah Mason, who declined the position of Chief Justice of New Hamps.h.i.+re on this account, and William Wirt. Wirt in 1802 was made one of the Chancellors of Virginia at the age of twenty-nine. The salary and fees amounted to about five hundred pounds a year. He married on the strength of it, but in a few months found that his income was insufficient to maintain his family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91, 99.]

Dignity and power, however, are strong attractions. Theophilus Parsons in 1806 left a practice worth $10,000 a year--the largest in New England in his day--to take the place of Chief Justice of Ma.s.sachusetts on a salary of $2,500. After three years he sent in his resignation, saying that he found that this sum was insufficient for his support, even with the addition of the income from such property as he possessed. The legislature thereupon raised the salary to $3,500, and he remained on the bench through a long life.[Footnote: "Memoir of Chief Justice Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode Island, who then had a practice of $8,000 a year, gave it up for the Chief Justices.h.i.+p of the State, though the salary was then but $750, supplemented by some trifling fees. In a few years, however, he resigned the office on account of the inadequacy of the compensation.[Footnote: Payne, "Reminiscences of the Rhode Island Bar," 75.]

The qualities of a judge are by no means the qualities of a politician. The faculty of looking at both sides of a question and the power of forming deliberate and well-considered judgments do not tell for much in a campaign speech. The politician's t.i.tle to support is standing by his friends. The judge's duty may be to decide a cause against his friends. Many a lawyer of eminence might accept a nomination from a President or Governor involving no partic.i.p.ation in a political election contest who would refuse one from a party convention.

The general sentiment of thinking men in the United States is that judges should never be chosen by popular vote. It is, however, an unpopular sentiment. The people in general do not appreciate the difference between their fitness to select political rulers and to select judicial rulers--to choose out good men and to choose out good lawyers. And the people make and ought to make our Const.i.tutions. Rufus Choate once said that the question at bottom was, Are you afraid to trust the people? If you answer Yes, then they cry out that "he blasphemeth." If you answer No, they naturally reply, Then let them elect their judges.

Jefferson was the first to suggest an elective judiciary, basing his opinion on a misconception of the usage in Connecticut.

There, he wrote, the judges had been chosen by the people every six months for nearly two centuries, yet with few changes on the bench, "so powerful is the curb of incessant responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of July 12, 1816, regarding a new Const.i.tution for Virginia.] In fact, the Connecticut judges were chosen annually, and those not holding judicial powers as an incident of political ones were appointed by the legislature. The experiment of resorting to popular election was first fully tried in Mississippi in 1832, under the influence of Governor Henry T. Foote, but in later life he expressed his regret at the course which he had taken, and the belief that it had weakened the character of the bench.[Footnote: "Casket of Reminiscenses," 348.]

The scheme of popular election may be pursued with reasonable success if the bar use all the influence at their command to secure both good nominations originally and the re-election of all who have served well.[Footnote: It is not uncommon for local bar a.s.sociations after the party nominations for the bench have been made to refer them to a committee, on the report of which those deemed the best are commended for popular approval. In two judicial districts in Iowa, the lawyers nominate judges for the district in a convention of delegates from the bar, and then see to it that the nominations are ratified by the party conventions.

Simon Fleischmann, "The Influence of the Bar in the Selection of Judges," Report of 28th annual meeting of the New York State Bar a.s.sociation (1905).] A conspicuous instance of its success under such conditions is shown by the repeated re-election of Judge Joseph E. Gary of the criminal court of the city of Chicago.

Originally elected in 1863, when it was called the Recorder's Court, he has been re-elected for successive terms of six years without a break, and in 1903, when he was 82 years old and still in active service on the bench, received well-merited addresses of congratulation from the Chicago Law Inst.i.tute and the Chicago Bar a.s.sociation. Judges of Probate, whose functions are largely of a business character, and who are brought into close contact with the people at first hand, are frequently re-elected for a long period of years with little regard to their party affiliations.[Footnote: In the Probate District of Hartford in Connecticut there have been but two judges during the last forty years, though the elections have been annual or biennial.]

In case of those having long terms of office, a re-election comes more easily and commonly. A man who has been ten or twenty years upon the bench has become set apart from the community. The people have ceased to think of him as one of themselves, so far as the active political and business life of the day is concerned. His position and his work, if it has been good, have given him a certain elevation of station. Men have learned to trust him, and to feel that his presence on the court helps to make liberty and property more secure. If he receives his party nomination, he is apt to secure a majority of votes, whether the others on the ticket are or are not elected. The opposing party often nominates him also, and sometimes, if his own gives the nomination to another, nominates him itself, and with success.

In New York it has been generally the case that a good judge of the Court of Appeals or Supreme Court is re-elected until he reaches the age limit set by the Const.i.tution. To accomplish this, however, it has been necessary for the bar to use constant efforts to bring the nominating conventions of both parties to the support of the same man or men, and personal ambition and party feeling have on a number of occasions set up an effectual bar. Before a recent election of two judges in that State, in preparation for which a scheme had been suggested by which one of the outgoing judges of each party should be re-elected, a third candidate for the succession, himself a prominent member of the bar and an officer of the State, published a lengthy statement of his claims, which concluded thus:

"I am a candidate for nomination to the office of a.s.sociate Judge of the Court of Appeals at the coming Democratic State Convention. I appeal to my fellow-citizens for their support.

While I do not believe that support for judicial candidacy should be unduly importuned, I feel that the present circ.u.mstances justify me in making this announcement. I have always stood by my party in its dark days, when others voted the Republican ticket in the interest of their business. I have a.s.sisted in endeavors to so shape its policies as to make success possible.

Now that this has been accomplished, I do not think that my fellow-Democrats will thrust me aside to make way for those who neither affiliate with the party nor vote its ticket."

As a general rule, in the country at large political considerations are decisive, both in cases of popular election and of executive nomination, but as to the latter exceptions are more frequent. One instance has occurred in which a President of the United States nominated to the Supreme Court a member of the party in opposition to the administration,[Footnote: Howell E. Jackson, a Democrat, was thus appointed by President Harrison, a Republican, in 1893. President Taft, a Republican, has since appointed two Democrats, justices Lurton and Lamar, and made a third Chief Justice.] and the same President, upon the creation of the Circuit Court of Appeals, when there were a number of new judges to be appointed, gave several of the places to those not of his political faith. It is, however, to be expected that the Presidents of the United States, as a general rule, will place upon the Supreme Court none whose political opinions are not similar to their own. It is a court wielding too great a political power to allow this ground of qualification to be lightly pa.s.sed over.

Precisely because of this, the political antecedents of the justices of the Supreme Court are more apt to be discoverable in their opinions than is the case in State courts. Professor William G. Sumner, in referring to the change of character of the Supreme Court by reason of Jackson's appointments to it, remarks with some truth that "the effect of political appointments to the bench is always traceable after two or three years in the reports, which come to read like a collection of old stump speeches."[Footnote: "Life of Andrew Jackson," 363.]

In States where the judges are only appointed for a certain term of years, it is not unusual for the Governor, if he has the power of nomination, to exercise it in favor of outgoing judges who are his political opponents. So, also, if there happen to be several original vacancies to fill, it is the traditional method in a few States to give one of the places to a member of the opposition party. If the election belongs to the legislature, a similar practice prevails in some of the older States. In Connecticut but six instances of refusing a re-election to judges of the higher courts for mere party reasons have occurred for more than a hundred years.[Footnote: Judges Baldwin, G.o.ddard, Gould and Trumbull were dropped in 1818 and 1819 as an incident of the political revolution which destroyed the Federalist party in Connecticut and brought about the adoption of a Const.i.tution, under which the judges were to hold for life, to replace the royal charter. Judges Seymour and Waldo were dropped in 1863 during the Civil War, because they were cla.s.sed with the "Peace Democrats." Their successors, however, were appointed from the "War Democrats," though the legislature was Republican.] In Vermont, where elections to the Supreme Court were annual, Judge Redfield was placed on the Supreme bench and then re-elected year after year for twenty-three successive years by legislatures controlled by the party politically opposed to him.[Footnote: Edward J. Phelps, "Orations and Essays," 220.]

In a few States it is not customary for his party to renominate a judge more than once. Two terms are considered enough for one man, and when he has served them he should make room for some one else. Many a judge has thus been taken from the bench at a time when, with the aid of experience, he was doing his best work.

Appointments to appellate courts are generally provided for by a scheme calculated to prevent any sudden and general changes of members.h.i.+p. Not more than one or two receive an appointment in any one year, so that the terms of not more than one or two can expire at the same time. Where judges hold for life or--as is frequently the case--if there is a const.i.tutional provision that no judge shall hold office after reaching the age of seventy, the vacancies will, of course, occur and be filled at irregular intervals. All this, in connection with the natural tendency to reappoint judges who have earned the public confidence, secures to the court a certain continuity of existence and consistency of view. In every court of last resort in the older States there will be apt to be found some who have served ten or twenty years and were at first a.s.sociated with those who had themselves then served as long. It is not easy to "pack" a court thus const.i.tuted. If, however, some question of supreme political importance is looming up, likely soon to become the subject of litigation, the nominating or appointing power is not likely to be insensible of the party advantages that may result from its decision in a particular way by the highest judicial authority, nor of the importance of the vote to be cast by each who may share in its administration.

During the Civil War Congress pa.s.sed a conscription law. The Supreme Court of Pennsylvania p.r.o.nounced it unconst.i.tutional, and advised the issue of a temporary injunction to prevent its enforcement by the officials charged with that function. The term of the Chief Justice was about to expire. The decision had been made by three judges, of whom he was one, against two who dissented. The political party to which he belonged renominated him, but he was defeated at the polls. A motion was soon afterwards made to dissolve the injunction. His successor joined with the former minority in advising that the motion be granted, and on the ground that the Act of Congress was not unconst.i.tutional. The two remaining members of the court adhered to their former opinion.[Footnote: Kneedler _v._ Lane, 45 Penn. State Reports, 238. See this case reviewed in Pomeroy, "Introduction to the Const.i.tutional Law of the United States,"

Sec. 479.]

In some States the justices of the Supreme Court select one of their number annually to be Chief Justice for the year ensuing.

In several, whenever there is a vacancy, the office falls, as of course, to the justice who has the shortest time to serve. This is a ready way to pa.s.s a t.i.tle about and attach it to as many men as possible in quick succession. Its ostensible defense is that there can be no unfair discrimination and favoritism in such an appointment, and that as the judge whose term has most nearly elapsed will naturally be the one who has served the longest, he will certainly have the advantages of experience. These considerations deserve little weight in view of the sacrifices that such a scheme entails. Unfair discrimination is indeed prevented, but so is a just and proper discrimination. The plan of promoting the senior a.s.sociate justice when a vacancy occurs is liable to similar objections, though in less degree. He is at least not unlikely to serve for a considerable time.

To be a good Chief Justice requires special gifts. Whoever holds that office should have not only learning and ability, but patience and courtesy in a high degree. He must be methodical in the transaction of business, if the docket of the court is a large one. He should have the art of presiding over its public sessions and disposing of the minor motions which may be made from the bar with dignity and tact. He should be a man who commonly carries his a.s.sociates with him at its private consultations in support of any doctrine which he is firmly convinced to be the law applicable to the case in hand. He should have the faculty of conciliation. He should know when to yield as well as to insist, in order to secure the best results for his court and for his State. He should be able to write a clear and forcible opinion. The best lawyer in the jurisdiction who may be supposed to have these qualities and will accept the position ought to be at the head of its judiciary. Many have been tempted from the bar by an offer of that place who would have refused the appointment of a.s.sociate justice. John Marshall was one of these. Chief Justice Parsons of Ma.s.sachusetts was another. In the Supreme Court of the United States no Chief Justice has ever been appointed from among the a.s.sociate justices, although a nomination was offered to and declined by Mr. Justice Cus.h.i.+ng in 1796. In the State courts the general practice is to the contrary, and it is common to fill a vacancy by appointing one of the a.s.sociate justices.

Popular election and life tenure cannot well go together. The chance of an irremediable mistake is too great. Judicial nominations are often the mere incident of the prevalence in a party convention of one faction of the delegates, whose main object is to control the nominations for other positions.

American experience seems to indicate life tenure and executive nomination, with some suitable provision for securing retirement at a certain age, as likely to secure the best judges of the higher courts. This has worked well for the United States, and no State courts have stood higher in the general opinion of the bar than those thus organized. For the lower courts there is less necessity and less chance for getting men of the first rank in attainments and character. Shorter terms of office can therefore reasonably be prescribed, and the objections to popular election are correspondingly less. Even as to them, however, the plan of executive nomination is safer than that of party nomination. A man acts carefully when he is the only one whom the public can hold responsible for what is done.

It is customary to provide that vacancies in judicial offices can be temporarily filled by the Executive until there is an opportunity for a new appointment or election by the proper authority.

The place of a judge who is absent or disqualified is in some States, by authority of a statute or agreement of the parties, occasionally taken by a member of the bar called in to try a particular cause or hold a particular term of court.[Footnote: See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg _v._ Brown, 32 Connecticut Reports, 112.] So the English a.s.size judges are const.i.tuted by special commissions for each circuit, which include also the barristers on the circuit who are sergeants at law, king's counsel, or holders of patents of precedence.

It is hard to dislodge a judge for misconduct or inefficiency.

Our Const.i.tutions give remedies by impeachment or by removal by the Governor on address of the legislature, but lengthy proceedings are generally necessary to obtain the benefit of them, and the decision is often in favor of the judge. Party feeling is apt to have its influence in such matters. Whether it does or does not, it is an unpleasant task to a.s.sume the initiative. Those who best know the facts are the lawyers, and if some of them are the ones to move, it is at the risk, should they fail, of having afterwards to conduct causes in a court presided over by one who is not likely to regard them with a friendly eye.

The number of judicial impeachments in the history of the country has been comparatively small, and few of these have resulted in convictions.[Footnote: See Chap. III.] Of the cases which were successful, the most noteworthy is that of Justice George G. Barnard of the Supreme Court of New York, who was convicted of having abused his right to issue _ex parte_ orders and of other measures of improper favoritism. The Bar a.s.sociation of the City of New York brought the charges, and were influential in carrying the whole proceeding through to a favorable result. In another instance, occurring in 1854 in Ma.s.sachusetts, the right of impeachment was stretched to its limit by removing a Judge of Probate, Edward G. Loring, the only real ground being that as a United States Commissioner he had ordered the return of a fugitive slave under the laws of the United States--laws the const.i.tutionality of which the highest court of the State had recently declared to be fully settled.[Footnote: Sims' Case, 7 Cus.h.i.+ng's Reports, 285.]

Judges of inferior courts are sometimes removable by the higher ones for cause, on complaint of a public prosecutor. In such case, the proceeding being strictly a judicial one, there is more a.s.surance of success if the charges are well founded. Here also, however, it will be known from whom they come, and the hearings are likely to be so protracted and expensive to the State that only a flagrant case will usually be taken up. The hearings on such a complaint, brought in New York in 1903, extended over thirty-six days; the stenographic minutes of the testimony covered over 3,300 pages; there were over four hundred exhibits introduced; and the items of cost presented for taxation amounted to over $20,000.

Removals by the Governor on the address of the legislature have been more frequent, and occasionally have been dictated largely by party managers who desired to make places for those of their own political faith.[Footnote: Schouler, "Const.i.tutional Studies," 288, note.] In one instance it was attempted, but unsuccessfully, in Kentucky as a punishment for giving a judicial opinion that a stay-law recently pa.s.sed by the legislature was unconst.i.tutional. A two-thirds vote of each house was required, and as in the lower house, though it voted for an address by a large majority, this could not be obtained, the proceeding was allowed to drop.[Footnote: Niles' Register, XXII, 266. See _ante_ p. 114.] In all there have been in the whole country since 1776 not over thirty removals, whether on impeachment and conviction or on address of the two houses, of judges of a higher grade than justices of the peace.[Footnote: See Foster, "Commentaries on the Const.i.tution of the United States,"

Appendix, 633.]

Wholesale removals have also, in rare instances, been effected for similar purposes by abolis.h.i.+ng courts, the judges of which held during good behavior.[Footnote: See Chap. VII.] Maryland was the first to do this, abolis.h.i.+ng a court and re-establis.h.i.+ng it at the same session, almost in the words of the former law.

Congress followed in 1802 by repealing the statute of the year before by which a new scheme of Circuit Courts was arranged and under which sixteen Federalists had been appointed to the bench.

Ma.s.sachusetts did the same thing in 1811 with respect to her Courts of Common Pleas.[Footnote: See Chap. VIII.]

The occurrence of vacancies has sometimes been prevented in a similar manner when the nominating or appointing authority was politically opposed to the legislature. The existence of a supreme court is required by all our Const.i.tutions, but the number of the judges is frequently left to be fixed from time to time by statute. The Federalists, when they were about to go out of power, provided that the Supreme Court of the United States should on the next vacancy be reduced from six to five, thus seeking to prevent Jefferson from filling such vacancy. By 1863 the number had been raised to ten, but three years later, when a Democratic President was contending with a Republican Congress, it was enacted that as vacancies might occur it should be reduced to seven. In 1869, when a Republican President had come in, the number was restored to nine, and the new justice for whom a place was thus made shortly joined in reversing a decision made by the court not long before and quite unsatisfactory to the majority in Congress on an important const.i.tutional point. Similar legislation, for like reasons, has been had in many of the States.

CHAPTER XXIII

THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH

Every lawyer is an officer of the court as fully as is the judge or the clerk. He has, indeed, a longer term of office than is generally accorded to them, for he holds his position for life, or during good behavior.

Courts could not exist under the American system without lawyers to stand between litigants and the judge or jury. It is a system that requires written pleadings, originally very artificial in form and still somewhat so. It imposes many limitations on the introduction of evidence, which often seem to shut out what ought to be admitted, and rest on reasons not apparent to any who have not been specially instructed in legal history. It divides the decision of a cause between judge and jury in a manner only to be understood after a long and close study. It gives a defeated party a right of review dependent on a number of technical rules, and to be availed of only by those who are skilled in the preparation of law papers of a peculiar kind.

A cla.s.s of men has therefore been set apart to keep the people from direct approach to the bench, except when they may desire to argue their own cases, which rarely occurs.

In England there are two such barriers, the cla.s.s of barristers and the cla.s.s of attorneys. The attorneys keep the people from access to the barristers; the barristers keep the attorneys from access to the court. The attorney prepares the case, represents his client in the proceedings preliminary to the trial, and a.s.sists the barrister whom he may retain at the trial, but cannot examine a witness or argue the cause.

In America we do not thus divide lawyers into two cla.s.ses. There are many of them who never in fact address the court, but it is not because they have not a legal right to do so. Every member of the bar of any court has all the legal rights of any other member of it.