Simeon E. Baldwin

“ In every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. If in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. ”

“ The leading lawyers in every State are expected to run over, if they do not read, every case in every new volume of its reports. Every case dropped lightens this task. It helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. It cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the United States as to becloud rather than illuminate whoever seeks to know what American law really is. ”

“ The broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. It is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. A foreign lawyer often hesitates to cross swords with the judge. He distrusts his own judgment if it differs from that of the court. He defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. ”

“ 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. ”

“ Many trial judges are young men of little experience either on the bench or at the bar. They are learning the law by administering it. Such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. It is hardly probable that they will always come to the right decision at last. Hence it is that so great a liberty of appeal is granted in every American State. ”

“ 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. ”

“ It seems, however, a necessary incident of our political institutions. They are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. Our Constitutions guaranty every man against deprivation of life, liberty or property without due process of law. If we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. ”

“ The rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. But in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. The rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. ”

“ But at the same time the personal consequence and reputation of every individual American judge has been steadily decreasing. As States multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. There is no room for star players upon the stage. Broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as Marshall or Story, Kent or Parsons, did, apart from his fellows. ”

“ Precedent is a fruit of reason ripened by time. Time, it has been said, is the daughter of Antiquity and takes place after Reason, which is the daughter of Eternity. Precedent rests on both. A legal code framed in any American State is little more than the orderly statement of what American courts have decided the law to be on certain points.
When reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. ”

“ It was one of the acute observations of Alexander Hamilton that under our American Constitutions judges are less to be relied on by one who is attacked by the government, because those who direct the government are the choice of the people, and whatever they do is presumably popular. The judiciary, he said, was less independent here than in England, and therefore we had the more reason to cling to the trial by Jury and their power to render general verdicts as our greatest safety. ”

“ Elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation. To expose one who exercises this power to immediate displacement, by a popular vote—largely, perhaps, composed of his political opponents—is to invite the enactment of questionable statutes, and still worse—to weaken the attractions of the bench for able and honest men. ”

“ Certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. If such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. ”

“ Along all these lines and many others the American courts have now for nearly three hundred years been quarrying out American law from the mine of the unwritten law of the people within their jurisdiction. It has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. This has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. ”

“ The President comes nearer to them than the Governor of their State because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. They look for these to the courts, and they know that they will seldom look in vain.
Only an educated and intelligent people can live under a written Constitution. It requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient institutions. Our Constitutions are mainly the work of former generations. ”

“ The omnipotence of Parliament and the free hand with which that has been exerted to change the common law have tended to separate English from American jurisprudence. Our written Constitutions have perpetuated here ideas of government and property which England does not recognize. Hence American precedents are of more use than English. But American precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. In each State its own reports are the expression of its ultimate law. ”

“ They find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. But they are sensitive to physical pain. A flogging they dread just as a boy dreads a whipping from his father, because it hurts. The South may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. No such criticism could fairly be made. Confinement in jail is involuntary servitude, and involuntary servitude is slavery. Whipping is a substitute for it: it saves from slavery. ”

“ CHAPTER XXIV THE LAW'S DELAYS The right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. The plaintiff, too, has corresponding rights. It was found not so easy by Frederick the Great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. In a freer land no such result is possible. ”

“ The consistency of American law as a whole is immeasurably more important than the consistency of the law of any single State.
Sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it. ”

“ A jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. That they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of American courts and jurists. ”

“ As, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a constitution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. ”

“ No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... In the present case we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. ”

“ In criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. While there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. They know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction. ”

“ We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to assume that power. We do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. ”

“ The anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. But I think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of American liberty; and that while Hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. ”

“ It is unfair to them, so far as any question of the Constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. The courts will not hold otherwise without strong grounds. It comes to them with the benefit of a full legislative endorsement. It is unfair to the people, both as to questions of constitutionality and of interpretation. A statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. ”

“ To defeat the operation of a statute is therefore always presumably an unpopular thing to do, and if in any case there is known to be truth behind the presumption, it requires, as the Federalist [Footnote: No. LXXVIII.] put it, "an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution."
It is seldom that an inferior court declares a statute void. The mere fact that it was enacted by the legislature imports the opinion of that body that it was within its powers; and such an opinion of a department of government is entitled to great respect. ”