CHAPTER FIVE

_Justice_

Going from the hall beneath the central dome of the Capitol toward the Senate, in the left wing one passes by an extraordinary room, in which there is generally a crowd of people. The nine judges of the federal court, the Supreme Court of the United States, are sitting there in their black gowns, between Greek columns. The President and his Cabinet, the Senate, and the House of Representatives fill the American with a pride which is tempered by some critical judgment on this or that feature, or perhaps by a lively party dissatisfaction. But every American who is competent to judge looks on the Supreme Court with unqualified admiration. He knows very well that no force in the country has done more for the peace, prosperity, and dignity of the United States. In the constitutional make-up of the Federal Government, the Supreme Court is the third division, and co-ordinate with the Legislative and the Executive departments.

The jurisprudence of a nation forms a totality; and therefore it will not do to discuss the work of the nine men sitting at the Capitol, without throwing at least a hasty glance at the administration of justice throughout this enormous country. There is hardly anything more confusing to a European; and while the Englishman finds many features which are reminiscent of English law, the German stands helpless before the complicated situation. It is, most of all, the extreme diversity of methods which disquiets him. It will be quite impossible to give here even a superficial picture of the machinery of justice. A few hints must suffice at this point, while we shall consider many features in other connections, especially in discussing social problems.

The jurisprudence adopted by the United States comes from three sources. The average American, on being asked what the law of his country is, would say that it is “common law.” If we except the State of Louisiana, which by a peculiarity has the Napoleonic Code, this reply suffices for a rough idea. But if a German, having in mind perhaps the two German law books, the penal and the civil codes, both of which he can put so easily into his pocket, were to ask after some formulation of the common law, he would be shown a couple of huge bookcases with several hundred stout volumes. Common law is not a law book, nor is it a system of abstract formulations, nor yet a codification of the prevailing ideas of justice. It is, in fact, the sum total of judicial decisions. The establishment of common law signifies that every new case as it comes up is decided in conformity with previous decisions. The earlier decision may be a bad one, and very much offend one’s sense of justice; but if no superior authority has annulled it, it becomes historic law and determines the future course of things. American law came originally from the English. The early English colonists brought with them across the ocean the ideas of the English judges, and the states which have sprung up lately have taken their law from the thirteen original states. If to-day, in Boston or San Francisco, any one finds a piece of jewelry on the street and another snatches it from him, he can have the thief arrested, although the object found is not his property. The judge will decide that he has a right to the object which he has found until the original owner appears, and the judge will so decide because in the year 1722 a London chimney-sweep found a valuable ornament, out of which a jeweler later stole a precious stone; and the English judge decided in favour of the chimney-sweep.

The disadvantages of such a system are obvious. Instead of a single book of law embodying the will of the nation, the decisions handed down by single insignificant judges in different parts of the world, decisions which originated under wholly other states of civilization and from other traditions, still have final authority. Again and again the judge has to adapt himself to old decisions, against which his sense of right morally rebels. Yet the deep, ethical motive behind this legal system is certainly plainly evident. The Anglo-Saxon would say that a national code cannot be constructed arbitrarily and artificially. Its only source is in the careful, responsible decisions given down by the accredited representatives of the public will in actual disputes which have arisen. There is no right or wrong, he would say, until two persons disagree and make a settlement necessary, and the judge who decides the case creates the right with the help of his own conscience; but as soon as he has given his decision, and it is set aside by no higher authority, the principle of the decision becomes justice for all times. Every day sees new formulations of justice, because new conflicts between human wills are always arising and require new settlements; but up to the moment when a decision is made there exist only two conflicting desires existing in the matter, but nothing which could be called justice.

Although it seems at first sight as if a legal system, which is composed of previous decisions, would soon become antiquated and petrified, the Anglo-Saxon would say with firm conviction that just such justice is the only one which can be living, because it springs not out of rationalistic preconceptions, but from actual experience. The Anglo-Saxon jurisprudence is full of historical reality and of picturesque individuality. It has grown as organically as language, and is, in the estimation of the Anglo-Saxon, as much superior to a mere code as the ordinary speech of a people, in spite of all its historical inconsistencies, is superior to an artificially constructed speech like Volapük. And he would find many other points of superiority. He would say, for instance, that this is the only system which gives to every man on the judge’s bench the serious sense of his responsibility; for the judge knows that in every case which he decides, he settles not only the fortunes of James and John there present, but he influences for all times the conception of justice of the entire nation. He feels especially that the binding force of previous decisions reassures the public sense of right, and lends a continuity which could never be afforded by the theoretical formulations of an abstract code.

Another factor must be taken into account. A judicial decision which is forgotten as quickly as the voice of the judge who speaks it, can never have so considerable an influence on the public mind as one which itself creates law. In one sense, to be sure, the German judge creates law too; the penal code sets wide limits to the punishment of a criminal, and within these limits the judge assigns a certain penalty. He does in a sense create the right for this particular case; but the characteristic difference is, that in the German Empire no subsequent decision is in the least affected by such preceding decision. The German judge finds justice prescribed for him and he is its servant, while the American makes it and is its master. This gives to the judicial utterance an historical weight and enduring significance, which contribute vastly toward keeping judicial doings in the focus of the public consciousness.

The same is brought about in still another way. Since the decision of the judge is largely dependent on previous cases, the fate of the parties contending may depend on whether they are able to point to previous decisions which are favourable to their side. The layman cannot do this, and it falls to the counsel. In this wise a sphere of action is open to the American lawyer which is incomparably greater than that of any German Anwalt. The former has to concern himself not only with the case in hand, but he has to connect this concrete instance with the whole historic past. Thus the profession of the lawyer comes to have an inner importance which is unknown to the European, and which in many cases necessarily exceeds the importance of the judge, since he is bound to comply with the decisions adduced by the counsels for both sides. The judges are selected from the ranks of lawyers, and are, therefore, brought up in the idea that law is composed of former decisions, and that the decisions of the bench are admirable only so far as they are consistent enough with the earlier ones to force the conviction and respect of the lawyers. Thus barristers and judges are entirely at one, and are together entrusted with the public sense of right, as it has developed itself historically, and as it is day by day added to and perpetuated, so that it shall be a never-failing source of quickening to the conscience of the masses.

In the masses of the people, on the other hand, the natural tendencies are favourable anyhow for developing a lively sense of justice. It is a necessity devolving naturally on the individualistic view of things. The protection of individual rights and the inviolability of the individual person, with all that belongs to it, are the individualist’s most vital concern. Many outward features of American life may seem, indeed, to contradict this, but any one who looks more deeply will see that everywhere the desire for justice is the essential trait of both the individual and the nation; and the public consciousness would rather endure the crassest absurdities and misunderstandings in public affairs than the least conscious violation in the administration of justice. Again and again important trials go to pieces on small technical errors, from which the severe sense of justice of the American is not able to free itself. The public is always willing to endure any hardship rather than to tolerate any maladministration of justice.

On the finest square in Boston stands a large and magnificent hotel, erected by rich capitalists. The building laws provide that structures facing that square shall not exceed a height of ninety feet; but in violation of the law certain cornices and balustrades were added to this building above the ninety-foot line, in order to give an artistic finish to the structure, and still to turn practically every inch allowed by law to account for rentals, which are high in so palatial a building. Every one agreed that this ornamental finish was highly decorative and satisfactory in the æsthetic sense, but that it must, nevertheless, be taken down, because it violated the law by some seven feet. The cornice and balustrades have, therefore, been demolished at great expense, and a handsome structure has been made absolutely hideous—a veritable monstrosity. The best square in the city is disfigured, but every Bostonian looks on this building with gratification. Beautiful architectural detail may indeed have been sacrificed; but the public conscience has won, and it is on this that the nation rests.

It is merely incidental that very much, and indeed much too much, of that which the Germans account matters of justice, is relegated by the American point of view to other tribunals; some, for instance, are held to be political questions, and thus it often appears to the foreigner as if there had been a violation of justice where really there has been only some political abuse. But matters of that sort loom up whenever any nation tries to form an opinion about another. In Germany, indeed, the American seems to see many violations of justice, where the German would find only an historically established social or political abuse.

As we have said, American justice is based on the decisions handed down in earlier cases. But this is, after all, only one of the three sources of law. That form of law-making is also here recognized which in Europe is the only form; the law-making by the majority of the people’s representatives. We have seen how Congress passes every year hundreds of laws. Many of these are indeed special measures, with no universal application; not a few, however, are of very broad application and involve an unlimited number of possible instances. And just as the Congress of the United States, so also can the legislature of each state prescribe general regulations, applicable within the state. Such laws made by the legislature are technically called statutes. These are engrossed in the statute-books of the state, and supersede all opposed decisions which may then exist. The federal judge, like the judge in a special state, is therefore bound to earlier decisions only so far as these are not expressly annulled by statutes.

Here we find one of the main reasons for the extraordinary complexities of the American law; forty-five legislatures are making laws for their several states, and in this way they of course give expression to the diversity of local needs and the varying grades of culture. At the same time, the principle of law, based on earlier decisions, is always combined with the principle of the statute-book. In the cases, both of the laws of Congress and those of the separate states, the judges who first come to apply the statutes in practice, are privileged to make their own interpretation; and here, too, the interpretation handed down in the judge’s decision is valid for all future cases.

In both the federal and state courts a legal action may be carried from the lower to the higher courts, and the decision of the highest tribunal becomes definitely law. The forty-five-fold diversity refers thus not merely to the statutes of the separate states, but also to the interpretations of those statutes which have been given by the upper courts of those states.

The third source of law is the only one that prescribes absolute uniformity for all parts of the country. This is the Constitution of the United States. The Constitution must not be conceived as the creation of Congress; Congress was created by the Constitution. Therefore every provision of the Constitution is a higher law than any bill which Congress can pass, just as the law made by Congress is higher than the decision of any judge. No Congress can modify a clause of the Constitution. The assent of the entire people is necessary for such a revision. Congress can, however, propose an amendment to the Constitution, and a two-thirds majority in the Senate and the House suffice to bring the proposed change before the nation, to be voted on. It has then to be passed on by the forty-five state legislatures, and will become a law with the approval of three-quarters of the states.

At first glance it seems as if this were a judicial machinery which would be far too complicated to work smoothly; it seems as if sources of friction had been arbitrarily devised, and as if continual collisions between the authorities of the several systems would be inevitable. This is true in two instances especially; firstly, the judicial machinery, which carries out the federal laws, sometimes collides with that of the separate states. Then, secondly, the complicated system of Constitutional provisions, devised a hundred years since, may interfere with the progressive measures of Congress or the separate states; and this must be a source of much uncertainty in law. These are the actual difficulties of a legal sort. Everything else, as for instance the enormous diversity of the laws in the separate states, is of course very inconvenient, but gives rise to no conflicts of principle.

Neither of these two difficulties finds its counterpart in Germany. In no Prussian city is there a German tribunal side by side with the Prussian, no imperial judge beside the local judge; nor can one conceive of a conflict in the German Empire between the creators of the legal code and the law-givers who frame the provisions of the Constitution. This doubleness of the judicial officials is in every part of the Union, however, characteristic of the American system and necessary to it. The wonderful equilibrium between centripetal and centrifugal forces which characterizes the whole American scheme of things makes it impossible from the outset for either the whole Federation to become the sole administrator of justice, or for such administration, on the basis of federal law, to be left entirely to the separate states. As a matter of course, a clear separation of jurisdiction has been necessary. The Constitution provides for this in a way clearly made necessary by the conditions under which the Federation was formed. Justice in the army and navy, commercial policies, and political relations with other countries; weights and measures, coinage, provisions, interstate commerce, and the postal system, the laws of patents and copyrights, of bankruptcy, and of naturalization, the laws of river and harbour, cases of treason, and much else are left to the Federation as a whole. While all these matters fall naturally within the scope of federal law, there are, on the other hand, obvious reasons whereby certain classes of persons should be under the jurisdiction of the federal courts. These are, firstly, diplomatic ministers and consuls; secondly, either actual or legal parties when they belong in different states; thirdly, and most important, the states themselves. Wherever a state is party to an action, the Supreme Federal Court must hear the case and give the decision. On the other hand, the Constitution declares expressly that, wherever jurisdiction is not explicitly conferred on the federal courts, it pertains to the individual states; therefore, much the larger part of criminal law belongs to the states, and so the laws of marriage and inheritance, of contract, property ownership, and much else.

For the administration of cases within its jurisdiction, the Federation has divided the whole country into twenty-seven districts, whose boundaries coincide partly with state lines, and of which each has a district court. Groups of such districts form a circuit, of which each has a circuit court, which sits on the more important cases, especially civil cases involving large interests. And, finally, there is a court of appeals. These districts and circuits are now coincident with the regions lying in the jurisdiction of the several states. In their method of procedure the federal and the state courts resemble each other, especially in the general conduct of criminal cases, which is everywhere the same, because the Constitution itself has fixed the main features. Both state and federal courts are alike bound by the extraordinarily rigid rules framed by the Constitution in order to protect the innocent man against the severity of the law.

No criminal can be condemned except by a jury which has been sworn to perform its duty, and before he comes before this jury a provisional jury has to make the accusation against him. Thus one sworn jury must be convinced of the justice of the suspicion before a second jury can give its verdict. A person cannot be brought up for trial twice for the same crime; no one can be compelled to testify against himself; every one has the right to be brought before a jury in the district where the crime was committed, to hear all the testimony against him, to have counsel for his own defence, and to avail himself of the strong arm of the law in bringing to court such witnesses as would speak in his favour; cruel or excessive penalties may not be fixed, nor a man’s freedom or property interfered with except after due process of law. The Constitution provides this, and a good deal else, and thus makes the conduct of trials uniform. In other respects, however, there are not a few differences which are not so obvious in the courts. Among these is the circumstance that federal judges are appointed for life, while the judges of the separate states are elected for short periods of from four to seven years.

The relations between constitutional laws and legislative laws seem even more complicated. Here, too, in a way, the same province is covered by a two-fold system of laws. The fixed letter of the Constitution and the living decisions by a majority in Congress or in a state legislature, stand in opposition to each other. It is established that no legislature can ride over the Constitution; and if the interpretation of a court brings out a contradiction between the two systems, a conflict arises which in principle makes justice uncertain. If we now ask how it is possible that all such conflicts have disappeared without the least prejudice to the national sense of justice, how in spite of all these possibilities of friction no disturbance is seen, or how in a land which has been overrun with serious political conflicts, a jurisprudence so lacking in uniformity has always been the north star of the nation—the reply will be that the Supreme Court has done all this. The upper federal court has been the great reconciling factor in the history of the United States, and has left behind it a succession of honourable memorials. Its most distinguished chief justice has been John Marshall, who presided over it from 1801 to 1835. He was America’s greatest jurist, and contributed more than any one else toward impressing the spirit of the Constitution on the country.

The German reader who hears of the Supreme Court sitting at the Capitol, must not turn back in his mind to the Imperial Court at Leipzig. The Supreme Court is by no means the sole court of highest instance, for the suits in single states which properly fall within the jurisdiction of a state can go no higher than the highest court of appeal of that state. The Supreme Court in Washington is the court of last instance for federal cases; but in order to disburden the judges in Washington, there are large classes of civil cases pertaining to the federal courts, which can be carried no higher than the federal court of appeals of a given circuit. Much more important than the cases in which the Supreme Court is really the court of highest instance for federal suits, are those others in which it is at once the court of first and last instance; these are the processes which the Constitution assigns immediately to the Supreme Court. They are chiefly suits in which a single state, or in which the United States is itself a party, for the Supreme Bench alone can settle disagreements between states and decide whether the federal or state laws conflict with the Constitution. In this sense the Supreme Court is higher than both President and Congress. If it decides that a treaty which the Executive has concluded, or a law which has been passed by the Legislative, violates the Constitution, then the doings of both Congress and the President are annulled. There is only one way by which a decision of the Supreme Court can be set aside—namely, by the vote of a three-fourths majority of all the states; that is, by an amendment of the Constitution. There are some instances of this in the history of the United States; but virtually the decision of the nine judges of the Supreme Court is the highest law of the land.

The Supreme Court has annulled Congressional measures twenty-one times and state statutes more than two hundred times, because these were at variance with the Constitution. Many of these have been cases of the greatest political importance, long and bitterly fought out in the legislatures, and followed with excitement by the public. The whole country has often been divided in its opinion on a legal question, and even the decision itself of the nine judges has sometimes been handed down with only a small majority. Nevertheless, for many years the country has every time submitted to the oracle of the Supreme Court, and considered the whole issue definitely closed.

One is not to suppose that the Supreme Court occupies itself with handing down legal verdicts in the abstract and in a way declaring its veto whenever Congress or some legislature infringes the Constitution. Such a thing is out of the question, since theoretically the Supreme Court, although the equal is not the superior of Congress; most of all, it is a court and not a legislature. The question of law does not come up then before this tribunal until there is a concrete case which has to be decided, and the Supreme Court has always declined to hand down a theoretical interpretation in advance of an actual suit. As early as the eighteenth century, Washington was unable to elicit from the Supreme Court any reply to a hypothetical question. Even when the actual case has come up, the Supreme Court does not say that a certain law is invalid, but decides strictly on the one case before it, and announces on what principle of the law it has based its decision. If there is a disagreement between two laws, the decision of the Court simply lays the practical emphasis on one rather than on the other. It is true that in this way nothing but one single case is decided; but here the principle of common law comes in—one decision establishes a point of law, and the Supreme Court and all lower courts likewise must in future hand down verdicts conformable thereto. The legislative law so superseded is thus practically annulled and made non-existent. In the Supreme Court one sees again that the security of national justice rests on the binding force of former decisions.

It will be enough to point out two decisions which have been given in recent years and which have interested the whole country. In the year 1894 Congress passed a new tax law; one clause of this law taxed every income which was larger than a certain amount. It was taxation of the wealthy. So far as income was obtained by actual labour the tax was undoubtedly valid. But New York barristers doubted the constitutionality of this tax in so far as it was laid on the interest from securities or on rents; because the Constitution expressly says that direct taxation for the country must be levied by the separate states, and in such a way that the whole sum to be raised shall be apportioned among the different states according to their population. The counsels of the wealthy New Yorkers said this provision ought to apply here. The difference would be for every rich man in thickly populated states a very considerable one. If the tax was to be apportioned according to population, the poor states must also bear their share. While it came to be levied on the individuals the largest part of the burden would fall to the millionaires, who are grouped in a few states. The Supreme Court would say nothing so long as the discussion was theoretical. Finally, a case was tested; when the lawyers were prepared, a certain citizen refused to pay the income tax and let the matter go to court. The first barristers in the country were divided on the question, as was also the Supreme Court. The majority decided in favour of the citizen who refused to pay the tax, because in its opinion the tax was a direct one, and therefore the constitutional provision relating to direct taxation was in force. By this one decision the income tax was set aside, and instead of ten thousand new suits being brought, of which the outcome was already clear, the excess taxes were everywhere paid back. At bottom this was the victory, over both President and Congress, of a single eminent barrister, who is to-day the ambassador to England.

A still more important decision, because it involved the whole political future of the United States, was that on the island possessions. By the treaty with Spain, Porto Rico had become a possession of the United States, and was therefore subject to United States law; but Congress proceeded to lay a tariff on certain wares which were imported from the island. There were two possible views. On the one hand, the Constitution prescribes that there shall be no customs duties of any sort between the states which belong to the Union; and since Porto Rico is a part of the Union the rest of the states may not levy a tariff on imports from the island. On the other hand, the Constitution empowers Congress to regulate at its discretion the affairs of such territory as belongs to the United States, but has not yet been granted the equal rights of states; thus the other provision of the Constitution would not immediately apply to this island. The question had never before been decided, because the Indian territories, the Mexican accessions, and Alaska had never been treated as Porto Rico now was. Congress had previously taken for granted that the Constitution was in force for these territories, but now the imperialistic tendencies of politics had created a new situation, and one which had to be settled.

Here too, of course, the Supreme Court did not try to settle the theoretical question which was stirring the whole country; but presently came the action of Downes vs. Bidwell, a simple suit in which a New York commercial house was the complainant, and the New York Customs the defendant. In case the provisions of the Constitution were to hold for the entire domain of the United States, the tariff which Congress had enacted was unconstitutional, but if the Constitution was to hold only for the states, while Congress was sovereign over all other possessions, the tariff was constitutional. The Supreme Court decided for this latter interpretation by five votes against four, and the commercial house paid its tax. Therewith the principle was decided for all time, and if to-morrow the United States should get hold of Asia and Africa, it is assured from the outset that the new domain would not be under the Constitution, but under the authority of Congress—simply because Downes lost his case against Customs Inspector Bidwell, and had to pay six hundred dollars in duty on oranges.

This last case shows clearly that the decisions by no means always support the Constitution against legislative bodies; and statistics show that although in two hundred cases the verdict has been against the legislatures, it has been more often decided in their favour. The entire history of the Supreme Court shows that in a conservative spirit it has always done full justice to both the centralizing and particularizing tendencies. It has shown this conciliatory attitude especially by the firm authority with which it has decided the hazardous disputes over boundaries and other differences, between the several states, so that such disputes really come up no longer. For a century the Supreme Court has been a shining example of a federal tribunal.

Such complete domination of the national life could not have been attained by the Supreme Bench if it had not remained well above all the doings of the political parties, and that it does so may seem surprising when one considers the conditions under which the judges are appointed. The President selects the new judge whenever, by death or retirement, a vacancy occurs among the nine judges; and the Senate confirms the selection. Party factors, therefore, determine the appointment, and in point of fact Democratic Presidents have always appointed judges belonging to their own party, and Republicans have done the same. The result is that both parties are represented in the Supreme Court. That in political questions, such as the case of Porto Rico, which we have mentioned, party conceptions figure somewhat in the decision of the judges is undoubted. Yet they figure only in the sense that allegiance to one or the other party involves certain fundamental convictions, and these necessarily come into play in the judicial verdict. On the other hand, there is never the least suspicion that the judges harbour political schemes or seek in their decision to favour either political party. This results from the fact that it is a matter of honour with both parties to place really the most distinguished jurists in these highest judicial offices—jurists who will be for all time an honour to the administration which appointed them. They are almost exclusively men who have never taken part in technical politics, but who have been either distinguished judges elsewhere or else leading barristers, and who, from the day of their appointment on, will be only judges. Their position is counted among the most honourable which there is, and it would almost never happen that a jurist would decline his appointment, although the position, like all American official positions, is inadequately rewarded; the salary is ten thousand dollars, while any great lawyer is able to earn many times that sum. At the present moment there sits on the Supreme Bench a group of men, every one of whom represents the highest kind of American spirit. The bustle and confusion, which prevail in the two wings of the Capitol, does not invade the hall where the nine judges hold their sessions. These men are, in the American public mind, the very symbol of conscience.

We shall have occasion to consider later on the administration of justice by the nation, under various points of view. While in many respects this will appear less conscientious and more especially less deliberate, it will, nevertheless, recall not a few admirable features of the Supreme Court.