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The American Judiciary
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THE AMERICAN JUDICIARY

BY

SIMEON E. BALDWIN, LL.D.



CONTENTS

PART

CASES CITED.

I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES.

II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS.

PART I

CHAPTER

I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY.

II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS.

III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT.

IV. THE FORCE OF JUDICIAL PRECEDENTS.

V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW.

VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW.

VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW NOT TO BE LAW.

PART II

VIII. THE ORGANIZATION OF THE COURTS OF THE STATES.

IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES.

X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES, AND OF THE UNITED STATES JUDICIARY TO THE STATES.

XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES.

XII. TRIAL BY JURY.

XIII. FORMALITIES IN JUDICIAL PROCEDURE.

XIV. TRIAL COURTS FOR CIVIL CAUSES.

XV. PROBATE COURTS.

XVI. BANKRUPTCY AND INSOLVENCY COURTS.

XVII. CRIMINAL PROCEDURE.

XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT.

XIX. APPELLATE COURTS.

XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS OF COURT.

XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL LAW.

XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES.

XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH.

XXIV. THE LAW'S DELAYS.

XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY.

INDEX.

* * * * *

TABLE OF CASES

Ableman v. Booth Allinson, Hale v. American Insurance Co. v. Canter Ames v. Kansas Ames, Smyth v. Andrews, Ex parte Anthes, Commonwealth v.

Bachert v. Lehigh Coal and Navigation Co. Baldwin, Robertson v. Bank, Bardes v. Bank of Kentucky, Briscoe v. Bank of Mississippi v. Duncan Bank of the U. S., Osborn v. Bardes v. Bank Barrows v. Bell Batchelder v. Moore Baxter v. Brooks Baxter, State v. Bean v. Beckwith Bean, Beckwith v. Beckham, Taylor v. Beckwith v. Bean Beckwith, Bean v. Bell, Barrows v. Bell's Gap R. R. Co., McCloskey v. Bernard, Coggs v. Biddle, Green v. Bidwell, Downes v. Bissell v. Dickerson Blacker, Board of Supervisors v. Blair v. Williams Blake v. McClung Board of Supervisors v. Blacker Bodley v. Gaither Boffman, Hickman v. Bonham's case Booth v. Clark Booth, Ableman v. Borden, Luther v. Bowman v. Middleton Boyd v. Thayer Boyd v. U. S. Bradburn, Mincey v. Bradley v. Fisher Bradley v. New Haven Bradley, Ex parte Brainerd, Fitch v. Branch, In re Brashears, Lapsley v. Briggs v. Garrett Brine v. Insurance Co. Briscoe v. Bank of Kentucky Brooks v. State Brooks, Baxter v. Brown, Kellogg v. Brown, Parkersburg v. Bulkley, State v. Bull, Calder v. Burgess v. Seligman Burr's Trial Burrows, Nudd v. Bush, Perry v. Bushnell, Ex parte

Calder v. Bull California, Hurtado v. Call Publishing Co., Western Union Telegraph Co. v. Calvin v. Huntley Canfield v. Mitchell Canter, American Insurance Co. v. Carriere, Tua v. Cherokee Nation v. Georgia, Chisholm v. Georgia Christmas v. Russell Church v. Pearne City of South Bend v. Turner Claflin v. Houseman Clark, Booth v. Clarke's Appeal Cleveland, Painesville and Eastern R. R. Co., v. Pritschau Clymer, Norris v. Cochran, Gernon v. Coffin v. United States Coggs v. Bernard Cohens v. Virginia Coleman v. Tennessee Coler v. Tacoma Railway and Power Co. Colt, Stanley v. Commonwealth v. Anthes Conn. Pipe Mfg. Co., Ward v. Consul of Spain v. Consul of Great Britain Cooper, Application of Cooper, In re Cooper, In the matter of Copass, Hall-Moody Institute v. Croswell, People v. Cunningham, State v.

Danbury, Hoyt v. Dartmouth College v. Woodward Debs, U. S. v. Debs, In re Delaware, Lackawanna and Western R. R. Co., Forepaugh v. Demorest, Hutkoff, v. Dennison, Kentucky v. Deposit Bank v. Frankfort Dickerson, Bissell v. Diggs v. Wolcott Donoghue, Hanley v. Dorr v. United States Dorrance, Vanhorne's Lessee, v. Dougherty, Lanark v. Dow v. Johnson Downes v. Bidwell Dred Scott v. Sandford Drehman v. Stifle Duncan, Bank of Mississippi v. Duncan, Johnson v. Dyson v. Rhode Island Co.

Eakin v. Raub Eckrich v. St. Louis Transit Co. Ellington, Miel v. Erdman v. Mitchell Exchange Bank v. Rice

Farmers' Loan and Trust Co., Pollock v. Faulkner v. Hart Finney v. Guy Fish v. Smith Fisher, Bradley v. Fitch v. Brainerd Fletcher v. Peck Flynn v. Morgan Forepaugh v. Delaware, Lackawanna and Western R. R. Co. Frankfort, Deposit Bank v. French v. Waterbury Frost v. Leighton

Gaither, Bodley v. Garland, Ex parte Garrett, Briggs v. Genesee Chief, The Georgia v. Stanton Georgia, Cherokee Nation v. Georgia, Chisholm v. Georgia, Worcester v. Gernon v. Cochran Gibbons v. Ogden Goshen v. Stonington Gould v. Hudson River R. R. Co. Grady's case Grapeshot, The Gray, James v. Green v. Biddle Griffin v. Wilcox Griswold, Hepburn v. Griswold, United States v. Grover & Baker Sewing Machine Co. v. Radcliffe Groves v. Slaughter Guy, Finney v.

Hale v. Allinson Hall-Moody Institute v. Co-pass Ham v. McClaws Hanley v. Donoghue Hanover National Bank v. Moyses Hans v. Louisiana Harris, Norris v. Hart, Faulkner v. Hawes v. Oakland Hayburn's Case Hepburn v. Griswold Heywood, Wilcox v. Hickman v. Boffman Hildreth's Heirs v. McIntire's Devisee Hill v. Smith Hill, Koehler v. Hoffman, People v. Holmes v. Walton Houseman, Claflin v. Houser, State v. Howle, Metropolitan Life Insurance Co. v. Hoyt v. Danbury Hudson River R. R. Co., Gould v. Huntley, Calvin v. Hurtado, v. California Hutkoff v. Demorest

Insurance Co., Brine v. International Distillery, Pearson v. Irvine v. Stone

James v. Gray Jecker v. Montgomery Johnson v. Duncan Johnson v. People Johnson, Dow v. Johnson, Mississippi v. Johnson, State v. Joint Traffic Association, United States v. Judges, State v.

Kansas, Ames v. Katz v. Walkinshaw Kellogg v. Brown Kellogg v. Warmoth Kentucky v. Dennison Kentucky, Louisville Ferry Co. v. Kepner v. U. S. Ketcham v. McNamara Kilbourn v. Thompson Klein, U. S. v. Kneedler v. Lane Koehler v. Hill

Lachenmeyer, Pepin v. Lanark v. Dougherty La Ninfa, The Lane, Kneedler v. Lapsley v. Brashears Lee, State v. Legal Tender Cases, The Lehigh Coal and Navigation Co., Bachert v. Leighton, Frost v., Lennon v. Rawitzer, Letson, Louisville, Cincinnati and Charleston R. R. Co. v., Little Charles, The schooner, U. S. v., Loan Association v. Topeka, Loomis v. Newhali, Lottawanna, The, Louisiana, Hans, v., Louisville, Cincinnati and Charleston R. R. Co. v. Letson, Louisville Ferry Co. v. Kentucky, Luke v. Lyde, Luther v. Borden, Lyde, Luke v.

McCardle, Ex parte, McClaws, Ham v., McCloskey v. Bell's Gap R. R. Co., McClung, Blake v., McConnaughy, Pennoyer v., McCulloch v. Maryland, McDaniel, Terry v., McDowell v. Oyer, McFarland v. People, Mclntire's Devisee, Hildreth's Heirs v., M'Kim v. Voorhies, McLeod's Case, McNamara, Ketcham v., McVeigh v. Ripley

Madison, Marbury v., Main, State v., Marbury v. Madison, Maryland, McCulloch v., Mather, Rand v., Merriman v. Social Mfg. Co., Merryman, Ex parte, Metropolitan Life Insurance Co. v. Howle, Mial v. Ellington, Middleton, Bowman v., Milligan, Ex parte, Miln, New York v., Mincey v. Bradburn, Mississippi v. Johnson, Mitchell, Canfield v., Mitchell, Erdman v., Montgomery, Jecker v., Moore, Ex parte, Moore, Batchelder v., Morgan, Flynn v., Mormon Church v. United States, Morrill, State v., Moses Taylor, The, Moyses, Hanover National Bank v., Mutual Reserve Fund Life Association, Vincent v., Myers v. South Bethlehem

Nash, United States v., Neagle, In re, Neff, Pennoyer v., Newhall, Loomis v., New Haven, Bradley v., New Jersey v. New York, Newman, Ex parte, New York v. Miln, New York, New Jersey v., New York and New England R. R. Co., Rumsey v., New York, New Haven and Hartford R. R. Co., Stack v., Noble v. Union River Logging Co., Norris v. Clymer, Norris v. Harris, Northern Securities Co. v. United States, Norwalk Street Railway Co.'s Appeal Nudd v. Burrows

Oakland, Hawes v. Ogden v. Saunders Ogden, Gibbons v. Ohio and Mississippi R. R. Co. v. Wheeler Olcott, People v. Osborn v. Bank of the U. 8. Oyer, McDowell v.

Parkersburg v. Brown Patterson, William Paul v. Virginia Pearne, Church v. Pearson v. International Distillery Pease, Starr v. Peck, Fletcher v. Pennoyer v. McConnaughy Pennoyer v. Neff Pennsylvania, Prigg v. Pennsylvania Coal Co., Sanderson v. People v. Croswell People v. Hoffman People v. Olcott People v. Webb People, Johnson v. People, McFarland v. Pepin v. Lachenmeyer Perkins, United States v. Perry v. Bush, Peters, Wheaton v. Pollock v. Farmers' Loan and Trust Co. Prigg v. Pennsylvania Pritschau, Cleveland, Painesville and Eastern R. R. Co. v.

Radcliffe, Grover & Baker Sewing Machine Co. v. Rand v. Mather Raub, Eakin v. Rawitzer, Lennon v. Reese, United States v. Regents v. Williams Rhode Island Co., Dyson v. Rice, Exchange Bank v. Rich, Upshur County v. Ripley, McVeigh v. Robbins' Case Robertson v. Baldwin Robinson, Ex parte Royall, Ex parte Rumsey v. New York and New England R. R. Co. Russell, Christmas v. Rutgers v. Waddington

Sanderson v. Penn. Coal Co. Sandford, Dred Scott v. Saunders, Ogden v. Scott v. Sandford Seligman, Burgess v. Shepherd, State v. Sheve, U. S. v. Siebold, Ex parte Sims' Case Slaughter, Groves v. Smith, Fish v. Smith, Hill v. Smith, U. S. v. Smyth v. Ames Social Mfg. Co., Merriman v. South Bethlehem, Myers v. Sparf v. U. S. St. Louis Transit Co., Eckrich v. Stack v. New York, New Haven and Hartford R. R. Co. Stanley v. Colt Stanley, U. S. v. Stanton, Georgia v. Starr v. Pease State v. Baxter State v. Bulkley State v. Cunningham State v. Houser State v. Johnson State v. Judges State v. Lee State v. Main State v. Morrill State v. Shepherd State v. Travelers' Insurance Co. State v. Ward State v. Worden State, Brooks v. Stephens, petitioner Stifle, Drehman v. Stone, Irvine v. Stonington, Goshen v. Swift v. Tyson

Tacoma Railway and Power Co., Coler v. Tassel's Case Taylor v. Beckham Tennessee, Coleman v. Terry v. McDaniel Thayer, Boyd v. The Genesee Chief The Grapeshot The La Ninfa The Lottawanna The Moses Taylor The Schooner Little Charles, U. S. v. The Thomas Jefferson Thomas Jefferson, The Thompson, Kilbourn v. Topeka, Loan Association v. Trademark Cases Travelers' Insurance Co., State v. Trevett v. Weeden Tua v. Carriere Turner, City of South Bend v. Tyson, Swift v.

Union River Logging Co., Noble, v. United States v. Debs United States v. Griswold United States v. Joint Traffic Association United States v. Klein United States v. Nash United States v. Perkins United States v. The Schooner Little Charles United States v. Reese United States v. Robbins United States v. Sheve United States v. Smith United States v. Sparf United States v. Stanley United States v. Wilson United States v. Worrall United States, Boyd v. United States, Coffin v. United States, Dorr v. United States, Kepner v. United States, Mormon Church v. United States, Northern Securities Co. v. Upshur County v. Rich

Vanhorne's lessee v. Dorrance Vincent v. Mutual Reserve Fund Life Association Virginia, Cohens v. Virginia, Paul v. Voorhies, M'Kim v.

Waddington, Rutgers v. Walkinshaw, Katz v. Walton, Holmes v. Ward v. Conn. Pipe Mfg. Co., Ward, State v., Warmoth, Kellogg v., Waterbury, French v., Webb, People v., Weeden, Trevett v., Western Union Telegraph Co. v. Call Publishing Co., Wheaton v. Peters, Wheeler, Ohio and Mississippi R. R. Co., v., Wheeler's Appeal, Wilcox v. Heywood, Wilcox, Griffin v., Williams, Blair v., Williams, Regents v., Wilson, U. S. v., Woleott, Diggs v., Woodward, Dartmouth College, v., Worcester v. Georgia, Worden, State v., Worrall, U. S. v.

Additional cases cited in Second edition.

Janvrin v. Revere Water Co., Revere Water Co., Janvrin, v., O'Brien's Petition, Seery v. Waterbury, Waterbury, Seery v.

* * * * *



PART I

THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED STATES

* * * * *



CHAPTER I

ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY

No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test.

The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776.

The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.]

In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. Cf. citations by D. Davenport, arguendo, in Flynn v. Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.]

In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent.

The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law—the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one.

Winthrop, writing in 1639, describes it with his usual clearness and discrimination thus:

"The people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... Two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. One was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise pro re nata upon occasions, etc., and so the laws of England and other states grew, and therefore the fundamental laws of England are called customs, consuetudines. 2. For that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of England, and that we were assured we must do. But to raise up laws by practice and custom had been no transgression."[Footnote: Winthrop, "History of New England," I, 322.]

The tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form.

The exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the Revolution. Where there were Governors appointed by the crown, they discouraged it. The courts were correspondingly strengthened. Law became better understood and more wisely applied. A large body of local statute law had grown up by 1750, much of it already venerable by antiquity, and intimately interwoven with the life of the people. Its form and color differed in different colonies. Religious views and preferences had had a large effect in shaping it. So had influences proceeding from the civil war, the Commonwealth, and the Restoration. Yet at bottom there was the same substructure in Virginia as in Massachusetts, in Pennsylvania as in New York. It was the common law of England as it existed in the days of the last of the Tudor and first of the Stuart reigns.

This had been built into the foundations of American institutions and kept firm in place, not only because the colonists were habituated to it[Footnote: Fitch v. Brainerd, 2 Day's (Conn.) Reports, 163, 189.] and themselves both English subjects and the descendants of Englishmen of those days, but largely by force of the British system of colonial government through the Lords of Trade and Plantations. The ancient aula regis, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the King in Council. This, so far as the colonies were concerned, was represented by a standing committee of the Privy Council. It was substantially the same thing as the Court of Star Chamber, but since 1640 without the extraordinary penal jurisdiction which gave that so evil a reputation for Americans.[Footnote: Maitland, "Justice and Police," 5.] This committee was after this restriction of its powers known as the Lords of Trade and Plantations,[Footnote: It was afterward and is now called the Judicial Committee of the Privy Council.] and by its authority from the time when England first had colonies of any commercial importance (and those in America were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[Footnote: See Paper on Appeals to the Lords of Trade from Colonial Courts, by Harold D. Hazeltine, Report of the American Historical Association for 1894, 299.] This revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the Revolution.[Footnote: "Two Centuries' Growth of American Law," 12, 18, 264.] In but one case did a colonial court formally ignore a judgment of reversal. This was in 1738, when the Superior Court of Judicature of Massachusetts, at its sittings in York County, in what is now the State of Maine, disobeyed an order of the King in Council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[Footnote: Frost v. Leighton, Publications of the Colonial Society of Massachusetts, III, 246.] The amount involved was trifling, and the Lords of Trade and Plantations made no further effort to enforce their order.

The natural effect of this court of appeal at London was to keep the public proceedings of the colonies in line with the common law of England, so far as related to its fundamental principles.

A certain uniformity of result was thus secured. American law, in its substantial framework, was not allowed to vary from English law in any case where agreement was reasonably practicable. There was a central power at London ever ready to enforce the charter rule. The colonial courts, if their judgments were to stand, must proceed in conformity to the British constitution. Justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the English law-books. When Blackstone's Commentaries were first published, more copies were sold in America than in England.[Footnote: "Two Centuries' Growth of American Law," 20.]

The colonial bench was weaker than the colonial bar. Judicial station was at first always, and later often, a mere incident of political office. When judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. Few of them were really learned in the law. Of the bar many were. That of Massachusetts did not conceal its disapprobation when Lieutenant-Governor Hutchinson, although he had never been a member of it, was appointed Chief Justice in 1760. None of the judges of the first Superior Court in that colony were lawyers.[Footnote: Winsor, "Narrative and Critical History of America," V, 166.] In some of the others the Governor was the Chancellor, and in Maryland he was at one time the Chief Justice also.[Footnote: Steiner, "Maryland's First Courts," Reports of American Historical Association for 1901, 211; Osgood, "The American Colonies in the Seventeenth Century," I, Chap. II; II, Chap. XII.] In several the judges were appointed during the king's pleasure, and the Governor removed them at his discretion, without any notice or hearing.[Footnote: Bancroft, "History of the United States," II, 279. A notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the Governor, was the case of Chief Justice Lewis Morris of New York, in 1733. Documents relating to the Colonial History of New York, V, 948; VI, 4, 8, 951.]

In those colonies which were provided by charter with a Court of Assistants, this body soon came to act as a judicial court. This took place in the colony of Massachusetts Bay as soon as the seat of the company's government was transferred from England to America, and took place as a matter of course. Divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[Footnote: Noble, "Records of the Court of Assistants of Massachusetts Bay," I, Preface; Publications of the Colonial Society of Massachusetts, III, 317.]

In Connecticut, appellate jurisdiction was originally retained by the General Assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. As early as 1719, one was constituted for this purpose to hold office for two years.

No colony set up a permanent supreme court with full appellate jurisdiction. None probably cared to do this, and none probably thought that it could. The Lords of Trade and Plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. It would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to Americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction.

New York had a court named Supreme, but its business was largely the trial of original causes, and the Governor and Council claimed the right of reviewing its judgments. The judges in 1765 denied the existence of such a right, but the King in Council decided against them.[Footnote: Hunt, "Life of Edward Livingston," 26.]

As soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a leading feature of the judicial establishment set up in 1686 under Sir Edmund Andros for the "Dominion of New England."[Footnote: Col. Rec. of Conn., III, 402, 411.]

South Carolina, for a hundred years, centered all her judicial business at Charleston. No courts sat anywhere else and all the lawyers in the State resided in the city. In the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[Footnote: Morse, "American Universal Geography," ed. 1796, 690; Osgood, "The American Colonies in the Seventeenth Century," II, 279, 300.]

There was occasionally some little approach to English form when the colonial judges went on the circuit. In Massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[Footnote: "Life and Works of John Adams," II, 280. See Chap. XIII.]

Acts of Parliament directly affecting procedure in American courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. Such was the Act of 1732 (V, Geo. II, Chap. VII), making affidavits taken in England admissible in any suit in an American colony to which an Englishman might be a party, and providing that all American real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in England could only be taken for debts of a particular kind.[Footnote: Connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. Col. Rec. of Conn., VII, 444.] Other English statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[Footnote: State v. Ward, 43 Connecticut Reports, 489, 494.]

The benefit of the writ of habeas corpus, which, though issuable at common law, really first took its present shape in 1679, by the Act of 31 Charles II, Chap. II, was thought in this country, though not by the Lords of Trade and Plantations, to be a privilege of Americans, as British subjects. In some colonies this statute was re-enacted, or, as in Virginia, rights under it conceded under the royal prerogative. In others, as in Maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. In the "Declaration and Resolves" of the first Continental Congress, they assert "that the respective colonies are entitled to the Common Law of England," and in the address to the people of Great Britain they complain that the English settlers in Canada "are now the subjects of an arbitrary Government, deprived of Trial by Jury, and when imprisoned cannot claim the Benefit of the Habeas Corpus Act, that great Bulwark and Palladium of English Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the Colonies," American Historical Review, VIII, 18.]

The same sentiments dictated the terms of the Ordinance of 1787, under which our first Territories were to be organized. One of its leading provisions was this:

ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.

A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power.

The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman v. Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).]

In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]

But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State.

The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books.

The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none.

When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.]

The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.]

The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized:

Judges were to proceed according to established rules, so far as established rules might exist.

They were to proceed in analogy to established rules as to points which no established rule might cover.

They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation.

Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England.

There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority.

This higher authority might be judicial or political, or one which shared both judicial and political functions.

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CHAPTER II

THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS

From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step.

So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them.

On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington's Oceana, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.]

It was from an unwillingness to commit themselves to such a principle that the people of Connecticut and Rhode Island preferred for many years to be governed in the old way by their legislatures, without a written constitution. During this period, the General Assembly of Connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the Supreme Court of the United States.[Footnote: Calder v. Bull, 2 Root's Reports, 350; 3 Dallas' Reports, 386.]

The courts of the United States were called upon at an early day to determine how far Congress could invest them with functions that were not judicial or not to be performed in a judicial manner. An act was passed requiring the Circuit Courts to pass upon claims for invalid pensions, their decisions to be subject to review by Congress. The performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[Footnote: Hayburn's Case, 2 Dallas' Reports, 409.]

It was easier for the United States to maintain from the first this general scheme for the division of power than for the early States. Their people had grown up under too different a plan of government. It had become so familiar to them that they could hardly believe that it had been abolished. Tradition for them interpreted their new Constitutions and overmastered them. The State legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[Footnote: See Chap. VII.]

In many of our State Constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles.

Such a declaration was proposed in the draft of the Constitution of Connecticut, reported to the convention which framed it in 1818; but on objection it was struck out.[Footnote: Journal of the Constitutional Convention of Connecticut, pp. 78, 55.] It was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. It sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. It interfered repeatedly in probate proceedings. It released sureties in judicial recognizances. It set aside judgments. [Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 315; Stanley v. Colt, 5 Wallace's Reports, 119.] A decision of the Supreme Court of Errors sanctioned the practice;[Footnote: Starr v. Pease, 8 Conn. Reports, 541, 547.] but in 1898 the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[Footnote: Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080.]

But may not a power be judicial in its nature and yet not wholly so?

It is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions.

Courts, for instance, make rules of practice. In one sense this is a judicial act, because it is one appropriate for the judiciary. In another point of view it is an act of legislation. In nothing does it resemble the act of judging a litigated cause.

Impeachments are both political and judicial proceedings, but American constitutions leave them wholly to the legislative department.

Franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our Constitutions on absolute equality of right, they are now almost everywhere given only by general laws. Such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. But what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? The legislature may select an executive, a legislative, or a judicial office. It may entrust this power of decision to an executive, a legislative, or a judicial officer. It has, in fact, in some States, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise.

It is safe to assert that in no State are the functions of the courts purely judicial. Many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. Some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[Footnote: Application of Cooper, 22 New York Reports, 67, 82, 84; Norwalk Street Railway Company's Appeal, 69 Conn. Reports, 576; 37 Atlantic Reporter, 1080; Bradley v. New Haven, 73 Connecticut Reports, 646; 48 Atlantic Reporter, 960; Upshur County v. Rich, 135 U. S. Reports, 467, 477; Janvrin v. Revere Water Co., 174 Mass. Rep. 514; 55 North Eastern Rep. 381.] Instead of creating a system of bureaus and prefects, we have adhered to the English plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[Footnote: See Maitland, "Justice and Police," 85.] Of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[Footnote: People v. Hoffman, 116 Illinois Reports, 587; 5 Northeastern Reporter, 596; 56 American Reports, 793; Ex parte Siebold, 100 U. S. Reports, 371, 397.]

It is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. Every step in the progress of civilization makes this the more obvious. No absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the State to all, become, and necessarily become, more numerous and complicated. In every State that department which in practice proves the strongest will push its jurisdiction furthest.

It may be said, in view of its now established power to decide between higher and lower forms of law,[Footnote: See Chap. VII.] that the judiciary has proved the strongest. The legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power.

The theory of the French philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of Americans. There are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[Footnote: Under authority of her present Constitution, Virginia in 1904 organized a State Commission for the Supervision of Corporations, which has both judicial and administrative functions.]

The Constitution of the United States recognizes this in effect. It makes the Senate an executive council, as well as a legislative chamber. It allows Congress to vest the appointment of any inferior officers in the courts (Art. II, Sec. 3). In practice this power has been freely used.

The Supreme Court of the United States has had occasion to consider this question in connection with the statutes defining the jurisdiction of the Circuit Courts. It extends to certain "suits." But what is a suit? It is not necessarily a proceeding at common law or in equity or admiralty. It may be a statutory process. "Even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of Congress."[Footnote: Upshur County v. Rich, 135 U. S. Reports, 467, 473.] So in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of Congress."[Footnote: Ibid., 475.]

In one point of considerable importance express constitutional provisions generally narrow the jurisdiction of American, as compared with English courts. Each house of the legislature is made the final judge of the returns and qualifications of its members. In England, election contests as to a seat in the House of Commons has been made by Act of Parliament the subject of judicial determination. This avoids partizan decisions and is so far good. It diminishes, however, the independence of the legislative house in which the seat is contested. This is jealously guarded by our traditions as well as our Constitutions. The practice of wearing hats during the sessions of the House of Commons was an expression of the early feeling of the English Commons on this subject. They would not uncover before speaker or king. In some of the early American legislatures the same thing was done. Hats were occasionally worn in the House of Representatives at Washington as late as the second quarter of the nineteenth century.[Footnote: Hunt, "Life of Edward Livingston," 301. They were worn in the Continental Congress on occasions of ceremony. McMaster, "History of the People of the United States," I, 105.]

On the other hand, American courts interfere more readily than the English to protect a citizen from arrest by legislative authority. Each house of the British parliament has large inherited powers over those who may treat it with contempt. Each house of an American legislature has some powers of this description, but they are far narrower ones.[Footnote: Kilbourn v. Thompson, 103 U. S. Reports, 168.]

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CHAPTER III

THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT

Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term.

The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote: National Geographic Magazine for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong.

In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.]

An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words:

The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names—by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbons v. Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end—the views of the judges in advance of the enactment of a law—in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies.

Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist.

The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther v. Borden, 7 Howard's Reports, 1.]

When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts.

So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon v. Cochran, Bee's Reports, 209.]

In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States.

But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain v. Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a casus belli was stayed by a court until and unless the Executive should intervene and permit it.

The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of habeas corpus to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States?

This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so. Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of habeas corpus, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States v. Nash alias Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department.

On the other hand, the peculiar provision of the Constitution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172 deg. to that of 193 deg. west longitude. Great Britain contended for the three-mile limit. Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska.

The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause:

In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: In re Cooper, 143 United States Reports, 472, 503.]

In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration. The arbitration took place and the award supported the British contention. Congress passed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were entitled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before:

This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in section 1956, and the words "dominion of the United States in the waters of Behring Sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "They are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with Congress, not with the judiciary." The Cherokee Tobacco, 11 Wall., 616-621. But in the present case there is no pending question left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. ... The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time in re Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[Footnote: The La Ninfa, 75 Federal Reporter, 513, 517.]

The degree of confiscation was therefore reviewed. It will be noticed that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly.

The courts before the Revolution, and in some States for half a century after it, served as a kind of political mouthpiece. The institution of the grand jury[Footnote: See Chap. XVII.] afforded the means. Those composing it are personally selected by the sheriff from the principal men in the county. It is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. Frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[Footnote: "Life and Works of John Adams," II, 169.] To this the grand jury were not backward in responding with compliments and perhaps presentments.

In Massachusetts they went even further in 1774. The House of Representatives of the Provincial Assembly impeached the Chief Justice for accepting a salary from the Crown instead of relying on legislative grants, as had been the practice. The Council before which the articles were exhibited declined to entertain them. The people, however, felt that the House was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. They refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. No business was done in court until the following year, when, after the battle of Lexington, new judges were appointed by the Council.[Footnote: "Life and Works of John Adams," II, 332; X, 240; "Principles and Acts of the Revolution," 100.]

Sometimes the laws of the State were criticised in this way by judge and jury.

In December, 1788, a grand jury in South Carolina made this presentment:

We present as a grievance of the greatest magnitude the many late interferences of the legislature of the State in private contracts between debtor and creditor. We should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[Footnote: "American Museum," VII, Appendix II, 10. Cf. ibid., 19.]

In a similar way unpopular treaties[Footnote: McMaster, "History of the People of the United States," II, 229.] or acts of Congress were formerly attacked. In 1819, the action of the House of Representatives as to the introduction of slavery in Missouri was the subject of a warm protest from a grand jury in that territory, which closed thus:

They hope those restrictions will never more be attempted; and, if they should, they hope by the assistance of the genius of '76 and the interposition of Divine Providence to find means to protect their rights.[Footnote: Niles' Register, XVII, 71.]

The protective tariffs of the United States were frequently presented as grievances in the South during the years preceding the nullification movement in South Carolina.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of the American Historical Association for 1901, II, 117.]

In 1825, a grand jury in Pennsylvania presented as a grievance the suspension of Commodore Porter from duty for six months under sentence of a naval court martial, approved by the Secretary of the Navy.[Footnote: Niles' Register, XXIX, 103.] In 1827, a grand jury in Tennessee presented a "protest against the bold and daring usurpations of power by the present Executive of the United States" (John Quincy Adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of Blount County."[Footnote: Niles' Register, XXXII, 366.]

In 1777, the Chief Justice of South Carolina began his charge to a grand jury with a long statement of the justice of the Revolution, its military successes, and the duties of patriotism. The court thereupon ordered "That the political part of the Chief Justice's charge" be forthwith printed.[Footnote: Principles and Acts of the Revolution, 347.]

In 1790, Judge Grimke of the same State took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the Constitution of the United States. Jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the United States a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in America."[Footnote: "American Museum," VIII, Appendix II, 33.]

In 1798, when Elbridge Gerry was the Republican candidate for Governor of Massachusetts, a Federalist newspaper reported approvingly a charge of Chief Justice Dana of that State. He had been an ardent politician before going on the bench and had declined a nomination as minister to France during the preceding year. "The learned judge," said the Boston Centinel, "in a forcible manner proved the existence of a French faction in the bosom of our country and exposed the French system among us from the quintumvirate of Paris to the Vice-President and minority of Congress as apostles of atheism and anarchy, bloodshed and plunder."[Footnote: Centinel of Nov. 28, 1798, quoted in Austin, "Memoirs of Elbridge Gerry," II, 296, note.]

In 1800, Justice Chase of the Supreme Court of the United States made several charges in Maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the House of Representatives as a ground of his impeachment. The article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of Maryland against their state government and Constitution." He had, indeed, used this language:

You know, gentlemen, that our State and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our State constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our State judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. The independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. The independence of the judges of this State will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. The change of the State constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. I can only lament that the main pillar of our State constitution has already been thrown down by the establishment of universal suffrage. By this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state.

All this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of Guilty on the article of impeachment founded upon it to secure a conviction.

In the same year, Judge Alexander Addison of the Circuit Court of Pennsylvania was charging a Pennsylvania grand jury that the Jeffersonians had assumed a name that did not belong to them. "Such men," he said, "disgrace the name of Republicans by exclusively assuming it. In their sheep's clothing they are ravening wolves."[Footnote: Wharton's State Trials, 47, note.] For this, among other things, he was very properly impeached and removed in 1803, after the Republicans came into power in that State.[Footnote: McMaster, "History of the People of the United States," III, 154.]

It is difficult for the American of the twentieth century to conceive how honorable men could so have abused official position.[Footnote: Wharton's State Trials, 376. Justice Washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until 1817, when party feeling had moderated, not to give out copies of any charges for publication. Niles' Register, XIII, 169.] The cause lies in the extreme rancor which then embittered politics and debased society. Federalists and Republicans were hardly on speaking terms. Many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. Judge Addison's charge brought out an open letter to him in a Pittsburgh newspaper, signed by a Republican who was on the Supreme bench of the State, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[Footnote: Wharton's State Trials, 47, note.] On the other hand, at a political banquet of the Boston Federalists, at about the same time, their approval of Judge Dana's charges to grand juries was manifested by this toast: "The Honorable Francis Dana, Chief Justice of the learned Associate Judges of our Supreme Judicial Court. While the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[Footnote: Austin, "Life of Elbridge Gerry," II, 297, note.]

The judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers. Heads of Departments of the State or the United States are subject to this power.[Footnote: Noble v. Union River Logging Co., 147 U. S. Reports, 165; Smyth v. Ames, 169 U. S. Reports, 466.] So in the Federal Courts are Governors of States acting under a law repugnant to the Constitution of the United States.[Footnote: Pennoyer v. McConnaughy, 140 U. S. Reports, 1.] No such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[Footnote: Georgia v. Stanton, 6 Wallace's Reports, 50.] nor under any circumstances against the President of the United States.[Footnote: Mississippi v. Johnson, 4 Wallace's Reports, 475.] As to whether it can in some cases be granted by a State court against the Governor there is a conflict of authority.

The development of party government in the United States has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. Statutes of this nature relating to the form and heading of ballots for use at popular elections are common. If conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. The legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[Footnote: State v. Houser, Wisconsin Reports; 100 Northwestern Reporter, 964.]

When title to a political office is contested, the courts, unless there is some constitutional provision to the contrary, may be appealed to for a decision. This is true even in respect to the office of Governor.[Footnote: Boyd v. Thayer, 143 U. S. Reports, 135; Taylor v. Beckham, 178 U. S. Reports, 548; State v. Bulkeley, 61 Connecticut Reports, 287.] It is a remedy which has been, though in rare instances, abused for party purposes.[Footnote: Such a case was the issue by a District Judge of the United States in 1872 of an injunction-order under which the Marshal took possession of the Louisiana State-house, and excluded those claiming to be the legislature of the State. Gibson, "A Political Crime," 347 et seq.; Senate Report, 457, Forty-second Congress, third session.]

The right of the Governors, which exists under the Constitutions of several States, to ask the judges of the Supreme Court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is Governor, if the title to the office is claimed by two. This was the case in Florida in 1869. The House of Representatives had commenced proceedings of impeachment against the Governor. It was on the first day of a special session of the Assembly. There could be no such session unless a quorum was present in each house. There were but twelve Senators in attendance. The Lieutenant-Governor regarded the proceedings as regular, and assumed to exercise the office of Governor pending the trial. The Governor claimed that twelve Senators were not a quorum, and that the proceedings were void. On these points he requested the opinion of the Justices of the Supreme Court, and they gave one supporting his contentions.[Footnote: 12 Florida Reports, 653.] A few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 518, 520.]

In the early days of the United States, under the present Constitution, the Chief Justices of the Supreme Court of the United States at times filled also a political office, and so were invested at the same time with political and judicial functions. John Jay, the first Chief Justice, while holding that office, was made our Envoy Extraordinary to Great Britain, and spent a year abroad in that capacity. His acceptance of the position, however, occasioned general and unfavorable comment. John Marshall was both Chief Justice and Secretary of State for five weeks, during which he held one term of the Supreme Court. Oliver Ellsworth was both Chief Justice and minister to France at the same time, and for a period of over a year, during which he held one term of court.

Nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office.

When the result of the election of the President and Vice-President of the United States was contested in 1877, Congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the Supreme Court, to decide upon the returns. Four of the justices were especially selected by the act passed for this purpose, two of them being Republicans and two Democrats, and they were directed to choose the fifth.[Footnote: 19 United States Statutes at Large, 228.] They agreed on Justice Bradley, a Republican. The Congressional members were equally divided politically. The result proved to be that on every important question in controversy every Republican voted for the view favorable to the Republican candidates and every Democrat voted for the other. The country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial participation in the decision of political issues.[Footnote: See Wilson, "Division and Reunion," 286; S. S. Cox, "Three Decades of Federal Legislation," 655; Pomeroy, "Some Account of the Work of Stephen J. Field," 440.]

Justices of the Supreme Court have since sat on international tribunals of arbitration, but this is, or should be, a strictly judicial proceeding.

In the State Constitutions, the judges of the highest courts are now often expressly forbidden to accept other office,[Footnote: See Chap XXII.] but in the absence of such a prohibition it would be considered as unbecoming. Formerly and during the first third of the nineteenth century this was in many States not so. Some were then judges because they held legislative office and as an incident of it. Others did not hesitate to accept political positions. Of the six Federalist electors chosen in New Hampshire at the presidential election of 1800, three were judges of her Supreme Court.[Footnote: Wharton's State Trials, 47.]

Judges have frequently taken part in constitutional conventions of their States. In Virginia, Chief Justice Marshall was a member of that of 1829, and Judge Underwood of the District Court presided over that of 1867. Chancellor Kent and Chief Justice Spencer were members of that of 1821 in New York.

It may well be doubted if the advantages to be gained by their counsel in such a position are not outweighed by the evil of exposing it to criticism as dictated by selfish considerations. A member of the New York convention thus alluded upon the floor to the measures supported by the Chief Justice and Chancellor:

He regretted that such an opinion and plan had been proposed by the Chief Justice. It must have arisen from the politics of the Supreme Court. The judges of that court had been occupied so much in politics that they had been compelled to press upon the public a system that had nothing else to recommend it than such a relief to themselves from the burthen of official duties as would leave them to the free exercise of their electioneering qualifications. But for this, the Chief Justice might have shown a Holt, or a Mansfield. The elevated character of the Chancellor had been often asserted and alluded to. He meant no disrespect to that honorable gentleman. He respected him as highly as any man when he confined himself to the discharge of the official duties of his office; but when he stepped beyond that line; when he became a politician, instead of being his fancied oak, which, planted deeply in our soil, extended its branches from Maine to Mexico, he rather resembled the Bohon Upas of Java, that destroyed whatever sought for shelter or protection in its shade.[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 615.]

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